European Commission v Republic of Slovenia.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2013:511
• Court: Court of Justice (European Union)
• Date: 11 July 2013
• Docket Number: C‑627/10
• Procedure Type: Recurso por incumplimiento – fundado
• Celex Number: 62010CJ0627

JUDGMENT OF THE COURT (First Chamber)

11 July 2013 ( *1 )

‛Failure of a Member State to fulfil obligations — Transport — Directive 91/440/EEC — Development of the Community’s railways — Directive 2001/14/EC — Allocation of railway infrastructure capacity — Article 6(3) and Annex II to Directive 91/440 — Article 14(2) of Directive 2001/14 — Infrastructure manager — Participation in the preparation of the service timetable — Traffic management — Article 6(2) to (5) of Directive 2001/14 — Failure to provide incentives for infrastructure managers to reduce the costs of provision of infrastructure and the level of access charges — Articles 7(3) and 8(1) of Directive 2001/14 — Cost that is directly incurred as a result of operating the train service — Article 11 of Directive 2001/14 — Performance scheme’

In Case C-627/10,

ACTION under Article 258 TFEU for failure to fulfil obligations, brought on 29 December 2010,

European Commission, represented by H. Støvlbæk, D. Kukovec and M. Žebre, acting as Agents, with an address for service in Luxembourg,

applicant,

v

Republic of Slovenia, represented by N. Pintar Gosenca, A. Vran and J. Kampoš, acting as Agents,

defendant,

supported by:

Czech Republic, represented by M. Smolek and T. Müller, acting as Agents,

Kingdom of Spain, represented by S. Centeno Huerta, acting as Agent,

interveners,

THE COURT (First Chamber),

composed of A. Tizzano, President of the Chamber, A. Borg Barthet (Rapporteur), E. Levits, J.-J. Kasel and M. Berger, Judges,

Advocate General: N. Jääskinen,

Registrar: A. Impellizzeri, Administrator,

having regard to the written procedure and further to the hearing on 20 September 2012,

after hearing the Opinion of the Advocate General at the sitting on 13 December 2012,

gives the following

Judgment

1 By its action, the European Commission asks the Court for a declaration that, by failing to take the measures necessary to comply with: — Article 6(3) of and Annex II to Council Directive 91/440/EEC of 29 July 1991 on the development of the Community’s railways (OJ 1991 L 237, p. 25, and the corrigendum OJ 1991 L 305, p. 22), as amended by Directive 2004/51/EC of the European Parliament and of the Council of 29 April 2004 (OJ 2004 L 220, p. 58) (‘Directive 91/440’), and Article 14(2) 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 railway infrastructure (OJ 2001 L 75, p. 29), as amended by Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 (OJ 2004 L 164, p. 44) (‘Directive 2001/14’); — Articles 6(2) to (5), 7(3), 8(1) and 11 of Directive 2001/14, and — Article 30(1) of Directive 2001/14, the Republic of Slovenia has failed to fulfil its obligations under those directives.

Legal context

European Union law

Directive 91/440

2 Article 6(3) of Directive 91/440 reads as follows: ‘Member States shall take the measures necessary to ensure that the functions determining equitable and non-discriminatory access to infrastructure, listed in Annex II, are entrusted to bodies or firms that do not themselves provide any rail transport services. Regardless of the organisational structures, this objective must be shown to have been achieved. Member States may, however, assign to railway undertakings or any other body the collecting of the charges and the responsibility for managing the railway infrastructure, such as investment, maintenance and funding.’

3 Annex II to Directive 91/440 gives the list of essential functions referred to in Article 6(3): — preparation and decision making related to the licensing of railway undertakings including granting of individual licenses, — decision making related to the path allocation including both the definition and the assessment of availability and the allocation of individual train paths, — decision making related to infrastructure charging, — monitoring observance of public service obligations required in the provision of certain services.’

