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Legal Challenges of the Railway Liberalisation in the EU

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New Europe - Old Values?

Part of the book series: Europeanization and Globalization ((EAG,volume 1))

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Abstract

EU law in the field of railway is developing with a cautious pursuit of balance between respecting national interests and establishing a single EU railway market. In this respect, the author notices that enforcement procedures against Member States before the EU Court of Justice for breach of the first railway package have contributed a great deal to raising awareness about the Commission’s serious intentions to implement EU law in the field of railway. Some inadequacies have been removed before the Court issued the judgments, while others remain to be eliminated. This, however, will only align national law with the current EU law in the field and will not yet result in a fully integrated EU railway market. Immediately after the adoption of the first package of railway legislation in 2001, the Commission published a White Paper for transport policy, in which it stressed the need for a “veritable cultural revolution to make rail transport (…) one of the leading players in the transport system in the enlarged Europe”. The author finds that this revolution is still waiting to happen and states that it could happen on the basis of the fourth package of railway legislation, but hopes are not very high, taking into consideration that the Commission’s proposals are not as revolutionary as initially anticipated.

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Notes

  1. 1.

    End of January 2013 already the fourth package of EU railway legislation was proposed by the Commission.

  2. 2.

    See case C-473/10, Commission v Hungary (judgment 28.2.2013); case C-483/10, Commission v Spain (judgment 28.2.2013); case C-512/10, Commission v Poland (judgment 30.5.2013); case C-528/10, Commission v Greece (judgment 8.11.2012); case C-545/10, Commission v Czech Republic (judgment 11.7.2013); case C-555/10, Commission v Austria (judgment 28.2.2013); case C-556/10, Commission v Germany (judgment 28.2.2013); case C-557/10, Commission v Portuguese Republic (judgment 25.10.2012); case C-625/10, Commission v France (judgment 18.4.2013); case C-627/10, Commission v Slovenia (judgment 11.7.2013); case C-369/11, Commission v Italy (judgment 3.10.2013); case C-412/11, Commission v Luxembourg (judgment 11.7.2013); case C-152/12, Commission v Bulgaria (judgment 13.2.2014).

  3. 3.

    Engle (2012), p. 7.

  4. 4.

    Worth (2004), pp. 1–2.

  5. 5.

    Engle (2012), p. 8.

  6. 6.

    European Commission (2008), p. 2.

  7. 7.

    Fr. Train Á Grande Vitesse—TGV or Eng. Inter-City Express—ICE—see e.g.: A high-speed revolution, European railways form an alliance to promote swifter international travel, The Economist, 5 July 2007, http://www.economist.com/node/9441785 (5 August 2013).

  8. 8.

    Intermodal rail is a roll-on-roll of container system, wherein the big ship drops the big box onto a truck, which rolls the box onto the train and the train then drops the box onto another truck at or near the final destination—EU Commission, “Intermodality and trans European networks”, http://europa.eu/legislation_summaries/transport/intermodality_transeuropean_networks/index_en.htm (5 August 2013).

  9. 9.

    Maglev trains use magnets to lift the carriages above the track, eliminating the need for wheels and therefore any incidence of friction, providing a faster and quieter service—Floating by at 311 mph: Japanese “Maglev” bullet train undergoes its first successful test run, Daily Mail, 4 June 2013, http://www.dailymail.co.uk/sciencetech/article-2335785/Floating-311mph-Japanese-Maglev-bullet-train-undergoes-successful-test-run.html#ixzz2ZOpBC7Jb (5 August 2013).

  10. 10.

    Engle (2012), p. 8.

  11. 11.

    Worth (2004), pp. 24–25.

  12. 12.

    Abbiati (1987), p. 59.

  13. 13.

    Rapport des Chefs de Delegation aux Ministres des Affaires Etrangeres, available at: http://www.unizar.es/euroconstitucion/library/historic%20documents/Rome/preparation/Spaak%20report%20fr.pdf.

  14. 14.

    Stevens (1994), p. 37.

  15. 15.

    Abbiati (1987), pp. 29–33; Stevens (1994), pp. 37–39.

  16. 16.

    Pelkmans (2001), pp. 432–456.

  17. 17.

    Case 13/83, European Parliament v Council, 1985 ECR 1513.

  18. 18.

    Alias (2008), p. 8.

  19. 19.

    Council Directive 91/440/EEC of 29 July 1991 on the development of the Community’s railways, OJ L 237, 24.8.1991, pp. 25–28.

  20. 20.

    Van Elburg and Holvad (2004).

  21. 21.

    Heritier and Knill (2001), p. 274.

  22. 22.

    Particularly the Council Directive 95/18/EC of 19 June 1995 on the licensing of railway undertakings, OJ L 143, 27.6.1995, pp. 70–74.

  23. 23.

    White Paper, A Strategy for revitalizing the Community’s Railways, COM (96) 421 final.

  24. 24.

    Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 91/440/EEC on the development of the Community’s railways, OJ L 75, 15.3.2001, pp. 1–25.

  25. 25.

