ERFA is concerned that the new draft implementing act (IA) submitted by the European Commission to public consultation, will not improve the conditions for a fair access to service facilities in Europe. The large discretion given to rail Regulators to exempt facilities from all the provisions of the implementing act creates major loopholes and could result in the inconsistent application of exemptions in different Member States, potentially distorting the rail market and putting at risk the effective applicability of the legislation. The implementing act is needed to codify best practices, provide clarity and provide a predictable framework, helping national authorities and regulators to implement EU rules in a consistent manner. By introducing the possibility for large exemptions, the current draft is endangering the opportunity to improve access to service facilities for all railway undertakings in Europe. This is inconsistent with the initial intentions of the European Commission and against the spirit of the Recast Directive to have an open and fair access to essential rail infrastructures. Due to large exemptions, the useful provisions improving transparency and non-discrimination, and ensuring the optimum effective use of facilities would be ineffective. Transparency being the prime condition for a well-functioning market, we strongly support the service facility description (article 4) as it will facilitate access to service facilities for all railway undertakings, irrespective of their size or their position on the market. In that regards, the publication of charges and discounts is very important since they are often used as a hidden tool to discriminate new entrants.
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