Judgment;Summary — ECLI:EU:C:2022:113
Date: 2022-02-24
Language of the case: Polish
Court formation: Fourth Chamber
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-563/20–1 
Case C-563/20 
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: 
28 October 2020 
Referring court: 
Sąd Okręgowy w Warszawie (Poland) 
Date of the decision to refer: 
6 October 2020 
Applicant: 
ORLEN KolTrans sp. z o.o 
Defendant: 
Prezes Urzędu Transportu Kolejowego 
  
Subject matter of the case in the main proceedings 
Refusal by the Prezes Urzędu Transportu Kolejowego (President of the Office of 
Rail Transport) – a regulatory body within the meaning of Directive 2001/14/EC – 
to initiate administrative proceedings for the annulment of the decision of that 
body approving the unit rates of the basic charge for the use of railway 
infrastructure at the request of a railway undertaking (ORLEN KolTrans sp. z 
o.o.). 
Subject matter and legal basis of the reference 
The right of a railway undertaking which uses or intends to use railway 
infrastructure to participate in a procedure conducted by a regulatory body for 
setting the level of charges for access to railway infrastructure by the railway 
infrastructure manager. 
Right of appeal against the decision of the regulatory body approving the level of 
charges for access to railway infrastructure set by the infrastructure manager. 
Article 267 TFEU 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-563/20 
 
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Questions referred 
1. Must Article 30(2)(e) 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 be interpreted as 
conferring on a railway undertaking which uses or intends to use 
railway infrastructure the right to participate in the procedure 
conducted by a regulatory body for setting the level of charges for 
access to railway infrastructure by the railway infrastructure manager? 
2. If the first question is answered in the negative, must Article 30(5) and 
(6) of Directive 2001/14/EC be interpreted as conferring on a railway 
undertaking which uses or intends to use railway infrastructure the 
right to challenge the decision of the regulatory body approving the 
level of charges for access to railway infrastructure set by the railway 
infrastructure manager? 
Provisions of EU law cited 
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), Article 4(1), Article 6(2), Article 7(3), Article 30(1), 
Article 30(2)(e), Article 30(3) to (6) 
Provisions of national law cited 
Ustawa z dnia 28 marca 2003 r. o transporcie kolejowym (Law of 28 March 2003 
on Rail Transport) (Journal of Laws [Dz. U.] of 2013, item 1594), Article 13(1) 
and (6), Article 29(3) and (4), Article 33(1) to (8), Article 34(1), Article 35(4) 
Rozporządzenie Ministra Infrastruktury z dnia 27 lutego 2009 r. w sprawie 
warunków dostępu i korzystania z infrastruktury kolejowej (Regulation of the 
Minister of Infrastructure of 27 February 2009 on the conditions for access to and 
use of railway infrastructure) (Journal of Laws [Dz. U] No 35, item 274, ‘the 2009 
Ministerial Regulation’), Sections 6, 7, 8, 10, 16 and17 
Ustawa z dnia 14 czerwca 1960 r. Kodeks postępowania administracyjnego (Law 
of 14 June 1960 – Code of Administrative Procedure) (Journal of Laws [Dz.U.] of 
2013, item 267, ‘the CAP’), Article 28, Article 61(1), Article 61a(1), 
Article 157(2) 
Brief outline of the facts and procedure 
1 ORLEN KolTrans sp. z o.o., established in Płock, conducts business activity 
consisting in, among other things, rail freight transport.  
ORLEN KOLTRANS 
 
