34 Amendments of Karim ZÉRIBI related to 2013/0029(COD)
Amendment 79 #
Proposal for a directive
Recital 9
Recital 9
(9) The existing requirements for the independence of infrastructure managers from railway transport undertakings, as laid down in Directive 2012/34/EU, only cover the essential functions of the infrastructure manager, which are the decision-making on train path allocation, and the decision-making on infrastructure charging. It is however necessary that all the functions are exercised in an independent way, since other functions may equally be used to discriminate against competitors. This is in particular true for decisions on investments or on maintenance which may be made to favour the parts of the network which are mainly used by the transport operators of the integrated undertaking. Decisions on the planning of maintenance works may influence Since other functions may equally be used to discriminate against competitors, it is necessary that all the functions are exercised in a way that guarantees non-discriminatory access to the network via the phasing-in of safeguards that nevertheless take into account the level of sensitivity of each one, withe availability of train paths for the competi view to the optimum operation of the sectors.
Amendment 87 #
Proposal for a directive
Recital 10
Recital 10
(10) The existing requirements of Directive 2012/34/EU only include legal, organisational and decision-making independence. This does not entirely exclude the possibility of maintaining or setting up an integrated undertaking, as long as these three categories of independence are ensured. Concerning theAs far as the independence of decision-making independences concerned it must be ensured that the appropriate safeguards exclude control ofprevent an integrated undertaking from being able to exercise exclusive control over the decision-making of an infrastructure manager. However, even the full application of such safeguards does no, thereby discriminating against completely remove all the possibilities for discriminatory behaviour towards competitors which exist in the presence of a vertically integrated undering railway undertakings. Another way of helping to attaking. In particular, the potential for cross- subsidisation still exists in integrated structures, or at least it is very difficult for regulatory bodies to control and enforce safeguards which are established to prevent such cross-subsidisation. An institutional separation of the objective of non-discrimination would be to draw up a set of relevant rules to govern the financing of the activities of the infrastructure managementr and transport operation is the most effective measure to solve these problemshe rail operator respectively.
Amendment 96 #
Proposal for a directive
Recital 11
Recital 11
(11) Member States should therefore be required to ensure that the same legal or natural person or persons are not entitled to exercise exclusive control over an infrastructure manager and, at the same time, exercise control or any right over a railway undertaking over a railway undertaking at the same time, where the effect of such would be to discriminate against its competitors. Conversely, control over a railway undertaking should preclude the possibility of exercising control or any rightexclusive control over an infrastructure manager.
Amendment 103 #
Proposal for a directive
Recital 12
Recital 12
(12) Where Member States still maintain anthe infrastructure manager which is part ofbelongs to a vertically integrated undertaking, they Member States concerned should at least introduce strict safeguards to guarantee effective independence of the entire infrastructure manager in relation to the integratedthat the infrastructure manager operates in an impartial manner in respect of the legal entities of the integrated undertaking and any other railway undertaking. These safeguards should not only concern the corporate organisation of the infrastructure manager in relation to the integrated undertaking, but also the management structure of the infrastructure manager, and, as far as possible within an integrated structure, prevent financial transfers betweenfrom the infrastructure manager andto the other legal entities of the integrated undertaking with a railway undertaking licence. These safeguards do not only correspond to what is necessary to fulfil the existing requirements of decision-making independence of the essential functions under Directive 2012/34/EU, in terms of management independence of the infrastructure manager, but go beyond those requirements by adding clauses to exclude that incomes of the infrastructure manager may be used to fund the other entities within the vertically integrated undertaking with a railway undertaking licence. This should apply independently of the application of fiscal legislation of Member States and without prejudice to EUuropean Union state aid rules.
