CityRail a.s. v Správa železnic, státní organizace.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:341
• Date: 03 May 2022
• Docket Number: C-453/20
• Celex Number: 62020CJ0453
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

3 May 2022 (*)

(Reference for a preliminary ruling – Article 267 TFUE – Concept of ‘court or tribunal’ – Criteria relating to the constitution and function of that body – Exercise of judicial or administrative functions – Directive 2012/34/EU – Articles 55 and 56 – Single national regulatory body for the railway sector – Independent regulatory authority for the sector – Entitlement to act on an ex officio basis – Power to impose penalties – Decisions that are open to challenge before the courts – Inadmissibility of the request for a preliminary ruling)

In Case C‑453/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Úřad pro přístup k dopravní infrastruktuře (Transport infrastructure access authority, Czech Republic), made by decision of 23 September 2020, received at the Court on the same day, in the proceedings

CityRail a.s.

v

Správa železnic, státní organizace,

intervening parties:

ČD Cargo a.s.,

JUDGMENT OF THE COURT (Grand Chamber)

composed of K. Lenaerts, President, L. Bay Larsen, Vice-President, A. Arabadjiev, A. Prechal, K. Jürimäe and S. Rodin, Presidents of Chambers, M. Ilešič, J.-C. Bonichot (Rapporteur), T. von Danwitz, M. Safjan, D. Gratsias, M.L. Arastey Sahún, M. Gavalec, Z. Csehi and O. Spineanu-Matei, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– CityRail, a.s., by J. Hruška,

– Správa železnic, státní organizace, by J. Svoboda,

– ČD Cargo, a.s., by T. Tóth and Z. Škvařil,

– the Czech Government, by M. Smolek and J. Vláčil, acting as Agents,

– the Spanish Government, by L. Aguilera Ruiz, acting as Agent,

– the Netherlands Government, initially by M.K. Bulterman and M. Noort, acting as Agents, and subsequently by M.K. Bulterman, acting as Agent,

– the European Commission, initially by J. Hradil and C. Vrignon, acting as Agents, and subsequently by J. Hradil, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 16 December 2021,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 288 TFEU and Articles 3, 27 and 31 of Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area (OJ 2012 L 343, p. 32), as amended by Directive (EU) 2016/2370 of the European Parliament and of the Council of 14 December 2016 (OJ 2016 L 352, p. 1) (‘Directive 2012/34’), and of Annexes I, II and IV thereto.

2 The request has been made in proceedings between CityRail, a.s., a railway undertaking, and Správa železnic, státní organizace (‘Správa železnic’), a railway infrastructure manager in the Czech Republic, concerning the conditions laid down by Správa železnic for access to the network and certain related facilities.

Legal context

European Union law

3 Recital 76 of Directive 2012/34 states:

‘The efficient management and fair and non-discriminatory use of rail infrastructure require the establishment of a regulatory body that oversees the application of the rules set out in this Directive and acts as an appeal body, without prejudice to the possibility of judicial review. Such a regulatory body should be able to enforce its information requests and decisions by means of appropriate penalties.’

4 Article 3 of that directive, entitled ‘Definitions’, is worded as follows:

‘For the purposes of this Directive, the following definitions apply:

(1) “railway undertaking” means any public or private undertaking licensed according to this Directive, the principal business of which is to provide services for the transport of goods and/or passengers by rail …

(2) “infrastructure manager” means any body or firm responsible for the operation, maintenance and renewal of railway infrastructure on a network, as well as responsible for participating in its development …

…

(3) “railway infrastructure” means the items listed in Annex I;

…

(11) “service facility” means the installation, including ground area, building and equipment, which has been specially arranged, as a whole or in part, to allow the supply of one or more services referred to in points 2 to 4 of Annex II;

…

(19) “applicant” means a railway undertaking … with a public-service or commercial interest in procuring infrastructure capacity;

…

(26) “network statement” means the statement which sets out in detail the general rules, deadlines, procedures and criteria for charging and capacity-allocation schemes, including such other information as is required to enable applications for infrastructure capacity;

…’

5 Article 55 of that directive, entitled ‘Regulatory body’, provides in paragraph 1:

‘Each Member State shall establish a single national regulatory body for the railway sector. Without prejudice to paragraph 2, this body shall be a stand-alone authority which is, in organisational, functional, hierarchical and decision-making terms, legally distinct and independent from any other public or private entity. It shall also be independent in its organisation, funding decisions, legal structure and decision-making from any infrastructure manager, charging body, allocation body or applicant. It shall furthermore be functionally independent from any competent authority involved in the award of a public service contract.’

