EUROPEAN COMMISSION Brussels, 30.1.2013 SWD(2013) 10 final Part 4 COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the documents Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1370/2007 concerning the opening of the market for domestic passenger transport services by rail Proposal for a Directive of the European Parliament and of the Council amending Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area, as regards the opening of the market for domestic passenger transport services by rail and the governance of the railway infrastructure {COM(2013) 28 final} {COM(2013) 29 final} {SWD(2013) 11 final} {SWD(2013) 12 final} {SWD(2013) 13 final} EN EN COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the documents Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1370/2007 concerning the opening of the market for domestic passenger transport services by rail Proposal for a Directive of the European Parliament and of the Council amending Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area, as regards the opening of the market for domestic passenger transport services by rail and the governance of the railway infrastructure Disclaimer: This impact assessment commits only the Commission's services involved in its preparation and does not prejudge the final form of any decision to be taken by the Commission EN 2 EN ANNEX 4 ANALYSIS OF NATIONAL RAIL MARKETS Introduction This annex gives an overview of the structure of the current national rail markets in terms of competition for the market (mostly public service obligations) and competition in the market (mostly commercial services under open access). The result of the analysis is presented in the table 1 hereunder: Table 1 – Structure of the EU railway market Million p- (%) Examples km Networks that are CLOSED de facto (pkm) Directly awarded PSC & NO open access 76.99 19% Belgium, 52% of Spanish pkm Directly awarded "exclusive rights w/o PSO" & NO 68.25 17% French and Spanish HSL open access Total CLOSED 152.7 36% Networks that are OPEN de facto Competitively tendered PSC (NO open access in 56.75 14% 99% of pkm in UK (franchises) parallel) 6% of Austrian pkm (Wien- Open access (no PSO in parallel) 66.83 17% Salzburg line) PSO pkms in Sweden (52% Unrestricted Open access & tendered PSCs in parallel 22.76 6% pkm) Open access restricted only if it compromises PSOs 0.56 0% 1% of open access pkm in UK (tendered PSCs) Total OPEN 146.9 37% Networks that are SEMI-OPEN Unrestricted Open access & directly awarded PSCs in 89.14 22% PSOs in Bulgaria (15% of pkm) parallel Open access restricted only if it compromises PSOs 24.59 6% PSO pkms in Italy (52% of pkm) (directly awarded PSCs) Total SEMI-OPEN 105.6 28% TOTAL OF EU pkm 405.22 100% Different ways to open domestic passenger market are outlined in the graph 1, which shows the total level of opened market in each Member State as per cent of the total pkm and distinguishes between competition for the market (competitively tendered PSOs) and EN 1 EN competition in the market (open access). To this day, only SE and UK have 100% opened domestic passenger market. Although IT, PL, DE, AT, and BG have a substantial share of their markets opened, it is dominated by competition in the market rather than competition for the market. DE is a special case, because due to recent court decision1 approximately 48% of domestic passenger market will be now opened for competition since, which will make DE market 100% opened. Graph 1. Level of openness of domestic passenger market, % EN 2 EN Graph 2. Closed markets and share of exclusive rights, % In some Member States the incumbent operator enjoys exclusive rights to a part of the passenger transport market, which are outlined in the legislation. In these cases, such rights are not awarded in the form of a PSO, which means that they were not subject neither to competitive tendering nor direct award. As can be seen in the graph 2, such cases amount from 40% to 85% of domestic passenger markets of PT, EF, FR and FI. Graph 3. Semi-opened markets, % However, there are parts of the markets of some Member States which are difficult to classify as closed or opened. Reasons for that are different in each country, but mainly are due to differences in the approach of implementation of EU legislation and reflect a high degree of lack of clarity in the market regulation. Differences in de jure legislation and de facto implementation also contribute to this difficulty. Share of such cases, termed as "semi-opened markets", is shown in the chart 3 as part of the total domestic passenger market (in terms of per cent of pkm). In case of Germany, the above-mentioned