EUROPEAN COMMISSION Brussels, 17.5.2018 SWD(2018) 178 final COMMISSION STAFF WORKING DOCUMENT



IMPACT ASSESSMENT

Accompanying the document Proposal for a Regulation of the European Parliament and of the Council on streamlining measures for advancing the realisation of the trans-European transport network {COM(2018) 277 final}

{SEC(2018) 228 final}

{SWD(2018) 179 final}



Glossary Term or acronym Meaning or definition AA Appropriate Assessment ACER Agency for the Cooperation of Energy Regulators CBA Cost Benefit Analysis CBS Report Former European Commission Vice-President H. Christophersen, Professor K. Bodewig, European Coordinator, Professor C. Secchi, European Coordinator in the "Action Plan – Making the best use of new financial schemes for European transport infrastructure projects", June 2015, CEF Connecting Europe Facility CNC Core Network Corridor ECJ European Court of Justice EFSI European Fund for Strategic Investments EIA Environmental Impact Assessment EIAH European Investment Advisory Hub ESIF European Structural Investment Funds EU European Union GDP Gross Domestic Product JASPERS Joint Assistance to Support Projects In European Regions MS Member State NGO Non-governmental organisation NPV Net Present Value OPC Open Public Consultation OSS One-Stop-Shop PO Policy Option PPP Public-Private Partnership SEA Strategic Environmental Assessment SME Small and medium sized enterprises TEN-E Trans-European Network for Energy TEN-T Trans-European Network for Transport TEN-T Regulation Regulation (EU) No 1315/2013 of the European Parliament and of the Council of 11 December 2013 on Union guidelines for the development of the trans-European transport network and repealing Decision No 661/2010/EU OJ L 348, 20.12.2013, p. 1–128



1INTRODUCTION: POLITICAL AND LEGAL CONTEXT 1.1Political context The European Commission holds stimulating economic growth and boosting investment in the real economy at the heart of its priorities. The Investment Plan for Europe, which translates this overarching goal into operational terms, has three objectives: to make smarter use of financial resources, to provide visibility and technical assistance to investment projects, and to remove obstacles to investment, the so-called third pillar of the Plan. The present initiative aims at contributing to this third pillar by helping removing obstacles to investments in the infrastructure projects in the transport sector. Currently, some of the most complex projects require up to 10 years to clear all necessary administrative procedures to start works, and for the more routine ones up to five years. It is therefore not possible to fully reap the expected benefits of infrastructure projects in terms of growth and jobs but also wider socio-economic benefits. The time between the political decision and the delivery of the infrastructure asset is in fact too long to bear fruit in the short term. Therefore, it is necessary to unlock the potential of key transport infrastructure investments with high EU added value, namely the Trans-European Transport Network (TEN-T). The EU TEN-T policy recognises the importance of a strategic approach to developing a Europe-wide smart, efficient and sustainable network of transport infrastructure. The TEN-T has a dual layer structure – the comprehensive network shall ensure connectivity of all regions of the EU whereas the core network consists of those elements of the network which are of the highest strategic importance for the EU and are shown on the maps contained in Annex I of the TEN-T regulation. The TEN-T Regulation defines binding targets for implementation, as the core network needs to be implemented by 2030 and the comprehensive network by 2050. The TEN-T policy also establishes Core Network Corridors which are operational tools to facilitate the coordinated and timely implementation of the core network. The recent Commission Communication on boosting the potential of cross-border regions in the EU highlights that transport is a key enabler of exchanges between regions across national borders. This also underlines the crucial role TEN-T is playing for the integration of the Single Market. Infrastructure projects on cross-border connections are nevertheless the most difficult to be developed. Especially public transport services not only help integration processes but also enhance the sustainability of cross-border connectivity. Yet, insufficient or low-quality public transport services are still a reality for many citizens in border regions. Supporting the Investment Plan for Europe The analysis carried out by the Commission on the Core Network Corridors allows for the identification of bottlenecks and missing links as well as other relevant infrastructure projects to ensure compliance with EU standards and the efficiency of the EU transport. It is estimated that the investments needed from 2021 until 2030 to complete the TEN-T core network amount to about €500 billion for the EU, based on inputs from Member States. The total needs, including TEN-T comprehensive network, as well as investments in decarbonisation, digitalisation, urban transport and maintenance are estimated to amount to about € 1,500bn between 2021 and 2030. The achievement of the TEN-T core network and its corridors is expected to generate additional € 4,500bn or 1.8% of GDP and 13 million additional job-years by 2030 . The effective and timely delivery of the TEN-T is essential for the efficient functioning of the Single Market and also an enabler for the decarbonisation and digitalisation of transport and the transition to low carbon mobility.The recent Commission communications emphasise the need to mobilise private investments in sectors critical to Europe’s future and where market failures remain as well as reiterate that cross-border and sustainable transport and TEN-T infrastructure is critical for the EU to shift to a low-carbon and resource-efficient economy. Political impetus to streamlining permitting for TEN-T The Council of Ministers adopted conclusions on 3 December 2014 where they considered “that permitting procedures are an essential part of the planning of (transport) projects, that an early consultation and coordination of parties is crucial to streamline these procedures, accelerate projects and avoid additional costs, thereby increasing investors’ confidence”. The Council then invited the Commission to take stock of good practices and identify ways to simplify procedures for projects of the core network. The simplification of permitting rules and administrative arrangements as a means of accelerating the implementation of the TEN-T has been identified as one of the recommendations in the so-called CBS Report Action Plan , presented by European Coordinators Bodewig and Secchi as well as former Vice President H. Christophersen. In January 2018, a progress report of the implementation of their recommendations reiterated the call to consider setting up of special (single) procurement rules for cross-border projects and setting time limits for the permitting procedure. The complex permitting processes delaying the implementation of transport infrastructure projects are not a typically European problem. The complexity of regulation affecting the efficient permitting procedure has been debated in the G7 format and in the Declaration of the Ministers adopted at the G7 Transport Ministers Meeting in Cagliari in June 2017, where the Ministers stressed the importance of building public acceptance of infrastructure projects, of efficient administrative procedures and of streamlining the regulatory environment. Efforts to streamline the procedures are also made at national level, for example in Germany with the Strategy for speeding up the planning process which has similar objectives to this initiative. Long term investments need long term strategy The TEN-T policy was completely revamped in 2013 with the adoption of a new regulation defining a holistic strategy based on the establishment of the core network by 2030 and the comprehensive network by 2050. The TEN-T policy has nevertheless existed for 25 years and at the time of the preparation of the current TEN-T framework, evidence already existed on the existence and impacts of delays in permitting and other regulatory procedures. Initially it was planned to integrate the simplification measures also for TEN-T framework, but it was in the end considered premature due to several factors. Namely, the reshaped TEN-T framework included already an ambitious set of innovations, in particular in connection with the new funding instrument. Moreover, the respective horizontal pieces of legislation such as directives on public procurement and on environmental assessments were planned to be reviewed and adapted also to the needs of the transport infrastructure developments. For these reasons, the current TEN-T Regulation does not provide for specific solutions as regards the permit granting procedures, unlike the TEN-E Regulation. As a result, the present initiative could also not be developed as part of the REFIT programme.

