4th Railway Package: • Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1370/2007 concerning the opening of the market for domestic passenger transport services by rail. - Preparation of an informal trilogue

Contents

  1. Kerngegevens
  2. Tekst
  3. Behandeld document
  4. Meer informatie
  5. EU Monitor

1.

Kerngegevens

Document­datum 15-01-2016
Publicatie­datum 16-01-2016
Kenmerk 5159/16 ADD 1
Van General Secretariat
Externe link origineel bericht
Originele document in PDF

2.

Tekst

Council of the European Union

Brussels, 15 January 2016

PUBLIC

(OR. en)

5159/16

Interinstitutional Files: ADD 1

2013/0028 (COD) i

2013/0029 (COD) i LIMITE

TRANS 4 CODEC 16

REPORT

From: General Secretariat

To: Permanent Representatives Committee (Part 1)

No. prev. doc.: 113146/15 TRANS 333 CODEC 1360

No. Cion doc.: 5960/13 TRANS 35 CODEC 209

5985/13 TRANS 36 CODEC 216

Subject: 4th Railway Package:

• Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1370/2007 i concerning the opening of the market for domestic passenger transport services by rail.

  • - 
    Preparation of an informal trilogue

Delegations will find some Presidency compromise proposals in the fourth column of the table in

annex with a view to the upcoming trilogue on 28 January 2016.

Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1370/2007 i concerning the opening of the market for domestic passenger transport services by rail

2013/0028 (COD) i

(Text with EEA relevance)

Commission proposal EP amendments Council general approach

COM(2013)0028 i P7_TA(2014)0148 ST 12777/15 Remarks/compromise proposal

  • 1. 
    THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

    Having regard to the Treaty on the Functioning of the European Union, and in particular Article 91 thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national Parliaments, Having regard to the opinion of the European Economic and Social Committee 1 , Having regard to the opinion of the Committee of the Regions 2 ,

    Acting in accordance with the ordinary legislative procedure, Whereas:

  • 2. 
    Amendment 1

    Recital 1 3. (1) Over the past decade, the growth (1) Over the past decade, the growth [Proposed recitals are not examined

    of passenger traffic by rail has been of passenger traffic by rail has been in the general approach] insufficient to increase its modal share insufficient to increase its modal share in comparison to cars and aviation. in comparison to cars and aviation. The 6% modal share of passenger The 6% modal share of passenger transport for rail in the European transport for rail in the European Union has remained fairly stable. Rail Union has remained fairly stable. Rail passenger services have not kept pace passenger services have not kept pace with evolving needs in terms of with the evolution of other modes of availability and quality. transport in terms of availability, price and quality. Bearing that in mind, all relevant lessons need to be learnt from the approach adopted by

1 OJ C , , p. . 2 OJ C , , p. .

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the Union in the course of the last three railway reforms.

  • 4. 
    Amendment 2

    Recital 1a (new) 5. (1a) Rail transport plays a major role

    socially and environmentally, and in terms of mobility planning, and can significantly increase its overall share of European passenger transport. In this regard, investment in research as well as in infrastructure and rolling stock can make a significant contribution to new growth, thereby boosting employment directly in the railway sector and indirectly by increasing the mobility of employees of other sectors. Rail transport has the potential to develop into an important modern branch of Union industry, provided that Member States agree on greater cooperation.

  • 6. 
    (1a) A specific objective of this

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

  • 7. 
    (2) The Union market for international passenger transport services by rail

    has been opened to competition since 2010. In addition, some Member States have opened their domestic passenger services to competition, by

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introducing open access rights or tendering for public service contracts or both.

  • 8. 
    Amendment 5

    Recital 3 9. (3) In its White Paper on transport (3) In its White Paper on transport

    policy of 28 March 2011 3 the policy of 28 March 2011 the

    Commission announced its intention Commission announced its intention to complete the internal railway to complete the internal railway market, allowing railway undertakings market, allowing railway undertakings of the Union to provide all types of of the Union to provide all types of rail transport services without rail transport services without unnecessary technical and unnecessary technical and administrative barriers. administrative barriers. In order to better achieve that objective, the current reform needs to be conceived in the light of the railway models which have proved to be effective in the Union.

  • 10. 
    Amendment 6

    Recital 3a (new) 11. (3a) The quality of public services for

    rail passenger transport should be improved and their efficiency increased, whilst existing public passenger transport services that function efficiently are maintained.

  • 12. 
    Amendment 7

    Recital 3b (new) 13. (3b) The completion of the opening

    of the Union railway market should

3 White Paper : Roadmap to a Single European Transport Area – Towards a competitive and resource efficient transport system ; COM(2011)144 i

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be considered to be essential in order for the railway to become a credible alternative to other modes of transport, in terms of price and quality.

  • 14. 
    Amendment 8

    Recital 3c (new) 15. (3c) It is essential for the competent

    authorities to play a key role in the organisation of public passenger transport services. Such authorities have responsibility for planning public passenger transport services, including for identifying the routes to be designated for open access or awarded under public service contracts and for determining the award procedure. Furthermore, they should justify that viability, efficiency and quality targets can only be achieved by using the award procedure that they have chosen, and should publish this justification.

  • 16. 
    Amendment 9

    Recital 4 17. (4) When competent authorities (4) When competent authorities

    organise their public passenger organise their public passenger transport services they need to ensure transport services they need to ensure that public service obligations and the that public service obligations and the geographical scope of public service geographical scope of public service contracts are appropriate, necessary contracts are appropriate, necessary and proportionate to achieve the and proportionate to achieve the objectives of the public passenger objectives of the public passenger

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transport policy in their territory. This transport policy in their territory. This policy should be set out in public policy should be set out in sustainable transport plans leaving scope for public transport plans leaving scope market based transport solutions. The for market based transport solutions. process of defining public transport The process of defining public plans and public service obligations transport plans and public service should be made transparent to relevant obligations should be made stakeholders including potential transparent to relevant stakeholders market entrants. including potential market entrants.

  • 18. 
    (4a) Public service obligations should be in line with public

    transport policy. However, this does not entitle the competent authorities to receive a specific amount of funding.

  • 19. 
    Amendment 10

    Recital 5 20. (5) To ensure sound financing to meet (5) To ensure sound financing to meet

    the objectives of public transport the objectives of sustainable public plans, competent authorities need to transport plans, competent authorities design public service obligations to need to design public service attain public transport objectives in a obligations to attain public transport cost-effective manner taking account objectives both in a high-quality and of the compensation for the net in a cost-effective manner, taking financial effect of those obligations account of the compensation for the and they need to ensure long-term net financial effect of those financial sustainability of public obligations and they need to ensure transport provided under public long-term financial sustainability of service contracts. public transport provided under public service contracts. That includes avoiding both over- and undercompensation, caused by the substance of the public service

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obligations, or the failure of the competent authority to meet its financial commitments. Public service obligations may refer to networks in which some services can be operated with a fair profit without financial compensation; the inclusion of such services within the scope of the public service obligations should not result in compensation payments exceeding the amount necessary for providing the whole range of network services.

  • 21. 
    (6) It is particularly important that competent authorities comply with these criteria for public service

    obligations and the scope of public service contracts if the market for public passenger transport by rail is to run smoothly, because open access transport operations need to be well coordinated with those under public service contract. For this reason, the independent rail regulatory body should ensure that this process is correctly applied and transparent.

  • 22. 
    (6a) In order to take into account the diversity of the territorial and political organization of Member States, public service contract may be awarded by a competent

    authority that is a combination of public authorities. In such

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circumstances, clear rules should set the respective roles of each of them in the awarding process of public service contract.

  • 23. 
    (6b) Considering the diversity of administrative divisions existing in Member States, in case of contracts for the provision of public

    passenger transport services by rail directly awarded by a group of local competent authorities as referred to in Article 5(2), the determination of which local authorities are competent regarding the concerned "urban agglomerations" and "rural areas" remains at the discretion of Member States.

  • 24. 
    Amendment 64

    Recital 7 25. (7) A maximum annual volume of a (7) The volume of a public service

    public service contract for passenger contract for passenger transport by rail transport by rail needs to be set to which will be awarded on the basis of facilitate competition for such a competitive tendering procedure contracts while allowing competent needs to be set in a way that authorities some flexibility to optimise facilitates competition between small the volume according to economic bidders, new entrants and the and operational considerations. incumbent operator for such contracts while allowing competent authorities some flexibility to optimise the volume according to economic and operational considerations.

  • 26. 
    (7a) A recital could be added to clarify the cases that are covered by

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Art 5(3a) (bridging contracts by direct awards in exceptional circumstances).

