CELEX: 51989PC0564(01)
Language: en
Date: 1990-01-25
Title: PROPOSAL FOR A COUNCIL DIRECTIVE ON THE DEVELOPMENT OF THE COMMUNITY RAILWAYS

No C 34/8                               Official Journal of the European Communities                                  14. 2. 90
                                                                II
                                                         (Preparatory Acts)
                                                   COMMISSION
                     Proposal for a Council Directive on the development of the Community railways
                                                        COM(89) 564 final
                                      (Submitted by the Commission on 1 December 1989)
                                                           (90/C 34/06)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                             Whereas, in order to facilitate transport between
                                                                      Member States, railway undertakings should be free to
                                                                      form groupings with railway undertakings established in
Having regard to the Treaty establishing the European
                                                                     other Member States;
Economic Community, and in particular Article 75
thereof,
                                                                     Whereas, such international groupings should be granted
Having regard to the proposal from the Commission,                   rights of access and transit in the Member States of
                                                                     establishment of their constituent undertakings, as well
                                                                      as transit rights in other Member States as required for
Having regard       to    the  opinion   of   the    European        the international service concerned;
Parliament,
                                                                     Whereas, in the absence of common rules on allocation
Having regard to the opinion of the Economic and
                                                                     of infrastructure costs and in order to provide for equal
Social Committee,
                                                                     treatment between modes of transport, Member States
                                                                     shall lay down and make public rules providing for the
Whereas the greater integration of the European                      payment by railway undertakings and their international
transport sector is an essential element of the internal             groupings for the use of railway infrastructure; whereas
market; whereas the railways are a vital part of the                 such rules must be based on the principles of
Community transport sector;                                          non-discrimination and fair competition between modes
                                                                     of transport;
Whereas the efficiency of the railway system in the
internal market and on transit routes should be improved             Whereas Member States should compensate infra-
within a competitive market whilst taking account of the             structure operators for losses incurred, if and as far as
special characteristics of the railways;                             the latter are required to charge transport undertakings
                                                                     below cost price;
Whereas to achieve these objectives the appropriate
measures to remove restrictions of the freedom to
                                                                     Whereas, in order to render railway transport services
provide services are required to be taken in the light of
                                                                     efficient and competitive with regard to other modes of
practical experience;
                                                                     transport, Member States should ensure that railway
                                                                     undertakings are given a status of independent operators
Whereas the future development and efficient operation               behaving in a commercial manner;
of the railway system requires that a distinction be made
between the provision of railway transport services and
the operation of infrastructure; whereas to make this                Whereas, to the same end, Member States should ensure
distinction effective, it is necessary that in all cases these       in particular that State-owned railway transport under-
two activities are separately managed and have distinct              takings are given a sound financial structure whilst any
accounts;                                                            financial rearrangement as may be necessary shall be
                                                                     made in accordance with the relevant rules laid down in
                                                                     the Treaty;
Whereas for reasons of transparency each Member State
should lay down and make public the conditions for the
maintenance and establishment in its territory of railway            Whereas it is necessary to establish an advisory
undertakings and rules on their access rights to its                 committee to monitor and assist the Commission with
national infrastructure;                                             the implementation of this Directive,
 ---pagebreak---    14. 2. 90                            Official Journal of the European Communities                               No C 34/9
  HAS ADOPTED THIS DIRECTIVE:                                                                Article 3
                                                                    Member States shall lay down the financial and other
                                                                    requirements, including the procedure for authorization,
                           SECTION I
                                                                   that any undertaking has to meet for establishment as a
                      Objective and scope                          railway undertaking having access to the national infra-
                                                                   structure.
                            Article 1
  The objective of this Directive is to facilitate the devel-
  opment in the Community of efficient railways designed                                   SECTION II
  to meet the needs of a single market.
                                                                                     Railway infrastructure
                            Article 2                                                        Article 4
  1.     For the purpose of this Directive:                        Member States shall take the necessary measures to
                                                                   provide for the development of national railway infra-
  (a) 'railway undertakings' means undertakings estab-             structures taking into account the general needs of the
       lished in the Community to provide general railway          Community. To this end they shall lay down and make
       transport services, and in particular the following         public provisions for railway infrastructure in accordance
       companies:                                                  with the principles set out hereinafter.
