Directive 2007/58/EC of the European Parliament and of the Council of 23 October 2007 amending Council Directive 91/440/EEC on the development of the Community’s railways and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure
Date: 2007-10-23
Institutions: Council of the European Union, European Parliament
Subjects: charges for use of infrastructure, intra-EU transport, rail network, single market, transport capacity, transport infrastructure, transport licence

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DIRECTIVES

DIRECTIVE 2007/58/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 23 October 2007

amending Council Directive 91/440/EEC on the development of the Community’s railways and
Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges
for the use of railway infrastructure

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO-
PEAN UNION,

Having regard to the Treaty establishing the European Commu-
nity, and in particular Article 71 thereof,

railway infrastructure capacity and the levying of charges
for the use of railway infrastructure (5) concerns the prin-
ciples and procedures to be applied with regard to the set-
ting and charging of railway infrastructure charges and the
allocation of railway infrastructure capacity.

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

Having regard to the opinion of the Committee of the Regions (2),

Acting in accordance with the procedure referred to in Article 251
of the Treaty, in the light of the joint text approved by the Con-
ciliation Committee on 31 July 2007 (3),

Whereas:

(1)

Council Directive 91/440/EEC of 29 July 1991 on the
development of the Community’s railways (4) was designed
to facilitate the adaptation of the Community’s railways to
the requirements of the single market and to improve their
efficiency.

(2)

Directive 2001/14/EC of the European Parliament and of
the Council of 26 February 2001 on the allocation of

(1) OJ C 221, 8.9.2005, p. 56.
(2) OJ C 71, 22.3.2005, p. 26.
(3) Opinion of

the European Parliament of 28 September 2005
(OJ C 227 E, 21.9.2006, p. 460), Council Common Position of 24 July
2006 (OJ C 289 E, 28.11.2006, p. 30), Position of the European Par-
liament of 18 January 2007 (not yet published in the Official Journal),
Legislative Resolution of the European Parliament of 25 September
2007 and Council Decision of 26 September 2007.

(4) OJ L 237, 24.8.1991, p. 25. Directive as last amended by Directive

2006/103/EC (OJ L 363, 20.12.2006, p. 344).

(3)

(4)

(5)

In its White Paper European transport policy for 2010:
time to decide, the Commission announced its intention to
continue building the internal market in rail services by
proposing to open up the market in international passen-
ger services.

The aim of this Directive is to address the opening of the
market for international rail passenger services within the
Community, and it should therefore not concern services
between a Member State and a third country. In addition,
Member States should be able to exclude from the scope of
this Directive services transiting the Community.

International rail services currently present a very contrast-
ing picture. Long-distance services (for instance night
trains) are in difficulty and several of them have recently
been withdrawn by the railway undertakings operating
them in order to limit losses. The market for international
high-speed services, on the other hand, has seen a sharp
increase in traffic and will continue its vigorous develop-
ment with the doubling and interconnection of the trans-
European high-speed network by 2010. Nevertheless, there
is strong competitive pressure from low-cost airlines in
both cases. It is therefore essential to stimulate new initia-
tives by promoting
competition between railway
undertakings.

(5) OJ L 75, 15.3.2001, p. 29. Directive as last amended by Directive
2004/49/EC (OJ L 164, 30.4.2004, p. 44), corrected by OJ L 220,
21.6.2004, p. 16.

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(6)

(7)

(8)

It is not possible to open up the market in international
passenger services without detailed provisions on infra-
structure access, substantial progress on interoperability
and a strict framework for rail safety at national and Euro-
pean level. All of these elements are now in place follow-
ing the transposition of Directive 2001/12/EC (1) of the
European Parliament and of the Council of 26 February
2001 amending Council Directive 91/440/EEC, Directive
2004/51/EC (2) of the European Parliament and of the
Council of 29 April 2004 amending Council Directive
91/440/EEC, Directive 2001/13/EC (3) of the European
Parliament and of the Council of 26 February 2001 amend-
ing Council Directive 95/18/EC, Directive 2001/14/EC,
and Directive 2004/49/EC of the European Parliament and
of the Council of 29 April 2004 on safety on the Commu-
nity’s railways (4). It is necessary for this new regulatory
framework to be supported by established, consolidated
practice by the proposed date for opening up the market
for international passenger services. This will require a cer-
tain time. The target date for opening up the market should
therefore be 1 January 2010.