  • 27. 
    Amendment 12

    Recital 8 28. (8) To facilitate the preparation of (8) To facilitate the preparation of

    tenders, and hence enhance tenders, and hence enhance competition competent authorities competition competent authorities need to ensure that all public service need to ensure that, whilst protecting operators interested in making such a business secrets, all public service submission receive certain operators interested in making such a information on the transport services submission receive certain and infrastructure covered by the information on the transport services public service contract. and infrastructure covered by the public service contract that prevents them from being deemed to have been discriminated against by the contracting authority with regard to other competitors.

  • 29. 
    (9) Certain upper limits for the direct award of public service contracts need to be adapted for rail transport to the specific economic conditions under which tender procedures take place in this sector.
  • 30. 
    (9a) A recital could be included to clarify that the higher threshold

    applies to public passenger transport services by rail or to public passenger transport services where rail represents more than 50% of the value of the services in question.

  • 31. 
    Amendment 65

    Recital 9a (new)

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  • 32. 
    (9a) The principle of reciprocity should be applied in order to ensure fair competition and to prevent the misuse of compensation. That

    principle should apply not only to Member States and companies established in the Union but also to companies from third countries that wish to participate in procurement procedures within the Union.

  • 33. 
    Amendment 14

    Recital 10 34. (10) The establishment of an Internal (10) The establishment of an Internal

    Market for passenger transport Market for passenger transport services by rail requires common rules services by rail requires common rules on competitive tendering for public on competitive tendering for public service contracts in this sector to be service contracts in this sector which applied in a harmonised manner in all are applicable in a harmonised Member States. manner in all Member States, whilst taking into account the specific circumstances of each Member State.

  • 35. 
    Amendment 16

    Recital 11 36. (11) In view of creating framework (11) With a view to creating

    conditions for enabling society to framework conditions for enabling fully reap the benefits of effective society to fully reap the benefits of opening of the market for domestic effective opening of the market for passenger transport services by rail it domestic passenger transport services is important that Member States by rail it is important that Member ensure an adequate level of social States ensure an adequate level of protection for the staff of public social protection for the staff of public service operators. service operators.

  • 37. 
    (12) Where the market does not

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ensure it under suitable economic and non-discriminatory conditions, public service operators' access to rail rolling stock needs to be facilitated by competent authorities through adequate and effective measures.

  • 38. 
    (12a) A recital could be included to explain that the purpose of the

    provision on rail rolling stock is to ensure effective competition in the tendering process.

  • 39. 
    (13) Certain key features of upcoming tender procedures for public service

    contracts need to be fully transparent to enable a better organised market response.

  • 40. 
    Amendment 66

    Recital 14 41. (14) Consistent with the internal logic [deleted]

    of Regulation (EC) No 1370/2007 i, it should be made clear that the transitional period until 2 December 2019 refers only to the obligation to organise competitive tendering procedures for public service contracts.

  • 42. 
    Amendment 67

    Recital 15 43. (15) Preparing railway undertakings [deleted]

    for mandatory competitive tendering for public service contracts requires some extra time to allow effective and sustainable internal restructuring of

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companies to which such contracts were directly awarded in the past. Transitional measures are therefore necessary for contracts directly awarded between the date of entry into force of this Regulation and 3 December 2019.

  • 44. 
    (16) Once opening of the market for domestic passenger transport services by rail is achieved, as competent

    authorities may need to take measures to ensure a high level of competition by limiting the number of contracts that it awards to one railway undertaking, adequate provisions should be provided for.

  • 45. 
    (17) In order to ensure uniform (17) In order to ensure uniform conditions for the implementation of conditions for the implementation of Article 5a of this Regulation, this Regulation, implementing powers implementing powers should be should be conferred on the

    conferred on the Commission. Those Commission. Those powers should be powers should be exercised in exercised in accordance with accordance with Regulation (EU) No Regulation (EU) No 182/2011 i of the 182/2011 of the European Parliament European Parliament and of the and of the Council of 16 February Council of 16 February 2011 laying 2011 laying down the rules and down the rules and general principles general principles concerning concerning mechanisms for control by mechanisms for control by the the Member States of the Member States of the Commission's Commission's exercise of

    exercise of implementing powers 4 . implementing powers. 46. (18) In the context of amendments to (18) In the context of amendments to

4 OJ L 55, 28.2.2011, p. 13

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the Regulation (EC) No 994/98 i the Regulation (EC) No 994/98 i (Enabling Regulation) 5 , the (Enabling Regulation), the Commission proposed also an Commission proposed also an amendment of Regulation (EC) No amendment to Regulation (EC) No 1370/2007 i (COM(2012) 730 i/3). In 1370/2007 (COM(2012) 730 i/3). In order to harmonize the approach to order to harmonize the approach to block exemption regulations in the block exemption regulations in the field of State aid and, in accordance field of State aid and, in accordance with the procedures foreseen in with the procedures foreseen in Articles 108(4) and 109 of the Treaty, Articles 108(4) and 109 of the Treaty, aid for the coordination of transport or aid for the coordination of transport or reimbursement for the discharge of reimbursement for the discharge of certain obligations inherent in the certain obligations inherent in the concept of a public service as referred concept of a public service as referred to in Article 93 of the Treaty should to in Article 93 of the Treaty should be brought under the scope of the be brought under the scope of the Enabling Regulation. Enabling Regulation.

  • 49. 
    Article 1 Article 1
  • 50. 
    Amendment 17

    Article 1 – introductory part 51. Regulation (EC) No 1370/2007 i is Without prejudice to Directive Regulation (EC) No 1370/2007 i is EP amendment not acceptable

    amended as follows: 2014/25/EU of the European amended as follows: This amendment would create legal Parliament and of the Council, uncertainty, as Directive

5 Proposal for a COUNCIL REGULATION amending Council Regulation (EC) No 994/98 i of 7 May 1998 on the application of Articles 92 and

93 of the Treaty establishing the European Community to certain categories of horizontal State aid and Regulation (EC) No 1370/2007 i of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road, COM(2012) 730 final i of 5.12.2012

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Regulation (EC) No 1370/2007 i is 2014/25/EU does not prevail over hereby amended as follows: the PSO Regulation. The PSO Regulation is a lex specialis to Directive 2014/25 i/EU. Furthermore, there is a large number of other related legislative acts which are applicable and are not mentioned here.

  • 52. 
    Amendment 18

    Article 1 – point 1 – point -a (new) Regulation (EC) No 1370/2007 i

    Article 2 – point aa (new) 53. (-a) The following point is inserted: 1. The following point is inserted EP amendment not acceptable

    after point (a) of Article 2: This amendment gives the possibility ‘(aa) ’public rail passenger to MS to include tram-train systems transport‘ means public passenger "(aa) ‘public passenger transport or not, thereby creating a definition transport by rail, excluding services by rail’ means public à la carte. Such definition creates passenger transport on other trackpassenger transport by rail, legal uncertainty. based modes, such as metros, excluding passenger transport on tramways or, if Member States so other track-based modes, such as decide , tram-train systems;’; metros or tramways".

  • 54. 
    1. a) Point (c) of Article 2 is replaced Point (c) is replaced by the following [deleted] by the following:
  • 55. 
    Amendment 19

    Article 1 – point 1 – point a Regulation (EC) No 1370/2007 i

    Article 2 – point c 56. "(c) "competent local authority" ‘(c) ’competent local authority‘ means [deleted] EP amendment not acceptable

    means any competent authority whose any competent authority whose The definition in force is already geographical area of competence is geographical area of competence is transposed in the MS and the not national and which covers the not national and which covers, the proposed changes are not necessary, transport needs of an urban transport needs of, inter alia, an urban nor justified. agglomeration or a rural district;" agglomeration and/or a rural area, or The addition of the word "inter alia"

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a region, including at cross-border creates legal uncertainty as it opens level;’; the possibility of extending the definition of competent local authority too much. What is key is to avoid the risk of abuses in case of a grouping of competent local authorities providing public passenger transport services themselves (pt 125 - Article 5(2) GA).

  • 57. 
    b) Point (e) of Article 2 is In point (e) the following [deleted] complemented by the following: subparagraph is added:
  • 58. 
    Amendment 20

    Article 1 – point 1 – point b Regulation (EC) No 1370/2007 i

    Article 2 – point e 59. "The scope of public service ‘The scope of public service [deleted] EP amendment not acceptable

    obligations shall exclude all public obligations shall cover public The impact of the proposed changes transport services that go beyond of transport services that are necessary, is not clear and maintaining the what is necessary to reap local, inter alia, for the benefits of current definitions has allowed to regional or sub-national network economic, technical or geographical reach a delicate balance between the effects. network effects to be reaped at local, MS. regional or sub-national level. Such Definition of network effects is network effects arise through the problematic. It is far too prescriptive integration of transport services, and impossible to prove ex ante that which makes public transport more public transport services are attractive for passengers and more necessary to reap network effects. efficient for the public transport sector. Network effects may be generated both by services which attain break- even and by services which do not, as well as at various

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geographical-, train schedule- or tariff- levels.’.

