In compliance with the judgment of the First Chamber of the Court of Justice of the European Union of 28 February 2013, which condemns the Kingdom of Spain for failure to comply with Directive 2001 /14/EC of the European Parliament and of the Council Council of 26 February 2001 on the allocation of railway infrastructure capacity, the levying of charges for their use and certification of safety, it became necessary to amend certain Articles of Law 39/2003, of 17 November, of the Railway Sector, in connection with the establishment of the canons rail and the system of incentives applicable to reduce disturbances and improve the operation of the Network of General Interest, which, in accordance with that judgment, in its original wording did not comply with the provisions of the Community rules.

Furthermore, Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area refers to the incentive system; for this reason, by way of the present This Directive is partially incorporated into national law.

Law 1/2014 of 28 February for the protection of part-time workers and other urgent measures in the economic and social order amends paragraphs 5 and 6 of Article 73 of Law 39/2003 of 17 November. pointing out, inter alia, that the charging system should provide incentives for railway undertakings and the railway infrastructure manager itself to minimise disruption and to improve the operation of the Railway Network of General Interest. The basic principles of this incentive scheme will apply to the whole network. Such a system may include the imposition of penalties for actions that disrupt the functioning of the network, the granting of compensation to undertakings suffering from them and the granting of premiums to the best-than-expected results.

He also points out that the basic principles for the application of the system of fees and incentives in the field of royalties will be developed and updated by order of the Ministry of Public Works, establishing the scope of the Directive on the system of incentives to railway undertakings and the corresponding manager of railway infrastructure, in order to reduce the disturbances on the railway operation of the Railway Network General interest and improve the operation of the same.

In the Order's processing, the entities related to the railway sector have been consulted and have been informed by the National Commission of the Markets and the Competition. The Government's Delegate Committee for Economic Affairs reported the project at its meeting on 5 February 2015, in accordance with the provisions of Article 73.6 of Law 39/2003 of 17 November of the Railway Sector.

Under the proposal of the Director General of Railways, with the agreement of the Secretary General of Infrastructures and the Secretary of State for Infrastructure, Transport and Housing, with the prior approval of the Minister According to the Council of State, the Treasury and the Public Administrations have:

Article 1. Object.

This order is aimed at the development, within the general framework of the canons established in article 73 of Law 39/2003, of 17 November, of the Railway Sector, of the basic principles of application of the system of incentives for railway undertakings, and other candidates, as well as railway infrastructure managers to minimise disruption and to optimise the use of the General Interest Rail Network.

All without prejudice to any other compensation or claims that the candidates or the infrastructure managers could make between them, within the framework of the corresponding contractual relations, as a result of conditions or possible breaches of the agreed consideration, as well as any other non-contractual claims.

Article 2. Basic principles.

1. The incentive system shall include the imposition of penalties ("malus") for actions that disturb the functioning of the network, the granting of compensation ("bonus") the entities that suffer them and the granting of premiums to which they obtain better than expected results.

2. In order to achieve an agreed level of performance and not to jeopardise the economic viability of the rail system, railway infrastructure managers shall agree in advance, in a transparent and non-discriminatory manner, with the Railway undertakings and other candidates, the main parameters of the incentive system (in particular the value of delays and punctuality thresholds for determining payments due under the incentive scheme, and the delay computable when a service is deleted, relative to both the circulations of certain trains, as for all train circulations of a railway undertaking for a given period. For this purpose, railway infrastructure managers shall submit the proposal to railway undertakings and other candidates and shall establish the necessary communication channels with them.

3. In cases where, two months after the start of the procedure provided for in the previous paragraph, it is not possible to reach an agreement on the main parameters of the system of incentives between the administrator and the Candidates will be the National Commission of the Markets and the Competition the agency in charge of solving these parameters, according to the procedure established in Law 3/2013, of 4 June, of creation of the National Commission of the Markets and the Competition.

4. The parameters resulting from the formalities described in the second or third paragraphs (if applicable) of this article shall be published in the declaration on the network of the administrator.

5. For the purposes of applying the incentive system, compensation or penalties corresponding to the applicant who has applied for capacity shall be passed on, in any of the existing forms of scheduled furrows, in the case of a a railway undertaking or an authorised candidate. For these purposes, scheduled grooves shall be understood as those whose capacity reserve has been carried out in time and appropriate form by the candidate in accordance with Article 7 of Order FOMO/897/2005 of 7 April 2005 on the declaration on the network and the procedure for the allocation of railway infrastructure capacity.

Article 3. Reference schedules and time-counting procedures performed.

