The European Commission announced yesterday that it has taken Spain before the Court of Justice of the European Union (CJEU) for not correctly applying the single European railway area directive. One of the issues that Brussels warns about is that the independence of the board of directors of Adif, or of Renfe, is not guaranteed, which implies that the State can “exercise a decisive influence” on the company’s decisions.
The community executive said that it makes this decision after Spain’s application and transposition of the directive continues to be “incomplete in several aspects.” One of the issues of concern is that “the independence of the boards of directors of the infrastructure managers (Adif) and the corresponding railway company (Renfe) is not clearly guaranteed”, mandatory with the new directive.
Specifically, it considers that taking into account that the composition of the Adif board of directors is appointed by the Ministry of Transport, and that it can “put an end to the mandate of its members and the rules relating to decision-making, it is possible to conclude that The State is in fact capable of exercising a decisive influence on the agreements of the board of directors.” For example, in issues that affect the price of tickets.
Brussels has been alerting Spain since 2018 to comply with the directive, and since then it has been applied half-heartedly and in fits and starts, according to community services. In 2019, the Spanish Government responded that the objections had been resolved, but the Commission considered that some issues had not been applied correctly. For this reason, again at the end of that year he sent a letter to apply the necessary changes. At the end of 2022, the Spanish Government again notified the new measures, but the community analysis concludes that “all the points raised” have not been addressed. As a consequence, it sends the country before European Justice.
In its analysis, the Commission values ??that Spain modified its legislation so that Adif “now enjoys an adequate level of independence to establish the system of charges for the use of infrastructure.” However, it warns that “the new system is not yet operational” and that the law “does not contain any provision that requires Adif to apply the new system within a certain period.” This means that “unless measures are taken quickly, rail access charges will be considered de facto taxes that will be included in the upcoming Spanish budget laws of 2024 and 2025.”
According to the Commission, “there is a risk that the old system will continue to apply until 2024/2025”, and consequently, railway companies “will not be able to challenge rail access charges” in the Spanish courts. Likewise, he considers that the law also lacks key elements in “the contractual agreement between the Spanish Government and the infrastructure managers.” European justice will have to study the allegations of both parties, but if it agrees with Brussels, Spain could be forced to pay a fine until it changes its legislation.
