Judgment;Summary — ECLI:EU:C:2021:553
Date: 2021-07-08
Language of the case: Polish
Court formation: Fifth Chamber
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-120/20 — 1 
Case C-120/20 
Summary of a request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
3 March 2020 
Referring court: 
Sąd Najwyższy (Poland) 
Date of the decision to refer: 
28 November 2019 
Appellant: 
Koleje Mazowieckie — KM sp. z o.o. 
Respondents: 
Skarb Państwa — Minister Infrastruktury i Budownictwa, now 
Minister Infrastruktury, and Prezes Urzędu Transportu Kolejowego 
PKP Polskie Linie Kolejowe S.A. 
  
Subject matter of the main proceedings 
Proceedings concerning the payment of an amount of PLN 220 204 408.72, plus 
interest, by way of basic charges for minimum access to railway infrastructure 
during railway timetable periods between 2009 and 2013 levied on the appellant, 
in its view unduly, on account of the incorrect transposition of Directive 2001/14 
Subject matter and legal basis of the questions referred 
Interpretation of Article 4(5), Article 7(3), Article 8(1) and Article 30(1), (3), (5) 
and (6) of Directive 2001/14. 
Article 267 of the Treaty on the Functioning of the European Union (‘TFEU’). 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-120/20 
 
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Questions referred 
(1) Are the provisions of Directive 2001/14/EC of the European Parliament and 
of the Council of 26 February 2001, and in particular Article 4(5) and 
Article 30(1), (3), (5) and (6) thereof, to be interpreted as precluding a railway 
undertaking from claiming, with no judicial review of the decision of a 
supervisory body, damages against a Member State on grounds of incorrect 
implementation of a directive in a situation where an element of the damages is an 
overpaid charge for the use of railway infrastructure? 
(2) Does the assumption that a right to damages under Community law for 
misapplication of EU law, and in particular the incorrect implementation or non-
implementation of a directive, exists only where the rule of law infringed is 
intended to confer rights on individuals, the infringement of the law is qualified in 
nature (in particular in the form of manifest and grave disregard of a Member 
State’s discretion in implementing a directive), and the causal link between the 
infringement and the damage is direct in nature, preclude rules of law of a 
Member State which, in such cases, confer a right to damages where less stringent 
conditions are satisfied? 
Provisions of EU law relied on 
Article 4(5), Article 7(3), Article 8(1) and Article 30(1), (3), (5) and (6) 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 (OJ 
2001 L 75, p. 29; ‘Directive 2001/14’) 
Directive 2012/34/EU of the European Parliament and of the Council of 
21 November 2012 establishing a single European railway area (OJ 2012 L 343, 
p. 32) 
Commission Implementing Regulation (EU) 2015/909 of 12 June 2015 on the 
modalities for the calculation of the cost that is directly incurred as a result of 
operating the train service (OJ 2015 L 148, p. 17) 
Second paragraph of Article 340 TFEU 
Provisions of national law relied on 
Articles 361, 417 and 4171 of the Civil Code 
Articles 33 and 35 of the Ustawa o transporcie kolejowym (Law on rail transport) 
of 28 March 2003 in the version in force in the period concerned by the dispute 
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(consolidated version, Dziennik Ustaw of 2016, item 1727, as amended; now: 
consolidated version, Dziennik Ustaw of 2019, item 710, as amended; ‘the Law on 
rail transport’) 
Paragraph 8 of the Regulation of the Minister Infrastruktury (Minister for 
Infrastructure) of 27 February 2009 concerning conditions for access to and the 
use of railway infrastructure (Dziennik Ustaw No 35, item 274; ‘the 2009 
Ministerial Regulation’) 
Cited case-law of the Court of Justice 
Judgment of the Court of Justice of the European Union (‘the Court of Justice’) of 
30 May 2013, C-512/10, Commission v Poland, EU:C:2013:338 (‘the judgment in 
Commission v Poland’); and also judgments of 9 November 2017, C-489/15 CTL 
Logistics GmbH v DB Netz AG, EU:C:2017:834, paragraphs 77, 78, 87 to 92, and 
97 to 99; of 5 March 1996, C-46/93 and C-48/93, Brasserie du pecheur S.A., 
EU:C:1996:79, paragraphs 42, 51, and 66; and of 19 November 1991, C-6/90 and 
C-9/90, Francovich and Others, EU:C:1991:428 
Summary of the facts and the procedure 
1 By judgment of 24 March 2016, the Sąd Okręgowy w Warszawie (Regional 
Court, Warsaw) dismissed the action brought by Koleje Mazowieckie — KM sp. z 
o.o., in Warsaw, (‘KM’ or ‘the appellant’) against the Skarb Państwa — Minister 
Rozwoju i Prezes Urzędu Transportu Kolejowego (Public Treasury — Minister 
for Development and President of the Rail Transport Office) and PKP Polskie 
Linie Kolejowe S.A., in Warsaw (‘PKP PLK’ [or ‘the respondent company’]), for 
payment, jointly and severally, of an amount of PLN 220 204 408.72, plus interest 
from 6 December 2014 to the date of payment. 
