Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 91/440/EEC on the development of the Community's railways
Date: 2001-02-26
Institutions: Council of the European Union, European Parliament
Subjects: EU Member State, rail network, trans-European network, transport policy, vehicle on rails

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I

(Acts whose publication is obligatory)

DIRECTIVE 2001/12/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 26 February 2001

amending Council Directive 91/440/EEC on the development of the Community’s railways

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 71 thereof,

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

Having regard to the opinion of
Committee (2),

the Economic and Social

Having regard to the opinion of
Regions (3),

the Committee of

the

Acting in accordance with the procedure laid down in Article
251 (4) of the Treaty in the light of the joint text approved on
22 November 2000 by the Conciliation Committee,

Whereas:

(1)

(2)

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

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

(1) OJ C 321, 20.10.1998, p. 6, and
OJ C 116 E, 26.4.2000, p. 21.

(2) OJ C 209, 22.7.1999, p. 22.
(3) OJ C 57, 29.2.2000, p. 40.
(4) Opinion of the European Parliament of 10 March 1999 (OJ C 175,
21.6.1999, p. 115), confirmed on 16 September 1999 (OJ C 54,
25.2.2000, p. 56), Council Common Position of 28 March 2000
(OJ C 288, 11.10.2000, p. 1) and Decision of
the European
Parliament of 5 July 2000 (not yet published in the Official
Journal). Decision of the European Parliament of 1 February 2001
and Council Decision of 20 December 2000.

(5) OJ L 237, 24.8.1991, p. 25.

(3)

(4)

(5)

(6)

(7)

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

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

necessary

the

of

the

railway undertakings meeting

In accordance with the objective of completing the
internal market, which will include the possibility for all
licensed
safety
conditions to provide services, access rights should, for
a transitional period of up to seven years, be extended
to licensed railway undertakings for the international
transport of goods on a defined network, called the
Trans European Rail Freight Network, including access
to, and supply of, services in major terminals and ports.
After this transitional period, the Trans-European Rail
Freight Network should cover the entire European rail
network and the railway undertakings should be granted
rights of
freight
transport.

international

thereto for

access

right

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

international

Member States remain free to grant access rights that
are more extensive than access for railway undertakings
to
operating
international groupings operating international services
and to railway undertakings operating international
freight services within the Trans-European Rail Freight
Network. The use of these more extensive access rights
may be limited to railway undertakings licensed in

combined

transport

(8)

(9)

(10)

(11)

(13)

(14)

(15)

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Member States where access rights of a similar nature
are granted, provided that this limitation is compatible
with the Treaty.

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

significant

manifestly international dimensions
involved in the
railway
operation of
networks, and can therefore, by reason of the need for
coordinated trans-national action, be better achieved by
the Community. This Directive does not go beyond
what is necessary to achieve those objectives.

elements of

the

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

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

HAVE ADOPTED THIS DIRECTIVE:

Article 1

It is necessary to implement a number of measures in
order better to monitor the development of the railway
sector and the evolution of the market, assess the effect
of the measures adopted and analyse the impact of the
measures envisaged by the Commission.

Bodies should be established with a sufficient degree of
independence
rail
services market where there are no entities performing
that function.

competition on the

to regulate

(12)

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

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

1)

the title of Section I shall be replaced by the following:
(cid:145)Scope and Definitions(cid:146);

2) Article 1 shall be repealed;

3)

the following paragraph shall be added to Article 2:

Undertakings the train operations of which are
(cid:145)3.
limited to providing solely shuttle services
road
vehicles through the Channel Tunnel are excluded from
the scope of this Directive except Articles 6(1), 10 and
10a.(cid:146);

for

The measures necessary for the implementation of this
Directive should be adopted in accordance with Council
Decision 1999/468/EC of 28 June 1999 laying down
the procedures for the exercise of implementing powers
conferred on the Commission (1).