Finally, it should be highlighted that no evaluation of the TEN-T Regulation is planned in the near future. The TEN-T regulation was conceived as long term plan for at least two multi-annual financial frameworks to provide stability, as most of the projects need ca. 10 years to be implemented. The co-legislators have foreseen that the evaluation of the TEN-T Regulation would only take place in 2023 to feed into a possible revision of the regulation for the multi-annual framework post 2027. 1.2Legal context The investments on the core network consist of the construction of new parts of the network as well as the rehabilitation and upgrading of existing infrastructure parts which already exist but, either are not of sufficient quality and capacity to meet the current needs, or do not meet the required TEN-T standards. In this context, all key EU pieces of legislation that relate to infrastructure investments apply to TEN-T projects: in particular environment, public procurement and State aid. National legislation transposing EU Directives directly govern the procedures at Member State level, but these must be in conformity with EU legislation. The main areas for which Member State authorities have sole competence are spatial planning and land use and linked sectoral planning (e.g. transport plans); and other areas such as archaeological considerations, forestry etc. All this creates a quite complex set of rules which the project promoters have to comply with when designing and implementing the projects of EU importance. The authorisation framework stems from different obligations, and sets forth the process that projects must go through to apply for and receive development consent and procure the works and services necessary for implementation. This occurs at two levels: the strategic level – planning the development of the transport network at national and/or regional level; and the project level – including the planning phase and the permitting procedure, as shown in Figure 1 below. Three inter-linked and often overlapping phases can be distinguished: nStrategic planning: The ministry or authority responsible for transport devises a national transport plan which provides for the long-term development and modernisation of the transport network. It defines strategic priorities for different transport modes. A Strategic Environmental Assessment (SEA) is generally carried out, along with Appropriate Assessment (AA) if required according to the relevant EU Directive. nProject planning: This phase assesses the timeliness and feasibility of a proposed project, including alternatives to achieving the objectives of the project. Feasibility studies set out the infrastructure needs and defined solutions and can include traffic analyses, cost-benefit analyses (CBA) and environmental assessments. These may or may not be regulated by national standards, or by the requirements of EU funding programmes such as the Connecting Europe Facility (CEF) or the European Structural Investment Funds (ESIF). Various alternative options are assessed on the basis of economic, social and environmental criteria. The preferred option is then integrated into the spatial plan(s). In certain countries, the approval of the project will automatically result in amendments of the spatial plans, while in others, a specific land-use permit will be required in addition to the construction permit. In some cases, a major modification to a spatial or other plan to take into account a new project may require revision to the SEA. nPermitting procedure: The permitting procedure generally covers the activities required to prepare an application for development consent, and follows on closely from project planning. This phase includes the Environmental Impact Assessment procedure (EIA), the spatial planning decision(s), and all the other permits to be granted. This phase concludes with the acquisition and/or expropriation of the necessary land. Public procurement procedures, State aid control, potentially other regulated procedures and the applications for funding also form part of the preparation of an infrastructure project as presented in the authorisation framework in Figure 1 : Generic authorisation framework Building upon the existing possibilities Various developments in the regulatory framework applicable to the implementation of the TEN-T projects took place in the recent years, notably a revised EIA Directive was adopted in 2014, a new set of directives in the field of the public procurement. In the field of State aid, the Notice on the Notion of Aid, the revised General Block Exemption Regulation and the infrastructure grids have been adopted, providing further clarifications on the rules applicable to transport infrastructure. However, these measures have a horizontal scope. The analysis of their application so far allows the Commission services to assess the level of additional measures necessary for addressing the specific needs of TEN-T projects and to define the different level of intervention in different areas targeted on those needs – going from a broader perspective in the permitting procedures where the impact of the revised measures is the least visible so far, to public procurement where limited adjustments would only be needed in the cross-border context. As regards State aid control, the recent clarifications address the needs of project promoters to understand the rules applicable to transport infrastructure leaving only the issue of the procedure. 2PROBLEM DEFINITION 2.1What are the problems? The problems identified in the analytical work leading to this initiative are the delays and legal uncertainties which impact the effective delivery of the TEN-T core network projects. Experience with the implementation of the TEN-T projects located on the core network corridors, as well as those in the previous legislative setting, has shown that the completion of the projects is very often delayed due to the complex regulatory and administrative arrangements. If a given project is delayed, the positive economic and social effects meant to be generated by this project will happen later than planned. At the same time, the problems that the project is expected to address (e.g. congestion, bottlenecks or pollution) are going to persist over a longer period. Moreover, the overall implementation of the core network risks to be delayed and completion by 2030 as foreseen by the TEN-T Regulation is unlikely. Given the transnational nature of the TEN-T, any delay impacting one project has an adverse effect on the whole stretch of a corridor. The TEN-T framework adopted in 2013 moves from a project driven approach (patchwork of individual projects) to a network approach based on a dual layer TEN-T to be realised. This requires a synchronised approach for the development of projects across the borders, both in terms of project preparation and permitting. This is even more relevant as regards cross-border public procurement. In the case of cross-border projects developed together by the neighbouring Member States, the joint tendering procedures are necessary to better grasp synergies and benefits of scale.

TEN-T infrastructure projects are not often attractive to private investors. There may be different reasons, which are also addressed in the context of the third pillar of the Investment Plan for Europe as well as in the Progress Report of January 2018 to the CBS Report. The complexity of some regulatory procedures in the area of project financing is one of them. This, next to the other inefficiencies of the permit granting process, concerns in particular perceived uncertainties with regard to State aid control but also the way permitting procedures may affect public-private partnerships. The Netherlands – a dynamic market of PPP in transport The Netherlands is a prominent example of the development of the PPP market. According to the EPEC Market Update 2017 it is currently the 4th largest PPP market in the EU, also beyond Germany which is the biggest economy overall. The clarity of rules topped up with constant development of expertise in this field bore fruit with materialisation of a high number of projects – also in the transport sector financed with an EFSI guarantee. The TEN-T network as a whole cannot properly function and offer all of its benefits at EU level before all the elements are completed. The delayed implementation of the TEN-T network will put off the benefits the EU expects from a smart, efficient, sustainable and well-functioning transport network, especially in light of its objectives to foster low emission mobility in Europe. It is very well illustrated by a sequence of sections to be upgraded in one of the busiest transport corridors across the continent – the Rhine Alpine CNC: Zevenaar – Emmerich – Oberhausen This cross-border section located on the RhineAlpine CNC is in fact composed of two different projects – one implemented by the Dutch RIM (ProRail) and the second by the German RIM DB Netz. This section is crucial to provide capacity for growing traffic on one of the EU's busiest rail freight routes and fully use the potential of the newly built Betuwe Line in NL. The Dutch part has already been completed; however the works on the DE part are yet to start and currently are not foreseen to be finished before 2022, while originally planned for 2013, i.e. 9 years of delay. This delay, even if the project from the procedural point of view is a purely German national project, affects the development of the Corridor and TEN-T network as a whole. In addition, unnecessary costs can also arise when regulations or procedures are not clear enough and the time needed for their application cannot be foreseen with an acceptable level of certainty. The lack of predictability in the procedures leaves a high level of uncertainty for projects promoters and potential private investors leading ultimately to sub-optimal investment choices. Finally, such legal uncertainty can also deter private investment from participating in TEN-T infrastructure projects and results in increased costs in terms of access to capital. Several Member States have already started to develop measures at national level to address the issue. The approach under the present initiative should not lead to unnecessary burden on Member States that face fewer difficulties because they already have established a one stop shop and meet the deadlines. However, a synchronised approach would trigger innovation and improvements for the Member States that are lagging behind. It should be borne in mind that the annual administrative costs currently incurred by the authorities and project promoters are estimated at €21 million. Several root causes leading to these problem drivers have been identified. First, investment projects in transport infrastructure are highly complex and multidimensional ventures which combine different elements which can create potential problems – these are technical complexities related to engineering challenges, several impacts on different areas (environmental, economic, social, political) as well as complexities related to their size and capital required. Finding resources for their delivery can generate problems related to funding and financial procedures. Another root of the problem is the fact that many of the transport infrastructure projects are linear, i.e. located in a long stretch of land having impacts along its way on all the neighbouring pieces of land and their occupiers resulting in a high number of stakeholders affected and multiple administrative proceeding (e.g. spatial planning in different regions and localities). The projects are highly susceptible to generate conflicts, as the procedures and requirements to properly address their expected impacts may stem from different legislations and acts adopted at different levels (from local to the EU and international level). Some project promoters are confronted with multiple use of the infrastructure next to water supply, power generation, agriculture etc. On top of this comes the additional complexity of the cross-border projects where all the procedures are handled differently across the borders, also due to diverging national transposition of relevant EU directives.