2 The appellant derived its claim from the fact that the respondent company had 
levied on it inflated amounts by way of basic charges for minimum access to 
railway infrastructure during railway timetable periods between 2009 and 2013. It 
argued that the charges had been set and levied as a result of the issue, effect and 
application of the 2009 Ministerial Regulation, issued pursuant to Article 35 of the 
Law on rail transport, which was contrary to Directive 2001/14, as confirmed by 
the judgment in Commission v Poland. As a basis for its claim, the appellant also 
relied on provisions relating to undue consideration. The respondents contended 
that the action should be dismissed. 
3 The above judgment was given on the basis of the following findings: the 
appellant is a rail carrier, and at the same time a municipal company, whose 
activities are not aimed at maximising profit, but meeting the needs of the public 
in terms of public transport. The shares in that company are owned by the 
Województwo Mazowieckie (Regional Authority of Mazovia). The respondent 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-120/20 
 
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company is a railway infrastructure manager, and its founder and shareholder is 
Polskie Koleje Państwowe S.A. (Polish State Railways, a public limited 
company), in Warsaw (‘PKP’); in addition, as at 31 December 2013 the Public 
Treasury, which at the same time is a shareholder of PKP, was also a shareholder 
of the respondent company. That company’s activities include service activities 
incidental to land transportation, in particular the operation of rail traffic and the 
administration of railway lines, and also maintenance of railway lines in a state 
which ensures the efficient and safe transportation of people and goods, the 
regularity and safety of rail traffic, fire protection, and protection of the 
environment and railway property. PKP PLK manages 98% of the rail network in 
Poland. 
4 KM and PKP PLK concluded contracts on the use of allocated train paths for the 
years 2009 to 2011, pursuant to which the respondent company provided rail 
infrastructure to the appellant, allocating it train paths on railway lines and 
facilitating use of the necessary railway infrastructure. Those contracts were 
concluded for consecutive timetable periods. The appellant used the infrastructure 
provided for consideration. The basic charge for minimum access to railway 
infrastructure constitutes the sum of the products of the kilometres covered by the 
carrier’s trains and the unit rates of the basic charge for minimum access to 
railway infrastructure assigned to the individual sections of railway line by the 
infrastructure manager. The amount of the charge is the product of the number of 
services and the unit rates of the charges for individual services. The unit rates, 
calculated beforehand by the infrastructure manager, were approved by decisions 
of the President of the Rail Transport Office (‘the President of the RTO’). In the 
years 2011 to 2013 the parties did not conclude contracts and the decisions of the 
President of the RTO laying down the conditions for providing railway 
infrastructure, which replaced the contracts, were in force. The respondent 
company issued invoices for the use by the appellant of the railway infrastructure 
managed by the respondent company. The appellant was charged and paid to PKP 
PLK a total of PLN 537 633 779.10 by way of charges for minimum access to 
railway infrastructure in the timetable periods 2009/2010, 2010/2011, 2011/2012 
and 2012/2013. 
5 On 19 May 2009 the appellant (the operator) concluded with the Regional 
Authority of Mazovia (the organiser) a framework agreement for the provision of 
public services concerning the provision of regional rail passenger services in the 
territory of the Regional Authority of Mazovia during 15 consecutive timetable 
periods from 13 December 2009 to 14 December 2024. The entire cost incurred in 
providing the public services not covered by the carrier’s revenue is covered by 
the compensation provided by the organiser. In Paragraph 5(1) of the agreement 
the organiser undertook to cover the operator’s losses arising from operation of 
the services, the compensation being the difference between the documented costs 
and the revenues relating to the transport activities covered by the framework 
agreement and a reasonable profit. 
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6 On 26 October 2010 the European Commission brought an action against the 
Republic of Poland before the Court of Justice seeking a declaration that, by 
failing to transpose correctly the provisions on the levying of charges for the use 
of railway infrastructure contained in Directive 2001/14, as amended by Directive 
2004/49/EC, the Republic of Poland had failed to fulfil its obligations under 
Article 6(3) of, and Annex II to, Directive 91/440, Article 4(2), Article 6(2) and 
(3), Article 7(3), Article 8(1) and Article 14(2) of Directive 2001/14, and also 
Article 6(1) of Directive 2001/14, read in conjunction with Article 7(3) and (4) of 
Directive 91/440. In the judgment in Commission v Poland the Court of Justice 
ruled that by permitting the inclusion, in the calculation of charges levied for the 
minimum access package and track access to service facilities, of costs which 
could not be regarded as costs directly incurred as a result of operating the train 
service, the Republic of Poland had failed to fulfil its obligations under 
Article 7(3) of Directive 2001/14, as amended by Directive 2004/49. 
