Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) 2020/1429 as regards the duration of the reference period for the application of temporary measures concerning the levying of charges for the use of railway infrastructure
Date: 2021-12-22
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: EU Member State, EU aid, charges for use of infrastructure, common transport policy, coronavirus disease, epidemic, provision of services, rail transport, transport infrastructure, transport market

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 22.12.2021  COM(2021) 832 final 2021/0437 (COD)  Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) 2020/1429 as regards the duration of the reference period for the application of temporary measures concerning the levying of charges for the use of railway infrastructure (Text with EEA relevance)  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The  railway  sector  is  of  strategic  importance  to  the  European  Union.  It  makes  a  vital 
contribution  to  the  EU's  overall  economy  and  employment,  by  directly  employing 
over 900 000 people, around 500 000 of them by railway undertakings and roughly 400 000 
by infrastructure managers (by the end of 2018)1.  

Rail transport is critical to the EU strategy for a more sustainable transport sector, economic 
and social cohesion and connecting Europeans within and between Member States. Rail is an 
important contributor to the EU transport mix, providing clean mobility and a high level of 
efficiency. Therefore, rail transport is crucial for achieving the objectives of  the green deal 
due to its value as the most sustainable and environmentally friendly transport mode. 

In  2018,  the  European  rail  transported  around  1.6  billion  tonnes  of  freight  and  7.1  billion 
passengers.  By  the  same  year,  EU  passenger  traffic  volumes  had  reached  400  billion 
passenger  kilometres  out of around 5 trillion passenger kilometres of land transport overall. 
Rail passenger traffic is  mostly domestic, with only 7 % crossing borders in 20182. 

In 20183, EU freight traffic volumes reached 435 billion tonne kilometres out of 2.3 trillion 
of  land  transport  overall.  Around  half  of  total  rail  freight  is  cross-border.  This  lends  rail 
freight a strong European dimension. 

Since  the  beginning  of  2020,  the  COVID-19  outbreak  has  had  a  major  impact  on  rail 
transport in the Union. Rail passenger and freight transport have declined due to limitations 
on mobility and the consequent reduction in the demand for transport. During the first period 
of  the  pandemic  in  spring  2020,  rail  operators  stopped  most  international  passenger  trains. 
Passenger  numbers  in  domestic  rail  transport  decreased  during  the  first  wave  of  the 
pandemic by up to 90% compared to the previous year. A few operators, in particular new 
entrants,  had  to  stop  operations,  whilst  rail  freight  operators  reported  a  severe  decrease  in 
transported volumes as many industries slowed down or even ceased their production due to 
the impact of the pandemic. Throughout the summer of 2020, demand and transport volumes 
remained at low levels in both passenger and freight transport.  

A  second  wave  of  the  pandemic  in  the  autumn  of  2020  obliged  many  countries  to  take 
further restrictive measures with regard to citizens’ mobility. The outbreak of a third wave of 
the  pandemic  hindered  the  quick  recovery  of  rail  traffic,  in  particular  for  rail  passenger 
services.  In  October  and  November  2020,  Member  States  imposed  new  limitations  on 
mobility, only partially and gradually lifting them during 2021. Passenger numbers have not 

1 

2 
3 

Commission  Staff  Working  Document  accompanying  the  Seventh  monitoring  report  on  the 
development of the rail market under Article 15(4) of Directive 2012/34/EU of the European Parliament 
and of the Council, COM(2021) 5 final   
idem 
idem 

EN 

1 

  EN 

                                                 
come back yet to pre-pandemic levels and the time to recover to pre-pandemic levels may be 
longer than expected in particular for commercial passenger traffic. Therefore, the impact of 
the pandemic on the transport sector continues to be significant. The emergence of the new 
extremely contagious COVID-19 variant Omicron in the autumn of 2021, with still unknown 
characteristics compared to the previous variants, is raising concerns about a fourth wave of 
the pandemic and stricter containment measures.  

On  7  October  2020,  The  European  Parliament  and  the  Council  adopted  Regulation  (EU) 
2020/1429  establishing  measures  for  a  sustainable  rail  market  in  view  of  the  COVID-19 
outbreak4. The aim of the Regulation was to enable rail stakeholders to cope better with the 
financial consequences of the COVID-19 pandemic and to respond to their urgent liquidity 
need, through the reduction, waiver or deferral of charges for the minimum access package 
and for access to infrastructure connecting service facilities. 

