OPINION OF THE COMMISSION pursuant to Article 294(7)(c) of the Treaty on the Functioning of the European Union, on the European Parliament's amendment[s] to the Council's position regarding the proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing a single European railway area (Recast)
Date: 2012-07-23
Institutions: European Commission
Subjects: carriage of passengers, common transport policy, international transport, rail transport, transport safety

EUROPEAN COMMISSION 

Brussels, 23.7.2012  
COM(2012) 426 final 

2010/0253 (COD) 

OPINION OF THE COMMISSION 

pursuant to Article 294(7)(c) of the Treaty on the Functioning of the European Union,
on the European Parliament's amendment[s] 
to the Council's position regarding the  
proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT  
AND OF THE COUNCIL 

establishing a single European railway area (Recast) 

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2010/0253 (COD) 

OPINION OF THE COMMISSION 

pursuant to Article 294(7)(c) of the Treaty on the Functioning of the European Union, 
on the European Parliament's amendment[s] 
to the Council's position regarding the  
proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT  
AND OF THE COUNCIL 

establishing a single European railway area (Recast) 

1. 

INTRODUCTION 

Article  294(7)(c)  of  the  Treaty  on  the  Functioning  of  the  European  Union  provides  that  the 
Commission  is  to  deliver  an  opinion  on  the  amendments  proposed  by  the  European 
Parliament  at  second  reading.  The  Commission  sets  out  its  opinion  below  on  the  single 
comprehensive amendment voted by the Parliament.  

2. 

BACKGROUND 

Proposal of the Commission: 

Proposal transmitted to the European Parliament and the Council: 

Opinion of European Committee of Regions: 

Opinion of European Economic and Social Committee: 

TTE Council general approach: 

European Parliament position in first reading: 

Council position in first reading: 

17.09.2010 

21.09.2010 

28.01.2011 

16.03.2011 

16.06.2011 

16.11.2011 

08.03.2012 

Communication of the Commission on the Council position in first reading: 

12.03.2012 

Transmission of the Council position in first reading to the European Parliament:  12.03.2012 

Endorsement of the second reading agreement by Coreper : 

Adoption by the European parliament in plenary session: 

19.06.2012 

03.07.2012 

3. 

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 

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was an opportunity to improve the current regulatory framework which needs to be taken to 
fully meet the objectives of the legislation. 

In this context, the Commission proposal to recast the first railway package aimed 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) 

(b) 

(c) 

4. 

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 
appropriate 
the 
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 

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. 

OPINION  OF  THE  COMMISSION  ON  THE  AMENDMENT  BY  THE  EUROPEAN 
PARLIAMENT 

A number of informal contacts took place between the Council, the European Parliament and 
the  Commission  with  a  view  to  reaching  an  agreement  on  this  dossier  at  second  reading. 
Following these contacts, an overall compromise amendment was voted by the plenary on 3 
July  2012.  The  Commission  endorses  this  comprehsensive  compromise  amendment  on 
substance. 

4.1. 

Amendments of the European Parliament at second reading  

The Council's position at first reading has already been endorsed by the Commission (see the 
Commission's opinion on the Council's position1). The most important changes introduced by 
the comprehensive amendment of the European Parliament to the Council's position voted on 
3 July 2012 are as described hereunder. 

– 

In relation to infrastructure financing, the second reading agreement (a) introduces a 
new  obligation  to  consult  stakeholders  on  the  national  infrastructure  development 
strategy,  (b)  clarifies  that  the  period  to  balance  the  account  of  infrastructure 
managers shall not exceed 5 years, (c) extends the minimum duration of contractual 
agreements increased from 3 to 5 years and (d) ensures that contractual agreements 
can cover the development of new infrastructures. 

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COM(2012) 119 final  

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In  relation  to  infrastructure  charging,  the  second  reading  agreement  (a)  makes 
compulsory the modulation of infrastructure charges on the basis of the equipment of 
trains with the ETCS (signalling system) circulating on ERTMS corridors, (b) makes 
compulsory  reservation  charges  in  specific  circumstances  under  regulatory  bodies' 
control, (c) obliges the Commission to set up common implementing rules for noise 
charging with the  principle of non-distortion of competition and effective incentive 
to  retrofit,  (d)  extends  the  method  to  apportioning  costs  to  all  services  offered  by 
infrastructure  managers  and  (e)  obliges  infrastructure  managers  to  demonstrate  to 
railway undertakings that invoices comply with charging rules. 

In  relation  to  market  access  conditions,  the  second  reading  agreement  (a)  makes 
mandatory the adoption of implementing rules to determine the purpose of a service, 
to assess impact on public service contracts and to introduce levies, (b) extends the 
principle of non-discriminatory access to essential facilities as for essential services, 
(c)  extends  the  application  of  separation  requirements  to  refuelling  facilities  and 
storage sidings, (d) ensures that regulatory bodies set time-limits to answer requests 
for  access  to  essential  facilities/services,  (e)  introduces  restrictive  definition  of  the 
concepts  of  "alternative  route"  and  "viable  alternative",  (f)  provides  for  a 
differentiated  treatment  of  heavy  maintenance  facilities  dedicated  to  high  speed 
rolling  stock,  (g)  reduces  from  3  to  2  years  the  period  after  which  the  "use-it-or-
lease-it  clause"  applies  and  (h)  ensures  that  principles  of  capacity  allocation 
established  by  associations  of  infrastructure  managers  are  published  in  network 
statements. 

