uitp position paper, template

Recast of the First Railway Package

COM(2010) 475 Final

UITP (Union Internationale des Transports Publics) is the international organisation of public transport, it is based in Brussels and covers all urban, suburban and regional public transport modes (bus, metro, light rail, regional rail and waterborne public transport). It gathers over 3.100 members worldwide, public transport operators, their authorities and suppliers. In the European Union, the UITP EU Committee (EUC) represents the views of the public transport undertakings of the 27 member countries. It is closely following and participating in the elaboration of the different European policies and initiatives that have an impact on urban, suburban and regional public passenger transport. Key facts for public transport in the EU 27: Passenger journeys: 60 billion/year, more or less equally shared between road modes (mainly bus) and rail modes (urban, suburban and regional rail) Economic value of public transport services: € 130 - 150 billion/year or 1 – 1.2% of GDP Employment: direct employment 1.2 million and indirect employment 2 - 2.5 indirect jobs for each direct job on average

06 APRIL 2011

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1. FAIR COMPETITION IS ESSENTIAL FOR THE DEVELOPMENT OF EUROPEAN RAIL PASSENGER

SERVICES

1.1. General support from the EUC

The development of attractive freight and passenger rail services throughout Europe is regarded as a priority for Europe by the European Union Committee of UITP (EUC). The EUC agrees that fair competition is essential for the development of European rail passenger services, to the benefit of the citizens of Europe.

The EUC is supporting provisions adressing shortages in existing legislation and favoring:

• an increase of investment in rail infrastructure development and maintenance and in new rail services

• an increased transparency and non-discriminatory conditions of rail market access and rail market functioning and a clarification of infrastructure funding and access charging rules

• a full implementation of the European legislation within the Member States

• a clarification of the institutional framework and of the responsibilities and duties of every actor at European and national level influencing the profitability and the development of the different rail market segments

• a clarification of regulatory control and intervention thanks to efficient and effective, well-resourced, independent and competent regulatory bodies in each Member State

• the development of a dynamic rail market serving better the current rail customers and attracting new passengers especially those shifting from private car

1.2. Additional requirements for a fair competition

Fair competition within the internal market is an objective which is not limited to the European rail market, but also encompasses the whole transport sector, i.e. road, rail and air transport. What is decided for the rail market should not lead to disadvantaging rail against other transport modes across Europe, or decrease the competitiveness of the rail industry.

The EUC supports in general the provisions regarding the scope of the proposal for a recast of the first railway package, but recommends that the scope should be clarified (see point 2.1).

At the same time, the EUC believes that the measures to be adopted have to be proportionate to the above objectives. No rule should be adopted at a European level that would prevent the development of efficient, dynamic and innovative options benefitting both operators and infrastructure managers. The recast cannot create new barriers impeding the development of rail services due to mandatory measures which would be unnecessary or unnecessary detailed. In addition the recast should not disregard the regulation (EC) 1370/2007: the provisions of the recast need also to be consistent with the provisions of the regulation.

2. ACHIEVING THESE OBJECTIVES

2.1. A clarification of scope is needed (Articles 1 & 2)

The EUC believes that a distinction needs to be made between the rail systems contributing to the interoperability of the Community rail system – which are at stake in the proposed Recast Directive - and those which can be excluded from the scope of the Interoperability and Safety Directive. This is especially necessary, as regard passenger rail, for the “Urban Rail” systems, that are those urban, suburban and regional rail systems which might be excluded by Members States from the scope of the

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Interoperability directive 2008/57/EC by application of Article 1.3 (a) and (b) and from the scope of the Safety directive 2004/49/EC by application of Article 2.2 (a) and (b).1

It is also necessary to make a clear distinction between local cross-border services and international services, since those systems as well as those services address different needs and requirements.

2.1.1. The directive must not apply to the rail systems which can be excluded from the scope of the Interoperability Directive 2008/57/EC by application of its Article 1.3

The scope of the railway Directives and Regulations regarding local railways systems is not the same in the various European railway legislations. These local, urban, and suburban railways systems can be excluded or not from the scope of the various European legislations, and some are regarded as potentially interoperable within the Community rail system while some others are not.

It is commonly agreed by the European Commission, Member States, the manufacturing industry and local public transport stakeholders that the systems which can be excluded from the scope of the Interoperability Directive 2008/57/EC by application of its Article 1.3 have very diverse intrinsic characteristics in terms e.g. of technical features, involved actors, market regulation, distribution of responsibilities and financing and that most of the mandatory requirements set up by the European railway legislations are not appropriate for such systems. These systems follow national or local regulations, without prejudice to the application of the Public Service Requirements Regulation (EC) 1370/2007. The Recast Directive should acknowledge in its Article 1.2 that it applies only to the rail systems which cannot be excluded from the scope of the Interoperability Directive 2008/57/EC by application of its Article 1.3.

2.1.2. The EUC members do not agree whether Members States may or may not exclude other urban, suburban and regional rail railway undertakings from parts of the Directive

As regard the urban, suburban and regional rail services operated on systems which are not excluded by Member States from the scope of the Interoperability directive, the EUC members cannot agree on a common position regarding the scope of Article 2. Some are supporting the proposed Articles 2.1, 2.2 and 2.3 of the directive, while others believe that similar rules should be applied to all railway undertakings operating on the same network.

