Regulation (EC) No. 1370/2007
Regulation (EC) No. 1370/2007
|Title:||Regulation (EC) No. 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and road and repealing Regulations (EEC) No. 1191/69 and (EEC) No. 1107/70 of Rates|
|Ordinance on Public Transport Services|
|Legal matter:||Procurement law , traffic law , railway law|
|Basis:||EGV , especially and|
|To be used from:||December 3, 2009|
|Replaces:||Regulation (EEC) No. 1191/69, Regulation (EEC) No. 1107/70|
|Last change by:||Regulation (EU) 2016/2338|
Effective date of the
|December 24, 2017|
|Reference:||OJ L 315 of December 3, 2007, pp. 1-13|
Consolidated version (not official)
|Regulation has entered into force and is applicable.|
|Please note the information on the current version of legal acts of the European Union !|
The Regulation (EC) no. 1370/2007 of the European Parliament and of the Council of 23 October 2007 regulates the allocation and funding of public interest passenger services , on the basis of the market achieved revenues of transport companies are not provided by the for competent authorities. It encompasses all public passenger transport by rail and by road ; Member States can also apply it to public passenger transport on inland waters and within territorial waters . Its predecessors were Regulation (EEC) No. 1191/69 of the Council of June 26, 1969 on the procedure of the Member States with regard to obligations related to the concept of public service in the field of rail, road and inland waterway transport, as well as Regulation (EEC) No. 1107/70 of the Council of 4 June 1970 on aid to rail, road and inland waterway transport.
The ordinance has been in force since December 3, 2009. Transitional regulations exist for previously concluded transport contracts and entrustments until December 13, 2019. If contracts concluded before December 3, 2009 already meet the requirements of the ordinance, these are also permissible after December 2019.
In December 2016, the EU Parliament and the Council passed the amending regulation (EU) 2016/2338, an amended version of Regulation 1370/2007, with which, in addition to various changes, particularly those affecting the railway sector, additional requirements are placed on the specification of public service obligations. The amended ordinance came into force on December 24, 2017.
The EU regulation 1370/2007 was passed with three main objectives:
- It should close the loopholes in the previous regulation 1191/69 and avoid the resulting different procedures in the EU member states and the associated legal uncertainties. In particular, Regulation 1191/69 does not regulate the manner or the conditions under which public service contracts for passenger transport services in the EU must be awarded.
- The aim of the new regulation was to transfer the objective of Article 14 of the Treaty on the Functioning of the European Union (TFEU) for the field of public passenger transport into a set of rules. Article 14 mandates the Union and the member states to guarantee the framework conditions for high-quality services in the general public interest and their funding.
- The third objective was to ensure safe, efficient and high quality passenger transport services through regulated competition. This, according to the aim of the EU, should lead to more attractive local transport at lower costs and reduce inequalities between the transport companies of the various member states.
As a binding regulation, EU Regulation 1370/2007 is directly applicable in all member states. National regulations on public transport are only applicable insofar as they are not covered by the regulation.
The ordinance is to be applied to passenger transport by road or rail, insofar as this is provided as a public service obligation in the public interest (comparable to the German legal term of services of general interest ) for the general public. It does not apply to public transport on the water or in the air, nor to historical or tourist transport by road or rail. However, the delimitation is assessed as difficult, especially with regard to tourist traffic. The member states are free to apply them to traffic in the public interest on waterways. It has no regulatory content for purely commercial road and rail transport without any compensation from the public sector or the granting of exclusive rights .
The ordinance uses the term “competent authority” to denote those institutions that are exclusively authorized in the member states to apply the ordinance and intervene in a regulating manner in public passenger transport in a certain area. The specific naming and assignment of these functions to specific authorities is the responsibility of the member states. In Germany, the function is assigned by the Passenger Transport Act (PBefG) to the public transport authorities , which in turn are assigned differently by state laws depending on the federal state. With effect from January 1, 2013, the PBefG was adapted to the amended European legal framework resulting from Regulation 1370/2007. The functions of public transport authorities and the licensing authority were reorganized according to the PBefG. In addition, the requirements for the advance notice and the subsequent award of service contracts in the PBefG have been added or changed.
In Austria, the Public Local and Regional Transport Act 1999 (ÖPNRV-G 1999) regulates the allocation, with the federal government being responsible for rail passenger transport and the federal states and municipalities for regular road transport.
