CELEX: 51995FC0018
Language: en
Date: 2007-01-31
Title: Amended proposal for a Directive …/…/EC of the European Parliament and of the Council of […] on the licensing of railway undertakings (codified version)

EN

|[pic]                     |COMMISSION OF THE EUROPEAN COMMUNITIES                                                                           |

                                        Brussels,
                                        COM(2006)

                                                              Amended proposal for a

                                          DIRECTIVE …/…/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

                                                                      of […]

                                                     on the licensing of railway undertakings

                                                                (Codified version)

                                                              EXPLANATORY MEMORANDUM

1.    On 2 April 2004, the Commission presented a proposal for a Directive of the European  Parliament  and  of  the  Council  codifying  Council
       Directive 95/18/EC of 19 April 1995 on the licensing of railway undertakings[1].

2.    Having regard to the amendment adopted[2] in respect of the proposal referred to in point 1, the Commission has decided  to  present  –  in
       accordance with Article 250(2) of the EC Treaty – an amended proposal for codification of the Directive in question.

3.    The changes made in this amended proposal, compared with the proposal referred to in point 1, are the following:

       (1)  Article 8 is replaced by the following:

       “The requirements relating to professional competence shall be met when an applicant railway undertaking has or  will  have  a  management
       organisation which possesses the knowledge and/or experience necessary to exercise safe and reliable operational control  and  supervision
       of the type of operations specified in the licence”.

       (2)  In Annex I, Section II is deleted.

       (3)  In recital (1) the words “several times” are added after “has been substantially amended”.

        (4) Footnote no.4 is replaced by the following:

           “OJ L 143, 27.6.1995, p. 70. Directive as last amended by Directive 2004/49/EC of the European Parliament and of the  Council  (OJ  L
           164, 30.4.2004, p. 44)”.

       (5)  Recital 14 is deleted

       (6)  In second paragraph of Article 7 the words “section I of” are deleted.

4.    The Correlation Table, in Annex III, has been modified in accordance with the foregoing.

5.    To facilitate reading and examination, the full text of the amended proposal for codification is attached hereto.

                                            ê 95/18/EC (adapted)

                                                              Amended proposal for a

                                          DIRECTIVE …/…/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

                                                                      of […]

                                                     on the licensing of railway undertakings

                                                            (Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article  71  thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee[3],

Having regard to the opinion of the Committee of the Regions[4],

Acting in accordance with the procedure laid down in Article 251 of the Treaty[5],

Whereas:

                                            ê 

   1) Council Directive 95/18/EC of 19 June 1995 on the licensing of railway undertakings[6] has been substantially amended several times[7].  In
      the interests of clarity and rationality the said Directive should be codified.

                                            ê 95/18/EC Recital 2

   2) The principle of the freedom to provide services should be applied to the railway  sector,  taking  into  account  that  sector's  specific
      characteristics.

                                            ê 95/18/EC Recital 3 (adapted)

   3) Council Directive 91/440/EEC of 29 July 1991 on the development of the Community's  railways[8]  provides  for  certain  access  rights  in
      international rail transport for railway undertakings and international groupings of railway undertakings.

                                            ê 95/18/EC Recital 4 (adapted)

   4) In order to ensure that access rights to railway infrastructure are applied throughout the Community on a  uniform  and  non-discriminatory
      basis, it is appropriate to introduce a licence for railway undertakings.

                                            ê 2001/13/EC Recital 4 (adapted)

   5) Since some Member States have extended access rights going beyond Directive 91/440/EEC, it seems necessary to ensure fair, transparent  and
      non-discriminatory treatment of all railway undertakings that may operate in this market by  extending  the  licensing  principles  to  all
      companies active in the sector.

                                            ê 95/18/EC Recital 5

   6) It is appropriate to maintain the scope of Directive 91/440/EEC, including the exceptions made in  it  for  regional,  urban  and  suburban
      services and it should be specified that transport activities in the form of shuttle services through the Channel Tunnel are also  excluded
      from the scope of that Directive.

                                            ê 95/18/EC Recital 6

   7) A licence issued by a Member State should be recognised as valid throughout the Community.

                                            ê 95/18/EC Recital 7

   8) Community conditions for access to or transit via railway infrastructure will be regulated by other provisions of Community law.

                                            ê 2001/13/EC Recital 2

   9) To ensure dependable and adequate services, a common licensing scheme is necessary to ensure that all railway undertakings meet at any time
      certain requirements in relation to good repute, financial fitness and professional competence in order  to  protect  customers  and  third
      parties and offer services observing a high standard of safety.

