Communication from the European Commission to the European Parliament pursuant to Article 294(6) of the Treaty on the Functioning of the European Union concerning the position of the Council at first reading with a view to the adoption of a Regulation of the European Parliament and of the Council concerning a European rail network for competitive freight
Date: 2010-02-24
Institutions: European Commission
Subjects: carriage of goods, competitiveness, freight rate, management, organisation of transport, rail network, trans-European network, transport infrastructure

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EUROPEAN COMMISSION 

Brussels, 24.2.2010 
COM(2010)68 final 

2008/0247 (COD) 

COMMUNICATION FROM THE EUROPEAN COMMISSION TO THE EUROPEAN 
PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union 

concerning the position of the Council at first reading with a view to the adoption of a 
Regulation of the European Parliament and of the Council concerning a European rail 
network for competitive freight 

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2008/0247 (COD) 

COMMUNICATION FROM THE EUROPEAN COMMISSION TO THE EUROPEAN 
PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union 

concerning the position of the Council at first reading with a view to the adoption of a 
Regulation of the European Parliament and of the Council concerning a European rail 
network for competitive freight 

(Text with EEA relevance) 

1. 

BACKGROUND 

Date of forwarding of the proposal to the EP and the Council 
(document COM(2008) 852 final – 2008/0247 (COD)): 

11.12.2008 

Date of the opinion of the European Parliament at first reading: 

23.04.2009 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee: 

15.07.2009 

Date of the opinion of the Committee of the Regions: 

07.10.2009 

Date  of  adoption  of  the  Council's  position  adopted  unanimously  at 
first reading 

22.02.2010 

2. 

PURPOSE OF THE COMMISSION'S PROPOSAL 

The  proposal  for  a  Regulation  aims  at  encouraging  Member  States,  and  above  all  rail 
infrastructure managers, to develop a European rail network 'for competitive freight' made up 
of freight-oriented international rail corridors. 

These  corridors  will  allow  freight  trains  to  benefit  from  good-quality  train  paths  and  make 
them  more  reliable  and  competitive.  The  creation  of  the  corridors  will  also  help  free  up 
additional capacity for rail freight. 

The  Commission  therefore  proposes  focusing  on  the  following  four  issues  when  creating 
these corridors:  

–  strengthening  cooperation  between  rail  infrastructure  managers  with  regard  both  to  the 
operational  management  of  infrastructure  and  to  investments,  in  particular  by  putting  in 
place a governance structure for each corridor; 

–  increasing  the  reliability  of  the  infrastructure  capacities  allocated  to  freight  on  these 

corridors; 

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–  encouraging  greater  coordination  between  rail  infrastructure  management  and  goods 

terminal management (maritime and inland ports, marshalling yards, etc.); 

–  guaranteeing non-discriminatory access to these corridors for all operators. 

3. 

GENERAL COMMENTS ON THE COUNCIL'S POSITION 

The  Council's  position  at  first  reading  maintains  the  basic  principles  put  forward  in  the 
Commission's  original  proposal.  However,  some  elements  –  corridor  selection,  cooperation 
between infrastructure managers and the priority accorded to transporting goods – have been 
watered down. 

Moreover,  other  elements  –  such  as  the  provisions  on  authorised  applicants  and  the 
requirement  to  use  one-stop  shops  for  requests  for  international  train  paths  –  have  been 
removed altogether. 

Despite  these  amendments,  the  Commission  still  considers  the  Council's  position  at  first 
reading to be consistent with the objectives of its original proposal. 

4. 

DETAILED  COMMENTS  ON  THE  COUNCIL'S  POSITION  AT  FIRST 
READING 

4.1.  Main amendments to the Commission's proposal 

–  Selection of rail freight corridors (Article 3) 

The Commission's original proposal provides for the creation of one to three corridors per 
Member State  selected  on  the  basis  of  well-founded  proposals  put  forward  by  the 
Member States  concerned  and  rail  infrastructure  managers.  The  Council  proposes  a  two-
phase  approach:  the  selection  of  a  first  set  of  corridors  under  the  codecision  procedure 
annexed  to  the  Regulation  and  their  establishment  within  three  years  of  the  Regulation's 
being adopted; the selection of other corridors (at least one per Member State) on the basis 
of well-founded proposals put forward by the Member States.   