    Directive 2001/13/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 95/18/EC on the licensing of railway undertakings, OJ L 75, 15.3.2001, pp. 26–28.

  26. 26.

    Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification, OJ L 75, 15.3.2001, pp. 29–46.

  27. 27.

    House of Lords, European Union Committee – Tenth Report, Recast of the First Rail Freight Package, para. 12, http://www.publications.parliament.uk/pa/ld200809/ldselect/ldeucom/90/9005.htm (5 August 2013).

  28. 28.

    Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the implementation of the first railway package, COM(2006)189.

  29. 29.

    First railway package of 2001, http://ec.europa.eu/transport/rail/packages/2001_en.htm (5 August 2013). See also: Commission’s Report on monitoring development of the rail market, COM (2012) 459 final.

  30. 30.

    Directive 2012/34/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, pp. 32–77.

  31. 31.

    Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community’s railways, OJ L 164, 30.4.2004, pp. 44–113; Directive 2004/50/EC of the European Parliament and of the Council of 29 April 2004 amending Council Directive 96/48/EC on the interoperability of the trans-European high-speed rail system and Directive 2001/16/EC of the European Parliament and of the Council on the interoperability of the trans-European conventional rail system, OJ L 164, 30.4.2004, pp. 114–163; Directive 2004/51/EC of the European Parliament and of the Council of 29 April 2004 amending Council Directive 91/440/EEC on the development of the Community’s railways, OJ L 164, 30.4.2004, pp. 164–172 and Regulation No 881/2004 establishing a European Railway Agency (Agency Regulation), OJ L 164, 30.4.2004, pp. 1–43.

  32. 32.

    See cases C-29/12 and C-146/12, Commission v Germany; case C-500/12, Commission v Poland; case C-188/13, Commission v Slovenia, all deleted from the Court’s registry. See also Rail transport: Commission asks Austria to transpose EU rules on rail safety, MEMO/13/583, 20 June 2013.

  33. 33.

    Directive 2007/58/EC of the European Parliament and of the Council of 23 October 2007 amending Council Directive 91/440/EEC on the development of the Community’s railways and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure, OJ L 315, 3.12.2007, pp. 44–50; Directive 2007/59/EC of the European Parliament and of the Council of 23 October 2007 on the certification of train drivers operating locomotives and trains on the railway system in the Community, OJ L 315, 3.12.2007, pp. 51–78; 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, OJ L 315, 3.12.2007, pp. 1–13; Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations, OJ L 315, 3.12.2007, pp. 14–41; Regulation (EC) No 1372/2007 of the European Parliament and of the Council of 23 October 2007 amending Council Regulation (EC) No 577/98 on the organisation of a labour force sample survey in the Community, OJ L 315, 3.12.2007, pp. 42–43.

  34. 34.

    On this topic, see Pavliha (2013), pp. 229–245, and Pavliha and Hojnik (2014), pp. 5–11, commenting case C-509/11, øBB-Personenverkehr.

  35. 35.

    All documents accessible at: http://ec.europa.eu/commission_2010-2014/kallas/headlines/news/2013/01/fourth-railway-package_en.htm (5 August 2013).

  36. 36.

    European Commission, White Paper: Roadmap to a Single European Transport Area – Towards a competitive and resource efficient transport system, COM (2011) 144 final.

  37. 37.

    Communication from the European Commission, Single Market Act II, Together for New Growth, COM (2012) 573. The Single Market Act II reminded that this Package should “reinforce the governance of the infrastructure management to optimise the use of existing infrastructure with better allocation of capacity, planning of maintenance and development works. This, together with a new common approach to safety and interoperability rules, will help ensure that non-discriminatory access is guaranteed so that a genuine level playing field is in place”.

  38. 38.

    See Sect. 4.1 below.

  39. 39.

    Cramer, Fourth Railway Package, http://www.theparliament.com/latest-news/article/newsarticle/fourth-eu-railway-package-michael-cramer/#.Uee1_NKEzv0 (5 August 2013).

  40. 40.

    In Slovenia, a referendum was even held in 2003 at the initiative of rail trade unions, where citizens were asked to support a unified and nationalised railway company, Slovenske železnice.

  41. 41.

    European Rail Infrastructure Managers Association (EIM), http://www.eimrail.org (5 August 2013).

  42. 42.

    DB Netz, for example, still remains a part of the Deutsche Bahn group, but it has a list of its network prices available for download on its website.

  43. 43.

    Case C-555/10, Commission v Austria and case C-556/10, Commission v Germany, judgments of 28 February 2013.

  44. 44.

    See Commission v Austria, para. 27–40 and Commission v Germany, para. 32–45.

  45. 45.

    In contrast to Austria and Germany, France was not successful on the point of independence of the French railway infrastructure manager—case C-625/10, Commission v France, judgment of 18 April 2013. The Commission argued that France did not make provision for the separation of SNCF, the entity providing rail transport services, from RFF, the organisation responsible for managing the infrastructure, in particular with regard to the performance of essential functions. It claimed that SNCF, through the Direction des Circulations Ferroviaires (“DCF”), which at the time was not independent from SNCF, remained in charge of the allocation of train paths. France considered that it had fully transposed Directive 91/440; however, since the relevant time frame was the deadline from the time of the Commission’s reasoned opinion, the Court affirmed the Commission’s complaint.