                                            ê 95/18/EC Recital 10

  10) For the protection of customers and third parties concerned it is important to ensure that railway undertakings are sufficiently insured or
      have made equivalent arrangements in respect of liability risks.

                                            ê 95/18/EC Recital 11

  11) The suspension and revocation of licences and the granting of temporary licences should also be dealt with in this context.

                                            ê 95/18/EC Recital 12 (adapted)

  12) A railway undertaking Ö should Õ also be required to comply with national and Community rules on the provision of railway services, applied
      in a non-discriminatory manner, which are intended to ensure that it can carry on its activity in complete safety on specific stretches  of
      track.

                                            ê 95/18/EC Recital 13

  13) In order to ensure the efficient operation of international  rail  transport,  it  is  necessary  that  railway  undertakings  respect  the
      agreements in force in this field.

                                            ê 95/18/EC Recital 14 (adapted)

  14) The procedures for the granting, maintenance and amendment of operating licences to railway undertakings should reflect  a  general  desire
      for transparency and non-discrimination.

                                            ê 2001/13/EC Recital 7

  15) In accordance with the principles of subsidiarity and proportionality as set out in Article  5  of  the  Treaty,  the  objectives  of  this
      Directive, namely to set out broad principles for the licensing of railway  undertakings  and  the  mutual  recognition  of  such  licences
      throughout the Community, cannot be sufficiently achieved by the Member States on account of  the  manifestly  international  dimension  of
      issuing such licences and can therefore, by reason of its trans-national implications, be better achieved by the Community. This  Directive
      does not go beyond what is necessary to achieve those objectives.

                                            ê 

  16) This Directive should be without prejudice to the obligations of the Member States relating  to  the  time-limits  for  transposition  into
      national law of the Directives set out in Annex II, Part B,

                                            ê 95/18/EC (adapted)

Ö HAVE Õ ADOPTED THIS DIRECTIVE:

                                                                  Ö CHAPTER Õ I

                                            ê 95/18/EC

                                                               Objective and Scope

                                            ê 2001/13/EC Art.1 pt. 1

                                                                    Article 1

1.    This Directive concerns the criteria applicable to the issue, renewal or amendment of licences by  a  Member  State  intended  for  railway
       undertakings which are or will be established in the Community.

2.    Member States may exclude from the scope of this Directive:

       (a)  undertakings which only operate rail passenger services on local and regional stand-alone railway infrastructure;

       (b)  railway undertakings which only operate urban or suburban rail passenger services;

       (c)  railway undertakings whose activity is limited to the provision of regional rail freight services that are not covered by  the  scope
           of Directive 91/440/EEC;

       (d)  undertakings which only carry out freight operations on privately owned railway infrastructure that exists  solely  for  use  by  the
           infrastructure owner for its own freight operations.

3.    Undertakings the business of which is limited to providing shuttle services for road vehicles through the Channel Tunnel are excluded  from
       the scope of this Directive.

                                            ê 95/18/EC

                                                                    Article 2

For the purposes of this Directive:

                                            ê 2001/13/EC Art.1 pt. 2

(a)   “railway undertaking” shall mean any public or private undertaking the  principal  business  of  which  is  to  provide  services  for  the
       transport of goods and/or passengers by rail with a requirement that the undertaking must ensure traction; this also includes undertakings
       which provide traction only;

                                            ê 95/18/EC

(b)   “licence” shall mean an authorisation issued by a Member State to an undertaking, by  which  its  capacity  as  a  railway  undertaking  is
       recognized. That capacity may be limited to the provision of specific types of services;

(c)   “licensing authority” shall mean the body charged by a Member State with the issue of licences;

                                            ê 95/18/EC

(d)   “urban and suburban services” shall mean transport services operated to meet the transport needs of an  urban  centre  or  conurbation,  as
       well as the transport needs between such centre or conurbation and surrounding areas;

                                            ê 95/18/EC (adapted)

Ö (e) Õ     “regional services” shall mean transport services operated to meet the transport needs of a region.

                                            ê 2001/13/EC Art.1 pt. 3

                                                                    Article 3

Each Member State shall designate the body responsible for issuing licences and for carrying out the obligations imposed by this Directive.

                                            ê 2001/13/EC Art.1.3 (adapted)

Ö The task of issuing licences shall be carried out by a body which does not provide rail transport services itself and is independent of  bodies
or undertakings that do so. Õ

                                            ê 95/18/EC (adapted)

                                                                  Ö CHAPTER Õ II

                                                     Ö Conditions for obtaining the Õ licence

                                            ê 95/18/EC

                                                                    Article 4

1.    A railway undertaking shall be entitled to apply for a licence in the Member State in which it is established.

2.    Member States shall not issue licences or extend their validity where the requirements of this Directive are not complied with.