The number of railway services without intermediate stops
is very limited. In the case of journeys with intermediate
stops, it is essential to authorise new market entrants to
pick up and set down passengers along the route in order
to ensure that such operations have a realistic chance of
being economically viable and to avoid placing potential
competitors at a disadvantage to existing operators, which
have the right to pick up and set down passengers along
the route. This right should be without prejudice to Com-
munity and national regulations concerning competition
policy.

The introduction of new, open-access, international ser-
vices with intermediate stops should not be used to bring
about the opening of the market for domestic passenger
services, but should merely be focused on stops that are
ancillary to the international route. On that basis, their
introduction should concern services whose principal pur-
pose is to carry passengers travelling on an international
journey. The determination of whether that is the service’s
principal purpose should take into account criteria such as
the proportion of turnover, and of volume, derived from
transport of domestic or international passengers, and the
length of the service. This determination should be made
by the respective national regulatory body at the request of
an interested party.

(9)

Regulation (EC) No 1370/2007 of the European Parliament
and of the Council of 23 October 2007 on public passen-

(1) OJ L 75, 15.3.2001, p. 1.
(2) OJ L 164, 30.4.2004, p. 164, corrected by OJ L 220, 21.6.2004, p. 58.
(3) OJ L 75, 15.3.2001, p. 26.
(4) OJ L 164, 30.4.2004, p. 44, corrected by OJ L 220, 21.6.2004, p. 16.

ger transport services by rail and by road (5) authorises
Member States and local authorities to award public service
contracts. These contracts may contain exclusive rights to
operate certain services. It is therefore necessary to ensure
that the provisions of that Regulation are consistent with the
principle of opening up international passenger services to
competition.

(10) Opening up international passenger services, which
include the right to pick up passengers at any station
located on the route of an international service and to set
them down at another, including stations located in the
same Member State, to competition may have implications
for the organisation and financing of rail passenger services
provided under a public service contract. Member States
should have the possibility to limit the right of access to
the market where this right would compromise the eco-
nomic equilibrium of these public service contracts and
where approval is given by the relevant regulatory body
referred to in Article 30 of Directive 2001/14/EC on the
basis of an objective economic analysis, following a request
from the competent authorities that awarded the public
service contract.

(11)

(12)

Some Member States have already moved towards open-
ing up the market for rail passenger services by transpar-
ent, open competitive tendering for the provision of certain
such services. They should not have to provide full open
access to international passenger services, since this com-
petition for the right to use certain rail routes has involved
a sufficient test of the market value of running those
services.

The assessment of whether the economic equilibrium of
the public service contract could be compromised should
take into account predetermined criteria such as the impact
on the profitability of any services which are included in a
public service contract, including consequential impacts on
the net cost to the competent public authority that awarded
the contract, passenger demand, ticket pricing, ticketing
arrangements, location and number of stops on both sides
of the border and timing and frequency of the proposed
new service. Respecting such an assessment and the deci-
sion of the relevant regulatory body, Member States might
authorise, modify or deny the right of access for the inter-
national passenger service sought, including the levying of
a charge on the operator of a new international passenger
service, in line with the economic analysis and in accor-
dance with Community law and the principles of equality
and non-discrimination.

(5) See page 1 of this Official Journal.

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(13)

(14)

(15)

(16)

(17)

(18)

In order to contribute to the operation of passenger ser-
vices on lines fulfilling a public service obligation, Member
States should be able to authorise the authorities respon-
sible for those services to impose a levy on passenger ser-
vices which fall within the jurisdiction of those authorities.
That levy should contribute to the financing of public ser-
vice obligations laid down in public service contracts
awarded in conformity with Community law. It should be
imposed in accordance with Community law, and in par-
ticular with the principles of fairness, transparency, non-
discrimination and proportionality.