currently directly awarded 48% (direct-award practice will have to be abolished in future), is used here. Chart 4. Competitively tendered PSOs and total PSOs, % of total pkm EN 3 EN Chart 4 groups the Member States according to the total share of PSOs and shows the percentage of the competitively tendered PSOs. Although Bulgaria, Slovakia and three Baltic countries have their domestic passenger market opened for tenders, however only one bidder chose to take part in each tender in practice, which show a low degree of competitiveness. Also, although PSOs may be seen as a predominant tool to organise passenger transportation in railways, it is clear that most often it is not selected using a procedure of competitive tendering. The rest of the annex is structured in fiches for each Member State (except Cyprus and Malta that have no railway system) presenting an analysis of the legal framework in terms of open access to domestic services and competitive tendering. This assessment is completed by data on the domestic passenger-kilometres falling under public service obligations (PSO) and the market shares of passenger railway undertakings (in terms of pkm). The latter are extracted from the Railway Market Monitoring Survey (RMMS) produced every two years by Commission services on the basis of contributions from Member States. Missing data has been completed with the help of Eurostat data series on domestic and international traffic and from the Community of European railways (CER) (cf. hereunder) report on public service obligations (CER (2011): Public service rail transport in the European Union: an overview, available at http://www.cer.be/media/2265_CER_Brochure_Public_Service_2011.pdf ). EN 4 EN EN 5 EN Analysis of national rail markets Austria 1. Overview of domestic open access for commercial services and public service obligations Member State Domestic open access (other than cabotage) Competitive for tendering PSO services De jure De facto*** Long-distance Regional Suburban PSO (% p km)* Austria 9 9 8 8 8 66% *cf. tables 2 and 4 0=no PSO applies to long-distance services; C= concession till 2015, w=unsuccessful competitive tendering, government had to make direct award ***= Open de facto= whether new entrants have entered the open access market 2 –Overall traffic in passenger-km 1990 1995 2000 2005 2007 2008 2009 2010 National (m pkm) 6895 7262 7403 8178*8257* International Passenger (m pkm) 1749 1841 1877 1442*1456* transport Of which under PSO (m pkm) 6305 6428 n.a.5700**. Source: Rail Market Monitoring Survey (2010), contributions from Member States to the European Commission, Eurostat (*) and CER (**) EN 6 EN 3- Market shares of railway undertakings Market share Total market share of (%) all but the principal Railway undertakings railway undertakings (%) ÖBB PV 94,2 AT 5,4 5,8 Other railway undertakings Source: Rail Market Monitoring Survey (2010), contributions from Member States to the European Commission, 4 – Public service obligations To date, all contracts under PSO appear to have been awarded directly. In February 2001 SCHIG, on behalf of the Ministry of Transport, concluded a new contract with the incumbent ÖBB Personenverkehr AG that covers the entirety of the Austrian railway network for regional transport and a number of specific long-distance services and will expire in 2019. According to the Community of European Railways, the main incumbent in Austria, ÖBB operated 5700 passenger-km under public service obligations in 2010 (data is the RMMS 2010 is not available). Examples NETWORKS Networks that are CLOSED de facto (pkm) Directly awarded PSC & NO open access Directly awarded "exclusive rights w/o PSO" & NO open access Total CLOSED 66% Networks that are OPEN de facto Competitively tendered PSC (NO open access in parallel) Open access (no PSO in parallel) 33%pkm Wien-Salzburg line (long-distance services) Unrestricted Open access & tendered PSCs in parallel Open access restricted only if it compromises PSOs (tendered PSCs) Total OPEN 33% Semi-opened Unrestricted Open access & directly awarded 66% pkm All services outside Vienna-Salzburg line PSCs in parallel Open access restricted only if it compromises PSOs (directly awarded PSCs) EN 7 EN Belgium 1. Overview of domestic open access for commercial services and public service obligations Member State Domestic open access (other than cabotage) Competitive for tendering PSO services De jure De facto*** Long-distance Regional Suburban PSO (% p km)* Belgium 8 8 8 8 8 100% *cf. tables 2 and 4 0=no PSO applies to long-distance services; C= concession till 2015, w=unsuccessful competitive tendering, government had to