[pic] | EUROPEAN COMMISSION |

Brussels, 17.9.2010

COM(2010) 475 final

2010/0253 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

establishing a single European railway area

(Recast)

SEC(2010) 1043SEC(2010) 1042

EXPLANATORY MEMORANDUM

CONTEXT OF THE PROPOSAL

Background

After enjoying great prosperity during the 19th century and the first half of the 20th century, the railway sector fell into decline due to the increasing popularity of cars and air travel from 1970 onwards. In order to halt this decline the European Community has adopted a number of legislative measures aimed at reviving the railways by gradually creating a “single European railway area”. The first railway package presented by the Commission in 1998 and adopted at the end of 2000 signalled the desire of both national and European policymakers to reform the regulatory framework to ensure the railway sector's integration at European level and to enable it to face up to the competition from other transport modes on the best possible terms.

The first railway package consists of three Directives:

- Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001[1], which amended a pre-existing Council Directive of 29 July 1991 on the development of the Community’s railways[2];

- Directive 2001/13/EC of the European Parliament and of the Council of 26 February 2001[3], which amended a pre-existing Council Directive of 27 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].

The entry into force of these Directives in 2003 has had a far-reaching impact on how to do rail business in the European Union (EU). There are two distinct actors – railway undertakings and infrastructure managers. Railway undertakings licensed in accordance with EU criteria should be able to access railway infrastructure on fair, non-discriminatory terms and to offer pan-European services. Infrastructure managers may charge for the use of their networks and must supply a minimum level of service including access to certain facilities. The Directives define access rights for rail freight and passenger services and certain safeguards with respect to the management of railway undertakings to ensure that competitors have non-discriminatory access to the network. The Directives also provide guidance on how independent national rail regulatory bodies should be set up in order to ensure non-discriminatory access and to monitor competition on the rail markets.

With this new regulatory framework, the railway industry has managed to stabilise the volumes transported and, in some Member States, to recover market share from the roads. The fall in employment had also slowed down before the onset of the crisis. However, the growth of rail freight in terms of tonnes transported during recent years has not been strong enough to recover the market share of 2.3 percentage points lost between 1995 and 2003. If the observed trend continues, the overall modal share of rail freight will not improve. For rail passenger transport the decline over the last three decades has been less dramatic than for freight. Rail's share of the total passenger transport market decreased from 10.2% in 1970 to 6.1% in 2003 in the EU-15 (in terms of passenger-kilometres). In the EU-27, the share of rail passenger transport dropped from 6.6% in 1995 to 5.9% in 2003. Since then it has recovered slightly and stabilised.

The current economic climate is exacerbating the weak performance of the rail market. Freight services (including rail) have recently suffered a significant drop in activity (between 20% and 50% depending on the market segment) and passenger service activity has also slowed. Stakeholders have indicated that national recovery plans are not producing investment as rapidly as had been hoped and that major job cuts are anticipated, particularly in the freight sector.

Problems to be addressed

The development of the railway sector and its capacity to compete viably with other modes of transport are still hampered by serious problems related to (a) inadequate financing and pricing of the infrastructure, (b) persistent barriers to competition and (c) lack of appropriate regulatory oversight.

(a) The level of investment in rail infrastructure development and maintenance remains insufficient in a large number of Member States. In many cases, the quality of the existing infrastructure continues to decline. The underinvestment observed at national level is partly due to the absence of clear investment plans and long-term strategies. Poor maintenance, slow modernisation and increasing bottlenecks on the network have a direct effect on rail undertakings as they fail to keep pace with other modes of transport and to attract investment. The inadequate level and structure of infrastructure access charges in many Member States tends to aggravate these difficulties.

(b) Competition between railway undertakings is limited by various factors. Insufficient transparency of market conditions and a poorly functioning institutional framework continue to make it difficult for new entrants to provide competitive rail services. Another important element is the persistent discrimination faced by new entrants in gaining access to rail- related services which are often owned and operated by the incumbent rail undertakings. And discrimination can still be found in the conditions of access to the infrastructure (path allocation and charging).

The problems mentioned above are aggravated by difficulties which regulatory bodies encounter in carrying out their oversight duties, in particular to ensure non-discrimination between rail undertakings and to check whether charging principles are properly applied or whether separation of accounts is fully respected. These difficulties are often due to a lack of qualified staff and other resources. In several cases, insufficient independence from the infrastructure managers, the incumbent rail undertaking or the ministry which exerts ownership rights over the incumbent operator is an aggravating factor.

Full implementation of the existing legislation will contribute very substantially towards resolving these problems. The Commission has therefore moved to ensure that the existing legislation is enforced by bringing infringement procedures against Member States who have incorrectly or incompletely transposed it.

However there are weaknesses, ambiguities and gaps in the current regulatory framework which need to be addressed to meet fully the initial objectives of the legislation. A recast of the first railway package is considered by the Commission as one of the ways to tackle them.

OBJECTIVES OF THE PROPOSAL

General Objectives

The main objective of the European Union’s transport policy is to establish an internal market by developing common policies to promote a high degree of competitiveness and the harmonious, balanced and sustainable development of economic activities. Complementing and strengthening existing measures adopted at EU level in the rail sector, the proposal to recast the first railway package will contribute to this objective by facilitating the integration and development of the European rail market.

The creation of a genuine internal market is fundamental to the revitalisation of the railway sector and will help to boost the competitiveness of rail freight and passenger transport services, thereby increasing their attractiveness and modal share. Because of rail transport’s higher energy efficiency (especially when compared to road transport), a shift in the modal share of transport from road to rail will result in fewer CO2 emissions and reduce other pollutants.

Horizontal Objectives

The aim of simplifying, clarifying and modernising the regulatory environment in Europe is central to the work of the Commission. With this cross-cutting strategic objective in mind, the Commission is pursuing a far-reaching Better Regulation agenda with a view to making progress towards the Europe 2020 strategy.

Legal simplification through consolidation and merger is the first horizontal objective underpinning this recast initiative. Elimination of existing cross-references of the three Directives through restructuring and merging into a single rail access code would be instrumental in attaining this objective.

