Proposal for a Council Directive on the allocation of railway infrastructure capacity and the charging of infrastructure fees (94/C 24/03) COM(93) 678 final - SYN 490

(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 cooperation with the European Parliament,

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

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

Whereas the 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; and whereas, in consequence of these new access rights, railway infrastructure can be used by railway undertakings which are managed separately from the undertaking owning the infrastructure;

Whereas, it is important to ensure that new entrants can fully benefit from the new access rights and whereas, to this end, it is appropriate to establish a system for the allocation of railway infrastructure and the charging of infrastructure fees which is non-discriminatory and uniform throughout the Community;

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

Whereas it is necessary to provide for the possibility that certain priority rights are granted with regard to the allocation of infrastructure capacity;

Whereas it is necessary that the infrastructure manager is compensated for any financial losses incurred due to the imposition of a certain infrastructure capacity allocation;

Whereas it is necessary to provide for the possibility that special or exclusive rights are granted in allocating infrastructure capacity if they are indispensable to ensure adequate transport services;

Whereas the Member States should ensure a reasonable flexibility as regards the allocation of infrastructure capacity;

Whereas the accounts of the infrastructure manager should be in balance under normal business conditions over a reasonable time period;

Whereas it is necessary to define non-discriminatory rules as regards the charging of infrastructure fees;

Whereas, in order to ensure an efficient use of infrastructure capacity, the fees shall be fixed according to the nature of the service, the time of the service and the market situation;

Whereas the Member States should have the possibility to influence the general level of infrastructure fees in the context of the harmonization of intermodal competition including the consideration of external effects;

Whereas the procedures for the allocation of infrastructure capacity and the charging of infrastructure fees shall be transparent and non-discriminatory;

Whereas it is necessary to ensure arbitration facilities as regards the allocation of infrastructure capacity and the charging of infrastructure fees,

HAS ADOPTED THIS DIRECTIVE:

Article 1

This Directive concerns the principles and procedures to be applied with regard to the allocation of railway infrastructure capacity and the charging of infrastructure fees.

Article 2

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;

(b) 'infrastructure manager` means an infrastructure manager within the meaning of Article 3 of Council Directive 91/440/EEC of 29 July 1991 on the development of the Community's railways;

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

(d) 'allocation body` means the authority designated by the Member State with the allocation of infrastructure capacity.

SECTION I

Allocation of railway infrastructure capacity

Article 3

Each Member State shall designate the authority responsible for the allocation of infrastructure capacity in accordance with the requirements of this Directive. In particular, the allocation body shall ensure:

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

- that subject to Articles 4 and 5 the allocation procedure is efficiently organized applying market principles.

Article 4

1. By derogation from Article 3 the allocation body may take the necessary measures to ensure that in allocating railway infrastructure capacity priority is given to the following rail sercices:

(a) services provided in the interest of the public, as defined in Regulation (EEC) No 1191/69 of 26 June 1969 on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway, as amended by Council Regulation (EEC) No 1893/91 of 20 June 1991;

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

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

Article 5

The allocation body may grant special or exclusive rights as regards infrastructure allocation on a non-discriminatory basis to operators of certain types of services and/or in certain areas if they are indispensable to ensure adequate public services, without prejudice to Articles 85, 86 and 90 of the Treaty.

SECTION II

Charging of infrastructure fees

Article 6

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

Article 7

There shall be no discrimination between different railway undertakings and between national and international services in the charging for services of an equivalent nature in the same market.

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

Article 8

1. Member States shall apply the following principles in laying down the rules for determining the infrastrucutre fees, charged by the infrastructure manager:

- the fees shall be paid directly to the infrastructure manager,

- the fees shall be fixed according to the nature of the service, the time of the service, the market situation and the quality of the infrastructure,

- no abusively high fees shall be charged,

- the infrastructure manager shall inform railway undertakings using its infrastructure capacity in good time of any changes in fees charged or in quality or capacity of the infrastructure concerned.

2. Without prejudice to Articles 77, 92 and 93 of the Treaty, Member States may provide financial assistance to the infrastructure manager in so far as it is necessary to achieve distribution of infrastructure costs between modes and to take account of external costs and benefits.

3. As regards the procedures for the payment of fees, Member States may provide for the possibility that a global agreement is set up with the infrastructure manager as regards services provided in the interest of the public in accordance with Council Regulation (EEC) No 1191/69 of 26 June 1969, on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway as amended by Regulation (EEC) No 1893/91 of 20 June 1991.

Article 9

In order to ensure that the principles set out in Articles 3, 7 and 8 are applied, the Member States may require the infrastructure manager to provide all necessary information on the fees charged.

SECTION III

General provisions

Article 10

1. Member States shall lay down the procedures for the allocation of railway infrastructure capacity. These procedures shall be made public by the Member State concerned and the Commission shall be informed thereof.

2. An application for infrastructure capacity shall be submitted to the allocation body of the Member State of establishment. The application shall be accompanied by evidence that the operational staff involved have the required knowledge to provide services safely over the routes concerned; this evidence shall be submitted to the authority responsible for safety.

3. If an application for infrastructure capacity concerns a train path outside the territory of the Member State of establishment of the railway undertaking, the application shall be submitted to the allocation body of the Member State in whose territory the place of departure or arrival of the rail service concerned is situated.

4. The allocation body shall take a decision on the application as soon as possible, but no later than one month after all relevant information has been submitted. The decision shall be communicated to the applicant undertaking. A refusal shall indicate the reason therefor.

5. If the train path requested concerns more than one allocation body, the allocation body to which an application has been submitted shall immediately inform the other allocation bodies concerned with this request. The latter shall take a decision as soon as possible but no later than one month after all relevant information has been submitted. They shall immediately inform the allocation body to which the request has been submitted.

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

6. In addition to the procedure set out under paragraph 5 an applicant undertaking may directly contact the other allocation bodies concerned with this request.

The allocation body to which the application has been submitted shall be informed.

7. The allocation of a train path or paths shall be dependent upon the issue of a safety certificate by the authority responsible for safety. This certificate shall affirm that the railway undertaking has fulfilled the safety conditions laid down by that authority.

8. The railway undertakings to wich railway infrastructure capacity has been allocated shall conclude the necessary administrative, technical and financial agreements with managers of the railway infrastructure.

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

Article 11

Member States may provide for the possibility that applications for infrastructure access are accompanied by a deposit. In the event that an agreement is reached or an application is refused the deposit shall be returned in its entirety.

If an applicant does not make use of an allocated train path an amount may be deducted from the deposit which represents the cost incurred in processing the application and any subsequent loss of earnings due to the non- use of the infrastructure capacity concerned.

Article 12

1. Member States shall take the measures necessary to ensure that decisions by the infrastructure manager on the charging of fees shall be reviewed by the allocation body when so requested in writing by a railway undertaking. The allocation body shall take its decision on the review within two months from the submission of all relevant information.

2. Member States shall take the measures necessary to ensure that decisions of the allocation body regarding the allocation of infrastructure capacity or regarding the review of decisions of the infrastructure manager in accordance with paragraph 1 shall be subject to judicial review.

Article 13

1. Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive not later than 1 July 1994. 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 occassion of their official publication. The methods of making such a reference shall be laid down by the Member States.

Article 14

This Directive is addressed to the Member States.

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