RECOMMENDATION FOR SECOND READING on the Council common position for adopting a directive of the European Parliament and of the Council amending Council Directive 91/440/EEC on the development of the Community's railways and Directive 2001/14/EC of the European Parliament and of the Council on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure

21.12.2006 - (5895/2/2006 – C6‑0309/2006 – 2004/0047(COD)) - ***II

Committee on Transport and Tourism
Rapporteur: Georg Jarzembowski

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the Council common position for adopting a directive of the European Parliament and of the Council amending Council Directive 91/440/EEC on the development of the Community's railways and Directive 2001/14/EC of the European Parliament and of the Council on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure

(5895/2/2006 – C6‑0309/2006 – 2004/0047(COD))

(Codecision procedure: second reading)

The European Parliament,

–   having regard to the Council common position (5895/2/2006 – C6‑0309/2006),

–   having regard to its position at first reading[1] on the Commission proposal to Parliament and the Council (COM(2004)0139)[2],

–   having regard to Article 251(2) of the EC Treaty,

–   having regard to Rule 62 of its Rules of Procedure,

–   having regard to the recommendation for second reading of the Committee on Transport and Tourism (A6‑0475/2006),

1.  Approves the common position as amended;

2.  Instructs its President to forward its position to the Council and Commission.

Council common position	Amendments by Parliament
Amendment 1 RECITAL 4
(4) The aim of this Directive is to address the opening of the market for international rail passenger services within the Community, and it should therefore not concern services between a Member State and a third country. In addition, Member States should be able to exclude from the scope of this Directive services transiting the Community.	(4) The aim of this Directive is to address the opening of the market for rail passenger services within the Community, and it should therefore not concern services between a Member State and a third country. In addition, Member States should be able to exclude from the scope of this Directive services transiting the Community.
Justification
Adjustment to reflect the new wording of Article 10(3a) of Directive 91/440/EEC (see Amendment 16).
Amendment 2 RECITAL 6
(6) It is not possible to open up the market in international passenger services without detailed provisions on infrastructure access, substantial progress on interoperability and a strict framework for rail safety at national and European level. All of these elements are now in place following the transposition of Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 91/440/EEC , Directive 2004/51/EC of the European Parliament and of the Council of 29 April 2004 amending Council Directive 91/440/EEC , Directive 2001/13/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 95/18/EC , Directive 2001/14/EC, and Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community’s railways . It is necessary for this new regulatory framework to be supported by established, consolidated practice by the proposed date for opening up the market for international passenger services. This will require a certain time. The target date for opening up the market should therefore be 1 January 2010.	(6) It is not possible to open up the market in passenger services without detailed provisions on infrastructure access, substantial progress on interoperability and a strict framework for rail safety at national and European level. All of these elements are now in place following the transposition of Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 91/440/EEC, Directive 2004/51/EC of the European Parliament and of the Council of 29 April 2004 amending Council Directive 91/440/EEC, Directive 2001/13/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 95/18/EC, Directive 2001/14/EC, and Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community’s railways. It is necessary for this new regulatory framework to be supported by established, consolidated practice by the proposed date for opening up the market for passenger services. As these directives must be transposed into national law by 2006, networks can be opened up for international passenger services by 2010 and for all other types of passenger service by 2017. Member States which acceded to the European Union on or after 1 May 2004 should have the right to postpone the target date of 2017 for national passenger services by up to five years.
Amendment 3 RECITAL 8
(8) The introduction of new, open-access, international services with intermediate stops should not be used to bring about the opening of the market for domestic passenger services, but should merely be focused on stops that are ancillary to the international route. On that basis, their introduction should concern services whose principal purpose is to carry passengers travelling on an international journey. The determination of whether that is the service’s principal purpose should take into account criteria such as the proportion of turnover, and of volume, derived from transport of domestic or international passengers, and the length of the service. This determination should be made by the respective national regulatory body at the request of an interested party.	deleted
Justification
The Council's proposed new further limitation on the opening-up of networks, based on the criterion of the 'principal purpose' of a service, must be rejected, since regional services are already adequately protected by the new Article 10(3b) of Directive 91/440/EEC. Moreover, the introduction of this criterion would necessitate an extremely bureaucratic and time-consuming procedure involving many agencies, and the vast amount of data which would have to be supplied and taken into account would by itself be bound to lead to administrative and judicial disputes.
Amendment 4 RECITAL 9
(9) Council Regulation (EEC) No 1191/69 of 26 June 1969 on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway authorises Member States and local authorities to award public service contracts. These contracts may contain exclusive rights to operate certain services. It is therefore necessary to ensure that the provisions of that Regulation are consistent with the principle of opening up international passenger services to competition.	(9) Council Regulation (EEC) No 1191/69 of 26 June 1969 on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway authorises Member States and local authorities to award public service contracts. These contracts may contain exclusive rights to operate certain services. It is therefore necessary to ensure that the provisions of that Regulation are consistent with the principle of opening up passenger services to competition
Justification
Adjustment to reflect the new wording of Article 10 (3a) of Directive 91/440/EEC (see Amendment 16).
Amendment 5 RECITAL 10
