COMMON POSITION (EC) No 44/94 adopted by the Council on 21 November 1994 with a view to adopting a Council Directive 94/. . ./EC, of . . ., on the allocation of railway infrastructure capacity and the charging of infrastructure fees (94/C 354/03)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 75 thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social Committee (2),

Acting in accordance with the procedure laid down in Article 189c of the Treaty (3),

Whereas greater integration of the Community transport sector is an essential element of the internal market and whereas the railways are a vital part of the Community transport sector;

Whereas the principle of the freedom to provide services needs to be applied in the railway sector, taking account of the specific characteristics of that sector;

Whereas Council Directive 91/440/EEC of 29 July 1991 on the development of the Community's railways (4) provides for certain access rights in international rail transport for railway undertakings and international groupings of railway undertakings;

Whereas it is important to ensure that, where railway undertakings and the international groupings which they constitute provide the services referred to in Article 10 of Directive 91/440/EEC, they benefit fully from the new access rights and whereas, to this end, it is appropriate to establish a system for the allocation of railway infrastructure and the charging of infrastructure fees which is non-discriminatory and uniform throughout the Community;

Whereas the scope of Directive 91/440/EEC should be maintained, including the exceptions laid down therein for regional, urban and suburban services, and whereas it should be specified that transport operations in the form of shuttle services through the Channel Tunnel are also excluded from the scope of that Directive;

Whereas, pursuant to the principle of subsidiarity, it is appropriate that the Community lay down the broad principles of such a system, leaving it to the Member States to put in place the detailed rules for the relevant practical implementation;

Whereas the Member States should ensure sufficient flexibility as regards the allocation of infrastructure capacity to allow efficient and optional use of the infrastructure;

Whereas, however, it is necessary to grant certain priority rights with regard to the allocation of infrastructure capacity, notably for public services provided on a specific railway infrastructure;

Whereas it is also necessary to provide for the possibility of granting special rights in allocating infrastructure capacity if those rights are essential to ensure adequate transport services or to allow the financing of new infrastructure;

Whereas the accounts of the infrastructure manager should be in balance so that infrastructure expenditure can be covered;

Whereas, furthermore, it is necessary to define non-discriminatory rules as regards the charging of infrastructure fees in the same market;

Whereas efficient use of infrastructure capacity requires that fees be fixed according to a common set of general criteria;

Whereas, out of a general concern for transparency and non-discrimination, common rules should be adopted concerning the procedures for the allocation of infrastructure capacity and the charging of infrastructure fees;

Whereas, in the interests of traffic safety, railway undertakings must, in order to have access to a particular infrastructure, hold a certificate of safety based on certain common criteria and on national provisions, issued by the body competent for the infrastructure used; whereas they must also conclude with the infrastructure manager the requisite technical, administrative and financial agreements;

Whereas it is necessary to guarantee possibilities for making an appeal before an independent body against decisions taken by the authorities and bodies competent as regards the allocation of infrastructure capacity and the charging of infrastructure fees; whereas this possibility for making an appeal is required in particular to resolve any conflicts of interest in cases where an infrastructure manager is at the same time a transport services operator and is responsible for allocating train paths and/or collecting infrastructure fees,

HAS ADOPTED THIS DIRECTIVE:

SECTION I Objective and scope

Article 1

1. The purpose of this Directive is to define the principles and procedures to be applied with regard to the allocation of railway infrastructure capacity and the charging of infrastructure fees for railway undertakings which are or will be established in the Community and the international groupings which they form, where such undertakings and groupings carry out services referred to in Article 10 of Directive 91/440/EEC under the conditions laid down in that Article.

2. Railway undertakings the activities of which are limited to the operation of urban, suburban and regional services shall be excluded from the scope of this Directive.

Railway undertakings and international groupings the business of which is limited to providing shuttle services for road vehicles through the Channel Tunnel are also excluded from the scope of this Directive.

