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30 AOUT 2013. - Belgian Railway Reform Act (1)

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
PART 1^er. - General provisions
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. For the purposes of this Act, it shall be understood by:
1° Railway Transport Regulation Service: the Rail Transport and Exploitation Service of the Brussels-National Airport, which was referred to in the Royal Decree of October 25, 2004, creating the Railway Transport and Operations Regulatory Service of the Brussels-National Airport, setting its composition as well as the administrative and financial statutes applicable to its members;
2° HR Rail: the public legal entity referred to in section 7;
3° Infrastructure Manager: the autonomous public enterprise, as referred to in Article 3, § 1^erwhich shall act, from the coming into force of the reform referred to in Article 3, § 1^eras manager of railway infrastructure;
4° Royal Decree of 9 December 2004: Royal Decree of 9 December 2004 on the allocation of railway infrastructure capacity and the use of railway infrastructure royalty;
5° National Joint Commission: the National Joint Commission referred to in section 13 of the Act of 23 July 1926;
6° Railway: the autonomous public enterprise, as referred to in Article 3, § 1^erwhich shall act, from the coming into force of the reform referred to in Article 3, § 1^eras a railway company;
7° Transport Convention: the transport convention referred to in Article 8;
8° Act of 23 July 1926: Act of 23 July 1926 on the SNCB-Holding and its related companies;
9° Act of 21 March 1991: Act of 21 March 1991 on reform of certain economic public enterprises;
10° Act of December 4, 2006: Act of December 4, 2006 on the use of railway infrastructure.
PART 2. - Reform of SNCB-Holding, Infrabel and SNCB
CHAPTER 1^er. - Objectives and scope of reform
Art. 3. § 1^er. In order to reorganize the activities and structures of the SNCB-Holding, Infrabel and the SNCB in two autonomous public enterprises having the form of an anonymous public law corporation within the meaning of the Act of 21 March 1991, one of which will act as a manager of the infrastructure and the other will be a railway company, and all the shares that represent the capital will be held by or on behalf of the State, the King may, by
1° to perform, settle or authorize the allocation, transfer or contribution of shares or other securities of the SNCB-Holding, Infrabel and SNCB, the increase or decrease of their capital, the fusion, splitting, the contribution of a branch of activity or of a universality, the dissolution or any other similar operation in relation to these companies,
2° to perform, settle or authorize the allocation, transfer or contribution of goods, rights and obligations between SNCB-Holding, Infrabel and SNCB, as well as to establish the conditions and terms and conditions;
3° to perform, regulate or authorize the constitution of a legal person of public law, called "HR Rail", in the form of an anonymous corporation of public law, to establish and regulate the social object, the legal status, the composition and operation, and the transfer of all the statutory and non-status personnel of the SNCB-Holding to that company, to authorize and regulate the disposition of the matter
4° to amend, supplement, replace or repeal the legal provisions applicable to the SCNB-Holding, Infrabel and SNCB, relating to their legal and fiscal status, their social purpose, their public service missions, their financing, the rules of guardianship and administrative, financial and budgetary control applicable to them, their management contract, the establishment, the operation, the administration and the competence of their committees, and
5°, if applicable, to amend the name of the SNCB-Holding, Infrabel and SNCB and to bring the legal provisions in accordance with these amendments;
6° to ensure the tax neutrality of the transactions referred to in this section;
7° to submit the operations referred to in this section to the principle of the transmission of heritage in a universal capacity and to ensure continuity of the activities concerned, inter alia by the transfer to the railway undertaking, in accordance with the principle of the transmission of heritage in a universal capacity, of the railway licence of the SNCB, referred to in Article 5, 16° of the Act of 4 December 2006, of the security certificate referred to in Article 5, 8° of the Act of 19 December 2006
§ 2. The King may, by order deliberately in the Council of Ministers, take all necessary measures to carry out, settle or authorize the transfer to the State, the privileged shares and the shares of enjoyment of the SNCB-Holding within the meaning of Article 9 of the Law of 23 July 1926.
§ 3. The powers granted to the King in paragraph 1^er, 1°, 2° and 3° and paragraph 2 shall not prejudice, if any, the possibility of carrying out these operations on the basis of the applicable legal and statutory provisions, by decisions of the competent bodies of SNCB-Holding, Infrabel and SNCB.
§ 4. Notwithstanding any contractual provision contrary to or derogatory, the transactions referred to in this provision shall not alter the terms and conditions of the agreements between SNCB-Holding, Infrabel or SNCB or their respective subsidiaries on the one hand and third parties on the other or to terminate such a convention; Such transactions do not give a party the right to amend or unilaterally terminate such a convention.
