CELEX: 
Language: en
Date: 2016-10-05
Title: Position of the Council at first reading with a view to the adoption of a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directive 2012/34/EU as regards the opening of the market for domestic passenger transport services by rail and the governance of the railway infrastructure

Council of the
                 European Union
                                                           Brussels, 5 October 2016
                                                           (OR. en)
                                                           11199/16
       Interinstitutional File:
          2013/0029 (COD)
                                                           TRANS 298
                                                           CODEC 1058
LEGISLATIVE ACTS AND OTHER INSTRUMENTS
Subject:            Position of the Council at first reading with a view to the adoption of a
                    DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
                    amending Directive 2012/34/EU as regards the opening of the market for
                    domestic passenger transport services by rail and the governance of the
                    railway infrastructure
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                                              DGE 2                                           EN
 ---pagebreak---                                      DIRECTIVE ( EU) 2016/…
                OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
                                                  of …
                                   amending Directive 2012/34/EU
                                as regards the opening of the market
                          for domestic passenger transport services by rail
                          and the governance of the 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 Committee 1,
Having regard to the opinion of the Committee of the Regions 2,
Acting in accordance with the ordinary legislative procedure 3,
1
        OJ C 327, 12.11.2013, p. 122.
2
        OJ C 356, 5.12.2013, p. 92.
3
        Position of the European Parliament of 26 February 2014 (not yet published in the Official
        Journal) and position of the Council at first reading of … (not yet published in the Official
        Journal)]. Position of the European Parliament of … (not yet published in the Official
        Journal).
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                                                  DGE 2                                           EN
 ---pagebreak--- Whereas:
(1)     Directive 2012/34/EU of the European Parliament and of the Council 1 establishes a Single
        European Railway Area with common rules on the governance of railway undertakings and
        infrastructure managers, on infrastructure financing and charging, on conditions of access
        to railway infrastructure and services and on regulatory oversight of the rail market. The
        completion of the Single European Railway Area should be achieved by extending the
        principle of open access to domestic rail markets and reforming the governance of
        infrastructure managers with the objective of ensuring equal access to the infrastructure.
(2)     The growth of passenger traffic by rail has not kept pace with the evolution of other modes
        of transport. The completion of the Single European Railway Area should contribute to the
        further development of rail transport as a credible alternative to other modes of transport.
        In this context, it is vital that the legislation establishing the Single European Railway Area
        is effectively applied within the prescribed time limits.
1
      Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012
      establishing a single European railway area (OJ L 343, 14.12.2012, p. 32).
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                                                    DGE 2                                          EN
 ---pagebreak--- (3)     The Union markets for rail freight services and international passenger transport services
        by rail have been opened to competition since 2007 and 2010 respectively, in accordance
        with Directive 2004/51/EC of the European Parliament and of the Council 1 and
        Directive 2007/58/EC of the European Parliament and of the Council 2. Furthermore, some
        Member States have also opened their domestic passenger services to competition, by
        introducing open access rights, tendering for public service contracts, or both. Such
        opening of the market should have a positive impact on the functioning of the Single
        European Railway Area, leading to better services for users.
(4)     Specific exemptions from the scope of Directive 2012/34/EU should allow Member States
        to take into account specific characteristics of the structure and organisation of rail systems
        on their territory, while ensuring the integrity of the Single European Railway Area.
(5)     The operation of railway infrastructure on a network includes control-command and
        signaling. So long as a line is in operation, the infrastructure manager should ensure in
        particular that the infrastructure is suitable for its designated use.
1
      Directive 2004/51/EC of the European Parliament and of the Council of 29 April 2004
      amending Council Directive 91/440/EEC on the development of the Community’s railways
      (OJ L 164, 30.4.2004, p. 164).
2
      Directive 2007/58/EC of the European Parliament and of the Council of 23 October 2007
      amending Council Directive 91/440/EEC on the development of the Community’s railways
      and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the
      levying of charges for the use of railway infrastructure (OJ L 315, 3.12.2007, p. 44).
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                                                  DGE 2                                            EN
 ---pagebreak--- (6)     In order to establish whether an undertaking should be considered to be vertically
        integrated, the notion of control within the meaning of Council Regulation (EC)
        No 139/2004 1 should be applied. Where an infrastructure manager and a railway
        undertaking are fully independent of one another, but both are controlled directly by the
        State without an intermediary entity, they should be considered to be separate. A
        Government ministry exercising control over both a railway undertaking and an
        infrastructure manager should not be considered to be an intermediary entity.
(7)     This Directive introduces further requirements to ensure the independence of the
        infrastructure manager. Member States should be free to choose between different
        organisational models, ranging from full structural separation to vertical integration,
        subject to appropriate safeguards to ensure the impartiality of the infrastructure manager as
        regards the essential functions, traffic management and maintenance planning.
        Member States should ensure that, within the limits of the established charging and
        allocation frameworks, the infrastructure manager enjoys organisational and
        decision-making independence as regards the essential functions.
(8)     Safeguards should apply in vertically integrated undertakings to ensure that other legal
        entities within those undertakings do not have a decisive influence on appointments and
        dismissals of persons in charge of taking decisions on the essential functions. In this
        context, Member States should ensure that there are complaints procedures in place.
1
      Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations
      between undertakings (the EC Merger Regulation) (OJ L 24, 29.1.2004, p. 1).
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                                                 DGE 2                                          EN
 ---pagebreak--- (9)     Member States should put in place a national framework for the assessment of conflict of
        interests. Within this framework, the regulatory body should take into account any personal
        financial, economic or professional interests which could improperly influence the
        impartiality of the infrastructure manager. Where an infrastructure manager and a railway
        undertaking are independent of one another the fact that they are directly controlled by the
        same Member State authority should not be considered to give rise to a conflict of interest
        within the meaning of this Directive.
(10)    Decision-making by infrastructure managers with respect to train path allocation and
        decision-making with respect to infrastructure charging are essential functions that are vital
        for ensuring equitable and non-discriminatory access to rail infrastructure. Stringent
        safeguards should be put in place to avoid any undue influence being brought to bear on
        decisions taken by the infrastructure manager relating to such functions. Those safeguards
        should be adapted to take into account the different governance structures of railway
        entities.
(11)    Appropriate measures should also be taken to ensure that the functions of traffic
        management and maintenance planning are exercised in an impartial manner to avoid any
        distortion of competition. Within this framework, infrastructure managers should ensure
        that railway undertakings have access to relevant information. In this context, where
        railway undertakings have been granted further access to the traffic management process
        by the infrastructure managers, such access should be granted on equal terms to all railway
        undertakings concerned.
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                                               DGE 2                                            EN
 ---pagebreak--- (12)    Where the essential functions are performed by an independent charging and/or allocation
        body, the impartiality of the infrastructure manager as regards the functions of traffic
        management and maintenance should be ensured without the need for transferring these
        functions to an independent entity.
