Amended proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE amending Directive 95/18/EC on the licensing of railway undertakings

(presented by the Commission)

EXPLANATORY MEMORANDUM

1. On 22nd July 1998 the Commission adopted a proposal for a Council directive [1] amending Directive 95/18/EC on the licensing of railway undertakings [2]. On 20th October 1998 the Commission submitted this proposal to the Council (SYN 98/0265). The purpose of the proposal was to enlarge the scope of the Directive in order to create a level playing field for European railway undertakings.

[1] COM(1998) 480 final dd. 22.7.1998.

[2] OJ L 143, 27.6.1995, p. 70.

2. At its plenary session of 10th March 1999, the European Parliament approved the proposal subject to amendments. After the entry into force of the Amsterdam Treaty on 1st May 1999, the Parliament had to re-approve its first reading. The European Parliament finally approved the Commission's proposal at its plenary session on 15th September 1999, subject to two amendments.

3. Amendment to Article 8: The European Parliament's Amendment 1 adds a sentence to Article 8 of Directive 95/18/EC (see Article 1 point 4) requiring the conditions relating to professional competence to be non-discriminatory. As non-discrimination is one of the pillars of Community policy and therefore also of its railway policy the amendment will add to the clarity of the text and will remind national legislators once more of the necessity to assure that no discrimination occurs. Assuring non-discriminatory treatment is especially necessary where judgements have to be made at best in part on the basis of perceptions. The Commission therefore welcomes the Parliament's proposal and integrates it into its proposal. However, the Commission proposes to modify the wording in order to avoid any misunderstanding as to what the word "This" in the Parliament's amendment refers to.

4. Amendment to Article 9 (Amendment 2): According to the Parliament's report, the following sentence should be added to Article 9, laying down the obligation for railway undertakings to make arrangements to cover their liabilities: "For freight services, this may only be permitted where the charges reflect willingness to pay more than costs imposed and where regulatory bodies have safeguards in place to ensure charges are not excessive." The amendment appears to link the need for freight railway undertakings to insure themselves to their willingness to pay more than costs. Such a provision would in any case not be acceptable because the obligation for all railway undertakings, to have adequate insurance arrangements or other arrangements for cover is essential for the protection of any third party involved in accidents and incidents. It could, however, also be the case that the amendment was intended to amend Article 9 of the proposal to replace Directive 95/19/EC.

5. For the above mentioned reasons the Commission formally rejects the amendment as regards Directive 95/18/EC.

6. Article 11, paragraph 8, of the existing Directive 95/18/EC imposes certain obligations on the Member States and the Commission. It is desirable that these obligations are clarified and this is done based upon a common sense interpretation of the existing text and existing practice. Information to be provided by Member States to the Commission would therefore also include information on licenses that have been issued.

Amended proposal for a

EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE

amending Directive 95/18/EC on the licensing of railway undertakings

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 71 thereof,

Having regard to the proposal from the Commission [3],

[3] OJ C 321, 20.10.1998

Having regard to the opinion of the Economic and Social Committee [4],

[4] OJ C

Having regard to the opinion of the Committee of the Regions [5];

[5] OJ C

Acting in accordance with the procedure laid down in Article 251 of the Treaty [6],

[6] OJ C

Whereas:

(1) Council Directive 91/440/EEC of 29 July 1991 on the development of the Community's railways [7] provides for certain access rights in international rail transport for railway undertakings and international groupings of railway undertakings;

[7] OJ L 237, 24.8.1991, p. 25.

(2) To ensure dependable and adequate services, a common licensing scheme is necessary to ensure that all railway undertakings meet at any time certain requirements in relation to good repute, financial fitness and professional competence in order to protect customers and third parties and offer services observing a high standard of safety.

