Wednesday 16 November 2011

Single European railway area ***I

P7_TA(2011)0503

European Parliament legislative resolution of 16 November 2011 on the proposal for a directive of the European Parliament and of the Council establishing a single European railway area (recast) (COM(2010)0475 – C7-0268/2010 – 2010/0253(COD))

2013/C 153 E/41

(Ordinary legislative procedure – recast)

The European Parliament,

having regard to the Commission proposal to Parliament and the Council (COM(2010)0475),

having regard to Article 294(2) and Article 91 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7-0268/2010),

having regard to Article 14 of the Treaty on the Functioning of the European Union and Protocol No 26 thereto on Services of General Interest,

having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

having regard to its resolution of 17 June 2010 on the implementation of the first railway package Directives (1) ,

having regard to the reasoned opinion submitted, within the framework of the Protocol (No 2) on the application of the principles of subsidiarity and proportionality, by the Chambre des Députés of Luxembourg, asserting that the draft legislative act does not comply with the principle of subsidiarity,

having regard to the opinion of the European Economic and Social Committee of 16 March 2011 (2) ,

having regard to the opinion of the Committee of the Regions of 28 January 2011 (3) ,

having regard to the Interinstitutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts (4) ,

having regard to the letter of 26 May 2011 from the Committee on Legal Affairs to the Committee on Transport and Tourism in accordance with Rule 87(3) of its Rules of Procedure,

having regard to Rules 87 and 55 of its Rules of Procedure,

having regard to the report of the Committee on Transport and Tourism (A7-0367/2011),

whereas, according to the Consultative Working Party of the legal services of the European Parliament, the Council and the Commission, the proposal in question does not include any substantive amendments other than those identified as such in the proposal and whereas, as regards the codification of the unchanged provisions of the earlier acts together with those amendments, the proposal contains a straightforward codification of the existing texts, without any change in their substance,

Adopts its position at first reading hereinafter set out, taking into account the recommendations of the Consultative Working Party of the legal services of the European Parliament, the Council and the Commission;

Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another text;

Instructs its President to forward its position to the Council, the Commission and the national parliaments.

(1) OJ C 236 E, 12.8.2011, p. 125.

(2) OJ C 132, 3.5.2011, p. 99.

(3) OJ C 104, 2.4.2011, p. 53.

(4) OJ C 77, 28.3.2002, p. 1.

Wednesday 16 November 2011

P7_TC1-COD(2010)0253

Position of the European Parliament adopted at first reading on 16 November 2011 with a view to the adoption of Directive 2011/…/EU of the European Parliament and of the Council establishing a single European railway area (recast)

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 91 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee (1),

Having regard to the opinion of the Committee of the Regions (2),

Acting in accordance with the ordinary legislative procedure,

Whereas:

(1) Council Directive 91/440/EEC of 29 July 1991 on the development of the Community's railways (3), Council Directive 95/18/EC of 19 June 1995 on the licensing of railway undertakings (4) and Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure (5) have been substantially amended in 2004 and 2007. Since further amendments are necessary and given the link between these legal provisions, those Directives should be recast and merged into a single act in the interest of clarity.

(2) Greater integration of the Union transport sector is an essential element of the completion of the internal market, and the railways are a vital part of the Union transport sector moving towards achieving sustainable mobility.

(2a) The railway sector's share in transport has not been increasing over the last decade, contrary to the objectives of the 2001 railway package ("the first railway package", namely Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 91/440/EEC on the development of the Community’s railways (6) , Directive 2001/13/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 95/18/EC on the licensing of railway undertakings (7) and Directive 2001/14/EC), demonstrating the need to further improve current legislation in order to support the sector. It follows that the current reorganisation is essential. [Am. 1]

(2b) The numerous infringement procedures against Member States demonstrate that the current legislation gives rise to differences of interpretation and that the first railway package needs to be clarified and improved in order to ensure a genuine opening up of the European rail market. [Am. 2]

(2c) Investment in the development and upkeep of railway infrastructure remains insufficient to guarantee the sector's development and capacity to compete. [Am. 3]

(2d) The Directives which comprise the first railway package have not prevented a considerable variation in the structure and level of railway infrastructure charges and the form and duration of capacity allocation processes. [Am. 4]

(2e) Non-transparent market conditions are an obvious obstacle to competitive railway services. [Am. 5]

(3) The efficiency of the railway system should be improved, in order to integrate it into a competitive market, whilst taking account of the special features of the railways.

(3a) The coexistence in the Member States of different social security schemes in the railway sector poses a risk of unfair competition between new railway operators and incumbent undertakings, and requires harmonisation while respecting the specific characteristics of the sector and of the Member States. [Am. 6]

(3b) Guarantees must be provided that the regulatory bodies will carry out their supervisory duties, in order to ensure non-discrimination between railway undertakings, the implementation of suitable charging policies and compliance with the principle of the separation of accounts. [Am. 7]

(3c) In order to complete the European railway area, complete interoperability of the rail system at European level is necessary. The European Railway Agency should be assigned the appropriate powers and resources to attain this objective more quickly, inter alia as regards the development of common standards for certification of rolling stock and safety and signalling systems. [Am. 8]

(4) Regional, urban and suburban services as well as transport activities in the form of shuttle services through the Channel Tunnel should be excluded from the scope of this Directive. Heritage and museum railways running on their own track should also be exempt from the scope of the Directive. [Am. 9]

(5) In order to render railway transport efficient and competitive with other modes of transport, Member States should ensure that railway undertakings have the status of independent operators behaving in a commercial manner and adapting to market needs.

(6) In order to ensure the future development and efficient operation of the railway system, a distinction should be made between the provision of transport services and the operation of infrastructure. Given this situation, it is necessary for these two activities to be managed separately and to have separate accounts , guaranteeing transparency which ensures that no public funds are diverted to other commercial activities . [Am. 10]

(6a) The strict separation of accounts between infrastructure manager and railway undertaking must be ensured. Public funds allocated to one of these fields of activity should not be transferred to another field of activity. This prohibition should be clearly displayed in the accounting rules of each field of activity. The Member State and the national regulatory body should ensure the effective application of this prohibition. [Am. 11]

(6b) Whatever the type of undertaking, all rail operators must respect legislation on social protection and health so as to avoid the practice of social dumping and unfair competition. [Am. 12]

(6c) In order to enable rail transport to compete with road transport, the differing sets of national rules, such as those on rail transport safety, on the use of accompanying documents, on the marshalling of trains and the relevant documentation related thereto, on the signals and marks used to guide trains, on the measures and checks implemented in connection with shipments of hazardous goods and on uniform procedures for registering and monitoring shipments of waste, should be standardised. [Am. 13]

(7) The principle of freedom to provide services should be applied to the railway sector, taking into account that sector's specific characteristics.

(8) In order to boost competition in railway service management in terms of improved comfort and the services provided to users, Member States should retain general responsibility for the development of the appropriate railway infrastructure.

(9) In the absence of common rules on allocation of infrastructure costs, Member States should, after consulting the infrastructure manager, lay down rules providing for railway undertakings to pay for the use of railway infrastructure. Such rules should not discriminate between railway undertakings.

(10) Member States should ensure that infrastructure managers and existing publicly owned or controlled railway transport undertakings are given a sound financial structure having due regard to the Union rules on State aids.

(10a) The Union should explore alternative sources of funding European rail projects through innovative financial instruments, such as Union project bonds, to encourage private investment and to improve access to venture capital. By the same token, the railway market must be made attractive to alternative, private investors via clear, transparent legal frameworks. [Am. 14]

(10b) Member States and infrastructure managers should be able to fund infrastructure investment through means other than direct State funding such as private sector financing. [Am. 15]

(11) An efficient passenger and freight sector, especially across borders and in particular in instances where different track gauges still constitute a physical barrier to competition , requires urgent action to open up the market markets in the individual Member States and generate competition . [Am. 16]

(12) In order to ensure that access rights to railway infrastructure are applied throughout the Union on a uniform and non-discriminatory basis, it is appropriate to introduce a licence for railway undertakings.

(13) In the case of journeys with intermediate stops, new market entrants should be authorised to pick up and set down passengers along the route in order to ensure that such operations are economically viable and to avoid placing potential competitors at a disadvantage compared to existing operators.

(14) The introduction of new, open-access, international passenger services with intermediate stops should not be used to open up the market for domestic passenger services, but should merely be focused focus on stops that are ancillary to the international route. The principal purpose of the new such services should be to carry passengers travelling on an international journey. When assessing whether that is the service’s principal purpose, criteria such as the proportion of turnover, and of volume, derived from transport of domestic or international passengers, and the length of the service should be taken into account. The assessment of the service's principal purpose should be carried out by the respective national regulatory body at the request of an interested party. [Am. 17]

(15) Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road (8) authorises Member States and local authorities to award public service contracts which may contain exclusive rights to operate certain services. It is therefore necessary to ensure that the provisions of that Regulation are consistent with the principle of opening up international passenger services to competition.

