How is the rail transport industry generally structured in your country?
There are 14 railway infrastructure managers in Poland that manage the railway infrastructure and make the tracks available to rail operators. The largest manager is the state-controlled company PKP Polskie Linie Kolejowe SA, which is responsible for the maintenance of rail tracks, managing the rail traffic across the country, scheduling train timetables and managing the railway land. More than 95 per cent of the infrastructure is managed by this company and the remaining part of the infrastructure is managed by local railway operators (eg, metropolitan railways, power plants, mines). A separate entity, PKP Energetyka SA, which was privatised in 2015, provides nationwide maintenance and emergency response services to the railway network.
Ownership and control
Does the government of your country have an ownership interest in any rail transport companies or another direct role in providing rail transport services?
The government owns 100 per cent of shares in PKP SA, which controls leading nationwide rail passenger carrier, PKP Intercity SA. A second nationwide rail passenger carrier, Przewozy Regionalne, is controlled by the Industrial Development Agency (a state-controlled company responsible for implementing restructuring processes) and by regional self-government units (voivodeships). Regional self-government units and cities are owners or the majority shareholders of regional or metropolitan rail passenger carriers (currently there are 10 regional and municipal carriers). The government also indirectly controls approximately 30 per cent of shares in PKP Cargo SA, a freight carrier listed on the Warsaw Stock Exchange.
Are freight and passenger operations typically controlled by separate companies?
Yes, freight and passenger operations are controlled by separate companies.
Which bodies regulate rail transport in your country, and under what basic laws?
Under section 3 of the Railway Transport Act, the president of the Office of Rail Transport (ORT), appointed by the Prime Minister, is the regulatory authority responsible for rail transport in Poland.
Is regulatory approval necessary to enter the market as a rail transport provider? What is the procedure for obtaining approval?
Provision of passenger or freight transport services by rail (as well as the provision of traction services) is subject to approval issued by the president of the ORT. In order to apply for an approval, the rail transport provider must fulfil the following criteria: have good standing, financial credibility and professional competence; possess stock at its disposal; and be insured from third-party liability. The president of the ORT must issue the approval within three months after having obtained the application with all necessary documents.
Is regulatory approval necessary to acquire control of an existing rail transport provider? What is the procedure for obtaining approval?
Approval from the railway regulatory authority is not necessary to acquire control over an existing rail transport provider and standard antitrust laws apply. Therefore, if the total global turnover of entrepreneurs in the fiscal year preceding the acquisition exceeds the equivalent of €5 billion or the total turnover in Poland exceeds the equivalent of €50 million, the consent of the president of the Office of Competition and Consumer Protection is required- he or she may issue an approval, a conditional approval or prohibit the concentration.
Is special approval required for rail transport companies to be owned or controlled by foreign entities?
No, there is no such requirement.
Is regulatory approval necessary to construct a new rail line? What is the procedure for obtaining approval?
The voivode (who is a representative of the government administration in the voivodeship) issues the decision on establishing the location of the rail line at the request of PKP Polskie Linie Kolejowe SA or the competent local government unit. The application to issue a decision should be preceded by a number of written arrangements, such as arrangements with managers of public roads that the railway will cross. The voivode further informs the property owners where the railway is to be located about the commencement of the proceedings. As of the date the owners are informed, no building permits may be issued with respect to such property and the land owners have to inform the voivode about the sale of land within the area where the new railway is to be located. The voivode should issue the decision within three months from the date of filing the complete application. However, in the case of the construction of a private railway siding, the above procedure will not apply. The investor will be required to declare the intention to build a railway line or submit an application for the building permit to the relevant municipality.
Discontinuing a service
What laws govern a rail transport company’s ability to voluntarily discontinue service or to remove rail infrastructure over a particular route?
The procedure of closing a railway is set out in the Railway Transport Act. The manager of a particular route may apply to the Minister of Infrastructure to approve closure of a railway route (and, as a consequence, removal of infrastructure) if the revenue from operations carried out on this route does not cover the costs incurred by the manager for maintenance of that route, and if no financing from the state treasury or the local government unit’s budget was provided to cover the manager’s loss.
