Proposal for a Council Directive on the licensing of railway undertakings (94/C 24/02) COM(93) 678 final - SYN 488

(Submitted by the Commission on 15 December 1993)

THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the Commission,

In cooperacion with the European Parliament,

Having regard to the opinion of the Economic and Social Committee,

Whereas the internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured;

Whereas the application in the railway sector of the principle of the freedom to provide services needs to take into account the specific characteristics of that sector;

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

Whereas in order to ensure that access rights to railway infrastructure are applied throughout the Community on a uniform and non-discriminatory basis, it is appropriate to introduce an operating licence for railway undertakings;

Whereas, having regard to the principle of subsidiarity and in order to ensure the requisite uniformity and transparency, it is appropriate that the Community lays down the broad principles of such a licensing system, leaving to Member States the responsibility for the granting and the administration of such licences;

Whereas in order to ensure dependable and adequate services it is necessary to ensure that railway undertakings meet at any time certain requirements in relation to good repute, financial fitness and professional competence;

Whereas for the protection of users and other parties concerned it is important to ensure that railway undertakings are sufficiently insured or have made equivalent arrangements in respect of liability risks;

Whereas in order to ensure the efficient operation of international rail transport it is necessary that railway undertakings respect the agreements in force in this field;

Whereas the procedures for the granting, maintenance and amendment of operating licences to railway undertakings shall be transparent and non-discriminatory,

HAS ADOPTED THIS DIRECTIVE:

Introduction

Article 1

1. This Directive concerns the provisions to be adopted by Member States for the granting, maintenance and amendment of operating licences by Member States in relation to railway undertakings established in the Community.

2. By derogation from the above Member States may exclude from the scope of this Directive railway undertakings whose activity is limited to the provision of solely urban, suburban or regional services, in so far as those services do not involve the joint use of infrastructure with undertakings subject to this Directive.

Article 2

Definitions

For the purpose of this Directive:

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

(b) 'operating licence` means an authorization granted by a Member State to an undertaking, by which its capacity as a railway undertaking is recognized. This capacity can be limited to the provision of specific types of services;

(c) 'business plan` means a detailed description of the railway undertaking's intended commercial activities for the period covered, in particular in relation to market developments and investment to be carried out, including the financial and economic implications of these activities;

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

(e) 'licensing authority` means the authority charged by the Member State with the granting of railway operating licences.

Article 3

Each Member State shall designate the authority responsible for granting of railway operating licences and for the carrying out of obligations under this Directive.

Article 4

Operating licence

1. A railway undertaking established in the Community has the right to apply for an operating licence.

2. Member States shall not grant operating licences or maintain their validity where the requirements of this Directive are not complied with.

3. A railway undertaking meeting the requirements set out in this Directive shall be entitled to receive an operating licence and to apply for access to railway infrastructure.

4. Notwithstanding paragraph 3, the operating licence does not in itself confer any rights of access to specific train paths. These rights of access are granted according to Community and national legislation in the form of:

- a safety certificate which is issued to a railway undertaking by the national authority responsible for safety and which affirms that the railway undertaking has fulfilled the safety conditions laid down by that authority,

- a train path allocation under the conditions defined by Community and national legislation.

5. A railway undertaking shall not be permitted to carry out rail transport services covered by the scope of this Directive unless it has been granted the appropriate operating licence for the type of services to be provided.

Article 5

Conditions for an operating licence

1. Any railway undertaking which is granted an operating licence must be able to demonstrate to the licensing authorities of the Member State that it can meet at any time certain requirements in relation to good repute, financial fitness and professional competence set out in Articles 6 to 8.

2. For the purpose of paragraph 1, each applicant shall provide all relevant information, in particular that referred to in the Annex.

Article 6

Member States shall define the conditions under which the requirement of good repute is met to ensure that as regards the applicant railway undertaking or the persons in charge of management, they

- have not been convicted of serious criminal offences, including offences of a commercial nature,

- have not been declared bankrupt,

- have not been convicted of serious offences against specific legislation applicable to transport.

Article 7

1. The requirements in relation to financial fitness are met when the applicant railway undertaking can demonstrate that it will be able to meet (at any time) its actual and potential obligations, established under realistic assumptions, for a period of 12 months.

2. For the purpose of paragraph 1, each applicant shall provide all relevant information, in particular a business plan for at least the first year of operation and the data referred to in the Annex.

Article 8

1. The requirements in relation to professional competence are met when:

(a) the applicant railway undertaking has a management organization which possesses the experience necessary for exercising satisfactory operational control and supervision of the type of operations specified in the operating licence;

(b) the applicant railway undertaking can demonstrate that it will be in a position to provide appropriate rolling stock including traction and maintenance arrangements necessary to operate the services according to the terms of its operating licence;

(c) its staff, who are critical to safety, notably drivers, are suitably qualified for their field of activity; and

(d) its personnel, equipment and organization can ensure an appropriate level of safety of the operations to be undertaken.

2. Member States shall take all appropriate steps to ensure that adequate staff training arrangements are provided. Where certain essential training facilities are under the exclusive control of a single undertaking, the Member State where these facilities are located shall ensure that access is granted to other railway undertakings on a non-discriminatory, commercial basis.

Article 9

A railway undertaking must be insured or have made equivalent arrangements to cover liability in case of accidents, in particular in respect of passengers, luggage, freight, mail and third parties.

