On 20 November 2018 the European Commission issued the Implementing Regulation (EU) 2018/1795 laying down procedure and criteria for the application of the economic equilibrium test pursuant to Article 11 of Directive 2012/34/EU of the European Parliament and of the Council.
Pursuant to the provisions of paragraph 1 of Article 11 of the Directive 2012/34/EU, member states may limit the right to access to the public railway infrastructure for carriers in railway passenger transport for new service of passenger transport between the location of departure and location of destination if the same route or an alternative route is already included in the contract for providing a public service and if implementing this right would threaten the economic balance of the contract for providing the public service. The threat to the public balance is assessed out by the regulatory body, i.e. the Agency, based on paragraph 2 of Article 11 of the Directive.
In accordance with the provisions of paragraph 4 of Article 38 of the Directive 2012/34/EU, when an applicant plans to apply for infrastructure capabilities to provide a new railway passenger transport service in a member state where the right to access to railway infrastructure is limited in accordance with Article 11, they are obligated to inform the infrastructure administrators and the regulatory bodies at least 18 months before the working timetable the request for capacities pertains to comes into effect. In order for a regulatory body to assess the possible economic effects on existing contracts for providing a public service, the regulatory body must ensure that all competent bodies who allocated the railway passenger transport service along this route, as defined in the contract for providing a public service, and all other interested applicable bodies who have the right to limit access in accordance with Article 11, and all carriers in railway transport who are implementing the contract for providing a public service on the rout of this railway passenger transport service be informed within 10 days at the latest.
The procedures and the methodology for testing the economic balance are described in the attached document.
Commission Implementing Regulation (EU) 2018/1795 of 20 November 2018 laying down procedure and criteria for the application of the economic equilibrium test pursuant to Article 11 of Directive 2012/34/EU of the European Parliament and of the Council
Directive (EU) 2016/2370 of the European Parliament and of the Council of 14 December 2016 amending Directive 2012/34/EU as regards the opening of the market for domestic passenger transport services by rail and the governance of the railway infrastructure