  • 60. 
    2. The following Article 2a is 2.The following Article 2a is inserted: inserted:
  • 61. 
    "Article 2a "Article 2a
  • 63. 
    Public transport plans and Multimodal and sustainable Specification of See comments on AM 22.

    public service obligations public transport plans and public public service obligations service obligations

  • 64. 
    Amendment 22

    Article 1 – point 2 Regulation (EC) No 1370/2007 i

    Article 2a – paragraph 1 – subparagraph 1 – introductory part 65. 1. Competent authorities shall 1. Competent authorities shall 1. The competent authority shall EP amendment not acceptable

    establish and regularly update public establish and regularly update define specifications for public The requirement of public transport passenger transport plans covering all multimodal public passenger transport service obligations in public plans that are regularly updated by relevant transport modes for the plans covering all relevant transport passenger transport and the scope the competent authorities is territory for which they are modes for the territory for which they of their application in accordance considered highly disproportionate responsible. These public transport are responsible. These public transport with Article 2(e). in terms of the administrative burden plans shall define the objectives of plans shall define the objectives of and the expected benefits. public transport policy and the means public transport policy and the means Those specifications shall be - Such a requirement would go to implement them covering all to implement them covering all consistent with the objectives of against the principle of subsidiarity, relevant transport modes for the relevant transport modes for the public transport policy. as it is up to each MS to decide the territory for which they are territory for which they are most appropriate format/content of responsible. They shall at least responsible, thereby promoting social such national transport plans. include: and territorial cohesion. It shall be - Furthermore, the MS eligible for possible for those plans to consist of cohesion funding are already information on public transport requested to produce similar plans. plans that already exists in the public - Such provision could constitute the

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domain. Where interregional services legal basis for an applicant already exist, they shall be taken into challenging the award decision account. Those plans shall at least before the national courts, as such include: an unsuccessful applicant could argue that the PSC is not perfectly in line with the public transport plans (which are, by essence, evolving over time to meet the users' needs). - Finally, where a number of different competent authorities are cooperating and/or in federally organised MS, there are additional difficulties in applying such a requirement.

MS wish to use documents existing in the MS, and not involving the creation of new documents. Their format and content should not be prescriptive. The Presidency believes that the following compromise proposal is appropriate to correctly reflect the diversity in approach of MS.

Presidency compromise proposal 1. The competent authority shall define specifications for public service obligations in public passenger transport and the scope of their application in accordance with Article 2(e).

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When defining those specifications and the scope of their application, the competent authority shall duly

respect the principle of proportionality. This includes the possibility to group cost-covering services with not cost-covering services.

Those The specifications shall be consistent with the policy objectives of public transport policy as stated in public transport policy documents in the Member States. The content and format of such documents shall be determined in accordance with national law.

NB: the Presidency is willing to offer this compromise proposal to the EP provided that the EP withdraws its AM 69 (pt 102).

  • 66. 
    (a) the structure of the network or [deleted] routes;
  • 68. 
    (b) basic requirements to be fulfilled (b) basic requirements to be fulfilled [deleted] See comments on AM 22. by public transport offer such as by public transport offer, including,

    accessibility, territorial connectivity, inter alia, accessibility for persons security, modal and intermodal with disabilities, and modal and

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interconnections at main connecting intermodal interconnections at main hubs, offer characteristics such as connecting hubs; times of operation, frequency of services and minimum degree of capacity utilisation;

  • 69. 
    Amendment 24

    Article 1 – point 2 Regulation (EC) No 1370/2007 i

    Article 2a – paragraph 1 – subparagraph 1 – point ba (new) 70. (ba) for public rail passenger See comments on AM 22.

    transport, efficiency criteria including inter alia modal share of public transport, punctuality, costefficiency, frequency of services, customer satisfaction and the quality of rolling stock;

  • 72. 
    (c) quality standards related to items (c) quality and safety standards as [deleted] See comments on AM 22. such as equipment features of stops well as control aspects regarding the

    and of rolling stock, punctuality and rolling stock, infrastructure and reliability, cleanliness, customer services, including information; service and information, complaint handling and redress, monitoring of service quality;

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subparagraph 1 – point d 74. (d) principles of tariff policy; (d) principles of tariff policy, such as [deleted] See comments on AM 22.

the use of social tariffs; 75. Amendment 27

Article 1 – point 2 Regulation (EC) No 1370/2007 i

Article 2a – paragraph 1 – subparagraph 1 – point e

  • 76. 
    (e) operational requirements such as (e) applicable rules regarding [deleted] See comments on AM 22. transport of bicycles, traffic passenger rights, social and

    management, contingency plan in case employment conditions, of disturbances. environmental protection and the establishment of environmental objectives.

  • 78. 
    In establishing public transport plans, [deleted] [deleted] See comments on AM 22. competent authorities shall have

    regard in particular to applicable rules regarding passenger rights, social, employment and environmental protection.

  • 80. 
    The competent authorities shall adopt The competent authorities shall adopt [deleted] See comments on AM 22. the public transport plans after the public transport plans after

    consultation of relevant stakeholders consultation of relevant stakeholders, Consultation also in AM 35 (pt 98)

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and publish them. For the purpose of including at least transport operators, this Regulation, relevant stakeholders infrastructure managers and to be taken into consideration are at representative passenger and least transport operators, infrastructure employee organisations, and shall managers if appropriate, and publish those plans. representative passenger and employee organisations.

  • 81. 
    2. The establishment of public service [deleted] obligations and the award of public

    service contracts shall be consistent with the applicable public transport plans.

  • 82. 
    3. The specifications of public service 2. The specifications of public obligations for public passenger service obligations and the related transport and the scope of their compensation of the net financial application shall be established as effect of public service obligations follows: shall:
  • 83. 
    (a) they shall be defined in accordance (a) achieve the objectives of the Presidency compromise proposal with Article 2 (e); public transport policy in a cost(a) achieve the objectives of the effective manner. This includes the public transport policy in a costpossibility to group cost-covering effective manner. This includes the services with not cost-covering possibility to group cost-covering services; services with not cost-covering

    services;

    NB: deleted part is included in pt 65 84. Amendment 30

    Article 1 – point 2 Regulation (EC) No 1370/2007 i

    Article 2a – paragraph 3 – subparagraph 1 – point b

  • 85. 
    (b) they shall be appropriate to (b) they shall be appropriate to (b) financially sustain the See comments on AM 22. achieve the objectives of the public achieve the objectives of the public provision of public passenger

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transport plan; transport plan, i.e. they shall transport in accordance to the determine the award procedure in requirements laid down in the terms of quality standards to be public transport policy in the long achieved and the appropriate means term."

of doing so, in order to meet the objectives of the public transport plan;

  • 87. 
    (c) they shall not exceed what is (c) they shall be necessary and [deleted] See comments on AM 22. necessary and proportionate to proportionate to achieve the objectives

    achieve the objectives of the public of the public transport plans and, in transport plan. respect of public passenger transport by rail, they shall take into account Directive 2012/34 i/EU of the European Parliament and of the Council 1a . ------------------- 1a Directive 2012/34 i/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area (OJ L 343, 14.12.2012, p. 32).

  • 89. 
    The assessment of appropriateness [deleted] [deleted] See comments on AM 22.

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referred to in point (b) shall take into account whether a public intervention in the provision of passenger transport is a suitable means of achieving the objectives of the public transport plans.

  • 91. 
    For public passenger transport by rail [deleted] [deleted] See comments on AM 22. the assessment of necessity and

    proportionality referred to in point (c) shall take into account the transport services provided under Article 10(2) of Directive 2012/34 i/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area (recast) 6 and consider all information given to the infrastructure managers and regulatory bodies pursuant to the first sentence of Article 38(4) of that Directive.

  • 92. 
    Amendment 34

    Article 1 – point 2 Regulation (EC) No 1370/2007 i

    Article 2a – paragraph 4 93. 4. The specifications of public service The specifications of public service [deleted] See comments on AM 22.

    obligations and the related obligations and the related

6 OJ L 343 of 14.12.2012, p. 32

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compensation of the net financial compensation of the net financial effect of public service obligations effect of public service obligations shall: shall achieve the objectives of the public transport plan in a costeffective manner and shall financially sustain the provision of public passenger transport in the long term.

  • 94. 
    (a) achieve the objectives of the public [deleted] [deleted] transport plan in the most costeffective

    manner; 95. (b) financially sustain the provision of [deleted] [deleted]

    public passenger transport in accordance to the requirements laid down in the public transport plan in the long term.

  • 96. 
    5. When preparing the specifications, [deleted] the competent authority shall set out

    the draft specifications of public service obligations and their scope, the basic steps of the assessment of their compliance with the requirements laid down in paragraphs 2, 3 and 4, and the results of the assessment.

