# Commission Implementing Regulation (EU) No 870/2014 (repealed)Show full title

Commission Implementing Regulation (EU) No 870/2014 of 11 August 2014 on criteria for applicants for rail infrastructure capacity            (Text with EEA relevance) (repealed)         

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U.K.

# Commission Implementing Regulation (EU) No 870/2014                     

# of 11 August 2014

# on criteria for applicants for rail infrastructure capacity

# (Text with EEA relevance) (repealed)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single                           European railway area(1), and in particular Article 41(3) thereof,                        

Whereas:

(1)Article 41(2) of Directive 2012/34/EU provides for the possibility for infrastructure managers to set requirements with regard                              to applicants to ensure that their legitimate expectations about future revenues and utilisation of the infrastructure are                              safeguarded.

(2)These requirements should be appropriate, transparent and non-discriminatory. They can only include the provision of a financial                              guarantee that should not exceed an appropriate level proportional to the contemplated level of activity, and assurance of                              the capability of the applicant to prepare compliant bids for infrastructure capacity.

(3)Financial guarantees could take the form of advance payments or guarantees provided by financial institutions

(4)The appropriateness of the requirements referred to in Recital (2) should take account of the fact that the infrastructure                              of competing transport modes, such as road and air transport, sea ships and inland waterways, is often free of user charges                              and hence also free of financial guarantees thereon. In order to ensure fair competition between transport modes, financial                              guarantees should be limited to the strict minimum in terms of level and duration.

(5)These financial guarantees are only appropriate if they are necessary for the purpose of reassuring the infrastructure manager                              about the future revenues and utilisation of the infrastructure. Considering that infrastructure managers are able to rely                              on the checks and surveillance of the financial fitness of railway undertakings under the licensing procedure in accordance                              with Chapter III of Directive 2012/34/EU, and in particular Article 20 of that Directive, the need for financial guarantees                              is further reduced.

(6)The principle of non-discrimination applies to those guarantees, therefore there should be no distinction between the guarantee                              requirements for privately and publicly owned applicants.

(7)Guarantees should be commensurate with the level of risk posed by the applicant for the infrastructure manager at different                              stages of capacity allocation. The risk is considered generally to be low as long as the capacity can be reallocated to other                              railway undertakings.

(8)A guarantee which is requested in relation to the preparation of compliant bids can only be considered as appropriate, transparent                              and non-discriminatory if the infrastructure manager sets out clear and transparent rules for preparing a capacity request                              in the network statement, and offers the necessary support tools to applicants. Since it is not possible to objectively determine                              the capability of preparing compliant bids before the application procedure, any lack of capability can only be determined                              after that procedure, on the basis of a repeated failure to put forward those bids or provide the necessary information to                              the infrastructure manager. The applicant is responsible for that failure which carries a sanction involving the exclusion                              of the applicant from the application for a specific train path.

(9)The measures provided for in this Regulation are in accordance with the opinion of the Committee referred to in Article 62(1)                              of Directive 2012/34/EU,

HAS ADOPTED THIS REGULATION:

## Article 1U.K.Subject matter

This Regulation sets out requirements for financial guarantees that an infrastructure manager may request to ensure that its                     legitimate expectations about future revenues are met without exceeding a level proportional to level of activities contemplated                     by the applicant. The requirements include in particular the conditions when a guarantee or an advance payment may be requested                     and the level and duration of a financial guarantee. In addition, this Regulation sets out certain details as regards the                     criteria to assess the capability of an applicant to prepare compliant bids for infrastructure capacity.                  

## Article 2U.K.Definitions

For the purpose of this Regulation, the following definition applies:
          -  ‘financial guarantee’ means: (a) advance payments to reduce and anticipate future obligations to pay infrastructure charges;                           or (b) contractual arrangements by which a financial institution such as bank commits to ensure that such payments are effected                           once they are due.                         

## Article 3U.K.Conditions for financial guarantees

1.The applicant may choose to meet a request for financial guarantee by means of either advance payment or contractual arrangement                        in the meaning of Article 2. Where an infrastructure manager requires an applicant to provide an advance payment for infrastructure                        charges, it may not at the same time request other financial guarantees for the same contemplated activities.                  

2.An infrastructure manager shall not request applicants to provide financial guarantees unless the credit rating of the applicant                        suggests that he might have difficulties in effecting regular payments for infrastructure charges. The infrastructure manager                        shall mention such credit ratings in the section on charging principles of its network statement, if applicable. The infrastructure                        manager shall base his request for a financial guarantee on ratings not older than two years provided by a credit rating agency.                  

3.The infrastructure manager shall not request a financial guarantee:                  

(a)from the designated railway undertaking if a financial guarantee has already been granted or paid by the applicant, which                        is not a railway undertaking, to cover future payments for the same contemplated activities;                  

(b)if the infrastructure charge is to be paid directly to the infrastructure manager by a competent authority pursuant to Regulation                        (EC) No 1370/2007 of the European Parliament and of the Council(2).                  

## Article 4U.K.Level and duration of financial guarantees

1.The level of financial guarantees regarding one applicant shall not exceed the estimated amount of charges incurred during                        two months of train operations requested.                  

2.Reservation charges paid in accordance with Article 36 of Directive 2012/34/EU shall be deducted from the maximum estimated                        amount of charges referred to in paragraph 1.                  

3.An infrastructure manager shall not require that a financial guarantee takes effect more than 10 days before the first of                        the month in which the railway undertaking starts the train operations the payment of infrastructure charges from which this                        financial guarantee is to cover. If the capacity is allocated after this point in time, the infrastructure manager may request                        the financial guarantee at short notice.                  

## Article 5U.K.Capability to prepare compliant bids for infrastructure capacity

The infrastructure manager shall not reject an application for a specific train path on grounds of failing to provide assurance                     of the capability to prepare a compliant bid for infrastructure capacity, within the meaning of Article 41(2) of Directive                     2012/34/EU, unless:                  

the applicant has failed to answer two subsequent requests requiring the provision of the missing information or has repeatedly                              responded in a way that does not satisfy the conditions set out in the network statement referred to in Article 27 of Directive                              2012/34/EU and in Annex IV to that Directive regarding the application procedures for train paths; and                           

the infrastructure manager is able to demonstrate at the request of and to the satisfaction of the regulatory body that it                              has taken all reasonable steps to support the correct and timely submission of applications.                           

## Article 6U.K.Transitional provision

Where necessary, infrastructure managers shall align their network statements to the provisions of this Regulation for the                     first timetable period following the entry into force of this Regulation.                  

# Article 7U.K.

This Regulation shall enter into force on the twentieth day following that of its publication the *Official Journal of the European Union*.                  

It shall apply from 16 June 2015.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 11 August 2014.

*For the Commission*                            

*The President*                            

José Manuel Barroso                            

1

OJ L 343, 14.12.2012, p. 32.                           

2

Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport                              services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70, OJ L 315, 3.12.2007, p. 1.