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Document 02012L0034-20190101
Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area (recast) (Text with EEA relevance)Text with EEA relevance
Consolidated text: Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area (recast) (Text with EEA relevance)Text with EEA relevance
Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area (recast) (Text with EEA relevance)Text with EEA relevance
02012L0034 — EN — 01.01.2019 — 003.001
This text is meant purely as a documentation tool and has no legal effect. The Union's institutions do not assume any liability for its contents. The authentic versions of the relevant acts, including their preambles, are those published in the Official Journal of the European Union and available in EUR-Lex. Those official texts are directly accessible through the links embedded in this document
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DIRECTIVE 2012/34/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 21 November 2012 establishing a single European railway area (recast) (OJ L 343 14.12.2012, p. 32) |
Amended by:
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Official Journal |
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No |
page |
date |
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DIRECTIVE (EU) 2016/2370 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 14 December 2016 |
L 352 |
1 |
23.12.2016 |
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COMMISSION DELEGATED DECISION (EU) 2017/2075 of 4 September 2017 |
L 295 |
69 |
14.11.2017 |
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Corrected by:
DIRECTIVE 2012/34/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 21 November 2012
establishing a single European railway area
(recast)
(Text with EEA relevance)
CHAPTER I
GENERAL PROVISIONS
Article 1
Subject-matter and scope
This Directive lays down:
the rules applicable to the management of railway infrastructure and to rail transport activities of the railway undertakings established or to be established in a Member State as set out in Chapter II;
the criteria applicable to the issuing, renewal or amendment of licences by a Member State intended for railway undertakings which are or will be established in the Union as set out in Chapter III;
the principles and procedures applicable to the setting and collecting of railway infrastructure charges and the allocation of railway infrastructure capacity as set out in Chapter IV.
Article 2
Exclusions from the scope
Notwithstanding the first subparagraph, when such a railway undertaking is under the direct or indirect control of an undertaking or another entity performing or integrating rail transport services other than urban, suburban or regional services, Articles 4 and 5 shall apply. Article 6 shall also apply to such a railway undertaking with regard to the relationship between the railway undertaking and the undertaking or entity which controls it directly or indirectly.
Member States may exclude the following from the application of Chapter III:
undertakings which only operate rail passenger services on local and regional stand-alone railway infrastructure;
undertakings which only operate urban or suburban rail passenger services;
undertakings which only operate regional rail freight services;
undertakings which only operate freight services on privately owned railway infrastructure that exists solely for use by the infrastructure owner for its own freight operations.
Member States may exclude the following from the application of Articles 7, 7a, 7b, 7c, 7d, 8 and 13 and Chapter IV:
local and regional stand-alone networks for passenger services on railway infrastructure;
networks intended only for the operation of urban or suburban rail passenger services;
regional networks which are used for regional freight services solely by a railway undertaking that is not covered under paragraph 1 until capacity on that network is requested by another applicant;
privately owned railway infrastructure that exists solely for use by the infrastructure owner for its own freight operations.
Local, low-traffic lines of a length not exceeding 100 km that are used for freight traffic between a mainline and points of origin and destination of shipments along those lines, provided that those lines are managed by entities other than the main infrastructure manager and that either (a) those lines are used by a single freight operator or (b) the essential functions in relation to those lines are performed by a body which is not controlled by any railway undertaking. Where there is only a single freight operator, Member States may also exempt it from the application of Chapter IV until capacity is requested by another applicant. This paragraph can equally be applied where the line is used also, to a limited extent, for passenger services. Member States shall inform the Commission of their intention to exclude such lines from the application of Articles 7, 7a, 7b, 7c, 7d and 8.
Regional low-traffic networks managed by an entity other than the main infrastructure manager and used for the operation of regional passenger services provided by a single railway undertaking other than the incumbent railway undertaking of the Member State, until capacity for passenger services on that network is requested, and provided that the undertaking is independent of any railway undertaking operating freight services. This paragraph can equally be applied where the line is used also, to a limited extent, for freight services. Member States shall inform the Commission of their intention to exclude such lines from the application of Articles 7, 7a, 7b, 7c and 7d.
Such exemptions may be renewed for periods not exceeding 5 years. No later than 12 months before the expiry date of the exemption, a Member State that intends to renew an exemption shall notify the Commission of its intention to do so. The Commission shall examine whether the conditions for an exemption set out in the first subparagraph are still met. If that is not the case, the Commission shall adopt implementing acts setting out its decision on the termination of the exemption. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 62(2).
Article 3
Definitions
For the purpose of this Directive, the following definitions apply:
'railway undertaking' means any public or private undertaking licensed according to this Directive, the principal business of which is to provide services for the transport of goods and/or passengers by rail with a requirement that the undertaking ensure traction; this also includes undertakings which provide traction only;
‘infrastructure manager’ means any body or firm responsible for the operation, maintenance and renewal of railway infrastructure on a network, as well as responsible for participating in its development as determined by the Member State within the framework of its general policy on development and financing of infrastructure;
‘development of the railway infrastructure’ means network planning, financial and investment planning as well as the building and upgrading of the infrastructure;
‘operation of the railway infrastructure’ means train path allocation, traffic management and infrastructure charging;
‘maintenance of the railway infrastructure’ means works intended to maintain the condition and capability of existing infrastructure;
‘renewal of the railway infrastructure’ means major substitution works on the existing infrastructure which do not change its overall performance;
‘upgrade of the railway infrastructure’ means major modification works to the infrastructure which improve its overall performance;
‘essential functions’ of infrastructure management means decision-making concerning train path allocation, including both the definition and the assessment of availability and the allocation of individual train paths, and decision-making concerning infrastructure charging, including determination and collection of charges, in accordance with the charging framework and the capacity allocation framework established by the Member States pursuant to Articles 29 and 39;
'railway infrastructure' means the items listed in Annex I;
'international freight service' means a transport service where the train crosses at least one border of a Member State; the train may be joined and/or split and the different sections may have different origins and destinations, provided that all wagons cross at least one border;
'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;
'urban and suburban services' means transport services whose principal purpose is to meet the transport needs of an urban centre or conurbation, including a cross-border conurbation, together with transport needs between such a centre or conurbation and surrounding areas;
'regional services' means transport services whose principal purpose is to meet the transport needs of a region, including a cross-border region;
'transit' means crossing territory of the Union without loading or unloading goods, and/or without picking up passengers or setting them down in territory of the Union;
'alternative route' means another route between the same origin and destination where there is substitutability between the two routes for the operation of the freight or passenger service concerned by the railway undertaking;
'viable alternative' means access to another service facility which is economically acceptable to the railway undertaking, and allows it to operate the freight or passenger service concerned;
'service facility' means the installation, including ground area, building and equipment, which has been specially arranged, as a whole or in part, to allow the supply of one or more services referred to in points 2 to 4 of Annex II;
'operator of service facility' means any public or private entity responsible for managing one or more service facilities or supplying one or more services to railway undertakings referred to in points 2 to 4 of Annex II;
'cross-border agreement' means any agreement between two or more Member States or between Member States and third countries intended to facilitate the provision of cross-border rail services;
'licence' means an authorisation issued by a licensing authority to an undertaking, by which its capacity to provide rail transport services as a railway undertaking is recognised; that capacity may be limited to the provision of specific types of services;
'licensing authority' means the body responsible for granting licences within a Member State;
'contractual agreement' means an agreement or, mutatis mutandis, an arrangement within the framework of administrative measures;
'reasonable profit' means a rate of return on own capital that takes account of the risk, including that to revenue, or the absence of such risk, incurred by the operator of the service facility and is in line with the average rate for the sector concerned in recent years;
'allocation' means the allocation of railway infrastructure capacity by an infrastructure manager;
'applicant' means a railway undertaking or an international grouping of railway undertakings or other persons or legal entities, such as competent authorities under Regulation (EC) No 1370/2007 and shippers, freight forwarders and combined transport operators, with a public-service or commercial interest in procuring infrastructure capacity;
'congested infrastructure' means an element of infrastructure for which demand for infrastructure capacity cannot be fully satisfied during certain periods even after coordination of the different requests for capacity;
'capacity-enhancement plan' means a measure or series of measures with a calendar for their implementation which aim to alleviate the capacity constraints which led to the declaration of an element of infrastructure as 'congested infrastructure';
'coordination' means the process through which the infrastructure manager and applicants will attempt to resolve situations in which there are conflicting applications for infrastructure capacity;
'framework agreement' means a legally binding general agreement under public or private law, setting out the rights and obligations of an applicant and the infrastructure manager in relation to the infrastructure capacity to be allocated and the charges to be levied over a period longer than one working timetable period;
'infrastructure capacity' means the potential to schedule train paths requested for an element of infrastructure for a certain period;
'network' means the entire railway infrastructure managed by an infrastructure manager;
'network statement' means the statement which sets out in detail the general rules, deadlines, procedures and criteria for charging and capacity-allocation schemes, including such other information as is required to enable applications for infrastructure capacity;
'train path' means the infrastructure capacity needed to run a train between two places over a given period;
'working timetable' means the data defining all planned train and rolling-stock movements which will take place on the relevant infrastructure during the period for which it is in force;
'storage siding' means sidings specifically dedicated to temporary parking of railway vehicles between two assignments;
'heavy maintenance' means work that is not carried out routinely as part of day-to-day operations and requires the vehicle to be removed from service;
‘vertically integrated undertaking’ means an undertaking where, within the meaning of Council Regulation (EC) No 139/2004 ( 1 ):
an infrastructure manager is controlled by an undertaking which at the same time controls one or several railway undertakings that operate rail services on the infrastructure manager's network;
an infrastructure manager is controlled by one or several railway undertakings that operate rail services on the infrastructure manager's network; or
one or several railway undertakings that operate rail services on the infrastructure manager's network are controlled by an infrastructure manager.