(13)    Regulatory bodies should have the power to monitor traffic management, renewal
        planning, as well as scheduled and unscheduled maintenance works, in order to ensure that
        they do not lead to discrimination.
(14)    Member States should, as a general rule, ensure that the infrastructure manager is
        responsible for the operation, maintenance and renewal on a network and is entrusted with
        the development of the railway infrastructure on that network. Where those functions are
        outsourced to different entities, the infrastructure manager should nevertheless retain
        supervisory power and bear ultimate responsibility for their exercise.
(15)    Infrastructure managers that are part of a vertically integrated undertaking may outsource
        within that undertaking functions other than the essential functions subject to the
        conditions set out in this Directive, provided that this does not give rise to a conflict of
        interest and that the confidentiality of commercially sensitive information is guaranteed.
        Essential functions should not be outsourced to any other entity of the vertically integrated
        undertaking, unless such entity exclusively performs essential functions.
(16)    Where appropriate, in particular for reasons of efficiency, including in cases of
        public-private partnerships, the functions of infrastructure management may be shared
        between different infrastructure managers. Infrastructure managers should each bear full
        responsibility for the functions they exercise.
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                                                 DGE 2                                              EN
 ---pagebreak--- (17)    Financial transfers between the infrastructure manager and railway undertakings, and in
        vertically integrated undertakings between the infrastructure manager and any other legal
        entity of the integrated undertaking, should be prevented, where they could lead to a
        distortion of competition on the market, in particular as a result of cross-subsidisation
(18)    Infrastructure managers may use income from infrastructure network management
        activities that involve the use of public funds to finance their own business or to pay
        dividends to their investors, as a return on their investments in railway infrastructure. Such
        investors may include the State and any private shareholders, but may not include
        undertakings which are part of a vertically integrated undertaking and which exercise
        control over both a railway undertaking and that infrastructure manager. Dividends
        generated by activities that do not involve the use of public funds or revenues from charges
        for the use of railway infrastructure may also be used by undertakings which are part of a
        vertically integrated undertaking and which exercise control over both a railway
        undertaking and that infrastructure manager.
(19)    The principles of charging should not preclude the possibility that revenues from
        infrastructure charges transit through State accounts.
(20)    Where in a vertically integrated undertaking the infrastructure manager does not have
        distinct legal personality and the essential functions are externalised by assigning them to
        an independent charging and/or allocation body, the relevant provisions regarding financial
        transparency and the independence of the infrastructure manager should apply mutatis
        mutandis at the level of certain divisions within the undertaking.
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                                                 DGE 2                                            EN
 ---pagebreak--- (21)    In order to achieve efficient network management and an efficient use of infrastructure,
        better coordination between infrastructure managers and railway undertakings should be
        ensured through the use of appropriate coordination mechanisms.
(22)    With a view to facilitating the provision of efficient and effective rail services within the
        Union, a European Network of Infrastructure Managers should be established, building on
        existing platforms. For the purpose of participating in this network, Member States should
        be free to determine which body or bodies should be considered to be their main
        infrastructure managers.
(23)    Given the heterogeneity of networks in terms of their size and density and the variety in the
        organisational structures of national, local and regional authorities and their respective
        experiences with the process of market opening, Member States should be allowed
        sufficient flexibility to organise their rail networks in such a way that open access services
        and services under public service contracts can be performed, in order to ensure a high
        quality of services readily available to all passengers.
(24)    Granting Union railway undertakings the right of access to railway infrastructure in all
        Member States for the purpose of operating domestic passenger services might have
        implications for the organisation and financing of rail passenger services provided under a
        public service contract. Member States should, have the option of limiting such right of
        access where it would compromise the economic equilibrium of those public service
        contracts based on a decision by the relevant regulatory body.
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                                                  DGE 2                                            EN
 ---pagebreak--- (25)    The right of railway undertakings to be granted access to the infrastructure does not affect
        the possibility for a competent authority to grant exclusive rights in accordance with
        Article 3 of Regulation (EC) No 1370/2007 of the European Parliament and of the
        Council 1 or to award a public service contract directly under the conditions established in
        Article 5 of that Regulation. The existence of such a public service contract should not
        entitle a Member State to limit the right of access of other railway undertakings to the
        railway infrastructure concerned for the provision of rail passenger services, unless such
        services would compromise the economic equilibrium of the public service contract.
(26)    Regulatory bodies should assess, on the basis of an objective economic analysis, whether
        the economic equilibrium of existing public service contracts would be compromised,
        following a request made by the interested parties.
(27)    The assessment process should take into account the need to provide all market players
        with sufficient legal certainty to develop their activities. The procedure should be as
        simple, as efficient and as transparent as possible as well as being coherent with the
        process for the allocation of infrastructure capacity.
(28)    Provided that non-discriminatory access is ensured, Member States may attach specific
        conditions to the right of access to the infrastructure in order to allow for the
        implementation of an integrated timetable scheme for domestic passenger services by rail.
1
      Regulation (EC) No 1370/2007 of the European Parliament and of the Council of
      23 October 2007 on public passenger transport services by rail and by road and repealing
      Council Regulations (EEC) Nos 1191/69 and 1107/70 (OJ L 315, 3.12.2007, p. 1).
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                                                DGE 2                                            EN
 ---pagebreak--- (29)    The development of railway infrastructure and the improvement of the quality of rail
        passenger services are key priorities in the promotion of a sustainable transport and
        mobility system in Europe. In particular, the development of a high-speed rail network has
        the potential to create better and faster connections between Europe’s economic and
        cultural centres. High-speed rail services link people and markets in a fast, reliable,
        environmentally-friendly and cost-effective way and encourage a shift of passengers to
        rail. It is therefore of particular importance to encourage both public and private
        investment in high speed rail infrastructure, to create favourable conditions for a positive
        return on investment, and to maximize the economic and social benefits from such
        investments. It should remain possible for Member States to opt for different ways of
        promoting investment in high speed rail infrastructure and the use of high speed lines.
(30)    With a view to developing the market for high-speed passenger services, promoting
        optimal use of available infrastructure, and in order to encourage the competitiveness of
        high-speed passenger services resulting in beneficial effects for passengers, open access for
        high-speed passenger services should be limited only in specific circumstances and
        following an objective economic analysis by the regulatory body.
(31)    In order to enable passengers to access the data needed to plan journeys and to book tickets
        within the Union, common information and through-ticketing systems that have been
        developed by the market should be promoted. Given the importance of promoting seamless
        public transport systems, railway undertakings should be encouraged to work on the
        development of such systems, making multimodal, cross-border and door-to-door mobility
        options possible.
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                                                  DGE 2                                           EN
 ---pagebreak--- (32)    Through-ticketing systems should be interoperable and non-discriminatory. Railway
        undertakings should contribute to the development of such systems by making available in
        a non-discriminatory manner and in an interoperable format all relevant data necessary to
        plan journeys and book tickets. Member States should ensure that such systems do not
        discriminate between railway undertakings and that they respect the need to ensure the
        confidentiality of commercial information, the protection of personal data and compliance
        with competition rules. The Commission should monitor and report on the development of
        such systems and, where appropriate, submit legislative proposals.
