Sector:

Transport – Railways

Name of Agreement:

Individual Usage Contract

Type of Agreement:

Track Access Agreement

Year of Agreement/ Draft:

2015

Principal Author(s)

DB Netz AG

Annotated by:

Susanne Foerster, Consultant, LEGPS, World Bank

Purpose and Context:

Model contract was developed in accordance with the EU railway regulations, which provide for an open access regime.

Circumstances where this contract may be appropriate:

Countries in Europe and Central Asia that aim to implement access regimes in compliance with the EU access regulations.

Drafted for common law/ civil law jurisdiction:

Drafted for civil law jurisdiction; could be adapted to common law jurisdiction.

Main Features:

1. Contract Period: From date of signature by both parties to the second Saturday in December (maximum: one year).    

2. General Access Requirements: RU needs to be in possession of

• Individual Usage Contract (2.2.1 Network Statement)
• Licenses, Permist and Safety Certificate (2.2.2 Network Statement)
• Liability Insurance (2.2.3 Network Statement)

3. Access to Infrastructure and Services Provided (3.1.1 GTCURI; 2.3.2, 5 Network Statement): IM grants RU right to use rail network in form of allocated train paths for railway freight and passenger transport. Right to track access includes services of minimum access package listed in point 1 of Annex II of Directive 34/2001.

Access to service infrastructure (e.g., marshalling yards, freight terminals etc.) and traction current is provided by different infrastructure managers and requires separate contracts.

4. Management and Maintenance of Infrastructure (3.5 Network Statement, 3.4.2 GTCURI). IM responsible for management and maintenance of railway infrastructure. Detailed provisions on procedures to be applied with regard to works on the network that may affect third party use (3.5 Network Statement). IM to inform RU about status of and changes to relevant train paths prior to departure of the train (e.g., engineering work, temporary speed restrictions) (3.4.2 GTCURI).

5. Safety of Operations (2.7, 2.8 Network Statement, 3.2 d GTCURI): RU to ensure that rolling stock has undergone homologation for use in service facilities of IM, is authorized by competent authorities and compatible with all relevant rail infrastructure. RU responsible for maintenance and inspection of rolling stock. RU to inform IM prior to departure of trains about all relevant features of trains (e.g., length, weight, irregular traction, speed restrictions, dangerous goods etc.). RU to ensure that its employees have and uphold necessary qualifications and know-how (3.2. d GTCURI).

6. Track Access Charges (Chapter 6 Network Statement):

Charges for minimum access package, additional services and ancillary services. List of Charges published by IM. Charging system based on costs of providing and maintaining infrastructure, train paths standards for different performance levels, degree of utilization and market differences between passenger and freight trains.

The charge per train path kilometer depends on five components 

(= Route category x Train path product + performance based, noise-related and other charge components).

a. Route Categories: 12 route categories exist that are grouped by infrastructure features (i.e., maximum speed, number of tracks) and transport importance.

b. Train Path Products: Depends on specific use of train path by RU (e.g., express passenger traffic, regular-interval passenger traffic, express freight traffic).

c. Performance Based Component: Increase or reduction of charges depending on performance of IM and RU for selected trains. Incentive scheme is based on day-to-day recording of delays of trains that can be either allocated to IM or RU. It aims to enhance efficiency of network and reduce disruptions.

d. Noise-Related Component: Since 1 June 2013, the track access charge for freight trains includes a component that takes account of the noise-related impact of freight trains (6.2.4 Network Statement)

e. Other Charge Components: Extra charges or reduction of charges under certain circumstances specified in Network Statement (e.g., charges for extra heavy freight trains, cancellation of train paths, and reduction of charges for non-contractual condition of infrastructure).

7. Liability (8 GTCURI): Liability according to statutory provisions unless sated otherwise in the GTCURI or Network Statement. Liable party to indemnify other party against third-party claims. No compensation for damage to other party’s own property caused by ordinary negligence if damage does not exceed €10,000 and if there is no additional damage to third party property or personal injury requiring compensation.

8. Assignment  (11 GTCURI): No assignment of rights and duties under agreement by RU without prior written consent of IM. Assignment of rights and duties under agreement by IM to an affiliated company possible without consent of RU.

9. Force Majeure: No explicit force majeure clause; statutory provisions apply.

10. Termination (Art 12 GTCURI): Termination according to statutory provisions. IM may terminate contract in particular in the following events:

• Loss of necessary licenses, safety certificate and insurance coverage by RU;
• Insolvency of RU;
• Major breach of a safety-relevant obligation, failure to meet essential obligations after repeated notification;
• RU does not comply with justified request by IM to provide collateral.

11. Dispute Resolution (14 GTCURI): Parties may include arbitration clause in Basic Agreement on Infrastructure Use.

Possible additional provisions that it might be appropriate to include:

Provisions that may not be advisable to replicate/ may need further thought:

Provisions of wider general use:

Charging system reflects costs of providing and maintaining infrastructure, train path standards for different performance levels, degree of utilization, market differences between passenger and freight trains and takes day-to-day performance of IM and RU as well as the impact of noise from rail freight traffic into account.

Experience Since Coming Into Force (including any amendments)/ if draft form, whether it has been applied:

Tracking Number:

Germany_Model Track Access Agreement (Network Statement DB Netz)_EN.pdf

Germany_Model Track Access Agreement (Schienennetznutzungsbedingungen DB Netz)_DE.pdf