4.5.2010

EN

Official Journal of the European Union

CE 114/1

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POSITION (EU) No 2/2010 OF THE COUNCIL AT FIRST READING

with a view to the adoption of a Regulation of the European Parliament and of the Council concerning a European rail network for competitive freight

Adopted by the Council on 22 February 2010

(Text with EEA relevance)

2010/C 114 E/01

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,

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),

Whereas:

(1)	Within the framework of the Lisbon Strategy for growth and employment and the European Union Strategy for Sustainable Development, the creation of an internal rail market, in particular with regard to freight transport, is an essential factor in making progress towards sustainable mobility.

(2)

Council Directive 91/440/EEC of 29 July 1991 on the development of the Community's railways (4) and Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure (5) have been important steps in the creation of the internal rail market.

(3)

In order to be competitive with other modes of transport, international and national rail freight services, which have been opened up to competition since 1 January 2007, must be able to benefit from a good quality and sufficiently financed railway infrastructure, that is, one which allows freight transport services to be provided under good conditions in terms of commercial speed and journey times and to be reliable, that is, that the service it provides actually corresponds to the contractual agreements entered into with the railway undertakings.

(4)

The opening of the rail freight market has made it possible for new operators to enter the rail network. To optimise the use of the network and ensure its reliability it is useful to introduce additional procedures to strengthen cooperation on allocation of international train paths for freight trains between infrastructure managers.

(5)	The Council, meeting on 7 and 8 April 2008, concluded that the efficient use of infrastructure must be promoted and that, if necessary, railway infrastructure capacities must be improved by means of measures taken at European and national levels, and in particular by means of legal acts.

(6)	In this context, the establishment of international rail corridors for a European rail network for competitive freight on which freight trains can run under good conditions and easily pass from one national network to another would allow improvements in the conditions of use of the infrastructure.

(7)

In order to establish international rail corridors for a European rail network for competitive freight, the initiatives already taken in terms of railway infrastructure show that the creation of international corridors, which meet specific needs in one or more clearly identified segments of the freight market, is the most appropriate method.

(8)

This Regulation should be without prejudice to the rights and obligations of infrastructure managers set out in Directive 91/440/EEC and Directive 2001/14/EC and, where relevant, allocation bodies as referred to in Article 14(2) of Directive 2001/14/EC. Those acts remain in force, including in respect of provisions which affect freight corridors, in particular in respect of the right of infrastructure managers to refuse or accept applications for capacity from legal entities other than railway undertakings.

(9)

The international rail corridors for a European rail network for competitive freight should be set up in a manner consistent with the Trans-European Transport Network (‘TEN-T’) and/or the European Railway Traffic Management System (‘ERTMS’) corridors. To that end, the coordinated development of the networks is necessary, and in particular as regards the integration of the international corridors for rail freight into the existing TEN-T and the ERTMS corridors. Furthermore, harmonising rules relating to those freight corridors should be established at the level of the Union. If necessary, the creation of those corridors should be supported financially within the framework of the TEN-T, research and Marco Polo programmes, and other policies and funds of the Union, such as the European Regional Development Fund or the Cohesion Fund.

(10)

Within the framework of a freight corridor, good coordination between the Member States and the infrastructure managers concerned should be ensured, sufficient priority should be given to rail freight traffic, effective and adequate links to other modes of transport should be set up and conditions should be created which are favourable to the development of competition between rail freight service providers.

(11)

Further to the freight corridors set up in accordance with Article 3, the establishment of additional freight corridors should be examined and approved at the level of the Union in accordance with clearly defined transparent procedures and criteria which allow Member States and infrastructure managers sufficient decision-making and management scope so that they can take into account existing initiatives for special corridors, e.g. ERTMS, RailNetEurope (‘RNE’) and TEN-T, and take measures adapted to their specific needs.

(12)	In order to stimulate coordination between the Member States and the infrastructure managers, an appropriate governance structure for each freight corridor should be established, taking account of the need to avoid duplication with already existing governance structures.

(13)

In order to meet market needs, the methods for establishing a freight corridor should be presented in an implementation plan, which should include identifying and setting a schedule for measures which would improve the performance of rail freight. Furthermore, to ensure that planned or implemented measures for the establishment of a freight corridor meet the needs or expectations of all of the users of the freight corridor, the applicants likely to use the freight corridor must be regularly consulted in accordance with procedures defined by the management board.

(14)	The development of intermodal freight terminals should also be considered necessary to support the establishment of rail freight corridors in the Union.

(15)

In order to guarantee the consistency and continuity of the infrastructure capacities available along the freight corridor, investment in the freight corridor should be coordinated between Member States and the infrastructure managers concerned, and planned in a way which meets the needs of the freight corridor. The schedule for carrying out the investment should be published to ensure that applicants who may operate in the corridor are well-informed. The investment should include projects relating to the development of interoperable systems and the increase in capacity of the trains.

(16)	For the same reasons, all the works on infrastructure and its equipment that would restrict available capacity on the freight corridor should also be coordinated at the level of the freight corridor and be the subject of updated publications.

(17)

In order to facilitate requests for infrastructure capacities for international rail freight services, it is appropriate to designate or establish a one-stop shop for each freight corridor. For this, existing initiatives should be built upon, in particular those undertaken by RNE, a body which acts as a coordination tool for the infrastructure managers and provides a number of services to international freight undertakings.

(18)	The management of freight corridors should also include procedures for the allocation of the infrastructure capacity for international freight trains running on such corridors. Those procedures should recognise the need for capacity of other types of transport, including passenger transport.

(19)	To ensure that the railway infrastructure is better used, the operation of that infrastructure and the terminals along the freight corridor needs to be coordinated.

(20)	Priority rules may also mean priority targets depending on the situation in the respective Member State.

(21)	Freight trains running on the freight corridor should be able to enjoy, as far as possible, sufficient punctuality in the event of disturbance with regard to the needs of all types of transport.