(33)    Member States should ensure that the provision of railway services reflects requirements
        linked to the guarantee of adequate social protection, whilst ensuring smooth progress
        towards the completion of the Single European Railway Area. In this context, obligations
        arising in accordance with national law from binding collective agreements or agreements
        concluded between social partners and relevant social standards should be respected. Those
        obligations should be without prejudice to Union legislation in the field of social and
        labour law. The Commission should actively support the work undertaken by the sectoral
        social dialogue on railways.
(34)    In the framework of the ongoing review of Directive 2007/59/EC of the
        European Parliament and of the Council 1, the Commission should assess whether new
        legislative acts on the certification of on-board railway staff are necessary.
(35)    Member States should be free to decide on the appropriate financing strategies to
        accelerate the deployment of the European Train Control System (ETCS), and in particular
        whether to apply differentiation of track access charges.
1
      Directive 2007/59/EC of the European Parliament and of the Council of 23 October 2007 on
      the certification of train drivers operating locomotives and trains on the railway system in
      the Community (OJ L 315, 3.12.2007, p. 51).
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                                                  DGE 2                                         EN
 ---pagebreak--- (36)    Infrastructure managers should cooperate concerning incidents or accidents with an impact
        on cross-border traffic with a view to sharing any relevant information enabling swift
        restoration of normal traffic.
(37)    With a view to achieving the objectives of the Single European Railway Area, regulatory
        bodies should cooperate to ensure non-discriminatory access to rail infrastructure.
(38)    In particular, it is essential that regulatory bodies cooperate where matters concerning
        international rail services or bi-national rail infrastructure require decisions of two or more
        regulatory bodies, for the purpose of coordinating their decision-making, with a view to
        avoiding legal uncertainty and ensuring the efficiency of international rail services.
(39)    In the process of opening national rail markets to competition by granting access to the
        networks to every railway undertaking, Member States should have a sufficient transitional
        period to adapt their national law and organisational structures. As a consequence,
        Member States should be able to maintain their existing national rules on market access
        until the end of the transitional period.
(40)    In accordance with the Joint Political Declaration of 28 September 2011 of Member States
        and the Commission on explanatory documents 1, Member States have undertaken to
        accompany, in justified cases, the notification of their transposition measures with one or
        more documents explaining the relationship between the components of a Directive and the
        corresponding parts of national transposition instruments. With regard to this Directive, the
        legislator considers the transmission of such documents to be justified,
HAVE ADOPTED THIS DIRECTIVE:
1
      OJ C 369, 17.12.2011, p. 14.
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                                                   DGE 2                                           EN
 ---pagebreak---                                                   Article 1
Directive 2012/34/EU is amended as follows:
(1)      Article 2 is amended as follows:
         (a)   in paragraph 3, the introductory wording is replaced by the following:
               ‘3.    Member States may exclude the following from the application of Articles 7,
                      7a, 7b, 7c, 7d, 8 and 13 and Chapter IV:’;
         (b)   the following paragraphs are inserted:
               ‘3a. Member States may exclude the following from the application of Articles 7,
                      7a, 7b, 7c, 7d and 8:
                      Local, low-traffic lines of a length not exceeding 100 km that are used for
                      freight traffic between a mainline and points of origin and destination of
                      shipments along those lines, provided that those lines are managed by entities
                      other than the main infrastructure manager and that either (a) those lines are
                      used by a single freight operator or (b) the essential functions in relation to
                      those lines are performed by a body which is not controlled by any railway
                      undertaking. Where there is only a single freight operator, Member States may
                      also exempt it from the application of Chapter IV until capacity is requested by
                      another applicant. This paragraph can equally be applied where the line is used
                      also, to a limited extent, for passenger services. Member States shall inform the
                      Commission of their intention to exclude such lines from the application of
                      Articles 7, 7a, 7b, 7c, 7d and 8.
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                                                   DGE 2                                             EN
 ---pagebreak---             3b.  Member States may exclude the following from the application of Article 7, 7a,
                 7b, 7c and 7d:
                 Regional low-traffic networks managed by an entity other than the main
                 infrastructure manager and used for the operation of regional passenger
                 services provided by a single railway undertaking other than the incumbent
                 railway undertaking of the Member State, until capacity for passenger services
                 on that network is requested, and provided that the undertaking is independent
                 of any railway undertaking operating freight services. This paragraph can
                 equally be applied where the line is used also, to a limited extent, for freight
                 services. Member States shall inform the Commission of their intention to
                 exclude such lines from the application of Articles 7, 7a, 7b, 7c and 7d.’;
        (c) Paragraph 4 is replaced by the following:
            ‘4.  Without prejudice to paragraph 3, Member States may exclude local and
                 regional railway infrastructures which do not have any strategic importance for
                 the functioning of the railway market from the application of Articles 8(3) and
                 local railway infrastructures which do not have any strategic importance for the
                 functioning of the railway market from the application of Articles 7, 7a, 7c and
                 Chapter IV. Member States shall notify the Commission of their intention to
                 exclude such railway infrastructures. The Commission shall adopt
                 implementing acts setting out its decision whether such railway infrastructure
                 may be considered to be without strategic importance. In doing so, the
                 Commission shall take into account the length of railway lines concerned, their
                 level of use and the traffic volume potentially impacted. Those implementing
                 acts shall be adopted in accordance with the advisory procedure referred to in
                 Article 62(2).’;
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                                             DGE 2                                             EN
 ---pagebreak---         (d) The following paragraph is inserted:
            ‘8a. For a period of 10 years after … [the date of entry into force of this amending
                 Directive (st11199/16)], Member States may exclude from the application of
                 Chapters II and IV of this Directive, with the exception of Articles 10, 13
                 and 56, isolated railway lines of less than 500 km, with a different track gauge
                 to that of the main domestic network, that connect with a third country to
                 which Union rail legislation does not apply and that are managed by a different
                 infrastructure manager than the main domestic network. Railway undertakings
                 operating exclusively on such lines may be exempted from the application of
                 Chapter II.
                 Such exemptions may be renewed for periods not exceeding 5 years. No later
                 than 12 months before the expiry date of the exemption, a Member State that
                 intends to renew an exemption shall notify the Commission of its intention to
                 do so. The Commission shall examine whether the conditions for an exemption
                 set out in the first subparagraph are still met. If that is not the case, the
                 Commission shall adopt implementing acts setting out its decision on the
                 termination of the exemption. Those implementing acts shall be adopted in
                 accordance with the advisory procedure referred to in Article 62(2).’;
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                                             DGE 2                                             EN
 ---pagebreak---         (e)   The following paragraphs are added:
              ‘12. Where there is an existing public-private partnership concluded
                     before 16 June 2015 and the private party to that partnership is also a railway
                     undertaking responsible for providing passenger railway services on the
                     infrastructure, Member States may continue to exempt such a private party
                     from the application of Articles 7, 7a and 7d and to limit the right to pick up
                     and set down passengers for services operated by railway undertakings on the
                     same infrastructure as the passenger services provided by the private party
                     under the public-private partnership.
