Information;Order — ECLI:EU:C:2022:342
Date: 2022-05-02
Language of the case: Czech
Court formation: Ninth Chamber
Subject matter: Transport
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Czechia

summary of the nature and 
course of the proceedings conducted by the District Court Prague 1 […], in which 
a preliminary question arose that was subsequently, on 3 March 2021, submitted 
to the European Court of Justice, ideally spanning one A4 page, please be 
informed that, due to the issue at hand, the number of parties, and the extensive 
nature of their submissions, the court has been forced to refer, in terms of the 
circumstances of the submission of the preliminary question, to the relevant 
submission from the file, which is being sent as an attachment to this e-mail. 
The foundation of the case at hand is the following: 
The Applicant, Správa železniční dopravní cesty, s. o. (‘Railway Administration’), 
in its action of 14 December 2018, seeks the dismissal of the administrative appeal 
of 2 November 2018 […], in particular, the part challenging statements 6, 8, 9, 22, 
and 28, and the confirmation of those statements; furthermore, it seeks the 
declaration that Chapters 2.4.1., 4.2.1.2., 4.3.2., 4.4.2. of the 2019 Statement are 
not contrary to the Zákon o drahách (‘Law on Rail Systems’). The judgment was 
supposed to fully replace the decision challenged by the action. 
On 22 June 2020, the Transport Infrastructure Access Authority applied for the 
submission of a reference for a preliminary ruling, with the following 
justification: 
In administrative proceedings […], in which the Transport Infrastructure Access 
Authority assessed, pursuant to Paragraph 34e of the Law on Rail Systems, the 
compliance of the network statement applicable to the drafting of the 2019 
timetable and to the 2019 timetable (a network statement as defined in Article 27 
of Directive 2012/34) with the Law on Rail Systems and issued a decision on 
15 June 2018 […]. The party to the proceedings who is, at the same time, the 
infrastructure manager and the capacity allocator, Správa železnic, státní 
organizace (‘the Railway Administration’) which issues the network statement, 
challenged the decision by an administrative appeal submitted to the Authority 
Chairman, challenging, inter alia, statements 3, 15, 16, and 19. In his decision 
concerning the administrative appeal, of 2 November 2018 […], the Authority 
Chairman upheld the first instance decision of the Authority to that extent. [OR.4] 
REQUEST FOR A PRELIMINARY RULING OF 22. 9. 2020 – CASE C-221/21 
 
4  
A party to the original administrative proceedings before the Authority, the 
Railway Administration submitted an action to the District Court Prague 1, 
pursuant to Part Five of the Code of Civil Procedure, asking the District Court 
Prague 1 […] [typing error] to rehear the matter to the extent of statements 3, 15, 
16, 19, replacing the Authority’s decision to that extent with its own judgment, 
pursuant to Paragraph 250j of the Code of Civil Procedure.  
Pursuant to Article 56(10) of Directive 2012/34, Member States shall ensure that 
decisions taken by the regulatory body are subject to judicial review. The 
Authority maintains that civil judicial proceedings pursuant to Part Five CCP do 
not constitute judicial review of a decision of a regulatory body. 
The court hears a matter decided in administrative proceedings totally anew, is 
entitled to rule regardless of previous decisions of the regulatory body, and is not 
obliged to consider its arguments. The court does not have the option to dismiss 
the decision of the regulatory body and send it back to that body for 
reconsideration. The court may only dismiss the application or decide itself, 
replacing the decision of the regulatory body. The regulatory body has only 
minimal possibilities to defend its decision before the courts. 
There are a total of 86 courts in the Czech Republic competent to hear actions 
submitted pursuant to Part Five CCP. Territorial jurisdiction of courts is 
determined on the basis of the place of the registered office of parties to the 
proceedings. There is a realistic possibility that individual civil courts will reach 
entirely different decisions on the compliance of a network statement with the 
Law on Rail Systems. 
For that reason, individual decisions of independent civil courts which, as the case 
may have it, may not be harmonised with case-law of higher courts, may replace 
the uniformity of supervision carried out by a regulatory body. 
With a view to the regulation of judicial proceedings in Part Five CCP described 
above, each individual civil court in the Czech Republic essentially plays an 
independent role as a regulatory body for the railway sector. That is contrary to 
Article 55(1) of Directive 2012/34, pursuant to which each Member State shall 
establish a single national regulatory body for the railway sector.  
The administrative judiciary fully complies with the requirements of judicial 
review of decisions of a regulatory body, pursuant to Article 56(10) of Directive 
2012/34. A single administrative court would always have competence to hear 
actions challenging decisions of the regulatory body. Proceedings pursuant to the 
soudní řád správní (‘Code of Administrative Procedure’) are proceedings in 
cassation. The court may annul a decision due to its unlawfulness or due to errors 
in the proceedings. The regulatory body will then decide the matter again, being 
bound by the legal opinion of the administrative court. 
Directive 2012/34 was only transposed into the Law on Rail Systems following 
the decision of the Nejvyšší správní soud (‘Supreme Administrative Court’). 
SPRÁVA ŽELEZNIC 
 