4) Article 3 shall be amended as follows:

a)

the first and second indents shall be replaced by the
following:

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

licensed

according

undertaking

(cid:145)(cid:151) (cid:147)railway undertaking(cid:148) shall mean any public or
to
private
the principal
applicable Community legislation,
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;

In accordance with the principles of subsidiarity and
proportionality as set out in Article 5 of the Treaty, the
objectives of
this Directive, namely to develop the
Community’s railways, cannot be sufficiently achieved
by the Member States in view of the need to ensure fair
to the
and non-discriminatory
the
infrastructure as well as

to take account of

access

terms

for

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

in

particular

responsible

(cid:151) (cid:147)infrastructure manager(cid:148) shall mean any body or
for
undertaking
railway
establishing
infrastructure.
the
management of infrastructure control and safety
systems. The
infrastructure
manager on a network or part of a network may
be allocated to different bodies or undertakings(cid:146);

maintaining
also

and
This may

functions of

include

the

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b)

the following indent shall be inserted after the fourth
indent:

(cid:145)(cid:151) (cid:147)international freight service(cid:148) shall mean transport
services where the train crosses at
least one
border of a Member State; the train may be joined
and/or split and the different sections may have
different origins and destinations, provided that all
wagons cross at least one border(cid:146);

5)

the title of Section II shall be replaced by the following:
(cid:145)Management independence(cid:146);

6) Article 4 shall be replaced by the following:

(cid:145)Article 4

control over

1. Member States shall take the measures necessary to
ensure that as regards management, administration and
administrative,
and
internal
accounting
have
railway
independent status in accordance with which they will
hold, in particular, assets, budgets and accounts which are
separate from those of the State.

undertakings

economic

matters

to infrastructure,

non-discriminatory access
listed in
Annex II, are entrusted to bodies or firms that do not
themselves provide any rail transport services. Regardless
of the organisational structures, this objective must be
shown to have been achieved.

however,

States may,

railway
Member
undertakings or any other body the collecting of
the
charges and the responsibility for managing the railway
and
infrastructure,
funding.

investment, maintenance

such as

assign

to

The application of paragraph 3 shall be subject to a
4.
report by the Commission in accordance with Article
10b, to be submitted by 15 March 2006.(cid:146);

8) Article 7 shall be replaced by the following:

(cid:145)Article 7

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

the

respecting

framework

2. While
and specific
charging and allocation rules established by the Member
have
infrastructure manager
States,
responsibilities for its own management, administration
and internal control(cid:146);

shall

the

7) Article 6 shall be replaced by the following:

(cid:145)Article 6

1. Member States shall take the measures necessary to
ensure that separate profit and loss accounts and balance
for
sheets are kept and published, on the one hand,
business relating to the provision of transport services by
railway undertakings and, on the other,
for business
relating to the management of
railway infrastructure.
Public funds paid to one of these two areas of activity
may not be transferred to the other.

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

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

3. Member States shall take the measures necessary to
the functions determining equitable and
ensure that

are

are

laid

rolling

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

and

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

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

plan

4. Within the framework of general policy determined
by the State, the infrastructure manager shall draw up a
business
financial
programmes. The plan shall be designed to ensure
the
optimal and efficient use and development of
infrastructure while
and
financial balance
ensuring
providing means for these objectives to be achieved.(cid:146);

investment

including

and

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9) Article 9(3) shall be replaced by the following:

(cid:145)3.
Aid accorded by Member States to cancel the debts
referred to in this Article shall be granted in accordance
with Articles 73, 87 and 88 of the Treaty.(cid:146);

10)

the following paragraph shall be added to Article 9:

In the case of railway undertakings profit and loss
(cid:145)4.
accounts and either balance sheets or annual statement of
assets and liabilities shall be kept and published for
business relating to the provision of rail freight-transport
services. Funds paid for activities relating to the provision
of passenger-transport services as public-service remits
must be shown separately in the relevant accounts and
may not be transferred to activities
relating to the
provision of other
services or any other
business.(cid:146);

transport

11) Article 10 shall be replaced by the following:

