Where after coordination of the requested paths and consultation with applicants it is not possible to satisfy requests for infrastructure capacity adequately then the infrastructure manager must immediately declare that element of infrastructure on which this has occurred to be congested. This shall also be done for infrastructure which it can be foreseen will suffer from insufficient capacity in the near future.

When infrastructure has been declared to be congested, the infrastructure manager shall carry out a capacity analysis as described in Article 25, unless a capacity enhancement plan as described in Article 26 is already being implemented.

When charges in accordance with Article 7(4) have not been levied or have not achieved a satisfactory result and the infrastructure has been declared to be congested, the infrastructure manager may in addition employ priority criteria to allocate infrastructure capacity.

The priority criteria shall take account of the importance of a service to society, relative to any other service which will consequently be excluded.

In order to guarantee within this framework the development of adequate transport services, in particular to comply with public-service requirements or promote the development of rail freight, Member States may take any measures necessary, under non-discriminatory conditions, to ensure that such services are given priority when infrastructure capacity is allocated.

Member States may, where appropriate, grant the infrastructure manager compensation corresponding to any loss of revenue related to the need to allocate a given capacity to certain services pursuant to the previous subparagraph.

This shall include taking account of the effect of this exclusion in other Member States.

The importance of freight services and in particular international freight services shall be given adequate consideration in determining priority criteria.

The procedures which shall be followed and criteria used where infrastructure is congested shall be set out in the network statement.