Explanatory Memorandum to COM(2017)647 - Amendment of Regulation (EC) No 1073/2009 on common rules for access to the international market for coach and bus services - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2017)647 - Amendment of Regulation (EC) No 1073/2009 on common rules for access to the international market for coach and bus services. |
|---|---|
| source | COM(2017)647  |
| date | 08-11-2017 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
This proposal is part of the second mobility package which aims to lead the fight against climate change, make European industry stronger and more competitive, and improve the quality of life and choice of citizens for their daily mobility. The freedom to move freely across the Union's territory is an essential achievement of the European Union. It has enabled citizens to travel smoothly between different Member States be it for their jobs or to go on holidays. This proposal will improve the mobility of citizens over longer distances and increase the use of sustainable transport modes. It will lead to services that are more responsive to citizens needs, in particular for those on lower incomes, with the added benefit of providing environmental, economic and social benefits. The proposal benefits the growing global demand for connectivity from all geographical areas and ensures accessibility for a broader range of the population. This contributes directly to the Commission's priorities of Jobs and Growth and Energy Union.
Regulation (EC) No 1073/2009 on common rules for access to the international market for coach services, and amending Regulation (EC) No 561/2006 1 was adopted as part of a legislative package with Regulation 1071/2009 on access to the occupation of road transportoperator 2 . Together, these two regulations regulate the conditions for accessing the profession and the market in the field of transport of passengers by road. Both Regulations contribute to the good functioning of the single market in road transport, its efficiency and competitiveness.
Regulation (EC) No 1073/2009 lays down the provisions that undertakings intending to operate on the international road passenger transport market and on national markets other than the market of their Member State of establishment (known as cabotage operations) must comply with. It includes provisions on the documents to be issued to those undertakings by the Member State of registration (Community licence) and by the authorising authority (Authorisation for a regular service). It sets provisions on the sanctions for infringements of those obligations as well as the provisions on cooperation between Member States.
An ex-post evaluation of the Regulation was carried out from 2015 to 2017 3 and concluded that the Regulation is only partly effective in achieving its original objective of promoting coach and bus services as a sustainable alternative to individual car transport. It found that the opening of national markets for regular services by coach and bus creates a critical mass of operators who then also introduce international services, resulting in a greater impact on the number of international routes and service frequencies than pan-European legislation alone. Further opening of national markets will strengthen the development of the international market for regular services, quite apart from any benefits for passengers making national journeys. The main problems identified were obstacles in national markets hindering the development of inter-urban coach and bus services and a low share of sustainable passenger transport modes. This proposal, which is a Regulatory Fitness and Performance (REFIT) initiative 4 , is intended to correct these shortcomings.
• Consistency with existing policy provisions in the policy area
This proposal is part of a broader ongoing review of the road transport legislation. It is closely linked to other existing legal acts concerning road transport, in particular to the legislation on access to the profession (Regulation (EC) No 1071/2009), on social legislation (Regulation (EC) No 561/2006 5 , Directive 2002/15/EC 6 , Directive 2006/22/EC 7 and Regulation (EU) 165/2014 8 , and the Eurovignette (Directive 1999/62/EC 9 ). Facilitating the provision of inter-urban coach and bus services, as suggested in the present proposal, will therefore be made easier through considering the internal market, social and posting of workers’ rules together to ensure both fair working conditions for drivers and fair competition between operators.
• Consistency with other Union policies
The proposal is fully consistent with the priority of the Commission to create a deeper and fairer internal market. The internal market for the road passenger transport operations using coach and bus services will be strengthened. It is also in line with the objectives of the low emission mobility and Energy Union objective of decarbonising transport, as well as the common transport policy as described in the 2011 White Paper 'Roadmap to a Single European Transport Area - Towards a competitive and resource efficient transport system' 10 . The proposal will create new business opportunities for operators in the sector, thus increasing jobs and growth opportunities as well as choice for passengers. This proposal also reduces the regulatory burden on road passenger transport operators and clarifies the legal framework - both of which are objectives of the EU's REFIT programme.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The legal basis for the Regulation and for the proposed amendment derives from Title VI (Transport) of the Treaty on the Functioning of the European Union (TFEU), in particular Article 91 which states, inter alia, that the European Parliament and the Council shall lay down common rules applicable to international transport to or from the territory of a Member State, or passing across the territory of one or more Member States, as well as the conditions under which non-resident carriers may operate transport services within a Member State.