(10) Opening up international passenger services, which include the right to pick up passengers at any station located on the route of an international service and to set them down at another, including stations located in the same Member State, to competition may have implications for the organisation and financing of rail passenger services provided under a public service contract. Member States should have the possibility to limit the right of access to the market where this right would compromise the economic equilibrium of these public service contracts and where approval is given by the relevant regulatory body referred to in Article 30 of Directive 2001/14/EC on the basis of an objective economic analysis, following a request from the competent authorities that awarded the public service contract.	(10) Opening up passenger services, which include the right to pick up passengers at any station located on the route of an international service and to set them down at another, including stations located in the same Member State, to competition may have implications for the organisation and financing of rail passenger services provided under a public service contract. Member States should have the possibility to limit the right of access to the market where this right would compromise the economic viability of these public service contracts and where approval is given by the relevant regulatory body referred to in Article 30 of Directive 2001/14/EC on the basis of an objective economic analysis, following a request from the competent authorities that awarded the public service contract.
Justification
Adjustment to reflect the new wording of Article 10(3b) of Directive 91/440/EEC (see Amendment 17).
Amendment 6 RECITAL 11
(11) Some Member States have already moved towards opening up the market for rail passenger services by transparent, open competitive tendering for the provision of certain such services. They should not have to provide full open access to international passenger services, since this competition for the right to use certain rail routes has involved a sufficient test of the market value of running those services.	(11) Some Member States have already moved towards opening up the market for rail passenger services by transparent, open competitive tendering for the provision of certain such services. The revision of Regulation (EEC) No 1191/69 should continue this process.
Justification
Tightens up the recital, since public tendering only makes sense, and is only necessary, for public regional and local passenger services.
Amendment 7 RECITAL 12
(12) The assessment of whether the economic equilibrium of the public service contract could be compromised should take into account pre-determined criteria such as the impact on the profitability of any services which are included in a public service contract, including consequential impacts on the net cost to the competent public authority that awarded the contract, passenger demand, ticket pricing, ticketing arrangements, location and number of stops on both sides of the border and timing and frequency of the proposed new service. Respecting such an assessment and the decision of the relevant regulatory body, Member States might authorise, modify or deny the right of access for the international passenger service sought, including the levying of a charge on the operator of a new international passenger service, in line with the economic analysis and in accordance with Community law and the principles of equality and non-discrimination.	(12) The assessment of whether the economic equilibrium of the public service contract could be compromised should take into account predetermined criteria such as the impact on the profitability of any services which are included in a public service contract.
Justification
Tightens up the recital and adjusts it to reflect the customary practice for recitals. See also Amendment 17.
Amendment 8 RECITAL 13
(13) In order to ensure the financing of public service obligations, it is appropriate to allow Member States to raise a levy on passenger services in their territory in accordance with Community law.	(13) In order to contribute to the operation of passenger services on lines fulfilling a public service obligation, it is appropriate to allow Member States who so wish to authorise the authorities responsible for those services to impose a levy on passenger services under their jurisdiction.
	That levy shall contribute to the financing of the passenger service obligations laid down in public service contracts in accordance with Community law.
	The levy should be imposed in accordance with Community law, and in particular with the principles of fairness, transparency, non-discrimination and proportionality.
Amendment 9 RECITAL 14
(14) The regulatory body should function in a way which avoids any conflict of interests and any possible involvement in the award of the public service contract under consideration. In particular, if for organisational or legal purposes it is closely linked to the competent authority involved in the award of the public service contract under consideration, its functional independence should be ensured. The competence of the regulatory body should be extended to allow the assessment of the purpose of an international service and, where appropriate, the potential economic impact on existing public service contracts.	(14) The regulatory body should function in a way which avoids any conflict of interests and any possible involvement in the award of the public service contract under consideration. In particular, if for organisational or legal purposes it is closely linked to the competent authority involved in the award of the public service contract under consideration, its functional independence should be ensured. The competence of the regulatory body should be extended to allow the assessment of the potential economic impact on existing public service contracts.
Justification
Adjustment to reflect Amendments 3 and 15 and their accompanying justifications.
Amendment 10 RECITAL 15
(15) This Directive constitutes a further phase of rail market opening. Some Member States have already opened up the market for international passenger services on their territory. In this context, this Directive should not be understood as creating obligations for those Member States to grant, before 1 January 2010, access rights to railway undertakings licensed in a Member State where similar rights are not granted.	(15) This Directive constitutes the concluding stage in regulating rail market opening. Some Member States have already opened up the market for international passenger services on their territory. In this context, this Directive should not be understood as creating obligations for those Member States to grant, before 1 January 2010 or 1 January 2017, respectively, access rights to railway undertakings licensed in a Member State where similar rights are not granted.
Justification
Adjustment to reflect Amendment 16 and its accompanying justification.
Amendment 11 RECITAL 15 A (new)
	(15a) In order to create specialised infrastructure, such as high-speed railway lines, railway undertakings require planning and legal certainty commensurate with the substantial long-term investment involved. It should therefore be possible for such undertakings normally to conclude framework agreements with a term of up to 15 years. Directive 2001/14/EC should be amended accordingly.
Justification