              13.    Private infrastructure managers that are party to a public-private partnership
                     concluded before… [the date of entry into force of this amending Directive
                     (st11199/16)] and that do not receive public funds shall be excluded from the
                     application of Article 7d provided that loans and financial guarantees operated
                     by the infrastructure manager do not benefit directly or indirectly specific
                     railway undertakings.’.
(2)     Article 3 is amended as follows:
        (a)   Point 2 is replaced by the following:
              ‘(2) “infrastructure manager” means any body or firm responsible for the operation,
                     maintenance and renewal of railway infrastructure on a network, as well as
                     responsible for participating in its development as determined by the
                     Member State within the framework of its general policy on development and
                     financing of infrastructure;’;
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                                                 DGE 2                                             EN
 ---pagebreak---         (b) the following points are inserted:
            ‘(2a) “development of the railway infrastructure” means network planning, financial
                  and investment planning as well as the building and upgrading of the
                  infrastructure;
            (2b) “operation of the railway infrastructure” means train path allocation, traffic
                  management and infrastructure charging;
            (2c) “maintenance of the railway infrastructure” means works intended to maintain
                  the condition and capability of existing infrastructure;
            (2d) “renewal of the railway infrastructure” means major substitution works on the
                  existing infrastructure which do not change its overall performance;
            (2e) “upgrade of the railway infrastructure” means major modification works to the
                  infrastructure which improve its overall performance;
            (2f) “essential functions” of infrastructure management means decision-making
                  concerning train path allocation, including both the definition and the
                  assessment of availability and the allocation of individual train paths, and
                  decision-making concerning infrastructure charging, including determination
                  and collection of charges, in accordance with the charging framework and the
                  capacity allocation framework established by the Member States pursuant to
                  Articles 29 and 39;’;
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                                             DGE 2                                             EN
 ---pagebreak---         (c) the following points are added:
            ‘(31) “vertically integrated undertaking” means an undertaking where, within the
                  meaning of Council Regulation (EC) No 139/2004*:
                  (a)    an infrastructure manager is controlled by an undertaking which at the
                         same time controls one or several railway undertakings that operate rail
                         services on the infrastructure manager’s network;
                  (b)    an infrastructure manager is controlled by one or several railway
                         undertakings that operate rail services on the infrastructure manager’s
                         network; or
                  (c)    one or several railway undertakings that operate rail services on the
                         infrastructure manager’s network are controlled by an infrastructure
                         manager.
                  It also means an undertaking consisting of distinct divisions, including an
                  infrastructure manager and one or several divisions providing transport
                  services that do not have a distinct legal personality.
                  Where an infrastructure manager and a railway undertaking are fully
                  independent of each other, but both are controlled directly by a Member State
                  without an intermediary entity, they are not considered to constitute a vertically
                  integrated undertaking for the purposes of this Directive.
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                                              DGE 2                                            EN
 ---pagebreak---          (32) “public private partnership” means a binding arrangement between public
              bodies and one or more undertakings other than the main infrastructure
              manager of a Member State, under which the undertakings partially or totally
              construct and/or fund railway infrastructure, and/or acquire the right to exercise
              any of the functions listed in point (2) for a predefined period of time. The
              arrangement may take any appropriate legally binding form foreseen in
              national legislation;
         (33) “management board” means the senior body of an undertaking performing
              executive and administrative functions, which is responsible and accountable
              for day-to-day management of the undertaking;
         (34) “supervisory board” means the most senior body of an undertaking that fulfils
              supervisory tasks, including the exercise of control over the management board
              and general strategic decisions regarding the undertaking;
         (35) “through ticket” means a ticket or tickets representing a transport contract for
              successive railway services operated by one or more railway undertakings;
         (36) “high speed passenger services” means passenger rail services operated
              without intermediate stops between two places separated at least by a distance
              of more than 200 km on specially-built high-speed lines equipped for speeds
              generally equal or greater than 250 km/h and running on average at those
              speeds.
         ________________
         *    Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of
              concentrations between undertakings (the EC Merger Regulation) (OJ L 24,
              29.1.2004, p. 1).’.
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                                          DGE 2                                             EN
 ---pagebreak--- (3)     In Article 6, paragraph 2 is replaced by the following:
        ‘2.   For the purpose of this Article, Member States which apply Article 7a(3) shall
              require the undertaking to be organised in distinct divisions that do not have a
              distinct legal personality within a single undertaking.’.
(4)     Article 7 is replaced by the following:
        ‘Article 7
        Independence of the infrastructure manager
        1.    Member States shall ensure that the infrastructure manager is responsible for
              operation, maintenance and renewal on a network and is entrusted with the
              development of the railway infrastructure of that network in accordance with national
              law.
              Member States shall ensure that none of the other legal entities within the vertically
              integrated undertaking has a decisive influence on the decisions taken by the
              infrastructure manager in relation to the essential functions.
              Member States shall ensure that the members of the supervisory board and of the
              management board of the infrastructure manager and the managers directly reporting
              to them act in a non-discriminatory manner and that their impartiality is not affected
              by any conflict of interest.
        2.    Member States shall ensure that the infrastructure manager is organised as an entity
              that is legally distinct from any railway undertaking and, in vertically integrated
              undertakings, from any other legal entities within the undertaking.
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                                                 DGE 2                                            EN
 ---pagebreak---         3. Member States shall ensure that the same individuals cannot be concurrently
           appointed or employed:
           (a)    as members of the management board of an infrastructure manager and as
                  members of the management board of a railway undertaking;
           (b)    as persons in charge of taking decisions on the essential functions and as
                  members of the management board of a railway undertaking;
           (c)    where a supervisory board exists, as members of the supervisory board of an
                  infrastructure manager and as members of the supervisory board of a railway
                  undertaking;
           (d)    as members of the supervisory board of an undertaking which is part of a
                  vertically integrated undertaking and which exercises control over both a
                  railway undertaking and an infrastructure manager and as members of the
                  management board of that infrastructure manager.
        4. In vertically integrated undertakings, the members of the management board of the
           infrastructure manager and the persons in charge of taking decisions on the essential
           functions shall not receive any performance-based remuneration from any other legal
           entities within the vertically integrated undertaking, nor shall they receive any
           bonuses principally related to the financial performance of particular railway
           undertakings. They may however be offered incentives related to the overall
           performance of the railway system.
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                                              DGE 2                                          EN
 ---pagebreak---         5.    Where information systems are common to different entities within a vertically
              integrated undertaking, access to sensitive information relating to essential functions
              shall be restricted to authorised staff of the infrastructure manager. Sensitive
              information shall not be passed on to other entities within a vertically integrated
              undertaking.
