Recital (11)

Transport infrastructure is the backbone of the economy and society as a whole. Some railway infrastructure is critical to ensuring the good functioning of vital societal functions and has a strategic significance for national security. In certain cases, granting capacity rights to an applicant could compromise public security or public order in the Union, including at Member State level, for example where a railway undertaking intends to transport dangerous goods or weapons having illegally entered the Union on the railway infrastructure of a Member State. In order to guarantee smooth, safe and secure rail transport traffic and to ensure the protection of their railway infrastructure, Member States should be allowed to require infrastructure managers to refuse to grant, or to withdraw, capacity rights to an applicant where the access to their railway infrastructure presents a risk for public order or public security, including to national security and defence. Any such decision should be duly justified and strictly necessary and proportionate to the objective pursued, taking also into account the impacts of that decision on competition and on the continuity of the supply chains, in particular for the supply of critical inputs, and where the requested capacity right constitutes a multi-network capacity right. When assessing the risk for public security or public order, the Member State concerned should be able to take into account, among other factors, the fact that the applicant is subject to restrictive measures adopted by the Union and the reasons for adopting such measures, that the applicant is owned or effectively controlled by, or acts on behalf or at the direction of, a person or an entity subject to restrictive measures adopted by the Union, or that the applicant or that person or entity is engaged in illegal activities or in activities facilitating the development of a third country’s military capabilities presenting a threat to the Member State’s national security. Such a decision should be regularly reviewed by the Member State, in particular by assessing whether it continues to be justified and proportionate. The Member State should inform the Commission, the regulatory body and, for multi-network capacity rights, the other Member States concerned of the decision adopted and the reasons thereof and should coordinate with those other Member States in the event that the latter raise concerns with the decision adopted. Where the concern raised by a Member State is not resolved through coordination, the Member State concerned should be able to request a recommendation from the Commission on the decision adopted by another Member State.