The Council of State validates the reasoning of ARAFER.  By Benjamin Boiton, Lawyer.


Law n ° 2015-990 of August 6, 2015 for growth, activity and equal economic opportunities, known as the Macron law, upset the passenger road transport sector by liberalizing the transport of passengers on the national territory by coach.

Until this law, bus companies could only offer Franco-French journeys on an international link.

From now on, public road passenger transport companies established in the national territory can provide regular interurban services, without going abroad, provided that a distance of at least 100 kilometers separates two stops. (Articles L.3111-17 et seq. of the Transport Code).

Flixbus, Eurolines, Migratour, Faure coaches, OuiBus, Starshipper and Frethelle are the main bus transport operators in France having established new interurban links since the Macron law.

Any new intercity bus transport service must be declared to the Regulatory Authority for Rail and Road Activities (ARAFER) prior to its opening.

This declaration is published without delay.

Any transport organizing authority (AOT) of one or more public service lines carrying out the same link as that declared by the coach operator without a connection can then oppose or limit the planned service if it considers that it wears a ” substantial damage to the economic balance of the public transport service line or lines likely to be in competition or to the economic balance of the public transport service contract concerned »(L. 3111-18 of the transport code).

The AOT must send ARAFER its proposed prohibition or limitation of the service within two months of the publication of the declaration. ARAFER then has a period of 2 months, which can be extended by one month, to give an assent.

In the absence of an opinion delivered within these time limits, the opinion is deemed favorable.

If ARAFER is not contacted by one or more AOT, the coach transport service can be set up without limitation.

To date, ARAFER has issued 80 opinions relating to draft decisions by French regions aimed at prohibiting or limiting such transport services.

ARAFER’s analysis follows the following steps (ARAFER decision n ° 2016-137 of July 12, 2016):

step 1: existence of an agreed service. This step consists in verifying the existence of a public service line carrying out, without correspondence, either the same link as that declared by the operator or a link similar to the declared link (when the origin and destination cities are at a distance of at most 5 km).

step 2: verification of the conformity of the perimeter requested by the AOT with article L. 3111-18 of the transport code. To assess the impact on the services it organizes, the AOT may retain as its analysis scope the public transport service line or lines likely to be in competition or even the public transport service contract as a whole. The Authority considers that the finest mesh for assessing the existence of a substantial interference with the economic balance can only be an agreed line in its entirety, and not a line segment or a link.

step 3: substitutability analysis. This step consists in analyzing the substitutability between the contracted service and the freely organized service from the point of view of demand. It is a question of assessing whether or not the customers of the contracted service consider that the freely organized service is an alternative transport offer that they could use, and in what proportion. The criteria analyzed by ARAFER are, in particular: the location of the stops served, the proposed journey times, the timetables, the frequencies.

step 4: estimate of the risk of damage to the economic equilibrium. The estimated number of travelers transferring from the contracted service to the new service (step 3) is then valued to express the risk of harm in terms of potential loss of revenue.

step 5: assessment of the substantial nature of the risk of undermining the economic equilibrium. The aim is to assess whether the estimate made in step 4 makes it possible to conclude that there has been a substantial impairment or not.

According to ARAFER, it is a question of comparing the loss of commercial revenue induced by the transfer of customers from the contracted service to the service freely organized by coach with, on the one hand, the commercial revenue generated by the contracted service on the perimeter of ‘analysis (direct traffic revenue) and, on the other hand, the amount of public assistance payable by the AOT on the same perimeter, which covers the difference between all costs, including the margin of the operator, and direct traffic revenues.

For ARAFER, even though the shortfall in revenue from the operation of the contracted service could be significant, the damage to the latter’s economic balance can only be correctly assessed in relation to the commitment. that the transport organizing authority devotes to it, and not in relation to the revenue collected from users which would only be incidental in the financing of the service.

The analysis is done on a case-by-case basis.

ARAFER, for example, considered that an impact of between 5% and 7% of the amount of public assistance paid by the AOT could not be qualified as substantial (opinions n ° 2016-049 and n ° 2016-071).

Conversely, it estimated that an impact of up to 15% to 18% of the amount of public assistance paid by the AOT should be considered substantial (opinion n ° 2016-037, n ° 2016-040 and n ° 2016-042).

The Council of State has ruled three times on the legality of ARAFER’s unfavorable opinions, all relating to draft decisions of the Aquitaine – Limousin – Poitou – Charente region (CE, March 20, 2017, no. 401751, CE, 23 December 2016, n ° s 399081 and 399723).

In these cases, the Region considered that the new services planned by the Starshipper and FlixBus France companies between Brive-la-Gaillarde and Périgueux, Limoges and Brive-la-Gaillarde and, finally, Niort and Poitiers had a substantial impact on the balance. economy of the railway lines that it organizes as part of the TER public service.

ARAFER issued 3 opinions unfavorable to the Region’s projects after comparing the loss of commercial income induced by the transfer of customers from the TER service to the coach transport service with, on the one hand, the commercial income of the service. TER and, on the other hand, the amount of compensation paid by the region to the TER service.

For the Council of State, this reasoning is not questionable insofar as the balance of the TER service depends on ” for a large part of the public subsidies it receives ».

Basically, the Council of State validates the analysis grid of ARAFER and in particular step 5 above.

In the first case, the loss of maximum revenue from the TER service due to the transfer of users to the coach was estimated at 190,000 euros while the public subsidies paid by the region are 13 million euros and the revenues sales of 1.1 million euros.

For the Council of State, the impact of 1.5% on the amount of public assistance paid by the AOT cannot be qualified as substantial.

In the second case, the loss of maximum revenue from the TER service due to the transfer of users to the coach was estimated at 81,545 euros while the public subsidies paid by the region are 3.6 million euros and commercial receipts of 652,000 euros.

The impact on the amount of public assistance paid by the AOT was only 2.3% here.

Finally, in the third case, the loss of maximum revenue from the TER service due to the transfer of users to the coach was estimated at 340,000 euros while the public subsidies paid by the region are 10.7 million euros. , or an impact of 3.2%, and commercial revenues of 4.7 euros.

LEAVE A REPLY

Please enter your comment!
Please enter your name here