Opinion on:

- the proposal for a Council Directive on the licensing of railway undertakings, and - the Proposal for a Council Directive on the allocation of railway infrastructure capacity, and the charging of infrastructure fees () (94/C 393/10)

On 18 January 1994 the Council decided to consult the Economic and Social Committee, under Article 75 of the Treaty establishing the European Community, on the abovementioned proposals.

The Section for Transport and Communications, which was responsible for preparing the Committee's work on the subject appointed Mr Bleser as Rapporteur on 12 January 1994. However, for health reasons, he was subsequently replaced by Mr Decaillon. The Section drew up its Opinion on 20 July 1994.

At its 318th Plenary Session (meeting of 14 September 1994), the Economic and Social Committee unanimously adopted the following Opinion.

1. Preliminary remarks

1.1. Before examining the two proposals for Directives, it seems useful to examine the role played by the railways in the context of European Union transport.

Railways have for years been losing substantial shares in the markets in goods and passenger transport. This has had a damaging effect on the environment.

The Economic and Social Committee believes that measures should be taken to improve the situation of the rail networks.

It would therefore be useful to outline the legal framework governing railway enterprises.

1.2. From the start of traditional rail transport last century, standardized legal instruments were drawn up for the sector and its undertakings in order to facilitate international rail transport.

These instruments mostly took the form of agreements concluded between railways, and were not necessarily covered by international provisions in national law.

The divergences between these national laws and regulations constitute an obstacle to the Community approach.

1.3. Initially private, Community railway undertakings have developed into public undertakings responsible for the supply and marketing of passenger and goods transport services. They operate in the various transport markets and compete with other public and private-sector undertakings.

1.4. These undertakings have formed the International Union of Railways (UIC) - a representative body recognized by the UN - which has legal personality and provides a vehicle for technical and commercial cooperation between its members.

1.5. Under current rail transport regulations, international transport operates on the basis of cooperation between all the railway undertakings involved.

For most activities, these regulations are implemented by means of the 'UIC leaflet'. Despite this state of affairs, railway undertakings have been unable to maintain their share of the market. Indeed rail transport is declining from year to year.

1.5.1.

Technical framework

The first real legal instrument, signed by governments of UIC member countries, was the Railway Technical Unity. This laid down the rules governing the tracks and rolling stock used for international transport.

1.5.2.

Commercial framework

International goods and passenger traffic is generally governed by the Convention concerning international carriage by rail (COTIF) and by its annexes on uniform rules for the international carriage of goods by rail (CIM) and for the international carriage of passengers by rail (CIV).

1.5.3.

Traffic management

International goods and passenger traffic is regulated by the conferences which the networks hold at regular intervals.

2. Introduction

2.1. The proposals for Directives concern (a) the licensing of railway undertakings and (b) the allocation of railway infrastructure and the charging of infrastructure fees; they are submitted pursuant to Directive 91/440/EEC of 29 July 1991.

2.2. Directive COM(93) 678 final - SYN 488 sets out the criteria to be applied by Member States when issuing operating licences to Community railway undertakings, or when extending or amending such licences.

2.3. Directive COM(93) 678 final - SYN 490 sets out the principles and procedures to be observed in the allocation of railway infrastructure capacity and the charging of infrastructure fees.

3. General comments

3.1. Directive 91/440/EEC provides the legal basis for developing separate accounting for the management of rail services and infrastructure in the European Union.

3.2. Without wishing to contest the validity of the two proposals for Directives, the Economic and Social Committee would point out that certain conditions have to be met before these Directives are implemented. Leaving aside the legal aspects, these conditions relate, in particular, to existing integrated links between the networks. The replacement of existing agreements is therefore not specified at any point in the Directives.

3.3. The separation of infrastructure management and transport operations, necessary for accounting reasons, and the improvement of railway undertakings' financial situations, are far from a reality in most Member States.

Implementation of the Directives will therefore give rise to legal difficulties and pose problems concerning national budget policies.

Technical interoperability is another area which is not harmonized.

3.4. Although the various Member States have legislation on most aspects of railway management (see preliminary remarks), there will clearly be a lacuna in the law - particularly with regard to rail technology - if reference is no longer to be made to UIC agreements, and more especially, to UIC leaflets. The forum for the debate on transport policy issues transcending the framework of the European Union is the European Conference of Ministers of Transport (ECMT).

