Opinion of the Advocate General — ECLI:EU:C:2022:288
Date: 2022-04-07
Language of the case: German
Subject matter: Competition;Agreements, decisions and concerted practices;Transport
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Germany

Summary C-721/20 – 1 
Case C-721/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
30 December 2020 
Referring court: 
Kammergericht Berlin (Germany) 
Date of the decision to refer: 
10 December 2020 
Defendant and appellant: 
DB Station & Service AG 
Applicant and respondent: 
ODEG Ostdeutsche Eisenbahn GmbH 
  
Subject matter of the main proceedings 
Rail transport – Directive 2001/14/EC – Station charges – Power of civil courts to 
review user charges based on the criteria laid down in Article 102 TFEU and/or in 
national competition law 
Subject matter and legal basis of the request 
Interpretation of EU law, subparagraph (b) of the first sentence of Article 267 
TFEU 
Questions referred for a preliminary ruling 
1. Is it compatible with Directive 2001/14/EC, including its provisions on the 
management independence of the infrastructure undertaking (Article 4), the 
principles of charging (Articles 7 to 12) and the tasks of the regulatory body 
(Article 30), for national civil courts to review the charges levied based on 
the criteria laid down in Article 102 TFEU and/or in national competition 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-721/20 
 
2  
law on a case-by-case basis independently of the monitoring carried out by 
the regulatory body? 
2. If Question 1 is answered in the affirmative: Are the national civil courts 
permitted and required to conduct an assessment of abusive practices in the 
light of the criteria laid down in Article 102 TFEU and/or in national 
competition law, even where the rail transport undertakings have the 
possibility to request the competent regulatory body to review the fairness of 
the charges paid? Must the national civil courts wait for a decision in the 
matter by the regulatory body and, where applicable, if it is contested before 
the courts, for that decision to become enforceable? 
Provisions of EU law cited 
Article 102 TFEU 
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). 
Provisions of national law cited 
Allgemeines Eisenbahngesetz (General Law on Railways, ‘the AEG’) in the 
version in force from 30 April 2005 to 1 September 2016 of the Drittes Gesetz zur 
Änderung eisenbahnrechtlicher Vorschriften (Third Law amending provisions of 
the law on railways) of 27 April 2005 (Federal Law Gazette I 2005, p. 11389), 
especially Paragraphs 14b, 14d, 14e and 14f 
Brief summary of the facts and procedure 
1 The defendant, DB Station & Service AG, a subsidiary of Deutsche Bahn AG, is a 
railway infrastructure undertaking within the meaning of Paragraph 2(1) of the 
AEG. It maintains approximately 5 400 stations (traffic hubs) in Germany. The 
applicant is a rail transport undertaking which uses the defendant’s traffic hubs for 
passenger railway services. The parties are in dispute as to the charge that should 
be levied for that purpose. 
2 The defendant enters into framework contracts governing the use of stations with 
individual rail transport undertakings wishing to use the infrastructure provided by 
it, in which it refers for the purpose of user charges to its station price list in force 
at the time (station price system, ‘the SPS’). The use of individual stations is 
regulated under separate contracts governing the use of stations. The defendant 
applied a new ‘2005 price system’ (‘SPS 05’) as of 1 January 2005, to replace the 
original ‘1999 price system’ (‘SPS 99’), under which prices were determined as a 
DB STATION & SERVICE 
 