(15a) Regulation (EC) No 1370/2007 allows Member States to ensure that workers’ employment rights are maintained in the context of the separation of the provision of transport services from the management of the infrastructure, which could involve a transfer of an undertaking. [Am. 18]

(16) Opening up international passenger services to competition may have implications for the organisation and financing of rail passenger services provided under a public service contract. Member States should have the option of limiting the right of access to the market where this right would compromise the economic equilibrium of these public service contracts and where approval is given by the relevant regulatory body referred to in Article 55 and where applicable the network of regulatory bodies as set out in Article 57, of this Directive on the basis of an objective economic analysis, following a request from the competent authorities that awarded the public service contract. [Am. 19]

(17) The assessment of whether the economic equilibrium of the public service contract could be compromised should take into account predetermined criteria such as the impact on the profitability of any services which are included in a public service contract, including consequential impacts on the net cost to the competent public authority that awarded the contract, passenger demand, ticket pricing, ticketing arrangements, location and number of stops on both sides of the border and timing and frequency of the proposed new service. In accordance with such an assessment and the decision of the relevant regulatory body, Member States may authorise, modify or deny the right of access for the international passenger service sought, including the levying of a charge on the operator of a new international passenger service, in line with the economic analysis and in accordance with Union law and the principles of equality and non-discrimination.

(18) In order to contribute to the operation of passenger services on lines fulfilling a public service obligation, Member States should be able to authorise the authorities responsible for those services to impose a levy on passenger services which fall within the jurisdiction of those authorities. That levy should contribute to the financing of public service obligations laid down in public service contracts.

(18a) Market developments have shown that a crucial concern is to strengthen the role of the regulatory bodies. If they are to play a key role in ensuring a fair environment with equitable access conditions, they need to receive the financial means as well as appropriate staffing and logistic equipment to fulfil this role. [Am. 20]

(18b) The national regulatory body must be an independent regulatory authority with the power to take up matters on its own initiative and to undertake investigations, and capable of issuing opinions and enforceable decisions with a view to ensuring an open market without barriers in which competition is exercised freely and without distortion. [Am. 21]

(19) The national regulatory body should function in a way which avoids any conflict of interests and any possible involvement in the award of the public service contract under consideration , without prejudice to the option of this body being funded from the national budget or from levies on the rail sector and to the publication of the relevant information . The competence of the regulatory body should be extended to allow the assessment of the purpose of an international service and, where appropriate, the potential economic impact on existing public service contracts. [Am. 22]

(19a) The national regulatory body should be fully independent in its organisation, funding decisions, legal structure and decision-making from any infrastructure manager, charging body, allocation body or applicant. The national regulatory body has to have the necessary administrative capacity in terms of staff and resources to ensure that the railway market is open and transparent. The required level of staff should be directly linked to the market needs and vary accordingly. It should be required to take a decision on any complaints, act on its own initiative, investigate in cases of dispute and monitor the development of the market. It should be supported by a regulatory department of the Commission. Furthermore the national regulatory body should maintain a database of their draft decisions accessible to the Commission. [Am. 23]

(20) In order to invest in services using specialised infrastructure, such as high-speed railway lines, applicants need legal certainty given the substantial long-term investment involved.

(21) The national regulatory bodies should , under the auspices of the Commission, create a network to strengthen their cooperation through the development of common principles and the exchange of best practices and information and . They should also , where relevant in individual cases, coordinate the principles and practice of assessing whether the economic equilibrium of a public service contract is compromised. They should progressively develop at European level common guidelines based on their experience. Based on the experience of that network of regulatory bodies the Commission should come forward with a legislative proposal for the setting up of a European regulatory body. [Ams 24 and 25]

(22) In order to ensure fair competition between railway undertakings, a distinction should be made between the provision of transport services and the operation of service facilities. Given this situation, it is necessary for these two types of activity to should be managed independently in distinct legal entities. Such independence need not imply the establishment of separate in a transparent and non-discriminatory manner by the regulatory body or firm for each service facility in accordance with the procedures laid down in this Directive . [Am. 26]

(22a) Improved access to travel information and ticketing services in passenger stations should complement other regulatory initiatives aiming to facilitate the creation and development of telematic applications for passengers. [Am. 138]

(23) In order to ensure dependable and adequate services, it is necessary to ensure that, at all times, railway undertakings meet certain requirements in relation to good repute, financial fitness , social standards and professional competence. [Am. 27]

(24) For the protection of customers and third parties concerned it is important essential to ensure that railway undertakings are sufficiently insured against liability. Coverage of its liability in the event of accidents through guarantees provided by banks or other undertakings should also be allowed, provided that such coverage is offered under market conditions, does not result in State aid and does not contain elements of discrimination against other railway undertakings. [Am. 28]

(25) A All railway undertaking undertakings should also be required to comply with both national and Union rules on the provision of railway services, applied in a non-discriminatory manner, which are intended to ensure that it they can carry on its activity their activities in complete safety and with due full regard to health, existing obligations in relation to social conditions , health and the rights of workers and consumers on specific all stretches of track. [Ams 29 and 30]

(26) The procedures for granting, maintaining and amending operating licences for railway undertakings should be transparent and in accordance with the principle of non-discrimination.

(26a) It is still the case that, too often, the granting of licences for railway undertakings’ rolling stock is unjustifiably impeded, which distorts market access. A strong remit for the European Railway Agency in this respect is therefore appropriate. The Commission is therefore called upon, as part of the review of Regulation (EC) No 881/2004 of the European Parliament and of the Council of 29 April 2004 establishing a European Railway Agency (9) , to investigate whether the European Railway Agency’s remit can be expanded in this regard. [Am. 31]

(27) To ensure transparency and non-discriminatory access to rail infrastructure and rail-related services for all railway undertakings, all the information required to use access rights is to be published in a network statement , including formats which are accessible for people with disabilities or reduced mobility . [Am. 32]

(28) Appropriate capacity-allocation schemes for rail infrastructure coupled with competitive operators will result in a better balance of transport between modes.

(29) Encouraging optimal use of the railway infrastructure will lead to a reduction in the cost of transport to society.

(30) Appropriate charging schemes for rail infrastructure coupled with appropriate charging schemes for other transport infrastructure and competitive operators should result in an optimal balance of different transport modes on a sustainable basis.

(31) The charging and capacity allocation schemes should permit equal and non-discriminatory access for all undertakings and attempt as far as possible to meet the needs of all users and traffic types in a fair and non-discriminatory manner. The charging and capacity allocation schemes should allow fair competition in the provision of railway services.

(33) Within the framework set out by Member States, charging and capacity-allocation schemes should encourage railway infrastructure managers to optimise the use of their infrastructure.

(34) Railway undertakings should receive clear and consistent indications from capacity allocation schemes which lead them to make rational decisions.

(35) Any charging scheme will send economic signals to users. It is important that those signals to railway undertakings should be consistent and clear, and lead them to make rational and sustainable decisions. [Am. 33]

(36) In order to take into account the needs of users, or potential users, of railway infrastructure capacity to plan their business, and the needs of customers and funders, it is important that the infrastructure manager ensures that infrastructure capacity is allocated in a way which reflects the need to maintain and improve service reliability levels.

(37) It is desirable for railway undertakings and the infrastructure manager to be provided with incentives to minimise disruption and improve performance of the network.

(38) Member States should have the option of allowing purchasers of railway services to enter the capacity-allocation process directly.

(39) It is important to have regard to the business requirements of both applicants and the infrastructure manager.

(40) It is important to maximise the flexibility available to the infrastructure managers with regard to the allocation of infrastructure capacity, but this should be consistent with satisfying the applicant's reasonable requirements.

(40a) Applicants offering single-wagon-load services need to be encouraged in order to enlarge the potential market for new rail clients. It is therefore important that these applicants are being taken into account by the infrastructure manager when allocating capacity in order to allow them to fully benefit from this legal framework and enlarge the rail market share for new sectors. [Am. 34]

(41) The capacity allocation process must prevent the imposition of undue constraints on the wishes of other undertakings holding, or intending to hold, rights to use the infrastructure to develop their business.

(42) Capacity allocation and charging schemes may need to take account of the fact that different components of the rail infrastructure network may have been designed with different principal users in mind.

(43) As different users and types of users will frequently have a different impact on infrastructure capacity, the needs of different services need to be properly balanced.

(44) Services operated under contract to a public authority may require special rules to safeguard their attractiveness to users.

(45) The charging and capacity allocation schemes must take account of the effects of increasing saturation of infrastructure capacity and ultimately the scarcity of capacity.