Secondly, the Commission considers that clarification of some provisions of rail access legislation would facilitate proper transposition and efficient implementation of European Union law in all Member States. As noted above, some provisions of the first railway package are ambiguous and do not sufficiently define means of implementation.

Finally, there is a need to modernise the legislation by eliminating outdated provisions (which were historically relevant prior to full market-opening and may be connected to the traditional fusion of operator and infrastructure manager) and by introducing new provisions which respond more appropriately to the functioning of the market today (for instance, relating to new entrants and full or partial State ownership of infrastructure).

Specific Objectives

The proposed recast of the first railway package encompasses (a) the adequate financing of and charging for rail infrastructures, (b) the conditions of competition on the railway market, and (c) the organisational reforms needed to ensure appropriate supervision of the market.

(a) Ensuring adequate, transparent and sustainable funding of the infrastructure and, thanks to better predictability of the infrastructure development and access conditions, facilitating investments by railway undertakings, together with a more appropriate level and structure of infrastructure charging, improving the competitiveness of rail operators vis-à-vis other transport modes and contributing to the internalisation of environmental costs constitute the first objective of the proposed recast.

(b) Avoiding distortions of competition due to the use of State funds for commercial activities, preventing commercially sensitive information from being collected by incumbents and used against their potential competitors, eliminating conflicts of interest in the management of rail-related services and increasing their availability for new entrants as well as increasing market transparency to ensure effective competition are a second set of objectives.

(c) Regarding regulatory oversight, the proposed recast intends to ensure that regulatory bodies are in a position to carry out their duties effectively, thanks to reinforced independence, extended competencies, and additional means at their disposal.

IDENTIFICATION OF THE PROPOSED MODIFICATIONS

Preliminary Screening

Based on extensive research and evaluation, the Commission identified a range of measures that could potentially contribute to achieving each of the objectives outlined in the above section. On the basis of studies carried out over several years[6] and taking into account input from stakeholders, the Commission came up with 37 measures. A thorough pre-screening of these 37 measures resulted in the selection of a package of 26 measures. The pre-screening process involved two steps – first, taking into account the results of the stakeholders’ consultation and second, carrying out an independent assessment of the measures based on five criteria (effectiveness, implementation time, efficiency, administrative feasibility and consistency with the existing legal framework).

External expertise and stakeholders’ consultation

Following the decision to carry out an impact assessment for an initiative to recast the first railway package, an external study was commissioned to PriceWaterhouseCoopers Advisory (PWC) in the context of DG TREN’s Framework Contract TREN/A2/143-2007 regarding Impact Assessment and Evaluations.

A stakeholders’ consultation involving almost 380 organisations from the EU-25 (EU-27 excluding Cyprus and Malta, which have no railways) was carried out in the context of the external study undertaken by PWC. Stakeholders were asked to highlight specific barriers that, from their point of view, hinder the full opening of the international rail market and the development of rail-related services. In addition, stakeholders were invited to identify areas of the EU legislative framework that could be improved and to give their opinions on the potential effectiveness of the measures envisaged.

Impact Assessment

Based on the external study mentioned above as well as the conclusions of the stakeholders' consultation process, the Commission made a quantitative and qualitative assessment of the impact of the whole package of pre-selected measures. Where they had not previously been subject to impact assessment, this evaluation examined alternative options for the new measures envisaged to modernise the existing regulatory framework.

Subsidiarity

Problems affecting the railway sector involve transnational aspects that require action to be taken at EU level. The lack of coordination in the relationships between Member States and other actors reduces the efficiency of international rail transport, risking a shift from rail traffic to road transport which would result in increased congestion and pollution. Clarification of the regulatory framework for rail market access in order to facilitate market entry and competition as well as to develop rail service markets including those linked to rail transport provision can be better achieved by the Union than by Member States individually.

COMMENTS ON THE MAIN MODIFICATIONS PROPOSED

Separation of accounts (Article 6)

The new provisions clarify the necessary separation in railway undertaking accounts to ensure appropriate transparency. They make it compulsory to have separate accounts for activities that enjoy a legal monopoly in contrast to activities that are subject to competition. This measure is a safeguard against State funds devoted to unprofitable activities being shifted to subsidise commercial activities and is thereby necessary for avoiding distortion of competition.

Independence of essential functions (Article 7)

The proposed deletion abolishes the possibility to assign to railway undertakings the collection of rail infrastructure charges. This measure would contribute to fair competition by preventing certain railway undertakings (incumbents) from obtaining access to commercially sensitive information about train path specifications from the invoice for competing railway undertakings (new entrants). It also provides an additional incentive for sound and non-discriminatory financial management of infrastructure.

Infrastructure development strategy (Article 8)

Under this article Member States will be obliged to publish medium to long-term railway sector development strategies that make it possible to meet future mobility needs and are based on sound and sustainable financing of the railway system. It will stimulate long lifecycle investments on which the rail industry relies. Long-term commitments are necessary for attracting new actors to the market and for developing new services.

Rail-related services (Article 13)

The proposed changes relate to the modernisation of rail-related services and are twofold.

Firstly, independence requirements (i.e. legal, organisational and decision-making independence) for the management of service facilities and for rail transport provision are introduced to eliminate conflicts of interest between, on the one hand, the rail-related service providers or owners of the service facilities and, on the other hand, incumbent railway undertakings. This measure will help to ensure non-discriminatory access to service facilities.

The second measure proposed in Article 13 is the introduction of 'Use-it-or-lose-it' provisions for the management of rail-related service facilities. If a service facility is not in use, it must be made available by its owner (on a rent or lease basis) to another interested party. This measure increases the availability of facilities in the market by avoiding problems of artificial saturation.

Cross-border agreements (Article 14)

The proposed provisions clarify general principles applying to cross-agreements between rail undertakings, between Member States and between Member States and third countries. They also entail notification and cooperation procedures allowing the Commission to ensure that agreements comply with European Union law.

Market monitoring (Article 15)

The aim is to make it clear that the rail market monitoring tasks of the Commission will cover items such as rail infrastructure investments, price developments and quality of rail transport services and public service obligations for rail passenger transport, and that relevant data must therefore be supplied by Member States as detailed in the new Annex IV. This measure will help identify bottlenecks of the service market.

