Opinion of the Advocate General — ECLI:EU:C:2019:277
Date: 2019-03-28
Language of the case: German
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Austria

summary, those arguments refer either to the physical separation between railway infrastructure and service facilities (as a criterion for defining the powers to be exercised by the infrastructure manager, on the one hand, and the operators of service facilities, on the other) or to the financial repercussions. 52. At the outset, I would say that the submissions made by ÖBB and the French and Polish Governments support what I consider to be a contra legem interpretation of Directive 2012/34. (18) Based primarily on the (undeniable) practical difficulties involved in classifying platforms as forming part of railway infrastructure, their position is, more than anything, a criticism of the legislative decision set out in Directive 2012/34. (a) Physical delimitation of spaces 53. Platforms (infrastructure the use of which is dealt with in point 1 of Annex II in conjunction with Annex I to Directive 2012/34) and passenger stations (service facilities according to point 2 of the aforementioned Annex II) have to be physically connected, of course. There will be a place (or, rather, a line) where the operation of the railway service facility ends and use of the infrastructure begins. The material distribution of the power over the different spaces, which Directive 2012/34 splits between infrastructure managers and operators of service facilities, will vary by reference to that factor. 54. It is important to recognise that the practical problems identified by ÖBB and the French and Polish Governments, with respect to the delimitation of those spaces, are not insignificant. Pinpointing the border between those spaces can be less than easy, particularly in certain more complex situations. (19) Those difficulties, however, must not be allowed to blur the rule laid down by the legislature, which is to say that platforms are, by definition, a part of railway infrastructure. 55. Although the charging implications form the subject of the next section, it is important to make the point here that the first subparagraph of Article 31(3) of Directive 2012/34 refers to the ‘charges for the minimum access package and for access to infrastructure connecting facilities’. It thus has in mind infrastructure involving transit to service facilities, for which the manager of that infrastructure is responsible. 56. ÖBB argues that there are no combinations of railway infrastructure components and service facilities. In its view, if platforms were to form part of the minimum access package, the division of functions between the manager of the former (infrastructure) and the operator of the latter (service facilities) would be obscured. It is for the latter, moreover, to grant access to those facilities, ‘including track access’. In its opinion, the provision directly applicable to platforms is point 2 of Annex II, which deals with service facilities, including stations. (20) 57. ÖBB’s proposition is anchored in an understanding of infrastructure that takes into account only the railway lines and the elements essential to their construction. That understanding, which was sustainable up until the legislative change expressed in Annex I to Directive 2012/34, is no longer tenable, since the concept of railway infrastructure has been extended in the manner set out above. 58. In fact, ÖBB has to concede that railway lines are part of a passenger station, in the usual sense of that term, without for that matter being treated as service facilities. Since the entry into force of Directive 2012/34, a similar line of reasoning has been applicable to platforms. 59. A look at the list of service facilities contained in point 2 of Annex II to Directive 2012/34 shows that most of them are in spaces remote from the rail transit route. (21) Conversely, in stations, main lines and sidings are part and parcel of the station itself, with the result that, in those places, the railway infrastructure is interconnected with the service facility and there is no need to provide independent access because this is provided by the very railway lines that comprise the railway infrastructure itself. 60. There is, therefore, nothing to stop the infrastructure manager’s power from being extended beyond the railway lines that pass through the station to include passenger platforms. The latter perform the function of ‘infrastructure connecting service facilities’ referred to in Article 31(3) of Directive 2012/34. 