3.5. UIC agreements do not have legal force. They are drawn up as a result of voluntary negotiations between networks with a common problem. They are used voluntarily as a point of reference for trade and technical matters, or in connection with the application of legislation. These agreements are complied with because of their practical usefulness. It would be advisable to assess whether the UIC should, at least during a transition stage, serve as a reference organization (as the ECAC does for civil aviation and the IMO for maritime navigation). The general objectives and criteria that Member States are entitled to negotiate should therefore be determined, and the undertakings operating in the market should be encouraged to harmonize other areas by means of negotiations.

3.6.

Qualifications, workers' health and working conditions

3.6.1. A general education, evidenced by a certificate, is the basic requirement for new recruits; however, the skills for most typical railway occupations are acquired via specialized vocational training courses, available only in railway training centres.

3.6.2. This implies that a large proportion of the staff of companies owning infrastructure will be required to hold a certificate issued by a Member State. The question of whether Community certificates should be created therefore remains to be answered. The above applies also to staff of railway undertakings.

3.6.3. Also very important are medical examinations and follow-ups for certain occupations, especially those for which safety is paramount (e.g. train drivers).

3.6.4. To prevent distortion of competition between undertakings, regulations along the lines of those governing civil aviation are required.

3.6.5. The European Community did not think it appropriate to regulate the working conditions of rail transport undertakings. The question is nonetheless raised, in view of the new market conditions. Working conditions must be adapted upwards.

3.7.

Operational safety

3.7.1. Although one of the main objectives of the Directive is to safeguard the rail safety system, it is not obvious that all the necessary preconditions have been established for ensuring this in the new market conditions.

3.7.2. With respect to the efficiency of the railway system, the interdependence of safety, regularity and cost effectiveness is only feasible in an integrated system. It would therefore appear absolutely essential that Member State governments give infrastructure managers responsibility both for the allocation of railway infrastructure and for safety.

3.7.3. Although there is a fairly standardized highway code for Europe's roads, this is not the case for railways. The Member States have adopted divergent approaches to this aspect of regulation.

3.8.

Taxation of infrastructure

3.8.1. The Commission has already tried on several occasions to propose ways of taxing infrastructure costs, including external costs as far as possible. Despite numerous discussions and suggestions, it has not yet been possible to find a more or less harmonized approach to the allocation of infrastructure costs to users.

3.8.2. Although the Directive suggests moving in the direction mentioned above, its terminology is rather vague. Expressions such as 'to market efficiently the available capacity', 'no abusively high fees shall be charged' or 'non-discriminatory rules' are hardly likely to lead to a more or less harmonized Community system of tariffs.

3.8.3. It is clearly fairly difficult to put a precise figure on external costs. However, a start should be made by submitting a proposal laying down basic rules for all transport modes. Any system which does not permit a full, harmonized evaluation of each mode's external costs and benefits will produce intermodal distortions. This is the principle which must underlie the Community's approach towards the charging of infrastructure costs.

3.8.4. Regulations 1108/70/EEC of 14 June 1970 and 2598/70/EEC of 18 December 1970 introduced an accounting system for expenditure on infrastructure in respect of transport by rail, road and inland waterway.

Although rules have not been laid down on the allowance to be made for external costs, these Regulations provide a useful basis for calculating the infrastructure costs to be charged to users.

3.9.

Appeals and insurance

3.9.1. As long as there is a direct link between the owner and the operator of the infrastructure, railway undertakings will resolve their disputes themselves under international law.

3.9.2. This is not the scenario envisaged by the proposals for Directives. Apart from the means of redress available under national and Community law, there is to be no right of appeal to the Commission against Member States' decisions regarding the licences and fees for the use of infrastructure.

3.9.3. At present the individual Member States have considerable scope for applying civil liability and insurance rules in widely different ways. These areas must therefore be harmonized.

I. PROPOSAL FOR A COUNCIL DIRECTIVE ON THE LICENSING OF RAILWAY UNDERTAKINGS

4. Specific comments

4.1.

Article 2(a) 'railway undertaking'

The definition should accord with Directive 91/440/EEC: 'transport services for goods and/or passengers' ().

4.2.

