COMMUNICATION FROM THE COMMISSIONTO THE EUROPEAN PARLIAMENTpursuant to Article 294(6) of the Treaty on the Functioning of the European Unionconcerning the position of the Council (1st reading) on the adoption of a Directive of the European Parliament and of the Council establishing a single European railway area (Recast)
Date: 2012-03-12
Institutions: European Commission
Subjects: carriage of passengers, common transport policy, international transport, rail transport, transport safety

EUROPEAN COMMISSION 

Brussels, 12.3.2012  
COM(2012) 119 final 

2010/0253 (COD) 

COMMUNICATION FROM THE 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 (1st reading) on the adoption of a Directive of the European 
Parliament and of the Council establishing a single European railway area (Recast) 

 
 
 
 
  
 
 
 
2010/0253 (COD) 

COMMUNICATION FROM THE 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 (1st reading) on the adoption of a Directive of the European 
Parliament and of the Council establishing a single European railway area (Recast) 

1. 

BACKGROUND 

Date of transmission of the proposal to the European Parliament and 
to the Council 
(document COM(2010) 475 final – 2010/0253(COD): 

21/09/2010 

Date of the opinion of the European Committee of Regions: 

28/01/2011 

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

16/03/2011 

Date of the position of the European Parliament, first reading: 

16/11/2011 

Date  of  adoption  of  the  Council's  political  agreement  in  view  of  a 
Council’s position at first reading: 

12/12/2011 

Date of adoption of the Council's position at first reading: 

08/03/2012 

2. 

OBJECTIVE OF THE PROPOSAL FROM THE COMMISSION 

Infringement  procedures,  complaints  received  from  stakeholders  as  well  as  different  studies 
and reports on the implementation of the first railway package, have demonstrated that there 
was an opportunity to improve the current regulatory framework. 

In this context, beyond simplification and increasing transparency, the Commission proposal 
to recast the first railway package aims to address (a) the adequate financing of and charging 
for  rail  infrastructures,  (b)  the  conditions  of  competition  on  the  railway  market,  and  (c)  the 
organisational reforms needed to ensure appropriate supervision of the market: 

(a) 

Ensuring  adequate,  transparent  and  sustainable  funding  of  the  infrastructure  and, 
thanks  to  better  predictability  of  the  infrastructure  development  and  access 
conditions,  facilitating  investments  by  railway  undertakings,  together  with  a  more 
the 
appropriate 
competitiveness of rail operators vis-à-vis other transport modes and contributing to 
the  internalisation  of  environmental  costs  constitute  the  first  objective  of  the 
proposed recast. 

level  and  structure  of 

infrastructure  charging, 

improving 

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(b) 

(c) 

Avoiding  distortions  of  competition  due  to  the  use  of  State  funds  for  commercial 
activities,  preventing  commercially  sensitive  information  from  being  collected  by 
incumbents  and  used  against  their  potential  competitors,  eliminating  conflicts  of 
interest  in  the  management  of  rail-related  services  and  increasing  their  availability 
for  new  entrants  as  well  as  increasing  market  transparency  to  ensure  effective 
competition are a second set of objectives. 

Regarding regulatory oversight, the proposed recast intends to ensure that regulatory 
bodies  are  in  a  position  to  carry  out  their  duties  effectively,  thanks  to  reinforced 
independence, extended competencies, and additional means at their disposal. 

3. 

COMMENTS ON THE POSITION OF THE COUNCIL 

3.1  General comments on the position of the Council 

The  Council  reached  a  political  agreement  on  12  December  2011  and  a  position  in  first 
reading  on  8  March  2012  by  qualified  majority.  While  still  being  in  line  with  the  general 
objective  of  simplification  and  increasing  transparency  by  consolidating  three  existing 
directives  and  their  modifications,  the  Council  weakened  the  Commission  proposal 
concerning access to rail-related services, infrastructure financing, infrastructure charges and 
powers  of  the  regulatory  body.  In  some  cases,  the  Council's  position  confirms  existing  law 
without  further  improvement  despite  the  various  reasons  for  such  efforts  listed  above  in 
section  2.  In  this  regard,  the  Council's  position  would  be  improved  by  taking  into  account 
some amendments adopted by the European Parliament. 

3.2 

Detailed Commission comments  

The detailed comments are presented according to the main fields of activity covered by the 
draft directive. 

3.2.1  General provisions (articles 1 to 3) 

The  Council's  changes  mostly  aim  at  further  clarification  and  simplification  of  existing 
provisions and are therefore acceptable for the Commission.  

3.2.2  Management  independence;  separation  of  infrastructure  managers  and  transport 
operators (articles 4 to 7) 

Once  again,  the  Council's  changes  mostly  aim  at  further  clarification  and  simplification  of 
existing provisions. The Commission can therefore accept these improvements.  

