Proposal for a Council Directive amending Directive 91/440/EEC on the development of the Community's railways (98/C 321/05) (Text with EEA relevance) COM(1998) 480 final - 98/0265(COD)

(Submitted by the Commission on 29 September 1998)

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 of the Commission,

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

Acting in accordance with the procedure laid down in Article 189c of the Treaty in cooperation with the European Parliament,

(1) Whereas Council Directive 91/440/EEC (1) should be amended to take account of experience with its implementation and of developments in the railway sector since its adoption, in order to ensure that its objectives are achieved;

(2) Whereas, in order to promote the efficient operation and development of the two distinct activities of provision of transport services and of infrastructure management, to make transparent the use to which public funds for the railway sector are put, and to create a solid basis for infrastructure charges, it is necessary to separate both the profit and loss accounts and the balance sheets of the two activities;

(3) Whereas it is necessary that, where railway undertakings and the international groupings which they constitute provide the services referred to in Article 10 of Directive 91/440/EEC, they benefit fully from the access rights laid down in that Article;

(4) Whereas, to this end, all railway undertakings and international groupings must be treated on a fair and non-discriminatory basis as concerns activities that condition access to infrastructure, and, consequently, the laying down and enforcement of safety rules should be carried out by independent bodies or undertakings that themselves do not provide rail transport services;

(5) Whereas, to promote efficient management of infrastructure in the public interest, infrastructure managers should be given a status independent of the State, and freedom to manage their internal affairs, while Member States should take the necessary measures for the development and the safe use of railway infrastructure;

(6) Whereas to promote the efficient operation of passenger and freight transport services and to ensure transparency in their finances, including aid for restructuring, it is necessary to separate the accounts of passenger and of freight transport services,

HAS ADOPTED THIS DIRECTIVE:

Article 1

Directive 91/440/EEC is hereby amended as follows:

1. the second indent of Article 1 is replaced by the following:

'- by separating the management of infrastructure from the provision of railway transport services, the separation of both profit and loss accounts and of balance sheets and the award to an independent body or undertaking of responsibility for those functions determinant for equitable and non-discriminatory access to infrastructure being compulsory, and the organisational or institutional separation of other functions being optional,`;

2. the first and second indents of Article 3 are replaced by the following:

'- "railway undertaking" shall mean any private or public undertaking whose business is to provide rail services for the transport of goods and/or passengers with a requirement that the undertaking must ensure traction,

- "infrastructure manager" means any body or undertaking that is responsible for establishing and maintaining railway infrastructure.`;

3. Article 6(1) is replaced by the following:

'1. Member States shall take the measures necessary to ensure that separate profit and loss accounts and balance sheets are kept and published, on the one hand, for business relating to the provision of transport services and, on the other, for business relating to the management of railway infrastructure. Public funds paid to one of these two areas of activity may not be transferred to the other.

The accounts for the two areas of activity shall be kept in a way that reflects this prohibition.`;

4. Article 7(1), is amended as follows:

(a) paragraph 1 is replaced by the following:

'1. Member States shall take the necessary measures for the development of their national railway infrastructure taking into account, where necessary, the general needs of the Community.

They shall ensure that safety standards and rules are laid down, applied and enforced, with appropriate monitoring. This shall be done by bodies or undertakings that do not provide rail transport services themselves and are independent of bodies or undertakings that do so, in such a way as to guarantee equitable and non-discriminatory access to infrastructure.`;

(b) the following paragraphs are added:

'4. Member States shall take the measures necessary to ensure that infrastructure managers have independent status as regards management, administration and internal control over administrative, economic and accounting matters.

5. Business plans shall be drawn up for infrastructure managers, including their investment and financing programmes. Such plans shall be designed to achieve their financial balance and to ensure the optimal and efficient use and development of infrastructure; they must also provide for the means enabling these objectives to be achieved.

6. In the context of the general policy guidelines determined by the State and taking into account national plans and contracts (which may be multi-annual) including investment and financing plans, infrastructure managers shall, in particular, be free to:

- establish their internal organisation, without prejudice to the provisions of this section,

- take decisions on staff and own procurement,

- manage their own assets as efficiently as possible, develop new technologies and new services and adopt any innovative management techniques.`;

5. the following paragraph shall be added to Article 9:

'4. Separate profit and loss accounts and balance sheets shall be kept and published, respectively, for business relating to the provision of passenger transport services and for business relating to the provision of freight transport services. Funds paid to either of these two areas of activity shall be shown separately in the relevant accounts and shall not be transferred to the other.`

Article 2

Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive not later than one year following the date of entry into force of this Directive. 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 20th day following its publication in the Official Journal of the European Communities.

Article 4

This Directive is addressed to the Member States.

(1) OJ L 237, 24.8.1991, p. 25.