1. Infrastructure managers shall have a system of monitoring and recording of the schedules carried out by the circulations running through their network, taking into account the deviations from the reference schedule of the capacity awarded, calculated in accordance with the criteria and procedures published in the declaration on the network, as set out in Article 4.2.4.d) of Order FOM/897/2005 of 7 April 2005.

2. The railway infrastructure managers shall communicate to the candidates the time of the allocated capacity, which shall serve as a reference for the calculation of the delays, at least five days before the train runs.

However, the railway infrastructure managers, in the event of force majeure or occasional grooves, and late changes to the service timetable at the request of the candidates, may apply a deadline of shorter notice than previously expressed.

Article 4. Punctuality thresholds.

1. In accordance with Article 2.4 of this order, railway infrastructure managers shall publish annually in their network statement the thresholds applicable to the different types of services, below which delays will not be computed in the incentive system.

2. Such margins shall be updated annually on the basis of the average punctuality of each type of service over a significant period of the last years, taking into account the objective of continuous improvement of the system.

3. The thresholds may include, in particular, particular values for certain lines where, depending on their volume of traffic, the degree of congestion or the level of service, wider margins may be appropriate.

4. A 30% bonus for new candidates will be applied to the new candidates during the first year of activity, 20% for the second year and 10% for the third year.

Article 5. Classification of the causes of delays and disturbances.

Infrastructure administrators will initially attribute all computable delays to the following classes and delay subclasses:

a) Causes related to the management of the exploitation/planning attributable to the infrastructure manager.

a.1) Build schedules.

a.2) Training of a train (in cases directly attributable to the infrastructure).

a.3) Errors in the procedure of operations.

a.4) Bad application of priority rules.

a.5) Staff.

a.6) Other causes.

b) Causes due to infrastructure facilities attributable to the infrastructure manager.

b.1) Signalling facilities.

b.2) Signalling facilities in level steps.

b.3) Telecom installations.

b.4) Current provisioning equipment.

b.5) Via.

b.6) Structures.

b.7) Staff.

b.8) Other causes.

c) Causes related to civil engineering problems attributable to the infrastructure manager.

c.1) Planned build jobs.

c.2) Irregularities in the execution of the construction work.

c.3) Speed restrictions because of defective paths.

c.4) Other causes.

d) Causes attributable to other infrastructure managers.

d.1) Caused by the previous infrastructure manager.

d.2) Caused by the following infrastructure manager.

e) Commercial causes attributable to the railway undertaking.

e.1) Stopping time to stop.

e.2) Application of the railway undertaking.

e.3) Load operations.

e.4) Irregularities in the load.

e.5) Commercial readiness of the train.

e.6) Staff.

e.7) Other causes.

f) Causes related to the rolling stock attributable to the railway undertaking.

f.1) Planning/replanning the record.

f.2) Train training by the railway undertaking.

f.3) Problems affecting cars (passenger transport).

f.4) Problems affecting wagons (freight transport).

f.5) Problems affecting cars, locomotives and cars.

f.6) Staff.

f.7) Other causes.

g) Causes attributable to other railway undertakings.

g.1) Debates to the following railway undertaking.

g.2) Debides to the previous railway undertaking.

h) External causes not attributable to the infrastructure manager or to the railway undertaking.

h.1) Strikes.

h.2) Administrative Fortuses.

h.3) External influences.

h.4) Effects of time and natural causes.

h.5) Delays due to external reasons on the following network.

h.6) Other causes.

i) Secondary causes not attributable to the infrastructure manager or to the railway undertaking.

i.1) Dangerous incidents, accidents and hazards.

i.2) Occupation of the track caused by the delay of the same train.

i.3) Occupation of the route caused by the delay of another train.

i.4) Rotation.

i.5) Link.

i.6) Need for further investigation.

Article 6. Computation of delays.

1. For each circulation, railway infrastructure managers shall determine the delay of arrival at destination, in accordance with the system set out in Article 3.1 of this order. If it is higher than the punctuality threshold, it shall be considered an impunal train. For each impunal train, the computable delay in the incentive system shall be calculated as the difference between the actual and the expected time in the reference schedule, subtracting the delays caused by external causes to the railway system and the (d) and the punctuality threshold, between those defined in Article 4, corresponding to that type of service, due to other railway infrastructure managers, as defined in Article 5 (h) and (d). If the resulting delay was zero or less than zero, it would not be computable in the incentive system.

2. In accordance with Article 2.4 of this order, infrastructure managers shall publish annually in their network statement the computable delay in the incentive system, when a service is deleted.