7 On the basis of the established facts the Sąd Okręgowy found that there are no 
legal bases for granting the application. It pointed out that the case-law of the 
Court of Justice may also constitute a precedent within the meaning of 
Article 4171(1) of the Civil Code (see paragraph 36 below). In proceedings before 
the Court of Justice an act may be declared incompatible with a ratified 
international agreement, which the acquis communautaire must be construed as 
constituting. On the other hand, according to the case-law of the Court of Justice, 
national courts examining claims for compensation are themselves entitled to rule 
on the condition relating to unlawfulness without it being confirmed in 
‘appropriate proceedings’ by the Court of Justice or any other body. If, however, a 
ruling of the Court of Justice finding that EU law has been infringed by a Member 
State has been given, a national court may not rule on whether the condition 
relating to sufficiently serious infringement has been satisfied merely on that 
basis. In an action the Court of Justice merely finds that the law has in fact been 
infringed by the Member State and the condition relating to liability for damages 
is not normal, but qualified, unlawfulness. Therefore, a situation is permissible in 
which an infringement of EU law is found in a ruling of the Court of Justice, but 
the Member State does not bear liability for compensating for the damage caused 
by that infringement. 
8 The Sąd Okręgowy concurred with the argument, put forward by the Public 
Treasury, that its liability may be established in the event of non-implementation 
(incomplete or incorrect implementation) pursuant to Article 417(1) of the Civil 
Code, (under which ‘liability for any damage caused by acts or omissions in the 
exercise of State authority which are incompatible with the law shall be borne by 
the Public Treasury or the relevant regional authority or other legal person 
exercising such authority by virtue of the law’), in conjunction with 
Article 4171(4) thereof (see paragraph 36 below), and not Article 4171(1) thereof. 
The obligation to compensate for damage must arise from particular provisions of 
the law and be specified in terms of time and content so that it is possible to 
establish the time until which the normative act covered thereby should be issued 
and what its content should be. 
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9 The position of the Sąd Okręgowy is that the case-law of the Court of Justice sets 
out the following conditions relating to State liability for infringement of the 
provisions of a directive: the aim of the directive must be to confer rights on 
individuals and the content of those rights must be unconditional, precise and 
quantifiable on the basis of the provisions of the directive; there must be a causal 
link between the State’s infringement of the directive and the damage sustained by 
the individual; and that infringement must be sufficiently serious in nature. 
However, the Sąd Okręgowy considers that Directive 2001/14 does not confer on 
the appellant any subjective rights to pay fees for the use of railway infrastructure 
up to a given maximum amount. The aim thereof was to safeguard equitable and 
non-discriminatory access to railway infrastructure for all undertakings and to 
promote a dynamic, competition-oriented, and transparent railway market in the 
European Union. The legislature’s intentions are set out directly in the provisions 
of that directive. Directive 2012/34, which repealed Directive 2001/14, also stated 
that rail carriers should bear only the cost directly incurred as a result of operating 
the train service, but at the same time required the Commission to issue the 
relevant implementing acts setting out the modalities for the calculation of that 
cost and enabled the infrastructure manager to adapt to the modalities for charging 
during a period of 4 years after the entry into force of those acts (Article 31(3)). 
This contradicts the assumption that the aim of Article 7(3) of Directive 2001/14 
was to confer subjective rights on individuals. In the view of the Sąd Okręgowy, it 
is not possible, on the basis of the content of Directive 2001/14, to define 
precisely the scope of the rights conferred on the individual, which entails the 
non-specific definition ‘the cost that is directly incurred as a result of operating 
the train service’. 
10 Furthermore, the manager may apply additional charging criteria by levying mark-
ups on the basis of efficient, transparent and non-discriminatory principles 
guaranteeing optimal competitiveness, and also discounts in so far as is provided 
for in the directive and within the limits laid down by the individual Member 
States. This means that the directive confers on the manager the right to set rates 
at a level higher than the cost that is directly incurred as a result of operating the 
train service. The provisions of EU law and the case-law of the Court of Justice 
did not, and do not, provide bases for determining the cost which may form the 
basis for calculating the basic charge for minimum access to railway 
infrastructure. The rules governing the calculation and levying of charges for the 
use of infrastructure were laid down in Article 31(3) of Directive 2012/34, which 
states that the charges for the minimum access package and for access to 
infrastructure connecting service facilities are to be set at the cost that is directly 
incurred as a result of operating the train service. The content of that provision is 
identical to that of Article 7(3) of Directive 2001/14, which was the basis for the 
Court of Justice’s assessment of the provisions in force in Poland. The term ‘costs 
directly incurred as a result of operating the train service’ was first clarified in EU 
law in Regulation 2015/909 (in Articles 3 and 4). At the same time, under 
Article 31(3) of Directive 2012/34 and Article 9 of the abovementioned 
regulation, the infrastructure manager was required to submit its method of 
calculating the direct costs and, if applicable, a phasing-in plan to the regulatory 
KOLEJE MAZOWIECKIE 
 
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body no later than 3 July 2017. However, the infrastructure manager was able 
gradually to adapt to the rules laid down in that regulation by 1 August 2019. 
