Common Position (EC) No 28/2000 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 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification
Date: 2000-03-28
Institutions: Council of the European Union
Subjects: common transport policy, freedom to provide services, rail transport, trade licence, transport company, transport safety

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COMMON POSITION (EC) No 28/2000

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 ...
on the allocation of railway infrastructure capacity and the levying of charges for the use of
railway infrastructure and safety certification

(2000/C 178/03)

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,

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) Greater integration of the Community railway sector is
an essential element of the completion of the internal
market and moving towards achieving sustainable
mobility.

(2) 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; these rights mean that railway
infrastructure can be used by multiple users.

(3) Council Directive 95/19/EC of 19 June 1995 on the
allocation of railway infrastructure capacity and the
charging of infrastructure fees (6) set out a broad frame-
work for the allocation of railway infrastructure capacity.

(4) Those Directives have not prevented a considerable
variation in the structure and level of railway infrastruc-
ture charges and the form and duration of capacity-
allocation processes.

(5) To ensure transparency and non-discriminatory access to
rail
infrastructure for all railway undertakings all the
necessary information required to use access rights are to
be published in a network statement.

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

(7)

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

(8) An efficient

freight sector, especially across borders,

requires action for the opening up of the market.

(9)

It should be possible for Member States to allow pur-
chasers of railway services to enter the capacity-allocation
process directly.

(1) OJ C 321, 20.10.1998, p. 10.
(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. 120), 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.

(6) OJ L 143, 27.6.1995, p. 75.

(10) The revitalisation of European railways by means of
extended access for international freight on the trans-
European rail freight network requires fair intermodal
competition between rail and road, particularly by taking
the different external effects;
appropriate account of
appropriate charging schemes
infrastruture
rail
coupled with appropriate charging schemes for other
transport infrastructures and competitive operators will
result in an optimal balance of different transport modes.

for

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(11) The charging and capacity-allocation schemes should
permit equal and non-discriminatory access for all under-
takings and attempt as far as possible to meet the
needs of all users and traffic types in a fair and non-
discriminatory manner.

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

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

(14) In order to take into account the needs of users, or
potential users, of railway infrastructure capacity to plan
their business, and to 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.

(22) The requirements for passenger services may often con-
flict with the requirements for freight; the requirements
for passenger services may result in a network which is
more costly to build and maintain than one designed
solely for freight; the increasing speed differential between
freight and passenger rolling stock can lead to an
exacerbation of the conflict between these two types of
traffic.

(23) Different users and types of users will frequently have a
different impact on infrastructure capacity and the needs
of different services need to be properly balanced.

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

(25) The charging and capacity-allocation schemes must take
account of the effects of increasing saturation of infra-
structure capacity and ultimately the scarcity of capacity.

(15) It is desirable for railway undertakings and the infrastruc-
ture manager to be provided with incentives to minimise
disruption and improve performance of the network.

(26) The different time-frames for planning traffic types mean
that it is desirable to ensure that requests for infrastructure
capacity which are made after the completion of the
timetabling process can be satisfied.

(16) Charging and capacity-allocation schemes should allow

for fair competition in the provision of railway services.

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

(18) It is important to maximise the flexibility available to the
infrastructure managers with regard to the allocation of
infrastructure capacity, but this must be consistent with
satisfaction of the applicant’s reasonable requirements.

(19) The capacity-allocation process must prevent the impo-
sition of undue constraints on the wishes of other
undertakings holding, or intending to hold, rights to use
the infrastructure to develop their business.

(20) It is desirable to grant some degree of flexibility to
infrastructure managers to enable a more efficient use to
be made of the infrastructure network.

(27) The use of information technology can enhance the
speed and responsiveness of the timetabling process and
improve the ability of applicants to bid for infrastructure
capacity, as well as improving the ability to establish train
paths which cross more than one infrastructure manager’s
network.

(28) To ensure the optimum outcome for railway undertak-
ings, 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.

(29) In view of the monopolistic position of the infrastructure
managers, it is desirable to require an examination of
the available infrastructure capacity and methods of
enhancing it when the capacity-allocation process is
unable to meet the requirements of users.

(21) 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.

(30) A lack of information about other railway undertakings’
requests as well as about the constraints within the system
may make it difficult for railway undertakings to seek to
optimise their infrastructure capacity requests.

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(31) It is important to ensure the better coordination of
allocation schemes so as to ensure the improved attract-
iveness of rail for traffic which uses the network of
more than one infrastructure manager, in particular for
international traffic.

(41) Discounts which are allowed to railway undertakings
must relate to actual administrative cost savings experi-
enced; discounts may also be used to promote the efficient
use of infrastructure.

(32) 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.

(33) It is desirable to define those components of the infra-
structure service which are essential to enable an operator
to provide a service and which should be provided in
return for minimum access charges.

(34) Investment

in railway infrastructure is desirable and
infrastructure charging schemes should provide incen-
tives for infrastructure managers to make appropriate
investments where they are economically attractive.

(42) It is desirable for railway undertakings and the infrastruc-
ture manager to be provided with incentives to minimise
disruption of the network.

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

(44) Measures are needed to ensure that all railway undertak-
ings licensed under Community law are required to hold
an appropriate safety certificate before operating on the
territory of a Member State;
the granting of safety
certificates must comply with Community law.

(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.

(45) The efficient management and fair and non-discriminat-
ory use of rail infrastructure require the establishment of
a regulatory body that oversees the application of these
Community rules and acts as an appeal body, notwith-
standing the possibility of judicial review.

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

(46) Specific measures are required to take account of the
specific geopolitical and geographical situation 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.

(37) It is desirable to ensure that account is taken of external

costs when making transport decisions.

(38) It is important to ensure that charges for 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.

(39) The overall level of cost recovery through infrastructure
charges affects the necessary level of government contri-
bution; Member States may require different levels of
overall cost recovery through charges including mark-
ups or a rate of return which the market can bear while
balancing cost recovery with intermodal competitiveness
of rail freight. However, it is desirable for any infrastruc-
ture charging scheme to enable traffic to use the rail
network which can at least pay for the additional cost
which it imposes.

(40) A railway infrastructure is a natural monopoly. It is
therefore necessary to provide infrastructure managers
with incentives to reduce costs and manage their infra-
structure efficiently.

(47) 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 implementation powers
conferred on the Commission (1).

(48) 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 coordinate
arrengements in the Member States governing the allo-
cation of railway infrastructure capacity and the charges
made for the use thereof as well as safety certification,
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 transnational action, be better
achieved by the Community. This Directive does not go
beyond what is necessary to achieve those objectives.

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

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(49) Council Regulation (EEC) No 2830/77 of 12 December
1977 on the measures necessary to achieve comparability
between the accounting systems and annual accounts
of railway undertakings (1), Council Regulation (EEC)
No 2183/78 of 19 September 1978 laying down uniform
costing principles for railway undertakings (2), Council
Decision 82/529/EEC of 19 July 1982 on the fixing of
rates for the international carriage of goods by rail (3),
Council Decision 83/418/EEC of 25 July 1983 on the
commercial independence of the railway in the manage-
ment of their international passenger and luggage traff-
ic (4), and Directive 95/19/EC are superseded by this
Directive and should therefore be repealed,

HAVE ADOPTED THIS DIRECTIVE:

(c) regional networks which are used for regional freight
services solely by a railway undertaking that is not covered
by the scope of Directive 91/440/EEC until capacity on
that network is requested by another applicant;

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

4.
Transport operations in the form of shuttle services for
road vehicles through the Channel Tunnel are excluded from
the scope of this Directive.

CHAPTER I

INTRODUCTORY PROVISIONS

Article 1

Scope

1.
This Directive concerns the principles and procedures to
be applied with regard to the setting and charging of railway
infrastructure charges and the allocation of railway infrastruc-
ture capacity.