The regulatory body should function in a way which avoids
any conflict of interests and any possible involvement in
the award of the public service contract under consider-
ation. In particular, if for organisational or legal purposes
it is closely linked to the competent authority involved in
the award of the public service contract under consider-
ation, its functional independence should be ensured. The
competence of the regulatory body should be extended to
allow the assessment of the purpose of an international
service and, where appropriate, the potential economic
impact on existing public service contracts.

This Directive constitutes a further phase of the opening of
the rail market. Some Member States have already opened
up the market for international passenger services on their
territory. In this context, this Directive should not be
understood as creating obligations for those Member States
to grant, before 1 January 2010, access rights to railway
undertakings licensed in a Member State where similar
rights are not granted.

impact of this Directive on public service contracts and
their financing. In so doing, the Commission should take
into account
the implementation of Regulation (EC)
No 1370/2007 and the intrinsic differences between Mem-
ber States (density of networks, number of passengers,
average travel distance). In its report the Commission
should, if appropriate, propose complementary measures
to facilitate any such opening, and should assess the impact
of any such measures.

The measures necessary for the implementation of Direc-
tives 91/440/EEC and 2001/14/EC 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).

In particular, the Commission should be empowered to
adapt the Annexes to those Directives. Since those mea-
sures are of general scope and are designed to amend non-
essential elements of
they must be
adopted in accordance with the regulatory procedure with
scrutiny provided for
in Article 5a of Decision
1999/468/EC.

those Directives,

(19)

(20)

(21) A Member State which has no railway system, and no
immediate prospect of having one, would be under a
disproportionate and pointless obligation if it had to
transpose
91/440/EEC
and 2001/14/EC. Therefore, such Member States should be
exempted, for as long as they have no railway system, from
the obligation to transpose and implement
these
Directives.

implement Directives

and

In order to encourage investment for services using specia-
lised infrastructure, such as high-speed railway lines, appli-
cants need to be able to plan and require legal certainty
reflecting the substantial long-term investment involved. It
should therefore be possible for those undertakings nor-
mally to conclude framework agreements with a term of
up to 15 years.

(22)

The national regulatory bodies should, on the basis of
Article 31 of Directive 2001/14/EC, exchange information
and, where relevant in individual cases, coordinate the
principles and practice of assessing whether the economic
equilibrium of a public service contract is compromised.
They should progressively develop guidelines based on
their experience.

The application of this Directive should be evaluated on
the basis of a report to be presented by the Commission
two years after the date of opening up the market in inter-
national passenger services. This report should also assess
the development of the market, including the state of the
preparation of a further opening-up of the passenger rail
market. In this report the Commission should also analyse
the different models for organising this market and the

Since the objective of this Directive, namely the develop-
ment of the Community’s railways, cannot be sufficiently
achieved by the Member States, given the need to ensure
fair and non-discriminatory conditions of access to infra-
structure and to take account of the obviously interna-
tional dimension of the way in which important parts of
the rail networks operate, as well as the need for coordi-
nated transnational action, and can therefore be better
achieved at Community level, the Community may adopt
measures, in accordance with the principle of subsidiarity
as set out in Article 5 of the Treaty. In accordance with the
principle of proportionality, as set out in that Article, this
Directive does not go beyond what is necessary in order to
achieve that objective.

(23)

In accordance with point 34 of the Interinstitutional Agree-
ment on better law-making (2), Member States are encour-
aged to draw up, for themselves and in the interests of the
Community, their own tables illustrating, as far as possible,
the correlation between this Directive and the transposi-
tion measures, and to make them public.

(1) OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision

2006/512/EC (OJ L 200, 22.7.2006, p. 11).

(2) OJ C 321, 31.12.2003, p. 1.