11 Therefore, the Sąd Okręgowy ruled that the content of Article 7(3) of Directive 
2001/14 cannot be regarded as sufficiently precise and thus that its incomplete 
implementation provided grounds for compensation for its infringement by the 
State since application of that provision was de facto made dependent on the 
implementation of further measures adopted by the Member States. 
12 As regards unlawfulness, the Sąd Okręgowy noted that it must be ‘qualified 
unlawfulness’, and therefore the infringement of EU law must be sufficiently 
serious. Incorrect implementation of a directive, unlike non-implementation, does 
not determine whether or not the condition relating to serious infringement of the 
law has been satisfied. The infringed rule of Directive 2001/14 was so unclear and 
imprecise that it caused uncertainty in the practice of many Member States, which 
resulted in the Commission bringing several actions against them. Neither the 
directive nor the case-law of the Court of Justice expressly and unequivocally 
defines the category of cost which is to be taken into consideration in the cost 
base. In the view of the Sąd Okręgowy, this shows that there are no grounds for 
assuming State liability under the rules of Community law or the provisions of 
national law. The mere issuing by the Court of Justice of a ruling finding that 
national law is incompatible with EU law does not determine whether or not an 
act of a public authority is lawful. It is possible to conclude from the judgment in 
Commission v Poland only that the amount of the charges for access to railway 
infrastructure was set incorrectly, but the Court of Justice did not find that the 
charges were inflated. Consequently, the failure by Poland to fulfil its obligation 
to implement Directive 2001/14 correctly does not mean that the price lists and 
rules drawn up by the respondent company were contrary to that directive, since, 
despite incorrect assumptions being made at the time of their calculation, the 
charges were levied by PKP PLK in the correct amount (that is, the amount 
permitted by EU law). 
13 In addition, the entire cost incurred by the appellant for access to railway 
infrastructure was covered by the recipients of the services provided by it and by 
the Head of the Regional Authority of Mazovia. The compensation took full 
account of all the charges incurred by the appellant for the use of PKP PLK’s 
railway infrastructure. 
14 The appellant did not demonstrate that its difficult financial situation during the 
period at issue was caused solely by the need to incur costs for access to railway 
infrastructure. The amount of the charge for access to infrastructure did not affect 
the amount of the tariffs and price lists applied by the appellant since the rates 
approved by the President of the RTO were the same for all carriers. 
Consequently, the amount of the charges did not affect the appellant’s 
competitiveness vis-à-vis other rail carriers. 
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15 As the Sąd Okręgowy emphasised, under Article 8(1) of Directive 2001/14 the 
basic charge for access to infrastructure may be fixed at an amount which allows 
managers to recover in full the cost of providing infrastructure. That provision 
makes it possible to fix charges for access to infrastructure at a higher level than 
that stated in Article 7(3) of that directive. A charge fixed on that basis can lead to 
full compensation of the cost incurred by the infrastructure manager since it 
introduces the principle of total costs. Thus, that provision provided the basis for 
fixing charges for access to infrastructure at a higher level than that stated by the 
appellant in the application on the basis of Article 7(3) of the directive. Even 
hypothetically accepting the need to apply the provisions of the directive directly, 
in the light of its incomplete implementation it is not possible to apply Article 7(3) 
of Directive 2001/14 without applying Article 8 thereof. 
16 The Sąd Okręgowy emphasised that it is not possible to calculate a model charge 
for access to railway infrastructure by simply deducting certain categories of costs 
from the total costs since neither the directive nor the case-law of the Court of 
Justice specifies what the correct model for calculating the charge for access to the 
respondent company’s [railway] infrastructure should be. Furthermore, there are 
no grounds for assuming that a causal link exists between the issue of the 2009 
Ministerial Regulation and the damage caused since if the regulation had had a 
different content the appellant would not have been subject to inflated basic 
charges. 
17 By judgment of 18 December 2017, the Sąd Apelacyjny w Warszawie (Court of 
Appeal, Warsaw) dismissed the appeal lodged by the appellant. It concurred with 
the position of the Sąd Okręgowy. It added that the appellant was wrong to infer 
that the provisions of Directive 2001/14 conferred on it the right to pay charges 
for the use of railway infrastructure at a maximum amount — related to the direct 
cost. It is not possible to apply (interpret) Article 7(3) of the directive without 
having regard to Article 8 of that directive on account of the reference contained 
in Article 7(3) thereof. 
