Approval procedure for passenger stations/passenger platforms
Operators of passenger stations and operators of passenger platforms* are generally required to have their proposed charges for the use of their passenger stations and passenger platforms approved.
Please note that since the entry into force of the amended ERegG on 18 June 2021 regulatory law differentiates between passenger platforms and passenger stations. Whereas passenger platforms and access routes count as "railway infrastructure" within the meaning of Annex 1 para 2 and para 6 to the ERegG, passenger stations are classified as "service facilities" in Annex 2 para 2(a) to the ERegG .
This circumstance results in the need for a conceptually functional separation of the passenger platforms from the passenger station service facility and the necessity of creating separate charges for the same.
This differentiation results furthermore in differences with respect to the calculation of charges. Under Annex 2 para 1(c) to the ERegG the use of railway infrastructure, including the use of passenger platforms and access routes, is part of the minimum access package, and the calculation of usage charges must comply with section 31a ERegG. By contrast the passenger station charges under section 33 ERegG are based on the provisions of section 32 ERegG.
The requirement that charges for the use of passenger stations receive approval is based on section 33(1) sentence 1 para 2 ERegG. Section 33(1) sentence 2 ERegG states that the approval is to be granted when the requirements of section 32 ERegG have been met. The latter stipulates that the charges for the provision of services must be calculated in such a way that they [in total] do not exceed the costs of providing these services plus a reasonable profit and that all of the [individual] charges are reasonable, non-discriminatory and transparent.
Section 33(1) sentence 1 para 1 ERegG does not stipulate the requirements of the formal approval procedure, which is why analogous application of section 46 ERegG occurs, except it refers to the calendar year and not the working timetable period.
The requirement that charges for the use of passenger platforms receive approval is based on section 31a(1) sentence 2 ERegG. Pursuant to section 31a(2) sentence 2 ERegG, the approval is to be granted if the calculation of the charges meets the requirements of section 23(1) and (2) sentence 1, section 24(2) to (4) and sections 34 to 41 ERegG. Section 31a(1) sentence 1 ERegG also requires the charge for the minimum access package to be shown in euros per instance of use.
With regard to the formal approval procedure, section 31a(2) sentence 3 ERegG declares the requirements of section 46 ERegG to be applicable, except that instead of a deadline for submitting requests for train paths, a deadline can be set in the network statement for submitting requests for use, and the calendar year can also be used instead of the working timetable period.
Pursuant to section 33(1) sentence 2 ERegG the criteria for setting the charges for the use of passenger stations are laid down in section 32 ERegG, which in subsection (1) states that the charges for track access within service facilities listed in Annex 2 para 2 and for the provision of services in these facilities may not exceed the costs of their provision plus a reasonable profit (cost-plus standard).
The cost-plus standard marks the upper limit of charges in total that may not be exceeded. However, operators of passenger stations have no obligation to cover full costs.
Pursuant to section 32 ERegG, the charges for the individual services included in this upper limit are furthermore to be calculated in such a way that they are reasonable, non-discriminatory and transparent.
A "reasonable profit" is legally defined under section 1(9) ERegG as a return on equity that takes the operator's risk (or the lack thereof) into account and does not deviate significantly from previous years' average return on investment in the sector. The Bundesnetzagentur uses the capital-asset pricing model (CAPM) as the basis for calculating a legally compliant return on equity.
Nowadays the principle of reasonableness** means that services must be offered on terms that ensure the optimal fulfilment of regulatory objectives. Taking into account a certain amount of the operator's freedom in writing up contracts, network statements are reasonable if they prove to be fair and proper in light of these regulatory objectives and provide the best possible guarantee of the right of access.
The principle of non-discrimination** within the meaning of section 32(2) sentence 2 para 2 ERegG means that access beneficiaries in competition with one another may not be treated differently without any objectively justifiable reason, and individual access beneficiaries may not be advantaged or disadvantaged compared to other access beneficiaries without any objectively justifiable reason.
The principle of transparency** within the meaning of section 32(2) sentence 1 ERegG requires provisions to be clear, comprehensible, determinable and verifiable. There can be no unjustifiable room for interpretation. The requirement that principles are transparent also makes it clear that the access beneficiaries must be able to recalculate the charges for the services they use and that the principles on which the charges are based are comprehensible.