Article 7. Allocation of responsibilities for delays.

1. Where possible, infrastructure managers shall initially attribute each delay to a single organisation on the basis of the classes and subclasses of Article 5 of this order. To this end, they shall take into account both the responsibility of the organisation which has caused the disturbance and the ability to restore normal traffic conditions.

2. In case the liability is shared between several actors, the railway infrastructure manager shall assign a percentage (imputation factor) to each of them. The value of the delay attributable to each will be obtained by multiplying the imputation factor assigned by the value of the computable delay.

3. The following shall be taken into account in the delays in Article 5 (i

:

(a) Those initially included in sub-categories 1 to 5 (in the list of delays defined in Article 8.2 shall be allocated to railway infrastructure managers.

(b) Those belonging to subcategory 6 shall not initially be charged to any entity. However, once the corresponding investigation processes have been completed, the assignment of responsibilities will be carried out with the effects foreseen in this Order from that moment on. However, if two months have elapsed since the movement without the procedures being opened, the railway infrastructure managers shall be assigned.

4. In the event that in the allocation of the delays the service providers of the facilities laid down in Law 39/2003 of 17 November, and those who are administrators of the facilities established in Law 39/2003, may be the ultimate responsibility. the infrastructure or candidates of those involved in the incentive system, the corresponding imputation factor shall be assigned to them. Where service providers are third parties outside the system that regulates this Order, the liability shall be attributed to the entity which is a customer of the order, without prejudice to Article 1.

Article 8. Procedures for allocation of delays and resolution of conflicts in the allocation of responsibilities.

1. The railway infrastructure managers shall communicate to the candidates the following working day following the movement of the train, the provisional daily listing of delays and responsibilities for which they shall establish the channels. necessary so that this communication is carried out in an agile and efficient way. In the event of disagreement, candidates may, within a maximum of two working days, ask the administrator for documentation supporting the allocation of delays and responsibilities, in particular the information contained in the systems of incident management, with the administrator of another two working days available to submit such documentation. The candidates will then have two working days to make their comments on that information, from their reception. In addition, railway infrastructure managers may require the candidate for any clarifications or documentary justification that are relevant in these cases.

2. Once these observations have been analysed, the railway infrastructure managers shall publish the final listing of the delays and the allocation of responsibilities within nine working days of the circulation.

3. In the case of non-conformity, candidates may claim before the Monitoring Committee of the incentive system defined in Article 9 up to the 14th working day from the movement. In this case, the Committee shall have a period of 10 working days to communicate the final result of the allocation of delays.

4. In the event of a discrepancy with the resolution adopted by the Committee, the procedure laid down in Article 2.3 of this order shall apply.

Article 9. Committee to monitor the incentive system.

1. In order to address situations of discrepancy between administrators and candidates, and without prejudice to other appeal procedures laid down in the general or railway rules, each infrastructure manager shall constitute a Committee of tracking formed by:

-A representative of each railway undertaking or other candidates with groove allocation.

-Representatives of the different units of the infrastructure manager with competence in traffic management. The number of representatives of the infrastructure manager shall be joint with the number of representatives of railway undertakings and other candidates.

-A representative of the National Market and Competition Commission, with a voice but no vote.

2. The Committee shall adopt a working procedure to allow for the resolution of discrepancies in the allocation of the responsibilities of delays in an agile and impartial manner, taking into account compliance with the time limits laid down in this Directive. This Ministerial Order.

In any case, a procedure will be available to ensure the appropriate representation of all parties involved.

3. Irrespective of the provisions of the previous paragraph, the Committee shall meet at least once a year to monitor the implementation of the incentive system.

Article 10. Value assigned to delays.

1. In accordance with Article 2.4 of this order, infrastructure managers shall publish annually in their network statement a unit value for each minute of delay. This value may be different for each of the service types or line types, as well as variable depending on the magnitude of the delay, provided that it is duly justified from the point of view of the efficiency of the incentive system and ensure that there is no discrimination between candidates who perform the same type of service.

2. For the calculation of this unit value, account shall be taken of developments in the last few years of the sum of minutes of computable delays and that the maximum annual value of all penalties shall not exceed 1,5% of the amount collected as a result of the fees for the use of the infrastructure, as laid down in Article 74 of Law 39/2003 of 17 November, during the previous year in the Railway Network of General Interest.

Article 11. Procedure for the assessment of delays and settlement.

1. The value of the penalty or compensation for each train shall be calculated by multiplying the computable delay in minutes by the unit value established in accordance with Article 10.