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(24) Directives 91/440/EEC and 2001/14/EC should therefore

be amended accordingly,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

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

1.

the following paragraph shall be added to Article 2:

‘4. Member States may exclude from the scope of this
Directive any railway service carried out in transit through
the Community and which begins and ends outside the Com-
munity territory.’;

2.

the fourth indent of Article 3 shall be deleted;

3.

the following indent shall be inserted in Article 3 after the
fifth indent:

‘— “international passenger service” shall mean a passenger
service where the train crosses at least one border of a
Member State and where the principal purpose of the
service is to carry passengers between stations located in
different Member States; the train may be joined and/or
split, and the different sections may have different ori-
gins and destinations, provided that all carriages cross at
least one border’;

The right of access to the infrastructure of the Member States
for which the share of international carriage of passengers by
train constitutes more than half of the passenger turnover of
railway undertakings in that Member State shall be granted
by 1 January 2012.

Whether the principal purpose of the service is to carry pas-
sengers between stations located in different Member States
shall be determined by the relevant regulatory body or bod-
ies referred to in Article 30 of Directive 2001/14/EC follow-
ing a request from the relevant competent authorities and/or
interested railway undertakings.

3b. Member States may limit the right of access defined in
paragraph 3a on services between a place of departure and a
destination which are covered by one or more public service
contracts conforming to the Community legislation in force.
Such limitation may not have the effect of restricting the
right to pick up passengers at any station located on the
route of an international service and to set them down at
another, including stations located in the same Member State,
except where the exercise of this right would compromise the
economic equilibrium of a public service contract.

Whether the economic equilibrium would be compromised
shall be determined by the relevant regulatory body or bod-
ies referred to in Article 30 of Directive 2001/14/EC on the
basis of an objective economic analysis and based on pre-
determined criteria, following a request from:

— the competent authority or competent authorities that

awarded the public service contract,

4.

the following indent shall be inserted in Article 3 after the
sixth indent:

— any other interested competent authority with the right

to limit access under this Article,

‘— “transit” shall mean the crossing of the Community ter-
ritory which is carried out without loading or unloading
of goods, and/or without picking up of passengers nor
setting them down in the Community territory.’;

5.

the first indent of Article 5(3) shall be deleted;

6.

the phrase ‘and international groupings’ shall be deleted in
Article 8(1);

7. Article 10(1) shall be deleted;

8.

the following paragraphs shall be inserted in Article 10:

‘3a.
Railway undertakings within the scope of Article 2
shall be granted by 1 January 2010 the right of access to the
infrastructure in all Member States for the purpose of oper-
ating an international passenger service. Railway undertak-
ings shall, in the course of an international passenger service,
have the right to pick up passengers at any station located on
the international route and set them down at another, includ-
ing stations located in the same Member State.

— the infrastructure manager, or

— the railway undertaking performing the public service

contract.

The competent authorities and the railway undertakings pro-
viding the public services shall provide the relevant regula-
tory body or bodies with the information reasonably required
to reach a decision. The regulatory body shall consider the
information provided, consulting all the relevant parties as
appropriate, and shall inform the relevant parties of its rea-
soned decision within a pre-determined, reasonable time,
and, in any case, within two months of receipt of all relevant
information. The regulatory body shall give the grounds for
its decision and specify the time period within which, and the
conditions under which,

— the

relevant

competent

authority or

competent

authorities,

— the infrastructure manager,

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— the railway undertaking performing the public service

contract, or

— the railway undertaking seeking access;

may request a reconsideration of the decision.

3c. Member States may also limit the right to pick up and
set down passengers at stations within the same Member
State on the route of an international passenger service where
an exclusive right to convey passengers between those sta-
tions has been granted under a concession contract awarded
before 4 December 2007 on the basis of a fair competitive
tendering procedure and in accordance with the relevant
principles of Community law. This limitation may continue
for the original duration of the contract, or 15 years, which-
ever is the shorter.

The provisions of this Directive shall not require a
3d.
Member State to grant, before 1 January 2010, the right of
access referred to in paragraph 3a to railway undertakings
and their directly or indirectly controlled subsidiaries,
licensed in a Member State where access rights of a similar
nature are not granted.

