Expert Team ‘Rail‘

The rail transport market is a sector regulated at various levels and characterised by former state monopolies. Nevertheless, it is developing quite dynamically. Orth Kluth's Expert Team ‘Rail’ combines legal competence with in-depth industry-specific knowledge and technical understanding to generate practical solutions

Special features of rail transport

In the field of local and long-distance rail passenger transport (Schienenpersonennahverkehr or Schienenpersonenfernverkehr), participants encounter each other in many different instances of contractual and interdependent relationships. These can include manufacturers of rail vehicles and their suppliers, railway transport and infrastructure companies, finance service providers, supervisory and regulatory authorities, as well as passengers. As a special protagonist within the local rail passenger transport, the contracting authority (Aufgabenträger) also participates.

Long-term contracts are a common feature within the tendering procedures in rail transport. Enterprises entering the market for the first time or those who wish to maintain their competitive position, are under pressure to acquire contracts within the framework of tenders. On the one hand, pricing is a decisive factor, yet on the other hand, they must enhance the attractiveness of their products and services. Offering services such as Wi-Fi access, eTicketing and mobility apps as well as intelligent management systems for maintenance and new drive technologies, are key competitive factors.

In rail freight transport (Schienengüterverkehr), the service relationships from shipper via transport company to its upstream suppliers (vehicles, financing, traction current) and infrastructure operators, are highly dependent on one another. It is also important to take into account the constantly increasing requirements for compliance related to safety, environmental and noise protection. This is particularly the case in cross-border traffic where a large number of additional licensing and liability issues arise.

Full service and extensive industry-specific knowledge

Orth Kluth has already advised and represented renowned players in the industry at a wide variety of constellations from, and not limited to, state railways, market leaders in the area of private rail freight transport, contracting authorities and infrastructure operators. Our advice is characterised by the fact that our specialised lawyers work within interdisciplinary teams: As a client, you may have one partner who acts as your sole contact, but you will benefit from the knowledge and experience of a full-service commercial law firm.

In addition to contract law issues, we also consider corporate law (start-ups, restructurings, liability issues), liability law (handling damage claims), labour law, regulatory law, public procurement law and antitrust law. In practical terms this could mean that one of our public procurement law experts will accompany you during the tendering process and, if necessary, call in specialist colleagues for labour or corporate law aspects.

Different demands within the industry

Strictly speaking, there is no such thing as "the" rail industry. It is true that rail-specific issues such as approval or licensing affect all sub-areas of rail transport. Beyond this however, the challenges posed by passenger transport differ from those posed by freight transport: local rail passenger transport companies tend to struggle with complex contractual arrangements involving several parties and long delays. Freight transport companies are confronted with questions concerning access to the network and regulation of train path prices, noise emissions and the levy under the German Renewable Energy Act (Erneuerbare-Energien-Gesetz – EEG), etc. On the other hand, mobility service providers such as remote bus operators or charging station operators might have different legal issues to solve.

Orth Kluth is able to respond to these differences and develop effective solutions due to years of relevant experience.

Main focus of our consulting

We advise transport companies, among other things, on drafting contracts for the sourcing of vehicles and maintenance (including availability models and new drive technologies as well as autonomous vehicles); on questions of access to infrastructure (rail, service facilities, terminals, etc.) and the level of charges; on the long-term maintenance of existing lines by means of framework agreements; on the compensation in the event of late provision; in participation of invitations to tender and also public procurement; in the conclusion of traction power contracts and access to traction power networks; in tariff and sales co-operations and in the resolution of disputes and accident regulation.

We support manufacturers of vehicles and components in, among other things, drafting and negotiating legally binding contracts for the supply of vehicles and their maintenance; in changes to performance and prices, interfaces, approval risks, project milestones, criteria for acceptance and in questions of liability.

The contracting authorities entrust us with the comprehensive legal structuring of tender models in regional passenger transport, including the sourcing of vehicles for a vehicle pool, but also with the structuring of distribution models and legal support in the preparation of local transport plans.

Vehicle financiers and leasing companies benefit from Orth Kluth's team of financing experts to help them select and implement the most suitable solution.

In legislative procedures, ministries and organisations rely on the expertise of our firm, for example, in the form of expert opinions or representation in court proceedings.

We advise infrastructure operators and enterprises on all legal issues relating to guaranteeing access for competitors, setting up terms of use, implementing fee and incentive systems, and converting, decommissioning, de-designating and deconstructing railway lines.

Dominique Faßbender

Dr. Anselm Grün
Dr. Christiane Hoffbauer
Boris Körner
Dr. Bastian Mehle
Dr. Nils Neumann
Dieter Posch
Dr. Michael Sitsen
Dr. Frank Wältermann