Opinion of the Advocate General — ECLI:EU:C:2021:146
Date: 2021-02-25
Language of the case: German
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-12/20 - 1 
Case C-12/20 
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: 
13 January 2020 
Referring court: 
Oberverwaltungsgericht für das Land Nordrhein-Westfalen 
(Germany) 
Date of the decision to refer: 
10 December 2019 
Applicant: 
DB Netz AG 
Defendant: 
Federal Republic of Germany 
      
Subject-matter of the main proceedings 
Regulatory control of network statements regarding the application for 
international train paths in freight corridors under Regulation (EU) No 913/2010, 
specifically: Control of an amendment, intended by the applicant, to point 4.2.5.1 
of its 2016 network statement (deletion of a sentence) 
Subject-matter and legal basis of the reference 
Interpretation of Regulation (EU) No 913/2010 and Directive 2012/34/EU; 
Article 267 TFEU 
Questions referred 
1. Is Regulation (EU) No 913/2010, in particular with regard to the tasks 
assigned to the management board of a freight corridor in Article 13(1), 
Article 14(9) and Article 18(c) of that Regulation, to be interpreted as meaning 
EN 
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that the management board for a freight corridor is authorised to define the 
procedure for submitting applications for allocation of infrastructure capacity to 
the one-stop shop referred to in Article 13(1) of the Regulation itself, for example 
by requiring, as in the present circumstances, the exclusive use of an electronic 
booking tool, or is that procedure subject to the general provisions of Article 27(1) 
and (2) read in conjunction with point 3(a) of Annex IV to Directive 2012/34/EU, 
which means that it may be regulated solely by the infrastructure managers 
involved in a freight corridor in their respective network statements? 
2. If the first question is to be answered to the effect that the procedure referred 
to in point 1 has to be regulated solely in the network statement of the 
infrastructure managers involved in a freight corridor, is the review of the network 
statement by a national regulatory body governed in this respect by Article 20 of 
Regulation (EU) No 913/2010 or likewise exclusively by the provisions of 
Directive 2012/34/EU and the national legislation adopted for its transposition? 
(a) If the review is governed by Article 20 of Regulation (EU) No 913/2010, is 
it compatible with the provisions of that article for a national regulatory body to 
object to a regulation in the network statement such as that referred to in point 1, 
without acting jointly and in a substantively uniform manner with the regulatory 
bodies of the other States involved in the freight corridor or at least consulting 
them beforehand in order to ensure a uniform approach? 
(b) Insofar as the review is governed by the provisions of Directive 2012/34/EU 
and the national legislation adopted for its transposition, is it compatible with 
those provisions, in particular with the general duty of coordination laid down in 
the second sentence of Article 57(1) of that directive, for a national regulatory 
body to object to such a regulation, without acting jointly and in a substantively 
uniform manner with the regulatory bodies of the other States involved in the 
freight corridor or at least having consulted them beforehand in order to ensure a 
uniform approach? 
3. If the first question is to be answered to the effect that the management 
board for a freight corridor is authorised to define the procedure mentioned in 
point 1 itself, does a national regulatory body have the authority, under Article 20 
of Regulation (EU) No 913/2010 or the provisions of Directive 2012/34/EU and 
the legislation created for its transposition, to review the network statement of an 
infrastructure manager for more than its substantive compliance with the 
procedure defined by the management board and, where appropriate, to object 
thereto, if the network statement of an infrastructure manager contains regulations 
on that procedure? If this were to be answered in the affirmative, how are the 
questions set out in point 2(a) and (b) to be answered with regard to this authority 
of the regulatory body? 
4. Insofar as the national regulatory bodies, on the basis of the questions above, 
are authorised to review the procedure referred to in point 1, is Article 14(1) of 
Regulation (EU) No 913/2010 to be interpreted as meaning that the framework 
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defined by the executive board under that provision is EU law which binds the 
national regulatory bodies and the national courts, has priority of application over 
national law and is subject to the ultimately binding interpretation of the Court of 
Justice? 
