Proposal for a Regulation of the European Parliament and of the Council concerning the granting of aid for the co-ordination of transport by rail, road and inland waterway
Date: 2000-07-26
Institutions: European Commission
Subjects: EU aid, common transport policy, inland waterway transport, rail transport, road transport

19.12.2000

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Official Journal of the European Communities

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Proposal for a Regulation of the European Parliament and of the Council concerning the granting
of aid for the coordination of transport by rail, road and inland waterway

(2000/C 365 E/11)

(Text with EEA relevance)

COM(2000) 5 final (cid:14) 2000/0023(COD)

(Submitted by the Commission on 28 July 2000)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

(b) the transport of passengers by road is liberalised with

the exemption of national regular services (2),

Having regard to the Treaty establishing the European
Community, and in particular Articles 71, 73 and 89 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of
Committee,

the Economic and Social

Having regard to the opinion of the Committee of the Regions,

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

(c) in the railways sector access to infrastructure for inter-
national groupings and railway undertakings offering
international combined transport services has been
introduced, and management independence and sepa-
ration of accounts for infrastructure and services have
been provided for (3),

(d) the inland waterways sector has been progressively
liberalised leading to the free conclusion of contracts
and free negotiation of prices as regards both national
and international
inland waterway transport in the
Community from 1 January 2000 (4), and

Whereas:

(e) the market for combined transport services has been

fully liberalised since 1 July 1993 (5).

(1) The

elimination of disparities

the
conditions of competition in the transport market is an
essential objective of the common transport policy.

to distort

liable

(2) Significant progress has now been made in the liberali-

sation of the inland transport sectors:

(a) in the road haulage sector competition was introduced
to international operations on 1 January 1993, and
cabotage operations, first introduced on 1 July 1990,
are from 1 July 1998 on no longer subject to any
quota (1),

(1) Council Regulation (EEC) No 4059/89 of 21 December 1989 laying
down the conditions under which non-resident carriers may operate
national road haulage services within a Member State (OJ L 390,
30.12.1989, p. 3) replaced by Council Regulation (EEC) No 118/93
of 25 October 1993 laying down the conditions under which
non-resident carriers may operate national road haulage services
within a Member State (OJ L 279, 12.11.1993, p. 1) and Council
Regulation (EEC) No 881/92 of 26 March 1992 on access to the
market in the carriage of goods by road within the Community to
or from the territory of a Member State or passing across the
territory of one or more Member States (OJ L 95, 9.4.1992, p. 1)
respectively.

complete,

liberalisation in all

the process of
is not
sectors

inland
(3) However
and moreover
transport
harmonised charging mechanisms to compensate for the
unpaid costs of transport modes have not yet been estab-
lished. In those circumstances there is liable to exist State
aid which meets the needs of coordination of transport
and which for this reason remains compatible with the EC
Treaty insofar as
infringe other
provisions of Community law.

the aid does not

(2) Council Regulation (EEC) No 684/92 of 16 March 1992 on
common rules for the international carriage of passengers by
coach and bus (OJ L 74, 20.3.1992, p. 1) as last amended by
Council Regulation (EC) No 11/98 of 11 December 1997 (OJ L 4,
8.1.1998, p. 1) and Council Regulation (EC) No 12/98 of 11
December 1997 laying down the
conditions under which
road passenger
non-resident
transport services within a Member State (OJ L 4, 8.1.1998, p. 10).
(3) Council Directive 91/440/EEC of 29 July 1991 on the development

carriers may operate national

of the Community’s railways (OJ L 237, 24.8.1991, p. 25).

(4) Council Directive 96/75/EC of 19 November 1996 on the systems
inland
of chartering and pricing in national and international
waterway transport in the Community (OJ L 304, 27.11.1996, p.
12).

(5) Council Directive 92/106/EEC of 7 December 1992 on the estab-
lishment of common rules for certain types of combined transport
of goods between Member States (OJ L 68, 17.12.1992, p. 38).

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(4) Articles 87 to 89 EC Treaty and Council Regulation (EC)
No 659/1999 laying down detailed rules
the
application of Article 93 (new Article 88) (1) shall apply
to aid intended for transport by rail, road, and inland
waterway.

for

(9) Public financing of

the management, maintenance or
provision of inland transport infrastructure open to all
potential users in accordance with Community law and
managed by the State does not fall under Article 87(1) EC
Treaty as in this case no advantage is conferred to an
undertaking competing with other undertakings.

