# C_2010328EN.01001903.xml

| 4.12.2010 | EN | Official Journal of the European Union | C 328/19 |
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Action brought on 29 September 2010 — European Commission v Republic of Hungary

(Case C-473/10)

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2010/C 328/36

Language of the case: Hungarian

Parties

Applicant(s): European Commission (represented by: H. Støvlbæk and B.D. Simon, agents)

Defendant(s): Republic of Hungary

Form of order sought

The Commission claims that the Court should

| 1. | declare that the Republic of Hungary:
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Failed to fulfil its obligations under Article 6(3) of and Annex II to Directive 91/440/EEC, as amended,( 1 ) and by Article 14(2) of Directive 2001/14/EC( 2 ) in that it did not ensure the independence from the railway companies of the allocation of train paths, —
Failed to fulfil its obligations under Article 6(3) of and Annex II to Directive 91/440/EEC, as amended, and by Article 4(2) of Directive 2001/14/EC in that it did not ensure the independence from the railway companies of the establishment of charges, —
Failed to fulfil its obligations under Article 6(1) of Directive 2001/14/EC in that it did not ensure the financial balance of infrastructure managers, —
Failed to fulfil its obligations under Article 6(2) of Directive 2001/14/EC in that it did not provide infrastructure managers with incentives to reduce the costs of provision of infrastructure and the level of access charges, —
Failed to fulfil its obligations under Article 7(3) of Directive 2001/14/EC in that it did not ensure that charges for the minimum access package and track access to service facilities were set at the cost that is directly incurred as a result of operating the train service, —
Failed to fulfil its obligations under Article 11 of Directive 2001/14/EC in that it did not implement a scheme to encourage railway undertakings and infrastructure managers to minimise disruption and improve the performance of the railway network; | — | Failed to fulfil its obligations under Article 6(3) of and Annex II to Directive 91/440/EEC, as amended,( 1 ) and by Article 14(2) of Directive 2001/14/EC( 2 ) in that it did not ensure the independence from the railway companies of the allocation of train paths, | — | Failed to fulfil its obligations under Article 6(3) of and Annex II to Directive 91/440/EEC, as amended, and by Article 4(2) of Directive 2001/14/EC in that it did not ensure the independence from the railway companies of the establishment of charges, | — | Failed to fulfil its obligations under Article 6(1) of Directive 2001/14/EC in that it did not ensure the financial balance of infrastructure managers, | — | Failed to fulfil its obligations under Article 6(2) of Directive 2001/14/EC in that it did not provide infrastructure managers with incentives to reduce the costs of provision of infrastructure and the level of access charges, | — | Failed to fulfil its obligations under Article 7(3) of Directive 2001/14/EC in that it did not ensure that charges for the minimum access package and track access to service facilities were set at the cost that is directly incurred as a result of operating the train service, | — | Failed to fulfil its obligations under Article 11 of Directive 2001/14/EC in that it did not implement a scheme to encourage railway undertakings and infrastructure managers to minimise disruption and improve the performance of the railway network; |
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| — | Failed to fulfil its obligations under Article 6(3) of and Annex II to Directive 91/440/EEC, as amended,( 1 ) and by Article 14(2) of Directive 2001/14/EC( 2 ) in that it did not ensure the independence from the railway companies of the allocation of train paths, | | | | | | | | | | | | |
| — | Failed to fulfil its obligations under Article 6(3) of and Annex II to Directive 91/440/EEC, as amended, and by Article 4(2) of Directive 2001/14/EC in that it did not ensure the independence from the railway companies of the establishment of charges, | | | | | | | | | | | | |
| — | Failed to fulfil its obligations under Article 6(1) of Directive 2001/14/EC in that it did not ensure the financial balance of infrastructure managers, | | | | | | | | | | | | |
| — | Failed to fulfil its obligations under Article 6(2) of Directive 2001/14/EC in that it did not provide infrastructure managers with incentives to reduce the costs of provision of infrastructure and the level of access charges, | | | | | | | | | | | | |
| — | Failed to fulfil its obligations under Article 7(3) of Directive 2001/14/EC in that it did not ensure that charges for the minimum access package and track access to service facilities were set at the cost that is directly incurred as a result of operating the train service, | | | | | | | | | | | | |
| — | Failed to fulfil its obligations under Article 11 of Directive 2001/14/EC in that it did not implement a scheme to encourage railway undertakings and infrastructure managers to minimise disruption and improve the performance of the railway network; | | | | | | | | | | | | |

| 2. | order the Republic of Hungary to pay the costs. |
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Pleas in law and main arguments

The purpose of Directive 91/440/EEC and Directive 2001/14/EC is to guarantee equitable and non-discriminatory access to rail infrastructure for the railway undertakings. In order to achieve that objective those directives provide that bodies providing rail transport services may not take decisions relating to the allocation of train paths and distributing bodies must allocate capacity independently. If a railway undertaking manages transport this inevitably results in a competitive advantage as, in order to provide the tasks involved in the management of transport, detailed knowledge is required regarding the services offered by the railway undertakings, their frequency and their times.

The need to bring the present application arose inter alia because in Hungary — in breach of the provisions of the above directives — transport management is carried out by bodies offering transport services.

It is not possible to regard transport management as an infrastructure management activity which does not involve the allocation of train paths or supply of capacity as transport management is necessarily involved in the decision making process concerning the supply of capacity or the allocation of train paths. On the one hand, the transport manager must be fully informed of the decisions regarding designation of capacity in order to pursue its management activities; on the other hand, in the event of disruption of transport or emergency it must take the steps necessary to restore the operation of transport as scheduled, which necessarily requires a reallocation of network capacity and available train paths.

The principle of the independence of transport management has been infringed in that, in Hungary, railway undertakings send detailed invoices setting out the charges for access to infrastructure. Given that the detailed invoices necessarily refer, inter alia, to the services used by certain railway undertakings and their frequency and times, they confer a competitive advantage on the undertakings which issue them.

In addition to the failure to fulfil the requirement of the independence of the allocation of train paths, the Republic of Hungary has also failed to fulfil its obligations under Directives 91/440 and 2001/14 in so far as:

| — | It has not laid down the conditions necessary to guarantee the financial balance of infrastructure management; |
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| — | It has not adopted the necessary measures to require all infrastructure managers to reduce charges for access to the network and management costs; |
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| — | It has not adopted the implementing measures necessary to guarantee the application of the principle of direct cost in determining the charges to be paid for track access to service facilities, and finally |
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| — | It has not adopted a system of measures to encourage railway undertakings and infrastructure management to minimise disruption and improve the performance of the railway network. |
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( 1 )  Council Directive 91/440/EEC of 29 July 1991 on the development of the Community's railways (OJ 1991 L 237, Special edition in Hungarian, Chapter 7, Volume 1, p. 341).

( 2 )  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 and safety certification (OJ 2001 L 75, p. 29, Special edition in Hungarian, Chapter 7, volume 5, p. 404).

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