CELEX: 51995PC0151(01)
Language: en
Date: 1995-05-05
Title: Re-examined proposal for a COUNCIL DIRECTIVE on the licensing of railway undertakings (presented by the Commission pursuant to article 189 c (d) of the Treaty establishing the European Community)

COMMISSION OF THE EUROPEAN COMMUNITIES
                                                    Brussels, 05.05.1995
                                                   COM(95) 151 final - SYN 488
                                                                         - SYN 490
                              Re-examined proposal for a
                                 COUNCIL DIRECTIVE
                        on the licensing of railway undertakings
(presented by the Commission pursuant to article 189 c (d) of the Treaty establishing
                               the European Community)
                              Re-examined proposal for a
                                 COUNCIL DIRECTIVE
  on the allocation of railway infrastructure and the charging of infrastructure fees
(presented by the Commission pursuant to article 189 c (d) of the Treaty establishing
                               the European Community)
                            (presented by the Commission)
 ---pagebreak---                                                                                          3)
                                EXPLANATORY MEMORANDUM
                                      Re-examined proposal for a
                                         COUNCIL DIRECTIVE
                             on the licensing of railway undertakings
On 15th December 1993 the Commission submitted a proposal for a directive on the licensing
of railway undertakings to the Council(1). At its plenary session of 3rd May 1994 the
European Parliament approved the Commission's proposal, while adopting a number of
amendments®.
On 14th July 1994 the Commission presented an amended proposal to the Council, that
included the greater part of the Parliament's amendments^ . On 21st November 1994 the
Council adopted a common position(4), that included certain of the amendments adopted by
the Parliament and taken up by the Commission in its modified proposal. The Commission
gave the Parliament its views on the common position in its communication of 6th December
1994(5).
On 14th March 1995, the Parliament approved the Council's common position, while
adopting four amendments. In its re-examined proposal the Commission accepts these
amendments as it did in its modified proposal, because they clarify or strengthen the text.
<»    COM (93) 678, SYN 488, OJ C 24 of 28.1.94, p. 2
•      OJC205of25.7.94,p.38
<*    COM (94) 316, OJ C 225 of 13.8.94, p. 9
(«I   EC N* 43/94, OJ C 354 of 13.12.94, p. 1
»     SEC (94) 1987, SYN 488,
                                                      A
 ---pagebreak---                                                                                              4)
                                 Re-examined proposal for a                _ SYN 4 8 8
                                   COUNCIL DIRECTIVE
                          on the licensing of railway undertakings
 (presented by the Commission pursuant to article 189 c (d) of the Treaty establishing
                                  the European Community)
Common position                                     Re-examined proposal
                                      Article 2e (new text)
For the purposes of this Directive :                For the purposes of this Directive :
(a)Mrailway undertaking" shall mean any             (a) "railway undertaking" shall mean any
private or public undertaking the main              private or public undertaking the main
business of which is to provide rail                business of which is to provide rail
transport services for goods and/or                 transport services for goods and/or
passengers, with a requirement that the             passengers, with a requirement that the
undertaking must ensure traction;                   undertaking should ensure traction, with
                                                    traction equipment owned, leased or
                                                    rented.
                                      Article 2e (new text)
                                                    (e) "Urban, suburban or regional
                                                    services" shall mean services operated to
                                                    meet the transport needs of an urban centre
                                                    or conurbation, as well as the transport
                                                    needs between such a centre or
                                                    conurbation and surrounding areas, or to
                                                    meet the transport needs of a region.
                                            Article 3
Each Member State shall designate the               Each Member State shall designate the
body responsible for issuing licences and           authority or agency responsible for issuing
for carrying out the obligations imposed by         licences and for carrying out the
this Directive.                                     obligations imposed by this Directive. That
                                                    body may not be connected directly or
                                                    indirectly with the national railway
                                                    undertaking
                                                  h
 ---pagebreak---                                                                                                5)
                                            Article S(l)
1. The requirements relating to                       1. The requirements relating to
professional competence shall be met                 professional competence shall be met
when :                                               when :
(a) an applicant railway undertaking has             (a) an applicant railway undertaking has
or will have a management organization               or will have a management organization
which possesses the knowledge and/or                 which possesses the knowledge and/or
experience necessary to exercise                     experience necessary to exercise safe and
satisfactory operational control and                 reliable operational control and supervision
supervision of the type of operation                 of the type of operation specified in the
specified in the licence;                            licence;
(b) its personnel responsible for safety, in         (b) its personnel responsible for safety, in
particular drivers, are suitably qualified for       particular drivers, are fully qualified for
their field of activity and                          their field of activity and
(c) its personnel, rolling stock and                 (c) its personnel, rolling stock and
organization can ensure an appropriate               organization can ensure an high level of
level of safety for the services to be               safety for the services to be provided.
provided.