Reintroduction of the European Parliament's position of 28 September 2005 at first reading (see Amendment 5), adapted to reflect the Council's proposed wording of Article 17(5a) of Directive 2001/14/EC.
Amendment 12 RECITAL 16
(16) The national regulatory bodies should, on the basis of Article 31 of Directive 2001/14/EC, exchange information and, where relevant in individual cases, coordinate the principles and practice of assessing whether the economic equilibrium of a public service contract is compromised. They should progressively develop guidelines based on their experience.	(16) The national regulatory bodies should, on the basis of Article 31 of Directive 2001/14/EC, exchange information and, where relevant in individual cases, coordinate the principles and practice of assessing whether the economic viability of a public service contract is compromised. They should progressively develop guidelines based on their experience.
Justification
Adjustment to reflect the new wording of Article 10(3b) of Directive 91/440/EEC.
Amendment 13 RECITAL 17
(17) The application of this Directive should be evaluated on the basis of a report to be presented by the Commission two years after the date of opening up the market in international passenger services.	(17) The application of this Directive should be evaluated on the basis of two reports, each to be presented by the Commission one year after the date of opening up the market in international and national passenger services, respectively. Another report should be presented by the Commission by 31 December 2012, focusing on the state of preparation for the opening of the rail market for national passenger services and, possibly, proposing flanking measures to facilitate this step.
Justification
Adjustment to reflect Amendment 25 (see Amendment 6 from the European Parliament's first reading).
Amendment 14 RECITALS 18 A AND 18 B (new)
	(18a) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June laying down the procedures for the exercise of implementing powers conferred on the Commission1. ___________ 1 OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision 2006/512/EC (OJ L 200, 22.7.2006, p. 11).
	(18b) In particular, the Commission should be empowered to adopt measures of general scope designed to amend non-essential element of this Directive in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.
Justification
Directives 91/440/EEC and 2001/14/EC refer in various places to a comitology procedure and the appropriate committee. Since a new comitology procedure (regulatory procedure with scrutiny) has been introduced by Decision 2006/512/EC, the procedure should be implemented only if the criteria laid down in that decision are applicable, namely when measures of general scope are involved, resulting in the amendment of non-essential elements of the legislative act.
Amendment 15 ARTICLE 1, POINT 3 Article 3, indent 5a (Directive 91/440/EEC)
"- "international passenger service" shall mean 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"	"- "international passenger service" shall mean a passenger 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 carriages cross at least one border"
Justification
Reintroduction of the definition in the original Commission proposal, since the further limitation on opening up the network sought by the Council, on the basis of the criterion of the 'principal purpose' of a service, must be rejected, especially since regional traffic is already adequately protected by Article 10(3b) of Directive 91/440/EEC.
Amendment 16 ARTICLE 1, POINT 8 Article 10, paragraph 3a (Directive 91/440/EEC)
"3a. Railway undertakings within the scope of Article 2 shall, by 1 January 2010, be granted the right of access to the infrastructure in all Member States for the purpose of operating an international passenger service. Railway undertakings shall, in the course of an international passenger service, have the right to pick up passengers at any station located on the international route and set them down at another, including stations located in the same Member State.	"3a. Railway undertakings within the scope of Article 2 shall, for the purpose of operating international passenger services, by 1 January 2010, and, for the purpose of operating all other types of passenger service, by 1 January 2017, be granted the right of access to the infrastructure in all Member States. Railway undertakings shall, in the course of an international passenger service, have the right to pick up passengers at any station located on the international route and set them down at another, including stations located in the same Member State.
The right of access to the infrastructure of the Member States for which the share of international carriage of passengers by train constitutes more than half of the passenger turnover of railway undertakings in that Member State shall be granted by 1 January 2012.	The right of access to the infrastructure of the Member States for which the share of international carriage of passengers by train constitutes more than half of the passenger turnover of railway undertakings in that Member State shall be granted by 1 January 2012.
Whether the principal purpose of the service is to carry passengers between stations located in different Member States shall be determined by the relevant regulatory body or bodies referred to in Article 30 of Directive 2001/14/EC following a request from the relevant competent authorities and/or interested railway undertakings.	Member States which acceded to the European Union on or after 1 May 2004 may defer the right of access to the infrastructure for operating national passenger services by up to five years.
Amendment 17 ARTICLE 1, POINT 8 Article 10, paragraph 3b (Directive 91/440/EEC)
(3b) Member States may limit the right of access defined in paragraph 3a on services between a place of departure and a destination which are covered by one or more public service contracts conforming to the Community legislation in force. Such limitation may not have the effect of restricting the right to pick up passengers at any station located on the route of an international service and to set them down at another, including stations located in the same Member State, except where the exercise of this right would compromise the economic equilibrium of a public service contract.	(3b) Member States may limit the right of access defined in paragraph 3a on services which are covered by one or more public service contracts conforming to the Community legislation in force. Such limitation, including where it results in restricting the right to pick up and set down passengers at any station, may be imposed only where the exercise of the right of access would compromise the economic viability of a public service contract.
Whether the economic equilibrium would be compromised shall be determined by the relevant regulatory body or bodies referred to in Article 30 of Directive 2001/14/EC on the basis of an objective economic analysis and based on pre-determined criteria, following a request from:	Whether the economic viability would be compromised shall be determined by the relevant regulatory body or bodies referred to in Article 30 of Directive 2001/14/EC on the basis of an objective economic analysis and based on pre-determined criteria, following a request from:
- the competent authority or competent authorities that awarded the public service contract;	- 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;	- any other interested competent authority with the right to limit access under this Article;
- the infrastructure manager, or	- the infrastructure manager, or
- the railway undertaking performing the public service contract.	- 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, consulting 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 two months of receipt of all relevant information. The regulatory body shall give the grounds for its decision and specify the time period within which, and the conditions under which	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, consulting 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 three months of the request for access. The regulatory body shall give the grounds for its decision and specify the time period within which, and the conditions under which
- the relevant competent authority or competent authorities;	- the relevant competent authority or competent authorities;
- the infrastructure manager;	- the infrastructure manager;
- the railway undertaking performing the public service contract, or	- the railway undertaking performing the public service contract, or
- the railway undertaking seeking access,	- the railway undertaking seeking access,
may request a re-consideration of the decision.	may request a re-consideration of the decision.
Justification
Reintroduction of the European Parliament's position of 28 September 2005 at first reading (see first-reading Amendment 10), the possibility of limiting access, to protect public regional passenger services, being extended to national passenger services, as well.
In order to prevent wilful delay, by an interested party, in the decision taken by the competent authority or authorities, the deadline for the decision should run from the time when the request is submitted, and should also be extended by a month.
Amendment 18 ARTICLE 1, POINT 8 Article 10, paragraph 3c (Directive 91/440/EEC)
3c. Member States may also limit the right to pick up and set down passengers at stations within the same Member State on the route of an international passenger service where an exclusive right to convey passengers between those stations has been granted under a concession contract awarded before ...* on the basis of a fair competitive tendering procedure and in accordance with the relevant principles of Community law. This limitation may continue for the original duration of the contract, or 15 years, whichever is the shorter. ___________ * OJ: Please insert the date of entry into force of this Directive.	deleted
Justification
This further limitation of access, giving the opportunity to restrict the right to convey passengers for a period of up to 15 years, would jeopardise the economic viability of international passenger services, and consequently run counter to the directive's objectives. In addition, regional services are adequately protected by the existing opportunity for limitation provided by Article 10(3b) of Directive 91/440/EEC.
Amendment 19 ARTICLE 1, POINT 8 Article 10, paragraph 3d (Directive 91/440/EEC)
3d. The provisions of this Directive shall not require a Member State to grant, before 1 January 2010, the right of access referred to in paragraph 3a to railway undertakings and their directly or indirectly controlled subsidiaries, licensed in a Member State where access rights of a similar nature are not granted.	3d. The provisions of this Directive shall not require a Member State to grant, before 1 January 2010 in respect of international passenger services and before 1 January 2017 in respect of all other types of passenger service, the right of access referred to in paragraph 3a to railway undertakings and their directly or indirectly controlled subsidiaries, licensed in a Member State where access rights of a similar nature are not granted.
Amendment 20 ARTICLE 1, POINT 8 Article 10, paragraph 3e (Directive 91/440/EEC)
3e. Member States shall take the necessary measures to ensure that the decisions referred to in paragraphs 3b, 3c and 3d are subject to judicial review.	3e. Member States shall take the necessary measures to ensure that the decisions referred to in paragraphs 3b and 3d are subject to judicial review.
Justification
Adjustment to reflect Amendment 18.
Amendment 21 ARTICLE 1, POINT 8 Article 10, paragraph 3f, subparagraph 1 (Directive 91/440/EEC)
Without prejudice to paragraph 3b, Member States may, under the conditions laid down in this Article, authorise relevant authorities to raise a levy on all rail passenger transport services on their territory in order to contribute to the financing of public service obligation compensation in the framework of public services contracts concluded in accordance with Community law.	Without prejudice to paragraph 3b, Member States may, under the conditions laid down in this Article, authorise an authority responsible for rail transport to impose a levy on railway undertakings providing an international passenger service for the operation of routes which fall within the jurisdiction of that authority and which are operated between two stations in that Member State.
	In that case, railway undertakings providing a domestic transport service shall be subject to the same levy on the operation of those routes.
Amendment 22 ARTICLE 1, POINT 8 Article 10, paragraph 3f, subparagraph 2 (Directive 91/440/EEC)
In conformity with Community law, the compensation referred to in the first subparagraph may not exceed what is necessary to cover all or part of the cost incurred in the discharge of public service obligations taking into account the relevant receipts and a reasonable profit for discharging those obligations.	The levy is intended to compensate the authority for discharging public service obligations in the context of a public service contract concluded in conformity with Community law. The compensation may not exceed what is necessary to cover the cost incurred in the discharge of public service obligations taking into account the relevant receipts and a reasonable profit for discharging those obligations.
Amendment 23 ARTICLE 1, POINT 8 Article 10, paragraph 3f, subparagraph 3 (Directive 91/440/EEC)
The levy shall be raised in accordance with Community law, in particular respecting the principles of fairness, transparency, non-discrimination and proportionality, in particular between the price of the service and the level of the levy. The obligation to contribute to the financing of the public service obligations’ compensation shall not endanger the economic viability of the international passenger service.	The levy shall be raised in accordance with Community law, in particular respecting the principles of fairness, transparency, non-discrimination and proportionality, in particular between the price of the service and the level of the levy. The total levies raised shall not endanger the economic viability of the international passenger service on which they are imposed.
Amendment 24 ARTICLE 1, POINT 9 Article 10, paragraph 8, indent 1 (Directive 91/440/EEC)
