Notification procedures for service facilities
As is the case with charges for the use of passenger stations, passenger platforms and railway lines, charges for the use of service facilities within the meaning of Annex 2(2) to the ERegG are also monitored by the Bundesnetzagentur. Although the charges in the service facilities are not subject to approval, the operators of service facilities must nonetheless notify the Bundesnetzagentur of changes to charge amounts and charging principles at least six weeks before the changes enter into force. Thus the charges are subject to a preliminary examination by the Bundesnetzagentur and undergo a notification procedure pursuant to section 72 sentence 1 para 5 and section 73(1) para 4 ERegG.
Service facilities’ charges must essentially be cost-oriented and may not contain any components that are discriminatory, inappropriate or non-transparent. The charging standard of section 32 ERegG applies.
Section 72 sentence 1 para 5 ERegG requires infrastructure managers to notify the Bundesnetzagentur immediately of any intended revisions or changes to network statements for service facilities including which charging principles they plan to use and the amounts they intend to charge plus the main reasons for the revisions and changes.
Section 32 ERegG is the benchmark for the charging schemes in procedures under section 72 sentence 1 para 5 ERegG. It states in subsection (1) 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. By contrast, operators of service facilities have no obligation to cover full costs.
In accordance with 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 significantly deviate 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 with 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 unjustified 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 to section 32 ERegG operators of service facilities are also subject to section 39(2) in conjunction with subsection (4) ERegG, which 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.
However, it should be noted that the explanations above may be different in cases where an operator of a service facility under section 2(5) of the old version of the ERegG or under section 2b of the new version of the ERegG is fully or partially exempt from the obligations of Chapter 3 ERegG. In such cases the respective individual exemption decision contains information on the scope of the obligations. An operator cannot, however, be exempted from the requirement to notify the Bundesnetzagentur (under section 72 sentence 1 para 5 ERegG and the preliminary examination associated with it under section 73(1) para 4 ERegG) and thus such a notification must be completed.
* Content and scope have not yet been conclusively clarified by case law.