These root causes are inherent to transport infrastructure projects. However, there are other problem drivers that impact delays and uncertainties in the TEN-T project implementation, which range from technical (project preparation capacity, feasibility, engineering complexity and other technical issues), to political and funding issues. They remain outside the scope of this impact assessment and the present initiative. In particular, the problems related to the availability of funding (beyond the EU contribution), technical challenges as well as administrative capacity of either project promoters or supervising authorities, cannot be effectively address by the present initiative. Either it is beyond the mandate of the EU action or it is addressed already elsewhere, for example via dedicated instruments such as technical assistance in funding programmes (e.g. CEF programme support actions) or horizontal mechanisms (e.g. voluntary ex ante assessment in the public procurement area). However, the problems referred to above – delays due to procedures and high level of uncertainty due to procedures – can be effectively addressed by tackling the above problem drivers as presented in this impact assessment. 2.2Lessons learnt from the TEN-E experience Since 2013, the TEN-E Regulation contains provisions aiming at reducing the timeframes for authorising the projects of common interest in the TEN-E. It also introduced the concept of the single authorising authority for all the permit granting processes. The TEN-E experience has therefore been duly taken into account. This was done in the context of the two supporting studies for the present impact assessment by also interviewing the relevant services in the Directorate General for Energy of the European Commission and reviewing any available useful analysis. According to the Commission's recent assessment; it has proven successful with bringing the average duration of the permit granting process in energy transmission projects from 10 years to an expected 3.5 years and is a useful guidance for the solutions presented in this initiative. 2.3Who is affected by the problem? The problem mainly affects three categories of actors: project promoters, public administrations at local, regional or national level and civil society often represented by NGOs. A detailed analysis on the categories of actors which are affected by the problem is presented in Annex 3 to the present impact assessment report. 2.4Getting evidence to evaluate the current situation To best evaluate the situation, the Commission carried out an extensive analysis of the situation and possible solutions. It completed an exploratory study, which made recommendation to improve and better coordinate authorisations procedures for infrastructure projects. This exploratory study conducted an extensive analysis of the problem and 17 pre-selected cases were screened. Further in-depth studies examined the regulatory and administrative frameworks for transport projects in ten selected Member States to identify the sources of delay, cost and uncertainty, as well as good practices. The selection of countries, in combination with the countries represented in the ten project case studies, has ensured that the research reflected the general picture across the EU. The study findings regarding the organisation of the permitting procedure were that delays in permitting often occur due to overly complex procedures, involving multiple steps and multiple authorities. A single permitting authority was proposed for TEN-T projects, together with overall time limits for the permitting procedures. It also found that projects face considerable delays when challenged by the public or stakeholders due to the quality of the procedures used to engage the public and due to timing, i.e. the point at which those procedures take place during the process of project preparation. It suggested measures such as requirement for public involvement before a permitting application is submitted, establishing principles for the conduct of public consultation procedures for TEN-T projects, carrying out public information campaigns and improvements to the process for appeals of decisions on development consent. For delays due to environmental assessment, it proposed mandatory joint procedure for all environmental assessment procedures stemming from EU legislation, various technical clarifications and providing more dedicated external technical assistance services for the preparation of TEN-T projects, focused on environmental assessments. In public procurement, the delays would be partly addressed once the recent revisions of relevant EU directives are fully implemented in the coming years. A special procurement regime aiming at speeding up cross-border procurement and review procedures was proposed. As regards State aid notifications, the study identified two key issues at the Member State level driving delays and uncertainty, namely late notification by the Member State and the poor quality of notifications (including information gaps). In addition, the study suggested reducing State aid decision timeframes for selected TEN-T projects. 2.5What are the problem drivers? Five underlying causes to the problems have been identified and are described below as problem drivers. 2.1.1Multiple stages and authorities involved in permitting procedures Permitting procedures in the Member States differ greatly in the number of necessary permits and decisions to be obtained, as illustrated in Table 1 . The number of authorities and levels of governance that may be involved in permitting procedures, as well as their competence and power in the procedure also vary significantly across Member States. Among the ten Member States analysed in detail in the exploratory study, four have a single-stage permitting procedure, where all permitting decisions (environment, spatial planning etc.) are handled through a single development consent procedure. While only one permitting authority grants the final decision, consultation of other authorities generally remains a prerequisite, as the different assessments may relate to policy areas that are within the domain of other authorities. The other six countries have multi-stage permitting procedures. In addition to the statutory permits and decisions, binding opinions or decisions of a number of authorities can be necessary before the permitting authority can issue a permit. The large number of permitting authorities involved is in part due to the wide scope of impacts considered in environmental assessments. The internal organisation of Member States and the level of decentralisation are others relevant factors potentially increasing the number of authorities involved in the procedure. Five of the Member States analysed in the exploratory study have integrated various steps – environmental permit, spatial planning and construction permit – into a single permitting procedure (Austria, Germany, Italy, the Netherlands, and the United Kingdom). In Austria, Italy, the Netherlands and the United Kingdom, environmental and spatial planning decisions are integrated into a single development consent procedure. In Germany, all decisions on environmental assessments and other permits are integrated in the plan approval procedure; however spatial planning remains separate (Regional planning procedure), and precedes the plan approval procedure. In the Netherlands, land use plans are automatically updated when the development consent is granted, avoiding the completion of a separate spatial planning decision. These efforts, even if in many cases effective, are not sufficient to form an EU-wide approach and provide for a synchronised implementation of the TEN-T. First, they are not systematically coupled with time limits (see specifically Section 00) and secondly these measures are not undertaken by the other Member States (even if some of their streamlined approaches are very successful – e.g. integrated permitting in Poland for national roads and railways). But since even the purely national projects affect the developments on the other parts of the Corridors and TEN-T network, as explained also in the Problem section, a harmonising effort across the EU is needed. Furthermore, the 2018 CBS Progress Report highlights that delays in permitting are often due to multiple steps and authorities and recommends the introduction of a simplified process or at least a mandatory joint procedure for all environmental assessments at project level.

The situation of multiple stages and authorities involved in permitting procedures is described in further details in Annex 5, section 1. The results of the Open Public Consultation carried out for this initiative show that all the categories of stakeholders (98 respondents) with one exception fully or rather agree that permitting procedures are complex and lengthy when it comes to the TEN-T projects (Figure 2 in Annex 2). Moreover, permitting procedures in relation to the TEN-T projects are perceived as suboptimal by most respondents (59 out of 95) to the Open Public Consultation (Figure 5 in annex 3). It is worth noting that all categories of respondents including governments disagree with the statement that permitting procedures are organised in an optimal way (Figure 3 in Annex 3). Why does it drive the problem? As evidenced in the exploratory study, factors of delay, costs and uncertainty in permitting procedures are often rooted in procedural aspects. TEN-T projects have multiple impacts on land-use and the environment, often require conducting multiple environmental assessments, and, given their size, can fall under several jurisdictions if the procedure is handled at regional or local level. Consequently, in some Member States, permitting procedures are complex, involving many steps and permitting authorities, leading to duplication of permits and applications to be submitted by project promoters, duplication of or overlaps in assessment procedures, and significant administrative burden and costs for both the project promoters and permitting authorities. The higher the number of different authorities involved in the permitting procedure (either as permitting authority or consulted authority), the more complex it becomes to gather all of the intermediate decisions required to grant the final permit. Cross-border projects are particularly vulnerable to the problems described above. The number of permits, the sequence of approvals, time limits, and requirements for public consultation can vary greatly between countries and can result in permitting procedures happening at different speeds on either side of the border. 2.1.2Absent or unenforced time limits In some Member States, time limits are set out in the legislation for the main permits (EIA, spatial planning) and public consultations, as illustrated in Table 1 . However, global time limits for the entire permitting procedure have not been fixed in any Member State, even where an integrated permitting procedure exits (e.g. Germany). Time limits for environmental assessments generally exist, at least for certain procedures, in particular for screening and scoping, and public consultation. The 2014 amendment to the EIA Directive introduced time limits for screening decisions. However, the competent authority has the possibility, in exceptional cases related to the nature, complexity, location or size of the project, to extend this deadline. Stakeholders often mentioned that missing documentation or documentation of poor quality was the reason why the permit cannot be issued within the time limit, as additional data had to be requested to the applicant, which often stops the procedure. In most of the Member States analysed in the exploratory study, sanctions are not applied in case of missed deadlines. Only in Romania, authorities responsible for issuing different certificates or notifications can be fined if they do not respect the timelines for issuing documents, as required by the law. Why does it drive the problem? Case studies conducted for this impact assessment showed that large cross-border infrastructure projects generally exceed ten years from early planning to construction. In the ten Member States studied, the duration of the permitting procedure (from the submission of the application to the last permit granted) was, according to interviewed stakeholders, between two and five years. Regardless of the source of the problem, one way of addressing lengthy procedures is to establish time limits, to incentivise permitting authorities to adopt measures and/or administrative practices accelerating the granting of permits. However, global time limits for the entire permitting procedure have not been fixed in any Member State, even where an integrated permitting procedure exits. Member State Number of procedures required Number of permitting authorities Time Limits Average duration according to stakeholders Fast-track procedures Austria 1-3 1-2 (+) 9-12 months for EIA 15 years n/a Czech Republic 4 (+ 10-15 opinions) 2 45-90 days per procedure Final approval: no time limit 3-4 years n/a Germany 1 1 No legal time limits 2 years n/a Hungary 7-9 4-6 30-42 days per procedure 1-4 years Possibility to conduct several procedures in parallel Italy 1 2 150 days for EIA Up to 10 years Legge Obbietivo (2001), Development consent granted on preliminary project Tighter time limits for decision-taking The Netherlands 1 1 2 years 6 years Limitations of legal standing of municipalities, time limits for judgements in appeals Poland 2-4 2-3 1-2 months (standard rules of the code of administrative procedures) 1.5-4 years Number of permits needed reduced to 2 or 3, land covered by permit becomes automatically property of State Treasury Romania 6-7 6-7 6-12 months EIA, 5-165 days per other procedures 2-5 years Development consent granted with preliminary approvals regarding forest land and utilities Automatic change of agricultural land into constructible land once the ownership title is transferred to the state Extension of validity of permits until the end of the construction works Spain 3 2 24 months for SEA 9 months for EIA Not available n/a United Kingdom 1 1 12 months (9 in Scotland) Two years n/a Source: European Commission based on Milieu et al., 2016. 2.1.3Differing public procurement procedures for cross-border TEN-T projects Challenges related to public procurement Public procurement can bring major challenges to TEN-T projects. The research carried out for the exploratory study showed that problems in the procurement phase can result in delays and increased costs for projects. Delays in the completion of the procurement phase appear to be the consequence of a complex legal framework, the absence of time limits for the award procedure and, in particular, the long review procedures to challenge the award decision. Increased costs are directly related to delays but also to the selection of poor quality projects, which appears to be mainly driven by the lack of capacity of contracting authorities to conduct procurement procedures. These challenges are even more prominent for cross-border projects and still remain to be addressed as explained below. The legal framework for public procurement within the EU is set out in Directive 2014/23/EU, on the award of concession contracts; Directive 2014/24/EU, on public procurement; and Directive 2014/25/EU on procurement by entities operating in the water, energy, transport and postal services sectors. The ‘new’ EU Public Procurement Directives had to be transposed into the Member States’ national legal orders by 18 April 2016. The main objective of the new Directives is to simplify procedures and at the same time make these procedures more flexible; this is likely to contribute to tackling some of the problems identified above.