  • 98. 
    The competent authority shall in an The competent authority shall consult [deleted] See comments on AM 22. appropriate manner consult relevant relevant stakeholders such as

    stakeholders such as a minimum, transport operators, infrastructure Consultation also in AM 29 (pt 80) transport operators, infrastructure managers and representative

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managers if appropriate and passenger and employee organisations representative passenger and on these specifications and take their employee organisations on these positions into consideration. specifications and take their positions into consideration.

  • 99. 
    6. For public passenger transport by [deleted] rail:
  • 100. 
    Amendment 36

    Article 1 – point 2 Regulation (EC) No 1370/2007 i Article 2a – paragraph 6 – point a 101. (a) compliance of the assessment and (a) compliance of the assessment and [deleted] See comments on AM 22.

    of the procedure set out in this Article of the procedure set out in this Article shall be ensured by the regulatory shall be ensured by the regulatory body referred to in Art 55 of Directive body referred to in Article 55 of 2012/34/EU including on its own Directive 2012/34 i/EU at the request initiative. of any stakeholder concerned;

  • 103. 
    (b) the maximum annual volume of a (b) the minimum number of public [deleted] EP AM covered in Presidency public service contract in terms of service contracts for rail transport in compromise proposal in pt 65, train-km shall be the higher value of a Member State shall be: thereby providing a legal basis for either 10 million train-km or one third intervention against possible abuses. of the total national public rail – one, in the case of a national

    passenger transport volume under market volume of rail passenger Purpose of the amendment is to public service contract." transport under public service introduce a limit on the volume of a contract of up to 20 million train-km; public service contract (see also AM 64 - pt 25). – two in the case of a national This can have as a result that market volume of rail passenger existing networks that are highly transport under public service interlinked and efficient and that are

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contract of more than 20 million covered by one public service train-km and up to 100 million traincontract have to be divided into two km, on condition that the size of one or three public service contracts. contract does not exceed 75% of the This would not contribute to the total market volume under public efficiency of the network and would service contracts; bring additional costs. It should be left to the MS to decide – three in the case of a national on the volume of their public service market volume of rail passenger contract. If the approach of the transport under public service competent authority in this respect contract of more than 100 million leads to possible abuses, it will be train-km and up to 200 million trainsanctioned by the judge anyway. km, on condition that the size of one It should also be noted that given the contract does not exceed 75% of the safeguard in Article 5(2) (pt 125), total market volume under public the risk of abuses is extremely service contracts; limited.

– four in the case of a national market volume of rail passenger transport under public service contract of more than 200 million train-km, on condition that the size of one contract does not exceed 50% of the total market volume under public service contracts.

  • 104. 
    Amendment 38

    Article 1 – point 2 Regulation (EC) No 1370/2007 i Article 2a – paragraph 6 – point ba

    (new) 105. (ba) The competent authority shall EP AM not acceptable

    determine the routes to be awarded The determination of routes under a

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under public service contracts in PSC is not a discretionary choice by accordance with Directive the competent authorities. It should 2012/34/EU. be justified by necessity and proportionality. The EP AM mixes two issues: - how to ensure and adequate scope for PSO - how to ensure open access

  • 106. 
    3. Article 4 is amended as follows: 3. Article 4 is amended as follows:
  • 107. 
    (a) In paragraph 1, point (a) is (0a) In paragraph 1, point (a) is replaced by the following: replaced by the following:
  • 108. 
    Amendment 39

    Article 1 – point 3 – point a Regulation (EC) No 1370/2007 i Article 4 – paragraph 1 – point a 109. "(a) clearly define the public service ‘(a) clearly define the public service "(a) clearly define the public service EP AM is best placed in pt 120

    obligations laid down in Article 2(e) obligations laid down in Article 2(e) obligations laid down in Article 2(e) and Article 2a with which the public and Article 2a with which the public and Article 2a with which the public service operator is to comply, and the service operator is to comply, and the service operator is to comply, and the geographical areas concerned;" transport networks concerned, and geographical areas concerned;" require the operator to provide the competent authority with all the information essential for the award of public service contracts, whilst protecting business secrets;’;

  • 110. 
    (b) The last sentence of paragraph 1, (a) The last sentence of paragraph 1, point (b) is replaced by the following: point (b) is replaced by the following:

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  • 112. 
    "In the case of public service contracts ‘In the case of public service contracts "In the case of public service contracts

    not awarded according to Article 5(3), not awarded according to Article 5(3), not awarded according to Article 5(1) Council position is in line with these parameters shall be determined these parameters shall be determined or (3), these parameters shall be COM proposal.

    in such a way that no compensation in such a way that compensation determined in such a way that no

    payment may exceed the amount shall neither exceed nor fall below compensation payment may exceed Presidency is of the view that the EP required to cover the net financial the amount required to cover the net the amount required to cover the net AM on under-compensation could effect on costs incurred and revenues financial effect on costs incurred and financial effect on costs incurred and have the following undesirable generated in discharging the public revenues generated in discharging the revenues generated in discharging the effect: if the problem is avoiding an service obligations, taking account of public service obligations, taking public service obligations, taking insufficient amount of compensation revenue relating thereto kept by the account of revenue relating thereto account of revenue relating thereto to cover costs linked to the PSO, the public service operator and a kept by the public service operator kept by the public service operator EP AM would restrict the power of

    reasonable profit;" and a reasonable profit;’; and a reasonable profit;" the competent authorities to incentivise the operator to limit the

    costs for providing the service or to prevent generation of unnecessary or artificial costs (efficiency promotion schemes).

  • 113. 
    Amendment 41

    Article 1 – point 3 – point ba (new) Regulation (EC) No 1370/2007 i

    Article 4 – paragraph 5 114. [Art 4(5) of Regulation 1370/2007 i (ba) Paragraph 5 is replaced by the Presidency compromise proposal:

    wasn’t modified by the Commission following: Inclusion of three recitals to cover proposal – only by the EP] the EP concerns outlines in AM 41 [ORIGINAL WORDING of Regulation ‘5. Without prejudice to national and and 42 1370/2007:] Union law, including representative 5. Without prejudice to national and collective agreements between social "In order to ensure that the Community law, including collective partners, competent authorities shall provision of rail services occurs agreements between social partners, require the selected public service under socially acceptable competent authorities may require the operator to grant staff working conditions, public service selected public service operator to conditions on the basis of binding operators operating rail services grant staff previously taken on to national, regional or local social should apply all binding Union provide services the rights to which standards and/or to implement the social standards. Furthermore,

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they would have been entitled if there compulsory transfer of staff in case they should apply the standards in

had been a transfer within the of change of operator. When such force in the Member State where

meaning of Directive 2001/23/EC i. transfer occurs, the staff previously the public service contract is

Where competent authorities require taken on by the previous operator to awarded"

public service operators to comply provide services shall be granted the

with certain social standards, tender same rights to which they would have "Where a transfer of staff takes

documents and public service been entitled if there had been a place within the meaning of

contracts shall list the staff concerned transfer within the meaning of Directive 2001/23/EC i, that

and give transparent details of their Directive 2001/23/EC i. Where Directive applies to the workers

contractual rights and the conditions competent authorities require public concerned by such transfer."

under which employees are deemed to service operators to comply with

be linked to the services.] certain social standards, tender “With a view to safeguarding

documents and public service employees' rights, competent

contracts shall list the staff concerned authorities are encouraged to

and give transparently details of their examine the need for appropriate

contractual rights and the conditions measures.”

under which employees are deemed to

be linked to the services.‘; NB: Agreed wording from

Directive 2001/23/EC i is used in

this recital.

  • 115. 
    (c) Paragraph 6 is replaced by the (b) Paragraph 6 is replaced by the

following: following:

  • 116. 
    Amendment 42

Article 1 – point 3 – point c

Regulation (EC) No 1370/2007 i

Article 4 – paragraph 6

  • 117. 
    "Where competent authorities, in ‘6. In accordance with national law, "6. Where competent authorities, in GA text on paragraph 6 to be kept

accordance with national law, require the competent authorities shall set accordance with national law, require (identical to COM proposal) + see

public service operators to comply binding quality and social standards, public service operators to comply Presidency compromise proposal in

with certain quality and social lay down appropriate social and with certain quality and social line 114

standards or establish social and qualitative criteria, including the standards or establish social and

qualitative criteria, these standards obligation of public service operators qualitative criteria, these standards

and criteria shall be included in the to comply with the applicable and criteria shall be included in the

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tender documents and in the public representative collective agreements tender documents and in the public service contracts." and ensure decent employment and service contracts." working conditions, including them or make reference thereto in the tender documents and in the public service contracts, regardless of the award procedure.‘;

  • 118. 
    (d) The following paragraph 8 is (c) The following paragraph 8 is added: added:
  • 119. 
    Amendment 43