It also means an undertaking consisting of distinct divisions, including an infrastructure manager and one or several divisions providing transport services that do not have a distinct legal personality.
Where an infrastructure manager and a railway undertaking are fully independent of each other, but both are controlled directly by a Member State without an intermediary entity, they are not considered to constitute a vertically integrated undertaking for the purposes of this Directive;
‘public private partnership’ means a binding arrangement between public bodies and one or more undertakings other than the main infrastructure manager of a Member State, under which the undertakings partially or totally construct and/or fund railway infrastructure, and/or acquire the right to exercise any of the functions listed in point (2) for a predefined period of time. The arrangement may take any appropriate legally binding form foreseen in national legislation;
‘management board’ means the senior body of an undertaking performing executive and administrative functions, which is responsible and accountable for day-to-day management of the undertaking;
‘supervisory board’ means the most senior body of an undertaking that fulfils supervisory tasks, including the exercise of control over the management board and general strategic decisions regarding the undertaking;
‘through ticket’ means a ticket or tickets representing a transport contract for successive railway services operated by one or more railway undertakings;
‘high speed passenger services’ means passenger rail services operated without intermediate stops between two places separated at least by a distance of more than 200 km on specially-built high-speed lines equipped for speeds generally equal or greater than 250 km/h and running on average at those speeds.
CHAPTER II
DEVELOPMENT OF THE UNION RAILWAYS
SECTION 1
Management independence
Article 4
Independence of railway undertakings and infrastructure managers
Article 5
Management of the railway undertakings according to commercial principles
Railway undertakings shall be managed according to the principles which apply to commercial companies, irrespective of their ownership. This shall also apply to the public service obligations imposed on them by Member States and to public service contracts which they conclude with the competent authorities of the State.
With reference to the general policy guidelines issued by each Member State and taking into account national plans and contracts (which may be multiannual) including investment and financing plans, railway undertakings shall, in particular, be free to:
establish their internal organisation, without prejudice to the provisions of Articles 7, 29 and 39;
control the supply and marketing of services and fix the pricing thereof;
take decisions on staff, assets and own procurement;
expand their market share, develop new technologies and new services and adopt any innovative management techniques;
establish new activities in fields associated with the railway business.
This paragraph is without prejudice to Regulation (EC) No 1370/2007.
SECTION 2
Separation of infrastructure management and transport operations and of different types of transport operations
Article 6
Separation of accounts
Article 7
Independence of the infrastructure manager
Member States shall ensure that none of the other legal entities within the vertically integrated undertaking has a decisive influence on the decisions taken by the infrastructure manager in relation to the essential functions.
Member States shall ensure that the members of the supervisory board and of the management board of the infrastructure manager and the managers directly reporting to them act in a non-discriminatory manner and that their impartiality is not affected by any conflict of interest.
Member States shall ensure that the same individuals cannot be concurrently appointed or employed:
as members of the management board of an infrastructure manager and as members of the management board of a railway undertaking;
as persons in charge of taking decisions on the essential functions and as members of the management board of a railway undertaking;
where a supervisory board exists, as members of the supervisory board of an infrastructure manager and as members of the supervisory board of a railway undertaking;
as members of the supervisory board of an undertaking which is part of a vertically integrated undertaking and which exercises control over both a railway undertaking and an infrastructure manager and as members of the management board of that infrastructure manager.
Article 7a
Independence of the essential functions
For the application of paragraph 1, Member States shall ensure in particular that:
a railway undertaking or any other legal entity does not exercise a decisive influence on the infrastructure manager in relation to the essential functions, without prejudice to the role of the Member States as regards the determination of the charging framework and the capacity allocation framework and specific charging rules in accordance with Articles 29 and 39;
a railway undertaking or any other legal entity within the vertically integrated undertaking has no decisive influence on appointments and dismissals of persons in charge of taking decisions on the essential functions;
the mobility of persons in charge of the essential functions does not create conflicts of interest.
Point (a) of Article 7(3) and Article 7(4) shall apply mutatis mutandis to the heads of divisions in charge of management of the infrastructure and provision of railway services.
Article 7b
Impartiality of the infrastructure manager in respect of traffic management and maintenance planning
The scheduling of maintenance works shall be carried out by the infrastructure manager in a non-discriminatory way.
Article 7c
Outsourcing and sharing the infrastructure manager's functions
Provided that no conflicts of interest arise and that the confidentiality of commercially sensitive information is guaranteed, the infrastructure manager may:
outsource functions to a different entity, provided the latter is not a railway undertaking, does not control a railway undertaking, or is not controlled by a railway undertaking. Within a vertically integrated undertaking, essential functions shall not be outsourced to any other entity of the vertically integrated undertaking, unless such entity exclusively performs essential functions;
outsource the execution of works and related tasks on development, maintenance and renewal of the railway infrastructure to railway undertakings or companies which control the railway undertaking, or are controlled by the railway undertaking.
The infrastructure manager shall retain the supervisory power over, and bear ultimate responsibility for, the exercise of the functions described in Article 3(2). Any entity carrying out essential functions shall comply with Articles 7, 7a, 7b and 7d.
That body shall monitor the execution of such agreements and may, where justified, advise that they should be terminated.
Article 7d
Financial transparency
Article 7e
Coordination mechanisms
Member States shall ensure that appropriate coordination mechanisms are put in place to ensure coordination between their main infrastructure managers and all interested railway undertakings as well as applicants referred to in Article 8(3). Where relevant, representatives of users of the rail freight and passenger transport services, and national, local or regional authorities, shall be invited to participate. The regulatory body concerned may participate as an observer. The coordination shall concern inter alia:
the needs of applicants related to the maintenance and development of the infrastructure capacity;
the content of the user-oriented performance targets contained in the contractual agreements referred to in Article 30 and of the incentives referred to in Article 30(1) and their implementation;
the content and implementation of the network statement referred to in Article 27;
issues of intermodality and interoperability;
any other issue related to the conditions for access, the use of the infrastructure and the quality of the services of the infrastructure manager.
The infrastructure manager shall draw up and publish guidelines for coordination, in consultation with interested parties. Coordination shall take place at least annually and the infrastructure manager shall publish on its website an overview of the activities undertaken pursuant to this article.
Coordination under this Article shall be without prejudice to the right of applicants to appeal to the regulatory body and the powers of the regulatory body as set out in Article 56.
Article 7f
European Network of Infrastructure Managers
With the view to facilitating the provision of efficient and effective rail services within the Union, Member States shall ensure that their main infrastructure managers participate and cooperate in a network, that meets at regular intervals to:
develop Union rail infrastructure;
support the timely and efficient implementation of the single European railway area;
exchange best practices;
monitor and benchmark performance;
contribute to the market monitoring activities referred to in Article 15;
tackle cross-border bottlenecks; and
discuss the application of Articles 37 and 40.
For the purpose of point (d), the network shall identify common principles and practices for the monitoring and benchmarking of performance in a consistent manner.
Coordination under this paragraph shall be without prejudice to the right of applicants to appeal to the regulatory body and the powers of the regulatory body as set out in Article 56.
SECTION 3
Improvement of the financial situation
Article 8
Financing of the infrastructure manager
Without prejudice to the possible long-term aim of user cover of infrastructure costs for all modes of transport on the basis of fair, non-discriminatory competition between the various modes, where rail transport is able to compete with other modes of transport, within the charging framework of Articles 31 and 32, a Member State may require the infrastructure manager to balance his accounts without State funding.
Article 9
Transparent debt relief
The balance sheet of the unit may be charged with all the loans raised by the railway undertaking, both to finance investment and to cover excess operating expenditure resulting from the business of rail transport or from railway infrastructure management, until such time as these loans are extinguished. Debts arising from subsidiaries' operations shall not be taken into account.
SECTION 4
Access to railway infrastructure and services
Article 10
Conditions of access to railway infrastructure
If a Member State, in accordance with this paragraph, intends to adopt a decision to limit the right of access, it shall submit the draft decision to the Commission and consult the other Member States.
If, within a period of 3 months after submitting that draft decision, neither the Commission nor another Member State objects to it, the Member State may adopt the decision.
