Common Position (EC) No 41/2000 of 28 March 2000 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a Directive of the European Parliament and of the Council amending Council Directive 91/440/EEC on the development of the Community's railways
Date: 2000-03-28
Institutions: Council of the European Union
Subjects: common transport policy, rail transport, transport infrastructure

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I

(Information)

COUNCIL

COMMON POSITION No 41/2000

adopted by the Council on 28 March 2000

with a view to adopting Directive 2000/.../EC of the European Parliament and of the Council of ...
amending Council Directive 91/440/EEC on the development of the Community’s railways

(2000/C 288/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

(2)

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 71 thereof,

Having regard to the proposal of the Commission (1),

Having regard to the opinion of the Economic and Social
Committee (2),

(3)

Having regard to the opinion of
Regions (3),

the Committee of

the

Acting in accordance with the procedure laid down in
Article 251 of the Treaty (4),

Whereas:

(1)

Council Directive 91/440/EEC of 29 July 1991 on the
development of the Community’s railways (5) should
be amended to take account of experience with its
implementation and of developments in the railway
sector since its adoption, in order to ensure that its
objectives are achieved.

(1) OJ C 321, 20.10.1998, p. 6 and OJ C ...
(2) OJ C 209, 22.7.1999, p. 22.
(3) OJ C 57, 29.2.2000, p. 40.
(4) Opinion of the European Parliament of 10 March 1999 (OJ C 175,
21.6.1999, p. 115), Council Common Position of 28 March 2000
and Decision of the European Parliament of ... (not yet published
in the Official Journal).
(5) OJ L 237, 24.8.1991, p. 25.

(4)

(5)

Fair and non-discriminatory access to the infrastructure
needs to be guaranteed through the separation of certain
essential functions and/or the creation of a rail regulator
fulfilling the control and implementation functions as
well as through the separation of profit and loss accounts
and the balance sheets.

Fair and non-discriminatory access to the infrastructure
needs to be guaranteed also through the separation of
safety-related functions and/or the creation of a rail
regulator fulfilling the control and implementation func-
tions. In any case railway undertakings may be involved
in a non-discriminatory way in enforcement and moni-
toring of safety standards.

Extension of access rights should, as with other modes
of transport, proceed in conjunction with the parallel
implementation of the necessary accompanying har-
monisation measures.

In accordance with the objective of completing the
internal market, which will include the possibility for
licensed railway undertakings meeting the safety
all
conditions to provide services, access rights should
be extended to licensed railway undertakings for the
international transport of goods on a defined network,
called the trans-European rail freight network, including
access to, and supply of, services in major terminals and
ports.

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(6)

Access right
is guaranteed to the licensed railway
undertaking meeting the safety conditions and seeking
access, whatever the mode of operation.

(14)

(7) Member States remain free to grant access rights that are
more extensive than access for railway undertakings
operating international combined transport to inter-
national groupings operating international services and
to railway undertakings operating international freight
services within the trans-European rail freight network.
The use of these more extensive access rights may be
limited to railway undertakings licensed in Member
States where access rights of a similar nature are granted,
provided that this limitation is compatible with the
Treaty.

In accordance with the principles of subsidiarity and
proportionality as set out in Article 5 of the Treaty, the
objectives of this Directive, namely to develop the
Community’s railways, cannot be sufficiently achieved
by the Member States in view of the need to ensure
fair and non-discriminatory terms for access to the
infrastructure as well as to take account of the manifestly
international dimensions involved in the operation of
significant elements of the railway networks, and can
therefore, by reason of the need for coordinated trans-
national action, be better achieved by the Community.
This Directive does not go beyond what is necessary to
achieve those objectives.

(15) Directive 91/440/EEC should be amended accordingly,

(8)

(9)

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

HAVE ADOPTED THIS DIRECTIVE:

Article 1

To promote the efficient operation of passenger and
freight transport services and to ensure transparency in
their finances, including all financial compensation or
aid paid by the State, it is necessary to separate the
accounts of passenger and of freight transport services.

(10)

In order to monitor the development of the railway
sector better a European Rail Observation System should
be set up.

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

1.

the title of Section I is replaced by ‘Scope and Definitions’;

2. Article 1 is repealed;

3.

the following paragraph is added to Article 2:

‘3. Undertakings the train operations of which are
limited to providing solely shuttle services for road
vehicles through the Channel Tunnel are excluded from
the scope of this Directive except Articles 6(1), 10 and
10a.’;

(11) The Commission should report on the implementation
of this Directive and make appropriate proposals.

