Railway Regulatory Authority: The decision on TRAINOSE’s appeal against OSE

The Railway Regulatory Authority issued shortly after the completion of the hearing process, its decision regarding the appeal of the Company TRAINOSE S.A. against the Infrastructure Manager OSE S.A. The complaints of the applicant Company focused on the process of publishing the Network Statement, the infrastructure access contracts and the amount of the railway infrastructure usage fees, which are included in the Network statements for the years 2020 and 2021.

Given that the Network Statement is of great importance for the railway market, as it provides railway companies with the necessary information on the railway infrastructure (access, infrastructure, capacity allocation, services, and charges), the Authority initially investigated the complainants in depth allegations and then called the parties involved for a hearing. Subsequently, on July 1, 2022, the Plenary Session of the Regulatory Authority issued the relevant decision.

The findings of the Authority

The rationale for the decision issued by the Railway Regulatory Authority on the appeal, after the hearing of the parties involved, briefly includes the following findings:

The 2020 and 2021 Network Statements were published by the Infrastructure Manager without having previously followed the prescribed consultation process with the interested parties and especially with the railway undertakings which were licensed during the critical time period.

An Access Agreement to the national railway infrastructure for the years 2020 and 2021 has not been concluded between the applicant and the Infrastructure Manager, although it is a basic condition for TRAINOSE S.A.’s legal activity in this infrastructure.

OSE S.A. has not submitted to the Ministry of Infrastructure and Transport the proposed proposal documented by a technical and economic study regarding the definition of the framework, rules and new charging criteria for the use of the railway infrastructure, according to which the fees are defined equal to the costs incurred directly as a result of running the railway service (direct costs). So that the prescribed ministerial decision is subsequently issued, to define the framework, the rules and the charging criteria, in accordance with article 31§3 subsection d of Law 4408/2016

The decision

The Plenary of the Railway Regulatory Authority unanimously decided the following:

On the 2020 and 2021 Network Statements:

Within 30 days of the notification of the decision, the OSE is invited to carry out a consultation process on the 2020 and 2021 Network Statements, posting drafts of the 2020 and 2021 Network Statements in a special, visible and easily accessible place on its website. It is also requested to notify the plans in question to RAS and the involved railway companies which were licensed at the relevant time, namely STASY, PEARL and RAIL CARGO LOGISTICS (RCLG). The duration of the consultation must not be less than 15 days, nor more than 30 days.

The interested parties will be invited to submit their opinions to the Administrator in any convenient way, and in this context, they will be able to submit any relevant technical and economic study or element. The Authority reserves the right to submit comments on the above draft Network Statements. These comments, as well as the views of all interested parties, must be taken into account by the OSE.

After the end of the collection of the above observations, opinions and data, the OSE is called upon to evaluate them and, subsequently, to draw up the 2020 and 2021 Network Statements in a final form, reforming, where it deems appropriate and/or necessary, the drafts of said Declarations, with special justification, which it posts on the relevant part of its website.

At the latest within thirty 30 days from the completion of the consultation, OSE is invited to publish the final Network Statements 2020 and 2021, posting them in a special, visible and easily accessible place on its website and to notify them without delay to RAS and the railways concerned businesses.

For the current period and until the final formulation and publication of the 2020 and 2021 Network Statements, based on the above-mentioned provisions, the national railway infrastructure usage fees for the specific years (2020 and 2021) are calculated based on the 2019 Network Statement.

After the publication of the Network Statements, the OSE is invited to apply them retroactively for the reference years (2020 and 2021), carrying out any necessary offsets and taking into account any payments of infrastructure usage fees up to that point in time by the railways concerned businesses.

For the conclusion of the OSE-TRAINOSE Network Access Agreement for the years 2020 and 2021

Within 10 days of notification of the Authority’s decision to the parties involved, they are invited to enter into good faith and honest negotiations for the conclusion of an Access Agreement to the national railway infrastructure for the years 2020 and 2021, following a relevant written invitation from the OSE. For these negotiations it is advisable to follow protocols.

Within twenty 20 days, at the latest, from the start of the negotiations, the signature of the relevant Access Agreement should be completed and it should regulate the conditions of the applicant’s access to the network for the years 2020 and 2021.

The parties have the possibility to agree a mechanism for the settlement of any financial debts through offsets, offsets or through another, commonly accepted and scientifically tested methodology, and/or the judicial or out-of-court settlement of these debts.

To draw up a documented framework of rules and criteria for charging user fees

Finally, with this decision, the Authority invites the OSE within three months to draw up and submit to the Ministry of Infrastructure and Transport a documented proposal for the issuance of a ministerial decision regarding the definition of the framework, rules and criteria for charging the user fees of national railway infrastructure, which should be notified to RAS. (Article 31 par. 3 of Law 4408/2016). The proposal must be substantiated by a specific, appropriate and sufficient technical-economic study, which is in accordance with the current legislation, according to which, the fees are set equal to the costs that arise directly as a result of the execution of the railway service (direct costs). .