On what grounds, and what is the procedure, for the government or a third party to force a rail transport provider to discontinue service over a particular route or to withdraw a rail transport provider’s authorisation to operate? What measures are available for the authorisation holder to challenge the withdrawal of its authorisation to operate?
Under the provisions of the Railway Transport Act, the president of the ORT is obliged to withdraw the approval for a railway operator in the following circumstances:
- upon commencement of insolvency proceedings;
- when the operator is deprived of the right to conduct business activities based on a final and non-appealable court judgment; or
- when the rail transport operator’s approval was suspended owing to irregularities and these irregularities were not corrected within the deadline prescribed by the president of the ORT.
The withdrawal of the approval (as well as the approval itself) is issued in the form of an administrative decision and, as such, it may be appealed before the administrative court.
Are there sector-specific rules that govern the insolvency of rail transport providers, or do general insolvency rules apply? Must a rail transport provider continue providing service during insolvency?
As mentioned in question 10, if insolvency proceedings have commenced, the president of the ORT is obliged to withdraw the approval for the railway operator. In these circumstances, the railway operator should discontinue providing services when the decision to withdraw approval becomes final.
Do general and sector-specific competition rules apply to rail transport?
Sector-specific competition rules apply to the access to infrastructure. General competition rules apply to antitrust practices and competitiveness.
Regulator competition responsibilities
Does the sector-specific regulator have any responsibility for enforcing competition law?
The president of the ORT supervises non-discriminatory treatment of all applicants in the field of access to infrastructure. The president of the ORT also monitors the state of competition on the rail transport market, cooperates with competent authorities in counteracting the use of monopolistic practices by administrators and applicants, coordinating the operation of the rail transport market and respecting passengers’ rights.
What are the main standards for assessing the competitive effect of a transaction involving rail transport companies?
The railway sector is supervised in the same way as in other industries. First, the president of the ORT will check whether the activities do not adversely affect passengers, and subsequently whether the transaction would result in a large company using its dominant position towards suppliers when concluding contracts.
Types of regulation
Are the prices charged by rail carriers for freight transport regulated? How?
Prices for freight transport are not subject to regulations and are charged on a free-market basis.
Are the prices charged by rail carriers for passenger transport regulated? How?
As a rule, transport prices are not regulated, but if the railway route is of a public utility nature and is co-financed, pursuant to the Act on Public Collective Transport, local government units’ councils may set maximum prices for such journeys. In addition, pursuant to the Act on Entitlements to Concessionary Public Transport, public rail carriers, which constitute the majority of railway carriers, are obliged to apply discounts specified for passenger groups (eg, students, pensioners, soldiers, veterans and disabled persons) that will be refunded to them from the state budget.
Is there a procedure for freight shippers or passengers to challenge price levels? Who adjudicates those challenges, and what rules apply?
Neither freight shippers nor passengers can challenge price levels. However, the passenger railway operators are bound by the Transportation Law, which requires that the tariffs applied by a given operator be situated in visible places. In case of serious delays, passengers are entitled to reimbursement of the price of the ticket and to compensation payable by the operator.
Must rail transport companies charge similar prices to all shippers and passengers who are requesting similar service?
In the case of freight transport, the parties individually set the prices for transport and they do not have to be the same, although the principal freight operator, PKP Cargo SA, publishes price tariffs on its website and some companies may use these prices for reference. For passenger transport, the same prices for services must be established if the transport is subsidised as public transport. In the case of commercial passenger transport services, prices may vary.
Sharing access with other companies
Must entities controlling rail infrastructure grant network access to other rail transport companies? Are there exceptions or restrictions?
The applicants can submit requests for infrastructure capacity to the infrastructure managers. If the infrastructure manger refuses to consider the request or refuses to allocate the infrastructure capacity, the applicant can submit a complaint to the president of the ORT, who may state that the refusal is valid or that the infrastructure manager’s decision should be modified or withdrawn. The infrastructure manager is bound by the decision. The application should be preceded by an agreement to allocate the capacity entered into by the applicant and the infrastructure manager. Such an agreement may contain appropriate, transparent and non-discriminatory obligations to provide financial guarantees to secure future payments. In order to gain access to the railway infrastructure, the applicant must submit to the manager certified copies of the valid carrier’s licence and a valid security or safety certificate as well as submit a statement that he or she will use the rolling stock, meeting the conditions set out in the regulations to carry out the railway service. Once the capacity is allocated, an agreement for use of the capacity should be entered into by the applicant and the infrastructure manager.