(22)

In order to evaluate objectively the benefits of the measures aimed at the establishment of the freight corridor, the performance of the rail freight services along the freight corridor should be monitored and quality reports should be published regularly. The evaluation of the performance should include the outcome of satisfaction surveys of the users of the freight corridor.

(23)	In order to ensure non-discriminatory access to international rail services, it is necessary to ensure efficient coordination between the regulatory bodies over the different networks covered by the freight corridor.

(24)	To facilitate access to information concerning the use of all the main infrastructure in the freight corridor and to guarantee non-discriminatory access to that corridor, the management board should draw up, regularly update and publish a document containing all of this information.

(25)

Since the objective of this Regulation, namely the establishment of a European rail network for competitive freight made up of freight corridors, cannot be sufficiently achieved by the Member States alone and can therefore by reason of its scale and effects be better achieved at the level of the Union, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

(26)	Fair rules based on cooperation between the infrastructure managers, who must provide a quality service to freight undertakings within the framework of an international rail corridor, should be introduced in respect of the coordination of investment and the management of capacities and traffic.

(27)

As international trains need to run itineraries combining several corridors, as defined in this Regulation, the infrastructure managers of several corridors may also coordinate their activities in order to ensure, on the corridors concerned, the availability of capacity, fluid movements and a coherent application of priority rules to the different types of traffic in the event of disturbance.

(28)	The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (6).

(29)

In addition, the Commission should be empowered to adopt delegated acts in accordance with Article 290 of the Treaty on the Functioning of the European Union in respect of the adaptation of Annex II. It is of particular importance that the Commission consult experts during its preparatory work, in accordance with the commitments made in the Commission Communication of 9 December 2009 on the implementation of Article 290 of the Treaty on the Functioning of the European Union,

HAVE ADOPTED THIS REGULATION:

CHAPTER I

GENERAL

Article 1

Purpose and scope

1.   This Regulation lays down rules for the establishment and organisation of international rail corridors for a European rail network for competitive freight. It sets out rules for the selection, organisation and management of freight corridors.

2.   This Regulation shall apply to the management and use of railway infrastructure in freight corridors.

Article 2

Definitions

1.   For the purposes of this Regulation, the definitions laid down in Article 2 of Directive 2001/14/EC shall apply.

2.   In addition to the definitions referred to in paragraph 1:

(a)

‘freight corridor’ means all designated railway lines in Member States and, where necessary, European third countries, linking terminals along the principal route of the freight corridor, including the railway infrastructure and its equipment, marshalling yards and train formation facilities and, where necessary, diversionary routes;

(b)	‘implementation plan’ means the document presenting the means and the strategy that the parties concerned intend to implement in order to develop over a specified period the measures which are necessary and sufficient to establish the freight corridor;

(c)

‘terminal’ means the installation provided along the freight corridor which has been especially arranged to allow either the loading and/or the unloading of goods onto/from freight trains, and the integration of rail freight services with road, maritime, river and air services, and either the forming or modification of the composition of freight trains; and, where necessary, performing border procedures at borders with European third countries.

CHAPTER II

DESIGNATION AND GOVERNANCE OF THE INTERNATIONAL RAIL CORRIDORS FOR COMPETITIVE FREIGHT

Article 3

Designation of initial freight corridors

1.   The Member States referred to in Annex I shall establish by … (7) the freight corridors along the principal routes set out in that Annex. The Member States concerned shall inform the Commission about the establishment of the freight corridors.

2.   By derogation from paragraph 1 the freight corridors along the principal routes set out in points 3, 5 and 8 of Annex I shall be established by … (8).

Article 4

Selection of further freight corridors

1.   Each Member State with a rail border with another Member State shall participate in the establishment of at least one freight corridor, unless this obligation has already been met under Article 3.

2.   Notwithstanding paragraph 1, Member States shall, upon request from a Member State, participate in the establishment of the freight corridor as referred to in that paragraph or the prolongation of an existing corridor, in order to allow a neighbouring Member State to fulfil its obligation under that paragraph.

3.   Without prejudice to the obligations of Member States under Article 7 of Directive 91/440/EEC, where a Member State considers that the establishment of a freight corridor would not be in the interest of the applicants likely to use the freight corridor or would not bring significant socio-economic benefits or would cause a disproportionate burden, the Member State concerned shall not be obliged to participate as referred to in paragraphs 1 and 2 of this Article, subject to a decision of the Commission acting in accordance with the advisory procedure referred to in Article 19(2).

4.   A Member State shall not be obliged to participate as referred to in paragraphs 1 and 2 if it has a rail network which has a track gauge which is different from that of the main rail network within the Union.

5.   In order to meet the obligation under paragraphs 1 and 2, the Member States concerned shall jointly propose to the Commission the establishment of freight corridors after consulting the infrastructure managers and applicants concerned by … (9), taking into account the criteria set out in Annex II.

6.   The Commission shall examine the proposals for the establishment of freight corridor(s) referred to in paragraph 5 and, in accordance with the regulatory procedure referred to in Article 19(3), adopt a decision on the compliance of such a proposal with this Article at the latest nine months after submission of the proposal.

7.   The Member States concerned shall establish the freight corridor at the latest three years after the decision of the Commission referred to in paragraph 6.

8.   The Commission shall be empowered to adopt delegated acts in accordance with Article 290 of the Treaty on the Functioning of the European Union as regards adaptations to Annex II. When preparing the delegated acts referred to in this paragraph, the Commission shall respect the provisions set out in Directive 2001/14/EC and Directive 2008/57/EC of the European Parliament and of the Council of 17 June 2008 on the interoperability of the rail system within the Community (recast) (10) and shall take into account, in particular, the deployment plan relating to the interoperable systems, the evolution of the railway system and the TEN-T and in particular the implementation of the ERTMS, as well as freight market developments, including interaction with other transport modes.

For the delegated acts referred to in this paragraph, the procedure set out in Articles 20, 21 and 22 shall apply.

