D E C I S I O N. 2. No extra costs were incurred in this procedure. Reasoning:

Transcription

1 REPUBLIKA SLOVENIJA MINISTRSTVO ZA PROMET MINISTER Langusova ulica 4, 1535 Ljubljana T: F: E: Ref. No.: /2010/ Date: 11 January 2011 Pursuant to Article 18d of the Railway Transport Act (Uradni list RS (Official Gazette of the Republic of Slovenia) No. 44/2007-UPB4 and 58/2009, hereinafter: ZZelP), with regard to the complaint filed by Rail Cargo Austria AG, Vienna, Austria, the Ljubljana branch office, Metelkova ulica 7, 1000 Ljubljana, represented by the authorised person, Ivan Novak, in the case of discrimination of a railway undertaking, the Ministry of Transport of the Republic of Slovenia hereby issues the following D E C I S I O N 1. The public railway infrastructure manager in the Republic of Slovenia, Slovenske železnice, d.o.o. (the Slovenian Railways), Kolodvorska ulica 11, Ljubljana, did not act in a discriminatory manner when it rejected the application of the railway undertaking, Rail Cargo Austria AG, the Ljubljana branch office, Metelkova ulica 7, 1000 Ljubljana, to perform shunting operations at Ljubljana Zalog Station on 26 September 2010, for trains No and No extra costs were incurred in this procedure. Reasoning: On 23 November 2010, the railway undertaking, Rail Cargo Austria AG, Vienna, Austria, the Ljubljana branch office, Metelkova ulica 7, 1000 Ljubljana (hereinafter: RCA), lodged a complaint against the public railway infrastructure manager in the Republic of Slovenia, Slovenske železnice, d.o.o., Kolodvorska ulica 11, Ljubljana (hereinafter: the public railway infrastructure manager), which was said to have overstepped its powers, hampering and discriminating against RCA in rejecting its application for shunting at Ljubljana Zalog Station on 26 September 2010 for trains No and In its complaint, RCA states that, due to the need for expert training of its train drivers, it applied for a train path for freight train transport for 26 September 2010 on the route Ljubljana Severna Dobova (train No ) and on the route Dobova Ljubljana Severna (train No ), and that it was allocated these train paths by the Decision of the Public Agency of the Republic of Slovenia for Rail Transport No /2009 ZP of 22 September The public railway infrastructure manager (Ljubljana

2 Transport Operational Unit) informed RCA, by telegram No of 22 September 2010, of the procedures required for provision of the train paths in question. In its complaint, the complaining party states that, on 24 September 2010, it informed the public railway infrastructure manager via electronic message of procedures that it would perform as a railway undertaking to be provided with the train paths in question. On the same day, however, RCA received telegram No from the public railway infrastructure manager (the head of Ljubljana Transport Operational Unit), cancelling telegram No of 22 September 2010 and explicitly prohibiting RCA from performing operations (the shunting of the trains in question) at Ljubljana Zalog Station. RCA is convinced that this decision of the public railway infrastructure manager is unlawful and that it represents unacceptable arbitrariness and an overstepping of powers on the part of the public railway infrastructure manager, and consequently also hampers and discriminates the railway undertaking, which does not operate in a system of social organisation with the public railway infrastructure manager. RCA is convinced that the following facts also testify to the aforementioned conduct of the public railway infrastructure manager: - RCA, which is registered in the Republic of Slovenia, has free access to the public railway infrastructure, as is also clear from EU legislation transposed into the national legislation of the Republic of Slovenia; in this particular case, free access was also acknowledged with the allocation of the train paths in question, the provision of which was then hampered; - RCA explicitly informed the public railway infrastructure manager (through the electronic message of 24 September 2010) that it would take into account the provisions of the Station Rules of Operation of Ljubljana Zalog Station when performing shunting operations at this station, from which the public railway infrastructure manager could definitely conclude that RCA ensures that its operational staff are familiar or acquainted with the provisions in question, as laid down in Chapter II of the Traffic Rules (Uradni list RS, No. 123/2007, hereinafter: the Traffic Rules); - if the public railway infrastructure manager believed that RCA violated rules regulating railway safety or that its actions were contrary to its safety certificate and the train path allocated, it should have informed the security authority and the Transport Inspectorate of the Republic of Slovenia of this in accordance with the provisions of the fifth indent of paragraph 4 of Article 11 of ZZelP; the public railway infrastructure manager, however, failed to do so, instead arbitrarily ascribing itself powers to prohibit the competing undertaking from performing certain tasks, although there was no specific reason for so doing; - from 4 December 2009 to 7 December 2009, during the change of switch 131 at Ljubljana Station, the public railway infrastructure manager arranged that railway undertakings would change locomotives of freight trains at Ljubljana Zalog Station; - shunting operations at Ljubljana Zalog Station were prohibited by the head of the operational unit on behalf of the public railway infrastructure manager, which is contrary to the provisions of point 2 of paragraph 2 of Article 96 of the Traffic Rules, under which the transport operational unit is responsible only for checking whether a railway undertaking has been allocated a train path for running an unscheduled train, while other decisions are within the competence of other services of the public railway infrastructure manager and other bodies responsible for ensuring the observance of railway safety regulations; Page od 8

