Common Position (EC) No 27/2000 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 95/18/EC on the licensing of railway undertakings
Date: 2000-03-28
Institutions: Council of the European Union
Subjects: common transport policy, rail transport, trade licence, transport company, transport safety

27.6.2000

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Official Journal of the European Communities

C 178/23

COMMON POSITION (EC) No 27/2000

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 95/18/EC on the licensing of railway undertakings

(2000/C 178/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

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

95/18/EC (6) introduced a licence for railway undertakings
providing the services referred to in Article 10 of Directive
91/440/EEC, this licence being obligatory for the oper-
ation of such services and valid throughout the Com-
munity.

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

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

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) provides
for certain access rights in international rail transport for
railway undertakings and international groupings of
railway undertakings.

(2) To ensure dependable and adequate services, a common
licensing scheme is necessary to ensure that all railway
undertakings meet at any time certain requirements in
relation to good repute, financial fitness and professional
competence in order to protect customers and third
parties and offer services observing a high standard of
safety.

(3)

In order to ensure that access rights to railway infrastruc-
ture are applied throughout the Community on a uniform
Council Directive
and

non-discriminatory

basis,

(1) OJ C 321, 20.10.1998, p. 8.
(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. 119), 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. Directive as amended by Directive
2000/.../EC of the European Parliament and of the Council (OJ
L ...).

(4)

(5)

(6)

(7)

Since some Member States have extended access rights
going beyond Directive 91/440/EEC, it seems necessary
to ensure fair, transparent and non-discriminatory treat-
ment of all railway undertakings that may operate in this
market by extending the licensing principles laid down
by Directive 95/18/EC to all companies active in the
sector.

In order better to fulfil the information obligations,
Member States and the Commission should ensure better
information for all Member States and the Commission.
Following common practice and a logical interpretation
of Directive 95/18/EC, the information to be given by
Member States and the Commission should also cover
licences issued.

It is desirable to ensure that licensed railway undertakings
that operate international goods transport respect the
relevant customs and tax provisions applicable, in particu-
lar regarding customs transit.

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 set out broad
principles for the licensing of railway undertakings and
the mutual recognition of such licences throughout the
Community, cannot be sufficiently achieved by the
Member States on account of the manifestly international
dimension of issuing such licences and can therefore, by
reason of its transnational implications, be better achieved
by the Community. This Directive does not go beyond
what is necessary to achieve those objectives.

(6) OJ L 143, 27.6.1995, p. 70.

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Official Journal of the European Communities

27.6.2000

(8) Directive 95/18/EC should be amended accordingly,

3. Article 3 shall be replaced by the following:

HAVE ADOPTED THIS DIRECTIVE:

‘Article 3

Article 1

Directive 95/18/EC is amended as follows:

Each Member State shall designate the body responsible
for issuing licences and for carrying out the obligations
imposed by this Directive. The task of issuing licences shall
be carried out by a body which does not provide rail
transport services itself and is independent of bodies or
undertakings that do so’.

1. Article 1 shall be replaced by the following:

4. The following paragraph shall be added to Article 4:

‘Article 1

A licence shall be valid throughout the territory of

‘5.
the Community.’.

This Directive concerns the criteria applicable to
1.
the issue, renewal or amendment of licences by a Member
State intended for railway undertakings which are or will
be established in the Community.

Member States may exclude from the scope of this

2.
Directive:

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

(b) railway undertakings which only operate urban or

suburban rail passenger services;

(c) railway undertakings whose activity is limited to the
provision of regional rail freight services that are not
covered by the scope of Directive 91/440/EEC;

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

3.
Undertakings the business of which is limited to
providing shuttle services for road vehicles through the
Channel Tunnel are excluded from the scope of this
Directive’.

2. Article 2(a) shall be replaced by the following:

‘(a)

“railway undertaking”: shall mean any public or private
undertaking the principal business of which is to
provide services for the transport of goods and/or
passengers by rail with a requirement that the under-
taking must ensure traction; this also includes under-
takings which provide traction only’.

5. Article 6, fourth indent shall be replaced by the following:

‘— has/have not been convicted of serious or repeated
failure to fulfil social- or labour-law obligations, includ-
ing obligations under occupational safety and health
legislation, and customs-law obligations in case of
a company seeking to operate cross-border goods
transport subject to customs procedures’.

6. Article 11(8) shall be replaced by the following:

When a licensing authority issues,

‘8.
suspends,
revokes or amends a licence, the Member State concerned
immediately inform the Commission accordingly.
shall
The Commission shall inform the other Member States
forthwith’.

7. Articles 12 and 13 shall be replaced by the following:

‘Article 12

In addition to the requirements of this Directive, a railway
undertaking shall also comply with national
law and
regulatory provisions which are compatible with Com-
munity 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 rel-
evant railway sector designed to offer benefits or
protection to consumers.