        6.    The provisions of paragraph 1 of this Article shall be without prejudice to the
              decision-making rights of Member States as regards the development and funding of
              railway infrastructure and the competences of Member States as regards
              infrastructure financing and charging, as well as capacity allocation, as defined in
              Article 4(2), and Articles 8, 29 and 39.’.
(5)     The following Articles are inserted:
        ‘Article 7a
        Independence of the essential functions
        1.    Member States shall ensure that the infrastructure manager has organisational and
              decision-making independence within the limits set out in Article 4(2), and
              Articles 29 and 39, as regards the essential functions.
        2.    For the application of paragraph 1, Member States shall ensure in particular that:
              (a)   a railway undertaking or any other legal entity does not exercise a decisive
                    influence on the infrastructure manager in relation to the essential functions,
                    without prejudice to the role of the Member States as regards the determination
                    of the charging framework and the capacity allocation framework and specific
                    charging rules in accordance with Articles 29 and 39;
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                                                DGE 2                                             EN
 ---pagebreak---            (b)    a railway undertaking or any other legal entity within the vertically integrated
                  undertaking has no decisive influence on appointments and dismissals of
                  persons in charge of taking decisions on the essential functions;
           (c)    the mobility of persons in charge of the essential functions does not create
                  conflicts of interest.
        3. Member States may decide that infrastructure charging and path allocation shall be
           performed by a charging body and/or by an allocation body that are independent in
           their legal form, organisation and decision-making from any railway undertaking. In
           such a case, Member States may decide not to apply the provisions of Article 7(2)
           and points (c) and (d) of Article 7(3).
           Point (a) of Article 7(3) and Article 7(4) shall apply mutatis mutandis to the heads of
           divisions in charge of management of the infrastructure and provision of railway
           services.
        4. The provisions of this Directive referring to the essential functions of an
           infrastructure manager shall apply to the independent charging and/or allocation
           body.
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                                             DGE 2                                             EN
 ---pagebreak---         Article 7b
        Impartiality of the infrastructure manager in respect of
         traffic management and maintenance planning
        1.     Member States shall ensure that the functions of traffic management and
               maintenance planning are exercised in a transparent and non-discriminatory manner
               and that the persons in charge of taking decisions in respect of those functions are not
               affected by any conflict of interest.
        2.     As regards traffic management, Member States shall ensure that railway
               undertakings, in cases of disruption concerning them, have full and timely access to
               relevant information. Where the infrastructure manager grants further access to the
               traffic management process, it shall do so for the railway undertakings concerned in
               a transparent and non-discriminatory way.
        3.     As regards the long-term planning of major maintenance and/or renewal of the
               railway infrastructure, the infrastructure manager shall consult applicants and, to the
               best possible extent, take into account the concerns expressed.
               The scheduling of maintenance works shall be carried out by the infrastructure
               manager in a non-discriminatory way.
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                                                 DGE 2                                            EN
 ---pagebreak---         Article 7c
        Outsourcing and sharing the infrastructure manager’s functions
        1.    Provided that no conflicts of interest arise and that the confidentiality of
              commercially sensitive information is guaranteed, the infrastructure manager may:
              (a)    outsource functions to a different entity, provided the latter is not a railway
                     undertaking, does not control a railway undertaking, or is not controlled by a
                     railway undertaking. Within a vertically integrated undertaking, essential
                     functions shall not be outsourced to any other entity of the vertically integrated
                     undertaking, unless such entity exclusively performs essential functions;
              (b)    outsource the execution of works and related tasks on development,
                     maintenance and renewal of the railway infrastructure to railway undertakings
                     or companies which control the railway undertaking, or are controlled by the
                     railway undertaking.
              The infrastructure manager shall retain the supervisory power over, and bear ultimate
              responsibility for, the exercise of the functions described in Article 3(2). Any entity
              carrying out essential functions shall comply with Articles 7, 7a, 7b and 7d.
        2.    By way of derogation from Article 7(1), infrastructure management functions may be
              performed by different infrastructure managers, including parties to public-private
              partnership arrangements provided that they all fulfil the requirements of Article 7(2)
              to (6) and Articles 7a, 7b and 7d and assume full responsibility for the exercise of the
              functions concerned.
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                                                DGE 2                                               EN
 ---pagebreak---         3.    Where essential functions are not assigned to a power supply operator, it shall be
              exempted from the rules applicable to infrastructure managers, provided that
              compliance with the relevant provisions concerning development of the network, in
              particular Article 8, is ensured.
        4.    Subject to supervision by the regulatory body or any other independent competent
              body determined by the Member States, an infrastructure manager may conclude
              cooperation agreements with one or more railway undertakings in a
              non-discriminatory way and with a view to delivering benefits to customers such as
              reduced costs or improved performance on the part of the network covered by the
              agreement.
              That body shall monitor the execution of such agreements and may, where justified,
              advise that they should be terminated.
        Article 7d
        Financial transparency
        1.    While respecting national procedures applicable in each Member State, income from
              infrastructure network management activities, including public funds, may be used
              by the infrastructure manager only to finance its own business, including the
              servicing of its loans. The infrastructure manager may also use such income to pay
              dividends to owners of the company, which may include any private shareholders,
              but excludes undertakings which are part of a vertically integrated undertaking and
              which exercise control over both a railway undertaking and that infrastructure
              manager.
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                                                DGE 2                                           EN
 ---pagebreak---         2. Infrastructure managers shall not grant loans to railway undertakings, either directly
           or indirectly.
        3. Railway undertakings shall not grant loans to infrastructure managers, either directly
           or indirectly.
        4. Loans between legal entities of a vertically integrated undertaking, shall only be
           granted, disbursed and serviced at market rates and conditions which reflect the
           individual risk profile of the entity concerned.
        5. Loans between legal entities of a vertically integrated undertaking granted before
           …[the date of entry into force of this amending Directive (st11199/16)] shall
           continue until their maturity, provided that they were contracted at market rates and
           that they are actually disbursed and serviced.
        6. Any services offered by other legal entities of a vertically integrated undertaking to
           the infrastructure manager shall be provided on the basis of contracts and be paid
           either at market prices or at prices which reflect the cost of production, plus a
           reasonable margin of profit.
        7. Debts attributed to the infrastructure manager shall be clearly separated from debts
           attributed to other legal entities within vertically integrated undertakings. Such debts
           shall be serviced separately. This does not prevent the final payment of debts being
           made via an undertaking which is part of a vertically integrated undertaking and
           which exercises control over both a railway undertaking and an infrastructure
           manager, or via another entity within the undertaking.
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                                              DGE 2                                            EN
 ---pagebreak---         8.  The accounts of the infrastructure manager and of the other legal entities within a
            vertically integrated undertaking shall be kept in a way that ensures the fulfilment of
            this Article and allows for separate accounting and transparent financial circuits
            within the undertaking.