3 - the statement of the public railway infrastructure manager that shunting operations at Ljubljana Zalog Station are allowed only upon agreement with the "national" railway undertaking, which RCA finds unacceptable and believes is obviously based on an understanding that the national railway undertaking, organised together with the public railway infrastructure manager in the same company, has priority in this area. In its complaint, RCA further states that it asked the public railway infrastructure manager for an explanation (letter No. 639/2010 of 11 October 2010) of this arbitrary and discriminatory treatment. RCA believes that the reply of the public railway infrastructure manager (letter No /2010 of 19 October 2010) contains an unfounded rejection of its statements, along with several inconsistent new reasons why RCA did not meet the conditions for shunting at Ljubljana Zalog Station. In this regard, RCA stresses that all the aforementioned facts and actions should be assessed from the standpoint of non-discriminatory access to resources for training, as provided in Article 18a of ZZelP. RCA concludes its complaint by requesting the regulatory body to consider the matter and to establish that the public railway infrastructure manager acted arbitrarily and discriminatory and overstepped its powers, and to prohibit the public railway infrastructure manager from acting in such a manner in the future. On the basis of the provisions of paragraph 5 of Article 18d of ZZelP, a railway undertaking, if it believes that it has been unfairly treated, discriminated against, or if damage was caused to it in any other way, has the right to lodge a complaint, in particular against the decisions of the railway infrastructure manager and the railway undertaking. On the basis of the reasoning outlined above, the complaint in question is permitted and was lodged by an entity entitled to do so. Within the meaning of paragraph 2 of Article 9 and paragraph 1 of Article 241 of the General Administrative Procedure Act (Uradni list RS, No. 24/2006-UPB2, 105/2006- ZUS-1, 126/2007, 65/2008 and 8/2010, hereinafter: ZUP), the complaint in question was submitted to the public railway infrastructure manager to state its position regarding the allegations of the complaining party and possible new facts and evidence. In its position with regard to the complaint (letter No /2010 of 7 December 2010), the public railway infrastructure manager confirms the fact that RCA was allocated the train paths in question and that the order of train paths also contained a request for removing and adding wagons at Ljubljana Zalog Station. The public railway infrastructure manager also believes that, on the basis of the train path allocated, RCA requested more from the public railway infrastructure manager than it was entitled to under the Contract on Track Access to Facilities, admitting that RCA did not satisfy the conditions provided by the Traffic Rules. The public railway infrastructure manager stresses that, pursuant to paragraph 3 of Article 12 of the Traffic Rules, the stations where a technological process of work is required from a railway undertaking that is to assemble or disassemble trains (perform shunting) at these stations are listed in the Network Statement of the Republic of Slovenia for 2010 (Annex 6/3 in which Ljubljana Zalog Station is listed). In this regard, it has drawn attention to the fact that, in point c) of Article 3 (regarding use of freight stations and terminals) of the Contract on Track Access to Facilities, the public railway infrastructure manager and RCA agreed that the extent and time of the use of freight stations for removing wagons from service and parking wagons would be specified in Page od 8