4. Article 3 is amended as follows:

(12) 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 (1).

(13) Specific measures are required to take account of
the specific geopolitical and geographical situations of
certain Member States as well as a specific organisation
of the railway sector in various Member States while
ensuring the integrity of the internal market.

(1) OJ L 184, 17.7.1999, p. 23.

(a)

the first and second indents are replaced by the
following:

‘— “railway undertaking” shall mean any public
or private undertaking licensed according to
applicable Community legislation, 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 must
ensure traction; this also includes undertakings
which provide traction only,

— “infrastructure manager” shall mean any body
or undertaking responsible in particular for
establishing and maintaining railway infrastruc-
ture. This may also include the management of
infrastructure control and safety systems. The
functions of the infrastructure manager on a
network or part of a network may be allocated
to different bodies or undertakings,’;

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(b)

the following indent is inserted after the fourth
indent:

‘— “international freight service” shall mean trans-
port services where the train crosses at least one
border of a Member State; the train may be
joined and/or split and the different sections
may have different origins and destinations,
provided that all wagons cross at least one
border,’;

5.

the title of Section II is replaced by ‘Management indepen-
dence’;

6. Article 4 is replaced by the following:

‘Article 4

1. Member States shall take the measures necessary to
ensure that as regards management, administration and
internal control over administrative, economic and
accounting matters railway undertakings have indepen-
dent status in accordance with which they will hold, in
particular, assets, budgets and accounts which are separ-
ate from those of the State.

2. While respecting the framework and specific charg-
ing and allocation rules established by the Member States,
the infrastructure manager shall have responsibilities
for its own management, administration and internal
control.’;

are entrusted to bodies or firms that do not themselves
provide any rail transport services. Regardless of the
organisational structures, this objective must be shown
to have been achieved.

Member States may, however, assign to railway undertak-
ings or any other body the collecting of the charges and
the responsibility of managing the railway infrastructure,
such as investment, maintenance and funding.

4. A Member State having established an independent
rail regulator that is controlling and implementing the
access to the infrastructure in a neutral and non-discrimi-
natory manner shall be exempted from the application of
paragraph 3.

The application of paragraphs 3 and 4 shall be
5.
subject
to a report by the Commission within the
framework of the European Rail Observation System,
referred to in Article 10b, to be submitted by ... (*)

If the report comes to the conclusion that the arrange-
ment provided for in paragraph 4 did not succeed in
guaranteeing neutral and non-discriminatory access to
the infrastructure, the Commission shall take a decision
on the application of paragraph 4 in accordance with the
procedure referred to in Article 11a(3).

(*) Six years after the entry into force of this Directive.’;

7. Article 6 is replaced by the following:

8. Article 7 is replaced by the following:

‘Article 6

‘Article 7

1. Member States shall take the measures necessary to
ensure that separate profit and loss accounts and balance
sheets are kept and published, on the one hand, for
business relating to the provision of transport services 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
may not be transferred to the other.

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

2. Member States may also provide that this separation
shall require the organisation of distinct divisions within
a single undertaking or that the infrastructure shall be
managed by a separate entity.

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

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

2. Member States shall ensure that safety standards
and rules are laid down, rolling stock and railway
undertakings are certified accordingly and accidents
investigated. These tasks shall be accomplished by bodies
or undertakings that do not provide rail transport services
themselves and are independent of bodies or undertakings
that do so, in such a way as to guarantee equitable and
non-discriminatory access to infrastructure.

Railway undertakings shall apply these safety standards
and rules. Unless Member States mandate independent
bodies with enforcement and monitoring,
they may
require or allow railway undertakings to be involved in
ensuring the enforcement and monitoring of the safety
standards and rules while guaranteeing the neutral and
non-discriminatory execution of these functions.

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3. Member States may also accord the infrastructure
manager, having due regard to Articles 73, 87 and 88 of
the Treaty, financing consistent with the tasks, size and
financial requirements, in particular in order to cover
new investments.

4. Within the framework of general policy determined
by the State, the infrastructure manager shall draw up a
business plan including investment and financial pro-
grammes. The plan shall be designed to ensure optimal
and efficient use and development of the infrastructure
while ensuring financial balance and providing means for
these objectives to be achieved.

