Re-examined proposal for a COUNCIL DIRECTIVE on the allocation of railwaz infrastructure and the charging of infrastructure fees (presented by the Commission pursuant to article 189 c (d) of the Treaty establishing the European Community)
Date: 1995-05-05
Institutions: European Commission
Subjects: common transport policy, freedom to provide services, rail transport, transport capacity, transport company, transport infrastructure

COMMISSION OF THE EUROPEAN  COMMUNITIES 

Brussels, 05.05.1995 

COM(95) 151 final - SYN 488 

- SYN 490 

Re-examined proposal for a 
COUNCIL DIRECTIVE 
on the licensing of railway undertakings 
(presented by the Commission pursuant to article 189 c (d) of the Treaty  establishing 
the European Community) 

Re-examined proposal for a 
COUNCIL DIRECTIVE 
on the allocation of railway infrastructure and the charging of infrastructure  fees 
(presented by the Commission pursuant to article 189 c (d) of the Treaty  establishing 
the European Community) 

(presented by the Commission) 

EXPLANATORY  MEMORANDUM 

Re-examined proposal for a 
COUNCIL DIRECTIVE 
on the licensing  of  railway  undertakings 

3) 

On 15th December  1993 the Commission submitted a proposal for a directive on the licensing 
of  railway  undertakings  to  the  Council(1).  At  its  plenary  session  of  3rd  May  1994  the 
European  Parliament  approved  the  Commission's  proposal,  while  adopting  a  number  of 
amendments®. 
On  14th  July  1994  the  Commission  presented  an  amended  proposal  to  the  Council,  that 
included the greater  part  of the Parliament's  amendments^  .  On 21st  November  1994 the 
Council adopted  a common position(4),  that  included  certain  of  the amendments  adopted by 
the Parliament and taken up by the Commission  in its modified  proposal.  The  Commission 
gave the Parliament its views on the common position in its communication  of 6th  December 
1994(5). 

On  14th  March  1995,  the  Parliament  approved  the  Council's  common  position,  while 
adopting  four  amendments.  In  its  re-examined  proposal  the  Commission  accepts  these 
amendments as it did in its modified  proposal,  because they clarify  or  strengthen  the text. 

<» 
• 
<* 
(«I 
» 

COM  (93) 678,  SYN  488,  OJ C  24 of 28.1.94,  p.  2 
OJC205of25.7.94,p.38 
COM (94) 316, OJ C 225 of 13.8.94, p. 9 
EC N* 43/94, OJ C 354 of 13.12.94, p. 1 
SEC (94) 1987, SYN 488, 

A 

Re-examined  proposal  for  a 
COUNCIL DIRECTIVE 
on the licensing  of  railway  undertakings 
(presented by the Commission pursuant  to article 189 c  (d)  of the  Treaty  establishing 
the European  Community) 

_  SYN  4 88 

4) 

Common position 

Re-examined proposal 

Article 2e (new text) 

For the purposes of this Directive : 

For the purposes of  this Directive : 

(a)Mrailway  undertaking"  shall  mean  any 
private  or  public  undertaking  the  main 
business  of  which  is  to  provide  rail 
transport 
for  goods  and/or 
passengers,  with  a  requirement  that  the 
undertaking must ensure traction; 

services 

(a) "railway  undertaking"  shall  mean  any 
private  or  public  undertaking  the  main 
business  of  which  is  to  provide  rail 
transport  services 
for  goods  and/or 
passengers,  with  a  requirement  that  the 
undertaking  should  ensure  traction,  with 
traction  equipment  owned, 
leased  or 
rented. 

Article 2e (new text) 

or 

regional 
suburban 
(e)  "Urban, 
services"  shall  mean  services  operated  to 
meet the transport needs of an urban centre 
or  conurbation,  as  well  as  the  transport 
such  a  centre  or 
needs  between 
conurbation  and  surrounding  areas,  or  to 
meet  the  transport  needs  of  a  region. 