6 Article 56 of that directive, entitled ‘Functions of the regulatory body’, provides:

‘1. Without prejudice to Article 46(6), an applicant shall have the right to appeal to the regulatory body if it believes that it has been unfairly treated, discriminated against or is in any other way aggrieved, and in particular against decisions adopted by the infrastructure manager or where appropriate the railway undertaking or the operator of a service facility concerning:

(a) the network statement in its provisional and final versions;

…

(j) compliance with the requirements, including those regarding conflicts of interest, set out in Article 2(13) and Articles 7, 7a, 7b, 7c, and 7d.

2. Without prejudice to the powers of the national competition authorities …, the regulatory body shall have the power to monitor the competitive situation in the rail services markets, including in particular the market for high-speed passenger services, and the activities of infrastructure managers in relation to points (a) to (j) of paragraph 1. In particular, the regulatory body shall verify compliance with points (a) to (j) of paragraph 1 on its own initiative and with a view to preventing discrimination against applicants. It shall, in particular, check whether the network statement contains discriminatory clauses or creates discretionary powers for the infrastructure manager that may be used to discriminate against applicants.

…

6. The regulatory body shall ensure that charges set by the infrastructure manager comply with Section 2 of Chapter IV and are non-discriminatory. Negotiations between applicants and an infrastructure manager concerning the level of infrastructure charges shall only be permitted if these are carried out under the supervision of the regulatory body. The regulatory body shall intervene if negotiations are likely to contravene the requirements of this Chapter.

…

8. The regulatory body shall have the power to request relevant information from the infrastructure manager, applicants and any third party involved within the Member State concerned.

… The regulatory body shall be able to enforce such requests with appropriate penalties, including fines. …

9. The regulatory body shall consider any complaints and, as appropriate, shall ask for relevant information and initiate consultations with all relevant parties, within 1 month from the receipt of the complaint. It shall decide on any complaints, take action to remedy the situation and inform the relevant parties of its reasoned decision … Without prejudice to the powers of the national competition authorities …, the regulatory body shall, where appropriate, decide on its own initiative on appropriate measures to correct discrimination against applicants, market distortion and any other undesirable developments in these markets, in particular with reference to points (a) to (j) of paragraph 1.

A decision of the regulatory body shall be binding on all parties covered by that decision, and shall not be subject to the control of another administrative instance. The regulatory body shall be able to enforce its decisions with the appropriate penalties, including fines.

…

10. Member States shall ensure that decisions taken by the regulatory body are subject to judicial review. The appeal may have suspensive effect on the decision of the regulatory body only when the immediate effect of the regulatory body’s decision may cause irretrievable or manifestly excessive damages for the appellant. This provision is without prejudice to the powers of the court hearing the appeal as conferred by constitutional law, where applicable.

…’

Czech law

7 Under Paragraph 2(15) of the zákon č. 2/1969 Sb., o zřízení ministerstev a jiných ústředních orgánů státní správy [České republiky] (Law No 2/1969 on the organisation of ministries and other central authorities of the State administration of the [Czech Republic]):

‘In the Czech Republic, the central authorities of the administration of the State are the following: … 15. the Úřad pro přístup k dopravní infrastruktuře [(Transport infrastructure access authority)].’

8 The Úřad pro přístup k dopravní infrastruktuře (Transport infrastructure access authority, Czech Republic; ‘the Authority’) was created by zákon č. 320/2016 Sb., o Úřadu pro přístup k dopravní infrastruktuře (Law No 320/2016 on the Transport infrastructure access authority; ‘the Law on the Authority’).

9 Under Paragraph 3(2) of the Law on the Authority, ‘in the exercise of its powers, the Authority is independent, it shall act in an...