(5) Article 73 provides an exemption from the prohibition
contained in Article 87(1) and accordingly this Regulation
does not prejudge the prior question as to whether there
is aid in the sense of Article 87(1). This regulation is also
without prejudice to other Treaty articles such as Article
86(2).

common market which represents

(6) Insofar as Article 73 EC Treaty declares aid compatible
with the
reim-
bursement for the discharge of obligations inherent in
the concept of a public service,
it is implemented by
Council Regulation (EEC) No 1191/69 (2) as modified.
Insofar as Article 73 declares aid compatible with the
common market which meets the needs of coordination
it accordingly remains appropriate to lay
of
in
down in a Council Regulation the circumstances
which aids shall be considered to meet such needs.

transport

(7) Council Regulation EEC) No 1107/70 (3) was designed to
achieve the aims described above; whereas, however, it is
now necessary to adapt it to fit the framework on access
to the market now in force.

(8) It is now Community policy to encourage public/private
partnerships for new transport
infrastructure projects,
particularly in the case of projects seen as important to
the development of the trans-European network (4). The
State aid rules should be applied in such a way as not to
penalise those infrastructure projects which contain some
private sector participation as against those which do not;
whereas, accordingly, it is appropriate to provide a general
exception for aid to infrastructure managers rather than
one targeted at specific kinds of projects.

(1) Council Regulation (EC) No 659/99 of 22 March 1999 laying down
detailed rules for the application of Article 93 of the Treaty, (OJ L
83, 27.3.1999, p. 1).

(2) Council Regulation (EEC) No 1191/69 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).

(3) Council Regulation (EEC) No 1107/70 of the Council of 4 June
1970 on the granting of aids for transport by rail, road and
inland waterway (OJ L 130, 15.6.1970, p. 1).

(4) Council conclusions of the 2031st Council meeting A Transport,
in the
trans-European network (TEN) projects, 11007/97

paragraphs 4 and 5 on Public-Private Partnerships (PPPs)
context of
(Press release: Luxembourg 9.10.1997).

(10) State support granted to an infrastructure manager, public
or private but
separate
the
management, maintenance
inland
infrastructure is presumed to be compatible
transport
with the common market if that manager was chosen
by an open and non-discriminatory tender, as it was
thereby assured that
support
represents the market price to achieve the desired result.

the amount of State

from the
or

provision of

State,

for

(11) However,

if any particular aid to a manager of

infra-
structure does not fall under this presumption of compat-
ability, it should still be permitted as compatible with the
EC Treaty to the extent it is necessary to enable the reali-
sation of the project or activity concerned and provided it
does not give rise to a distortion of competition to an
extent contrary to the common interest. By way of
construction and
example,
for
support
operation of combined transport terminal
infrastructure
liable to attract significant traffic flows from competing
terminals instead of leading to modal shift from road to
environmentally friendly modes of transport, is deemed to
distort competition to an extent contrary to the common
interest.

State

the

In the rail

is proportionate.

(12) Furthermore, the requirements of any Community legis-
lation on infrastructure charging that may be in force
should be taken into account in assessing the amount
of aid that
this
approach is compatible with Article 7(3) of Council
Directive 91/440/EEC, which provides
that Member
States may
infrastructure managers,
having regard to Articles 73, 87 and 88 EC Treaty,
financing consistent with the tasks, size and financial
to cover new
requirements,
investments, and whereas the same principles should
apply to infrastructure managers in all
inland transport
sectors.

accord railway

in particular

in order

sector

(13) The Community has for some time advocated a policy of
achieving a sustainable transport system, which permits
and encourages measures
to compensate for unpaid
additional costs of other competing transport modes,
such
noise,
infrastructure
congestion, health and accident costs.

pollution,

damage,

as

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(14) With regard to the transport of goods, aid schemes which
provide for such measures in connection with the use of
infrastructure
and which do not disproportionately
hamper the attainment of other Community objectives,
should be supported. Accordingly Member States should
be required to demonstrate with a reasonable degree of
transparency that such schemes compensate for specific
incremental unpaid costs of
competing modes of
transport and they should be limited in time. However,
until internalisation of specific unpaid external and infra-
structure costs is achieved within or across land transport
modes,
authorised by the
Commission may in principle be renewed. With regard
to passenger
issue can be taken into
account when transport operators apply for exclusive
rights or
financial compensation in accordance with
Community legislation and in particular, Council Regu-
lation (EEC) No 1191/69.

any such State

transport

scheme

this

(15) Other aid provided in liberalised sectors

should be
considered under Article 87 EC Treaty, particularly
under the notion of development of a sector set out in
subparagraph (3)(c) thereof.