Member States shall ensure that charging and capacity-
allocation schemes for railway infrastructure follow the prin-
ciples set down in this Directive and thus allow the infrastruc-
ture manager to market and make optimum effective use of
the available infrastructure capacity.

This Directive applies to the use of railway infrastructure

2.
for domestic and international rail services.

3. Member States may exclude from the scope of this
Directive:

(a) stand-alone local and regional networks for passenger

services on railway infrastructure;

(b) networks intended only for the operation or urban or

suburban passenger services;

(1) OJ L 334, 24.12.1977, p. 13. Regulation as last amended by the

1994 Act of Accession.

(2) OJ L 258, 21.9.1978, p. 1. Regulation as last amended by the

1994 Act of Accession.

(3) OJ L 234, 9.8.1982, p. 5. Decision as last amended by the 1994

Act of Accession.

(4) OJ L 237, 26.8.1983, p. 32. Decision as last amended by the

1994 Act of Accession.

Article 2

Definitions

For the purpose of this Directive:

(a)

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

(b) ‘applicant’ means a licensed railway undertaking and/or an
international grouping of railway undertakings, and, in
Member States which provide for such a possibility,
other persons and/or legal entities with public service or
commercial interest in procuring infrastructure capacity,
such as public authorities under Regulation (EEC)
No 1191/69 (5) and shippers, freight forwarders and com-
bined-transport operators, for the operation of railway
service on their respective territories;

(c)

‘congested infrastructure’ means a section of infrastructure
for which demand for infrastructure capacity cannot be
fully satisfied during certain periods even after coordi-
nation of the different requests for capacity;

(d) ‘capacity-enhancement plan’ means a measure or series of
measures with a calendar for their implementation which
are proposed to alleviate the capacity constraints leading to
the declaration of a section of infrastructure as ‘congested
infrastructure’;

(e)

‘coordination’ means the process through which the
allocation body and applicants will attempt to resolve
situations in which there are conflicting applications for
infrastructure capacity;

(5) Regulation (EEC) No 1191/69 of the Council of 26 June 1969 on
action by Member States concerning the obligations inherent in
the concept of a public service in transport by rail, road and
inland waterway (OJ L 156, 28.6.1969, p. 1). Regulation as last
amended by Regulation (EC) No 1893/91 (OJ L 169, 29.6.1991,
p. 1).

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(f)

‘framework agreement’ means a legally binding general
agreement on the basis of public or private law, setting
out the rights and obligations of an applicant and the
infrastructure manager or the allocation body in relation
to the infrastructure capacity to be allocated and the
charges to be levied over a period longer than one working
timetable period;

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

(h) ‘infrastructure manager’ means any body or undertaking
that
is responsible in particular for establishing and
maintaining railway infrastructure. This may also include
infrastructure control and safety
the management of
systems. The functions of the infrastructure manager on a
network or part of a network may be allocated to different
bodies or undertakings;

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. The content of the
network statement is laid down in Annex I.

The network statement shall be kept up to date and

3.
modified as necessary.

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

CHAPTER II

INFRASTRUCTURE CHARGES

(i)

‘network’ means the entire railway infrastructure owned
and/or managed by an infrastructure manager;

Article 4

(j)

‘network statement’ means the statement which sets out in
detail the general rules, deadlines, procedures and criteria
concerning the charging and capacity-allocation schemes.
It shall also contain such other information as is required
to enable application for infrastructure capacity;

(k) ‘railway undertaking’ means any public or private under-
taking, licensed according to applicable Community legis-
lation, 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;

(l)

‘train path’ means the infrastructure capacity needed to
run a train between two places over a given time period;

(m) ‘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.

Article 3

Network statement

1.
The infrastructure manager shall, after consultation with
the interested parties, develop and publish a network statement
obtainable against payment of a duty which may not exceed
the cost of publishing that statement.

Establishing, determining and collecting charges

1. Member States shall establish a charging framework
while respecting the management independence laid down in
Article 4 of Directive 91/440/EEC.

Subject to the said condition of management independence,
Member States shall also establish specific charging rules or
delegate such powers to the infrastructure manager. The
determination of the charge for the use of infrastructure and
the collection of
this charge shall be performed by the
infrastructure manager.

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 this
chapter, other than collecting the charges shall be performed
by a charging body that is independent in its legal form,
organisation and decision-making from any railway under-
taking.

This paragraph shall not apply to Member States which have
established a rail regulator in accordance with Article 6(4) of
Directive 91/440/EEC; in this case Article 6(5) of the same
Directive shall apply accordingly.

3.
Infrastructure managers shall cooperate to achieve the
efficient operation of train services which cross more than
one infrastructure network. They shall in particular aim to
guarantee the optimum competitiveness of international rail
freight and ensure the efficient utilisation of
the trans-
European rail freight network. They may establish such joint
organisations as are appropriate to enable this to take place.
Any cooperation or joint organisation shall be bound by the
rules set out in this Directive.

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Except where specific arrangements are made under
4.
Article 8(2),
the
charging scheme in use is based on the same principles over
the whole of their network.

infrastructure managers shall ensure that

Within the charging framework of Articles 7 and 8, a Member
State may require the infrastructure manager to balance his
accounts without State funding.

5.
Infrastructure managers shall ensure that the application
of the charging scheme results in equivalent and non-discrimi-
natory charges for different railway undertakings that perform
services of 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.

6.
An infrastructure manager or charging body shall respect
the commercial confidentiality of information provided to it
by applicants.

Article 5

Services

1.
Railway undertakings shall, on a non-discriminatory
basis, be entitled to the minimum access package and track
access to service facilities that are described in Annex II. The
supply of services referred to in Annex II, point 2, shall be
provided 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.

2.
Infrastructure managers shall, with due regard to safety
and to maintaining and improving the quality of the infrastruc-
ture service, be provided with incentives to reduce the costs of
provision of infrastructure and the level of access charges.

3. Member States shall ensure that the provision set out in
paragraph 2 is implemented, either through a contractual
agreement between the competent authority and infrastructure
manager covering a period of not less than three years which
provides for State funding or through the establishment of
appropriate regulatory measures with adequate powers.

4. Where a contractual agreement exists, the terms of the
contract and the structure of the payments agreed to provide
funding to the infrastructure manager shall be agreed in
advance to cover the whole of the contract period.

5.
A method for apportioning costs shall be established.
Member States may require prior approval. This method
should be updated from time to time to the best international
practice.

Article 7

Principles of charging

2. Where the infrastructure manager offers any of the range
of services described in Annex II, point 3, as additional services
it shall supply them upon request to a railway undertaking.

Charges for the use of railway infrastructure shall be paid

1.
to the infrastructure manager and used to fund its business.

3.
Railway undertakings may request a further range of
ancillary services, listed in Annex II, point 4, from the infra-
structure manager or from other suppliers. The infrastructure
manager is not obliged to supply these services.

Article 6

Infrastructure cost and accounts

lay down conditions,

including
1. Member States shall
where appropriate advance payments, to ensure that, under
normal business conditions and over a reasonable time period,
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.

2. Member States may require the infrastructure manager
to provide all necessary information on the charges imposed.
The infrastructure manager must, in this regard, be able to
justify that infrastructure charges actually invoiced to each
to Articles 4 to 12, comply with the
operator, pursuant
methodology, rules and, where applicable, scales laid down in
the network statement.

3. Without prejudice to paragraph 4 or 5 or to Article 8,
the charges for the minimum access package and track access
to service facilities shall be set at the cost that is directly
incurred as a result of operating the train service. The supply
of services referred to in Annex II, point 2, shall not be covered
by this Article.

The infrastructure charge may include a charge which
4.
reflects the scarcity of capacity of the identifiable segment of
the infrastructure during periods of congestion.

