Schienen-Control Newsletter Schienen-Control
Encouraging development in apf case duration despite record year
The apf arbitration board looks back on a turbulent year in 2022. A new record number of arbitration requests and proceedings was recorded in the rail sector. January 2023 also turned out to be one of the months with the highest number of requests since the apf was established. It is particularly pleasing that the duration of proceedings has nevertheless fallen significantly on average, with a high success rate.
As the national arbitration and enforcement body, the apf handles numerous complaints from passengers in rail, bus, ship, and air transport. On average, approximately three-quarters of arbitration requests relate to air travel, with rail accounting for one-quarter of requests. In 2022, the apf's rail arbitration body received more than 1,100 arbitration requests, resulting in almost 900 proceedings being conducted.
The aim of arbitration is to reach an agreement between the applicant and the railway company. The apf has succeeded in reaching such an agreement in 98% of the cases it has opened in the railway sector.
Despite this high number of cases, the duration of proceedings has decreased significantly across all modes of transport in recent years. In 2020, the average duration of proceedings at the apf was 101 days. In 2021, this figure was reduced to 87 days per case. In 2022, the apf succeeded in reducing the average duration of proceedings to around 31 days across all modes of transport. The decisive factors here were the dedicated efforts of the team of experts in the field of passenger rights, the constructive cooperation of the transport companies' complaints departments, and the elimination of more complex reimbursement cases in the wake of the COVID-19 pandemic.
Market update February 2023
In terms of market observation, it should be noted that the BMK has announced preliminary information about future transport service contracts with ÖBB Personenverkehr and WESTbahn, that ÖBB Infrastruktur's performance data for the fourth quarter of 2022 has been published, and that rail punctuality has deteriorated overall in 2022. We also provide information on relevant news from individual market participants.
Transport service contracts announced as preliminary information
On December 21, 2022, the BMK published preliminary information in the Official Journal of the European Union regarding future transport service contracts with WESTbahn and ÖBB-Personenverkehr for long-distance transport between Vienna and Innsbruck. The contracts are to be valid for ten years and stipulate that approximately half of the current transport services will be provided as public services in the future. The Railjet connection with ten stops between Vienna and Salzburg would therefore be discontinued and the transport hubs Attnang-Puchheim, Neumarkt am Wallersee, Wels, Amstetten, and St. Valentin would instead be served by WESTbahn in the future. These efforts led to petitions and other backlash in the affected communities. ÖBB Passenger Transport has since announced that it intends to continue serving the above-mentioned stops in the future.
On December 6, 2022, the Federal Ministry for Climate Protection, Environment, Energy, Mobility, Innovation, and Technology announced in the Official Journal of the European Union that existing contracts with ÖBB Passenger Transport for local transport services in the eastern region, Upper Austria, Styria, Tyrol, and Vorarlberg would be amended. This is intended to enable more frequent regional transport (hourly service), longer operating hours, and the use of double-decker railcars.
Market data from ÖBB Infrastructure
Compared to 2021 , freight transport shows a slight upward trend: transport performance (gross tonne-kilometers) has grown by more than two percent and is thus also significantly above the level of previous years. Freight train kilometers increased by two percent, while the absolute number of freight train journeys on the ÖBB infrastructure network declined again in 2022. Passenger train kilometers recorded an increase of almost six percent. The second quarter was the strongest for freight transport and the fourth for passenger transport.
Rail Cargo Austria's transport performance fell by just under two percent in 2022 compared to the previous year, causing its market share to decline by 2.5 percentage points to 60.2 percent. However, other major competitors (Lokomotion, TX Logistik, WLC, and CargoServ) also recorded declines and thus losses in market share. This in turn benefited both larger (ecco-rail and LTE) and smaller competing rail transport companies.
The main driver of growth in total freight transport was "traditional" block train transport, which saw annual growth of around seven percent. As a result, its share increased by just under two percentage points to almost 40 percent, while EWV and KLV each lost around one percentage point in terms of share, remaining at 29 and 31 percent respectively.
Punctuality in 2022 worse than in the previous year
The annual punctuality rate for ÖBB passenger transport, excluding train cancellations , was 95.5%. Long-distance transport achieved only 81.4%. The route with the lowest punctuality rates in the Austrian rail network in 2022 was the Brenner route, with 70.5% punctuality. Due to construction work in Germany, especially in the "German Corner," the punctual operation of ÖBB Passenger Transport's RailjetX proved challenging—only 74.7% of these connections reached their destination on time. The problems in the neighboring country also affected WESTbahn, which introduced cross-border services to Munich and Innsbruck in 2023. Its punctuality fell to 88%. RegioJet trains achieved an average punctuality of only 53.7%, mainly due to construction-related diversions in Czechia and Hungary.
Local and regional transport achieved a punctuality rate of 94.6%, including train cancellations due to the nationwide rail strike and unplanned replacement services. The Linz–Wels–Salzburg route was the most unpunctual route in Austria due to heavy mixed traffic. The most punctual route was that from Traisen to Hainfeld and Schrambach. Due in part to the strike day, November 2022 saw punctuality of less than 95% on almost all routes.
Other market observations
According to its own figures, Niederösterreich Bahnen transported around 1.2 million passengers in 2022. The company thus achieved passenger numbers on a par with those before the coronavirus pandemic. In 2023, a total of around 20 million euros will be invested in rail infrastructure.
ÖBB Passenger Transport introduced a check-in/check-out ticket solution with the "Simply Go" ticket. According to the corresponding press release, after check-out, the cheapest ticket option is charged. The feature can be activated via the ÖBB app and is based on GPS data for check-in and check-out.