CHAPTER 2. - Social object and public service missions of the infrastructure and railway manager
Art. 4. § 1^er. The social object of the infrastructure manager will in any case include the following elements for the entire Belgian network:
1° the acquisition, design, construction, renewal, maintenance and management of railway infrastructure;
2° the management of the regulatory and security systems of this infrastructure;
3° the provision to railway companies of services to be provided in accordance with the law;
4° the distribution of the capacity of the available railway infrastructure;
5° the pricing, billing and collection of fees for the use of railway infrastructure and services referred to in the 3°;
6° the acquisition, development, maintenance, management, operation and marketing of computer resources and telecommunications networks.
§ 2. Public service missions of the infrastructure manager include the tasks referred to in paragraph 1^er1° to 5°, as well as other public service missions entrusted to it by or under the law.
Art. 5. The purpose of the railway undertaking shall in any case include the following:
1° the transport of passengers, including the reception and information of its customers, and of goods by rail;
2° the carriage of goods in general and the logistics services provided for this purpose;
3° the acquisition, maintenance, management and financing of railway rolling stock;
4° the exercise of safety and security activities in the railway field;
5° the acquisition, design, construction, renewal, maintenance and management of railway stations, unguarded stop points and their outbuildings;
6° the development of commercial or other activities intended to directly or indirectly promote its services or to optimize the use of its goods.
Art. 6. The public service missions of the railway company include in any case:
1° the internal passenger transport provided by the regular service trains as well as inland service by high-speed trains;
2° the cross-border passenger transport, i.e. the transport provided by the regular service trains for the part of the uncovered national journey under the 1° and to the stations located on the neighbouring networks defined in the management contract;
3° the acquisition, maintenance, management and financing of railway rolling stock for the completion of the missions referred to in 1° and 2°;
4° the benefits that the railway undertaking is required to provide for the needs of the Nation;
5° the acquisition, design, construction, renewal, maintenance and management of railway stations, unguarded stop points and their outbuildings;
6° the conservation of historical heritage relating to railway operations;
7° safety and security activities in the railway field;
8° other public service missions to which it is mandated by or under the law.
CHAPTER 3. - Staff
Art. 7. As part of the authorization granted in accordance with Article 3, § 1^er, 3°, the King may, by order deliberately in Council of Ministers:
1° to perform, regulate or authorize the establishment of a legal entity of public law, known as HR Rail, in the form of an anonymous corporation of public law, either by the constitution of a new corporation or by the transformation of an existing corporation;
2° to determine the social purpose of HR Rail, on the understanding that the social purpose of HR Rail will include at least the provision to the infrastructure manager and to the railway company, and the recruitment, of the statutory and non-statusary personnel required for the performance of their missions and the personnel management activities carried out by the SNCB Holding prior to the coming into force of this reform;
3° to settle the allocation of shares of HR Rail, on the understanding that at least two percent of the shares that represent social capital are allocated to the State and that the balance of shares that represent social capital is allocated equally to the infrastructure manager and to the railway company;
4° fixing the voting rights attached to the shares of HR Rail, on the understanding that, unlike the part of the social capital they represent, the shares that are held by or on behalf of the State shall be entitled to sixty percent of the votes, the shares that are held by the infrastructure manager shall be entitled to twenty percent of the votes and the shares held by the railway company shall also be entitled to twenty percent of the votes;
5° adjust the constitution, operation, composition and skills of HR Rail's management bodies, on the understanding that the board of directors will be composed of a president appointed by Royal Decree deliberated in the Council of Ministers because of its particular competence in social relations, the managing director of the infrastructure manager, the managing director of the railway company and the Director General of HR Rail;
6° to establish the legal status of HR Rail as a legal entity of public law in the form of an anonymous public law corporation that does not constitute an autonomous public enterprise within the meaning of the Act of 21 March 1991, its public service missions, its financing, its tax system, its operation and the rules of administrative, financial and budgetary control applicable to it;
7° Complete and regulate the transfer of all the statutory and non-status personnel from the SNCB-Holding to HR Rail;
8° adjusting staff availability by HR Rail to the infrastructure manager and to the railway company;
9° adjust the constitution, operation, composition and skills of the HR Rail Staff Management Coordination Committee, on the understanding that this Committee will be composed of a Chair who is the Director General of HR Rail, the Chief Human Resources Officer with the Infrastructure Manager, the Head of Human Resources Management with the railway company and the Deputy Director General of HR Rail;
10° to regulate the rights and mutual obligations of HR Rail, the infrastructure manager and the railway company;
11° amend the composition of the National Joint Commission to include twenty-six members, namely:
(a) three members appointed by the board of directors of HR Rail, including in any case the chairman of the board of directors of HR Rail, who shall be the president of the National Joint Commission, and the Director General of HR Rail;
(b) five members appointed by the Board of Directors of the Infrastructure Manager;
(c) five members appointed by the board of directors of the railway undertaking;
(d) a member appointed by each inter-professional organization of workers, incorporated at the national level and represented at the National Labour Council, which is also represented in the infrastructure manager, railway company and HR Rail;
(e) other members appointed by trade union organizations recognized in the sense of the status of HR Rail personnel prorated to the number of their contributors within the infrastructure manager, the railway company and HR Rail combined;
12° to regulate the staff skills of HR Rail, the infrastructure manager and the railway company, including social dialogue;
13° amending, supplementing, replacing or repealing all legal provisions relating to personnel on the understanding that the status of HR Rail personnel, including union status, continues to emerge from the competence of the National Joint Commission and remains applicable during the provision.