18 In the view of the Sąd Apelacyjny, there are no grounds for assuming that 
Paragraph 8(1) of the 2009 Ministerial Regulation leads to an interpretation 
thereof contrary to a rule of higher-ranking national law, that is to say 
Article 33(2) of the Law on rail transport. On the contrary, the content of the latter 
provision indicates that the basic charge for the use of railway infrastructure is to 
be set in light of the costs directly incurred by the manager as a result of the rail 
carrier operating the train service. It does not therefore follow that those costs 
alone may form the basis for calculating the basic charge. Those costs are to be 
taken into account, and thus included in the cost base used to calculate the rate of 
the basic charge, which does not preclude other costs from also being entered in 
that cost base. 
19 The appellant lodged an appeal on a point of law against the above judgment in its 
entirety, claiming infringement of provisions of substantive law: firstly 
Article 4171(1) of the Civil Code, secondly Article 7(3) of Directive 2001/14 and 
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Article 33(2) of the Law on rail transport and, thirdly, Article 33(2) of the Law on 
rail transport (in the versions in force during the period covered by the action 
brought in the case) through misinterpretation of those provisions, as a result of 
which the Sąd Apelacyjny ruled that the respondents were correct to include in the 
cost base a number of costs other than those incurred directly (that is to say the 
indirect costs, all depreciation and the financing costs). 
Essential arguments of the parties to the main proceedings 
20 The appellant claims that as a result of the incorrect transposition of Directive 
2001/14 into Polish law it sustained damage since it was subject to inflated 
charges for the use of railway infrastructure during railway timetable periods 
between 2009 and 2013. In its view, the Polish State bears liability for that 
damage, for which it therefore seeks compensation. 
21 The respondents contend that notwithstanding the incorrect transposition of 
Directive 2001/14 the State is not liable for the damage which the appellant has 
purportedly sustained. The charges for the use of railway infrastructure at issue 
did not exceed the amount permitted in EU law. The respondents consider that, 
having regard to EU law and the case-law of the Court of Justice, the conditions 
relating to State liability for such damage are not satisfied in the present case. 
Reasons for the reference for a preliminary ruling 
Grounds for the referral of Question 1 
22 Directive 2001/14, which was addressed to the Member States of the European 
Union (Article 40) and which they were to transpose by 15 March 2003 
(Article 38), entered into force on 15 March 2001. 
23 Under the first sentence of Article 5(1) of that directive, railway undertakings are, 
on a non-discriminatory basis, to be entitled to the minimum access package and 
track access to service facilities that are described in Annex II. The directive 
primarily draws a distinction between two categories of service supplied by the 
infrastructure manager: ‘minimum access package’ services (point 1 of Annex II 
to the directive) and ‘track access to service facilities’ services (point 2 of 
Annex II to the directive). Article 4(5) of Directive 2001/14 provides that 
infrastructure managers are to ensure that the application of the charging scheme 
results in equivalent and non-discriminatory charges for different railway 
undertakings that perform services of equivalent nature in a similar part of the 
market and that the charges actually applied comply with the rules laid down in 
the network statement. In this regard, the Member States were required to create 
rules for funding the activities of the railway infrastructure manager such that its 
costs were at least balanced: on the one hand — income from infrastructure 
charges, surpluses from other commercial activities and State funding (and thus 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-120/20 
 
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public funding), and on the other — infrastructure expenditure (Article 6(1) of the 
directive). 
24 Article 7 of Directive 2001/14 lays down the principles for charging for the use of 
railway infrastructure, and paragraph 3 thereof states that without prejudice to 
paragraphs 4 or 5 or to Article 8, the charges for the minimum access package and 
track access to service facilities are to be set at the cost that is directly incurred as 
a result of operating the train service. However, Article 8 of the directive sets out 
the exceptions to the charging principles laid down in Article 7. 
25 Article 30 of Directive 2001/14 requires the Member States to establish a 
regulatory body whose task is, inter alia, to ensure that charges set by the 
infrastructure manager comply with Chapter II of the directive and are non-
discriminatory. 
26 At the time Poland acceded to the European Union (1 May 2004) the [Law on rail 
transport] was in force in Polish law. Article 33(1) thereof provided for charges 
for the use of railway infrastructure provided by the manager of that 
infrastructure. That manager is PKP PLK, which is owned (in the economic sense 
and indirectly in the legal sense) by the Public Treasury. The unit rates of the 
basic charges and the additional charges, together with the calculation of the 
amount thereof, are communicated for approval to the President of the RTO 
(Article 33(7) of the Law on rail transport), who, within 30 days of receiving the 
rates, approves them or refuses to approve them in the event that they are found to 
be incompatible with the principles referred to in paragraphs 2 to 6, Article 34 and 
the implementing provisions issued pursuant to Article 35 (Article 33(8) of the 
Law on rail transport). 
