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Railway infrastructure public or private?

The definition of “use of private railway sidings solely for one’s own purposes” requires pro-EU interpretation.

Until recently, the railway network in Poland, most of which was built in previous centuries, and railway sidings, were used mainly to serve large state-owned industrial companies. Since the transformation in Poland, these companies have undergone commercialisation and restructuring, resulting in their assets being distributed and in change to legal title to the sidings in use.

As a result, in the Polish railway network there are railway track systems that continue to function as a single railway siding and are the sole means of access to the publicly available railway network, even though they are formally separate and owned by various entities.

It may be unclear whether private sidings, i.e. sidings used on a daily basis solely for the purposes of the owner, for example in operation of the owner’s production or service facilities, cease to be private infrastructure if a different enity uses the tracks to reach other infrastructure or facilities, and does this to conduct business operations.

Who is entitled to use private infrastructure

A literal interpretation of Art. 4(1)(c) of the Polish Railway Transport Act, which provides a definition of “private infrastructure”, is that the wording “use of infrastructure solely for the owner’s or manager’s own purposes” means that ony the owner can use the infrastructure in question. A completely different interpretation is reached on a goal-oriented and systemic basis.

The amendment to the Rail Transport Act of 16 November 2016 fundamentally changed railway sidings rules. When regulations were adapted to comply with European standards, railway sidings were classified as railway infrastructure which must be made available. Due to the manner in which certain railway sidings are used, the term “private infrastructure” was introduced. As a result, an owner of railway sidings who uses them for their own purposes other than passenger services does not have to comply with formal requirements applicable to public railway infrastructure.

The Rail Transport Act does not address however situations in which private railway sidings are used as thoroughfare to other infrastructure or facilities. Meanwhile, the relevant regulation is found in Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area. Recital 12 of this directive states that “since private branch lines and sidings, such as sidings and lines in private industrial facilities, are not part of the railway infrastructure as defined by this directive, managers of those infrastructures should not be subject to the obligations on infrastructure managers under this directive”.

This section states that owners and managers of private infrastructure are not subject to provisions on granting access to railway infrastructure by allocating train routes and throughput capacity to a railway freight carrier for thoroughfare, manoeuvring or parking (Chapter 6 of the Rail Transport Act).

At the same time, the directive states that owners and managers of private railway sidings have an obligation to allow other entities thoroughfare via those sidings for access purposes and that “non-discriminatory access to branch lines and sidings should be guaranteed, irrespective of their ownership, where they are needed to get access to services facilities which are essential for the provision of transport services and where serving or potentially serving more than one final customer”.

It follows from this provision that thoroughfare using private sidings for access does not constitute giving access to infrastructure in the meaning of railway transport regulations, and that allowing thoroughfare in this way is not allocation of throughput capacity for thoroughfare, manoeuvring or parking

Recommendations made by the president of the Office of Rail Transport

In the EU legal system, the recitals of a directive are an element of a legal act and are a basis for interpretation of the directive. When directives are implemented into a national legal system, and when interpreting and applying the national legislation implementing a directive, the meaning of provisions and nature of obligations provided for in the recitals should be used as a guide.

In addition, the key principle for functioning of Community law in a member state legal system is the need to ensure that EU law is effective, even when national law is not compliant with Community law. The Court of Justice confirmed long ago that in cases of non-compliance of this nature courts and government authorities have an obligation not to apply national laws (see Simmenthal, Fratelli Costanzo and Erich Ciola).

The Polish railway market regulator therefore realised the need to resolve the question of applicability of the amendment to the Polish Rail Transport Act in the context of the legal system regulating rail transport and the rules for use of railway infrastructure at European level. To this end, “Recommendations by the president of the Office of Rail Transport for use for thoroughfare of tracks located within private infrastructure to other private infrastructure or service infrastructure facilities” were drawn up.

Under these recommendations, tracks enabling thoroughfare to other facilities do not cease to be private infrastructure even though at the same time the facilities are available to other entities for use for business purposes. The president of the Office of Rail Transport has pointed out that determining whether particular railway infrastructure, including railway sidings, is pubicly available infrastructure or private infrastructure is the responsibility of the manager. This is done by recording the status of the track system in the railway network statute.

The president of the Office of Rail Transport elaborated by saying that a manager of private infrastructure decides by itself whether tracks enabling thoroughfare to other facilities are private infrastructure and at the same time are a means of thoroughfare to other facilities, or whether the tracks are public and available for rail transport providers. In such a case the manager will consider the true circumstances, i.e. whether, in addition to granting access to tracks as thoroughfare, the manager of the sidings also uses them for its own purposes, or whether it allocates a train route and throughput to rail carriers.

“Service infrastructure facilities”

Under the 2016 amendment a new term, “service infrastructure facilities”, was included in the Rail Transport Act. This refers to structures, with the land, installations, and machinery designated for rendering the services described in the act, such as a passenger station service, goods terminal, or technical workstations (cleaning and washing rolling stock). Service infrastructure facilities are accessed by rail. At the same time, according to the interpretation by the president of the Office of Rail Transport, tracks for access to service infrastructure facilities are not an element of those facilities, unless the manager of the facilities so decides and states this in the statute. Only the tracks located within those facilities (for example goods terminal tracks) are somehow automatically an element of service infrastructure facilities.

If no decision is made to include tracks providing thoroughfare to service infrastructure facilities, then thoroughfare tracks that are an element of private infrastructure are classified according to the president of the Office of Rail Transport recommendations.

Allowing access does not rule out private status

To summarise, a manager can class railway tracks which are an element of private railway sidings providing access to other infrastructure or to service infrastructure facilities as private infrastructure. This applies to sidings connected in series located in certain places in Poland which are private infrastructure or to sidings which are private infrastructure connected in series to service infrastructure facilities.

Despite everything, according to current laws, granting access to thoroughfare tracks to other users means that railway infrastructure is used solely for the owner’s own purposes in the meaning of Art. 4 (1)(c) of the Rail Transport Act.

Mirella Lechna, legal adviser, Infrastructure, Transport, Public Procurement & PPP Practice, Wardyński & Partners