RECOMMENDATION FOR SECOND READING on the Council common position for adopting a regulation of the European Parliament and of the Council on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70

(10) Contrary to Regulation (EEC) No 1191/69, the scope of which extends to public passenger transport services by inland waterway, it is not considered advisable for this Regulation to cover the award of public service contracts in that specific sector. The organisation of public passenger transport services by inland waterway is therefore subject to compliance with the general principles of the Treaty, unless Member States choose to apply this Regulation to that specific sector. The provisions of this Regulation do not prevent the integration of inland waterway services into a wider urban, suburban or regional public passenger transport network.

(10) Contrary to Regulation (EEC) No 1191/69, the scope of which extends to public passenger transport services by inland waterway, it is not considered advisable for this Regulation to cover the award of public service contracts in that specific sector. The organisation of public passenger transport services by inland waterway and by national sea waters is therefore subject to compliance with the general principles of the Treaty, unless Member States choose to apply this Regulation to those specific sectors. The provisions of this Regulation do not prevent the integration of services by inland waterway and national sea waters into a wider urban, suburban or regional public passenger transport network.

(15) Contracts of long duration can lead to the closing of the market for a longer period than is necessary, thus diminishing the benefits of competitive pressure. To minimise distortions of competition while protecting the quality of services, public service contracts should be of limited duration. It is, however, necessary to make provision for extending public service contracts by a maximum of half their initial duration where the public service operator has to invest in assets for which the depreciation period is exceptional and, because of their special characteristics and constraints, in the case of the outermost regions as specified in Article 299 of the Treaty. In addition, where a public service operator makes investments in infrastructure or in rolling stock and vehicles which are exceptional in the sense that both concern high amounts of funds, and provided the contract is awarded after a fair competitive tendering procedure, an even longer extension should be possible.

(15) Contracts of long duration can lead to the closing of the market for a longer period than is necessary, thus diminishing the benefits of competitive pressure. To minimise distortions of competition while protecting the quality of services, public service contracts should be of limited duration. The extension of the contract should be subject to positive confirmation from users, which should be periodically checked by the competent authority in accordance with prearranged procedures to ensure that it is objective. It is, however, necessary to make provision for extending public service contracts by a maximum of half their initial duration where the public service operator has to invest in assets for which the depreciation period is exceptional and, because of their special characteristics and constraints, in the case of the outermost regions as specified in Article 299 of the Treaty. Where a public service operator makes investments in infrastructure or in rolling stock and vehicles which are exceptional in the sense that both concern high amounts of funds, and provided the contract is awarded after a fair competitive tendering procedure, at the moment the investment is made, the residual cost for the part which is not amortised during the term of the contract should be determined, as it should be borne by the successful bidder who succeeds the operator who made the investment.

(17) In keeping with the principle of subsidiarity, competent authorities are free to establish quality standards for public service obligations, for instance with regard to minimal working conditions, passenger rights, the needs of persons with reduced mobility or environmental protection.

(17) In keeping with the principle of subsidiarity, competent authorities are free to choose the way they establish social and quality criteria in order to maintain and raise quality standards for public service obligations, for instance with regard to minimal working conditions, passenger rights, the needs of persons with reduced mobility, environmental protection, the security of passengers and employees as well as collective agreement obligations and other rules and agreements concerning workplaces and social protection at the place where the service is provided. To ensure transparent and comparable terms of competition between operators, specific quality of service requirements imposed by competent authorities should refer, whenever available, to the European quality Standards 13816 and 15140 approved in 2002 and 2006 by the European Committee for standardisation (CEN).

At any event, it needs to be ensured that the generally applicable standards in these areas are also complied with in comparable form for public road and rail passenger services.

(20) Where a public authority chooses to entrust a general interest service to a third party, it must select the public service operator in accordance with Community law on public contracts and concessions, as established by Articles 43 to 49 of the Treaty, and the principles of transparency and equal treatment. In particular, the provisions of this Regulation are to be without prejudice to the obligations applicable to public authorities by virtue of the directives on the award of public contracts, where public service contracts fall within their scope.

(20) Where a public authority chooses to entrust a general interest service to a third party, it must select the public service operator in accordance with Community law on public contracts and concessions, as established by Articles 43 to 49 of the Treaty, and the principles of transparency and equal treatment. In particular, the provisions of this Regulation are to be without prejudice to the obligations applicable to public authorities by virtue of the directives on the award of public contracts, where public service contracts fall within their scope. Uniform legal protection of those interested in tendering must be guaranteed, drawing no distinction between contracts awarded under this Regulation and those under Directives 2004/17/EC and 2004/18/EC. The provisions of Directive 89/665/EEC should therefore apply uniformly to the review of all tendering procedures.