5. With reference to the separation provided for in
paragraph 2, Article 6(4) and (5) shall apply accordingly.’;

9. Article 9(3) is replaced by the following:

‘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.’;

10.

the following paragraph is added to Article 9:

‘4.
In the case of railway undertakings profit and loss
accounts and either balance sheets or annual statement
of assets and liabilities shall be kept and published for
business relating to the provision of rail freight-transport
services. Funds paid for activities relating to the provision
of passenger-transport services as public-service remits
must be shown separately in the relevant accounts and
may not be transferred to activities relating to the
provision of other transport services or any other busi-
ness.’;

11. Article 10 is replaced by the following:

‘Article 10

3. Whatever the mode of operation, railway undertak-
ings within the scope of Article 2 shall be granted, on
equitable conditions, the access that they are seeking
to the trans-European rail freight network defined in
Article 10a and in Annex I for the purpose of operating
international freight services.

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 paragraphs 1, 2 and
3 and, within two months of receipt of such a request
and after consulting the Committee referred to in
Article 11a(2), decide whether the related measure may
continue to be applied. The Commission shall communi-
cate its decision to the European Parliament, to 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 circum-
stances take a different decision within a period of one
month.

5. Any railway undertaking engaged in rail transport
services under paragraphs 1, 2 and 3 shall conclude the
necessary administrative, technical and financial agree-
ments on the basis of public or private law with the
infrastructure managers of the railway infrastructure used
with a view to regulating traffic control and safety issues
concerning that transport. The conditions governing such
agreements shall be non-discriminatory and, if applicable,
in conformity with the provisions of Directive 2000/.../EC
of the European Parliament and of the Council of ... on
the allocation of railway infrastructure capacity and the
levying of charges for the use of railway infrastructure
and safety certification (*)

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 manner,
and requests by railway undertakings may be subject to
restrictions only if viable alternatives under market
conditions exist.

1.
International groupings shall be granted access and
transit rights in the Member States of establishment of
their constituent railway undertakings, as well as transit
rights in other Member States, for international services
between the Member States where the undertakings
constituting the said groupings are established.

(*) OJ L ...’;

12.

in Section V ‘Access to railway infrastructure’ the follow-
ing Article is added:

‘Article 10a

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

The trans-European rail freight network consists of

1.
the following elements:

(a)

railway lines as indicated in the maps in Annex I;

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(b) diversionary routes, where appropriate, particularly
around congested infrastructure within the meaning
of Directive 2000/.../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.

The feeder lines mentioned in paragraph 1(c) and (d)
2.
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 ... (**) to at
least 20 km and until the end of the second year to at
least 40 km.

envisaged in these fields and help to develop a detailed
understanding of the evolution of the market and the
factors driving it.

3.
The European Rail Observation System shall moni-
tor the use of the networks and the evolution of the
in particular
framework conditions in the rail sector,
infrastructure charging, capacity allocation, safety regu-
lation and licensing and the degree of harmonisation that
evolves. It shall ensure an active cooperation between the
appropriate regulatory bodies in the Member States.

Relying on input from the European Rail Obser-
to the

4.
vation System,
European Parliament and to the Council on:

the Commission shall report

(a)

the evolution of the internal market in rail services;

(b)

the framework conditions;

(c)

the state of the trans-European rail freight network;

(d)

the utilisation of access rights;

(e)

barriers to more effective rail services;

(*) Directive on the allocation of railway infrastructure
capacity and the levying of charges for the use of
railway infrastructure and safety certification.

(**) Two years after the entry into force of this Directive.’;

(f)

infrastructure limitations; and

(g)

the need for legislation.

13. after Section V ‘Access to railway infrastructure’, the

(*) Six months after the entry into force of this Directive.’

following section is added:

‘SECTION Va

European Rail Observation System

Article 10b

1. Not later than ... (*) the Commission shall make
the necessary arrangements to set up a European Rail
Observation System to monitor technical and economic
conditions and market developments of European rail
transport. The Commission shall ensure that adequate
resources are made available to enable the effective
monitoring of this sector.

2.
The European Rail Observation System shall be run
by the Commission which should invite to the meetings
representatives from Member States as well as representa-
tives of sectors concerned. The European Rail Observation
System shall focus on rail and related infrastructure as
It shall
well as the services using the infrastructure.
provide the Commission with the technical assistance
necessary for the formulation and evaluation of measures

14. Article 11 is replaced by the following:

‘Article 11

1. Member States may bring any question concerning
the implementation of this Directive to the attention of
the Commission. Appropriate decisions shall be adopted
by use of
the advisory procedure referred to in
Article 11a(2).

