Article 42 — Penalty for changes to capacity rights

1. Where the infrastructure manager or an applicant does not fulfil its commitments with respect to an allocated capacity right and where this results in a change that is categorised as significant in accordance with Article 41(6), it shall pay a penalty to the other party. The penalty shall be effective, proportionate, dissuasive and non-discriminatory. 2. The penalty referred to in paragraph 1 shall not be due in the following circumstances: (a) force majeure; (b) where an infrastructure manager withdraws capacity rights in accordance with measures taken by Member States in accordance with Article 12; (c) where a capacity right is cancelled in accordance with Article 29(3); (d) when amending framework agreements in accordance with Article 33(7); (e) the use of derogations in accordance with Article 37(5). 3. The level of the penalty shall be set between a minimum and a maximum level, as determined in Annex IV. The infrastructure managers shall set out in the network statement the levels of penalty to be paid by the infrastructure manager and the applicant subject to approval by the regulatory body. 4. The penalty due by an infrastructure manager shall not be differentiated by market segment of the train service. The penalty due by an applicant shall be differentiated by market segment of the train service. 5. The penalty may be modulated by a factor ranging from 0,1 to 2, depending on the impact of the change and in accordance with the following criteria: (a) the timing of the notification of the change; (b) where the change is caused by the infrastructure manager and alternative capacity exists, the quality of the alternative capacity; or (c) where the change is caused by the applicant, whether the capacity can be re-allocated and used by another applicant. The maximum modulation may only be applied in situations where the capacity right is cancelled. 6. Based on the criteria set out in paragraph 5, ENIM shall develop guidelines for the application of the modulation and include them in the European framework for capacity management. The infrastructure manager shall determine the modulation levels based on those guidelines. 7. The infrastructure manager shall set out in the network statement the modulation levels to be applied to the penalties due by the infrastructure manager and by the applicant, subject to the approval by the regulatory body. 8. In the case of a multi-network capacity right, the total penalty shall be calculated by adding the amount of the penalties, including the modulation, in each of the networks, by taking into account that: (a) the obligation to pay the penalty to the applicant shall apply to the infrastructure manager which is responsible for the change to the capacity right, taking into account the capacity right in its entirety; the penalty due by the infrastructure manager shall be three times the level of the penalty due in its own network but not more than the sum of the penalties for the entire capacity right; (b) the obligation to pay the penalty to the infrastructure managers shall apply to the applicant who requested the change, taking into account the capacity right in its entirety; the penalty shall be paid to the infrastructure managers concerned, according to their corresponding part in the multi-network capacity right. 9. An infrastructure manager or an applicant shall have the right to raise a dispute with the regulatory body responsible concerning the change of a capacity right or related to the payment of a penalty. The regulatory body shall take a decision without delay, at the latest within one month of collecting all the necessary information to assess the cause of the change. 10. In the case of a single-network capacity right, the regulatory body of the Member States of the capacity right shall decide. In the case of multi-network capacity rights, the regulatory body responsible for the infrastructure manager acting as the single point of contact pursuant to Article 30 shall decide. Regulatory bodies shall inform and may consult the ENRRB on such decisions. When consulted, the ENRRB shall advise regulatory bodies with the aim of ensuring that such decisions are consistent and based on commonly recognised principles. 11. The Commission shall adopt delegated acts in accordance with Article 75 to amend Annex IV with a view to adapting the minimum and maximum levels of the penalty to the inflation rate. The review of the level of the penalties shall be done every two years by reference to the inflation rate as measured by means of the European Index of Consumer Prices as published by Eurostat. The first review of the level of the penalties shall be done in 2033.