22.11.2016   

EN

Official Journal of the European Union

C 430/1

(1)

Council Regulation (EEC) No 1192/69 (4) allows Member States to compensate 40 enumerated railway undertakings for the payment of obligations which undertakings of other transport modes do not have to support. The correct application of the rules for normalisation results in the exemption of Member States from State aid notification obligations.

(2)

A series of Union legal acts has been adopted opening up the rail freight and international rail passenger markets to competition and establishing, in the case of Directive 2012/34/EU of the European Parliament and of the Council (5), certain fundamental principles, which include: that railway undertakings are to be managed in accordance with the principles that apply to commercial companies; that entities responsible for the allocation of capacity and charging for rail infrastructure are to be separate from entities which operate rail services, and that there is to be a separation of accounts; that any railway undertaking licensed in accordance with Union criteria is to have access to railway infrastructure on a fair and non-discriminatory basis; and that infrastructure managers may benefit from State financing.

(3)

Regulation (EEC) No 1192/69 is inconsistent and incompatible with legislative measures currently in force. In particular, in the context of a liberalised market, where railway undertakings compete directly with the enumerated railway undertakings, it is no longer appropriate to treat those two groups differently from one another.

(4)

In order to eliminate inconsistencies in the Union legal order and with a view to contributing to simplification by eliminating a legal act which has become obsolete, it is therefore appropriate to repeal Regulation (EEC) No 1192/69.

(5)

Member States may pay compensation for the costs of crossing facilities on the basis of Article 8 of Directive 2012/34/EU. They may, nevertheless, need time to amend their national law and administrative provisions to take account of the repeal of Regulation (EEC) No 1192/69. As a consequence, this repeal should not take immediate effect for cases covered by Annex IV to Regulation (EEC) No 1192/69,

22.11.2016   

EN

Official Journal of the European Union

C 430/3

1.

On 30 January 2013, the Commission transmitted to the Council a proposal for a Regulation of the European Parliament and of the Council repealing Regulation (EEC) No 1192/69 of the Council on common rules for the normalisation of the accounts of railway undertakings (1).

2.

This proposal was presented as a part of the so-called Fourth Railway Package together with five other proposals. For the negotiations the proposals were handled in two groups, a technical pillar and a market pillar. This proposal is part of the market pillar.

3.

The European Economic and Social Committee adopted its opinion on the proposal on 10 July 2013. The Committee of the Regions adopted its opinion on 8 October 2013.

4.

The European Parliament adopted its opinion at first reading on 26 February 2014.

5.

On 3 December 2014, the Council (Transport, Telecommunications and Energy) reached an agreement (the ‘general approach’) (2) on the proposal repealing Regulation 1192/69.

6.

On 19 April 2016, an agreement was reached with the European Parliament on a compromise text.

7.

On 20 September 2016, the Council adopted a political agreement (3) on the compromise text.

8.

Taking into account the agreements referred to above and following legal-linguistic revision, the Council adopted its position at first reading on 17 October 2016, in accordance with the ordinary legislative procedure laid down in Article 294 of the Treaty on the Functioning of the European Union.

9.

The sole objective of the proposal is to repeal an outdated regulation which was adopted when organisations providing railway services fulfilled certain responsibilities of the public sector. The regulation provided the framework for compensation of the costs and benefits arising from such responsibilities.

10.

The Council considers that Regulation (EEC) 1192/69 is no longer compatible with the modern organisation of the railway sector. However, the Council is aware that the Regulation is still used, notably for compensation of costs relating to certain level-crossing facilities. A transitional period for the compensation of level-crossing costs is therefore justified with a view to a smooth transition to the new system.

11.

The Council's position at first reading reflects the compromise agreed between the Council and the European Parliament, with the support of the Commission.

12.

This compromise was confirmed by a letter from the Chair of the European Parliament's Committee on Transport and Tourism addressed to the Chair of the Permanent Representatives Committee (Part 1) on 13 July 2016.

13.

The position of the Council takes full account of the Commission proposal and the amendments proposed by the European Parliament at first reading. The Council therefore believes that its position at first reading represents a balanced compromise.

22.11.2016   

EN

Official Journal of the European Union

C 430/4

(1)

Rail transport has the potential to grow and increase its modal share and to play a major role in a sustainable transport and mobility system, creating new investment opportunities and jobs. However, the growth of passenger transport services by rail has not kept pace with the evolution of other modes of transport.

(2)

The Union market for international passenger transport services by rail has been open to competition since 2010. In addition, some Member States have opened their domestic passenger services to competition, by introducing open access rights, or tendering for public service contracts, or both. The opening of the market for domestic passenger services by rail should have a positive impact on the functioning of the Single European Railway area, leading to better services for users.

(3)

In its White Paper on transport of 28 March 2011 the Commission announced its intention to complete the internal market for rail services, abolishing technical, administrative and legal obstacles which impede entry to the railway market.

(4)

The completion of the Single European Railway Area should further the development of rail transport as a credible alternative to other modes of transport, inter alia in terms of price and quality.

(5)

A specific objective of this Regulation is to enhance the quality, transparency, efficiency and performance of public passenger transport services by rail.

(6)

Services at cross-border level provided under public services contracts, including public transport services covering local and regional transport needs, should be subject to the agreement of the competent authorities of the Member States on whose territory the services are provided.

(7)

Competent authorities should define specifications of public service obligations in public passenger transport. Such specifications should be consistent with the policy objectives as stated in public transport policy documents in the Member States.

(8)

Specifications of public service obligations in public passenger transport should, where possible, generate positive network effects, inter alia in terms of improved quality of services, social and territorial cohesion or the overall efficiency of the public transport system.

(9)

Public service obligations should be in line with public transport policy. However, this does not entitle the competent authorities to receive a specific amount of funding.

(10)

When preparing public transport policy documents, relevant stakeholders should be consulted in accordance with national law. Those stakeholders might include transport operators, infrastructure managers, employee organisations and representatives of users of public transport services.

(11)

For public service contracts that are not awarded on the basis of a competitive tendering procedure, the fulfilment of public service obligations by the public service operators should be appropriately compensated in order to ensure the long-term financial sustainability of public passenger transport services in accordance with the requirements laid down in public transport policy. In particular, such compensation should promote the maintenance or development of effective management by the public service operator and the provision of passenger transport services of a sufficiently high standard.

(12)

Within the framework of establishing the Single European Railway Area, Member States should ensure an adequate level of social protection for the staff of public service operators.

(13)

With a view to an appropriate integration of social and labour requirements into procedures for the award of public service contracts for public passenger transport services public service operators should, in the performance of public service contracts, comply with obligations in the field of social and labour law that apply in the Member State where the public service contract is awarded and that result from laws, regulations and decisions, at both national and Union level, as well as from applicable collective agreements, provided that such national rules, and their application, comply with Union law.

(14)

Where Member States require staff taken on by the previous operator to be transferred to the newly selected public service operator, such staff should be granted the rights to which they would have been entitled if there had been a transfer within the meaning of Council Directive 2001/23/EC (4). Member States should be free to adopt such provisions.

(15)

Competent authorities should make available to all interested parties relevant information for the preparation of offers under competitive tendering procedures, while ensuring the legitimate protection of confidential business information.

(16)

The obligation of a competent authority to provide all interested parties with information essential for the preparation of an offer under a competitive tendering procedure should not extend to the creation of additional information where such information does not exist.

(17)

In order to take into account the diversity in the territorial and political organisation of Member States, a public service contract may be awarded by a competent authority that consists of a group of public authorities. In such circumstances, there should be clear rules setting the respective roles of each of the public authorities in the awarding process of the public service contract.

(18)

Considering the diversity of administrative structures in Member States, in the case of contracts for the provision of public passenger transport services by rail directly awarded by a group of competent local authorities, the determination which local authorities are competent regarding ‘urban agglomerations’ and ‘rural areas’ remains at the discretion of the Member States.

(19)

Public service contracts for public passenger transport services by rail should be awarded on the basis of a competitive tendering procedure, except for those cases set out in this Regulation.

(20)

Procedures for competitive tendering of public service contracts should be open to all operators, should be fair and should respect the principles of transparency and non-discrimination.

(21)

In exceptional circumstances, where public service contracts for public passenger transport services by rail are awarded on the basis of a competitive tendering procedure, new contracts may temporarily be directly awarded in order to ensure that services are delivered in the most cost-effective way. Such contracts should not be renewed to cover the same or similar public service obligations.

(22)

Where only one operator expresses interest following the publication of the intention to organise a competitive tendering procedure, competent authorities may enter into negotiations with that operator to award the contract without further publication of an open tendering procedure.

(23)

The de minimis thresholds for directly awarded public service contracts should be adapted to reflect the higher volumes and unit costs in public passenger transport services by rail compared to other modes of transport covered by Regulation (EC) No 1370/2007 of the European Parliament and of the Council (5). Higher thresholds should also apply to public passenger transport services where rail represents more than 50 % of the value of the services in question.

(24)

The establishment of the Single European Railway Area requires common rules on the award of public service contracts in this sector, whilst taking into account the specific circumstances of each Member State.

(25)

Where certain conditions related to the nature and structure of the railway market or the railway network are fulfilled, competent authorities should be entitled to award public service contracts for public passenger transport services by rail directly where such a contract would result in an improvement in the quality of services or cost-efficiency, or both.

(26)

Competent authorities may take measures to increase competition between railway undertakings by limiting the number of contracts that they award to one railway undertaking.

(27)

Member States should ensure that their legal systems provide for the possibility to assess decisions of the competent authority to award public service contracts for public passenger transport services by rail directly on a performance-based approach by an independent body. This might be done as part of a judicial review.

(28)

When preparing competitive tendering procedures, competent authorities should assess whether measures are necessary to ensure effective and non-discriminatory access to suitable rail rolling stock. Competent authorities should make the assessment report publicly available.

(29)

Certain key features of upcoming competitive tendering procedure for public service contracts need to be fully transparent to enable a better organised market response.

(30)

Regulation (EC) No 1370/2007 should therefore be amended accordingly,

(1)

In Article 1(2), the following subparagraph is added:

‘Subject to agreement of the competent authorities of the Member States on whose territory the services are provided, public service obligations may concern public transport services at cross-border level, including those covering local and regional transport needs.’.

(2)

In Article 2 the following point is inserted:

(3)

The following Article is inserted:

‘Article 2a

Specification of public service obligations

1.   The competent authority shall lay down specifications for public service obligations in the provision of public passenger transport services and the scope of their application in accordance with Article 2(e). This includes the possibility to group cost-covering services with non-cost-covering services.

When laying down those specifications and the scope of their application, the competent authority shall duly respect the principle of proportionality, in accordance with Union law.

The specifications shall be consistent with the policy objectives stated in public transport policy documents in the Member States.

The content and format of public transport policy documents and the procedures for consulting relevant stakeholders shall be determined in accordance with national law.

2.   The specifications of the public service obligations and the related compensation of the net financial effect of public service obligations shall:

(4)

Article 4 is amended as follows:

(5)

Article 5 is amended as follows:

(6)

The following Article is inserted:

‘Article 5a

Rail rolling stock

1.   With a view to launching a competitive tendering procedure, competent authorities shall assess whether measures are necessary to ensure effective and non-discriminatory access to suitable rolling stock. This assessment shall take into account the presence of rolling stock leasing companies, or of other market actors providing for the leasing of rolling stock, in the relevant market. The assessment report shall be made publicly available.