Amendment 112 #
Proposal for a directive
Recital 13
Recital 13
(13) Despite the implementation of the safeguards guaranteeing independence vertically integrated undertakings could abuse of their structure to provide undue competitive advantages for railway operators belonging to such undertakings. For this reason, without prejudicepursuant to Article 258 of the Treaty on the Functioning of the European Union, the Commission should verify, upon request of a Member State or on its own initiative, that these safeguards are effectively implemented and that any remaining distortions of competition are removed. In case the Commission is not in a position to confirm that this has been achieved, all Member States should have the possibility to limit or revoke access rights of the integrated operators concerned.
Amendment 161 #
Proposal for a directive
Article 1 – point 1 – point a
Article 1 – point 1 – point a
Directive 2012/34/EU
Article 3 – point 2
Article 3 – point 2
(2) ‘infrastructure manager’ means any body or firm ensuring the development, operation and maintenance of railway infrastructure on a network; development includes network planning, financial and investment planning as well as building and upgrades of the infrastructure, without prejudice to the powers of the Member States in accordance with Article 8(1) and (2); operation of the infrastructure includes all elements of the process of train path allocation, including both the definition and the assessment of availability and the allocation of individual paths, traffic management and infrastructure charging, including determination and collection of the chargestraffic management and infrastructure charging; maintenance includes infrastructure renewals and the other asset management activities;
Amendment 171 #
Proposal for a directive
Article 1 – point 1 – point c
Article 1 – point 1 – point c
Directive 2012/34/EU
Article 3 – point 31 – introductory part
Article 3 – point 31 – introductory part
‘vertically integrated undertaking’ means an undertaking where the railway undertaking is a user of the infrastructure manager’s infrastructure and where:
Amendment 173 #
Proposal for a directive
Article 1 – point 1 – point c
Article 1 – point 1 – point c
Directive 2012/34/EU
Article 3 – point 31 – indent 1
Article 3 – point 31 – indent 1
- one or several railway undertakings are owned or linked via a similar relationship, or partly owned, by the same undertaking as an infrastructure manager (holding company), or
Amendment 174 #
Proposal for a directive
Article 1 – point 1 – point c
Article 1 – point 1 – point c
Directive 2012/34/EU
Article 3 – point 31 – indent 2
Article 3 – point 31 – indent 2
- an infrastructure manager is owned or linked via a similar relationship, or partly owned, by one or several railway undertakings or
Amendment 176 #
Proposal for a directive
Article 1 – point 1 – point c
Article 1 – point 1 – point c
Directive 2012/34/EU
Article 3 – point 31 – indent 3
Article 3 – point 31 – indent 3
- one or several railway undertakings are owned or linked via a similar relationship, or partly owned, by an infrastructure manager;. Vertically integrated undertakings exercising all or some of the infrastructure management functions, within the meaning of Article 3(2), under a contract awarded in accordance with public procurement rules that belong to a holding engaged via a subsidiary in railway operations that account for a minor proportion of the group’s activities shall not be subject to the obligations set out in Articles 7a and 7b.
Amendment 205 #
Proposal for a directive
Article 1 – point 3
Article 1 – point 3
Directive 2012/34/EU
Article 7 – paragraph 1 – subparagraph 1
Article 7 – paragraph 1 – subparagraph 1
Without prejudice to their planning and infrastructure financing capabilities, the Member States shall ensure that the infrastructure manager performs all the functions referred to in Article 3(2) and is independent from any railway undertaking.
Amendment 207 #
Proposal for a directive
Article 1 – point 3
Article 1 – point 3
Directive 2012/34/EU
Article 7 – paragraph 1 – subparagraph 2
Article 7 – paragraph 1 – subparagraph 2
To guarantee the independence of the infrastructure manager, Member States shall ensure that infrastructure managers are organised in an entity that is legally distinct from any railway undertaking. Enterprises carrying out some or all of the infrastructure management tasks set out in Article 3(2) in a given railway infrastructure and, where relevant, a railway transport service activity in the same infrastructure, within the scope of the PPPs awarded, are not required to satisfy the requirements of Article 7(1) and (2).
