The EU’s Capacity Regulation was anticipated to bring the Single European Railway Area a step closer. However, with Member States working to keep as much power as possible concentrated at the national level, the regulation risks becoming worthless even before it is implemented.
Twelve rail associations sent an open letter to the negotiating parties at EU level. Those include bodies at the European Commission, the Parliament and the Council.
In their letter, the associations warn that the current state of the Capacity Regulation will leave the European network fragmented and risks leaving rail freight behind. They highlight the importance of the regulation to provide more and better-quality train paths for rail freight, an industry that is dealing with rising prices and falling volumes.
Many of the problems identified with the Capacity Regulation concern an age-old challenge for European policy-making: the tug of war between transferring competencies to the European level versus keeping decision-making power at the national level. The twelve associations believe that too much authority will stay with the Member States with the current version of the Regulation.
No equal footing with the road
“In its current form the Regulation has neither the provisions nor the institutions to provide for the harmonised European capacity management needed to set rail freight on equal footing with road transport”, they write. “The Regulation lacks bindingness to be effective on crucial issues.”
For example, the “European Frameworks” that should harmonise capacity management, traffic and crisis management and performance review of infrastructure managers (IMs) are left to be agreed between the national IMs. However, those things could have been done by IMs even without the Regulation, but they chose not to do so, the letter explains. The Regulation as it is now will not change that.
At the same time, Member States could overrule such agreements between IMs, effectively allowing for opt-outs. “Allowing these extensive possibilities for circumventing harmonisation puts the aim that Member States want to achieve with this Regulation at risk: Taking the necessary steps towards a Single European Railway Area”, say the associations.
Not enforceable at EU level
In similar fashion, the contents of the European Frameworks are not European Law and are not enforceable at a European level. In other words, all capacity for enforcement will remain with the Member States, without any vote or tools for binding influence for customers of the IMs. The twelve associations identify other issues as well. The Regulation now does not include a harmonisation of track access charges or compensation for delays and cancellations, for instance.
The associations put forward a number of proposals to improve the commercial conditions for rail freight companies, among others:
- Non-usage costs: Railway undertakings already face strong economic disincentives when they pay full track access charges for unused capacity. Non-usage should not incur additional costs.
- Penalties for IMs: Infrastructure managers should face penalties from the moment capacity is allocated, including for temporary restrictions beyond their control, as these still impact operators bound by customer contracts.
- Consistent penalties: Penalties must be meaningful and consistent across the entire multi-network capacity right, calculated as a flat per-kilometre rate per market segment rather than linked to track access charges.
- Fair scope: Penalties should apply to the full transport route, not just the section managed by the responsible infrastructure manager, ensuring system-wide fairness.
- Removing penalty caps: Capping penalties for smaller infrastructure segments undermines incentives; such caps should be removed.
- Compensation rights: Penalties must not exclude the right to seek compensation for economic losses caused by changes to allocated capacity rights.