(46) The different time-frames for planning traffic types should ensure that requests for infrastructure capacity which are made after the completion of the process for establishing the annual working timetable can be satisfied.

(47) To ensure the optimum outcome for railway undertakings, it is desirable to require an examination of the use of infrastructure capacity when the coordination of requests for capacity is required to meet the needs of users.

(48) In view of their monopolistic position, infrastructure managers, should be required to examine the available infrastructure capacity, and methods of enhancing it when the capacity allocation process is unable to meet the requirements of users.

(49) A lack of information about other railway undertakings' requests and about the constraints within the system may make it difficult for railway undertakings to seek to optimise their infrastructure capacity requests.

(50) It is important to ensure better coordination of allocation schemes in order to improve the attractiveness of rail for traffic which uses the network of more than one infrastructure manager, in particular for international traffic. In that context, it would appear desirable ultimately to create a European regulatory body. [Am. 35]

(51) It is important to minimise the distortions of competition which may arise, either between railway infrastructures or between transport modes, from significant differences in charging principles.

(52) It is desirable to define those components of the infrastructure service which are essential to enable an operator to provide a service and which should be provided in return for minimum access charges.

(53) Investment Increased investment in railway infrastructure - in particular existing infrastructure - is necessary and infrastructure charging schemes should provide incentives for infrastructure managers to make appropriate investments economically attractive and environmentally sustainable . [Am. 36]

(54) To enable the establishment of appropriate and fair levels of infrastructure charges, infrastructure managers need to record and establish the value of their assets and develop a clear understanding of cost factors in the operation of the infrastructure.

(55) It is desirable to ensure that account is taken of external costs when making transport decisions and that rail infrastructure charging can contribute to the internalisation of external costs in a coherent and balanced way across all modes of transport.

(56) It is important to ensure that charges for domestic and international traffic are such as to permit rail to meet the needs of the market; consequently infrastructure charging should be set at the cost that is directly incurred as a result of operating the train service.

(57) The overall level of cost recovery through infrastructure charges affects the necessary level of government contribution; Member States may require different levels of overall cost recovery. However, any infrastructure charging scheme should allow traffic which can at least pay for the additional cost which it imposes to use the rail network.

(58) Railway infrastructure is a natural monopoly. It is therefore necessary to provide infrastructure managers with incentives to reduce costs and manage their infrastructure efficiently.

(58a) With the aim of increasing the proportion of goods and passenger traffic carried by rail in relation to other modes of transport, it is desirable that, when internalising external costs, Member States should ensure that the differentiated levies do not have any adverse impact on the financial equilibrium of the infrastructure manager. If the infrastructure manager were nonetheless to suffer a loss due to this differentiation, it is advisable that Member States should adjust this difference, with due regard to the rules on State aid. [Am. 37]

(59) The development of railway transport should be achieved by using inter alia the Union instruments available, without prejudice to priorities already established. [Am. 38]

(60) Discounts which are granted to railway undertakings must relate to actual administrative cost savings made, in particular transaction costs savings. Discounts may also be used to promote the efficient use of infrastructure.

(61) It is desirable for railway undertakings and the infrastructure manager to be provided with incentives to minimise disruption of the network. [Am. 39]

(62) The allocation of capacity is associated with a cost to the infrastructure manager, payment for which should be required. [Am. 40]

(63) The efficient management and fair and non-discriminatory use of rail infrastructure require the establishment of a national regulatory body bodies that oversees oversee the application of the rules set out in this Directive and acts act as an appeal body, notwithstanding the possibility of judicial review. [Am. 41]

(64) Specific measures are required to take account of the specific geopolitical and geographical situation of certain Member States and the particular organisation of the railway sector in various Member States while ensuring the integrity of the internal market.

(65) The Commission should be empowered to adapt the Annexes to this Directive. Since those measures are of general scope and are designed to amend non-essential elements of this Directive, they must be adopted as delegated acts in accordance with Article 290 of the Treaty. In order to ensure proper monitoring of the rail market and good regulation with regard to the levying of charges for the use of railway infrastructure and allocation of railway infrastructure capacity, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union (TFEU) should be delegated to the Commission in respect of the criteria and procedure to be followed as the scope of market monitoring, certain elements of the network statement, certain principles of charging, the temporary reduction for European Train Control System (ETCS), certain elements of the performance scheme, the criteria to be followed for the requirements with regard to applicants for infrastructure, the schedule for the allocation process, the regulatory accounts and common principles and practices for making decisions developed by regulatory bodies. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council. [Am. 42]

(66) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (10) . In order to ensure uniform conditions for the implementation of this Directive implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers (11) . [Am. 43]

(67) In accordance with the principles of subsidiarity and proportionality as set out in Article 5 of the Treaty on European Union, the objectives of this Directive, namely to foster the development of the Union railways, to set out broad principles for granting licences to railway undertakings and to coordinate arrangements in the Member States governing the allocation of railway infrastructure capacity and the charges made for the use thereof, cannot be sufficiently achieved by the Member States on account of the manifestly international dimensions of issuing such licences and operating significant elements of the railway networks, and in view of the need to ensure fair and non-discriminatory terms for access to the infrastructure and the objectives can therefore, by reason of their trans-national implications, be better achieved by the Union. This Directive does not go beyond what is necessary to achieve those objectives.

(68) The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive change as compared with the earlier Directives. The obligation to transpose the provisions which are substantively unchanged arises under the earlier Directives.

(69) A Member State which has no railway system, and no immediate prospect of having one, would be subject to a disproportionate and pointless obligation if it had to transpose and implement this Directive. Therefore, such Member States should be exempted from that obligation.

(70) In accordance with point 34 of the Interinstitutional Agreement on better law-making (12), Member States are encouraged to draw up, for themselves and in the interests of the Union, their own tables illustrating, as far as possible, the correlation between this Directive and the transposition measures, and to make them public.

(71) This Directive should be without prejudice to the time limits set out in Annex XI, Part B within which the Member States are to comply with the preceding Directives.

(71a) Further to the resolutions of the European Parliament of 12 July 2007 (13) and 17 June 2010 (14) on the implementation of the first railway package and further to the implementation of Directive 2001/12/EC, the Commission should present a legislative proposal on the separation of the infrastructure manager and the operator by the end of 2012. As the railway sector is not fully opened until now, the Commission should present a legislative proposal on the opening up of the market by that date, [Am. 44]

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

GENERAL PROVISIONS

Article 1

Subject-matter and Scope

1. This Directive lays down:

(a) the rules applicable to the management of railway infrastructure and to rail transport activities of the railway undertakings established or to be established in a Member State as set out in Chapter II;

(b) the criteria applicable to the issuing, renewal or amendment of licences by a Member State intended for railway undertakings which are or will be established in the Union as set out in Chapter III;

(c) the principles and procedures applicable to the setting and collecting of railway infrastructure charges and the allocation of railway infrastructure capacity as set out in Chapter IV.

2. This Directive applies to the use of railway infrastructure for domestic and international rail services.

Article 2

Exclusions from the scope

1. Chapter II does not apply to railway undertakings which only operate urban, suburban or regional services.

2. Member States may exclude the following from the application of Chapter III:

(a) railway undertakings which only operate rail passenger services on local and regional stand-alone railway infrastructure;

(b) railway undertakings which only operate urban or suburban rail passenger services;

(c) railway undertakings which only operate regional rail freight services;

(d) railway undertakings which only operate freight services on privately owned railway infrastructure that exists solely for use by the infrastructure owner for its own freight operations.

2a. Member States may exclude the following from the application of Articles 6, 7, 8 and 13 and Chapter IV:

— railway undertakings which only operate rail-freight services on railway infrastructure managed by these undertakings before … (15) , and which has a gauge different from the main rail network within the Member State, and is connected to a railway infrastructure on the territory of a third country - as long as the managed infrastructure is not identified in Decision No 661/2010/EU of the European Parliament and of the Council of 7 July 2010 on Union guidelines for the development of the trans-European transport network (16) . [Ams 134 and 135]

3. Member States may exclude the following from the application of Chapter IV:

(a) local and regional stand-alone networks for passenger services on railway infrastructure;

(b) networks intended only for the operation of urban or suburban rail passenger services;

(c) regional networks which are used for regional freight services solely by a railway undertaking that is not covered under paragraph 1 until capacity on that network is requested by another applicant;

(d) privately owned railway infrastructure that exists solely for use by the infrastructure owner for its own freight operations;

(e) transport operations in the form of railway services which are carried out in transit through the Union.