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2 By decision of 29 September 2010, the Prezes Urzędu Transportu Kolejowego 
(President of the Office of Rail Transport; ‘the President of the ORT’) changed his 
earlier decision on the approval of unit rates for the basic charge and rates for 
additional charges for access to and use by railway undertakings of railway 
infrastructure owned by PKP Polskie Linie Kolejowe SA (‘PKP PLK’) during the 
period of validity of the 2010/2011 train timetable, approving new basic charge 
rates. In that decision, the regulatory body considered that the new unit rates of the 
basic charge proposed by PKP PLK were in line with the rules laid down in 
Article 33(2) to (6), Article 34, and the provisions issued on the basis of Article 35 
of the Law on Rail Transport. 
3 The infrastructure manager was the sole participant in the above procedure 
concerning the approval of the unit rate for the basic charge. 
4 In connection with the rail transport services it provided, ORLEN KolTrans paid 
the infrastructure manager charges for the use of railway infrastructure on the 
basis of the unit rates for the basic charge approved by the President of the ORT in 
the abovementioned decision of 29 September 2010 (the basic charge is 
determined by multiplying the unit rate by the number of train-kilometres 
travelled). 
5 The amount of charges payable to PKP PLK ultimately resulted from the 
agreement on the use of allocated train routes concluded between the railway 
undertaking and the railway infrastructure manager. By law, this agreement 
should specify, inter alia, conditions for making available and using railway 
infrastructure and the discounts and rate multipliers applied as well as the date and 
method of payment of charges and other liabilities (Section 20 of the 2009 
Ministerial Regulation). 
6 Although the PKP PLK manager therefore collected from the railway undertaking 
charges for the provision of the railway infrastructure, as specified in the 
agreement (Article 29(3) of the Law on Rail Transport), the amount of those 
charges was derived from the basic charge unit rates set by way of an 
administrative decision (the decision of 29 September 2010). 
7 The charge for using the railway infrastructure is the sum of the basic charge and 
the additional charge. The basic charge, in turn, is calculated taking account of the 
distances to be travelled by trains and the unit rates set depending on the category 
of railway line and the type of train. 
8 By judgment of 30 May 2013, Commission v Poland, C-512/10, the Court of 
Justice found that including costs which clearly have not been incurred directly as 
a result of operating the train service. in the process of calculating the rates of 
charges for the use of railway infrastructure is incompatible with Directive 
2001/14/EC. As a result, the Court found that national provisions, in particular the 
2009 Ministerial Regulation, which was the basis for the setting by the 
infrastructure manager of the rates of charge for the minimum access package and 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-563/20 
 
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their approval by the President of the ORT (the decision of 29 September 2010), 
did not ensure the correct transposition of provisions of EU law concerning the 
setting of charges for minimum access to railway infrastructure at the cost that is 
directly incurred as a result of operating the train service, namely, Article 7(3) of 
Directive 2001/14 (paragraphs 80–86 of the judgment). [Or. 11] 
9 Since it considered that the rates of charge approved by the decision of the 
President of the ORT of 29 September 2010 included indirect costs incurred by 
the infrastructure manager, which is prohibited under the directive, by its letter of 
7 April 2014, ORLEN KolTrans requested the annulment of the decision. 
10 The applicant indicated that the above decision had been made in flagrant breach 
of the law. In the applicant’s view, the decision approving the unit rates of charges 
for access to and use of the railway infrastructure managed by PKP PLK 
incorrectly included costs which were not directly incurred as a result of operating 
the train service. 
11 By decision of 11 June 2014, the President of the ORT refused to initiate 
proceedings for the annulment of the decision of 29 September 2010. In the 
grounds of the decision, the President of the ORT pointed to Article 61a(1) of the 
CAP, stating that a railway undertaking such as ORLEN KolTrans was not a party 
within the meaning of Article 28 of the CAP and had no legal interest in the 
annulment of the decision. 
12 The President of the ORT considered that legal interest in initiating such 
proceedings was determined by the existence of a substantive rule of 
administrative law which provides grounds for rights being granted to (or 
obligations being imposed on) an entity in a binding manner. Therefore, since it is 
not explicitly laid down in the Polish legal system that a railway undertaking has 
the right to challenge the unit rates for the basic charge during a procedure for 
their approval by the regulatory body, the President of the ORT (that is, the 
regulatory body) refuses to recognise the railway undertaking’s right to challenge 
its decision approving those rates even if it turns out that the unit rates for the 
basic charge approved by its administrative decision are incompatible with EU 
law. 
13 ORLEN KolTrans lodged a complaint against the decision of the President of the 
ORT of 11 June 2014 before the Sąd Okręgowy w Warszawie, Sąd Ochrony 
Konkurencji i Konsumentów (Regional Court, Warsaw, Competition and 
Consumer Protection Court, Poland) (the referring court). The undertaking 
indicated that the refusal to recognise it as a party to proceedings for the 
annulment of the decision of 29 September 2010 meant that Polish law did not 
provide for an effective appeal mechanism for a railway undertaking with respect 
to the level or structure of railway infrastructure fees to which it is entitled under 
Article 30(2)(e) of Directive 2001/14. 
ORLEN KOLTRANS 
 
