Order Fom/189/2015, On 11 February, By Which Develop Basic Principles Of Application Of Incentives In The System Of Fees For Use Of Rail Infrastructure, Established In Article 73 Of The Law 39/2003, Of...

Original Language Title: Orden FOM/189/2015, de 11 de febrero, por la que se desarrollan principios básicos de aplicación de incentivos en el sistema de los cánones por utilización de las infraestructuras ferroviarias, establecidos en el artículo 73 de la Ley 39/2003, de...

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Pursuant to the ruling of the Chamber first of the Court of Justice of the Union European of February 28, 2013, which condemns the Kingdom of Spain for failure to comply with Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001, on the award of the capacity of rail infrastructure, application of royalties for its use, and safety certification It became necessary to modify certain articles of the law 39/2003, 17 November, the railway Sector, in relation to the establishment of the rail cannons and the incentive system applicable to reduce disruptions and improve the operation of the railway network of General interest, which, according to the quoted sentence, in its original wording did not regulated in the aforementioned Community legislation.

In addition, directive 34-2012-EU Parliament and the Council, of 21 November 2012, on the establishment of a single European railway area, refers to the system of incentives; for this reason, by this order this directive is incorporated partially enactment.

Law 1/2014, 28 February, to part-time workers protection and other emergency in the economic and social order measures, amends paragraphs 5 and 6 of article 73 of the law 39/2003, 17 November, noting, inter alia, that the system should encourage railway undertakings and own administrator of railway infrastructure to minimize disruptions and improve the functioning of the Railway network of General interest. The basic principles of this system of incentives will apply to the entire network. Such a system may include the imposition of penalties for actions which disrupt the operation of the network, the granting of compensation to companies that suffer from them and the granting of premiums to the better results than expected.

It also notes that by order of the Ministry of public works, they will develop and update the basic principles of application of bonuses and incentive systems in terms of cannons, establishing the scope of the order as soon as it refers in particular to the system of incentives to railway undertakings and to the relevant railway infrastructure manager, to reduce disruption in the railway operation of the rail network of General interest and improve the functioning of the same.

In the processing of the order entities related to the railway sector has been consulted and it has been informed by the National Commission of markets and competition. The delegate Commission of the Government for Economic Affairs informed the project, at its meeting of February 5, 2015, in accordance with article 73.6 of law 39/2003 of 17 November, of the rail Sector.

By virtue, on the proposal of the Director General of railways, with the agreement of the Secretary-General of infrastructures and of the Secretary of State for infrastructure, transport and housing, with the prior approval of the Minister of finance and public administration, in accordance with the Council of State, I have: article 1. Object.

This order is intended the development, within the overall framework of the royalties established in article 73 of the law 39/2003 of 17 November, the railway Sector, the basic principles of application of the system of incentives so that railway companies, and other candidates, as well as railway infrastructure managers can minimize disruptions and optimize the use of the railway network of General interest.

All of this without prejudice to other remedies or claims that the candidates or infrastructure managers may be carried out between them, within the framework of the corresponding contractual relations, as a result of conditions or possible breaches of the agreed upon services, as well as any other claims of a non-contractual nature.

Article 2. Basic principles.

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

2 in order get an agreed level of results and not to endanger the economic viability of the rail system, railway infrastructure managers agreed previously, in a transparent and non-discriminatory, with railway companies and other candidates, the main parameters of the system of incentives (in particular the value of delays and thresholds of timeliness to determine fees due according to the incentive system (, and the delay computable when deletion of a service), relating to the circulation of certain trains as well as to all the circulation of trains of a railway company for a given period. For these purposes, railway infrastructure managers submitted the proposal to the railway undertakings and other candidates and establish the necessary channels of communication with them.

3. in those cases in which, after two months have elapsed since the start of the procedure in the previous section, it was not possible to reach agreement on the main parameters of the system of incentives between the administrator and the candidates will be the National Commission of markets and competition the Agency resolve about these parameters, according to the procedure established by law 3/2013 , June 4, creation of the National Commission of markets and competition.

4. the resulting parameters of the procedures described in paragraphs second or third party (where applicable) of this article will be published in the statement on the network's administrator.

