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DEUTSCHE BAHN AG
industry law. Based on the terms of this ruling, DB Energy GmbH
must have their usages fees approved – retroactively to October
2005 – by the BNetzA. The Federal agency will examine the fees
using standards employed by the energy industry. DB Energy
GmbH will have to establish procedures to meet the compre-
hensive reporting process required by energy industry law in
order to meet the regulatory requirements.
EXPERT OPINION TO DETERMINE COST OF CAPITAL
IN RAIL INFRASTRUCTURE SECTOR
With respect to fee regulation the BNetzA submitted in may
2010 for consultation an expert opinion they had commissioned
for the purpose of better defining the permissible extent of
access charges in the future entitled “Determination of cost of
capital in the rail infrastructure sector.” We participated in the
consultations and commissioned A NERA Economic Consulting
[1], an independent consulting firm, to prepare an expert opinion,
which we published along with a statement of opinion in June
2010. The purpose of the expert opinion is to define the return
on capital that a rail infrastructure company may earn. Discussions
with the BNetzA will be continued during the course of 2011.
DB NETZ AG MAY NO LONGER BE REPRESENTED
BY DB AG’S LAWYERS IN ALL CASES
In a final ruling made on may 18, 2010, the German Federal Ad -
ministrative Court ruled that as of December 1, 2010 DB Netz AG
may no longer be advised or represented by the DB AG legal
department in issues regarding access to the rail network and
the train-path prices associated with this access. With this ruling
the Court confirmed a 2006 decision of the EBA. In addition to
monitoring the implementation of requirements directly arising
from the Court’s ruling and which must be met by a set date, the
EBA is also examining the ruling to determine if other measures
are needed to strengthen the independence of DB Netz AG.
Further development of relevant legal framework
RECAST vERSION OF FIRST RAILWAY PACkAGE
On September 17, 2010 the European Commission submitted a
proposal for the recast of the first European railway package. The
proposed new version also contains a stricter regulation of service
facilities, wider authority for regulatory agencies as well as detailed
requirements for infrastructure financing and train-path usage
fees. A further liberalization of the rail passenger transport sector
is not foreseen. The lawmaking process is currently underway
(first reading of the law) in the Council and the European Parliament.
It is anticipated that the legislation will be passed during
the course of 2011. We welcome the recast as it contributes towards
| [1] A www.db.de/nera-e
the creation of uniform conditions for rail transport across Europe.
It is, however, important to ensure that no disproportionate
encroachment on the member state’s budgetary powers or the
entrepreneurial independence of the train operating companies
takes place.
LIBERALIZATION OF RAIL PASSENGER TRANSPORT
Directive 2007/58/EC obligates all EU member states to open
their markets for cross-border rail passenger transport as of
January 1, 2010, although the terms of the Directive do, however,
provide member states leeway to limit market access. On
December 28, 2010 the EU Commission published a directive
pertaining to this leeway whereby it may only be possible to limit
the liberalization guidelines under very restrictive circumstances.
The liberalization of the market in Germany was completed
significantly earlier than the date when the directive took effect.
Furthermore, the German implementation concept for Directive
2007/58/EC does not contain any possibility to restrict access
to the market. Although the recast version of the first European
railway package does not foresee any further steps towards
liberalization, the EU Commission has, however, announced that
it will submit in 2012 a legislation proposal to further liberalize
rail passenger transport in Europe.
REGULATION FOR A EUROPEAN RAIL FREIGHT
TRANSPORT NETWORk
On November 9, 2010 the EU regulation regarding the creation
of a European rail network for more competitive freight transport
took effect. Per the terms of the regulation, DB Netz AG is obligated
to participate in the establishment of internationally staffed
management structures in three European freight corridors within
the next three to five years. The primary purpose of the regulation
is to achieve better crossborder coordination of capacity and
transport management as well as closer collaboration in the areas
of capital expenditures and construction planning.
The critical issue here is that train-path must be kept clear
for international freight transports even though it cannot be
assured that the track will actually be used as planned. This can
lead to a substantial reduction in network capacity due to the
lack of track availability for other freight or passenger transports,
and cause additional costs if the track is not used. This regulation
can have extensive effects on the coordination between the
European infrastructure operators and the future structure of
timetables in the passenger and freight transport sectors. The
EU Commission is currently working on a handbook to guide the