Only the competent authorities are allowed to grant public service obligations to the operators of passenger transport, i.e. in the railway sector the railway companies and on the road the transport companies , on the basis of the ordinance through so-called exclusive rights and / or financial compensation payments (for example certain routes, timetables or equipment features for the vehicles used) which the company would not have provided due to its own economic interest. The company is not entitled to change these obligations independently. With exclusive rights, the company is protected from competition in the respective line or in a certain area.
In order to implement its objectives, Article 3 of the regulation names two instruments that are available to the competent authorities:
- Public service contract (this is the rule)
- General rules on maximum tariffs (i.e. limitation on the amount of transport charges )
In addition, it opens up the possibility of exempting subsidies for the financing of maximum tariffs for certain user groups (schoolchildren, students, trainees, people with reduced mobility) from the regulation by notifying the EU Commission .
Public service contracts
According to Article 3 (1), a public service contract within the meaning of the regulation is to be understood as any agreement in which financial compensation and / or exclusive rights are granted between the operator of a passenger transport service and the competent authority for certain, clearly defined public service or services in the public interest be granted. It is irrelevant whether an external company is commissioned or a so-called in-house award or direct award . In the case of the latter, a legal relationship is therefore also required between a public transport authority and one's own municipal company, regardless of whether there is a legal identity between the two. The essential function of public service contracts is to guarantee transparent, non-discriminatory interventions in the transport market that are appropriate to the market situation. This means that any subsidy from a public transport authority is only permitted on the basis of an agreement in accordance with Regulation 1370/2007, which means that the formerly common loss compensation by the owner of a municipal company is no longer possible. A district, for example, must also conclude a corresponding agreement with its own company.
According to Article 4 of the Ordinance, the service contract must at least regulate the public service obligations to be performed and the corresponding compensation. Corresponding obligations are, above all, the timetable and routes , specifications for the applicable tariff, e.g. of a specific transport association , and standards for the quality of the services. As a rule, this also includes requirements for accessibility and environmental standards . Social standards are also possible, for example a collective bargaining agreement . With the amending ordinance passed in 2016, from the end of 2017 the public service obligations must also be specified more precisely in a strategy paper as the basis for the service contract and linked to the political objectives of the responsible public transport authority. It has not yet been conclusively clarified whether the planning instrument established in Germany, the local transport plan , can take on the role of this strategy paper. The contracted company has to provide a significant part of the transport services itself and not through subcontractors , i.e. at least 25 percent. Another requirement is the clarification of the risks to be borne by the client and the contractor, especially the question of the revenue risk. This can lie with the operator ( net contract ) as well as with the client ( gross contract ), but it is also possible to split the risk between the contractual partners.
Another essential content is the corresponding parameters for calculating the compensation. In principle, the public services and the compensation to be paid for them are to be agreed ex ante ; subsequent adjustment is generally not permitted. Corresponding parameters are therefore necessary in order to be able to react appropriately to changes in the meantime, for example price increases or changes in revenue. The compensation must also be proportionate and must not lead to overcompensation .
The EU-VO provides the following periods of maximum duration in Article 4 (3):
- Bus traffic 10 years
- Rail transport 15 years
Longer terms are possible if the operator enter into material, specifically bound to the contract investment, procurement, for example. Specially to a particular rail network designed railcars . In the case of direct awards, a term of up to 22.5 years is possible, in the case of competitive awards even longer.
According to Article 3 (2), the regulation only allows the application of general provisions with regard to tariff measures. This means that certain tariffs can be reduced in their amount by means of public funding and the resulting loss of income can be offset. In order to meet the requirements for non-discrimination and transparency, they must be valid for all transport companies operating in the respective area and their underlying calculation parameters must be disclosed. They must not be defined by too narrow spatial delimitation in such a way that they de facto only benefit one company. Furthermore, they must not be capped in the donor's budget in order to enable any company potentially entitled to receive access without discrimination. In terms of a needs assessment, however, it is possible to control access by means of deadlines and registration. The competent authority must also approve the respective tariffs in order to rule out excessive standard tariffs, for example. It must be ensured that the transports would cover costs if the obligation to reduced tariffs were no longer applicable.