    Article 1 – point 3 – point d Regulation (EC) No 1370/2007 i

    Article 4 – paragraph 8 120. "8. Competent authorities shall make ‘8. Competent authorities shall make "8. Competent authorities shall EP wishes to extend the protection

    available to all interested parties available to all interested parties make available to all interested parties of confidential business information relevant information for the relevant information for the relevant information for the to other transport services covered preparation of an offer under a preparation of an offer under a preparation of an offer under a by this Regulation. competitive tender procedure. This competitive tender procedure, whilst competitive tender procedure while shall include information on passenger protecting business secrets. This shall taking into consideration the Presidency compromise proposal demand, fares, costs and revenues include information on passenger legitimate protection of confidential "8. Public service contracts and related to the public passenger demand, fares, costs and revenues business information. This shall general rules shall require the transport covered by the tender and related to the public passenger include information on passenger operator to provide the competent details of the infrastructure transport covered by the tender and demand, fares, costs and revenues authority with the information specifications relevant for the details of the infrastructure related to the public passenger essential for the award of public operation of the required vehicles or specifications relevant for the transport covered by the tender and service contracts, while taking into rolling stock to enable them to draft operation of the required vehicles or details of the infrastructure consideration ensuring the well informed business plans. Rail rolling stock to enable them to draft specifications relevant for the legitimate protection of infrastructure managers shall support well informed business plans. Rail operation of the required vehicles or confidential business information. competent authorities in providing all infrastructure managers shall support rolling stock to enable them to draft Competent authorities shall make relevant infrastructure specifications. competent authorities in providing all well informed business plans. Rail available to all interested parties Non-compliance with the provisions relevant infrastructure specifications. infrastructure managers shall support relevant information, where that set out above shall be subject to the Non-compliance with the provisions competent authorities in providing all information exists, for the legal review provided for in Article set out above shall be subject to the relevant infrastructure specifications. preparation of an offer under a

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5(7)." legal review provided for in Article Non-compliance with the provisions competitive tender procedure while 5(7).‘. set out above shall be subject to the taking into consideration ensuring legal review provided for in Article the legitimate protection of

5(7)." confidential business information. This shall include information on

passenger demand, fares, costs and revenues related to the public passenger transport covered by the tender and details of the infrastructure specifications relevant for the operation of the required vehicles or rolling stock to enable them to draft well informed business plans. Rail infrastructure managers shall support competent authorities in providing all relevant infrastructure specifications. Noncompliance with the provisions set out above shall be subject to the legal review provided for in Article 5(7)."

NB: AM 39 (pt 109) included here 121. 4. Article 5 is amended as follows: 4. Article 5 is amended as follows:

  • 122. 
    Amendment 44

    Article 1 – point 4 – point –a (new) Regulation (EC) No 1370/2007 i

    Article 5 – paragraph 1a (new) 123. (-a) The following paragraph is EP AM not acceptable

    inserted: AM introduces the possibility for a group of competent authorities,

    ‘1a. Any competent authority, including from different MS, to whether it is an individual authority award public service contracts. This

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or a group of authorities, including possibility is already provided for in from more than one Member State, the definition of "competent shall be entitled to award public authority" set out in Article 2(b). service contracts in accordance with the rules laid down in this This AM is not in line with the Regulation.‘; subsidiarity principle. It shall remain in the competence of the MS to determine the competent authorities. It also creates legal uncertainty ("shall be entitled").

  • 124. 
    [The first sentence of Art 5(2) of (0a) The first sentence of paragraph

    Regulation 1370/2007 i wasn’t 2 is replaced by the following: modified by the Commission proposal – only by the CSL]

  • 125. 
    [ORIGINAL WORDING of Regulation "Unless prohibited by national law,

    1370/2007:] any competent local authority, Unless prohibited by national law, any whether or not it is an individual competent local authority, whether or authority or a group of authorities not it is an individual authority or a providing integrated public passenger group of authorities providing transport services may decide to integrated public passenger transport provide public passenger transport services, may decide to provide public services itself or to award public passenger transport services itself or service contracts directly to a legally to award public service contracts distinct entity over which the directly to a legally distinct entity over competent local authority, or, in the which the competent local authority, case of a group of authorities at least or in the case of a group of authorities one competent local authority, at least one competent local authority, exercises control similar to that exercises control similar to that exercised over its own departments. exercised over its own departments. In case of public service in rail transport, the group of authorities referred to in the previous

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subparagraph may be composed only of local competent authorities whose geographical area of competence is not national. The public passenger transport service or the public service contract referred to in the previous subparagraph may only cover the transport needs of urban agglomerations and/or rural areas."

  • 126. 
    (0aa) In Article 5(3), the words

    "specified in paragraphs 4, 5 and 6" are replaced by the words "specified in paragraphs 3a, 4, 4a, 5 and 6".

  • 127. 
    (0b) The following paragraph 3a is added:
  • 128. 
    Amendment 68

    Article 1 – point 4 – point -aa (new) Regulation (EC) No 1370/2007 i

    Article 5 – paragraphs 3a and 3b 129. (-aa) The following paragraphs are "3a. Unless prohibited by national Presidency compromise proposal

    inserted: law, for public service contracts for "3a. Unless prohibited by national rail transport awarded on the basis law, for public service contracts for

    '3a. Until the end of the transitional of a competitive tendering rail transport awarded on the basis of

    period referred to in Article 8(2), procedure, the competent authority a competitive tendering procedure,

    Member States and, if permitted by may decide to temporarily award the competent authority may decide

    national law, competent authorities new contracts directly where the to temporarily award new contracts

    may exclude from competitive competent authority considers that directly where the competent

    tendering procedures for the award the direct award is justified by authority considers that the direct

    of public service contracts by rail exceptional circumstances. Such award is justified by exceptional

    organised by the competent exceptional circumstances shall circumstances. Such exceptional

    authorities in their territory pursuant include situations where: circumstances shall include

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to paragraph 3 of this Article, any situations where: railway undertaking or operator or - the quality and number of bids are any subsidiary directly or indirectly deemed to be insufficient to - the quality and number of bids are controlled by a railway undertaking guarantee good value for money, or deemed to be insufficient to or its holding company if the guarantee good value for money, or controlling railway undertaking, the - there are a number of competitive controlling holding company or their tenders already being run by the - there are a number of competitive subsidiaries: competent authority and/or other tenders already being run by the competent authorities which could competent authority and/or other (a) are licensed and operating affect the number and quality of competent authorities which could domestic rail services in a Member bids likely to be received if the affect the number and quality of bids State in which the competent contract is competitively tendered, likely to be received if the contract is authorities are not permitted to or competitively tendered, or award public service contracts through competitive tendering - changes to the scope of one or - changes to the scope of one or procedures, and more public service contracts are more public service contracts are required in order to optimise the required in order to optimise the (b) have benefitted from directly provision of public services. provision of public services. awarded public service contracts by rail the share of which in terms of The competent authority shall issue The competent authority shall issue value is higher than 50% of the total a substantiated decision and shall a substantiated decision and shall value of all public service contracts inform the Commission thereof inform the Commission thereof by rail awarded to that railway without undue delay. without undue delay. undertaking or holding company or their subsidiaries. Contracts awarded pursuant to this Contracts awarded pursuant to this paragraph shall not exceed 7 years. paragraph shall not exceed 7 5 For the purposes of this paragraph, years. ‘control’ means any rights, contracts Contracts awarded in accordance or other means which, either with this paragraph shall be Contracts awarded in accordance separately or in combination, and published, while taking into with this paragraph shall be having regard to any relevant consideration the legitimate published, while taking into considerations of fact or law, provide protection of confidential business consideration the legitimate the opportunity to exert a decisive information and commercial protection of confidential business

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influence on an undertaking, in interests." information and commercial particular through: interests."

(a) ownership or the right to use all Presidency compromise proposal or part of the assets of an (recital): undertaking; "In exceptional circumstances where public service contracts for (b) rights or contracts which confer rail transport are awarded on the the right to exert a decisive influence basis of competitive tendering, on the composition, voting or new contracts may temporarily be deliberations of the social organs of directly awarded in order to that undertaking. ensure that services are delivered in the most cost-effective way.’

  • 130. 
    (0c) The following paragraph 3b is added:
  • 131. 
    3b. Member States and, if permitted "3b. In application of Article 5(3), Drafting depends on the outcome of by national law, competent competent authorities may decide to the discussions on reciprocity

    authorities may exclude from the apply the following procedure: clauses. competitive tendering procedures any operator or undertaking that is Competent authorities may make directly or indirectly controlled by a public their intentions to award a legal or natural person or by persons public service contract by rail registered in a third country or third through the publication of an countries, save where that country or information notice in the Official those countries have taken measures Journal of the European Union. that allow public service contracts to be awarded through competitive The information notice shall contain tendering to railway undertakings a detailed description of the services licensed in a Member State.' that will be the subject of the contract to be awarded as well as the type and the duration of the contract.