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Official Journal of the European Communities

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Article 13

Article 3

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

Article 2

Member States shall bring into force the laws, regulations
and administrative provisions necessary to compy with this
Directive by ... (*). They shall forthwith inform the Commission
thereof.

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.

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

Article 4

This Directive is addressed to the Member States.

Done at ...

For the European Parliament

For the Council

The President

The President

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

C 178/26

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Official Journal of the European Communities

27.6.2000

STATEMENT OF THE COUNCIL’S REASONS

I.

INTRODUCTION

1. On 30 September 1998, the Commission submitted to the Council a proposal for a Directive of
the European Parliament and of the Council amending Directive 95/18/EC on the licensing of
railway undertakings (1). The proposal was based on Article 75 of the EC Treaty (following
amendment, this became Article 71 of the EC Treaty).

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.

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

3. The Commission submitted its amended proposal (5) to the European Parliament and to the

Council on 29 November 1999. That proposal was based on Article 71 of the EC Treaty.

4. The Council adopted its Common Position in accordance with Article 251 of the EC Treaty on

28 March 2000.

II. OBJECTIVES

This Directive forms part of a legislative package aimed at revitalising European railways. The
principal aim is to reverse the decline from which rail transport is suffering particularly in the area of
freight by creating the conditions for an expanding, competitive customer-oriented rail system.

Revitalisation of the railways is indispensable in view of the current congestion of road infrastructures
resulting in safety and environmental problems. If road transport is not to come to a complete
standstill in the next few years, more rational use of the railways will be necessary. The conditions of
competition for the railways will therefore have to be improved in relation to other means of
transport. To that end, this proposal aims to enlarge the scope of application of the current Directive
on the licensing of railway undertakings so as to standardise the conditions applicable to all railway
undertakings established in the Community. Licences would be granted by the Member State in which
the railway undertaking is established although they would be valid throughout the Community.
Thus a common licensing system would make it possible to ensure that undertakings were treated
fairly and without discrimination. In this way all railway undertakings would be able to exploit the
possibilities of access to new markets on a uniform and non-discriminatory basis, thus limiting the
risk of licences constituting an obstacle to market access.

III. ANALYSIS OF THE COMMON POSITION

As the text was amended during the discussions, the Common Position differs from the Commission’s
proposal and amended proposal on certain points:

— in Article 1(2), the Council considered it desirable to provide for exemptions from the scope of
the Directive to be optional for Member States. Thus Member States which so wish can establish
a single model of licence for railway undertakings established in their territory,

(1) OJ C 321, 20.10.1998, p. 8.
(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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— in Article 1(3), the shuttle service for road vehicles through the Channel Tunnel has been excluded
from the scope of the Directive for the same reasons as are adduced in the statement of reasons
regarding the Common Position on the amendment of Directive 91/440/EEC,

— in Article 2(a), the definition of railway undertaking has been slightly amended to adapt it to the
new amended definition adopted by the Council in its Common Position on the proposal for a
Directive amending Directive 91/440/EEC; wording has also been added to cover companies
which provide traction only,

— Article 1(4) of the proposal has been incorporated into the Common Position as a new
Article 4(5), as the Council considered that this provision should be included among the
conditions for obtaining a licence,

— in Article 6, fourth indent, and Article 13, the Council has slightly amended Directive 95/18/EC
to ensure minimum level of security for the operation of the customs and fiscal procedures which
new railway undertakings would have to implement,

— in Article 11(8), the Council has amended Directive 95/18/EC so as to oblige the authority

responsible for licensing also to inform the Commission whenever it issues a new licence,

— in Article 12, which lists the requirements resulting from national legislation to be met by the
railway undertaking, the Council has seen fit to add a reference to the requirements offering
benefits or protection to consumers.

IV. EUROPEAN PARLIAMENT AMENDMENTS

Amendment 1 aims to include in Article 8 a reference to the fact that the conditions relating to
professional competence are non-discriminatory. As this principle of non-discrimination, one of the
fundamental principles of Community law enshrined in the Treaty and in the case-law of the Court,
was already mentioned in Article 12, the Council did not see the need to include it in Article 8, in the
same way as it does not appear explicitly in Articles 6, 7 and 9 of the Directive.

Amendment 2 was rejected by the Council. The aim was to link, in the case of freight services, cover
of the railway undertaking’s civil liability in the event of an accident to the fact that the charges reflect
willingness to pay more than the costs imposed and to the fact that the regulatory bodies ensure
charges are not excessive. Like the Commission, the Council considered that all railway undertakings
should have sufficient cover of their liability and that such cover could not be linked to agreement by
the railway undertakings to pay more than costs. Protection of all third parties should be ensured in
the event of an accident or incident.