The amendments necessary to adopt the Annexes
2.
shall be adapted by use of the regulatory procedure
referred to in Article 11a(3).’;

15.

the following Article is inserted:

‘Article 11a

1.

The Commission shall be assisted by a Committee.

reference

to this paragraph,
is made
2. Where
Articles 3 and 7 of Decision 1999/468/EC shall apply,
having regard to the provisions of Article 8 thereof.

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reference

3. Where
to this paragraph,
is made
Articles 5 and 7 of Decision 1999/468/EC apply, having
regard to the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision
1999/468/EC is set at three months.

4.

The Committee shall adopt its Rules of Procedure.’;

16. Article 14 is replaced by the following:

‘Article 14

By ... (*) the Commission shall submit to the European
Parliament, the Economic and Social Committee, the
Committee of the Regions and the Council a report on
the implementation of this Directive accompanied by
suitable proposals on continuing Community action to
develop the railway market and the legal framework
governing it.

(*) Four years after the entry into force of this Directive.’;

17.

the following Article is inserted:

‘Article 14a

For a period of five years from ... (*), the following

1.
Member States:

— Ireland, as a Member State located on an island with

a raillink to only one other Member State,

— the United Kingdom, in respect of Northern Ireland,

on the same basis, and

— Greece, as a Member State that does not have any

direct rail link to any other Member State,

do not need to apply the requirement to entrust to an
independent body the functions determining equitable
and non-discriminatory access to infrastructure, as pro-
vided for in Article 6(3), first subparagraph and the tasks
in so far
set out
as those Articles oblige Member States to establish
independent bodies performing the tasks referred to in
the said Articles.

first subparagraph,

in Article 7(2),

(b)

a railway undertaking operating railway services in
Ireland, Northern Ireland or Greece submits an
official application to operate railway services on, to
or from the territory of another Member State (in
the case of Ireland, or the United Kingdom, in respect
of Northern Ireland, or both, another Member State
outside their territories), the derogation referred to
in paragraph 1 shall not apply.

Within one year from the receipt of either the decision
referred to in point (a) adopted in accordance with the
advisory procedure referred to in Article 11a(2), or
notification of the official application referred to in
point (b), the Member State or States concerned (Ireland,
the United Kingdom with respect to Northern Ireland, or
Greece) shall put in place legislation to implement the
Articles referred to in paragraph 1.

3. A derogation referred to in paragraph 1, may be
renewed for periods not longer than five years. Not later
than 12 months before the expiry date of the derogation
a Member State availing itself of such derogation may
address a request to the Commission for a renewed
derogation. Any such request must be substantiated. The
Commission shall examine such a request and adopt a
decision in accordance with the advisory procedure
referred to in Article 11a(2). The said advisory procedure
shall apply to any decision related to the request.

When adopting its decision the Commission shall take
into account any development in the geopolitical situ-
ation and the development of the rail market in, from
and to the Member State having requested the renewed
derogation.

4.
Luxembourg as a Member State with a relatively
small rail network does not need to apply until 31 August
2004 the requirement
to award to an independent
body the functions determining equitable and non-
discriminatory access to infrastructure, as provided for in
Article 6(3), first subparagraph, in so far as it obliges
Member States to establish independent bodies per-
forming the tasks referred to in that Article.

(*) Two years after the entry into force of this Directive.’

2. However, where:

(a) more than one railway undertaking licensed in
accordance with Article 4 of Directive 95/18/EC, or,
in the case of Ireland and of Northern Ireland, a
railway company so licensed elsewhere, submits an
official application to operate competing railway
services in, to or from Ireland, Northern Ireland or
Greece, the continued applicability of this dero-
gation will be decided upon in accordance with the
advisory procedure referred to in Article 11a(2); or

Article 2

Member States shall adopt the laws, regulations and adminis-
trative provisions necessary to comply with this Directive
by ... (*) They shall forthwith inform the Commission thereof.

(*) Two years after the entry into force of this Directive.

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When Member States adopt these measures, they shall contain
a reference to this Directive or be accompanied by such
reference on the occasion of their official publication. The
methods of making such a reference shall be laid down by the
Member States.

Article 4

This Directive is addressed to the Member States.

Done at ...

Article 3

For the European Parliament

For the Council

The President

The President

This Directive shall enter into force on the day of its publication
in the Official Journal of the European Communities.