The Commission may adopt implementing acts setting out the details of the procedure to be followed for the application of this paragraph. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 62(3).
▼M1 —————
Article 11
Limitation of the right of access and of the right to pick up and set down passengers
In order to determine whether the economic equilibrium of a public service contract would be compromised, the relevant regulatory body or bodies referred to in Article 55 shall make an objective economic analysis and base their decision on pre-determined criteria. They shall determine this after a request from any of the following, submitted within 1 month from the receipt of the information on the intended passenger service referred to in Article 38(4):
the competent authority or competent authorities that awarded the public service contract;
any other interested competent authority with the right to limit access under this Article;
the infrastructure manager;
the railway undertaking performing the public service contract.
The competent authorities and the railway undertakings providing the public services shall provide the relevant regulatory body or bodies with the information reasonably required to reach a decision. The regulatory body shall consider the information provided by these parties, and, as appropriate, shall ask for relevant information from, and initiate consultation with, all relevant parties, within one month of receipt of the request. The regulatory body shall consult all the relevant parties as appropriate, and shall inform the relevant parties of its reasoned decision within a pre-determined, reasonable time, and, in any case, within six weeks of receipt of all relevant information.
The regulatory body shall give the grounds for its decision and the conditions under which a reconsideration of the decision may be requested, within 1 month of its notification, by one of the following:
the relevant competent authority or competent authorities;
the infrastructure manager;
the railway undertaking performing the public service contract;
the railway undertaking seeking access.
Where the regulatory body decides that the economic equilibrium of a public contract would be compromised by the intended passenger service referred to in Article 38(4), it shall indicate possible changes to that service which would ensure that the conditions to grant the right of access provided for in Article 10(2) are met.
Based on the experience of regulatory bodies, competent authorities and railway undertakings, and based on the activities of the network referred to in Article 57(1), the Commission shall by 16 December 2018 adopt implementing acts setting out the details of the procedure and criteria to be followed for the application of paragraphs 1, 2 and 3 of this Article as regards domestic passenger services. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 62(3).
Member States may also limit the right of access to railway infrastructure for the purpose of operating domestic passenger services between a given place of departure and a given destination within the same Member State where:
exclusive rights to convey passengers between these stations have been granted under a public service contract awarded before 16 June 2015; or
an additional right/authorisation to operate commercial passenger services in competition with another operator between these stations has been awarded by 25 December 2018 on the basis of a fair competitive tendering procedure;
and where these operators receive no compensation to operate these services.
Such a limitation may continue for the original duration of the contract or authorisation, or until 25 December 2026, whichever is shorter.
Article 11a
High-speed passenger services
Article 12
Levy on railway undertakings providing passenger services
In that case, railway undertakings providing domestic or international rail passenger transport services shall be subject to the same levy on the operation of routes which fall within the jurisdiction of that authority.
Article 13
Conditions of access to services
For all service facilities referred to in point 2 of Annex II, the operator and the body or firm shall have separate accounts, including separate balance sheets and profit and loss accounts.
Where operation of the service facility is ensured by an infrastructure manager or the operator of the service facility is under the direct or indirect control of an infrastructure manager compliance with the requirements set out in this paragraph shall be deemed to be demonstrated by the fulfilment of the requirements set out in Article 7.
Where requests by railway undertakings concern access to, and supply of services in a service facility managed by an operator of the service facility referred to in paragraph 3, the operator of the service facility shall justify in writing any decision of refusal and indicate viable alternatives in other facilities.
Article 13a
Common information and through-ticketing schemes
SECTION 5
Cross-border agreements
Article 14
General principles for cross-border agreements
Member States shall keep the Commission regularly informed of any such negotiations and, where appropriate, invite the Commission to participate as an observer.
SECTION 6
Monitoring tasks of the Commission
Article 15
Scope of market monitoring
The Commission shall report every two years to the European Parliament and the Council on:
the evolution of the internal market in rail services and services to be supplied to railway undertakings, as referred to in Annex II;
the framework conditions referred to in paragraph 3, including for public passenger transport services by rail;
the state of the Union railway network;
the utilisation of access rights;
barriers to more effective rail services;
infrastructure limitations;
the need for legislation.
CHAPTER III
LICENSING OF RAILWAY UNDERTAKINGS
SECTION 1
Licensing authority
Article 16
Licensing authority
Each Member State shall designate a licensing authority that shall be responsible for issuing licences and for carrying out the obligations imposed by this Chapter.
The licensing authority shall not provide rail transport services itself and shall be independent of firms or entities that do so.
SECTION 2
Conditions for obtaining a licence
Article 17
General requirements
However, such a licence shall not, in itself, entitle the holder to access the railway infrastructure.
Article 18
Conditions for obtaining a licence
An undertaking applying for a licence shall be required to be able to demonstrate to the licensing authorities of the Member State concerned before the start of its activities that it will at any time be able to meet the requirements relating to good repute, financial fitness, professional competence and cover for its civil liability as listed in Articles 19 to 22.
For those purposes, each undertaking applying for a licence shall provide all relevant information.
Article 19
Requirements relating to good repute
Member States shall define the conditions under which the requirement of good repute is met to ensure that an undertaking applying for a licence or the persons in charge of its management:
have not been convicted of serious criminal offences, including offences of a commercial nature;
have not been declared bankrupt;
have not been convicted of serious offences set out in specific legislation applicable to transport;
have not been convicted of serious or repeated failure to fulfil social or labour law obligations, including obligations under occupational safety and health legislation, and customs law obligations in the case of a company seeking to operate cross-border freight transport subject to customs procedures;
have not been convicted of serious offences resulting from obligations arising in accordance with national law from binding collective agreements, where applicable.
Article 20
Requirements relating to financial fitness
Article 21
Requirements relating to professional competence
The requirements relating to professional competence shall be met when an undertaking applying for a licence can demonstrate that it has or will have a management organisation which possesses the knowledge or experience necessary to exercise safe and reliable operational control and supervision of the type of operations specified in the licence.
Article 22
Requirements relating to cover for civil liability
Without prejudice to Union rules on State aid and in accordance with Articles 93, 107 and 108 TFEU, a railway undertaking shall be adequately insured or have adequate guarantees under market conditions 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. Notwithstanding this obligation, the specificities and the risk-profile of different types of services, in particular of railway operations for cultural or heritage purposes, may be taken into account.
SECTION 3
Validity of the licence
Article 23
Spatial and temporal validity
Article 24
Temporary licence, approval, suspension and revocation
Where a licensing authority is satisfied that a railway undertaking can no longer meet the requirements, it shall suspend or revoke the licence.
As regards the start of activities, the railway undertaking may ask for a longer period to be fixed, taking account of the specific nature of the services to be provided.
Article 25
Procedure for granting licences
CHAPTER IV
LEVYING OF CHARGES FOR THE USE OF RAILWAY INFRASTRUCTURE AND ALLOCATION OF RAILWAY INFRASTRUCTURE CAPACITY
SECTION 1
General principles
Article 26
Effective use of infrastructure capacity
Member States shall ensure that charging and capacity-allocation schemes for railway infrastructure follow the principles set down in this Directive and thus allow the infrastructure manager to market and make optimum effective use of the available infrastructure capacity.
Article 27
Network statement
Article 28
Agreements between railway undertakings and infrastructure managers
Any railway undertaking engaged in rail transport services shall conclude the necessary agreements under public or private law with the infrastructure managers of the railway infrastructure used. The conditions governing such agreements shall be non-discriminatory and transparent, in accordance with this Directive.
SECTION 2
Infrastructure and services charges
Article 29
Establishing, determining and collecting charges
Subject to that condition, Member States shall also establish specific charging rules or delegate such powers to the infrastructure manager.
Member States shall ensure that the network statement contains the charging framework and charging rules or indicates a website where the charging framework and charging rules are published.
The infrastructure manager shall determine and collect the charge for the use of infrastructure in accordance with the established charging framework and charging rules.
Without prejudice to the management independence laid down in Article 4 and provided that the right has been directly conferred by constitutional law before 15 December 2010, the national parliament may have the right to scrutinise and, where appropriate, review the level of charges determined by the infrastructure manager. Any such review shall ensure that charges comply with this Directive, the established charging framework and charging rules.
Article 30
Infrastructure cost and accounts
Member States shall ensure that contractual agreements in force on 15 December 2012 are modified, if necessary, to align them with this Directive upon their renewal, or at the latest by 16 June 2015.
The infrastructure manager shall ensure consistency between the provisions of the contractual agreement and the business plan.
Article 31
Principles of charging
Before 16 June 2015, the Commission shall adopt measures setting out the modalities for the calculation of the cost that is directly incurred as a result of operating the train. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 62(3).
The infrastructure manager may decide to gradually adapt to those modalities during a period of no more than four years after the entry into force of those implementing acts.