3.    A railway undertaking which fulfils the requirements imposed in this Directive shall be authorised to receive a licence.

4.    No railway undertaking shall be permitted to provide the rail transport services covered by this Directive unless it has been  granted  the
       appropriate licence for the services to be provided.

       However, such a licence shall not itself entitle the holder to access to the railway infrastructure.

                                            ê 95/18/EC

                                                                    Article 5

A railway undertaking must be able to demonstrate to the licensing authorities of the Member State concerned before the start of  its  activities
that it will at any time be able to meet the requirements relating to good repute, financial fitness, professional competence and cover  for  its
civil liability listed in Articles 6 to 9.

                                            ê 95/18/EC (adapted)

For the purposes of Ö the first paragraph Õ, each applicant shall provide all relevant information.

                                            ê 95/18/EC

                                                                    Article 6

Member States shall define the conditions under which the requirement of good repute is met to ensure that an applicant  railway  undertaking  or
the persons in charge of its management:

                                            ê 95/18/EC (adapted)

Ö (a) Õ     has/have not been convicted of serious criminal offences, including offences of a commercial nature;

Ö (b) Õ     has/have not been declared bankrupt;

Ö (c) Õ     has/have not been convicted of serious offences against specific legislation applicable to transport;

                                            ê 2001/13/EC Art.1 pt. 5 (adapted)

Ö (d) Õ     has/have not been convicted of serious or repeated failure to fulfil social or labour law obligations,  including  obligations  under
           occupational safety and health legislation, and customs law obligations in the case of a  company  seeking  to  operate  cross-border
           goods transport subject to customs procedures.

                                            ê 95/18/EC

                                                                    Article 7

The requirements relating to financial fitness shall be met when an applicant railway undertaking can demonstrate that it will be  able  to  meet
its actual and potential obligations, established under realistic assumptions, for a period of twelve months.

                                            ê 95/18/EC (adapted)

For the purposes of Ö the first paragraph Õ, each applicant shall give at least the particulars listed in Annex Ö I Õ.

                                            ê 2004/49/EC Art.29 pt.1

                                                                    Article 8

The requirements relating to professional competence shall be  met  when  an  applicant  railway  undertaking  has  or  will  have  a  management
organisation which possesses the knowledge and/or experience necessary to exercise safe and reliable operational control and supervision  of  the
type of operations specified in the licence.

                                            ê 95/18/EC

                                                                    Article 9

A railway undertaking shall be adequately insured or make equivalent arrangements for cover, in accordance with national and  international  law,
of its liabilities in the event of accidents, in particular in respect of passengers, luggage, freight, mail and third parties.

                                            ê 95/18/EC (adapted)

                                                                 Ö CHAPTER Õ III

                                            ê 95/18/EC

                                                             Validity of the licence

                                                                    Article 10

                                            ê 2001/13/EC Art.1.4 (adapted)

Ö 1.  A licence shall be valid throughout the territory of the Community. Õ

                                            ê 95/18/EC

2.    A licence shall be valid as long as the railway undertaking fulfils the obligations laid down in  this  Directive.  A  licensing  authority
       may, however, make provision for a regular review at least every five years.

3.    Specific provisions governing the suspension or revocation of a licence may be incorporated in the licence itself.

                                                                    Article 11

1.    If there is serious doubt that a railway undertaking which it has licensed complies  with  the  requirements  of  this  Directive,  and  in
       particular Article 5 thereof, the licensing authority may, at any time, check whether that railway undertaking does in  fact  comply  with
       those requirements.

                                            ê 95/18/EC (adapted)

       Where a licensing authority is satisfied that a railway undertaking can no longer meet the requirements  of  Ö this Õ  Directive,  and  in
       particular Article 5 thereof, it shall suspend or revoke the licence.

                                            ê 95/18/EC

2.    Where the licensing authority of a Member State is satisfied that there is serious doubt regarding compliance with  the  requirements  laid
       down in this Directive on the part of a railway undertaking to which a licence has been issued  by  the  licensing  authority  of  another
       Member State, it shall inform the latter authority without delay.

3.    Notwithstanding paragraph 1, where a licence is suspended or revoked on grounds  of  non-compliance  with  the  requirement  for  financial
       fitness, the licensing authority may grant a temporary licence pending the re-organisation  of  the  railway  undertaking,  provided  that
       safety is not jeopardised. A temporary licence shall not, however, be valid for more than six months after its date of issue.