4 the technological process of work for the station. The public railway infrastructure manager reproaches RCA for manipulating the term "movement" and not mentioning "shunting". It further explains that point 67 of Article 2 of the Traffic Rules lays down that "movement" is "a common expression for all movement operations", and point 87 of Article 2 of the Traffic Rules lays down that "shunting" is "movement that occurs when the composition of a train is changed (adding or removing wagons); changing a train locomotive, adding or removing a pushing locomotive is not shunting". It stresses that, in the case in question, RCA wished to perform shunting at Ljubljana Zalog Station and that, under Part II of the Station Rules of Operation in force and the Technological Process of Work of the public railway infrastructure manager for the timetable period 2009/2010, shunting at this station is performed by the permanent shunting group of the Slovenian Railways undertaking (Slovenske železnice d.o.o.), through its freight transport business unit (PE tovorni promet). It also adds that, in its application for the train path in question, RCA did not take into account the provision of Article 38 of the Traffic Rules, which stipulates that shunting at stations with the permanent shunting group shall be managed directly by the shunting manager, who is permanently tasked with this work. With regard to RCA s complaint that during the interruption at Ljubljana Station that took place from 4 December 2009 to 7 December 2009, the public railway infrastructure manager arranged that locomotives were changed at Ljubljana Zalog Station, the public railway infrastructure manager believes that it took the right course of action, since these movements did not involve the shunting of train units, in which case undertakings would need the relevant technological process of work. With regard to RCA s complaint that movement operations at Ljubljana Zalog Station were prohibited by the head of the transport operational unit, the public railway infrastructure manager refers to the provisions of Article 96 of the Traffic Rules, which lay down the main tasks of the transport operational unit, including checking whether an undertaking has been allocated a train path to run an unscheduled train. The latter means that, in accordance with regulations in force, the public railway infrastructure manager prescribes procedures for running an unscheduled train in a special telegram, intended for the staff of both the railway undertaking and the public railway infrastructure manager. The public railway infrastructure manager further explains that, in the case of unscheduled trains No and for 26 September 2010, the dispatcher overlooked, in telegram No of 22 September 2010, that RCA did not satisfy the conditions for shunting at Ljubljana Zalog Station; the dispatcher's mistake was then corrected by his/her superior, who is tasked with supervising the staff of the transport operation unit in accordance with internal regulations in force. The public railway infrastructure manager believes that the complaint is unfounded as any action different from that taken by the public railway infrastructure manager would constitute a violation of implementing regulations governing railway safety. In view of the above considerations, the regulatory body has established that, on 16 September 2010, RCA requested the allocation of a train path for a particular purpose within the public railway infrastructure of the Republic of Slovenia (hereinafter: public railway infrastructure): via online application form No (inspection of the Application for the Allocation of Train Paths a web application of the public railway infrastructure manager) for train No on the route Ljubljana Severna Dobova, and via online application form No (inspection of the Application for the Allocation of Train Paths a web application of the public railway infrastructure manager) for train No on the route Dobova Ljubljana Severna. It Page od 8