Network Statement Publication (Article 27)

The proposed provisions clarify the appropriate ways and means for publication of network statements by infrastructure managers. Publishing network statements in a second official EU language and in an electronic form on the portal of the European Railway Agency (ERA) will enhance the accessibility of network statements and thereby improve transparency.

Information on charging systems (Article 29)

To increase transparency in the use of State funds, it is proposed to require that Member States' charging frameworks and rules be published in network statements.

Contracts between competent authorities and infrastructure managers (Article 30)

The proposed changes detail the process for developing and managing contractual agreements between the national competent authorities and infrastructure managers on infrastructure costs and access charges. In particular the regulatory body is empowered to assess the appropriateness of the envisaged medium to long-term budgetary envelope for the high-level infrastructure output specifications for the same period (performance targets). Such independent assessment can diminish the risk of the incumbent railway undertakings using their political strength to influence the agreements.

Principles of charging (Article 31)

The content of Article 31 is modified to introduce two separate measures:

The first measure has to do with differentiation of track access charges based on the noise emission characteristics of the rolling stock making up the train. This will constitute a clear incentive to modernise the infrastructure and in particular to invest in more sustainable rail technologies.

To improve transparency of charges, it is made clear that service providers must also provide information on charges for rail-related services to be published by infrastructure managers in their network statement.

Exceptions to charging principles (Article 32)

To improve the coherence of national track access charging schemes, the introduction of common criteria for identifying "market segments" on which services might be able to pay mark-ups is proposed. The criteria in question are set out in Annex VIII, paragraph 3.

To shorten the transition period during which lines are equipped with both national signalling systems and the European Train Control Systems (ETCS) and thereby reduce the infrastructure maintenance costs, it is proposed to lower infrastructure access charges for ETCS equipped trains.

Cooperation between infrastructure managers (Article 37)

As for the allocation of infrastructure capacities under Article 40, the new Article 37 proposes to introduce new measures to ensure that infrastructure managers cooperate for the setting of charging systems on more than one network.

Regulatory bodies (Article 55)

It is proposed to modernise the provisions on regulatory bodies' independence by stipulating clearly that they must be independent from any other public authority. Ensuring independence of regulatory bodies, in particular from the public authority that exercises the ownership rights of the incumbent railway undertaking, will reduce the potential for conflict of interest and thereby enhance their oversight capacity and credibility.

Functions of the regulatory body (Article 56)

Three measures proposed in Article 56 consist in extending the competencies of regulatory bodies. (1) Their competences will explicitly cover decisions related to access to and charging for rail-related services which are essential to allow market entry and ensure fair competition. (2) To improve accounting separation, prevent State funds devoted to unprofitable activities from being shifted to finance commercial activities and thereby avoid unfair competition; regulatory bodies will also have the power to carry out audits or to initiate external audits with the railway undertakings and infrastructure managers to verify compliance with accounting separation provisions. (3) Finally, to allow regulatory bodies to operate more effectively, cost-accounting data are to be provided by infrastructure managers in an aggregated and standardised format as 'regulatory accounts'.

Cooperation between regulatory bodies (Article 57)

To enhance cross-border cooperation and improve market entry conditions, regulatory bodies will have to cooperate for the adoption of decisions on access or charging issues relating to international services. In this context, the decision-making process must allow regulatory bodies to exchange information in due time.

Classification of rail-related services (Annex III)

The definition of the use of electrical supply equipment for traction current as part of a minimum access package would ensure that such services are subject to non-discrimination requirements. In addition the obligation to show separately the charges for using the electrical supply equipment and for traction current will provide more transparency in the costs of network operation and therefore will give more incentive for the infrastructure managers to reduce the cost of provision of infrastructure.

Content of the network statement (Annex VI)

The measures proposed in Annex VI clarify the content of network statements in order to strengthen their effectiveness and enhance transparency within the railway market. The new provisions stipulate in particular that infrastructure managers must publish (1) a template form for capacity requests, (2) detailed information about international path allocation procedures, (3) information relating to railway licence and rail safety certificate applications, (4) information about procedures for dispute resolution and appeal relating to market access and (5) information on access to rail-related service facilities (beyond the tariff information currently required).

Contractual agreements (Annex VII)

The new Annex VII clarifies the content and functioning of the contractual agreements provided for under Article 30 to stimulate the introduction of long-term strategies for the development of railways.

Infrastructure costs and charges requirements (Annex VIII)

To contribute to sound and sustainable financing of railway systems, the new Annex VIII clarifies certain provisions of Article 31. This includes detailing (1) the costs that must not be included in the calculation of direct costs of the minimum access package and track access services (as defined in Annex III, paragraphs 1 and 2) and the criteria for identification of market segments on which services might be able to pay mark-ups, (2) the requirements for differentiation of track access charges based on the noise emission characteristics, (3) how infrastructure managers will define market segments to evaluate the possibility of introducing mark-ups, and (4) the main characteristics and general principles of performance regimes.

Regulatory accounts (Annex X)

The new Annex X details the common standardised format for the submission of regulatory accounts. This measure would ensure that regulatory bodies are in a position to analyse infrastructure managers' information in detail and facilitate their supervisory activities.

ê 2004/49/EC Art. 30.1 (adapted)

2010/0253 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

√ establishing a single European railway area Õ

(Recast)

(Text with EEA relevance)

ê 2001/14/EC (adapted)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the Ö European Õ Commission ,

√ After transmission of the draft legislative act to the national Parliaments, Õ

Having regard to the opinion of the √ European Õ Economic and Social Committee[7],

Having regard to the opinion of the Committee of the Regions[8],

Acting in accordance with the √ ordinary legislative Õ procedure,

Whereas:

ò new

(1) Council Directive 91/440/EEC of 29 July 1991 on the development of the Community's railways[9], Council Directive 95/18/EC of 19 June 1995 on the licensing of railway undertakings[10] 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[11] 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.

ê 91/440/EEC recital 1 (adapted)

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

ê 91/440/EEC recital 2

(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.