Based on the experience gained by infrastructure managers, railway undertakings, regulatory bodies and competent authorities, and recognising existing schemes on noise differentiation, the Commission shall adopt implementing measures setting out the modalities to be followed for the application of the charging for the cost of noise effects including its duration of application and enabling the differentiation of infrastructure charges to take into account, where appropriate, the sensitivity of the area affected, in particular in terms of the size of population affected and the train composition with an impact on the level of noise emissions. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 62(3). They shall not result in the undue distortion of competition between railway undertakings or affect the overall competitiveness of the rail sector.
Any such modification of infrastructure charges to take account of the cost of noise effects shall support the retrofitting of wagons with the most economically viable low-noise braking technology available.
Charging of environmental costs which results in an increase in the overall revenue accruing to the infrastructure manager shall however be allowed only if such charging is applied to road freight transport in accordance with Union law.
If charging for environmental costs generates additional revenue, it shall be for Member States to decide how the revenue is to be used.
Member States shall ensure that the necessary information is kept and that the origin of the charging of environmental costs and its application can be traced. Member States shall provide the Commission with this information upon request.
Article 32
Exceptions to charging principles
The level of charges shall not, however, exclude the use of infrastructure by market segments which can pay at least the cost that is directly incurred as a result of operating the railway service, plus a rate of return which the market can bear.
Before approving the levy of such mark-ups, Member States shall ensure that the infrastructure managers evaluate their relevance for specific market segments, considering at least the pairs listed in point 1 of Annex VI and retaining the relevant ones. The list of market segments defined by infrastructure managers shall contain at least the three following segments: freight services, passenger services within the framework of a public service contract and other passenger services.
Infrastructure managers may further distinguish market segments according to commodity or passengers transported.
Market segments in which railway undertakings are not currently operating but may provide services during the period of validity of the charging system shall also be defined. The infrastructure manager shall not include a mark-up in the charging system for those market segments.
The list of market segments shall be published in the network statement and shall be reviewed at least every five years. The regulatory body referred to in Article 55 shall control that list in accordance with Article 56.
Member States may decide that this differentiation of infrastructure charges does not apply to railway lines specified in Regulation (EU) 2016/919 on which only ETCS equipped trains run.
Member States may decide to extend this differentiation to railway lines not specified in Regulation (EU) 2016/919.
Article 33
Discounts
Article 34
Compensation schemes for unpaid environmental, accident and infrastructure costs
Article 35
Performance scheme
Article 36
Reservation charges
Infrastructure managers may levy an appropriate charge for capacity that is allocated but not used. That non-usage charge shall provide incentives for efficient use of capacity. The levy of such a charge on applicants that were allocated a train path shall be mandatory in the event of their regular failure to use allocated paths or part of them. For the imposition of this charge, the infrastructure managers shall publish in their network statement the criteria to determine such failure to use. The regulatory body referred to in Article 55 shall control such criteria in accordance with Article 56. Payments for this charge shall be made by either the applicant or the railway undertaking appointed in accordance with Article 41(1). The infrastructure manager shall always be able to inform any interested party of the infrastructure capacity which has already been allocated to user railway undertakings.
Article 37
Cooperation in relation to charging systems on more than one network
SECTION 3
Allocation of infrastructure capacity
Article 38
Capacity rights
Any trading in infrastructure capacity shall be prohibited and shall lead to exclusion from the further allocation of capacity.
The use of capacity by a railway undertaking when carrying out the business of an applicant which is not a railway undertaking shall not be considered as a transfer.
An infrastructure manager and an applicant may enter into a framework agreement as laid down in Article 42 for the use of capacity on the relevant railway infrastructure for a longer term than one working timetable period.
Article 39
Capacity allocation
Article 40
Cooperation in the allocation of infrastructure capacity on more than one network
Member States shall ensure that representatives of infrastructure managers whose allocation decisions have an impact on other infrastructure managers associate in order to coordinate the allocation of or to allocate all relevant infrastructure capacity at an international level, without prejudice to the specific rules contained in Union law on rail freight oriented networks. The principles and criteria for capacity allocation established under this cooperation shall be published by infrastructure managers in their network statement in accordance with paragraph 3 of Annex IV. Appropriate representatives of infrastructure managers from third countries may be associated with these procedures.
Such prearranged international train paths shall be made available to applicants through any of the participating infrastructure managers.
Article 41
Applicants
Article 42
Framework agreements
The framework agreement shall not specify a train path in detail, but shall be such as to meet the legitimate commercial needs of the applicant. A Member State may require prior approval of such a framework agreement by the regulatory body referred to in Article 55 of this Directive.
In such exceptional cases, the framework agreement may set out the detailed characteristics of the capacity which is to be provided to the applicant for the duration of the framework agreement. Those characteristics may include the frequency, volume and quality of train paths. The infrastructure manager may reduce reserved capacity which, over a period of at least one month, has been used less than the threshold quota provided for in Article 52.
As from 1 January 2010, an initial framework agreement may be drawn up for a period of five years, renewable once, on the basis of the capacity characteristics used by applicants operating services before 1 January 2010, in order to take account of specialised investments or the existence of commercial contracts. The regulatory body referred to in Article 55 shall be responsible for authorising the entry into force of such an agreement.
Article 43
Schedule for the allocation process
Article 44
Applications
Article 45
Scheduling
Article 46
Coordination process
The infrastructure manager shall attempt, through consultation with the appropriate applicants, to resolve any conflicts. Such consultation shall be based on the disclosure of the following information within a reasonable time, free of charge and in written or electronic form:
train paths requested by all other applicants on the same routes;
train paths allocated on a preliminary basis to all other applicants on the same routes;
alternative train paths proposed on the relevant routes in accordance with paragraph 2;
full details of the criteria being used in the capacity-allocation process.
In accordance with Article 39(2), that information shall be provided without disclosing the identity of other applicants, unless applicants concerned have agreed to such disclosure.
Article 47
Congested infrastructure
In order to guarantee the development of adequate transport services within this framework, in particular to comply with public-service requirements or to promote the development of national and international rail freight, Member States may take any measures necessary, under non-discriminatory conditions, to ensure that such services are given priority when infrastructure capacity is allocated.
Member States may, where appropriate, grant the infrastructure manager compensation corresponding to any loss of revenue related to the need to allocate a given capacity to certain services pursuant to the second subparagraph.
Those measures and that compensation shall include taking account of the effect of this exclusion in other Member States.
Article 48
Ad hoc requests
Article 49
Specialised infrastructure
Such designation shall not prevent the use of such infrastructure by other types of traffic when capacity is available.
Article 50
Capacity analysis
Article 51
Capacity-enhancement plan
It shall identify:
the reasons for the congestion;
the likely future development of traffic;
the constraints on infrastructure development;
the options and costs for capacity enhancement, including likely changes to access charges.
On the basis of a cost benefit analysis of the possible measures identified, it shall also determine the action to be taken to enhance infrastructure capacity, including a timetable for implementing the measures.
The plan may be subject to prior approval by the Member State.
The infrastructure manager shall cease to levy any charges for the relevant infrastructure under Article 31(4) in cases where:
it does not produce a capacity-enhancement plan; or
it does not make progress with the actions identified in the capacity enhancement plan.
Notwithstanding paragraph 3 of this Article, the infrastructure manager may, subject to the approval of the regulatory body referred to in Article 55, continue to levy the charges if:
the capacity-enhancement plan cannot be realised for reasons beyond its control; or
the options available are not economically or financially viable.
Article 52
Use of train paths
Article 53
Infrastructure capacity for maintenance work
The regulatory body may require the infrastructure manager to make such information available to it, if it deems that this is necessary.
Article 54
Special measures to be taken in the event of disturbance
The infrastructure manager may, if it deems this necessary, require railway undertakings to make available to it the resources which it feels are the most appropriate to restore the situation to normal as soon as possible.
SECTION 4
Regulatory body
Article 55
Regulatory body
Member States shall decide whether these persons are appointed for a fixed and renewable term, or on a permanent basis which only allows dismissal for disciplinary reasons not related to their decision-making. They shall be selected in a transparent procedure on the basis of their merit, including appropriate competence and relevant experience, preferably in the field of railways or other network industries.
Member States shall ensure that these persons act independently from any market interest related to the railway sector, and shall therefore not have any interest or business relationship with any of the regulated undertakings or entities. To this effect, these persons shall make annually a declaration of commitment and a declaration of interests, indicating any direct or indirect interests that may be considered prejudicial to their independence and which might influence their performance of any function. These persons shall withdraw from decision-making in cases which concern an undertaking with which they had a direct or indirect connection during the year before the launch of a procedure.
They shall not seek or take instructions from any government or other public or private entity when carrying out the functions of the regulatory body, and have full authority over the recruitment and management of the staff of the regulatory body.
After their term in the regulatory body, they shall have no professional position or responsibility with any of the regulated undertakings or entities for a period of not less than one year.