3. Railway infrastructure capacity shall be granted in the form of the allocation of train paths in accordance with Community and national law.

Article 2

For the purpose of this Directive:

(a) 'railway undertaking' means any public or private undertaking the main business of which is to provide rail transport services for goods and/or passengers, with a requirement that the undertaking must ensure traction;

(b) 'international grouping' means any association of at least two railway undertakings established in different Member States for the purpose of providing international transport services between Member States;

(c) 'infrastructure manager' means any public body or undertaking responsible in particular for establishing and maintaining railway infrastructure, as well as for operating the control and safety systems;

(d) 'train path' means the infrastructure capacity needed to run a train between two places at a given time;

(e) 'allocation' means the allocation of railway infrastructure capacity by an allocation body;

(f) 'allocation body' means the authority and/or infrastructure manager designated by the Member States for the allocation of infrastructure capacity.

SECTION II Allocation of railway infrastructure capacity

Article 3

Each Member State shall designate the allocation body in accordance with the requirements of this Directive. In particular, the allocation body, which shall be informed of all train paths available, shall ensure that:

- railway infrastructure capacity is allocated on a fair and non-discriminatory basis and that,

- subject to Articles 4 and 5, the allocation procedure allows optimum effective use of the infrastructure.

Article 4

1. Member States may take the necessary measures to ensure that priority is given to the following rail services in the allocation of railway infrastructure capacity:

(a) services provided in the interest of the public, as defined in Council Regulation (EEC) No 1191/69 of 26 June 1969 on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway (5);

(b) services wholly or partly operated on infrastructure constructed or developed for certain specific services (specialized high-speed or freight lines), without prejudice to Articles 85, 86 and 90 of the Treaty.

This provision shall apply without discrimination to all services within the scope of Article 1 having comparable characteristics and providing similar services.

2. With regard to services provided under paragraph 1 (a), Member States may compensate the infrastructure manager for any financial losses incurred due to the imposition of a certain infrastructure capacity allocation in the interests of public service.

Article 5

Member States may grant special rights as regards infrastructure capacity allocation on a non-discriminatory basis to railway undertakings operating certain types of services or in certain areas if such rights are indispensable to ensure adequate public services or efficient use of infrastructure capacity or to allow the financing of new infrastructures, without prejudice to Articles 85, 86 and 90 of the Treaty.

SECTION III Charging of infrastructure fees

Article 6

The accounts of an infrastructure manager shall, under normal business conditions over a reasonable time period, at least balance income from infrastructure fees plus State contributions on the one hand and infrastructure expenditure on the other.

Article 7

There shall be no discrimination in the charging for services of an equivalent nature in the same market.

After consulting the infrastructure manager, Member States shall lay down the rules for determining the infrastructure fees. These rules shall provide the infrastructure manager with the facility to market the available infrastructure capacity efficiently.

Article 8

1. The fees charged by the infrastructure manager shall be fixed according to the nature of the service, the time of the service, the market situation and the type and degree of wear and tear of the infrastructure.

2. As regards the procedures for the payment of fees, Member States may provide for the possibility that a global agreement be concluded with the infrastructure manager as regards public services, in accordance with Regulation (EEC) No 1191/69.

Article 9

1. The fees shall be paid to the infrastructure manager(s).

2. Member States may require the infrastructure manager to provide all the information on the fees necessary to satisfy them that they are charged on a non-discriminatory basis.

3. The infrastructure manager shall inform railway undertakings using its infrastructure to provide services referred to in Article 10 of Directive 91/440/EEC in good time of any major changes in the quality or capacity of the infrastructure concerned.

SECTION IV General provisions

Article 10

1. Member States shall lay down the procedures for the allocation of railway infrastructure capacity referred to in Article 1 (3). They shall publish their procedural rules and inform the Commission thereof.

2. An application for infrastructure capacity shall be submitted to the allocation body of the Member State on the territory of which the departure point of the service concerned is situated.