(16) Aid granted under

this Regulation is notifiable

in
accordance with Article 87(3) EC Treaty and Council
Regulation (EC) No 659/1999 laying down detailed rules
for the application of Article 93 (new 88) of the Treaty,
except where this Regulation provides otherwise.

than combined transport,

(17) Aid for the management, maintenance or provision of
infrastructure other
inland
waterway and road terminals which forms an integral
part of an existing open transport network having a
single infrastructure manager can be monitored effectively
by the Commission on the basis of a periodic general
information requirement rather than a specific pre-notifi-
cation requirement.

the

infrastructure

from the network manager, or where

(18) However, in the case of aid for the management, main-
tenance or provision of the aforementioned terminals, or
concerned has a manager
where
separate
its
capacity is wholly or partly reserved to one or more
transport undertakings (as opposed to the granting of
an access right on open infrastructure), there may be a
the
impact on competition and therefore
greater
pre-notification requirement should not be removed.

Member States, it is appropriate for the Commission to
establish its
including, having
regard to the wide availability of the necessary technology,
information in computerised form.

requirements,

specific

(20) Council Regulation (EEC) No 1192/69 (1) was introduced
to eliminate disparities which arise by reason of
the
imposition of exceptional
financial burdens on, or the
grant of benefits to, railway undertakings by public auth-
orities. However, following Council Directive 91/440/EEC
Member States are now required to ensure that railway
independent
undertakings
and
operators behaving
adapting to market needs, and therefore such disparities
have either been eliminated or should be eliminated.

afforded a
in a

commercial manner

status of

are

(21) Article 4, paragraphs (2), (3) and (4) of Council Regu-
lation (EEC) No 1192/69 have become obsolete. Insofar
as Member States continue to support railway under-
takings under Article 4(1) of Council Regulation (EEC)
No 1192/69 for a transitional period, the Commission
will have to assure that such support is strictly limited
to an amount necessary to compensate railway under-
takings for the remaining financial burdens and it
is
therefore required that such compensation is notified to
it under Article 88(3) EC Treaty. The exemption from the
notification obligation contained in Regulation (EEC) No
1192/69 should be revoked,

HAVE ADOPTED THIS REGULATION:

Article 1

Scope

This Regulation shall apply to aid, which meets the needs of
coordination of transport by rail, road and inland waterway.

Article 2

Definitions

In this Regulation the following terms have the following
meanings:

A transport

infrastructure:

the
movement or transhipment of passengers and goods and
associated safety and navigational assets essential for the
management of these facilities,

permanent

facilities

for

(19) To ensure transparency and effective monitoring,

is
appropriate to establish rules concerning the records
that Member States
should keep regarding the aid
exempted by this Regulation. For the purposes of the
to be provided to the Commission by
annual report

it

A infrastructure manager: any public, private or mixed public/
private undertaking managing, maintaining or providing
transport infrastructure,

(1) Council Regulation (EEC) No 1192/69 of 26 June 1969 on common
rules for the normalisation of the accounts of railway undertakings
(OJ L 156, 28.6.1969, p. 8).

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A transport undertaking: any undertaking wishing to make use
of any particular transport infrastructure, whether solely for
its own benefit or in order to provide services to other
persons or undertakings,

Assessment under this Article shall take into account the
2.
requirements of any Community legislation on the definition or
estimation of external costs that may be in force at the time of
the grant of the aid concerned.

A specific unpaid external and infrastructure

costs: costs not
recovered from the user of
infrastructure
through specific charges. They may include infrastructure
damage, pollution, noise, congestion, health and accident
costs.

transport

Article 3

Aid for infrastructure

Aid granted to an infrastructure manager

the
1.
inland transport
management, maintenance or provision of
infrastructure,
compatible with the EC Treaty
provided that the aid compared to the total financing of the
project:

shall be

for

(a) is necessary to enable the realisation of

the project or

activity concerned and

(b) does not give rise to a distortion of competition to an

extent contrary to the common interest.

2.
Assessment under this Article shall take into account the
requirements of any Community legislation on infrastructure
charging that may be in force at the time of the grant of the
aid concerned.