 ---pagebreak---                                                                                              3)
                                   EXPLANATORY MEMORANDUM
                                         Re-examined proposal for a
                                            COUNCIL DIRECTIVE
    on the allocation of railway infrastructure and the charging of infrastructure fees
On 15th December 1993 the Commission submitted a proposal for a directive on the
allocation of railway infrastructure and the charging of infrastructure fees to the Council0'.
At its plenary session of 3rd May 1994 the European Parliament approved the Commission's
proposal, while adopting a number of amendments®.
On 14th July 1994 the Commission presented an amended proposal to the Council, that
included the greater part of the Parliament's amendments^ . On 21st November 1994 the
Council adopted a common position(4), that included a limited number of the amendments
adopted by the Parliament and taken up by the Commission in its modified proposal. The
Commission gave the Parliament its views on the common position in its communication of
6th December 1994®.
On 14th March 1995, the Parliament approved the Council's common position, while
adopting six amendments. In its re-examined proposal the Commission accepts four of these
amendments that the Parliament adopted at its first reading and the Commission included in
its modified proposal, because they clarify or strenghten the text.
However it refuses an amendment, that the Parliament adopted at its first reading but the
Commission did not include in its modified proposal. This is the amendment that adds a new
paragraph to article 8 that reads : "In order to avoid distorsion of competition between modes
of transport, fees for other modes shall be changed with equal regard for the principle of real
costs". In the Commission's view, this raises important general issues of transport policy that
go far beyond the scope of the directive.
The Parliament adopted a further amendment on 14th March 1995, the deletion of article 1,
paragraphs 2 and 3. The Commission accepts the deletion of the second sentence of
paragraph 2, that excludes from the scope of the directive railway undertakings that only
provide shuttle services through the Channel Tunnel. In the Commission's view, the directive
should cover all railway undertakings, as does directive 91/440/EEC on the development of
the Community's railways, which it is designed to complement. The Commission also accepts
the deletion of paragraph 3 in order to simplify the text.
However it does not accept the deletion of the first sentence of paragraph 2. This sentence
excludes from the scope of the directive railway undertakings that only provide urban,
suburban and regional services. The Commission considers that the directive should exclude
them, as directive 91/440/EEC does.
(l)
       COM (93) 678, OJ C 24 of 28.1.94, p. 6
»      OJC 205 of 25.7.94, p. 45
«      COM (94) 316, OJ C 225 of 13.8.94, p. 11
<*>    EC N* 44/94, OJ C 354 of 13.12.94, p. 19
»      SEC (94) 1894 final, SYN 490
 ---pagebreak---                                                                                          4)
The text of the amendments that the Commission does not accept in its re-examined proposals
is attached.
                                                  r
 ---pagebreak---                                                                                                5)
                                 Re-examined proposal for a             - SYN 4 9 0
                                  COUNCIL DIRECTIVE
  on the allocation of railway infrastructure and the charging of infrastructure fees
 (presented by the Commission pursuant to article 189 c (d) of the Treaty establishing
                                 the European Community)
                                           Article 1.
Common position                                     R&examined proposal
1. The purpose of this Directive is to              1. The purpose of this Directive is to
define the principles and procedures to be          define the principles and procedures to be
applied with regard to the allocation of            applied with regard to the allocation of
railway infrastructure capacity and the             railway infrastructure capacity and the
charging of infrastructure fees for railway         charging of infrastructure fees for railway
undertakings which are or will be                   undertakings which are or will be
established in the Community and the                established in the Community and the
international groupings which they form,            international groupings which they form,
where such undertakings and groupings               where such undertakings and groupings
carry out services referred to in Article 10        carry out services referred to in Articles 10
of Directive 91/440/EEC under the                   of Directive 91/440/EEC under the
conditions laid down in that Article.               conditions laid down in that Article.
2. Railway undertakings the activities of           2. Railway undertakings the activities of
which are limited to the operation of               which are limited to the operation of
urban, suburban and regional services shall         urban, suburban and regional services shall
be excluded from the scope of this                  be excluded from the scope of this
Directive.                                          Directive.