5. If the fourth question is to be answered in the affirmative, does the 
designation made under Article 14(1) of Regulation (EU) No 913/2010 by the 
executive boards of all the freight corridors under Article 8(2) of the respective 
framework, according to which the corridor capacity is to be published and 
allocated via an international application system, which shall as far as possible be 
harmonised with the other freight corridors, preclude a decision of a national 
regulatory body by which an infrastructure manager involved in a freight corridor 
is provided, for its network statement, with stipulations for structuring that 
application system which are not agreed with the national regulatory bodies of the 
other States involved in the freight corridors? 
Provisions of EU law cited 
Regulation (EU) No 913/2010 of the European Parliament and of the Council of 
22 September 2010 concerning a European rail network for competitive freight, 
Article 13(1) (‘One-stop shop for application for infrastructure capacity’), 
Article 14 (‘Capacity allocated to freight trains’), paragraphs 1 and 9, Article 20 
(‘Regulatory bodies’), paragraphs 1 and 3, and Recitals 7, 25 and 26 
Directive 2012/34/EU of the European Parliament and of the Council of 
21 November 2012 establishing a single European railway area, Article 27 
(‘Network statement’), paragraphs 1 and 2, Article 57 (‘Cooperation between 
regulatory bodies’), paragraph 1, and Annex IV (‘Contents of the network 
statement’), point 3(a) 
Provisions of national law cited 
Allgemeines Eisenbahngesetz (General Railway Law), Paragraph 14 (‘Access to 
railway infrastructure’), subparagraph 1, Paragraph 14d (‘Particular notification 
duties of public railway infrastructure companies’), point 6, and Paragraph 14e 
(‘Preliminary examination by the regulatory body’), subparagraphs 1 and 3 
Eisenbahninfrastruktur-Benutzungsverordnung (Railway Infrastructure Use 
Regulation), Paragraphs 3, 4 and 6, Annex 1 point 1(a), and Annex 2 point 3(a) 
Brief summary of the facts and procedure 
1 As a railway track operator, the applicant is obliged, in implementation of 
Article 27 of Directive 2012/34 pursuant to Paragraph 4 of the 
Eisenbahninfrastruktur-Benutzungsverordnung (Railway Infrastructure Use 
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Regulation; EIBV), to draw up and publish a network statement. Information on 
the principles and criteria for the allocation of railway track capacity must also be 
included in this network statement. This also includes information on the 
performance and time limits of the procedure for allocating railway track capacity, 
in particular on the procedure by which parties with access entitlement make 
applications to the railway track operator for allocation of train paths. 
2 In 2015, the executive boards responsible for the freight corridors (see Article 8(1) 
of Regulation No 913/2010) agreed on common framework regulations within the 
meaning of Article 14(1) of Regulation No 913/2010 and defined these for each of 
the corridors under their responsibility. Article 8 of those identical framework 
regulations determined the principles for the functioning of what is known as the 
corridor one-stop shop (see Article 13(1) of the Regulation) and in particular 
provided in its second paragraph that the corridor capacity is to be published and 
allocated via an international application system, which shall as far as possible be 
harmonised with the other freight corridors. The original English-language version 
of the provision of Article 8(2) of the framework regulations (of the freight 
corridors) read verbatim: ‘The corridor capacity shall be published and allocated 
via an international path request coordination system, which is as far as possible 
harmonised with the other rail freight corridors.’ 
3 At the same time, the management boards (see Article 8(2) of Regulation 
No 913/2010) of the freight corridors resolved, with the involvement of the 
applicant, that applications for allocation of railway track capacity on pre-agreed 
international train paths can be made to the respective one-stop shop exclusively 
via the electronic booking tool known as the Path Coordination System (PCS), 
and published these regulations in each case in Book 4 of the Corridor 
Information Document (CID) concerning the freight corridor. 