CHAPTER 4. - The transport convention
Art. 8. § 1^er. The infrastructure manager and the railway company are working together to carry out their public service missions, among other things with a view to providing a one-time and quality service to passengers, and conclude a transport agreement.
§ 2. The King shall, by order deliberately in the Council of Ministers:
1° substances that are regulated by the transport agreement;
2° the procedure to be followed for the conclusion or amendment of the transport agreement, on the understanding that the transport agreement may in any case be concluded or amended only after the non-binding opinion of the Rail Transport Regulatory Service, that it may only enter into force after the approval of the King, by order deliberately in the Council of Ministers, and that a mechanism shall be provided for setting the contents of the transport agreement referred to in 1
3° the dispute settlement mechanism between the infrastructure manager and the railway company concerning the execution of the transport agreement, provided that the parties may submit the dispute to the Rail Transport Regulatory Service which will adopt a reasoned decision.
PART 3. - Rail regulations
CHAPTER 1^er. - The role of the regulator
Art. 9. § 1^er. The King extends, by order deliberately in the Council of Ministers, the legal and regulatory missions of the Rail Transport Regulating Service, so that the Rail Transport Regulating Service fulfils in any case the tasks described in paragraphs 2 to 4.
§ 2. In carrying out its advisory mission, the Rail Transport Regulation Service shall, prior to the conclusion or amendment of the transport agreement, render a non-binding reasoning opinion regarding the content of the transport agreement.
§ 3. In carrying out its inspection mission, the Railway Transport Regulation Service shall:
(a) the Minister shall, at the request of the Minister who has the Public Companies in his or her powers, conduct an annual audit of the performance of the transport agreement;
(b) the Minister shall prepare, at the request of the Minister who has the regulation of rail transport in his or her duties, an annual audit of the performance of the method of recording the disturbances used by the infrastructure manager, as referred to in section 31/2 of the Royal Order of December 9, 2004;
(c) it monitors compliance with the non-discrimination rules referred to in Article 10.
§ 4. In carrying out its administrative dispute resolution mission, the Rail Transport Regulatory Service makes individual decisions based on disputes concerning the execution of the transport agreement, at the request of the infrastructure manager or railway company.
CHAPTER 2. - Rules for services to be provided to railway enterprises
Art. 10. The King shall, by order deliberately in the Council of Ministers:
1° the rules that give railway companies access to stations, unguarded stop points and suitable locations provided in the stations for ticketing services in a non-discriminatory manner;
2° the rules that give railway companies access to fixed passenger communication facilities, such as dock posters and sonorization, in a non-discriminatory manner;
3° the rules that allow railway companies, in a non-discriminatory manner, to be present in the "traffic control" and in the signalling stations of the infrastructure manager and that establish the mechanism by which the infrastructure manager carries out, in a non-discriminatory manner, the priorities established by railway companies concerning their own trains, except for reasons of operational safety or in case of conflict with the rules of priority set by the public authority.
PART 4. - Common provisions
Art. 11. Orders adopted under this Act may amend, supplement, replace or repeal existing legal provisions.
Orders referred to in paragraph 1^er cease to produce their effects if they have not been confirmed by law within 12 months of their effective date. Confirmation is retroactive to that date.
The powers granted to the King by this Article shall expire 1^er June 2014. After that date, orders made under these powers may only be amended, supplemented, replaced or repealed by a law.
Promulgate this Act, order that it be put on the State Seal and published by the Belgian Monitor.
Given in Brussels on 30 August 2013.
PHILIPPE
By the King:
The Minister of the Interior,
Ms. J. MILQUET
Minister of Public Enterprises,
J.-P. LABILLE
The Secretary of State for Mobility,
Mr. WATHELET
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
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Note
(1) Session 2012-2013.
House of Representatives:
Doc 53-2893 - 2012/2013:
Number 1: Bill.
No. 2 and No. 3: Amendments.
Number 4: Report.
No. 5: Text corrected by the commission.
No. 6: Text adopted in plenary and transmitted to the Senate.
Full report: 10 July 2013.
Senate
Doc 5-2202 - 2012/2013:
No. 1: Project transmitted by the House of Representatives.
No. 2: Amendments.
Number three: Report.
No. 4: Decision not to amend.
Annales of the Senate: July 17 and 18, 2013.