27 From 6 December 2008, Article 33(2) of the Law on railway transport provided 
that the basic charge for the use of railway infrastructure is to be set having regard 
to the costs directly incurred by the manager as a result of the rail carrier operating 
the train service. The charge for the use of railway infrastructure was the sum of 
the basic charge and additional charges (Article 33(3) of the Law on rail 
transport). The basic charge is divided into the basic charge for minimum access 
to railway infrastructure, which encompasses the services listed in point 1 of 
Part I, of the annex to the law (inter alia for enabling a train to run on a railway 
line managed by a particular railway infrastructure manager) and the basic charge 
for access to equipment connected with train maintenance, which encompasses the 
services listed in point 2 of Part I of the annex to the law (inter alia for enabling 
use of the platforms at railway stopping points which are managed by a particular 
railway infrastructure manager). An additional charge is levied inter alia for the 
use of electricity transmitted in an overhead line system (Article 33(3a) of the 
Law on rail transport). Under Article 33(4) of the Law on rail transport, the basic 
charge for minimum access to railway infrastructure was to be calculated as the 
product of train runs and the unit rates set according to the category of railway 
line and type of train, such charge to be calculated separately for passenger 
transport and freight. However, under Article 33(4a) of the Law on rail transport, 
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the manager may apply a minimum unit rate for the basic charge for minimum 
access to the railway infrastructure. The minimum rate is to apply on an 
equivalent basis to all rail carriers for the use of the railway infrastructure in 
connection with activities performed under the agreement for the provision of 
public services. 
28 The 2009 Ministerial Regulation, which was in force in the period from 13 March 
2009 to 23 June 2014, was issued pursuant to Article 35 of the Law on rail 
transport. Under Paragraph 8(1) of that regulation, in calculating the rates for the 
planned provision of railway infrastructure, the manager must take into 
consideration: (1) the direct costs, which cover: (a) maintenance costs; (b) rail 
traffic management costs; and (c) depreciation; (2) the indirect costs of the 
activity, which cover reasonable costs incurred by the infrastructure manager 
other than those referred to in subparagraphs 1 and 3; (3) the financial costs 
relating to the repayment of loans taken out by the manager to develop and 
modernise the infrastructure provided; and (4) operational work established for the 
different categories of lines and trains referred to in Paragraph 7. The 2009 
Ministerial Regulation was repealed by the Regulation of the Minister 
Infrastruktury i Rozwoju (Minister for Infrastructure and Development) of 5 June 
2014 concerning conditions for access to and use of railway infrastructure 
(Dziennik Ustaw of 2014, item 788), which was in force from 24 June 2014. 
29 The above provisions of the Law on rail transport and the 2004, 2006, 2009 and 
2014 ministerial regulations issued pursuant thereto constituted implementation of 
Article 7(3) of Directive 2001/14. 
30 In relation to the present case and the first question referred it should be noted that 
the liability of the Member State arises from the fact the provisions of Directive 
2001/14 were not transposed correctly into Polish law. 
31 It may be concluded from paragraphs 79 to 82 of the judgment in Commission v 
Poland that the damage arising from the incorrect transposition of Directive 
2001/14 into national law may be the overpaid part of the charge for use of the 
railway infrastructure and in particular the elements affecting the amount of the 
damage as a result of the incorrect transposition of Directive 2001/14 are: in part, 
fixed costs relating to the provision of a stretch of line on the rail network which 
the manager must bear even in the absence of train movements, and the 
maintenance and rail traffic management costs referred to in Paragraph 8(1) of the 
2009 Ministerial Regulation, and, in full, the indirect costs and financial costs 
listed in that provision and depreciation in so far as it is determined, not on the 
basis of actual wear of the infrastructure attributable to rail traffic, but with 
reference to accounting rules. It can be concluded that although in relation to the 
first of those elements the Member State enjoyed a certain discretion, which may 
arise from the indefinite phrase ‘in part’, in relation to the other two aspects the 
Member State was not granted such discretion, which means that they could not 
be an element of the rules of the 2009 Ministerial Regulation. 
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32 In the context of a case concerning compensation for failure to transpose 
Article 7(3) of Directive 2001/14 correctly, the judgment of the Court of Justice in 
CTL Logistics GmbH v DB Netz AG is relevant (see, inter alia, paragraphs 77, 78, 
86 to 92, and 97 to 99). It related to the possibility of review by the civil courts of 
the amount of infrastructure charges instead of review of a decision of the 
supervisory body in appropriate proceedings. In that judgment the Court of Justice 
determined the permissibility or otherwise of ordinary courts reviewing the 
amount of charges for the use of railway infrastructure, on a case-by-case basis, 
and the possibility of amending those charges, independently of the monitoring 
carried out by the regulatory body referred to in Article 30 of Directive 2001/14. 