       — Societe nationale des chemins de fer beiges
           (SNCB) / Nationale Maatschappij der Belgische
           Spoorwegen (NMBS),
                                                                                             Article 5
       — Danske Statsbaner (DSB),
                                                                   1. Any railway undertaking established in accordance
       — Deutsche Bundesbahn (DB),                                 with Article 3 shall be granted access on equitable
       — Opyavuruoc, Li8n,po8p6|ia>v EAX&8o$ (OIE),                conditions to national railway infrastructure in the
                                                                   country of its establishment.
       — Red Nacional de los Ferrocarriles         Espafioles
           (RENFE),
       — Societe nationale des chemins de fer francais
           (SNCF),                                                 2.    Subject to the same conditions international
                                                                   groupings shall be granted transit and access rights as
       — Iarnrod Eireann (IE),
                                                                   required to operate international services on links
      — Ente Ferrovie dello Stato (FS),                            between the Member States where their constituent
       — Societe nationale des chemins de fer luxem-               undertakings are established.
           bourgeois (CFL),
      — Naamloze           Vennootschap          Nederlandse
           Spoorwegen (NS),                                                                  Article 6
      — Caminhos do Ferro Portugueses EP (CP),                     1.    Until the entry into force of common rules on the
      — British Rail (BR),                                        allocation of infrastructure costs, Member States shall
                                                                  ensure that railway undertakings and international
      — Northern Ireland Railways (NIR);
                                                                  groupings pay access charges based on the principles of
                                                                  non-discrimination and fair competition between modes
 (b) 'international grouping' means a grouping of railway         of transport.
      undertakings, including at least two undertakings
      established in different Member States, created to
      operate services between them;
                                                                  2.    When the objectives set out in paragraph 1 require
                                                                  access charges below those needed to recover the full
(c) 'infrastructure operator' means any public body or
                                                                  costs of infrastructure, the infrastructure operator shall
      undertaking operating railway infrastructure.
                                                                  receive compensation from the Member State concerned
                                                                  for any losses thereby incurred.
2.      Railway undertakings whose activity is limited to
the provision of urban and suburban services — as
defined by Article 1 (5) of Council Regulation (EEC)
                                                                  3.    Charges for the use of each route shall be estab-
No 1191/69 (*) — are exempted from the scope of this
                                                                  lished by the infrastructure operator concerned taking
Directive.
                                                                  into account, notably the total train kilometres operated
                                                                  and any specific requirements in terms of such factors as
(*) OJ No L 156, 28. 6. 1969, p. 1.                              speed, axle load and the degree or period of utilization.
 ---pagebreak--- No C 34/10                               Official Journal of the European Communities                                14. 2. 90
4.     The Commission may request the Member States to                                       Article 9
provide any information with regard to:
                                                                    1.    Member States shall ensure that public railway
                                                                   undertakings have, by 1 January 1993, a sound financial
— the annual usage of and receipts for routes used by at           structure.
     least two railway undertakings,
— the annual maintenance and investment costs for                  2.     'Sound financial structure' means that the balance
     each of these routes,                                         sheet, established according to generally accepted
                                                                   accounting principles and reflecting the real value of the
                                                                   assets employed, after taking into account any transfer of
— the total compensation             provided    pursuant   to
                                                                   ownership and financial responsability for infrastructure,
     paragraph 2.
                                                                   is such that the long term assets plus a reasonable
                                                                   working fund are financed by an appropriate amount of
                                                                   capital and by long-term debts.
                          SECTION III
    Common principles applying to railway undertakings             3.     Member States shall also ensure that any future
                                                                   investments in new or expanded activities be covered by
                            Article 7                              an appropriate increasing capital.
 1.    Member States shall ensure the legal autonomy and
management independence of railway undertakings.                   4.     As far as may be required to comply with
                                                                   paragraph 1, and in conformity with Articles 92 and 93
                                                                   of the Treaty, Member States may make arrangements
2.     Member States shall ensure that railway under-              for an exceptional capital reconstruction. This may in
takings shall be operated on commercial principles and             particular include the removal of debts, either through
shall be free to adjust the nature of their business to the        their assumption by the State or a sinking fund or
market. Railway undertakings shall, in particular, be free         through any other financially equivalent solution.
to:
— establish or join any international grouping,
                                                                                          SECTION i y
— establish their own internal organization, without                                     Final provisions
     prejudice to Article 8,
                                                                                            Article 10
— control the supply, marketing and pricing of services,
                                                                   The Commission shall be assisted by a committee of an
— take decisions on staff, assets and procurement,                 advisory nature composed of the representatives of the
                                                                   Member States and chaired by the representative of the
                                                                   Commission.