• Subsidiarity (for non-exclusive competence)
The EU shares competence with Member States in the field of transport under Article 4(2)(g) TFEU. However, amendments to existing rules can only be made by the EU legislator itself.
Besides, the patchwork of rules for access to national markets for coach and bus services constrains carriers’ ability to develop services into pan-European coach networks and denies them the possibility to offer integration with other coach services and transport modes. Member States acting alone cannot introduce or ensure the coherence and coordination of uniform market access rules needed for the emergence of a genuine internal market for road passenger transport. It is therefore necessary to provide rules at the EU level.
• Proportionality
As indicated in Section 7.3 of the impact assessment report, the policy proposal is proportionate to the problems that have been identified and it does not go beyond what is needed to solve them. The proposal only contains some targeted amendments to the Regulation which help improve the existing regulatory framework in which the road passenger transport sector in the EU operates and it does not create additional regulatory requirements for interested parties which would not be proportionate to the identified problems.
• Choice of the instrument
Since the legal act to be amended is a Regulation, the act amending it should in principle take the same form.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
The staff working document to the ex-post evaluation of Regulation (EC) No 1073/2009 has been adopted with this proposal 11 .
- The inter-urban coach and bus sector has failed to grow at a rate comparable to that of other transport modes and its modal share has continued to decline over an extended period.
- There are obstacles in national markets hindering the development of inter-urban coach and bus services.
- International regular services by coach and bus, without competitive inter-urban services, constitute less appealing service offerings to users.
-- The scope of the objectives of the original Regulation did not cover the problem of discrimination in access to terminals.
- There are excessive administrative costs of entry.
• Stakeholder consultations
The consultations of interested parties conducted in preparation of this proposal complied with the minimum standards for the consultation of interested parties set out in the Commission Communication of 11 December 2002 (COM(2002) 704 final).
The consultation process included five separate consultation activities. Open and targeted consultation methods and various consultation tools were used.
As for the open consultation, there was a 13-week online public consultation (covering both ex-post and impact assessment) that took place between 14 December 2016 and 15 March 2017.
- help check the problems faced by the sector, as identified in the ex-post evaluation;
- obtain the opinion of interested parties on the appropriateness and expected impacts of the interventions.
It was comprised of two questionnaires, one for the general public and a more specialised one for key interested parties. The Commission received 171 contributions in total. The 18 contributions to the general questionnaire: 8 replies from citizens/consumers; 7 replies from companies; 2 replies from non-governmental organisations; and 1 reply from other respondents. The 153 contributions to the specialised questionnaire: 68 replies from companies engaged in the transport chain; 28 replies from non-governmental authorities; 17 replies from road passenger transport workers; 7 replies from regulatory authorities; 3 replies from EU governmental authorities; 3 replies from enforcement authorities; 1 reply from a citizen/consumer; 1 reply from an academic; and 25 replies from other respondents.
The targeted consultation involved sending a detailed questionnaire to key interested parties identified during the inception stage of the study. Four different questionnaires were produced, each tailored to the type of interested party: 20 replies from Ministries/Regulators; 2 replies from pan-European organisations; 3 replies from operators; and 6 replies from operator associations.
Interviews were conducted to gather more detailed insights into interested parties experiences as well as their views on the different measures under consideration. They also provided an opportunity to request quantitative data required for the impact assessment. In each case, specific questions were submitted in advance and/or sought clarification on information provided through the questionnaires. Interviews were conducted with 6 Ministries/Regulators; 4 pan-European organisations; 4 operators; and 4 operator associations.
