Developments in rail sector liberalization

Inés de Alvear Trenor, Julio López Quiroga.

30/06/2005 International Law Office


Background

The Rail Sector Act entered into force on December 31 2004. The act implements three EU Railway Infrastructure Directives (12/2001/EC, 13/2001/EC and 14/2001/EC).

As a first step towards the implementation of the act, the following legislation also entered into force on December 31 2004: (i) the Rail Sector Regulations, which complement the act; and (ii) the articles of association of public operator Renfe-Operadora (which provides passenger and cargo transport services) and of the rail infrastructure manager (ADIF).

The act and regulations establish the framework for the incorporation of private railway undertakings into an open competition market. The regulations were due to be complemented by the enactment of several ministerial orders on the following elements:

  • ADIF's network statement;
  • ADIF's allocation capacity;
  • infrastructure costs; and
  • the allocation of Renfe-Operadora's current assets.

Recently enacted ministerial orders (FOM/897/2005 and FOM/898/2005) establish the procedure to approve network statements, the terms and conditions for ADIF's allocation of capacity to railway undertakings, and infrastructure charges.

Network Statements

Network statements provide a description of each network. The statements will be prepared and approved by ADIF, and subsequently by the Ministry of Development.

Network statements will include extensive information on the networks, including the following:

  • a general description of the legal framework and procedure for the application of capacity allocation;
  • safety requirements;
  • technical specifications;
  • criteria for the allocation of capacity in the relevant network;
  • additional and auxiliary services; and
  • the tax and financial regimes.

Approved network statements will be published in the Official Gazette 10 months before the date on which the network service schedule becomes effective.

Allocation of Capacity

Infrastructure capacity represents the number of slots available in a given network during a certain period of time, taking into account the different types of traffic that would use the slots. Companies apply for allocation of capacity for a particular network infrastructure. Ministerial Order FOM/897/2005 describes the terms, principles and requirements that applications for allocation of capacity must meet.

Until the first slots are allocated to private operators, Renfe-Operadora will continue to manage all transport services that it currently operates.

Infrastructure Charges

Ministerial Order FOM/898/2005 sets forth the charges applicable for using certain infrastructure and the tax forms required to pay these charges.

The order establishes four types of charges for using the national rail network of general interest:

  • access charges;
  • capacity reservation charges;
  • running charges; and
  • traffic charges.

The charges collected for using other railway infrastructure are as follows:

  • charges for the use of railway stations by passengers;
  • charges for the use of railway platforms;
  • charges for changing the wheel gauge on trains;
  • charges for the use of sidings; and
  • charges for the provision of services requiring the use of public domain within the railway system.

Comment

Although several issues still need to be clarified and new legislation enacted, the ministerial orders have highlighted the main issues affecting private railway undertakings.

In the past few months, a number of Spanish companies have applied for a railway undertaking licence.