61. The detailed strategies for identifying the interconnections between the platform and the various service facility items will depend on the particular circumstances presented by the configuration of each station. In the absence of a standard that defines in greater detail one set of spaces as distinct from another, the infrastructure manager and the station operator will have to reach agreement or approach the railway regulator in order to have their differences of opinion resolved. (b) Financial repercussions 62. Those who oppose the classification of passenger platforms as forming part of the railway infrastructure that is covered by the minimum access package emphasise the financial repercussions of that measure, given that the charge for using that infrastructure cannot exceed the cost directly incurred [as a result of operating the train service] (marginal cost principle). (22) 63. In actual fact, that argument has no bearing on the interpretation of the provisions of Directive 2012/34 with which the reference for a preliminary ruling is strictly concerned. If it is the case, as the Railway Supervisory Commission recognises, that, ‘in accordance with the definition provided by EU law, passenger platforms form part of railway infrastructure’, (23) that premiss must serve as the basis for determining the relevant consequences with respect to the charge payable for using that infrastructure. 64. Accordingly, that charge will have to be calculated on the basis of the items listed in Annex I, account being taken of the provisions of Article 29 et seq. of Directive 2012/34 and, as from its entry into force, Implementing Regulation (EU) 2015/909. (24) That regulation sets the charges for minimum access and access to infrastructure connecting service facilities as provided for in Article 31(3) of Directive 2012/34 by reference to the costs directly incurred as a result of operating the train service. 65. The inclusion of platforms in railway infrastructure means that they cannot be taken into account for the purposes of calculating the charge for using service facilities. Consequently, their use cannot be charged for by reference to the reasonable profit factor. The fact that this is the case may in some circumstances lead to a reduction in revenue for facility operators who have up until now assumed responsibility for platforms in the mistaken belief that the latter are a service facility. 66. That consequence, I would say again, does not preclude the [foregoing] interpretation of Annexes I and II to Directive 2012/34. What is more, the impossibility of levying the service facility charge for station platforms will be mitigated by the transfer of responsibility for platforms (their construction and maintenance), from which the station operator is released. 67. In its written observations, the Polish Government maintains that excluding passenger platforms from service facilities runs counter to the objectives of Directive 2012/34, one of which is to ensure that rail transport is efficient and competitive with other modes of transport (recital 5). That objective, it goes on to say, is supplemented by the option available to operators of service facilities to include within their charges a reasonable profit component. The profit thus obtained can be used to improve facilities on passenger platforms themselves, which are the place where passengers must be afforded the highest level of comfort and safety, a duty the discharge of which amounts ultimately to offering them a better service. 68. This argument, along with others like it, might highlight an unintended effect of the current legislation but it is not sufficient to support an interpretation of that legislation that is contrary to its wording, still less a claim that it is invalid (which nobody has maintained, for that matter). It stems, moreover, from a debatable premiss, which is to say that the quality inherent in greater investment can only come from higher charges. 69. There is, of course, nothing to show that the criterion adopted by Directive 2012/34 inevitably leads to a situation where an inadequate railway infrastructure stands alongside impeccable service facilities as a result of the differences in the way the two are charged for. In any event, it should be recalled that Articles 8 and 32 of Directive 2012/34 provide for mechanisms to enable Member States to adopt economic support measures for the benefit of infrastructure managers. C. The temporal limitation of the effects of the judgment 70. ÖBB proposes that, if the Court accepts that Directive 2012/34 includes passenger platforms in railway infrastructure, the judgment should not begin to produce its effects until it is published. 71. In support of its request, it cites the economic repercussions and its good faith, inasmuch as it did not anticipate that Directive 2012/34 would entail any substantial amendment to the regime under Directive 2001/14. It submits that the conduct of other Member States and the Commission, which has not challenged the Austrian legislation, strengthens its claim. 