Are the prices for granting of network access regulated? How?
Railway infrastructure managers are required to develop a uniform, non-discriminatory price list for the duration of a yearly train timetable. The infrastructure manager is obliged to submit the draft price list to president of the ORT for approval no later than nine months before the start of the annual train timetable. The president must approve or or reject the price list within 90 days of receiving it. If the decision is not issued within this period, the price list is considered approved.
Is there a declared policy on allowing new market entrants network access or increasing competition in rail transport? What is it?
All Polish market participants, including market entrants, are entitled to minimum access to the railway infrastructure (with observance of equal treatment rules), including, inter alia, having the right to review their capacity allocation application, use the services of controlling the railway traffic, and use railway stations and ancillary infrastructure. Market participants from other member states of the European Union are entitled to minimum access to the railway infrastructure only for the purposes of performing international passenger transport and freight services. Notwithstanding this, the infrastructure manager may limit minimum access to the railway infrastructure because of technical parameters of rolling stock or by prohibiting railway vehicles carrying dangerous goods to enter the tunnels. In May 2018, the President of Poland signed into law the bill introducing the fourth EU railway package, the aim of which is to increase competition through the obligation to award tenders.
Must rail transport providers serve all customers who request service? Are there exceptions or restrictions?
Under article 6 of the Act of 3 December 2010 on the implementation of some regulations of the European Union regarding equal treatment, any discrimination in access to the services offered publicly based on gender, race, ethnicity or nationality is forbidden.
Are there legal or regulatory service standards that rail transport companies are required to meet?
Service standards are set out in the legislation both at the European Union level (Regulation No. 1371/2007 of the Parliament and the Council) and at the national level in the Railway Transport Act and in the Transportation Law.
Is there a procedure for freight shippers or passengers to challenge the quality of service they receive? Who adjudicates those challenges, and what rules apply?
In case of infringement of their rights guaranteed by European and national legislation, rail passengers may submit complaints to the president of the ORT. There is an independent rail passengers’ rights adviser working alongside the ORT who conducts out-of-court proceedings and settles the disputes between passengers and rail operators.
Types of regulation
How is rail safety regulated?
Pursuant to the Act on Railway Transport, the president of the ORT supervises safety management systems in accordance with the principles set out in Commission Regulations (EU) Nos. 1158/2010 32 of 9 December 2010 on a common safety method for assessing conformity with the requirements obtaining railway safety certificates and 1169/2010 of 10 December 2010 on a common safety method for assessing conformity with the requirements for obtaining a railway safety authorisation.
What body has responsibility for regulating rail safety?
The president of the ORT is the administrative body responsible for regulating rail safety.
What safety regulations apply to the manufacture of rail equipment?
There are both national and EU rules regulating manufacturing of rail equipment. A regulation of the Minister for Infrastructure and Development lays out the grounds for authorisation for placing in service certain types of structures, equipment and railway vehicles. At the EU level many pieces of legislation have been issued, the most relevant being Regulation No. 2016/919 on the technical specification for interoperability relating to the ‘control-command and signalling’ subsystems of the rail system in the European Union.
What rules regulate the maintenance of track and other rail infrastructure?
There are both national and EU rules regulating the maintenance of track and other rail infrastructure. At the national level, the Regulation of the Minister for Infrastructure and Development on common safety indicators (CSI) deals with, among other things, such matters as the length of tracks and the number of level crossings or pedestrian crossings on the railway lines. Commission Regulation (EU) No. 1078/2012 regulates the European common safety method for monitoring to be applied by railway undertakings, infrastructure managers after receiving a safety certificate or safety authorisation.
What specific rules regulate the maintenance of rail equipment?
The maintenance of rail equipment is regulated in the provisions of the Act on Rail Transport and the Regulation of the Minister of Infrastructure of 12 October 2005 on general conditions for railway vehicles operation, amended by the Regulation of the Minister of Transport of 7 November 2007 and the Regulation of the Minister for Infrastructure and Development of 10 December 2014.