While the objective of the proposal is to create corridors that meet market needs, the first 
set of corridors will be determined politically. This political approach also goes against the 
primary objective of the legislative proposal: to help improve infrastructure management at 
a transnational level, which is different to the objective of building new infrastructure. 

–  Governance of corridors (Article 7) 

The  Commission's  original  proposal  provides  for  governance  driven  mainly  by  action  on 
the  part  of  rail  infrastructure  managers by  creating  a  governing  body  with  a  director  and 
the  status  of  an  independent  legal  entity.  The  Council  wanted  this  body  to  have  a  leaner 
structure  (with  no  director  or  status  of  independent  legal  entity)  and,  based  on  the 
experience  gained  on  certain  ERTMS  corridors,  it  wanted  to  enable  Member  States  to 
exercise  supervision  by  creating  an  executive  board  composed  of  Member  State 
representatives.  

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The  Commission  can  accept  the  addition  of  such  supervision  provided  it  does  not 
jeopardise the managerial independence of the infrastructure managers. 

–  One-stop shop (OSS) (Article 12)  

The  original  proposal  provides  that  any  request  for  an  international  train  path  must  be 
made  through  a  one-stop  shop  for  the  corridor.  The  Council's  position  at  first  reading 
makes use of this one-stop shop optional. The Commission can accept this amendment. 

–  Allocation of capacity for freight trains (Article 13) 

This  article  is  the  key  feature  of  the  Regulation.  The  proposal  effectively  aims  at 
guaranteeing  reliable  and  additional  capacity  for  freight  trains  by  laying  down  a  suitable 
procedure for meeting users' needs. Demand for freight train capacity depends on market 
needs and cannot be determined and fixed a year in advance, as is the case for passenger 
trains. 

That is why the Commission's proposal provides for capacities to be allocated in advance 
for  use  when  annual  timetables  are  being  compiled  as  well  as  for  capacity  to  be  kept  in 
reserve  within  the  annual  timetables  so  as  to  satisfy  ad-hoc  requests  for  train  paths  for 
freight trains. 

Although  the  Council  followed  the  Commission's  proposal  and  made  it  even  more 
operational (by specifying predetermined train paths), it wishes to limit the impact of this 
advance  capacity  allocation  and  this  capacity  reserve  by  introducing  a  reference  to  the 
needs of passenger transport.  

–  Priority rules in the event of incidents (Article 15) 

The Commission's proposal provides that a train running on time may remain on time in 
the  event  of  disturbance.  The  Council's  position  at  first  reading  proposes  that  it  is  also 
necessary to "minimise the overall network recovery time" (A) "with regard to the needs of 
all types of transport" (B).  

The addition made by the Council (A) is made redundant by Directive 2001/14/EC. As a 
legal  provision,  B  is  not  sufficiently  clear  or  easily  comprehensible.  It  could  give  rise  to 
interpretations that may be inconsistent with the objectives of the Regulation. 

–  Amendment  to  the  list  of  criteria  governing  the  creation  or  modification  of  corridors 

The Commission's proposal and the political agreement of 11 June 2009 provided for the 
possibility of amending this list of criteria, which is given in Annex II, under the relevant 
PRAC). 
committee 

procedure  with 

(regulatory 

procedure 

scrutiny 

– 

Following the entry into force of the Treaty on the Functioning of the EU, the committee 
procedure has been replaced by delegated acts. In this respect, the Commission's position is 
as follows: 

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•  Limitation  of  the  Commission's  powers:  The  Council  wanted  to  limit  the 
Commission's powers, with regard to delegated acts, by obliging the Commission 
to  observe  the  secondary  legislation  and  by  taking  into  account  significant 
elements of railway policy. 