Article 5

Modification of the freight corridors

1.   The freight corridors referred to in Articles 3 and 4 may be modified on the basis of a joint proposal by the Member States concerned to the Commission after consulting the infrastructure managers and applicants concerned.

2.   The Commission shall, in accordance with the regulatory procedure referred to in Article 19(3), adopt a decision on the proposal taking into account the criteria set out in Annex II.

Article 6

Reconciliation

When two or more Member States concerned do not agree on the establishment or modification of a freight corridor, and with regard to the railway infrastructure located on their territory, the Commission, at the request of one of the Member States concerned, shall consult the Committee referred to in Article 19 on this matter. The opinion of the Commission shall be sent to the Member States concerned. The Member States concerned shall take this opinion into account in order to find a solution and shall take a decision on the basis of mutual consent.

Article 7

Governance of freight corridors

1.   For each freight corridor, Member States concerned shall establish an executive board responsible for defining the general objectives of the freight corridor, supervising and taking the measures as expressly provided for in Articles 8, 10 and 23. The executive board shall be composed of representatives of the authorities of the Member States concerned.

2.   For each freight corridor, the infrastructure managers concerned and, where relevant, the allocation bodies as referred to in Article 14(2) of Directive 2001/14/EC, shall establish a management board responsible for taking the measures as expressly provided for in paragraph 6 of this Article and in Articles 8, 10, 12(1), 13(2), (5) and (6), 15(1), 16 and 17(2) and (3) of this Regulation. The management board shall be composed of the representatives of the infrastructure managers.

3.   The executive board shall take its decisions on the basis of mutual consent of the representatives of the authorities of the Member States concerned.

4.   The management board shall take its decisions, including decisions regarding its legal status, resources and staffing, on the basis of mutual consent of the infrastructure managers concerned.

5.   The responsibilities of the executive and management boards shall be without prejudice to the independence of infrastructure managers as provided for in Article 4(2) of Directive 91/440/EEC.

6.   The management board shall set up an advisory group made up of managers and owners of the terminals of the freight corridor. This advisory group may issue an opinion on any proposal by the management board which has direct consequences for investment and the management of terminals. The advisory group may also issue own-initiative opinions. The management board shall take any of these opinions into account.

Article 8

Measures for implementing the freight corridor plan

1.   The management board shall draw up an implementation plan and shall submit it for approval to the executive board. This plan shall include:

(a)	a description of the characteristics of the freight corridor, including bottlenecks, and the programme of measures necessary for creating the freight corridor;

(b)	the essential elements of the transport and traffic study referred to in paragraph 3;

(c)	the objectives for the freight corridors, in particular in terms of performance of the freight corridor expressed as the quality of the service and the capacity of the freight corridor in accordance with the provisions of Article 17;

(d)	the investment plan referred to in Article 10; and

(e)	the measures to implement the provisions of Articles 11 to 17.

2.   The management board shall periodically review the implementation plan taking into account progress made in its implementation, the rail freight market on the freight corridor and performance measured in accordance with the objectives referred to in point (c) of paragraph 1.

3.   The management board shall periodically carry out a transport and traffic study relating to the observed and expected changes in the traffic in the freight corridor, covering the different types of traffic, both regarding the transport of freight and the transport of passengers.

4.   The implementation plan shall take into account the development of terminals to meet the needs of rail freight running on the freight corridor.

Article 9

Consulting applicants

The management board shall introduce consultation mechanisms with a view to the proper participation of the applicants likely to use the freight corridor. In particular, it shall ensure that applicants are consulted before the implementation plan referred to in Article 8 is submitted to the executive board.

CHAPTER III

INVESTMENT IN THE FREIGHT CORRIDOR

Article 10

Investment planning

1.   The management board shall draw up and periodically review an investment plan and shall submit it for approval to the executive board. This plan shall include:

(a)	the list of the projects foreseen for the extension, renewal or redeployment of railway infrastructure and its equipment along the freight corridor and the relevant financial requirements and sources of finance;

(b)

a deployment plan relating to the interoperable systems along the freight corridor which satisfies the essential requirements and the technical specifications for interoperability which apply to the network as defined in Directive 2008/57/EC. This deployment plan shall be based on a cost-benefit analysis of the use of interoperable systems;

(c)	a plan for the management of the capacity of freight trains which may run in the freight corridor. This plan may be based on increasing the length, loading gauge or axle load authorised for the trains running in the freight corridor; and

(d)	where applicable, reference to the contribution of the Union envisaged under financial programmes of the Union.

2.   The application of this Article shall be without prejudice to the competence of the Member States regarding planning of and funding to rail infrastructure.

Article 11

Coordination of works

The infrastructure managers concerned shall coordinate and publish, according to an appropriate manner and timeframe, their schedule for carrying out all the works on infrastructure and its equipment that would restrict available capacity on the freight corridor.

CHAPTER IV

MANAGEMENT OF THE FREIGHT CORRIDOR

Article 12

One-stop shop for application for infrastructure capacity

1.   The management board for a freight corridor shall designate or establish a joint body and/or an information system through collaboration between infrastructure managers offering applicants the opportunity to request, in a single place and a single operation, infrastructure capacity for freight trains crossing at least one border along the freight corridor (the ‘one-stop shop’).

2.   The one-stop shop shall also provide basic information concerning the allocation of the infrastructure capacity, including the information referred in Article 16.

3.   The one-stop shop shall forward any application for infrastructure capacity without any delay to the competent infrastructure managers and, where relevant, the allocation bodies as referred to in Article 14(2) of Directive 2001/14/EC, who shall take a decision on that application in accordance with Article 13 and Chapter III of that Directive.

4.   The activities of the one-stop shop shall be carried out under transparent and non-discriminatory conditions. These activities shall be subject to control of the regulatory bodies in accordance with Article 18.

Article 13

Capacity allocated to freight trains

1.   Member States shall cooperate on defining the framework for the allocation of the infrastructure capacity in the freight corridor in accordance with their competences as set out in Article 14(1) of Directive 2001/14/EC.