3e. Member States shall take the necessary measures to
ensure that the decisions referred to in paragraphs 3b, 3c
and 3d are subject to judicial review.

3f. Without prejudice to paragraph 3b, Member States
may, under the conditions laid down in this Article, autho-
rise the authority responsible for rail passenger transport to
impose a levy on railway undertakings providing passenger
services for the operation of routes which fall within the
jurisdiction of that authority and which are operated between
two stations in that Member State.

In that case, railway undertakings providing domestic or
international rail passenger transport services shall be sub-
ject to the same levy on the operation of routes which fall
within the jurisdiction of that authority.

The levy is intended to compensate the authority for public
service obligations laid down in public service contracts
awarded in conformity with Community law. The revenue
raised from such levy and paid as compensation may not
exceed what is necessary to cover all or part of the cost
incurred in the relevant public service obligations taking into
account the relevant receipts and a reasonable profit for dis-
charging those obligations.

The levy shall be imposed in accordance with Community
law, and shall respect in particular the principles of fairness,
in
transparency, non-discrimination and proportionality,
particular between the average price of the service to the

passenger and the level of the levy. The total levies imposed
pursuant to this paragraph shall not endanger the economic
viability of the rail passenger transport service on which they
are imposed.

The relevant authorities shall keep the information necessary
to ensure that the origin of the levies and their use can be
traced. Member States shall provide the Commission with
this information.’;

9. Article 10(8) shall be replaced by the following:

By 1 January 2009, the Commission shall submit to
‘8.
the European Parliament, the Council, the European Eco-
nomic and Social Committee and the Committee of the
Regions a report on the implementation of this Directive.

This report shall address:

— the implementation of this Directive in the Member
States, and in particular its impact in the Member States
as referred to in the second subparagraph of para-
graph 3a and the effective working of the various bodies
involved;

— market developments, in particular international traffic
trends, activities and market share of all market actors,
including new entrants.’;

10. the following paragraph shall be added to Article 10:

‘9.
By 31 December 2012, the Commission shall submit
to the European Parliament, the Council, the European Eco-
nomic and Social Committee and the Committee of the
Regions a report on the implementation of the provisions of
paragraphs 3a to 3f.

The application of this Directive shall be evaluated on the
basis of a report to be presented by the Commission two
years after the date of the opening-up of the market in inter-
national passenger services.

This report shall also assess the development of the market,
including the state of the preparation of a further opening-up
of the rail market. In its report the Commission shall also
analyse the different models for organising this market and
the impact of this Directive on public service contracts and
their financing. In so doing, the Commission shall take
into account
the implementation of Regulation (EC)
No 1370/2007 of the European Parliament and of the Coun-
cil of 23 October 2007 on public passenger transport ser-
vices by rail and by road and repealing Council Regulations
(EEC) Nos 1191/69 and 1107/70 (*) and the intrinsic differ-
ences between Member States (density of networks, number
of passengers, average travel distance). In its report the Com-
mission shall, if appropriate, propose complementary mea-
sures to facilitate any such opening, and shall assess the
impact of any such measures.

(*) OJ L 315, 3.12.2007, p. 1.’

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11. Article 11(2) shall be replaced by the following:

‘2. Measures designed to amend non-essential elements of
this Directive and relating to the adaptation of the Annexes
thereto shall be adopted in accordance with the regulatory
procedure with scrutiny referred to in Article 11a(3).’;

12. Article 11a(3) shall be replaced by the following:

reference

‘3. Where
to this paragraph,
Article 5a(1) to (4), and Article 7 of Decision 1999/468/EC
shall apply, having regard to the provisions of Article 8
thereof.’;

is made

13. the following subparagraph shall be added to Article 15:

‘The obligations for transposition and implementation of this
Directive shall not apply to Cyprus and Malta for as long as
no railway system is established within their territory.’

