As part of the preparatory work, IDFM is obliged to apply the provisions of Article 5 bis of European Regulation No. 2016/2338 of 14 December 2016 55 [1] on railway rolling stock integrated into the PSO Regulation [2].
These provisions provide that:
'1. In anticipation of the launch of a competitive tendering procedure, the competent authorities shall assess whether measures should be taken to ensure effective and non-discriminatory access to adapted rolling stock. This assessment shall take into account the presence on the relevant market of rolling stock leasing companies or other market participants offering the rental of rolling stock. The evaluation report is made public.
2. Competent authorities may decide, in accordance with their national law and in compliance with State aid rules, to take appropriate measures to ensure effective and non-discriminatory access to suitable rolling stock. These measures may include:
(a) the acquisition by the competent authority of rolling stock used for the performance of the public service contract with a view to making it available to the selected public service operator at the market price or under the public service contract pursuant to Article 4(1)(b) of Article 6, and, where applicable, the annex;
(b) the provision by the competent authority of a guarantee for the financing of the rolling stock used for the performance of the public service contract at the market price or under the public service contract pursuant to Article 4(1)(b) of Article 6 and, where applicable, the Annex, including a guarantee covering the residual value risk;
(c) a commitment made by the competent authority in the public service contract to take over the rolling stock at the market price and on predefined financial conditions at the end of the contract; or
(d) cooperation with other competent authorities in order to have a larger fleet of rolling stock.
3. If the rolling stock is made available to a new public transport operator, the competent authority shall include in the documents for the call for competition all the information at its disposal on the cost of maintaining the rolling stock and on the physical condition of the rolling stock .'
In this respect, it follows that the authorities organising regional public rail passenger transport services are required to produce, prior to the launch of the competitive tendering procedure for the operation of these services, a report assessing the conditions of access to rolling stock of potential future candidates.
This obligation was reiterated by the Transport Regulatory Authority (ART) in its opinion of 15 November 2018 [3]. It stated that the investments necessary for the acquisition and maintenance of rolling stock, because of their levels and their irrecoverable nature, may constitute barriers to entry for access to the market for rail passenger transport services under agreement.
Therefore, ART stressed the importance of producing and publishing such a report.
It should also be noted that the carrying out of such an assessment is an obligation that has been imposed immediately since 14 December 2016. Indeed, as a reminder, in accordance with Article 288 of the Treaty on the Functioning of the European Union and in application of settled case law [4], the regulation of general application is directly applicable in all Member States.
Nevertheless, such an assessment can be described as a recent obligation insofar as, as all Member States are not at the same stage of opening up their public rail passenger transport services to competition, there are, to our knowledge, no other examples of the publication of an evaluation report of this type in the European Union.
It is in this context that this report is part of this report and that it is intended to be widely publicized both on the Ile-de-France Mobilités website, accessible to all, and through the notice of public call for competition (AAPC) in order to bring to the attention of candidates the evaluation carried out by the organizing authority on the access of rolling stock.
It should be noted that the problem of asbestos trains is not detailed in this analysis. Studies are underway for these train fleets and will be the subject of a specific analysis in view of their particular characteristics.
I – Historical and contextual background
I.1 The general framework
With a view to the opening up of rail passenger transport to competition, as enshrined in the Fourth Railway Package and transposed into national law by the law for a new railway pact [5], the organising authorities concerned have been considering the procedures for preparing the competitive tendering procedure for several months.
Indeed, the law on the organisation of inland transport (LOTI) of 1982 [6] ratified the monopolistic status of the SNCF by qualifying it as the only company able to provide rail services for inland passenger transport.
Therefore, public rail passenger transport services are under agreement [7] with the SNCF.
In view of the prospects for opening up the market for rail services, the organising authorities concerned shall prepare for the opening up of competition for the public passenger transport services which they organise.
This is the case for the regions and Ile-de-France Mobilités in the Ile-de-France region, which are now mobility organising authorities, and which provide public rail passenger transport services of regional interest.
With regard more specifically to Ile-de-France Mobilités, it should be noted that, in accordance with Article L. 1241-1 of the Transport Code, it is the competent authority in particular to organise regular public passenger transport services, including rail transport.