2.   The management board shall evaluate the need for capacity to be allocated to freight trains running on the freight corridor taking into account the transport and traffic study referred to in Article 8(3) of this Regulation, the requests for infrastructure capacity relating to the past and present working timetables and the framework agreements.

3.   On the basis of the evaluation specified in paragraph 2 of this Article, infrastructure managers of the freight corridor shall jointly define and organise international pre-arranged train paths for freight trains following the procedure referred to in Article 15 of Directive 2001/14/EC recognising the need for capacity of other types of transport, including passenger transport. These pre-arranged paths shall be published no later than three months before the final date for receipt of requests for capacity referred to in Annex III to Directive 2001/14/EC. The infrastructure managers of several freight corridors may, if necessary, coordinate international pre-arranged train paths offering capacity on the freight corridors concerned.

4.   Infrastructure managers of the freight corridor shall allocate these pre-arranged paths first to freight trains which cross at least one border.

5.   Infrastructure managers shall, if justified by market need and the evaluation referred to in paragraph 2 of this Article, jointly define the reserve capacity for international freight trains running on the freight corridors recognising the need for capacity of other types of transport, including passenger transport and keep this reserve available within their final working timetables to allow them to respond quickly and appropriately to ad hoc requests for capacity as referred to in Article 23 of Directive 2001/14/EC. This capacity shall be reserved until the time-limit before its scheduled time as decided by the management board. This time-limit shall not exceed 90 days.

The reserve capacity shall be determined on the basis of the evaluation specified in paragraph 2. Such reserve capacity shall be only made available provided that there is real market need.

6.   The management board shall promote coordination of priority rules relating to capacity allocation on the freight corridor.

7.   Save in the case of force majeure, a train path allocated to a freight operation under this Article may not be cancelled less than one month before its scheduled time in the working timetable except if the applicant concerned gives 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 19(1) of Directive 2001/14/EC.

8.   The infrastructure managers of the freight corridor and the advisory group referred to in Article 7(6) shall put in place procedures to ensure optimal coordination of the allocation of capacity between infrastructure managers, both for requests as referred to in Article 12(1) and for requests received by the infrastructure managers concerned. This shall also take account of access to terminals.

9.   In paragraphs 4 and 8 of this Article, references to infrastructure managers shall include, where relevant, allocation bodies as referred to in Article 14(2) of Directive 2001/14/EC.

Article 14

Traffic management

1.   Infrastructure managers of the freight corridor shall put in place procedures for coordinating traffic management along the freight corridor and may put in place procedures for coordinating traffic management along several freight corridors.

2.   The infrastructure managers of the freight corridor and the advisory group referred to in Article 7(6) shall put in place procedures to ensure optimal coordination between the operation of the railway infrastructure and the terminals.

Article 15

Traffic management in the event of disturbance

1.   The management board shall adopt common targets for punctuality and/or guidelines for traffic management in the event of disturbance to train movements on the freight corridor.

2.   Each infrastructure manager concerned shall draw up priority rules for the management between the different types of traffic in the part of the freight corridors within the responsibility of that infrastructure manager in accordance with the common targets and/or guidelines referred to in paragraph 1 of this Article. Those priority rules shall be published in the network statement referred to in Article 3 of Directive 2001/14/EC.

3.   The principles for establishing the priority rules shall at least provide that the train path referred to in Article 13(3) and (5) allocated to freight trains which comply with their scheduled time in the working timetable shall not be modified, as far as possible. The principles for establishing the priority rules shall aim at minimising the overall network recovery time with regard to the need of all types of transport. For this purpose, infrastructure managers may coordinate the management between the different types of traffic along several freight corridors.

Article 16

Information on the conditions of use of the freight corridor

The management board shall draw up, regularly update and publish a document containing:

(a)	all the information contained in the network statement for national networks regarding the freight corridor, drawn up in accordance with the procedure set out in Article 3 of Directive 2001/14/EC;

(b)	the list and characteristics of terminals, in particular information concerning the conditions and methods of accessing the terminals;

(c)	the information concerning the procedures referred to in Articles 13(8) and 14(2); and

(d)	the implementation plan.

Article 17

Quality of service in the freight corridor

1.   Infrastructure managers of the freight corridor shall promote compatibility between the performance schemes referred to in Article 11 of Directive 2001/14/EC.

2.   The management board shall monitor the performance of rail freight services in the freight corridor and publish the results of this monitoring once a year.

3.   The management board shall organise a satisfaction survey of the users of the freight corridor and shall publish the results of it once a year.

Article 18

Regulatory bodies

1.   The regulatory bodies referred to in Article 30 of Directive 2001/14/EC shall cooperate in monitoring the competition in the rail freight corridor. In particular, they shall ensure non-discriminatory access to the corridor and shall be the appeal bodies provided under Article 30(2) of that Directive. They shall exchange the necessary information obtained from infrastructure managers and other relevant parties.

2.   In the event of a complaint to a regulatory body from an applicant regarding international rail freight services, or within the framework of an own-initiative investigation by a regulatory body, this regulatory body shall consult the regulatory bodies of all other Member States through which the international train path for freight train concerned runs and request all necessary information from them before taking its decision.

3.   The regulatory bodies consulted under paragraph 2 shall provide all the information that they themselves have the right to request under their national legislation to the regulatory body concerned. This information may only be used for the purpose of the handling of the complaint or the investigation referred to in paragraph 2.

4.   The regulatory body receiving the complaint or having initiated the own-initiative investigation shall transfer relevant information to the regulatory body responsible in order for that body to take measures regarding the parties concerned.

5.   Any associated representatives of infrastructure managers as referred to in Article 15(1) of Directive 2001/14/EC shall ensure provision, without delay, of all the information necessary for the purpose of the handling of the complaint or the investigation referred to in paragraph 2 of this Article and requested by the regulatory body of the Member State in which the associated representative is located. This regulatory body shall be entitled to transfer such information regarding the international train path concerned to the regulatory bodies mentioned in paragraph 2 of this Article.