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ANNEX I

PORTS

Cartagena-Escombreras
Gijo´ n
Huelva
Tarragona
Valencia
Vigo

France

Bayonne
Bordeaux
Boulogne
Calais
Cherbourg
Dunkerque
Fos-Marseille
La Rochelle
Le Havre
Nantes
Port-la-Nouvelle
Rouen
Sète
Saint-Nazaire

Ireland

Cork
Dublin

Italia

Ancona
Bari
Brindisi
C. Vecchia
Genova
Gioia Tauro
La Spezia
Livorno
Napoli
Piombino
Ravenna
Salerno
Savona
Taranto
Trieste
Venezia

Luxembourg

Nederland

Amsterdam Zeehaven
Delfzijl/Eemshaven
Vlissingen
Rotterdam Zeehaven
Terneuzen

O¨ sterreich

Portugal

Leixo˜ es
Lisboa
Setu´ bal
Sines

Suomi/Finland

Hamina
Hanko
Helsinki
Kemi
Kokkola
Kotka
Oulu
Pori
Rauma
Tornio
Turku

Sverige

Göteborg-Varberg
Helsingborg
Luleå
Malmo¨
Norrköping
Oxelösund
Stockholm
Trelleborg-Ystad
Umeå

United Kingdom

All rail-connected ports

België/Belgique

Antwerpen/Anvers
Gent/Gand
Zeebrugge/Zeebruges

Danmark

Aalborg
Århus
Esbjerg
Frederica
København
Nyborg
Odense

Deutschland

Brake
Bremen/Bremerhaven
Brunsbüttel
Cuxhaven
Emden
Hamburg
Kiel
Lübeck
Nordenham
Puttgarden
Rostock
Sassnitz
Wilhelmshaven
Wismar

¯ººÆ·(cid:242)

`º(cid:229)(cid:238)Æ(cid:237)(cid:228)æ(cid:239)ı·(cid:240)(cid:239)ºØ(cid:242)
¯º(cid:229)ı(cid:243)Ø·(cid:237)Æ
—Æ·(cid:244)æÆ
—(cid:229)ØæÆØÆ·(cid:242)
¨(cid:229)(cid:243)(cid:243)Æº(cid:239)(cid:237)Ø·Œ(cid:231)
´(cid:239)·º(cid:239)(cid:242)

Espan˜ a

Algeciras
Almerı´a
Barcelona
Bilbao

RTTFM Art. 10a(1)(a), 91/440/EEC
TERFN Art. 10a(1)(a), 91/440/EØF
TESGN Art. 10a(1)(a), 91/440/EWG
∆∆ΣEM Aρθ. 10α(1)(α), 91/440/EOK
TERFN Article. 10a(1)(a), 91/440/EEC
RTEFF Art. 10a(1)(a), 91/440/CEE
TERFN Art.10a(1)(a), 91/440/CEE
TERFN Art.10a(1)(a), 91/440/EEG
RTTFM Art. 10a(1)(a), 91/440/CEE
TERFN Art.10a(1)(a), 91/440/ETY
TERFN Art.10a(1)(a), 91/440/EEG

14 03 00

Track is being renovated

BELGIQUE/BELGIË

DANMARK

DEUTSCHLAND

EΛΛAΣ

ESPAÑA

Track is being renovated

FRANCE

IRELAND

ITALIA

LUXEMBOURG

NEDERLAND

ÖSTERREICH

PORTUGAL

SUOMI/FINLAND

SVERIGE

UNITED KINGDOM

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List of essential functions referred to in Article 6(3):

ANNEX II

— preparation and decision-making related to the licensing of railway undertakings including granting of

individual licences,

— decision-making related to the path allocation including both the definition and the assessment of availability

and the allocation of individual train paths,

— decision-making related to infrastructure charging.

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STATEMENT OF THE COUNCIL’S REASONS

I.

INTRODUCTION

1. On 30 September 1998 the Commission forwarded to the Council a proposal for a Directive
of the European Parliament and of the Council amending Directive 91/440/EEC on the
development of the Community’s railways (1). This proposal was based on Article 75 of the EC
Treaty (amended to become Article 71).

2.

The European Parliament, the Economic and Social Committee and the Committee of the
Regions delivered their opinions on 10 March (2), 26 May (3) and 18 November 1999(4)
respectively.

After the entry into force of the Treaty of Amsterdam on 1 May 1999, the European Parliament
confirmed its opinion on 16 September 1999.