(20a) Where a transport undertaking, on its own initiative, provides a public passenger transport service for the first time, the competent local authority must have the right to waive the competitive tendering procedure and to promote the entrepreneurial initiative by the direct award of a temporary exclusive right to the public service operator. Under this procedure, financial compensation for the performance of public service obligations pursuant to Article 3(1) may not be granted. Financial compensation under Article 3(2) is not affected.

(26) The compensation granted by competent authorities to cover the costs incurred in discharging public service obligations should be calculated in a way that prevents overcompensation. Where a competent authority plans to award a public service contract without putting it out to competitive tender, it should also respect detailed rules ensuring that the amount of compensation is appropriate and reflecting a desire for efficiency and quality of service.

(26) The compensation granted by competent authorities to cover the costs incurred in discharging public service obligations should be calculated in a way that prevents overcompensation and does not impose undercompensation. Consideration should be given in particular to using the results of comparable services awarded in a public tendering procedure as a benchmark when calculating compensation.

Where a competent authority plans to award a public service contract without putting it out to competitive tender, it should also respect detailed rules ensuring that the amount of compensation is appropriate and reflecting a desire for efficiency and quality of service. One way of ensuring sufficiently high quality is to make entitlement to full compensation conditional on quality standards reflecting the current state of technology.

(27) By appropriately considering any effect of complying with the public service obligations on the demand of public passenger transport services in the calculation scheme of the Annex, the competent authority and the public service operator can prove that overcompensation has been avoided.

(27) By appropriately considering any effect of complying with the public service obligations on the demand of public passenger transport services in the calculation scheme of the Annex, the competent authority and the public service operator can prove that over or undercompensation has been avoided.

(31) During the transitional period, the introduction of the provisions of this Regulation by the competent authorities may take place at different times. It may therefore be possible, during this period, that public service operators from markets not yet affected by the provisions of this Regulation tender for public service contracts in markets that have been opened to controlled competition more rapidly. In order to avoid, by means of proportionate action, any imbalance in the opening of the public transport market, competent authorities should be able to refuse, in the second half of the transitional period, tenders from undertakings, more than half the value of the public transport services performed by which are not granted in accordance with this Regulation, provided that this is applied without discrimination and decided in advance of an invitation to tender.

(31) During the transitional period, the introduction of the provisions of this Regulation by the competent authorities may take place at different times. It may therefore be possible, during this period, that public service operators from markets not yet affected by the provisions of this Regulation tender for public service contracts in markets that have been opened to controlled competition more rapidly. In order to avoid, by means of proportionate action, any imbalance in the opening of the public transport market, competent authorities should be able to refuse, in the second half of the transitional period, tenders from undertakings, the public transport services of which are not awarded a contract in accordance with this Regulation, provided that this is applied without discrimination and decided in advance of an invitation to tender.

(36) The scope of Council Regulation (EEC) No 1107/70 of 4 June 1970 on the granting of aids for transport by rail, road and inland waterway is covered by this Regulation. That Regulation is considered obsolete while limiting the application of Article 73 of the Treaty without granting an appropriate legal basis for authorising current investment schemes, in particular in relation to investment in transport infrastructure in a public private partnership. It should therefore be repealed in order for Article 73 of the Treaty to be properly applied to continuing developments in the sector without prejudice to this Regulation or Council Regulation (EEC) No 1192/69 of 26 June 1969 on common rules for the normalisation of the accounts of railway undertakings . With a view to further facilitating the application of the relevant Community rules, the Commission will propose State aid guidelines for railway investment, including investment in infrastructure in 2006.

(36) The scope of Council Regulation (EEC) No 1107/70 of 4 June 1970 on the granting of aids for transport by rail, road and inland waterway is covered by this Regulation. That Regulation is considered obsolete while limiting the application of Article 73 of the Treaty without granting an appropriate legal basis for authorising current investment schemes, in particular in relation to investment in transport infrastructure in a public private partnership. It should therefore be repealed in order for Article 73 of the Treaty to be properly applied to continuing developments in the sector without prejudice to this Regulation or Council Regulation (EEC) No 1192/69 of 26 June 1969 on common rules for the normalisation of the accounts of railway undertakings . With a view to further facilitating the application of the relevant Community rules, the Commission will propose State aid guidelines for railway investment, including investment in infrastructure in 2007.

