NETWORK STATEMENT. Annex B.3 Rail infrastructure utilisation contract GENERAL CONDITIONS. Chapter 1: General conditions

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1 NETWORK STATEMENT Annex B.3 Rail infrastructure utilisation contract Chapter 1: General conditions GENERAL CONDITIONS Article 1.1 Subject In accordance with the conditions set out by the Network Statement (NS) ( the present general conditions lay down the general administrative, technical and financial conditions governing the utilisation of the Belgian rail infrastructure by a railway undertaking, notwithstanding the particular conditions to be agreed upon with the railway undertaking concerned. Article 1.2 Scope The general conditions are applicable to movements by the railway undertaking on the Belgian rail infrastructure for which: o a capacity request which corresponds to the itineraries detailed in the railway undertaking s request for a safety certificate has been deemed justified; o a capacity has been obtained. Article 1.3 Definitions For the purposes of the present general conditions, the definitions of the various terms used are those provided in Article 5 of the law dated 4 December 2006 on the utilisation of the rail infrastructure. For the purposes of the present general conditions: o the term staff of the railway undertaking refers to all the agents employed by it, its representatives, the staff of the undertakings which act at its request or on its behalf, and the staff of its transport auxiliaries within the meaning of the plan for security staff published in the Ministerial Decree of 9 June 2009; o the term railway undertaking s rolling stock refers to all the types of vehicles (locomotives, wagons and other vehicles) used by the railway undertaking, by undertakings that act on its behalf to perform its rail transport services, and by its transport auxiliaries within the meaning of the Ministerial Decree of 30 July Article 1.4 Services The Infrastructure Manager shall provide the railway undertaking with the minimum services and the performances that relate to the access to the network laid down in Article 10 2 of the law dated 4 December The charges and the charging principles for each service are those set out in the Network Statement (NS) under point 6. The additional services to be provided, as per Article 10 3 of the law dated 4 December 2006, are cited by name in the particular conditions. The charges and the charging principles for each service are set out in the NS and specified in the particular conditions. The ancillary services to be provided, as per Article 10 4 of the law dated 4 December 2006, are cited by name in the particular conditions. The charges and the charging principles for each service are set out in the NS and specified in the particular conditions. Services to be provided other than those cited above are described by name in the particular conditions. The charges to be applied and the charging principles for such services are likewise defined in the particular conditions. 07/12/2012 1/11

2 Chapter 2: Rights and obligations of the railway undertaking and the Infrastructure Manager with regard to the conditions for the utilisation of the Belgian rail infrastructure Article 2.1 Compliance with the rules governing the utilisation of the Belgian rail infrastructure and movement management The railway undertaking shall use the capacity assigned to it while complying with: o the technical and functional characteristics of the Belgian rail infrastructure used; o all of the safety rules and standards as regards the utilisation of the rail infrastructure set out in an annual inventory published in the Belgian Gazette in accordance with the law dated 4 December 2006; o all of the legal and regulatory texts, the Network Statement, the technical documents, the local protocols for the utilisation of the infrastructure and the service instructions applicable to the running of the infrastructure and the management of movements. The local protocols for the utilisation of the infrastructure and service instructions are cited in the particular conditions of the contract for the utilisation of the infrastructure. They are annexed to the present infrastructure utilisation contract, of which they form an integral part. The railway undertaking may not rely, in the performance of the contract, on any ignorance of the said texts. Capacity is assigned to the railway undertaking on a strictly personal basis, and for the transport service listed in the particular conditions. The railway undertaking may not transfer capacities or allow a third party or another service to benefit from them. Article 2.2 Rolling stock used by the railway undertaking to provide its transport services Obligations relating to the rolling stock The railway undertaking may use on the Belgian rail infrastructure only rolling stock which has been granted approval by the competent authority in the framework of the safety certificate. The railway undertaking undertakes not to use any other rolling stock than that in respect of which it has been granted the approval referred to above. The railway undertaking undertakes to maintain the rolling stock that it uses in good condition. It must communicate all the details to the Infrastructure Manager on request. The obligations and conditions set