2.1.3. Local cross-border services are not international services (Article 3 (5), (6), (7))

Urban, suburban and regional rail passenger services crossing borders operated under Regulation (EC)1370/2007have the same function and meet the same local needs as other urban, suburban and regional rail passenger services operated under Regulation (EC)1370/2007 and therefore local cross-border services should not be treated as international services. This means that the definition of rail services under Article 3(5) has to be clarified accordingly: Cross-border urban, suburban and regional services operated under Regulation (EC)1370/2007 are not international services. This would also clarify the scope of the Rail Passenger Rights Regulation (EC) 1371/2007.

1 a) metros, trams and other light rail systems;

b) networks that are functionally separate from the rest of the railway system and intended only for the operation of local, urban or suburban passenger services, as well as railway undertakings operating solely on these networks;

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2.2. Access to rail-related services must be clarified (Article 13)

2.2.1. Provisions of Article 13 have to be applied under given conditions

The EUC generally supports the provisions of Article 13 to service facilities mentioned in Annex III provided that the following conditions are applied:

a) Capacity in service facilities depending on services following public service requirements according to regulation (EC) 1370/2007 must have a priority to fulfil the public service contract requirements.

b) A service facility is usually built following a design which fits for a dedicated business and which is integrated to fit for a given organisation. Consequently, the opening of access to new applicants of incumbent facilities, as well as of new or non-incumbent facilities, can be limited when taking into account the associated characteristics of this facility. Any operator of a service facility refusing an opening of access shall justify it under the control of the Regulatory Body.

c) If the capacity of a service facility cannot accommodate all requests from the different applicants on the basis of demonstrated needs, and if no viable alternative is available, the Regulatory Body may on its own initiative or on the basis of a complaint take appropriate action to facilitate the creation of appropriate new capacity.

2.2.2. Non-discriminatory, fair and transparent access to essential facilities (Article 13 and Annex III) must be guaranteed

Non-discriminatory, fair and transparent access to essential facilities (Article 13 and Annex III) must be guaranteed for every railway undertaking without prejudice to the conditions presented under point 2.2.1.

The conditions of access, including charges, should be specified systematically in the Network Statement as presented in Annex VI of the proposed Recast Directive.

2.2.3. Conditions of access and management of service facilities must be supervised by the Regulatory Body

The EUC generally supports the provisions of Article 13 on the conditions of access to service facilities described in Annex III, especially regarding the clearer inclusion of energy supply equipment. The EUC also supports the introduction of 'Use-it-or-lease-it' provisions for the management of rail-related service facilities, but only if there is a verifiable demand for use.

However the EUC acknowledges that the proposed approach to enhance independence requirements (i.e. legal, organisational and decision-making independence) for the management of service facilities is problematic: the EUC members could not jointly agree on the provision of Article 13 (2) that the operator of rail related services shall be “necessarily independent” from a body or firm active and dominant in the transport services using the facilities. Nevertheless, they agree that conditions of access and management of service facilities must be supervised by the Regulatory Body.

2.2.4. The provision regarding rejection of requests for access to the service facility must be revised

The EUC is against the provision of Article 13.2 according to which “Requests by railway undertakings for access to the service facility may only be rejected if there are viable alternatives allowing them to operate the freight or passenger service concerned on the same route under economically acceptable conditions. The burden of proving for the existence of a viable alternative lies with the operator of the service facility.” This provision seems very difficult to be applied in practice and goes well beyond the objective of a fair competition.

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However, the EUC believes that when an operator of a service facility denies its access to a new applicant for use, the operator of the service facility has to clearly justify the reasons for rejection. The Regulatory Body should consider the case where a new applicant is disputing this justification.

2.2.5. “Passenger Information and Ticketing Systems facilities” do not include ticket sales

The ticketing and travel information facilities mentioned in Annex III under sub-clause 2.(a) are an issue to be clarified since they cover:

a) the Passenger Information and Ticketing infrastructure (e.g. ticket booth)

b) the Passenger Information and Ticketing data (e.g. timetables and prices)

c) Ticket sales (services and devices)

A fair access to facilities under a) and b) must be offered on request to new applicants and should be granted in a fair and non-discriminatory way to all railway undertakings at predefined non-discriminatory conditions.

As regard ticket sales (services and devices), this issue must remain a matter of commercial agreements preserving confidentiality and trust and privacy requirements and cannot be covered by the directive. This issue however also includes fair rules and transparency in the case of back office revenue sharing (methodologies, preparation of process).

2.3. No common view of UITP EUC members on unbundling (Article 4)

Due to the variety of the institutional background across Europe EUC members could not agree on a common position regarding the full separation between infrastructure and operations management.

Whatever the organisational form or structure, it should guarantee a fair, transparent and non discriminatory access to rail infrastructures, stations, essential facilities and associated services, and should be put under the scrutiny of the Regulatory Body.