Article 3 

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

Each  Member  State  shall  designate  the 
authority or agency responsible  for issuing 
licences  and 
the 
obligations imposed by this Directive. That 
body  may  not  be  connected  directly  or 
the  national  railway 
indirectly  with 
undertaking 

for  carrying  out 

h 

5) 

Article  S(l) 

requirements 

1.  The 
to 
professional  competence  shall  be  met 
when : 

relating 

requirements 

1.  The 
to 
professional  competence  shall  be  met 
when : 

relating 

(a)  an applicant  railway  undertaking  has 
or  will  have  a  management  organization 
which  possesses  the  knowledge  and/or 
exercise 
experience  necessary 
and 
operational 
satisfactory 
supervision  of  the  type  of  operation 
specified  in the licence; 

to 
control 

(a)  an  applicant  railway  undertaking  has 
or  will  have  a  management  organization 
which  possesses  the  knowledge  and/or 
experience  necessary  to exercise  safe and 
reliable operational control and supervision 
of  the  type  of  operation  specified  in  the 
licence; 

(b)  its personnel responsible for safety, in 
particular drivers, are suitably qualified for 
their field  of activity and 

(b)  its personnel responsible for safety, in 
particular  drivers,  are  fully  qualified  for 
their field of activity and 

(c)  its  personnel,  rolling  stock  and 
organization  can  ensure  an  appropriate 
level  of  safety  for  the  services  to  be 
provided. 

(c)  its  personnel,  rolling  stock  and 
organization  can  ensure  an  high  level  of 
safety  for the services  to be provided. 

EXPLANATORY  MEMORANDUM 

3) 

Re-examined  proposal  for a 
COUNCIL DIRECTIVE 
on the  allocation of  railway  infrastructure and the charging  of infrastructure  fees 

On  15th  December  1993  the  Commission  submitted  a  proposal  for  a  directive  on  the 
allocation of railway  infrastructure  and the charging of infrastructure  fees  to the Council0'. 
At its plenary session of 3rd May  1994 the European Parliament approved the Commission's 
proposal,  while adopting a number of amendments®. 
On  14th  July  1994  the  Commission  presented  an  amended  proposal  to  the  Council,  that 
included the greater part of  the Parliament's  amendments^  .  On 21st November  1994 the 
Council  adopted  a common position(4),  that included  a limited  number of  the amendments 
adopted by the Parliament and taken up by the Commission  in its modified  proposal.  The 
Commission gave the Parliament its views on the common position in its communication of 
6th December  1994®. 

On  14th  March  1995,  the  Parliament  approved  the  Council's  common  position,  while 
adopting six amendments.  In its re-examined proposal the Commission accepts four of these 
amendments that the Parliament adopted at its first  reading and the Commission  included in 
its  modified  proposal,  because they clarify  or strenghten  the text. 

However  it refuses  an amendment,  that the Parliament  adopted  at its  first  reading  but the 
Commission did not include in its modified proposal. This is the amendment that adds a new 
paragraph to article 8 that reads : "In order to avoid distorsion of competition between modes 
of transport,  fees for other modes shall be changed with equal regard for the principle of real 
costs". In the Commission's view, this raises important general issues of transport policy that 
go far beyond the scope of the directive. 

The Parliament adopted a further  amendment on  14th March  1995, the deletion of article  1, 
paragraphs  2  and  3.  The  Commission  accepts  the  deletion  of  the  second  sentence  of 
paragraph 2,  that excludes  from  the  scope  of  the directive  railway  undertakings  that only 
provide shuttle services through the Channel Tunnel. In the Commission's view, the directive 
should cover all railway undertakings,  as does directive 91/440/EEC  on the development of 
the Community's railways, which it is designed to complement. The Commission also accepts 
the deletion of paragraph 3 in order to simplify  the text. 