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14 At the same time, ORLEN KolTrans brought a claim for compensation against the 
Polish State, because as a result of the incorrect implementation of Directive 
2001/14 by the Republic of Poland it suffered damage arising from the inflated 
charges it paid to the railway infrastructure manager, since those charges were 
calculated on the basis of the unit rate of the basic charge, whose amount, contrary 
to the provisions of that directive, was calculated taking into account the railway 
infrastructure manager’s indirect costs, and not only direct costs as required by the 
directive. 
15 The ordinary courts which heard claims for damages by ORLEN KolTrans and by 
other railway undertakings against, inter alia, the Polish State, alleging incorrect 
implementation of the directive, refused to uphold those claims by railway 
undertakings, pointing out, inter alia, that there exist valid and legally binding 
administrative decisions of the regulatory body (the President of the ORT) 
approving the level of basic charge unit rates applied by the infrastructure 
manager (such as the decision of 29 September 2010). 
16 In connection with one such case brought by a railway undertaking against the 
Polish State for damages for incorrect implementation of Directive 2001/14, the 
Sąd Najwyższy (Supreme Court, Poland) referred a question for a preliminary 
ruling as to whether the provisions of that directive precluded a railway 
undertaking from claiming damages against a Member State on grounds of 
incorrect implementation of the directive (Case C-120/20). 
17 At the same time, it should be borne in mind that the Court of Justice, in its 
judgment of 9 November 2017, CTL Logistics v DB Netz, C-489/15, determined 
that it is inadmissible for ordinary courts to review the level of charges for the use 
of railway infrastructure on a case-by-case basis and to amend the amount of those 
charges, independently of the monitoring carried out by the regulatory body 
referred to in Article 30 of Directive 2001/14. 
18 By seeking annulment of the decision of 29 September 2010, the applicant in the 
main proceedings essentially seeks judicial review of the decision of the 
regulatory body approving the unit rates of the basic charge which, in its view, in 
the light of the Court’s judgment in Case C-512/10, were determined in a manner 
incompatible with Directive 2001/14. 
Brief summary of the reasons for the reference 
19 Article 30(2)(e) of Directive 2001/14 indicates that an applicant is to have a right 
to appeal to the regulatory body if it believes that it has been unfairly treated, 
discriminated against or is in any other way aggrieved, and in particular against 
decisions adopted by the infrastructure manager or where appropriate the railway 
undertaking concerning the level or structure of infrastructure fees which it is, or 
may be, required to pay. 
20 In Poland, as a rule, the only party to the procedure for the approval by the 
regulatory body of the unit rates of the basic charge is the railway infrastructure 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-563/20 
 