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5.
The infrastructure charge may be modified to take
account of the cost of the environmental effects caused by the
operation of the train. Such a modification shall be differen-
tiated according to the magnitude of the effect caused. In the
absence of any comparable level of charging of environmental
costs in other competing modes of transport, such modifi-
cation shall not result in any overall change in revenue to the
infrastructure manager. If a comparable level of charging of
environmental costs has been introduced for rail and compet-
ing modes of transport and that generates additional revenue,
it shall be for Member States to decide how the revenue shall
be used.

6.
To avoid undesirable disproportionate fluctuations, the
charges referred to in paragraphs 3, 4 and 5 may be averaged
over a reasonable spread of train services and times. Neverthe-
less, the relative magnitudes of the infrastructure charges shall
be related to the costs attributable to the services.

7. Where services listed in Annex II, points 3 and 4, as
additional and ancillary services are offered only by one
supplier the charge imposed for such a service shall relate to
the cost of providing it, calculated on the basis of the actual
level of use.

8.
Charges may be levied for capacity used for the purpose
of infrastructure maintenance. Such charges shall not exceed
the net revenue loss to the infrastructure manager caused by
the maintenance.

Article 8

Exceptions to charging principles

1. Where a Member State wishes full recovery of the costs
incurred by the infrastructure manager it may, if the market
can bear this, levy mark-ups on the basis of efficient, trans-
parent and non-discriminatory principles, while guaranteeing
optimum competitiveness in particular of international rail
freight. The charging system should respect the productivity
increases achieved by railway undertakings.

Without prejudice to the principles referred to in the first
subparagraph only the following options for levying mark-
ups can be used: mark-ups for individual market segments,
individually negotiated contracts, and a system of fixed and
variable charges. However, in market segments which can pay
overall at least the cost that is directly incurred as a result of
operating the train service plus a rate of return which the
market can bear, that market segment shall not be prevented
from utilising infrastructure capacity.

2.
For specific investment projects, in the future, or that
have been completed not more than 15 years before the entry
into force of this Directive, the infrastructure manager may set
or continue to set higher charges on the basis of the long-term
costs of such projects if they increase efficiency and/or cost-
effectiveness and could not otherwise be or have been
undertaken. Such a charging arrangement may also incorpor-
ate agreements on the sharing of the risk associated with new
investments.

To prevent discrimination, it shall be ensured that any
3.
given infrastructure manager’s average and marginal charges
for equivalent uses of its infrastructure are comparable and
that comparable services in the same market segment are
subject to the same charges. The infrastructure manager shall
show in the network statement that the charging system meets
these requirements in so far as this can be done without
disclosing confidential business information.

If an infrastructure manager intends to modify the
4.
essential elements of
the charging system referred to in
paragraph 1, it shall make them public at least three months
in advance.

Article 9

Discounts

1. Without prejudice to Articles 81, 82, 86 and 87 of the
Treaty and notwithstanding Article 7(3) of this Directive, any
discount on the charges levied on a railway undertaking by the
infrastructure manager, for any service, shall comply with the
criteria set out in this Article.

2. With the exception of paragraph 3, discounts shall be
limited to the actual saving of the administrative cost to the
infrastructure manager. In determining the level of discount,
no account may be taken of cost savings already internalised
in the charge levied.

3.
Infrastructure managers may introduce schemes available
to all users of the infrastructure, for specified traffic flows,
granting time-limited discounts to encourage the development
of new rail services, or discounts encouraging the use of
considerably underutilised lines.

Discounts may relate only to charges levied for a

4.
specified infrastructure section.

5.

Similar discount schemes shall apply for similar services.

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Article 10

CHAPTER III

Compensation schemes

for unpaid environmental,

accident and infrastructure costs

ALLOCATION OF INFRASTRUCTURE CAPACITY

1. Member States may put in place a time-limited compen-
sation scheme for the use of railway infrastructure for the
demonstrably unpaid environmental, accident and infrastruc-
ture costs of competing transport modes in so far as these
costs exceed the equivalent costs of rail.

2. Where an operator receiving compensation enjoys an
exclusive right, the compensation must be accompanied by
comparable benefits to users.

it shall

The methodology used and calculations performed must
3.
be publicly available.
in particular be possible to
demonstrate the specific uncharged costs of the competing
transport infrastructure that are avoided and to ensure that the
scheme is granted on non-discriminatory terms to undertak-
ings.

4. Member States shall ensure that such a scheme is
compatible with Articles 73, 87 and 88 of the Treaty.

Article 11

Performance scheme

1.
Infrastructure charging schemes shall through a perform-
ance scheme encourage railway undertakings and the infra-
structure manager to minimise disruption and improve the
performance of the railway network. This may include penal-
ties for actions which disrupt the operation of the network,
compensation for undertakings which suffer from disruption
and bonuses that reward better than planned performance.

The basic principles of the performance scheme shall

2.
apply throughout the network.

Article 12

Reservation charges

Infrastructure managers may levy an appropriate charge for
capacity that is requested but not used. This charge shall
provide incentives for efficient use of capacity.

Article 13

Capacity rights

1.
Infrastructure capacity shall be allocated by an infrastruc-
ture manager and, once allocated to an applicant, may not be
transferred by the recipient to another undertaking or service.
The use of capacity by a railway undertaking when carrying
out
the business of an applicant who is not a railway
undertaking shall not be considered a transfer.

2.
The right to use specific infrastructure capacity in the
form of a train path may be granted to applicants for a
maximum duration of one working timetable period.

An infrastructure manager and an applicant may enter into a
framework agreement as laid down in Article 17 for the use of
capacity on the relevant railway infrastructure for a longer
term than one working-timetable period.

The definition of

3.
respective rights and obligations
between infrastructure managers and applicants in respect of
any allocation of capacity shall be laid down in contracts or
legislation.

Article 14

Capacity allocation

1. Member States may establish a framework for the
allocation of
infrastructure capacity while respecting the
management independence laid down in Article 4 of Directive
91/440/EEC. Specific capacity-allocation rules shall be estab-
lished. The infrastructure manager shall perform the capacity
allocation processes. In particular, the infrastructure manager
shall ensure that infrastructure capacity is allocated on a
fair and non-discriminatory basis and in accordance with
Community law.

in its legal form,
2. Where the infrastructure manager,
organisation or decision-making functions is not independent
of any railway undertaking,
the functions referred to in
paragraph 1 and described in this chapter shall be performed
by an allocation body that is independent in its legal form,
organisation and decision-making from any railway under-
taking.

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This paragraph shall not apply to Member States which have
established a rail regulator in accordance with Article 6(4) of
Directive 91/440/EEC; in this case Article 6(5) of the same
Directive shall apply accordingly.

Article 16

Applicants

3.
Infrastructure managers and allocation bodies shall
respect the commercial confidentiality of information provided
to them.

Applications for infrastructure capacity may be made
1.
by railway undertakings and their international groupings.
Member States may also allow other applicants to apply for
infrastructure capacity on their territories.

Article 15

Cooperation in the allocation of infrastructure capacity
on more than one network

1.
Infrastructure managers shall cooperate to enable the
infrastructure capacity
efficient creation and allocation of
which crosses more than one network. They shall organise
international train paths, in particular within the framework
of the trans-European rail freight network. They shall establish
such procedures as are appropriate to enable this to take place.
These procedures shall be bound by the rules set out in this
Directive.

The procedure established in order to coordinate the allocation
of infrastructure capacity at an international level shall associ-
ate representatives of infrastructure managers for all railway
infrastructures whose allocation decisions have an impact on
more than one other infrastructure manager. Appropriate
representatives of infrastructure managers from outside the
Community may be associated with these procedures. The
Commission shall be informed and invited to attend as an
observer.