These  relief  measures  applied  to  charges  due  throughout  the  reference  period  set  out  in 
Article 1 of the Regulation, which is from 1 March 2020 until 31 December 2020 (“reference 
period”).  The  scope  of  application  was  limited  within  that  timeframe  to  ensure  that  the 
measures applied only as long as necessary. 

Article  5  of  Regulation  (EU)  2020/1429  empowered  the  Commission,  based  on  data 
provided  by 
traffic 
infrastructure  managers  showing  persistent  reductions 
demonstrably linked to the COVID-19 outbreak, to extend the reference period by up to six 
months  by  way  of  delegated  acts.  The  reference  period  could  be  extended  until  14  April 
2022. 

in  rail 

The  Commission  exercised  that  delegation  of  power  twice5  and  extended  the  reference 
period  to  31  December  2021.  The  power  to  adopt  delegated  acts  to  extend  the  reference 
period was conferred on the Commission for a period of one year from 13 October 2020 and 
it has now expired. 

On the basis of the data provided to the Commission by Union rail infrastructure managers 
covering  the  period  until  September  2021,  the  pandemic  hit  harder  the  passenger  service 
segment  and,  in  particular  the  commercial  passenger  service  segment,  with  a  significant 
reduction of its offer across all Member States, which has still not come back to 2019 levels. 
The number of public service obligation (‘PSO’) passenger trains circulating on the network 
between January and September 2021 is comparable to that referring to the same period in 
2019,  while  in  2020  it  was  7.8%  lower  compared  to  2019.  However,  the  number  of 
passenger  commercial  trains  between  January  and  September  2021  was  still  21.5%  lower 
than  in  the  same  period  in  2019,  showing  there  was  no  recovery  compared  to  the  same 
period in  2020,  when it  was 23.3% lower compared to  2019. The number of  freight  trains 
circulating  on  the  network  was  still  2.5%  lower  than  in  the  corresponding  period  in  2019. 

4 
5 

OJ L 333, 12.10.2020, p. 1–5. 
Commission  Delegated  Regulation  (EU)  2020/2180  of  18  December  2020  extending  the  reference 
period  of  Regulation  (EU)  2020/1429  of  the  European  Parliament  and  of  the  Council  establishing 
measures  for  a  sustainable  rail  market  in  view  of  the  COVID-19  outbreak  (OJ  L  433,  22.12.2020, 
p. 37); and Commission Delegated Regulation (EU) 2021/1061 of 28 June 2021 extending the reference 
period  of  Regulation  (EU)  2020/1429  of  the  European  Parliament  and  of  the  Council  establishing 
measures for a sustainable rail market in view of the COVID-19 outbreak (OJ L 229, 29.6.2021, p. 1). 

EN 

2 

  EN 

                                                 
Similar trends can be observed when traffic is expressed in train-km. Between January and 
September 2021 passenger PSO services expressed in train-km were 5.2% lower compared 
to the same period in 2019. Passenger commercial services expressed in train-km remained 
25.6%  lower  in  2021  compared  to  the  same  period  in  2019,  in  line  with  the  (low)  level 
reached already in 2020. Train-km run by freight trains circulating on the network showed 
some  sign  of  recovery,  but  stayed  2.6%  lower  between  January  and  September  2021 
compared to the same period in 2019. It follows that the reduction in the level of rail traffic 
resulting from the impact of the COVID-19 pandemic is still persisting. 

It is therefore necessary to amend Regulation (EU) 2020/1429, so as to further prolong the 
reference period.  

Because  the  pandemic  is  not  over  yet  and  a  certain  level  of  unpredictability  of  future 
developments  persists,  it  is  also  necessary  to  delegate  on  the  Commission  the  power  to 
further extend, each time by a maximum of six months, the above period, in continuity with 
the existing legal framework.  

It is accordingly proposed to extend the reference period until 30 June 2022, and to empower 
the  Commission  to  adopt  delegated  acts  to  further  extend  such  period  until  31  December 
2023. It is also proposed that the delegation of power should end on the same date, that is, 31 
December 2023. All other provisions of the current Regulation should remain unchanged.  