3.2.3  Improvement  of  the  financial  situation  of  infrastructure  managers  and  railway 
undertakings (articles 8 and 9) 

The Council links the requirement of balancing the accounts of the infrastructure manager to 
the  contractual  agreement  between  the  competent  authority  and  the  infrastructure  manager 
which  may  cover  a  longer  period  and  is  therefore  provides  a  poorer  basis  for  ensuring 
effective  long  term  planning  and  implementation  of  infrastructure  investment  than  the 
Commission proposal.  

3.2.4  Access to railway infrastructure and services (articles 10 to 13) 

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Most  changes  introduced  by  the  Council  are  in  line  with  the  general  objective  of  the 
Commission proposal. However, the Commission finds it regrettable that the requirement of a 
legal separation between railway undertakings holding a dominant position and operators of 
service facilities is reduced to independence in organisational and decision-making terms and 
to  an  obligation  to  have  separate  accounts.  This  will  make  it  more  difficult  in  practice  to 
ensure full transparency and equal treatment between rail undertakings.  

The reversed burden of proof in relation to the existence of viable alternatives is weakened.  

Finally,  the  obligation  to  make  available  a  service  facility  which  is  not  in  use,  on  a  rent  or 
lease basis, to another interested party is retained in the Council's position but in case of an 
explicit  interest  by  railway  undertakings  for  access  to  this  facility  on  the  basis  of 
demonstrated needs and after an extended non-use period to 3 years instead of 2 years in the 
Commission proposal. 

3.2.5  Cross-border agreements (article 14) 

The  Council's  position  detailing  further  the  process  to  be  followed  to  ensure  compliance  of 
cross-border agreements with EU law is acceptable for the Commission. 

3.2.6  Monitoring tasks of the Commission (article 15) 

The Council's changes specifying those tasks are acceptable for the Commission. 

3.2.7  Licensing of railway undertakings (articles 16 to 25) 

The Council has introduced a small number of changes to the Commission proposal that aim 
at the clarification of existing provisions and are acceptable for the Commission.  

3.2.8 

Infrastructure charges and allocation of infrastructure capacity (article 26 to 54) 

Most  changes  introduced  by  Council  aim  at  the  clarification  of  existing  provisions  and  are 
therefore acceptable for the Commission.  

However  the  Commission  regrets  that  the  Council  weakened  its  proposal  by  making  only 
optional differentiation of charges on the basis of noise performance or the use of ERTMS as 
well as the introduction of reservation charges.  

The  Council  reduced  the  minimum  time  period  of  the  contractual  agreement  between  the 
competent authority and the infrastructure manager for infrastructure planning and financing 
to 3 years; the Commission strongly believes its initial proposal of 5 years represented a good 
compromise,  and  (as  with  Art  3.2.3)  the  Council  position  will  undermine  long  term 
investment.  

Council included a provision allowing for full cost recovery for freight transport from and to 
third countries on a network whose track gauge is different from the main rail network within 
the EU. The Commission believes that such an exemption cannot be justified by such a purely 
technical as opposed to economic or operational difference. 

3.2.9  Regulatory body (articles 55 to 57) 

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Most  changes  introduced  by  the  Council  result  in  weakening  the  position  of  the  regulatory 
body in comparison with the initial proposal of the Commission. The Commission regrets that 
the  Council  made  purely  optional  the  possibility  for  regulators  to  intervene  on  financing 
issues  (in  particular  in  the  adoption  of  infrastructure  business  plans,  contractual  agreements 
with  National  authorities  and  congestion  plans).  The  Commission  continues  to  believe  that 
clearer requirements to protect the independence of regulators' staff are justified.  

3.2.10  Final provisions (articles 58 to 67) 

In  some  cases,  the  Council  restricted  powers  to  the  Commission  to  adopt  delegated  or 
implementing  acts  but  the  outcome  is  still  acceptable  for  the  Commission.  While  the 
Commission  regrets  a  restrictive  approach  in  determining  the  essential  nature  of  specific 
annexes, the majority of changes would give to the Commission further possibilities to ensure 
harmonised implementation of the legislation and can therefore be considered acceptable. 

The Council proposes 36 months for transposition. The Commission considers that a shorter 
deadline as foreseen by Parliament would be preferable. 

4. 

CONCLUSION 

The  present  proposal  is  particularly  important  to  reach  the  objectives  set  out  in  its 
communication "Roadmap to a Single European Transport Area – Towards a competitive and 
resource efficient transport system" adopted on 28 March 2011. It should also pave the way to 
new Commission initiatives in 2012 to foster further market integration in rail transport and 
should therefore be adopted by co-legislators as soon as possible.  

Despite  the  weakening  of  several  provisions,  the  Commission  considers  that  the  Council’s 
position reflects the main objectives of its proposal and therefore believes that the legislative 
process and the discussion with the European Parliament should continue in second reading.  

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