Opinion of the Advocate General — ECLI:EU:C:2012:791
Date: 2012-12-13
Language of the case: Czech
Based on: Treaty on the Functioning of the European Union (consolidated version 2008)
Subject matter: Transport
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Czechia

summary of the pleas in law on which the application is based, so as to enable the defendant to prepare a defence and the Court to rule on the application. It follows that the essential points of law and of fact on which an action is based must be indicated coherently and intelligibly in the application itself and that the heads of claim must be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on a complaint. (31) 113. The Court has also held that, where an action is brought under Article 258 TFEU, the application must set out the complaints coherently and precisely, so that the Member State and the Court can know exactly the full extent of the alleged infringement of European Union law, a condition which must be satisfied if the Member State is to be able to present an effective defence and the Court to determine whether there has been a breach of obligations, as alleged. (32) 114. With regard to the competences of the regulatory body, in its application the Commission alleged that Article 30(5) of Directive 2001/14 should be interpreted to the effect that the regulatory body must be able to decide and take action on all matters referred to in Article 30 of the directive, and above all on those set out in paragraphs 2 and 3 of that article. However, in those allegations, it only addressed the competence referred to in Article 30(2)(e) of the directive concerning the level or structure of infrastructure fees, and the purported impossibility for the Czech regulatory body to act on its own initiative. 115. Even though the second limb of the fifth complaint in the application could be interpreted as covering all matters falling within the scope of Article 30(5) of Directive 2001/14 and the abovementioned aspects are cited only as examples, it must be stated that the application does not satisfy the requirements governing admissibility established by the Court’s abovementioned case-law, in the absence of adequate grounds allowing the alleged infringement to be established. 116. I therefore propose that the Court declare inadmissible the second limb of the Commission’s fifth complaint, in so far as the infringement of Article 30(5) of Directive 2001/14 concerns aspects other than those in relation to the review of the level or structure of infrastructure fees and the capacity of the regulatory body to act on its own initiative. 117. As regards, substantively, the capacity of the regulatory body to act on its own initiative, the Commission claims that Article 34g of the Law on railways provides that the Office for Railways acts only at the request of an applicant, whereas Article 30(3) of Directive 2001/14 requires that the regulatory body act on its own initiative. According to the Member State, Law No 552/1991 on State control, as amended, in conjunction with Article 58 of the Law on railways, provides for the time and/or the basis on which the regulatory body may act, whilst Article 34g(3) of that Law lays down the action to be taken in the event that an infringement is established. 118. The Commission’s criticism is based on an interpretation of Article 34g of the Law on railways whereby, like the procedures before the Office for Railways referred to in paragraphs 1 and 2 of that article, which are initiated by an applicant for the allocation of capacity, the applicability of paragraph 3 of that article is also subject to such a request. (33) 119. However, this interpretation of the national provision is challenged by the Czech Republic, which claims that State control in the field of railways is exercised on the basis of Article 58(2) of the Law on railways, under which the regulatory body must verify ‘whether the obligations on the railway owner, the railway manager and the carrier, as laid down by the law, are respected and fulfilled in the context of the operation of the railways and rail transport’. 120. In the view of that Member State, that provision, in conjunction with Law No 552/1991, which confers on bodies which are competent to exercise State control the power to conduct verifications and, on the basis of those verifications, to initiate the infringement procedure, to adopt corrective measures or to impose fines for administrative infringements, establishes the competence of the regulatory body to take the decisions referred to in Article 34g(3) of the Law on railways on its own initiative. 121. In this regard, I would reiterate that it is settled case-law that, in proceedings for failure to fulfil an obligation, it is for the Commission to provide all the proof needed to enable the Court to determine whether the obligation has not been fulfilled. It seems undeniable that the finding that an obligation has not been fulfilled cannot be based on the interpretation of an isolated provision of national law, even if, to use the words of the Commission, that provision follows ‘logically and systematically’ the preceding provisions of the same article, since that interpretation is fiercely contested by the Member State, which refers to provisions with more general application which militate in favour of the opposite interpretation. Consequently, in my view, the Commission has not been able to establish to the requisite legal standard that the Office for Railways does not have the capacity to act on its own initiative. 