72. According to the settled case-law of the Court of Justice, the interpretation which, in the exercise of the jurisdiction conferred on it by Article 267 TFEU, the Court gives to a rule of European Union law clarifies and defines the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its entry into force. It follows that the rule as thus interpreted may, and must, be applied by the courts even to legal relationships which arose and were established before the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing a dispute relating to the application of that rule before the courts having jurisdiction are satisfied. (25) 73. By way of exception to that rule, the Court may, in application of the principle of legal certainty inherent in the legal order of the European Union, restrict for the persons concerned the opportunity of relying on a provision which it has already interpreted with a view to calling into question legal relationships established in good faith. Two essential criteria must be fulfilled before such a limitation can be imposed, namely, that those concerned should have acted in good faith and that there should be a risk of serious difficulties. 74. The Court has used that exception where there was a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force and where it appeared that individuals and national authorities had been led to adopt practices which did not comply with European Union law by reason of objective, significant uncertainty regarding the implications of European Union provisions, to which the conduct of other Member States or the Commission may have even contributed. (26) 75. It is my view that, in this case, none of those conditions is met: – Even though the legislature’s decision to include platforms within the framework of railway infrastructure was not accompanied by an explanation in the recitals of Directive 2012/34, the purport of that provision is clear and it has not given rise to uncertainty in most Member States. (27) – ÖBB has not quantified, even approximately, the economic impact which the incorporation of station platforms into railway infrastructure would have. What is more, in its written observations, (28) it refers to the possible ‘compensation for financial damage’ that would have to be paid for by the Member States. However, none of the Member States (including Austria, which has not taken part in the preliminary ruling proceedings) has endorsed ÖBB’s claim with respect to the temporal effects of the judgment. V. Conclusion 76. In the light of the foregoing, I propose that the Court answer the Schienen-Control Kommission (Railway Supervisory Commission, Austria) as follows: Annex I and points 1(c) and 2(a) of Annex II to Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area must be interpreted as meaning that passenger platforms situated in stations form part of the railway infrastructure the use of which is included within the ‘minimum access package’ available to all railway undertakings. 1 Original language: Spanish. 2 Directive of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area (OJ 2012 L 343, p. 32). 3 The Court has accepted that this Commission may be regarded as a body entitled to make references for preliminary rulings (judgment of 22 November 2012, Westbahn Management, C‑136/11, EU:C:2012:740, paragraphs 26 to 31). I have some reservations about that classification, which, for similar reasons, could be applied to practically all sectoral regulatory bodies. 4 ‘Infrastructure manager’ and ‘operator of service facility’ are defined in Article 3(2) and (12) of Directive 2012/34. Although, in principle, their functions are considered to be separate, the third subparagraph of Article 13(3) of that directive allows the infrastructure manager to be the service facility operator, too. This is the situation in Austria, where ÖBB performs both roles. 5 It is worth noting that there are discrepancies in the different language versions of the Directive which affect some of the key concepts in this case (Article 13(2) and Article 31(7) of, and point 2 of Annex II to Directive 2012/34). Some languages (French, Italian and German) talk of ‘access to the tracks’, while others (English, Spanish and Portuguese) refer to ‘access by rail’. It is perhaps for this reason that ÖBB, acting on the basis of the German version, has approached the concept of ‘track access’ from the point of view of users, taking the latter to be the subjects of the ‘access’ rather than the railway undertakings, which are, in reality, the recipients of the services. In any event, those linguistic discrepancies stop short, in my opinion, of being substantial. The object of such access is to ensure that railway undertakings can connect to (the other) service facilities from the rail network and that the rail network can be accessed from the service facilities. In the remainder of this Opinion, therefore, when I use the term ‘access’ in relation to railway undertakings, I shall do so in the sense of ‘communication, by entry or departure, between services facilities and the rail network’. 