Article 2

Directive 2001/14/EC is hereby amended as follows:

1.

the following point shall be added to Article 1(3):

‘(e)

transport operations in the form of railway services
which are
through the
Community.’;

carried out

in transit

shorter or longer period in specific cases. Any period longer
than five years shall be justified by the existence of commer-
cial contracts, specialised investments or risks.

For services using specialised infrastructure referred to
5a.
in Article 24 which requires substantial and long-term invest-
ment, duly justified by the applicant, framework agreements
may be for a period of 15 years. Any period longer than 15
years shall be permissible only in exceptional cases, in par-
ticular where there is large-scale, long-term investment, and
particularly where such investment is covered by contractual
commitments including a multi-annual amortisation plan.

The applicant’s requirements may in this case call for detailed
definition of the capacity characteristics — including the fre-
quency, volume and quality of train paths — which are to be
provided to the applicant for the duration of the framework
agreement. The infrastructure manager may reduce reserved
capacity which, over a period of at least one month, has been
used less than the threshold quota provided for in Article 27.

As from 1 January 2010, an initial framework agreement
may be drawn up for a period of five years, renewable once,
on the basis of the capacity characteristics used by applicants
operating services before 1 January 2010, in order to take
account of specialised investments or the existence of com-
mercial contracts. The regulatory body referred to in
Article 30 shall be responsible for authorising the entry into
force of such an agreement.’;

2.

the following point shall be added to Article 2:

5.

the following sentence shall be inserted before the final sen-
tence of Article 30(1):

‘(n) “transit” shall mean the crossing of the Community ter-
ritory which is carried out without loading or unloading
of goods, and/or without picking up of passengers nor
setting them down in the Community territory.’;

‘It shall furthermore be functionally independent from any
competent authority involved in the award of a public ser-
vice contract.’;

3.

the following paragraph shall be added to Article 13:

6. Article 34(3) shall be replaced by the following:

‘4. When an applicant intends to request infrastructure
capacity with a view to operating an international passenger
service as defined in Article 3 of Directive 91/440/EEC, it
shall inform the infrastructure managers and the regulatory
bodies concerned. In order to enable the assessment of the
purpose of the international service to carry passengers
between stations located in different Member States, and the
potential economic impact on existing public service con-
tracts, regulatory bodies shall ensure that any competent
authority that has awarded a rail passenger service defined in
a public service contract, any other interested competent
authority with a right to limit access under Article 10(3b) of
Directive 91/440/EEC and any railway undertaking perform-
ing the public service contract on the route of this interna-
tional passenger service is informed.’;

‘3. Measures designed to amend non-essential elements of
this Directive and relating to the adaptation of the Annexes
thereto shall be adopted in accordance with the regulatory
procedure with scrutiny referred to in Article 35(3).’;

7. Article 35(3) shall be replaced by the following:

reference

‘3. Where
to this paragraph,
Article 5a(1) to (4), and Article 7 of Decision 1999/468/EC
shall apply, having regard to the provisions of Article 8
thereof.’;

is made

4. Article 17(5) shall be replaced by the following:

8.

the following subparagraph shall be added to Article 38:

Framework agreements shall

‘5.
in principle cover a
period of five years, renewable for periods equal to their
original duration. The infrastructure manager may agree to a

‘The obligations for transposition and implementation of this
Directive shall not apply to Cyprus and Malta for as long as
no railway system is established within their territory.’

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Article 3

Article 4

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive before 4 June 2009. They shall forthwith communicate
to the Commission the text of those measures.

When Member States adopt those measures, they shall contain a
reference to this Directive or shall be accompanied by such refer-
ence at the time of their official publication. The methods of mak-
ing such reference shall be determined by the Member States.

2. Member States shall communicate to the Commission the
text of the main provisions of national law which they adopt in
the field covered by this Directive.

The provisions of points 2, 5, 6 and 7 of Article 1 shall

3.
apply from 1 January 2010.

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

Article 5

This Directive is addressed to the Member States.

Done at Strasbourg, 23 October 2007.

For the European Parliament
The President
H.-G. PÖTTERING

For the Council
The President
M. LOBO ANTUNES