Competition Report 2006 - Deutsche Bahn AG

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Criticism of contract award in the regional and local rail sector As already described in the last Competition Report, the Commission initiated an infringement procedure against Germany in 2004. The case involves the method practised by the Federal Laender in awarding regional and local rail transportation contracts. The allegations in the case in question refer to the circumstances govern ing the award of transportation contracts to Deutsche Bahn companies in Baden-Württemberg, Berlin, Brandenburg, Rhineland-Palatinate and Thuringia. The crux of the matter is the degree to which plans for tenders have to be brought to the attention of potential bidders pursuant to EU law and to what extent the authorities are obliged to invite companies to participate in tenders. It is undisputed that EU public procurement law is not applicable to rail services. The proceedings are still in progress and an amicable solution appears possible. Admissibility of compensation payments in regional and local rail transport Another special aspect is in dispute in connection with the Berlin/Brandenburg transportation contract. In February 2005, the Commission announced that it had initiated a preliminary (state aid) investigation because of the contractual payments to DB Regio for providing transport services in Berlin/Brandenburg. This move was in response to a complaint by Connex. There had already been national review proceedings in which the Veolia subsidiary had unsuccessfully contested the transportation contract in question. Amongst other things, Connex alleges that the payments to DB Regio constitute unlawful state aid. Deutsche Bahn – like the Federal government – believes that these constitute contractual payments pursuant to Article 14 Regulation 1191/69 and not unlawful state aid within the meaning of Article 87 (1) EC. The admissibility of the payments is governed solely by the provisions of Regulation 1191/69 and there is no apparent infringement of these provisions. Proceedings for the provision of locomotives dismissed Since 2002, the Commission has conducted proceedings based on Article 82 EC Treaty to examine whether Deutsche Bahn has a dominant position in the market for the provision of locomotives. In parallel proceedings, it has also reviewed the market position of the Italian state railway Ferrovie dello Stato (FS). The proceedings were initiated in response to a complaint by a railway undertaking which off ers both inner-German and cross-border tourist transport services. The railway undertaking demanded that Deutsche Bahn should provide traction, and that FS should also provide a train driver with relevant route knowledge. The case against DB was formally and unconditionally dismissed in May 2005. FS had already been ordered to provide the requested services in August 2003. In contrast to Germany, vehicle availability in Italy had been very limited prior to the ruling of the Commission. Regulatory Policies In Germany there are numerous alternatives for railway undertakings to lease rolling stock. 35
36 New national regulatory framework The Third Act amending Railway Legislation came into eff ect at the end of April 2005. New Railway Infrastructure Usage Regulations have been in force since August. With this “Third Amendment of the General Railway Act” [AEG], the German legislator goes well beyond the requirements of the EC Infrastructure Package. Pending proceedings The Federal Network Agency has taken over a large number of pending proceedings. 120 90 60 30 2 2001 18 2002 24 2003 61 2004 130* 2005 * proceedings pending at the end of 2005; Source: DB data The AEG amendment is intended to ensure fair and non-discriminatory access to rail infrastructure in Germany. The legislator has thoroughly revised the previous regulations governing access to rail infrastructure and the internal structure of integrated railways. The competence of the diff erent authorities has also been restructured. Stricter regulation of infrastructure access In addition to railway undertakings, other “authorised users” can now also submit applications for train paths. This benefi ts the orderers, the Federal Laender, their local transport companies and special-purpose associations and companies wishing to have goods transported by rail. All authorised users are entitled to demand that the rail infrastructure managers provide non-discriminatory access to infrastructure and related services. Access is still provided on the basis of private-law contracts (negotiated access). New regulations governing infrastructure usage, user fees, timetable compilation and decision criteria in case of confl ict are intended to rule out unequal treatment. The AEG amendment does not aff ect proceedings initiated by the Federal Railway Offi ce (EBA) pursuant to the former laws. The fi rst proceedings held under the new legislation have revealed that the new regulations are frequently ambiguous, so that certain aspects have to be clarifi ed in court. The DB infrastructure companies, for instance, had to submit the planned revised network statement and other railway infrastructure usage regulations to the Federal Railway Offi ce (as the regulatory authority) for preliminary review. The Offi ce has initiated several cases to clarify the conditions which have to be fulfi lled before the revised regulations may be submitted to it. It has also objected to certain individual clauses. The most important of these cases could be resolved by mutual agreement following negotiations in good time before the start of the timetable compilation period. Unclear regulations on user fees The “regulatory character” of the rules governing infrastructure access is particularly evident in the calculation of the infrastructure user fees. The train path prices levied by the infrastructure managers for the use of infrastructure are in future to be determined by the costs sustained in connection with the provision of (essential) services for the use of infrastructure. While the law allows various
Page 1 and 2: Deutsche Bahn AG Communications Pot
Page 3 and 4: 2 Impressum Published by Deutsche B
Page 5 and 6: 4 Dynamic Developments in an Attrac
Page 7 and 8: 6 Keen competition and the trend to
Page 9 and 10: 8 who have the power to make decisi
Page 11 and 12: 10 The attractiveness of the German
Page 13 and 14: 12 Del dit loreet ametum etum quipi
Page 15 and 16: 14 More and more passengers use Deu
Page 17 and 18: 16 The high number of operators ind
Page 19 and 20: 18 Market share of other railways i
Page 21 and 22: 20 Unresolved legal issues and a di
Page 23 and 24: 22 Fair framework conditions are vi
Page 25 and 26: 24 performance, while the fi gure f
Page 27 and 28: 26 By using all the diff erent tran
Page 29 and 30: 28 In Dialogue with a Scientifi c E
Page 31 and 32: 30 Joachim Fried, born 1948, is a f
Page 33 and 34: 32 Equal Rules for Opening the Tran
Page 35: 34 The unequal treatment of the dif
Page 39 and 40: 38 The position of the infrastructu
Page 41 and 42: 40 EBA proceedings in the year 2005
Page 43 and 44: 42 Cartel Offi ce has its sights on
Page 45 and 46: 44 Movement in the Euro pean Rail M
Page 47 and 48: 46 The excellent economic developme
Page 49 and 50: 48 Train path pricing in the EU Mem
Page 51 and 52: 50 Important new-build lines will b
Page 53 and 54: 52 EU initiative for public transpo
Page 55 and 56: 54 Company L R F M Shareholder Comp
Page 57 and 58: 56 Company L R F M Shareholder VTG
Page 59 and 60: 58 Company L R F M Shareholder Muni
Page 61: 60 Company L R F M Shareholder Rint

Competition Report 2006 - Deutsche Bahn AG

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