OUTLINE REGULATIONS IMPLEMENTING DIRECTIVE No. 91/440/EEC ON THE DEVELOPMENT OF COMMUNITY RAILWAYS (Advisory opinion)
PRESS RELEASE
Railways: separating accounting for infrastructure management and transport services is not sufficient
Exercising its consultative powers under Section 22 of the Antitrust Act, the Antitrust Authority notified the Speakers of the Senate and the Chamber of Deputies, the Prime Minister and the Minister of Transport, of possible anti-competitive effects and interference with the sound operation of the market that might stem from the Outline regulations for implementing Directive No. 91/440/EEC on the development of Community railways which had been approved, at first reading, by the Cabinet on 27 March this year. This draft contains a number of provisions which would appear to conflict with the introduction of competition into the rail transport market.
The Authority considers that the introduction of greater competition in the railways industry requires compliance with the principle that the management of railway infrastructure and transport services must be kept separate, and access rights must be guaranteed to new operators to the railway network.
On the first point, the Authority believes that the obligation to keep separate accounts is merely an intermediate stage towards the real separation of both activities. It therefore hopes that the railway system will be rapidly reorganised, separating network management and the provision of services both in terms of their legal status and proprietorship. In freight transport in particular, where no obligations regarding public service requirements exist, and where the advantages in terms of a vertically integrated structure are more limited, real separation would encourage an opening-up of the market to competition.
However, with regard to access rights, the Authority hopes that Directive No. 95/18/EEC and No. 95/19/EEC, on the issue of licences for transport services to railway companies, and the right to occupy a specific portion of the network for a given timetable slot, respectively, will be incorporated into Italian law very soon.
The Authority hopes, in particular, that the authorities will rapidly identify an entity with responsibility for assigning timetable slots and reiterates the need for this to be an independent and impartial entity. Only if it is really independent will it be able to guarantee a fair and non-discriminatory allocation of timetable slots.
With regard to the definition of the rules for sharing out the timetable slots, the Authority considers it vital to define clear criteria and transparent procedures in accordance with the general principles of competition, and in compliance with the suggestions of the Commission in its Report on the status of implementation of Directive No. 91/440/EEC.
In order to prevent the erection of unjustified entry barriers on the newly-emerging transport services market, the definition of the eligibility criteria for the issue of licences and security certificates must also be based on the same principles of clarity and transparency. While awaiting a real separation between the network and the services, the latter must be entrusted to an independent body.
Lastly, the Authority trusts that the criteria for setting tariffs for infrastructure access will be drawn up with an an explicit reference to Italian and Community competition principles, and in particular the obligation to avoid discrimination against any entity which is entitled to be given access to the network.
Rome, 12 June 1998