122. Furthermore, the Commission claims that the regulatory body is not authorised to adopt decisions or corrective measures in all the matters mentioned in Article 30(2) and (3) of Directive 2001/14, for example in relation to the level or structure of infrastructure fees which the applicant is, or may be, required to pay, as provided for in Article 30(2)(e) of the directive. 123. With regard to Article 30(2) and (3) of Directive 2001/14, I would point out that I consider the Commission’s action to be admissible only as regards the review of the level or structure of infrastructure fees. 124. That being the case, the Czech Republic has contended, first, that under Article 34g(1) and (3) in conjunction with Article 34c(2) of the Law on railways, the Office for Railways is authorised, in reviewing the criteria set out in the rail network statement, to review information on the charge for the allocation of capacity and the determination of the charge for the use of railway infrastructure. Second, the review of the specific level of the infrastructure fee that a particular transport undertaking is required to pay is based on Article 34g(2) and (3) of that Law. Under those provisions, the Office for Railways is authorised to review the process for the allocation of railway infrastructure capacity, an essential element of which, according to the express provisions of the Law, is the determination of the specific level of the infrastructure access charge. 125. Furthermore, according to the Czech Republic, the criteria for the rail network statement are laid down in Article 34c(2) of the Law on railways. Those criteria include information on prices for the allocation of railway infrastructure capacity and on the setting of the amount of charges for the use of railway infrastructure. 126. The Czech Republic rightly states that information on prices and charges is merely another way of describing the level of infrastructure fees which are or may be charged. Similarly, the method used to set prices under Article 34g of the Law on railways, whose review is the responsibility of the regulatory body, includes the structure of infrastructure fees. 127. The national provisions cited above do not seem, at first sight, inadequate having regard to the requirements under Article 30(2)(e) of Directive 2001/14. The regulatory body has the power to take decisions on the amendment of the statement, including criteria contained within it, or on the allocation of railway infrastructure capacity, in particular the method used to set prices. The procedural arrangements laid down to this effect, in particular the period of 15 days to lodge complaints, are liable to weaken this conclusion. However, this latter aspect was not raised by the Commission in its application, but only at the stage of its reply, and it therefore appears out of time. It follows that the Commission has not been able to establish to the required legal standard the reality of the alleged failure to fulfil obligations in respect of the competences of the regulatory body as regards the level or structure of infrastructure fees. 128. On those grounds, I propose that the Court reject the second limb of the Commission’s fifth complaint as partially inadmissible and partially unfounded. F – The sixth complaint concerning the absence of the body referred to in Article 10(7) of Directive 91/440 1. Arguments of the parties 129. The Commission claims that the Czech Republic has failed to fulfil its obligations under Article 10(7) of Directive 91/440, because there does not exist in the Czech Republic a body such as that referred to in that provision to fulfil the functions laid down. 130. Under the first subparagraph of Article 10(7) of Directive 91/440, either the regulatory body established pursuant to Article 30 of Directive 2000/14 or any other body enjoying the same degree of independence may monitor the competition in the rail services markets. In both cases, the body in question is required to satisfy the requirements under the second subparagraph of Article 10(7) of Directive 91/440, namely to have been set up in accordance with the rules in Article 30(1) of the Directive 91/440 to deal with complaints from applicants and, on the basis of a complaint or on its own initiative, to decide on appropriate measures to correct undesirable developments in these markets. 131. In this regard, the Commission states that in the Czech Republic competition in the rail services markets is monitored by the Office for the Protection of Competition whose competences are defined by the Law on the competences of the Office for the Protection of Competition. 