  46. 46.

    See Directive 91/440 does not require institutional separation, Railway gazette, 7 September 2012, http://www.railwaygazette.com/news/policy/single-view/view/directive-91440-does-not-require-institutional-separation.html and European Court of Justice rules on vertical separation, Railway gazette, 28 February 2013, http://www.railwaygazette.com/news/policy/single-view/view/european-court-of-justice-rules-on-vertical-separation.html.

  47. 47.

    Rail—statement by Vice President Kallas following today’s ECJ rulings (Spain, Hungary, Germany, Austria), 28 February 2013, IP/13/176.

  48. 48.

    Nash (2012), p. 90.

  49. 49.

    McNulty, Rail Value for Money, according to Nash (2012).

  50. 50.

    CER, EVES-Rail, Economic effects of Vertical Separation in the railway sector, Amsterdam, November 2012.

  51. 51.

    4th Railway Package – Statement Vice-President Siim Kallas, MEMO 13/50, 30 January 2013.

  52. 52.

    La rÕforme ferroviaire, 29 May 2013, http://www.gouvernement.fr/gouvernement/la-reforme-ferroviaire (5 August 2013).

  53. 53.

    As a matter of illustration: on 18 December 2012, the French Competition Authority issued a decision stating that Fret SNCF applied prices to certain customers and traffic, lower than the incurred costs, with the aim of maintaining its position on the market and artificially preventing its competitors from entering the market. AutoritÕ de la concurrence, A landmark decision in the railway freight sector, Press Release, http://www.autoritedelaconcurrence.fr/user/standard.php?id_rub=418&id_article=2016 (2 August 2013).

  54. 54.

    Worth (2004), pp. 28–31.

  55. 55.

    Case C-625/10, Commission v France, para. 45; case C-473/10, Commission v Hungary, para. 44; case C-627/10, Commission v Slovenia, para. 34.

  56. 56.

    In its White Paper of 2001 (European transport policy for 2010: time to decide, COM (2001) 370, p. 33), the Commission stated that “Priority is given to passenger trains, with the result that goods consignors have lost confidence in the railways”.

  57. 57.

    Under Directive 2001/14, the maximum duration of use of train paths is one working timetable period, unless a framework agreement has been concluded between the infrastructure manager and the railway undertaking in accordance with the terms laid down in the directive.

  58. 58.

    Direction des Circulations Ferroviaires (DCF) is a specialist unit within the SociÕtÕ nationale des chemins de fer franÓais (SNCF).

  59. 59.

    Case C-625/10, Commission v France, para. 48–53.

  60. 60.

    Case C-627/10, Commission v Slovenia, para. 32–40.

  61. 61.

    Council Directive 96/48/EC on the interoperability of the trans-European high-speed rail system, OJ L 235, 17.09.1996, pp. 6–24 defines interoperability as “the ability of the trans-European high-speed rail system to allow the safe and uninterrupted movement of high-speed trains which accomplish the specified levels of performance. This ability rests on all the regulatory, technical and operational conditions which must be met in order to satisfy essential requirements”.

  62. 62.

    In this respect, the Commission has set up ERTMS—European Rail Traffic Management System—to create a unique signalling and communication standard throughout Europe. ERTM thus intends to remove technical barriers to interoperability with regard to the train control command system.

  63. 63.

    See e.g. CER, Fourth Railway Package: CER calls for a two-track approach, 30 January 2013, http://www.cer.be/press/press-releases/2393-fourth-railway-package-cer-calls-for-a-two-track-approach (5 August 2013).

  64. 64.

    House of Lords, 10th report, see fn. 35.

  65. 65.

    White Paper, A strategy for revitalising the Community’s railways, COM (96) 421, p. 6.

  66. 66.

    White Paper, A strategy for revitalising the Community’s railways, COM (96) 421, p. 10.

  67. 67.

    See e.g. Keating (2013).

  68. 68.

    White Paper, European Transport Policy for 2010: time to decide, COM (2001) 370.

  69. 69.

    White Paper, European Transport Policy for 2010: time to decide, COM (2001) 370, p. 28.

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Authors and Affiliations

  1. Faculty of Law, Department for European and International Law, University of Maribor, Maribor, Slovenia

    Janja Hojnik

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  1. Jean Monnet Department of European Public Law, University of Rijeka, Rijeka, Croatia

    Nada Bodiroga-Vukobrat

  2. Court of Justice of the European Union, Luxembourg, Luxembourg

    Siniša Rodin

  3. University of Applied Sciences, Hochschule für öffentliche Verwaltung und Finanzen Ludwigsburg, Ludwigsburg, Germany

    Gerald Sander

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Hojnik, J. (2016). Legal Challenges of the Railway Liberalisation in the EU. In: Bodiroga-Vukobrat, N., Rodin, S., Sander, G. (eds) New Europe - Old Values?. Europeanization and Globalization, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-319-02213-0_11

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