2.   Competent authorities may decide, in accordance with national law and in compliance with State aid rules, to take appropriate measures to ensure effective and non-discriminatory access to suitable rolling stock. Such measures may include:

3.   If the rolling stock is made available to a new public transport operator, the competent authority shall include in the tender documents any available information about the cost of maintenance of the rolling stock and about its physical condition.’.

(7)

In Article 6, paragraph 1 is replaced by the following:

‘1.   All compensation connected with a general rule or a public service contract shall comply with Article 4, irrespective of how the contract was awarded. All compensation of whatever nature connected with a public service contract not awarded according to Article 5(1), (3) or (3b) or connected with a general rule shall also comply with the provisions laid down in the Annex.’.

(8)

Article 7 is amended as follows:

(9)

Article 8 is amended as follows:

22.11.2016   

EN

Official Journal of the European Union

C 430/13

1.

On 30 January 2013, the Commission transmitted to the Council a proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1370/2007 concerning the opening of the market for domestic passenger transport services by rail (1).

2.

This proposal was presented as a part of the so-called Fourth Railway Package together with five other proposals. For the negotiations, the proposals were handled in two groups, a technical pillar and a market pillar. This proposal is part of the market pillar.

3.

The European Economic and Social Committee adopted its opinion on the proposal on 10 July 2013. The Committee of the Regions adopted its opinion on 8 October 2013.

4.

The European Parliament adopted its opinion at first reading on 26 February 2014.

5.

On 8 October 2015, the Council (Transport, Telecommunications and Energy) reached an agreement (the ‘general approach’) (2) on the proposal relating to domestic passenger transport services.

6.

On 19 April 2016, an agreement was reached with the European Parliament on a compromise text.

7.

On 20 September 2016, the Council adopted a political agreement (3) on the compromise text.

8.

Taking into account the agreements referred to above and following legal-linguistic revision, the Council adopted its position at first reading on 17 October 2016, in accordance with the ordinary legislative procedure laid down in Article 294 of the Treaty on the Functioning of the European Union.

9.

The main objectives of the proposal are to improve the quality of domestic rail passenger transport services in cases where such services are offered as a public service and to enhance the operational efficiency of these services.

10.

The Council considers that competitive tendering should be the preferred option when public passenger services by rail are procured. However, the size, organisation and many other characteristics of the rail passenger service markets vary widely across the Member States. Therefore, to effectively attain the main objectives of the proposal, derogations to the principle of competitive tendering, i.e. direct awards, should be allowed in certain cases and subject to specified conditions.

11.

The Council considers that the direct award of a contract based on the performance of the service provision is justified in certain conditions as it would fulfil the objectives of this proposal effectively and efficiently. Provided they ensure that the process is transparent, the competent authorities should be allowed to award such contracts. Those contracts should define the objectives in line with the Regulation and the necessary indicators to monitor these objectives.

12.

There are also other cases, such as emergencies, low values of contracts or transitional situations between competitive awards, where direct awards are appropriate and where they should be allowed, subject to specified conditions.

13.

Furthermore, competent authorities have signed ongoing contracts on the provision of rail passenger services with railway undertakings. A reasonable transitional period is necessary to ensure legal certainty, to avoid such contracts being breached or compensation being required for their premature termination.

14.

Appropriate access to rail rolling stock is needed for the provision of passenger transport services, to ensure fair competition. The competent authorities should assess whether rail rolling stock is available on their market. While complying with the rules on state aid, they should be allowed to take measures to facilitate the provision of rolling stock, if necessary.

15.

The Council's position at first reading reflects the compromise agreed between the Council and the European Parliament, with the support of the Commission.

16.

This compromise was confirmed by a letter from the Chair of the European Parliament's Committee on Transport and Tourism addressed to the Chair of the Permanent Representatives Committee (Part 1) on 13 July 2016.

17.

The position of the Council takes full account of the Commission proposal and the amendments proposed by the European Parliament at first reading. The Council therefore believes that its position at first reading represents a major step forward towards improving the quality and efficiency of provision of rail passenger transport services.