Amendment 215 #
Proposal for a directive
Article 1 – point 3
Article 1 – point 3
Directive 2012/34/EU
Article 7 – paragraph 2 – point a
Article 7 – paragraph 2 – point a
(a) to directly or indirectly exercise control in the sense of Council Regulation (EC) No 139/2004,simultaneously hold any financial interest in or exercise any right over a railway undertaking and over an infrastructure manager at the same time;
Amendment 218 #
Proposal for a directive
Article 1 – point 3
Article 1 – point 3
(b) to appoint members of the supervisory board, the administrative board or bodies legally representing an infrastructure manager, and at the same time to directly or indirectly exercise control, hold any finawithin the meaning of Councial interest in or exercise any right over a railway undertaking;Regulation (EC) No 139/2004, over a railway undertaking and an infrastructure manager
Amendment 219 #
Proposal for a directive
Article 1 – point 3
Article 1 – point 3
Directive 2012/34/EU
Article 7 – paragraph 2 – point c)
Article 7 – paragraph 2 – point c)
Amendment 222 #
Proposal for a directive
Article 1 – point 3
Article 1 – point 3
Directive 2012/34/EU
Article 7 – paragraph 2 – point d)
Article 7 – paragraph 2 – point d)
Amendment 228 #
Proposal for a directive
Article 1 – point 3
Article 1 – point 3
Directive 2012/34/EU
Article 7 – paragraph 3
Article 7 – paragraph 3
3. For the implementation of this Article, where the person referred to in paragraph 2 is a Member State or another public body,Paragraph 2 does not apply two public authorities which are separthe Member States and legally distinct from each other and which are exercising control or other rights mentioned in paragraph 2 over the infrastructure manager, on the one hand, and the railway undertaking, on the other hand, shall be deemed not to be the same person or personsto the undertakings referred to in the third subparagraph of Article 3(31).
Amendment 241 #
Proposal for a directive
Article 1 – point 3
Article 1 – point 3
Directive 2012/34/EU
Article 7 – paragraph 5
Article 7 – paragraph 5
5) Where on the date of entry into force of this Directive, the infrastructure manager belongs to a vertically integrated undertaking, Member States may decide not to apply paragraphs 2 to 43 of this Article. In such cases, the Member State concerned shall ensure that the infrastructure manager performs all the functions referred to in Article 3(2) and has effective organisational and decision- making independence from any railway undertaking in accordance with the requirements set in Articles 7a to 7c.’b.
Amendment 271 #
Proposal for a directive
Article 1 – point 4
Article 1 – point 4
Directive 2012/34/EU
Article 7 a – paragraph 3
Article 7 a – paragraph 3
3. The infrastructure manager's incomes may not be used in order to finance other legal entities within the vertically integrated undertaking but only in order to finance the business of the infrastructure manager and to pay dividends to the ultimate owner of the vertically integrated company. The infrastructure manager may not grant loans to any other legal entities within the vertically integrated undertaking, and no other legal entity within the vertically integrated undertaking may grant loans to the infrastructure manager. This shall however not prevent an integrated undertaking from transferring surpluses from commercial activities to an area of activity financed through public funds. Any services offered by other legal entities to the infrastructure manager shall be based on contracts and be paid at market prices. The debt attributed to the infrastructure manager shall be clearly separated from the debt attributed to other legal entities within the vertically integrated undertaking, and these debts shall be serviced separately. The accounts of the infrastructure manager and of the other legal entities within the vertically integrated undertaking shall be kept in a way that ensures the fulfilment of these provisions and allows for separate financial circuits for the infrastructure manager and for the other legal entities within the vertically integrated undertaking, in particular with regard to the prohibition on transferring public funds and revenues from the infrastructure to another area of activity.
