The new Autorité de Régulation des Activités ferroviaires (ARAF- Railway Activities Regulatory Authority) has been implemented.
GERMAN
Das Gesetz vom 8. Dezember 2009 führt die rechtlichen Rahmenvorschriften der Eisenbahnregulierung ein. Die neue „Autorité de Régulation des Activités Ferroviaires“ (ARAF – Einsenbahnregulierungsbehörde) ist eingesetzt worden.
SPANISH
La ley del 8 de diciembre del 2009 organiza la regulación del transporte ferroviario y establece la nueva Autoridad de regulación.
La nueva “Autorité de Régulation des Activités ferroviaires” (la Autoridad de regulación de las actividades ferroviarias) ha sido implementada.
The principal goal of the Law of 8 December 2009 is to organise the regulation of the rail transport sector, which is currently opening up to competition and abandoning its formerly monopolistic structure. Indeed, rail freight transport has been open to competition since 31 March 2006, and international passenger rail transport, since January 2010. This law transposes the provisions of the European Community’s Third Railway Package, and was approved by the Conseil Constitutionnel (French Constitutional Council) in a decision dated 3 December 2009.
Amongst its other provisions, the law regulates the ability of foreign truck operators to perform domestic road freight services, in order to limit the scope of their operations in France.
Other provisions relate to the progressive liberalisation of urban transportation in the Paris region (Ile de France), which will be opened to competition in conformity with the European Regulation on Public Service Obligations. Bus services operated by the Régie autonome des transports parisiens (RATP, Paris City Transport Authority) will be opened to competition in 15 years; tramways, in 20 years; and metro lines, in 30 years. The law also modifies the rules for the management of metro and regional rail (RER) infrastructures, replacing existing provisions relating to the reimbursement of investments made by the RATP with provisions stemming from a former agreement on this subject between the RATP and the Syndicat des Transports d’Ile de France (STIF, Paris Regional Transport Union).
Moreover, the law modifies existing standard transport agreements, providing that in the absence of a written agreement between the parties, international transport contracts will be automatically governed by standard agreements, subject to the application of mandatory provisions stemming from international treaties (the law completes Article 8 II of the Law laying down basic principles for government action in the field of domestic transportation, or Loi d’orientation sur les transports internes (LOTI) of 30 December 1982). It is within this framework that the law gives the following definition of “unreasonable error” (faute inexcusable) committed by a transporter: unreasonable error is deliberate negligence that implies the transporter had knowledge of the probability of damages and yet recklessly proceeded in the action without any valid reason for doing so. This notion, which has sparked an important debate in case law in recent years, is of capital importance, because it deprives the transporter of the benefit of contractual limits on compensation for damages caused to transported merchandise, as is the case in standard transport agreements.
Finally, in order to optimize infrastructure management, and to promote the continuity and improvement of rural rail services, the RFF will have the ability to entrust management of low-traffic freight lines to regional rail operators. These regional operators will manage the infrastructures and will provide locomotion services on these lines, in order to optimize the allocation of technical and human resources. The development of proximity rail operators (opérateurs ferroviaires de proximité (OFP)) is an essential issue for the development of rail freight services.
This law aims at organising an efficient system of regulation for this sector to allow non-discriminatory access to all operators. It creates an Independent Administrative Authority called the Autorité de régulation des activités ferroviaires (ARAF - Railway Activities Regulatory Authority). This Authority will be composed of seven members, each nominated for six years, and will have broad investigatory powers, an auxiliary regulatory power, and a disciplinary power. The ARAF will have to be consulted on all legal propositions concerning railway transport, especially those concerning the schedule of tolls to be paid to the Réseau ferré de France (French Rail Network, or RFF, the public company that owns and maintains the rail network and railway stations) by rail operators for use of infrastructures, as well as the fare schedule for passenger lines operated under a monopoly.
Brief commentary
This is a major law for the railway sector, for it includes many provisions relating to the management of rail transportation and its infrastructures. The creation of a regulatory authority for this sector is a major step in its gradual move towards competition, mandated by European Union law. The goal of this reform is to maintain an equilibrium between the rights of passengers and those of new rail operators competing with the former monopolistic operator, as well as to optimise allocation of railway infrastructures in accordance with the sustainable development goals of national development programmes.
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