3. The allocation body to which an application has been submitted shall immediately inform the other allocation bodies concerned of this request. The latter shall take a decision as soon as possible but no later than one month after all relevant information has been submitted; each allocation body shall have the right to refuse an application. They shall immediately inform the allocation body to which the request has been submitted.

The allocation body to which an application has been submitted shall, together with the other allocation bodies concerned, take a decision on the application as soon as possible, but no later than two months after all relevant information has been submitted.

An application which has been refused on the grounds of insufficient capacity shall be reconsidered at the next timetable adjustment for the routes concerned if the applicant undertaking so requests. The dates for such adjustments and other administrative arrangements shall be available to interested parties.

The decision shall be communicated to the applicant undertaking. A refusal shall indicate the reason therefor.

4. An applicant undertaking may directly contact the other allocation bodies concerned with this request on condition that the allocation body to which the application has been submitted is informed.

5. The railway undertakings to which railway infrastructure capacity is allocated shall conclude the necessary administrative, technical and financial agreements with the infrastructure managers.

Article 11

1. The Member States shall provide that in addition a safety certificate in which the railway undertakings' safety requirements are set out be submitted in order to ensure safe service on the routes concerned.

2. In order to obtain the safety certificate, the railway undertaking must comply with the regulations under national law, compatible with Community law and applied in a non-discriminatory manner, laying down the technical and operational requirements specific to rail services and the safety requirements applying to staff, rolling stock and the undertaking's internal organization.

In particular, it must provide proof that the staff whom it employs to operate and accompany the trains providing services referred to in Article 10 of Directive 91/440/EEC has the necessary training to comply with the traffic rules applied by the infrastructure manager and to meet the safety requirements imposed on it in the interests of train movement.

The railway undertaking must also prove that the rolling stock comprising these trains has been approved by the public authority or by the infrastructure manager and checked in accordance with the operating rules applicable to the infrastructure used. The safety certificate shall be issued by the authority designated for the purpose by the Member State in which the infrastructure used is situated.

Article 12

Member States may provide for the possibility that applications for infrastructure access are accompanied by a deposit or similar security.

If an applicant does not make use of an allocated train path, an amount may be deducted from the deposit which represents the cost incurred in processing the application and any subsequent loss of earnings due to the non-use of the infrastructure capacity concerned. In the other cases, the deposit/security shall be returned in its entirety.

SECTION V Final provisions

Article 13

1. Member States shall take the measures necessary to ensure that decisions on the allocation of infrastructure capacity or the charging of fees shall be open to appeal before an independent body when so requested in writing by a railway undertaking. This body shall take its decision within two months of the submission of all relevant information.

2. Member States shall take the measures necessary to ensure that decisions taken in accordance with paragraph 1 are subject to judicial review.

Article 14

1. The Commission shall, two years after the application of this Directive, submit to the Council a report, accompanied - if necessary - by proposals regarding continued Community action, with particular regard to the possibility of enlarging the scope of the Directive.

2. Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive not later than two years following the date of the entry into force of this Directive. They shall forthwith inform the Commission thereof.

3. When Member States adopt the provisions referred to in paragraph 2, they shall contain a reference to this Directive or be accompanied by such reference at the time of their official publication. The methods of making such reference shall be laid down by the Member States.

Article 15

This Directive shall enter into force on the date of its publication in the Official Journal of the European Communities.

Article 16

This Directive is addressed to the Member States.

Done at . . .

For the Council

The President

(1) OJ No C 24, 28. 1. 1994, p. 2 and OJ No C 225, 13. 8. 1994, p. 11.

(2) Opinion delivered on 14 September 1994 (not yet published in the Official Journal).

(3) Opinion of the European Parliament of 3 May 1994 (OJ No C 205, 25. 7. 1994, p. 45), Council common position of . . . (not yet published in the Official Journal) and Decision of the European Parliament of . . . (not yet published in the Official Journal).