This addition by the Council does not correspond to the requirements of delegated 
acts.  Also,  this  addition  is  redundant  as  it  goes  without  saying  that  the 
Commission – as guardian of the Treaties – will observe the secondary legislation. 

•  Delegation  of  powers  and  objection  to  delegated  acts:  In  accordance  with  its 
Communication on the implementation of Article 290 of the TFEU and based on 
an analysis of the specific measures provided for in the Council position, and also 
in  view  of  the  right  of  revocation  provided  for  in  the  Council's  text,  the 
Commission would prefer the delegation of powers to be for an indefinite period, 
but can accept the Council's approach (five years with tacit renewal). In addition, 
the Commission regrets that the Council has introduced at first reading a period of 
three  months  for  the  Council  and  Parliament  to  express  objections.  The 
Commission  would  prefer  a  period  of  two  months  to  express  objections,  which 
could be extended by one month at the initiative of the Council or the Parliament. 
This  would  help  increase  the  efficiency  of  the  procedures,  without  calling  into 
question the principle of a total period of three months.  

•  Consultation  of  experts:  The  Commission  has  taken  note  of  the  recital  which 
makes the consultation of experts obligatory in the preparatory phase of delegated 
acts.  The  Commission  considers  that  groups  of  experts  cannot  have  a  formal 
institutional  role.  Such  a  recital  cannot  therefore  be  included  in  the  text  of  the 
its 
basic 
Communication of 9 December 2009.  

instrument.  The  Commission  also  refers 

this  context 

in 

to 

4.2. 

Parliamentary amendments incorporated in full or in part in the Council's position 
at first reading 

–  Governance of corridors 

Two  bodies  are  responsible  for  organising  corridor  governance:  the  management  board, 
made up of representatives of the infrastructure managers, and the executive board, made 
up  of  representatives  of  the  Member  States  (amendment 31).  The  Commission's  original 
proposal  provided  for  only  one  body,  composed  of  representatives  of  the  infrastructure 
managers. 

Additional supervision by Member States is  possible, provided it does not jeopardise the 
managerial independence of the infrastructure managers. 

–  Traffic management rules  

Parliament (amendment 62) and the Council have relaxed the traffic management rules in 
the event of disturbance. The Commission can accept that the rule 'a punctual freight train 
should  remain  on  time'  should  apply  'as  far  as  possible',  and  not  systematically. 

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However, the Commission cannot accept that this rule should not be applied at peak times, 
i.e. during periods of the day when it can be activated. Moreover, it is of the opinion that 
the objective of restoring the situation to normal as quickly as possible is already covered 
by  existing  legislation.  Consequently,  including  this  objective  in  the  text  serves  no 
purpose. 

4.3. 

Parliamentary amendments approved by the Commission and not incorporated in 
the Council's position at first reading 

–  Allocation of capacity 

Parliament's amendments in this respect (and in particular, amendments 52 and 54-58) do 
not  alter  the  substance  of  the  Commission's  original  proposal.  However,  the  Council's 
position  at  first  reading  contains  references  to  passenger  transport  which  muddle  the 
message and appear out of place in a legal instrument designed to give more guarantees to 
freight trains. 

–  Selection of corridors 

The  Council's  position  at  first  reading  is  different  to  Parliament's  position  in  that  it 
introduces an annex with a list of corridors agreed under the co-decision procedure. 

5. 

CONCLUSION 

The Commission considers that, despite being too political in its approach and not sufficiently 
geared towards the actual needs of the market and although lacking in ambition with regard to 
the  additional  guarantees  given  by  the  infrastructure  to  freight  trains,  the  Council's  position 
adopted unanimously at first reading can contribute to achieving the general objectives of its 
proposal. 

The  Commission  expresses  its  reservations  about  the  framework  introduced  by  the  Council 
with regard to the use of delegated acts by the Commission, as specified in Article 4(8). 

The Commission can therefore support the Council's position at first reading. 

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