2. This Regulation shall apply to the national and international operation of public passenger transport services by rail and other track-based modes and by road, except for services which are operated mainly for their historical interest or their tourist value. Member States may apply this Regulation to public passenger transport by inland waterways.

2. This Regulation shall apply to the national and international operation of public passenger transport services by rail and other track-based modes and by road, except for services which are operated mainly for their historical interest or their tourist value. Member States may apply this Regulation to public passenger transport by inland waterways and national sea waters.

(f) "exclusive right" means a right entitling a public service operator to operate certain public passenger transport services on a particular route or network or in a particular area, to the exclusion of any other such operator;

(f) "exclusive right" means a right entitling a public service operator for the purpose of performing public service obligations to operate certain public passenger transport services on a particular route or network or in a particular area and thereby excluding other operators wholly or partially from operating those services;

(i) "public service contract" means one or more legally binding acts confirming the agreement between a competent authority and a public service operator to entrust to that public service operator the management and operation of public passenger transport services subject to public service obligations; depending on the law of the Member States, the contract may also consist of a decision adopted by the competent authority:

–         taking the form of an individual legislative or regulatory act, or

–         containing conditions under which the competent authority itself provides the services or entrusts the provision of such services to an internal operator;

(Does not affect English version.)

(ia) 'internal operator' means a legally distinct entity over which the competent authority exercises complete control similar to that exercised over its own departments. For the purposes of determining whether such control exists, factors such as the degree of representation on administrative, management or supervisory bodies, specifications relating thereto in the articles of association, ownership, effective influence and control over strategic decisions and individual management decisions shall be taken into consideration;

(Adoption of this amendment will necessitate changes throughout the text)

2. By way of derogation from paragraph 1, public service obligations which aim at establishing maximum tariffs for all passengers or for certain categories of passenger may also be the subject of general rules. In accordance with the principles set out in Articles 4 and 6 and in the Annex, the competent authority shall compensate the public service operators for the net financial effect, positive or negative, on costs incurred and revenues generated in complying with the tariff obligations established through general rules in a way that prevents overcompensation. This shall be so notwithstanding the right of competent authorities to integrate public service obligations establishing maximum tariffs in public service contracts.

2. By way of derogation from paragraph 1, public service obligations which aim at establishing maximum tariffs for all passengers or for certain categories of passenger may also be the subject of general rules. In accordance with the principles set out in Articles 4 and 6 and in the Annex, the competent authority shall compensate the public service operators for the net financial effect, positive or negative, on costs incurred and revenues generated in complying with the tariff obligations established through general rules in a way that prevents overcompensation and does not impose undercompensation. This shall be so notwithstanding the right of competent authorities to integrate public service obligations establishing maximum tariffs in public service contracts.

3. Without prejudice to the provisions of Articles 73, 86, 87 and 88 of the Treaty, Member States may exclude from the scope of this Regulation general rules on financial compensation for public service obligations which establish maximum tariffs for pupils, students, apprentices and persons with reduced mobility.

3. Without prejudice to the provisions of Articles 73, 86, 87 and 88 of the Treaty, Member States may exclude from the scope of this Regulation general rules on financial compensation for public service obligations which establish maximum tariffs for pupils, students, apprentices and persons with reduced mobility. Such exclusion shall not lead to over or undercompensation of the costs incurred by the operator.

3a. A public service operator who wishes to discontinue or make substantial modifications to his public passenger transport service, provided the service is not subject to any public service obligations, shall notify the competent local authorities thereof at least three months in advance. The competent local authorities may waive this notification requirement.

(i) clearly define the public service obligations with which the public service operator is to comply, and the geographical areas concerned.

(i) clearly define the public service obligations, with which the public service operator is to comply, and the nature and extent of the exclusive rights granted and the geographical areas concerned.