2.4. Independent Regulatory Bodies must have the necessary independence, competence, resources and powers (Section 4)

2.4.1. Need for strong Independent Regulatory Bodies at the national level

The EUC insists on the need for a dynamic and successful rail market and therefore on the necessity to have a strong framework guaranteeing that the expected outcomes can be achieved.

The provisions defined under section 4 about the Regulatory Body and its independence, competence, resources as well as investigation, enforcement and cooperation powers are regarded as crucial for achieving - and complying with - the objectives set up for railways by the European Union.

Although some corrections might be necessary to avoid unnecessary administrative burden, the EUC supports the proposals made under the three Articles of this section (Article 55, 56 and 57). The proposal to modernise the provisions on regulatory bodies' independence by stipulating clearly that they must be independent from any other public authority is vital.

The list of functions of a regulatory body seems agreeable to the EUC.

The EUC believes that each Member State must have an independent national regulator with the competence and resources necessary to achieve the objectives of the Railway Packages, and that compliance with this requirement is fundamental.

Regulators must be able to investigate complaints and be able to take action where no complaint has been received but where the regulator has itself established some failure, particularly relating to access to facilities.

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The EUC supports the proposal (Article 56) that regulators should have all the necessary powers for this. The European Commission should monitor progress across the EU. It should be able to take the initiative to investigate any matters that seem appropriate to the Commission and be able to require Member States to take action to rectify any defects that are identified.

2.4.2. Coordination of Regulatory Bodies

The coordination of National Regulatory Bodies has to be supervised directly by the European Commission.

2.5. Need for a clear distinction of accounts between activities (Article 6)

The EUC generally agrees to the new provisions, which clarify the necessary separation in railway undertaking accounts to ensure appropriate transparency, above all when there are different regulatory models.

The Commission proposal (comment under subclause 4.1 page 6) intends to “make it compulsory to have separate accounts for activities that enjoy a legal monopoly in contrast to activities that are subject to competition.” The EUC recalls that some activities may be awarded by law with exclusive rights and still be subject to competition (cf. regulation (EC) 1370/2007). As regard Article 6, EUC members are in favor of a clear distinction of accounts of activities ruled by public service contracts – regardless of the way of award – from other operational activities – regardless of a legal or a factual monopoly.

However, the provisions on accounting separation must not lead to unnecessary administrative burden for railway operators and infrastructure managers.

2.6. “Equivalent measures” must be possible as regard insurance (Article 22)

The EUC considers as extremely important for the railway undertakings to keep the possibility to take insurance directly or to set up any equivalent measure ensuring a total coverage against the different kinds of risk. Such a possibility shall remain available for railway undertakings, despite an insurance market getting more constrained everyday.

2.7. Need to implement a performance scheme in order to improve train path quality. Performance scheme cannot be based on mandatory basic principles (Article 35)

The EUC agrees that a performance scheme is necessary for improving the quality of rail services, and support the idea to make it mandatory to introduce an adequate performance scheme in each Member State. The performance scheme should not only use the principle of incentives/penalties, but address as well the design (e.g. linking the train path price to the train path quality) and the operation of the service (e.g. percentage of non-confirmed train paths before actually starting operations, or percentage of precarious train paths).

The performance scheme should be implemented not as a subsitute of, but in addition to, the necessary measures leading to better balancing in favor of the Railway Undertakings the relationship between Railways Undertakings and Infrastructure Managers, due to the monopolistic situation of Infrastructure Managers.

However the Member States should have the possibility to adapt the basic principles of the performance scheme as listed in Annex VIII point 4 in order to take into account the national background of rail service operations.

In addition, as presented the classification of delays of Annex VIII point 4 (c) does not seem consistent: a delay may be attributable to more than one factor, and the method for allocating a delay to a given delay class and sub-class cannot be defined in a single way.

From the above, it is also clear that the procedure referred to in Article 60 is not appropriate.

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2.8. Long-term agreements are suitable for both financing and path allocation

2.8.1. As regard infrastructure development strategy (Article 8)

The rail industry is characterised by long life-cycle investment processes. Hence the EUC strongly support the obligation for Member States to publish medium to long-term rail infrastructure development strategies.

2.8.2. As regard infrastructure costs and accounts (Article 30)

The EUC agrees that the contractual agreement between the competent authority and the infrastructure manager defined in Article 30 should generally follow the basic principles and parameters set out in Annex VII.

The EUC regards long-term financing agreements as a suitable instrument for generating incentives for the infrastructure manager to reduce charges.

2.8.3. As regards framework agreements (Article 42)

The EUC misses improvements with regard to long-term agreements on path allocation. Rail services with their high investment needs require access to a reliable long-term path allocation.

2.9. Infrastructure charging must be properly balanced between road and rail and between rail services

2.9.1. Internalisation of external costs should not distort competition between air, rail and road transport

The internalisation of external costs to the larger extent possible is strongly supported by the EUC, provided that it is implemented on a fair basis between transport modes. Neither the Member States nor the European Commission should adopt measures which could distort the competition in favour of air or road and to the rail sector detriment. The technical-economic feasibility of internalisation measures has also to be considered (e.g. the excessive cost of braking shoes).