The problems linked to cross-border cooperation and differences in the ways in which Member States have transposed the legislation may not be fully tackled by the new legislation. This clearly comes out as a result of the targeted workshop organised specifically on public procurement. Moreover, the full extent of potential problems linked to partial or incorrect transposition, gold-plating, and differences across Member States will only be known once a conformity-checking exercise of transposition of these new Directives has been completed. It may therefore be the case that the new measures will improve the situation regarding complexities and delays related to public procurement procedures for TEN-T projects, and this needs to be taken into account when assessing policy options in this area. One of the main purposes of EU public procurement is ‘to achieve smart, sustainable and inclusive growth while ensuring the most efficient use of public funds’ . However, public procurement procedures can be a challenge for the smooth implementation of large infrastructure transport projects. This has been recognised in the 2015 CBS Report ‘Action Plan Making the best use of new financial schemes for European transport infrastructure projects’ which included a series of recommendations to ‘streamline and simplify procurement procedures’. Remaining complexity of the legal framework The exploratory study found that, within the transport sector, and more specifically within the context of TEN-T projects, in six out of the ten Member States covered by the study the perception is the same – the complexity of the applicable rules (mainly resulting from the transposition and application of the old EU Public Procurement Directives) is considered an obstacle to a quicker public procurement procedure. It appears therefore that the complexity of the legal framework and the application of differing public procurement rules to projects developed in a cross-border context can also lead to delays and increase legal uncertainty. Recent developments in the area of public procurement Since 2017, the Commission has taken some initiatives to accompany the implementation of public procurement legislation. In particular, a voluntary ex-ante mechanism has been set up to enable the project promoters and other relevant actors to get targeted assistance and assessment from the Commission when developing the procurement strategies for their projects as well as the stage of launching the procurement procedures. This mechanism consists of three elements: a helpdesk, a notification mechanism and an information exchange mechanism. Notwithstanding, the usefulness of all these elements for contracting authorities and project promoters, the mechanism is however not binding, only provides a compliance assessment and is not automatically open to all TEN-T projects. Certain thresholds apply – as a principle only project beyond 500 million EUR can ask for advice. TEN-T projects of common interest may use the mechanism but only if a decision on the admissibility which will be taken on a case by case basis. This may limit the attractiveness of the instrument to promoters of medium-sized projects. Why do complexities specific to cross-border procurement drive the problem? Cross-border projects face specific difficulties in conducting public procurement. This has been highlighted by the project promoters for a long time was confirmed in the public consultation carried out for the exploratory study. They include legal barriers, language barriers and lack of experience in doing business in other countries. Brenner Base Tunnel This cross-border project is one of the emblematic TEN-T projects aiming at linking together different parts of the EU. Since the very beginning it was conceived as a long-term asset worth in total 8bn EUR. In the case of project of this size, a delay of the EIA procedure of 1.5 years in 2006-2007 generated significant losses as a result of inflation and cost of financing. Moreover, as a result of procurement issues, delays in the start of phase III/works (2011) of about 19 months caused a shift of the finalisation of the project from 2025 to 2026 and led to additional costs of about 20mn EUR (including additional time till finalisation). Some of these deficiencies were addressed with the adoption of the new procurement directives in 2014. Nevertheless, there are other issues that are still not regulated at EU level, as noted in the 2015 CBS Action Plan, namely ‘the use of a single language in tender and contracting documents’. These problems were reiterated in the Progress Report presented in January 2018. According to the new rules, the participating contracting entities can agree to apply the national procurement rules of the Member State where the joint entity has its registered office or the national provisions of the Member State where the joint entity is carrying out its activities. In addition, they can choose to apply this agreement for an undetermined period, when fixed in the constitutive act of the joint entity, or limit its application to a certain period of time, certain types of contracts or to one or more individual contract awards. The new public procurement directives allow for a margin of discretion in the choice of the applicable law, the participating contracting entities struggle to decide on which law to apply and that the scope of application of the agreement ends up being significantly reduced (e.g. applying only during a certain period of time). In addition, these new rules do not seem fully satisfactory for infrastructure projects promoters who still mention the application of different national legal frameworks as the most difficult area for public procurement in the context of cross-border projects. 2.1.4Coordination challenges for the delivery of cross-border projects Cross-border projects face particular challenges that impact the timing and efficiency of delivery. The involvement of more than one Member State, and often of multiple regional and/or local authorities, can particularly impact the timely completion of permitting procedures. Any delay or obstacle on one side of a border will necessarily impact project delivery on the other side, as project promoters will not proceed with a project until the delivery on both sides of the border can be assured. Given the priority that TEN-T policy gives to cross-border projects, TEN-T core network projects are likely to be particularly impacted by these challenges.

Fehmarn Belt Fixed Link According to the latest information the German plan approval process for the Fehmarn Belt Fixed Link project could only be finalised by summer 2018. Initially, the plan approval process was expected to be completed by autumn 2015, which means so far more than 3 years of delay. Only after this approval, the construction of the tunnel and access routes on Danish and German side could start. However, it is expected that the plan approval will be brought to the federal administrative court which could result in additional two years of delay. This planning process concerns the German part of the Fixed Link itself, as well as the German access routes and is a prerequisite for the construction phase. Why does it drive the problem? Cross-border projects encounter specific problems arising out of inconsistencies between legal permitting frameworks and procedures across Member States. As demonstrated in previous section of this report, the number of permits, the sequence of approvals, time limits, requirements for public consultation can vary greatly between countries and can result in permitting procedures happening at different speeds on either side of the border. Increased coordination of procedures is key in cross-border projects to ensure that the project can develop at roughly the same pace. Different procedures and sequence of permitting procedures generally impact the whole approval process and create time gaps between authorisations in both countries. Detailed description on how the cross-border contexts (such as transboundary EIAs and strategic planning) affect the permitting of the TEN-T projects is contained in Annex 5. 2.1.5Perceived uncertainties related to State aid procedures State aid control makes sure that State resources mobilised for investments do not lead to unjustified distortion of completion. Some transport authorities may however find State aid notifications challenging, given that in the past investments in transport infrastructure was considered to fall outside State aid rules. Given the objective to attract more investors to the sector (blending of private and public financing), there will be more and more situations where the State aid control clearance will be of importance in the implementation of the TEN-T projects. Some streamlining measures in this respect have already been applied in the context of the implementation of the European Fund for Strategic Investments which provided for the possibility of priority treatment of the projects benefitting from the support of the European Fund for Strategic Investments. Why does it drive the problem? The exploratory study determined that the two main problems at the Member State level driving delays and uncertainty in State aid notifications are late notification and the poor quality of notifications (including information gaps). Cases of late notification generally come from a lack of awareness from authorities or project promoters of the need to notify potential State aid cases to the Commission. In addition, the lack of experience with State notifications in some authorities may lead to notifications that are of a lower quality. This can result in the Commission having to request further information to clarify the facts, lengthening the time needed to have a complete notification necessary for adopting a decision. Some project promoters may also be uncertain about the applicability of State aid rules to their project may also need to seek expert opinions, contributing to additional project costs. There has been important progress in clarifying the State aid rules applicable to the transport infrastructure projects in recent years. In May 2016 the Commission adopted the Notice on the Notion of aid where the Commission clarified in particular when public funding for infrastructure projects falls within the scope of EU State aid control. In 2014 new Aviation Guidelines were adopted and in May 2017 the revised General Block Exemption Regulation as regards aid for port and airport infrastructure was adopted in 2017. In addition, the Commission services published so-called "analytical grids" on the application of State aid rules to the public financing of infrastructure (e.g. for ports, airports, road and rail infrastructure). However, the CBS Progress Report proposes to make further steps, also in light of the request of some stakeholders (for example in the light of what already exists as regards the priority treatment of certain cases on mobilising investments). As acknowledged by stakeholders during the workshop devoted to governance and State aid issues, ex-ante appraisal of State aid compliance is crucial for the financial sector to engage in a project. Therefore, the Progress Report recommends a swift appraisal procedure by the European Commission if a project is in conformity with State aid rules to be generalised in order to clear the project upfront and thus provide legal certainty and predictability about the overall investment. The Commission carries out its assessment of State aid compliance only once the notification is complete. Therefore, it encourages Member States to make use of the pre-notification procedure which can help the Member States to submit complete notifications. In addition, the Commission gives the possibility to Member States for important and complex projects to establish a mutually agreed planning clearly setting out the timeline and milestones, and the information that needs to be delivered, ensuring a swift adoption of the decision once the notification takes place. This provides Member States with the possibility to agree with the Commission to a priority treatment of the case. 2.6How will the problem evolve? Without EU intervention, the implementation of the current legislative framework will continue to result in delays and legal uncertainties which impact the effective delivery of the TEN-T projects. As explained in section 2.2, given the transnational nature of the TEN-T, any delay impacting one project has an adverse effect on the whole stretch of a corridor. Overall, the implementation of the core TEN-T network, as foreseen by the TEN-T Regulation, is unlikely to be achieved by 2030. This situation is not expected to be significantly changed by the transposition of the amendments to the EIA Directive which is meant to be effective as of May 2017. While these amendments are expected to facilitate EIAs for cross-border projects, they do not foresee the complete integration and coordination of permitting procedures, do not introduce an overall time limits for all authorisations and provide for a possibility of optional schemes for conducting cross-border consultations through a joint body. The provisions in the revised EIA directive do not suffice for the needs of the TEN-T projects also as they only allow for integrating assessments required under the EIA, Habitats and Birds directives where appropriate and as the integration of assessments based on other pieces of EU legislation (e.g. water framework directive) remains optional. In a similar way, this situation would not be significantly changed for the needs of TEN-T projects by the latest revisions of the EU Public Procurement Directives which were meant to be effective in national law since nearly two years. In case of the cross-border procurement, the Directives leave to the Member States to choose the applicable legal framework. The application of the rules to cross-border TEN-T projects would not improve the current situation as the decision will still be taken ad hoc, subject to changing political priorities, without providing the necessary stability to the project promoters. Furthernore, the mentioned EU law on environmental assesment and public procurement has general nature and broader scope while for TEN-T infrastructure projects, more targeted measures appear necessary . The risk of inadequate transposition or in diverging ways of this transporsition across the borders of these recent pieces of legislation cannot be excluded on the basis of the current experience. Further explanations are made in chapter 5.1 regarding the baseline scenario. The administrative costs incurred by the authorities is estimated at €185 million for 2018-2030 (expressed as present value) in the baseline scenario and for project promoters at €937 million over the same time period. Overall, the administrative burden is projected at €1,122 million for 2018-2030, expressed as present value. Finally, the suboptimal framework for the involvement of private investors remains on top of the other problem drivers and has a direct consequence: the investors' base will not expand and transport infrastructure projects will remain unattractive for private investors in many areas of the EU. This will limit the number of projects going ahead as the biggest financial burden will remain on the public expenditures. 3WHY SHOULD THE EU ACT?