(ii) establish in advance, in an objective and transparent manner, the parameters on the basis of which the compensation payment is to be calculated in a way that prevents overcompensation. In the case of public service contracts awarded in accordance with Article 5(2), (4), (5) and (6), these parameters shall be determined in such a way that no compensation payment may exceed the amount required to cover the net financial effect on costs incurred and revenues generated in discharging the public service obligations, taking account of revenue relating thereto kept by the public service operator and a reasonable profit;

(ii) establish in advance, in an objective and transparent manner, the parameters on the basis of which the compensation payment is to be calculated in a way that prevents overcompensation and does not impose undercompensation. In the case of public service contracts awarded in accordance with Article 5(2), (4), (5) and (6), these parameters shall be determined in such a way that no compensation payment may exceed the amount required to cover the net financial effect on costs incurred and revenues generated in discharging the public service obligations, taking account of revenue relating thereto kept by the public service operator and a reasonable profit. The operator’s actual costs shall be deemed to be costs incurred in discharging the public service obligations only if a typical, well-run operator would have incurred these costs in discharging the obligations in question;

3. The duration of public service contracts shall be limited and shall not exceed ten years for coach and bus services and fifteen years for passenger transport services by rail or other track-based modes. The duration of public service contracts relating to several modes of transport shall be limited to fifteen years if transport by rail or other track-based modes represents more than 50 % of the value of the services in question.

3. The duration of public service contracts shall be limited and shall not exceed ten years for coach and bus services and fifteen years for passenger transport services by rail or other track-based modes. The duration of public service contracts relating to several modes of transport shall be limited to fifteen years if transport by rail or other track-based modes represents more than 50 % of the value of the services in question. Without prejudice to Article 5(5), contracts for rail transport services shall be concluded for a minimum duration of three years.

5. Competent authorities shall be able to:

a) ensure the adequate provision of public passenger transport services;

b) award public service contracts or lay down the general rules in order to secure the fulfilment of such services;

c) adopt public service requirements in order to ensure the adequacy of services;

d) monitor and assess the performance of operators in carrying out their contracts and in complying with the general rules;

e) take action, including the imposition of penalties or the termination of public service contracts, when operators fail to meet the quality of service or service levels required under the contract.

7. Tender documents and public service contracts shall be transparent as to whether or not subcontracting may be considered. The public service contract shall, in accordance with national and Community law, determine the conditions applied to subcontracting.

7. Tender documents and public service contracts shall be transparent as to whether, and if so to what extent, subcontracting may be considered. If subcontracting takes place, the contractor entrusted with the administration and performance of public passenger transport services in accordance with this Regulation shall be required to perform the majority of the public passenger transport services itself. The public service contract shall, in accordance with national and Community law, determine the conditions applied to subcontracting.

2. Unless prohibited by national law, any competent local authority, whether or not it is an individual authority or a group of authorities providing integrated public passenger transport services, may decide to provide public passenger transport services itself or to award public service contracts directly to a legally distinct entity over which the competent local authority, or in the case of a group of authorities at least one competent local authority, exercises control similar to that exercised over its own departments (hereinafter referred to as an internal operator). Where a competent local authority takes such a decision, the following shall apply:

2. Provided that national law so permits, any competent local authority, whether or not it is an individual authority, group of authorities or authority set up specifically by the competent authorities providing integrated public passenger transport services in an economically and socially coherent transport area may decide to provide public passenger transport services itself or to award public service contracts directly to a legally distinct entity over which the competent local authority or group of authorities or authority set up specifically by the competent authorities exercises control similar to that exercised over its own departments (hereinafter referred to as an internal operator). Where a competent local authority takes such a decision, the following shall apply:

(a) for the purposes of determining whether the competent local authority exercises

control, factors such as the degree of representation on administrative, management or supervisory bodies, specifications relating thereto in the articles of association, ownership, effective influence and control over strategic decisions and individual management decisions shall be taken into consideration. In accordance with Community law, 100 % ownership by the competent public authority, in particular in the case of public-private partnerships, is not a mandatory requirement for establishing control within the meaning of this paragraph, provided that there is a dominant public influence and that control can be established on the basis of other criteria;

a) for the purposes of determining whether the competent local authority exercises

control, factors such as the degree of representation on administrative, management or supervisory bodies, specifications relating thereto in the articles of association, ownership, effective influence and control over strategic decisions and individual management decisions shall be taken into consideration. In accordance with Community law, 100 % ownership by the competent public authority, in particular in the case of public-private partnerships, is not a mandatory requirement for establishing control within the meaning of this paragraph, provided that all the private partners have been selected on the basis of an invitation to tender valid for the duration of the public service contract. Moreover, private partners may not individually or collectively have a significant influence on the public service operator as defined in the international accounting standard IAS 28 laid down in Commission Regulation (EC) No 2238/2004 of 29 December 2004 amending Regulation (EC) No 1725/2003 adopting certain international accounting standards in accordance with Regulation (EC) No 1606/2002 of the European Parliament and of the Council as regards IASs IFRS 1, IASs Nos. 1 to 10, 12 to 17, 19 to 24, 27 to 38, 40 and 41 and SIC Nos. 1 to 7, 11 to 14, 18 to 27 and 30 to 33¹.