3 
flat rate for each individual federal state based on defined price categories. The 
applicant, for which the new system resulted in price increases, paid the increased 
charges as of 1 January 2005, but without prejudice. 
3 By decision of 10 December 2009, the Bundesnetzagentur (Federal Network 
Agency), acting as the competent regulatory body, declared the SPS 05 to be 
invalid with effect from 1 May 2010. The defendant has contested that decision. 
The administrative court has yet to deliver judgment in the main proceedings. 
4 By its actions brought before the Landgericht Berlin (Regional Court, Berlin), the 
applicant sought reimbursement of the station charges which it paid between 
November 2006 and December 2010, inasmuch as they exceed the charges under 
the SPS 99. The Regional Court upheld those actions, with the exception of a part 
of the claim for interest. It gave as its reason, in keeping with the case-law of the 
Bundesgerichtshof (Federal Court of Justice, Germany) at the time, that the 
charges levied by the defendant are subject to review of their equity by virtue of 
Paragraph 315 of the Bürgerliches Gesetzbuch (German Civil Code, ‘the BGB’), 
and that, as the charges based on the SPS 05 do not withstand that review of 
equity, the defendant is obliged to reimburse the amounts concerned in accordance 
with the principles of unfair enrichment. That is contested by the defendant in its 
appeals and by the applicant in its cross-appeals, by which the parties are each 
pursuing their claims at first instance. 
5 In the meantime, the Court has ruled, in the context of a request for a preliminary 
ruling in a similar dispute, that a review of the equity of train path charges by the 
ordinary courts may not be conducted independently of the monitoring carried out 
by the competent regulatory body (judgment of 9 November 2017, CTL Logistics, 
C-489/15). 
6 By order of 11 October 2019, the Federal Network Agency has since dismissed as 
inadmissible the applications by a number of rail transport undertakings for ex-
post review of the charges levied on the basis of SPS 05. However, that order has 
been contested. The action is currently pending before the Verwaltungsgericht 
Köln (Administrative Court, Cologne). 
Brief summary of the basis for the request 
7 Before judgment can be given on the parties’ appeals, it would appear to be 
appropriate to stay the proceedings and seek a preliminary ruling by the Court of 
Justice of the European Union on the questions set out in the operative part of the 
order, as judgment on the merits depends on the answer to the questions referred 
for a preliminary ruling. 
8 Although an enforceable decision has not yet been adopted in the proceedings 
pending before the Federal Network Agency on the ex-post review of the station 
charges levied by the defendant based on the SPS 05, it would no longer appear 
reasonable, in light of the duration of the proceedings to date, to wait for 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-721/20 
 
4  
administrative court proceedings that will probably take several more years to be 
completed, in order to request a preliminary ruling by the Court on the questions 
referred if and when the decision of the Federal Network Agency is upheld. 
9 Directive 2001/14/EC was repealed under Article 65 of Directive 2012/34/EU of 
21 November 2012 establishing a single European railway area (OJ 2012 L 343, 
p. 32 et seq.) and replaced by that directive, the rules of which are essentially 
identical in content. However, it still applies in this case, as the applicant is 
seeking reimbursement of charges paid to the defendant in the period up to 
December 2010, during which Directive 2001/14/EC was still in force. However, 
it has to be assumed that the Court’s answers to the questions referred for a 
preliminary ruling can automatically be applied to Directive 2012/34/EU. 
10 The charges levied in this case for the use of stations also fall within the 
substantive scope of Directive 2001/14/EC. Although, unlike the later Directive 
2012/34/EU, that Directive does not comprehensively regulate non-discriminatory 
access to service facilities, passenger stations are listed in point 2([c]) of Annex II 
to Directive 2001/14/EC, to which the principle of non-discrimination laid down 
in Article 5(1) of Directive 2001/14/EC explicitly refers. Furthermore, the spirit 
and purpose of the Directive suggest that its scope should extend to the use of 
passenger stations. Non-discriminatory allocation of train paths does not suffice 
for a rail transport undertaking unless it is supplemented by adequate access to the 
facilities, such as passenger stations, which are indispensable for effective use of 
the railways. 
11 Judgment on the merits depends on the answers to the questions referred for a 
preliminary ruling. Were Question 1 to be answered in the negative, the actions 
could not succeed simply because the fairness of the user charges levied by the 
defendant is not open to review by the civil courts. The answer to Question 2 will 
determine whether it is necessary to wait for the order of the Federal Network 
Agency of 11 October 2019 to become enforceable before ruling on the 
defendant’s appeal (see paragraph 6 above). 
12 The questions referred for a preliminary ruling have not yet been answered by the 
Court. By its judgment of 9 November 2017, CTL Logistics, C-489/15, the Court 
simply found that a review of equity by virtue of Paragraph 315 of the BGB, as 
practised up to that point by the German civil courts, is incompatible with the 
provisions of the Directive. However, that judgment of the Court did not address 
whether national civil courts are entitled and obliged to review the charges levied 
based on the criteria laid down in Article 102 TFEU and/or in national 
competition law on a case-by-case basis independently of the monitoring carried 
out by the regulatory body. 
13 Nor can a request for a preliminary ruling be precluded because, although the 
questions referred have not yet been answered by the Court, the correct 
application of EU law within the meaning of an acte clair is so obvious as to leave 
no scope for any reasonable doubt as to the manner in which the questions raised 
DB STATION & SERVICE 
 