3. On 29 November 1999 the Commission forwarded its amended proposal (5) to the European

Parliament and to the Council. That proposal is based on Article 71 of the EC Treaty.

4. On 28 March 2000 the Council adopted its Common Position pursuant to Article 251 of the

EC Treaty.

II. OBJECTIVES

The purpose of this Directive is to revitalise Europe’s railways. It aims to reverse the decline in rail
transport, in particular in the freight sector, by creating the conditions for an expanding, competitive
customer-oriented system.

The revitalisation of railways is indispensable given the current state of congestion on road
infrastructures and the safety and environmental hazards that this entails. Railways must be used
more rationally if total gridlock on our roads in a few years time is to be avoided. Railways therefore
have to be given a sharper competitive edge over other modes of transport.

This Directive is part of a ‘legislative package’ which aims to create a new framework for the
conditions for using rail infrastructure by making access rights effective.

The package is made up of three draft directives aimed at:

— amending the provisions of Directive 91/440/EEC primarily in order to establish the right
access to infrastructure for railway undertakings established in the Community, to ensure
separate accounting for railway infrastructure management and transport operations and to
award to an independent body responsibility for the essential functions ensuring fair and non-
discriminatory access to infrastructure,

— widening the scope of Directive 95/18/EC on the licensing of Community undertakings,

(1) OJ C 321, 20.10.1998, p. 6.
(2) OJ C 175, 21.6.1999, p. 115.
(3) OJ C 209, 22.7.1999, p. 22.
(4) OJ C 57, 29.2.2000, p. 40.
(5) Not yet published in the Official Journal.

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— replacing Directive 95/19/EC with a new directive on the allocation of infrastructure capacity,

the charging of infrastructure fees and on safety certificates.

Another important element to be borne in mind is the individual situation of each of Europe’s rail
networks. For historical reasons Europe’s railway is still multifarious. The differences between the
constituent networks had to be taken into account when the Council was drafting compromise
solutions. The infrastructures for this mode of transport are extremely complex and any changes
will have to be phased in.

The Council is therefore aware that there is still a great deal to be done. To this end, the Commission
has presented further complementary proposals, or will do so soon. Thus, Parliament and the
Council have already been consulted on a proposal on the interoperability of the conventional
railway system, and the Council has already completed its work on this vital technical aspect for the
smooth functioning of the trans-European network.

The Council has also noted that the Commission intends to present a proposal on the enforcement
and monitoring of railway safety standards and to propose the budgetary allocation of certain
quantities from TEN appropriations on rail projects, with particular attention to the alleviation of
bottlenecks affecting the development of rail freight. In fact, the financial side of revitalising railways
must not be ignored.

Basically, the Council would like to reiterate that while the revitalisation of Europe’s railways is a
matter of utmost priority for economic, environmental and safety reasons, it is nevertheless a
complex task which will demand considerable effort for many years to come.

This Directive aims to amend Directive 91/440/EEC in part, and the means proposed to attain that
objective are primarily the extension of fair and non-discriminatory access rights to rail infrastructures
and a clearer separation between infrastructure management activities and rail operations. In
particular:

1.

2.

the Commission’s 1995 proposal for access and transit rights to the railway infrastructures of the
Member States aimed to extend the rights acquired in Directive 91/440/EEC so that they could
henceforth be granted to all railway undertakings. Those rights would comprise all international
and cabotage services for the carriage of goods and for combined transport, as well as
international passenger transport services;

the Commission’s 1998 proposal for the separation of infrastructure management from railway
operations aimed not only to separate the profit and loss accounts for railway infrastructure
managers from those for transport operations, but also to separate the balance sheets. The
proposal also sets its sights on awarding to an independent body responsibility for the essential
functions to guarantee fair and non-discriminatory access to infrastructure.

III. ANALYSIS OF THE COMMON POSITION

The Common Position fully embraces the common objective of the proposals submitted by the
Commission. It also endorses the broad lines of the means proposed in this Directive to attain that
objective.

The wording of the proposal has nevertheless been altered considerably in the course of discussions
in the Council. The key points of the Common Position are given below. It should be pointed out
that there are several points on which the Common Position differs from the original proposal; on
the other hand, the Common Position is much closer to the Commission’s amended proposal.

1.

The Council has deleted Article 1 of Directive 91/440/EEC with a view to simplification, as it
considers that the substance of that Article is already contained in Sections II to V.