4 On 31 August 2015, the applicant informed the Bundesnetzagentur (Federal 
Network Agency), as the national regulatory body, of an intended amendment of 
its 2016 network statement. The subject of the applicant’s intended amendment 
was, amongst other things, a regulation, included under point 4.2.5.1 of the 
2016 network statement, on the procedure for applying for railway track capacity 
on pre-agreed train paths in freight corridors under Regulation No 913/2010 at the 
respectively responsible one-stop shop. Specifically, point 4.2.5.1 of the 2016 
network statement provided that path applications can in principle only be made 
via the PCS (first sentence). Point 4.2.5.1 of the 2016 network statement also 
provided that, in the event of a technical failure of the PCS, it should be possible 
to apply for paths at the one-stop shop using an application form provided by the 
RailNetEurope association (third sentence, hereinafter: ‘third sentence or passage 
of text at issue’). 
5 With the amendment, the applicant intended to delete without replacement the use 
of the application form provided for as backup in the event of a technical failure 
of the PCS, that is to say the third sentence concerning this case in point 4.2.5.1 of 
the 2016 network statement. It based this on the ground that the use of the 
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application form was not provided for in the provisions on making an application 
that were agreed and published by the management boards of the freight corridors. 
The application form was also only designed for applying for other international 
train paths. It was unsuitable for applying for railway track capacity on pre-agreed 
international train paths, because it did not ask for all the information required for 
that purpose. 
6 By decision of 22 September 2015, the Federal Network Agency opposed the 
intended amendment with the result that this amendment – also affecting the 
contractual relations concluded by the applicant on the basis of its 2016 network 
statement and existing to this day – cannot enter into force. The Federal Network 
Agency rejected the applicant’s opposition. As reasoning for its decision, the 
Federal Network Agency stated that, if the passage of text at issue were to be 
deleted without replacement, the regulation in point 4.2.5.1 of the 2016 network 
statement would violate the applicant’s duty to guarantee non-discriminatory use 
of the railway infrastructure managed thereby and non-discriminatory provision of 
the obligatory services offered thereby, including the processing of applications 
for allocation of train paths. According to the regulations for the allocation of train 
paths, the time at which the application is received could be of decisive 
importance. An alternative form of application had to remain assured as backup 
for the parties with access entitlement in the event of a technical failure of the 
PCS. In this case, it was left to the applicant to propose a regulation taking 
account of the statutory requirements instead of the intended deletion without 
replacement of the passage of text at issue in point 4.2.5.1 of the 2016 network 
statement. 
7 The applicant brought an action before Verwaltungsgericht Köln (Administrative 
Court of Cologne) on 15 March 2016. The Administrative Court dismissed the 
action by judgment of 20 April 2018. The applicant’s appeal is directed against 
that judgment. 
Principal arguments of the parties in the main proceedings 
8 The applicant has already contested before the Administrative Court the Federal 
Network Agency’s authority to review the provisions contained in point 4.2.5.1 of 
the 2016 network statement and to oppose intended amendments. It stated that, 
under Regulation No 913/2010, the configuration of the application procedure at 
the one-stop shop was solely a matter for the respectively responsible executive 
and management boards. The resolutions thereof, like the Regulation itself, had 
priority over national law and were not subject to control by the national 
regulatory bodies. The Federal Network Agency was only allowed to review 
indications such as those in point 4.2.5.1 of the 2016 network statement for their 
compliance with the provisions issued by the management board. Even if the 
configuration of the application procedure at the one-stop shop were subject to 
control by the national regulatory bodies, the Federal Network Agency would only 
have been allowed, pursuant to the first sentence of Article 20(1) of Regulation 
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No 913/2010, to act together with the other national regulatory bodies concerned. 
Moreover, the decision of the Federal Network Agency was also substantively 
incorrect. There was no need for a backup, because making an application by 
means of the PCS was sufficiently reliable. The parties with access entitlement 
could be guaranteed that the system is at least 98.5% technically reliable. 
9 The defendant asserted inter alia that the allocation of railway track capacity was 
also still subject to the general national provisions on granting access that were 
based on Directive 2012/34. The provisions regarding the application procedure at 
the one-stop shop were therefore a necessary part of the network statement to be 
drawn up by the applicant and in this respect were also subject to the full control 
of the Federal Network Agency as the national regulatory body. Regulation 
No 913/2010 did not give the management board of a freight corridor the 
competence to issue binding provisions for the structuring of the application 
procedure with priority of application over national law. The application 
procedure was instead to be structured as allowed and stipulated by the network 
statements drawn up by the relevant infrastructure managers and checked and 
approved by the national regulatory bodies. It would otherwise be in the power of 
the infrastructure managers in the area of the freight corridors to autonomously 
create special regulations for applying for railway track capacity that would not be 
subject to any regulatory authority control for ensuring non-discriminatory access 
for the railway undertakings. 