Member States may decide time periods and deadlines for the schedule for capacity allocation different from those referred to in Article 43(2), Annex VIII point 4(b) and Annex IX points 3, 4 and 5, for international train paths to be established in cooperation with infrastructure managers from third countries on a network whose track gauge is different from the main rail network within the Union. [Am. 45]

3a. Member States may exclude from the application of Article 31(5) vehicles operated or intended to be operated from and to third countries, running on a network whose track gauge is different from the main rail network within the Union. [Am. 46]

4. This Directive does not apply to undertakings the train operations of which are limited to providing solely shuttle services for road vehicles through the Channel Tunnel and transport operations in the form of shuttle services for road vehicles through the Channel Tunnel, except Articles 6(1), 10, 11, 12 and 28.

5. Member States may exclude from the application of Articles 10, 11, 12 and 28 any railway service carried out in transit through the Union and which begins and ends outside the Union territory.

Article 3

Definitions

For the purpose of this Directive, the following definitions apply:

(1) ‘railway undertaking’ means any public or private undertaking licensed according to this Directive, the principal business of which is to provide services for the transport of goods and/or passengers by rail with a requirement that the undertaking ensure traction; this also includes undertakings which provide traction only;

(2) ‘infrastructure manager’ means any body or firm responsible in particular for establishing, managing and maintaining railway infrastructure, including traffic management and control-command and signalling , in compliance with applicable safety rules ; the essential functions of the infrastructure manager are: the decision making on a network or part of a network may be allocated to different bodies or firms train path allocation, including both the definition and the assessment of availability and the allocation of individual train paths and the decision making on infrastructure charging, including determination and collection of the charges, and investments in infrastructure ; [Am. 47]

(2a) ‘regulatory body’ means a body which supervises the correct application of the relevant regulations in a Member State, is not in any way involved in policy making, and is completely separate from firms, particularly the firms referred to in points 1 and 2; [Am. 48]

(3) ‘railway infrastructure’ means all the items listed in Annex I.A to Commission Regulation (EEC) No 2598/70 of 18 December 1970 specifying the items to be included under the various headings in the forms of accounts shown in Annex I to Regulation (EEC) No 1108/70 of 4 June 1970 (17) which for reasons of clarity are included in Annex I to this Directive; [Am. 49]

(4) ‘international freight service’ means a transport service where the train crosses at least one border of a Member State; the train may be joined and/or split and the different sections may have different origins and destinations, provided that all wagons cross at least one border;

(5) ‘international passenger service’ means a passenger service where the train crosses at least one border of a Member State and where the principal purpose of the service is to carry passengers between stations located in different Member States; the train may be joined and/or split, and the different sections may have different origins and destinations, provided that all carriages cross at least one border;

(6) ‘urban and suburban services’ means transport services operated to meet the transport needs of an urban centre or conurbation, together with transport needs between such a centre or conurbation and surrounding areas;

(7) ‘regional services’ means transport services operated to meet the transport needs of a one region or of border regions ; [Am. 50]

(8) ‘transit’ means crossing the territory of the Union without loading or unloading goods, and/or without picking up passengers or setting them down in the territory of the Union;

(9) ‘licence’ means an authorisation issued by a Member State to an undertaking, by which its capacity to provide rail transport services is recognised; that capacity may be limited to the provision of specific types of services;

(10) ‘licensing authority’ means the body responsible for granting licences within a Member State;

(11) ‘allocation’ means the allocation of railway infrastructure capacity by an infrastructure manager;

(12) ‘applicant’ means a railway undertaking and other persons or legal entities, such as competent authorities under Regulation (EC) No 1370/2007 and shippers, freight forwarders and combined transport operators, with a public-service or commercial interest in procuring infrastructure capacity;

(13) ‘congested infrastructure’ means an element of infrastructure for which demand for infrastructure capacity cannot be fully satisfied during certain periods even after coordination of the different requests for capacity;

(14) ‘capacity enhancement plan’ means a measure or series of measures with a calendar for their implementation which aim to alleviate the capacity constraints which led to the declaration of an element of infrastructure as ‘congested infrastructure’;

(15) ‘coordination’ means the process through which the infrastructure manager and applicants will attempt to resolve situations in which there are competing applications for infrastructure capacity;

(16) ‘framework agreement’ means a legally binding general agreement under public or private law, setting out the rights and obligations of an applicant and the infrastructure manager in relation to the infrastructure capacity to be allocated and the charges to be levied over a period longer than one working timetable period;

(17) ‘infrastructure capacity’ means the potential to schedule train paths requested for an element of infrastructure for a certain period;

(18) ‘network’ means the entire railway infrastructure managed by an infrastructure manager;

(19) ‘network statement’ means the statement which sets out in detail the general rules, deadlines, procedures and criteria for charging and capacity allocation schemes, including such other information as is required to enable applications for infrastructure capacity;

(20) ‘train path’ means the infrastructure capacity needed to run a train between two places over a given period;

(21) ‘working timetable’ means the data defining all planned train and rolling-stock movements which will take place on the relevant infrastructure during the period for which it is in force.

CHAPTER II

DEVELOPMENT OF THE UNION RAILWAYS

SECTION 1

Management independence

Article 4

Independence of railway undertakings and infrastructure managers

1. Member States shall ensure that as regards management, administration and internal control over administrative, economic and accounting matters railway undertakings directly or indirectly owned or controlled by the Member States have independent status in accordance with which they will hold, in particular, assets, budgets and accounts which are separate from those of the State.

2. While respecting the charging and allocation framework and the specific rules established by the Member States, the infrastructure manager shall be responsible for its own management, administration and internal control.

2a. The infrastructure manager shall manage its own IT services, to ensure that commercially sensitive information is adequately protected. [Am. 51]

2b. Member States shall also ensure that both railway undertakings and infrastructure managers which are not completely independent of one another are responsible for their own staff policies. [Am. 52]

Article 5

Management of the railway undertakings according to commercial principles

1. Member States shall enable railway undertakings to adjust their activities to the market and to manage those activities under the responsibility of their management bodies, in the interests of providing efficient and appropriate services at the lowest possible cost for the quality of service required.

Railway undertakings shall be managed according to the principles which apply to commercial companies, irrespective of their ownership. This shall also apply to the Public Service Obligations (PSOs) imposed on them by Member States and to public service contracts which they conclude with the competent authorities of the State.

2. Railway undertakings shall determine their business plans, including their investment and financing programmes. Such plans shall be designed to achieve the undertakings' financial equilibrium and other technical, commercial and financial management objectives; they must also indicate the means of attaining these objectives.

3. With reference to the general policy guidelines issued by each Member State and taking into account national plans and contracts (which may be multi-annual) including investment and financing plans, railway undertakings shall, in particular, be free to:

(a) establish their internal organisation, without prejudice to the provisions of Articles 7, 29 and 39;

(b) control the supply and marketing of services and fix the pricing thereof, without prejudice to Regulation (EC) No 1370/2007;

(c) take decisions on staff, assets and own procurement;

(d) expand their market share, develop new technologies and new services and adopt any innovative management techniques;

(e) establish new activities in fields associated with the railway business.

4. If the Member State directly or indirectly owns or controls the railway undertaking, its controlling rights in relation to management shall not exceed the management-related rights that national company law grants to shareholders of private joint-stock companies. Policy guidelines, as mentioned in paragraph 3, which the State may set for companies in the context of the exercise of shareholder control, may only be of a general nature and shall not interfere with specific business decisions of the management.

SECTION 2

Separation of infrastructure management and transport operations and of different types of transport operations

Article 6

Transparent separation of accounts

1. Member States shall 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 by railway undertakings and, on the other, for business relating to the management of railway infrastructure. Public funds paid to one of these two areas of activity shall not be transferred to the other.

2. Member States may also provide that this separation shall require the organisation of distinct divisions within a single undertaking or that the infrastructure and transport services shall be managed by separate entities in order to ensure the development of competition, continued investment and the cost-effectiveness of service provision of the railway sector .

3. Member States shall 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 rail freight transport services and, on the other, for activities relating to the provision of passenger transport services. Public funds paid for activities relating to the provision of transport services as public-service remits must be shown separately for each public service contract in the relevant accounts and shall not be transferred to activities relating to the provision of other transport services or any other business.

4. In order to ensure full transparency of infrastructure costs, the accounts for the different areas of activity referred to in paragraphs 1 and 3 shall be kept in a way that allows monitoring of the prohibition on transferring public funds paid to one area of activity to another compliance with those paragraphs and monitoring of the use of income from infrastructure charges, surpluses from other commercial activities of and public and private funding paid to the infrastructure manager. The revenues of the infrastructure manager shall in no way be used by a railway undertaking or a body or firm controlling a railway undertaking as this may strengthen its market position or enable it to gain economic advantages over other railway undertakings. This paragraph shall not prevent, under the supervision of the regulatory body as referred to in Article 55, reimbursement, including interest payment under market conditions, of the capital employed made available by the body or firm controlling the railway undertaking to the infrastructure manager . [Am. 53]

Article 7

Independence of essential functions of an infrastructure manager

1. Member States shall ensure that the functions determining equitable and non-discriminatory access to infrastructure, listed in Annex II, as defined by Article 3(3) are entrusted to bodies or firms that do not themselves provide any rail transport services. Regardless of organisational structure, this objective must be shown to have been achieved. However, in managing the traffic on the network, effective cooperation between railway undertakings and infrastructure managers is essential.