Railway undertakings and international
groupings the business of which is limited
to providing shuttle services for road
vehicles through the Channel Tunnel are
also excluded from the scope of this
Directive.
3. Railway infrastructure capacity shall be
granted in the form of the allocation of
train paths in accordance with Community
and national law.
 ---pagebreak---                                                                                                 6)
                                          Article 2 (a)
a)    "railway undertaking" means any               a)     "railway undertaking" means any
public or private undertaking the main              public or private undertaking the main
business of which is to provide rail                business of which is to provide rail
services for goods and/or passengers, with          services for goods and/or passengers, with
a requirement that the undertaking must             a requirement that the undertaking must
ensure traction;                                    ensure traction, but excludes private tourist
                                                    and museum railways:
                                   Article 4, paragraph 1(b)
b)    Services wholly or partly operated on         b)     specialized types of operation on
      infrastructure constructed or                        infrastructure constructed or
      developed for certain specific                       upgraded for certain           specific
      services (specialized high-speed or                  services, in particular, specialized
      freight lines), without prejudice to                 high-speed or freight lines or lines
      Articles 85, 86 and 90 of the Treaty.                using combined intermodal transport,
                                                           without prejudice to Articles 85, 86
                                                           or 90 of the Treaty. Train paths on
                                                           such specialized infrastructure should
                                                           be allocated on a fair and non-
                                                           discriminatory basis.
                            Article 6, paragraphs 1 and 2 (new)
The accounts of an infrastructure manager           JL The accounts of an infrastructure
shall, under normal business conditions              manager shall, under normal business
over a reasonable time period, at least             conditions over a reasonable time period,
balance income from infrastructure fees             at least balance income from infrastructure
plus State contributions on the one hand            fees plus State contributions on the one
and infrastructure expenditure on the other.        hand and infrastructure expenditure on the
                                                    other.
                                                    2     The infrastructure manager may
                                                    finance infrastructure         development,
                                                    including provision or renewal of capital
                                                    assets, and may make a return on capital
                                                    employed.
                                                "f
 ---pagebreak---                                                                                            7)
                                         Article 10
1. Member States shall lay down the               1. Member States shall lay down without
procedures for the allocation of railway          delay the procedures for the allocation of
infrastructure capacity referred to in            railway infrastructure capacity referred to
Article 1(3). They shall publish their            in Article 1. They shall publish their
procedural rules and inform the                   procedural rules and inform the
Commission thereof.                               Commission thereof.
2. An application for infrastructure              2. An application for infrastructure
capacity shall be submitted to the                capacity shall be submitted to the
allocation body of the Member State on the        allocation body of the Member State of
territory of which the departure point of         establishment.
the service concerned is situated.
3. The allocation body to which an                3. If an application for infrastructure
application has been submitted shall              capacity concerns a train path outside the
immediately inform the other allocation           territory of the Member State of
bodies concerned of this request. The             establishment of the railway undertaking,
latter shall take a decision as soon as           the application shall be submitted to the
possible but no later than one month after        allocation body of the Member State in
all relevant information has been                 whose territory the place of departure or
submitted; each allocation body shall have        arrival of the rail service concerned is
the right to refuse an application. They          situated.
shall immediately inform the allocation
body to which the request has been                3a. When an application is made for a new
submitted.                                        train path, the allocation body shall
                                                  distinguish :
The allocation body to which an
application has been submitted shall,             (2L) between a single application for a rail
together with the other allocation bodies         path for an individual train, and an
concerned, take a decision on the                 application for a rail path for a regular
application as soon as possible, but no           scheduled service: and
later than two months after all relevant
information has been submitted.                   (b) between an application for a rail path
                                                  concerning a single allocation body and
An application which has been refused on          one for a rail path concerning more than
the grounds of insufficient capacity shall        one allocation body.
be reconsidered at the next time-table
adjustment for the routes concerned if the
applicant undertaking so requests. The
dates for such adjustments and other
administrative arrangements shall be
available to interested parties.
The decision shall be communicated to the
applicant undertaking. A refusal shall
indicate the reason therefor.
 ---pagebreak---                                                                                       8)
4. An applicant undertaking may directly    4. Where an application is for a train path
contact the other allocation bodies         for a regular scheduled service concerning
concerned with this request on condition    a single allocation body, the allocation
that the allocation body to which the       body shall take a decision on the
application has been submitted is informed. application as soon as possible, but no
                                            later than two months after all relevant
                                            information has been submitted.          The
                                            decision shall be communicated to the
                                            applicant undertaking. A refusal shall
                                            indicate the reason(s) therefor.
