In 1991, the European Community adopted Directive 91/440 on the development of Community railways. The aim of this directive was to ensure that the Community`s railways accepted the requirements of the internal market and improved their efficiency. To this end, Member States had to ensure the administrative independence of railway companies, separate the management of the operation and infrastructure from the provision of rail services and allow access to Member States` networks for international railway associations and railway companies active in the combined international transport of goods. These objectives involve a restructuring of the rail sector and justify the first step towards opening up access. Rail transport is subject to general competition rules, for example. B in case of abuse of dominant position. In addition, a range of industry regulations are in place to facilitate and promote competition. The European Union`s rail policy considers competition between railway companies to be a key element of efficient operation (Directive 91/440/EEC). Since European and Dutch railway markets have traditionally been dominated by state-owned enterprises with a total monopoly on railways (both in administration and in operations), several support rules have been needed to allow the gradual introduction of open access and a level playing field.
The infrastructure manager must make the minimum access package available to all railway companies in a non-discriminatory manner. Part of this package concerns the processing of applications for rail infrastructure capacity and the right to use the allocated capacity (Article 13, Section 1, and Appendix II of the 2012/34/EU Directive, transposed in Article 61 of the Railway Act). Rail companies must pay for the minimum access package – the Railway Access Tax (TAC) – set and collected by network managers. This TAC only reflects the costs directly borne by the rail service. These are the costs that ProRail « can objectively and robustly demonstrate that they are directly triggered by the operation of rail traffic » (Article 31, Section 3, of the 2012/34/EU Directive and Regulation (EU) 2015/909). Over the past decade, the calculation of these costs has been the subject of much discussion. In the Netherlands, several proceedings are under way regarding the direct costs that ProRail has attempted to charge rail companies (see www.acm.nl/en/publications/publication/6336/NMa-ProRail-must-lower-rail-tariff-charged-to-NS). The same is true for other European countries.
The European Commission wanted to clarify what elements could or could not be included in the TAC. To this end, the Commission has set out the modalities for calculating these costs in Regulation (EU) No 2015/909. ProRail also has the right to suspend the service of a rail transport provider. If there is no access contract between the network manager and a railway company, the railway company no longer has access to the rail infrastructure, even though it had an access contract in the past.