However it does not accept the deletion of  the first  sentence of  paragraph 2.  This  sentence 
excludes  from  the  scope  of  the  directive  railway  undertakings  that  only  provide  urban, 
suburban and regional services.  The Commission considers that the directive should exclude 
them, as directive 91/440/EEC  does. 

(l) 
» 
« 
<*> 
» 

COM (93) 678, OJ C 24 of 28.1.94,  p.  6 
OJC 205 of 25.7.94,  p. 45 
COM (94) 316, OJ C 225 of  13.8.94,  p.  11 
EC N*  44/94, OJ C 354 of  13.12.94, p.  19 
SEC (94)  1894 final, SYN 490 

The text of the amendments that the Commission does not accept in its re-examined  proposals 
is attached. 

4) 

r 

Re-examined  proposal for a 
COUNCIL DIRECTIVE 
on the allocation  of  railway  infrastructure  and the charging  of  infrastructure  fees 
(presented by the  Commission  pursuant  to article  189 c  (d)  of the Treaty  establishing 
the European  Community) 

-  SYN  4 90 

5) 

Article  1. 

Common position 

R&examined proposal 

1.  The  purpose  of  this  Directive  is  to 
define the principles and procedures  to be 
applied  with  regard  to  the  allocation  of 
railway  infrastructure  capacity  and  the 
charging of infrastructure  fees for railway 
undertakings  which  are  or  will  be 
established  in  the  Community  and  the 
international  groupings  which  they  form, 
where  such  undertakings  and  groupings 
carry out services referred  to in Article 10 
of  Directive  91/440/EEC  under 
the 
conditions laid down in that Article. 

1.  The  purpose  of  this  Directive  is  to 
define the principles and procedures  to be 
applied  with  regard  to  the  allocation  of 
railway  infrastructure  capacity  and  the 
charging of infrastructure  fees  for railway 
undertakings  which  are  or  will  be 
established  in  the  Community  and  the 
international  groupings  which  they  form, 
where  such  undertakings  and  groupings 
carry out services referred to in Articles  10 
of  Directive  91/440/EEC  under 
the 
conditions laid down in that Article. 

2.  Railway  undertakings  the  activities  of 
which  are  limited  to  the  operation  of 
urban, suburban and regional services shall 
be  excluded  from  the  scope  of  this 
Directive. 

2.  Railway  undertakings  the  activities  of 
which  are  limited  to  the  operation  of 
urban, suburban and regional services shall 
be  excluded  from  the  scope  of  this 
Directive. 

Railway  undertakings  and  international 
groupings the business of which is limited 
to  providing  shuttle  services  for  road 
vehicles  through  the  Channel  Tunnel  are 
also  excluded  from  the  scope  of  this 
Directive. 

3.  Railway infrastructure  capacity shall be 
granted  in  the  form  of  the  allocation  of 
train paths in accordance with Community 
and national law. 

Article  2 (a) 

6) 

"railway  undertaking"  means  any 
a) 
public  or  private  undertaking  the  main 
business  of  which  is  to  provide  rail 
services for goods and/or passengers,  with 
a  requirement  that  the  undertaking  must 
ensure  traction; 

"railway  undertaking"  means  any 
a) 
public  or  private  undertaking  the  main 
business  of  which  is  to  provide  rail 
services for goods and/or passengers,  with 
a  requirement  that  the  undertaking  must 
ensure traction, but excludes private tourist 
and  museum  railways: 

Article 4,  paragraph  1(b) 

b) 

Services wholly or partly operated on 
infrastructure 
or 
specific 
for 
developed 
services  (specialized  high-speed  or 
freight  lines),  without  prejudice  to 
Articles 85, 86 and 90 of the Treaty. 

constructed 
certain 

b) 

constructed 
certain 

specialized  types  of  operation  on 
infrastructure 
or 
specific 
for 
upgraded 
services,  in  particular,  specialized 
high-speed  or  freight  lines  or  lines 
using combined intermodal transport, 
without  prejudice  to  Articles  85,  86 
or  90 of  the Treaty.  Train  paths on 
such specialized infrastructure  should 
be  allocated  on  a  fair  and  non 
discriminatory  basis. 

