Commission Implementing Regulation (EU) 2016/545Show full title

Article 13 Penalties

1. If one party requests penalties to be foreseen in the framework agreement in accordance with Article 42(4) of Directive 2012/34/EU, it shall not reject comparable penalties requested by the other party.

2. The framework agreement shall not set penalties at a level exceeding the costs, direct losses and expenses (including loss of revenue) reasonably incurred or which can reasonably be expected to be incurred by the party indemnified as a consequence of the modification or termination of the agreement. The party indemnified shall take reasonable steps to prevent or reduce the modification of the agreement, or to prevent its termination or to reduce its impact, and to recover any costs, losses and expenses or to otherwise mitigate the costs, direct losses and expenses (including loss of revenue).

3. The infrastructure manager shall not request the payment of penalties in excess of the administrative costs for modifying or terminating the framework agreement in any of the following cases:

(a) the cause for the modification or termination of the agreement was outside the applicant's control and the infrastructure manager had been informed thereof without delay;

(b) the applicant had a complementary request for framework capacity rejected without which the envisaged train service was not viable;

(c) the infrastructure manager could reallocate train paths and framework capacity in a way that the losses incurred by the modification or the termination of the framework agreement have already been recovered.

4. The framework agreement shall not contain a provision waiving a penalty in the case where the applicant requests separately other capacity than the cancelled capacity. Penalties shall not be requested if a modification involves only a marginal change in the agreed capacity.

5. Upon the request of the regulatory body, the infrastructure manager shall provide evidence that penalty payments have been made on time.