1. Meaning

Rail Freight Access refers to the ability of freight operators, logistics companies, cargo owners, and other eligible undertakings to obtain access to railway infrastructure and related facilities on reasonable and non-discriminatory terms.

Rail freight access can involve:

• railway tracks;
• freight corridors;
• railway yards;
• sidings;
• terminals;
• loading and unloading facilities;
• locomotives and traction services;
• signalling systems;
• maintenance facilities;
• marshalling yards;
• scheduling and train paths;
• border-crossing facilities;
• port-rail connections.

Competition concerns arise particularly where a railway infrastructure operator or vertically integrated railway undertaking controls an essential or strategically important network and uses that control to disadvantage competing freight operators.

2. Basic Competition Problem

Consider a country where:

• Railway Infrastructure Company A owns the principal freight network.
• A also operates its own freight services.
• Independent Freight Company B wants to operate trains over A's network.

If A provides B with:

• limited train paths;
• inferior scheduling;
• discriminatory access charges;
• delayed approvals;
• inadequate terminal access;

while providing its own freight division with better conditions, A may be able to foreclose competition in downstream freight transport.

The basic competitive structure is:

Upstream infrastructure → downstream freight services

Control of the upstream infrastructure can therefore provide an opportunity to disadvantage downstream competitors.

3. Why Rail Infrastructure Can Create Market Power

Rail infrastructure often has characteristics that make duplication difficult.

High sunk costs

Building a parallel railway can require enormous investment.

Network effects

The value of a railway line increases because it connects to other railway lines, ports, terminals and industrial centres.

Limited alternatives

Road transport may not be an effective substitute for:

• bulk commodities;
• heavy minerals;
• long-distance freight;
• certain hazardous materials;
• high-volume container movements.

Capacity constraints

Rail networks have limited train paths.

Consequently, allocation of scarce capacity can itself become a competition issue.

4. Forms of Rail Freight Access Restriction

A. Refusal of Access

The infrastructure operator refuses to permit a rival freight operator to use the network.

B. Discriminatory Access Charges

The incumbent's freight division receives lower effective charges than independent operators.

C. Capacity Discrimination

Competitors receive fewer or less commercially useful train paths.

D. Scheduling Discrimination

The incumbent obtains:

• peak-time slots;
• faster routes;
• better connections.

Competitors receive inconvenient times.

E. Terminal Foreclosure

A railway operator provides track access but prevents rivals from using:

• freight terminals;
• loading facilities;
• marshalling yards;
• port connections.

F. Technical Discrimination

Competitors face additional:

• safety requirements;
• certification requirements;
• technical inspections;
• locomotive approval requirements.

G. Information Discrimination

The infrastructure owner may possess commercially sensitive information about competitors' traffic and use that information to compete against them.

5. Relevant Market

The relevant market can have several levels.

Upstream Market

Provision of railway infrastructure access.

Downstream Market

Freight railway transportation.

Commodity-Specific Markets

In some circumstances, the analysis may distinguish:

• coal freight;
• iron ore;
• agricultural commodities;
• automobiles;
• containers;
• petroleum products.

Geographic Market

The relevant geographic market may be:

• a particular railway corridor;
• national rail infrastructure;
• a regional network;
• a port-to-inland route.

The correct market depends upon substitution possibilities.

6. Rail Freight Access and Essential Facilities

Rail infrastructure frequently raises essential-facility-type issues.

The central question is:

Can a competing freight operator realistically compete without access to the infrastructure?

If there is no economically viable alternative, denial of access may have significant exclusionary effects.

However, competition law generally does not require every infrastructure owner to provide competitors with access simply because access would be commercially useful.

The strongest cases involve circumstances where:

• the infrastructure is indispensable;
• duplication is impractical;
• access is technically feasible;
• access can be provided without compromising legitimate operations;
• refusal substantially eliminates competition;
• there is no sufficient objective justification.

7. Major Case Laws

1. Lithuanian Railways v European Commission

Case C-42/21 P

Facts

Lithuanian Railways (Lietuvos geležinkeliai) controlled railway infrastructure in Lithuania.

It removed a section of railway track used by Orlen Lietuva for transporting goods, affecting the route available to the competing transport operation.

The European Commission found that the conduct constituted an abuse of dominant position.

Principle

The case is one of the most important modern authorities concerning rail infrastructure and refusal to provide access.

The Court confirmed that the assessment of exclusionary conduct involving infrastructure must consider the specific circumstances, including whether the conduct can impede effective competition and whether there is an objective justification.

Relevance

It is directly relevant to rail freight access because it demonstrates how an infrastructure operator can potentially abuse its position by removing or altering infrastructure in a way that disadvantages a downstream competitor.

It also shows that competition concerns can arise even without a simple written refusal of access.

8. Oscar Bronner GmbH & Co. KG v Mediaprint

Case C-7/97

Facts

Bronner operated a newspaper and sought access to Mediaprint's newspaper home-delivery system.

Mediaprint controlled an extensive delivery network.

Principle

The European Court established strict conditions for requiring a dominant undertaking to provide access to infrastructure.

The facility generally must be indispensable, there must be no viable alternative, and refusal must be capable of eliminating effective competition.

Relevance

Although the case concerns newspaper distribution rather than railways, it is a foundational authority for analysing access to infrastructure controlled by a dominant undertaking.

For rail freight, the relevant questions include:

• Can a competing freight operator use another railway?
• Can the competitor switch to road transport?
• Can a new railway realistically be constructed?
• Is access genuinely indispensable?

9. IMS Health GmbH & Co. OHG v NDC Health

Case C-418/01

Facts

IMS Health controlled a system for organising pharmaceutical sales information. The system was important to competitors seeking to operate in the relevant market.

Principle

The Court established stringent conditions under which refusal to license intellectual-property-related infrastructure or information could amount to abuse.

Relevance

The case provides an important complementary principle for railway access.

Where access involves:

• proprietary technical information;
• signalling interfaces;
• data systems;
• reservation systems;
• infrastructure software;

the fact that the infrastructure or system is proprietary does not automatically resolve the competition question.

However, the threshold for compulsory access remains demanding.

10. Sea Containers Ltd v Stena Sealink Ltd

European Commission, Case IV/34.174

Facts

Stena controlled the port of Holyhead and also operated ferry services competing with Sea Containers.

The European Commission examined the circumstances in which control of essential port infrastructure could be used to disadvantage a competing operator.

Principle

The Commission considered that an infrastructure operator occupying a dominant position could not use control over essential infrastructure to discriminate against a competing downstream undertaking.

Relevance

The case is highly analogous to rail freight access.

A vertically integrated railway undertaking may simultaneously control:

rail infrastructure + freight services

The same potential conflict arises:

infrastructure controller → competing freight operator.