Amendment 292 #
Proposal for a directive
Article 1 – point 4
Article 1 – point 4
Directive 2012/34/EU
Article 7 b – paragraph 1
Article 7 b – paragraph 1
1. Without prejudice to the decisions of the regulatory body under Article 56, the infrastructure manager shall have effective decision-making powers, independent from the other legal entities within the vertically integrated undertaking which have a railway undertaking licence, with respect to all the functions referred to in Article 3(2). The overall management structure and the corporate statutes of the infrastructure manager shall ensure that none of the other legal entities within the vertically integrated undertaking shall determine, directly or indirectly, the behaviourwhich have a railway undertaking licence shall have exclusive control over the decisions of the infrastructure manager in relation to these functions.
Amendment 298 #
Proposal for a directive
Article 1 – point 4
Article 1 – point 4
Directive 2012/34/EU
Article 7 b – paragraph 2 – subparagraph 1
Article 7 b – paragraph 2 – subparagraph 1
The members of the management board and senior staff membersor of the executive board of the infrastructure manager shall not be in the supervisory or management boards or be senior staff memberthe executive boards of any other legal entities with a railway undertaking licence within the vertically integrated undertaking.
Amendment 302 #
Proposal for a directive
Article 1 – point 4
Article 1 – point 4
Directive 2012/34/EU
Article 7 – paragraph 2 – subparagraph 2
Article 7 – paragraph 2 – subparagraph 2
The members of the supervisory or management boards and senior staff members of the other legal entitiesor of the executive boards of other legal entities with a railway undertaking licence within the vertically integrated undertaking shall not be in the management board or be senior staff membersthe executive board of the infrastructure manager.
Amendment 312 #
Proposal for a directive
Article 1 – point 4
Article 1 – point 4
Directive 2012/34/EU
Article 7 b – paragraph 3 – subparagraph 1
Article 7 b – paragraph 3 – subparagraph 1
The infrastructure manager shall have a Smanagement board or, if it has an executive board, a supervisory Bboard which is composed of. This shall comprise representatives of the ultimate owners of the vertically integrated undertaking or individuals appointed by the Member State and representatives of the staff of the infrastructure manager, in conformity with the national rules governing the composition of companies’ governance bodies.
Amendment 314 #
Proposal for a directive
Article 1 – point 4
Article 1 – point 4
The Supervisory Bis board may consult the Coordination Committee referred to under Article 7d on issues under itsthe competence of the latter.
Amendment 316 #
Proposal for a directive
Article 1 – point 4
Article 1 – point 4
Directive 2012/34/EU
Article 7 b – paragraph 3– subparagraph 3
Article 7 b – paragraph 3– subparagraph 3
Decisions regarding the appointment and renewal, working conditions including remuneration, and termination of the office of the management board memberspresident of the management board or the executive board of the infrastructure manager shall be taken by the Ssupervisory Bboard or by the ultimate owner. The identity and the conditions governing the duration and the termination of office of the persons nominated by the Ssupervisory Bboard or by the ultimate owner for appointment or renewal as memberspresident of the management board of the infrastructure manager, and the reasons for any proposed decision terminating the president’s office, shall be notified to the regulatory body referred to in Article 55. Those conditions and the decisions referred to in this paragraph shall become binding only if the regulatory body has expressly approved them. The regulatory body may object to such decisions where doubts arise as toonly if the professional independence of avis-à-vis all legal entities with a railway undertaking licence of the person nominated foto preside over the management board or in the case of premature termination of office of a member of the management board of the infrastructure managerthe executive board of the infrastructure manager could not be guaranteed, or if the premature termination of the president’s office was motivated for reasons of professional independence vis- à-vis all legal entities with a railway undertaking licence.
Amendment 318 #
Proposal for a directive
Article 1 – point 4
Article 1 – point 4
Directive 2012/34/EU
Article 7 b – paragraph 3 – subparagraph 4
Article 7 b – paragraph 3 – subparagraph 4
Amendment 341 #
Proposal for a directive
Article 1 – point 4
Article 1 – point 4
Directive 2012/34/EU
Article 7 b – paragraph 6
Article 7 b – paragraph 6
6. The infrastructure manager shall have the necessary organisational capacity to perform all of its functions independently from the other legal entities within the vertically integrated undertaking and from any other firm with a railway undertaking licence shall not be allowed to delegate to these legal entities the operation of these functions or any activities related to them.
