Theoretical basis for calculation of charges for access to railway infrastructure in the light of European Union law

Abstract

This article discusses the rules for calculation of charges levied for access to railway infrastructure under the European Union directives and based on economic categories such as "marginal costs", "direct costs", "fixed costs", and "variable costs". The introductory part of the article refers to Directive 91/440, historically the first legal act that referred to the issue of calculation of charges levied for access to railway infrastructure. Subsequently, the provisions of Directive 2001/14, adopted in the so-called "first railway package", and interpretative ambiguities in this regard were indicated. As a result, the European Commission had for several years promoted the idea that charges levied for access to railway infrastructure should be calculated on the basis of the theoretical category of "marginal cost", although no provision of the applicable directive indicated such category. Since the Member States did not accept this idea and used their own calculation systems, the European Commission gave rise to infringement proceedings before the Court of Justice of the European Union, accusing several Member States of infringing the provisions of Directive 2001/14, regarding the calculation of charges levied for access to railway infrastructure. Undoubtedly, the most important proceeding was the one against Poland, which concluded with the judgment delivered by the Court of Justice of the European Union of 30 May 2013. The final part of this article includes references to this judgment, as well as new provisions on the calculation of charges levied for access to railway infrastructure set forth in Directive 2012/34, and the implementing regulation 2015/909 issued on its basis.