ê 95/18/EC recital 5 (adapted)

(4) Regional, urban and suburban services √ as well as Õ transport activities in the form of shuttle services through the Channel Tunnel √ should be Õ excluded from the scope of √ this Õ Directive.

ê 91/440/EEC recital 3 (adapted)

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

ê 91/440/EEC recital 4 (adapted)

(6) √ In order to ensure Õ the future development and efficient operation of the railway system, a distinction √ should be Õ 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 Ö separately Õ and Ö to Õ have separate accounts.

ê 95/18/EC recital 2

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

ê 91/440/EEC recital 5 (adapted)

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

ê 91/440/EEC recital 6 (adapted)

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

ê 91/440/EEC recital 7 (adapted)

è1 Corrigendum, OJ L 305, 6.11.1991, p. 22

(10) Member States should ensure that √ infrastructure managers and Õ è1 existing publicly owned or controlled ⎜ railway transport undertakings are given a sound financial structure √ having due regard to the Union rules on state aids Õ.

ê 2001/14/EC recital 8 (adapted)

(11) An efficient freight sector, especially across borders, requires action √ to open Õ up the market.

ê 95/18/EC recital 4 (adapted)

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

ê 2007/58/EC recital 7 (adapted)

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

ê 2007/58/EC recital 8 (adapted)

(14) The introduction of new, open-access, international √ passenger Õ services with intermediate stops should not be used to √ open up Õ the market for domestic passenger services, but should merely be focused on stops that are ancillary to the international route. √ The Õ principal purpose √ of the new services should be Õ to carry passengers travelling on an international journey. Ö When assessing Õ 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 Öshould be taken into account. The assessment of the service's principal purpose Õ should be Ö carried out Õ by the respective national regulatory body at the request of an interested party.

ê 2007/58/EC recital 9 (adapted)

(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[12] authorises Member States and local authorities to award public service contracts √ which Õ 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.

ê 2007/58/EC recital 10 (adapted)

(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 Õ 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 of this Directive on the basis of an objective economic analysis, following a request from the competent authorities that awarded the public service contract.

ê 2007/58/EC recital 12 (adapted)

(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 Õ such an assessment and the decision of the relevant regulatory body, Member States Ö may Õ 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 Õ law and the principles of equality and non-discrimination.

ê 2007/58/EC recital 13

(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.

ê 2007/58/EC recital 14

(19) The 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. 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.

ê 2007/58/EC recital 16 (adapted)

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

ê 2007/58/EC recital 17

(21) The national regulatory bodies should exchange information and, 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 guidelines based on their experience.

ò new

(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 be managed independently in distinct legal entities. Such independence need not imply the establishment of separate body or firm for each service facility.

ê 95/18/EC Recital 9 (adapted)

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

ê 95/18/EC Recital 10 (adapted)

(24) For the protection of customers and third parties concerned it is important to ensure that railway undertakings are sufficiently insured √ against Õ liability.

ê 95/18/EC Recital 12 (adapted)

(25) A railway undertaking √ should Õ also be required to comply with national and Ö Union Õ rules on the provision of railway services, applied in a non-discriminatory manner, which are intended to ensure that it can carry on its activity in complete safety √ and with due regard to health, social conditions and the rights of workers and consumers Õ on specific stretches of track.

ê 95/18/EC Recital 14 (adapted)

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

ê 2001/14/EC recital 5 (adapted)

(27) To ensure transparency and non-discriminatory access to rail infrastructure Ö and rail-related services Õ for all railway undertakings, all the information required to use access rights √ is Õ to be published in a network statement.

ê 2001/14/EC recital 6

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

ê 2001/14/EC recital 7

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

ê 2001/14/EC recital 10 (adapted)

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

ê 2001/14/EC recital 11

(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.

ê 2001/14/EC recital 16

(32) The charging and capacity allocation schemes should allow fair competition in the provision of railway services.

ê 2001/14/EC recital 12

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

ê 2001/14/EC recital 13

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

ê 2001/14/EC recital 35

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

ê 2001/14/EC recital 14

(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.

ê 2001/14/EC recital 15

(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.

ê 2001/14/EC recital 9 (adapted)

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

ê 2001/14/EC recital 17

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

ê 2001/14/EC recital 18 (adapted)

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

ê 2001/14/EC recital 19

(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.

ê 2001/14/EC recital 21

(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.

ê 2001/14/EC recital 23 (adapted)

(43) Ö As Õ 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.

ê 2001/14/EC recital 24

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

ê 2001/14/EC recital 25

(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.

ê 2001/14/EC recital 26 (adapted)

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

ê 2001/14/EC recital 28

(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.

ê 2001/14/EC recital 29 (adapted)

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

ê 2001/14/EC recital 30 (adapted)

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

ê 2001/14/EC recital 31 (adapted)

(50) It is important to ensure better coordination of allocation schemes √ in order Õ to improve √ the Õ attractiveness of rail for traffic which uses the network of more than one infrastructure manager, in particular for international traffic.

ê 2001/14/EC recital 32

(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.

ê 2001/14/EC recital 33

(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.

ê 2001/14/EC recital 34 (adapted)

(53) Investment in railway infrastructure is √ necessary Õ and infrastructure charging schemes should provide incentives for infrastructure managers to make appropriate investments economically attractive.

ê 2001/14/EC recital 36 (adapted)

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

ê 2001/14/EC recital 37

ð new

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

ê 2001/14/EC recital 38

ð new

(56) It is important to ensure that charges for ð domestic and ï 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.

ê 2001/14/EC recital 39 (adapted)

(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 Ö should allow Õ traffic which can at least pay for the additional cost which it imposes √ to use the rail network Õ .

ê 2001/14/EC recital 40

(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.

ê 2001/14/EC recital 41 (adapted)

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

ê 2001/14/EC recital 42 (adapted)

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

ê 2001/14/EC recital 43

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

ê 2001/14/EC recital 44

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

ê 2001/14/EC recital 46 (adapted)

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

ê 2001/14/EC recital 47 (adapted)

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

ò new

(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.

ê 2001/14/EC recital 48

(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[13].