3.1The EU's right to act The EU’s competence to act in relation to transport networks is set out in Article 170 of the TFEU, which requires the EU to ‘contribute to the establishment and development of trans-European networks’ in the area of transport. In detailing what EU action in this area could include, Article 171(2) states that ‘Member States shall, in liaison with the Commission, coordinate among themselves the polices pursued at national level which may have a significant impact’ on the objective of the establishment of trans-European networks, and the ‘Commission may, in close cooperation with the Member States, take any useful initiative to promote such coordination’. Hence, EU action to set out a framework to streamline the permitting and preparation of projects integral to the establishment of the TEN-T network is within the scope of the EU’s right to act. The EU shares competence in this area with the Member States. 3.2Subsidiarity: necessity of EU action The transnational nature of the TEN-T network is clear. This is particularly evident in relation to cross-border projects; however, the corridor approach adopted in the TEN-T Regulation is inherently transnational – this approach is intended to ‘coordinate different projects on a transnational basis and synchronise the development of the corridor’. This coordinated, transnational approach is unlikely to be adequately addressed by Member State action alone. Permitting procedures in Member States differ greatly in the number of necessary permits and decisions to be obtained. The number of authorities and levels of governance that may be involved in permitting procedures, as well as their competence and power in the procedure also vary significantly across Member States. The delays stemming from these procedures have however significant impact on the TEN-T core network completion. In terms of public procurement, problems appear to be more related to the way applicable public procurement framework is organised at national level, in particular the long review procedures which appear to be main cause of delays. In case of cross border projects, the problems also stem from the differences in transposition of relevant EU law at national level. For cross-border projects, Member States face similar difficulties when it comes to coordination of public procurement and interpretation of the applicable EU rules, as well as coordination of transboundary environmental assessments. While according to the results of the Open Public Consultation, national and regional authorities appear less confident that the EU should act, still the majority of stakeholders who participated in this consultation express themselves in favour of the EU taking action in this field (75 out of 99 respondents). The vast majority of individual respondents believe in the effectiveness of the EU action in this field (16 out of 21 answers). In this sense, the results of the Open Public Consultation confirmed the conclusions of the three dedicated workshops carried out in 2017 and as well as of the interviews and consultations run in the Exploratory Study as shown in Figure 4 Annex 2. 3.3Subsidiarity: Added value of EU action The completion of the TEN-T core network by 2030 aims at delivering an efficient, smart and sustainable transport network that underpins the single European transport area. This overall strategy is expected to promote low emission mobility, to enable the decarbonisation and digitalisation of transport, to benefit all users of the EU transport systems – businesses and citizens but also to generate investments, economic growth and jobs. The implementation of the TEN-T requires significant coordination efforts of the various projects in order to fully exploit the overall network benefits at EU level. In this respect, the delivery of the TEN-T network relies on the efficient synchronisation not only of the investments but also of the implementation pace of individual projects to avoid time gaps and reap all benefits from a network approach. This is the approach that has been developed with the TEN-T regulation adopted in 2013. Several tools have been established to generate the European added value expected from the TEN-T network. These include the definition of harmonised standards for greater interoperability, sustainability and efficiency, the development of core network corridors to bridge missing links and remove main bottlenecks, the appointment of European coordinators to facilitate the coordination of relevant actors and the creation of the Connecting Europe Facility and other funding instruments to provide EU support for investments. However, no coordination tools or mechanisms are yet in place in the transport sector – and contrary to others such as energy – to address the needs for synchronisation, coherence and efficiency in the delicate phase of the planning and the implementation of infrastructure projects. Indeed, infrastructure projects on the TEN-T core network face a number of challenges in regulatory and administrative processes that impact effective and efficient planning and implementation of TEN-T network. Such challenges in permitting procedures, environmental assessment procedures and public procurement practices contribute to increased delays, cost and uncertainty during the planning and preparation of core network projects. This is particularly the case of TEN-T cross-border projects which may be implemented across one or more Member States by a single entity (joint venture) like for Rail Baltica, Brenner Base Tunnel, Fehmarn Belt etc. Unnecessary complexity and duplication of efforts can be avoided by applying the same or coordinating the procedures across the border with a view to maximise synergies and reap the benefits of a European approach. Otherwise, these infrastructure projects are confronted with a multitude of national procedures, differing requirements and regulatory fragmentation. The policy options presented aim to help the EU achieve the overall objectives of TEN-T policy. They specifically address some of the problems faced by TEN- T core network projects by seeking to streamline permitting, environmental assessment, procurement and State aid processes without prejudice of the content of the legislation underpinning these procedures. The objective of reducing delays and uncertainties can be more efficiently met by providing a stable and clear framework at the EU level 3.4 Why act now? Several reasons plead for introducing now streamlining measures for the implementation of the TEN-T projects. The TEN-T Regulation requires the completion of the core network by 2030. This means that there are less than 13 years left to complete all the necessary projects. Based on the fact that in extreme cases the process of project preparation in terms of obtaining permits and designing the technical and financial structure of project lasts around 10 years, no delays can be afforded to meet the deadline. Of course, not all projects are at that level of complexity and it may take less time to prepare them.. A conservative calculation as explained in Section 5.1 shows that in average projects are delayed by approximately 2 years. The EU economy is still recovering from the economic and financial crisis which resulted in a clear drop in public and private investment in infrastructure. The European Commission has placed the relaunch of investment in the real economy at the very centre of its priorities for 2014-2019. This is the main raison d'être of the Investment Plan for Europe, which third pillar concentrates on the removal of administrative barriers hampering investments and the related benefits. As a result, many of the TEN-T projects are planned only now to start being implemented in the coming years. These projects will benefit from the streamlined measures and be less prone to delays. This is particularly relevant to foster an effective implementation of TEN-T infrastructure projects in the current and next multi-annual financial frameworks. The present initiative results from a long reflection process launched at the beginning of the current Commission to contribute to implementing its priorities. As already presented before, the CBS Progress Report clearly summarises the evolution of the reforms of the permitting processes and other authorisations procedures of which are subject TEN-T infrastructure projects are still not sufficient and more ambitious solutions are needed. After a long period of consultation and analysis – started already in 2014 with the Council conclusions under the Italian Presidency – the material and evidence gathered is solid enough to identify the main problems and propose solutions with initiating the legislative proposal. Recently, the TTE Council adopted in December 2017 conclusions on the progress of the Trans-European Transport Network (TEN-T) implementation and the Connecting Europe Facility (CEF) for transport which very much support the continuation of this infrastructure policy and encourage the Commission to give follow up to the reflections on the regulatory environment of the implementations of TEN-T projects . 4OBJECTIVES: WHAT IS TO BE ACHIEVED?