out in the present article apply to all rolling stock included in a train set for which the railway undertaking provides the traction, regardless of the owner of the rolling stock, and to any traction unit placed under the responsibility of the railway undertaking. In addition, the rolling stock, even when approved but used in the framework of an exceptional consignment, may be used by the railway undertaking only after the issue of an authorisation to use the rail infrastructure in which the particular conditions governing the utilisation of the infrastructure have been set out Liability The railway undertaking is totally liable for any damage which might result from the utilisation of rolling stock not approved or not suitable to travel on the Belgian rail infrastructure. It has no entitlement to any compensation following a decision by the Infrastructure Manager with regard to the utilisation of a piece of rolling stock not approved or not suitable to travel on the Belgian infrastructure. The railway undertaking is not entitled to the reimbursement of charges paid or the nonpayment of charges to be paid for non-utilisation of a train path because of the utilisation of rolling stock not approved or not suitable to travel on the Belgian infrastructure. 07/12/2012 2/11

3 The Infrastructure Manager will under no circumstances be held liable vis-à-vis the railway undertaking for any compensation in the event of average, damage, total or partial destruction, howsoever caused, suffered by any unauthorised rolling stock Withdrawal of rolling stock not approved or not suitable The Infrastructure Manager may stop the movement of a train set whose rolling stock or one of whose elements is not approved or suitable to travel on the Belgian rail infrastructure. To continue the operation of the train set on the infrastructure, the railway undertaking must first proceed with the withdrawal of the rolling stock not approved or not suitable. Should the railway undertaking not proceed with the withdrawal of the rolling stock concerned, the Infrastructure Manager may, notably in an emergency, do this on its own initiative or by calling on the services of another railway undertaking. The railway undertaking shall carry all of the costs associated with the withdrawal of the rolling stock not approved or not suitable. It shall not be entitled to any reimbursement of the charges paid or the non-payment of the charges to be paid for the non-utilisation of a train path. Article 2.3 Staff of the railway undertaking and of the transport auxiliaries employed to ensure the transport services Principle The railway undertaking shall ensure that its staff are informed and comply strictly with all of the technical standards and safety rules. The railway undertaking shall ensure, to the same extent, that its staff permanently abide by all the obligations vis-à-vis the Infrastructure Manager Withdrawal The Infrastructure Manager may stop the movement of a train set where the staff of the railway undertaking assigned to the safety functions fail to satisfy the technical standards and safety rules applicable on the Belgian rail infrastructure. To continue the operation of the train set on the infrastructure, the railway undertaking must first proceed with the withdrawal of the unsuitable staff and ensure their immediate replacement, or else proceed with the withdrawal of the rolling stock of which the driving was interrupted for that reason. If the unsuitable staff are not replaced, the Infrastructure Manager may call on staff from another railway undertaking to evacuate the train set. The railway undertaking concerned shall carry all of the costs, including the infrastructure charges, whether or not the infrastructure has actually been used. Article 2.4 Protection of the environment The railway undertaking shall ensure that the loading of the rolling stock used for the transport of goods, the provision of fuel for the traction stock and the transport itself, from the starting point (including the place where the train set is garaged) to its destination point is conducted in accordance with the environmental standards and does not generate any risk to the environment or to personal safety. The railway undertaking shall immediately notify the Infrastructure Manager of any threat or the appearance of any environmental pollution that it detects in the framework of the traffic on the infrastructure. The Infrastructure Manager may take any initiative and give any order that it deems necessary to prevent or limit an imminent danger to the environment. The railway undertaking shall immediately act upon all the instructions that it receives from the Infrastructure Manager and shall refrain from any behaviour designed to render ineffective the said acts and orders by the Infrastructure Manager. The railway undertaking shall impose this obligation on all of its staff. 07/12/2012 3/11

