The Commission decided today to refer Spain to the Court of Justice of the European Union for failing to correctly transpose and apply Directive 2012/34/EU establishing a single European railway area.
The Commission takes the view that the rail regulatory framework in Spain is in breach of several provisions of the directive concerning: the management independence of the infrastructure manager – in particular the determination of infrastructure charges, the management of railway undertakings according to commercial principles, and the correct drafting of contractual agreements.
In May 2018, the Commission therefore sent a letter of formal notice, to which Spain replied in January 2019, informing the Commission that some of the objections raised had been solved through new legislation adopted, while others required further work. However, the Commission considered that Spain had failed to ensure the correct transposition of several articles of the Directive and consequently sent a reasoned opinion in October 2019. In December 2022, Spain notified the Commission that it had transposed further measures, but the Commission’s analysis concluded that not all of its points had been addressed.
The Commission has therefore decided to refer Spain to the Court of Justice of the European Union.
EU rules, including Directive 2012/34/EU, have helped create an open European rail market; railway operators have widened the choice of services available and attracted new customers away from less sustainable modes of transport.
The Commission believes that the transposition and application of Directive 2012/34/EU in Spain is still incomplete in several aspects.
While Spain modified its law regarding the determination of infrastructure charges in a direction that may potentially meet the requirements set under the Directive, it appears that the new system is not yet operational: the infrastructure manager (ADIF) now enjoys an appropriate level of independence in setting up the charging scheme, but Spanish law includes a transitional provision that suspends the applicability of the new rules until the infrastructure manager approves and publishes the new arrangements.
The law does not, however, contain any provision requiring ADIF to implement the new system within a set deadline. Unless action is taken swiftly, track access charges will be considered de facto as taxes, to be established in the incoming Spanish Budget Laws for 2024 and 2025. In these circumstances, there is a risk that the old system will continue to apply until 2024/2025. As a consequence, railway undertakings will be unable to challenge track access charges. Since they are included in a law, such charges cannot be challenged before the Spanish Courts.
Furthermore, the independence of the boards of the infrastructure managers and the incumbent railway undertaking are not clearly ensured. Considering the composition of the board, which is appointed by the Ministry of Transport, the Ministry’s right to terminate members’ mandates and the decision-making rules, it must be concluded that the State is in effect able to exercise decisive influence on management board decisions, including those on ticket prices.
Finally, key elements are missing in the contractual agreement between the Spanish government and the infrastructure managers. It lacks, for example, key performance indicators related to efficiency and a decrease in access costs.