Recital (30)

This Regulation should set up a system of penalties to be paid where either the infrastructure manager or the applicant does not fulfil its commitments with respect to an allocated capacity right. The level of the penalty due should be effective, proportionate, dissuasive and non-discriminatory in order to ensure the respect of the planned use of capacity. The level of the penalty should also be approved by the regulatory body. The infrastructure manager could use the track access charges paid in the rail network as a basis for proposing the level of the penalties. The modulation of the penalty should take into account several factors, including the timing of the notification of the change, the quality of the alternative capacity provided in terms of additional distance or timing, technical characteristics and other relevant aspects, or whether the capacity can be re-allocated and used by another applicant. The modulation applied should be low when the quality of the alternative is high or when the capacity can be re-allocated. The modulation applied should be higher when the change is requested shortly before the time of the use of the capacity right or when the quality is too low compared to the initial allocated capacity right. Infrastructure managers in Member States whose currency is not the euro should provide for levels of penalty in their currency that correspond to the levels determined in this Regulation in euro on the date of its entry into force. Those infrastructure managers are invited to regularly review the levels of penalty also with regard to the development of the exchange rate. This system of penalties should aim to expedite the resolution of disputes and reduce litigation related to non-compliance with allocated capacity rights, and to provide certainty, legal security, predictability and transparency to both infrastructure managers and applicants with regard to their commitments in relation to allocated capacity rights.