Brief summary of the basis for the reference 
10 The referring Oberverwaltungsgericht (Higher Administrative Court) points out 
that the decision in the main proceedings hinges on whether the Federal Network 
Agency was right to oppose the applicant’s intended amendment of point 4.2.5.1 
of the 2016 network statement. The provisions to be observed in this regard 
include in particular the prohibition of discrimination under Paragraph 14(1) of 
the Allgemeines Eisenbahngesetz (General Railway Law; AEG). Under point 4 of 
Paragraph 14e(1) AEG, the Federal Network Agency, as the responsible 
regulatory body, can, after receiving a corresponding notification from a public 
railway infrastructure company, oppose the intended revision or amendment of the 
network statement, insofar as this does not comply with the provisions of the 
railway law regarding access to the railway infrastructure. 
11 However, the referring court has doubts as to whether the procedure for making 
applications for allocation of infrastructure capacity of a freight corridor to the 
one-stop shop referred to in Article 13(1) of Regulation No 913/2010 is even to be 
regulated by the applicant in its network statement and in this respect is subject to 
control by the Federal Network Agency under point 4 of Paragraph 14e(1) AEG. 
The first question of the referring court is connected therewith.  
12 With that first question, the referring court seeks clarification as to whether or not 
the procedure for applying for railway track capacity falls under Article 27(1) and 
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(2) in conjunction with point 3(a) of Annex IV to Directive 2012/34. This is 
contradicted (and therefore the applicant’s opinion is supported) by the fact that 
the provisions of Regulation No 913/2010 could possibly be understood in their 
entirety as meaning that access to and use of infrastructure capacity of a freight 
corridor are subject to an independent regulatory system. Within that regulatory 
system, it would be incumbent upon the management board to be established for a 
freight corridor under Article 8(2) of the Regulation to define the procedure for 
making an application for allocation of infrastructure capacity to the one-stop 
shop referred to in Article 13(1) of the Regulation and to inform the parties with 
access entitlement thereof in the Corridor Information Document (CID). The 
management board at the level of a freight corridor would thereby exclusively 
take on those tasks otherwise assigned to the infrastructure managers under 
Article 27(1) and (2) in conjunction with point 3(a) of Annex IV to 
Directive 2012/34. 
13 However, it cannot be expressly gathered from the provisions of Article 13(1), 
Article 14(1) and (9) and Article 18(c) in conjunction with Recital 26 of 
Regulation No 913/2010 that the management board has the authority to define 
the procedure for making an application to the one-stop shop referred to in 
Article 13(1) of that Regulation. This is also not immediately evident from any 
other provision of the Regulation. In contrast, the EU legislature expressly 
provided for the executive board to have the authority to define a framework in 
Article 14(1) of the Regulation. If the EU legislature had also wanted to regulate 
exclusive authority of the management board to define the application procedure 
under Article 13(1) of the Regulation, an equally explicit regulation would 
therefore presumably have to be expected. 
14 It can also at no point be expressly gathered from the provisions of Regulation 
No 913/2010 that access to and use of a freight corridor of assigned infrastructure 
capacity no longer falls under the general regulatory system of Directive 2012/34. 
Recital 7 of the Regulation points in this direction. This seems (within the 
meaning of the defendant’s legal opinion) to be an important indication that the 
procedure for making applications for allocation of rail infrastructure capacity 
falls under the general provisions of railway law under Article 27(1) and (2) in 
conjunction with point 3(a) of Annex IV to Directive 2012/34 even if that rail 
infrastructure capacity is part of the infrastructure capacity of a freight corridor 
and the application is made to the one-stop shop referred to in Article 13(1) of 
Regulation No 913/2010. In this case, the activity of the one-stop shop would 
have to be oriented towards the network statements of the infrastructure managers 
involved, which are fundamentally subject to the regulatory control of the national 
regulatory bodies. 