5. for the application of the system of incentives, it will affect compensation or penalties corresponding to the candidate who has requested the capacity, by any of the existing forms of programmed grooves, whether they are of a railway company or a candidate enabled. For these purposes, means programmed grooves those whose capacity reservation is completed on time and properly by the candidate, in accordance with article 7 of the order FOM / 897/2005 of 7 April, on the Declaration on the network and the procedure for allocation of railway infrastructure capacity.

Article 3. Reference hours and made schedules computation procedures.

1 infrastructure managers will have a system of tracking and recording schedules made by the circulations that flow through its network, computing deviations from allocated capacity reference hours, calculated in accordance with the criteria and procedures published in the network statement, as set out in item 4.2.4. d) of the order FOM/897/2005 , 7 April.

2 railway infrastructure managers must notify the candidates schedule of the allocated capacity, which will serve as a reference for the calculation of the delays, at least five days before the movement of the train.

Despite this, managers of the railway infrastructure, in case of force majeure or of casual grooves, and late changes to the hours of service at the request of the candidates, may apply a period of notice shorter than the expressed above.

Article 4. Thresholds of punctuality.

1. in accordance with the designated in article 2.4 of the present order, railway infrastructure managers shall publish annually in its Declaration on the network thresholds applicable to the different types of services, below which delays are not counted in the incentive system.

2 these margins will be updated annually on the basis of the average of timeliness of each type of service for a significant period of the past years, taking into account the aim of continuous improvement of the system.

3. the thresholds may include, accordingly, specific values for certain lines in which, depending on your volume of traffic, the degree of congestion or of the level of service, may be suitable wider margins.

4 the established thresholds of punctuality will be a bonus of 30% to new candidates during the first year of activity, 20% during the second year and 10% during the third year.

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

Infrastructure administrators initially attributed all the Computable delays to the following classes and subclasses of delay: to) causes related to the management of the exploitation/planning attributable to the infrastructure manager.

a.1) compilation of schedules.

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

a.3) errors in the procedure's operations.

a.4) incorrect application of the rules of priority.

a.5) staff.

a.6) other causes.

(b) causes due to attributable to the infrastructure manager infrastructure facilities.

b.1) signage installations.

b.2) installations of signage at level crossings.

b.3) telecommunications facilities.

b.4) power supply 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 construction work.
c.2) irregularities in the execution of the construction work.

c.3) because of defective roads speed restrictions.

c.4) other causes.

(d) causes attributable to other infrastructure managers.

d.1) Provocadas by the previous infrastructure manager.

d.2) Provocadas by the following infrastructure manager.

(e) commercial causes attributable to the railway undertaking.

e.1) the stopping time is exceeded.

e.2) request of the railway undertaking.

e.3) load.

e.4) irregularities in the load.

e.5) commercial preparation of the train.

e.6) staff.

e.7) other causes.

(f) attributable to the railway company rolling stock-related causes.

f.1) planning/re-planning of the registry.

f.2) formation of the train by the railway undertaking.

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

f.4) problems affecting trains (goods transport).

f.5) problems affecting cars, locomotives and railcars.

f.6) staff.

f.7) other causes.

(g) causes attributable to other railway companies.

g.1) Debidas the following railway company.

g.2) Debidas the previous railway company.

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

h.1) strikes.

h.2) administrative formalities.

g.3) external influences.

h.4) effects of time and natural causes.

h.5) delays due to external reasons the following network.

h.6) other causes.

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

i.1) hazardous incidents, accidents and dangers.

i.2) occupation of the road caused by the delay of the same train.

i.3) occupation of the road caused by the delay of another train.

i.4) rotation.

i.5) link.

i.6) need for further research.

Article 6. Computation of delays.

1. for each movement, railway infrastructure managers determine the delay of arrival at destination, in accordance with the system laid down in article 3(1) of this order. If it is greater than the threshold of punctuality, is deemed untimely train. For every untimely train, will be calculated delay computable in the incentive system as the difference between real time and anticipated at the time of reference, subtracting delays motivated by causes external to the railway system and those due to other managers of railway infrastructures, according to the article 5.h) and (d)), and the threshold of punctuality, among those defined in article 4 corresponding to that type of service. If the resulting delay is zero or below zero, it would not be computable in the incentive system.

2. in accordance with the designated in article 2.4 of this order, infrastructure managers shall publish annually in its Declaration on the network computable in the incentive system delay, when deleting a service.