2.9.2. Need for transparent and predictable charges (Articles 30 and 31)

UITP supports the principles of the recast which seek to clarify the method for calculating charges and boost the effective implementation of the charging principles established in Directive 2001/14. It endorses confirmation of the direct cost principle as the method for calculating charges as well as the limits on additional charges. UTP also regards it as necessary for the calculation of direct costs to be justified in any event by the infrastructure manager (and not solely when these costs exceed 35% of the total maintenance costs). More generally, UITP would also like the period covered for predictability of charges to be increased: the RUs need predictability and stability in order to commit to projects, invest in rolling stock and conclude contracts for the medium and even the longer term with customers who can choose between several transport modes (Article 30.2).

2.9.3. Noise-related infrastructure charges (Article 31.5)

The EUC cannot accept any imbalance resulting from a mandatory application of the provisions of article 31.5 on noise-related infrastructure whereas the new “Eurovignette” directive on road infrastructure charges make the application of externalities such as noise only optional. In addition the instrument of noise-related infrastructure charges as such is considered as critical also because the Commission’s proposal is unclear. The EUC would favour provisions to introduce a publicly-financed bonus system for the introduction of noise reduction measures by the railway undertaking and/or wagon holder.

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2.9.4. Exceptions to charging principles (Article 32)

The EUC does not fully support the approach set out in Annex VIII, point 3, e, requesting the infrastructure manager to demonstrate the ability of a train service to pay mark-ups according to Article 32 (1) by distinguishing urban2

As regard the provisions of Article 32 (3) introducing temporary reduction for trains equipped with ETCS running on lines equipped with national control command and signalling systems the EUC requests that other trains without ETCS will not have to pay an additional fee to finance such reductions. This aspect could result in an unfair disadvantage to suburban and regional services which will not have the opportunity to cut their infrastructure fees. It will also give an unfair advantage to major railway companies having the buying power and the size to invest in ETCS trains.

or regional and interurban passenger rail services in the charging principles.

2.10. Some provisions regarding information are missing

2.10.1. Information related to infrastructure (Article 53)

The EUC welcomes the Article 53 requesting Infrastructure Managers to inform in due time interested parties about unscheduled maintenance works. However, the EUC is of the opinion that this Article should include provisions defining more clearly the information management processes by which the infrastructure manager informs the railway undertakings, e.g. about “due time”: it should not be possible that an Infrastructure Manager cancels a train path less than two months before it is used, except in case of act of God or when safety works are at stake. Reference should be made to the measures adopted in the regulation about freight corridors.

Appropriate consultation processes including an obligation of negotiation have to be set up regarding infrastructure capacity changes (Article 53.3).

2.10.2. Statistical information for market monitoring (Article 15)

The EUC strongly recommends presenting in Annex IV the information on Passengers not only in volume of passenger kilometres but also in number of passengers. Indeed many rail-related services are more dependent on the number of passengers (e.g. passenger information and ticketing) than on the volume of passenger kilometres.

2.11. Cross-border agreements are supported (Article 14)

The EUC supports the proposed provisions, which clarify general principles applying to cross-border agreements between railway undertakings, between Member States and between Member States and third countries. They also entail notification and cooperation procedures allowing the Commission to ensure that these agreements comply with European Union law.

2.12. Need for a democratic control over the whole directive

The European Commission is proposing in Recital (65) to amend annexes II to X of the proposed Recast Directive through the procedure of ‘delegated acts’ created by the Article 290 of the Lisbon Treaty. This procedure provides the power to the European Commission to amend non-essential parts of a piece of legislation through a lighter procedure than the co-decision procedure with amongst others, a rather limited consultation of other EU institutions.

The EUC is of the opinion that proposed annexes are addressing issues which cannot be regarded as “non-essential” since they impact essential functions, split of responsibilities and procedures to be mandatory applied by competent authorities, infrastructure

2 In fact suburban

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managers and railway undertakings. Therefore the ‘delegated acts’ procedure cannot be applied to many topics of these annexes.

2.13. Need for Member States reporting on fair and competitive rail market

Member States should ensure that the bodies responsible for infrastructure and for the management of essential services and facilities are acting in a way that supports a fair and competitive rail market. Member States should report on a regular basis to the European Commission about how they achieve these objectives and about any valid complaints that they received about the application of the law. In particular, it must be ensured that the bodies having access by law to commercially sensitive information do not divulgate it to any competitor.

2.14. The European Commission has to guaranty the development of a fair and competitive fair market

The European Commission should ensure that the bodies responsible for infrastructure and for the management of essential services and facilities are acting in a way that supports a fair and competitive rail market. To achieve that, the European Commission should in addition:

• monitor the progress of implementation of the legislation across the EU • take the initiative to investigate any matters to rectify any defects that are

identified • be able to require Member States to take appropriate action in case of non

compliance • take prompt and timely action to secure compliance with the principles of

European law

Annex – proposed amendments (state 6 April 2011)

State 6 April 2011

Proposed amendments - 1/12

PROPOSED AMENDMENTS ON THE RECAST DIRECTIVE

COM(2010) 475 FINAL

Article 1.2 Subject-matter and Scope

2. This Directive applies to the use of railway infrastructure for domestic and international rail services.

2. This Directive applies to the use of the railway infrastructure that cannot be excluded from the scope of the Interoperability Directive 2008/57/EC by application of its Article 1.3.

