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EU Commission proposal for a draft Regulation on the use of railway infrastructure capacity in the Single European railway area

I  Introduction

In conjunction with the adoption of the Greening Freight Transport Package, on 11 July 2023 the European Commission published the draft Regulation on the use of railway infrastructure capacity in the Single European railway area (“Infrastructure Capacity Regulation”; hereafter “the Regulation”). Although the Regulation was adopted in the Greening Freight Transport Package, it concerns passenger as well as freight traffic.

One of the aims of this European Commission initiative is to support the industry-driven “TTR project”. The “Redesign of the International Timetabling Process (TTR)” project was initiated by RailNetEurope (the European association of infrastructure managers) as well as Forum Train Europe (association of railway undertakings for the international production planning process). It aims to redesign the planning and allocation process for capacities and train paths, and will be supported by common IT systems which will be used across Europe.

During the TTR project development over the past few years, it became clear that the current legislation (especially Directive 2012/34/EU) contains procedures that do not completely match the process as described by TTR. The European Commission has been closely monitoring the TTR project and was willing to support the project implementation. With the new Regulation, the Commission is now creating the necessary framework to manage rail infrastructure capacity and traffic more efficiently and to improve quality of service to the benefit of infrastructure managers and railway undertakings. For the European Commission, the new Regulation is important to bring more traffic onto the rail network and thus deliver the Green Deal.

Once the new Regulation becomes applicable, some articles of Directive 2012/34/EU will be deleted as those articles concern the topic “allocation of infrastructure capacity” which will be governed by the Regulation in future. At the same time, Regulation 913/2010 (Rail Freight Corridor Regulation) will be repealed completely since important – but not all – elements will be carried over into the new Regulation.

The draft Regulation will now be considered by the European Parliament and the Council in the ordinary legislative procedure. Therefore, the Commission's proposal is still expected to be adapted.

In the Commission’s draft text, it is currently envisaged that it should apply from 2026 but that important elements will apply later, i.e. from December 2029.

II Different elements of the proposal

General Provisions (Chapter I)

The general scope of application of the Regulation is in line with Directive 2012/34/EU. However, in parts, the Regulation only refers to the TEN-T[1] network (e.g. for strategic capacity planning – see below), on which application is mandatory. The Regulation covers domestic and international rail services.

The Regulation also gives new definitions that are important for the proposed Regulation. In particular, the definition of “force majeure” (Article 4.1) diverges from that known in other international legislation such as the CUI Uniform Rules. The definition of "force majeure" is important as in such circumstances the obligation under the Regulation of railway undertakings (RUs) and/or infrastructure managers (IMs) to pay compensation for capacity allocated but not used or modified is waived. In addition, the definition of “multi-network rail services” (Article 4.10) which draws on the definition of “international freight/passenger service” in Directive 2012/34/EU also seems too narrow to fulfil the goal of the new Regulation.

Management of infrastructure capacity (Chapter II)

The proposed Regulation provides for a new way of managing infrastructure capacity by infrastructure managers vis-à-vis applicants/RUs compared to the way it is currently done under Directive 2012/34/EU.

In future, infrastructure capacity should be planned earlier and more strategically. In addition, especially for international traffic it should be better coordinated between IMs.

Three steps are described for the process which IMs will follow in future when they manage infrastructure capacity vis-à-vis RUs:

Strategic capacity planning à scheduling and allocation of capacity à adaptation and rescheduling of capacity.

An important new element is that an obligation will exist for IMs to develop a European framework for capacity management (Article 6). This framework will define common principles and procedures for the management of rail infrastructure capacity and for coordination between infrastructure managers, railway undertakings and other applicants, rail service facility operators and other operational stakeholders. This framework should help to achieve more harmonised processes across the EU.

The capacity planning process as described in the Regulation takes over the steps that were developed by the TTR project: the capacity strategy setting out expected future developments of the infrastructure (e.g. how much infrastructure work is planned and therefore capacity is missing for RUs) will be defined at a very early stage. Based on this, a capacity model must be developed which reflects which shares for which transport services and infrastructure work are provided. Based on this, a supply plan is developed that finetunes the available capacity per day and ultimately serves as a basis for the allocation of capacity vis-à-vis the railway undertakings. Railway undertakings will be consulted concerning all these planning steps.

These new planning steps should help to make better use of the available (and often scarce) capacity and also – especially in case of infrastructure works – lead to more coordination between infrastructure managers, which is currently not the case and causes problems, especially for international services.