– implementation of this Directive in the Member States and the effective working of the various bodies involved;	– implementation of this Directive in the Member States, in particular its impact in the small countries of the Union, and the effective working of the various bodies involved;
Justification
The evaluation report on the implementation of the Directive should take account of the impact on the small countries of the Union as they will be particularly affected by liberalisation.
Amendment 25 ARTICLE 1, POINT 10 Article 10, paragraph 9 (Directive 91/440/EEC)
9. By 31 December 2012, the Commission shall submit to the European Parliament, the Council, the European Economic and Social Committee, and the Committee of the Regions a report on the implementation of the provisions of paragraph 3.	9. By 1 January 2018, the Commission shall submit to the European Parliament, the Council, the European Economic and Social Committee, and the Committee of the Regions a report on the implementation of the provisions of paragraphs 3b and 3d.
	In a report to be submitted to the European Parliament, the Council, the European Economic and Social Committee, and the Committee of the Regions by 31 December 2012, the Commission shall specifically analyse the state of preparation for the opening of the market for national passenger services. In this report the Commission shall, if appropriate, propose further complementary measures to facilitate the opening of this market and respect for public service obligations.
Amendment 26 ARTICLE 1, POINT 10 A (new) Article 11, paragraph 2 (Directive 91/440/EEC)
	10a) Article 11(2) shall be replaced by the following:
	“2. The amendments necessary to adapt the Annexes shall be adopted by use of the regulatory procedure with scrutiny referred to in Article 11a(3).”
Justification
The new comitology procedure (regulatory procedure with scrutiny) should apply here, as these are measures of general scope resulting in the amendment of non-essential elements of the directive.
Amendment 27 ARTICLE 1, POINT 10 B (new) Article 11a, paragraph 3 (Directive 91/440/EEC)
	10b) Article 11a(3) shall be replaced by the following:
	“3. When reference is made to this paragraph, Articles 5a(1) to (4), and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.”
Justification
The new regulatory procedure with scrutiny should be incorporated in this paragraph of the comitology article (see also the rapporteur’s amendment to Article 11(2) of Directive 91/440/EEC).
Amendment 28 ARTICLE 2, POINT 3 Article 13, paragraph 4 (Directive 2001/14/EEC)
"4. When an applicant intends to request infrastructure capacity with a view to operating an international passenger service as defined in Article 3 of Directive 91/440/EEC, it shall inform the infrastructure managers and the regulatory bodies concerned. In order to enable the assessment of the purpose of the international service to carry passengers between stations located in different Member States, and the potential economic impact on existing public service contracts, regulatory bodies shall ensure that any competent authority that has awarded a rail passenger service defined in a public service contract, any other interested competent authority with a right to limit access under Article 10(3b) of Directive 91/440/EEC and any railway undertaking performing the public service contract on the route of this international passenger service is informed."	"4. When an applicant intends to request infrastructure capacity with a view to operating a passenger service as defined in Directive 91/440/EEC, it shall inform the infrastructure managers and the regulatory bodies concerned. In order to enable the assessment of the potential economic impact on existing public service contracts, regulatory bodies shall ensure that any competent authority that has awarded a rail passenger service defined in a public service contract, any other interested competent authority with a right to limit access under Article 10(3b) of Directive 91/440/EEC and any railway undertaking performing the public service contract on the route of this international passenger service is informed."
Justification
Adjustment to reflect the new provisions of Article 10(3a) of Directive 91/440/EEC (see Amendment 16).
Amendment 29 ARTICLE 2, POINT 4 Article 17, point 5a, paragraph 1 (Directive 2001/14/EC)
5a. For services using specialised infrastructure referred to in Article 24 which requires substantial and long-term investment, duly justified by the applicant, framework agreements may be for a period of 15 years. Any period longer than 15 years shall be permissible only in exceptional cases, in particular where there is large-scale, long‑term investment, and particularly where such investment is covered by contractual commitments including a multi-annual amortisation plan.	5a. For services using specialised infrastructure referred to in Article 24 which requires substantial investment that can only be paid off over a long period, duly justified by the applicant, framework agreements may be for a period of 15 years. Any period longer than 15 years shall be permissible only in exceptional cases, in particular where there is large-scale investment that can only be paid off over a long period. In all such cases the relevant agreements shall establish contractual commitments setting out in detail the investment to be made and the receipts, expenditure and operational plan, including a multi-annual amortisation plan, for the investments, justifying the long-term award or allocation of infrastructure capacity.
Amendment 30 ARTICLE 2, POINT 4 Article 17, point 5a, paragraph 3 (Directive 91/440/EEC)
5a. As from 1 January 2010, an initial framework agreement may be drawn up for a period of 5 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 30 shall be responsible for authorising the entry into force of such an agreement.	5a. As from 1 January 2010 for international passenger services and 1 January 2017 for all other types of passenger service, an initial framework agreement may be drawn up for a period of 5 years, renewable once for a further 5 years, on the basis of the capacity characteristics used by applicants operating services before 1 January 2010 or 1 January 2017, respectively, in order to take account of specialised investments or the existence of commercial contracts. The regulatory body referred to in Article 30 shall be responsible for authorising the entry into force of such an agreement.
Amendment 31 ARTICLE 2, POINT 5 A (new) Article 34, paragraph 3 (Directive 200/14/EC)
	5a) Article 34(3) shall be replaced by the following:
	“3. The amendments necessary to adapt the Annexes shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 35(3).”
Justification
The new comitology procedure (regulatory procedure with scrutiny) should apply here, as these are measures of general scope resulting in the amendment of non-essential elements of the directive.
Amendment 32 ARTICLE 2, POINT 5 B (new) Article 35, paragraph 3 (Directive 200/14/EC)
	5b) Article 35(3) shall be replaced by the following:
	“3. When reference is made to this paragraph, Articles 5a(1) to (4), and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.”
Justification
The new regulatory procedure with scrutiny should be incorporated in this paragraph of the comitology article (see also the rapporteur’s amendment to Article 11(2) of Directive 91/440/EEC).