(cid:145)Article 10

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

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

international

combined

transport

of

operation,

the mode

3. Whatever
railway
undertakings within the scope of Article 2 shall be
granted, on equitable conditions, the access that they are
seeking to the Trans-European Rail Freight Network
defined in Article 10(a) and in Annex I after 15 March
for the purpose of
2008,
operating international freight services.

to the entire rail network,

in a specific

the Commission shall,

At the request of a Member State or on its own
4.
case,
initiative
examine the application and enforcement of this Article,
and within two months of receipt of such a request and
after consulting the Committee referred to in Article
11a(2), decide whether the related measure may continue
to be applied. The Commission shall communicate its
decision to the European Parliament, the Council and to
the Member States.

the Treaty, any
Without prejudice to Article 226 of
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.

and

technical

administrative,

5.
Any railway undertaking engaged in rail transport
services under paragraphs 1, 2 and 3 shall conclude the
necessary
financial
agreements on the basis of public or private law with the
infrastructure managers of the railway infrastructure used
with a view to regulating traffic control and safety issues
concerning that transport. The conditions governing such
agreements shall be non-discriminatory and, if applicable,
of Directive
in
2000/14/EC of
the
Council of 26 February 2001 on the allocation of railway
infrastructure capacity and the levying of charges for the
use of railway infrastructure and safety certification (1).

provisions
the European Parliament and of

conformity with

the

6.
Track access to, and supply of, services in the
terminals and ports linked to rail activities referred to in
paragraphs 1, 2 and 3, serving or potentially serving
more than one final customer, shall be provided to all
railway undertakings in a non-discriminatory manner, and
requests by railway undertakings may be subject
to
restrictions only if viable alternatives under market
conditions exist.

concerning

competition policy

7. Without prejudice to Community and national
and the
regulations
institutions with responsibility in that area, the regulatory
body established pursuant
to Article 30 of Directive
2000/14/EC, or any other body enjoying the same degree
of independence shall monitor the competition in the rail
transport
including the rail
services markets,
market.

freight

That body shall be set up in accordance with the rules in
Article 30(1) of
the said Directive. Any applicant or
interested party may lodge a complaint with this body if
it feels that it has been treated unjustly, has been the
subject of discrimination or has been injured in any other
way. On the basis of
and, where
the
appropriate, on its own initiative,
the regulatory body
shall decide at
the earliest opportunity on appropriate
measures to correct undesirable developments in these
markets. In order to ensure the necessary possibility of
judicial control and the requisite cooperation between
national regulatory bodies, Article 30(6) and Article 31 of
the said Directive shall apply in this context.

complaint

on

the
by

8.
In accordance with Article 14 which provides for a
report
implementation
of
this Directive,
on continuing
suitable proposals
accompanied
Community action to develop the railway market and the
legal framework governing it, and in any case seven years
after 15 March 2008, the Trans-European Rail Freight
Network defined in Article 10a and Annex I, granting
transport of goods to the
access for the international
railway undertakings defined in Article 3,
shall be
extended to cover the entire European rail network. The

(1) See page 29 of this Official Journal.

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railway undertakings shall be granted, over that entire
network and on fair conditions, guaranteed access and
transit for the international transport of goods.(cid:146);

12)

in Section V (cid:145)Access
following Article shall be added:

to railway infrastructure(cid:146)

the

concerned in its work, including users, so that they are
able better to monitor the development of the railway
sector and the evolution of the market, assess the effect of
the measures adopted and analyse the impact of
the
measures planned by the Commission.

(cid:145)Article 10a

The Trans-European Rail Freight Network consists

1.
of the following elements:

a) Railway lines as indicated in the maps in Annex I.

b) Diversionary routes, where appropriate, particularly
around congested infrastructure within the meaning
of Directive 2000/14/EC. When these routes are
offered, overall journey times shall be safeguarded as
far as this is feasible.

c) Track access

to terminals

serving or potentially
serving more than one final customer and to other
sites and facilities, including feeder lines to and from
these.

the use of

The Commission shall monitor

3.
the
networks and the evolution of the framework conditions
in the rail sector,
in particular infrastructure charging,
capacity allocation, safety regulation and licensing and the
degree of harmonisation that evolves. It shall ensure an
active cooperation between the appropriate regulatory
bodies in the Member States.

