Not cleared from scrutiny; further information requested
Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1073/2009 on common rules for access to the international market for coach and bus services
Article 91(1) TFEU; ordinary legislative procedure, QMV
(39208), 14184/17 + ADDs 1–4, COM(17) 647
6.1This European Commission proposal would amend Regulation (EC) 1073/2009 on common rules for access to the international market for coach and bus services. It is part of the second phase of the Mobility Package—the European Commission’s set of initiatives seeking to establish a more integrated and sustainable EU transport system. The objective of the proposal is to address shortcomings in the 2009 Regulation.
6.2An ex-post evaluation carried out by the Commission identified shortcomings concerning:
6.3The proposed amending Regulation aims to tackle these by, among other things:
6.4The Government informs us that it agrees with the Commission that amendments to existing rules can only be made at EU level. It also agrees that the proposal is consistent with the principle of subsidiarity.
6.5We note that the Government is still considering its detailed position on the proposal and that it has made an initial assessment of the policy implications, namely that the proposal would require Member States to set up a national regulatory body, would require non-resident carriers to be authorised permitted cabotage, would have the potential to weaken the oversight provided by the Traffic Commissioners and may also make enforcement more difficult in the case of non-resident carriers as the enforcement agencies will be in another country.
6.6Initial discussions at Working Group level in the Council indicate that other Member States have similar concerns. Furthermore, as other Member States have highly regulated markets, it is likely that the proposal will be significantly amended.
6.7The Government’s view is that the long term implications of the proposal will depend on the outcome of the exit negotiations and that the full net costs of all the elements of the proposal will, in due course, need to be appropriately assessed and estimated.
6.8We therefore request:
6.9We retain this proposal under scrutiny and request a response by 21 April 2018.
Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1073/2009 on common rules for access to the international market for coach and bus services: (39208), + ADDs 1–4, COM(17) 647.
6.10Regulation (EC) 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 (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 co-operation between Member States.
6.11An ex-post evaluation of the Regulation was carried out from 2015 to 2017 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.
6.12The amendments in the proposal concern:
6.13Scope (Article 1)—currently Article 1(4) 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. The proposal would amend this provision to include within the scope of the Regulation all regular services for hire and reward operated by a non-resident carrier.
6.14Definitions (Article 2)—the proposal would amend point 2 to clarify that express services are to be considered as regular services. It would also amend point 7 to update the definition following the liberalisation of national regular services. Furthermore, the proposal would add new definitions of a terminal and of a terminal operator. Finally, the proposal would 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.
6.15Regulatory Body (Article 3a)—the proposal would add a new Article requiring Member States to designate a Regulatory body which should be independent from any other public authority. The designated body may be a new or an existing body. 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.
6.16Access to market (Article 5)—the proposal would 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.
6.17Access to terminals (Article 5a)—the proposal would 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 would be published.
6.18Procedure for granting access to terminals (Article 5b)—the proposal would add a new Article to provide the procedure for accessing terminals. Applications for access would only be refused if there is a lack of capacity in the terminal. Decisions on applications for access would be taken within two months and contain a proper statement of reasons. Carriers would have the possibility to appeal decisions to the Regulatory Body. The decision of the Regulatory Body would be binding.
6.19Authorising procedure for the international carriage of passengers over a distance of less than 100 kilometres as the crow flies (Article 8)—the proposal would amend Article 8 to provide the authorisation procedure for international regular services carrying passengers over a distance of less than 100km as the crow flies. Authorising authorities would be 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 100km. Authorisations would 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 would be required to take a decision which would continue to apply until the authorising authority adopts its decision.
6.20Authorising procedure for the international carriage of passengers over a distance 100 kilometres or more as the crow flies (Article 8a)—the proposal would add an Article 8a to provide the procedure for authorising international regular services carrying passengers over distances of 100km as the crow flies. The refusal of a new service could not be justified on the grounds that it compromises the economic equilibrium of a public service contract.
6.21Authorising procedure for national regular services (Article 8b)—the proposal would add an Article 8b to provide the authorising procedure for national regular services. Authorisation for a new service carrying passengers over distance of less than 100km as the crow flies could be rejected if it compromises the economic equilibrium of a public service contract. The distance threshold may be increased to up to 120km if the new service is proposed to serve a place of departure and a destination already served by more than one public service contract.