4 Article 2.5 Arrangements for the utilisation of the rail infrastructure The Infrastructure Manager shall make available to the railway undertaking, in due course, information on: o the capacity assigned to it as well as the restrictions and prescriptions applicable with regard to the infrastructure, safety, the performance of the service and the environment; o major modifications concerning the quality or the capacity of the infrastructure used by the railway undertaking. The railway undertaking shall use the capacity assigned to it with due regard to: o the technical and functional characteristics of the infrastructure; o the conditions relating to safety, the performance of the service, and the environment, as determined by the Infrastructure Manager. The railway undertaking shall provide the Infrastructure Manager with all the information required by the regulations regarding the composition of trains, the particular movement conditions planned, and shall act upon any demand for information from the Infrastructure Manager with regard to the railway undertaking staff s knowledge of the safety rules and standards applicable on the Belgian rail infrastructure. The railway undertaking shall stipulate, in the particular conditions, the list of its transport auxiliaries within the meaning of the plan for security staff and certify that each of them satisfies the technical standards and safety rules. The railway undertaking shall undertake to keep the said list up to date. The list is appended to the present contract for the utilisation of the infrastructure, of which it forms an integral part. The railway undertaking is not authorised to unilaterally modify the infrastructure, to damage it or to use it for purposes other than those for which it was designed, laid out or placed at its disposal The Infrastructure Manager and the railway undertaking concerned shall notify each other of the actual traffic conditions on the infrastructure. The railway undertaking shall immediately notify the Infrastructure Manager, of any danger of accident of which it is aware Compliance with the timetable a) Principle With a view to ensuring the proper utilisation of the infrastructure, the railway undertaking must comply with the traffic timetables communicated to it by the Infrastructure Manager. To this end, the railway undertaking must use only rolling stock compatible with the characteristics of the train path allocated. Should an event occur which causes disruption, the Infrastructure Manager may adapt the precise timetables or take measures likely to modify such timetables. b) Delays Unless provided otherwise in the particular conditions, the Infrastructure Manager and the railway undertaking may not claim, vis-à-vis each other and reciprocally, any compensation for any harm they may suffer as a the result of delays in the movement of the trains, of whatever origin (including accidents and/or incidents and/or damage to third parties). Consequently, the Infrastructure Manager and the railway undertaking will be solely responsible for carrying their costs and damage linked to such a delay, and each relinquishes any legal claim in that regard vis-à-vis the other. 07/12/2012 4/11

5 Article 2.6 Event causing disruption The definition of an event causing disruption is set out in the SSICF, part 5.5, which covers Measures to be taken in the event of delay, incident, distress, accident or abnormal situation. Should an event occur which causes disruption, the railway undertaking shall abide strictly by the Infrastructure Manager s instructions. The Infrastructure Manager may make use, insofar as necessary for the performance of its task, of the railway undertaking s operating resources. Fair payment shall be made in return for such use, save where the resources used are used to the benefit of the railway undertaking. If such utilisation is systematic, the Infrastructure Manager shall first conclude an agreement with the railway undertaking on the implementation of the resources and on the corresponding remuneration. If, for the needs of the railway undertaking, the Infrastructure Manager is required to call on a third party, the associated costs shall be chargeable in full to the railway undertaking. The Infrastructure Manager cannot compel the railway undertaking to take over the transport services of another railway undertaking, except: o to board passengers from a train in distress and/or convey them to the next station from which they can continue their journey; o to free tracks occupied by a train in distress and ensure the resulting removal operations. Should an event occur which causes disruption, the Infrastructure Manager will take into account the interests of the parties and of third parties. Article 2.7 Withdrawal of train paths o The Infrastructure Manager may suspend or withdraw the right to use the capacity assigned in accordance with point of the NS. o The railway undertaking holding infrastructure capacities may give up the use of part or all of the capacities assigned in accordance with point point 3 of the NS. o The Infrastructure Manager may modify the capacities assigned in the event of a disruption in accordance with point 4.8 of the NS. Article 2.8 Right of control a) The railway undertaking shall collaborate with the safety enquiries, audits and inspections by the Infrastructure Manager or carried out at the request of the Infrastructure Manager or of any competent authority, and shall impose this obligation on the members of its staff, its representatives and contracting partners. The Infrastructure Manager shall decide autonomously on the advisability or the necessity for the conduct of such enquiries, audits and inspections, within the limits of the