What systems and procedures are in place for the investigation of rail accidents?
If an accident occurs, the railway employee must notify the supervisor and the dispatcher of the infrastructure administrator, whose tracks the siding is connected to. If necessary, the employee should notify the emergency services, including the police. The president of the ORT (either directly or through a competent local branch) and the chairman of the State Commission for Investigation of Railway Accidents should be notified of the accident. If the accident is a threat to the environment, the voivodeship inspector for environmental protection must be notified. If there are dangerous goods on the railway siding, the voivode should be notified. Depending on the size of the siding, the employee should check whether the other tracks can be traversed. Victims should be assisted and material secured to help determine the cause of the accident. The State Commission for Investigation of Railway Accidents investigates the accident or incident, and seeks to determine the cause and circumstances of the accident or incident, estimates losses, and draws preventive conclusions; however, it does not establish fault or liability. Members of the Commission include a railway siding user and a railway carrier who operates the siding.
Are there any special rules about the liability of rail transport companies for rail accidents, or does the ordinary liability regime apply?
The ordinary liability regime applies to road transport accidents, but EU law requires railway undertakings to have adequate insurance or appropriate warranties under market conditions to cover their civil liability. This insurance must cover, in particular, passengers, luggage, parcels, mail and third parties. Ultimately, the minimum amount of civil liability of railway carriers is €100 million.
Does the government or government-controlled entities provide direct or indirect financial support to rail transport companies? What is the nature of such support (eg, loans, direct financial subsidies, or other forms of support)?
State and local railway companies receive financial support in accordance with the principles established in the Treaty on the Functioning of the European Union and EU regulations regarding state aid in the railway sector. The aid may take the form of direct payments in case of restructuring and the cancellation of debt of the railway companies. In addition, the railway companies may receive compensation payments for providing sustainable and accessible railway services within the territory of local government units.
Are there sector-specific rules governing financial support to rail transport companies and is there a formal process to request such support or to challenge a grant of financial support?
The sector-specific rules governing financial support to rail transport companies are regulated at the EU level. Generally, all public aid should be prohibited unless it qualifies as an exception. Sectoral aid, granted to companies acting in a given sector, is characterised by some specific rules. As regards transport, public aid may be granted only for passenger transport. The EU legislation sets forth that certain actions made by the governments of EU member states with the aim to support passenger transport companies will not constitute the prohibited state aid. For instance, Regulation No. 1370/2007 concerning the opening of the market for domestic passenger transport services by rail lays down that competent authorities may decide to take appropriate measures to ensure effective and non-discriminatory access to suitable rolling stock.
Applicable labour and employment laws
Are there specialised labour or employment laws that apply to workers in the rail transport industry, or do standard labour and employment laws apply?
Generally, standard labour and employment regulations, such as the Labour Code or the Trade Unions Act, apply to the rail transport industry. Additionally, appendices to the Rail Transport Act constitute some specific requirements concerning particular posts (eg, train dispatcher, conductor) and sector workers’ duties. Some specific rules concerning workers in the rail transport industry are set out in regulations of the Minister of Infrastructure and Development, which lay down the requirements for the personnel employed in posts directly related to the operation and safety of rail traffic, and driving certain types of railway vehicles (which requires a specific driving licence and certificate). Certification of train drivers operating locomotives and trains on the railway system in the European Union are regulated in Directive 2007/59/EC. The rail industry has traditionally been and continues to be a highly unionised sector.
Applicable environmental laws
Are there specialised environmental laws that apply to rail transport companies, or do standard environmental laws apply?
There are no specialised environmental laws that apply to the rail transport industry (including rail transport companies) and standard environmental regulations shall be applied. According to these regulations, building and rebuilding railway lines constitutes an investment that is deemed to have a potentially significant effect on the environment and should, therefore, be preceded by an environmental assessment report.
For many years there has been a debate about the need to prioritise freight rail transport over road freight transport because of the environmental advantages of the former, such as less congestion and less traffic. However, this shift is not likely to take place in the near future as the road transport sector in Poland is a vital part of the transport industry. This would also require a significant increase in investments in the railway infrastructure.