ê 2001/13/EC Recital 7 (adapted)

(67) In accordance with the principles of subsidiarity and proportionality as set out in Article 5 of the Treaty √ on European Union Õ , the objectives of this Directive, namely √ to foster the development of the Union railways Õ , to set out broad principles for Ö granting licences to Õ 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 Õ , 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 Õ and Ö the objectives Õ can therefore, by reason of Ö their Õ trans-national implications, be better achieved by the √ Union Õ. This Directive does not go beyond what is necessary to achieve those objectives.

ò new

(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.

ê 2007/58/EC Recital 21 (adapted)

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

ê 2007/58/EC Recital 23 (adapted)

(70) In accordance with point 34 of the Interinstitutional Agreement on better law-making[14], Member States are encouraged to draw up, for themselves and in the interests of the √ Union Õ , their own tables illustrating, as far as possible, the correlation between this Directive and the transposition measures, and to make them public.

ò new

(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,

ê 2001/14/EC (adapted)

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

Ö GENERAL Õ PROVISIONS

ê 91/440/EEC (adapted)

Article 1

√ Subject-matter and Scope Õ

1. This Directive √ lays down: Õ

(a) Ö the rules applicable Õ 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 Õ .

ê 2001/13/EC Art. 1(1) (adapted)

(b) the criteria applicable to the √ issuing Õ , 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 Õ ;

ê 2001/14/EC (adapted)

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

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

ê Corrigendum, OJ L 305, 6.11.1991, p. 22 (adapted)

√ Article 2 Õ

√ Exclusions from the scope Õ

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

ê 2001/13/EC Art. 1(1) (adapted)

2. Member States may exclude Ö the following Õ from the scope of this Directive Ö application of Chapter III Õ :

ê 2001/13/EC Art. 1(1)

(a) 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;

ê 2001/13/EC Art. 1(1) (adapted)

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

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

ê 2001/14/EC (adapted)

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

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

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

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

ê 2001/14/EC

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

ê 2007/58/EC Art. 2.1 (adapted)

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

ê 2001/12/EC Art. 1.3 (adapted)

4. Ö This Directive does not apply to Õ 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, Õ except Articles 6(1), 10, 11, 12 and 28.

ê 2007/58/EC Art. 1.1 (adapted)

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

ê 91/440/EEC (adapted)

Article 3

√ Definitions Õ

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

ê 2001/12/EC Art. 1.4(a) (adapted)

(1) ‘railway undertaking’ √ means Õ any public or private undertaking licensed according to √ this Directive Õ, 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 Õ any body or Ö firm Õ responsible in particular for establishing √ , managing Õ and maintaining railway infrastructure √ , including traffic Õ management √ and control-command and signalling Õ; the functions of the infrastructure manager on a network or part of a network may be allocated to different bodies or Ö firms Õ;

ê 91/440/EEC (adapted)

ð new

(3) ‘railway infrastructure’ √ means Õ 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[15] ð which for reasons of clarity are included in Annex I to this Directive ï , with the exception of the final indent which, for the purposes of this Directive only, shall read as follows: ‘Buildings used by the infrastructure department’;

ê 2001/12/EC Art. 1.4(b) (adapted)

(4) ‘international freight service’ √ means a Õ 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;

ê 2007/58/EC Art. 1.3 (adapted)

(5) ‘international passenger service’ √ means Õ 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;

ê 91/440/EEC (adapted)

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

(7) ‘regional services’ √ means Õ transport services operated to meet the transport needs of a region;

ê 2007/58/EC Art. 1.4 (adapted)

(8) “transit” √ means Õ crossing territory Ö of the Union Õ without loading or unloading goods, and/or without picking up passengers or setting them down in territory Ö of the Union Õ ;

ê 95/18/EC (adapted)

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

(10) “licensing authority” √ means Õ the body Ö responsible for Õ Ö granting Õ licences Ö within a Member State Õ ;

ê 2001/14/EC

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

ê 2001/14/EC (adapted)

(12) ‘applicant’ means a railway undertaking and other persons or legal entities, such as √ competent Õ 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 Õ;

(13) ‘congested infrastructure’ means √ an element Õ 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 Ö which aim Õ to alleviate the capacity constraints Ö which led Õ to the declaration of √ an element Õ of infrastructure as ‘congested infrastructure’;

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

(16) ‘framework agreement’ means a legally binding general agreement √ under Õ 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;

ê 2001/14/EC

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

ê 2001/14/EC (adapted)

(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 Õ charging and capacity allocation schemes, Ö including Õ 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;

ê 2001/14/EC

(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;

ê 91/440/EEC (adapted)

Ö CHAPTER II Õ

√ DEVELOPMENT OF THE UNION RAILWAYS Õ

SECTION 1

ê 2001/12/EC Art. 1.5

Management independence

ê 2001/12/EC Art. 1.6 (adapted)

Article 4

√ Independence of railway undertakings and infrastructure managers Õ

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 Õ 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 Õ rules established by the Member States, the infrastructure manager shall √ be responsible Õ for its own management, administration and internal control.

ê 91/440/EEC (adapted)

è1 Corrigendum, OJ L 305, 6.11.1991, p. 22

Article 5

√ Management of the railway undertakings according to commercial principles Õ

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. Õ This shall also apply to Ö the Õ public √ service Õ obligations imposed √ on them Õ by √ Member States Õ and to public √ service Õ 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; è1 they must also √ indicate Õ the means √ of obtaining Õ these objectives. ⎜

3. √ With reference to Õ the general policy guidelines √ issued Õ by √ each Member Õ 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:

ê 91/440/EEC

(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;

ê 91/440/EEC (adapted)

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

ò new

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 exercise of shareholder control, may only be of a general nature and shall not interfere with specific business decisions of the management.

ê 91/440/EEC (adapted)

ð new

SECTION 2

SEPARATION √ OF Õ INFRASTRUCTURE MANAGEMENT AND TRANSPORT OPERATIONS ð AND OF DIFFERENT TYPES OF TRANSPORT OPERATIONS ï

ê 2001/12/EC Art. 1.7 (adapted)

Article 6

√ Separation of accounts Õ

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 Ö shall Õ 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 Õ shall be managed by separate √ entities Õ .