5 is evident from the application for the allocation of a train path for train No that RCA requested permission to stop at the Ljubljana Zalog Station to remove wagons and at Trbovlje Station and Zidani most Station to change train drivers. It is evident from the application for the allocation of a train path for train No that RCA requested permission to stop at Zidani most Station and Trbovlje Station to change train drivers, and at Ljubljana Zalog Station to add wagons. RCA was allocated the train paths in question by the Decision of the Public Agency of the Republic of Slovenia for Rail Transport No /2009 ZP of 22 September It is evident from the decision that the provisions of Article 15 of ZZelP, laying down the conditions for the allocation of train paths, the criteria for the allocation of train paths provided in the Decree on the allocation of train paths and user fees for the use of public railway infrastructure (Uradni list RS, No. 113/2009), and the conditions and procedure for the allocation of train paths provided in the Network Statement of the Republic of Slovenia for 2010 were taken into account in the procedure for the allocation of the train paths in question. The Network Statement of the Republic of Slovenia for 2010, point 4.2.2, lays down that, during train path construction, the public railway infrastructure manager shall fulfil all the requirements specified in the order of train path construction (received from the allocation body, which takes into account the application for train path allocation in drawing up the train path construction order). It is evident from telegram No of 22 September 2010 ("telegram" is here an urgent business notice regarding railway transport organisation and management point 3 of paragraph 1 of Article 2 of the Traffic Rules), sent to the competent operational and executive railway staff of both the public railway infrastructure manager and RCA, that all the requirements set down by RCA in its application for train path allocation (including the request for permission to stop at the Ljubljana Zalog Station to remove wagons from service and at Trbovlje Station and Zidani most Station to change train drivers) were taken into account in the construction of the train paths in question. RCA and the public railway infrastructure manager consider all the above facts to be undisputed. The regulatory body has established that only after receiving the electronic message of 24 September 2010, by which RCA informed the public railway infrastructure manager of procedures that it was to perform as an undertaking in order to be provided with the train paths in question, did the public railway infrastructure manager ascertain that RCA did not satisfy the conditions for independently performing (granted) movement operations (shunting) at Ljubljana Zalog Station. This was why it sent a second telegram (telegram No of 24 September 2010), cancelling telegram No of 22 September The initial telegram was actually changed only in the part regarding a stop at Ljubljana Zalog Station (prohibition of operations). It informed RCA, via an electronic message dated 24 September 2010, that RCA did not satisfy the conditions for independently performing movement operations at Ljubljana Zalog Station. It substantiated this by saying that the train staff of the railway undertaking lacked knowledge of the local situation and were unfamiliar with the Station Rules of Operation and the Technological Process of Work of Ljubljana Zalog Station and the fact that, in that period, there were no shunting staff available at Ljubljana Zalog Station. It also noted that the envisaged movement operations could only be performed upon prior agreement with the Slovenian Railways undertaking (the freight transport business unit) on performing movement operations and ensuring the security of wagons. Point 67 of paragraph 1 of Article 2 of the Traffic Rules lays down that "movement" is "a common expression for all movement operations", and point 87 of paragraph 1 of Page od 8

6 Article 2 of the Traffic Rules lays down that "shunting" is "movement that occurs when the composition of a train is changed (adding or removing wagons); changing a train locomotive, adding or removing a pushing locomotive is not shunting". The public railway infrastructure manager rightly considered that RCA's request for removing and adding wagons at Ljubljana Zalog Station was a request for shunting. Paragraph 3 of Article 12 of the Traffic Rules lays down that, in the Network Statement, the public railway infrastructure manager shall publish a list of those stations where a technological process of work is required from a railway undertaking that is to assemble or disassemble trains (perform shunting) at these stations. Paragraph 2 of Article 33 of the Traffic Rules lays down that, in the Network Statement, the public railway infrastructure manager shall publish a list of those stations at which shunting is performed by the permanent shunting group. In the Network Statement of the Republic of Slovenia for 2010, the public railway infrastructure manager placed Ljubljana Zalog Station on the list of stations for which the technological process of work is required (Annex 6/3), and also on the list of stations at which the permanent shunting group performs shunting operations (Annex 6/2). Pursuant to provisions of paragraph 4 of Article 38 of the Traffic Rules, the train staff may perform shunting operations only at stations at which the permanent shunting group does not operate. The public railway infrastructure manager thus acted in compliance with regulations in force when it prohibited RCA from performing shunting operations independently at Ljubljana Zalog Station. However, it must be pointed out that, in constructing the train paths in question, the expert staff of the public railway infrastructure manager acted in a negligent manner, as they failed to take into account the limitations and restrictions that apply to shunting operations at Ljubljana Zalog Station. There is no doubt that the public railway infrastructure manager was aware of the fact that shunting at Ljubljana Zalog Station is performed by the permanent shunting group, and therefore it should have rejected RCA s request for performing shunting operations independently at this station when it constructed the train paths. However, the public railway infrastructure manager clearly found out that the train staff of RCA could not perform the shunting operations requested only after it received the electronic message, dated 24 September 2010, from RCA. Paragraph 2 of Article 12 of the Traffic Rules lays down that, for stations at which trains are assembled and disassembled by the permanent shunting group, the technological process of work must be provided by the infrastructure manager. The infrastructure manager must then send the provisions of the technological process of the work of the station relating to the work of train staff of a particular railway undertaking to the railway undertaking concerned, which publishes them in the Instructions on the railway line and the Manual for train drivers. The public railway infrastructure manager was mistaken in citing RCA s lack of knowledge of the local situation and lack of acquaintance with the Station Rules of Operation and the Technological Process of Work of Ljubljana Zalog Station as the reasons for rejecting the request for performing shunting independently at this station. At marshalling yards with a permanent shunting group, trains may be assembled or disassembled only by the permanent shunting group (RCA also acknowledges this in its complaint by stating that " at marshalling yards, as a rule, trains are assembled and disassembled by the permanent shunting group "). The action by the public railway infrastructure manager, which gave RCA a referral to the group responsible for shunting to arrange the shunting operations in question, may be considered appropriate in this regard. The public railway infrastructure manager unjustifiably referred to the fact that there was no shunting group at Ljubljana Zalog Page od 8