CHAPTER V

FINAL PROVISIONS

Article 19

Committee procedure

1.   The Commission shall be assisted by the Committee referred to in Article 11a of Directive 91/440/EEC.

2.   Where reference is made to this paragraph, Articles 3 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

3.   Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.

Article 20

Exercise of the delegation

1.   The power to adopt the delegated acts referred to in Article 4(8) shall be conferred on the Commission for a period of five years following the entry into force of this Regulation. The Commission shall make a report in respect of the delegated powers at the latest six months before the end of the five year period. The delegation of power shall be automatically extended for periods of an identical duration, unless the European Parliament or the Council revokes it in accordance with Article 21.

2.   As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

3.   The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in Articles 21 and 22.

Article 21

Revocation of the delegation

1.   The delegation of power referred to in Article 20 may be revoked by the European Parliament or by the Council.

2.   The institution which has commenced an internal procedure for deciding whether to revoke the delegation of power shall inform the other institution and the Commission at the latest one month before the final decision is taken, stating the delegated powers which could be subject to revocation and the reasons for a revocation.

3.   The decision of revocation shall put an end to the delegation of the powers specified in that decision. It shall take effect immediately or at a later date specified therein. It shall not affect the validity of the delegated acts already in force. It shall be published in the Official Journal of the European Union.

Article 22

Objections to delegated acts

1.   The European Parliament or the Council may object to the delegated act within a period of three months from the date of notification.

2.   If, on expiry of that period, neither the European Parliament nor the Council has objected to the delegated act, or if, before that date, the European Parliament and the Council have both informed the Commission that they have decided not to raise objections, the delegated act shall enter into force at the date stated therein.

3.   If the European Parliament or the Council objects to the delegated act, it shall not enter into force. The institution which objects shall state the reasons for objecting to the delegated act.

Article 23

Monitoring implementation

Every two years from the time of the establishment of a freight corridor, the executive board referred to in Article 7(1) shall present to the Commission the results of the implementation plan for that corridor. The Commission shall analyse those results and notify the Committee referred to in Article 19 of its analysis.

Article 24

Report

The Commission shall periodically examine the application of this Regulation. It shall submit a report to the European Parliament and the Council, for the first time by … (11), and every three years thereafter.

Article 25

Transitional measures

This Regulation shall not apply to the Republic of Cyprus and Malta for as long as no railway system is established within their territory.

Article 26

Entry into force

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

Article 27

Publication

This Regulation shall be published in the Official Journal of the European Union.

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(1)  OJ C 317, 23.12.2009, p. 94.

(2)  OJ C 79, 27.3.2010, p. 45.

(3)  Opinion of the European Parliament of 23 April 2009 (not yet published in the Official Journal), position of the Council of … (not yet published in the Official Journal) and position of the European Parliament of … (not yet published in the Official Journal).

(4)  OJ L 237, 24.8.1991, p. 25.

(5)  OJ L 75, 15.3.2001, p. 29.

(6)  OJ L 184, 17.7.1999, p. 23.

(7)  Three years after entry into force of this Regulation.

(8)  Five years after entry into force of this Regulation.

(9)  Two years after entry into force of this Regulation.

(10)  OJ L 191, 18.7.2008, p. 1.

(11)  Five years after entry into force of this Regulation.

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4.5.2010

EN

Official Journal of the European Union

CE 114/17

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POSITION (EU) No 3/2010 OF THE COUNCIL AT FIRST READING

with a view to the adoption of a Regulation of the European Parliament and of the Council laying down the obligations of operators who place timber and timber products on the market

Adopted by the Council on 1 March 2010

(Text with EEA relevance)

2010/C 114 E/02

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 192(1) thereof,

Having regard to the proposal from the European Commission,

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),

Whereas

(1)	Forests provide a broad variety of environmental, economic and social benefits including timber and non-timber forest products and environmental services.

(2)

Due to the growing demand for timber and timber products worldwide, in combination with the institutional and governance deficiencies that are present in the forest sector in a number of timber-producing countries, illegal logging and the associated trade have become matters of ever greater concern.

(3)

Illegal logging is a pervasive problem of major international concern. It poses a significant threat to forests as it contributes to the process of deforestation, which is responsible for about 20 % of CO2 emissions, threatens biodiversity, and undermines sustainable forest management and development including the commercial viability of operators acting in accordance with applicable legislation. In addition, it also has social, political and economic implications.

(4)

The Communication of the Commission to the European Parliament and to the Council of 21 May 2003 entitled ‘Forest Law Enforcement, Governance and Trade (FLEGT): Proposal for an EU Action Plan’ proposed a package of measures to support international efforts to tackle the problem of illegal logging and associated trade.

(5)	The European Parliament and the Council welcomed that Communication and recognised the need for the Union to contribute to global efforts to address the problem of illegal logging.

(6)

In accordance with the aim of that Communication, namely to ensure that only timber products which have been produced in accordance with the national legislation of the producing country enter the Union, the Union has been negotiating Voluntary Partnership Agreements (VPAs) with timber producing countries (partner countries), which create a legally binding obligation for the parties to implement a licensing scheme and to regulate trade in timber and timber products identified in those VPAs.

(7)

Given the major scale and urgency of the problem, it is necessary to actively support the fight against illegal logging and related trade, to complement and strengthen the VPA initiative and to improve synergies between policies aimed at the conservation of forests and the achievement of a high level of environmental protection, including combating climate change and biodiversity loss.

(8)

The efforts made by countries which have concluded FLEGT VPAs with the Union and the principles incorporated in them, in particular with regard to the definition of legally produced timber, should be recognised. It should be also taken into account that under the FLEGT licensing scheme only timber harvested in accordance with the relevant national legislation and timber products derived from such timber are exported into the Union. Therefore, timber embedded in timber products listed in Annexes II and III to Council Regulation (EC) No 2173/2005 of 20 December 2005 on the establishment of a FLEGT licensing scheme for imports of timber into the European Community (4), originating in partner countries listed in Annex I to Council Regulation (EC) No 2173/2005, should be considered to have been legally harvested provided those timber products comply with that Regulation and any implementing provisions.