While under current European legislation it is mainly not foreseen to set aside good-quality capacity for those railway undertakings that need capacity on a more spontaneous and flexible basis, the new Regulation provides the possibility to reserve capacity for the needs of such railway services (especially freight traffic) via the so called “rolling planning” product. In future, the allocation of capacity for railway undertakings can take place via the annual allocation process (which is already established today and allows RUs to request capacity via earlier deadlines before the timetable change and trains are running), via the rolling planning process (capacity will be set aside by the infrastructure manager and RUs can also request this capacity at a later stage), or via ad hoc requests (which are already known today and allow RUs to request train paths at any time).

Furthermore, “framework agreements”, in which RUs and IMs agree over a longer period that a dedicated volume of capacity (not a specific train path) is allocated will still be governed by the new Regulation (see Article 31). While these framework agreements already existed under Directive 2012/34/EU (Article 42), they are not obligatory under the current legislation and only very few IMs offer them to RUs. Under the draft Regulation, they must be offered by IMs in the event that RUs ask for them.

The Regulation also provides as a new element that RUs and IMs pay compensation (as a penalty, Article 40) on the basis of reciprocity if they do not fulfil their obligations, i.e. change/cancel the allocated capacity, or if the RU does not use the capacity granted by the IM. It should be noted that such compensation does not have to be paid in the event of "force majeure". For RUs it is important to know that a cancellation on one network is considered as cancellation across the whole route if it is a cross-border train for which the capacity has been allocated ("right to multi-network capacity"). RUs and CIT in particular have been advocating this for some time, as in the past RUs often had to pay charges for the whole cross-border journey even if a section was cancelled due to force majeure and subsequently they were unable to use the entire route.

Traffic disruption and crisis management (Chapter III)

The Regulation also introduces obligations concerning traffic management, disruption management and crisis management, and requires infrastructure managers to jointly develop a European framework for cross-border coordination on these issues. Specific provisions ensure that in a crisis, Member States can apply emergency measures for the management of rail capacity and traffic.

Performance Review (Chapter IV)

The Regulation introduces a performance review framework. To improve the performance of rail infrastructure services in the EU, the European Network of Infrastructure Managers (see Chapter V below) is given the task of monitoring different aspects of performance and producing annual public reports on performance. A newly created Performance Review Body, set up by the European Commission, will give advice and recommendations on performance-related matters. This new Performance Review Body is inspired by the aviation sector, where such a body already exists in the form of an “elder statesmen advice body”. Members of this body may not necessarily be from the IM side but should also cover the interests of infrastructure users.

Organisational structure: European Network for Coordination (Chapter V)/u>

The Regulation contains certain rules regarding the organisational structure of the infrastructure managers’ coordination. ENIM (the European Network of Infrastructure Managers), which already exists in accordance with Art. 7f of Directive 2012/34/EU (also known as PRIME), will be strengthened.

ENIM shall consist of all IMs from the TEN-T network, with the European Commission acting as observer concerning the tasks ENIM takes on under the new Regulation. ENIM shall adopt the European framework for capacity management (see also Chapter II) which defines common principles and procedures for the management of rail infrastructure capacity and covers coordination between infrastructure managers, railway undertakings and other applicants, rail service facility operators and other operational stakeholders. ENIM will also prepare and adopt a European framework for the cross-border coordination of traffic management, disruption management and crisis management and the European framework for performance review.

It should be noted that ENIM seems to have no legal personality, so its members (i.e. the individual IMs) will be responsible to meet the obligations of ENIM under the new Regulation. In addition, it seems that decisions taken by ENIM will not be legally binding. However, if IMs do not follow rules established at ENIM level, in many cases the European Commission will have a possibility to “step in” and adopt an implementing act.

ENIM will have to appoint an impartial and competent entity designated as a Network Coordinator which acts on behalf of ENIM and prepares ENIM documents and meetings. It will also act as contact point for RUs concerning the tasks falling under the Regulation. It is not explicitly mentioned that RailNetEurope is envisaged to be this Network Coordinator, but ENIM will decide on this, and the consent of the European Commission is needed.

The Regulation also mentions that infrastructure managers shall ensure that capacity management and traffic management processes within the scope of this Regulation are implemented by means of digital tools and digital services. Such requirements are also part of the “TTR” sector project which works on the DCM (Digital Capacity Management).

Regulatory oversight (Chapter VI)

The Regulation contains provisions on the regulatory oversight of capacity and traffic management, expanding the tasks and responsibilities of the European Network of Rail Regulatory Bodies (ENRRB) which was already known under Directive 2012/34/EU (Article 57) with respect to EU and cross-border matters.

nina.scherf(at)cit-rail.org

[1] Trans-European Transport Network (TEN-T): https://transport.ec.europa.eu/transport-themes/infrastructure-and-investment/trans-european-transport-network-ten-t_en.
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