Simplified charge approval
Under section 2(6) sentence 1 half-sentence 2 ERegG operators of local railway networks whose core infrastructures do not have any strategic importance can be exempted from selected provisions of the charge regulations. Route operators that fall under the scope of section 2a(1) para 2 ERegG are also by law explicitly exempt from several charge regulation provisions.
In both cases the route operator is subject to what is called the "simplified charge approval procedure" under section 33(1) sentence 1 para 1 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. In the "simplified charge approval procedure" route operators only have to submit the proposed charges, but not the charging principles.
An operator that is exempt from the application of section 34(3) ERegG under section 2(6) sentence 1 half-sentence 2 ERegG or section 2a(1) para 2 ERegG and operates passenger* or goods** platforms in addition to railway lines has the choice under section 10a(4) ERegG between calculating the charges for all of its railway infrastructure (para 1) according to the provisions for route operators, in other words integrating the charges for the use of passenger and goods platforms into the track access charge, or (para 2) separately calculating the charges for the use of the rail infrastructure and for the use of passenger and goods platforms.
If the operator chooses the option under section 10a(4) para 1 ERegG it would need to seek a uniform approval procedure under section 33(1) sentence 1 para 1 ERegG for the charges for the use of the rail networks, the passenger and goods platforms. Because as a rule a passenger station has both a service facility and platforms, the charges for their use would also have to be notified under section 72 sentence 1 para 5 and section 73(1) para 4 ERegG and shown separately.
By contrast, if the operator chooses the option under section 10a(4) para 2 ERegG it would need to have its charges for the use of the rail infrastructure approved in a procedure under section 33(1) sentence 1 para 1 ERegG. In addition, the charges for the use of the passenger platforms, the passenger stations and the goods platforms (each shown separately) would have to be notified in an additional procedure in accordance with section 72 sentence 1 para 5 ERegG and section 73(1) para 4 ERegG.
Section 33(1) sentence 1 para 1 ERegG does not standardise any formal approval procedure, that is done in section 46 ERegG.
Unlike the regular charge approval procedure, the simplified charge approval procedure has four main facilitating features:
1. The incentive system set out in section 25 et seq of the ERegG does not apply.
2. There is no obligation to cover full costs and to levy full cost markups.
3. Some schemes that have to do with "additional charge components" do not apply.
Among other things the additional charge components of sections 35, 36 and 38 ERegG deal with the granting of charge discounts, drawing up an incentive scheme and noise-differentiated charge components. These schemes are also not applicable. For operators exempt from section 40 ERegG in accordance with section 2(6) sentence 1 half-sentence 2 ERegG there is no requirement to set cancellation charges.
Under section 23(1) ERegG any differentiation of charges within rail transport services must apply throughout the operator's entire railway network. Section 23(2) ERegG sets out that the charges for a certain service are to be averaged throughout the railway network and must be based on the same principles. Neither arrangement is to be applied in the simplified charge approval procedure if exemption from charge regulation has been granted under section 2(6) sentence 1 half-sentence 2 ERegG. If no such exemption has been granted but the requirements for exemption under section 2a(1) para 2 ERegG have been met, then section 23(1) ERegG applies.
It should also be noted that when there is no exemption from section 31(1) ERegG under section 2(6) sentence 1 half-sentence 2 ERegG, the charges must be shown in euros per train path kilometre and this charge must cover all of the minimum access package services.
4. No approval requirement for charging principles.
The substantive prerequisites of section 33(1) sentence 2 ERegG are the fulfilment of section 32 ERegG requirements. Accordingly, the charges for providing services may not exceed the costs of providing them plus a reasonable profit. The charges must also 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, among other things, 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.
* Passenger platforms are defined in section 1(26) ERegG. According to this definition, 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). By contrast Annex 2 para 2(a) to theERegG stipulates which structures and facilities of the service facility form part of a passenger station. Thus it can be concluded that, in addition to the platform structure, the lighting and the tactile guidance system in any case, as well as the access paths, are included in the minimum access package, whereas passenger information systems, locations for ticket sales and any structures not absolutely necessary for transport are part of the passenger station service facility.
** Section 1(27) ERegG states that goods platforms are stationary facilities located on railway lines that facilitate the loading and unloading of freight wagons by overcoming the height difference between the freight wagon and the surrounding area.
*** Content and scope have not yet been conclusively clarified by case law.