• [1]  OJ C 227, 21.9.2006, p. 86
• [2]  Not yet published in OJ.

EXPLANATORY STATEMENT

I.    Commission proposal

On 3 March 2004, under what is known as the third railway package, the Commission presented the proposal for a directive of the European Parliament and of the Council amending Council Directive 91/440/EEC on the development of the Community's railways (COM(2004) 139). The key features of the proposal, building on the first and second railway packages, were as follows:

1. The Member States' national rail networks were to be opened up by 1 January 2010 for non-discriminatory use by all railway undertakings providing international passenger services.

2. In that connection, railway undertakings were to be permitted to pick up and set down passengers at all stations on the international route, including conveying them between two stations in the same Member State (cabotage).

3. It was to be possible to limit the opening-up of networks if this would jeopardise the economic equilibrium of a passenger service laid down in a public service contract.

II.  Parliament's first reading

On 28 September 2005 the European Parliament adopted its opinion at first reading. In doing so it made the following major changes to the Commission proposal:

1. In the legislative procedure concerning the second railway package Parliament had already called, by an overwhelming majority, for rail networks to be opened up not only for international but also for domestic passenger services, both by 1 January 2008. Building on that position, Parliament now proposed a phased approach, whereby international passenger services would be opened up by 1 January 2008 and all other types of passenger service by 1 January 2012.