Justification The scope of the railway Directives and Regulations regarding local railways systems is not the same in all the legal texts. The local, urban and suburban railways systems can be excluded or nor from the scope of the various European legislations, and some are regarded as potentially interoperable within the Community rail system, while some others are not. It is commonly agreed by the European Commission, Member States, the manufacturing industry and local public transport stakeholders that the systems which can be excluded from the scope of the Interoperability Directive 2008/57/EC by application of its Article 1.3 have very diverse intrinsic characteristics in terms e.g. of technical features, involved actors, market regulation, distribution of responsibilities and financing and that most of the mandatory requirements set up by the European railway legislations are not appropriate for such systems. These systems follow national or local regulations, without prejudice to the application of the Public Service Requirements Regulation (EC) 1370/2007. The Recast Directive should acknowledge that it applies only to the rail systems which cannot be excluded from the scope of the Interoperability Directive 2008/57/EC by application of its Article 1.3.

Article 3.5 Definitions

(5) ‘international passenger service’ means a passenger service where the train crosses at least one border of a Member State and where the principal purpose of the service is to carry passengers between stations located in different Member States; the train may be joined and/or split, and the different sections may have different origins and destinations, provided that all carriages cross at least one border;

(5) ‘international passenger service’ means a passenger service where the train crosses at least one border of a Member State and where the principal purpose of the service is to carry passengers between stations located in different Member States; the train may be joined and/or split, and the different sections may have different origins and destinations, provided that all carriages cross at least one border; cross-border urban, suburban and regional services operated under Regulation (EC)1370/2007 are not international passenger services.

Justification

State 6 April 2011


Urban, suburban and regional rail passenger services crossing borders operated under Regulation (EC)1370/2007 have the same function and meet the same local needs as other urban, suburban and regional rail passenger services operated under Regulation (EC)1370/2007 and therefore local cross-border services should not be treated as international services. This means that the definition of rail services under Article 3 (5), (6) and (7) has to be clarified accordingly.

Article 7.1, subparagraph 3 Independence of essential functions of an infrastructure manager

Annex II may be amended in the light of experience, in accordance with the procedure referred to in Article 60.

Deleted

Justification The European Commission is proposing in Recital (65) to amend annexes II to X of the proposed Recast Directive through the procedure of ‘delegated acts’ created by the Article 290 of the Lisbon Treaty. This procedure provides the power to the European Commission to amend non-essential parts of a piece of legislation through a lighter procedure than the co-decision procedure with amongst others, a rather limited consultation of other EU institutions. Annex II is addressing issues which cannot be regarded as “non-essential” since they impact essential functions of infrastructure managers. Therefore the ‘delegated acts’ procedure cannot be applied to this annex.

State 6 April 2011


Article 13.2, subparagraph 3

Conditions of access to services 2 (new §3) Requests by railway undertakings for access to the service facility may only be rejected if there are viable alternatives allowing them to operate the freight or passenger service concerned on the same route under economically acceptable conditions. The burden of proving for the existence of a viable alternative lies with the operator of the service facility.

2 (new §3) Any operator of a service facility calling for a limitation of access shall justify his decision under the control of the Regulatory Body referred to in Article 55. Requests by railway undertakings for access to the service facility may only be limited under the following circumstances: Capacity of service facilities

which is needed for services operated under regulation (EC) 1370/2007 shall be given allocation priority.

The facility has been built following a design fitting for a dedicated business and being integrated to fit for a given organisation.

Justification It is not fair from the economical point of view to put on the operator of a service facility the burden of proving for the existence of a viable alternative. In addition a service facility is usually built following a design which fits for a dedicated business and which is integrated to fit for a given organisation. Consequently, the opening of access to new applicants of incumbent facilities, as well as of new or non-incumbent facilities, has to take into account the associated characteristics of this facility. The access to capacity has to take into account a priority to be given to the rail services operated under Regulation (EC) 1370/2007 so that they can fulfill the public service requirements. The operator of the service facility should be entitled to a priority use if adequately justified on a request from the Regulatory Body.

State 6 April 2011


Article 13.2, subparagraph 4

Conditions of access to services When the operator of the service facility encounters conflicts between different requests, he shall attempt the best possible matching of all requirements. If no viable alternative is available, and it is not possible to accommodate all requests for capacity for the relevant facility on the basis of demonstrated needs, the Regulatory Body referred to in Article 55 shall on its own initiative or on the basis of a complaint take appropriate action to ensure that an appropriate part of the capacity is devoted to railway undertakings other than the ones which are part of the body or firm to which the facility operator also belongs. However newly built maintenance and other technical facilities developed for specific new rolling stock may be reserved to the use of one railway undertaking for a period of five years from the start of their operation.