(9)

Account should also be taken of the fact that the Convention on International Trade of Endangered Species of Fauna and Flora (CITES) places a requirement on parties to the Convention only to grant a CITES permit for export when a CITES-listed species has been harvested, inter alia, in compliance with national legislation in the exporting country. Therefore timber of species listed in Annexes A, B or C to Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein (5) should be considered to have been legally harvested provided it complies with that Regulation and any implementing provisions.

(10)	Taking into account the complexity of illegal logging as regards the underlying factors and the impacts, the incentives for illegal behaviour should be reduced by targeting the behaviour of operators.

(11)	In the absence of an internationally agreed definition, the legislation of the country where the timber was harvested should be the basis for defining what constitutes illegal logging.

(12)

Many timber products undergo numerous processes before and after they are placed on the market for the first time. In order to avoid imposing any unnecessary administrative burden, only those operators that place timber and timber products on the internal market for the first time, rather than all operators involved in the distribution chain, should be subject to the requirements laid down in this Regulation.

(13)	Bearing in mind that it would place a disproportionate burden on operators if they were required to provide information on the origin of timber in products made of recycled timber, such products should be excluded from the scope of this Regulation.

(14)

Operators placing timber and timber products for the first time on the internal market should exercise due diligence through a system of measures and procedures (due diligence system) to minimise the risk of placing illegally harvested timber and timber products derived from such timber on the internal market.

(15)

The due diligence system includes three elements inherent to risk management: access to information, risk assessment and mitigation of the risk identified. The due diligence system should provide access to information about the sources and suppliers of the timber and timber products being placed on the internal market for the first time, including relevant information such as compliance with the applicable legislation. On the basis of this information, operators should carry out a risk assessment. Where a risk is identified, operators should mitigate such risk in a manner proportionate to the risk identified, with a view to preventing illegally harvested timber and timber products derived from such timber from being placed on the market.

(16)	In order to avoid any undue administrative burden, operators already using systems or procedures which comply with the requirements of this Regulation should not be required to set up new systems.

(17)	In order to recognise good practice in the forestry sector, certification or other third party verified schemes that include verification of compliance with applicable legislation may be used in the risk assessment procedure.

(18)

The timber sector is of major importance for the economy of the Union. Organisations of operators are important actors in the sector as they represent the interests of the latter on a large scale and interact with a diverse range of stakeholders. Those organisations also have the expertise and capacity to analyse relevant legislation and facilitate the compliance of their members, but should not use this competence to dominate the market. In order to facilitate the implementation of this Regulation and to contribute to the development of good practices it is appropriate to recognise organisations which have developed due diligence systems meeting the requirements of this Regulation. A list of such recognised organisations should be made public in order to enable operators' use of such recognised monitoring organisations.

(19)

Competent authorities should monitor that operators effectively fulfil the obligations laid down in this Regulation. For that purpose the competent authorities should carry out official checks, as appropriate, which may include checks on the premises of the operator, and should be able to require operators to take remedial actions where necessary.

(20)	Competent authorities should keep records of the checks and the relevant information should be made available to any applicant in accordance with Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information (6).

(21)	Taking into account the international character of illegal logging and related trade, competent authorities should cooperate with each other and with the administrative authorities of third countries and the Commission.

(22)	Member States should ensure that infringements of this Regulation are sanctioned by effective, proportionate and dissuasive penalties.

(23)

The Commission should be empowered to adopt delegated acts in accordance with Article 290 of the Treaty on the Functioning of the European Union (TFEU) concerning the procedures for the recognition and withdrawal of recognition of monitoring organisations, concerning further relevant risk assessment criteria that may be necessary to supplement those already provided for in this Regulation and concerning the list of timber and timber products to which this Regulation applies. It is of particular importance that the Commission consult experts in the preparatory phase in accordance with the commitment of the Commission undertaken in the Communication of 9 December 2009 on the implementation of Article 290 of the TFEU.

(24)	The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (7).

(25)	Operators and competent authorities should be given a reasonable period in order to prepare themselves to meet the requirements of this Regulation.

(26)

Since the objective of this Regulation, namely the fight against illegal logging and related trade, cannot be achieved by the Member States individually and can therefore, by reason of its scale, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out on Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective,

HAVE ADOPTED THIS REGULATION:

Article 1

Subject matter

This Regulation lays down the obligations of operators who place timber and timber products on the internal market for the first time, to minimise the risk of placing illegally harvested timber or timber products derived from such timber on the market.

Article 2

Definitions

For the purposes of this Regulation, the following definitions shall apply:

(a)

‘timber and timber products’ means the timber and timber products set out in the Annex, with the exception of timber products derived from timber or from timber products which have already been placed on the market as well as timber products or components of such products manufactured from timber or timber products that have completed their life cycle and would otherwise be disposed of as waste;

(b)

‘placing on the market’ means the supply by any means, irrespective of the selling technique used, of timber or timber products, for the first time on the internal market for distribution or use in the course of a commercial activity, whether in return for payment or free of charge. It also includes the supply by means of distance communication as defined in Directive 97/7/ EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (8);

(c)	‘operator’ means any natural or legal person that places timber or timber products on the market;

(d)	‘country of harvest’ means the country or territory where the timber or the timber embedded in the timber products was harvested;

(e)	‘legally harvested’ means harvested in accordance with the applicable legislation in the country of harvest;

(f)	‘illegally harvested’ means harvested in contravention of the applicable legislation in the country of harvest;

(g)

‘applicable legislation’ means the legislation in force in the country of harvest covering the following matters: — rights to harvest timber within gazetted boundaries; — payments for harvest rights and timber including duties related to timber harvesting; — timber harvesting, including directly related environmental and forest legislation; — third parties' legal rights concerning use and tenure that is affected by timber harvesting; and — trade and customs legislation, in so far as the forest sector is concerned.