(3) In order to ensure that access rights to railway infrastructure are applied throughout the Community on a uniform and non-discriminatory basis, Council Directive 95/18/EC [8] introduced a licence for railway undertakings providing the services referred to in Article 10 of Directive 91/440/EEC, this license being obligatory for the operation of such services and valid throughout the Community.

[8] OJ L 143, 27.6.1995, p. 70.

(4) Since some Member States have extended access rights going beyond Directive 91/440/EEC it seems necessary to ensure fair, transparent and non-discriminatory treatment of all railway undertakings that may operate in this market by extending the licensing principles laid down by the Directive to all companies active in the sector.

(5) In order to better fulfil the information obligations Member States and the Commission have according to Article 11, paragraph 8, to ensure better information for all Member States and the Commission and following common practice and a logic interpretation of the Directive in vigour, the "catalogue" of informations to be given by Member States and the Commission should also cover licenses issued.

(6) In accordance with the principles of subsidiarity and proportionality as set out in Article 5 of the Treaty, the objectives of this Directive, namely to set out broad principles for the licensing of railway undertakings and the mutual recognition of such licences throughout the Community, cannot be sufficiently achieved by the Member States on account of the manifestly international dimension of issuing such licences can therefore, by reason of its trans-national implications, be better achieved by the Community; whereas this Directive confines itself to the minimum required in order to achieve those objectives and does not go beyond what is necessary for that purpose.

(7) It should be specified that transport activities in the form of shuttle services for road vehicles through the Channel Tunnel and passenger services solely operated on a local stand-alone network or by using trams or light rail, are excluded from the scope of Directive 95/18/EC, as are railway undertakings solely carrying out their own freight operations on a network used exclusively for that purpose.

(8) Community conditions for access to or transit via railway infrastructure will be regulated by other provisions of Community law.

(9) Directive 95/18/EC should be amended accordingly.

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 95/18/EC is amended as follows:

1. Article 1 is replaced by the following:

"Article 1

1. This Directive concerns the criteria applicable to the issue, renewal or amendment of licences by a Member State intended for railway undertakings which are or will be established in the Community.

2. Railway undertakings which operate passenger services on local stand-alone networks or urban or suburban passenger services using, for example, trams or light rail are excluded from the scope of this Directive. Railway undertakings carrying out their own freight operations on a network used exclusively for that purpose are excluded from the scope of this Directive.

3. Railway undertakings and international groupings the activity of which is limited to the provision of shuttle services transporting road vehicles through the Channel Tunnel shall be excluded from the scope of this Directive.

4. A licence shall be valid throughout the territory of the Community."

2. Article 2 is amended as follows:

(a) Point (a) is replaced by the following:

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

(b) Point (d) is deleted.

3. Article 3 is replaced by the following:

"Article 3

Each Member State shall designate the body responsible for issuing licences and for carrying out the obligations imposed by this Directive. The task of issuing license shall be carried out by a body which does not provide rail transport services itself and is independent of bodies or undertakings that do so."

4. Article 8 is replaced by the following:

"Article 8

1. The requirements relating to professional competence shall be met when:

(a) An applicant railway undertaking has or will have a management organisation which possesses the knowledge and / or experience necessary to exercise safe and reliable operational control and supervision of the type of operations specified in the licence, (b) Its personnel responsible for safety, in particular drivers, are fully qualified for their field of activity and (c) its personnel, rolling stock and organisation can ensure a high level of safety for the services to be provided.

2. For the purposes of paragraph 1, each applicant shall give at least the particulars listed in section II of the Annex.

3. Appropriate written proof of compliance with qualification requirement shall be produced.

4. These requirements shall be laid down and enforced on a non-discriminatory basis."

5. In Article 11, paragraph 8, the word "issues," is inserted before the word 'supends'.

Article 2

Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive no later than one year following the date of its entry into force. They shall forthwith inform the Commission thereof.

When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

Article 3

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities.

Article 4

This Directive is addressed to the Member States.

Done at Brussels,

For the European Parliament For the Council

The President The President