Amendment 362 #
Proposal for a directive
Article 1 – point 4
Article 1 – point 4
Directive 2012/34/EU
Article 7 c – paragraph 1
Article 7 c – paragraph 1
1. Upon request of a Member State or on its own initiative, the Commission shall decide whether infrastructure managers which are part of a vertically integrated undertaking fulfil the requirements of Article 7a and Article 7b and whether the implementation of these requirements is appropriate to ensure a level playing field for all railway undertakings and the absence of distortion of competition in the relevant market, in particular with regard to the prohibition on transferring public funds and revenues from the infrastructure to another area of activity.
Amendment 363 #
Proposal for a directive
Article 1 – point 4
Article 1 – point 4
Directive 2012/34/EU
Article 7 c – paragraph 1
Article 7 c – paragraph 1
1. Upon request of a Member State or on its owIn accordance with the procedure under Article 258 of the Treaty on the Functioning of the European iUnitiativeon, the Commission shall decide whetherverify that infrastructure managers which are part of a vertically integrated undertaking fulfil the requirements of Article 7a and Article 7b and whetherthat their implementation of these requirements is appropriate to ensure a level playing field for all railway undertakings and the absence of distortion of competition in the relevantgives all railway undertakings a genuine right of access to the market.
Amendment 420 #
Proposal for a directive
Article 1 – point 4
Article 1 – point 4
Directive 2012/34/EU
Article 7 e – paragraph 1 – subparagraph 1
Article 7 e – paragraph 1 – subparagraph 1
Member States shall ensure that infrastructure managers participate and cooperate in a network to develop the Union rail infrastructure, in particular to ensure timely and efficient implementation of the trans- European transport network, including the core network corridors, rail freight corridors according to Regulation (EU) No 913/2010 and the European Rail Traffic Management System (ERTMS) deployment plan laid down in Decision 2012/88/EU keeping with the rail transport guidelines laid down by each Member State.
Amendment 439 #
Proposal for a directive
Article 1 – point 4
Article 1 – point 4
Directive 2012/34/EU
Article 7 e a (new)
Article 7 e a (new)
Vertically integrated undertakings managing specific investment projects as referred to in Article 32(3) of this Directive which face direct competition from other modes of transport shall not be subject ot the provisions of Articles 7 and 7a to c.
Amendment 455 #
Proposal for a directive
Article 1 – point 6 – point a
Article 1 – point 6 – point a
Directive 2012/34/EU
Article 11 – paragraph 1
Article 11 – paragraph 1
1. Member States may limit the right of access provided for in Article 10(2) to passenger services between a given place of departure and a given destination when one or more public service contracts cover the same route or an alternative route if the exercise of this right would compromise the economic equilibrium of the public service contract or contracts in question. Where a public service contract is awarded in accordance with Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road, the competent authorities may limit the right of access provided for in Article 10(2) of this Directive for the duration of the public service contract in question. These limitations shall not have the effect of restricting the right to take on passengers at a station situated on the route of an international service and to set them down at another, including at stations located in the same Member State, unless the exercise of that right is likely to compromise the economic equilibrium of the public service contract in question.
Amendment 556 #
Proposal for a directive
Article 1 – point 8 g (new)
Article 1 – point 8 g (new)
Directive 2012/34/EU
Article 61
Article 61
8g. Article 61 is replaced by the following: Subject to the procedure laid down in Article 258 of the Treaty on the Functioning of the European Union, the Commission shall verify the adoption by the national authorities of the specific measures relating to the application of this Directive concerning conditions of access to railway infrastructure and services within twelve months after adoption of those measures.
Amendment 567 #
Proposal for a directive
Article 2 – paragraph 1 – subparagraph 1
Article 2 – paragraph 1 – subparagraph 1
Member States shall adopt and publish, by [148 months after entry into force] at the latest, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall communicate to the Commission the text of those provisions immediately.