DB Station & Service AG v ODEG Ostdeutsche Eisenbahn GmbH.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:832
• Date: 27 October 2022
• Docket Number: C-721/20
• Celex Number: 62020CJ0721
• Procedure Type: Reference for a preliminary ruling
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Fourth Chamber)

27 October 2022 (*)

(Reference for a preliminary ruling – Rail transport – Article 102 TFEU – Abuse of a dominant position – Directive 2001/14/EC – Access to railway infrastructure – Article 30 – Railway regulatory body – Review of infrastructure charges – National courts – Review of charges in the light of competition law – Division of competence between the regulatory authority and the national courts)

In Case C‑721/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Kammergericht (Higher Regional Court, Berlin, Germany), made by decision of 10 December 2020, received at the Court on 30 December 2020, in the proceedings

DB Station & Service AG

v

ODEG Ostdeutsche Eisenbahn GmbH,

THE COURT (Fourth Chamber),

composed of C. Lycourgos, President of the Chamber, L.S. Rossi, J.‑C. Bonichot (Rapporteur), S. Rodin and O. Spineanu-Matei, Judges,

Advocate General: T. Ćapeta,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– DB Station & Service AG, by M. Köhler and M. Weitner, Rechtsanwälte,

– ODEG Ostdeutsche Eisenbahn GmbH, by A.R. Schüssler and B. Uhlenhut, Rechtsanwälte,

– the European Commission, by B. Ernst and G. Meessen, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 7 April 2022,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 102 TFEU and of Articles 4, 7 to 12 and 30 of Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of the railway infrastructure (OJ 2001 L 75, p. 29 and corrigendum OJ 2004 L 220, p. 16), as amended by Directive 2007/58/EC of the European Parliament and of the Council of 23 October 2007 (OJ 2007 L 315, p. 44) (‘Directive 2001/14’).

2 The request has been made in the proceedings between DB Station & Service AG and ODEG Ostdeutsche Eisenbahn GmbH (‘ODEG’) concerning the amount of the charge payable by ODEG for the use of railway stations operated by DB Station & Service.

Legal context

European Union law

Directive 2001/14

3 Recitals 5, 11, 16, 32, 40 and 46 of Directive 2001/14 were worded as follows:

‘(5) To ensure transparency and non-discriminatory access to rail infrastructure for all railway undertakings all the necessary information required to use access rights are to be published in a network statement.

…

(11) The charging and capacity allocation schemes should permit equal and non-discriminatory access for all undertakings and attempt as far as possible to meet the needs of all users and traffic types in a fair and non-discriminatory manner.

…

(16) Charging and capacity allocation schemes should allow for fair competition in the provision of railway services.

…

(32) It is important to minimise the distortions of competition which may arise, either between railway infrastructures or between transport modes, from significant differences in charging principles.

…

(40) A railway infrastructure is a natural monopoly. It is therefore necessary to provide infrastructure managers with incentives to reduce costs and manage their infrastructure efficiently.

…

(46) The efficient management and fair and non-discriminatory use of rail infrastructure require the establishment of a regulatory body that oversees the application of these Community rules and acts as an appeal body, notwithstanding the possibility of judicial review.’

4 Article 1(1) of that directive provided:

‘This Directive concerns the principles and procedures to be applied with regard to the setting and charging of railway infrastructure charges and the allocation of railway infrastructure capacity.

…’

5 Article 2 of Directive 2001/14 contained definitions. That article was worded as follows:

‘For the purpose of this Directive:

…

(b) “applicant” means a licensed railway undertaking and/or an international grouping of railway undertakings, and, in Member States which provide for such a possibility, other persons and/or legal entities with public service or commercial interest in procuring infrastructure capacity … for the operation of railway service on their respective territories;

…

(f) “framework agreement” means a legally binding general agreement on the basis of public or private law, setting out the rights and obligations of an applicant and the infrastructure manager or the allocation body in relation to the infrastructure capacity to be allocated and the charges to be levied over a period longer than one working timetable period;

…

(h) “infrastructure manager” means any body or undertaking that is responsible in particular for establishing and maintaining railway infrastructure. …

…’

6 Article 4 of that directive, entitled ‘Establishing, determining and collecting charges’, provided:

‘1. Member States shall establish a charging framework while respecting the management independence laid down in Article 4 of [Council Directive 91/440/EEC of 29 July 1991 on the development of the Community’s railways (OJ 1991 L 237, p. 25)].

Subject to the said condition of management independence, Member States shall also establish specific charging rules or delegate such powers to the infrastructure manager. The determination of the charge for the use of infrastructure and the collection of this charge shall be performed by the infrastructure manager.

…

5. Infrastructure managers shall ensure that the application of the charging scheme results in equivalent and non-discriminatory charges for different railway undertakings that perform services of equivalent nature in a similar part of the market and that the charges actually applied comply with the rules laid down in the network statement.

…’

7 Under Article 5(1) of Directive 2001/14:

‘Railway undertakings shall, on a non-discriminatory basis, be entitled to the minimum access package and track access to service facilities that are described in Annex II. The supply of services referred to in Annex II, point 2 shall be provided in a non-discriminatory manner and requests by railway undertakings may only be rejected if viable alternatives under market conditions exist. …’

8 Article 7 of that directive concerned charging principles and provided, in paragraph 7:

‘The supply of services referred to in Annex II, point 2, shall not be covered by this Article. Without prejudice to the foregoing, account shall be taken, in setting the prices for the services set out in Annex II, point 2, of the competitive situation of rail transport.’

9 Under Article 9(1) of Directive 2001/14:

‘Without prejudice to Articles 81, 82, 86 and 87 [EC] and notwithstanding Article 7(3) of this Directive, any discount on the charges levied on a railway undertaking by the infrastructure manager, for any service, shall comply with the criteria set out in this Article.’

10 Article 17 of that directive, entitled ‘Framework agreements’, provided in paragraph 1:

‘Without prejudice to Articles 81, 82 and 86 [EC], a framework agreement may be concluded with an applicant. Such a framework agreement specifies the characteristics of the infrastructure capacity required by and offered to the applicant over a period of time exceeding one working timetable period. The framework agreement shall not specify a train path in detail, but should be such as to seek to meet the legitimate commercial needs of the applicant. …’

11 Article 24(2) of Directive 2001/14 provided:

‘Where there are suitable alternative routes, the infrastructure manager may, after consultation with interested parties, designate particular infrastructure for use by specified types of traffic. Without prejudice to Articles 81, 82 and 86 [EC], when such designation has occurred, the infrastructure manager may give priority to this type of traffic when allocating infrastructure capacity.

…’

12 Under Article 30 of that directive, entitled ‘Regulatory body’:

‘1. Without prejudice to Article 21(6), Member States shall establish a regulatory body. This body, which can be the Ministry responsible for transport matters or any other body, shall 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. The body shall function according to the principles outlined in this Article whereby appeal and regulatory functions may be attributed to separate bodies.

2. An applicant shall have a 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 concerning:

(a) the network statement;

…

(d) the charging scheme;

(e) [the] level or structure of infrastructure fees which it is, or may be, required to pay;

(f) arrangements for access in accordance with Article 10 of [Directive 91/440, as amended by Directive 2004/51/EC of the European Parliament and the Council of 29 April 2004 (OJ 2004 L 164 p. 164)].

3. The regulatory body shall ensure that charges set by the infrastructure manager comply with chapter II and are non-discriminatory. Negotiation 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 Directive.

…

5. The regulatory body shall be required to decide on any complaints and take action to remedy the situation within a maximum period of two months from receipt of all information.

Notwithstanding paragraph 6...