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2. Article 2(3) provides for undertakings, the train operations of which are limited to providing
solely shuttle services for road vehicles through the Channel Tunnel, to be excluded from the
scope of the Directive. This is in fact a very specific activity which does not have to comply
with many of the requirements of the Directive; similar exclusions from the scope have also
been provided for in both the other Directives in the legislative package on railway
infrastructures. However, the obligation to keep separate accounts does apply to these
undertakings, as set out under Article 6(1), and access rights to the tunnel infrastructure are
guaranteed by the provisions of Articles 10 and 10(a), since the tunnel is part of the trans-
European freight network.

3.

The Council has slightly altered the wording of the definitions in Article 3 of the Directive for
‘railway undertaking’ and ‘infrastructure manager’, but retained the gist of those definitions.
The most important amendment has been to add a phrase stipulating that the term ‘railway
undertaking’ also includes undertakings which provide traction only.

Furthermore, the Common Position has also introduced a new definition of ‘international
freight service’ so as to avoid any interpretation problems with Article 10(3) arising from the
fact that one and the same wagon may form part of different trains in the course of one
journey, and to specify that this provision does not include cabotage rights.

4.

5.

The Common Position has taken up the amendments proposed by the Commission on
separation of accounts for infrastructure management and transport operations (Article 6(1)).

The Council has added paragraphs 3, 4 and 5 to Article 6. The purpose of those additions is to
give further details for the separation of rail operating services from infrastructure management
activities in order to secure the objective of fair and non-discriminatory access to them. To this
end, the Common Position provides as follows:

(a)

the objective in question must be shown to have been achieved;

(b) undertakings which provide rail transport services may not be entrusted with essential
functions, in particular those relating to the issue of licences, allocation of train paths and
charging for railway infrastructure. However, railway undertakings can be entrusted with
merely collecting the charges and with managing infrastructures outside these essential
functions, for example with investment, maintenance and financing;

(c)

these rules on separation may be waived if a Member State has established an independent
rail regulator to ensure neutral, non-discriminatory access to the infrastructure;

(d)

the Directive does, however, provide for two mechanisms to guarantee neutral, non-
discriminatory access to infrastructures:

— Article 6(5) requires the Commission to submit a report on this subject within the
framework of the European Rail Observation System. In particular, the Commission
will have to examine whether such access is guaranteed where, as provided for in
Article 6(4), a Member State has recourse to an independent rail regulator instead of
separating the essential functions; if this is not the case, the Commission must take a
decision on the application of this paragraph in accordance with the Regulatory
Committee procedure,

— secondly, Article 10(4) provides for the Commission, assisted by an advisory
committee, to be able to examine and possibly annul the right of access measures
taken by a Member State in the event that they are not equitable.

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6. Article 7(2) and (5) lay down the safety standards. The criteria in the Common Position in this
area are: the fundamental importance of maintaining very high rail safety standards; the current
situation in several countries where the national railway undertaking takes an integral approach
to safety; the desire to avoid any discrimination against other railway undertakings as a result
of applying safety standards. On the basis of these criteria the Common Position establishes a
system where:

— Article 7(2), first subparagraph, first establishes the responsibilities of the Member States
in the field of safety and then refers to the bodies which are to accomplish the
corresponding tasks, including a reference to the principle that those bodies are to be
independent of railway undertakings,

— Article 7(2), second subparagraph, nevertheless provides for a derogation from that
principle for the enforcement and monitoring of safety standards and rules, provided
neutral and non-discriminatory execution of these functions is guaranteed,

— pursuant to Article 7(5), the mechanism provided for to ensure non-discrimination in the

essential functions referred to under Article 6 is also to apply to safety.

7. Article 7(4) reproduces, in simplified form, the Commission proposal (paragraphs 4, 5 and 6)
and promotes greater autonomy for infrastructure managers, although this is set against the
backdrop of the general policy of the Member States.

8.

The amendment to Article 9(4) proposed by the Commission was intended to provide separate
accounts for passenger and for freight transport services in order to promote efficient
management and create transparency about the financial situation of each. Aware of the fact
that the prime objective of this measure is to avoid any passenger transport subsidies from
being transferred to freight, thus distorting competition, the Council has taken care to clarify
the text by indicating that public funds for activities relating to passenger-transport services
must be shown separately in railway company accounts.