Due to the unforeseeable evolution of the COVID-19 outbreak and in particular the sudden 
emergence of new variants of concern, it was impossible to adopt relevant measures in time. 
Regulation  (EU)  2020/1429  requires  the  Commission  to  base  the  decision  on  a  possible 
extension  of the reference period on data  that  infrastructure managers were to  supply once 
half of the prolongation of the reference period had elapsed. The Commission was not in a 
position to adopt a further prolongation of the reference period before the expiration of the 
delegated powers, as the necessary data was not yet available at that point.  

 In order to avoid gaps in the application of the measures after 31 December 2021 (the end of 
the  current  reference  period)  this  Regulation  should  also  cover  the  period  before  its  entry 
into  force.  Given  the  nature  of  the  measures  provided  for  by  this  Regulation,  retroactive 
application  does  not  result  in  a  violation  of  the  legitimate  expectations  of  the  persons 
concerned. 

• 

Consistency with existing policy provisions in the policy area 

The  current  proposal  aims  at  ensuring  the  extension  and  continuity  of  the  current 
extraordinary  measures  that  were  put  in  place  to  mitigate  the  effects  of  the  COVID-19 
outbreak  on  railway  transport  and  maintain  the  integrity  of  the  Single  European  Railway 
area.  Those  measures  complement  and  take  into  account  the  legal  framework  established 
under Directive 2012/34/EU. 

• 

Consistency with other Union policies 

The  effective  functioning  of  the  Single  European  Rail  Area  depends  on  the  economic 
performance  of  the  market  players  and  on  safeguarding  the  achievements  already  made 
regarding  management  independence  of  infrastructure  managers  and  railway  undertakings, 

EN 

3 

  EN 

transparency  of  provisions  for  charging  and  network  access,  non-discrimination  and  equal 
treatment in paths allocation and charging schemes as well as market opening. The negative 
economic  consequences  of  the  COVID-19  outbreak  for  rail  market  stakeholders  could 
endanger  their  financial  viability  and  possibly  have  serious  negative  effects  on  the 
functioning of the transport system, which would negatively affect the economy as a whole. 
The  data  on  volumes  gathered  from  the  EU  infrastructure  managers  covering  from  March 
2020 to September 2021 clearly show that the impact of the pandemic on rail traffic is not 
over  yet  and  that  the  recovery  has  been  fragile.  Therefore,  the  proposed  amending 
Regulation aims to keep addressing the persisting effects on the sector.  This would be also 
in line with the extension of the validity of other measures helping Member States and EU 
businesses and citizens to deal with the negative impact of the pandemic. On 18 November 
2021 for example, the Commission prolonged the State Aid Temporary Framework6 until 30 
June  2022,  allowing  Member  States,  where  needed,  to  continue  their  support  schemes  and 
ensure that businesses still affected by the crisis will not be cut off suddenly from necessary 
financial support. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

This  initiative  is  based  on  Article  91  of  the  Treaty  on  the  Functioning  of  the  European 
Union, which is also the legal basis of Regulation (EU) 2020/1429. 

• 

Subsidiarity (for non-exclusive competence)  

The objectives of the proposal cannot be sufficiently achieved by the Member States for the 
following  reason:  Track  access  charges  are  comprehensively  regulated  at  EU  level  and 
therefore Member States cannot deviate from Union rules unless there is specific European 
legislation.  Directive  2012/34/EU  does  not  allow  Member  States,  in  the  context  of  the 
COVID-19  outbreak,  to  react  to  the  unforeseeable  impacts  on  railway  transport  in 
particular  by  adapting  the  rules  on  charging  and  capacity  allocation.  This  was  only 
exceptionally  permitted,  within  certain  limits,  by  Regulation  (EU)  2020/1429.  Moreover, 
under  the  terms  of  that  Regulation,  it  remains  up  to  Member  States  to  decide  whether  to 
implement  the  measures  provided  for,  having  also  regard  to  the  means  at  their  disposal  in 
terms  of  public  funding.  Therefore,  the  proposed  extension  of  the  application  of  the 
measures foreseen in Regulation (EU) 2020/1429 is in line with the principle of Subsidiarity.  