The subject matter of the proceedings under consideration by the Sąd Najwyższy 
(Supreme Court) is not directly the determination of the amount of such charges; 
however, the possible award of compensation from the Public Treasury or another 
person, an element of which would be an overpaid charge, could, from an 
economic point of view, lead to a situation identical to that of a decision on the 
amount of a charge in court proceedings. This gives rise to dangers similar to 
those set out in paragraphs 87 to 89 and 97 to 99 of the judgment of the Court of 
Justice in CTL Logistics GmbH v DB Netz AG. 
33 In view of the foregoing, the Sąd Najwyższy, as a court against whose decisions 
there is no judicial remedy, takes the position that it is necessary to ascertain 
whether the provisions of Directive 2001/14, and in particular Article 4(5) and 
Article 30(1), (3), (5) and (6) thereof, are to be interpreted as precluding a railway 
undertaking from claiming, with no judicial review of the decision of a 
supervisory body, damages against a Member State on grounds of incorrect 
implementation of a directive in a situation where an element of the damages is an 
overpaid charge for the use of railway infrastructure (Question 1). In other words, 
is it legitimate to take the position that the incorrect implementation of a directive 
in national law, confirmed by the judgment in Commission v Poland, may result 
in a Member State being liable for damages vis-à-vis an operator on the market (a 
rail carrier), instead of the avenue provided by judicial review of the decision of a 
supervisory body (provided for in Article 30 of Directive 2001/14, including in 
paragraph 6 thereof), which was required to interpret Paragraph 8(1) of the 2009 
Ministerial Regulation in the light of Article 7(3) of Directive 2001/14? 
Grounds for the referral of Question 2 
34 In the judgment in Brasserie du pecheur the Court of Justice found — in relation 
to failure to implement an EU directive — that in a situation where the national 
legislature has a ‘margin of discretion’ the liability of the Member State is 
contingent on three conditions being satisfied, namely: (1) the rule of law 
infringed must be intended to confer rights on individuals; (2) the actions of the 
State must be vitiated by a sufficiently serious breach of the law; and (3) there 
must be a direct causal link between the breach of the obligation resting on the 
State and the damage sustained by the injured person (paragraph 51). The case-
law of the Court of Justice (including the above judgment) also emphasises that, 
KOLEJE MAZOWIECKIE 
 
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as regards the liability of the Member States for infringement of Community law, 
a manifest and grave disregard by a Member State for the limits on its discretion is 
fundamental in assessing whether or not there has been a serious breach of the 
law. It notes that the factors which the competent court may take into 
consideration are primarily the clarity and precision of the rule infringed, the 
measure of discretion left by that rule to the national or Community authorities, 
whether the infringement and the damage caused was intentional or involuntary, 
whether any error of law was excusable or inexcusable, the fact that the position 
taken by a Community institution may have contributed towards the omission, and 
the adoption or retention of national measures or practices contrary to Community 
law. 
35 The Court of Justice derived the conditions relating to liability formulated above 
from the second paragraph of Article 215 of the Treaty establishing the European 
Economic Community, as amended by the Maastricht Treaty. The equivalent 
thereof currently in force is the second paragraph of Article 340 TFEU. 
36 The Member State’s liability for compensation serves not only to protect the 
individual, but also to ensure the application of EU law. The abovementioned 
conditions relating to the Member State’s liability for compensation, derived from 
EU law but implemented and to a certain extent even laid down having regard to 
national law, are recognised by the Court of Justice as a necessary and at the same 
time sufficient condition of that liability vis-à-vis individuals for infringement of 
EU law. It would appear that the Court of Justice derives from the nature of those 
conditions, on the one hand, a prohibition on making the compensation by the 
State for damage caused by an infringement of EU law dependent, in national law, 
on substantive and procedural requirements for compensation for damage less 
favourable than those relating to similar domestic claims and requirements which 
mean that it is in practice impossible or excessively difficult to obtain 
compensation and, on the other, the conclusion that the State may incur liability 
for the abovementioned damage under national law where the conditions laid 
down in national law do not go beyond the requirements of EU law. 
37 Under Article 4171(1) of the Civil Code, if the damage was caused by the issuing 
of a normative act, compensation for that damage may be claimed once it has been 
established in appropriate proceedings that that act is incompatible with the 
Constitution of the Republic of Poland, a ratified international agreement or a law. 