In addition, section 39(2) in conjunction with subsection (4) ERegG applies to operators of passenger stations. It requires an operator of service facilities to create an incentive system with service-related components to offer both the operator and the railway undertakings incentives to minimise disruptions and increase the railway network's performance. The incentive system can include contractual penalties for disruptions to network operations, indemnification for disruptions and bonus schemes. The charging schemes put in place under this incentive system fall within the scope of the audit.
As set out in section 31a(2) sentence 2 ERegG, the calculation of the charges for the use of passenger platforms must be based on the requirements of section 23(1) and (2) sentence 1, section 24(2) to (4) and sections 34 to 41 ERegG. Section 31a(1) sentence 1 ERegG also requires the charge for the minimum access package to be shown in euros per instance of use.
Pursuant to section 34(3) ERegG, the charge for the passenger platforms that are part of the minimum access package must be based on the direct costs of train operation. In addition, to cover the total costs, the infrastructure manager can levy markups on the direct costs of train operation in accordance with section 36(1) ERegG on the basis of efficient, transparent and non-discriminatory principles while guaranteeing optimal competitiveness of rail market segments.
It should be noted that under section 33(1) sentence 3 ERegG for passenger stations of the federal railway system, in derogation from section 33(1) sentence 2 ERegG for passenger transport services under section 36(2) sentence 2 para 2 ERegG, section 37 ERegG applies unless otherwise provided for in section 37(3) ERegG. This means that the charges for federally-owned operators of regional and local rail passenger transport are calculated pursuant to section 37 ERegG. For passenger platforms the applicability of section 37 ERegG arises out of section 31a(2) sentence 2 ERegG.
For federal states that receive funding from the federal government for regional and local rail passenger transport, section 37(1) and (2) ERegG requires federally-owned infrastructure managers to set the amount of charges for the use of railway infrastructure for each federal state and for the use of passenger stations for each regional transport authority area. The charges for each federal state or, in the case of charges for the use of passenger stations for each regional transport authority area, are to be calculated so that they correspond to the average charges of that particular type of rail transport in the respective federal state in the 2020/2021 working timetable period and to the average charges for passenger stations in the respective regional transport authority area in the 2021 calendar year. If the total amount of the regionalisation funds to which the federal states are entitled has changed between 2021 and the year in which the charge is actually to be paid, then the charges under subsection (1) are to be adjusted at the annual rate of change set out in section 5(3) of the Regionalisation Act (1.8% until 2025). This is referred to as the station charge brake. This pricing rule in the short-distance passenger rail transport sector should bring about synchronisation between the change in the regionalisation funds and the access beneficiaries' costs from station charges.
Section 37(3) ERegG also creates the possibility for federal passenger station operators to deviate from the fixed annual rate of change through special agreements with a local authority or a regional transport authority. Pursuant to section 37(3a) ERegG the rules for passenger stations under subsections (1) to (3) apply to an operator of passenger platforms that does not calculate the charges according to the provisions for route operators.
Charges calculated on the basis of the requirements in section 37 ERegG are also subject to approval.
If operators of passenger stations or passenger platforms that are exempt from the approval requirement (for example pursuant to section 2(5) or (6) in the old version of the ERegG or section 2a(5) or section 2b in the new version of the ERegG), the approval requirement for their charges is not applicable. They are nonetheless required to notify the Bundesnetzagentur of their new or updated charges as part of the notification requirement set out in section 72 sentence 1 para 5 ERegG. Further information is available in the website section about information on other service facilities and usage charges.
*Passenger platforms are the area of the rail network where passengers board and alight from the trains, including all equipment and structures that are not legally assigned to the operation of the passenger station (see definition in section 1(26) ERegG). An operator of a passenger platform is any operator of railway infrastructure that is responsible for the construction, the operation, the service and maintenance, and the renewal of passenger platforms including the access to these passenger platforms (see definition in section 1(5) ERegG).
**Content and scope have not yet been conclusively clarified by case law.