___________

¹OJ L 394, 31.12.2004, p. 1.

(b) the condition for applying this paragraph is that the internal operator and any entity over which this operator exerts even a minimal influence perform their public passenger transport activity within the territory of the competent local authority, notwithstanding any outgoing lines or other ancillary elements of that activity which enter the territory of neighbouring competent local authorities, and do not take part in competitive tenders concerning the provision of public passenger transport services organised outside the territory of the competent local authority;

(b) the condition for applying this paragraph is that the internal operator and any entity over which this operator or the competent local authority exerts even a minimal influence perform their public passenger transport activity within the territory of the competent local authority, notwithstanding any outgoing lines or other ancillary elements of that activity which enter the territory of neighbouring competent local authorities, and do not take part in competitive tenders concerning the provision of public passenger transport services organised outside the territory of the competent local authority;

(c) notwithstanding point (b), an internal operator may participate in fair competitive tenders as from two years before the end of its directly awarded public service contract under the condition that a final decision has been taken to submit the public passenger transport services covered by the internal operator contract to fair competitive tender and that the internal operator has not concluded any other directly awarded public service contract;

2(c) notwithstanding point (b), an internal operator may participate in fair competitive tenders as from one year before the end of its directly awarded public service contract under the condition that a final and irrevocable decision has been taken to submit the public passenger transport services covered by the internal operator contract to fair competitive tender and that the internal operator has not concluded any other directly awarded public service contract. If the competent authority reverses this decision within two years, all contracts awarded to the internal operator in the intervening period shall automatically lapse;

(da) if subcontracting under Article 4(7) is being considered, the internal operator shall be required to provide the major part of the passenger transport service himself;

(db) in the case of directly awarded public service contracts, the competent authority shall provide adequate reasons for its decision to award the contract directly.

4. Unless prohibited by national law, the competent authorities may decide to award public service contracts directly either where their average annual value is estimated at less than EUR 1 million or where they concern the annual provision of less than 300 000 kilometres of public passenger transport services.

4. So far as national law allows, the competent authorities may decide to award public service contracts directly either where their average annual value is estimated at less than EUR 1 000 000^* or where they concern the annual provision of less than 300 000 kilometres of public passenger transport services.

In the case of a public service contract directly awarded to a small and medium sized enterprise operating not more than 20 vehicles, these thresholds may be increased to either an average annual value estimated at less than EUR 1,7 million or when they concern the annual provision of less than 500 000 kilometres of public passenger transport services.

In the case of a public service contract directly awarded to a small or medium sized enterprise employing between 50 and 250 employees, these thresholds may be increased to either an average annual value estimated at less than EUR 3 000 000* or when they concern the annual provision of less than 1 000 000 kilometres of public passenger transport services.

* These figures are to be adjusted every year in every Member State to the national inflation rates of the previous year, as provided by Eurostat.

5a. Under the provisions of national law, a public service operator may, on his own initiative, apply for the renewal of an exclusive right to set up a public passenger transport service. The relevant local authority must award the requested public service contract directly, if it concerns a service which is not covered by any other exclusive right and will not demonstrably endanger any public service contracts that have already been awarded.

6. Unless prohibited by national law, competent authorities may decide to make direct awards of public service contracts where they concern transport by rail, with the exception of other track-based modes such as metro or tramways. In derogation from Article 4(3), such contracts shall not exceed 10 years, except where Article 4(4) applies.

6. Unless prohibited by national law, competent authorities may decide to make direct awards of public service contracts concerning exclusive rights for public service obligations where they concern transport by rail, with the exception of other track-based modes such as metro or tramways, if this is necessary so as not to endanger the economic viability or safety of the transport operation in question. In derogation from Article 4(3), such contracts shall not exceed 10 years, except where Article 4(4) applies.

1. Each competent authority shall make public once a year an aggregated report on the public service obligations for which it is responsible, the selected public service operators and the compensation payments and exclusive rights granted to the said public service operators by way of reimbursement. This report shall allow the performance, quality and financing of the public transport network to be monitored and assessed.

