DI Transport, Dansk Banegods, Danske Havne and Danske Shipping- og Havnevirksomheder hereby submit a joint consultation response to the draft executive order on exemption of parts of the scope of the Railway Act for certain railway infrastructures
We would like to draw attention to the fact that there is still an issue regarding the derogability of the type of rail infrastructure related to freight transport, as well as the associated rail-related service facilities and the services provided therein.
While both EU Directive 2012/34 and Implementing Regulation 2017/2177 provide for the possibility to exempt certain infrastructures and service providers, it is unclear which actors are covered and when - and how the exemptions come into force.
The ambiguity is reinforced by the fact that in some cases there are private companies that both own the infrastructure and offer service-related services, in other cases there is publicly owned infrastructure but private service providers, and in a few cases even public players on both infrastructure and services.
Not least, there is uncertainty in the industry about the possibility of the authorities intervening in the market - e.g. by setting tariffs for the provision of services, cf. §5 of BEK 1503/2021 on railway-related service facilities.
We find it quite unnecessary to interfere with free pricing and would like to point out once again the highly detrimental effect such tariffs - or even the possibility of such tariffs via tariff-setting principles - will have on a market that has so far operated under market conditions.
The few rail-related services that, for example, a shipping/port company performs will often be tied together with ship or warehouse-related services and thus be part of the company's overall services, just as buildings, machinery and equipment are used for many purposes. Therefore, a true cost estimate cannot be calculated.
The requirements can lead to companies leaving the market and make it much less attractive for new players to enter the market.
Article 2(4) of the directive contains, among other things, the possibility of exempting infrastructure and facilities that are not of strategic importance for the functioning of the rail market from Chapter IV of the directive, which is precisely the tariff rules.
We note that since this is European legislation, it must be possible to exempt facilities that do not have a strategic function for the European rail market, and in our view there are no rail facilities in Danish ports, or many other places in the country, with such a strategic function.
We would therefore urge the Ministry to consider applying the provision on exemption from Chapter IV of the Directive by exempting all Danish port tracks and terminals as well as smaller cargo transshipment points of no strategic importance.
If this executive order is not the right place to implement such an exception, we are open to discussing other options with the authorities.
Please let us know if you have any questions.
Danish Rail Freight
Danish Shipping and Port Companies