COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a directive on safety on the Community's railways and amending Council directive 95/18/EC on the licensing of railway undertakings and directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification

2002/0022 (COD)

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a directive on safety on the Community's railways and amending Council directive 95/18/EC on the licensing of railway undertakings and directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification

1. BACKGROUND

Date of transmission of the proposal to Parliament and the Council: (documents COM(2002) 21 final - 2002/0022 (COD) COM(2002) 22 final - 2002/0023 (COD) COM(2002) 23 final - 2002/0024 (COD) COM(2002) 25 final - 2002/0025 (COD)): // 25.1.2002

Date of the opinion of the European Economic and Social Committee: // 19.9.2002

Date of the opinion of the European Parliament on first reading: // 14.1.2003

Date of transmission of the amended proposal: // Not applicable

Date of adoption of the common position: // 25.6.2003

2. SUBJECT OF THE COMMISSION PROPOSAL

There are four related legislative proposals:

- A proposal for the amendment of Directive 91/440 to extend infrastructure access rights to include rail freight services within a Member State and to speed up the opening up of the market.

- A proposal for a Directive on rail safety concerned with definition of the main elements of safety systems for infrastructure managers and railway undertakings. The aim is to develop a common approach to safety and to put in place a common system for the issuing, content and validity of safety certificates. Lastly, the aim is to introduce, as in other sectors, the principle of the independence of technical investigations in the event of accidents.

- A proposal for a Regulation creating a European Rail Agency to provide technical support for interoperability and safety work. Its areas of action would be, firstly, the development of common safety standards and the development and management of a system for monitoring safety performance and, secondly, the long-term management of the system for the establishment, registration and monitoring of technical specifications for interoperability.

- An amendment to the interoperability Directives 96/48/EC and 2001/16/EC. Beyond the adjustments required by the previous proposals for the interoperability directives, the main aim is to ensure coherence of the fields of application between the network in which access will be opened up and the network in which the interoperability rules will have to apply.

3. COMMENTS ON THE COMMON POSITION

3.1 Proposal for a Directive of the European Parliament and of the Council amending Council Directive 91/440/EEC on the development of Community railways

Consideration of Parliament's opinion

Firstly, Parliament had requested (amendments 1, 7, 8 and 9), for the sake of legal clarity, maintaining the provisions on the Trans-European Rail Freight Network until the date on which the market is opened up throughout the network. This solution was also adopted by the Council (Article 1(2)), and the Commission supports it.

As regards the date on which rail freight is opened up fully to competition, the Council (Article 1(2)), like Parliament (amendments 5 and 11), followed the Commission's proposal, but wished to indicate specific dates rather than making a reference to the date of transposition. The Council has opted for 1 January 2006 for opening up international freight services to competition throughout the network, which corresponds to what Parliament called for, and the date of 1 January 2008 for opening up domestic freight services to competition, which represents a delay of two years compared with what Parliament wanted. Although the timetable adopted by Parliament is closer to its initial proposal, the Commission accepts the Council's more gradual compromise.

However, the Council has not adopted amendments 2 and 4 concerning opening up passenger services by rail to competition. At this stage, the Commission had also not adopted these amendments proposing opening up the market in passenger services by rail for the following reasons:

Firstly, the Commission would recall that its amended proposal for a Regulation on action by Member States on public service requirements and the award of public service contracts in passenger transport by rail, road and inland waterways [1] fully applies to the railway sector and provides for the introduction of competition regulated by the award of public service contracts or exclusive rights.

[1] COM(2002) 107 final, OJ C 151E, 25 June 2002, p. 146.

The Commission is considering ways of opening up to competition other services which are not the subject of public service contracts or exclusive rights, with a view to putting forward proposals in 2003. Opening them up simply on the basis of freedom of access creates numerous difficulties as regards passenger protection, e.g. for the incorporation of reservation services or for the funding of public services. In this context, a balanced, well-regulated solution must be found, and the solutions proposed must be the subject of detailed impact analysis. It will also be necessary to take account of the case-law of the Court of Justice, which is likely to make new and important elements available soon.

Nonetheless, the Commission welcomes Parliament's amendments on opening up the passenger sector to competition as a strong political signal which will provide essential support for the preparation of its future proposals.

Lastly, it should be noted that the present legislation [2] enables international groupings of railway undertakings to obtain access and transit rights in order to operate international passenger services. This provision, which has hardly been used up to now due to the lack of an appropriate framework, could become the subject of renewed interest following the transposition on 15 March 2003 of Directives 2001/12/EC [3], 2001/13/EC [4] and 2001/14/EC [5], which now establish a specific, transparent and non-discriminatory framework for the allocation of capacity and provide for the establishment of a control body in each Member State.

[2] Directive 91/440/EEC - OJ L 237, 24.8.1991, p. 25.

[3] OJ L 75, 15.3.2001, p. 1.

[4] OJ L 75, 15.3.2001, p. 26.

[5] OJ L 75, 15.3.2001, p. 29.

The Council has not accepted Parliament's amendments 3 and 10 concerning "authorised candidates" enabling bodies other than railway undertakings to reserve capacity on the infrastructure. The Commission still supports this amendments since it believes that this is an important provision which strengthens the position of rail sector customers and contributes to the effective opening up of the freight market.

New provisions introduced by the Council

The Council has introduced a provision stating that, no later than 1 January 2007, the Commission should put forward a report on the implementation and impact of opening up the rail market (Article 1(2)(d)). The Commission welcomes this addition, which does not affect the timetable laid down by the Council for opening up the market.

4. CONCLUSIONS

The Commission supports the texts of the common position.

However, as regards the Agency, the Commission would like to draw attention to the forthcoming adoption of the standard provisions for all agencies following the entry into force of the new Financial Regulation.

5. STATEMENTS BY THE COMMISSION

The Commission entered the following statements in the minutes of the Transport Council meeting of 28 March 2003:

- "The Commission intends to present by the end of 2003 to the European Parliament and the Council a proposal relating to the introduction of a European driving licence for train drivers. Besides, the Commission fully supports and encourages the work in progress in the framework of the European Social Dialogue by the social partners, in accordance with Article 139 of the Treaty, concerning the harmonisation of driving times and rest periods for train drivers and staff accompanying trains.

- The Commission declares that the final budgetary needs for the European Railway Agency depend on a clear agreement on the competencies of this Agency between the Council and the European Parliament. These needs, of which a first assessment has been made in the financial statement attached to the legislative proposal, will have to be translated in the annual budgetary requests tabled by the Commission to the Council and the Parliament acting as the budgetary authority. A precise estimate of these needs for 2004-2006 can only be made once the codecision procedure has been completed.

- The arrangements laid down in paragraphs 4 and 5 of Article 8 of the Directive on safety do not constitute a system of prior authorisation."