When there are conflicts between different requests for a service facility, the Regulatory Body referred to in Article 55 shall attempt the best possible matching of all requirements if no viable market alternative is available, and it is not possible to accommodate all requests for capacity for the relevant facility on the basis of demonstrated needs. Without prejudice to the application of Article 13.2, paragraph 3, the Regulatory Body may on its own initiative or on the basis of a complaint take appropriate action to facilitate the creation of appropriate new capacity.

Justification It is the role of the Regulatory Body to solve the conflicts between different applicants for the use of the same service facility. If the existing capacities are not able to serve all needs, it could be useful that the Regulatory Body may take appropriate action to facilitate the creation of appropriate new capacity.

Article 13.5 Conditions of access to services

5. Annex III may be amended in the light of experience, in

accordance with the procedure referred to in Article 60.

Deleted

Justification The European Commission is proposing in Recital (65) to amend annexes II to X of the proposed Recast Directive through the procedure of ‘delegated acts’ created by the Article 290 of the Lisbon Treaty. This procedure provides the power to the European Commission to amend non-essential parts of a piece of legislation through a lighter procedure than the co-decision procedure with amongst others, a rather limited consultation of other EU institutions.

State 6 April 2011


Annex III is addressing issues which cannot be regarded as “non-essential” since they impact the split of responsibilities and procedures to be mandatory applied by competent authorities, infrastructure managers and railway undertaking. Therefore the ‘delegated acts’ procedure cannot be applied to this annex.

Article 22 Requirements relating to civil liability insurance

Requirements relating to civil liability

Requirements relating to insurance

Without prejudice to Chapter III of regulation (EC) No 1371/2007 of the European Parliament and of the Council a railway undertaking shall be adequately insured or make equivalent arrangements for cover, in accordance with national and international law, of its liabilities in the event of accidents, in particular in respect of passengers, luggage, freight, mail and third parties.

Without prejudice to Chapter III of regulation (EC) No 1371/2007 of the European Parliament and of the Council a railway undertaking shall be adequately insured or make equivalent arrangements for cover, in accordance with national and international law, of its liabilities in the event of accidents, in particular in respect of passengers, luggage, freight, mail and third parties.

Justification This Article is dealing with insurance rather than with civil liability. The railway undertakings consider as extremely important to keep the possibility to take insurance directly or to set up any equivalent measure ensuring a total coverage against the different kinds of risk. Such a possibility shall remain available for railway undertakings, despite an insurance market getting more constrained everyday.

Article 30.3, second subparagraph Infrastructure cost and accounts

Basic principles and parameters of such agreements are set out in Annex VII which may be amended in the light of experience in accordance with the procedure referred to in Article 60.

Basic principles and parameters of such agreements are set out in Annex VII.

Justification The European Commission is proposing in Recital (65) to amend annexes II to X of the proposed Recast Directive through the procedure of ‘delegated acts’ created by the Article 290 of the Lisbon Treaty. This procedure provides the power to the European Commission to amend non-essential parts of a piece of legislation through a lighter procedure than the co-decision procedure with amongst others, a rather limited consultation of other EU institutions. Annex VII is addressing issues which cannot be regarded as “non-essential” since they impact the split of responsibilities to be mandatory applied by competent authorities and infrastructure managers. Therefore the ‘delegated acts’ procedure cannot be applied to this annex.

State 6 April 2011


Article 31.5, first and second subparagraph

Principles of charging 5. When charging for the cost of noise effects is allowed by Union legislation for road freight transport, the infrastructure charges shall be modified to take account of the cost of noise effects caused by the operation of the train in accordance with Annex VIII, point 2. Annex VIII, point 2 may be amended in the light of experience, in accordance with the procedure referred to in Article 60, in particular to specify the elements of differentiated infrastructure charges.

5. When charging for the cost of noise effects is applied within a Member State for other transport modes, the infrastructure charges within this Member State shall be modified to take account of the cost of noise effects caused by the operation of the train in accordance with Annex VIII, point 2. Annex VIII, point 2 may be amended in the light of experience, in accordance with the procedure referred to in Article 60, in particular to specify the elements of differentiated infrastructure charges, provided that it does not result in a distortion of competition to the detriment of rail transport.

Justification A mandatory application of the provisions of article 31.5 on noise-related infrastructure whereas the new “Eurovignette” directive on road infrastructure charges make the application of externalities such as noise only optional would result in unbalanced competition between rail and road. The internalisation of external costs must be developed to the larger extent possible, but on a fair basis between transport modes. Neither the Member States nor the European Commission should adopt measures which could distort the competition in favour of air or road and to the rail sector detriment. The technical-economic feasibility of internalisation measures has also to be considered (e.g. the excessive cost of braking shoes).

Article 32.1, subparagraphs 3 and 4 Exceptions to charging principles

These market segments shall be established in accordance with the criteria laid down in Annex VIII, point 3 subject to the prior approval of the regulatory body. For market segments for which there is no traffic, mark-ups shall not be included in the charging system. Annex VIII, point 3 may be amended in the light of experience in accordance with the procedure referred to in Article 60.

These market segments shall be established in accordance with the criteria laid down in Annex VIII, point 3 subject to the prior approval of the Regulatory Body.