In this context, SNCF Voyageurs enjoys exclusive rights on the Ile-de-France territory which will soon be called into question in view of the timetable for opening up to competition which has been set by the law for a new railway pact [8] and codified in Article L. 1241-7-1 of the Transport Code.
This article provides that:
"I.- For the rail passenger transport services referred to in Article L. 1241-1 created between 3 December 2019 and 24 December 2023, Ile-de-France Mobilités may, by way of derogation from Article L. 2141-1:
1° Provide these services itself or award public service contracts relating to these services under the conditions laid down in Article 5(2) of Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road, and repealing Council Regulations (EEC) No 1191/69 and (EEC) No 1107/70;
2° Award public service contracts relating to these services after advertising and competitive tendering.
Any agreement entered into between Ile-de-France Mobilités and SNCF Voyageurs before 25 December 2023 pursuant to Article L. 2141-1 shall continue until the term it has set, its duration not exceeding ten years.
II.- The performance of the rail passenger transport services referred to in Article L. 1241-1 created before 3 December 2019 shall continue within the framework of the agreements in force and in accordance with the rules applicable on that date.
It ends:
1° For rail transport services that are not part of the regional express network, on a date set by decision of Ile-de-France Mobilités, between 1 January 2023 and 31 December 2032;
2° For rail transport services that are part of the regional express network, with the exception of rail transport services using part of their route the same lines as the guided transport services mentioned in 3° of II of Article L. 1241-6, on a date set by decision of Ile-de-France Mobilités, between 1 January 2033 and the date mentioned in the same 3°;
3° By way of derogation from 2° of this II, for the services mentioned in the same 2° operated on lines whose infrastructure has been extended and put into service from 1 January 2018, on a date set by decision of Ile-de-France Mobilités, between 1 January 2025 and the date mentioned in 3° of II of Article L. 1241-6;
4° For rail transport services which are part of the regional express network using for part of their route the same lines as the guided transport services mentioned in 3° of II of Article L. 1241-6, on the date mentioned in the same 3 ».
In this respect, it should be noted that the questioning of the exclusive rights currently enjoyed by SNCF Voyageurs to operate public rail passenger transport services in the Ile-de-France region will have many operational and practical consequences given the contractual and financial relations maintained between the organising authority and the carrier.
Indeed, Ile-de-France Mobilités, like all the other regional organising authorities, allocates public contributions to SNCF Voyageurs in three areas:
- An operating subsidy;
- Compensation for social tariffs;
- An investment subsidy for rolling stock.
Thus, in order to evaluate the terms of access to rolling stock for potential candidates for the competitive bidding procedure for the operation of passenger rail transport lines in the Ile-de-France region, it is first necessary to recall the terms and conditions for the acquisition, financing and allocation of this rolling stock before discussing the specificity of the rolling stock fleet in the Ile-de-France region.
I.2- Acquisition and financing of rolling stock
Until now, orders for rolling stock have been placed through national contracts concluded by SNCF Voyageurs, the rail operator, and the rolling stock manufacturers.
With regard to the Ile-de-France region in particular, specific orders have been placed by SNCF Voyageurs in view of the particularities of the rolling stock fleet.
The acquisition of the Ile-de-France trains, financed by IDFM, is carried out either within the framework of contracts dedicated to the Transilien activity or within the framework of national contracts concluded between SNCF Voyageurs, the rail operator, and the manufacturer. It allows new orders for rolling stock under the conditions provided for therein (activation of units, etc.).
It therefore appears that SNCF Voyageurs defines the technical specifications, established on the basis of an expression of needs by IDFM, orders the rolling stock through the acquisition contract from a manufacturer, ensures the follow-up and execution of the contract, takes delivery of the trains and is thus, ultimately, the owner.
Financing agreements have been signed between IDFM and SNCF Voyageurs, which is designated as the contracting authority for the rolling stock acquisition operations.
For several years, the subsidies paid by Ile-de-France Mobilités have covered the entire cost of acquiring the trains. Previously, the acquisition of the rolling stock was financed by Ile-de-France Mobilités, partly by subsidies, and partly by the railway operator, in view of its financing capacity released by the operating contract binding it to the organising authority.
Once the rolling stock has been delivered, it is assigned to the operation of a line under the terms of the operating contract concluded between Ile-de-France Mobilités and SNCF Voyageurs.