In relation to separation between infrastructure managers and railway undertakings, 
the  second  reading  agreement  (a)  ensures  that  the  accounts  to  be  published  by 
infrastructure managers and railway undertakings allow the monitoring of the use of 
infrastructure charges as well as the use of revenues from other commercial activities 
and  (b)  calls  on  the  Commission  to  present  a  report  and,  if  appropriate,  to  propose 
legislative measures to develop appropriate conditions to ensure non-discriminatory 
access to the infrastructure, building on the existing separation requirements. 

In relation to regulatory oversight, the second reading agreement (a) sets reduced and 
clearer  deadlines  for  regulatory  bodies'  decisions,  (b)  ensures  that  their  means  are 
adequate  to  the  importance  of  the  rail  sector,  (c)  establishes  stringent  rules  for 
regulatory bodies' staff appointment (with no conflict of interest for the authority in 
charge  and  transparent  selection  criteria)  and  to  guarantee  their  independence 
(cooling on/off periods of minimum one year, mandatory declaration of interest), (d) 
makes  compulsory  a  regular  consultation  of  users,  (e)  reinforces  the  regulatory 
bodies' control on the introduction of mark-ups by infrastructure managers, (f) give 
to regulatory bodies the possibility to issue recommendations to licencing and safety 
authorities, (g) creates a network of regulatory bodies with compulsory exchange of 
information,  (h)  ensures  that  the  Commission  is  a  member  of  this  network, 
coordinating  and  support  it  work  and  making  recommendations  as  appropriate,  (i) 
allows  regulatory  bodies  to  request  the  Commission  to  examine  specific  measures 
adopted by national authorities in relation to the application of the directive and (j) 
obliges  the  Commission  to  issue  a  report  on  the  cooperation  between  regulatory 
bodies  and,  if  appropriate  propose  complementary  measures  to  ensure  a  more 
integrated regulatory oversight of the European rail market. 

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In  relation  to  transposition  and  implementation  deadlines,  the  second  reading 
agreement  provides  for  (a)  30  months  for  transposition  of  all  provisions  of  the 
Directive and for the adaptation of the existing contractual agreement, (b) 4 years as 
from  the  adoption  of  the  implementing  act,  to  gradual  adapt  to  the  common 
modalities  for  the  calculation  of  direct  costs,  (c)  2  years  for  the  adoption  by  the 
Commission of a report on the cooperation between regulatory bodies. 

In relation to the scope of application, the second reading agreement introduces two 
new  derogations  on  (a)  timetabling  requirements  in  case  of  cooperation  on 
international train paths with third countries and (b) ECTS modulation in relation to 
aging locomotives used for regional passenger services. 

4.2.  Comitology 

The second reading agreement confers on the Commission implementing powers in order to 
ensure  uniform  conditions  for  the  implementation  of  the  Directive.  It  makes  sure  that  those 
powers will be exercised in accordance with Regulation (EU) No 182/2011 for the adoption 
of implementing acts.  

The  agreement  refers  to  nine  specific  cases  -  pursuant  to  Article  10(4),  11(4),  12(5),  13(9), 
17(5), 31(3), 31(5), 32(4) and 57(7) of the Directive, where the third subparagraph of Article 
5(4) of  Regulation (EU) N° 182/2011 shall  apply. In those cases, the Commission shall not 
adopt  an  implementing  act  if  the  committee  delivers  no  opinion.  In  three  other  cases  – 
pursuant  to  Article  15(6),  41(3)  and  42(8)  -  the  normal  procedure  under  Article  5(4)  shall 
apply.  

Cases where Article 5(4) subparagraph 2, point b) of Regulation 182/2011 for the adoption of 
implementing acts will apply have been justified by reasons of their potential impact on public 
finances or on the functioning of the rail market. However such justification is not reflected in 
a  recital.  Given  that  it  is  an  exception  to  the  general  rule  established  by  Article  5  §  4,  the 
Commission considers that recourse to subparagraph 2, point b), cannot be simply seen as a 
"discretionary  power"  of  the  legislator,  but  must  be  interpreted  in  a  restrictive  manner  and 
thus must be justified. 

5. 

CONCLUSION 

The  European  Parliament  adopted  its  second  reading  comprehensive  amendment  on  3  July 
2012  following  informal  contacts  with  the  Council  and  the  Commission.  While  the 
Commission confirms that it endorses the overall compromise amendment voted as it reflects 
the main objectives of its proposal, the agreement on comitology procedures however has led 
the Commission to make the following statement:  

"The  Commission  underlines  that  it  is  contrary  to  the  letter  and  to  the  spirit  of  Regulation 
182/2011 (OJ L 55 of 28.2.2011, p. 13) to invoke Article 5 § 4, subparagraph 2, point b) in a 
systematic manner. Recourse to this provision must respond to a specific need to depart from 
the rule of principle which is that the Commission may adopt a draft implementing act when 
no opinion is delivered. Given that it is an exception to the general rule established by Article 
5 § 4 recourse to subparagraph 2, point b), cannot be simply seen as a "discretionary power" 
of the legislator, but must be interpreted in a restrictive manner and thus must be justified. 

While the Commission supports the agreement reached by the European Parliament and the 
Council on the recourse to this provision in nine specific cases which they have justified by 

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reasons of their potential impact on the functioning of the rail market and public finances, it 
regrets that such justification is not reflected in a recital." 

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