(4) OJ No L 237, 24. 8. 1991, p. 25.

(5) OJ No L 156, 28. 6. 1969, p. 1. Regulation as last amended by Regulation (EEC) No 1893/91 (OJ No L 169, 29. 6. 1991, p. 1).

STATEMENT OF THE COUNCIL'S REASONS

I. Introduction

On 15 December 1993 the Commission forwarded to the Council a proposal for a Directive on the allocation of railway infrastructure capacity and the charging of infrastructure fees (1).

The European Parliament delivered its opinion on 3 May 1994 (2) and the Economic and Social Committee did so on 14 September 1994 (3).

In the light of these opinions, the Commission forwarded an amended proposal to the Council on 18 July 1994 (4).

On . . . the Council adopted its common position in accordance with Article 189c of the EC Treaty.

II. Purpose of the proposal

Directive 91/440/EEC on the development of the Community's railways (5) granted access to railway infrastructure to railway undertakings established or to be established in a Member State and to international groupings of at least two such undertakings, excluding undertakings whose activity was limited to the provision of solely urban, suburban or regional services.

Individual railway undertakings thus have a right of access to the infrastructure of the other Member States for the purpose of operating international combined transport goods services.

International groupings have a right of access and transit rights in the Member States of establishment of their constituent railway undertakings, as well as transit rights in other Member States, for international services between the Member States where the undertakings constituting the said groupings are established (Article 10 of Directive 91/440/EEC).

The aim of the Commission proposal is to guarantee application of common conditions of access to the Community railway market in the context of the rights of access granted pursuant to Directive 91/440/EEC.

That proposal therefore constitutes, together with the proposal for a Directive on the licensing of railway undertakings, an addition to Directive 91/440/EEC and is intended to facilitate its application.

The Commission proposal sets the general framework for a uniform and non-discriminatory Community system of access to railway infrastructure and the charging of infrastructure fees to enable railway undertakings and their customers to benefit fully from the possibilities of the internal market in the railway sector.

III. Analysis of the common position

The common position adopted by the Council determines, as provided for in the Commission proposal, a number of common principles and criteria, applied on a non-discriminatory basis, for the allocation of train paths and the charging of infrastructure fees, leaving it up to the competent authorities of the Member States to introduce detailed rules for the practical implementation of the system set up.

Although the Council's common position to a very large extent pursues the aims of the Commission proposal, it nevertheless contains a number of amendments to the latter.

The main amendments introduced by the Council concern the following areas:

1. Scope of the Directive

The Commission proposal provided for the Directive to apply to all railway undertakings for all transport services, both national and international.

Bearing in mind the fact that Member States have only very recently implemented Directive 91/440/EEC, the Council felt that the scope of the Directive under consideration should correspond to that of Directive 91/440/EEC without any enlargement (see Section II).

Consequently:

- rights of access to railway infrastructure are granted only to the railway undertakings and international groupings referred to in Article 10 of Directive 91/440/EEC for the international transport services mentioned in that Article (Article 1 (1) of the common position),

- railway undertakings whose activity is limited to urban, suburban and regional services are excluded from the scope of the Directive, as they are from the scope of Directive 91/440/EEC. An exception compared with the scope of Directive 91/440/EEC is, however, introduced for transport operations carried out by shuttle services through the Channel Tunnel, in view of the specific nature of such services (Article 1 (2)).

2. Responsibilities conferred on the infrastructure manager

The common position stipulates that:

(a) Member States may, with due regard for the rules on competition laid down in the Treaty, make the infrastructure manager responsible for allocating train paths and/or charging infrastructure fees, including in those cases in which the manager is at the same time the operator of railway transport services (Articles 2, 3, 7, 8 and 9 in particular);

(b) the railway undertaking must have the right to appeal to an independent body against decisions by the competent authorities and bodies on the allocation of infrastructure capacity and the charging of fees, in particular where such decisions are taken by an infrastructure manager who is at the same time the railway operator (Article 13).