2.
At any meeting or other activity undertaken to permit
the allocation of infrastructure capacity for transnetwork train
services, decisions shall only be taken by representatives of
infrastructure managers.

The participants in the cooperation referred to in para-
3.
graph 1 shall ensure that its membership, methods of oper-
ation and all relevant criteria which are used for assessing and
allocating infrastructure capacity be made publicly available.

4. Working in cooperation as referred to in paragraph 1,
infrastructure managers may assess the need for, and may
where necessary organise and propose international train paths
to facilitate the operation of freight trains which are subject to
an ad hoc request as referred to in Article 23.

2.
The infrastructure manager may set requirements with
regard to applicants to ensure that its legitimate expectations
about future revenues and utilisation of the infrastructure
are safeguarded. Such requirements shall be appropriate,
transparent and non-discriminatory. The requirements shall be
published as part of the allocation principles in the network
statement, and the Commission shall be informed.

3.
The requirements in paragraph 2 may only include the
provision of a financial guarantee that must not exceed
an appropriate level which shall be proportional
to the
contemplated level of activity of the applicant, and assurance
of the capability to prepare compliant bids for infrastructure
capacity.

Article 17

Framework agreements

1. Without prejudice to Articles 81, 82 and 86 of the
Treaty, a framework agreement may be concluded with
an applicant. Such a framework agreement specifies the
characteristics of the infrastructure capacity required by and
offered to the applicant over a period of time exceeding one
working timetable period. The framework agreement shall not
specify a train path in detail, but should be such as to seek to
meet the legitimate commercial needs of the applicant. A
Member State may require prior approval of such a framework
agreement by the regulatory body referred to in Article 30 of
this Directive.

2.
Framework agreements shall not be such as to preclude
the use of the relevant infrastructure by other applicants or
services.

A framework agreement shall allow for the amendment
3.
or limitation of its terms to enable better use to be made of
the railway infrastructure.

Such prearranged international train paths shall be made
available to applicants via any of the participating infrastruc-
ture managers.

The framework agreement may contain penalties should

4.
it be necessary to modify or terminate the agreement.

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5.
Framework agreements shall in principle be for a period
of five years. The infrastructure manager may agree to a
shorter or longer period in specific cases. Any period longer
than five years shall be justified by the existence of commercial
contracts, specialised investments or risks.

6. While respecting commercial confidentiality, the general
nature of each framework agreement shall be made available
to any interested party.

Article 18

Schedule for the allocation process

The infrastructure manager shall adhere to the schedule

1.
for capacity allocation set out in Annex III.

2.
Infrastructure managers shall agree with the other rel-
evant infrastructure managers concerned which international
train paths are to be included in the working timetable, before
commencing consultation on the draft working timetable.
Adjustments shall only be made if absolutely necessary.

Article 19

Application

1.
Applicants may apply on the basis of public or private
law to the infrastructure manager to request an agreement
granting rights to use railway infrastructure against a charge
as provided for in Chapter II.

Requests relating to the regular working timetable must

2.
adhere to the deadlines set out in Annex III.

An applicant who is a party to a framework agreement

3.
shall apply in accordance with that agreement.

4.
Applicants may request infrastructure capacity crossing
more than one network by applying to one infrastructure
manager. That infrastructure manager shall then be permitted
to act on behalf of the applicant to seek capacity with the
other relevant infrastructure managers.

Article 20

Scheduling

The infrastructure manager shall as far as is possible
1.
meet all requests for infrastructure capacity including requests
for train paths crossing more than one network, and shall as
far as possible take account of all constraints on applications,
including the economic effect on their business.

2.
The infrastructure manager may give priority to specific
services within the scheduling and coordination process but
only as set out in Articles 22 and 24.

3.
The infrastructure manager shall consult interested par-
ties about the draft working timetable and allow them at least
one month to present their views. Interested parties shall
include all those who have requested infrastructure capacity as
well as other parties who wish to have the opportunity to
comment on how the working timetable may affect their
ability to procure rail services during the working timetable
period.

The infrastructure manager

4.
measures to deal with any concerns that are expressed.

shall

take appropriate

Article 21

Coordination process

1.
During the scheduling process referred to in Article 20,
when the infrastructure manager encounters conflicts between
different requests he shall attempt, through coordination of
the requests, to ensure the best possible matching of all
requirements.

the
2. When a situation requiring coordination arises,
infrastructure manager shall have the right, within reasonable
limits, to propose infrastructure capacity that differs from that
which was requested.

3.
The infrastructure manager shall attempt, through con-
sultation with the appropriate applicants, to achieve a resol-
ution of any conflicts.

5.
Infrastructure managers shall ensure that, for infrastruc-
ture capacity crossing more than one network, applicants may
apply direct
to any joint body which the infrastructure
managers may establish.

4.
The principles governing the coordination process shall
be defined in the network statement. These shall in particular
reflect the difficulty of arranging international train paths and
the effect that modification may have on other infrastructure
managers.

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5. When requests for infrastructure capacity cannot the
satisfied without coordination, the infrastructure manager shall
attempt to accommodate all requests through coordination.

Article 23

Ad hoc requests

6. Without prejudice to the existing appeal procedures and
to the provisions of Article 30, in case of disputes relating to
the allocation of infrastructure capacity, a dispute resolution
system shall be made available in order to resolve such disputes
promptly. If this system is applied, a decision shall be reached
within a time limit of 10 working days.

Article 22

Congested infrastructure

1. Where after coordination of the requested paths and
consultation with applicants it is not possible to satisfy requests
for infrastructure capacity adequately then the infrastructure
manager must immediately declare that element of infrastruc-
ture on which this has occurred to be congested. This shall
also be done for infrastructure which it can be foreseen will
suffer from insufficient capacity in the near future.

2. When infrastructure has been declared to be congested,
the infrastructure manager shall carry out a capacity analysis
as described in Article 25, unless a capacity-enhancement plan
as described in Article 26 is already being implemented.

3. When charges in accordance with Article 7(4) have not
been levied or have not achieved a satisfactory result and
the infrastructure has been declared to be congested, the
infrastructure manager may in addition employ priority criteria
to allocate infrastructure capacity.

The priority criteria shall take account of the importance
4.
of a service to society, relative to any other service which will
consequently be excluded. This shall include taking account of
the effect in other Member States.

5.
The importance of freight services and in particular
international freight services shall be given adequate consider-
ation in determining priority criteria.

The procedures which shall be followed and criteria used
6.
where infrastructure is congested shall be set out in the
network statement.

1.
The infrastructure manager shall respond to ad hoc
requests for individual train paths as quickly as possible, and
in any event, within five workings days. Information supplied
on available spare capacity shall be made available to all
applicants who may wish to use this capacity.

2.
Infrastructure managers shall where necessary undertake
an evaluation of the need for reserve capacity to be kept
available within the final scheduled working timetable to
enable them to respond rapidly to foreseeable ad hoc requests
for capacity. This shall also apply in cases of congested
infrastructure.

Article 24

Specialised infrastructure

1. Without prejudice to paragraph 2, infrastructure capacity
shall be considered to be available for the use of all types of
service which conform to the characteristics necessary for
operation on the train path.

2. Where there are suitable alternative routes, the infrastruc-
ture manager may, after consultation with interested parties,
designate particular infrastructure for use by specified types of
traffic. Without prejudice to Articles 81, 82 and 86 of the
Treaty, when such designation has occurred, the infrastructure
manager may give priority to this type of
traffic when
allocating infrastructure capacity.

Such designation shall not prevent the use of such infrastruc-
ture by other types of traffic when capacity is available and
when the rolling stock conforms to the technical characteristics
necessary for operation on the line.

