18 Amendments of Knut FLECKENSTEIN related to 2013/0029(COD)
Amendment 71 #
Proposal for a directive
Recital 8
Recital 8
(8) In order to ensure equal access to the infrastructure, any conflicts of interest resulting from integrated structures encompassingintegrated structures should be shaped in such a way that no conflicts of interest emerge between infrastructure management and transport activities should be removed. Removing potential incentives to discriminate against competitors is the only way to guarantee equal access to the railway infrastructure. It is a requirement for the successful opening of the market for domestic passenger transport services by rail. This should also remove the potential for cross-subsidisation, which exists in such integrated structures, and which also leads to market distortions.
Amendment 75 #
Proposal for a directive
Recital 9
Recital 9
Amendment 85 #
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 an integrated undertaking, as long as these three categories of independence are ensured. Concerning the decision-makingProvided these three categories of independence it must bare ensured, that the appropriate safeguards exclude control of an integrated undertaking over the decision-making of an infrastructure manager. However, even the full application of such safeguards does not completely remove all the possibilie vertical integration of undertakings does not contradict the objectives for discriminatory behaviour towards competitors which exist in the presence of a vertically integrated undertaking. In particular, the potential forof the common legal framework. The rules against 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 infrastructure management and transport operation is the most effective measure to solve these problemhould be monitored and implemented by the regulatory bodies.
Amendment 92 #
Proposal for a directive
Recital 11
Recital 11
Amendment 102 #
Proposal for a directive
Recital 12
Recital 12
(12) Where Member States still maintain an infrastructure manager which is part of a vertically integrated undertaking, they should at least introduce strict safeguards to guarantee effective independence of the entire infrastructure manager in relation to the integrated 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 between the infrastructure manager and the other legal entities of the integrated undertaking. 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. The Member States therefore remain obliged to secure compliance with these independence criteria. This should be achieved chiefly by appropriate regulation which does not jeopardise the infrastructure undertakings’ refinancing options or contradict the undertakings’ principle of trading as a commercial enterprise. This should apply independently of the application of fiscal legislation of Member States and without prejudice to EU state aid rules.
Amendment 107 #
Proposal for a directive
Recital 13
Recital 13
Amendment 156 #
Proposal for a directive
Article 1 – point 1 – point a
Article 1 – point 1 – point a
Directive 2012/34/EU
Article 3 – paragraph 2
Article 3 – paragraph 2
Amendment 188 #
Proposal for a directive
Article 1 – point 2
Article 1 – point 2
Amendment 196 #
Proposal for a directive
Article 1 – point 3
Article 1 – point 3
Amendment 252 #
Proposal for a directive
Article 1 – point 4
Article 1 – point 4
Directive 2012/34/EU
Article 7 a, 7 b, 7 c
Article 7 a, 7 b, 7 c
Amendment 253 #
Proposal for a directive
Article 1 – point 4
Article 1 – point 4
Directive 2012/34/EU
Article 7 a
Article 7 a
4. The following Articles 7 a to 7 e are inserted: ‘Article 7a Effective independence of the infrastructure manager within a vertically integrated undertaking 1. Member States shall ensure that the infrastructure manager shall be organised in a body which is legally distinct from any railway undertaking or holding company controlling such undertakings and from any other legal entities within a vertically integrated undertaking. 2. Legal entities within the vertically integrated undertaking that are active in railway transport services markets shall not have any direct or indirect shareholding in the infrastructure manager. Nor shall the infrastructure manager have any direct or indirect shareholding in any legal entities within the vertically integrated undertaking active in railway transport services markets. 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. 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. 4. Without prejudice to Article 8(4), the infrastructure manager shall raise funds on the capital markets independently and not via other legal entities within the vertically integrated undertaking. Other legal entities within the vertically integrated undertaking shall not raise funds via the infrastructure manager. 5. The infrastructure manager shall keep detailed records of any commercial and financial relations with the other legal entities within the vertically integrated undertaking and make them available to the regulatory body upon request, in accordance with Article 56(12). Article 7b Effective independence of the staff and management of the infrastructure manager within a vertically integrated undertaking 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, 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 behaviour of the infrastructure manager in relation to these functions. 