Article 3

Status of timber and timber products covered by FLEGT and CITES

Timber embedded in timber products listed in Annexes II and III to Regulation (EC) No 2173/2005 which originate in partner countries listed in Annex I of Regulation (EC) No 2173/2005 and which comply with that Regulation and its implementing provisions shall be considered to have been legally harvested for the purposes of this Regulation.

Timber of species listed in Annexes A, B or C to Regulation (EC) No 338/97 and which complies with that Regulation and its implementing provisions shall be considered to have been legally harvested for the purposes of this Regulation.

Article 4

Obligations of operators

1.   Operators shall exercise due diligence to minimise the risk of placing illegally harvested timber or timber products derived from such timber on the market. To that end, they shall use a framework of procedures and measures, hereinafter referred to as a ‘due diligence system’, as set out in Article 5.

2.   Each operator shall maintain and regularly evaluate the due diligence system which it uses, except where the operator makes use of a due diligence system established by a monitoring organisation referred to in Article 7.

Article 5

Due diligence systems

1.   The due diligence system referred to in Article 4(1) shall contain the following elements:

(a)

measures and procedures providing access to the following information concerning the operator's supply of timber or timber products placed on the market: — description, including the full scientific name or common name of tree species, trade name and type of product; — country of harvest, and where applicable sub-national region where the timber was harvested; — quantity (expressed in volume, weight or number of units); — name and address of the supplier to the operator; — documents or other information indicating compliance of those timber and timber products with the applicable legislation;

(b)

risk assessment procedures enabling the operator to analyse and evaluate the risk of illegally harvested timber or timber products derived from such timber being placed on the market. Such procedures shall take into account the information set out in point (a) as well as relevant risk assessment criteria, including: — assurance of compliance with applicable legislation, which may include certification or other third-party-verified schemes which cover compliance with applicable legislation; — prevalence of illegal harvesting of specific tree species; — prevalence of illegal harvesting or practices in the country of harvest and/or sub-national region where the timber was harvested; — complexity of the supply chain of timber products;

(c)

Except where the risk identified in course of the risk assessment procedures referred to in point (b) is negligible, risk mitigation procedures which consist of a set of measures and procedures that are adequate and proportionate to minimise effectively that risk and which may include requiring additional information or documents and/or requiring third party verification.

2.   Detailed rules necessary to ensure the uniform implementation of paragraph 1, except as regards further relevant risk assessment criteria referred to in the second paragraph of point (b) of paragraph 1 of this Article, shall be adopted in accordance with the regulatory procedure referred to in Article 16(2). Those rules shall be adopted by … (9).

3.   In order to take into account market developments and the experience gained in the implementation of this Regulation, in particular as identified through the reporting referred to in Article 18(3), the Commission may adopt delegated acts in accordance with Article 290 of the TFEU as regards further relevant risk assessment criteria that may be necessary to supplement those referred to in the second paragraph of point (b) of paragraph 1 of this Article. When adopting such delegated acts, the Commission shall act in accordance with the relevant provisions of this Regulation.

For the delegated acts referred to in this paragraph the procedures set out in Articles 13, 14 and 15 shall apply.

Article 6

Competent authorities

1.   Each Member State shall designate one or more competent authorities responsible for the application of this Regulation.

Member States shall inform the Commission of the names and addresses of the competent authorities by … (10). Member States shall inform the Commission of any changes to the names or addresses of the competent authorities.

2.   The Commission shall make publicly available, including on the Internet, a list of the competent authorities. The list shall be regularly updated.

Article 7

Monitoring organisations

1.   A monitoring organisation shall exercise the following functions:

(a)	maintain and regularly evaluate a due diligence system in accordance with Article 5 and grant operators the right to use it;

(b)	verify the proper use of its due diligence system by such operators;

(c)	take appropriate action in the event of failure by an operator to properly use its due diligence system, including notification of competent authorities in the event of serious or repeated failure by the operator.

2.   An organisation may apply for recognition as a monitoring organisation, if it complies with the following requirements:

(a)	it has legal personality and is legally established within the Union;

(b)	it has the capacity to exercise the functions referred to in paragraph 1; and

(c)	it carries out its functions in a manner that avoids conflicts of interest.

3.   An applicant that fulfils the requirements set out in paragraph 2 shall be recognised as a monitoring organisation, in one of the following ways:

(a)	the competent authority of a Member State shall recognise a monitoring organisation which intends to carry out its activities exclusively in that Member State, and thereafter without delay inform the Commission;

(b)	the Commission shall, after informing Member States, recognise a monitoring organisation which intends to carry out its activities in more than one Member State, or throughout the Union.

4.   The competent authorities shall carry out checks at regular intervals to verify that the monitoring organisations operating within the competent authorities' jurisdiction continue to fulfil the functions laid down in paragraph 1 and comply with the requirements laid down in paragraph 2.

5.   If a competent authority determines that a monitoring organisation that has been recognised by the Commission either no longer fulfils the functions laid down in paragraph 1 or no longer complies with the requirements laid down in paragraph 2, it shall without delay inform the Commission.

6.   The competent authorities or the Commission may withdraw a recognition when the competent authority or the Commission has determined that a monitoring organisation no longer fulfils the functions laid down in paragraph 1 or the requirements laid down in paragraph 2. The competent authority or the Commission may only withdraw a recognition that it has itself issued. Before withdrawal of a recognition, the Commission shall inform the Member States concerned. Member States shall inform the Commission of the withdrawal of a recognition.

7.   In order to supplement the procedural rules with regard to the recognition and withdrawal of recognition of monitoring organisations and, if experience so requires, to amend them, the Commission may adopt delegated acts in accordance with Article 290 of the TFEU. When adopting such delegated acts, the Commission shall act in accordance with the relevant provisions of this Regulation.

For the delegated acts referred to in this paragraph the procedures set out in Articles 13, 14 and 15 shall apply. Those acts shall be adopted by … (11).