Award of service contracts
In principle, the regulation provides for direct or competitive award of service contracts in accordance with Article 5 (2) and (3) . Apart from rail transport, where they are also permitted to third parties, direct awards are, with a few exceptions, only possible to so-called internal operators, i.e. transport companies that are publicly owned. In the bus and tram sector , according to a decision by the ECJ in March 2019, these must also be in connection with service concessions. Exceptions are permitted in accordance with Article 5 Paragraphs 4 and 5 for small-scale services and for contracts awarded to small and medium-sized companies , as well as an emergency measure in the event of the failure of the previous operator. According to this decision of the European Court of Justice, the subways are also included in the rail traffic , regardless of which legal norms they are otherwise subject to in the member states (in German law, subways are legally classified as trams according to PBefG).
There are differences in the competitive award between rail transport, service concessions and contracts below certain thresholds on the one hand and all other transports with buses and trams on the other. The latter are to be awarded in accordance with the directives 2004/17 / EG and 2004/18 / EG of the EU public procurement law (implemented in Germany with in national law), the former according to the requirements of Article 5 Paragraph 3 of Regulation 1370/2007. The reason for this is that the award of a corresponding service contract differs from a normal procurement process in that it also influences the market and encompasses interventions - such as exclusive rights - that go beyond pure procurement. On the basis of Article 5 (3), negotiation procedures are also possible , for example, for more complex awards .
The main requirements of the Ordinance on procurement procedures based on Article 5 (3) are:
- Transparency and open access for all potential providers within the EU
- Non-discrimination and neutral description of the services to be awarded
- Mutual recognition of performance and qualification certificates
- Announcement of the evaluation criteria for the offers
With the Amendment Ordinance 2016, the information obligations of the competent authorities have been specified; they must provide the bidders with all relevant information in the case of competitive awards. Since then, it has also been necessary to examine in the railway sector whether measures are required to ensure non-discriminatory access to rolling stock .
Ensuring the transparent and fair allocation and financing of public transport services was a key objective when the regulation was passed. It therefore regulates the publication obligations of the competent authorities in Article 7. Every public transport authority is obliged to publish a report once a year on the public service obligations it has entered into for public transport services within the meaning of the ordinance. In these reports, at least the specific obligations regarding the scope of services and the quality of the public transport service, including the degree of implementation of the service quality, must be specified. Furthermore, the transport companies with whom the corresponding service contracts have been concluded must be named, and the manner in which they were awarded must also be shown. The financing parameters, i.e. the agreed compensation per service unit, must also be listed. As a rule, this is given in euros per train or bus kilometer.
In good time before an old service contract expires, the public transport authority must inform the Official Journal of the European Union about the then planned new award in the form of a so-called advance notice . The regulation provides for a period of at least one year for this in Article 7 (2). This applies regardless of the previous or future planned form of award. Only if there is no more public funding in the future is this not necessary. With the Amendment Ordinance, the obligation was also implemented in 2016 to specify the intended start of the new service contract and its duration in the advance notice and to take into account the political goals of the strategy paper introduced with the change. Finally, the objective of transparency is also due to the requirement that, in the case of direct awards, a separate justification including a description of the transport services to be provided and the naming of the compensation parameters is published no later than one year after award.
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- Transport service contracts of the Austrian Federal Ministry for Transport, Innovation and Technology
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- Jan Werner: traffic trade law. In: Hubertus Baumeister (Ed.): Law of public transport. DVV Media Group, Hamburg 2013, ISBN 978-3-7771-0455-3 , pp. 459-755, here pp. 473, 695.
- Federal Chancellery Legal Information System: Consolidated Federal Law: Entire Legal Provision for Public Local Passenger and Regional Transport Act 1999, current version , accessed on October 22, 2015.
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- Felix Berschin: The European common market in commercial passenger traffic. P. 82.
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- ECJ, judgment of March 21, 2018 on direct awards RVK / Rhein-Sieg-Kreis and West-Verkehr / Kreis Heinsberg, joined cases C-266/17 and C-267/17
- JUVE: Competition in public transport: ECJ forces municipal utilities to make difficult changes; March 22, 2019
- Felix Berschin: The European common market in commercial passenger traffic. P. 109.
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- Felix Berschin: The European common market in commercial passenger traffic. P. 150.