The possibility of judicial review is also guaranteed.

3. Special rights of access to railway infrastructure

The common position (Article 5) provides for the possibility of granting special rights in two additional cases compared with the Commission proposal, namely where they are indispensable to ensure:

- efficient use of infrastructure capacity,

- the financing of new infrastructures.

4. Safety certificate

The common position provides for the setting of a number of safety conditions with which a licence-holding railway undertaking must comply in order to obtain the safety certificate. The certificate is issued by the authority designated for the purpose by the Member State in which the infrastructure used is situated (Article 11).

5. Report on application and possible continued Community action

The common position provides that two years after the application of the Directive the Commission will submit to the Council a report, accompanied, if necessary, by proposals regarding continued Community action on the development of railways, with particular regard to the possibility of enlarging the scope of the Directive (Article 14 (1)).

6. Time limit for implementation of the Directive

In view of its complexity, implementation of the Directive is to take place within two years of its entry into force (Article 14 (2)).

IV. Amendments by the European Parliament

1. European Parliament amendments accepted by the Council

The Council followed the Commission's amended proposal in accepting:

- amendment 2 (Article 2 (c)) of the common position, which takes over the definition of infrastructure manager contained in Directive 91/440/EEC,

- amendment 4 (Article 3, first sentence), which enables Member States to designate not only the authority but also the infrastructure manager as responsible for the allocation of infrastructure capacity,

- the first part of amendment 6 (Article 4 (1), first line) and the first part of amendment 7 (Article 5, first line), which give Member States rather than the allocation body the right to take the measures laid down in these Articles,

- the first part of amendment 10 (Article 10 (2)), which dispenses with the requirement to attach to the application evidence regarding operational staff.

Furthermore, Article 5 of the common position incorporates the second part of amendment 7, which provides for the possibility of also granting special rights as regards infrastructure allocation where such rights are indispensable for efficient use of infrastructure capacity.

2. European Parliament amendments not accepted by the Council

(a) Those adopted by the Commission

The Council felt that amendments 1 (in view of the scope laid down by the common position), 6 (second part), 8, 11 and 14 were in substance covered by the common position.

As regards amendments 3, 4 (second part) and 5, the Council felt that it would be difficult to apply them effectively in view of the complexity of the operations concerned and that it should be left to the Member States to organize and allocate the various responsibilities arising out of the management of railway infrastructure and the operation of railway transport services (issue of licences, safety certificates, allocation of train paths, charging of infrastructure fees) with due regard for the principle of non-discrimination and on condition that transparency of the system was guaranteed.

In order to prevent any conflicts of interest, Article 13 of the common position provides for appeals to an independent body (see Section III.2).

With regard to the first part of amendment 9, the Council felt that only objective criteria for setting infrastructure fees should be laid down and that Member States should be left to settle the matter of relations between the national bodies concerned.

Finally, the Council felt that amendment 10 entailed a series of measures which it would be too complicated to apply and that it was preferable to introduce common, clear and precise general criteria on the procedures for charging fees and the allocation of infrastructure capacity, while providing the flexibility necessary for these procedures to be applied on a fair and non-discriminatory basis guaranteeing the transparency of the system.

(b) Not adopted by the Commission

The Council did not accept amendments 13 (see Article 3 of the Commission proposal), and 15 (see Article 8 (1)) or the second part of amendment 9 (see Article 8 (1), preferential rates) for the same reasons as those stated by the Commission in the explanatory memorandum to its amended proposal.

(1) OJ No C 24, 28. 1. 1994, p. 6.

(2) 6738/94 PE-RESOL 33, p. 11.

(3) Doc. CES 1005/94.

(4) OJ No C 225, 13. 8. 1994, p. 11.

(5) OJ No L 237, 24. 8. 1991, p. 25.