2. The possibility, envisaged by the Commission, of limiting the opening-up of networks to protect regional and local rail services covered by public service contracts was endorsed, but – particularly with regard to the power to take such decisions – was worded more tightly and linked to the criterion of economic viability of the public service.

3. Member States were to remain free to anticipate the granting of access rights to their networks, but at the same time they were to be allowed to limit the granting of such rights to railway undertakings from those Member States in which analogous conditions regarding access to railway infrastructure applied (reciprocity clause).

4. Parliament also proposed modifying Directive 2001/14/EC on the allocation of railway infrastructure capacity, as well. In order to make it easier for railway undertakings to create specialised infrastructure such as high-speed lines, it was to be possible for framework agreements for such passenger services to be concluded for up to 10 years.

5. Additionally, Parliament called on the Council finally to adopt a common position on the revision of Regulation (EEC) No 1191/69 on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway, not least so as to define afresh, and more precisely, the possibility of limiting network access.

III. The Council's common position

On 18 September 2006 the Council forwarded its common position to the European Parliament. Its drafting of the text of the directive essentially diverges from Parliament's version where the following points are concerned:

1. The Council rejects the opening-up of rail networks for national passenger services and proposes that networks not be opened up for international passenger services until 1 January 2010.

2. For Member States where international passenger services account for more than half of the railway undertakings' passenger turnover, the networks do not have to be opened up until 1 January 2012.

3. The Council continues to seek to limit the opening-up of networks by means of the new criterion of 'principal purpose', whereby it wants only to open up networks for those international services in respect of which the carriage of passengers between stations in different Member States has been recognised as their so-called 'principal purpose'.

4. The Council also wants to limit the opening-up of networks by giving the Member States the possibility of refusing to open them up, or restricting such opening-up, for up to 15 years on the grounds of concession contracts.

5. Finally, the Council wants to place economic restrictions on the opening-up of networks by means of a new levy to benefit State funding of public regional and local passenger services; this levy is to apply across the board to all passenger services.

6. Where the possibility of limiting the opening-up of networks to protect regional and local passenger services covered by public service contracts is concerned, the Council lays down a very comprehensive procedure and once again cites the criterion of the economic equilibrium of the public service contract.

7. The Council has taken over the reciprocity clause introduced by Parliament, with some drafting changes.

8. The Council introduces a new proposal whereby the Member States may exclude railway services carried out in transit through the Community from the scope of the directive.

9. The Council also proposes, as a new provision, that Malta and Cyprus be exempted from the obligation to transpose the directive as long as neither has a railway system.

10. The Council has also made minor changes with regard to reporting requirements.

11. Finally, the Council has taken over Parliament's proposal to modify Directive 2001/14/EC on the allocation of railway infrastructure capacity, as well, but has extended the term of framework agreements covering specialised infrastructure to up to 15 years and has also made other, more procedural amendments.

IV. The Committee's proposals

The Committee’s amendments are largely based on Parliament's position of 28 September 2005 at first reading.

1. As previously decided by Parliament, by an overwhelming majority, in the legislative procedure concerning the second railway package (see Parliament's opinion of 23 October 2003), the Committee maintains its view that national rail networks should be opened up for all passenger services. Since the legal framework for railways must be transposed by the end of 2006, it not only makes sense to open up networks for international passenger services by 1 January 2010, but is also entirely feasible to do so. To make concessions to the Council, which is still expressing reservations about what it regards as opening up national passenger services too hastily, the Committee proposes postponing the opening-up of all other types of passenger service further, until 1 January 2017. Ten years from now it ought in any case to be possible to complete the implementation of the principle of the European single market in the railway sector, too, and use this legislation to make a fourth railway package superfluous. See Amendment 16 and also Amendments 1, 4, 5, and 28.

2. The Committee proposes accepting a later date (two years later) for opening up networks in those Member States where international passenger services could have a major impact on national passenger services. See paragraph 2 of Amendment 16.

3. With regard to the possibility of limiting the opening up of networks to protect regional and local passenger services covered by public service contracts, pursuant to the new paragraph 3b of Article 10, the Committee recommends accepting the Council's extremely comprehensive provision, with minor changes and a return to Parliament's criterion of the viability of the public service contract. However, in the vote in committee there was not a majority in favour of substituting the criterion of ‘economic viability’ for ‘economic equilibrium’ every time it appeared in the text of the common position – cf. Recital 12. See Amendment 17 and also Amendments 5 and 12.