responsibilities expressly assigned to it by the law or by a decision. The railway undertaking may refuse to submit to such audits, enquiries or inspections only where there is a manifest abuse of power. b) The collaboration of the railway undertaking, its staff, representatives and contracting partners shall consist of: following the instructions by the competent staff of the Infrastructure Manager; providing the competent staff of the Infrastructure Manager, at its request, with any information, data and documents, and as appropriate, keeping or copying such information, data and documents; providing the competent staff of the Infrastructure Manager, at its request, with all useful objects; providing the competent staff of the Infrastructure Manager, at its request, with access to all vehicles and installations; authorising the competent staff of the Infrastructure Manager, at its request, to use the railway undertaking s trains as necessary in the framework of the collaboration; withdrawing all vehicles and installations from service for as long as necessary or as appropriate until such vehicles or installations are once again deemed to be fit for the 07/12/2012 5/11

6 performance of the service, in accordance with the environmental provisions and all the technical standards and safety rules; authorising the staff of the Infrastructure Manager to have themselves accompanied by other persons and seeing to it that such persons enjoy the same facilities as the Infrastructure Manager s staff themselves. c) In the course of the enquiries, audits and inspections cited in point a), the Infrastructure Manager will seek to keep the impact on the performance of the railway undertaking s activities to the bare minimum. Chapter 3: Charging for the utilisation of the Belgian rail infrastructure Article 3.1 General charging rules The railway undertaking shall pay the Infrastructure Manager the charge payable by virtue of Articles 46 to 60 of the law dated 4 December 2006 with due regard to the conditions set out in point 6 of the NS. The payment details are stipulated in the particular conditions. A monthly advance is payable by the railway undertaking with regard to the train path charges (lines and installations) and the shunting charges. The way in which this advance is calculated is set out in the particular conditions. The advance must be paid on the 20 th of the month preceding the running month concerned. The Infrastructure Manager shall calculate the total charges payable for the utilisation of the infrastructure at the end of each month, with due regard to the advances already received. In the event of the suspension or withdrawal of the capacity by the Infrastructure Manager, the railway undertaking shall still be required to pay the amount of the charge owing for the said capacity until the date of the withdrawal or suspension (point of the NS). In the event of the relinquishment of the capacity by the railway undertaking, payment of the charge is subject to the conditions stipulated in point of the NS. In the event of a restriction or disturbance which affects traffic because of works, the charge is payable except in the case of the total removal of the traffic (point of the NS). The railway undertaking shall pay the Infrastructure Manager the charges for the services provided by virtue of Article 1.4 of the present general conditions. The payment details are set out in the particular conditions. The railway undertaking shall pay the charges for the other services to the Infrastructure Manager in accordance with the details laid down in the particular conditions. Article 3.2 Disputed invoices Notification of a dispute regarding an invoice (or one or more elements therein) shall not have the effect of suspending the obligation to settle the whole of the sums billed within the deadlines required. Article 3.3 Billing conditions The railway undertaking shall stipulate a billing address in the particular conditions and indicate the payment method chosen. The railway undertaking shall notify the Infrastructure Manager of any change to the billing address or the payment method. The change will take effect on the first day of the second month following notification to the Infrastructure Manager. 07/12/2012 6/11

7 Article 3.4 Default of payment Failure to make full payment, within a deadline of 30 days after receipt of the invoice, of the sums payable shall result in the automatic addition of legal interest in accordance with the conditions set out in point of the NS. On top of the interest, a fixed sum of 100 Euros net of tax shall be added to cover handling costs. In the event of failure to meet two successive payment deadlines, the Infrastructure Manager may, in addition, decide to suspend the right to use the infrastructure for the railway undertaking concerned. The Infrastructure Manager shall use all legal avenues to recover the sums due vis-à-vis the railway undertaking. Chapter 4: Administrative conditions Article 4.1 Licence and safety certificate Access to the Belgian rail infrastructure and the utilisation of the latter implies that the railway undertaking using it holds a licence and a safety certificate issued in compliance with Community and national rules. The railway undertaking shall submit to the Infrastructure Manager a copy guaranteeing the