A special Eurobarometer public opinion survey 12 on coach services was conducted amongst Europeans in the EU-28. There were 27,901 interviews between the 18 March 2017 and 27 March 2017. The objective of this survey was to gather the opinion of Europeans on a series of issues related to satisfaction with current coach services in their Member State and reasons for using/ not using such services. The key findings of the survey are:
- Across the EU, only a minority of respondents use coach services with over six in ten (64%) saying they never use coach services for domestic travel.
- The most common mentioned reason for using coach services is low prices (33%).
- The most commonly mentioned ways to make non-users of coach services more likely to use them are not having a car (37%), lower prices (26%) and more extensive network of routes and stations (11%).
Several seminars for interested parties, meetings and other events were organised during the course of the ex-post evaluation and the impact assessment.
The information gathered during the consultation confirmed the existence of the main problems identified during the ex-post evaluation.
On the possible policy measures, there was strong support among all interested parties to address discrimination in providing access to terminals. There were mixed reactions to the possible policy measures removing restrictions on access to inter-urban national markets with some groups of interested parties supporting changes and others expressing reluctance. Operator representative groups, operators and individuals working within the industry are generally more supportive of common frameworks, whereas some government bodies, regulators and non-government organisations stress the need for market access arrangements reflecting the circumstances of individual Member States and providing protection for public service contracts.
• Collection and use of expertise
An external contractor contributed to the accompanying support study for the impact assessment, which was concluded in August 2017 13 .
• Impact assessment
This proposal is supported by an impact assessment, which was considered by the Regulatory Scrutiny Board (‘the Board’) on two occasions. It initially received a negative opinion on the 24 July 2017 followed by a positive opinion with reservations on the 13 September 2017. All the Board's main comments were addressed in the revised version of the impact assessment. As mentioned in Annex 1 to the impact assessment report, the reservations were addressed as follows:
- The argumentation is strengthened to clarify the need for action at the EU level;
- The problem definition is restructured and revised to take into account the low share of sustainable transport modes;
- The general objectives are revised. There are two general objectives that are complementary and not mutually exclusive;
- The likely responses to the introduction of commercial services and expected impacts on public service contracts are described and the models of contracts typically used to connect rural areas are presented;
- Additional information on terminals is presented and it is clarified that the impact assessment is focused on equal access to terminals.
The impact assessment considered two sets of policy packages.
–The first set addressed the problems of ‘Excessive administrative costs of entry’ and ‘Restricted access to national inter-urban markets’.
–The second set of two policy packages addressed the problem of ‘Restricted access to key infrastructure’.
The problems associated with market access and the problems associated with access to terminals are not interlinked and the geographical scope of the effect is different in each case. More specifically, major restrictions on market access apply in only 14 member states, while the problem of discriminatory access to terminals is encountered across the EU-28. In both sets the policy packages were defined so as to reflect the increasing levels of regulatory intervention and of expected impacts.
The first policy package would open access to the market for regular services with the possibility to refuse authorisation if the economic equilibrium of an existing public service contract is compromised.
The second policy package provides Member States with possibility to refuse authorisation if the economic equilibrium of an existing public service contract is compromised by a proposed new service carrying passengers over distances of less than 100 kilometres as the crow flies.
The third policy package gets rid of the authorisation process for regular services carrying passengers over distances of 100 kilometres or more as the crow flies.
The fourth policy package encourages operators and managers of terminals to provide access to carriers operating regular services on fair and reasonable grounds and without discrimination between operators.
The fifth policy package involved equal access rules requiring operators and managers of terminals to provide access to carriers operating regular services on fair and reasonable grounds and without discrimination between operators.
The assessment showed that the best way forward would be a combination of the second and fifth policy packages. Overall this is considered to be the most effective combination and it is estimated to generate administrative savings for businesses and administrations in the range of EUR 1,560 million for the EU-28 over the assessment period (2015-2035). This combination would also have a positive impact on transport as such by leading to an increase of the activity of coach transport by more than 11 % in 2030 relative to the baseline and increase its modal share by almost one percentage point. It would improve the connectivity of disadvantaged social groups by 62 billion passenger-kilometres in 2030 while creating 85,000 new jobs and contribute to lower accident costs of €2.8 billion for the EU-28 over the assessment period. Equally, it would have a positive impact on the environment with a EUR 183 million net cumulative savings in CO2 emissions costs and net cumulative savings in air pollution costs of EUR 590 million for the EU-28. It is expected that this option would trigger a limited shift from rail to road transport and bring about a decrease in the modal share of rail of 0.4 percentage points in 2030 relative to the Baseline (from 8.4 % to 8 %) with a loss of revenue for rail public service contracts of 1.4 % and an increase in subsidy for coach public service contracts of less than 1 %. This would not undermine the sustainability of public service contracts serving remote urban areas.
The proposal is in line with the preferred option indicated in the impact assessment.
• Regulatory fitness and simplification
The proposal pursues the REFIT objective of increasing effectiveness and reducing regulatory burdens for businesses. This is done mainly by speeding up the authorisation procedure by reducing the number of grounds for refusing the authorisation of a new coach line. The authorisation procedure is simpler and more transparent which effectively lowers the barrier for new entrants. Operators benefit because fewer refusal grounds provides them with more certainty when they are assessing the viability of a new line. The improved access to terminals will reduce the delay for undertakings gaining access to terminals and enable them to commence the new coach lines earlier securing incremental revenue more quickly. Finally, getting rid of the journey form will result in carrier having less administrative work to perform.
• Fundamental rights
The proposal respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union 14 .
4. BUDGETARY IMPLICATIONS
The proposal has no implications on the Union budget.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
The Commission will monitor and evaluate the implementation and effectiveness of the Regulation. The Commission will submit a report on the implementation and effects of this Regulation at the latest five years after the date it commences to apply. By liberalising the national markets for regular coach and bus services, this Regulation is expected to contribute to a better functioning of the road passenger transport market. The relevant information is to be gathered from national competent authorities and through a survey among road passenger transport operators.
• Detailed explanation of the specific provisions of the proposal
Chapter I – GENERAL PROVISIONS
Article 1 – Scope
Currently Article 1 i includes national road passenger services for hire or reward operated on a temporary basis by a non-resident carrier within the scope of the Regulation. It is proposed to amend this provision to include within the scope of the Regulation all regular services for hire and reward operated by a non-resident carrier.
Article 2 – Definitions
It is proposed to amend point 2 to clarify that express services are to be considered as regular services.
It is proposed to amend point 7 to update the definition following the liberalisation of national regular services.
It is proposed to add new definitions of a terminal and of a terminal operator. These definitions are a necessary precursor to regulating access to terminals.
It is proposed to add a new definition of viable alternative to clarify which other terminal(s) a terminal operator should indicate to the carrier when it refuses access to its own terminal.
Article 3a – Regulatory body
It is proposed to add a new Article requiring Member States to designate a Regulatory body which should be independent from any other public authority. The objective of that requirement is to avoid any conflicts of interest when a regulatory body is conducting an economic analysis to determine if economic equilibrium of a public service contract is compromised, or when is acting as an appeal body for access to terminals. The designated body may be a new or an existing body. The procedures provided for appointing the staff should contribute to its independence. The body should be able to obtain the information requested and enforce its decisions by means of appropriate penalties. Finally, the size of the Regulatory body in each Member State should be proportionate to the level of road passenger transport activities in that Member State.
Chapter II – COMMUNITY LICENCE AND MARKET ACCESS
Article 5 – Access to market
It is proposed to delete subparagraph five of Article 5(3) as it is considered that the requirement to communicate the names of carriers and their connection points en route to competent authorities has lost its relevance and generates an unnecessary administrative burden.
Article 5a – Access to terminals
It is proposed to add a new Article requiring that carriers are granted access rights to terminals on fair, equitable, non-discriminatory and transparent terms for the purpose of operating regular services. The conditions for access to terminals should be published.
Article 5b – Procedure for granting access to terminals
It is proposed to add a new Article to provide the procedure for accessing terminals. Applications for access should only be refused if there is a lack of capacity in the terminal. Decisions on applications for access are to be taken within two months and shall contain a proper statement of reasons. Carriers shall have the possibility to appeal decisions to the Regulatory body. The decision of the regulatory body should be binding.
Chapter III – REGULAR SERVICES SUBJECT TO AUTHORISATION
Article 8 – Authorising procedure for the international carriage of passengers over a distance of less than 100 kilometres as the crow flies
Article 8 is amended to provide the authorisation procedure for international regular services carrying passengers over a distance of less than 100 kilometres as the crow flies. Authorising authorities are required to seek the agreement of other Member States where passengers are picked up and set down and are carried over distances of less than 100 kilometres. Authorisations shall be granted unless rejection is justified under the clearly specified grounds. If the competent authorities cannot reach agreement on the authorisation the matter may be referred to the Commission. The Commission is required to take a decision which will continue to apply until the authorising authority adopts its decision.
Article 8a – Authorising procedure for the international carriage of passengers over a distance 100 kilometres or more as the crow flies
Article 8a is added to provide the procedure for authorising international regular services carrying passengers over distances of 100 kilometres as the crow flies. The refusal of a new service cannot be justified on the grounds that it compromises the economic equilibrium of a public service contract.
Article 8b – Authorising procedure for national regular services
Article 8b is proposed to be added to provide the authorising procedure for national regular services. Authorisation for a new service carrying passengers over distance of less than 100 kilometres as the crow flies can be rejected if it compromises the economic equilibrium of a public service contract. Given the differences in the way Member States organise the different modes of public transport in their territories and the different geographical circumstances of Member States, the distance threshold may be increased to up to 120 kilometres if the new service is proposed to serve a place of departure and a destination already served by more than one public service contract.
Article 8c – Decisions by authorising authorities
Article 8c is proposed to be added to specify the decisions of authorising bodies. It provides for authorising authorities to grant authorisations, grant authorisations with limitations, or reject authorisations. It requires that decisions refusing authorisations or granting authorisations with limitations are justified. It specifies the grounds for rejecting an application.
Article 8d – Limitation of the right of access
Article 8d is proposed to be added to provide the procedure for protecting public service contracts. Member States may reject applications for authorisations if they compromise the economic equilibrium of a public service contract. Only specified interested parties may request the regulatory body to conduct the economic analysis. The regulatory body can conclude the authorisation can be granted, granted subject to conditions, or rejected. The conclusions of the regulatory body should be binding.
Chapter IV – SPECIAL REGULAR SERVICES EXEMPT FROM AUTHORISATION
Article 12 – Control documents
It is proposed to delete Article 12(1) to (5) to abolish the journey form as a control document for occasional services. This should eliminate an unnecessary administrative burden.
Article 13 – Local excursions
It is proposed to delete Article 13 as local excursions are liberalised under Article 15 making this Article redundant.
Contents
Article 15 – Authorised cabotage operations
It is proposed to amend this Article to specify that the requirement for regular services to be performed as part of a regular international service and the prohibition of cabotage operations in the form of regular services being carried out independent of a regular service are deleted. Local excursions are an authorised cabotage operation and are covered by subparagraph (b).
Article 17 – Control documents for cabotage operations
It is proposed to delete Article 17 so that journey forms are no longer required for cabotage operations in the form of occasional services. The control documents for special regular services are specified in Article 12(6).
Chapter VI – CONTROLS AND PENALTIES
Article 19 – inspections on the road and in undertakings
It is proposed to specify in Article 19(2) that carriers operating cabotage operations in the form of regular services are required to allow inspections as these services will be permitted to operate independent of operating international carriage of passengers.
Chapter VII – IMPLEMENTATION
Article 28 – Reporting
It is proposed to lay down reporting obligations so that the Commission has consistent and reliable information from all Member States to enable it to monitor and evaluate the implementation and effectiveness of the legislation. Draft new paragraph 5 provides that the Commission shall report to the European Parliament and to the Council within 5 years after the date of application of the Regulation on the extent to which the Regulation has contributed to a better functioning road passenger transport market.