Directive 2001/14

4 Article 6(2) to (5) of Directive 2001/14 provides: ‘2. Infrastructure managers shall, with due regard to safety and to maintaining and improving the quality of the infrastructure service, be provided with incentives to reduce the costs of provision of infrastructure and the level of access charges. 3. Member States shall ensure that the provision set out in paragraph 2 is implemented, either through a contractual agreement between the competent authority and infrastructure manager covering a period of not less than three years which provides for State funding or through the establishment of appropriate regulatory measures with adequate powers. 4. Where a contractual agreement exists, the terms of the contract and the structure of the payments agreed to provide funding to the infrastructure manager shall be agreed in advance to cover the whole of the contract period. 5. A method for apportioning costs shall be established. Member States may require prior approval. This method should be updated from time to time to the best international practice.’

5 Under Article 7(3) of Directive 2001/14: ‘Without prejudice to paragraphs 4 or 5 or to Article 8, the charges for the minimum access package and track access to service facilities shall be set at the cost that is directly incurred as a result of operating the train service.’

6 Article 8(1) of Directive 2001/14 provides: ‘In order to obtain full recovery of the costs incurred by the infrastructure manager a Member State may, if the market can bear this, levy mark-ups on the basis of efficient, transparent and non-discriminatory principles, while guaranteeing optimum competitiveness in particular of international rail freight. The charging system shall respect the productivity increases achieved by railway undertakings. The level of charges must not, however, exclude the use of infrastructure by market segments which can pay at least the cost that is directly incurred as a result of operating the railway service, plus a rate of return which the market can bear.’

7 Article 11(1) of that directive is worded as follows: ‘Infrastructure charging schemes shall encourage railway undertakings and the infrastructure manager to minimise disruption and improve the performance of the railway network through a performance scheme. This scheme may include penalties for actions which disrupt the operation of the network, compensation for undertakings which suffer from disruption and bonuses that reward better-than-planned performance.’

8 Article 14(1) and (2) of Directive 2001/14 provides: ‘1. Member States may establish a framework for the allocation of infrastructure capacity while respecting the management independence laid down in Article 4 of Directive 91/440/EEC. Specific capacity-allocation rules shall be laid down. The infrastructure manager shall perform the capacity-allocation processes. In particular, the infrastructure manager shall ensure that infrastructure capacity is allocated on a fair and non-discriminatory basis and in accordance with Community law. 2. Where the infrastructure manager, in its legal form, organisation or decision-making functions is not independent of any railway undertaking, the functions referred to in paragraph 1 and described in this chapter shall be performed by an allocation body that is independent in its legal form, organisation and decision-making from any railway undertaking.’

Slovenian law

Law on rail transport

9 The Law on rail transport (zakon o želeniškem prometu) of 26 April 2007 (Uradni List RS No 44/2007), in the version applicable to the present dispute (Uradni List RS No 58/2009, the ‘Law on rail transport’), provides in Article 21: ‘1. For the purposes of the performance of the functions referred to in the present article, the Government shall create a public agency for rail transport, [‘the Railway Agency’]). … 3. The [Railway] Agency shall perform its functions so as to ensure non-discriminatory access to the railway infrastructure, including: — allocation of train paths; … — adoption of a network service timetable.’

10 Under Article 11 of that law: ‘1. Maintenance of the public railway infrastructure and management of rail transport on that infrastructure shall constitute public service obligations. 2. The manager shall discharge the public service obligations mentioned in the preceding paragraph in accordance with the public service contract. … 4. The regulation of rail transport on the public railway infrastructure shall consist principally of: — management of train movements; — preparation and application of the service timetable; – …’

Decree of 10 April 2008

11 The Decree on the allocation of train paths and charges for the use of the public railway infrastructure (uredba o dodeljevanju vlakovnih poti in uporabnini na javni železniški infrastrukturi) of 10 April 2008 (Uradni List RS No 38/08 (‘Decree of 10 April 2008’), provides in Article 9: ‘1. The [Railway] Agency, the manager and the applicant shall, in the procedure for establishing and allocating train paths, observe the following time-limits and principles: … — the manager shall prepare a draft new service timetable and new train timetables no later than five months before the new service timetable takes effect and forward them to the [Railway] Agency; — in preparing the draft...