State 6 April 2011


Justification The proposed detailed segmentation of the rail market cannot be made mandatory, as the proposed criteria are not all relevant (e.g. for (e), where the purpose and application of the distinction is unclear) and as some flexibility should be allowed depending on market realities. The mark-up should indeed refer to relevant market segments in terms of competition, subject to data availability, including segments from competing road or aviation sector. Due to the necessary flexibility to be introduced in the segmentation, the ‘delegated acts’ procedure cannot be applied to this annex.

Article 32.3 Exceptions to charging principles

3. Trains equipped with the European Train Control System (ETCS) running on lines equipped with national command control and signalling systems shall enjoy a temporary reduction of the infrastructure charge in accordance with Annex VIII, point 5. Annex VIII, point 5 may be amended in the light of experience in accordance with the procedure referred to in Article 60.

. 3. Trains equipped with the European Train Control System (ETCS) running on lines equipped with national command control and signalling systems shall enjoy a temporary reduction of the infrastructure charge in accordance with Annex VIII, point 5. Other trains without ETCS will not have to pay an additional fee to finance such reductions. Annex VIII, point 5 may be amended in the light of experience in accordance with the procedure referred to in Article 60.

Justification Temporary reduction for trains equipped with ETCS running on lines equipped with national control command and signalling systems can only be accepted if other trains without ETCS have not to pay an additional fee to finance such reductions. This aspect could result in an unfair disadvantage to suburban and regional services which will not have the opportunity to cut their infrastructure fees.

Article 35.1 Performance scheme

1. Infrastructure charging schemes shall encourage railway undertakings and the infrastructure manager to minimize disruption and improve the performance of the railway network through a performance scheme. This may include penalties for actions which disrupt the operation of the network, compensation for

1. Infrastructure charging schemes shall encourage railway undertakings and the infrastructure manager to minimize disruption and improve the performance of the railway network through a performance scheme covering all aspects of operations, from the design of services (e.g. linking the train path price to the train

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undertakings which suffer from disruption and bonuses that reward better-than-planned performance.

path quality) to the stability of the service (e.g. percentage of non-confirmed train paths before actually starting operations, or percentage of precarious train paths). This may include penalties for actions which disrupt the operation of the network, compensation for undertakings which suffer from disruption and bonuses that reward better-than-planned performance.

Justification A performance scheme is necessary for improving the quality of rail services, and should not only use the principle of incentives/penalties related to disruption of operation or better-than-planned performance, but address as well the quality and stability of the services.

Article 35.2 Performance scheme

2. The basic principles of the performance scheme as listed in Annex VIII, point 4 shall apply throughout the network. Annex VIII, point 4 may be amended in the light of experience in accordance with the procedure referred to in Article 60.

2. Each Member State shall introduce a performance scheme applying the basic principles listed in Annex VIII, point 4 and taking into account the national background of rail service operations.

Justification The mandatory introduction of a performance scheme by Member States is to be supported. However the Member States should have the possibility to adapt the basic principles of the performance scheme as listed in Annex VIII point 4 in order to take into account the national background of rail service operations (e.g. as regard the classification of delays of Annex VIII point 4 (c). In addition as presented the requirements do not seem consistent: a delay may be attributable to more than one factor, and the method for allocating a delay to a given delay class and sub-class cannot be defined in a single way). So, consequently, the procedure referred to in Article 60 is not appropriate.

Article 53.3 Infrastructure capacity for maintenance work

3. The infrastructure manager shall 3. The infrastructure manager shall

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inform in due time interested parties about unscheduled maintenance work.

inform in due time interested parties about unscheduled maintenance work. Save in the case of force majeure, including urgent and unforeseeable safety-critical work, a train path may not be cancelled less than 2 months before its scheduled time in the working timetable if the applicant concerned does not give its approval for such cancellation. In such a case the infrastructure manager concerned shall make an effort to propose to the applicant a train path of an equivalent quality and reliability which the applicant has the right to accept or refuse. This provision shall be without prejudice to any rights the applicant may have under an agreement as referred to in Article 42. In any case, the applicant may refer the matter to the Regulatory Body referred to in Article 55.

Justification This Article should include provisions defining more clearly the information management processes by which the infrastructure manager informs the railway undertakings, e.g. about “due time”: it should not be possible that an Infrastructure Manager cancels a train path less than two months before it is used, except in case of act of God or when safety works are at stake. The measures adopted in the regulation (EU) 913/2010 in Article 14.8 have to be extended to the current directive.

Article 56.8, third subparagraph Functions of the Regulatory Body

Annex X may be amended in the light of experience in accordance with the procedure referred to in Article 60.

Deleted

Justification The European Commission is proposing in Recital (65) to amend annexes II to X of the proposed Recast Directive through the procedure of ‘delegated acts’ created by the Article 290 of the Lisbon Treaty. This procedure provides the power to the European Commission to amend non-essential parts of a piece of legislation through a lighter procedure than the co-decision procedure with amongst others, a rather limited consultation of other EU institutions.