15 The second question is to be answered if the procedure for making applications 
for allocation of rail infrastructure capacity pursuant to Article 27(1) and (2) in 
conjunction with point 3(a) of Annex IV to Directive 2012/34 and the national 
legislation adopted for its transposition is also to be regulated by the applicant in 
its network statement insofar as that rail infrastructure capacity is part of the 
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infrastructure capacity of a freight corridor within the meaning of Regulation 
No 913/2010 and the application is made to the one-stop shop referred to in 
Article 13(1) of that Regulation. 
16 The referring court has doubts as to whether a national regulatory body can act 
without cooperation with the national regulatory bodies of the other Member 
States involved in a freight corridor and provide the infrastructure manager with 
stipulations for structuring the application procedure at the one-stop shop, as in 
this case for providing a backup in the event of a technical failure of the PCS. 
17 In this context, the referring court, with the second question under letter (a), would 
like to know whether a national regulatory body has to observe the provisions of 
Article 20 of Regulation No 913/2010 when reviewing a network statement within 
the meaning of Article 27 of Directive 2012/34, if the network statement regulates 
the procedure for making applications for allocation of infrastructure capacity to 
the one-stop shop referred to in Article 13(1) of Regulation No 913/2010. If the 
provisions of Article 20 of Regulation No 913/2010 are to be observed in whole or 
in part, it also needs to be clarified which stipulations emerge therefrom in 
circumstances such as those in the present case in respect of the activity of a 
national regulatory body. The national regulatory bodies’ duty of cooperation 
referred to in the first sentence of Article 20(1) of the Regulation could in 
particular have to be interpreted as meaning that a national regulatory body may 
either only act jointly and in a substantively uniform manner with the national 
regulatory bodies of the other States involved in a freight corridor, if it objects to a 
regulation on the application procedure at the one-stop shop referred to in 
Article 13(1) of the Regulation, or must in any case agree its approach with the 
other national regulatory bodies. 
18 If Article 20 of Regulation No 913/2010 were not to be applicable, the referring 
court, with its second question under letter (b), would like to know whether, in 
circumstances such as those in the present case, corresponding duties such as 
those set out above emerge from Directive 2012/34, and in this respect refers in 
particular to Article 57 of that Directive. 
19 The third question is only to be answered if Regulation No 913/2010 were to be 
interpreted as meaning that the management board for a freight corridor would be 
authorised to define the procedure for making applications for allocation of 
infrastructure capacity to the one-stop shop referred to in Article 13(1) of the 
Regulation itself, for example by requiring, as in the present circumstances, the 
exclusive use of an electronic booking tool. Although the national provisions of 
the EIBV in implementation of Directive 2012/34 only determine the minimum 
content of the network statement, which means that the applicant would not be 
prevented under national law from also reproducing the regulations drawn up by 
the management board of a freight corridor in its network statement, the referring 
court has doubts as to whether the Federal Network Agency is allowed to review 
the applicant’s network statement in this respect for more than its substantive 
compliance with the regulations drawn up by the management board. 
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20 If the national regulatory bodies – on the basis of the previous questions – are 
authorised to review the procedure for making applications for allocation of 
infrastructure capacity to the one-stop shop referred to in Article 13(1) of 
Regulation No 913/2010, clarification is finally sought in the scope of the fourth 
question as to the importance, in the exercise of that authority, of the framework 
defined by the executive board for a freight corridor under Article 14(1) of 
Regulation No 913/2010. The executive boards of the freight corridors involved 
here established in Article 8(2) of the respective framework that the corridor 
capacity is to be published and allocated via an international application system, 
which shall as far as possible be harmonised with the other freight corridors. The 
referring court is uncertain as to the legal nature and binding effect of a 
framework within the meaning of Article 14(1) of the Regulation, and whether it 
is subject to the ultimately binding interpretation of the national courts or the 
Court of Justice. 
21 The fifth question is linked thereto and is only to be answered if the ultimately 
binding interpretation of the framework falls within the competence of the Court 
of Justice.