First Railway Directive

Background

In many countries in Europe the railway systems developed as separate privately owned companies operating regional networks with permission to construct and operate a line being granted or instructed by government legislation, or by royal decree or license. During the 20th century the railways became organised and run through a country wide organisation often through nationalisation. These entities in general had total or virtual monopolies.

These national companies were vertically integrated organisations and it was difficult or impossible for private or regional enterprises to run their own trains on the national networks, or to compete in other EU country's railway systems. Thus in 1991 EU Directive 91/440 was created to make it a legal requirement for independent companies to be able to apply for non-discriminatory track access (running powers) on a European Union country's track.

Description

The aims of the directive are to create a more efficient rail network by creating greater competition. To achieve this aim member states are required to ensure that organisations operating the infrastructure (track, signalling etc.), and those operating services (trains) are separate and run on a commercial basis. Additionally railway companies from all member states are allowed to run services on any other member states rail infrastructure, both for passenger transport and goods. The free competition provided by the mandate is optional for regional and urban passenger trains.

Further related legislation exists which applies to railway operations that are covered by directive 91/440:

Cross border freight in the EU

The directive was further clarified and extended by EU directive 2001/12 which initially allowed cross border freight operations on a network of tracks – to be called the Trans European Rail Freight Network a network which includes ports and freight terminals. The network on which traffic was allowed was to be extended to the whole European network. As a consequence of this new trans-national freight network an additional change was made to the original legislation which required train safety and operating standards to be set out clearly and administered by an organisation that did not run commercial services. The directive also required separate accounting of freight and passenger service revenues and costs.

Track allocation and access charges in the EU

EU directive 2001/14 set out the framework for the construction of bodies that control and regulate the allocation of line possessions to companies, and the charges for using the track, this directive replaced the previous legislation EU directive 95/19.

Licensing of railway companies in the EU

EU Directive 95/18 set out a framework and guidelines for the way in which countries of the EU provide licenses to operate to railway companies; a license provided in one member state is generally valid in all other member states. The directive was further clarified by EU Directive 2001/13 in 2001.

EU Directive 2004/51

EU Directive 2004/51 (part of the Second Railway Package) amended directive 91/440 to include reference to the Trans European Rail Freight Network, and future access by 2007 by licensed rail freight operators of all the European rail network as originally described in directive 2001/12.

Conclusions

Though the original directive was seen by some as a law bringing about privatisation of the railways, there are no requirements in the legislation requiring any level of privatisation. The main aim of the process was the "de-monopolisation" of European railways, with the aim of increasing competitiveness, a process referred to as 'liberalisation'.

There has also been a large increase in the number of private freight providers, many relatively small such as Rail4chem and ERS Railways, but the national companies still control the majority of the traffic. Deutsche Bahn has expanded considerably in the rail freight market, with the purchase of the freight section of the Dutch railway company NS (now DB Schenker Rail Nederland), EWS (UK), and DSB goods (Denmark) amongst others. The French state rail company SNCF also expanded through acquisitions, raising the possibility of trans-national virtual monopolies on rail freight replacing former national monopolies, or a potential duopoly between SNCF and Deutsche Bahn in most of western Europe.

A subsidiary of the British company DB Schenker Rail (UK), EuroCargoRail, operates trains in France and Spain, a situation unlikely prior to the liberalisation.

The increase in cross-border traffic has fuelled demand for multiple voltage electric locomotives such as Bombardier's TRAXX, Siemen's Eurosprinter and electric versions of Alstom's Prima locomotives series.

In passenger transport, large transport corporations have been created, or expanded into the rail market from other related activities such as FirstGroup, Veolia, Serco and Arriva.

In the UK, the directives have been criticised in some areas partly based on the problems with the full privatisation of British Rail, additionally the regulations favour competitive practice which are not necessarily compatible with workers rights.

Implementation

In the years following the introduction of the mandates different countries implemented it to different extents and at different paces. By 2004, some countries such as the United Kingdom had gone far beyond the original remit privatising the railway system in Great Britain (but not Northern Ireland), others such as Finland and France had created fully separate infrastructure and railway companies from the state-run enterprises; still others, such as Germany, had created separate subsidiaries for different service providers and a subsidiaries for infrastructure and track (DB Netz). Yet others merely separated accounting between the two organisational sections. Most countries in the EU still have a state owned infrastructure company, but many have privatised part or all of their service providers, or are working towards privatisation.

In June 2010, the European Commission instigated legal proceedings through the European Court of Justice against 13 states that had not fully implemented the set of directives (known as the 'first railway package'). The countries not having fully implemented the legislation to the Commission's satisfaction were Austria, Czech Republic, Germany, Greece, France, Hungary, Ireland, Italy, Luxembourg, Poland, Portugal, Slovenia and Spain. In 2012 action against Germany and Austria on the basis that their infrastructure and operating companies were insufficiently separate was rejected by the European Court of Justice. Portugal, Spain and Hungary remained as having not yet fully complied with the aspects of the directives. Legal action against Bulgaria was passed to the Court of Justice in 2012 for non-implementation. In February 2013 the European Court of Justice ruled that the governments of Hungary and Spain had failed to liberalise their railways; infrastructure management was not sufficiently separated from train operation.

Ireland derogated its obligation to implement the legislation; until 2012 Iarnród Éireann train operations and infrastructure businesses remained unsplit, and a similar situation existed in Northern Ireland.