Article 56
Functions of the regulatory body
Without prejudice to Article 46(6), an applicant shall have the right to appeal to the regulatory body if it believes that it has been unfairly treated, discriminated against or is in any other way aggrieved, and in particular against decisions adopted by the infrastructure manager or where appropriate the railway undertaking or the operator of a service facility concerning:
the network statement in its provisional and final versions;
the criteria set out in it;
the allocation process and its result;
the charging scheme;
the level or structure of infrastructure charges which it is, or may be, required to pay;
arrangements for access in accordance with Articles 10 to 13;
access to and charging for services in accordance with Article 13;
traffic management;
renewal planning and scheduled or unscheduled maintenance;
compliance with the requirements, including those regarding conflicts of interest, set out in Article 2(13) and Articles 7, 7a, 7b, 7c, and 7d.
Member States shall ensure that these authorities jointly develop a framework for information-sharing and cooperation aimed at preventing adverse effects on competition or safety in the railway market. This framework shall include a mechanism for the regulatory body to provide the national safety and licensing authorities with recommendations on issues that may affect competition in the railway market and for the national safety authority to provide the regulatory body and licensing authority with recommendations on issues that may affect safety. Without prejudice to the independence of each authority within the field of their respective competences, the relevant authority shall examine any such recommendation before adopting its decisions. If the relevant authority decides to deviate from these recommendations, it shall give reasons in its decisions.
Information requested shall be supplied within a reasonable period set by the regulatory body that shall not exceed one month, unless, in exceptional circumstances, the regulatory body agrees to, and authorises, a time-limited extension, which shall not exceed two additional weeks. The regulatory body shall be able to enforce such requests with appropriate penalties, including fines. Information to be supplied to the regulatory body includes all data which the regulatory body requires in the framework of its appeal function and in its function of monitoring the competition in the rail services markets in accordance with paragraph 2. This includes data which are necessary for statistical and market observation purposes.
A decision of the regulatory body shall be binding on all parties covered by that decision, and shall not be subject to the control of another administrative instance. The regulatory body shall be able to enforce its decisions with the appropriate penalties, including fines.
In the event of an appeal against a refusal to grant infrastructure capacity, or against the terms of an offer of capacity, the regulatory body shall either confirm that no modification of the infrastructure manager's decision is required, or it shall require modification of that decision in accordance with directions specified by the regulatory body.
Without prejudice to the powers of the national authorities responsible for State aid issues, the regulatory body may also draw conclusions from the accounts concerning State aid issues which it shall report to those authorities.
Financial flows referred to in Article 7d(1), loans referred to in Article 7d(4) and (5), and debts referred to in Article 7d(7) shall be subject to monitoring by the regulatory body.
Where a Member State has designated the regulatory body as the independent competent body referred to in Article 7c(4), the regulatory body shall assess the cooperation agreements referred to in that Article.
Article 57
Cooperation between regulatory bodies
Subject to the rules on data protection provided for in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data ( 11 ) and Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data ( 12 ), the Commission shall support the exchange of the information referred above among the members of the network, possibly through electronic tools, respecting the confidentiality of business secrets supplied by the relevant undertakings.
CHAPTER V
FINAL PROVISIONS
Article 58
Public procurement rules
The provisions of this Directive shall be without prejudice to Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors ( 13 ).
Article 59
Derogations
Until 15 March 2013, Ireland, as a Member State located on an island, with a rail link to only one other Member State, and the United Kingdom, in respect of Northern Ireland, on the same basis:
do not need to entrust to an independent body the functions determining equitable and non-discriminatory access to infrastructure, as provided for in the first subparagraph of Article 7(1) in so far as that Article obliges Member States to establish independent bodies performing the tasks referred to in Article 7(2);
do not need to apply the requirements set out in Article 27, Article 29(2), Articles 38, 39 and 42, Article 46(4) and (6), Article 47, Article 49(3), and Articles 50 to 53, 55 and 56 on condition that decisions on the allocation of infrastructure capacity or the charging of fees are open to appeal, if so requested in writing by a railway undertaking, before an independent body which shall take its decision within two months of the submission of all relevant information and whose decision shall be subject to judicial review.
The derogations referred to in paragraph 1 shall not apply where a railway undertaking operating railway services in Ireland or Northern Ireland submits an official application to operate railway services on, to or from the territory of another Member State, with the exceptions of Ireland for railway undertakings operating in Northern Ireland and the United Kingdom for railway undertakings operating in Ireland.
Within one year from the receipt of either the decision referred to in the first subparagraph of this paragraph or notification of the official application referred to in the second subparagraph of this paragraph, the Member State or States concerned (Ireland or the United Kingdom with respect to Northern Ireland) shall put in place legislation to implement the Articles referred to in paragraph 1.
When adopting its decision, the Commission shall take into account any development in the geopolitical situation and the development of the rail market in, from and to the Member State that requested the renewed derogation.
Article 60
Exercise of the delegation
Article 61
Measures of application
At the request of a Member State, of a regulatory body or on its own initiative, the Commission shall examine specific measures adopted by national authorities in relation to the application of this Directive, concerning the conditions of access to railway infrastructure and services, the licensing of railway undertakings, infrastructure charging and capacity allocation within 12 months after adoption of those measures. The Commission shall decide in accordance with the procedure referred to in Article 62(2) whether the related measure may continue to be applied within four months of receipt of such a request.
Article 62
Committee procedure
Article 63
Report
In particular, the report shall evaluate the development of high-speed rail services and assess the existence of discriminatory practices regarding access to high-speed lines. The Commission shall consider whether it is necessary to submit legislative proposals.
By the same date, the Commission shall assess whether discriminatory practices or other types of distortion of competition persist in relation to infrastructure managers which are part of a vertically integrated undertaking. The Commission shall, if appropriate, submit legislative proposals.
Article 64
Transposition
When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. They shall also include a statement that references in existing laws, regulations and administrative provisions to the Directives repealed by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is to be made and how that statement is to be formulated.
The obligations for transposition and implementation of Chapters II and IV of this Directive shall not apply to Cyprus and Malta for as long as no railway system is established within their territory.
Article 65
Repeal
Directives 91/440/EEC, 95/18/EC and 2001/14/EC, as amended by the Directives listed in Annex IX, Part A, are ►C1 repealed with effect from 17 June 2015, ◄ without prejudice to the obligations of the Member States relating to the time limits for transposition into national law of the Directives set out in Part B of Annex IX.
References to the repealed Directives shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex X.
Article 66
Entry into force
This Directive shall enter into force on the day following that of its publication in the Official Journal of the European Union.
Article 67
Addressees
This Directive is addressed to the Member States.
ANNEX I
LIST OF RAILWAY INFRASTRUCTURE ITEMS
Railway infrastructure consists of the following items, provided they form part of the permanent way, including sidings, but excluding lines situated within railway repair workshops, depots or locomotive sheds, and private branch lines or sidings:
ANNEX II
SERVICES TO BE SUPPLIED TO THE RAILWAY UNDERTAKINGS
(referred to in Article 13)
1. The minimum access package shall comprise:
handling of requests for railway infrastructure capacity;
the right to utilise capacity which is granted;
use of the railway infrastructure, including track points and junctions;
train control including signalling, regulation, dispatching and the communication and provision of information on train movement;
use of electrical supply equipment for traction current, where available;
all other information required to implement or operate the service for which capacity has been granted.
2. Access, including track access, shall be given to the following services facilities, when they exist, and to the services supplied in these facilities:
passenger stations, their buildings and other facilities, including travel information display and suitable location for ticketing services;
freight terminals;
marshalling yards and train formation facilities, including shunting facilities;
storage sidings;
maintenance facilities, with the exception of heavy maintenance facilities dedicated to high-speed trains or to other types of rolling stock requiring specific facilities;
other technical facilities, including cleaning and washing facilities;
maritime and inland port facilities which are linked to rail activities;
relief facilities;
refuelling facilities and supply of fuel in these facilities, charges for which shall be shown on the invoices separately.
3. Additional services may comprise:
traction current, charges for which shall be shown on the invoices separately from charges for using the electrical supply equipment, without prejudice to the application of Directive 2009/72/EC;
pre-heating of passenger trains;
tailor-made contracts for:
4. Ancillary services may comprise:
access to telecommunication networks;
provision of supplementary information;
technical inspection of rolling stock;
ticketing services in passenger stations;
heavy maintenance services supplied in maintenance facilities dedicated to high-speed trains or to other types of rolling stock requiring specific facilities.
ANNEX III
FINANCIAL FITNESS
(referred to in Article 20)
The information to be provided by undertakings applying for a licence in accordance with Article 20 covers the following aspects:
available funds, including the bank balance, pledged overdraft provisions and loans;
funds and assets available as security;
working capital;
relevant costs, including purchase costs of payments to account for vehicles, land, buildings, installations and rolling stock;
charges on an undertaking's assets;
taxes and social security contributions.
ANNEX IV
CONTENTS OF THE NETWORK STATEMENT
(referred to in Article 27)
The network statement referred to in Article 27 shall contain the following information:
A section setting out the nature of the infrastructure which is available to railway undertakings and the conditions of access to it. The information in this section shall be made consistent, on an annual basis with, or shall refer to, the rail infrastructure registers to be published in accordance with Article 35 of Directive 2008/57/EC.