8.   Detailed rules concerning the frequency and the nature of the checks referred to in paragraph 4, necessary to ensure the uniform implementation of that paragraph, shall be adopted in accordance with the regulatory procedure referred to in Article 16(2). Those rules shall be adopted by … (11).

Article 8

List of monitoring organisations

The Commission shall publish the list of the monitoring organisations in the Official Journal of the European Union, C series, and shall make it available on its website. The list shall be regularly updated.

Article 9

Checks on operators

1.   The competent authorities shall carry out checks to verify if operators comply with the requirements set out in Articles 4 and 5.

2.   Operators shall offer all assistance necessary to facilitate the performance of the checks referred to in paragraph 1.

3.   Where, following the checks referred to in paragraph 1, shortcomings have been detected, the competent authorities may issue a notice of remedial actions to be taken by the operator. Any failure by the operator to take such remedial action may give rise to penalties in accordance with Article 17.

Article 10

Records of checks

1.   The competent authorities shall keep records of the checks referred to in Article 9(1), indicating in particular their nature and results, as well as of any notice of remedial actions issued under Article 9(3). Records of all checks shall be kept for at least 5 years.

2.   The information referred to in paragraph 1 shall be made available to any applicant in accordance with Directive 2003/4/EC.

Article 11

Cooperation

1.   Competent authorities shall cooperate with each other, with the administrative authorities of third countries and with the Commission in order to ensure compliance with this Regulation.

2.   The competent authorities shall exchange information on serious shortcomings detected through the checks referred to in Articles 7(4) and 9(1) and on the types of penalties imposed in accordance with Article 17 with the competent authorities of other Member States and with the Commission.

Article 12

Amendments of the Annex

In order to take into account the experience gained in implementation of this Regulation, in particular as identified through the reporting referred to in Article 18(3), and developments with regard to technical characteristics, end-users and production processes of timber and timber products, the Commission may adopt delegated acts in accordance with Article 290 of the TFEU by amending and supplementing the list of timber and timber products set out in the Annex. Such acts shall not create a disproportionate burden on operators. When adopting such delegated acts, the Commission shall act in accordance with the relevant provisions of this Regulation.

For the delegated acts referred to in this Article the procedures set out in Articles 13, 14 and 15 shall apply.

Article 13

Exercise of the delegation

1.   The powers to adopt the delegated acts referred to in Articles 5(3), 7(7) and 12 shall be conferred on the Commission for a period of seven years following the entry into force of this Regulation. The Commission shall make a report in respect of the delegated powers at the latest three months before the end of a three-year period after the date of application of this Regulation. The delegation of power shall be automatically extended for periods of an identical duration, unless the European Parliament or the Council revokes it in accordance with Article 14.

2.   As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

3.   The powers to adopt delegated acts are conferred on the Commission subject to the conditions laid down in Articles 14 and 15.

Article 14

Revocation of the delegation

1.   The delegation of power referred to in Articles 5(3), 7(7) and 12 may be revoked by the European Parliament or by the Council.

2.   The institution which has commenced an internal procedure for deciding whether to revoke the delegation of power shall inform the other legislator and the Commission at the latest one month before the final decision is taken, stating the delegated powers which could be subject to revocation and the reasons for the revocation.

3.   The decision of revocation shall put an end to the delegation of the powers specified in that decision. It shall take effect immediately or at a later date specified therein. It shall not affect the validity of the delegated acts already in force. It shall be published in the Official Journal of the European Union.

Article 15

Objections to delegated acts

1.   The European Parliament and the Council may object to the delegated act within a period of three months from the date of notification.

2.   If, on expiry of that period, neither the European Parliament nor the Council has objected to the delegated act, or if, before that date, the European Parliament and the Council have both informed the Commission that they have decided not to raise objections, the delegated act shall enter into force at the date stated in its provisions.

3.   If the European Parliament or the Council objects to the adopted delegated act, the act shall not enter into force. The institution which objects shall state its reasons for objecting to the delegated act.

Article 16

Committee

1.   The Commission shall be assisted by the Forest Law Enforcement Governance and Trade (FLEGT) Committee established under Article 11 of Regulation (EC) No 2173/2005.

2.   Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

Article 17

Penalties

The Member States shall lay down the rules on penalties applicable to infringements of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive. The Member States shall notify those provisions to the Commission and shall notify it without delay of any subsequent amendments affecting them.

Article 18

Reporting

1.   Member States shall submit to the Commission, by 30 April of every second year following the date of application of this Regulation, a report on the application of this Regulation during the previous two years.

2.   On the basis of those reports the Commission shall draw up a report to be submitted to the European Parliament and to the Council every two years.

3.   By … (12) and every six years thereafter, the Commission shall, on the basis of reporting on and experience with the application of this Regulation, review the functioning and effectiveness of this Regulation, in particular with respect to administrative consequences for small and medium-sized enterprises and product coverage. The reports may be accompanied, if necessary, by appropriate legislative proposals.

Article 19

Entry into force and application

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

It shall apply as from … (13). However, Articles 5(2), 6(1), 7(7) and 7(8) shall apply as from the date of entry into force of this Regulation.

Article 20

Publication

This Regulation shall be published in the Official Journal of the European Union.

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(1)  OJ C 318, 23.12.2009, p. 88.

(2)  OJ C , p.

(3)  Position of the European Parliament of 22 April 2009 (not yet published in the Official Journal) and Council Position of … (not yet published in the Official Journal).

(4)  OJ L 347, 30.12.2005, p. 1.

(5)  OJ L 61, 3.3.1997, p. 1.

(6)  OJ L 41, 14.2.2003, p. 26.

(7)  OJ L 184, 17.7.1999, p. 23.

(8)  OJ L 144, 4.6.1997, p. 19.

(9)  18 months after the date of entry into force of this Regulation.

(10)  Six months after the entry into force of this Regulation.

(11)  18 months after the date of entry into force of this Regulation.

(12)  36+30 months after the date of entry into force of this Regulation.

(13)  30 months after the date of entry into force of this Regulation.

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