132. However, under that legislation, the Office’s competence is limited to matters directly linked to competition in the rail services markets. The Commission infers that it does not exercise all the functions that it should exercise pursuant to the second subparagraph of Directive 91/440 and it cannot therefore be regarded as a body performing the functions set out in that provision. The Commission claims in particular that the Office in question cannot decide on any complaint from applicants who feel that they have been treated unjustly, have been the subject of discrimination or have been injured in any other way and cannot, on the basis of a complaint or on its own initiative, decide on appropriate measures to correct undesirable developments in these markets. 133. The Czech Republic claims principally that this plea in law must be declared inadmissible. It argues that the Commission raised the complaint concerning an infringement of Article 10(7) of Directive 91/440, by reason of a lack of competence on the part of the Office for the Protection of Competition to exercise the functions referred to in the second subparagraph of Article 10(7) of Directive 91/440 only at the stage of the application and it did not therefore give it the opportunity to respond properly to these criticisms in the phase before the application was brought, in accordance with the Court’s settled case-law. 134. The Czech Republic claims that, for the first time since the start of the proceedings, the Commission claims within the framework of the application a lack of incompetence on the part of the Office for the Protection of Competition, not in relation to the functions referred to in Article 30 of Directive 2001/14, as it did in the reasoned opinion, but in relation to Article 10(7) of Directive 91/440. 2. Examination of the sixth complaint 135. Like the Czech Republic, I take the view that the Commission’s sixth complaint must be declared inadmissible in the light of the case-law cited above. (34) 136. In its reasoned opinion, the Commission actually referred to Article 10(7) of Directive 91/440, complaining that the Czech Republic has failed to fulfil obligations under that provision. However, the Commission’s complaint was based primarily on the claim that the Office for the Protection of Competition could not act as a regulatory body because the railway directives did not permit the functions of that body to be shared among several bodies. Secondly, the Member State was criticised for the fact that the Office for the Protection of Competition did not have all the competences referred to in Article 30 of Directive 2001/14. 137. On those grounds, I propose that the Court reject the Commission’s sixth complaint as inadmissible. V – Costs 138. Under Article 138(3) of the Rules of Procedure, (35) the parties are to bear their own costs where each party succeeds on some and fails on other heads. As both the Commission and the Czech Republic have failed on several heads, I propose that each party bears its own costs. 139. In accordance with Article 140(1) of the Rules of Procedure, the Kingdom of Spain is ordered to bear its own costs. VI – Conclusion 140. In the light of the foregoing, I propose that the Court: (1) declare that the Czech Republic has failed to fulfil its obligations under – Article 4(1) 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 and safety certification, as amended by Directive 2007/58/EC of the European Parliament and of the Council of 23 October 2007, by laying down a maximum amount for charges for the use of infrastructure; – Article 6(2) of Directive 2001/14, as amended by Directive 2007/58, by failing to adopt measures providing infrastructure managers with incentives to reduce the costs of provision of infrastructure and the level of access charges; – Article 11 of Directive 2001/14, as amended by Directive 2007/58, by failing to introduce a performance scheme encouraging railway undertakings and the infrastructure manager to minimise disruption and improve the performance of the railway network; and – Article 30(5) of Directive 2001/14, as amended by Directive 2007/58, by introducing an administrative review of the regulatory body’s decisions by means of an appeal to the Ministry of Transport; (2) dismiss the action as to the remainder; (3) order the Commission, the Czech Republic and the Kingdom of Spain to bear their own costs. 1 – Original language: French. 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). 3 – Directive 2007/58/EC of the European Parliament and of the Council of 23 October 2007 (OJ 2007 L 315, p. 44). It should be noted that the title of Directive 2001/14 was amended by Article 30 of Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 (OJ 2004 L 164, p. 44). Its title since then has been ‘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’. 4 – Council Directive 91/440/EEC of 29 July 1991 on the development of the Community’s railways (OJ 1991 L 237, p. 25). 5 – Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001 (OJ 2001 L 75, p. 1). 6 – Case C‑557/10 Commission v Portugal [2012] ECR and Case C‑528/10 Commission v Greece, and Cases C‑473/10 Commission v Hungary; C‑483/10 Commission v Spain; C‑512/10 Commission v Poland; C‑555/10 Commission v Austria; C‑556/10 Commission v Germany; C‑625/10 Commission v France; C‑627/10 Commission v Slovenia; C‑369/11 Commission v Italy; and C‑412/11 Commission v Luxembourg, pending before the Court. 