4.1General objectives The general objective of initiative on streamlining TEN-T implementation is addressing the delays and the high level of uncertainty which impact the effective delivery of the TEN-T core network projects. It will contribute to the objective set in Article 170 TFUE to establish and develop the trans-European transport network as well as to promote the interconnection and interoperability of national networks. In particular, this initiative aims at accelerating the benefits of the implementation of a fully interoperable and interconnected transport network linking the main economic centres and all the Member States. It will help maximise the impact of the existing national networks requiring upgrades to meet the TEN-T interoperable parameters as well as bridge missing links in Europe. Since the development of the TEN-T focuses on the sustainable modes of transport, this initiative directly contributes to the transition to low emission mobility. 4.2Specific objectives To achieve this general objective the following specific objectives (SO) have been defined: -SO1: minimising the risk of delays faced by individual TEN-T projects; -SO2: increasing legal certainty for project promoters thus attracting more private investors to transport infrastructure The specific objective 1 (SO1) aims at addressing the important delays encountered in the implementation of TEN-T infrastructure projects which are confronted to a series of difficulties as explained above. SO1 will tackle the Problem Driver 2 (absent or unenforced time limits), Problem Driver 3 (differing public procurement procedures for cross border TEN-T core projects) and Problem Driver 4 (coordination of delivery of for cross border TEN-T core projects). The specific objective 2 (SO2) aims at bringing greater clarity in the processes which project promoters need to follow in order to implement the projects, in particular through permitting and other administrative authorisations, public procurements and State aid control. SO2 will tackle the Problem Driver 1 (multiple stages and authorities involved in permitting procedures), Problem Driver 2 absent or unenforced time limits), Problem Driver 3 (differing public procurement procedures for cross border TEN-T core projects) and Problem Driver 5 (reluctance of private investors to TEN-T core network infrastructure projects) The initiative will in addition also provide more coherence in implementation of different EU policies. The perceived regulatory obstacles and legal uncertainties for TEN-T projects promoters are very often result of the diverging implementation of EU policies and diverging national implementation of EU rules and complementing them with additional requirements. The achievement of the specific objectives is planned without derogating to any objectives and standards required by the EU policies but by integrating them better together for the benefit of the TEN-T implementation. No trade-offs are expected between the various EU policies. The objectives are also in line with the policy of attracting private capital to the areas traditionally reserved for public intervention as well as re-launching investment in the real economy. The increased investment in TEN-T infrastructure is necessary to at least partly address the backlog in the transport infrastructure investment being the result of the financial crisis. The initiative will contribute to closing the infrastructure gap, in particular time gaps in procedures, between different Member States and it will specifically address the cross-border projects which are the priority in the TEN-T core network corridors. Finally, the initiative is planned to reduce the administrative cost due to over complex procedures and delays in permitting procedures borne by the project promoters. Since the material rules are not planned to be changed, the compliance cost of the initiative is not expected to be high. 5WHAT ARE THE AVAILABLE POLICY OPTIONS? 5.1What is the baseline from which options are assessed (baseline scenario)? Building on previous priority project reports (2012), the impact assessment support study assumes that in the baseline scenario only 50% of investments would occur on schedule while 25% of the investments would be delayed due to permitting procedures by one year, 15% by two years, and 10% by three years under a conservative approach. An analysis of the likely pattern of delays has been made, based on the findings from previous priority project reports (2012). A selection of 34 projects was made. Amongst these projects, 16 projects finished later than planned, delayed on average by 4.25 years. The cross-border projects were on average delayed more than the others. Amongst the 34 projects, delays were caused by a range of factors; technical, political, funding, and procedural. It was not possible to isolate empirically the level or probability of delay linked to specific permitting procedures. However, it is possible to conclude that delays are not occurring on all projects, and that the delays attributed to permitting procedures should be lower than the total length of the delays, as other delay factors are present. Therefore, a “conservative approach” has been chosen for the Baseline scenario that considers an average delay of 2 years due to the permitting procedures. The baseline scenario builds on the updated EU Reference scenario 2016 but assumes the delays in the implementation of the core TEN-T network investments due to the permitting procedures. The scheduled cumulative investment profile and the investment profile including delays are provided in Figure 3 .