Article 7. Assignment of responsibilities for the delays.

1. whenever possible, infrastructure managers initially attributed each delay to a single organization on the basis of the classes and subclasses of item 5 of this order. To do this, take into account both the responsibility of this organization that has caused the disruption such as the ability to restore normal traffic conditions.

2 where the responsibility is shared among several actors, the railway infrastructure manager will assign a percentage (charging factor) to each of them. The delay attributable to each value is obtained by multiplying the imputation factor assigned by the computable delay.

3 in delays classified in the article 5.i) will take into account the following: to) those initially included in subcategories 1 to 5 (delays list defined in article 8.2 shall be allocated to railway infrastructure managers.

(b) those belonging to subcategory 6 not be charged initially to any entity. However, after completing the corresponding processes of research, will be the allocation of responsibilities with the purposes specified in this order from that moment. However, if they had after two months from circulation without that such proceedings had been opened, are assigned to railway infrastructure managers.

4. in the event that in the allocation of the delays they may be last, total or partial responsibility, the service providers of the facilities established in the law 39/2003, of 17 November, and these are infrastructure administrators or candidates of those implicated by the incentive system, assigned the corresponding allocation factor. When service providers are third parties outside the system that regulates this order, responsibility was attributed to the entity that is client thereof, without prejudice to as indicated in article 1.

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

1 railway infrastructure managers shall inform the candidates, the next business day after the movement of the train, the provisional daily list of Computable delays and responsibilities, which will establish the necessary channels so that communication is carried out in an efficient and agile way. In case of disagreement, within a maximum period of two business days the candidates may request administrator supporting documentation of the allocation of responsibilities and delays, especially information included in incident management systems, providing the Administrator's other two business days to send such documentation. Then the candidates will have two business days to make its observations in that information, from their reception. In addition, railway infrastructure managers may require candidate explanations or documentary justification that are relevant in these cases.

2 after analyzing these observations, railway infrastructure managers publish the definitive list of Computable delays and the allocation of responsibilities within the period of nine working days from circulation.

3. in the event of disagreement, the candidates can claim before the Monitoring Committee defined in article 9 until the fourteenth day from circulation incentive system. In this case, the said Committee shall have a period of ten working days to communicate the final outcome of the allocation of delays.

4. in the event of a discrepancy with the resolution adopted by the Committee, shall apply the procedure laid down in article 2(3) of this order.

Article 9. The incentive system monitoring Committee.

1. to resolve the situations of disagreement between managers and candidates, and without prejudice to other procedures laid down in general or railway legislation, each infrastructure manager shall constitute a Committee of follow-up consisting of:-a representative of each railway company or other candidates with assignment of grooves.

-Representatives of the different units of the infrastructure manager with skills in the management of traffic. The number of representatives of the infrastructure manager will be joint with the representatives of railway companies and other candidates.

-A representative of the National Commission of markets and competition, with voice but without vote.

2. the Committee shall establish a working procedure that allows the resolution of discrepancies in the allocation of the responsibilities of the delays in an agile manner and with impartiality, taking care to comply with the deadlines set forth in this ministerial order.

In any case, a procedure that ensures adequate representation of all the parties involved will be available.

3. irrespective of the provisions of the preceding paragraph, the Committee shall meet at least once a year to carry out the monitoring of the application of the system of incentives.

Article 10. Value assigned to the delays.

1. in accordance with the designated in article 2.4 of the present order, infrastructure managers shall publish annually in its Declaration on the network a unit value for every minute of delay. This value may be different for each of the types of service or line types, as well as variable as a function of the magnitude of the delay, provided that it is properly justified from the point of view of the efficiency of the system of incentives and to ensure that discrimination there is no between candidates who perform the same kind of service.

2. for the calculation of the unit value be taken into account the evolution in the last 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 in respect of royalties for use of infrastructure, as laid down in article 74 of the law 39/2003 , 17 November, during the previous year the railway network of General interest.

Article 11. Estimation of the delay and settlement procedure.

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 determined according to article 10.
2. monthly, railway infrastructure managers calculate penalties for delay and shall inform the candidates an estimate of fees due under the system of incentives. This calculation shall include all the circulation of trains delayed in the previous month and shall be carried out by applying the following criteria to the different assumptions: to) delay caused by an infrastructure manager: it will penalize the administrator with the total minutes of all delayed trains and compensate the candidates affected by the minutes of delay of its trains.