3. When infrastructure has been designated pursuant to
paragraph 2, this shall be described in the network statement.

Article 25

Capacity analysis

The objective of capacity analysis is to determine the
1.
restrictions on infrastructure capacity which prevent requests
for capacity from being adequately met, and to propose
methods of enabling additional requests to be satisfied. This
analysis shall identify the reasons for the congestion and what
measures might be taken in the short and medium term to
ease the congestion.

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The analysis

shall consider

the infrastructure,

2.
the
operating procedures, the nature of the different services
operating and the effect of all these factors on infrastructure
capacity. Measures to be considered shall include in particular
rerouting of services, retiming services, speed alterations and
infrastructure improvements.

A capacity analysis shall be completed within six months

3.
of the identification of infrastructure as congested.

However, the infrastructure manager may, subject to the
approval of the regulatory body referred to in Article 30
continue to levy those fees if:

(a) the capacity-enhancement plan cannot be realised for

reasons beyond its control; or

(b) the options available are not economically or financially

viable.

Article 26

Capacity-enhancement plan

Article 27

Use of train paths

1. Within six months of the completion of a capacity
analysis, the infrastructure manager shall produce a capacity-
enhancement plan.

A capacity-enhancement plan shall be developed after
2.
consultation with users of the relevant congested infrastruc-
ture.

It shall identify:

(a) the reasons for the congestion;

(b) the likely future development of traffic;

(c) the constraints on infrastructure development;

1.
In particular for congested infrastructure the infrastruc-
ture manager shall require the surrender of a train path which,
over a period of at least one month, has been used less than a
threshold quota to be laid down in the network statement,
unless this was due to non-economic reasons beyond the
operator’s control.

2.
An infrastructure manager may specify in the network
statement conditions whereby it will take account of previous
levels of utilisation of train paths in determining priorities for
the allocation process.

Article 28

Infrastructure capacity for scheduled maintenance

(d) the options and costs for capacity enhancement, including

likely changes to access charges.

1.
Requests for infrastructure capacity to enable mainten-
ance to be performed shall be submitted during the scheduling
process.

It shall also, on the basis of a cost-benefit analysis of the
possible measures identified, determine what action shall be
taken to enhance infrastructure capacity, including a calendar
for implementation of the measures.

2.
Adequate account shall be taken by the infrastructure
manager of the effect of infrastructure capacity reserved for
scheduled track maintenance on applicants.

The plan may be subject to prior approval by the Member
State.

Article 29

3.
The infrastructure manager shall cease to levy and
fees which are levied for the relevant infrastructure under
Article 7(4) in cases where:

(a)

it does not produce a capacity-enhancement plan; or

(b) it does not make progress with the action plan identified

in the capacity-enhancement plan.

Special measures to be taken in the event of disturbance

1.
In the event of disturbance to train movements caused
by technical failure or accident the infrastructure manager
must take all necessary steps to restore the normal situation.
To that end it shall draw up a contingency plan listing the
various public bodies to be informed in the event of serious
incidents or serious disturbance to train movements.

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2.
In an emergency and where absolutely necessary on
account of a breakdown making the infrastructure temporarily
unusable, the paths allocated may be withdrawn without
warning for as long as is necessary to repair the system.

if it deems it necessary,
The infrastructure manager may,
the
require railway undertakings to make available to it
resources which it feels are the most appropriate to restore the
normal situation as soon as possible.

3. Member States may require railway undertakings to be
involved in assuring the enforcement and monitoring of their
own compliance of the safety standards and rules.

CHAPTER IV

GENERAL MEASURES

Article 30

Regulatory body

1. Without prejudice to Article 21(6), Member States shall
establish a regulatory body. This body, which can be the
Ministry responsible for transport matters or any other body,
shall be independent in its organisation, funding decisions,
legal structure and decision-making from any infrastructure
manager, charging body, allocation body or applicant. The
body shall function according to the principles outlined in this
Article whereby appeal and regulatory functions may be
attributed to separate bodies.

3.
The regulatory body shall ensure that charges set by the
infrastructure manager comply with Chapter II and are non-
discriminatory. Negotiation between applicants and an infra-
structure manager concerning the level of
infrastructure
charges as provided for in Article 8(1) shall only be permitted
if these are carried out under the supervision of the regulatory
body. The regulatory body shall intervene if negotiations are
likely to contravene the requirements of this Directive.

4.
The regulatory body shall have the power to request
relevant information from the infrastructure manager, appli-
cants and any third party involved within the Member State
concerned, which must be supplied without undue delay.

5.
The regulatory body shall be required to decide on any
complaints and take action to remedy the situation within
a maximum period of
two months from receipt of all
information.

Notwithstanding paragraph 6, a decision of the regulatory
body shall be binding on all parties covered by that decision.

In the event of an appeal against a refusal to grant infrastructure
capacity, or against the terms of an offer of capacity, the
regulatory body shall either confirm that no modification of
the infrastructure manager’s decision is required, or it shall
require modification of that decision in accordance with
directions specified by the regulatory body.

6. Member States shall take the measures necessary to
ensure that decisions taken by the regulatory body are subject
to judicial review.

Article 31

Cooperation of regulatory bodies

2.
An applicant shall have a right to appeal to the regulatory
body if it believes that it has been unfairly treated, discriminated
against or is in any other way aggrieved, and in particular
against decisions adopted by the infrastructure manager or
where appropriate the railway undertaking concerning:

The national
regulatory bodies shall conduct an active
exchange of views and experience for the purposes of coordin-
ating their decision-making principles across the Community.
The Commission shall support them in this task.

(a) the network statement;

(b) criteria contained within it;

(c) the allocation process and its result;

(d) the charging scheme;

(e)

level or structure of infrastructure fees which it is, or may
be, required to pay;

(f) safety certificate, enforcement and monitoring of the safety

standards and rules.

Article 32

Safety certification

1.
The arrangements for safety certification for railway
undertakings which are or will be established in the Com-
munity and the international groupings which they form shall
be in accordance with this Article.

2.
The Member States shall provide for their respective
territories that a safety certificate in which the railway under-
taking’s safety requirements are set out be submitted in order
to ensure safe service on the routes concerned.

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3.
In order to obtain the safety certificate, the railway
undertaking shall comply with the regulations under national
law, compatible with Community law and applied in a
non-discriminatory manner, laying down the technical and
operational requirements specific to rail services and the
safety requirements applying to staff, rolling stock and the
undertaking’s internal organisation.

In particular, it shall provide proof that the staff whom it
employs to operate and accompany the trains have the
necessary training to comply with the traffic rules applied by
the infrastructure manager and to meet the safety requirements
imposed on it in the interests of train movement.

The railway undertaking shall also prove that the rolling stock
making up the trains has been approved by the public
authority or by the infrastructure manager and checked
in accordance with the operating rules applicable to the
infrastructure used. The safety certificate shall be issued by
whichever body is designated for the purpose by the Member
State in which the infrastructure used is situated.

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 Northern Ireland, a railway company so
licensed elsewhere submits an official application to oper-
ate competing railway services in, to or from Ireland,
Northern Ireland or Greece, the continued applicability of
this derogation will be decided upon in accordance with
the advisory procedure referred to in Article 35(2), or

(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 derogations
referred to in paragraph 1 shall not apply.

Article 33

Derogations

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

1.
Member States:

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

link 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 requirements set out in:

(a) Articles 3, 4(2), 13, 14, 17, 21(4), 21(6), 22, 24(3), 25 to
28 and 30 on the condition that decisions on the allocation
of infrastructure capacity or the charging of fees are open
to appeal, when so requested in writing by a railway
undertaking, before an independent body which shall take
its decision within two months of the submission of all
relevant information and whose decision shall be subject
to judicial review, and

(b) Article 32 in so far as rail transport services falling outside
the scope of Article 10 of Directive 91/440/EEC are
concerned.

