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[ ] ***** COMMITMENTS SUBMITTED BY TRENITALIA 1. COMMITMENT TOWARDS GVG This commitment regards the requests made by GVG concerning the establishment of an international grouping and the supply of traction services for the purpose of operating international passenger services on the Basel-Milan route. In this connection, Trenitalia undertakes to provide assistance in order to allow GVG to operate its projected passenger rail services. More particularly, on 27 June 2003 Trenitalia entered into an international grouping agreement with GVG for the purpose of allowing the latter access to the Italian network in accordance with Article 10 of Directive 91/440/EEC and the relevant national legislation. In addition, Trenitalia undertakes to provide GVG with the traction services it needs in order to operate international rail transport services on the Basel-Milan route. Such services will include the supply of back-up services on that route. The traction services in question will be provided by Trenitalia for a three-year period on the basis of transparent and non-discriminatory tariff conditions. Following numerous contacts which have taken place in recent months, Trenitalia and GVG have agreed on the terms of a draft contract for the supply of traction and driving as well as on the pricing criteria for the provision of such services (see below point 2(b)). 2. OTHER COMMITMENTS SUBMITTED BY TRENITALIA With the specific purpose of facilitating the entry of third-party operators into the market for international passenger rail transport services, during the initial phase of business initiatives in this market, Trenitalia hereby submits to the Commission the following commitments: (a) Constitution of international groupings Trenitalia confirms its full willingness to negotiate international grouping agreements, similar to the one entered into with GVG, with third-party railway undertakings that: - are in possession of a licence granted by another Member State pursuant to Directive 95/18/EC, as amended by Directive 2001/13/EC; - present a reasonable project for the operation of rail transport services in Italy. (b) Supply of traction services Whereas: - the transport system operated by Trenitalia has wide coverage over the whole of the country and is designed to guarantee an extensive network of services of great significance for national and international customers; - the operational management of such a system and of the resources dedicated to it is therefore an extremely complex task; - Trenitalia's operational organisation is substantially determined by a number of structural and industrial constraints that characterise to a large extent the rail transport sector generally;1 - the supply of traction services to third parties should necessarily take into account Trenitalia's complex rolling stock management and rotation system; - the commitment submitted should not jeopardise the full availability and autonomous organisation of Trenitalia's traction resources, in the light of the foregoing and with a view to facilitating the provision of international passenger services on the Italian market, Trenitalia confirms its willingness to enter into agreements for the supply of traction services (including back-up services) with other railway undertakings in other Member States, on the following conditions: - the supply of traction services is limited to Trenitalia's spare capacity; - spare capacity is to be understood as the production capacity which – as part of the abovedescribed rolling stock management and rotation system – is completely unused once commercial services (journeys, stops and journey preparation times) and the ancillary services that are necessary to them have been organised; - the spare capacity so defined is the result of the abovedescribed management process and may be allocated differently in time (period of the year, day of the week, hours of the day) and place on the rail network; 1 For example: - seasonality and demand peaks; - the resulting specific need to have adequate reserve capacity available at all times; - the specific physical constraints affecting rail networks, with the resulting implications in terms of system congestion and traffic difficulties; - the need for periodic maintenance of rolling stock and an associated rotation system, as well as for the establishment of predefined allocation criteria. 2 - the supply of traction services should be conditional on the provision of appropriate financial guarantees by the requesting undertaking; - traction services should be supplied on fair and non-discriminatory conditions and should afford Trenitalia appropriate remuneration for the service provided: in particular, an adequate return on the capital invested plus the costs of maintaining the rolling stock concerned;2 - driving and board guard services should be provided on the basis of fair and non-discriminatory criteria and at a price covering Trenitalia's related operating costs.3 In accordance with the above criteria and after making a calculation routinely used to verify its production capacity, Trenitalia has quantified its spare capacity for the supply of traction services at one million train/kilometres per year. Such capacity is sufficient to meet any requests from third parties wishing to operate scheduled international passenger rail transport services in Italy (approximately seven point-to-point services of around 200 km). In exceptional objective circumstances (e.g. depending on the geographical allocation of the service to be provided or the length of advance notice given in the requests), the above spare capacity could be reduced somewhat. (c) Duration of the commitments under (a) and (b) The commitments hereby given by Trenitalia with respect to the international grouping agreements and the provision of traction services should be considered exclusively aimed at facilitating the entry of new operators during the initial phase of the development of the international passenger rail transport market. Consequently: 2 The traction price should afford an appropriate return on the resources invested, and consequently both the capital invested for the purchase of the locomotives and the resources used for the provision of other services, i.e. manoeuvring, driving, board guard and maintenance services. With reference to the remuneration of the capital invested for the purchase of the locomotives, the remuneration is based on the definition of a constant rental fee that generates a revenue (ROI) consistent with the objectives of Trenitalia's business plan. More precisely, the determination of the rental fee is based on the purchase price of the type of locomotive concerned and its average normal utilisation in the course of the year (i.e. the hours of service per year of the locomotive type, as shown by Trenitalia's normal operating schedule). The calculation of the hours of service and the use of that criterion as a basis for the determination of the rental fee for the rolling stock are consistent with the approach followed by UIC leaflet 471-1. 3 The price for driving services and the price for board guard services are calculated on the basis of the costs borne by Trenitalia for the total hours worked by its personnel: in particular, the driving/escort time itself, which depends on the actual journey time of the train, as well as ancillary time that the personnel has to respect in accordance with the relevant national rules. 3 - the overall duration of Trenitalia's commitments will not exceed five years starting from the date of entry into force of the Commission decision in this case; - within this general timeframe, the duration of agreements concluded with any third-party undertakings for the supply of traction services will not exceed three years starting from the date on which the service starts to operate, with possible renewal on an annual basis. In agreement with the Commission, the above time periods could be either reduced or extended, in the event of amendment of the national regulatory framework (i.e. liberalisation of cabotage passenger rail transport in Italy) or a substantial change in structural market conditions (e.g. presence of other rail operators able to provide suitable traction services or occurrence of a particular development affecting supply in the rolling stock production sector or interoperability of the rail infrastructure concerned). Rome, 2 July 2003 Roberto Renon 4 Statement by Rete Ferroviaria Italiana S.p.A. Whereas: The German railway company Georg Verkehrsorganisation GmbH (GVG) wishes to operate a non-stop passenger train service between Basel and Milan which at Basel is connected to the ICE train to Germany; For this purpose GVG needs train paths between Milan and Domodossola on the Italian rail network and connecting train paths between Domodossola and Basel on the Swiss rail network; On 21 June 2001 the European Commission initiated a formal proceeding against Ferrovie dello Stato (FS), inter alia on the grounds that FS had not granted GVG access to the Italian rail network for the purpose of operating an international passenger train service from Basel to Milan and had thereby infringed Article 82 of the EC Treaty, Rete Ferroviaria Italiana S.p.A. (RFI), with a view to permitting GVG to start operating the planned passenger rail service between Basel and Milan as soon as possible, will use its best endeavours to provide GVG with suitable train paths between Milan and Domodossola. RFI will enter into regular contacts with the Swiss infrastructure manager to identify the train paths available for this purpose on the Swiss network and will use its best endeavours to ensure that GVG is allocated train paths connecting with those offered on the Italian network. As long as GVG renews its request for such train paths through the FTE or any other coordinating body for the allocation of international train paths, RFI will report twice a year to the Commission on the relevant action taken. For Rete Ferroviaria Italiana S.p.A. Franco Marzioli Sales Director 5.

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