COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the Treaty concerning the Common position adopted by the Council with a view to the adoption of a Directive of the European Parliament and of the Council on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification

EXPLANATORY MEMORANDUM

1. Historical background of the proposal

On 22nd July 1998 the Commission adopted a proposal [1] for a Council Directive relating to the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification.

[1] COM(1998) 480 final 22.7.1998.

The purpose of the proposal was to clarify the rules on the allocation of infrastructure capacity and the charges to be paid for its use.

The European Parliament approved the Commission's proposal at its plenary session on 15th September 1999.

The Economic and Social Committee adopted its opinion on 26th May 1999 [2].

[2] OJ C 209, 22.7.1999, p. 22.

On 25th November 1999 the Commission adopted an amended proposal following the first reading of the European Parliament.

At its session on 9th and 10th December 1999 the Council reached a political agreement on the proposal.

At its session on 28th March 2000 the Council adopted the Common Position.

2. Background of the Commission's proposal

Note: The proposal dealt with in this Communication forms part of the so-called "infrastructure package" consisting of a proposal [3] for a Council directive amending Directive 91/440/EEC on the development of the Community's railways [4], a Council directive amending Directive 95/18/EC on the licensing of railway undertakings [5] and the proposal for a Council Directive on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification, this Communication deals with.

[3] COM(1998) 480 final 22.7.1998.

[4] Council Directive 91/440/EEC of 29 July 1991; OJ L237, 24. 8.1991, p.25.

[5] OJ L 143, 27.6.1995, p. 70.

The proposal on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification will replace the existing Directive 95/19/EC. The revised proposal sets rules for charges and creates a framework for allocation of capacity. It includes elements to harmonise processes in the allocation of train paths at European level. It provides specific measures for situations where capacity is constrained. It requires publication of the information and rules required to use the infrastructure and requires the establishment of a regulatory body.

3. Main elements of the compromise in relation to amendments sought by the European Parliament

The main objectives of the amendments proposed by Parliament to this proposal were:

* to allow greater flexibility to Member States in setting infrastructure charges;

* to leave a decision on allowing Authorised Applicants to national legislation;

* to simplify the rules relating to capacity allocation.

The Commission's original proposal would have limited infrastructure charges for freight to the additional cost incurred by the operation of the train to ensure that these were not a barrier to rail playing a full role in this market. For passenger services higher charges would have been permitted subject to fairly detailed rules on how those higher charges were levied. The Parliament and some Member States argued that the same rules should apply to freight and passenger services and that the possible methods for levying charges higher than that for the additional cost from operating the train should be simplified. The text of the common position meets these objectives while also providing safeguards in relation to the competitiveness of international rail freight, productivity gains achieved by railway undertakings and that traffic is not unnecessarily priced off the infrastructure.

The Commission's original proposal would have permitted entities other than railway undertakings to bid for infrastructure capacity, although they would have had to contract with a railway undertaking to use the capacity. The need for this arises from the fact that in many cases these entities have a strong interest in the nature of the capacity or the ability to retain the capacity if they change the railway undertaking that is providing the service. The Parliament along with a number of Member States felt that this possibility should be left to individual Member States to determine. The text of the Common Position reflects this desire and thus retains this possibility where a Member State wishes to allow it.

The Parliament felt that in general the rules describing the capacity allocation process were too detailed, although in one area it sought to make the rules more prescriptive. To ensure the objectives of a greater harmonisation of the national capacity allocation processes and fair treatment for all users of the infrastructure it appears necessary to retain a fairly detailed description of the process and the rules. Nevertheless, a considerable number of modifications to the text of the capacity allocation processes have been made along the lines suggested by the Parliament. Therefore the overall objective of the Parliament to streamline the text has been achieved while ensuring sufficient clarity of the individual rules in view of an optimal utilisation of capacity.

4. Derogations and transitional provisions

4.1. General derogation's for Greece and Ireland/Northern Ireland

The Council agreed on derogation's from parts of the Directive relating to the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification for Greece and Ireland/Northern Ireland due to the geopolitical and geographical situation of those two Member States.

These derogation's are time-limited (five years at first), renewable upon request and are not any more applicable if the following happens:

1. A railway undertaking licensed in one of the Member States in question files an official request for railway capacity in another Member State, or 2. a railway undertaking licensed in another Member State files an official request for railway capacity in, to or from one of the Member States in question, in which case the future applicability of the derogation is decided upon by use of the advisory procedure referred to in Article 37, paragraph 2, of the Directive.

The Commission fully agrees with the Council in this respect and wishes to underline that it hopes that the geopolitical situation of Greece will develop so that Greece can fully profit from the railway policy initiatives of the European Union.

5. Conclusion

The Commission took into account as much as possible the views of the European Parliament expressed during the first reading by taking up amendments either fully or in their meaning.

The Commission is of the opinion that the overall compromise found by the Council after intensive discussions and efforts of three of its Presidencies is a well-balanced step forward in railway policy. It will contribute to a sustainable development of this mode of transport.

The Commission is convinced that this second step of reform of the legal framework for rail transport services represents an important step towards the creation of a "level playing field" for all enterprises active or envisaging to get active in rail transport and therefore issues a positive opinion.