• 

Proportionality 

The proposal does not go beyond what is necessary to achieve the objective of alleviating the 
impact of the current COVID-19 outbreak through extending for a limited time the targeted 
derogations  from  Directive  2012/34/EU  allowed  under  Regulation  (EU)  2020/1429.  The 

6 

Communication from the Commission  - Sixth Amendment to the Temporary Framework for State aid 
measures to support the economy in the current COVID-19 outbreak and amendment to the Annex to 
the Communication from the Commission to the Member States on the application of Articles 107 and 
108  of  the  Treaty  on  the  Functioning  of  the  European  Union  to  short-term  export-credit  insurance 
(2021/C 473/01) (OJ C 473, 24.11.2021, p. 1–15) 

EN 

4 

  EN 

 
                                                 
proposed  measure  is  therefore  proportionate.  The  extension  of  the  reference  period  is 
consistent  with  previous  extensions  and  it  reflects  the  conclusions  that  can  be  drawn  from 
the  data  currently  available.  It  is  also  proposed  to  extend  in  time  the  empowerment  to  the 
Commission  to  prolong  the  reference  period  to  account  for  future  developments  of  the 
pandemic. 

• 

Choice of the instrument 

Since this is a proposal for amending an existing Regulation, the same instrument should be 
used. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

This is an urgent measure triggered by the unforeseeable nature of COVID-19 pandemic. 

• 

Stakeholder consultations 

Given the urgency of the matter, a formal stakeholder consultation has not been carried out. 
However,  both  Member  States  authorities  and  stakeholders  have  called  upon  the 
Commission to prolong Regulation (EU) 2020/1429. 

In  particular,  rail  sector  associations  representing  railway  undertakings  repeatedly 
approached the  Commission  asking  for  the  continuation  of  the  measures.  Also,  Member 
States and infrastructure managers have already in place such measures.  

Given  the  lack  of  appropriate  emergency  provisions  in  Directive  2012/34/EU  and  the 
persisting effects of the pandemic on the railway sector,  there  is  a need  for  extending  the 
possible application of the current measures. 

• 

Collection and use of expertise 

As explained, collection of expertise at the usual degree of detail was not possible due to the 
urgency of the situation. However, the Commission has drawn on experience gained through 
its contacts with Member States and railway stakeholders and from the constant monitoring 
of rail traffic volumes through the input provided by infrastructure managers over the past 
two years.  

• 

Impact assessment 

Given the urgency of the situation, an impact assessment has not been carried out. 

• 

Regulatory fitness and simplification 

Not applicable. 

• 

Fundamental rights 

Not applicable. 

4. 

BUDGETARY IMPLICATIONS 

Not applicable. 

EN 

5 

  EN 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The  measure  does  not  include  any  specific  monitoring  or  reporting  arrangements. 
However the Commission should follow the development of the COVID-19 outbreak and its 
impact on Single European Rail Area and if necessary be empowered to  adopt a delegated 
act to extend the time periods concerned by this measure. 

• 

Explanatory documents (for directives) 

None. 

• 

Detailed explanation of the specific provisions of the proposal 

Article 1 of the proposed Regulation  amends Articles 1, 5(2) and 6(2) of Regulation  (EU) 
2020/1429, extending the reference period, its maximum further extension, and the duration 
of the empowerment of the Commission in that respect. 

Article 2 provides for the application of the proposed Regulation from 1 January 2022. 

EN 

6 

  EN 

 
 
2021/0437 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EU) 2020/1429 as regards the duration of the reference period for 
the application of temporary measures concerning the levying of charges for the use of 
railway infrastructure 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 91 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the European Economic and Social Committee1, 

After consulting the Committee of the Regions, 
Acting in accordance with the ordinary legislative procedure2, 

Whereas: 

(1) 

(2) 

(3) 

1 
2 

3 

4 

The  COVID-19  pandemic  has  led  to  a  sharp  drop  in  rail  traffic,  because  of  a 
significant fall in demand. This has had a serious impact on railway undertakings. 

Those  circumstances  are  beyond  the  control  of  railway  undertakings  that  have 
continuously  faced  considerable  liquidity  problems,  major  losses  and  in  some  cases 
are risking insolvency.   

In order to counteract the negative economic effects of the COVID-19 pandemic and 
support railway undertakings, Regulation (EU) 2020/1429 of the European Parliament 
and  of  the  Council3  enabled  Member  States  to  authorize  infrastructure  managers  to 
reduce,  waive  or  defer  charges  for  accessing  rail  infrastructure.  That  possibility  was 
granted  for  a  reference  period  from  1  March  2020  until  31  December  2020  and  was 
further  extended  by  Commission  Delegated  Regulation  (EU)  2021/10614  until  31 
December  2021.  The  Commission  is  no  longer  empowered  to  extend  further  that 
reference period. 