        9.  Within vertically integrated undertakings, the infrastructure manager shall keep
            detailed records of any commercial and financial relations with the other legal
            entities within that undertaking.
        10. Where essential functions are performed by an independent charging and/or
            allocation body in accordance with Article 7a(3) and Member States are not applying
            Article 7(2), the provisions of this Article shall apply mutatis mutandis. References
            to infrastructure manager, railway undertaking and other legal entities of a vertically
            integrated undertaking in this Article shall be understood as referring to the
            respective divisions of the undertaking. Compliance with the requirements set out in
            this Article shall be demonstrated in the separate accounts of the respective divisions
            of the undertaking.
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                                              DGE 2                                            EN
 ---pagebreak---         Article 7e
        Coordination mechanisms
        Member States shall ensure that appropriate coordination mechanisms are put in place to
        ensure coordination between their main infrastructure managers and all interested railway
        undertakings as well as applicants referred to in Article 8(3). Where relevant,
        representatives of users of the rail freight and passenger transport services, and national,
        local or regional authorities, shall be invited to participate. The regulatory body concerned
        may participate as an observer. The coordination shall concern inter alia:
        (a)   the needs of applicants related to the maintenance and development of the
              infrastructure capacity;
        (b)   the content of the user-oriented performance targets contained in the contractual
              agreements referred to in Article 30 and of the incentives referred to in Article 30(1)
              and their implementation;
        (c)   the content and implementation of the network statement referred to in Article 27;
        (d)   issues of intermodality and interoperability;
        (e)   any other issue related to the conditions for access, the use of the infrastructure and
              the quality of the services of the infrastructure manager.
        The infrastructure manager shall draw up and publish guidelines for coordination, in
        consultation with interested parties. Coordination shall take place at least annually and the
        infrastructure manager shall publish on its website an overview of the activities undertaken
        pursuant to this article.
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                                                 DGE 2                                             EN
 ---pagebreak---         Coordination under this Article shall be without prejudice to the right of applicants to
        appeal to the regulatory body and the powers of the regulatory body as set out in
        Article 56.
        Article 7f
        European Network of Infrastructure Managers
        1.    With the view to facilitating the provision of efficient and effective rail services
              within the Union, Member States shall ensure that their main infrastructure managers
              participate and cooperate in a network, that meets at regular intervals to:
              (a)   develop Union rail infrastructure;
              (b)   support the timely and efficient implementation of the Single European
                    Railway Area;
              (c)   exchange best practices;
              (d)   monitor and benchmark performance;
              (e)   contribute to the market monitoring activities referred to in Article 15;
              (f)   tackle cross-border bottlenecks; and
              (g)   discuss the application of Articles 37 and 40.
              For the purpose of point (d), the network shall identify common principles and
              practices for the monitoring and benchmarking of performance in a consistent
              manner.
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                                                DGE 2                                              EN
 ---pagebreak---               Coordination under this paragraph shall be without prejudice to the right of
              applicants to appeal to the regulatory body and the powers of the regulatory body as
              set out in Article 56.
        2.    The Commission shall be a member of the network. It shall support the work of the
              network and facilitate coordination.’.
(6)     Article 10 is amended as follows:
        (a)   the following paragraph is inserted:
              ‘1a. Without prejudice to the international obligations of the Union and the
                    Member States, Member States having a border to a third country may limit the
                    right of access provided for in this Article for services operated from and to
                    that third country running on a network the track gauge of which is different
                    from the main railway network within the Union if distortions of competition
                    arise in cross-border railway transport between Member States and that third
                    country. Such distortions may result, inter alia, from lack of
                    non-discriminatory access to rail infrastructure and related services in the third
                    country concerned.
                    If a Member State, in accordance with this paragraph, intends to adopt a
                    decision to limit the right of access, it shall submit the draft decision to the
                    Commission and consult the other Member States.
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                                                DGE 2                                               EN
 ---pagebreak---                  If, within a period of three months after submitting that draft decision, neither
                 the Commission nor another Member State objects to it, the Member State may
                 adopt the decision.
                 The Commission may adopt implementing acts setting out the details of the
                 procedure to be followed for the application of this paragraph. Those
                 implementing acts shall be adopted in accordance with the examination
                 procedure referred to in Article 62(3).’;
        (b) paragraph 2 is replaced by the following:
            ‘2.  Without prejudice to Regulation (EC) No1370/2007, railway undertakings
                 shall be granted, under equitable, non-discriminatory and transparent
                 conditions, the right of access to railway infrastructure in all Member States for
                 the purpose of operating rail passenger services. Railway undertakings shall
                 have the right to pick up passengers at any station and set them down at
                 another. That right shall include access to infrastructure connecting service
                 facilities referred to in point 2 of Annex II to this Directive.’;
        (c) paragraphs 3 and 4 are deleted.
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                                              DGE 2                                            EN
 ---pagebreak--- (7)     Article 11 is amended as follows:
        (a)   paragraph 1 is replaced by the following:
              ‘1.   Member States may limit the right of access provided for in Article 10(2) to
                    passenger services between a given place of departure and a given destination
                    when one or more public service contracts cover the same route or an
                    alternative route if the exercise of this right would compromise the economic
                    equilibrium of the public service contract or contracts in question.’;
        (b)   in paragraph 2, the first subparagraph is replaced by the following:
              ‘In order to determine whether the economic equilibrium of a public service contract
              would be compromised, the relevant regulatory body or bodies referred to in
              Article 55 shall make an objective economic analysis and base their decision on
              pre-determined criteria. They shall determine this after a request from any of the
              following, submitted within one month from the receipt of the information on the
              intended passenger service referred to in Article 38(4):
              (a)   the competent authority or competent authorities that awarded the public
                    service contract;
              (b)   any other interested competent authority with the right to limit access under
                    this Article;
              (c)   the infrastructure manager;
              (d)   the railway undertaking performing the public service contract.’;
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                                                DGE 2                                           EN
 ---pagebreak---         (c) paragraph 3 is replaced by the following:
            ‘3.   The regulatory body shall give the grounds for its decision and the conditions
                  under which a reconsideration of the decision may be requested, within one
                  month of its notification, by one of the following:
                  (a)    the relevant competent authority or competent authorities;
                  (b)    the infrastructure manager;
                  (c)    the railway undertaking performing the public service contract;
                  (d)    the railway undertaking seeking access.