6 Given its dual function, ÖBB charges both fees. 7 The order for reference distinguishes ‘passenger platforms in passenger stations’ from ‘passenger platforms at mere station halts’ (paragraph 23). A juxtaposition of the notions of train station and station halt shows that what they have in common is the platform. A station, as well as usually having a number of platforms, consists not only of sidings and other ancillary facilities for the marshalling and maintenance of trains, but also spaces for passenger amenities and areas for the management of goods. A station halt, on the other hand, is, in essence, a platform with varying degrees of accommodation to make it easier for passengers to wait for trains. I think, therefore, that, since point 2(a) of Annex II refers to stations, we must focus our attention on platforms that are located within such stations, without prejudice to any allusion to station halts. 8 Directive 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). 9 Council Directive of 29 July 1991 on the development of the Community’s railways (OJ 1991 L 237, p. 25). 10 Regulation of the Commission of 18 December 1970 specifying the items to be included under the various headings in the forms of accounts shown in Annex I to Council Regulation (EEC) No 1108/70 of 4 June 1970 (OJ, English Special Edition 1970 (III). p. 899). This was a provision that supplemented Regulation (EEC) No 1108/70 of 4 June 1970 introducing an accounting system for expenditure on infrastructure in respect of transport by rail, road and inland waterway (OJ English Special Edition 1970 (II), p. 363). 11 It would have been ideal, it is true, if the author of Directive 2012/34 had reflected his intentions in the preamble to that provision, but the fact that none of the recitals makes such a reference does not sanction a deviation from the only explanation that is consistent with the provisions of that directive, its context and the objective it pursues. 12 I do not think there are any inconsistencies in this regard between platforms in stations and those at station halts: that provision applies to all platforms, as the phrase ‘including in passenger stations’ further points up. 13 Directive of the European Parliament and of the Council of 14 December 2016 amending Directive 2012/34/EU as regards the opening of the market for domestic passenger transport services by rail and the governance of the railway infrastructure (OJ 2016 L 352, p. 1). 14 Emphasis added. 15 C‑388/17, EU:C:2018:738, point 52 et seq. 16 Recital 71 of Directive 2012/34 classifies railway infrastructure as a natural monopoly. 17 This was the finding reached by the Independent Regulators’ Group — Rail (a group of railway regulatory authorities, cooperation between which is promoted by Article 57 of Directive 2012/34) when studying the levying of charges for the use of service facilities in various countries in Europe. See ‘An overview of charging practices for access to service facilities and rail-related services in the IRG-Rail member states’ (IRG-Rail (17) 6), report of 27 November 2017, p. 14. The countries covered were Austria, Belgium, Bulgaria, Croatia, Finland, France, Germany, Greece, Hungary, Italia, Norway, Poland, Portugal, Romania, Slovenia, Spain, Sweden and the United Kingdom. The content of that report was discussed at the hearing. 18 At the hearing, the French Government asked the Court to give a ‘remote interpretation of the text’ of the Directive. 19 ÖBB mentioned, for example, among a number of such situations, the subways which, in some passenger stations, provide access to platforms. 20 That explanation does not take sufficient account of the fact that Annex I refers by name to passenger platforms, including in stations, in the list of railway infrastructure items. 21 Such as freight terminals, storage sidings, maintenance facilities, technical facilities or refuelling facilities. 22 Page 10 of the document ‘Updated review of charging practices for the minimum access package in Europe’, drafted by IRG-Rail (IRG-Rail (18) 10), highlights how, in most countries, minimum access charges are calculated on the basis of the marginal costs incurred by the infrastructure manager in connection with the use of that infrastructure. 23 Order for reference, Heading IV (Explanations concerning the questions for a preliminary ruling), paragraph 6, in fine. 24 Commission Implementing Regulation 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). 25 Judgment of 27 February 2014, Transportes Jordi Besora (C‑82/12, EU:C:2014:108, paragraph 40 and the case-law cited). 26 Judgments of 27 February 2014, Transportes Jordi Besora (C‑82/12, EU:C:2014:108, paragraphs 42 and 43); of 3 June 2010, Kalinchev (C‑2/09, EU:C:2010:312, paragraphs 50 and 51); and of 10 May 2012, Santander Asset Management SGIIC and Others (C‑338/11 to C‑347/11, EU:C:2012:286, paragraphs 59 and 60). 27 I refer to the document cited in footnote 17. 28 Paragraph 54. At the hearing, ÖBB did not refer to the limitation of the temporal effects of the judgment.