9. Over and above the rights of access recognised in Article 10 of Directive 91/440/EEC for
international groupings (paragraph 1) and for railway undertakings operating combined
transport services (paragraph 2), the Common Position (paragraph 3) extends the right to
access and transit via the railway infrastructures of the Member States to all railway undertakings
for the purpose of operating international freight services, although it limits these rights to the
most important part of the trans-European rail freight network, the TERFN, defined in
Article 10a and in Annex I. Furthermore, the opening phrase of this paragraph reiterates that
access to the networks of the Member States shall be granted, on equitable conditions, to
railway undertakings whatever their mode of operation; this phrase takes up the spirit of the
European Parliament’s fifth amendment to the proposal for a directive relating to the allocation
of railway infrastructure capacity and the levying of charges for the use of railway infrastructure
and safety certification.

Furthermore, Article 10(4) of the Common Position provides for a specific procedure for
monitoring the application and enforcement of the rights to access contained in the Directive.

Article 10(6) clarifies the rights to access the network and supply services linked to rail activities
in terminals and ports.

Lastly, the new recital 7 reiterates that the Member States may grant access rights that are more
extensive than those provided for in the Directive and may limit these rights to railway
undertakings licensed in Member States where similar rights are granted, provided that this
limitation is compatible with the Treaty.

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10. Articles 11 and 11a contain institutional provisions, in particular with regard to committee

procedure.

11. The Council also thought that a European Rail Observation System (EROS) should be created,
the tasks of which are described in Article 10b, and that it should be run by the Commission.
The Council thus recognises that the development and integration of the railway systems of the
Member States is a task which can only be accomplished gradually and that there is need for a
suitable permanent observation system.

12. The Council is aware of the specific features, whether temporary or lasting, peculiar to several
of the national networks. For this reason Article 14a of the Common Position provides for
several provisional derogations from the application of certain measures in Ireland, Northern
Ireland and in Greece, as well as for Luxembourg in Article 14a(4).

IV. AMENDMENTS BY THE EUROPEAN PARLIAMENT

1. Amendments by the European Parliament, approved by the Commission and retained

by the Council

The Council agreed with the amended proposal and has retained either all or part of the
amendments from the European Parliament:

— Amendment 1, retained as new recital 4. However, in the Common Position the word
‘liberalisation’ has been replaced by ‘extension of access rights’, which seems to be more
in keeping with the enacting terms (Article 10 in particular), and the words ‘in stages’ have
been deleted as they could pre-empt any new initiative by the Commission on this,

— Amendment 2 has been adjusted and incorporated as recital 5, the main idea being that
the extension of access rights granted to all railway undertakings should concentrate on
the international transport of goods,

— Amendment 5, on the definition of an ‘infrastructure manager’,

— Amendment 8 has been partly incorporated into the Common Position, namely the
reference to the investigation of accidents. However, the provisions of Article 7(2) and (5)
are more intricate than those in the proposal (see III(6)),

— most of Amendment 9 has been retained in Article 7(4) of the Common Position, relating
to the framework of general policy determined by the State for the activity of the
infrastructure manager,

— with regard to the extension of access and transit rights, the Common Position retains the
essence of Amendment 10, where Parliament requests that for the international transport
of goods these rights be granted to all railway undertakings. The Common Position limits
this extension to the TERFN, but this network covers most of the trans-European railway
network and the related feeder lines.

2. Amendments proposed by the European Parliament and approved by the Commission,

but not retained by the Council

— Amendment 6 on creating entities, separate from railway undertakings, for infrastructure
management was endorsed by the Commission but has not been incorporated into the
Common Position, the Council confining itself to entrusting the essential functions to
bodies other than railway undertakings without requiring a strict institutional distinction
between the infrastructure manager and the railway undertaking.

— Amendment 7 has not been included in the Common Position for reasons similar to those
given for Amendment 6, as the Council preferred to leave Article 6(2) of Directive
91/440/EEC as it stood.

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3. Amendments proposed by the European Parliament which neither the Commission for

the Council has accepted

The following amendments were proposed by the European Parliament but were not endorsed
by the Commission and have not been integrated into the Common Position by the Council:

— Amendment 3 has not been accepted, because Article 7(2) and (5) of the Common
Position contain new criteria relating to the allocation of responsibility for safety matters;
these new criteria are explained in recital 3 of the Common Position.

— Amendment 4 has not been formally accepted because the Council thought that it would
be preferable to delete Article 1 of Directive 91/440/EEC. The text of the Common
Position on assigning essential functions to an independent body (Articles 6 and 7 and
Annex II) contains more nuances than the Commission proposal (Article 1) and therefore
in part conveys the idea contained in this amendment by Parliament.