Article 6,  paragraphs  1 and 2  (new) 

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

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

The 

infrastructure  manager  may 
2 
finance 
development, 
infrastructure 
including  provision  or  renewal  of  capital 
assets,  and  may  make a  return  on  capital 
employed. 

"f 

Article  10 

7) 

1.  Member  States  shall  lay  down  the 
procedures  for  the  allocation  of  railway 
infrastructure  capacity  referred 
in 
Article  1(3).  They  shall  publish  their 
procedural 
the 
Commission  thereof. 

inform 

rules 

and 

to 

1.  Member  States  shall  lay  down without 
delay  the procedures  for  the allocation  of 
railway  infrastructure  capacity  referred  to 
in  Article  1.  They  shall  publish  their 
procedural 
the 
Commission  thereof. 

inform 

rules 

and 

for 

infrastructure 
2.  An  application 
capacity 
the 
to 
shall  be  submitted 
allocation  body  of  the  Member  State  of 
establishment. 

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

3a. When an application is made for a new 
train  path,  the  allocation  body  shall 
distinguish : 

(2L)  between a single application  for  a rail 
path  for  an  individual  train,  and  an 
application  for  a  rail  path  for  a  regular 
scheduled  service: and 

(b) between an application  for  a rail path 
concerning  a  single  allocation  body  and 
one  for  a rail  path  concerning  more than 
one allocation body. 

for 

infrastructure 
2.  An  application 
capacity 
the 
to 
shall  be  submitted 
allocation body of the Member State on the 
territory  of  which  the  departure  point  of 
the service concerned is situated. 

3.  The  allocation  body  to  which  an 
application  has  been  submitted  shall 
immediately  inform  the  other  allocation 
bodies  concerned  of  this  request.  The 
latter  shall  take  a  decision  as  soon  as 
possible  but no later than one month after 
all 
information  has  been 
submitted; each allocation body shall have 
the right to  refuse  an  application.  They 
shall  immediately  inform  the  allocation 
body  to  which  the  request  has  been 
submitted. 

relevant 

to  which  an 
The  allocation  body 
application  has  been  submitted  shall, 
together  with  the  other  allocation  bodies 
the 
concerned, 
application  as  soon  as  possible,  but  no 
later  than  two  months  after  all  relevant 
information  has been submitted. 

take  a  decision  on 

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

The decision shall be communicated to the 
applicant  undertaking.  A  refusal  shall 
indicate the reason  therefor. 

4.  An  applicant  undertaking  may  directly 
contact 
the  other  allocation  bodies 
concerned  with  this  request  on  condition 
that  the  allocation  body  to  which  the 
application has been submitted is informed. 

8) 

shall 

take  a  decision  on 

4.  Where  an application  is  for  a train path 
for a regular  scheduled  service  concerning 
a  single  allocation  body,  the  allocation 
body 
the 
application  as  soon  as  possible,  but  no 
later  than  two  months  after  all  relevant 
The 
information  has  been  submitted. 
decision  shall  be  communicated  to  the 
applicant  undertaking.  A  refusal  shall 
indicate  the reason(s)  therefor. 

the 

other 

4a.  Where an application is  for a train path 
for a regular  scheduled  service  concerning 
the 
than  one  allocation  body, 
more 
allocation  body  to  which  an  application 
immediately 
has  been  submitted  shall 
inform 
bodies 
concerned  with  this  request.  The  latter 
shall 
take  their  decision  as  soon  as 
possible,  normally  within  three  months 
after  all  the  relevant  information  has  been 
submitted to them.  They shall  immediately 
inform  the  allocation  body  to  which  the 
request  has  been  submitted. 

allocation 

The  allocation  body 
to  which  an 
application  has  been  submitted,  together 
with the other allocation bodies concerned, 
shall  notify  to  the  applicant  as  soon  as 
possible,  in good  time before  the start of a 
timetabling  period,  a  firm  date  by  which 
the  train  path  will  be  available:  the  date 
shall  be  within  a  reasonable  period  -
normally  no  more  than  three  months  -
from  the date of  the application,  and  shall 
be publicly  announced. 