ê 2001/12/EC Art. 1.10 (adapted)

3. √ Member States shall ensure that separate Õ profit and loss accounts and balance sheets √ are Õ kept and published √ , on the one hand, Õ 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 Õ . √ Public Õ funds paid for activities relating to the provision of transport services as public-service remits must be shown separately √ for each public service contract Õ in the relevant accounts and Ö shall Õ not be transferred to activities relating to the provision of other transport services or any other business.

ê 2001/12/EC Art. 1.7 (adapted)

ð new

4. The accounts for the √ different Õ areas of activity √ referred to in paragraphs 1 and 3 Õ shall be kept in a way that reflects this prohibition ð allows monitoring of the prohibition on transferring public funds paid to one area of activity to another ï.

Article 7

√ Independence of essential functions of an infrastructure manager Õ

1. Member States shall ensure that the functions determining equitable and non-discriminatory access to infrastructure, listed in Annex II, 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.

ò new

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

ê 2001/12/EC Art. 1.7 (adapted)

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

4. The application of paragraph 3 shall be subject to a report by the Commission in accordance with Article 10 11 b, to be submitted by 15 March 2006.

ê 2001/14/EC (adapted)

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 Õ by a charging body √ and by an allocation body Õ that √ are Õ independent in √ their Õ legal form, organisation and decision-making from any railway undertaking.

ò new

3. When the provisions of Chapter IV, Sections 2 and 3 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.

ê 91/440/EEC

SECTION 3

IMPROVEMENT OF THE FINANCIAL SITUATION

ê 2001/12/EC Art. 1.8 (adapted)

ð new

Article 8

√ Sound financing of the infrastructure manager Õ

1. Member States shall √ develop Õ their national railway infrastructure √ by Õ taking into account, where necessary, the general needs of the √ Union Õ. ð For this purpose, they shall publish at the latest two years after the entry into force of this Directive 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 years and be renewable. ï

2. Having due regard to Articles √ 93, 107 and 108 Õ of the Treaty, √ Member States may also provide the infrastructure manager with Õ financing consistent with √ its Õ tasks, √ the Õ size √ of the infrastructure Õ and financial requirements, in particular in order to cover new investments.

3. Within the framework of general policy determined by the State ð and taking into account the rail infrastructure development strategy referred to in paragraph 1 ï , the infrastructure manager shall √ adopt Õ a business plan including investment and financial programmes. The plan shall be designed to ensure optimal and efficient use √ , provision Õ and development of the infrastructure while ensuring financial balance and providing means for these objectives to be achieved. ð The infrastructure manager shall ensure that applicants are consulted before the business plan is approved. 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. ï

ê 2001/14/EC (adapted)

ð new

4. Member States shall ensure that, under normal business conditions and over a reasonable period ð of no more than three years ï , the accounts of an infrastructure manager shall at least balance income from infrastructure charges, surpluses from other commercial activities and State funding on the one hand, and infrastructure expenditure on the other Ö , including advance payments from the State, where appropriate Õ .

ê 2001/14/EC

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 his accounts without State funding.

ê 91/440/EEC

Article 78

The manager of the infrastructure shall charge a fee for the use of the railway infrastructure for which he is responsible, payable by railway undertakings using that infrastructure. After consulting the manager, Member States shall lay down the rules for determining this fee.

The user fee, which shall be calculated in such a way as to avoid any discrimination between railway undertakings, may in particular take into account the mileage, the composition of the train and any specific requirements in terms of such factors as speed, axle load and the degree or period of utilization of the infrastructure.

ê 91/440/EEC (adapted)

è1 Corrigendum, OJ L 305, 6.11.1991, p. 22

ð new

Article 9

√ Transparent debt relief Õ

1. ð Without prejudice to the Union rules on state aids and in accordance with Articles 93, 107 and 108 of the Treaty ï In conjunction with è1 the existing publicly owned or controlled railway undertakings ⎜, Member States shall set up appropriate mechanisms to help reduce the indebtedness of √ publicly owned or controlled railway Õ undertakings to a level which does not impede sound financial management and to improve their financial situation.

2. Ö For the purposes referred to in paragraph 1 Õ , Member States √ shall require Õ 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 Ö shall Õ not be taken into account.

ò new

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

ê 2001/12/EC Art. 1.9

3. Aid accorded by Member States to cancel the debts referred to in this Article shall be granted in accordance with Articles 73, 87 and 88 of the Treaty.

ê 91/440/EEC (adapted)

SECTION 4

ACCESS TO RAILWAY INFRASTRUCTURE √ AND SERVICES Õ

ê 2001/12/EC Art. 1.11 (adapted)

Article 10

√ Conditions of access to railway infrastructure Õ

2. Railway undertakings within the scope of Article 2 1 shall be granted, on equitable conditions, access to the infrastructure in other Member States for the purpose of operating international combined transport goods services.

ê 2004/51/EC Art. 1.2(a) (adapted)

ð new

3. Railway undertakings within the scope of Article 2 shall be granted, on equitable conditions, access to the Trans-European Rail Freight Network defined in Article 10 a and in Annex I and, at the latest by 1 January 2006, to the entire rail network, for the purpose of operating international freight services.

1. In addition, at the latest by 1 January 2007, Railway undertakings within the scope of √ this Directive Õ shall be granted, on equitable, √ non-discriminatory and transparent Õ conditions, access to the infrastructure in all Member States for the purpose of operating all types of rail freight services. ð This shall include track access to ports. ï

ê 2007/58/EC Art. 1.8 (adapted)

2. Railway undertakings within the scope of √ this Directive Õ shall be granted by 1 January 2010 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.

ê 2007/58/EC Art. 1.8

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.

ê 2007/58/EC Art. 1.8 (adapted)

√ 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 Õ the principal purpose of the service is to carry passengers between stations located in different Member States.

ò new

The Commission may adopt 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 Article 63(3).