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Annex VII is addressing issues which cannot be regarded as “non-essential” since they impact the split of responsibilities to be mandatory applied by infrastructure managers and other undertakings or entities. Therefore the ‘delegated acts’ procedure cannot be applied to this annex.

Article 60 Exercise of delegation

1. Powers to adopt the delegated acts referred to in Articles 7(1) second subparagraph, 13(5) second subparagraph, 15(5) second subparagraph, 20 third paragraph, 27(2), 30(3) second subparagraph, 31(5) second subparagraph, 32(1) third subparagraph, 32(3), 35(2), 43(1) and 56(8) third subparagraph shall be conferred on the Commission for an indeterminate period of time.

1. Powers to adopt the delegated acts referred to in Articles 15(5) second subparagraph, 20 third paragraph, 27(2), 31(5) second subparagraph, 32(3) and 43(1) shall be conferred on the Commission for an indeterminate period of time.

Justification The European Commission is proposing in Recital (65) to amend annexes II to X of the proposed Recast Directive through the procedure of ‘delegated acts’ created by the Article 290 of the Lisbon Treaty. This procedure provides the power to the European Commission to amend non-essential parts of a piece of legislation through a lighter procedure than the co-decision procedure with amongst others, a rather limited consultation of other EU institutions. As the annexes in bold characters are addressing issues which cannot be regarded as “non-essential” the ‘delegated acts’ procedure cannot be applied these annexes.

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ANNEX III, paragraph 2, a)

Services to be supplied to the railway undertakings 2. Access shall also be given to services facilities and the supply of services in the following facilities: (a) passenger stations, their buildings and other facilities, including ticketing and travel information; […]

2. Access shall also be given to services facilities and the supply of services in the following facilities: (a) passenger stations, their buildings and other facilities, including ticketing and travel information, but excluding services and devices related to ticket sales; […]

Justification The ticketing and travel information facilities mentioned in Annex III under sub-clause 2.(a) are an issue to be clarified since they cover:

a) the Passenger Information and Ticketing infrastructure (e.g. ticket booth)

b) the Passenger Information and Ticketing data (e.g. timetables and prices)

c) Ticket sales A fair access to facilities under a) and b) must be offered on request to new applicants and should be granted in a fair and non-discriminatory way to all railway undertakings at predefined non-discriminatory conditions. As regard ticket sale, this issue must remain a matter of commercial agreements preserving confidentiality and trust and privacy requirements and cannot be covered by the directive. This issue however also includes fair rules and transparency in the case of back office revenue sharing (methodologies, preparation of process).

Annex IV, paragraph 1 Information for Rail Market Monitoring

(referred to in Article 15) 1. Evolution of rail transport performance and compensation of Public Service Obligations (PSO):

2007 %-variation compared to previous year

2008 %-variation compare to previous year

Freight (in tkm) total

International Transit National Passengers (in pkm) total

International Transit National of which under PSO:

Paid compensation for PSO (in euro):

1. Evolution of rail transport performance and compensation of Public Service Obligations (PSO):

2007

%-variation compared to previous year

2008

%-variation compared

to previous year

Freight (in tkm) total

International Transit National Passengers (in pkm) total

International Transit National of which under PSO:

Paid compensation for PSO (in euro):

Passengers total

International

Transit

National

of which under PSO:

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Justification The information on Passengers should not only been given in volume of passenger kilometres but also in number of passengers. Indeed many rail-related services are more dependent on the number of passengers (e.g. passenger information and ticketing) than on the volume of passenger kilometres. Therefore the table should be completed for passengers by information on the number of passengers, in total and for International, Transit, National and PSO services.

ANNEX VIII Requirements for costs and charges related to railway

infrastructure (referred to in Articles 31(3) and (5); 32(1) and (3) and Article

35) 3. The infrastructure manager shall demonstrate to the regulatory body the ability of a train service to pay mark-ups according to Article 32(1), whereby each of the services listed under a single one of the following points shall belong to different market segments: (a) Passenger vs freight services; (b) Trains carrying dangerous goods vs other freight trains; (c) Domestic vs international services; (d) Combined transport vs direct trains; (e) Urban or regional vs interurban passenger services; (f) Block trains vs single wagon load trains; (g) Regular vs occasional train services.

3. The infrastructure manager shall demonstrate to the regulatory body the ability of a train service to pay mark-ups according to Article 32(1). Homogeneous market segments shall be defined by the Regulatory Body on the basis of proposals from both railway undertakings and infrastructure managers. The Regulatory Body may define additional market segments, using any of the following criteria: (a) Passenger vs freight services; (b) Trains carrying dangerous goods vs other freight trains; (c) Domestic vs international services; (d) Combined transport vs direct trains; (e) Services under public service contracts vs open access; (f) Block trains vs single wagon load trains; (g) Regular vs occasional train services; (h) High speed vs conventional services.

Justification

The proposed detailed segmentation of the rail market cannot be made mandatory, as the proposed criteria are not all relevant (e.g. for (e), where the purpose and application of the distinction is unclear) and as some flexibility should be allowed depending on market realities. The mark-up should indeed refer to relevant market segments in terms of competition, subject to data availability, including segments from competing road or aviation sector.

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