                                            4a. Where an application is for a train path
                                            for a regular scheduled service concerning
                                            more than one allocation body, the
                                            allocation body to which an application
                                            has been submitted shall immediately
                                            inform the other allocation bodies
                                            concerned with this request. The latter
                                            shall take their decision as soon as
                                            possible, normally within three months
                                            after all the relevant information has been
                                            submitted to them. They shall immediately
                                            inform the allocation body to which the
                                            request has been submitted.
                                            The allocation body to which an
                                            application has been submitted, together
                                            with the other allocation bodies concerned,
                                            shall notify to the applicant as soon as
                                            possible, in good time before the start of a
                                            timetabling period, a firm date by which
                                            the train path will be available: the date
                                            shall be within a reasonable period -
                                            normally no more than three months -
                                            from the date of the application, and shall
                                            be publicly announced.
                                            4b. Where the application is for a train
                                            path for a single journey or occasional
                                            traffic concerning a single allocation body,
                                            that body shall take a decision oh the
                                            application as soon as possible, but no
                                            later than one month after all relevant
                                            information has been submitted.         The
                                            decision shall be communicated to the
                                            applicant undertaking. A refusal shall
                                            indicate the reason(s) therefor.
 ---pagebreak---                                                                                         9)
5. The railway undertakings to which          5. Where an application is for a train path
railway infrastructure capacity is allocated  for a single journey or occasional traffic
shall    conclude       the     necessary     concerning more than one allocation body.
administrative, technical and financial       the allocation body to which an application
agreements     with    the    infrastructure  has been submitted shall immediately
managers.                                     inform the other allocation bodies
                                              concerned with this request. The latter
                                              shall take a decision as soon as possible
                                              but no later than one month after all
                                              relevant information has been submitted.
                                              They shall immediately inform the
                                              allocation body to which the application
                                              has been submitted.
                                              The allocation body to which an
                                              application has been submitted together
                                              with the other allocation bodies concerned
                                              shall take a decision on the application as
                                              soon as possible, but no later than two
                                              months after all relevant information has
                                              been submitted. The decision shall be
                                              communicated to the applicant undertaking.
                                              A refusal shall indicate the reason(s)
                                              therefor,
                                              5a. In taking a decision on the allocation
                                              of train paths for regular services, the
                                              allocation body shall take into account all
                                              requests received in the order in which
                                              they are received. The offer of a train
                                              path shall be open for one month, which
                                              period is not affected by any application of
                                              the review procedure set out in Article
                                              WX
                                              6. In addition to the procedure set out in
                                              the above paragraphs an applicant
                                              undertaking mav directly contact the other
                                              allocation bodies concerned with this
                                              request,
                                              The allocation body to which the
                                              application has been submitted shall be
                                              informed.
                                             >°
 ---pagebreak---                                          10)
  7. The allocation of a train path or paths
  shall be dependent upon the issue of a
  safety certificate by the authority
  responsible for safety. This certificate
  shall affirm that the railway undertaking
  has the means to comply with the safety
  conditions laid down by that authority. In
  particular, the railway undertaking must
  demonstrate that it can provide rolling
  stock, traction, personnel and equipment
  appropriate to the service and route
  operated.
  8. The railway undertaking to which
  railway infrastructure capacity has been
  allocated shall conclude the necessary
  administrative, technical and financial
  agreements with the managers of the
  railway infrastructure.
  9. An application which has been refused
  on the grounds of insufficient capacity or
  an inadequate period of notice shall be
  reconsidered at the next time-table
  adjustment for the routes concerned if the
  applicant so requests. The dates for such
  adjustments and other administrative
  arrangements shall be available to
  interested parties.
JA
 ---pagebreak---                                            Annexe
                      Proposal for a Council directive on the allocation
              of railway infrastructure and the charging of infrastructure fees
Amendments adopted by the European Parliament at its second reading that the Commission
does not include in its re-examined proposal. »
Article 1
2. Railway undertakings the activities of which are limited to the operation of urban,
suburban and regional services shall be excluded from the scope of this Directive.
1 (a). In order to avoid distorsion of competition between modes of transport, fees for other
modes shall be charged with equal regard for the principle of real costs.
                                                  ii
 ---pagebreak---                                                                     ISSN 0254-1475
                                                             COM(95) 151 final
                                              DOCUMENTS
EN                                                                             07
                                     Catalogue number : CB-CO-95-174-EN-C
                                                              ISBN 92-77-88163-1
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