ê 2007/58/EC Art. 1.8 (adapted)

√ Article 11 Õ

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

1. Member States may limit the right of access Ö provided for Õ 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 Õ legislation in force. Such limitation Ö shall Õ 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 Ö of a public service contract Õ 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, Ö after Õ a request from Ö any of the following Õ :

ê 2007/58/EC Art. 1.8

(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 receipt of all relevant information.

ê 2007/58/EC Art. 1.8 (adapted)

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 Õ ,

ê 2007/58/EC Art. 1.8

(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.

ò new

4. The Commission may adopt 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 Article 63(3).

ê 2007/58/EC Art. 1.8 (adapted)

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 Õ law. This limitation may continue for the original duration of the contract, or 15 years, whichever is shorter.

3d. The provisions of this Directive shall not require a Member State to grant, before 1 January 2010, the right of access referred to in paragraph 3a to railway undertakings and their directly or indirectly controlled subsidiaries, licensed in a Member State where access rights of a similar nature are not granted.

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

√ Article 12 Õ

√ Levy on railway undertakings providing passenger services Õ

ê 2007/58/EC Art. 1.8

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.

ê 2007/58/EC Art. 1.8 (adapted)

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

3. The levy shall be imposed in accordance with √ Union Õ 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.

ê 2007/58/EC Art. 1.8

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.

ê 2001/12/EC Art. 1.11

4. At the request of a Member State or on its own initiative the Commission shall, in a specific case, examine the application and enforcement of this Article, and within two months of receipt of such a request and after consulting the Committee referred to in Article 55 11a(2), decide whether the related measure may continue to be applied. The Commission shall communicate its decision to the European Parliament, the Council and to the Member States.

Without prejudice to Article 226 of the Treaty, any Member State may refer the Commission's decision to the Council within a time limit of one month. The Council, acting by a qualified majority, may in exceptional circumstances take a different decision within a period of one month.

ê 2004/51/EC Art. 1.2(c)

6. Track access to, and supply of services in, the terminals and ports linked to rail activities referred to in paragraphs 1, 2 and 3, serving or potentially serving more than one final customer, shall be provided to all railway undertakings in a non-discriminatory and transparent manner and requests by railway undertakings may be subject to restrictions only if viable alternatives by rail under market conditions exist.

ê 2001/14/EC (adapted)

ð new

Article 13

√ Conditions of access to services Õ

1. Railway undertakings shall, on a non-discriminatory basis, be entitled to the minimum access package √ laid down Õ in Annex III, point 1.

2. The services referred to in Annex III, point 2, shall be √ supplied Õ ð by all operators of service facilities ï in a non-discriminatory manner and requests by railway undertakings may only be rejected if viable alternatives under market conditions exist. If the services are not offered by one infrastructure manager, the provider of the ‘main infrastructure’ shall use all reasonable endeavours to facilitate the provision of these services.

ò new

Where the operator of the service facility 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 .

Requests by railway undertakings for access to the service facility 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 viable alternative lies with the operator of the service facility.

When the operator of the service facility encounters conflicts between different requests, he 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 take appropriate action 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 rolling stock may be reserved to the use of one railway undertaking for a period of five years from the start of their operation.

Where the service facility has not been in use for at least two consecutive years its owner shall publicise the operation of the facility as being for lease or rent.

ê 2001/14/EC (adapted)

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

ê 2001/14/EC

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

ò new

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

ê 2001/12/EC Art. 1.12

Article 10a

1. The Trans-European Rail Freight Network consists of the following elements:

a) Railway lines as indicated in the maps in Annex I.

b) Diversionary routes, where appropriate, particularly around congested infrastructure within the meaning of Directive 2000/14/EC. When these routes are offered, overall journey times shall be safeguarded as far as this is feasible.

c) Track access to terminals serving or potentially serving more than one final customer and to other sites and facilities, including feeder lines to and from these.

d) Track access to and from ports as listed in Annex I, including feeder lines.

2. The feeder lines mentioned in paragraph 1(c) and (d) cover at either end of the journey 50 km or 20 % of the length of the journey on the railway lines referred to in paragraph 1(a), whichever is greater.

Belgium and Luxembourg, as Member States with a relatively small or concentrated network, may limit the length of the feeder lines in the first year after 15 March 2003 to at least 20 km and until the end of the second year to at least 40 km.

ò new

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 railway undertakings, or which restrict the freedom of railway undertakings to operate cross-border services are hereby superseded.

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 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 competencies 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 procedure 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 Article 63(3).

ê 2001/12/EC Art. 1.13 (adapted)

ð new

SECTION 6

MONITORING TASKS OF THE COMMISSION

ARTICLE 15

√ Scope of market monitoring Õ

1. Not later than 15 September 2001TheCommission shall make the necessary arrangements to monitor technical and economic conditions and market developments √ in Õ European rail transport. The Commission shall ensure that adequate resources are made available to enable the effective monitoring of this sector.

2. In this context, the Commission shall closely involve representatives of the Member States and of the sectors concerned in its work, including users, so that they are able better to monitor the development of the railway sector and the evolution of the market, Ö to Õ assess the effect of the measures adopted and Ö to Õ analyse the impact of the measures planned by the Commission.

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, safety regulation ð investments in railway infrastructure, developments as regards prices and the quality of rail transport services, rail transport services covered by public service contracts, ï licensing and the degree of harmonisation Ö between Member States Õ. It shall ensure active cooperation between the appropriate regulatory bodies in the Member States.

ê 2001/12/EC Art. 1.13

ð new

4. The Commission shall report ð on a regular basis ï to the European Parliament and the Council on:

(a) the evolution of the internal market in rail services;

ê 2001/12/EC Art. 1.13 (adapted)

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

ê 2004/51/EC Art. 1.3

(c) the state of the European railway network;

ê 2001/12/EC Art. 1.13

(d) the utilisation of access rights;

(e) barriers to more effective rail services;

(f) infrastructure limitations;

(g) the need for legislation.