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

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 35(2), or notification of the
official application referred to in point (b), the Member State
or States concerned (Ireland, the United Kingdom in respect of
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 of 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 35(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 situation and the
development of the rail market in, from and to the Member
State having requested the renewed derogation.

Luxembourg as a Member State with a relatively small
4.
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 infra-
structure, as provided for in Articles 4 and 14 in so far as
they oblige Member States to establish independent bodies
performing the tasks referred to in those Articles.

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CHAPTER V

FINAL PROVISIONS

Article 34

Implementing measures

1. Member States may bring any question concerning the
the
implementation of
Commission. Appropriate decisions shall be adopted in accord-
ance with the advisory procedure referred to in Article 35(2).

this Directive to the attention of

At

the request of a Member State or on its own
2.
initiative the Commission shall, in a specific case, examine
the application and enforcement of provisions concerning
charging, capacity allocation and safety certification, and
within two months of receipt of such a request decide
in accordance with the advisory procedure referred to in
Article 35(2) 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.

3.
The amendments necessary to adapt the Annexes shall
be adopted in accordance with the regulatory procedure
referred to in Article 35(3).

Article 36

Report

The Commission shall by ... (*) submit
to the European
Parliament and to the Council a report on the implementation
of this Directive, accompanied if necessary by proposals for
further Community action.

Article 37

Repeals

Regulation (EEC) No 2830/77, Regulation (EEC) No 2183/78,
Decision 82/529/EEC, Decision 83/418/EEC and Directive
95/19/EC are hereby repealed.

Article 38

Implementation

The Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by ... (**). They shall forthwith inform the Com-
mission thereof.

those provisions,

When Member States adopt
they shall
contain a reference to this Directive or be accompanied by
such reference on the occasion of their official publication.
Member States shall determine how such reference is to be
made.

Article 39

Entry into force

Article 35

Committee procedures

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

its

1.

The Commission shall be assisted by a Committee.

Article 40

Addressees

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

This Directive is addressed to the Member States.

Done at ...

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

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

For the European Parliament

For the Council

The President

The President

4.

The Committee shall adopt its rules of procedure.

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

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ANNEX I

CONTENTS OF THE NETWORK STATEMENT

The network statement referred to in Article 3 shall contain the following information.

1. A section setting out the nature of the infrastructure which is available to railway undertakings and the conditions

of access to it.

2. A section on charging principles and tariffs. This shall contain appropriate details of the charging scheme as well
as sufficient information on charges that apply to the services listed in Annex II which are provided by only one
supplier. It shall detail the methodology, rules and, where applicable, scales used for the application of Article 7(4)
and (5) and Articles 8 and 9. It shall contain information on changes in charge already decided upon or foreseen.

3. A section on the principles and criteria for capacity allocation. This shall set out the general capacity
characteristics of the infrastructure which is available to railway undertakings and any restrictions relating to its
use, including likely capacity requirements for maintenance. It shall also specify the procedures and deadlines
which relate to the capacity allocation process. It shall contain specific criteria which are employed during that
process, in particular:

(a)

the procedures according to which applicants may request capacity from the infrastructure manager;

(b)

the requirements governing applicants;

(c)

the schedule for the application and allocation processes;

(d)

the principles governing the coordination process;

(e)

the procedures which shall be followed and criteria used where infrastructure is congested;

(f) details of restrictions on the use of infrastructure;

(g) any conditions by which account is taken of previous levels of utilisation of capacity in determining priorities

for the allocation process.

It shall detail the measures taken to ensure the adequate treatment of freight services, international services and
requests subject to the ad hoc procedure.

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ANNEX II

SERVICES TO BE SUPPLIED TO THE RAILWAY UNDERTAKINGS

1. The minimum access package shall comprise:

(a) handling of requests for infrastructure capacity;

(b)

the right to utilise capacity which is granted;

(c) use of running-track points and junctions;

(d)

train control
information on train movement;

including signalling, regulation, dispatching and the communication and provision of

(e) all other information required to implement or operate the service for which capacity has been granted.

2. Track access to services facilities and supply of services shall comprise:

(a) use of electrical-supply equipment for traction current, where available;

(b) refuelling facilities;

(c) passenger stations, their buildings and other facilities;

(d)

freight terminals;

(e) marshalling yards;

(f)

train-formation facilities;

(g) storage sidings;

(h) maintenance and other technical facilities.

3. Additional services may comprise:

(a)

traction current;

(b) pre-heating of passenger trains;

(c)

supply of fuel, shunting, and all other services provided at the access service facilities mentioned above;

(d)

tailor-made contracts for:

— control of transport of dangerous goods;

— assistance in running abnormal trains.

4. Ancillary services may comprise:

(a) access to telecommunication network;

(b) provision of supplementary information;

(c)

technical inspection of rolling stock.

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ANNEX III

SCHEDULE FOR THE ALLOCATION PROCESS

1. The working timetable shall be established once per calendar year.

2. The change of working timetable shall take place at midnight on the last Saturday in May. Where a change or
adjustment is carried out after the summer it shall take place at midnight on the last Saturday in September each
year and at such other intervals between these dates as are required. Infrastructure managers may agree on
different dates and in this case they shall inform the Commission thereof.

3. The final date for receipt of requests for capacity to be incorporated into the working timetable shall be no more

than 12 months in advance of the entry into force of the working timetable.

4. No later than 11 months before the working timetable comes into force, the infrastructure managers shall ensure
that provisional international train paths have been established in cooperation with other relevant allocation
bodies as set out in Article 15. Infrastructure managers shall ensure that as far as possible these are adhered to
during the subsequent processes.

5. No later than four months after the deadline for submission of bids by applicants, the infrastructure manager

shall prepare a draft timetable.

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STATEMENT OF THE COUNCIL’S REASONS

I.

INTRODUCTION

1. On 30 September 1998 the Commission sent the Council a proposal for a Directive of the
European Parliament and of the Council relating to the allocation of railway infrastructure
capacity and the levying of charges for the use of railway infrastructure and safety certification (1).
The proposal, which is intended to replace Directive 95/19/EC, was based on Article 75 of the EC
Treaty (Article 71 EC since the amendment of the 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 27 October 1999.

3. The Commission sent its amended proposal (5) to the European Parliament and the Council on

29 November 1999. The proposal is based on Article 71 EC.

4. The Council adopted its Common Position in accordance with Article 251 EC on 28 March 2000.

II. AIMS

This Directive is part of a legislative package for revitalising Europe’s railways. The aim is to reverse
the decline in railway transport, particularly freight transport, by creating the conditions for the
development of an expending, competitive, customer-oriented rail system.

A revitalised rail system is essential given current levels of road congestion and the associated safety
and environmental problems. If road traffic is not to come to a complete standstill in the next few
years, there has to be more rational use of the railways. The terms on which they compete with other
means of transport have therefore to be improved.

The proposed legislative package comprises three proposals for Directives. In addition to the common
position to which this statement of reasons attaches, the Council has adopted common positions on:

— a proposal amending the provisions of Directive 91/440/EEC in order (a) to establish the right of
access to railway infrastructure for railway undertakings in the Community, (b) to achieve the
separation of the accounts of railway infrastructure management and the provision of transport
services and (c) to ensure that essential functions are managed in ways that guarantee undertakings
fair, non-discriminatory access to the infrastructure, and

— a proposal to broaden the scope of Directive 95/18/EC on the licensing of railway undertakings.

(1) OJ C 321, 20.10.1998, p. 10.
(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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This legislative package seeks, then, to provide a new framework for the conditions for use of the rail
infrastructure by making access rights effective, the overarching goals being to guarantee that all
railway undertakings are treated in a fair, non-discriminatory manner and to ensure the efficient and
competitive use of rail infrastructure.