2. The members of the management board and senior staff members of the infrastructure manager shall not be in the supervisory or management boards or be senior staff members of any other legal entities within the vertically integrated undertaking. The members of the supervisory or management boards and senior staff members of the other legal entities within the vertically integrated undertaking shall not be in the management board or be senior staff members of the infrastructure manager. 3. The infrastructure manager shall have a Supervisory Board which is composed of representatives of the ultimate owners of the vertically integrated undertaking. The Supervisory Board may consult the Coordination Committee referred to under Article 7d on issues under its competence. Decisions regarding the appointment and renewal, working conditions including remuneration, and termination of the office of the management board members of the infrastructure manager shall be taken by the Supervisory Board. The identity and the conditions governing the duration and the termination of office of the persons nominated by the Supervisory Board for appointment or renewal as members of the management board of the infrastructure manager, and the reasons for any proposed decision terminating the 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 to the professional independence of a person nominated for the management board or in the case of premature termination of office of a member of the management board of the infrastructure manager. Effective rights of appeal to the regulatory body shall be granted for members of the management board who wish to enter complaints against the premature termination of the office. 4. For a period of three years after leaving the infrastructure manager, members of the Supervisory Board or management board and senior staff members of the infrastructure manager shall not be entitled to hold any senior position with any other legal entities within the vertically integrated undertaking. For a period of three years after leaving those other legal entities within the vertically integrated undertaking, their supervisory or management boards' members and senior staff members shall not be entitled to hold any senior position with the infrastructure manager. 5. The infrastructure manager shall have its own staff and be located in separate premises from the other legal entities within the vertically integrated undertaking. Access to information systems shall be protected to ensure the independence of the infrastructure manager. Internal rules or staff contracts shall clearly limit contacts with the other legal entities within the vertically integrated undertaking to official communications connected with the exercise of the functions of the infrastructure manager which are also exercised in relation to other railway undertakings outside the vertically integrated undertaking. Transfers of staff other than those referred to under point (c) between the infrastructure manager and the other legal entities within the vertically integrated undertaking shall only be possible if it can be ensured that sensitive information will not be passed on between them. 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 shall not be allowed to delegate to these legal entities the operation of these functions or any activities related to them. 7. The members of the supervisory or management boards and senior staff of the infrastructure manager shall hold no interest in or receive any financial benefit, directly or indirectly, from any other legal entities within the vertically integrated undertaking. Performance-based elements of their remuneration shall not depend on the business results of any other legal entities within the vertically integrated undertaking or any legal entities under its control, but exclusively on those of the infrastructure manager. Article 7c Procedure of verification of compliance 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. 2. The Commission shall be entitled to require all necessary information within a reasonable deadline from the Member State where the vertically integrated undertaking is established. The Commission shall consult the regulatory body or bodies concerned and, if appropriate, the network of regulatory bodies referred to in Article 57. 