1. Each competent authority shall make public once a year an aggregated report on the public service obligations for which it is responsible, the selected public service operators and the compensation payments and exclusive rights granted to the said public service operators by way of reimbursement. This report shall distinguish between bus transport, rail transport and rail infrastructure, allow the performance, quality and financing of the public transport network to be monitored and assessed and provide information on the type and extent of exclusive rights that have been granted.

(ca) quality targets relating to punctuality and reliability and the applicable rewards and penalties.

(a) name of the contracting entity and its ownership;

(a) name of the contracting entity and its ownership, together with its control structure;

(e) quality targets;

(e) quality targets relating to punctuality and reliability and the applicable rewards and penalties;

Article 7a

When deciding on and awarding public service contracts under Article 5(2) to (5), Member States shall provide legal protection for those interested in tendering which is as effective as that provided by Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts.

2. Without prejudice to paragraph 3, the award of public service contracts by rail and by road shall comply with Article 5 as from …*. During this transitional period Member States shall take measures to gradually comply with Article 5 in order to avoid serious structural problems in particular relating to transport capacity.

^* Note for OJ: 12 years after the date of entry into force of this Regulation.

2. Without prejudice to paragraph 3, the award of public service contracts by rail and by road shall comply with Article 5 as from …*. During this transitional period Member States shall take measures to gradually comply with Article 5 in order to avoid serious structural problems in particular relating to transport capacity.

^* Note for OJ: 8 years after the date of entry into force of this Regulation.

The contracts referred to in (a) may continue until they expire. The contracts referred to in (b) and (c) may continue until they expire, but for no longer than 30 years. The contracts referred to in (d) may continue until they expire, provided they are of limited duration comparable to the durations specified in Article 4.

The contracts referred to in (a) may continue until they expire. The contracts referred to in (b) and (c) may continue until they expire, but for no longer than 15 years. The contracts referred to in (b) and (d) may continue until they expire, provided they are of limited duration comparable to the durations specified in Article 4.

Article 8a

Appeal procedures

1. Member States shall guarantee operators and other interested parties the right to lodge an appeal with a public or judicial body against decisions and preliminary decisions taken by competent authorities under this Regulation.

2. The body referred to in paragraph 1 shall be independent of the competent authorities concerned and of the operators involved and shall be empowered to request any relevant information from any party concerned, to take binding decisions and to award damages.

3. Where this body is not a judicial body, its decisions shall be subject to judicial review.

4. The provisions governing implementation of the appeal procedure shall be determined by the Member States.

5. As regards cross-border services, the authorities concerned shall agree on which appeal body shall be competent.

2. Without prejudice to Articles 73, 86, 87 and 88 of the Treaty, Member States may continue to grant aids for the transport sector pursuant to Article 73 of the Treaty which meet the needs of coordination of transport or which represent reimbursement for the discharge of certain obligations inherent in the concept of a public service, other than those covered by this Regulation, and in particular:

2. Member Sates may, in accordance with Article 73 of the Treaty, continue to grant aids for the transport sector which meet the need of coordination of transport or which represent reimbursement for the discharge of certain obligations inherent in the concept of a public service, other than those covered by this Regulation, such as for example:

Such aid shall be restricted to the research and development stage and may not cover the commercial exploitation of such transport systems and technologies.

deleted

This Regulation shall enter into force on ………………………………*.

∗ Note for OJ: three years following publication of the Regulation in the Official Journal.

This Regulation shall enter into force on ………………………………*.

∗ Note for OJ: 18 months following publication of the Regulation in the Official Journal.

2a. The costs to be included in this calculation must be in line with the costs that an average, well-managed enterprise, with sufficient means of transport to meet its public service obligations, would have incurred in fulfilling these obligations.

3a. The compensation must not exceed the amount corresponding to the net financial effect of the sum of the (positive or negative) impact on the costs and revenue of a public service operator as a result of fulfilling public service obligations, on the basis of the costs that an average, well-managed enterprise, with sufficient means of transport to meet its public service obligations, would have incurred in fulfilling these obligations. In analysing these costs, as far as possible reference should be made to the rates and parameters that would have applied to comparable public service obligations in the context of a tendering procedure pursuant to Article 5(3) or an open tendering procedure pursuant to Directives 2004/17/EC or 2004/18/EC.