6.22Decisions by authorising authorities (Article 8c)—the proposal would add an Article 8c to specify the decisions of authorising bodies. It would provide for authorising authorities to grant authorisations, grant authorisations with limitations, or reject authorisations. It would require that decisions refusing authorisations or granting authorisations with limitations be justified. It would also specify the grounds for rejecting an application.
6.23Limitation of the right of access (Article 8d)—the proposal would add an Article 8d to provide the procedure for protecting public service contracts. Member States could reject applications for authorisations if they compromise the economic equilibrium of a public service contract. Only specified interested parties could request the regulatory body to conduct the economic analysis. The Regulatory Body could conclude the authorisation could be granted, subject to conditions, or rejected. The conclusions of the Regulatory Body would be binding.
6.24Control documents (Article 12)—the proposal would delete Article 12(1) to (5) to abolish the journey form as a control document for occasional services to eliminate an unnecessary administrative burden.
6.25Local excursions (Article 13)—the proposal would delete Article 13 as local excursions are liberalised under Article 15 making this Article redundant.
6.26Authorised cabotage operations (Article 15)—the proposal would amend this Article to specify the requirement for regular services to be performed as part of a regular international service and deleting the prohibition of cabotage operations in the form of regular services being carried out independent of a regular service. Local excursions are an authorised cabotage operation and are covered by subparagraph (b).
6.27Control documents for cabotage operations (Article 17)—the proposal would 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).
6.28Inspections on the road and in undertakings (Article 19)—the proposal would 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.
6.29Reporting (Article 28)—the proposal would 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 would provide that the Commission would report to the European Parliament and to the Council within five 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.
6.30Finally, the proposal is accompanied by four Staff Working Documents:
6.31The Parliamentary Under-Secretary of State at the Department for Transport (Jesse Norman) informs us that the Government agrees with the Commission that amendments to existing rules can only be made at EU level. The Government also agrees that the proposal is consistent with the principle of subsidiarity.
6.32Although the Government is still considering its detailed position on the proposal, the Explanatory Memorandum provides an initial assessment of its policy implications.
6.33Firstly, the proposal would require Member States to set up a national regulatory body. In Great Britain, the Traffic Commissioners are the regulators of the bus and freight industries and may be able to carry out the proposed additional roles subject to supplementary resourcing.
6.34Secondly, the proposal would require non-resident carriers to be authorised permitted cabotage. The UK already has a liberalised market for longer distance national coach travel. However, the Government is concerned that the proposal would allow operators established in another Member State to compete in the domestic bus market without having to meet the conditions concerning the premises they use in the UK.
6.35Thirdly, the proposal has the potential to weaken the oversight provided by the Traffic Commissioners. It may also make enforcement more difficult in the case of non-resident carriers on standards of road safety, environmental protection and driver’s hours as the enforcement agencies will be in another country.
6.36The Explanatory Memorandum states that initial discussions at Working Group level in the Council indicate that other Member States have similar concerns. Furthermore, as other Member States have highly regulated markets, it is likely that the proposal will be significantly amended.
6.37The Government also has concerns regarding the Commission’s Impact Assessment, which it will address in more detail in due course.
6.38The Explanatory Memorandum notes that it would be necessary to modify primary and secondary legislation, principally, section 12 of the Public Passenger Vehicles Act 1981 and relevant provisions of the Transport Act 1985, the Greater London Authority Act 1999, the Transport Act 1999 (as amended by the Bus Services Act 2017), the Public Services Vehicles (Community Licences) Regulation 2011 and the Public Services Vehicles (Registration of Local Services) Regulations 1986.
6.39The Explanatory Memorandum states that the long term implications of the proposal will depend on the outcome of the exit negotiations.
6.40The Explanatory Memorandum notes that the full net costs of all the elements of the proposal will, in due course, need to be appropriately assessed and estimated.
6.41It also notes that, in the UK, industry is required to cover the cost of regulation. Therefore, the cost of establishing any new regulatory body or modifying the existing system would need to be recovered from industry. This cost might be offset to an extent by the proposed removal of the form used for occasional international services.
6.42The Council of Ministers has yet to discuss the proposal. The European Parliament appointed a Rapporteur on 16 January 2018.
27 European Commission Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1073/2009 on common rules for access to the international market for coach and bus services ().
28 Explanatory Memorandum from the Minister, DfT, to the Chairman of the European Scrutiny Committee ()
Published: 27 March 2018