Annex II may be amended in the light of experience, in accordance with the procedure referred to in Article 60.

Member States may, however, assign to railway undertakings or any other body the responsibility for contributing to the development of the railway infrastructure, for example through investment, maintenance and funding.

2. Where the infrastructure manager, in its legal form, organisation or decision-making functions, is not independent of any railway undertaking, the functions described in Sections 3 and 4 of Chapter IV shall be performed respectively by a charging body and by an allocation body that are independent in their legal form, organisation and decision-making from any railway undertaking.

3. When the provisions of Sections 2 and 3 of Chapter IV refer to essential functions of an infrastructure manager, they shall be understood as applying to the charging body or the allocation body for their respective competencies.

3a. The Commission shall no later than 31 December 2012 present a proposal for a Directive containing provisions relating to the separation of infrastructure management and transport operations as well as a proposal for opening up the domestic rail passenger market which does not detract from the quality of rail transport services and safeguards PSOs. [Ams 54 and 137]

SECTION 3

Improvement of the financial situation

Article 8

Sound financing of the infrastructure manager

1. Member States shall develop their national railway infrastructure by taking into account, where necessary, the general needs of the Union. For this purpose, they shall publish not later than … (18) and after consultation of interested parties and stakeholders, including local and regional authorities concerned, trade unions, sectoral unions and users’ representatives, a rail infrastructure development strategy with a view to meeting future mobility needs based on sound and sustainable financing of the railway system. The strategy shall cover a period of at least five seven years and be renewable.

2. Whenever revenues are not sufficient to cover the financing needs of the infrastructure manager, without prejudice to the charging framework of Articles 31 and 32 of this Directive, and having due regard to Articles 93, 107 and 108 TFEU, Member States may shall also provide the infrastructure manager with financing commensurate with its tasks, the size of the infrastructure and financial requirements, in particular in order to cover new investments.

3. Within the framework of general policy determined by the State and taking into account the rail infrastructure development strategy referred to in paragraph 1, the infrastructure manager shall adopt a business plan including investment and financial programmes. The plan shall be designed to ensure optimal and efficient use, provision and development of the infrastructure while ensuring financial balance and providing means for these objectives to be achieved. The infrastructure manager shall ensure that applicants are consulted in a non-discriminatory manner before the business investment plan is approved as far as the conditions of access and use, and the nature, the provision and the development of the infrastructure are concerned . The regulatory body referred to in Article 55 shall issue a non-binding opinion on whether the business plan is appropriate to achieve these objectives discriminates between applicants .

4. Member States shall ensure that, under normal business conditions and over a period of no more than three years, the accounts of an the infrastructure manager shall over a period of no more than two years at least balance income from infrastructure charges, surpluses from other commercial activities, non refundable grants from private sources and State funding , including advance payments from the State where appropriate, on the one hand, and infrastructure expenditure on the other, including advance payments from the State sustainable financing of long-term asset renewals , where appropriate. [Am. 55]

Without prejudice to the possible long-term aim of user cover of infrastructure costs for all modes of transport on the basis of fair, non-discriminatory competition between the various modes, where rail transport is able to compete with other modes of transport, within the charging framework of Articles 31 and 32, a Member State may require the infrastructure manager to balance its accounts without State funding.

Article 9

Transparent debt relief

1. Without prejudice to the Union rules on State aids and in accordance with Articles 93, 107 and 108 TFEU, Member States shall set up appropriate mechanisms to help reduce the indebtedness of publicly owned or controlled railway undertakings to a level which does not impede sound financial management and to improve their financial situation.

2. For the purposes referred to in paragraph 1, Member States shall require a separate debt amortisation unit to be set up within the accounting departments of such undertakings.

The balance sheet of the unit may be charged, until they are extinguished, with all the loans raised by the undertaking both to finance investment and to cover excess operating expenditure resulting from the business of rail transport or from railway infrastructure management. Debts arising from subsidiaries' operations shall not be taken into account.

3. Paragraphs 1 and 2 shall not apply to debts or interest due on such debts incurred by undertakings after … (19) 15 March 2001 or the date of accession to the Union for Member States which joined the Union after 15 March. [Am. 56]

SECTION 4

Access to railway infrastructure and services

Article 10

Conditions of access to railway infrastructure

1. Railway undertakings within the scope of this Directive shall be granted, on equitable, non-discriminatory and transparent conditions, access to the infrastructure in all Member States for the purpose of operating all types of rail freight services. This shall include track access to ports.

2. Railway undertakings within the scope of this Directive shall be granted the right of access to the infrastructure in all Member States for the purpose of operating an international passenger service. Railway undertakings shall, in the course of an international passenger service, have the right to pick up passengers at any station located on the international route and set them down at another, including stations located in the same Member State.

The right of access to the infrastructure of the Member States for which the share of international carriage of passengers by train constitutes more than half of the passenger turnover of railway undertakings in that Member State shall be granted by 31 December 2011.

Following the request from the relevant competent authorities or interested railway undertakings, the relevant regulatory body or bodies referred to in Article 55 shall determine whether the principal purpose of the service is to carry passengers between stations located in different Member States.

In no event must the conditions of access to railway infrastructure result in it being impossible for passengers to obtain information on, or to purchase a ticket for, travel from one location to another, regardless of the number of railway transport operators providing, in whole or in part, passenger transport services between those two locations. [Am. 57]

The Commission may shall adopt , on the basis of the experience gained by the regulatory bodies, by … (20) implementing measures setting out the details of the procedure and criteria to be followed for the application of this paragraph. Those measures, designed to ensure the implementation of this Directive under uniform conditions, shall be adopted as implementing acts in accordance with the examination procedure referred to in Article 64(3). [Am. 58]

Article 11

Limitation of the right of access and of the right to pick up and set down passengers

1. Member States may limit the right of access provided for in Article 10 on services between a place of departure and a destination which are covered by one or more public service contracts conforming to the Union law in force. Such limitation shall not have the effect of restricting the right to pick up passengers at any station located on the route of an international service and to set them down at another, including stations located in the same Member State, except where the exercise of this right would compromise the economic equilibrium of a public service contract.

2. Whether the economic equilibrium of a public service contract would be compromised shall be determined by the relevant regulatory body or bodies referred to in Article 55 on the basis of an objective economic analysis and based on pre-determined criteria, after a request from any of the following:

(a) the competent authority or competent authorities that awarded the public service contract;

(b) any other interested competent authority with the right to limit access under this Article;

(c) the infrastructure manager;

(d) the railway undertaking performing the public service contract.

The competent authorities and the railway undertakings providing the public services shall provide the relevant regulatory body or bodies with the information reasonably required to reach a decision. The regulatory body shall consider the information provided, consulting all the relevant parties as appropriate, and shall inform the relevant parties of its reasoned decision within a pre-determined, reasonable time, and, in any case, within two months of one month from the receipt of all relevant information the request referrred to in paragraph 2 . [Am. 59]

3. The regulatory body shall give the grounds for its decision and specify the time period within which, and the conditions under which any of the following may request a reconsideration of the decision,

(a) the relevant competent authority or competent authorities;

(b) the infrastructure manager;

(c) the railway undertaking performing the public service contract;

(d) the railway undertaking seeking access.

4. The Commission may shall adopt , on the basis of the experience gained by the regulatory bodies, by … (21)implementing measures setting out the details of the procedure and criteria to be followed for the application of paragraphs 1, 2 and 3 of this Article. Those measures, designed to ensure the implementation of this Directive under uniform conditions shall be adopted as implementing acts in accordance with the examination procedure referred to in Article 64(3). [Am. 60]

5. Member States may also limit the right to pick up and set down passengers at stations within the same Member State on the route of an international passenger service where an exclusive right to convey passengers between those stations has been granted under a concession contract awarded before 4 December 2007 on the basis of a fair competitive tendering procedure and in accordance with the relevant principles of Union law. This limitation may continue for the original duration of the contract, or 15 years, whichever is shorter.

6. Member States shall ensure that the decisions referred to in paragraphs 1, 2, 3 and 5 are subject to judicial review.

Article 12

Levy on railway undertakings providing passenger services

1. Without prejudice to Article 11(2), Member States may, under the conditions laid down in this Article, authorise the authority responsible for rail passenger transport to impose a levy on railway undertakings providing passenger services for the operation of routes which fall within the jurisdiction of that authority and which are operated between two stations in that Member State.

In that case, railway undertakings providing domestic or international rail passenger transport services shall be subject to the same levy on the operation of routes which fall within the jurisdiction of that authority.

2. The levy is intended to compensate the authority for PSOs laid down in public service contracts awarded in accordance with Union law. The revenue raised from such a levy and paid as compensation shall not exceed what is necessary to cover all or part of the cost incurred in the relevant PSOs taking into account the relevant receipts and a reasonable profit for discharging those PSOs.

3. The levy shall be imposed in accordance with Union law, and shall respect in particular the principles of fairness, transparency, non-discrimination and proportionality, in particular between the average price of the service to the passenger and the level of the levy. The total levies imposed pursuant to this paragraph shall not endanger the economic viability of the rail passenger transport service on which they are imposed.

4. The relevant authorities shall keep the information necessary to ensure that the origin of the levies and their use can be traced. Member States shall provide the Commission with this information.

The Commission shall prepare a comparative analysis of the methods for the setting of the amounts of the levies in the Member States in order to establish a uniform method of calculation to determine the amount of the levies. [Am. 61]

Article 13

Conditions of access to services

1. Infrastructure managers shall supply to all railway undertakings shall, on a non-discriminatory basis, be entitled to the minimum access package laid down in point 1 of Annex III.

2. The services Operators of service facilities shall supply to all railway undertakings access, including track access, to the facilities referred to in point 2 of Annex III, shall be supplied by all operators of service and to the services supplied in these facilities in a non-discriminatory manner under the supervision of the regulatory body as provided under Article 56 .

Where the operator of the a service facility referred to in point 2 of Annex III belongs to a body or firm which is also active and holds a dominant position in at least one of the railway transport services markets for which the facility is used, the operator shall be organised in such a way that it is independent, in legal, organisational and decision-making terms, of this body or firm. The operator of a service facility and this body or firm shall have separate accounts, including separate balance sheets and profit and loss accounts.

Requests by railway undertakings for access to the service facility shall be answered within a fixed time limit set by the national regulatory body and may only be rejected if there are viable alternatives allowing them to operate the freight or passenger service concerned on the same route under economically acceptable conditions. The burden of proving for the existence of a When refusing access to its service facility, the operator of the service facility shall propose an economically and technically viable alternative lies with the operator of the service facility and justify its refusal in writing. The refusal shall not oblige the operator of the service facility to make investments in resources or facilities in order to accommodate all requests from railway undertakings .

When the operator of the service facility encounters conflicts between different requests, he it shall attempt the best possible matching of all requirements. If no viable alternative is available, and it is not possible to accommodate all requests for capacity for the relevant facility on the basis of demonstrated needs, the regulatory body referred to in Article 55 shall on its own initiative or on the basis of a complaint by an applicant take appropriate action , bearing in mind the needs of all stakeholders concerned, to ensure that an appropriate part of the capacity is devoted to railway undertakings other than the ones which are part of the body or firm to which the facility operator also belongs. However newly built maintenance and other technical facilities developed for specific new high-speed rolling stock , referred to in Commission Decision 2008/232/EC of 21 February 2008 concerning a technical specification for interoperability relating to the rolling stock sub-system of the trans-European high-speed rail system (22), may be reserved to the use of one railway undertaking for a period of five ten years from the start of their operation.

Where the service facility has not been in use for at least two consecutive years one year and interest by railway undertakings for access to this facility has been expressed to the operator of such a facility on the basis of demonstrated needs, its owner shall publicise the operation of the facility as being for lease or rent for use for activities related to the railway sector unless the operator of such facility demonstrates that an on-going process of reconversion prevents its use by a railway undertaking .

3. Where the infrastructure manager operator of the service offers any of the range of services described in point 3 of Annex III as additional services, he shall supply them upon request to railway undertakings in a non-discriminatory manner.

4. Railway undertakings may request a further range of ancillary services, listed in point 4 of Annex III, from the infrastructure manager or from other suppliers operators of service facility . The infrastructure manager is not obliged to supply these services.

5. Annex III may be amended in the light of experience in accordance with the procedure referred to in Article 60. [Ams 62 and 162]

SECTION 5

Cross-border agreements

Article 14

General principles for cross-border agreements

1. Any provisions contained in cross-border agreements between Member States which discriminate between shall ensure that the cross-border agreements they conclude do not discriminate against certain railway undertakings, or which restrict constitute restrictions on the freedom of railway undertakings to operate cross-border servicesare hereby superseded. [Am. 63]

These agreements shall be notified to the Commission. The Commission shall examine the compliance of such agreements with this Directive and decide in accordance with the advisory procedure referred to in Article 64(2) whether the related agreements may continue to apply. The Commission shall communicate its decision to the European Parliament, the Council and the Member States.

2. Without prejudice to the division of competences between the Union and the Member States, in accordance with Union law, the negotiation and implementation of cross-border agreements between Member States and third countries shall be subject to a cooperation procedure between Member States and the Commission.

The Commission may adopt implementing measures setting out the details of the specifying the procedural modalities of the cooperation procedure to be followed for the application of this paragraph referred to in the first subparagraph . Those implementing measures, designed to ensure the implementation of this Directive under uniform conditions shall be adopted as implementing acts in accordance with Article 63(3) the advisory procedure referred to in Article 64(2) . [Am. 64]

SECTION 6

Monitoring tasks of the Commission

Article 15

Scope of market monitoring

1. TheCommission shall make the necessary arrangements to monitor technical , social and and economic conditions and market developments , including the evolution of employment, as well as compliance with relevant Union law on European rail transport.

2. In this context, the Commission shall closely involve representatives of the Member States , including representatives of the regulatory bodies referred to in Article 55 , and of the sectors concerned in its work, including local and regional authorities concerned, the railways sector's social partners and users, so that they are able better to monitor the development of the railway sector and the evolution of the market, to assess the effect of the measures adopted and to analyse the impact of the measures planned by the Commission. The Commission shall also involve the European Railway Agency where appropriate.

3. The Commission shall monitor the use of the networks and the evolution of framework conditions in the rail sector, in particular infrastructure charging, capacity allocation, investments in railway infrastructure, developments as regards prices and the quality of rail transport services, rail transport services covered by public service contracts, licensing , the degree of market opening, employment and social conditions and the degree of harmonisation , particularly in the field of social rights, between and within Member States. It shall ensure active cooperation between the appropriate regulatory bodies in the Member States.

4. The Commission shall report on a regular basis every two years to the European Parliament and the Council on:

(a) the evolution of the internal market in rail services and rail-related services including the degree of market opening ;

(b) the framework conditions, including for public passenger transport services by rail;

(ba) the development of employment, working and social conditions in the sector;

(c) the state of the European railway network;

(d) the utilisation of access rights;

(e) barriers to more effective rail services;

(f) infrastructure limitations;

(g) the need for legislation.

5. For the purposes of the Commission's market monitoring, Member States shall supply on an annual basis the following information and as indicated in Annex IV, as well as all other necessary data requested by the Commission:

(a) the evolution of rail transport performance and compensation for PSOs;

(b) the degree of market opening and fair competition in each Member State, and the modal share of railway undertakings in total transport performance;

(c) the resources and activities of regulatory bodies dedicated to their function as appeal bodies;

(d) the relevant developments as regards restructuring of the incumbent railway undertaking and adoption/implementation of national transport strategies over the previous year;

(e) the important training initiatives/measures in the field of railway transport taken in a Member State during the previous year;

(f) the employment and the social conditions of railway undertakings, infrastructure managers and of other companies active in the railway sector at the end of the previous year;

(g) the investments in the high-speed rail network during the previous year;

(h) the length of the railway network at the end of the previous year;

(i) the track access charges during the previous year;

(j) the existence of a performance scheme set up in accordance with Article 35 of this Directive;

(k) the number of active licences issued by the competent national authority;

(l) the status of European Rail Traffic Management System (ERTMS) deployment;

(m) the number of incidents, accidents and serious accidents as defined by Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community's railways (23) which occurred on the network during the previous year;

(n) other relevant developments;

(o) the development of the maintenance markets and the degree of opening of the market for maintenance services.

Annex IV may be amended in the light of experience in order to update the information needed for the rail market monitoring in accordance with the procedure referred to in Article 60 Article 60a . [Am. 65]

CHAPTER III

LICENSING OF RAILWAY UNDERTAKINGS

SECTION 1

Body responsible for issuing licence

Article 16

Body responsible for railway licensing

Each Member State shall designate the body responsible for issuing licences and for carrying out the obligations imposed under this Chapter.

The designated body shall not provide rail transport services itself and shall be independent of firms or entities that do so.