5 
Furthermore, Zákon č. 320/2016 Sb., o Úřadu pro přístup k dopravní 
infrastructure (Law 320/2016, ‘Law on the Transport Infrastructure Access 
Authority’) was adopted, which established the regulatory body that took over the 
function of the regulatory body from the Drážní úřad (Railway Authority). 
The review of compliance of a network statement with the Law on Rail Systems 
was also adapted by the transposition of Directive 2012/34 such that the 
regulatory authority only assesses the legality of a network statement, but does not 
replace it with specific text. The regulatory body can examine network statements 
afresh and ex officio. 
Furthermore, a decision of the Court of Justice of the European Union was 
rendered pertaining to a similar matter, which can be applied to the case at hand: 
judgment of the Court of Justice (Fifth Chamber) of 9 November 2017, CTL 
Logistics GmbH v. DB Netz AG., C-489/15, EU:C:2017:834. 
For the sake of completeness, the Authority adds that Directive 2012/34 replaced 
a previous Directive 2001/14 and regulates network statements and their review 
by regulatory bodies similarly. Articles 55 and 56 of Directive 2012/34 
significantly expanded and tightened the requirements of regulatory bodies as 
compared to Articles 30 and 31 of Directive 2001/14. Emphasis is newly placed 
on the existence of a single regulatory body. [OR.5] 
It is the opinion of the Authority that the CJEU judgment in CTL Logistics is fully 
applicable to the proceedings in question, due to which judicial review of the 
Authority’s proceedings pursuant to Part Five of the Code of Civil Procedure 
contravenes the purpose of Directive 2012/34, which excludes the application of 
national regulation pursuant to which proceedings of a regulatory body pertaining 
to network statements are subject to judicial review pursuant to Part Five of the 
Code of Civil Procedure. 
Furthermore, the Code of Civil Procedure permits the possibility of proceedings 
being concluded by a court settlement of the parties, pursuant to Paragraph 99 
CCP. If the court approved the settlement, it would essentially mean that an 
agreement between applicants and the infrastructure manager would decide 
whether a network statement is in line with the law. 
The conclusion of a settlement would not be compliant with Article 56 of 
Directive 2012/34, which states that appeals against decisions adopted by an 
infrastructure manager or a railway undertaking or a service facility operator that 
pertain to a network statement and the criteria set therein are to be adjudicated on 
by the regulatory body. Furthermore, Directive 2012/34 states that a decision of 
the regulatory body is binding on all parties to which the decision pertains and is 
not subject to review by another administrative instance. 
Decisions of the Authority assessing compliance of a network statement with the 
Law on Rail Systems, pursuant to Paragraph 34e of the Law on Rail Systems, 
would be rendered meaningless, because the parties to the proceedings could 
REQUEST FOR A PRELIMINARY RULING OF 22. 9. 2020 – CASE C-221/21 
 
6  
circumvent the Authority at any point and enter into a court settlement, and in that 
case, the position of the Authority would not be of any consequence. The final 
arbiter of the legality of a network statement would ultimately not be the 
Authority but the capacity allocators and applicants for capacity who would agree 
with one another whether a network statement is or is not compliant with the law. 
Pursuant to Article 56(10) of Directive 2012/34, decisions of a regulatory body 
are subject to judicial review. That provision can by no means be interpreted such 
that, instead of reviewing the steps or decisions of the regulatory body, the courts 
will in fact substitute its function or approve a settlement concluded by those who 
are regulated by the Authority. 
Such privatisation of the regulatory activities of the Authority runs contrary 
to the principle of affording protection to the weaker contractual party, when 
the Authority, as part of its regulatory activity, should ensure that a railway 
infrastructure manager does not abuse its natural monopoly in relation to 
individual railway enterprises.  
A situation could even occur where the Authority decides against the will of both 
the applicants and the infrastructure manager. Parties to the proceedings will 
resolve it by entering into a court settlement and in practical terms will circumvent 
the regulatory body. 
And finally, the application of Part Five of the Code of Civil Procedure is not in 
line with Directive 2012/34 also because administrative courts have competence 
to perform judicial review of the Authority’s decisions in certain cases and civil 
courts in others. This may concern cases of unlawfully set prices – fees, for the 
application of which the rail operator is accused of a misdemeanour. The 
Authority’s ruling on a misdemeanour will be reviewed by an administrative 
court, if an action is filed. Compliance of prices in a network statement with the 
law will, however, be reviewed and re-decided by a civil court. Judicial review of 
procedures and decisions of the regulatory body in different types of proceedings 
pursuant to Article 56(1) of Directive 2012/34 will differ depending on which 
court is competent to hear the type of proceedings concerned.  
Judicial review performed by different courts in different types of judicial 
proceedings will result in fragmented regulatory practice, which goes against the 
purpose of Article 55(1) of Directive 2012/34. That provision stipulates that each 
Member State shall establish a single national regulatory body for the railway 
sector. The outcome may be the coexistence of two uncoordinated decision-
making processes, which is clearly contrary to the goal pursued by Article 56 of 
Directive 2012/34. 
Civil courts rendering decisions pursuant to Part Five CCP do not meet some of 
the requirements imposed by Directive 2012/34 on the decision-making of a 
regulatory body. These courts are not obliged to publish their decisions, as is 
required by Article 56(11) of Directive 2012/34. Pursuant to Paragraph [OR.6] 
SPRÁVA ŽELEZNIC 
 