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manager, which submits these rates for approval. Organisations representing 
railway undertakings may also participate in the procedure if they apply to do so. 
On the other hand, railway undertakings are not allowed to participate in such a 
procedure. 
21 At the same time, in the view of the referring court, national law does not provide 
for any effective mechanism whereby a railway undertaking could challenge the 
level of approved unit rates for the basic charge. 
22 The only remedy available to a railway undertaking is the right to lodge with the 
regulatory body a complaint against the manager concerning infrastructure 
charges (provided for in Article 13(1)(5)(b) of the Law on Rail Transport). 
23 However, such a complaint cannot have the effect of invalidating the unit rates for 
the basic charge approved by way of an administrative decision issued by the 
regulatory body. Pursuant to Article 13(6) of the Law on Rail Transport, where it 
is found that laws, decisions or provisions relating to rail transport have been 
breached, the President of the ORT may issue a decision determining the scope of 
the breach and the deadline for remedying the irregularities, and therefore such a 
decision could not invalidate the unit rates of the basic charge either. 
24 Since the regulatory body considers that only the railway infrastructure manager 
for which the unit rates for the basic charge are set is a party to the administrative 
procedure for approval of those rates, a railway undertaking is not considered a 
party to that procedure. Therefore, a railway undertaking cannot challenge the 
resulting decisions. 
25 Under Polish law, in accordance with the principle expressed in Article 157(2) of 
the CAP, proceedings for the annulment of a decision are initiated on a request by 
a party or ex officio, so that a railway undertaking which was not a party to the 
procedure for the approval of unit rates cannot effectively request the annulment 
of the decision approving the unit rates for the basic charge. 
26 Under this arrangement, the railway undertaking is deemed to have no legal 
interest. Legal interest is, in turn, subject to the existence of a substantive rule of 
administrative law which provides grounds for rights being granted to (or 
obligations imposed on) an entity in a binding manner. Therefore, since it is not 
explicitly laid down in the Polish legal system that a railway undertaking has the 
right to challenge the unit rates for the basic charge during a procedure for their 
approval by the regulatory body, the President of the ORT (that is, the regulatory 
body) refuses to recognise the railway undertaking’s right to challenge its decision 
approving those rates even if it turns out that the unit rates for the basic charge 
approved by its administrative decision are incompatible with EU law. 
27 Consequently, in the Polish legal order, a railway undertaking does not have 
effective legal means of challenging the level of unit rates for the basic charge, 
even where those charges are calculated in a manner which is incompatible with 
the provisions of Directive 2001/14, that is to say, where not only direct costs 
ORLEN KOLTRANS 
 
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incurred by the infrastructure manager in connection with providing access to the 
infrastructure but also indirect costs have been included, which the Court deemed 
unacceptable in Case C-512/10. 
28 This justifies the first question referred for a preliminary ruling: Must 
Article 30(2)(e) of Directive 2001/14 be interpreted as conferring on a railway 
undertaking which uses or intends to use railway infrastructure the right to 
participate in the procedure conducted by a regulatory body for setting the level of 
unit rates for the basic charge for access to railway infrastructure by the railway 
infrastructure manager? 
29 However, if it is not possible to infer from the wording of Article 30(2)(e) of 
Directive 2001/14 the right of the railway undertaking to participate in the 
procedure for the decision approving the unit rates for the basic charge, this 
justifies the second question referred for a preliminary ruling: Must Article 30(5) 
and (6) of Directive 2001/14/EC be interpreted as conferring on a railway 
undertaking which uses or intends to use railway infrastructure the right to 
challenge the decision of the regulatory body approving the level of unit rates for 
the basic charge for access to railway infrastructure set by the railway 
infrastructure manager? 
30 The answers to the above questions will enable the referring court to decide 
whether the applicant in the present case has a legal interest in requesting that 
proceedings for the annulment of the decision approving the unit rates of the basic 
charge be initiated, and in particular whether it can be party to such proceedings in 
any event or whether it can only challenge the resulting decision if it can 
demonstrate that the decision approving the unit rates for the basic charge 
infringes its rights. 
31 The doubts raised justify asking these questions. The Court’s answer will 
determine whether the referring court assesses as correct the decision of the 
regulatory body (President of the ORT) to deny the railway undertaking the right 
to challenge the administrative decision approving the rates of the basic charge. A 
preliminary ruling is necessary to resolve the case pending before the referring 
court. 
32 Although the national legislation does not provide the railway undertaking with 
any means of effectively challenging the unit rates for the basic charge determined 
by an administrative decision, the referring court has doubts as to whether the 
railway undertaking must nevertheless be granted the right – at the very least – to 
challenge that administrative decision of the regulatory body approving the unit 
rates for the basic charge, with the railway undertaking’s legal interest deriving 
directly from Article 30(2) of Directive 2001/14.