7 Station during the time period requested as the reason for subsequently rejecting shunting operations that had already been granted; the expert staff of the public railway infrastructure manager should have been familiar with this fact when constructing the train paths in question. In view of the above considerations, the regulatory body has established that RCA did not satisfy the conditions for performing shunting operations (removing and adding wagons) independently at Ljubljana Zalog Station for trains No and on 26 September The public railway infrastructure manager rejected RCA s request in accordance with the regulations in force and therefore did not treat RCA in a discriminatory manner or overstep its powers. However, in the procedure for allocating and providing the train paths in question, the public railway infrastructure manager may be reproached for acting in a negligent manner, in particular when constructing the train paths in question. The regulatory body is convinced that negligence on the part of the public railway infrastructure manager did not cause any damage to RCA since RCA was informed in good time that its request for shunting had been rejected. With regard to RCA's complaint that the public railway infrastructure manager allowed a change of locomotives to take place at Ljubljana Zalog Station from 4 December 2009 to 7 December 2009, the position of the public railway infrastructure manager that this particular case did not involve shunting should be upheld. RCA's complaint that shunting that had already been granted was cancelled by the head of the transport operational unit is unfounded, and the position of the public railway infrastructure manager that the superior of the head of the transport operational unit is responsible for correcting mistakes made by his/her inferiors should also be upheld in this regard. RCA mistakenly believes that the application for allocation of the train paths in question should also be considered from the standpoint of the right of a railway undertaking to non-discriminatory access to resources for training, as provided in Article 18a of ZZelP. Paragraph 1 of Article 18a of ZZelp provides that all railway undertakings that submit an application for a safety certificate have equal and non-discriminatory access to resources for the training of train staff, if training is required to fulfil the conditions for obtaining a safety certificate (and to continue to satisfy the conditions for maintaining the safety certificate). However, in order that this provision is understood correctly, it should also be noted that the provisions of paragraph 6 of this Article, which lay down that in the event that resources for training are accessible only within services performed by one railway undertaking or manager, resources and services shall also be accessible to other railway undertakings at a reasonable and non-discriminatory price, which is the cost price and may include a profit margin. Shunting services at a marshalling yard with the permanent shunting group certainly do not fall within the expert training of RCA s train drivers. As has been established, RCA s train staff is not allowed to perform shunting operations independently at Ljubljana Zalog Station (with the permanent shunting group), and for that reason, it would not be possible to allow them to undertake any possible independent training in shunting at this station. As no irregularities have been established in the conduct of the public railway infrastructure manager that would result in discriminatory treatment against RCA, a decision was reached as stated in point 1 of the operative part of this decision. Page od 8

8 No extra costs have been incurred in the administrative procedure and, pursuant to paragraph 1 of Article 118 of ZUP, a decision was reached as stated in point 2 of the operative part of this decision. Legal instruction: This decision is final in the administrative procedure. An administrative dispute may be initiated against this decision within 30 days of it being served. An administrative dispute may be initiated by a lawsuit either filed in writing directly, or sent by registered post to the Administrative Court of the Republic of Slovenia, Fajfarjeva 33, 1000 Ljubljana. It shall be deemed that the suit is filed with the court on the date when it is sent by registered post. The suit shall be filed in 3 (three) copies, with the original or a copy of this decision enclosed. By authority of the Minister Jožef DAJČMAN, M.Sc. Head of the Regulatory Body To be served: 1. Slovenske železnice, d.o.o. Kolodvorska ulica Ljubljana (personally according to the Administrative Procedure Act) 2. Rail Cargo Austria AG, Vienna, Austria Ljubljana branch office Metelkova ulica Ljubljana (personally according to the Administrative Procedure Act) 3. Document archive To be published: on the website of the Ministry of Transport Regulatory body Page od 8