conformity of the original licence and safety certificate documents. The railway undertaking shall submit to the Infrastructure Manager, as promptly as possible, all information with a potential impact on the validity of its licence or its safety certificate. On the renewal of the licence or the safety certificate, the railway undertaking shall notify the Infrastructure Manager as quickly as possible, and in any case within 15 days of their issue, communicating to it a copy guaranteeing the conformity of the original documents. Article 4.2 Insurance The railway undertaking undertakes to take out, and certifies that it has kept in force throughout the entire duration of the performance of the contract for the utilisation of the Belgian rail infrastructure, an insurance policy or an equivalent measure in accordance with Belgian legislation and the amounts specified in the Ministerial Order dated 28 July 2005 setting the minimum amount for the cover of railway undertakings civil liability to cover all the pecuniary consequences of its criminal and/or contractual civil liability on account of physical, material and non-material harm, whether direct or indirect, caused to the Infrastructure Manager or to any third party in the framework of the performance of the contract for the utilisation of the Belgian infrastructure. The railway undertaking shall supply the Infrastructure Manager, on signature of the contract for the utilisation of the rail infrastructure, and no later than 8 days before the utilisation of the train paths allocated, with a signed and dated attestation from its insurer or a document attesting to the existence of a measure equivalent to insurance and complying with Belgian legislation. Such an attestation or document shall state the amounts and the scope of the financial cover (including the insurance excesses or the limits on the cover) as well as the period of cover of the validity of the policy taken out or the measure. The railway undertaking shall notify the Infrastructure Manager of any major modification to its insurance conditions or cover equivalent to insurance before it enters into force. Chapter 5: Liabilities and damage Article 5.1 Liability of the Infrastructure Manager I. The Infrastructure Manager shall be liable: a) for physical damage (death, injury or any other impact on physical or mental integrity); b) for material damage (destruction of or damage to moveable and immoveable goods); c) for pecuniary damage resulting from damages payable by the railway undertaking in virtue of the Uniform CIV Rules and the Uniform CIM Rules which it causes to the railway undertaking or to its auxiliaries during the utilisation of the infrastructure and of which the cause lies in the infrastructure. 07/12/2012 7/11

8 II. The Infrastructure Manager shall be relieved of this liability: a) in the case of physical damage and pecuniary damage resulting from damages payable by the railway undertaking in virtue of the Uniform CIV Rules: i. if the harmful event was caused by circumstances outside the operation, which the Infrastructure Manager was unable to avoid, despite the diligence required in accordance with the particularities in the individual case, and whose consequences it could not prevent; ii. insofar as the harmful event is due to the fault of the person suffering the harm; iii. if the harmful event is due to the behaviour of a third party, which the Infrastructure Manager was unable to avoid, despite the diligence required in accordance with the particularities in the individual case, and whose consequences it could not prevent. b) in the case of physical and pecuniary damage resulting from damages payable by the railway undertaking in virtue of the Uniform CIM Rules, where the damage is caused by the fault of the railway undertaking or by an order by the railway undertaking that is not attributable to the Infrastructure Manager or on account of circumstances which the Infrastructure Manager was unable to avoid, and whose consequences it could not prevent. III. If the harmful event is due to the behaviour of a third party and if, despite that, the Infrastructure Manager is not entirely relieved of its liability in accordance with point II a), it shall be answerable for the whole within the limits of those Uniform Rules, notwithstanding its potential right to take recourse against the third party. IV. The parties may, within the limits of the particular conditions, agree whether and to what extent the Infrastructure Manager is to be liable for damage caused to the railway undertaking following a disruption in operations. Article 5.2 Liability of the railway undertaking I. The railway undertaking shall be liable: a) for physical damage (death, injury or any other impact on physical or mental integrity); b) for material damage (destruction of or damage to moveable and immoveable goods) that it causes to the Infrastructure Manager or its auxiliaries during the utilisation of the infrastructure by the means of transport used or by the persons or goods carried. II. The railway undertaking shall be relieved of this liability: a) in the case of physical damage: i. if the harmful event was caused by circumstances outside the operation, which the railway undertaking was unable to avoid, despite the diligence required in accordance with the