7 
158 CCP, a court’s judgement in civil judicial proceedings is only served on the 
parties to the proceedings. If the Authority is not admitted as a party to the 
proceedings, there is no explicit statutory obligation to send to the regulatory body 
judgements in written form that replace its decisions.  
Civil courts do not have authority pursuant to Article 56(2) of Directive 2012/34 
to monitor the competitive situation in the rail services markets and the activities 
of infrastructure mangers in relation to the rules set out in a network statement in 
order to prevent discrimination among applicants. Hence, their decisions cannot 
replace the decisions of a regulatory body.  
Civil courts do not have the power to carry out audits or initiate external audits 
with infrastructure managers, operators of service facilities and, where relevant, 
railway undertakings, to verify compliance with accounting separation provisions, 
as required by Article 56(12) of Directive 2012/34. The need to carry out an audit 
may arise even during proceedings before a court.  
Civil courts do not have the power to cooperate with regulatory bodies for the 
purposes of mutual assistance in their market monitoring tasks and handling 
complaints (including review of network statements) or investigations, as required 
by Article 57(2) of Directive 2012/34.  
The decision of the Supreme Administrative Court noted above, of 7 May 2014, 
ref. no. 1 As 28/2014 – 62, states, among other things, in paragraph 29, that 
Directive 2001/14/EC requires, in Article 30(6), that decisions taken by the 
regulatory body which, in the Czech Republic, is the Drážní úřad (the Railway 
Authority), must be subject to review. The Directive does not, however, regulate 
the material competence of courts of individual Member States, so it is entirely up 
to the Member States to determine which court will have material jurisdiction to 
review decisions of the regulatory authority. In the Czech Republic, the 
requirement of review is met both by proceedings pursuant to Paragraph 65 et 
seq. of the Code of Administrative Procedure and proceedings pursuant to Part 
Five of the Code of Civil Procedure, which must be considered to be essentially of 
equal standing in this regard. Given that national legislation is decisive for 
determining the material jurisdiction of the court in the case at hand, and no 
interpretation or assessment of the applicability of Directive 2001/14/EC or any 
other European Union legislation is required, the Supreme Administrative Court 
did not submit a reference for a preliminary ruling to the Court of Justice of the 
European Union pursuant to Article 267 of the Treaty on the Functioning of the 
European Union. Since then, however, not only the above-mentioned 
requirements of a regulatory body have changed, but also the above-mentioned 
judgment in CTL Logistics has been delivered. Directive 2012/34 does not 
regulate the material jurisdiction of a court, but it does regulate the decision-
making procedure. It no longer holds fully true that both judicial procedures 
comply with the review requirement in the Czech Republic. The Authority is of 
the opinion that proceedings before civil courts are non-compliant with Directive 
2012/34. For that reason, the Authority proposes that the court submit a question 
REQUEST FOR A PRELIMINARY RULING OF 22. 9. 2020 – CASE C-221/21 
 
8  
to the Court of Justice of the European Union for a preliminary ruling, pursuant to 
Article 267 of the Treaty on the Functioning of the European Union. 
In summary, the Transport Infrastructure Access Authority finds the current 
national regulation of judicial review of the Authority’s decisions concerning 
compliance of network statements with the Law on Rail Systems pursuant to Part 
Five CCP to be contrary to Directive 2012/34 for the following reasons:  
a. Since the decision of the Supreme Administrative Court, both legal regulation 
and the case-law have changed, making it necessary to submit a question for a 
preliminary ruling; 
b. Contrary to Article 56(10) of Directive 2012/34, it does not constitute judicial 
review of the Authority’s decision, but rather, a new decision on the same matter;  
c. Courts of general jurisdiction replace the Authority’s decisions with their 
judgments, thereby acting contrary to Article 55(1) of the Directive, pursuant to 
which a single regulatory body for the railway sector is to be established; 
d. Decision-making of a total of 86 competent courts of general jurisdiction in the 
Czech Republic would replace the uniformity of control performed by a 
competent authority, with the exception of potential subsequent review by courts 
deciding about actions challenging the decisions of that authority; the outcome 
would be the coexistence of two uncoordinated decision-making processes, which 
would clearly contravene the goal pursued by Article 55 and Article 56 of 
Directive 2012/34; [OR.7] 
e. The possibility of a court settlement between the applicants and the 
infrastructure manager renders the role of the regulatory body entirely 
meaningless, which is entirely contrary to the purpose of Directive 2012/34; 
f. The regulatory body does not have even a minimal possibility to defend its 
decision in civil judicial proceedings, and court decisions replacing decisions of 
the Authority may be made irrespective of the activities of the regulatory body; 
g. Civil courts do not meet the requirements of Article 56(2), (6), (11), and (12) 
and of Article 57(2) of Directive 2012/34. 
With respect to other supporting information, we refer to the court file that is 
currently being delivered to you. 
[…] [name of court assistant, referring court]