Article 10

Validity of the operating licence

1. An operating licence shall be valid as long as the railway undertaking meets the obligations of this Directive. However, the licensing authority may make provision for a review one year after a new licence has been issued and shall review the situation every five years thereafter.

2. Specific provisions for suspension or revocation of a licence may be reflected in the licence itself.

Article 11

1. If there is serious doubt that the requirements of this Directive, and in particular Article 5 thereof, are complied with by a railway undertaking licensed by them, the licensing authorities may, at any time, assess whether the railway undertaking is in compliance with those requirements. Where the licensing authority is satisfied that the railway undertaking can no longer meet the requirements of the Directive, and in particular Article 5, it shall suspend or revoke the operating licence.

2. Notwithstanding paragraph 1, where an operating licence is suspended or revoked by reason of non-compliance with the requirements of financial fitness, the licensing authority may grant a temporary licence pending the reorganization of the railway undertaking, provided that safety is not put at risk.

3. When a railway undertaking has ceased operations for six months or has not started operations for six months after the granting of an operating licence, the licensing authority responsible may decide that the operating licence shall be re-submitted for approval.

4. In relation to a railway undertaking, the licensing authority may decide that the operating licence shall be re-submitted for approval in case of a change, affecting the legal situation of the undertaking and, in particular, in the case of mergers or takeovers. The railway undertaking in question may continue operation, unless the licensing authority decides that safety is at risk; in such a case, the reasons for such a decision shall be given.

5. When a railway undertaking intends significantly to change or extend its activities, the operating licence has to be amended accordingly.

6. A railway undertaking, against which bankruptcy or similar proceedings are commenced, shall not be permitted by the licensing authority to retain its operating licence if the latter is convinced that there is no realistic prospect of a satisfactory financial reconstruction within a reasonable period of time.

7. When the licensing authority has suspended, revoked or amended an operating licence, the Member State concerned shall immediately inform the other Member States notably those in which the railway undertaking concerned is operating.

Article 12

In addition to the requirements of this Directive, the railway undertaking shall also respect national laws compatible with Community law, in particular as regards specific technical requirements for certain rail services.

Article 13

Railway undertakings carrying out international transport services shall respect the agreements applicable to international rail transport in force in the Member States in which they operate.

Article 14

Transitional provisions

Railway undertakings operating rail services at the date of entry into force of this Directive shall be granted a transitional period of six months to comply with the provisions of this Directive. This transitional period shall not cover any provision that might affect safety of railway operations.

Article 15

General provisions

1. The procedures for the granting of operating licences shall be made public by the Member State concerned and the Commission shall be informed thereof.

2. The licensing authority shall take a decision on an application as soon as possible, but not later than two months after all relevant information, in particular the data referred to in the Annex, has been submitted, taking into account all the available evidence. The decision shall be communicated to the applicant railway undertaking. A refusal shall indicate the reasons thereof.

3. Member States shall take the measures necessary to ensure that decisions of the licensing authority shall be subject to judicial review.

Article 16

1. Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive not later than 1 January 1995. They shall forthwith inform the Commission thereof.

2. When Member States adopt these provisions, they shall contain a reference to this Directive or be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.

Article 17

This Directive is addressed to the Member States.

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

ANNEX

Information for use in association with Article 4

A. Information which a first-time applicant may be required to present

1. Where available the most recent internal management accounts and audited accounts for the previous financial year.

2. A projected balance sheet, including profit and loss account, for the following year.

3. The basis for projected expenditure and income figures on such items as transport volume, fares and rates, and major cost elements.

4. Details of the start-up costs incurred in the period from submission of application to commencement of operations and an explanation of how it is proposed to finance these costs.

5. Details of existing and projected sources of finance.

6. Projected cash-flow statements and liquidity plans for the first year of operation.

7. Arrangements as regards availability and maintenance of rolling stock notably as regards the safety standards.

8. The qualifications of staff who are critical to safety and details of any staff training facilities.

B. Information to be provided for the assessment of applications from existing licence holders planning a significant change in their structure or in their activities

1. The audited accounts for the previous financial year.

2. Precise details of all proposed changes e.g. change of type of service, extension of service, proposed takeover or merger, etc.

3. A projected balance sheet, with a profit and loss account, for the current financial year, including all significant proposed changes in structure or activities.

4. Past and projected expenditure and income figures on such items as transport volume, fares and rates, salaries, maintenance, depreciation, infrastructure fees, insurance, etc.

5. Cash-flow statements and liquidity plans for the following year, including all significant proposed changes in structure or activities.

6. Details of changes, as regards availability and maintenance of rolling stock, in the qualification of staff who are critical to safety.

C. Information to be provided for the review of existing licence holders

1. Audited accounts not later than six months after the end of the relevant period and, if necessary, the most recent internal management balance sheet.

2. A projected balance sheet, including profit and loss account, for the forthcoming year.

3. Past and projected expenditure and income figures on such items as transport volume, fares and rates, salaries, maintenance, depreciation, infrastructure fees, insurance, etc.

4. Cash-flow statements and liquidity plans for the following year.

5. Details of any changes proposed. Arrangements as regards availability and maintenance of rolling stock notably as regards safety standards, and the qualifications of staff who are critical to safety.