ò new

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

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

ê 2001/13/EC Art. 1(3) (adapted)

Ö CHAPTER III Õ

√ LICENSING OF RAILWAY UNDERTAKINGS Õ

Ö SECTION 1 Õ

√ BODY RESPONSIBLE FOR ISSUING LICENCES Õ

ARTICLE 16

√ Body responsible for railway licensing Õ

ê 2001/13/EC Art. 1(3)

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

ê 2001/13/EC Art. 1(3) (adapted)

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

ê 95/18/EC (adapted)

SECTION 2

√ CONDITIONS FOR OBTAINING A LICENCE Õ

ARTICLE 17

√ General requirements Õ

ê 95/18/EC

ð new

1. A railway undertaking shall be entitled to apply for a licence in the Member State in which it is established ð , 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 European Union is a party provides otherwise ï.

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 in 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.

ê 95/18/EC (adapted)

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

ò new

5. The Commission may adopt implementing measures setting out the details of the procedure to be followed for the application of this Article including the use of a common template for the licence. Those measures, designed to ensure the implementation of this Directive under uniform conditions shall be adopted as implementing acts in accordance with Article 63(3).

ê 95/18/EC (adapted)

Article 18

√ Conditions for obtaining a licence Õ

ê 95/18/EC

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 .

ê 95/18/EC (adapted)

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

Article 19

√ Requirements relating to good repute Õ

ê 95/18/EC

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:

ê 95/18/EC Art. 5 and 6

(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;

ê 2001/13/EC Art. 1(5) (adapted)

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

ê 95/18/EC (adapted)

Article 20

√ Requirements relating to financial fitness Õ

ê 95/18/EC

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 twelve months.

ê 95/18/EC (adapted)

For Ö these Õ purposes , each applicant shall give at least the particulars listed in Annex V .

ò new

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

ê 2004/49/EC Art. 29(1) (adapted)

Article 21

√ Requirements relating to professional competence Õ

The requirements relating to professional competence shall be met when an applicant railway undertaking √ can demonstrate that it Õ 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.

ê 95/18/EC (adapted)

Article 22

√ Requirements relating to civil liability Õ

ê 95/18/EC

ð new

ð Without prejudice to Chapter III of Regulation (EC) No 1371/2007 of the European Parliament and of the Council[16], ï a railway undertaking shall be adequately insured or make equivalent arrangements for cover, in accordance with national and international law, of its liabilities in the event of accidents, in particular in respect of passengers, luggage, freight, mail and third parties.

ê 95/18/EC (adapted)

SECTION 3

VALIDITY OF THE LICENCE

ARTICLE 23

√ Spatial and temporal validity Õ

ê 2001/13/EC Art.1(4) (adapted)

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

ê 95/18/EC (adapted)

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. Õ

ê 95/18/EC

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

ê 95/18/EC (adapted)

Article 24

√ Temporary licence, suspension and approval Õ

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 Õ 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.

ê 95/18/EC

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.

ê 95/18/EC Art. 11 (adapted)

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

ê 95/18/EC

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.

ê 95/18/EC Art. 11 (adapted)

7. A licensing authority shall not permit a railway undertaking against which bankruptcy or similar proceedings Ö have Õ 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.

ê 2001/13/EC Art.1(6)

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

ê 2001/13/EC Art. 1(7)

Article 12

1. In addition to the requirements of this Directive, a railway undertaking shall also comply with national law and regulatory provisions which are compatible with Community law and are applied in a non-discriminatory manner, in particular:

(a) specific technical and operational requirements for rail services;

(b) safety requirements applying to staff, rolling stock and the internal organisation of the undertaking;

(c) provisions on health, safety, social conditions and the rights of workers and consumers;

(d) requirements applying to all undertakings in the relevant railway sector designed to offer benefits or protection to consumers.

2. A railway undertaking may at any time refer to the Commission the question of the compatibility of the requirements of national law with Community law and also the question of whether such requirements are applied in a non-discriminatory manner.

If the Commission considers that the provisions of this Directive have not been fulfilled, it shall deliver an opinion on the correct interpretation of the Directive, without prejudice to Article 226 of the Treaty.

Article 13

Railway undertakings shall respect the agreements applicable to international rail transport in force in the Member States in which they operate. They shall observe the relevant customs and tax provisions.

ê 95/18/EC (adapted)

ð new

Article 25

√ Procedure for granting licences Õ

1. The procedures for granting licences shall be made public by the Member State ð licensing authority ï concerned, which shall inform the Commission ð European Railway Agency ï 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. Õ The decision shall be communicated to the applicant railway undertaking ð without delay ï . A refusal shall state the grounds Ö on which it is based Õ.

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

ê 2001/14/EC (adapted)

CHAPTER IV

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

SECTION 1

√ GENERAL PRINCIPLES Õ

√ Article 26 Õ

√ Effective use of infrastructure capacity Õ

ê 2001/14/EC

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.

ê 2001/14/EC (adapted)

ð new

Article 27

Network statement

1. The infrastructure manager shall, after consultation with the interested parties √ , including the regulatory body referred to in Article 55, Õ develop and publish a network statement obtainable against payment of a √ fee Õ which Ö shall Õ not exceed the cost of Ö publication of Õ that statement. ð The network statement shall be published in at least two official languages of the Union. 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. ï

ê 2001/14/EC

ð new

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

ò new

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

ê 2001/14/EC (adapted)

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

ê 2001/14/EC

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

ê 2004/51/EC Art. 1.2(b) (adapted)

√ Article 28 Õ

√ Agreements between railway undertakings and infrastructure managers Õ

Any railway undertaking engaged in rail transport services shall conclude the necessary agreements √ under Õ 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 conformity with the provisions of this Directive.

ê 2001/14/EC (adapted)

SECTION 2

INFRASTRUCTURE Ö AND SERVICES Õ CHARGES

ê 2001/14/EC

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.

ê 2001/14/EC Art. 4

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

ò new

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

ê 2001/14/EC (adapted)

ð new

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

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

ò new

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

ê 2001/14/EC

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.

ê 2001/14/EC (adapted)

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 Ö an Õ 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.

ê 2001/14/EC

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

ê 2001/14/EC (adapted)

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 Õ incentives to reduce the costs of √ providing Õ infrastructure and the level of access charges.

2. Member States shall ensure that paragraph 1 is impleme