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Operators may express their interest within a period fixed by the competent authority which cannot be less than 60 days following the publication of the information notice.

If after this period:

  • a) 
    only one operator has expressed its interest to participate in the procedure to award the public service contract and
  • b) 
    has duly proven that it will effectively be able to provide the transport service complying with the obligations established in the public service contract, and
  • c) 
    the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement and
  • d) 
    when no reasonable alternative exists,

the competent authorities may start negotiations with this operator in order to award the contract without further publication of an open tendering procedure."

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  • 132. 
    (a) Paragraph 4 is replaced by the (a) Paragraph 4 is replaced by the following: following:
  • 133. 
    "4. Unless prohibited by national law, "4. Unless prohibited by national law, the competent authorities may decide the competent authority may decide to award public service contracts to award public service contracts

    directly: directly: 134. (a) where their average annual value is (a) where their average annual value is

    estimated at: less than EUR 1 000 000 estimated at: less than EUR 1 000 000 or less than EUR 5 000 000 in the or less than EUR 7 500 000 in the case of a public service contract case of a public service contract including public transport by rail or, including public passenger transport services by rail or,

  • 136. 
    (b) where they concern the annual (b) where they concern the annual (b) where they concern the annual EP AM not acceptable provision of less than 300 000 provision of less than 300 000 provision of less than 300 000 The legal text clearly refers to kilometres of public passenger vehicle-km of public passenger kilometres of public passenger number of km of 'public passenger transport services or less than 150 000 transport services or less than 500 000 transport services or less than 500 000 transport services'. That means that kilometres in the case of a public vehicle-km in the case of a public kilometres in the case of a public it refers to km run when performing service contract including public service contract including public service contract including public the service and not to the length of transport by rail. transport by rail. passenger transport services by rail. the rail track or bus line.
  • 137. 
    Amendment 75

    Article 1 – point 4 – point a Regulation EC No 1370/2007 i

    Article 5 – paragraph 4 – subparagraph 1 – point ba (new) 138. (ba) where the technical EP AM covered in Presidency

    specifications of isolated rail systems compromise proposal under Article in the field of public rail passenger 5(4a)(a)(i) (pt 143) transport differ significantly from the

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TSI of the main rail network of the respective Member State to which they are not connected.

  • 140. 
    In the case of a public service contract In the case of a public service contract In the case of a public service contract EP AM not acceptable directly awarded to a small or directly awarded to a small or directly awarded to a small or The legal text clearly refers to medium-sized enterprise operating not medium-sized enterprise operating not medium-sized enterprise operating not number of km of 'public passenger more than 23 road vehicles, these more than 23 road vehicles, these more than 23 road vehicles, these transport services'. That means that thresholds may be increased to either thresholds may be increased to either thresholds may be increased to either it refers to km run when performing an average annual value estimated at an average annual value estimated at an average annual value estimated at the service and not to the length of less than EUR 2 000 000 or to an less than EUR 2 000 000 or to an less than EUR 2 000 000 or to an the rail track or bus line. annual provision of less than 600 000 annual provision of less than 600 000 annual provision of less than 600 000

    kilometres of public passenger vehicle-km of public passenger kilometres of public passenger transport services." transport services. transport services.”

  • 141. 
    (aa) The following paragraph 4a is added:
  • 142. 
    “4a. Unless prohibited by national law, the competent authority may

    decide to award public service contracts for public transport by rail directly:

  • 143. 
    (a) (i) where it considers that the direct award is justified by the

    relevant structural and geographical characteristics of the market and network concerned, in particular their size, demand characteristics, complexity of the network, its technical and

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geographical isolation and the services covered by the contract, and

  • 144. 
    (ii) where such a contract would result in an improvement in quality of services and/or cost-efficiency

    compared to the previously awarded public service contract.

  • 145. 
    On that basis, the competent authority shall issue a substantiated decision and shall inform the Commission thereof without undue delay.
  • 146. 
    Member States where, at the entry into force of this Regulation, the

    maximum annual volume is less than 23 million train-km and which have only one competent authority at national level and one public service contract covering the entire network shall be deemed to fulfil the conditions of point (i). Where those Member States decide to award a public service contract directly, they shall inform the Commission thereof. The United Kingdom may decide to apply this subparagraph to Northern Ireland.

  • 147. 
    Where the competent authority decides to award a public service contract directly, it shall define measurable, transparent and

    verifiable performance

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requirements. Such requirements shall be included in the contract.

  • 148. 
    The performance requirements shall in particular cover punctuality of services, frequency of train

    operations, quality of rolling stock and transport capacity for passengers.

  • 149. 
    The contract shall include specific performance indicators allowing for periodic assessment by the

    competent authority and shall specify effective and deterrent measures to be imposed in case the railway undertaking fails to meet the performance requirements.

  • 150. 
    The competent authority shall periodically assess and make public whether the railway undertaking has achieved its targets to meet the performance requirements as set in the contract. It shall take

    appropriate and timely measures, including effective and deterrent contractual penalties in case the required improvements in quality of services and/or cost-efficiency are not achieved. The competent authority may at any time wholly or partially suspend or terminate the contract awarded under this provision in case the operator fails to meet the performance

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requirements. 151. (b) where they concern operating

only passenger rail services by an operator which manages simultaneously the entire or the major part of the railway infrastructure on which the services are provided, which is excluded from the application of Article 7, 7a, 7b, 7c, 7d, 8, 13 and Chapter IV of Directive 2012/34 i/EU establishing a single European railway area in accordance with Article 2(3)(a) or (b) of Directive 2012/34 i/EU.

  • 152. 
    In derogation from Article 4(3), directly awarded contracts

    pursuant to this paragraph shall not exceed 10 years, except where Article 4(4) applies.

  • 153. 
    Contracts awarded in accordance with this paragraph shall be

    published while taking into consideration the legitimate protection of confidential business information and commercial interests."

  • 154. 
    Amendment 63

    Article 1 – point 4 – point aa (new) Regulation (EC) No 1370/2007 i

    Article 5 – paragraph 5 155. [Art 5(5) of Regulation 1370/2007 i (aa) Paragraph 5 is replaced by the (ab) Paragraph 5 is replaced by the

    wasn’t modified by the Commission following: following: proposal – only by EP/CSL]

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  • 156. 
    [ORIGINAL WORDING of Regulation '5. In the event of a disruption of “5. In the event of a disruption of EP AM not acceptable

    1370/2007:] services or the immediate risk of such services or the immediate risk of such Situations described in this AM 5. In the event of a disruption of a situation, the competent authority a situation, the competent authority covered in Article 5(3a) of GA text services or the immediate risk of such may take an emergency measure. A may take […] emergency measures. (point 129). a situation, the competent authority situation of emergency may include may take an emergency measure. This the inability of the competent emergency measure shall take the authority to launch in good time a form of a direct award or a formal tender procedure for a public service agreement to extend a public service contract and/or to award that contract or a requirement to provide contract in good time to an operator. This emergency measure shall take certain public service obligations. The This emergency measure shall take the form of a direct award or a formal public service operator shall have the the form of a direct award or a formal agreement to extend a public service right to appeal against the decision to agreement to extend a public service contract or a requirement to provide impose the provision of certain public contract or a requirement to provide certain public service obligations. The service obligations. The award or certain public service obligations. The public service operator shall have the extension of a public service contract public service operator shall have the right to appeal against the decision to by emergency measure or the right to appeal against the decision to impose the provision of certain public imposition of such a contract shall not impose the provision of certain public service obligations. The award or exceed two years service obligations. The award or extension of a public service contract extension of a public service contract by emergency measure or the by emergency measure or the imposition of such a contract shall not imposition of such a contract shall not exceed two years.” exceed two years.'