SECTION 2

Conditions for obtaining a licence

Article 17

General requirements

1. A railway undertaking shall be entitled to apply for a licence in the Member State in which it is established, provided that Member States or nationals of Member States own in total more than 50 % of this railway undertaking and effectively control it, whether directly or indirectly through one or more intermediate undertakings, except where an agreement with a third country to which the Union is a party provides otherwise.

2. Member States shall not issue licences or extend their validity where the requirements of this Chapter are not complied with.

3. A railway undertaking which fulfils the requirements imposed under this Chapter shall be authorised to receive a licence.

4. No railway undertaking shall be permitted to provide the rail transport services covered by this Chapter unless it has been granted the appropriate licence for the services to be provided.

However, such a licence shall not, in itself, entitle the holder to access the railway infrastructure.

5. The Commission may shall adopt implementing measures setting out the details of the procedure specifying the procedural modalities to be followed for the application of this Article including the use issuing of licences and setting up of a common template for the licence in accordance with the requirements set out in Section 2 . Those implementing measures, designed to ensure the implementation of this Directive under uniform conditions shall be adopted as implementing acts in accordance with Article 63(3) the advisory procedure referred to in Article 64(2) . [Am. 66]

Article 18

Conditions for obtaining a licence

A railway undertaking must be able to demonstrate to the licensing authorities of the Member State concerned before the start of its activities that it will at any time be able to meet the requirements relating to good repute, financial fitness, professional competence and cover for its civil liability listed in Articles 19 to 22.

For these purposes, each applicant shall provide all relevant information.

Article 19

Requirements relating to good repute

Member States shall define the conditions under which the requirement of good repute is met to ensure that an applicant railway undertaking or the persons in charge of its management:

(a) have not been convicted of serious criminal offences, including offences of a commercial nature;

(b) have not been declared bankrupt;

(c) have not been convicted of serious offences against specific legislation applicable to transport;

(d) have not been convicted of serious or repeated any failure to fulfil social or employment law obligations, including obligations under safety, occupational safety and health legislation, and customs law obligations in the case of a company seeking to operate cross-border freight transport subject to customs procedures. [Am. 67]

Article 20

Requirements relating to financial fitness

1. The requirements relating to financial fitness shall be met when an applicant railway undertaking can demonstrate that it will be able to meet its actual and potential obligations, established under realistic assumptions, for a period of 12 months. The licensing authority shall verify financial fitness by means of the railway undertaking's annual accounts or, in the case of applicant undertakings unable to present annual accounts, a balance sheet. [Am. 68]

2. For these purposes, each applicant shall give at least the provide detailed particulars listed in Annex V. on the following aspects:

(a) available funds, including the bank balance, pledged overdraft provisions and loans;

(b) funds and assets available as security;

(c) working capital;

(d) relevant costs, including purchase costs of payments to account for vehicles, land, buildings, installations and rolling stock;

(e) charges on an undertaking's assets;

(f) taxes and social security contributions. [Am. 69]

3. The licensing authority shall not consider an applicant financially fit if considerable arrears of taxes or social security are owed as a result of the undertaking's activity. [Am. 70]

4. The licensing authority may in particular require the submission of an audit report and suitable documents from a bank, public savings bank, accountant or auditor. Those documents must include information concerning the aspects referred to in points (a) to (f) of paragraph 2 of this Article. [Am. 71]

Annex V may be amended in the light of experience in accordance with the procedure referred to in Article 60. [Am. 72]

Article 21

Requirements relating to professional competence

The requirements relating to professional competence shall be met when an applicant railway undertaking can demonstrate that it has or will have a management organisation which possesses the knowledge or experience necessary to exercise safe and reliable operational control and supervision of the type of operations specified in the licence. The undertaking shall also demonstrate at the time of the application that it holds a safety certificate as defined in Article 10 of Directive 2004/49/EC. [Am. 73]

Article 22

Requirements relating to civil liability

Without prejudice to Chapter III of Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers' rights and obligations (24), a railway undertaking shall be adequately insured , or have adequate guarantees under market conditions for cover, in accordance with national and international law, of its liabilities in the event of accidents, in particular in respect of freight, mail and third parties. The level of coverage deemed adequate may be differentiated to take into account the specificities of services, in particular for railway operations for cultural or heritage purposes running on the rail network for the general public. [Am. 140]

SECTION 3

Validity of the licence

Article 23

Spatial and temporal validity

1. A licence shall be valid throughout the territory of the Union.

2. A licence shall be valid as long as the railway undertaking fulfils the obligations laid down in this Chapter. A licensing authority may, however, make provision for a regular review. If so, the review shall be made at least every five years.

3. Specific provisions governing the suspension or revocation of a licence may be incorporated in the licence itself.

Article 24

Temporary licence, suspension and approval

1. If there is serious doubt that a railway undertaking which it has licensed complies with the requirements of Sections 2 and 3 of this Chapter, and in particular those of Article 18, the licensing authority may, at any time, check whether that railway undertaking does in fact comply with those requirements.

Where a licensing authority is satisfied that a railway undertaking can no longer meet the requirements, it shall suspend or revoke the licence.

2. Where the licensing authority of a Member State is satisfied that there is serious doubt regarding compliance with the requirements laid down in this Chapter on the part of a railway undertaking to which a licence has been issued by the licensing authority of another Member State, it shall inform the latter authority without delay.

3. Notwithstanding paragraph 1, where a licence is suspended or revoked on grounds of non-compliance with the requirement for financial fitness, the licensing authority may grant a temporary licence pending the re-organisation of the railway undertaking, provided that safety is not jeopardised. A temporary licence shall not, however, be valid for more than six months after its date of issue.

4. When a railway undertaking has ceased operations for six months or has not started operations within six months of the grant of a licence, the licensing authority may decide that the licence shall be resubmitted for approval or be suspended.

As regards the start of activities, the railway undertaking may ask for a longer period to be fixed, taking account of the specific nature of the services to be provided.

5. In the event of a change affecting the legal situation of an undertaking and, in particular, in the event of a merger or takeover, the licensing authority may decide that the licence shall be resubmitted for approval. The railway undertaking in question may continue operations, unless the licensing authority decides that safety is jeopardised. In that event, the grounds for such a decision shall be given.

6. Where a railway undertaking intends significantly to change or extend its activities, its licence shall be resubmitted to the licensing authority for review.

7. A licensing authority shall not permit a railway undertaking against which bankruptcy or similar proceedings have commenced to retain its licence if that authority is convinced that there is no realistic prospect of satisfactory financial restructuring within a reasonable period of time.

8. When a licensing authority issues, suspends, revokes or amends a licence, the Member State concerned shall immediately inform the Commission thereof. The Commission shall inform the other Member States forthwith.

Article 25

Procedure for granting licences

1. The procedures for granting licences shall be made public by the licensing authority concerned, which shall inform the European Railway Agency thereof.

2. The licensing authority shall take a decision on an application as soon as possible, but not more than three months after all relevant information, notably the particulars referred to in Annex V, has been submitted. The licensing authority shall take into account all the available information. The decision shall be communicated to the applicant railway undertaking without delay. A refusal shall state the grounds on which it is based.

3. Member States shall ensure that the licensing authority's decisions are subject to judicial review.

CHAPTER IV

LEVYING OF CHARGES FOR THE USE OF RAILWAY INFRASTRUCTURE AND ALLOCATION OF RAILWAY INFRASTRUCTURE CAPACITY

SECTION 1

General principles

Article 26

Effective use of infrastructure capacity

Member States shall ensure that charging and capacity allocation schemes for railway infrastructure follow the principles set down in this Directive and thus allow the infrastructure manager to market and make optimum effective use of the available infrastructure capacity.

Article 27

Network statement

1. The infrastructure manager shall, after consultation with the interested parties, including the regulatory body referred to in Article 55, develop and publish a network statement obtainable against payment of a fee which shall not exceed the cost of publication of that statement. The network statement shall be published in at least two official languages of the Union , one of which shall be English . The content of the network statement shall be made available free of charge in electronic format through the web portal of the European Railway Agency. [Am. 75]

2. The network statement shall set out the nature of the infrastructure which is available to railway undertakings. It shall contain the following information setting out the conditions for access to the relevant railway infrastructure and to service facilities. The content of the network statement is laid down in Annex VI.:

(a) a section setting out the nature of the infrastructure which is available to railway undertakings and the conditions of access to it;

(b) a section on charging principles and tariffs;

(c) a section on the principles and criteria for capacity allocation. Operators of service facilities which are not controlled by the infrastructure manager shall supply information on charges for gaining access to the facility and for the provision of services, and information on technical access conditions for inclusion in the network statement;

(d) a section on information relating to the application for a licence referred to in Article 25 and rail safety certificates issued in accordance with Directive 2004/49/EC;

(e) a section on information about procedures for dispute resolution and appeal relating to matters of access to rail infrastructure and services and to the performance scheme referred to in Article 35;

(f) a section on information on access to and charging for service facilities referred to in Annex III;

(g) a model agreement for the conclusion of framework agreements between an infrastructure manager and an applicant in accordance with Article 42.