— develop new markets, technologies and services in
     order to increase profitability in both the short and
     long run,                                                     The representative of the Commission shall submit to the
                                                                   committee a draft of the measures to be taken. The
— adopt any innovative              management      techniques     committee shall deliver its opinion on the draft, within a
     considered useful,                                            time limit which the chairman may lay down according
                                                                   to the urgency of the matter, if necessary by taking a
— establish activities in fields associated with the               vote.
     railways business, including creation of affiliated
     companies and participation in joint ventures,
                                                                   The opinion shall be recorded in the minutes; in
                                                                   addition, each Member State shall have the right to ask
— negotiate and establish commercial contracts with                to have its position recorded in the minutes.
     public bodies, notably in relation to the provision of
     'public service' transport.
                                                                   The Commission shall take the utmost account of the
                                                                   opinion delivered by the committee. It shall inform the
                           Article 8                               committee of the manner in which its opinion has been
                                                                   taken into account.
Member States shall lay down provisions requiring
railway undertakings also operating infrastructure to
organize their infrastructure and transport operations as
                                                                                            Article 11
distinct 'divisions' meeting the requirements in Article 1
(3) of Regulation (EEC) No 1191/69. The accounts of                The provisions of this Directive are without prejudice to
the divisions shall be maintained in such a way as to              the Council Directive on procurement procedures of
exclude the possibility of any cross-subsidies.                    entitles providing water energy and transport services.
 ---pagebreak---   14. 2. 90                              Official Journal of the European Communities                             No C 34/11
                           Article 12                                The provisions adopted pursuant to the first
                                                                     subparagraph shall make express reference to this
  Decision 75/327/EEC (') is hereby repealed.                        Directive.
                                                                     2.     Member States shall forthwith inform the
                           Article 13
                                                                     Commission     thereof    and     communicate    to   the
  1.    Member States shall, after consultation with the             Commission the provisions of national law which they
  Commission, bring into force the laws, regulations and             adopt in the field covered by this Directive, which
  administrative provisions necessary to comply with this           provisions shall be communicated by the Commission to
  Directive not later than 1 January 1993.                          the Member States.
                                                                                             Article 14
  0) OJ No L 152, 12. 6. 1975, p. 3.                                This Directive is addressed to the Member States.
               Proposal for a Council Regulation (EEC) amending Regulation (EEC) No 1191/69 on action
               by Member States concerning the obligations inherent in the concept of a public service in
                                          transport by rail, road and inland waterway
                                                       COM(89) 564 final
                                      (Submitted by the Commission on 1 December 1989)
                                                          (90/C 34/07)
 THE COUNCIL OF THE EUROPEAN COMMUNITIES,                           obligations is no longer justifiable to meet the public
                                                                    transport needs, except for the provision of certain
                                                                    urban, suburban and regional services;
 Having regard to the Treaty establishing the European
 Economic Community, and in particular Article 75
 thereof,
                                                                    Whereas it is therefore necessary to amend Council
                                                                    Regulation (EEC) No 1191/69 ( l ) to lay down the
                                                                    general rules governing the public service contracts,
 Having regard to the proposal from the Commission,
 Having regard      to   the   opinion   of   the   European
                                                                    HAS ADOPTED THIS REGULATION
 Parliament,
 Having regard to the opinion of the Economic and                                            Article 1
 Social Committee,
                                                                    Council Regulation (EEC)         No   1191/69  is hereby
                                                                    amended as follows:
Whereas one of the objectives of the common transport
policy is to eliminate disparities in the conditions
inherent in the concept of public services liable to cause          1. paragraphs 2, 3 and 4 of Article 1 are replaced by the
substantial distortion in the transport market;                         following:
Whereas the public interest of transport services may                   '2.   When necessary in order to ensure adequate
justify their continued operation under the concept of a                transport on specific routes or in specific areas
public service;                                                         Member States may provide for the establishment or
                                                                        continuation of public services on the basis of
                                                                        contracts to be negotiated with undertakings in
Whereas the arrangements for such an operation should                   accordance with Article 14.
be established between the competent authorities and the
undertakings within the framework of a contract in
order to ensure the commercial operation of the latter;
                                                                        3.   Nevertheless, Member States may maintain
                                                                        urban, suburban and regional services subject to the
Whereas, in the light of the possibilities offered by such
contracts, the continued imposition of public service              (') OJ No L 156, 28. 6. 1969, p. 1.