(b) delay caused by a candidate, without condition to other candidates: it will penalize affected the minutes late for its own trains and compensates for the administrator of railway infrastructure in that same amount.

(c) delay caused by a candidate to other candidates: will penalize the cause against the administrator in the total amount of minutes from all trains delayed, including both their own and those of other candidates. In turn, the administrator will compensate to each of the remaining candidates affected by the minutes of delay of trains of each one of them.

3. at the end of each year, from monthly balance sheets, railway infrastructure managers will be the liquidation, positive or negative, for each candidate and directors compensation and penalties.

In the final calculation of this settlement shall be taken into account: to) a candidate may not pay a net amount of penalty in the incentive system (calculated as the difference between its total values of «malus» and «bonus») exceeding 10% of the amount paid in respect of cannons by use of the infrastructure in that same year. When this amount is greater, shall be reduced by the same percentage that is necessary the "equalization" of such candidate, and the «bonus» receiving the rest of entities of this.

(b) Similarly, an infrastructure manager can not pay a net amount of penalty to a specific candidate (calculated as the difference between the «Equalization» and «bonus» the administrator with this candidate) that is greater than 10% perceived guns by use of the infrastructure of the candidate in that same year. When I grow up, they will be reduced in the same amount as needed the "malus" of the administrator and the «bonus» the candidate receiving this.

(((c) However, when in the liquidation of an exercise, an entity should receive a net amount of compensation (calculated as the difference between the «bonus» and the «malus' between the two), to which has not paid in full the corresponding «bonus», have been implementing the articles 11.3 during any of the previous four years. a) or 11.3. b). such amounts be compensated, so that the positive balance of the current year will be discounting, to override maximum, in the amounts not paid in previous years.

4. the result of the annual discharge (positive or negative) will be notified to applicants within the first month of the following year, and your payment will be made only once, in the period of twenty working days from the date of the notification.

Article 12. Performance awards.

1. annually, and whenever the balance obtained by the administrators of the incentive system infrastructure is positive, these establish a concept of performance award additional bonus to those candidates who present the best results in their levels of punctuality or having a favourable evolution in them in recent years. These additional bonuses shall be weighted according to the volume of traffic from these candidates and the progress achieved by these.

2. in these cases, the amount of these awards will be financed with a percentage of 30% of the positive balance of rail infrastructure managers.

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

When the annual balance of infrastructure managers is negative, these shall take, where applicable, equivalent expenditure reduction measures to ensure compliance with the fundamental financial goals that affect them.

Article 14. Obligations of periodical information of the system.

Once a year infrastructure managers shall publish, in the network statement, the results achieved by the candidates and by the own infrastructure manager on the basis of the main parameters agreed in the incentive system. It will include a breakdown by types of delays and information on developments in recent years.

First final provision. Modification of the order FOM/897/2005, of April 7, concerning the procedure for allocation of railway infrastructure capacity and the network statement.

Added a new sole additional provision, with the following wording: «sole additional provision. Verification of timetable.

Annually, an external auditor will analyze the schedules set for reference by managers of infrastructure for the allocated capacity and will verify the evolution of them at the time as well as its suitability for the benefits for which it was designed and built the railway infrastructure.

If cited analysis progressive increments of reference times are inferred, Ministerio de Fomento infrastructure managers shall ask the correction of the causes that provoke them in the shortest possible time and will propose the compensation payable to affected operators as long as there is this correction."

Second final provision. Skill-related title.

This order is issued under cover of the provisions of article 149.1.21. ª of the Constitution, which attributes to the State the exclusive competence in the field of railways and inland transport which within the territory of more than one autonomous community.

Third final provision. Incorporation of European Union law.

By this order is incorporated into Spanish law Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001, concerning the allocation of the capacity of rail infrastructure, application of royalties for its use, and safety certification. Directive 2012/34/EU Parliament and the Council, of 21 November 2012, on the establishment of a single European railway area is also partially incorporated.

Fourth final provision. Entry into force.

This order shall enter into force on the day following its publication in the «Official Gazette».

Madrid, February 11, 2015.-the Minister of public works, Ana María Pastor Julián.