The information in the network statement shall be annually updated and consistent with or refer to the rail infrastructure registers to be published in accordance with Article 35 of Directive 2008/57/EC of the European Parliament and of the Council of 17 June 2008 on the interoperability of the rail system within the Community (25) . Infrastructure that is not appropriately maintained and its quality declining shall be reported in a timely manner to users;

The information in points (a) to (g) may be amended and specified by the Commission in accordance with Annex VI in the light of experience following the procedure referred to in Article 60a. [Am. 76]

Annex VI may be amended in the light of experience in accordance with the procedure referred to in Article 60a.

3. The network statement shall be kept up to date and amended as necessary.

4. The network statement shall be published no less than four months in advance of the deadline for requests for infrastructure capacity.

Article 28

Agreements between railway undertakings and infrastructure managers

Any railway undertaking engaged in rail transport services shall conclude the necessary agreements under public or private law with the infrastructure managers of the railway infrastructure used. The conditions governing such agreements shall be non-discriminatory and transparent, in accordance with the provisions of this Directive.

SECTION 2

Infrastructure and services charges

Article 29

Establishing, determining and collecting charges

1. Member States shall establish a charging framework while respecting the management independence laid down in Article 4.

Subject to the condition of management independence, Member States shall also establish specific charging rules or delegate such powers to the infrastructure manager.

Member States shall ensure that the charging framework and charging rules are published in the network statement.

Without prejudice to the management independence laid down in Article 4 and provided that this right has been directly conferred by constitutional law at least two years before the date of entry into force of this Directive, the national parliament may have the right to scrutinise and, when appropriate, review the level of charges determined by the infrastructure manager. Such review, if any, shall ensure that charges comply with this Directive, the established charging framework and charging rules. [Am. 141/rev]

The infrastructure manager shall determine and collect the charge for the use of infrastructure.

2. The Member States shall ensure that infrastructure managers cooperate to enable the application of efficient charging schemes for the operation of train services which cross more than one infrastructure network. Infrastructure managers shall, in particular, aim to guarantee the optimal competitiveness of international rail services and ensure the efficient use of the railway networks.

Member States shall ensure that representatives of infrastructure managers whose charging decisions have an impact on other infrastructures associate to jointly coordinate the charging or to charge for the use of relevant infrastructure at international level. [Am. 77]

3. Except where specific arrangements are made under Article 32(2), infrastructure managers shall ensure that the charging scheme in use is based on the same principles over the whole of their network.

4. Infrastructure managers shall ensure that the application of the charging scheme results in equivalent and non-discriminatory charges for different railway undertakings that perform services of an equivalent nature in a similar part of the market and that the charges actually applied comply with the rules laid down in the network statement.

5. An infrastructure manager shall respect the commercial confidentiality of information provided to it by applicants.

Article 30

Infrastructure cost and accounts

1. Infrastructure managers shall, with due regard to safety and to maintaining and improving the quality of the infrastructure service, be given incentives to reduce the costs of providing infrastructure and the level of access charges.

2. Member States shall ensure that paragraph 1 is implemented by means of a contractual agreement between the competent authority and the infrastructure manager covering a period of not less than five seven years which provides for State funding.

3. The terms of the contract and the structure of the payments agreed to provide funding to the infrastructure manager shall be agreed in advance to cover the whole of the contractual period.

Basic principles and parameters of such agreements are set out in Annex VII which may be amended in the light of experience in accordance with the procedure referred to in Article 60.

Member States shall consult interested parties at least one month before the agreement is signed and publish it within one month of its conclusion.

The infrastructure manager shall ensure that its business plan is consistent with the provisions of the contractual agreement.

The regulatory body referred to in Article 55 shall assess the appropriateness of the envisaged medium to long-term income of the infrastructure manager for meeting the agreed performance targets and shall make relevant recommendations, at least one month before the agreement is signed.

The competent authority shall give justifications to the regulatory body if it intends to deviate from these recommendations. [Am. 78]

4. Infrastructure managers shall develop and maintain an inventory of assets that they manage, which shall contain their current valuation as well as details of expenditure on renewal and upgrading of the infrastructure.

5. The infrastructure manager and the operator of service facilities shall establish a methodology for apportioning costs to the different services offered in accordance with Annex III and to types of rail vehicles, based on the best available understanding of cost causation and the principles of charging referred to in Article 31. Member States may require prior approval. This method shall be updated from time to time to match best practice internationally.

Article 31

Principles of charging

1. Charges for the use of railway infrastructure and of service facilities shall be paid to the infrastructure manager and to the service facility operator respectively and used to fund their business.

2. Member States shall require the infrastructure manager and the service facility operator to provide the regulatory body with all necessary information on the charges imposed. The infrastructure manager and the service facility operator must, in this regard, be able to demonstrate to each railway undertaking that infrastructure and service charges actually invoiced to the railway undertaking pursuant to Articles 30 to 37, comply with the methodology, rules, and, where applicable, scales laid down in the network statement.

3. Without prejudice to paragraphs 4 or 5 of this article or to Article 32, the charges for the minimum access package shall be set at the cost that is directly incurred as a result of operating the train service, according to point 1 of Annex VIII.

Point 1 of Annex VIII may be amended in the light of experience in accordance with the procedure referred to in Article 60 Article 60a .

4. The infrastructure charges may include a charge which reflects the scarcity of capacity of the identifiable section of the infrastructure during periods of congestion.

5. When charging for the cost of noise effects is allowed by Union legislation for road freight transport, the Infrastructure charges shall be modified to take account of the cost of noise effects caused by the operation of the train in accordance with point 2 of Annex VIII. Such modification of infrastructure charges shall allow for compensation for investments in retrofitting rail vehicles with the most economically viable low-noise braking technology available. Member States shall ensure that the introduction of such differentiated charges shall not have any adverse effect on the financial equilibrium of the infrastructure manager. The rules for European co-funding shall be modified so as to allow for the co-funding for retrofitting rolling stock to reduce noise emissions as is already the case for ERTMS.

Point 2 of Annex VIII may be amended in the light of experience, in accordance with the procedure referred to in Article 60 Article 60a , in particular to specify the elements of differentiated infrastructure charges provided that this does not lead to a distortion of competition within the rail transport sector or with road transport to the detriment of rail transport .

The infrastructure charges may be modified to take account of the cost of other environmental effects caused by the operation of the train not referred to in point 2 of Annex VIII. Any such modification, which may bring about the internalisation of external costs of air pollutants emitted as a result of operating the train service, shall be differentiated according to the magnitude of the effect caused.

Charging of other environmental costs which results in an increase in the overall revenue accruing to the infrastructure manager shall however be allowed only if such charging is allowed applied by Union law on road freight transport. If the charging of these environmental costs for road freight transport is not allowed by Union law, such modification shall not result in any overall change in revenue to the infrastructure manager.

If charging for environmental costs generates additional revenue, it shall be for Member States to decide how the revenue is to be used for the benefit of transport systems . The relevant authorities shall keep the necessary information to ensure that the origin of the charging of environmental costs and its use can be traced. Member States shall provide the Commission with this information on a regular basis. [Am. 79]

6. To avoid undesirable disproportionate fluctuations, the charges referred to in paragraphs 3, 4 and 5 may be averaged over a reasonable spread of train services and times. Nevertheless, the relative magnitudes of the infrastructure charge shall be related to the costs attributable to the services.

7. The supply of services referred to in point 2 of Annex III shall not be covered by this Article. In any event, the charge imposed for such services shall not exceed the cost of providing it, plus a reasonable profit.

8. Where services listed in points 3 and 4 of Annex III as additional and ancillary services are offered by only one supplier the charge imposed for such a service shall not exceed the cost of providing it, plus a reasonable profit.

9. Charges may be levied for capacity used for the purpose of infrastructure maintenance. Such charges shall not exceed the net revenue loss to the infrastructure manager caused by the maintenance.

10. The operator of the facility for supply of the services referred to in points 2, 3 and 4 of Annex III, shall provide the infrastructure manager with the information on charges to be included in the network statement in accordance with Article 27.

Article 32

Exceptions to charging principles

1. In order to obtain full recovery of the costs incurred by the infrastructure manager a Member State may authorise the infrastructure manager , if the market can bear this, levy mark-ups on the basis of efficient, transparent and non-discriminatory principles, while guaranteeing optimal competitiveness in particular of international rail freight of the railway sector . The charging system shall respect the productivity increases achieved by railway undertakings.

The level of charges must not, however, exclude the use of infrastructure by market segments which can pay at least the cost that is directly incurred as a result of operating the railway service, plus a rate