In the baseline scenario, EU transport activity is expected to continue growing beyond 2015. Freight transport activity for inland modes is projected to increase by 28% between 2015 and 2030 (51% for 2015-2050). Passenger traffic growth would be lower than for freight at 17% by 2030 (36% for 2015-2050). Road transport would maintain its dominant role within the EU for both passenger and freight transport. Rail transport activity is projected to grow faster than for road: passenger rail activity would go up by 33% between 2015 and 2030 (70% for 2015-2050); rail freight activity by 39% by 2030 (75% for 2015-2050). Inland navigation (i.e. inland waterways and national maritime) activity is projected to go up by 23% by 2030 and 43% for 2015-2050. However, delays in investments due to permitting procedures would lead to lower activity than in the updated EU Reference scenario for both rail and inland navigation already over 2015-2020. A description of the baseline scenario assumptions and more detailed results are provided in Annex 4 on Analytical methods. The administrative costs incurred by the authorities is estimated at €185 million for 2018-2030 (expressed as present value) in the baseline scenario and for project promoters at €937 million over the same time period. Overall, the administrative burden is projected at €1,122 million for 2018-2030, expressed as present value. Considering the uncertainty, an alternative baseline has been used for the assessment of the policy options where 60% of investments would occur on schedule while 20% of the investments would be delayed due to permitting procedures by one year, 10% by two years, and 10% by three years. The alternative baseline scenario shows higher investments taking place in the beginning of the period. A description of the alternative baseline scenario and more detailed results are provided in Annex 4 on Analytical methods. The lack of predictability in the procedures is expected to continue, leaving high level of uncertainty for projects promoters and ultimately leading to sub-optimal investment choices. In addition, such uncertainty would not help attract more investments from private capital to transport infrastructure projects which is an objective of the Investment Plan for Europe. This would also limit the impact of financial schemes such as the European Fund for Strategic Investments as well as other innovative financial instruments in the infrastructure field. 5.2Description of the policy options The stakeholder consultation, the expert meetings, independent research and their own analysis have allowed the Commission services to identify different policy measures, which served as a basis for the identification of the main policy options (in the form of policy option packages). The following process was applied for establishing the policy options: ·Step 1: Identify an extensive list of policy measures addressing the problems (considered policy measures); ·Step 2: Consider policy measures which are retained after a preliminary assessment; ·Step 3: Combine the considered policy measures into policy options and identify options which can be discarded. The analysis led to a clear conclusions that not the same level of ambition is necessary in every area and a stepwise approach would be appropriate. In the case of the permit granting procedures, the situation is diverging in many Member States and no harmonised approach has been taken at EU level yet. A higher level of intervention is necessary to cater for a synchronisation of the procedures across the border and allow for a concerted implementation of projects. In the case of public procurement, a modernised framework started to apply in the last years. However, a gap remains in the area of cross-border procurement and commonly developed projects by two or more Member States. Here, the intervention may only target this specific situation. In the case of State aid control, the newly adopted clarifications already removed a majority of the uncertainty which hampered the development of projects in the last years. In the case of complex project with sophisticated financial structures, it seems nevertheless necessary that the European Commission is contacted early in the process by the competent national authorities, making use of pre-notifications, which in turn allows complete notifications and facilitates the State aid assessment. The prioritisation of the case, following a mutually agreed timetable between the Member States and the Commission, may allow the swifter adoption of the decision. Policy measures Description Preliminary assessment Policy Measure 1: Changing the existing legal framework This measure would envisage changing the legal framework which is applicable to the TEN-T projects. It would require in particular adaptation of the EU directives which are applicable for environmental assessments at project level, EU public procurement rules as well as specific rules on State aid. The foreseen changes would introduce simpler solutions and less stringent requirements for TEN-T projects. This special treatment would derive from the fact that the TEN-T core network projects are per se of specific EU importance and relevance. The option is feasible from a legal point of view, as the acts to be changed are already in place and there is no doubt that the EU has the competence to act in this field. From a technical point of view the option is also feasible; however, additional analysis would be necessary to determine which minimum requirements would need to remain compulsory. The option would also likely foster project implementation with more flexible approach to certain requirements causing particular problems to project promoters. However, the option does not seem to be possible or opportune from a political point of view. Firstly, the EU acts most likely to be changed have been very recently revised (for example, new or recently revised public procurement directives) or amended (the EIA directive). Reopening of this legislation would not be rational from the effectiveness and efficiency point of view as well as from the political point of view vis-à-vis the co-legislators. For these reasons, the measure has been discarded. Policy Measure 2: Exempting TEN-T core network projects from the requirements of the EU legal framework This measure would provide for a general exemption from the application of certain EU requirements for TEN-T core network projects – modelled e.g. on the similar rules applied for defence purposes. This would be justified by the EU importance of the TEN-T infrastructure overriding other policy objectives. The option would be very effective from the point of view of transport stakeholders and project promoters. However, the option is not considered legally and politically feasible as there are no sufficient legal grounds for such an intervention into other policy objectives. Moreover, depriving other actors (notably citizens) of the rights acquired by virtue of other pieces of EU legislation for the benefit of project promoters does not seem legitimate and proportionate. The measure is therefore discarded from further analysis. Policy measure 3: Optimisation of the permitting procedures at national level This measure would leave the responsibility and authority for delivering the relevel permits at Member State level with the introduction of requirements about the organisation of the proceedings. The procedure would be handled by a single competent authority or ‘one-stop-shop’, designated by each Member State, along with integration of administrative procedures from the point of view of the project promoter. The measure is considered feasible from the political and legal points of view as the competence related to the territory remains at national level and the EU has right to act based on the clauses in the Treaty on the trans-European networks. The measure is considered to be effective by addressing directly the key problem drivers. The measure has been already applied in the TEN-E setting. The measure will be further analysed. Policy measure 4: Introduction of an EU authorisation procedure This measure would define the EU framework for authorisation as well as a separate public procurement framework to be applicable for TEN-T cross-border projects by replacing the national rules. The responsibility and the authority for delivering authorisation for TEN-T core network projects would be shifted to the EU level. The procedure would be handled by an EU authority. A possible variant of this measure is to define the framework at EU level but to keep its application at national level. The measure is considered feasible from the political and legal points of view, but as the competence is split between EU and Member States, a detailed analysis is required to examine all possible implications. From the technical point of view, the measure requires greater analysis, in particular to determine the key European standards to be applied. The proportionality of the measure is preliminarily considered to entail risks such as the misperception by civil society, NGOs or citizens that their rights to be heard in the context of authorisation procedures would be limited or compromised. The measure is nevertheless considered to be effective by addressing directly the key problem drivers. This policy measure will therefore be further analysed. Policy measure 5: Introduction of time limits for permitting and other procedures This measure would define the maximum duration for permitting procedures. This requirement would apply at national level. The measure is considered feasible from the political and legal points of view with a precedent being in place in the TEN-E framework. The measure does not target the objectives of the EU policies in place but limits itself to the organisation and efforts made and engaged resources in case of certain limited number of projects. The measure is considered to be effective by addressing directly the key problem drivers and will be further analysed. Policy measure 6: Limiting time for appeals in the procedures related to TEN-T This measure would further develop policy measure 5 by adding time limits to appeal against the administrative authorisations. This may encompass also remedies in public procurement. The measure is preliminarily considered feasible from the political point of view; however, it requires further analysis from legal point of view as the EU may not be competent to interfere in this part of the national administrative and judicial legal frameworks. This also true in case of remedies in the public procurement where remedies are treated by courts, due to the national procedural autonomy. However, some proceedings and requirements are derived from EU pieces of law, clarifying their application as regards e.g. the statute of repose may be also assessed by this option. The proportionality of the measure is considered appropriate as it limits the time for appeals while safeguarding the rights of the interested parties. It also addresses the problem drivers leading to the legal uncertainty. Hence, it will be further analysed. Policy measure 7: Targeted technical assistance This measure would introduce technical assistance for project promoters and authorities involved in authorisation of TEN-T projects. The measure is considered feasible from the political and legal point of view as this kind of support is already widely used in different policies. From the financial point of view the measure would require analysis and defining the resources to be used to support the mechanism. The proportionality of the measure is considered appropriate since it contributes to addressing problem drivers. As a consequence, it will be further analysed. Policy measure 8: Guidelines and clarification of the existing legislation, targeted use of existing mechanisms This measure would consist of developing a set of soft law instruments meant to clarify and provide more certainty on the application of existing EU legislation. This would in particular concern the rules related to the environmental assessments at project level (including purely indicative time frames), as well as rules on public procurement. It would also build upon the existing support mechanisms – e.g. EIAH, voluntary ex ante mechanism in the public procurement, support/helpdesk on the environmental assessment, etc. The measure is considered feasible from the political and legal point of view as developing the soft law as well as guiding principles is the competence of the Commission. The effectiveness of the option is not considered optimal as the implementation of the guidelines remains voluntary. The measure has the potential to address part of the problem drivers and should be further analysed. Policy measure 9: Simplified rules on cross-border procurement This measure would consist of introducing simplified rules for cross-border procurement, in particular as regards the definition of the applicable EU public procurement rules. It may consist of developing an EU framework for cross-border procurement of TEN-T projects or better targeting the rules of the existing legal acts at EU level. The measure is considered feasible from the political and legal point of view as the rules on the public procurement are regulated at EU level. Difficulties may arise from the fact that level this solution would eliminate the current flexibility given to the different Member States through the public procurement directives. The specific problems faced by cross-border projects would be effectively and proportionally addressed by this measure. Further analysis is needed on the specific content of the measure as well as the appropriate instrument in relation to the previous policy measures. The measure will be further analysed. Policy measure 10: Priority treatment of State aid notifications for TEN-T core network projects The measure would foresee the prioritisation of the related cases, following a mutually agreed timetable between the Member State and the Commission, setting out clearly the milestones and information to be delivered by the Member State. It would build on existing best practices and allow a swifter adoption of the decision after notification. The use of pre-notification would be encouraged. The measure is considered feasible from the political and legal point of view as certain arrangements already exist. In addition, State aid control being the exclusive prerogative of the European Commission, the measure would not raise particular legal or institutional difficulties. The measure would imply that the Commission commits to make its best endeavours efforts to handle State aid cases related to TEN-T core network projects in a speedy way while respecting all requirements of State aid control. The Commission would foresee the priority treatment of TEN-T core network projects, notably as regards mutually agreed planning. This could be addressed in the context of the current identification of best practices for the conduct of State aid control procedures. The measure addresses problem drivers rooted in the EU role in the context of projects' implementation. The measure will be further analysed. Policy measure 11: Promotional Campaign on the importance of TEN-T networks at EU level This measure would aim at mitigating the inherent resistance that some stakeholders may have to the idea of ‘European’ projects. It would consist of conducting public information and awareness raising activities dedicated to the aim of explaining the relevance of EU transport networks. The campaign would target both civil society and authorities involved in the permitting procedures. The measure is considered feasible from the political and legal points of view. Sources of funding would need to be defined. However, the measure does not seem to be effective and would not adequately address the problem drivers. The measure will not be further analysed. Policy measure 12: Increased use of strengthened coordination mechanisms foreseen in TEN-T policy This measure would reinforce the mandate of the European Coordinators appointed by the Commission to facilitate the implementation of the TEN-T core network corridors. The reinforced mandate would enable the European Coordinator to facilitate or ensure adequate coordination of the work of the national authorities involved in the permit granting or (if PM 3 is applied) the national one-stop-shops. This option is considered feasible from the legal and political point of view as the role of the European Coordinators is positively assessed by the Member States and stakeholders. The option would require reinforcing the Coordinators' secretariats placed in the European Commission. As the measure targets seem to be addressing effectively the problem driver related to the cross-border nature of certain projects, it will be further analysed.

Driver 1 Multiple stages and authorities involved in the permitting procedures Measures Description 3 Optimisation of the permitting procedures at national level Establishment of a one-stop-shop (OSS) at national level. The OSS would continue to apply national permitting rules (transposed from EU directives). Integration of various administrative procedures at national level (notably all environmental assessments EIA, Habitat, Water, Seveso, Waste, Birds etc.. currently optional) – legal requirement needed / similar to TEN-E 4 Introduction of an EU authorisation procedure Definition of a specific framework for the authorisation of TEN-T core network projects to be applied at EU level. This would include integrated procedures, time limits, cases for overriding public interest and make requirement under existing Directives directly applicable legal requirement needed 8 Guidelines and clarification of the existing legislation, targeted use of existing mechanisms Guidelines for TEN-T project promoters and better orientation of existing instruments (such as the voluntary ex-ante assessment mechanism in the public procurement) 7 Targeted technical assistance Targeted technical assistance measures for TEN-T core network projects(including high quality and efficient packaging of routine projects). The technical assistance may be modelled on the current JASPERS or EIAH initiatives or use these initiatives if decision is made on their extending to the new MFF. Driver 2 - Absent or unenforced time limits Measures Description 8 Guidelines and clarification of the existing legislation, targeted use of existing mechanisms Guidelines for TEN-T project promoters with purely indicative time frames 5 Introduction of time limits for permitting and other procedures Introduction of time limits for overall permitting procedures by the way of recommendation or by legal requirement / similar to TEN-E 6 Limiting time for appeals in the procedures related to TEN-T Introduction of time limits for legal appeals while preserving access to justice Driver 3: Differing public procurement procedures for cross-border TEN-T projects Measures Description 9 Simplified rules for cross-border procurement Requirement to opt for a single legal framework for public procurement of cross-border TEN-T core network projects (currently optional) – legal requirement needed 6 Limiting time for appeals in the procedures related to TEN-T Introduction of binding time limits for remedies while preserving access to justice for unsuccessful tenderers 8 Guidelines and clarification of the existing legislation, targeted use of existing mechanisms Guidelines for TEN-T project promoters and better orientation of existing instruments in the public procurement area (such as the voluntary ex-ante assessment mechanism) Driver 4 Coordination challenges for the delivery of cross-border projects Measures Description 12 Increased use of strengthened coordination mechanisms foreseen in TEN-T policy Reinforced mandate of the TEN-T European Coordinators to facilitate the cooperation of national permit granting bodied Driver 5: Perceived uncertainties related to State aid control procedures Measures Description 7 Targeted technical assistance Technical assistance measures for TEN-T core network projects (including high quality and efficient packaging of routine projects) – targeted for project promoters, national authorities and contracting authorities 10 Priority treatment of State aid notifications for TEN-T core network projects Priority treatment of TEN-T core network projects, following a mutually agreed timetable between the Member State and the Commission, setting out clearly the milestones and information to be delivered by the Member State. 5.3Combining the policy measures into policy options Table 4 below provides a description of the three policy options which are envisaged. They have been defined so as to reflect an increasing level of regulatory intervention, in particular the intervention into the national and regional legal systems and the possible adverse effects on the other affected stakeholders than the project promoters, in particular citizens. The policy options address all the problem drives however they entail an increasing level of expected impacts. The policy packages are cumulative, in the sense that some measures in policy option 1 are also part of policy option 2, which itself includes further measures. This is valid also for policy option 3 that adds the definition of the rules to be applied in authorisations and public procurement. The only exception is for policy option 3b where the authorisations at EU level would not require the OSS and national level. It is also worth noting that some policy measures, notably those in policy option 1, involve both non-regulatory instruments (non-binding measures) and/or regulatory instruments. Detailed description of the policy options by the affected policy areas Policy option 1 (PO1) – Minimal change to the existing instruments and development of soft law as well as accompanying measures. This option would consist in particular of developing a series of guidelines for TEN-T project promoters and better orientation of existing instruments (such as planned public procurement helpdesk, JASPERS or EIAH support) as well as of developing targeted technical assistance measures for TEN-T projects of common interest. It would recommend indicative time frames for overall permitting procedures. ·Authorisations and permits:

-Guidelines for the permit granting procedures and application of the EU acquis in this field, including indicative time frames. -Systematic encouragement in soft law instruments (e.g. guidelines) to apply joint and/or coordinated procedures under Article 2(3) of the revised EIA Directive. ·Public procurement -Guidelines for TEN-T project promoters and better orientation of existing instruments (such as planned public procurement helpdesk, JASPERS or EIAH support) ·State aid: No change ·Other -Targeted technical assistance measures for TEN-T core network projects (including high quality and efficient packaging of routine projects). -Effective technical assistance (e.g. modelled on the JASPERS or the European Investment Advisory Hub, or directly using these initiatives if decision is made on their extending to the next MFF) to support project preparation and horizontal issues affecting the implementation of TEN-T projects, both at the Member State and EU level (systematically involving cooperation Member States – JASPERS (or other initiatives of this type) –European Commission to develop tailor-made solutions for individual Member States); -Reinforced mandate of the TEN-T European Coordinators to facilitate the coordination of national permit granting bodies Policy option 2 (PO2) – Limited binding action to be decentralised and implemented at national level. This option would foresee the legal requirement for Member States to introduce one-stop-shop for TEN-T core network projects and ensure that the most rapid treatment legally possible.is given to them. The key elements of this option would consist of a set of the following measures: ·Authorisations and permits: -Establishment of a mandatory one-stop-shop (OSS) at national level. The OSS would continue to apply national permitting rules (transposed from EU directives) -Mandatory integration of various administrative procedures at national level (notably all environmental assessments EIA, Habitat, Water, Seveso, Waste, Birds etc.. currently optional) -Introduction of time limits for overall permitting procedures -Introduction of time limits for legal appeals while preserving access to justice. ·Public procurement -Requirement to mandatory opt for a single legal framework for public procurement of cross-border projects (currently optional) -Guidelines for TEN-T project promoters and better orientation of existing instruments (such as planned public procurement helpdesk, initiatives modelled on the JASPERS or EIAH support, or directly using these initiatives if decision is made on their extending to the next MFF) ·State aid

-No modification of legislative nature -Priority treatment of State aid notifications for TEN-T core network projects, following a mutually agreed timetable between the Member State and the Commission ·Other -Targeted technical assistance measures for projects of common interest (including high quality and efficient packaging of routine projects) -Reinforced mandate of the TEN-T European Coordinators to facilitate the coordination of national permit granting bodies Policy option 3 (PO3) –An EU framework for authorisation of the TEN-T core network projects. This option includes elements of the Policy option 2 however instead of the mandatory one-stop-shop and integration of administrative procedures at the national level it introduces a specific EU framework for the authorisation of TEN-T core network projects (including integrated procedures, time limits, cases for overriding public interest and directly applicable requirements)and the definition of a specific (supranational) set of rules to be applied in public procurement of cross-border projects. Policy option 3 contains two sub-options which differ in the level of application and therefore include further measure: -PO3a: the measures regarding EU authorisation procedure with time limits are defined at EU level but remain applied at national level, with national institutions implementing them in practice and following the national administrative procedural rules with possibility for appeal and access to justice based on the national administrative procedural law; -PO3b: the measures regarding EU authorisation procedure with time limits are applied at EU level by the Commission (or its agencies). Usual EU rules on procedures and possibility for appeal apply with EU judicial remedies to the Court of Justice of the European Union. Scope of the measures: The analysis of policy options is made on a three different categories of projects which are the following: -All TEN-T core network projects, as identified through the TEN-T framework; -Projects identified on the Core network corridors – with a particular role for the European Coordinators to identify these projects; -Projects which are pre-identified as those eligible to benefit from Union financial support through CEF (as well as from other sources such as EFSI etc.) and which would be reflected in Annex I to the CEF regulation. Policy option 1 - Minimal change to the existing instruments and development of soft law as well as accompanying measures ·Measures aimed at providing guidelines and clarification of the existing legislation (including indicative time frames), targeted use of existing mechanisms in all of the fields identified as problem drivers (environmental assessments, public procurement, State aid and development of alternative financing for the TEN-T core network projects); ·Measures aimed at introduction of time limits for permitting and other procedures ·Measures aimed at targeted technical assistance; ·Measures aimed at increased use of strengthened coordination mechanisms foreseen in TEN-T policy. Policy option 2 - Limited binding action to be decentralised and implemented at national level t national level. ·Measures aimed at optimisation of the permitting procedures at national level (one stop shop, most rapid treatment legally possible); ·Measures aimed at targeted technical assistance; ·Measures aimed at introduction of time limits for permitting and other procedures; ·Measures aimed at limiting time for appeals in the procedures related to TEN-T core network; ·Measures aimed at requiring the national authorities to opt for a single legal framework for public procurement of cross-border projects (law of the seat of the contracting authority); ·Measures aimed at increased use of strengthened coordination mechanisms foreseen in TEN-T policy; ·Measures aimed at giving priority treatment of State aid notifications for TEN-T core network projects. Policy option 3a An EU framework for authorisation of the projects of common interest to be applied at national level In addition to the measures in policy option 2, this policy option intends to establish a common set of EU rules for authorising TEN-T core network projects at national level and includes the following policy measures: ·Measures aimed at introduction of an EU authorisation procedure with time limits to be applied at national level; ·Measures aimed at targeted technical assistance; ·Measures aimed at limiting time for appeals in the procedures related to TEN-T core network; ·Measures aimed at simplifying rules for cross-border procurement; ·Measures aimed at increased use of strengthened coordination mechanisms foreseen in TEN-T policy; ·Measures aimed at giving priority treatment of State aid notifications for TEN-T core network projects. Policy package 3b An EU framework for authorisation of the projects of common interest to be applied at EU level In addition to the measures in policy option 2, this policy option intends to establish a common set of EU rules for authorising TEN-T core network projects and apply them at EU level. It includes the following policy measures:: ·Measures aimed at introduction of an EU authorisation procedure with time limits to be applied at EU level; ·Measures aimed at targeted technical assistance; ·Measures aimed at limiting time for appeals in the procedures related to TEN-T core network; ·Measures aimed at simplifying rules for cross-border procurement; ·Measures aimed at increased use of strengthened coordination mechanisms foreseen in TEN-T policy; ·Measures aimed at giving priority treatment of State aid notifications for TEN-T core network projects.

Table 5 below links the individual policy measures with the problem drivers identified in the problem definition and the respective policy options. Policy measure P1 P2 P3a P3b Driver 1: Multiple stages and authorities involved in permitting procedures 1.Optimisation of the permitting procedures at national level x ✓ M x x 2.Introduction of an EU authorisation procedure applied at national level x x ✓ M x 3.Introduction of an EU authorisation procedure applied at EU level x x x ✓ M 4.Guidelines and clarification of the existing legislation, targeted use of existing mechanisms ✓ M ✓ V ✓ V ✓ V 5.Targeted technical assistance ✓ M ✓ V ✓ M ✓ M Driver 2: Absent or unenforced time limits 6.Introduction of time limits for permitting and other procedures ✓V ✓ M ✓ M ✓ M 7.Limiting time for appeals in the procedures related to TEN-T V ✓ M ✓ M ✓ M Driver 3: Differing public procurement procedures for cross-border TEN-T projects 8.Simplified rules for cross-border procurement x ✓ M ✓ M ✓ M 9.Limiting time for appeals in the procedures related to TEN-T x ✓ M ✓ M ✓ M 10.Guidelines and clarification of the existing legislation, targeted use of existing mechanisms ✓ M ✓ V ✓ V ✓ V Driver 4: Coordination challenges for the delivery of cross-border projects 11.Increased use of strengthened coordination mechanisms foreseen in TEN-T policy ✓ M ✓ M ✓ M ✓ M Driver 5 Perceived uncertainties related to State aid control procedures 12.Targeted technical assistance ✓