A section on charging principles and tariffs. This shall contain appropriate details of the charging scheme as well as sufficient information on charges as well as other relevant information on access applying to the services listed in Annex II which are provided by only one supplier. It shall detail the methodology, rules and, where applicable, scales used for the application of Articles 31 to 36, as regards both costs and charges. It shall contain information on changes in charges already decided upon or foreseen in the next five years, if available.
A section on the principles and criteria for capacity allocation. This shall set out the general capacity characteristics of the infrastructure which is available to railway undertakings and any restrictions relating to its use, including likely capacity requirements for maintenance. It shall also specify the procedures and deadlines which relate to the capacity-allocation process. It shall contain specific criteria which are employed during that process, in particular:
the procedures according to which applicants may request capacity from the infrastructure manager;
the requirements governing applicants;
the schedule for the application and allocation processes and the procedures which shall be followed to request information on the scheduling and the procedures for scheduling planned and unforeseen maintenance work;
the principles governing the coordination process and the dispute resolution system made available as part of this process;
the procedures which shall be followed and criteria used where infrastructure is congested;
details of restrictions on the use of infrastructure;
conditions by which account is taken of previous levels of utilisation of capacity in determining priorities for the allocation process.
It shall detail the measures taken to ensure adequate treatment of freight services, international services and requests subject to the ad hoc procedure. It shall contain a template form for capacity requests. The infrastructure manager shall also publish detailed information about the allocation procedures for international train paths.
A section on information relating to the application for a licence referred to in Article 25 of this Directive and rail safety certificates issued in accordance with Directive 2004/49/EC or indicating a website where such information is made available free of charge in electronic format.
A section on information about procedures for dispute resolution and appeal relating to matters of access to rail infrastructure and services and to the performance scheme referred to in Article 35.
A section on information on access to and charging for service facilities referred to in Annex II. Operators of service facilities which are not controlled by the infrastructure manager shall supply information on charges for gaining access to the facility and for the provision of services, and information on technical access conditions for inclusion in the network statement or shall indicate a website where such information is made available free of charge in electronic format.
A model agreement for the conclusion of framework agreements between an infrastructure manager and an applicant in accordance with Article 42.
ANNEX V
BASIC PRINCIPLES AND PARAMETERS OF CONTRACTUAL AGREEMENTS BETWEEN COMPETENT AUTHORITIES AND INFRASTRUCTURE MANAGERS
(referred to in Article 30)
The contractual agreement shall specify the provisions of Article 30 and include at least the following elements:
the scope of the agreement as regards infrastructure and service facilities, structured in accordance with Annex II. It shall cover all aspects of infrastructure management, including maintenance and renewal of the infrastructure already in operation. Where appropriate, construction of new infrastructure may also be covered;
the structure of payments or funds allocated to the infrastructure services listed in Annex II, to maintenance and renewal and to dealing with existing maintenance and renewal backlogs. Where appropriate, the structure of payments or funds allocated to new infrastructure may be covered;
user-oriented performance targets, in the form of indicators and quality criteria covering elements such as:
train performance, such as in terms of line speed and reliability, and customer satisfaction,
network capacity,
asset management,
activity volumes,
safety levels, and
environmental protection;
the amount of possible maintenance backlog and the assets which will be phased out of use and therefore trigger different financial flows;
the incentives referred to in Article 30(1), with the exception of those incentives implemented through regulatory measures in accordance with Article 30(3);
minimum reporting obligations for the infrastructure manager in terms of content and frequency of reporting, including information to be published annually;
the agreed duration of the agreement, which shall be synchronised and consistent with the duration of the infrastructure manager's business plan, concession or licence, where appropriate, and the charging framework and rules set by the State;
rules for dealing with major disruptions of operations and emergency situations, including contingency plans and early termination of the contractual agreement, and timely information to users;
remedial measures to be taken if either of the parties is in breach of its contractual obligations, or in exceptional circumstances affecting the availability of public funding; this includes conditions and procedures for renegotiation and early termination.
ANNEX VI
REQUIREMENTS FOR COSTS AND CHARGES RELATED TO RAILWAY INFRASTRUCTURE
(referred to in Article 32(1) and Article 35)
1. The pairs to be considered by infrastructure managers when they define a list of market segments with a view to introducing mark-ups in the charging system according to Article 32(1) include at least the following:
passenger versus freight services;
trains carrying dangerous goods versus other freight trains;
domestic versus international services;
combined transport versus direct trains;
urban or regional versus interurban passenger services;
block trains versus single wagon load trains;
regular versus occasional train services.
2. The performance scheme as referred to in Article 35 shall be based on the following basic principles:
In order to achieve an agreed level of performance and not to endanger the economic viability of a service, the infrastructure manager shall agree with applicants the main parameters of the performance scheme, in particular the value of delays, the thresholds for payments due under the performance scheme relative both to individual train runs and to all train runs of a railway undertaking in a given period of time;
The infrastructure manager shall communicate to the railway undertakings the working timetable, on the basis of which delays will be calculated, at least five days before the train run. The infrastructure manager may apply a shorter notice period in case of force majeure or late alterations of the working timetable;
All delays shall be attributable to one of the following delay classes and sub-classes:
Operation/planning management attributable to the infrastructure manager
Timetable compilation
Formation of train
Mistakes in operations procedure
Wrong application of priority rules
Staff
Other causes
Infrastructure installations attributable to the infrastructure manager
Signalling installations
Signalling installations at level crossings
Telecommunications installations
Power supply equipment
Track
Structures
Staff
Other causes
Civil engineering causes attributable to the infrastructure manager
Planned construction work
Irregularities in execution of construction work
Speed restriction due to defective track
Other causes
Causes attributable to other infrastructure managers
Caused by previous infrastructure manager
Caused by next infrastructure manager
Commercial causes attributable to the railway undertaking
Exceeding the stop time
Request of the railway undertaking
Loading operations
Loading irregularities
Commercial preparation of train
Staff
Other causes
Rolling stock attributable to the railway undertaking
Roster planning/rerostering
Formation of train by railway undertaking
Problems affecting coaches (passenger transport)
Problems affecting wagons (freight transport)
Problems affecting cars, locomotives and rail cars
Staff
Other causes
Causes attributable to other railway undertakings
Caused by next railway undertaking
Caused by previous railway undertaking
External causes attributable to neither infrastructure manager nor railway undertaking
Strike
Administrative formalities
Outside influence
Effects of weather and natural causes
Delay due to external reasons on the next network
Other causes
Secondary causes attributable to neither infrastructure manager nor railway undertaking
Dangerous incidents, accidents and hazards
Track occupation caused by the lateness of the same train
Track occupation caused by the lateness of another train
Turn-around
Connection
Further investigation needed;
Wherever possible, delays shall be attributed to a single organisation, considering both the responsibility for causing the disruption and the ability to re-establish normal traffic conditions;
The calculation of payments shall take into account the average delay of train services of similar punctuality requirements;
The infrastructure manager shall, as soon as possible, communicate to the railway undertakings a calculation of payments due under the performance scheme. This calculation shall encompass all delayed train runs within a period of at most one month;
Without prejudice to the existing appeal procedures and to the provisions of Article 56, in the case of disputes relating to the performance scheme, a dispute resolution system shall be made available in order to settle such matters promptly. This dispute resolution system shall be impartial towards the parties involved. If this system is applied, a decision shall be reached within a time limit of 10 working days;
Once a year, the infrastructure manager shall publish the annual average level of performance achieved by the railway undertakings on the basis of the main parameters agreed in the performance scheme.
ANNEX VII
SCHEDULE FOR THE ALLOCATION PROCESS
(referred to in Article 43)
(1) The working timetable shall be established once per calendar year.
(2) The change of working timetable shall take place at midnight on the second Saturday in December. Where an adjustment is carried out after the winter, in particular to take account, where appropriate, of changes in regional passenger traffic timetables, it shall take place at midnight on the second Saturday in June and at such other intervals between these dates as are required. Infrastructure managers may agree on different dates and in this case they shall inform the Commission if international traffic may be affected.
(3) The deadline for receipt of requests for capacity to be incorporated into the working timetable shall be no more than 12 months in advance of the change of the working timetable. Requests received after the deadline shall also be considered by the infrastructure manager.
(4) No later than 11 months before the change of the working timetable, the infrastructure managers shall ensure that provisional international train paths have been established in cooperation with other relevant infrastructure managers. Infrastructure managers shall ensure that as far as possible these are adhered to during the subsequent processes.
(5) The infrastructure manager shall prepare and publish a draft working timetable at the latest four months after the deadline referred to in point (3).
(6) The infrastructure manager shall decide on the requests it receives after the deadline referred to in point (3) in accordance with a process published in the network statement.
The infrastructure manager may reschedule an allocated train path if it is necessary to ensure the best possible matching of all path requests and if it is approved by the applicant to which the path had been allocated. The infrastructure manager shall update the draft working timetable no later than one month before the change of the working timetable in order to include all train paths allocated after the deadline referred to in point (3).