5 
are to be resolved. According to the case-law of the Court, affirmation of an acte 
clair depends upon the national court itself being convinced not only of the 
correct interpretation of EU law, but also that it is equally obvious to the courts of 
the other Member States and to the Court of Justice (judgment of 6 October 1982, 
CILFIT, 283/81). 
14 Different views as to the scope of the consequences of the judgment of 
9 November 2017, CTL Logistics, C-489/15, have been argued both in the case-
law of the German civil courts and in German commentaries following its 
delivery. 
15 The referring court is of the opinion that the better grounds suggest that the 
principles established by the Court in its judgment in CTL Logistics should also be 
applied to an assessment of abusive practices under competition law, which would 
preclude any review of user charges by the national civil courts independently of 
the monitoring carried out by the competent regulatory body. 
16 By its judgment of 9 November 2017, CTL Logistics, C-489/15, the Court gave 
the following reasons for the incompatibility of a review of equity by a civil court 
by virtue of Paragraph 315 of the BGB with the material and formal requirements 
of Directive 2001/14/EC: 
17 First, a review of the equity of user charges based on the specific circumstances of 
each individual contractual relationship, as provided for in Paragraph 315 of the 
BGB, is contrary to the principle of non-discrimination anchored in Directive 
2001/14/EC and the principle of equal treatment (paragraphs 69 to 76). 
18 Second, a review of equity deprives the infrastructure manager of the latitude to 
set user charges deliberately allowed under Article 4(1) of Directive 2001/14/EC 
in order to encourage optimal use of the infrastructure. At the same time, it 
interferes in the management independence of the infrastructure manager 
safeguarded by the Directive (paragraphs 77 to 83). 
19 Third, a review of equity by a civil court is incompatible with the assessment 
criteria of regulatory law. If, per contra, the civil courts were to take account of 
those criteria and apply the provisions of railway legislation directly, that would 
encroach on the exclusive competence of the regulatory body established under 
Article 30 of Directive 2001/14/EC (paragraphs 84 to 87). 
20 Fourth, the Court raises the ‘practically insurmountable difficulty’ faced by the 
regulatory body in integrating as rapidly as possible, in a non-discriminatory 
system, the various individual judicial decisions given by different civil courts. 
Until such time as a supreme court gives judgment, this would necessarily result 
in unequal treatment between the undertakings which seised a court and those 
which did not. The regulatory body would then have to react to final judgments by 
the civil courts by adjusting the charges, which would again interfere inadmissibly 
in the latitude of the infrastructure manager and would equally inadmissibly 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-721/20 
 
6  
encroach on the exclusive competence of the regulatory body (paragraphs 88 to 
93). 
21 Fifth, a review of equity by a civil court would undermine the erga omnes effect 
of decisions by the regulatory body, which are binding on all parties concerned in 
the railway sector. The effect of a civil court judgment ordering excessive charges 
to be reimbursed is necessarily restricted to the parties to the dispute. Thus the 
prevailing party would, at the same time, gain an advantage over other 
undertakings and the objective of the Directive of ensuring fair competition would 
be undermined (paragraphs 94 to 97). 
22 Sixth, an amicable settlement is possible in the context of civil proceedings 
without the participation of the regulatory body. That is incompatible with the 
second and third sentences of Article 30(3) of Directive 2001/14/EC, which state 
that negotiation between the parties must be carried out under the supervision of 
the regulatory body and that it must intervene if negotiations are likely to 
contravene the Directive (paragraphs 98 to 99). 
23 Seventh, a review of equity by a civil court is incompatible with the objective of 
Directive 2001/14/EC of encouraging infrastructure managers to make optimal 
use of the infrastructure (paragraphs 100 to 102). 
24 The arguments of the Court militating against any review of equity by the civil 
courts can be applied to the review of user charges under competition law without 
any substantial restrictions. That is true in particular of the decisive viewpoint 
argued, namely the risk that judgments given by various civil courts on a case-by-
case basis and independently of the monitoring carried out by the regulatory body 
may ultimately result in various railway undertakings having to pay different 
charges for identical services. At the same time, it would reverse the key concern 
of Directive 2001/14/EC of ensuring non-discriminatory access to rail 
infrastructure and thus fair competition in the provision of railway services (see, 
in that regard, recitals 5, 11 and 16). Also, the encroachment on the exclusive 
competence of the regulatory body and the practically insurmountable difficulties 
evoked would be identical. All this suggests that an assessment of abusive 
practices carried out by a national civil court in a particular case under 
competition law likewise runs counter to the provisions of Directive 2001/14/EC. 
25 The Chamber is also loath to concur with the finding of the Bundesgerichtshof 
that a different assessment is absolutely necessary because, unlike Paragraph 315 
of the BGB, Article 102 TFEU is a provision of EU primary law, not national law, 
and thus takes precedence over the provisions of Directive 2001/14/EC. Although 
it is true that, as a rule of EU primary law, Article 102 TFEU applies directly in all 
EU Member States, it is likewise true that the national courts are required to apply 
Article 102 TFEU directly (see judgment of 30 January 1974, BRT v SABAM, 
127/73, ECR 1974 p. 51, paragraphs 15-17). 
DB STATION & SERVICE 
 