However, under paragraph 4 of that article, if the damage was caused by a failure 
to issue a normative act, which is required to be issued by law, the incompatibility 
with the law of the failure to issue that act is to be determined by the court hearing 
the case relating to compensation for the damage. As regards the second situation, 
the prevailing view draws a distinction between two forms of legislative omission: 
(1) situations in which no legal act at all has been issued (‘proper omission’); (2) 
situations in which such an act has been issued but contains only incomplete, 
fragmented rules which means that the possibility of exercising certain rights 
arising from, for example, another legal act is restricted or removed (‘relative 
omission’). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-120/20 
 
14  
38 However, regardless of the basis of the State’s liability, for there to be such 
liability in its area of responsibility, under national law in every situation the 
following conditions, inter alia, must be satisfied: there must be (1) an act or 
omission incompatible with the law; (2) damage; and (3) a causal link between the 
act or omission and the damage. To this should be added the special conditions 
laid down in the provisions of the law governing the particular situation. 
39 Crucially, as regards State liability, it is assumed that an act or omission 
incompatible with the law, and thus ‘unlawfulness’, does not have to be qualified 
in nature and limited to cases of gross infringement of the law. Only in relation to 
liability under Article 4171(2) of the Civil Code is reference made to the qualified 
nature of the unlawfulness, which, however, does not apply to the case under 
consideration. 
40 At the same time, as pointed out above, the case-law of the Court of Justice refers 
to making the Member State’s liability dependent on there being ‘qualified 
unlawfulness’, and thus the infringement of EU law being ‘sufficiently serious’. 
Such infringement involving disregard for the limits on discretion must be 
manifest (gross) and grave (serious). Accordingly, in this case there is a situation 
where an act or omission by a public authority (for example in the event of the 
incorrect transposition of an EU directive) may be alleged under national law 
but — having regard to the position of the Court of Justice — under EU law the 
Member State may be exempted from liability for compensation. 
41 A further issue is the need for there to be a causal link. In seeking to establish the 
liability of a public authority, the injured person must demonstrate to the national 
court that, inter alia, the act or omission incompatible with the law in the exercise 
of State authority resulted in damage; therefore there must be a link between those 
conditions for the purposes of Article 361 of the Civil Code, under which the 
person liable to pay compensation is to bear liability only for the normal 
consequences of the act or omission from which the damage arose. Within these 
limits, under Article 361(2) of the Civil Code the obligation to compensate for 
damage covers actual loss (damnum emergens) and loss of profit (lucrum 
cessans). 
42 In the light of Article 361(1) of the Civil Code even an indirect causal link 
between an incorrect act or omission and damage may provide grounds for 
liability for the damage. 
43 In its case-law the Court of Justice refers to the direct causal link theory when 
considering the liability of a Member State for legislative omission (related, for 
example, to the transposition of an EU directive). Thus, in contrast to national 
legislation, any damage which is only indirectly related to an act or omission by a 
public authority would be excluded. 
44 In the light of the foregoing considerations, the question arises as to whether the 
assumption that a right to damages under EU law for misapplication of that law, 
KOLEJE MAZOWIECKIE 
 
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and in particular the incorrect transposition or non-transposition of a directive, 
exists only where the rule of law infringed is intended to confer rights on 
individuals, the infringement of the law is qualified in nature, and the causal link 
between the infringement and the damage is direct in nature, precludes rules of 
law of a Member State which, in such cases, confer a right to damages where less 
stringent conditions are satisfied (Question 2). If national law lays down less 
stringent conditions relating to a Member State’s liability for the incorrect 
transposition or non-transposition of a directive than EU law, the assumption of 
the primacy of EU law over national laws would mean that that State would be 
exempt from liability for compensation for that act or omission, which does not 
appear to be compatible with the principles of equity. 
45 The need to answer Question 2 also arises from doubts as to the content of the 
judgment in Brasserie du pecheur, which is of particular importance as regards 
Member States’ liability for infringement of EU law. Paragraph 42 of that 
judgment states as follows: ‘… the conditions under which the State may incur 
liability for damage caused to individuals by a breach of Community law cannot, 
in the absence of particular justification, differ from those governing the liability 
of the Community in like circumstances. The protection of the rights which 
individuals derive from Community law cannot vary depending on whether a 
national authority or a Community authority is responsible for the damage’. 
46 Since the above section of the grounds of that judgment of the Court of Justice 
refers to a uniform standard for liability for damages currently laid down in the 
second paragraph of Article 340 TFEU, this clearly supports an answer in the 
affirmative to Question 2, that is to say an assumption that the rules of EU law 
preclude less stringent rules of national law for injured persons. The Sąd 
Okręgowy and Sąd Apelacyjny clearly made the same assumption in the present 
case. On the other hand, however, paragraph 66 of that ruling of the Court of 
Justice states as follows: ‘The aforementioned three conditions are necessary and 
sufficient to found a right in individuals to obtain redress, although this does not 
mean that the State cannot incur liability under less strict conditions on the basis 
of national law’. The Sąd Najwyższy is inclined to concur with the second 
position.