To achieve these aims,
is essential
concomitant transparency in the finances of infrastructure management.

it

to establish effective charging systems, which requires

At the same time the allocation of capacity has to take account of the needs of the users. Thus, in
addition to these last two aims, this proposal for a Directive pursues a safety certification objective.

III. ANALYSIS OF THE COMMON POSITION

The Council endorses the proposal’s main objectives of developing international rail transport and
safeguarding the principles of transparency and non-discrimination. Nevertheless the text was
extensively reworked in the course of the discussions.

Like the European Parliament, the Council considered that some flexibility is needed in infrastructure
charging and the allocation of capacity given the characteristics of Member States’ rail systems, which
differ widely in technical, economics and institutional terms.

The following are the most important amendments made by the Council:

— calculation of charges: where the market can bear such increases and the Member State in question
wishes for fuller recovery of the total costs of the infrastructure, Member States are allowed to
levy mark-ups on the costs directly incurred by operating the train service,

— capacity allocation: only railway undertakings may apply for train paths, although Member States

may allow other applicants to apply for capacity in their territories,

— the proposal’s rules on charging and capacity allocation have been simplified,

— temporary derogations from applying some articles of the Directive have been introduced for the
benefit of certain Member States on the basis of the particular circumstances of their railway
systems.

1.

Infrastructure charging

— The Council accepted the proposal’s overall charging principle, i.e. the cost directly incurred as a
result of operating the train service (Article 7(3) of the Common Position), but considerably
amended the exceptions to that principle, mainly by simplifying them.

— The most important exception (Article 8(1) of the Common Position) allows Member States to
recover infrastructure costs and whose market can bear such increases to levy mark-ups on the
basis of efficient, transparent and non-discriminatory principles.

— The Common Position has introduced two amendments to the additional charges reflecting the
scarcity of capacity and the environmental effects of operating train services (Article 7(4) and (5)
of the Common Position). Firstly, the references to the transparency of the methods used to
calculate these two charges have been moved to Annex I(2) of the Common Position. Secondly,
‘the costs of external effects’, the wording of the proposal, has become in the Common Position
‘the costs of the environmental effects’, which in the Council’s judgment was less controversial
methodologically than the broader concept of external costs.

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— The Common Position (Article 8(2)) has amended the rules on the higher charges that may be
levied on specific investment projects. The amendments include scrapping the exceptional nature
of the charges, more detailed information on specific projects (completed projects may not be
more than 15 years old) and on the implementation of the charges (before or after the Directive’s
entry into force), and a reference to the possibility of concluding arrangements in certain cases
(e.g. where they are financed by a public-private partnership arrangement).

— The Common Position has modified other aspects of the exceptions allowed in the proposal to
the charging principles, including: a description of the options that may be used to levy mark-ups
and the definition of the right of access to infrastructure on the basis of the amount of authorised
charges (second subparagraph of Article 8(1) of the Common Position); the introduction of a
general clause on non-discrimination and transparency in charging (Article 8(3) of the Common
Position); the elimination of the special rules for passenger transport in Article 9(2) second
sentence, (3), (4) and (5) of the proposal.

— On the question of discounts, the Common Position (Article 9) has amended the proposal in two
respects: firstly, in paragraph 2, in order to avoid discounts leading to indirect discrimination
against railway undertakings other than the main operator, they have been limited to the actual
saving of ‘the administrative cost’ to the infrastructure manager; secondly, paragraph 3 allows
specific discounts to encourage certain traffic flows or the use of underutilised lines.

— Regarding the modulation of charges on the basis of the non-internalised costs of other modes of
transport, Article 10(1) narrows down the ‘marginal external costs’ to ‘environmental, accident
and infrastructure costs’ in order to avoid methodological dispute about the other external costs;
lastly Article 12, which covers reservation charges, has considerably streamlined the corresponding
rules in the proposal.

— The Common Position (Article 5 and Annex II) has modified a number of aspects of the services
provided to railway undertakings. There is a reference to track access to service facilities, so as to
ensure the availability of such services; however, a clause has been inserted to cover the situation
where there are no viable alternatives. In addition, in Annex II ‘use of electrical-supply equipment
for traction current’ (i.e. the possibility of linking the pantograph to the catenary) has been moved
to point 2(a) (under ‘track access to service facilities’), whereas the supply of ‘traction current’
continues to be classified under point 3 as an additional service. Moreover, Annex II to the
Common Position omits the three ‘mandatory’ services included in the proposal, on the grounds
that Article 29 lays down the measures to be taken in the event of disturbance or accident, safety
standards are dealt with in Article 7 of the Common Position amending Directive 91/440/EEC,
and police intervention is the responsibility of the Member States.

— The substance of Article 7 of the proposal, designed to render charging systems transparent, has

been simplified and incorporated into Article 3 and Annex I(2) of the Common Position.

— Article 4(2) of the Common Position incorporates the changes already made to the Common
Position on the amendment of Directive 91/440/EEC (Article 6(3) second subparagraph, (4) and
(5)) relating to the collection of charges and the rail regulator.

— A second subparagraph has been added to Article 6(1) to reflect the new wording of Article 8(1).

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2. Capacity allocation

— The rules on allocating capacity have been pared down as far as possible, as the Council considered
the approach of the Commission proposal to be too detailed and more suited to a regulation than
a directive. The proposal’s basic principles have nevertheless been respected (i.e. taking freight
services,
into account when allocating train paths; non-
discrimination between undertakings; reliability of service; performance incentives, etc.). In doing
so, the Council took into consideration the experience of those Member States where schemes for
allocating capacity among several rail companies are already in operation.

in particular international freight,

— The Common Position allows only railway undertakings and their international groupings to
apply for train paths; Member States may, however, also consider other interested natural or legal
persons as applicants for capacity in their territories (Article 2(b) and 16(1)).

— Provision has been made for a dispute-resolution system for the coordination process for capacity
applications, without prejudice to existing appeal procedures; accordingly it is specified that
decisions have to be taken within ten days (Article 21(6)). This procedure, the detail of which is
to be decided by the Member States under the principle of subsidiarity, is intended to replace the
arbitration procedure proposed by the Commission.

— The concept of ‘congested infrastructure’ has been used instead of the proposed ‘scarcity of
capacity’; the Council considered that the former was a more accurate description of the situation
in this Article and of the phenomenon that infrastructure managers and railway undertakings
would have to confront; a clause has been added to the effect that the importance of freight
services and in particular international freight services is to be given consideration when
determining priority criteria (Article 22(5)).

— The Common Position has used the term ‘ad hoc requests’ rather than ‘short-notice requests’,
although the five-day deadline for replying to requests for individual train paths has been kept;
the procedure also applies in cases of congested infrastructure and replies must be duly
substantiated (Article 23).

— The structure of the capacity-enhancement plan has been improved and the plan itself fleshed

out, drawing on the experience of a number of Member States (Article 26).

— The provision whereby the infrastructure manager may withdraw an underused train path from a
railway undertaking has been worded so as to make it easier to apply. The Council took various
Member States’ experience of railway management into consideration. The threshold of non-
utilisation which would lead to the operator’s surrendering a train path will be laid down in the
network statement. It was not felt that a uniform threshold could be readily imposed for the
various networks with their widely differing levels of use (Article 27).

— A provision had been added on measures to be taken in the event of disturbance (Article 29). The
infrastructure manager is required to make provision for technical failure and accidents and to
draw up a relevant contingency plan. Rules have also been laid down regarding the withdrawal,
where necessary, of allocated train paths, and railway companies are also required to do their
utmost to restore normal traffic. Lastly, Member States may require railway undertakings to play
a role in enforcing and monitoring their own compliance with safety standards. This last
requirement was included by way of alignment on the safety standard laid down in the second
subparagraph of Article 7(2) of the Common Position on the proposal for a Directive amending
Directive 91/440/EEC.