                  Where the regulatory body decides that the economic equilibrium of a public
                  contract would be compromised by the intended passenger service referred to
                  in Article 38(4), it shall indicate possible changes to that service which would
                  ensure that the conditions to grant the right of access provided for in
                  Article 10(2) are met.’;
        (d) In paragraph 4, the following subparagraph is added:
            ‘Based on the experience of regulatory bodies, competent authorities and railway
            undertakings, and based on the activities of the network referred to in Article 57(1),
            the Commission shall by 16 December 2018 adopt implementing acts setting out the
            details of the procedure and criteria to be followed for the application of
            paragraphs 1, 2 and 3 of this Article as regards domestic passenger services. Those
            implementing acts shall be adopted in accordance with the examination procedure
            referred to in Article 62(3).’;
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                                               DGE 2                                           EN
 ---pagebreak---         (e) paragraph 5 is replaced by the following:
            ‘5.  Member States may also limit the right of access to railway infrastructure for
                 the purpose of operating domestic passenger services between a given place of
                 departure and a given destination within the same Member State where:
                 (a)   exclusive rights to convey passengers between these stations have been
                       granted under a public service contract awarded before 16 June 2015; or
                 (b)   an additional right/authorisation to operate commercial passenger
                       services in competition with another operator between these stations has
                       been awarded by... [24 months after the entry into force of this amending
                       Directive (st11199/16)] on the basis of a fair competitive tendering
                       procedure,
                 and where these operators receive no compensation to operate these services.
                 Such a limitation may continue for the original duration of the contract or
                 authorisation, or until...[10 years after the date of entry into force of this
                 amending Directive (st11199/16) ], whichever is shorter.’.
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                                              DGE 2                                             EN
 ---pagebreak--- (8)     The following Articles are inserted:
        ‘Article 11a
        High-speed passenger services
        1.    With a view to developing the market for high-speed passenger services, promoting
              optimal use of available infrastructure, and in order to encourage the competitiveness
              of high-speed passenger services resulting in beneficial effects for passengers,
              without prejudice to Article 11(5), the exercise of the right of access provided for in
              Article 10 as regards high speed passenger services may only be subject to the
              requirements established by the regulatory body in accordance with this Article.
        2.    Where the regulatory body, following the analysis foreseen in Article 11(2), (3) and
              (4), determines that the intended high speed passenger service between a given place
              of departure and a given destination compromises the economic equilibrium of a
              public service contract that covers the same route or an alternative route, the
              regulatory body shall indicate possible changes to the service which would ensure
              that the conditions to grant the right of access provided for in Article 10(2) are met.
              Such changes may include a modification of the intended service.
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                                                 DGE 2                                            EN
 ---pagebreak---         Article 13a
        Common information and through-ticketing schemes
        1.    Without prejudice to Regulation (EC) No 1371/2007 of the European Parliament and
              of the Council* and Directive 2010/40/EU of the European Parliament and of the
              Council**, Member States may require railway undertakings operating domestic
              passenger services to participate in a common information and integrated ticketing
              scheme for the supply of tickets, through-tickets and reservations or give the power
              to competent authorities to establish such a scheme. If such a scheme is established,
              Member States shall ensure that it does not create market distortion or discriminate
              between railway undertakings and that it is managed by a public or private legal
              entity or an association of all railway undertakings operating passenger services.
        2.    The Commission shall monitor rail market developments concerning the introduction
              and use of common information and through-ticketing systems and shall assess the
              need for action at Union level, taking into account market initiatives. It shall in
              particular consider non-discriminatory access for rail passengers to data necessary to
              plan journeys and book tickets. By 31 December 2022, it shall present a report to the
              European Parliament and the Council on the availability of such common
              information and through-ticketing systems, to be accompanied, if appropriate, by
              legislative proposals.
        3.    Member States shall require railway undertakings operating passenger services to put
              in place contingency plans and shall ensure that these contingency plans are properly
              coordinated to provide assistance to passengers, in the sense of Article 18 of
              Regulation (EC) No 1371/2007, in the event of a major disruption to services.
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                                                 DGE 2                                            EN
 ---pagebreak---         ______________
        *     Regulation (EC) No 1371/2007 of the European Parliament and of the Council
              of 23 October 2007 on rail passengers’ rights and obligations (OJ L 315, 3.12.2007,
              p. 14).
        **    Directive 2010/40/EU of the European Parliament and of the Council of 7 July 2010
              on the framework for the deployment of Intelligent Transport Systems in the field of
              road transport and for interfaces with other modes of transport (OJ L 207, 6.8.2010,
              p. 1).’.
(9)     In Article 19, the following point is added:
        ‘(e) have not been convicted of serious offences resulting from obligations arising in
              accordance with national law from binding collective agreements, where
              applicable.’.
(10)    In Article 32, paragraph 4 is replaced by the following:
        ‘4.   The infrastructure charges for the use of railway corridors which are specified in
              Commission Regulation (EU) 2016/919* may be differentiated to give incentives to
              equip trains with the ETCS that is compliant with the version adopted by the
              Commission Decision 2008/386/EC** and with successive versions. Such
              differentiation shall not result in any overall increase in revenue for the infrastructure
              manager.
              Member States may decide that this differentiation of infrastructure charges does not
              apply to railway lines specified in Regulation (EU) 2016/919 on which only ETCS
              equipped trains run.
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                                                 DGE 2                                             EN
 ---pagebreak---               Member States may decide to extend this differentiation to railway lines not
              specified in Regulation (EU) 2016/919.
        ______________
        *     Commission Regulation (EU) 2016/919 of 27 May 2016 on the technical
              specification for interoperability relating to the “control-command and signalling”
              subsystems of the rail system in the European Union (OJ L 158, 15.6.2016, p. 1)
        **    Commission Decision of 23 April 2008 modifying Annex A to
              Decision 2006/679/EC concerning the technical specification for interoperability
              relating to the control-command and signalling subsystem of the trans-European
              conventional rail system and Annex A to Decision 2006/860/EC concerning the
              technical specification for interoperability relating to the control-command and
              signalling subsystem of the trans-European high-speed rail system (OJ L 136,
              24.5.2008, p. 11).’.
(11)    In Article 38, paragraph 4 is replaced by the following:
        ‘4.   Where an applicant intends to request infrastructure capacity with a view to
              operating a passenger service, in a Member State where the right of access to railway
              infrastructure is limited in accordance with Article 11, it shall inform the
              infrastructure managers and the regulatory bodies concerned no less than 18 months
              before the entry into force of the working timetable to which the request for capacity
              relates. In order to enable the regulatory bodies concerned to assess the potential
              economic impact on existing public service contracts, regulatory bodies shall ensure
              that any competent authority that has awarded a rail passenger service on that route
              defined in a public service contract, any other interested competent authority with the
              right to limit access under Article 11 and any railway undertaking performing the
              public service contract on the route of that passenger service is informed without
              undue delay and at the latest within 10 days.’.
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                                                 DGE 2                                           EN
 ---pagebreak--- (12)    In Article 53, in paragraph 3,the following subparagraph is added:
        ‘The regulatory body may require the infrastructure manager to make such information
        available to it, if it deems that this is necessary.’.