4.    When a railway undertaking has ceased operations for six months or has not started operations six months after the grant of a licence,  the
       licensing authority may decide that the licence shall be submitted for approval or be suspended.

       As regards the start of activities, the railway undertaking may ask for a longer period to be fixed, taking account of the specific nature
       of the services to be provided.

5.    In the event of a change affecting the legal situation of an undertaking and, in particular, in the event of  a  merger  or  takeover,  the
       licensing authority may decide that the licence shall be resubmitted for approval.  The  railway  undertaking  in  question  may  continue
       operations, unless the licensing authority decides that safety is jeopardised; in that event, the grounds for such  a  decision  shall  be
       given.

6.    Where a railway undertaking intends significantly to change or extend its activities, its licence shall be  resubmitted  to  the  licensing
       authority for review.

7.    A licensing authority shall not permit a railway undertaking against which bankruptcy or similar proceedings are commenced  to  retain  its
       licence if that authority is convinced that there is no realistic prospect of satisfactory financial  restructuring  within  a  reasonable
       period of time.

                                            ê 2001/13/EC Art.1 pt. 6

8.    When a licensing authority issues, suspends, revokes or amends  a  licence,  the  Member  State  concerned  shall  immediately  inform  the
       Commission accordingly. The Commission shall inform the other Member States forthwith.

                                            ê 2001/13/EC Art.1 pt. 7

                                                                    Article 12

1.    In addition to the requirements of this Directive, a railway undertaking shall also comply with  national  law  and  regulatory  provisions
       which are compatible with Community law and are applied in a non-discriminatory manner, in particular:

       (a)  specific technical and operational requirements for rail services;

       (b)  safety requirements applying to staff, rolling stock and the internal organisation of the undertaking;

       (c)  provisions on health, safety, social conditions and the rights of workers and consumers;

       (d)  requirements applying to all undertakings in the relevant railway sector designed to offer benefits or protection to consumers.

2.    A railway undertaking may at any time refer to the Commission the question of the compatibility of the requirements of  national  law  with
       Community law and also the question of whether such requirements are applied in a non-discriminatory manner.

                                            ê 2001/13/EC Art.1.7 (adapted)

       Ö If the Commission considers that the provisions of this Directive have not been fulfilled, it shall deliver an opinion  on  the  correct
       interpretation of the Directive, without prejudice to Article 226 of the Treaty. Õ

                                                                    Article 13

Railway undertakings shall respect the agreements applicable to international rail transport  in  force  in  the  Member  States  in  which  they
operate. They shall Ö also Õ observe the relevant customs and tax provisions.

                                            ê 95/18/EC Section V (adapted)

                                                                  Ö CHAPTER IV Õ

                                            ê 95/18/EC

                                                                 Final provisions

                                            ê 95/18/EC Art.15 (adapted)

                                                                  Article Ö 14 Õ

1.    The procedures for the granting of licences shall be made public by the Member State concerned, which shall inform the Commission thereof.

2.    The licensing authority shall take a decision on an application as soon as possible, but not more than  three  months  after  all  relevant
       information, notably the particulars referred to in Annex Ö I Õ, has been submitted, taking into account all  the  available  information.
       The decision shall be communicated to the applicant railway undertaking. A refusal shall state the grounds therefore.

                                            ê 95/18/EC

3.    Member States shall take the measures necessary to ensure that the licensing authority's decisions are subject to judicial review.

                                            ê 

                                                                    Article 15

Directive 95/18/EC, as amended by the Directives listed in Annex II, Part A, is repealed, without prejudice to  the  obligations  of  the  Member
States relating to the time-limits for transposition into national law of the Directives set out in Annex II, Part B.

References to the repealed Directive shall be construed as references to this Directive and shall be read  in  accordance  with  the  correlation
table in Annex III.

                                            ê 95/18/EC Art.17 (adapted)

                                                                  Article Ö 16 Õ

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

                                            ê 95/18/EC Art.18 (adapted)

                                                                  Article Ö 17 Õ

This Directive is addressed to the Member States.