3. Other questions

— The Common Position (Article 1(4)) excludes shuttle services for road vehicles through the
Channel Tunnel from the scope of the Directive on the same grounds as explained in the
statement of reasons for the Common Position on the amendment of Directive 91/440/EEC.

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— The content of the network statement have been made more specific (Article 3 and Annex I).

— The Council has broadened the scope of safety certification (Article 32(1) and (3) second
subparagraph) to cover all railway undertakings (not merely those providing the services referred
to in Article 10 of Directive 91/440/EEC).

— The Council considered that the report on the implementation of the Directive (Article 36) should

also be sent to the European Parliament.

— The Council took the view that provision should be made for regulatory bodies to cooperate

(Article 31).

— Temporary derogations have been laid down in order to accommodate the specific characteristics

of certain Member States’ networks (Article 33).

— The deadline for transposing the Directive has been updated (Article 38).

— Articles 34 and 35 of the Common Position establish a committee procedure (advisory committee

or regulatory committee, depending on the case).

IV. EUROPEAN PARLIAMENT AMENDMENTS

1. European Parliament amendments accepted by the Commission and adopted by the

Council

The Council followed the amended proposal and adopted the following European Parliament
Amendments either in whole or in part:

— Amendment 3 on the gradual opening up of the market has been incorporated as recital 8,

— Amendment 6, which refers to fair competitive conditions between rail and road and to taking

account of their external effects, has been incorporated in recital 10,

— Amendment 7, which relates to the definition of the infrastructure manager, has been inserted in

Article 2(h),

— Amendment 8, on the definition of network has been incorporated in Article 2(i),

— Amendment 9, which makes the establishment of a charging framework mandatory, has been

incorporated in Article 4(1),

— Amendment 11, which covers situations where the services to railway undertakings are provided

by suppliers other than the infrastructure managers, has been incorporated in Article 5(1),

— Amendment 12, which allows the amount of the charge to exceed the cost directly incurred by
operating the train service, has not been taken over in Article 7(3) of the Common Position, since
Article 7 deals with the general principles of charging. However, the spirit of the Amendment,
which is in line with Amendment 14, is reflected in Article 8(1) on exceptions to charging
principles,

— the substance of Amendment 14 (on exceptions to charging principles) has been accepted. In
particular, Article 8 of the Common Position simplifies the charging rules, in some circumstances
allows higher charges than the cost of operating the train service, and takes the specific investment
factor into account, albeit in a more qualified form,

— Amendment 16 has been incorporated in Article 12 of the Common Position,

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— the substance of Amendment 19 has been taken over in the adjustments made to Articles 2(b)

and 16(1) of the Common Position,

— Amendment 28 has been incorporated as Article 31 of the Common Position.

2. European Parliament amendment accepted by the Commission but rejected by the Council

Amendment 4 on the need for gradual harmonisation measures has not been included in the
Common Position, because there are no corresponding provisions in the enacting terms. However,
the European Parliament’s view is shared by the Council and was incorporated into the conclusions
adopted at the Council meeting on 6 October 1999: (‘(d) In parallel, the Commission shall present in
the coming months a strategy on the improvement of railway interoperability ...’) and confirmed at
its meeting on 9 and 10 December 1999 (see proposal for a Directive of the European Parliament
and of the Council on the interoperability of the trans-European conventional rail system, 1999/0252
(COD)).

3. European Parliament amendments accepted neither by the Commission nor by the

Council

like the European Parliament, thought that the Commission proposal
In general the Council,
contained rules that were sometimes too detailed. These have therefore been simplified in the
Common Position, although not all the deletions sought by the European Parliament were accepted,
since harmonisation of certain rules was considered necessary in order to make the system more
transparent and more efficient, and to avoid discrimination.

— Amendment 5 has not been incorporated, because it was not directly related to the substance of
the enacting terms. The Council did, however, partially take over the substance of the amendment.
The idea that the Community-law-based mode of operation does not rule out the mode of
operation based on railway cooperation is reflected in Article 10(3) of the Common Position on
the amendment of Directive 91/440/EEC (‘Whatever the mode of operation ...’). Similarly, there
are references to maintaining high standards of safety in the Common Positions on that Directive
(Article 7(2)) and this Directive (Article 32).

— Amendment 10 was not accepted: the Council, endorsing the opinion expressed in the amended
Commission proposal, considered that the Parliament’s proposed model would lead to a system
that was potentially confusing and heavily bureaucratic.

— In amendment 13 Parliament seeks to restrict charging for external costs in the rail sector to cases
where other modes of transport are also required to pay a similar amount in charges for such
costs. The Council followed the Commission’s opinion and rejected this condition, which it found
too rigid, preferring instead to provide for an indirect safeguard measure linked to the overall
revenue of the infrastructure manager (Article 7(5)) and for the option of introducing time-limited
schemes to compensate railway-infrastructure users for certain unpaid external costs of competing
modes of transport (Article 10(1)).

— The Council decided against incorporating Amendment 15, whereby the only conditions applying
to discounts accorded railway undertakings would be the general conditions laid down in
Article 4(5) of the proposal. The Council took the opposite view that discounts should be subject
to more detailed conditions (set out in Article 9), in particular so that they did not become indirect
means of discrimination.

— In Amendments 17 and 18 the European Parliament seeks the addition of two new Articles
setting Community-level priorities for the allocation of infrastructure capacity; the Council did
not incorporate these amendments in the Common Position on the grounds that, in accordance
with the principle of subsidiarity, such criteria must be laid down by the Member States or by
infrastructure managers.

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— Amendment 20, which aims to raise the normal maximum length of framework agreements to
seven years, has not been incorporated into Article 17(5) of the Common Position; the Council
considered it more appropriate to abide by the five years proposed by the Commission, while
allowing longer periods in specific cases.

— Amendment 21, deleting several paragraphs on the scheduling process, has not been incorporated
into Article 20 of the Common Position. The Council saw fit to state in the Directive’s enacting
terms that it was unjustified to give priority to certain services unless the specialised infrastructure
was congested; the Council also considered it worthwhile to state that, before scheduling train
paths, infrastructure managers should consult interested parties on the matter and take account
of their views.

— Amendment 22, aimed at paring down some of the rules applying to the coordination process,
has not been incorporated into Article 21 of the Common Position. The Council agreed with the
Commission that paragraphs 3, 4 and 5 should be kept in the interests of transparency.

— Amendment 23 aims to have the capacity analysis that is undertaken when capacity is scarce
completed within three months. It will be remembered that the proposal (Article 25(2) in
conjunction with Article 28(4)) set a period of two months. The Council preferred to extend the
period to six months (Article 22(2) in conjunction with Article 25(3) of the Common Position).

— Amendment 24, designed to simplify the rules applying to short-notice requests for train paths,
was not followed in its entirety by the Council. However, the text has been simplified along the
lines proposed by Parliament (Article 23).

— The Council did not incorporate Amendment 25 on specialised infrastructure into the Common
Position, on the grounds that the enacting terms should spell out the implications of the inherent
features of this type of line for the allocation of train paths (Article 24).

— Amendment 26, which seeks to delete the Article on infrastructure-capacity analysis, was rejected
by the Council on the grounds that rules on this aspect had to be maintained in the Common
Position (Article 25) in the interests of transparency and efficiency, and in view of the fact that
infrastructure managers had a monopoly on infrastructure; however, the rules have been simplified
and, in addition, the period for completing the capacity analysis has been increased from two to
six months.

— Amendment 27, simplifying the rules applying to the capacity-enhancement plan, was not
accepted; the Council felt that further details should be added in the interests of transparency and
efficiency, and that the provision for users to be consulted before the infrastructure manager
proposed a capacity-enhancement plan ought to be kept (Article 26).