(13)    In Article 54, paragraph 1 is replaced by the following:
        ‘1.   In the event of disturbance to train movements caused by technical failure or
              accident, the infrastructure manager shall take all necessary steps to restore the
              situation to normal. To that end, it shall draw up a contingency plan listing the
              various bodies to be informed in the event of serious incidents or serious
              disturbances to train movements. In the event of a disturbance which has a potential
              impact on cross-border traffic, the infrastructure manager shall share any relevant
              information with other infrastructure managers the network and traffic of which may
              be affected by that disturbance. The infrastructure managers concerned shall
              cooperate to restore the cross-border traffic to normal.’.
(14)    Article 56 is amended as follows:
        (a)   in paragraph 1 the following points are added:
              ‘(h) traffic management;
              (i)    renewal planning and scheduled or unscheduled maintenance;
              (j)    compliance with the requirements, including those regarding conflicts of
                     interest, set out in Article 2(13) and Articles 7, 7a, 7b, 7c, and 7d.’;
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                                                   DGE 2                                         EN
 ---pagebreak---         (b) paragraph 2 is replaced by the following:
            ‘2.   Without prejudice to the powers of the national competition authorities to
                  secure competition in the rail services markets, the regulatory body shall have
                  the power to monitor the competitive situation in the rail services markets,
                  including in particular the market for high-speed passenger services, and the
                  activities of infrastructure managers in relation to points (a) to (j) of
                  paragraph 1. In particular, the regulatory body shall verify compliance with
                  points (a) to (j) of paragraph 1 on its own initiative and with a view to
                  preventing discrimination against applicants. It shall, in particular, check
                  whether the network statement contains discriminatory clauses or creates
                  discretionary powers for the infrastructure manager that may be used to
                  discriminate against applicants.’;
        (c) in paragraph 9, the first subparagraph is replaced by the following:
            ‘9.   The regulatory body shall consider any complaints and, as appropriate, shall
                  ask for relevant information and initiate consultations with all relevant parties,
                  within one month from the receipt of the complaint. It shall decide on any
                  complaints, take action to remedy the situation and inform the relevant parties
                  of its reasoned decision within a pre- determined, reasonable time, and, in any
                  case, within six weeks from receipt of all relevant information. Without
                  prejudice to the powers of the national competition authorities for securing
                  competition in the rail service markets, the regulatory body shall, where
                  appropriate, decide on its own initiative on appropriate measures to correct
                  discrimination against applicants, market distortion and any other undesirable
                  developments in these markets, in particular with reference to points (a) to (j)
                  of paragraph 1.’;
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                                               DGE 2                                           EN
 ---pagebreak---         (d) paragraph12 is replaced by the following:
            ‘12. In order to verify compliance with accounting separation provisions laid down
                 in Article 6 and provisions on financial transparency laid down in Article 7d,
                 the regulatory body shall have the power to carry out audits or initiate external
                 audits with infrastructure managers, operators of service facilities and, where
                 relevant, railway undertakings. In the case of vertically integrated
                 undertakings, those powers shall extend to all legal entities. The regulatory
                 body shall be entitled to request any relevant information. In particular the
                 regulatory body shall have the power to request infrastructure manager,
                 operators of service facilities and all undertakings or other entities performing
                 or integrating different types of rail transport or infrastructure management as
                 referred to in Article 6(1) and (2) and Article 13 to provide all or part of the
                 accounting information listed in Annex VIII with a sufficient level of detail as
                 deemed necessary and proportionate.
                 Without prejudice to the powers of the national authorities responsible for State
                 aid issues, the regulatory body may also draw conclusions from the accounts
                 concerning State aid issues which it shall report to those authorities.
                 Financial flows referred to in Article 7d(1), loans referred to in Article 7d(4)
                 and (5), and debts referred to in Article 7d(7) shall be subject to monitoring by
                 the regulatory body.
                 Where a Member State has designated the regulatory body as the independent
                 competent body referred to in Article 7c(3), the regulatory body shall assess
                 the cooperation agreements referred to in that Article.’.
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                                             DGE 2                                              EN
 ---pagebreak--- (15)    Article 57 is amended as follows:
        (a)   the following paragraph is inserted:
              ‘3a. Where matters concerning an international service require decisions of two or
                    more regulatory bodies, the regulatory bodies concerned shall cooperate in
                    preparing their respective decisions in order to bring about a resolution of the
                    matter. For that purpose, the regulatory bodies concerned shall carry out their
                    functions in accordance with Article 56.’;
        (b)   paragraph 8 is replaced by the following:
              ‘8.   Regulatory bodies shall develop common principles and practices for making
                    the decisions for which they are empowered under this Directive. Such
                    common principles and practices shall include arrangements for the resolution
                    of disputes that arise within the framework of paragraph 3a. Based on the
                    experience of regulatory bodies and on the activities of the network referred to
                    in paragraph 1, and, if needed, to ensure efficient cooperation of regulatory
                    bodies, the Commission may adopt implementing acts setting out such
                    common principles and practices. Those implementing acts shall be adopted in
                    accordance with the examination procedure referred to in Article 62(3). ’;
        (c)   the following paragraph is added:
              ‘10. For decisions concerning a bi-national infrastructure, both Member States
                    concerned may at any time after … [the date of entry into force of this
                    amending Directive (st11199/16)] agree to require coordination between the
                    regulatory bodies concerned in order to align the impact of their decisions.’.
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                                                DGE 2                                            EN
 ---pagebreak--- (16)    In Article 63, paragraph 1 is replaced by the following:
        ‘1.    By 31 December 2024, the Commission shall evaluate the impact of this Directive on
               the rail sector and shall submit to the European Parliament, the Council, the
               European Economic and Social Committee and the Committee of the Regions a
               report on its implementation.
               In particular, the report shall evaluate the development of high-speed rail services
               and assess the existence of discriminatory practices regarding access to high-speed
               lines. The Commission shall consider whether it is necessary to submit legislative
               proposals.
               By the same date, the Commission shall assess whether discriminatory practices or
               other types of distortion of competition persist in relation to infrastructure managers
               which are part of a vertically integrated undertaking. The Commission shall, if
               appropriate, submit legislative proposals.’.
                                                 Article 2
1.      Notwithstanding Article 3(2), Member States shall adopt and publish, by... [24 months
        after the entry into force of this amending Directive (st11199/16)], the laws, regulations
        and administrative provisions necessary to comply with this Directive. They shall
        communicate to the Commission the text of those provisions immediately.
        When Member States adopt those measures, they shall contain a reference to this Directive
        or be accompanied by such a reference on the occasion of their official publication. The
        methods of making such reference shall be laid down by Member States.
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 ---pagebreak--- 2.       Member States shall communicate to the Commission the text of the main provisions of
         national law which they adopt in the field covered by this Directive.
                                                Article 3
1.       This Directive shall enter into force on the day following that of its publication in the
         Official Journal of the European Union.
2.       Points 6 to 8 and 11 of Article 1 shall apply from 1 January 2019 in time for the working
         timetable starting on 14 December 2020.
                                                Article 4
This Directive is addressed to the Member States.
Done at …,
For the European Parliament                                  For the Council
The President                                                The President
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                                                 DGE 2                                             EN