  • 157. 
    (b) Paragraph 6 is replaced by the [deleted] following:
  • 158. 
    Amendment 50

    Article 1 – point 4 – point b Regulation (EC) No 1370/2007 i

    Article 5 – paragraph 6 159. "Competent authorities may decide ‘6. In accordance with Directive [deleted] Aim of the GA text on the

    that, in order to increase competition 2012/34/EU, and unless prohibited performance-based derogation between railway undertakings, by national law, those competent (Article 5(4a)(a)) to the principle of contracts for public passenger authorities which are responsible for competitive tendering is the

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transport by rail covering parts of the establishing public transport plans as improvement of quality and/or costsame network or package of routes referred to in Article 2a may decide efficiency of passenger rail services shall be awarded to different railway to proceed to the direct award of (pt 144). undertakings. To this end the public service contracts concerning competent authorities may decide public rail passenger transport The principles underlying the before launching the tender procedure services, subject to the following Council performance-based to limit the number of contracts to be conditions: derogation have the same objectives awarded to the same railway as the EP's ideas outlined in AM 50: undertaking." (a) the public transport plan contains - requirements in point (a) EP AM =

requirements applicable for the pt 148 GA entire duration of the contract - publication assessment in point (b) concerning the following: EP AM = pt 153 GA - evolution of passenger volumes, - periodic assessment in point (b) EP - punctuality of services, AM = pt 149 and 150 GA - cost-efficiency in terms of capital - penalties in point (c) EP AM = pt productivity, 149 and 150 GA - frequency of train operations, - role of regulatory body to assess - customer satisfaction, compliance in point (b) and (c) EP - quality of rolling stock. AM = pt 145 GA - duration of contracts (9 years) in (b) the competent authority publishes point (c) of EP AM = pt 152 GA (10 no later than 18 months before the years) start of the contract how the requirements set out in point (a) of this paragraph are to be complied Parts of EP AM not acceptable with through the direct award of a - public transport plans public service contract and regularly - delegated acts evaluates compliance with these - deletion of Article 5(6) requirements in the annual report - role of the regulatory body referred to in Article 7(1). If a - too many requirements listed, and complaint of an interested railway improvement necessary on each of operator or undertaking regarding them the direct award of the contract is

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filed, the regulatory body evaluates the reasons provided by the competent authority and takes a decision no later than two months after the complaint was filed. The regulatory body may also act on its own initiative.

(c) the regulatory body evaluates no later than 24 months before the end of the current contract whether the requirements set out in point (a) of this paragraph and assessed in accordance with Article 7(1) have been complied with. The competent authority shall provide to the regulatory body all data necessary for its evaluation.

Where the regulatory body concludes that the requirements set out in point (a) of this paragraph have not been complied with, it shall without delay oblige the competent authority to award any new public service contract in accordance with paragraph 3 of this Article.

The decision of the independent regulatory authority shall be binding and immediately applicable.

By way of derogation to Article 4(3),

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the duration of such contracts shall not exceed nine years.

The Commission shall adopt delegated acts detailing the requirements set out in point (a) of this paragraph.‘.

  • 160. 
    (b) The following paragraph 6a is added:
  • 161. 
    "6a. Competent authorities may decide that, in order to increase

    competition between railway undertakings, contracts for public passenger transport by rail covering parts of the same network or package of routes shall be awarded to different railway undertakings. To this end the competent authorities may decide before launching the tender procedure to limit the number of contracts to be awarded to the same railway undertaking."

  • 162. 
    5. The following Article 5a is 5. The following Article 5a is inserted: inserted:
  • 163. 
    "Article 5a "Article 5a "Article 5a
  • 164. 
    Rolling stock Rail rolling stock Rail rolling stock
  • 165. 
    Amendment 51

    Article 1 – point 5 Regulation (EC) No 1370/2007 i

    Article 5 a – paragraph 1 166. 1. Member States shall in compliance 1. The competent authorities shall, in In a view of a competitive award Presidency compromise proposal

with State aid rules take the necessary compliance with State aid rules, take procedure competent authorities 1. In view of a competitive award

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measures to ensure effective and nonthe necessary measures to ensure shall assess whether measures are procedure, competent authorities

discriminatory access to suitable effective and non-discriminatory necessary to ensure effective and shall assess whether measures are

rolling stock for public passenger access conditions to suitable rolling non-discriminatory access to necessary to ensure effective and

transport by rail for operators wishing stock for public passenger transport suitable rolling stock." non-discriminatory access to suitable

to provide public passenger transport by rail for operators wishing to rolling stock. This assessment shall

services by rail under public service provide public passenger transport take into account the presence of

contract. services by rail under a public service rolling stock leasing companies, or

contract. of other market actors providing

for the leasing of rolling stock, in

the relevant market.

  • 167. 
    2. Where rolling stock leasing [deleted] companies which provide for the

    leasing of rolling stock referred to in paragraph 1 under non-discriminatory and commercially viable conditions to all of the public rail passenger transport operators concerned do not exist in the relevant market, Member States shall ensure that the residual value risk of the rolling stock is borne by the competent authority in compliance with State aid rules, when operators intending and able to participate in tendering procedures for public service contracts so request in order to be able to participate in tendering procedures.

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subparagraph 2 – introductory part 169. The competent authority may comply The competent authority may comply [deleted] Presidency compromise proposal:

with the requirement set out in the with the requirement set out in the 2. Competent authorities may first subparagraph in one of the first subparagraph in various ways decide, in accordance with following ways: that facilitate economies of scale, national law and in compliance such as: with State aid rules, to take appropriate measures to ensure effective and non-discriminatory access to suitable rolling stock. Such measures may include:

  • 171. 
    (a) by acquiring itself the rolling stock (a) by acquiring, itself, at market [deleted] Presidency compromise proposal: used for the execution of the public price, the rolling stock used for the (a) acquisition by the competent service contract with a view to making execution of the public service authority of the rolling stock used it available to the selected public contract with a view to making it for the execution of the public

    service operator at market price or as available to the selected public service service contract with a view to part of the public service contract operator at market price or as part of making it available to the selected pursuant to Article 4(1)(b), Article 6 the public service contract pursuant to public service operator at market and, if applicable, to the Annex, Article 4(1)(b), Article 6 and, if price or as part of the public applicable, to the Annex, service contract pursuant to Article 4(1)(b), Article 6 and, if applicable, to the Annex, or

  • 172. 
    (b) by providing a guarantee for the [deleted] Presidency compromise proposal: financing of the rolling stock used for (b) provision by the competent the execution of the public service authority of a guarantee by for the contract at market price or as part of financing of the rolling stock used the public service contract pursuant to for the execution of the public

    Article 4(1)(b), Article 6 and, if service contract at market price or

    applicable, to the Annex. Such a as part of the public service

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guarantee may cover the residual contract pursuant to Article value risk while respecting the 4(1)(b), Article 6 and, if relevant state aid rules when applicable, to the Annex. Such a applicable, guarantee may cover the residual value risk, or

  • 173. 
    (c) by committing in the public [deleted] Presidency compromise proposal: service contract to take over of the (c) commitment of the competent rolling stock at the end of the contract authority in the public service

    at market price. contract to take over the rolling stock at predefined financial

    conditions at the end of the contract at market price, or

  • 174. 
    Amendment 54

    Article 1 – point 5 Regulation (EC) No 1370/2007 i

    Article 5a – paragraph 2 – subparagraph 2 – point ca (new) 175. (ca) by cooperating with Presidency compromise proposal:

    neighbouring local authorities in (ca) cooperation with other order to create a larger pool of competent authorities in order to rolling stock. create a larger pool of rolling stock;

  • 177. 
    In the cases referred to in points (b) 3. In the cases referred to in points (b) [deleted] and (c), the competent authority shall and (c) of the second subparagraph

    have the right to require the public of paragraph 2, the competent service operator to transfer the rolling authority shall have the right to stock after the expiry of the public require the public service operator to service contract to the new operator to transfer the rolling stock after the

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whom a contract is awarded. The expiry of the public service contract to competent authority may oblige the the new operator to whom a contract new public transport operator to take is awarded. The competent authority the rolling stock over. The transfer may oblige the new public transport shall be done at market rates. operator to take the rolling stock over. The transfer shall be done at market rates.

  • 178. 
    Amendment 56

    Article 1 – point 5 Regulation (EC) No 1370/2007 i

    Article 5a – paragraph 3 179. 3. If the rolling stock is transferred to 4. If the rolling stock is transferred to [deleted] Presidency compromise proposal

    a new public transport operator the a new public transport operator the 4. If the rolling stock is made competent authority shall make competent authority shall make available to a new public transport available in the tender documents available in the tender documents operator, the competent authority detailed information about the cost of detailed information about the cost of shall include in the tender maintenance of the rolling stock and maintenance of the rolling stock and documents any available about its physical condition. about its physical condition. information about the cost of maintenance of the rolling stock and about its physical condition.

