Opinion of the Advocate General — ECLI:EU:C:2012:523
Date: 2012-09-06
Language of the case: Hungarian
Subject matter: Transport
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Hungary

Summary — Judgment of the Court (First Chamber), 28 February 2013 1. Transport — Common policy — Development of the Community’s railways — Separation between infrastructure management and transport activities — Essential functions to be entrusted to an independent body — Concept — Railway traffic management — Not included — Adoption of measures to restore normal operating conditions in the event of disruption to traffic or danger — Not included (European Parliament and Council Directive 2001/14, Arts 14(2) and 29; Council Directive 91/440, Art. 6(3) and Annex II) 2. Transport — Common policy — Development of the Community’s railways — Separation between infrastructure management and transport activities — Essential functions to be entrusted to an independent body — Concept — Determination of charges for the use of infrastructure — Included — Collection of charges — Not included (European Parliament and Council Directive 2001/14, Art. 4(2); Council Directive 91/440, Art. 6(3) and Annex II) 3. Actions for failure to fulfil obligations — Examination of the merits by the Court — Situation to be taken into consideration — Situation on expiry of the period laid down in the reasoned opinion (Art. 258 TFEU; European Parliament and Council Directive 2001/14, Arts 6(1) and (2), and 7(3)) 1. Railway traffic management cannot be regarded as an essential function to be entrusted by the Member States to an independent body which is not itself a supplier of railway transport services pursuant to Article 6(3) of Directive 91/440 on the development of the Community’s railways. While Annex II to Directive 91/440 lists as an essential function to be entrusted to an independent decision-making body related to path allocation it does not, however, make any mention of traffic management. In that connection, at first sight, traffic management does not require decision-making concerning the allocation of train paths, but consists of activities which pertain to the infrastructure management and consist in the implementation or carrying out of decisions relating to the allocation of train paths. Traffic management is an activity which aims to ensure the actual safe exercise of rights to use network capacity in the form of train paths. Furthermore, measures adopted under Article 29 of Directive 2001/14 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure, in the event of the disruption of traffic or danger cannot be regarded as directly concerning the essential function of allocating capacity or train paths for the purpose of Article 14(2) of the directive, since that provision deals with specific measures which must be adopted in order to restore, for safety reasons, normal operating conclusions, which is not the case with the other provisions in Chapter III, which relate to the establishment of a working timetable and the ad hoc allocation of individual train paths, in accordance with the working timetable. Therefore, the adoption of such measures forms part of traffic management and is not subject to any independence requirement, with the result that such a function may accordingly be entrusted to an infrastructure manager that is also a railway undertaking. (see paras 45, 46, 51, 54, 55, 59, 60, 63) 2. It is clear from Article 6(3) of Directive 91/440 on the development of the Community’s railways, read together with Annex II thereto and Article 4(2) of Directive 2001/14 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure, that the determination of charges is an essential function for the purpose of ensuring equitable and non-discriminatory access to the infrastructure, which must be reaffirmed by a charging body that is independent of any railway undertaking in its legal form, organisation, and decision-making functions. A railway undertaking acting as infrastructure manager may be authorised, under those provisions, only to collect or recover charges. By the use of the word ‘determination’, Directive 2001/14 provides that the charging scheme must be reserved to an infrastructure manager which is independent of any railway undertaking. The determination of charges necessarily entails a degree of flexibility on the part of the infrastructure manager, enabling it to adopt, at the very least, decisions involving choices and assessments as to the factors or parameters on which calculations are to be based. However, under Article 4(2) of Directive 2001/14, if the infrastructure manager is not independent of any railway undertaking in its legal form, organisation or decision-making functions, it may be entrusted only with the collection of charges. That function is not, therefore, regarded as essential for the purpose of ensuring equitable and non-discriminatory access to infrastructure. As an exception to the general rule that the infrastructure manager must be independent, ‘collection’ in this context must therefore be interpreted strictly. (see paras 76, 79, 82) 3. See the text of the decision. (see paras 96, 97, 105)