4.
The Commission shall
Parliament and the Council on:

report

to the European

a)

the evolution of the internal market in rail services

b)

the framework conditions

c)

the state of the Trans-European Rail Freight Network

d)

the utilisation of access rights

d) Track access to and from ports as listed in Annex I,

including feeder lines.

e) barriers to more effective rail services

2.
The feeder lines mentioned in paragraph 1(c) and (d)
cover at either end of the journey 50 km or 20 % of the
length of the journey on the railway lines referred to in
paragraph 1(a), whichever is greater.

f)

infrastructure limitations, and

g)

the need for legislation.(cid:146)

Belgium and Luxembourg, as Member States with a
relatively small or concentrated network, may limit the
length of the feeder lines in the first year after 15 March
2003 to at least 20 km and until the end of the second
year to at least 40 km.(cid:146);

14) Article 11 shall be replaced by the following:

(cid:145)Article 11

13) after Section V (cid:145)Access to railway infrastructure(cid:146),

the

following section shall be added:

(cid:145)SECTION Va

Monitoring tasks of the Commission

Article 10b

and

the necessary arrangements

Not later than 15 September 2001 the Commission
1.
to monitor
shall make
and market
technical
developments
The
Commission shall ensure that adequate resources are
made available to enable the effective monitoring of this
sector.

conditions
rail

economic

transport.

European

of

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

The amendments necessary to adapt the Annexes
the regulatory procedure

2.
shall be adopted by use of
referred to in Article 11a(3).(cid:146);

15)

the following Article shall be inserted:

(cid:145)Article 11a

1.

The Commission shall be assisted by a Committee.

2.
In this context, the Commission shall closely involve
representatives of the Member States and of the sectors

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.

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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.

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 out in Article 11a(2); or

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

4.

The Committee shall adopt its rules of procedure.(cid:146);

16) Article 14 shall be replaced by the following:

(cid:145)Article 14

Economic

Parliament,
the Committee of

By 15 March 2005 the Commission shall submit to the
Social
and
the
European
Committee,
the Regions and the
Council a report on the implementation of this Directive
accompanied
on continuing
suitable proposals
Community action to develop the railway market and the
legal framework governing it.(cid:146);

by

17)

the following Article shall be inserted:

(cid:145)Article 14a

For a period of five years from 15 March 2003, the

1.
following Member States:

(cid:151) Ireland, as a Member State located on an island with a

rail link to only one other Member State

(cid:151) the United Kingdom, in respect of Northern Ireland,

on the same basis, and

(cid:151) Greece, as a Member State that does not have any

direct rail link to any other Member State,

do not need to apply the requirement to entrust to an
independent body the functions determining equitable
as
access
and non-discriminatory
provided for in Article 6(3), first subparagraph and the
tasks set out in Article 7(2), first subparagraph, in so far
as
to establish
independent bodies performing the tasks referred to in
the said Articles.

those Articles oblige Member States

to infrastructure,

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
in respect of
Ireland, or
Northern Ireland, or both, another Member State
outside their territories), the derogation referred to in
paragraph 1 shall not apply.

the United Kingdom,

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

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

When adopting its decision the Commission shall take
into account any development in the geopolitical situation
and the development of the rail market in, from and to
renewed
the Member
derogation.

State having

requested

the

the

Luxembourg as a Member State with a relatively
4.
small rail network does not need to apply until 31
August 2004 the requirement to award to an independent
body
and
non-discriminatory access to infrastructure, as provided
for in Article 6(3),
in so far as it
obliges Member States to establish independent bodies
performing the tasks referred to in that Article.(cid:146)

first subparagraph,

determining

functions

equitable

2.