Article 4

Aid for the use of infrastructure

1.
A scheme for granting aid to transport undertakings for
the purpose of the use of infrastructure for goods transport,
shall be compatible with the EC Treaty to the extent that:

(a) the scheme has a maximum duration of three years,

(b) it

is demonstrated on the basis of a comparative cost
analysis that such aid is limited to compensation for
specific unpaid external and infrastructure costs for the
use of competing transport infrastructure, net of any such
unpaid costs for the use of the infrastructure in question,

(c) the scheme provides for aid to be granted on non-discrimi-
natory terms to transport undertakings within the same
transport mode, and

(d) the aid does not give rise to a distortion of competition to

an extent contrary to the common interest.

Article 5

General conditions

1. Where an undertaking receiving any aid granted under
this Regulation is not only engaged in the subsidised activity
but also in another economic activity, the funds provided shall
be kept in separate accounts and shall be managed without any
possibility of transfer to such other activity.

2.
In calculating the permissible amount of aid to be granted
under any provision of this Regulation any aid granted for the
same purpose coming from any other State or Community
resources shall be taken into account.

Article 6

Notification

inland transport

Aid, granted for

the management, maintenance or
1.
than
infrastructure other
provision of
terminals for combined transport,
inland waterway or road
operations shall not be required to be notified in accordance
with Article 88(3) EC Treaty where the following conditions
are satisfied:

(a) the infrastructure forms an integral part of a network
which has
infrastructure
same manager
concerned and access to which is open on non-discrimi-
natory terms to any person or undertaking wishing to use
it,

the

the

as

(b) the capacity of the infrastructure is not wholly or partly
reserved for the use of one or more transport undertakings.

Unimodal railway terminals and stations are considered

2.
to form an integral part of the railway network.

Article 7

Information requirements

1.

In relation to aid falling within Article 6, Member States

(a) shall maintain detailed records. Such records shall contain
all information necessary to establish that the conditions for
exemption, as laid down in this Regulation, are fulfilled.
Member States shall maintain a record for 10 years from
the date on which the aid was granted. Member States shall,
on written request, provide the Commission with copies of
such records within a period of 20 working days, or such
longer period as may be fixed in the Commission’s request
and

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(b) are hereby required to provide the Commission on an
annual basis, not later than 31 March for the preceding
calendar year, with a
summary information on aid
schemes implemented and individual aid granted outside
such schemes in the form provided for in the Annex and
in particular with:

A a description of the supported project including the
exact amount of the aid, the overall project costs, the
identity of the beneficiary and the timing,

A future plans or arrangements for management of the
infrastructure concerned and for access to the infra-
structure concerned, and

A any other information likely to be relevant to a State aid

assessment.

2.
The first date on which such information will be provided
shall be 31 March of the year following the first full calendar
year to elapse after the entry into force of this Regulation. The
information provided on that date should relate to the period
from the date of entry into force of this Regulation until the
end of such calendar year and should also be provided in a
computerised form.

Article 8

Monitoring of this Regulation

An Advisory Committee is hereby established subject to Article
79 EC Treaty. It shall be composed of representatives of the

the
Member States and chaired by the representative of
Commission. The Committee may examine and give an
opinion on all general questions regarding the operation of
this Regulation.

Article 9

Revocation

Council Regulation (EEC) No 1107/70, as modified,

1.
hereby revoked.

is

Articles 4(2), 4(3), 4(4), 13(2) and 13(3) of Council Regu-

2.
lation (EEC) No 1192/69, as modified, shall be deleted.

Article 10

Transitional arrangements and entry into force

1.
Aid measures, which by virtue of Article 5 of Regulation
(EEC) No 1107/70, as amended, have been exempted from the
procedure provided for in Article 88(3) of the Treaty, shall
remain exempted for a period of 12 months after the entry
into force of this Regulation.

2. Member States shall amend such aid measures during this
period so as to be made compatible with Article 6 of this
Regulation and shall inform the Commission thereof.

3.
This Regulation shall enter into force on the twentieth
day following that of its publication in the Official Journal of the
European Communities. This Regulation shall be binding in its
entirety and directly applicable in all Member States.

Form accompanying the summary information on any individual aid granted or aid schemes implemented

ANNEX

Member State (Region):

Date of implementation (aid scheme) or grant (individual aid):

Name and address of responsible authority:

Title of aid scheme implemented or name of beneficiary granted individual aid:

Objective of aid:

Legal basis:

Budget:

Aid intensity

Duration:

Other information (optional):