particularities in the individual case, and whose consequences it could not prevent; ii. insofar as the harmful event is due to the fault of the person suffering the harm; iii. if the harmful event is due to the behaviour of a third party, which the railway undertaking was unable to avoid, despite the diligence required in accordance with the particularities in the individual case, and whose consequences it could not prevent. b) in the case of material damages where the damage is caused by the fault of the Infrastructure Manager or by an order by the Infrastructure Manager that is not attributable to the railway undertaking or on account of circumstances which the railway undertaking was unable to avoid, and whose consequences it could not prevent. III. If the harmful event is due to the behaviour of a third party and if, despite that, the railway undertaking is not entirely relieved of its liability in accordance with point II a), it shall be answerable for the whole within the limits of the uniform rules governing the utilisation of the rail infrastructure (COTIF-CUI). 07/12/2012 8/11

9 IV. The parties may, within the limits of the particular conditions, agree whether and to what extent the railway undertaking is to be liable for damage caused to the Infrastructure Manager following a disruption in operations. Article 5.3 Concomitant causes a) Where causes attributable to the Infrastructure Manager and causes attributable to the railway undertaking have contributed to the damage, each party to the agreement shall be answerable only to the extent that the causes attributable to it in virtue of points 5.1 and 5.2 have contributed to the damage. If it is impossible to establish the extent to which the respective causes have contributed to the damage, each party shall bear the damage it has suffered. b) Point 5.3 a) is applicable by analogy where causes attributable to the Infrastructure Manager and causes attributable to several railway undertakings which have used the same rail infrastructure have contributed to the damage. c) In the case of damage cited in point 5.2, the first phrase of point 5.3 a) is applicable by analogy where causes attributable to several railway undertakings which have used the same infrastructure have contributed to the damage. If it is impossible to establish the extent to which the respective causes have contributed to the damage, the railway undertakings shall be liable in equal measure vis-à-vis the Infrastructure Manager. Article 5.4 Compensation in the event of death I. In the event of death, the compensation shall include: a) the inevitable costs following the death, notably those of transporting the body and its storage; b) if the death did not occur immediately, the compensation provided in point 5.5. II. If, because of the death, the persons in respect of whom the deceased had or would in the future have had an obligation of maintenance are deprived thereof, then they must also be compensated for the said loss. Action for compensation of persons whom the deceased was maintaining without being required to do so under the law remains subject to Belgian law. Article 5.5 Compensation in the event of injuries In the event of injuries or any other impact on physical or mental integrity, the compensation shall include: a) the necessary costs, notably those for treatment and transport; b) the repair of the damage caused, either through total or partial inability to work, or by an increase in needs. Article 5.6 Repair of other physical damage Belgian law determines whether and to what extent the Infrastructure Manager or the railway undertaking must provide compensation for physical damage other than that listed in points 5.4 and 5.5. Article 5.7 Form and amount of the damages payable in the event of death and injuries a) The compensation payments provided under point 5.4 b) and point 5.5 b) must be made in the form of capital. However, if Belgian law authorises the award of a pension, they shall be paid in that form where the person injured or those entitled under him or her referred to under point 5.4 b) so request. b) The amount of the compensation to be paid in virtue of point 5.7 a) shall be determined in accordance with Belgian law. Article 5.8 Lapsing of the right to invoke the limits on liability The limits on liability provided in the present agreement, together with the provisions of Belgian law, which limit the compensation payments to a set figure, do not apply if it is proven that the damage results from an act or an omission committed by the perpetrator, either with the intention of causing such damage, or recklessly and with an awareness that such damage was likely to arise. 07/12/2012 9/11