  • 180. 
    Amendments 57 and 82

    Article 1 – point 5 Regulation (EC) No 1370/2007 i

    Article 5a – paragraph 4 181. 4. By [18 months after the date of [deleted] [deleted] EP AM acceptable

    entry into force of this Regulation] the Commission shall adopt measures setting out the details of the procedure to be followed for the application of paragraphs 2 and 3 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in

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Article 9a(2)." 182. 6. In Article 6 paragraph 1 is replaced 6. In Article 6, paragraph 1 is replaced

by the following: by the following: 183. "1. All compensation connected with "1. All compensation connected

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

  • 184. 
    7. Article 7 is amended as follows: 7. Article 7 is amended as follows:
  • 185. 
    (a) Paragraph 1 is replaced by the (a) Paragraph 1 is replaced by the following: following:
  • 187. 
    "1. Each competent authority shall ‘1. Each competent authority shall "1. Each competent authority shall EP AM not acceptable make public once a year an make public once a year an make public once a year an AM goes too far in the information aggregated report on the public aggregated report on the public aggregated report on the public that shall be included in the reports service obligations for which it is service obligations for which it is service obligations for which it is (administrative burden with no responsible, the starting date and responsible, the starting date and responsible, the starting date and identifiable benefits). Furthermore, duration of the public service duration of the public service duration of the public service some of the notions introduced by contracts, the selected public service contracts, the selected public service contracts, the selected public service this AM such as "user satisfaction as operators and the compensation operators and the compensation operators and the compensation measured by opinion polls", payments and exclusive rights granted payments and exclusive rights granted payments and exclusive rights granted "cleanness" are very subjective. to the said public service operators by to the said public service operators by to the said public service operators by

    way of reimbursement. The report way of reimbursement. The report way of reimbursement. The report shall distinguish between bus shall assess performance in terms of shall distinguish between bus

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transport and rail transport, allow the compliance and specify all transport transport and rail transport, allow the performance, quality and financing of service indicators, including performance, quality and financing of the public transport network to be punctuality, reliability, cleanness, the public transport network to be monitored and assessed and, if user satisfaction as measured by monitored and assessed and, if appropriate, provide information on public opinion polls, and the appropriate, provide information on the nature and extent of any exclusive minimum capacity utilisation rate. the nature and extent of any exclusive rights granted. Member States shall The report shall distinguish between rights granted. Member States shall facilitate central access to these bus transport and rail transport, allow facilitate central access to these reports, for instance through a the performance, quality and reports, for instance through a common web portal." financing of the public transport common web portal." network to be monitored and assessed and, if appropriate, provide information on the nature and extent of any exclusive rights granted. Member States shall facilitate central access to these reports, for instance through a common web portal. The Commission shall prepare a summary of these reports and submit it, in all working languages, to the European Parliament and the Council.‘;

  • 188. 
    (b) In paragraph 2, the following point (b) In paragraph 2, the following point is added: is added:
  • 189. 
    "(d) the envisaged starting date and "(d) the envisaged starting date and duration of the public service duration of the public service

    contract." contract." 190. 8. Article 8 is amended as follows: 8. Article 8 is amended as follows: 191. (a) The first subparagraph of (a) The first sentence of paragraph

    paragraph 2 is replaced by the 2 is replaced by the following: following:

  • 192. 
    Amendment 59

    Article 1 – point 8 – point a

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Regulation (EC) No 1370/2007 i Article 8 – paragraph 2 –

subparagraph 1 193. "2. Without prejudice to paragraph 3, ‘2. Without prejudice to paragraph 3, "2. Without prejudice to paragraph EP AM not acceptable

the award of public service contracts the award of public service contracts 3, 2 issues at stake: by rail with the exception of other concerning transport by road and 1) political decision by the cotrack-based modes such as metro or other track-based modes such as i) Article 5 shall apply to the legislators as to the duration of the tramways shall comply with Article metro, tramways or tram-train award of public service contracts transition period (to be decided at 5(3) as from 3 December 2019. All systems shall comply with Article 5 for passenger transport services by the end of the negotiations). See also public service contracts by other from 3 December 2019. Public road and by track-based modes pt 198 track-based modes and by road must service contracts concerning public other than rail such as metro or 2) architecture of that provision have been awarded in compliance passenger transport by rail shall be tramways as from 3 December making sure it is legally sound and with Article 5(3) by 3 December 2019 awarded from 3 December 2022 in 2019. does not create legal voids at the latest. During the transitional compliance with Article 5. By 3 period running until 3 December December 2022 the competent ii) Article 5, with exception of 2019, Member States shall take authorities responsible for paragraph 4a, shall apply to measures to gradually comply with establishing the public transport passenger transport services by rail Article 5(3) in order to avoid serious plans referred to in Article 2a shall as from 3 December 2019. structural problems in particular be entrusted with all powers relating to transport capacity." necessary for awarding public service iii) Article 5(4a) shall apply to contracts in accordance with Article passenger transport services by rail 5. During the transitional periods, as from 10 years after the date of Member States shall take measures to entry into force of this Regulation. gradually comply with Article 5(3) in order to avoid serious structural iv) Article 5(6) and Article 7(3) problems in particular relating to shall cease to apply as from 10 transport capacity.‘; years after the date of entry into force of this Regulation.

Public service contracts for public passenger transport services by rail directly awarded in accordance with Article 5(6) may continue until

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their expiry date." 194. [Art 8(2)subpar 2 of Reg 1370/2007 Amendment 60

wasn’t modified by the Commission Article 1 – point 8 – point a proposal – only by EP] Regulation (EC) No 1370/2007 i [ORIGINAL WORDING of Regulation Article 8 – paragraph 2 – 1370/2007:] subparagraph 1a (new)

  • 195. 
    Within six months after the first half Within six months after the first half of Presidency compromise proposal of the transitional period, Member the transitional periods, Member Within six months after the first half States shall provide the Commission States shall provide the Commission of the transitional period mentioned with a progress report, highlighting with a progress report, highlighting in point (iii), Member States shall the implementation of any gradual the implementation of any gradual provide the Commission with a

award of public service contracts in award of public service contracts that progress report, highlighting the

line with Article 5. On the basis of the comply with Article 5. On the basis of implementation of any gradual

Member States’ progress reports, the the Member States’ progress reports, award of public service contracts

Commission may propose appropriate the Commission may propose that comply with Article 5. On the

measures addressed to Member States. appropriate measures addressed to basis of the Member States’ progress

Member States.’; reports, the Commission may

propose appropriate measures

addressed to Member States.’;

  • 196. 
    (b) The following paragraph 2a is (b) The following paragraph 2a is

inserted: inserted:

  • 197. 
    Amendment 61

Article 1 - point 8 – point b

Regulation (EC) No 1370/2007 i

Article 8 – paragraph 2a

  • 198. 
    "2a. Public service contracts for ‘2a. Public service contracts for public "2a. Public service contracts for Political decision by the copublic

passenger transport by rail passenger transport by rail that do not public passenger transport services legislators as to the duration of the

directly awarded between 1 January comply with Article 5, directly by rail directly awarded on the basis transition period (to be decided at

2013 and 2 December 2019 may awarded before 3 December 2022, of a procedure other than a fair the end of the negotiations).

continue until their expiry date. shall in any event expire at the latest competitive procedure as of the date See also pt 193.

However they shall, in any event, not on ... * .‘; of entry into force of this Regulation

continue after 31 December 2022." --------------------- until 3 December 2019 may continue

  • * 
    OJ: please insert the date 10 years until their expiry date. In derogation

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after the entry into force of this from Article 4(3), the duration of Regulation (i.e. of the amending act - such contracts shall not exceed 10 2013/0028(COD) ) years, except where Article 4(4) applies."

  • 199. 
    (c) In paragraph 3, the last sentence of (c) In paragraph 3, letter (d) is the second subparagraph is replaced replaced by the following:

    by the following: 200. "The contracts referred to in (d) may "(d) as from 26 July 2000 and

    continue until they expire, provided before [the entry into force of this they are of limited duration similar to Regulation] on the basis of a the durations specified in Article 4." procedure other than a fair competitive tendering procedure".

  • 201. 
    9. "The following Article 9a is inserted:
  • 202. 
    Article 9a [deleted]
  • 203. 
    Committee procedure [deleted]
  • 204. 
    1. The Commission shall be assisted [deleted] by the Single European Railway Area

    Committee established by Article 62 of Directive 2012/34 i/EU of the European parliament and of the Council of 21 November 2012 establishing a single European railway area (recast) 7 . That committee shall be a committee within the meaning of Regulation (EU) No 182/2011 i.

  • 205. 
    2. Where reference is made to this [deleted] paragraph, Article 5 of Regulation

    (EU) No 182/2011 shall apply." 206. Article 2 Article 2

7 OJ L343/32 of 14.12.2012

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  • 207. 
    Amendment 62

    Article 2 208. This Regulation shall enter into force This Regulation shall enter into force This Regulation shall enter into force Useful in principle but:

    on the day following that of its on the day following its publication in on the day following that of its - consolidated version has no legal publication in the Official Journal of the Official Journal of the European publication in the Official Journal of value the European Union. Union. It shall be made available in the European Union. - 3 months for COM to prepare it is the form of a text consolidated with a short deadline Regulation (EC) No 1370/2007 i, - OPOCE is providing that service which it shall amend within three months of its publication.

  • 209. 
    For the European Parliament For the Council
  • 210. 
    The President The President

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3.

Behandeld document

15 jan
'16		 4th Railway Package: • Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1370/2007 concerning the opening of the market for domestic passenger transport services by rail. • Proposal for a Directive of the European Parliament and of the Council amending Directive 2012/34/EU establishing a single European railway area, as regards the opening of the market for domestic passenger transport services by rail and the governance of the railway infrastructure. - Preparation of an informal trilogue
REPORT		 General Secretariat
5159/16
 
 
 

4.

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5.

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