4b.  Where  the  application  is  for  a  train 
path  for  a  single  journey  or  occasional 
traffic  concerning a single allocation  body, 
that  body  shall  take  a  decision  oh  the 
application  as  soon  as  possible,  but  no 
later  than  one  month  after  all  relevant 
The 
information  has  been  submitted. 
decision  shall  be  communicated  to  the 
applicant  undertaking.  A  refusal  shall 
indicate  the reason(s)  therefor. 

5.  The  railway  undertakings  to  which 
railway  infrastructure  capacity  is  allocated 
n e c e s s a ry 
shall 
financial 
administrative, 
agreements  with 
infrastructure 
managers. 

the 
technical  and 
the 

c o n c l u de 

9) 

5.  Where an application  is  for  a train path 
for  a  single  journey  or  occasional  traffic 
concerning  more than one allocation  body. 
the allocation body  to which an application 
immediately 
has  been  submitted  shall 
bodies 
the  other 
inform 
concerned  with  this  request.  The  latter 
shall  take  a  decision  as  soon  as  possible 
but  no  later  than  one  month  after  all 
relevant  information  has  been  submitted. 
They 
the 
immediately 
allocation  body  to  which  the  application 
has been  submitted. 

allocation 

inform 

shall 

to  which 

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

5a.  In  taking  a  decision  on  the  allocation 
of  train  paths  for  regular  services,  the 
allocation  body  shall  take  into  account  all 
requests  received  in  the  order  in  which 
they  are  received.  The  offer  of  a  train 
path  shall  be  open  for  one  month,  which 
period is not affected  by any application  of 
the  review  procedure  set  out  in  Article 
WX 

6.  In  addition  to  the  procedure  set  out  in 
the  above  paragraphs 
applicant 
undertaking  mav directly  contact  the other 
allocation  bodies  concerned  with 
this 
request, 

an 

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

to  which 

>° 

10) 

by 

the 

certificate 

7.  The  allocation  of  a  train  path  or  paths 
shall  be  dependent  upon  the  issue  of  a 
safety 
authority 
responsible  for  safety.  This  certificate 
shall  affirm  that  the  railway  undertaking 
has  the  means  to  comply  with  the  safety 
conditions  laid down  by  that authority.  In 
particular,  the  railway  undertaking  must 
demonstrate  that  it  can  provide  rolling 
stock,  traction,  personnel  and  equipment 
the  service  and  route 
appropriate 
operated. 

to 

8.  The  railway  undertaking 
to  which 
railway  infrastructure  capacity  has  been 
allocated  shall  conclude  the  necessary 
administrative, 
financial 
agreements  with  the  managers  of  the 
railway  infrastructure. 

technical  and 

at 

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

shall  be  available 

the  next 

JA 

Annexe 

Proposal for a Council directive on the allocation 
of  railway  infrastructure  and the charging of  infrastructure  fees 

Amendments adopted by the European Parliament at its second reading that the Commission 
does not include in its re-examined proposal. » 

Article 1 

2.  Railway  undertakings  the  activities  of  which  are  limited  to  the  operation  of  urban, 
suburban and regional services  shall be excluded from the scope of this Directive. 

1 (a). In order to avoid distorsion of competition between modes of transport, fees for other 
modes shall be charged with equal regard for the principle of real costs. 

ii 

ISSN 0254-1475 

COM(95) 151  final 

DOCUMENTS 

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