10 Article 5.9 Conversion and interest a) Where the calculation of the compensation involves the conversion of the sums expressed into foreign monetary units, it shall be made in line with the rate at the date and place of the payment of the compensation. b) The party entitled may demand interest on the compensation, calculated at a rate of five per cent per annum, starting from the day of the opening of an arbitration procedure, recourse before the arbitration tribunal provided in Part V of the Convention concerning International Carriage of Goods by Rail (COTIF) of 9 May 1990 (in the content of the modifying protocol of 3 June 1991) or the legal proceedings. Article 5.10 Liability in the event of a nuclear accident The Infrastructure Manager and the railway undertaking are relieved of the liability incumbent upon them in virtue of the present agreement where the damage has been caused by a nuclear accident and where, pursuant to the laws and prescriptions of a State governing the responsibility in the field of nuclear energy, the party operating a nuclear installation or another person substituted for that party is liable for the said damage. Article 5.11 Liability for auxiliaries The Infrastructure Manager and the railway undertaking are each liable for their own auxiliaries. Article 5.12 Other actions a) In all cases where the present agreement applies, any action for liability, in whatever regard, may be brought against the Infrastructure Manager or against the railway undertaking only under the conditions and limitations in this agreement. b) The same applies in the case of any action brought against the auxiliaries for which the Infrastructure Manager or the railway undertaking vouch in virtue of point Article 5.13 Dispute agreement Unless otherwise stipulated in the particular conditions, each party renounces the right to assert any claim vis-à-vis the other for damages deriving from the same event which are less than Chapter 6: Duration of the contract o o The present utilisation contract is concluded for a timetable period renewable tacitly. The two parties may terminate the present contract by registered letter dispatched to the Infrastructure Manager no later than 3 months before the issue of the current timetable period. The tacit renewal of the contract does not prejudice the obligation of the railway undertaking to file a fresh request for train paths for each timetable period. The present utilisation contract terminates automatically at the end of the timetable period if the railway undertaking has not filed a fresh request for train paths for the following timetable period. The present contract may, however, be terminated automatically in the following circumstances: Bankruptcy or composition of the railway undertaking; Withdrawal of the railway undertaking s rail licence or safety certificate. The termination shall take effect from the date as of which the licence or safety certificate has been withdrawn. Withdrawal of the right to use the capacity: following serious or repeated failure to abide by one of the obligations in the contract; following failure by the railway undertaking to abide by the Belgian technical standards and safety rules, affecting the optimum utilisation of the rail infrastructure; if, during the previous service timetable, the capacities assigned have been used by the railway undertaking for an average of less than 80% of the number of weekly movements planned; following failure to pay the charges for the utilisation of the Belgian rail infrastructure during two successive periods; 07/12/ /11

11 Throughout the suspension of the licence, the safety certificate or the rights to use the capacity, all the obligations upon the Infrastructure Manager shall be suspended vis-à-vis the railway undertaking. Chapter 7: Confidentiality Each party undertakes not to divulge the particular conditions in the contract or any confidential information of a commercial nature in the contract to a third party without the prior consent of the other party, unless expressly provided under Belgian regulations or law. Chapter 8: Applicable law and competent jurisdiction Article 8.1 Applicable law The contract for the utilisation of the Belgian rail infrastructure is subject to the provisions of Belgian law. Article 8.2 Competent courts Notwithstanding the competences granted by the law to other bodies, disputes relating to the present utilisation contract shall fall exclusively under the competence of the Brussels Commercial Court. Article 8.3 Prescription Unless provided otherwise under international law, actions based on the present contract shall be timebarred after three years. The prescription shall run from the day that the damage occurred. Chapter 9: Miscellaneous provisions Article 9.1 Entry into force of the new provisions All the legal or regulatory provisions, or those referred to in the NS relating to the present contract for the utilisation of the rail infrastructure which enter into force after the signature of the present utilisation contract, shall apply automatically to the present contract for the utilisation of the rail infrastructure. Article 9.2 Incompatibility In the event of incompatibility between one clause in the general conditions and one in the particular conditions, the latter shall prevail. Article 9.3 Additions Additions to the utilisation contract shall be binding only if they have been agreed upon in writing and appended to the contract for the utilisation of the infrastructure. Article 9.4 Invalidity The invalidity of one or more clauses in the contract for the utilisation of the rail infrastructure shall not render the said contract invalid. Article 9.5 Designated persons The parties to the contract shall, in the particular conditions, designate one or more persons empowered to take operational decisions within a very short period, notably with regard to operation and the management of disrupted traffic situations. 07/12/ /11