I.3- The specificity of rolling stock in the Ile-de-France region
In 2009, the STIF Board of Directors adopted a Railway Rolling Stock Master Plan (SDMR) defining the development trajectories for the fleet by 2040.
In 2016, by deliberation of the Board of Directors on 30 March 2016, Ile-de-France Mobilités decided to launch an ambitious policy to accelerate the renewal and renovation of rolling stock in the Ile-de-France region in order to significantly rejuvenate the current fleet by 2021 and beyond.
This vast investment plan also covers the adaptation of the infrastructure and maintenance facilities necessary for the use of new trains and the modernisation of the industrial tool. The specificities of the railway network in the Ile-de-France region (heights and lengths of platforms, tunnel gauges, electrical sizing), the high transport requirements of the trains and a search for homogenization of the fleet mean that many series of trains have a design dedicated to the Ile de France.
In 2016, 13 different series of rolling stock running on the Transilien and RER lines were identified in the workforce of rail operators in the Ile-de-France region.
The sizing of rolling stock in the Ile-de-France region appeared to be a particularly important criterion to be taken into account in order to cover maintenance needs and hazards due to possible incidents in operation, but also in order to produce the reference offer in optimal conditions.
Indeed, in 2016, the rolling stock fleet in the Ile-de-France region was around 1,200 railway trains. To date, a projection of the volume of the rolling stock fleet can be made with regard to the financing acquired [9].
Thus, following the deliberation of the STIF Board of Directors on 30 March 2016, transport operators in the Ile-de-France region have submitted scenarios for the evolution of the rolling stock fleets, including technical, timetable and financial elements, with the aim of enabling the renewal of the majority of the rolling stock fleet by 2021 and to take, therefore, all the decisions allowing the implementation of these scenarios.
It is in this context that, in a deliberation of 13 July 2016, the STIF approved the investment operations to be launched by the operators in order to renew the rolling stock on the lines of the Transilien network and lines A and B co-operated by SNCF-Mobilités and RATP.
II – Appropriate measures to ensure effective and non-discriminatory access to rolling stock
II.1-The measures proposed by the PSO Regulation
In view of what has been explained above, in order to ensure effective and non-discriminatory access to rolling stock and to avoid restricting free competition between carriers likely to apply for the competitive tendering procedure for the operation of public regional rail passenger transport services, Article 5 bis of the European regulation known as the PSO proposes the implementation of various measures which can be summarized as follows:
- The acquisition of the rolling stock by the transport organising authority, which then makes it available to the public transport operator;
- The acquisition of rolling stock by the public transport operator with the help of a financial guarantee from the transport organising authority;
- The acquisition of the rolling stock by the public transport operator on the condition that it is taken over by the transport organising authority at the end of the operating contract at market price;
- Cooperation between several transport organising authorities, which can take the form of the creation of a ROSCO to acquire and/or manage the rolling stock fleet and pool it.
The purpose of the evaluation report is therefore to analyse, in the light of the national context and the legislative arsenal, the appropriate measures to be implemented in order to facilitate access to rolling stock for the benefit of transport operators under non-discriminatory conditions and in compliance with the principle of free competition.
II.2-The measure whose implementation is facilitated by the legislator
However, in view of the historical context and the current methods of acquisition, ownership and use of rolling stock set out above, it appears that, among the various measures likely to be put in place, one must be largely preferred.
This is all the more so since its implementation seems to be largely facilitated by the law for a new railway pact [10].
Indeed, in its latest version, as amended by the order of 3 June 2019 [11], Article 21 of the Law for a New Railway Pact provides that the rolling stock usedby the railway operator, in the context of the operating tasks entrusted to it, is to be transferred to the organising authority concerned, at its request and within a reasonable period of time that it sets.
This transfer is made in return for the payment of compensation by the organising authority corresponding to the net book value, net of any subsidies received.
Accordingly, it follows that all the rolling stock used by SNCF Voyageurs in the context of the performance of its contract for the operation of public rail passenger transport services on the national rail network may be the subject of such a transfer of ownership at the simple request of the organising authority concerned.
II.3-The opportunity to implement other measures
a- Dismantling
In the event that the organising authority does not request the transfer of ownership of the rolling stock concerned, Article 21 provides that it must finance the dismantling of the rolling stock.