(7) In the case of trains crossing from one network to another which arrive with a presumed delay of not more than 10 hours and, from 14 December 2019, 18 hours, the infrastructure manager of the other network shall not consider the train path cancelled or request application for another train path, including if it decides to allocate a different train path, unless the applicant informs the infrastructure manager that the train will not cross to the other network. The infrastructure manager shall communicate to the applicant the updated or new train path without delay, including, if different, the link between that train path number and the train path number of the cancelled train path.
(8) As regards temporary restrictions of the capacity of railway lines, for reasons such as infrastructure works, including associated speed restrictions, axle load, train length, traction, or structure gauge (‘capacity restrictions’), of a duration of more than seven consecutive days and for which more than 30 % of the estimated traffic volume on a railway line per day is cancelled, re-routed or replaced by other modes of transport, the infrastructure managers concerned shall publish all capacity restrictions and the preliminary results of a consultation with the applicants for a first time at least 24 months, to the extent they are known, and, in an updated form, for a second time at least 12 months before the change of the working timetable concerned.
(9) The infrastructure managers concerned shall also create a mechanism whereby they jointly discuss those capacity restrictions, if the impact of the capacity restrictions is not limited to one network, with interested applicants, the associations of infrastructure managers referred to in Article 40(1) and the main operators of service facilities concerned when they are published for the first time, unless the infrastructure managers and the applicants agree that such a mechanism is not needed. The joint discussions shall help prepare timetables, including the provision of diversionary routes.
(10) When publishing capacity restrictions in accordance with point (8) for a first time, the infrastructure manager shall launch a consultation with the applicants and the main operators of services facilities concerned on the capacity restrictions. Where a coordination in accordance with point (11) is required between the first and second publication of capacity restrictions, infrastructure managers shall consult with applicants and the main operators of service facilities concerned a second time between the end of that coordination and the second publication of the capacity restriction.
(11) Before publishing capacity restrictions in accordance with point (8), if the impact of the capacity restrictions is not limited to one network, the infrastructure managers concerned, including infrastructure managers that might be impacted by the rerouting of trains, shall coordinate between themselves capacity restrictions that could involve a cancellation, re-routing of a train path or a replacement by other modes.
The coordination before the second publication shall be completed:
no later than 18 months before the change of the working timetable if more than 50 % of the estimated traffic volume on a railway line per day is cancelled, re-routed or replaced by other modes of transport for a duration of more than 30 consecutive days
no later than 13 months and 15 days before the change of the working timetable period if more than 30 % of the estimated traffic volume on a railway line per day is cancelled, re-routed or replaced by other modes of transport for a duration of more than seven consecutive days
no later than 13 months and 15 days before the change of the working timetable period if more than 50 % of the estimated traffic volume on a railway line per day is cancelled, re-routed or replaced by other modes of transport for a duration of seven consecutive days or less.
The infrastructure managers shall, if necessary, invite the applicants active on the lines concerned and the main operators of service facilities concerned to get involved in that coordination.
(12) As regards capacity restrictions of a duration of seven consecutive days or less that need not be published in accordance with point (8) and for which more than 10 % of the estimated traffic volume on a railway line per day is cancelled, re-routed or replaced by other modes, that occur during the following timetable period and that the infrastructure manager becomes aware of no later than 6 months and 15 days before the change of the working timetable, the infrastructure manager shall consult the applicants concerned on the envisaged capacity restrictions and communicate the updated capacity restrictions at least four months before the change of the working timetable. The infrastructure manager shall provide details on the offered train paths for passenger trains no later than four months and for freight trains no later than one month before the beginning of the capacity restriction, unless the infrastructure manager and the concerned applicants agree on a shorter lead time.
(13) Infrastructure managers may decide to apply more stringent thresholds for capacity restrictions based on lower percentages of estimated traffic volumes or shorter durations than indicated in this Annex or to apply criteria in addition to the ones mentioned in this Annex, pursuant to a consultation with applicants and facility operators. They shall publish the thresholds and criteria for clustering capacity restrictions in their network statements under point 3 of Annex IV.
(14) The infrastructure manager may decide not to apply the periods laid down in points (8) to (12), if the capacity restriction is necessary to re-establish safe train operations, the timing of the restrictions is beyond the control of the infrastructure manager, the application of those periods would be cost ineffective or unnecessarily damaging in respect of asset life or condition, or if all concerned applicants agree. In those cases and in case of any other capacity restrictions that are not subject to consultation in accordance with other provisions of this Annex, the infrastructure manager shall consult the applicants and the main operators of service facilities concerned forthwith.
(15) The information to be provided by the infrastructure manager when acting in accordance with points (8), (12) or (14) shall include:
the planned day,
time of day, and, as soon as it can be set, the hour of the beginning and of the end of the capacity restriction,
the section of line affected by the restriction, and
where applicable, the capacity of diversionary lines.
The infrastructure manager shall publish that information, or a link where it can be found, in its network statement as referred to in point (3) of Annex IV. The infrastructure manager shall keep this information updated.
(16) As regards the capacity restrictions of a duration of at least 30 consecutive days and affecting more than 50 % of the estimated traffic volume on a railway line, the infrastructure manager shall provide the applicants upon their request during the first round of consultation with a comparison of the conditions to be encountered under at least two alternatives of capacity restrictions. The infrastructure manager shall design those alternatives on the basis of the input provided by the applicants at the time of their requests and jointly with them.
The comparison shall, for each alternative, include at least:
the duration of the capacity restriction,
the expected indicative infrastructure charges due,
the capacity available on diversionary lines,
the available alternative routes, and
the indicative travel times.
Before making a choice between the alternatives of capacity restrictions, the infrastructure manager shall consult the interested applicants and take into account the impacts of the different alternatives on those applicants and on the users of the services.
(17) As regards the capacity restrictions of a duration of more than 30 consecutive days and affecting more than 50 % of the estimated traffic volume on a railway line, the infrastructure manager shall establish criteria for which trains of each type of service should be re-routed, taking into account the applicant's commercial and operational constraints, unless those operational constraints result from managerial or organisational decisions of the applicant, and without prejudice to the aim of reducing costs of the infrastructure manager in accordance with Article 30(1). The infrastructure manager shall publish in the network statement those criteria together with a preliminary allocation of the remaining capacity to the different types of train services when it acts in accordance with point (8). After the end of the consultation and without prejudice to the obligations of the infrastructure manager as referred to in point (3) of Annex IV, the infrastructure manager, based on the feed-back it received from the applicants, shall provide the railway undertakings concerned with an indicative break-down by type of service of the remaining capacity.
ANNEX VIII
ACCOUNTING INFORMATION TO BE SUPPLIED TO THE REGULATORY BODY UPON REQUEST
(referred to in Article 56(12))
1. Account separation
separate profit and loss accounts and balance sheets for freight, passenger and infrastructure management activities;
detailed information on individual sources and uses of public funds and other forms of compensation in a transparent and detailed manner, including a detailed review of the businesses' cash flows in order to determine in what way these public funds and other forms of compensation have been used;
cost and profit categories making it possible to determine whether cross-subsidies between these different activities occurred, according to the requirements of the regulatory body;
methodology used to allocate costs between different activities;
where the regulated firm is part of a group structure, full details of inter-company payments.
2. Monitoring of track access charges
different cost categories, in particular providing sufficient information on marginal/direct costs of the different services or groups of services so that infrastructure charges can be monitored;
sufficient information to allow monitoring of the individual charges paid for services (or groups of services); if required by the regulatory body, this information shall contain data on volumes of individual services, prices for individual services and total revenues for individual services paid by internal and external customers;
costs and revenues for individual services (or groups of services) using the relevant cost methodology, as required by the regulatory body, to identify potentially anti-competitive pricing (cross-subsidies, predatory pricing and excessive pricing).
3. Indication of financial performance
a statement of financial performance;
a summary expenditure statement;
a maintenance expenditure statement;
an operating expenditure statement;
an income statement;
supporting notes that amplify and explain the statements, where appropriate.