3. Member States may limit the rights of access provided for in Article 10 to railway undertakings which are part of the vertically integrated undertaking to which the infrastructure manager concerned belongs, if the Commission informs Member States that no request has been made in accordance with paragraph 1 or pending the examination of the request by the Commission or if it decides, in accordance with the procedure referred to in Article 62(2), that: (a) no adequate replies to the Commission information requests in accordance with paragraph 2 have been made, or (b) the infrastructure manager concerned does not fulfil the requirements set out in Articles 7a and 7b, or (c) the implementation of requirements set out in Articles 7a and 7b is not sufficient to ensure a level playing field for all railway undertakings and the absence of distortion of competition in the Member State where the infrastructure manager concerned is established. The Commission shall decide within a reasonable period of time. 4. The Member State concerned may request the Commission to repeal its decision referred to in paragraph 3, in accordance with the procedure referred to in Article 62(2), when that Member State demonstrates to the satisfaction of the Commission that the reasons for the decision do not exist any longer. The Commission shall decide within a reasonable period of time. 5. Without prejudice to paragraphs 1 to 4, the on-going compliance with the requirements set out in Articles 7a and 7b shall be monitored by the regulatory body referred to in Article 55. Any applicant shall have the right to appeal to the regulatory body if it believes that these requirements are not complied with. Upon such an appeal, the regulatory body shall decide, within the time-limits indicated in Article 56(9), on all the necessary measures to remedy the situation.article 7a is inserted : Article 7 a Requirements for the independence and transparency of infrastructure managers 1. The infrastructure manager shall keep detailed records of any commercial and financial relations with the other legal entities within the vertically integrated undertaking and make them available to the regulatory body upon request, in accordance with Article 56(12). 2. Control agreements in which the share- holders of infrastructure managers are granted influence in decisions taken at such undertakings on track access and usage charges, or on the general terms and conditions for usage of infrastructure, are not admissible. 3. Financial flows generated at integrated companies from charges for the use of railway infrastructure are to be disclosed within the framework of external reporting. This is to include demands on the return on capital of the infrastructure managers. 4. Costs incurred by the infrastructure managers for internal services rendered are to be charged appropriately and in line with market prices. 5. The planned development of average usage charges for the individual transport modes (rail freight, long-distance passenger rail and regional passenger rail) including any foreseeable developments is to be disclosed within fluctuation margins for a five-year planning period and updated annually. Major deviations in the updates from planning for the previous year are to be indicated separately and justified. Major deviations in the development of usage charges from the development of production prices require special explanation by the respective infrastructure manager. 6. It has to be ensured that, on a multi- annual average, any profits arising at the infrastructure managers do not exceed the costs of the capital injected into these companies. The balance between equity and external capital is to be taken into account. The maximum return on capital is subject to regulation. (Articles 7b and 7c of the COM proposal are deleted.)
Amendment 500 #
Proposal for a directive
Article 1 – point 7 a (new)
Article 1 – point 7 a (new)
Directive 2012/34/EU
Article 19 - point d a new
Article 19 - point d a new
7a. In paragraph 19, the following point is added: '(da) have given a commitment to apply the respective representative collective agreements of the Member States in which the undertaking wishes to operate, in order to prevent undesirable social developments. The principle of the same pay for the same work in the same place must apply. The competent regulatory body shall monitor compliance with this provision.'
Amendment 523 #
Proposal for a directive
Article 1 – point 8 c (new)
Article 1 – point 8 c (new)
Directive 2012/34/EU
Article 56 – paragraph 1 - points g a and g b (new)
Article 56 – paragraph 1 - points g a and g b (new)
The following points are added in Article 56(1): '(ga) scheduled maintenance (gb) unscheduled maintenance'
Amendment 527 #
Proposal for a directive
Article 1 – point 8 c (new)
Article 1 – point 8 c (new)
Directive 2012/34/EU
Article 56 – paragraph 2
Article 56 – paragraph 2
Article 56(2) is replaced by the following: '2. Without prejudice to the powers of the national competition authorities to safeguard competition on rail transport markets, the regulatory body shall be entitled to monitor the situation with regard to competition on rail transport markets; it shall in particular check on its own initiative the points referred to in paragraph 1, letters (a) to (i), with a view to preventing discrimination against applicants. It shall, in particular, check whether the network conditions of use contain discriminatory clauses or grant the infrastructure manager discretionary powers that may be used to discriminate against applicants. In respect of public rail passenger transport, the regulatory body shall, without being asked to do so, meet the requirements laid down in Regulation (EC) No 1370/2007 and take due account of the services provided for in Article 10 of this Directive.'