Done at Brussels, […]

For the European Parliament  For the Council
The President    The President
[…]   […]

                                            ê 95/18/EC (adapted)

                                                                   ANNEX Ö I Õ

                                       I. Particulars referred to in Ö the second paragraph of Õ Article 7

                                            ê 95/18/EC

1.    Financial fitness will be verified by means of an undertaking's annual accounts or,  in  the  case  of  applicant  undertakings  unable  to
       present annual accounts, a balance sheet. Detailed particulars must be provided, in particular on the following aspects:

       (a)  available funds, including the bank balance, pledged overdraft provisions and loans;

       (b)  funds and assets available as security;

       (c)  working capital;

       (d)  relevant costs, including purchase costs of payments to account for vehicles, land, buildings, installations and rolling stock;

       (e)  charges on an undertaking's assets.

2.    In particular, an applicant is not financially fit if considerable arrears of taxes or  social  security  are  owed  as  a  result  of  the
       undertaking's activity.

3.    The authority may in particular require the submission of an audit report  and  suitable  documents  from  a  bank,  public  savings  bank,
       accountant or auditor. These documents must include information concerning the matters referred to in point 1.

                                                              _____________________

                                            é

                                                                     ANNEX II

                                                                      Part A

                                                Repealed Directive with its successive amendments
                                                           (referred to in Article 15)

|Council Directive 95/18/EC                                           |                                                                    |
|(OJ L 143, 27.6.1995, p. 70)                                         |                                                                    |
|Directive 2001/13/EC of the European Parliament and of the Council        |                                                           |
|(OJ L 75, 15.3.2001, p. 26)                                               |                                                           |
|Directive 2004/49/EC of the European Parliament and of the Council        |only article 29                                            |
|(OJ L 164, 30.4.2004, p.44)                                               |                                                           |

                                                                      Part B

                                             List of time-limits for transposition into national law
                                                           (referred to in Article 15)

|Directive                                                           |Time-limit for transposition                                        |
|95/18/EC                                                            |27 June 1997                                                        |
|2001/13/EC                                                          |15 March 2003                                                       |
|2004/49/EC                                                          |30 April 2006                                                       |

                                                              _____________________

                                                                    ANNEX III

                                                                Correlation Table

|Directive 95/18/EC                                                  |This Directive                                                      |
|Article 1                                                           |Article 1                                                           |
|Article 2 points (a) to (c)                                         |Article 2 points (a) to (c)                                         |
|Article 2 point (d) first indent                                    |Article 2 point (d)                                                 |
|Article 2 point (d) second indent                                   |Article 2 point (e)                                                 |
|Article 3 first sentence                                            |Article 3 first paragraph                                           |
|Article 3 second sentence                                           |Article 3 second paragraph                                          |
|Article 4(1) to (4)                                                 |Article 4 (1) to (4)                                                |
|Article 4(5)                                                        |Article 10(1)                                                       |
|Article 5(1) and (2)                                                |Article 5 first and second paragraphs                               |
|Article 6 first to fourth indents                                   |Article 6 points (a) to (d)                                         |
|Article 7(1) and (2)                                                |Article 7 first and second paragraphs                               |
|Articles 8 and 9                                                    |Articles 8 and 9                                                    |
|Article 10(1)                                                       |Article 10(2)                                                       |
|Article 10(2)                                                       |Article 10(3)                                                       |
|Article 11                                                          |Article 11                                                          |
|Article 12(1)                                                       |Article 12(1)                                                       |
|Article 12 (2) first sentence                                       |Article 12 (2) first subparagraph                                   |
|Article 12 (2) second sentence                                      |Article 12 (2) second subparagraph                                  |
|Article 13                                                          |Article 13                                                          |
|Article 14                                                          |_                                                                   |
|Article 15                                                          |Article 14                                                          |
|Article 16                                                          |_                                                                   |
|_                                                                   |Article 15                                                          |
|Article 17                                                          |Article 16                                                          |
|Article 18                                                          |Article 17                                                          |
|Annex                                                               |Annex I                                                             |
|_                                                                   |Annex II                                                            |
|_                                                                   |Annex III                                                           |

                                                               ____________________

                                                             -----------------------
[1]   COM(2004) 232 final of 2.04.2004.
[2]   OJ L  164, 30.4.2004, p. 44.
[3]   OJ C […],[…], p. […]
[4]   OJ C […],[…], p. […]
[5]   OJ C […],[…], p. […]
[6]   OJ L 143, 27.6.1995, p. 70. Directive as last amended by Directive 2004/49/EC of the European Parliament and of  the  Council  (OJ  L  164,
      30.4.2004, p. 44).
[7]   See Annex II, part A.
[8]   OJ L 237, 24.8.1991, p. 25. Directive as last amended by Directive 2004/51/EC of the European  Parliament  and  of  the  Council  (OJ  164,
      30.4.2004, p. 164).