2. On a monthly basis, railway infrastructure managers shall calculate penalties for delays and shall communicate to the candidates an estimate of the payments due under the incentive scheme. This calculation shall cover all train circulations delayed in the previous month and shall be carried out by applying the following criteria to the different assumptions:

a) Delay caused by an infrastructure manager: it will penalize the administrator with the total amount of minutes of all delayed trains and compensate the affected candidates with the minutes of delay of their trains.

b) Delay caused by a candidate, without a condition for other candidates: it will penalize the affected person with the minutes of delay of their own trains and compensate the railway infrastructure manager in that same amount.

c) Delay caused by a candidate to other candidates: will penalize the causative against the administrator for the total sum of minutes of all delayed trains, including both the own and the other candidates. In turn, the administrator shall compensate each of the remaining candidates concerned with the minutes of delay of the trains of each of them.

3. At the end of each year, on the basis of the monthly balance sheets, the railway infrastructure managers shall carry out the liquidation, positive or negative, of the penalties and compensation corresponding to each candidate and the individual administrators.

In the final calculation of this settlement will be taken into account:

(a) A candidate may not pay a net amount of penalty in the incentive scheme (calculated as the difference between his total values of "malus" and "bonus") exceeding 10% of the fee paid by the applicant. use of the infrastructure in the same year. When this amount is greater, they will be reduced by the same percentage as the "malus" of that candidate, and the "bonus" received from the other entities.

b) An infrastructure manager may not pay a net amount of penalty to a given candidate (calculated as the difference between the "malus" and the "bonus" of the administrator with that candidate) more than 10% of the fees for the use of the infrastructure received from the candidate in the same year. When larger, they will be reduced by the same amount as the administrator's "malus" and the "bonus" that the candidate receives from this candidate.

(c) However, when in the settlement of an exercise, an entity is required to receive a net amount of compensation (calculated as the difference between the "bonus" and the "malus") of another entity, to which during any of the four years before the "bonus" has been paid in full for the application of Articles 11 (3) (a) or 11.3.b), the amounts shall be offset so that the balance in the current financial year shall be undermined, up to no more than the amounts not paid in previous years.

4. The result of the annual (positive or negative) settlement shall be notified to the candidates within the first month of the following year, and their payment shall be made at one time, within 20 working days from the date of the notification.

Article 12. Performance awards.

1. Annually, and provided that the balance sheet obtained by the infrastructure managers in the incentive system is positive, they will provide an additional bonus for the performance award to those candidates who present the better results in their punctuality levels or that they have a favourable evolution in the same in the last exercises. These additional bonuses will be weighted according to the traffic volume of these candidates and the progress made by them.

2. In such cases, the amount of such prizes shall be financed by a percentage of 30% of the positive balance of the railway infrastructure managers.

Article 13. Assessment of the railway infrastructure managers within the incentive system.

When the annual balance sheet of the infrastructure managers is negative, they shall, where appropriate, take the necessary expenditure equivalent reduction measures necessary to ensure that the financial objectives are met. fundamental to them.

Article 14. Periodic reporting obligations of the system.

Once a year the infrastructure managers will publish, in the network statement, the results achieved by the candidates and by the infrastructure manager himself on the basis of the main parameters agreed in the incentive system. A breakdown by typologies of delays and information on developments in recent years will be included.

Final disposition first. Amendment of Order FOM/897/2005 of 7 April 2005 concerning the declaration on the network and the procedure for the allocation of railway infrastructure capacity.

A new, unique additional layout is added, with the following wording:

" Single additional disposition. Time verification.

Annually, an external verifier shall analyse the schedules established as a reference by the infrastructure managers for the capacity allocated and shall verify the evolution of the schedules in time as well as their adequacy to the benefits for which the railway infrastructure was designed and constructed.

If the analysis shows progressive increases in the reference schedules, the Ministry of Public Works will ask the infrastructure managers to correct the causes that cause them in the shortest time. possible and propose the economic compensation to be paid to the various operators concerned as long as such correction does not occur. "

Final disposition second. Competence title.

This Order is issued pursuant to the provisions of Article 149.1.21. of the Constitution, which confers exclusive competence on the State in the field of railways and land transports that pass through the territory of more of a stand-alone community.

Final disposition third. Incorporation of European Union law.

This order incorporates into Spanish law Directive 2001 /14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity, implementation of the fees for their use and certification of safety. Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area is also partially incorporated.

Final disposition fourth. Entry into force.

This order will take effect the day following your publication in the "Official State Bulletin".

Madrid, 11 February 2015. -Minister for Development, Ana Maria Pastor Julian.