Amendment 530 #
Proposal for a directive
Article 1 – point 8 c (new)
Article 1 – point 8 c (new)
Directive 2012/34/EU
Article 56 – paragraph 6
Article 56 – paragraph 6
Article 56(6) is replaced by the following: '6. The regulatory body shall ensure that charges set by the infrastructure manager are consistent with Section 2 of Chapter IV and are non-discriminatory. The regulatory body shall also ensure that the access charges set by infrastructure operators, operators of service facilities or railway undertakings - including for access to tracks and access to stations, their buildings and other facilities, including facilities for the display of travel information - are not discriminatory. In that connection, proposed changes to the level or structure of the charges referred to in this paragraph shall be notified to the regulatory body at the latest two months prior to their scheduled entry into force. Until one month prior to their entry into force, the regulatory body may insist on a reduction or an increase in the proposed changes, their postponement or their cancellation. Negotiations between applicants and an infrastructure manager concerning the level of infrastructure charges shall be permitted only if they are carried out under the supervision of the regulatory body. The regulatory body shall intervene if negotiations are likely to produce an outcome which contravenes the provisions of this Chapter.
Amendment 535 #
Proposal for a directive
Article 1 – point 8 c (new)
Article 1 – point 8 c (new)
Directive 2012/34/EU
Article 56 – paragraph 9 – subparagraph 3
Article 56 – paragraph 9 – subparagraph 3
Article 56(9), third subparagraph, is replaced by the following: In the event of an appeal against a refusal to grant infrastructure capacity, or against the terms of an offer of capacity, at the latest one month following the appeal submission the regulatory body shall either confirm that no modification of the infrastructure manager's decision is required, or it shall require modification of that decision in accordance with its instructions. The infrastructure operator must comply with the decision as quickly as possible, and at the latest one month after receiving notification of the regulatory body’s decision.'
Amendment 539 #
Proposal for a directive
Article 1 – point 8 c (new)
Article 1 – point 8 c (new)
Directive 2012/34/EU
Article 56 – paragraph 10
Article 56 – paragraph 10
Article 56(10) is replaced by the following: '10. Member States shall ensure that decisions taken by the regulatory body are subject to judicial review. The appeal may have a suspensory effect on the decision taken by the regulatory body only if that decision may cause immediate irreversible or obviously disproportionate damage to the appellant and if it is not based on Article 56(6) or 56(9) of this Directive. This provision shall be without prejudice to the powers of the court hearing the appeal as conferred by constitutional law, where applicable.
Amendment 547 #
Proposal for a directive
Article 1 – point 8 d (new)
Article 1 – point 8 d (new)
Directive 2012/34/EU
Article 57 – paragraphs 9a, 9b, 9c, 9d (new)
Article 57 – paragraphs 9a, 9b, 9c, 9d (new)
8d. Article 57 is complemented as follows: (a) The following new paragraph 9a is inserted: '9a. If an applicant considers that decisions taken by one or more infrastructure operators or bodies in charge of key functions are hampering the development of cross-border transport services, the applicant may submit directly to the network a request for a regulatory body to issue an opinion. This request shall at the same time constitute a request for a decision by the competent national regulatory body or bodies. If necessary the network shall ask the infrastructure operator or the bodies in charge of key functions and, at all events, the competent national regulatory body or bodies to provide all relevant information, using the procedure laid down in Article 57(4). The network shall then draw up a non-binding opinion with the aim of securing the implementation of measures which facilitate, rather than hampering, the transport services in question. The opinion shall be forwarded to the competent national regulatory bodies and the applicant at the latest one month following receipt of the application. The competent national regulatory bodies shall take account of the opinion issued by the network before taking their decisions at the latest one month following submission of that opinion, and shall provide the applicant with a written statement of their reasons for departing from the terms of the opinion.' (b) The following new paragraph 9b is inserted: 9b. The network of regulatory bodies described in Article 57(1) shall adopt its rules of procedure by consensus, and failing that by a two-thirds majority, with each national regulatory body having one vote. The network shall elect from among its members a chair and shall submit an annual activity report to the Commission. The Commission shall forward the report to the European Parliament and the Council, if appropriate with its comments. (c) The following new paragraph 9c is inserted: 9c. The Commission shall act as the secretariat for the network described in Article 57(1). The travel and subsistence expenses incurred by members, observers and experts in taking part in the activities of the network shall be reimbursed by the Commission in accordance with the relevant rules in force.' (d) The following new paragraph 9d is inserted: 9d. At the latest within one year following the entry into force of this Directive, the Commission shall adopt a legislative proposal establishing the network of regulatory bodies as a legal person.'