However, where:

Article 2

a) more

than one

railway undertaking licensed in
accordance with Article 4 of Directive 95/18/EC, or,
in the case of
Ireland and of Northern Ireland, a
railway company so licensed elsewhere, submits an
official application to operate competing railway

shall

States

Member
and
administrative provisions necessary to comply with this
Directive by 15 March 2003. They shall forthwith inform the
Commission thereof.

regulations

adopt

laws,

the

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

Article 4

This Directive is addressed to the Member States.

Article 3

This Directive shall enter
publication in the Official Journal of the European Communities.

into force on the date of

its

Done at Brussels, 26 February 2001.

For the European Parliament

The President

N. FONTAINE

For the Council

The President

A. LINDH

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ANNEX I

PORTS

BELGIE/BELGIQUE

Cartagena-Escombreras

LUXEMBOURG

Antwerpen/Anvers

Gent/Gand

Zeebrugge/Zeebruges

DANMARK

¯lborg

¯rhus

Esbjerg

Fredericia

Kłbenhavn

Nyborg

Odense

DEUTSCHLAND

Brake

Bremen/Bremerhaven

Brunsb(cid:252)ttel

Cuxhaven

Emden

Hamburg

Kiel

L(cid:252)beck

Nordenham

Puttgarden

Rostock

Sassnitz

Wilhelmshaven

Wismar

EKKAR

Akenamdqo(cid:253)pokiy

Eketr(cid:223)ma

P(cid:220)sqa

Peiqai(cid:220)y

Herrakom(cid:223)jg

B(cid:252)koy

ESPA(cid:209)A

Algeciras

Almer(cid:237)a

Barcelona

Bilbao

Gij(cid:243)n

Huelva

Tarragona

Valencia

Vigo

FRANCE

Bayonne

Bordeaux

Boulogne

Calais

Cherbourg

Dunkerque

Fos-Marseille

La Rochelle

Le Havre

Nantes

Port-la-Nouvelle

Rouen

SŁte

St-Nazaire

IRELAND

Cork

Dublin

ITALIA

Ancona

Bari

Brindisi

C. Vecchia

Genova

Gioia Tauro

La Spezia

Livorno

Napoli

Piombino

Ravenna

Salerno

Savona

Taranto

Trieste

Venezia

NEDERLAND

Amsterdam Zeehaven

Delfzijl/Eemshaven

Vlissingen

Rotterdam Zeehaven

Terneuzen

(cid:214)STERREICH

PORTUGAL

Leixıes

Lisboa

Setœbal

Sines

SUOMI/FINLAND

Hamina

Hanko

Helsinki

Kemi

Kokkola

Kotka

Oulu

Pori

Rauma

Tornio

Turku

SVERIGE

G(cid:246)teborg-Varberg

Helsingborg

Lule(cid:229)

Malm(cid:246)

Norrk(cid:246)ping

Oxel(cid:246)sund

Stockholm

Trelleborg-Ystad

Ume(cid:229)

UNITED KINGDOM

All rail-connected ports

˜˜(cid:211)¯(cid:204) `æŁ. 10Æ(1) (Æ), 91/440/¯ˇ˚

Track is being renovated

?

BELGIQUE/BELGI¸

?

DANMARK

?

DEUTSCHLAND

¯¸¸`(cid:211)?

ESPA(cid:209)A?

Track is being renovated

FRANCE?

IRELAND?

ITALIA?

?

LUXEMBOURG

?

NEDERLAND

?

(cid:214)STERREICH

?

PORTUGAL

?

SUOMI/FINLAND

SVERIGE?

?

UNITED KINGDOM

15.3.2001

EN

Official Journal of the European Communities

L 75/25

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

ANNEX II

(cid:151) preparation and decision making related to the licensing of railway undertakings including granting of individual

licenses,

(cid:151) decision making related to the path allocation including both the definition and the assessment of availability and

the allocation of individual train paths,

(cid:151) decision making related to infrastructure charging,

(cid:151) monitoring observance of public service obligations required in the provision of certain services.