EUROPE: Last month the European Commission announced it was referring 13 member states to the European Court of Justice for ‘failing to correctly implement various parts of the basic EU legislation’ in the First Railway Package, aimed at opening up the market for competition.

States were supposed to have implemented directives 91/440 and 2001/14 by March 15 2003, but ‘important issues remain to be resolved’ in Austria, the Czech Republic, Germany, Greece, France, Hungary, Ireland, Italy, Luxembourg, Poland, Portugal, Slovenia and Spain.

The Commission opened infringement proceedings in June 2008 against 24 of the 25 member states with railways. Some made legislative ‘modifications’, but in October 2009 the Commission felt obliged to send ‘reasoned opinions’ to 21 countries setting out concerns over remaining infringements. Having analysed the responses, the Commission has decided that the case is strong enough to refer 13 states to the court, whilst seeking further clarification from the others.

The nature of infringements varies, but the most common failings are ‘not sufficiently ensuring the independence of the rail infrastructure manager’, ‘inadequate implementation of the provisions concerning rail access charging’, and/or ‘a failure to set up an independent regulatory body’. The practical effect is ‘obstacles to market access and a lack of transparency of access conditions’, which ‘prevents the establishment of a fully functioning market for rail services in Europe’.