7 
26 However, the Court has yet to decide whether that also applies where the charges 
set are monitored by a regulatory body whose decisions are likewise subject to 
judicial review. The judgment of the Court in Telefónica in particular suggests 
that it does. Although the Court noted that action by the Commission on the basis 
of Article 102 TFEU is not subject to prior consideration of any intervention on 
the part of the national regulatory authorities (judgment of 10 July 2014, 
C-295/12), that finding cannot be applied to the facts at issue in this case. That is 
because, unlike a review of charges by the civil courts on a case-by-case basis, the 
application of Article 102 TFEU by the Commission neither harbours the risk of a 
plethora of possibly different court judgments nor paves the way for numerous 
uncoordinated legal processes. On the contrary, decisions adopted by the 
Commission are subject to review by the Court, thereby ensuring their uniform 
application case by case. 
27 The other legal viewpoint raised by the Bundesgerichtshof, that differing legal 
assessments of a review of equity by virtue of Paragraph 315 of the BGB, on the 
one hand, and of an assessment of abusive practices under competition law, on the 
other, are justified because the latter relates solely to the past and, for that reason 
alone, cannot conflict with regulatory law, would also appear to be unfounded. 
Although it is true that, in the event of culpable violation of Article 102 TFEU, 
damages can be claimed for past periods under Paragraphs 33(1) and 33a(1) of the 
Gesetz gegen Wettbewerbsbeschränkungen (Law against Restraint of 
Competition, ‘the GWB’), any transaction in breach of Article 102 TFEU is void 
(albeit possibly in part only) by virtue of Paragraph 134 of the BGB; this can also 
be established with future effect by an action for declaratory judgment under 
Paragraph 256 of the Zivilprozessordnung (German Code of Civil Procedure, ‘the 
ZPO’). Lastly, in the event of violation of Article 102 TFEU, the injured party has 
a rectification and injunction claim under Paragraph 33(1) of the GWB, which 
likewise seeks future effect. Furthermore and that notwithstanding, there is 
nothing to suggest, in fact quite the contrary, that fair competition in the provision 
of railway services would also be undermined were charges already paid to be 
subsequently reimbursed to individual undertakings in the form of damages; that 
would again run counter to the objective of Directive 2001/14/EC. 
28 Lastly, the Bundesgerichtshof is of the unconvincing opinion that the regulatory 
body referred to in Article 30(3) of Directive 2001/14/EC has no powers to review 
charges already paid. The Bundesgerichtshof bases that interpretation of the 
Directive solely on the Opinion of Advocate General Mengozzi of 24 November 
2016, CTL Logistics, C-489/15 (see point 58), which the Court failed to espouse 
in its judgment of 9 November 2017. The Commission explicitly took the opposite 
view in its observations of 23 December 2015, with which, per contra, the Court 
ultimately concurred (see observations, paragraphs 19 and 20). Nor is there 
anything in the wording of the provision or the recitals of the Directive that offers 
firm evidence of the interpretation given by the Bundesgerichtshof. Finally, this is 
also a question that must be decided by the Court, which alone has the powers to 
make a binding interpretation of EU law.