ANNEX IX
PART A
REPEALED DIRECTIVES WITH LIST OF SUCCESSIVE AMENDMENTS
(referred to in Article 65)
|
Council Directive 91/440/EEC (OJ L 237, 24.8.1991, p. 25) |
|
|
Directive 2001/12/EC of the European Parliament and of the Council (OJ L 75, 15.3.2001, p. 1) |
|
|
Directive 2004/51/EC of the European Parliament and of the Council (OJ L 164, 30.4.2004, p. 164) |
|
|
Council Directive 2006/103/EC (OJ L 363, 20.12.2006, p. 344) |
only Point B of the Annex |
|
Directive 2007/58/EC of the European Parliament and of the Council (OJ L 315, 3.12.2007, p. 44) |
only Article 1 |
|
Council Directive 95/18/EC (OJ L 143, 27.6.1995, p. 70) |
|
|
Directive 2001/13/EC of the European Parliament and of the Council (OJ L 75, 15.3.2001, p. 26) |
|
|
Directive 2004/49/EC of the European Parliament and of the Council (OJ L 164, 30.4.2004, p. 44) |
only Article 29 |
|
Directive 2001/14/EC of the European Parliament and of the Council (OJ L 75, 15.3.2001, p. 29) |
|
|
Commission Decision 2002/844/EC (OJ L 289, 26.10.2002, p. 30) |
|
|
Directive 2004/49/EC of the European Parliament and of the Council (OJ L 164, 30.4.2004, p. 44) |
only Article 30 |
|
Directive 2007/58/EC of the European Parliament and of the Council (OJ L 315, 3.12.2007, p. 44) |
only Article 2 |
PART B
LIST OF TIME LIMITS FOR TRANSPOSITION INTO NATIONAL LAW
(referred to in Article 65)
|
Directive |
Time limit for transposition |
|
91/440/EEC |
1 January 1993 |
|
95/18/EC |
27 June 1997 |
|
2001/12/EC |
15 March 2003 |
|
2001/13/EC |
15 March 2003 |
|
2001/14/EC |
15 March 2003 |
|
2004/49/EC |
30 April 2006 |
|
2004/51/EC |
31 December 2005 |
|
2006/103/EC |
1 January 2007 |
|
2007/58/EC |
4 June 2009 |
ANNEX X
CORRELATION TABLE
|
Directive 91/440/EEC |
Directive 95/18/EC |
Directive 2001/14/EC |
This Directive |
|
Article 2(1) |
Article 1(1) |
Article 1(1), first subparagraph |
Article 1(1) |
|
|
|
Article 1(2) |
Article 1(2) |
|
Article 2(2) |
|
|
Article 2(1) |
|
|
Article 1(2) |
|
Article 2(2) |
|
|
|
Article 1(3) |
Article 2(3) |
|
|
|
|
Article 2(4) to (9) |
|
Article 2(4) |
|
|
Article 2(10) |
|
|
|
|
Article 2(11) |
|
Article 3 |
|
|
Article 3(1) to (8) |
|
|
|
|
Article 3(9) to (13) |
|
|
Article 2(b) and (c) |
|
Article 3(14) and (15) |
|
|
|
|
Article 3(16) and (17) |
|
|
|
Article 2 |
Article 3(18) to (28) |
|
|
|
|
Article 3(29) and (30) |
|
Article 4 |
|
|
Article 4 |
|
Article 5 |
|
|
Article 5(1) to (3) |
|
|
|
|
Article 5(4) |
|
Article 6(1) and (2) |
|
|
Article 6(1) and (2) |
|
Article 9(4) |
|
|
Article 6(3) |
|
Article 6(1) second subparagraph |
|
|
Article 6(4) |
|
Article 6(3) and Annex II |
|
|
Article 7(1) |
|
|
|
Article 4(2) and Article 14(2) |
Article 7(2) |
|
Article 7(1), (3) and (4) |
|
|
Article 8(1), (2) and (3) |
|
|
|
Article 6(1) |
Article 8(4) |
|
Article 9(1) and (2) |
|
|
Article 9(1) and (2) |
|
Article 10(3) and (3a) |
|
|
Article 10(1) and (2) |
|
Article 10(3b) |
|
|
Article 11(1), (2) and (3) |
|
|
|
|
Article 11(4) |
|
Article 10(3c) and (3e) |
|
|
Article 11(5) and (6) |
|
Article 10(3f) |
|
|
Article 12(1) to (4) |
|
|
|
|
Article 12(5) |
|
|
|
Article 5 |
Article 13 |
|
|
|
|
Article 14 |
|
Article 10b |
|
|
Article 15 |
|
|
Article 3 |
|
Article 16 |
|
|
Article 4(1) to (4) |
|
Article 17(1) to (4) |
|
|
Article 5 |
|
Article 18 |
|
|
Article 6 |
|
Article 19 |
|
|
Article 7(1) |
|
Article 20(1) |
|
|
Annex, Part I, point (1) |
|
Article 20(2) |
|
|
|
|
Article 20(3) |
|
|
Article 8 |
|
Article 21 |
|
|
Article 9 |
|
Article 22 |
|
|
Article 4(5) |
|
Article 23(1) |
|
|
Article 10 |
|
Article 23(2) and (3) |
|
|
Article 11 |
|
Article 24 |
|
|
Article 15 |
|
Article 25 |
|
|
|
Article 1(1), second subparagraph |
Article 26 |
|
|
|
Article 3 |
Article 27 |
|
Article 10(5) |
|
|
Article 28 |
|
|
|
Article 4(1) and (3) to (6) |
Article 29 |
|
|
|
Article 6(2) to (5) |
Article 30 |
|
|
|
Article 7 |
Article 31 |
|
|
|
Article 8 |
Article 32 |
|
|
|
Article 9 |
Article 33 |
|
|
|
Article 10 |
Article 34 |
|
|
|
Article 11 |
Article 35 |
|
|
|
Article 12 |
Article 36 |
|
|
|
|
Article 37 |
|
|
|
Article 13 |
Article 38 |
|
|
|
Article 14(1) and (3) |
Article 39 |
|
|
|
Article 15 |
Article 40 |
|
|
|
Article 16 |
Article 41 |
|
|
|
Article 17 |
Article 42 |
|
|
|
Article 18 |
Article 43 |
|
|
|
Article 19 |
Article 44 |
|
|
|
Article 20(1), (2) and (3) |
Article 45(1), (2) and (3) |
|
|
|
|
Article 45(4) |
|
|
|
Article 20(4) |
Article 45(5) |
|
|
|
Article 21 |
Article 46 |
|
|
|
Article 22 |
Article 47 |
|
|
|
Article 23 |
Article 48 |
|
|
|
Article 24 |
Article 49 |
|
|
|
Article 25 |
Article 50 |
|
|
|
Article 26 |
Article 51 |
|
|
|
Article 27 |
Article 52 |
|
|
|
Article 28 |
Article 53 |
|
|
|
Article 29 |
Article 54 |
|
|
|
Article 30(1) |
Article 55 |
|
|
|
Article 30(2) |
Article 56(1) |
|
|
|
Article 31 |
Article 57 |
|
Article 12 |
|
|
Article 58 |
|
Article 14a |
|
Article 33(1), (2) and (3) |
Article 59 |
|
|
|
|
Article 60 |
|
|
|
Article 34(2) |
Article 61 |
|
Article 11a |
|
Article 35(1), (2) and (3) |
Article 62 |
|
Article 10(9) |
|
|
Article 63 |
|
|
|
Article 38 |
Article 64 |
|
|
|
|
Article 65 |
|
|
Article 17 |
Article 39 |
Article 66 |
|
Article 16 |
Article 18 |
Article 40 |
Article 67 |
|
|
|
|
Annex I |
|
|
|
Annex II |
Annex II |
|
|
Annex |
|
Annex III |
|
|
|
Annex I |
Annex IV |
|
|
|
|
Annex V |
|
|
|
|
Annex VI |
|
|
|
Annex III |
Annex VII |
|
|
|
|
Annex VIII |
( 1 ) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ L 24, 29.1.2004, p. 1).
( 2 ) Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers' rights and obligations (OJ L 315, 3.12.2007, p. 14).
( 3 ) Directive 2010/40/EU of the European Parliament and of the Council of 7 July 2010 on the framework for the deployment of Intelligent Transport Systems in the field of road transport and for interfaces with other modes of transport (OJ L 207, 6.8.2010, p. 1).
( 4 ) OJ L 164, 30.4.2004, p. 1.
( 5 ) Commission Regulation (EU) 2016/919 of 27 May 2016 on the technical specification for interoperability relating to the ‘control-command and signalling’ subsystems of the rail system in the European Union (OJ L 158, 15.6.2016, p. 1).
( 6 ) Commission Decision 2008/386/EC of 23 April 2008 modifying Annex A to Decision 2006/679/EC concerning the technical specification for interoperability relating to the control-command and signalling subsystem of the trans-European conventional rail system and Annex A to Decision 2006/860/EC concerning the technical specification for interoperability relating to the control-command and signalling subsystem of the trans-European high-speed rail system (OJ L 136, 24.5.2008, p. 11).
( 7 ) OJ L 276, 20.10.2010, p. 22.
( 8 ) OJ L 1, 4.1.2003, p. 1.
Editorial note: The title of Council Regulation (EC) No 1/2003 has been adjusted to take account of the renumbering of the articles of the Treaty establishing the European Community, in accordance with Article 5 of the Treaty of Lisbon; the original reference was: Articles 81 and 82 of the Treaty.
( 9 ) OJ L 164, 30.4.2004, p. 44.
( 10 ) OJ L 191, 18.7.2008, p. 1.
( 11 ) OJ L 281, 23.11.1995, p. 31.
( 12 ) OJ L 8, 12.1.2001, p. 1.
( 13 ) OJ L 134, 30.4.2004, p. 1.