Commission Implementing Regulation (EU) No 869/2014 of 11 August 2014 on new rail passenger services Text with EEA relevance
Commission Implementing Regulation (EU) No 869/2014of 11 August 2014on new rail passenger services(Text with EEA relevance)THE EUROPEAN COMMISSION,Having regard to the Treaty on the Functioning of the European Union,Having regard to Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway areaOJ L 343, 14.12.2012, p. 32. and in particular Articles 10(4) and 11(4) thereof,Whereas:(1)In accordance with Article 10 of Directive 2012/34/EU, Member States have opened their market for international rail passenger transport services provided by any railway undertaking licensed under the same Directive. In the course of an international rail passenger service, railway undertakings have the right to pick up passengers at any station located along the international route and set them down at another, including stations located in the same Member State.(2)However, the introduction of new, open-access international rail passenger services with intermediate stops should not be used to open up the market for domestic passenger services, but should merely focus on stops that are ancillary to the international service. The principal purpose of the new services should be to carry passengers travelling on an international journey. At the request of competent authorities or interested railway undertakings, the regulatory body referred to in Section 4 of Chapter IV of Directive 2012/34/EU should determine the principal purpose of a proposed new service.(3)Opening up international rail passenger services to competition may have implications for the organisation and financing of rail passenger services provided under a public service contract in accordance with Regulation (EC) No 1370/2007 of the European Parliament and of the CouncilRegulation (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 and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70 (OJ L 315, 3.12.2007, p. 1).. In accordance with Article 11 of Directive 2012/34/EU, Member States may limit the right of access to the market where that right would compromise the economic equilibrium of those public service contracts. At the request of competent authorities, the infrastructure manager or the railway undertaking performing the public service contract, the regulatory body should determine whether a proposed new international rail passenger service would compromise the economic equilibrium of a public service contract.(4)In order to avoid the interruption of a new rail passenger service that has already started, and to give legal certainty to this new service about its possibility to operate, the time period that is open for request for a principal purpose test or for an economic equilibrium test should be limited and linked to the time of the applicant's notification of its interest in operating a new international rail passenger service. For the same reason, the procedures of the regulatory body for those tests should also be limited in time.(5)A request for a principal purpose test should include all relevant information to justify that the principal purpose of the proposed new service is other than to carry passengers between stations located in different Member States. In order to meet this requirement, entities requesting for such a test should be able to use standard request forms published by the regulatory bodies.(6)The regulatory body should carry out both a qualitative and quantitative analysis to identify the vocation of the proposed new service in the medium term, rather than its characteristics at a given moment. Assessment criteria should be determined in the methodology adopted by the regulatory body for the principal purpose test with regard to the specificities of rail transport in the Member State concerned. No quantified threshold should be applied strictly or in isolation.(7)A request for an economic equilibrium test should include all relevant information to justify that the economic equilibrium of the public service contract would be compromised by the proposed new service. The economic equilibrium of a public service contract should be regarded as compromised by the proposed new service if there is a substantial change in the value of the public service contract which implies that services operated under that contract in a competitively structured market would no longer be sustainable and capable of operating with a reasonable level of profit.(8)The assessment of the impact of the proposed new service on the economic equilibrium of a public service contract should be based on an objective method and assessment criteria to be determined in the methodology adopted by the regulatory body for the economic equilibrium test with regard to the specificities of rail transport in the Member State concerned. The economic analysis should focus on the economic impact of the proposed new service on the public service contract as a whole, including the services specifically affected, for its whole time-scale. No predefined quantified threshold should be applied strictly or in isolation. Beyond the economic analysis of the impact of the proposed new service on the public service contract, the regulatory body should also take into account the benefits to customers in the short and medium term.(9)The possibility of reconsideration of a decision taken by the regulatory body resulting from an economic equilibrium test should be limited to cases when there is a significant change in the new service in comparison with the data analysed by the regulatory body or when there is a substantial difference between the real and estimated impact on the services under the public service contract. In order to guarantee a minimum of legal stability for the new service operator, there should be a certain period of time when no reconsideration may be requested.(10)Without prejudice to the principle of independence of regulatory bodies in decision-making referred to in Article 55(1) of Directive 2012/34/EU, regulatory bodies should exchange information and, where relevant in individual cases, should coordinate their principles and actions related to principal purpose and economic equilibrium tests, in order to avoid major differences in their practice that would bring uncertainty to the market of international rail passenger services.(11)In all their activities related to the principal purpose or the economic equilibrium tests, regulatory bodies should respect the confidentiality of commercially sensitive information received from the parties involved in these tests.(12)Regulatory bodies have no obligation to request a fee for a principal purpose test, an economic equilibrium test or the reconsideration of an economic equilibrium test. However, Member States may decide to impose such a fee on entities making such requests for the work undertaken by the regulatory bodies covering the net cost of these assessments. In such a case, the fee should be non-discriminatory, reasonable and be effectively levied on all the requesting entities in a transparent manner.(13)Taking into account the results of a stakeholders' consultation and exchanges of information with other regulatory bodies, regulatory bodies should develop a consistent methodology for principal purpose tests and, if appropriate, for economic equilibrium tests. This responsibility should not be constrained by other entities. The tests should rely on a case-by-case analysis, rather than simple application of predetermined thresholds. No thresholds should be determined in national legislative acts. The assessment method should be established in a way consistent with market developments, allowing its evolution over time, in particular in the light of the experience of regulatory bodies.(14)The measures provided for in this Regulation are in accordance with the opinion of the Committee established by Article 62(1) of Directive 2012/34/EU,HAS ADOPTED THIS REGULATION: