Explanatory Memorandum to COM(2018)277 - Streamlining measures for advancing the realisation of the trans-European transport network

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dossier COM(2018)277 - Streamlining measures for advancing the realisation of the trans-European transport network.
source COM(2018)277 EN
date 17-05-2018


1. CONTEXTOFTHEPROPOSAL

• Reasons for and objectives of the proposal

Technological change is touching all parts of society and the economy and transforming the lives of EU citizens. Transport is no exception to this trend. New technologies are radically changing the mobility landscape. Against this background, the EU and its industries must meet the challenge to become a world leader in innovation, digitisation, and decarbonisation. The Commission has therefore adopted a comprehensive approach to ensure that the EU's mobility policies reflect these political priorities in the form of three Europe on the Move mobility packages.

Following the Low-Emission Mobility Strategy, the Commission adopted two mobility packages in May and November 2017. These packages set out a positive agenda delivering on the low-emission mobility strategy and ensuring a smooth transition towards clean, competitive and connected mobility for all. The European Parliament and Council should ensure the rapid adoption of these proposals.

This initiative is part of the Third 'Europe on the Move' Package, which delivers on the new industrial policy strategy of September 2017, and is designed to complete the process of enabling Europe to reap the full benefits of the modernisation of mobility. It is essential that tomorrow's mobility system is safe, clean and efficient for all EU citizens. The aim is to make European mobility safer and more accessible, European industry more competitive, European jobs more secure, and to be cleaner and better adapted to the imperative of tackling climate change. This will require the full commitment of the EU, Member States and stakeholders, not least in strengthening investments in transport infrastructure.

Stimulating economic growth and boosting investment in the real economy at the heart of the Commission’s priorities. The Investment Plan for Europe1, which translates this overarching goal into operational terms, has three objectives: to mobilise finance for the real economy, to provide visibility and technical assistance to investment projects, and to improve the regulatory framework for investment.

Investment in transport infrastructure significantly contributes to achieving these objectives. In particular, the completion of the Trans-European Network for Transport (TEN-T) core network and its corridors is expected to generate an additional €4,500 billion or 1.8% of EU GDP and account for 13 million job-years until 20302. It is estimated that the investment needed to complete the TEN-T core network amounts to about €500 billion between 2021 and 2030, and to about €1,500 billion with the TEN-T comprehensive network and other transport investment included3.

COM(2014) 903 final.

Delivering TEN-T, Facts & Figures,

https://ec.europa.eu/transport/sites/transport/files/delivering_ten_t.pdf, September2017

Contents

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Based on feedback received from Member States in May 2017. The CNC work plans along with their


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Experience shows that the implementation of the TEN-T core network projects is affected by complex administrative procedures and regulatory uncertainty, which can lead to increased costs and delays4.

The recently updated Christophersen-Bodewig-Secchi Action Plan5 - Making the best use of new financial schemes for European transport infrastructure projects (2015) identified the simplification of administrative authorisations, permit granting rules and other regulatory procedures as one of the recommendations aiming to facilitate TEN-T completion. .This action plan was presented by TEN-T European Coordinators Bodewig and Secchi as well as former Vice President H. Christophersen.

The effective completion of the TEN-T is essential for the functioning of the single market, the digitalisation of transport and the transition to low carbon mobility6. In its recent Communications, the Commission emphasised the need to mobilise private investments in sectors critical to the EU’s future7 and where market failures remain8. It also reiterated that cross-border and sustainable transport and TEN-T infrastructure are critical for the EU's move towards a low-carbon and resource-efficient economy9.

Creating a supportive regulatory environment and introducing efficient procedures is a challenge not only at European level. The G7 has also recognised the complexity of regulation affecting the efficiency of permit granting procedures, specifically in the Declaration of the Ministers adopted at the G7 Transport Ministers Meeting in Cagliari in June 2017. The Declaration stressed the importance of increasing public acceptance for infrastructure projects, of efficient administrative procedures and of streamlining the regulatory environment10. EU Member States have also made efforts to streamline procedures at national level11.

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The present initiative aims at reducing delays encountered in the implementation of TEN-T infrastructure projects. It puts a maximum limit of three years for the entire permitting


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This also applies to the previously identified 30 TEN-T priority projects. Several of them have been completed but some are still on-going, the experience with Priority Projects also shows that there issues related to permit granting procedures impacted the delivery of several projects (e.g. PP17, PP18/30, PP24), Implementation of the Priority Projects, November 2012; DG MOVE based on data from Member States, https://ec.europa.eu/transport/sites/transport/files/themes/infrastructure/ten-t-

policy/priority-projects/doc/pp_report_nov2012.pdf

Former Commission Vice-President H. Christophersen, Professor K. Bodewig, European Coordinator, Professor C. Secchi, European Coordinator in the "Action Plan – Making the best use of new financial schemes for European transport infrastructure projects" ("CBS Report"), June 2015, available at ec.europa.eu/transport/themes/infrastructure Progress Report of the Action Plan Making the best use of new financial schemes for European transport infrastructure projects, January 2018, https://ec.europa.eu/transport/sites/transport/files/cbs2_report_final.pdf, (Henceforth: CBS Progress Report).

In the conclusions adopted on 5 December 2017, the Council reiterated its strong commitment to the implementation of the TEN-T and the necessity to continue this policy to boost investment in transport and contribute to global objectives in particular in terms of climate action. 15425/17 TRANS 541. COM(2016) 359 final.

The Results and Efficiency of Railway Infrastructure Financing within the European Union, Study for the European Parliament, October 2015 COM(2016)501 final.

www.g7italy.it/sites/default/files/documents/Final%2520Declaration_0.pdf">www.g7italy.it/sites/default/files/documents/Final%20Declaration_0.pdf

German Strategy for speeding up the planning process:

www.bmvi.de/SharedDocs/DE/Publikationen/G">https://www.bmvi.de/SharedDocs/DE/Publikationen/G-

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process. It also aims to bring greater clarity to the processes which project promoters need to follow, in particular as regards permit granting, public procurement and other procedures.

The present initiative protects access to justice as regards the implementation of TEN- T infrastructure projects. It does not affect administrative appeal procedures and judicial remedies before a court or tribunal. Member States may nevertheless lay down specific procedural rules, such as the inadmissibility of an argument submitted abusively or in bad faith, which constitute appropriate mechanisms for ensuring the efficiency of the legal proceed ngs. Cross-border projects face specific difficulties in conducting public procurement, resulting in particular from the need to apply different legislations, as highlighted by the stakeholders. This adds complexity to the projects and creates costs. The aim of this initiative is to allow for the systematic application of one single framework in case of cross-border projects implemented by a joint entity, unless the participating Member States decide otherwise. T his is in line with the objectives set out in the recent Communication on boost ing growth and cohesion in EU border regions .

Apart from generating more investment and attracting private capital to infrastructure of high EU added value, it is believed that this initiative will provide more clarity for citizens and civil society by strengthening the transparency framework for their involvement in the planning of TEN- T projects.

T he specific expected benefits are estimated to be as follows:

• Time savings: permit granting procedures are be expected to last up to a maximum of three years which is a significant improvement in comparison to the current situation.

• User cost savings: more than EUR 5 billion in user cost savings.

• Investment: 84% of total investment in the core TEN- T network will be brought forward to before 2025.

• Reduction of the external effects of transport: EUR 700 million saved in terms of CO2 emissions, noise mitigation, air pollution, congestion and lower number of accidents. T he reduction of CO2 emissions is estimated at 2,686 thousand tonnes saved for the period 2018-2030.

• Administrative costs: net savings of EUR 150 million for project promoters and public authorities.

• Consistency with existing policy provisions in the policy area

There are currently no specific provisions related to permit granting and regulatory procedures in the area of the TEN- T. However, there are similar provisions are nevertheless applicable in the area of the Trans-European Network for Energy (TEN-E)13.

Consistency with other Union policies

The objectives of this initiative are in line with the relevant Union policies in the field of transport, the single market and other areas. The initiative contributes to stimulating investment and creating jobs by strea mlining investment in the real economy.

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COM(2017) 534 final

Regulation (EU) No 347/2013 of the European Parliament and of the Council of 17 April 2013 on guidelines for trans-European energy infrastructure and repealing Decision No 1364/2006/EC and amending Regulations (EC) No 713/2009, (EC) No 714/2009 and (EC) No 715/2009, (OJ L 115,

Completing the TEN-T will lead to a deeper and fairer internal market being created, as the TEN-T aims to physically connect Member States and has a clear Union added value due to its focus on cross-border connections.

2. LEGALBASIS, SUBSIDIARITYAND PROPORTIONALITY

• Legal basis

The legal basis for this proposal is Article 172 of the Treaty on the Functioning of the European Union.

• Subsidiarity (for non-exclusive competence)

The coordinated development of the TEN-T to support transport flows within the single European market and economic, social and territorial cohesion within the Union requires action to be taken at Union level. Permit granting procedures differ greatly across Member States in terms of the number of permits necessary and decisions to be obtained; this makes it difficult to synchronise of the development of the network. The TEN-T network cannot properly function as a whole, nor can it offer its benefits at Union level, until all of its elements are completed

• Proportionality

5.

The proposal complies with the proportionality principle. It falls within the scope for action in the field of the trans-European transport network, as defined in Article 170 of the Treaty on


the

Functioning of the European Union.

The action envisaged by this proposal is specifically limited to the European dimension of transport infrastructure.

A regulation would be an effective instrument as it would be directly applicable in the legal order of the Member States upon adoption and would not require a transposition period before taking the full legal effect. This is in line with the objective of removing discrepancies resulting from the transposition of directives and of advancing project preparation and authorisation procedures.

3. RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND

IMPACTASSESSMENTS

• Regulatory fitness and simplification

The TEN-T policy was significantly strengthened in 2013 with the adoption of a new regulation defining a holistic strategy based on the establishment of the core network by 2030 and the comprehensive network by 2050. The TEN-T policy has nevertheless existed for 25 years and at the time of the preparation of the current TEN-T framework, evidence already existed on the existence and impacts of delays in permitting and other regulatory procedures. Simplification measures were initially planned for the TEN-T framework, but there were in the end considered premature due to several factors. Namely, the reshaped TEN-T framework included already an ambitious set of innovations, in particular in connection with the creation of a new funding instrument, the Connecting Europe Facility.

A a result, the current Regulation (EU) No 1315/2013 does not provide for specific solutions as regards permit granting procedures, unlike Regulation (EU) No 347/2013 of the European Parliament and of the Council of 17 April 2013 on guidelines for trans-European energy

infrastructure14. As a result, the present initiative could not be developed as part of the REFIT programme; however, it was inspired by the TEN-E experience.

• Consultation, data collection and use of expertise

The consultation activities included the following:

An open internet public consultation was carried out for 13 weeks from 1 August 2017 until 9 November 2017. A total of 99 responses were received, representing 23 different Member States equivalent to 94 % of all contributions. Regional, local or municipal authorities (20 %), project promoters (19 %) and industrial, business or sectorial associations (20 %) were the organisation categories with highest representation, closely followed by national governments (16 %).

A series of workshops were jointly organised by the Commission services responsible for the areas of the initiative, i.e. public procurement (15 June 2017), State aid and financing (21 September 2017), and environmental assessments and permit granting (17 October 2017).

Stakeholder interviews were carried out in the context of the impact assessment, between 6 December 2017 and 17 January 2018;

Consultation activities were carried out as part of the previous exploratory study along with an open public consultation which ran for 12 weeks as well as dedicated workshops;

A feedback mechanism was included in the inception impact assessment published on the Commission's website in June 2017.

The initiative was also discussed at ministerial level on two occasions, along with other issues related to the development and financing of the TEN-T: at the Regional Transport Investment Conference on 23 March 2017 in Sofia and at the Informal Transport Minister Council on 21 September 2017 in Tallinn.

Summary of input received and use of results

All relevant stakeholder groups representing all Member States were consulted and most provided their views, together with some quantitative information, where available, relating to existing issues and the policy measures under consideration. The consultation showed that the main issues identified with the permit granting procedures of TEN-T projects, relate to steps at the strategic level of a project’s preparation, including the attainment of spatial planning permits, planning permissions and environmental assessments.

Support for the integration of procedures under a single national entity, a one-stop-shop was expressed in particular, by project promoters, individuals and industrial interest groups. National and regional governments expressed more reserved opinions expressed more reserved opinions, which were also confirmed in bilateral interviews

A significant number of national and regional governments expressed some concerns about a one-stop-shop. However, the individual qualitative analysis of their comments shows that this

Regulation (EU) No 347/2013 of the European Parliament and of the Council of 17 April 2013 on guidelines for trans-European energy infrastructure and repealing Decision No 1364/2006/EC and amending Regulations (EC) No 713/2009, (EC) No 714/2009 and (EC) No 715/2009 ( OJ L 115,

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apparent disagreement stems, in some cases, from the fact that some countries have already integrated procedures within a single entity (including fast track procedures). These single national entities already in existence can be seen as a best practice example of one-stop-shop implementation.

According to project promoters and individuals, each one-stop-shop should have extended decision-making capacity that would manage all environmental assessments at project level, spatial planning permissions and construction permits. On the other hand, the opinions of national and regional governments varied as to the extent of the integration of procedures and level of authority. A significant number of national representatives stated that one-stop-shops should have only coordinating powers.

Respondents primarily project promoters, individuals and industrial interest groups agreed that the permit granting process should not last longer than two years, and that the establishment of such a time limit could help reduce excessive delays. Local and regional authorities as well as some national governments were more reserved on this issue.

A common set of Union-level rules that apply to cross-border projects was identified, as the most effective solution to improving public procurement issues, in particular by project promoters and industrial groups, National authorities stated that such a set of rules would be more effective when applied to cross-border projects benefiting from Union funding.

From among the available instruments for adopting measures to facilitate the preparation of TEN-T projects and granting of permits , the consultation showed that respondents had a general preference from respondents for a regulation on permit granting procedures and other elements of preparing TEN-T projects, which would be directly applicable in Member States.

Data

collection and use of expertise

The initiative follows a long reflection process and responds to the political invitation to act. The problem definition was based mainly on the Commission's experience with managing the TEN-T completion15 , consultation activities and the external studies:

– Study on permitting and facilitating the preparation of TEN-T core network

projects, Milieu et al., December 201616;

– Support study for an Impact Assessment on measures for the streamlining of

TEN-T, Panteia, PwC, M-FIVE, February 201817.

• Impact assessment

The initiative is supported by an impact assessment. It has received a positive opinion with reservations from the Regulatory Scrutiny Board. The Board has made recommendations requiring adjustments and clarifications on the following:

– Providing more evidence on how public procurement and permit granting

procedures affect delays in construction. Adding more information about the varying situation across sectors and Member States as well as description of the lessons learnt from TEN-E, European Fund for Strategic Investments, and action taken in Member States to streamline processes.

Progress report on implementation of the TEN-T network in 2014-2015, February 2017 https://ec.europa.eu/transport/sites/transport/files/permitting_ten-t_final_report.pdf


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– Providing more information on stakeholder views of the options, especially

those of Member States and citizens.

– A sensitivity analysis to be added along with an explanation of the assumptions

made in relation to the calculation of results, in particular regarding the degree to which the measures could realistically help avoid delays.

These comments have been taken into account in the revised impact assessment, as indicated in Annex I of the Impact Assessment Report. The following modifications were made to address the issues mentioned above:

– Examples were presented more prominently to illustrate the impacts of delays

in permit granting processes and procurement on individual projects and how this affects the completion of the TEN-T , as well as other the network effects. More references were made to the results of the completing the TEN-E and priority treatment for State aid control18. Specific paragraphs were added to describe the experience of Member States, including the actions they took to streamline their processes. All these elements strengthened the granularity of the analysis.

– The results of the open public consultations and other stakeholders'

consultation were presented in much greater detail. A specific section on the comparison of policy options was added in the Chapter 7.

– A sensitivity analysis was carried out and presented across the impact

assessment in relevant sections.

The assessed policy options consist of packages of policy measures that address the specific objectives, and more specifically the main problem drivers identified:

– multiple stages and authorities involved in permit granting procedures;

– absent or unenforced time limits;

– differing public procurement procedures for cross-border TEN-T projects;

– coordination challenges for the delivery of cross-border projects; and

– perceived uncertainties related to State aid control procedures.

The analysis led to a clear conclusion that it is not necessary to have the same level of ambition in every area, and that a stepwise approach would be appropriate.

For permit granting procedures, the situation differs across Member States and no harmonised approach has yet been taken at Union level. A higher level of intervention is necessary to synchronise procedures across borders and allow for a more coordinated, effective and efficient project implementation of projects.

For public procurement, a modernised framework has started to apply over the past few years19. However, a gap remains in the area of cross-border procurement and projects

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Projects supported by the European Fund for Strategic Investments according to the Regulation (EU) 2017/2396 of the European Parliament and of the Council of 13 December 2017 amending Regulations (EU) No 1316/2013 and (EU) 2015/1017 as regards the extension of the duration of the European Fund for Strategic Investments as well as the introduction of technical enhancements for that Fund and the European Investment Advisory Hub, OJ L 345, 27.12.2017, p. 34–52

In particular, Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and

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developed commonly by two or more Member States. In this area, the intervention only targets this specific gap.

For State aid control, newly adopted clarifications have in any event already removed most of the uncertainty which allegedly may have hampered the development of projects in the past. In the case of a complex project with sophisticated financial structures, it seems nevertheless necessary to increase the quality of notifications also through better cooperation between the Commission services, Member State authorities and the legal and business community. Along the lines of the Code of Best Practice for the conduct of State aid control procedures, priority treatment can be given to projects of common interest on the core network of the TEN-T following a mutually agreed timetable between the Member States and the Commission, setting out clearly the milestones and information to be delivered by the Member States. This will allow the procedures at the Commission to run smoothly to allow the swifter adoption of the decision.

The policy options were based on increasing levels of intervention, ambition and ‘cumulative’ expected impact:

– Policy option 1 (PO1) Minimal change to the existing instruments and

development of soft law as well as accompanying measures.

– Policy option 2 (PO2) Limited binding action to be decentralised and

implemented at national level.

– Policy option 3 (PO3) An EU framework for authorisation of the TEN-T core

network projects to be applied at national level (PO3a) or at EU level (PO3b).

The impact assessment recommended policy option 2 and the initiative follows this recommendation.

4. BUDGETARYIMPLICATIONS

The proposal will not entail any additional cost for the Union budget.

5. OTHERELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

The Impact Assessment Report lists a set of indicators that should be used to monitor the effectiveness and efficiency of the measures taken in order to meet the main policy objectives:

– Minimising the risk of delays faced by individual TEN-T projects:

– The advancement of the TEN-T implementation in terms of compliance

with the standards and requirements.

– Progress in investment supported by EU in the TEN-T transport

infrastructure measured by the number of CEF projects (or the projects supported by its successor) implemented on time and/or not delayed due to permitting/procurement issues.

– Increasing legal certainty for project promoters thus attracting more private

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investors to transport infrastructure


European Parliament and of the Council of 26 February 2014 on public procurement and repealing

– The increase of number of the TEN-T infrastructure projects financed

with the use of the EU-supported financial instruments (e.g. EFSI and its successors).

Monitoring will build on existing measures to monitor the implementation of the TEN-T as such. It will therefore use to the largest possible extent the existing framework and in a simple and transparent way to make it easily accessible for interested stakeholders. It is not the intention to create a complex system of new performance indicators.

• Detailed explanation of the specific provisions of the proposal

The title of the Regulation addresses the scope and objectives of the act, which aims to facilitate the completion of the trans-European transport network.

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Article 1 - Subject matter and scope


This article introduces the subject matter and the objectives of the Regulation which are the effective and timely completion of the TEN-T across the Union, by reducing the risk of delays and increasing the level of certainty for project promoters and investors as regards the length of the applicable procedures. Another objective is to facilitate the involvement of private investors and provide more clarity on public consultations.

Article 3 – ‘Priority status’ of projects of common interest

Certain Member States in their respective national legal frameworks grant fast-track procedures and special streamlined treatment to categories of projects based on their importance to the development of the country or other reasons. In order to meet the objectives of completing the TEN-T, to which the Member States committed themselves by adopting in the Council the regulation defining this network and binding deadlines for its completion, similar preferential treatment should apply to Union projects of common interest.

Articles 4-6 – Integration of the permit granting procedures

The objective of this article is to integrate the various permit granting processes for TEN-T projects of common interest. Article 4 requires that the authorisation of TEN-T projects is handled by one single authority that manages and takes ownership of the overall process and acts as the single entry point for project promoters and other investors. Article 5 establishes the designation and role of such an authority. Article 6 defines the procedural steps leading to a comprehensive decision authorising the investor to go ahead with the project.

Article 7 – Coordination of cross-border permit granting procedures

This article states the importance of coordinating permit granting procedures across borders and strengthens the role of the European Coordinators in monitoring the permit granting procedure.

Article 8 – Public procurement in cross-border projects of common interest

This article provides for the application of only one legal framework on public procurement for cross-border projects. Unless otherwise specified in an intergovernmental agreement, joint entities developing such projects will apply a single national legislation to procure works and services when implementing the project.

Article 9 – Technical assistance

The existing technical assistance schemes based on Union legislation will be open to the projects of common interest concerned by this initiative, subject to the availability of resources managed by the respective services.