7 – See my Opinion in Case C-483/10 Commission v Spain, points 41 to 53. 8 – To take a fictitious example, the State could decide that infrastructure costs represent 30% for rail freight traffic, 20% for long-distance passenger transport and 80% for local public transport. Consequently, the State would be responsible for the remainder of the costs generated, namely 70%, 80% and 20% respectively. 9 – Case C‑438/04 Mobistar [2006] ECR I-6675, paragraph 37. 10 – Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51). 11 – See my Opinions in Case C-556/10 Commission v Germany, cited above, points 93 to 104, and in Case C-512/10 Commission v Poland, cited above, points 74 to 84. 12 – See my Opinions in Commission v Spain, cited above, points 67 to 71, and Commission v Poland, cited above, point 76, and the fourth complaint in the present case, point 90 et seq. 13 – According to recital 40 in the preamble to Directive 2001/14, ‘[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’. 14 – Opinion of 9 May 2011 on the Commission’s initial proposal for the recast of the first railway package directives (see www.cer.be). The Czech Republic states that the Community of European Railway and Infrastructure Companies is a non-governmental organisation bringing together 79 European undertakings in the sector. 15 – Points 73 to 85. 16 – Article 4(1) and (4) of Directive 2001/14. 17 – Point 74 of my Opinion in Case C-556/10 Commission v Germany. 18 – The Court will also have to rule on this question in the context of the fourth complaint in Case C‑512/10 Commission v Poland, points 92 to 105. 19 – See recitals 32, 33, 38 and 39 in the preamble to Directive 2001/14. 20 – As regards the marginal cost for the use of railway infrastructure, see the document entitled ‘Charges for the Use of Rail Infrastructure of 2008’, OECD/International Transport Forum 2008 (www.internationaltransportforum.org) and P. Wheat, A. Smith and C. Nash: CATRIN (Cost Allocation of Transport Infrastructure Cost), Deliverable 8 – Rail Cost Allocation for Europe, Stockholm 2009. 21 – See ‘Charges for the Use of Rail Infrastructure of 2008’. 22 – T. Suvanto: Marginal Cost Pricing, ECMT Workshop on Rail Infrastructure Charges, Rome 9.7.2004, Ministry of Transport and Communications of Finland, http://www.internationaltransportforum.org/IntOrg/ecmt/railways/pdf/Rome04FIN.pdf 23 – See Annex VIII, point 1 to the Proposal for a Directive of the European Parliament and of the Council establishing a Single European railway area COM(2010) 475 final. 24 – At first reading the European Parliament deleted point (c). 25 – European Parliament legislative resolution of 3 July 2012 on the Council position at first reading with a view to the adoption of a directive of the European Parliament and of the Council establishing a single European railway area (recast) (18581/2/2011-C7-0268/2010-2010/0253(COD), Article 31 and footnote 18. 26 – The Commission refers in this regard to the Catrin study, cited above in footnote 20, according to which the charges set at the costs that are directly incurred as a result of operating the train service fall within a range from EUR 0 to 2 per train-kilometre in the case of a typical 960 gross tonne freight train. 27 – Case C‑159/94 Commission v France [1997] ECR I-5815, paragraph 102, and Case C‑55/99 Commission v France [2000] ECR I-11499, paragraph 30. 28 – See points 67 to 72 of that Opinion. 29 – Those five complaints are: (i) lack of competence with regard to the examination of the requirements referred to in the introductory sentence of Article 30(2) of Directive 2001/14; (ii) a limitation of the examination of the requirements referred to in Article 30(2)(c) thereof, on account of the time-limit for lodging a complaint; (iii) lack of competence to examine the requirements referred to in Article 30(2)(d); (iv) a limitation of the examination of the requirements referred to in Article 30(2)(d), on account of the time-limit for lodging a complaint, and (v) a limitation of the examination of the requirements referred to in Article 30(2)(e), on account of the time-limit for lodging a complaint. 30 – In this instance, the version in force prior to 1 November 2012. 31 – See, inter alia, Case C‑475/07 Commission v Poland, paragraph 43; Case C‑375/10 Commission v Spain, paragraph 10; and judgment of 10 May 2012 in Case C‑39/10 Commission v Estonia, paragraph 24. 32 – See, inter alia, Commission v Poland, paragraph 44; Commission v Spain, paragraph 11; and Commission v Estonia, paragraph 26, cited above. 33 – I would recall that Article 34g(3) of the Law on railways reads as follows: ‘If the Office for Railways finds that an incorrect procedure was followed in the preparation of the network statement, … it shall decide to amend that statement, including criteria contained within it, or it shall decide on an allocation of that capacity, in particular the method used to set prices’. 34 – See footnotes 31 and 32 above. 35 – The act which entered into force on 1 November 2012.