On December 23, 2022, the first seasonal night train of this winter season operated by TUI and GreenCityTrip departed from Amsterdam to Austria. The connection will be offered once a week until the end of March. On the Austrian section of the route, the service will be operated by Wiener Lokalbahn.
The Swedish operator Snälltåget will also offer a connection between Malmö and Austria (Salzburg – Zell am See – Inntal) on Fridays between December 22, 2022, and March 10, 2023.
With the help of its new Serbian subsidiary Rail Cargo Carrier Southeast d.o.o., the Rail Cargo Group has been offering traction services for transit between Turkey and Central and Southeastern Europe since the beginning of the year.
With the entry into force of an amendment to the Waste Management Act, waste exceeding 10 tons must in future be transported by rail over distances of 300 km or more. The platform https://aufschiene.gv.at was established for this purpose, on which the offering energy supply companies must register.
According to the company, the reintroduction of freight transport between Jenbach and Fügen on the Zillertalbahn railway line developed extremely positively in 2022: a total of almost 220,000 net tons of timber were transported by rail, saving 22,000 truck journeys.
The European Union Agency for Railways (ERA) has granted BUDAMAR West GmbH safety certification for freight transport in Austria and Germany.
The Styrian engineering company MFL (Maschinenfabrik Liezen und Gießerei) will produce 40 innovative freight cars for the German logistics company Helrom (also operating as a rail transport company in Austria).
ECJ rulings relating to regulation
Last year saw the European Court of Justice (ECJ) issue rulings on issues relating to the regulation of the rail transport market. This article briefly summarizes the most important ECJ rulings.
Approval of road tolls in Poland
Based on a legal dispute between the Polish company Orlen KolTrans and the Polish regulatory authority Urząd Transportu Kolejowego (UTK) concerning the setting of fees for the use of railway infrastructure in Poland, the ECJ ruled on the question of whether individual railway undertakings have standing in such proceedings. The ECJ ruled that Directive 2001/14/EC does not provide for a procedure for approving track access charges and therefore does not regulate who has party status in such proceedings. However, railway undertakings may appeal against the approval of track access charges by the regulatory authority.
Does a regulatory authority have the right to bring cases before the ECJ?
In the course of a legal dispute between the railway company CityRail and the Czech railway administration Správa železnic before the Czech regulatory authority ÚPDI concerning access to loading locations, the latter referred questions directly to the ECJ. In its ruling, the ECJ stated that ÚPDI was not performing judicial tasks in the original proceedings, but rather administrative tasks. It was therefore not entitled to refer questions to the ECJ for a preliminary ruling.
Costs for renting replacement locomotives
The Austrian Supreme Court had referred questions regarding liability for accident damage to the ECJ. A train operated by the railway company Lokomotion had derailed in Kufstein. Two of the locomotives were damaged and were out of service for the duration of the repairs. Lokomotion then had to rent two locomotives and demanded reimbursement of the rental costs from the infrastructure operator. The ECJ ruled that the infrastructure operator is liable for property damage regardless of fault – however, the rental of replacement locomotives is not covered by EU law. Under Austrian law, on the other hand, financial losses such as the rental costs of replacement locomotives must also be compensated if the infrastructure operator is at fault.
Review of fees by civil courts
In the course of a legal dispute between DB Station & Service AG and Ostdeutsche Eisenbahn GmbH (ODEG) concerning the amount of fees charged for the use of transport stations, the Berlin Court of Appeal asked the ECJ to answer the question of whether a domestic civil court may, in individual cases, review the amount of the fees charged independently of the regulatory authority on the basis of antitrust law.
According to the ECJ ruling, only the regulatory authority is responsible for reviewing the amount of fees, not the civil courts. Applicants must therefore first contact the regulatory authority before they can appeal to the national courts for reimbursement of excess fees paid.
Regulatory year 2022
Schienen-Control for creating a level playing field in competition between rail transport companies (EVUs) and for promoting new market participants in order to increase the range of rail transport services in Austria.
route allocations
In response to complaints from rail transport companies about the allocation of train paths, SCK also conducted corresponding proceedings in 2022. One concrete result of SCK proceedings was the allocation of the Railjet stop in Vöcklabruck in the 2023 timetable year. In doing so, SCK sent a clear signal in favor of sustainability and securing rail transport services. Other proceedings in the area of train path allocation concerned, for example, non-allocations due to construction sites in the eastern region. Schienen-Control brisk construction activity on the ÖBB infrastructure network, Schienen-Control expects further proceedings on train path allocation in 2023.
Continuing bilingualism in Břeclav/Lundenburg
Schienen-Control aware of plans by the Czech railway infrastructure company Správa železnic to use Czech as the working language at the border station Břeclav/Lundenburg in the future. Schienen-Control its Czech counterpart ÚPDI and drew attention to the issue. As a result, ÚPDI instructed the infrastructure operator to include the bilingualism agreed in a treaty between the Republic of Austria and the Czechoslovak Socialist Republic from 1964, which is still in force, in the conditions of use of the rail network (SNNB) and to apply it in practice. This ensures comprehensibility in cross-border rail transport for the staff of infrastructure operators in both countries.
Outlook for 2023
For the 2023 regulatory year, Schienen-Control expects Schienen-Control train path conflicts due to various construction sites on the Austrian rail network, decisions from older proceedings on infrastructure usage fees, traction current network fees, and lively international exchanges with the European Commission, rail regulators, and other stakeholders in Europe.
The main tasks of Schienen-Control (SCK) as an independent administrative authority include the following areas:
Mediation in track access conflicts/review of rail network usage conditions (SNNB)
Ensuring access to railway infrastructure and service facilities
Reviewing the level of infrastructure usage charges
Market observation
Monitoring compliance with passenger rights