Article 8(1)(c) and (2)

4.2.1. No reference document exists other than the Commission Communication 92/C 338/01 () on the comparability of vocational training qualifications between the Member States of the European Community established in implementing Council Decision 85/368/EEC of 16 July 1985, 'Transport Sector'. This Communication includes a comparative table of diplomas, certificates and other vocational training qualifications granted to locomotive drivers in each of the Member States.

4.2.2. This table nevertheless provides a basis on which to determine the equivalence of diplomas, certificates and other vocational training qualifications issued in each Member State for an occupation which, by the very nature of its activities, is engaged in international transport.

4.2.3. In order to guarantee the fundamental principle of the free movement of persons, the freedom of establishment and the freedom to provide services, as set out under Articles 48, 52 and 59 of the Treaty, the question of the mutual acceptance of any future licence must be addressed.

4.2.4. The various jobs performed by railway workers will have to be defined along with the job requirements in a relevant Community harmonizing instrument or in the body of this Directive.

4.2.5. It is not possible to impose the principle that railway undertakings are to be made responsible for staff training - especially in safety matters - and are to pass on their knowledge to new undertakings. If this principle is to be applied by mutual consent, it should be based on objective commercial criteria.

4.3.

Article 9

The extent of civil liability should be specified.

The minimum cover for each type of accident should be determined.

A link should also be established between Articles 7 and 9 by making provision for a financial guarantee instrument which embraces the financial fitness and third-party liability concepts.

4.4.

Articles 12 and 13

With regard to the compliance with 'national laws compatible with Community law', this text can only partly cover the provisions currently in force to ensure the conditions of transport (see preliminary comments).

II. PROPOSAL FOR A COUNCIL DIRECTIVE ON THE ALLOCATION OF RAILWAY INFRASTRUCTURE CAPACITY AND THE CHARGING OF INFRASTRUCTURE FEES

5. Specific comments

5.1.

Article 2(a)

See comment under 4.1. Reference to the Directive on licences should also be made.

5.2.

Article 5

In line with civil aviation practice, undertakings established prior to this Directive should be granted preferential rights on precise train paths, according to the principle of 'grandfather rights'.

5.3.

Article 6

Under Article 7 of Directive 91/440, 'Member States shall take the necessary measures for the development of their national railway infrastructure taking into account, where necessary, the general needs of the Community'. The question of economic viability is not raised.

This brings us back to the comments in 3.8.3 on the need to take account of all costs, including external costs.

If the Member State is to meet the total rail infrastructure costs, the meaning of Article 6 is hard to grasp.

5.4.

Article 8

See comments under 3.8.

5.5.

Article 10

Article 10(2)

What are the criteria used to vet this knowledge? Which authority defines these criteria?

Article 10(3), (4), (5) and (6)

The regular conferences governing international goods and passenger train timetables have proved their worth. Flexibility with regard to timetable changes has always existed. Awarding train paths in the manner suggested here appears less flexible.

Article 10(7) and (8)

No harmonized legal basis will exist for the safety certificates to be issued by the competent authority if certain provisions of particular agreements between networks are not included in legal texts.

5.6.

Article 12

Contrary to the provisions covering other modes of transport, no appeals may be made to the Community authority. This right of appeal should be made available in the event of disputes between several operators and train-path users.

6. Conclusions

6.1. The two proposals under discussion overlap with Directive 91/440, which was the subject of an ESC Opinion (4 July 1990, Rapporteur: Mr Haas). The interpretation of the basic text poses difficulties, as the drafts under discussion in the various Member States for transposing it into national law demonstrate. These difficulties are compounded by those caused by the proposals now under discussion. Since these two proposals are not based adequately on the reality of the situation and on the work of the international bodies empowered to deal with all matters to do with interoperability, their application is under threat.

In the general interest of rail transport development and, consequently, the environment, these problems of transposition and application must therefore be solved beforehand.

6.2. The railways must be integrated into a competitive market by taking into account the specific aspects of this mode of transport and by adopting an intermodal approach which takes account of all internal and external costs and benefits.

6.3. The Committee calls for criteria to be more clearly defined, steps to be less rushed and certain texts to be revised in the light of the arguments put forward in this Opinion.

Done at Brussels, 14 September 1994.

The President

of the Economic and Social Committee

Susanne TIEMANN

() OJ No C 24, 28. 1. 1994, p. 2.

() Translator's footnote: the English text already says and/or, whereas the French text only says or.

() OJ No C 338, 21. 12. 1992.