Opinion of [to be updated in the final version by EP and Council]. 
Position  of  the  European  Parliament  of  [to  be  updated  in  the  final  version  by  EP  and  Council]  and 
decision of the Council of [to be updated in the final version by EP and Council]. 
Regulation  (EU)  2020/1429  of  the  European  Parliament  and  of  the  Council  of  7  October  2020 
establishing  measures  for  a  sustainable  rail  market  in  view  of  the  COVID-19  outbreak  (OJ  L  333, 
12.10.2020, p. 1). 
Commission Delegated Regulation (EU) 2021/1061 of 28 June 2021 extending the reference period of 
Regulation (EU) 2020/1429 of the European Parliament and of the Council establishing measures for a 
sustainable rail market in view of the COVID-19 outbreak (OJ L 229, 29.6.2021, p. 1). 

EN 

7 

  EN 

                                                 
(4) 

(5) 

(6) 

(7) 

(8) 

The  COVID-19  pandemic  is  continuing  and  the  emergence  of  very  contagious  and 
unpredictable  variants,  such  as  the  COVID-19  Omicron  variant,  casts  uncertainty  on 
the future and on the risks of new restrictive measures.  

The negative impact of the COVID-19 pandemic on rail traffic is persisting and it is 
possible that railway undertaking will continue to be affected, depending on the future 
evolution of the pandemic. In an effort to respond to the urgent needs of the sector, the 
reference  period  of  Regulation  (EU)  2020/1429  should  be  extended  until  30  June 
2022. 

The unforeseeable evolution of the COVID-19 outbreak, the sudden emergence of new 
variants  and  the  need  to  assess  their  impact  on  the  railway  sector  require  swift  and 
flexible  regulatory  response.  In  order  to  avoid  a  gap  in  the  response  to  the  current 
situation, it is appropriate to ensure continuity in the application of the measures after 
31 December 2021. Given the nature of the measures provided for by this Regulation, 
the retroactive application of this extension of the reference period will not result in a 
violation of the legitimate expectations of the persons concerned.  

The Commission should continuously analyse the economic impact of the COVID-19 
outbreak on the rail sector and the Union  should be in  a position to  prolong without 
undue delay the period of application of the measures provided for by this Regulation 
if the adverse conditions persist. The delegation of powers conferred under Regulation 
(EU) 2020/1429 should be extended, under the same terms, until 31 December 2023.  

Since  the  objective  of  this  Regulation,  namely  to  extend  the  application  of  the 
temporary  rules  on  the  levying  of  charges  for  the  use  of  railway  infrastructure  laid 
down in response to the urgent situation created by the COVID-19 outbreak, cannot be 
sufficiently  achieved  by  the  Member  States  but  can  rather,  by  reason  of  the  scale  or 
effects of the action, be better achieved at Union level, the Union may adopt measures, 
in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on 
European Union (TEU). In accordance with the principle of proportionality as set out 
in  that Article, this  Regulation  does  not go beyond what  is  necessary to  achieve that 
objective. 

(9) 

Regulation (EU) 2020/1429 should therefore be amended accordingly. 

(10) 

In  order  to  allow  for  the  prompt  application  of  the  measures  provided  for  in  this 
Regulation, it should enter into force as a matter of urgency on the day following that 
of its publication in the Official Journal of the European Union, 

HAVE ADOPTED THIS REGULATION: 

Article 1 

Amendments to Regulation (EU) 2020/1429 

Regulation (EU) 2020/1429 is amended as follows: 

(1) 

in Article 1, the second sentence is replaced by the following: 

‘It  applies  to  the  use  of  railway  infrastructure  for  domestic  and  international  rail 
services  covered  by  that  Directive,  during  the  period  from  1  March  2020  until  30 
June 2022 (‘the reference period’).’ 

(2) 

in Article 5(2), the second sentence is replaced by the following: 

‘Any  such  amendment  may  only  extend  the  reference  period  by  up  to  six  months, 
and the reference period may not be extended beyond 31 December 2023.’ 

EN 

8 

  EN 

(3) 

in Article 6, paragraph 2 is replaced by the following:  

‘2. The power to adopt delegated acts referred to in Article 5(2) shall be conferred on 
the Commission until 31 December 2023.’ 

Article 2 

Entry into force 

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

It shall apply from 1 January 2022. 

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

EN 

9 

  EN