Indeed, in view of the wording used in Article 21 for a new railway pact, it appears that, in the absence of requesting the transfer of ownership of the rolling stock, the organising authority must "bear the costs of dismantling the rolling stock that it does not take back in proportion to the duration of use of this equipment within the framework of the public service contracts within its jurisdiction, after deduction of the provisions that have already been invoiced to him".
However, insofar as the park has recently been renewed, such an option is not appropriate for the organising authority from an organisational, legal and financial point of view.
Indeed, this would lead to the dismantling of trains adapted to the Ile-de-France network and to the fact that Ile-de-France Mobilités has subsidized, sometimes recently, the acquisition of rolling stock while also financing the costs of dismantling this same rolling stock, which would constitute a false economic maneuver.
In addition, if Ile-de-France Mobilités were to dismantle the rolling stock, an alternative solution would then have to be found so that the future railway operator would have the appropriate rolling stock and determine the terms and conditions for the acquisition and financing of the rolling stock that would be necessary to operate the passenger rail transport lines open to competition.
b- Acquisition of rolling stock by the railway operator
In such a case, it could have been envisaged to require the new railway operator to acquire the rolling stock necessary for the operation of the lines on condition that they be taken over by Ile-de-France Mobilités at the end of the operating contract and at the market price.
However, as explained above, given the specific size of the rolling stock fleet in the Ile-de-France region and the recent renewal of this fleet, it appears that the full acquisition of such a fleet of equipment by the new operator appears to be both unrealistic and very costly.
That purchase cost is likely to constitute a barrier in the context of the competitive tendering procedure which would have an impact on the costs of the operating contract.
Finally, once again with regard to the sizing of the Ile-de-France rolling stock fleet, it seems that the possibility of calling on rolling stock rental companies or players able to rent this rolling stock is a particularly restrictive and difficult solution to put in place since it would necessarily imply calling on several rental companies or players in order to fully reconstitute a fleet of rolling stock likely to ensure the service offer, provided that it is compatible with the specificities of the Ile-de-France network.
c- The use of a ROSCO
The same applies to the hypothesis of having recourse to a ROSCO insofar as such a structure for cooperation between organising authorities in order to acquire or manage the rolling stock fleet does not yet exist in France.
Thus, while the opportunity to use a ROSCO may legitimately arise, the fact remains that the creation and commissioning of such a structure could take several years, so that, as it stands, given the calendar constraints imposed by the opening up to competition, it does not appear possible to use such an entity.
Under these conditions, the solution sought is that of transferring ownership of the rolling stock to Ile-de-France Mobilités, in accordance with the mechanism provided for by law for a new railway pact, and then making it available to the new railway operator.
[1] REGULATION (EU) 2016/2338 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 14 December 2016 amending Regulation (EC) No 1370/2007 as regards the opening of the market for domestic passenger transport services by rail
[2] REGULATION (EC) No 1370/2007 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) No 1191/69 and (EEC) No 1107/70
[3] Opinion No. 2018-079 of 15 November 2018 on the draft ordinance containing various provisions relating to the management of railway infrastructure and the opening up of rail passenger transport services to competition
[4] CJEU, 10 October 1973, Fratelli Variola S.p.A. v. Italian Finance Administration.
[5] Law No. 2018-515 of 27 June 2018 for a new railway pact
[6] Law No. 82-1153 of 30 December 1982 on the orientation of inland transport
[7] Contracted passenger services include activities that receive financial support from transport organising authorities: TER trains financed by the regions, Transiliens by Île-de-France Mobilités and Intercités by the State.
[8] Ibid.
[9] Cf. Appendix 1
[10] Law No. 2018-515 of 27th June 2018 for a new railway pact
[11] Ordinance No. 2019-552 of 3 June 2019 containing various provisions relating to the SNCF group
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Appendix 1: Projected workforce of the different types of rolling stock in 2024
Type of rolling stock | Assignment Line | Projected headcount at the beginning of 2024
MI2N | RER E | 53
Z2N | RER C, RER D, P and U lines | 336
RER NG | RER D, RER E | 80
REGIO2N | RER D, lines P and N | 145
NAT | H, K, P, L and J lines | 346
Dualis | Lines P, T4, T11, T12, T13 | 75
AGC | P Line | 13
The number of staff presented is estimated and may be subject to contingencies in view of the renovation or acquisition operations in progress.