4. The Committee believes strongly that the Council's proposed new limitations on opening up networks – the 'principal purpose' of the carriage of passengers and the priority given to long-term concession contracts – should be rejected. In this connection, see also the relevant statement by the Portuguese Republic in Annex II to the common position. After all, in striking a balance between opening up the single market, which has been an objective for decades, and the special interests of public regional and local passenger services, the possibility of limiting the opening-up of networks can be justified by the new wording of Article 10(3b). However, the Committee did not accept the rapporteur’s recommendation to abolish the general levy without replacing it – cf Recital 13 and the proposed new Article 10(3f) of Directive 91/440/EEC – but proposed amendments in this area. See Amendments 16, 18, 20 and 28, and also Amendments 3 and 15.

5. Where the Council's proposed new reporting requirements are concerned, the Committee proposes what are essentially drafting changes. An additional report in 2012 should analyse the state of preparation for opening up national passenger services. See Amendment 25 and also Amendment 13.

6. The Council's very comprehensive proposals (some of which are new) for amending Directive 2001/14/EC on the allocation of railway infrastructure capacity should essentially be accepted, and supplemented by an explanatory justification.

7. The committee recommends taking over the new proposals on transit and on the exemptions for Cyprus and Malta, and therefore proposes no changes.

8. In conclusion, your rapporteur points out that Parliament's insistence at first reading on the need for the Council to adopt a common position on the revision of the Regulation on public regional and local passenger services, in parallel to this legislative procedure (see Amendment 1 to the committee's report at first reading), has proved successful.

MINORITY OPINION

expressed, pursuant to Rule 48(3) of the Rules of Procedure

by Helmuth Markov, Erik Meijer and Pedro Guerreiro

We wish to set out the reasons for our vote against the common position adopted by the Council of the European Union.

We cannot accept that the Commission is proposing a third package aiming to speed up passenger transport liberalisation when the second package has only just been adopted.

Still less can we accept the proposals of the Council common position, or the recommendation for second reading adopted by the Parliamentary committee, which aim to go even further and propose total liberalisation of the railways in a very short time.

These proposals have been made with no assessment of the effects of the previous measures, or of the social or environmental situation, or with regard to rebalancing rail in relation to other forms of transport. They have been made without any evaluation and have not drawn the lessons from the adverse experiences of various countries which went ahead with liberalisation; moreover they are not based on any serious analysis from more than one point of view of ways of assisting railway development in Europe.

These proposals are based on nothing but an a priori ideology making ultraliberalism an absolute and general rule.

We, on the other hand, call for Europe to provide the assistance needed for this mode of transport which is essential for sustainable development, regional cohesion and the development of Europe's economy. We consider that such measures should be thought out and proposed in cooperation with all those involved in the sector.

PROCEDURE

Title	Council common position for adopting a directive of the European Parliament and of the Council amending Council Directive 91/440/EEC on the development of the Community's railways and Directive 2001/14/EC of the European Parliament and of the Council on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure
References	5895/2/2006 – C6‑0309/2006 – 2004/0047(COD)
Date of Parliament’s first reading – P number	21.9.2005	T6-0354/2005
Commission proposal	COM(2004)0139 – C6-0001/2004
Amended Commission proposal
Date receipt of common position announced in plenary	25.9.2006
Committee responsible   Date announced in plenary	TRAN 25.9.2006
Rapporteur(s)   Date appointed	Georg Jarzembowski 22.8.2006
Previous rapporteur(s)
Discussed in committee	10.10.2006		21.11.2006		18.12.2006
Date adopted	19.12.2006
Result of final vote	+: –: 0:	30 10 5
Members present for the final vote	Gabriele Albertini, Margrete Auken, Inés Ayala Sender, Etelka Barsi-Pataky, Paolo Costa, Michael Cramer, Arūnas Degutis, Christine De Veyrac, Petr Duchoň, Saïd El Khadraoui, Roland Gewalt, Luis de Grandes Pascual, Mathieu Grosch, Ewa Hedkvist Petersen, Jeanine Hennis-Plasschaert, Stanisław Jałowiecki, Georg Jarzembowski, Dieter-Lebrecht Koch, Jörg Leichtfried, Bogusław Liberadzki, Eva Lichtenberger, Erik Meijer, Robert Navarro, Seán Ó Neachtain, Josu Ortuondo Larrea, Willi Piecyk, Reinhard Rack, Gilles Savary, Renate Sommer, Dirk Sterckx, Ulrich Stockmann, Gary Titley, Georgios Toussas, Armando Veneto, Marta Vincenzi, Corien Wortmann-Kool, Roberts Zīle
Substitute(s) present for the final vote	Zsolt László Becsey, Johannes Blokland, Nathalie Griesbeck, Zita Gurmai, Elisabeth Jeggle, Rosa Miguélez Ramos, Zita Pleštinská, Vladimír Remek
Substitute(s) under Rule 178(2) present for the final vote
Date tabled	21.12.2006
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