Opinion of the Advocate General — ECLI:EU:C:2021:1018
Date: 2021-12-16
Language of the case: Czech
Subject matter: Transport
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Czechia

Summary C-453/20 – 1 
Case C-453/20 
Summary of the order for reference pursuant to Article 98(1) of the Rules of 
Procedure of the Court of Justice 
Date lodged:  
23 September 2020 
Referring court/body:  
Úřad pro přístup k dopravní infrastruktuře (Czech Republic) 
Date lodged:  
23 September 2020 
Applicant:  
CityRail a.s. 
Infrastructure manager and operator of the service facility:  
Správa železnic, státní organizace 
  
A. Background to the main proceedings  
The Úřad pro přístup k dopravní infrastruktuře (Transport Infrastructure Access 
Authority) (‘the Authority’) assesses the legality of conditions for railway 
companies’ access to places of loading (as defined below). 
B. Factual and legal context of the request for a preliminary ruling 
1. This request for a preliminary ruling concerns the interpretation of Directive 
2012/34 1 and Article 288 of the Treaty of the Functioning of the European Union 
(‘TFEU’).  
2. The request was submitted pursuant to Article 267 TFEU by the Authority 
which is, pursuant to case-law, 2 deemed to constitute a ‘court or tribunal’ as 
defined by the latter provision, for the following reasons. 
 
1 Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 
establishing a single European railway area (‘Directive 2012/34’).  
EN 
SUMMARY OF THE ORDER FOR REFERENCE – CASE C-453/20 
 
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a) The Authority was established by Law 3 as a permanent body. The 
Authority is a central administrative authority, which is independent in 
the exercise of its powers, impartial in its proceedings and, in doing so, 
governed only by Laws and other legal regulations. It is led by its 
Chairman who is independent of the government and any other public-
law entity and may only be removed from office subject to conditions 
prescribed by law. Decisions of the Authority Chairman are subject 
only to judicial review.  
b) Proceedings before the Authority are conducted pursuant to the správní 
řád (Code of Administrative Procedure) 4 and, in these, parties to the 
proceedings may assert their rights and legal interests, present 
evidence and arguments, propose evidence and express their opinion 
with respect to claims and evidence submitted by other parties, as well 
as with respect to the background documents on which decisions are 
based, whereby the adversarial nature of the proceedings is guaranteed. 
The Authority is obliged to ascertain all facts relevant to the protection 
of the public interest.  
c) Pursuant to the judgment of the Court of Justice of 22 November 2012 
in Westbahn Management, C-136/11, EU:C:2012:740, paragraphs 26 
to 31, the Austrian regulatory entity Schienen-Control Kommission, 
which is also established pursuant to Article 55 of Directive 2012/34, 
is also a court or tribunal pursuant to Article 267 TFEU.  
C. The questions referred 
‘1. Does the place of loading and unloading for the transport of goods, 
including related tracks, constitute part of railway infrastructure as 
defined by Article 3(3) of Directive 2012/34? 
2. Is it in accordance with Directive 2012/34 that an infrastructure 
manager may at any time change prices for the use of railway 
infrastructure or service facilities to the detriment of freight 
forwarders? 
3. Is Directive 2012/34 binding for Správa železnic, státní organizace (the 
Railway Administration) pursuant to Article 288 of the Treaty on the 
Functioning of the European Union? 
      
2 Judgments of 14 June 2007, Häupl, C-246/05, EU:C:2007:340, paragraph 16; of 18 October 
2007, Österreichischer Rundfunk, C-195/06, EU:C:2007:613, paragraph 19, as well as of 
10 December 2009, Umweltanwalt von Kärnten, C-205/08, EU:C:2009:767, paragraph 35. 
3  Zákon č. 320/2016 Sb., o Úřadu pro přístup k dopravní infrastruktuře (Law No. 320/2016 on 
the Transport Infrastructure Access Authority). 
4 Zákon č. 500/2004 Sb., správní řád (Law No 500/2004, the Code of Administrative 
Procedure)(‘the  Code of Administrative Procedure’).  
CITYRAIL 
 
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4. Can the rules set out in a network statement be deemed discriminatory 
if they are not consistent with the EU legislation to which the Railway 
Administration is obliged to adhere?’ 
D. Facts of the case and arguments of the parties in the original 
proceedings  
1. The company CityRail, a.s. 5 lodged a complaint with the Railway 
Administration 6 seeking a review of a network statement, 7 specifically a 
document titled Service Facility Description, as amended as at 1 April 2020. 8 In 
its complaint, CityRail claimed that the rules set out in the Service Facility 
Description essentially eliminate competition on the market of individual 
consignments in freight transport.  
2. In this regard, the contentious rules in the Service Facility Description can 
be summarised as follows: 
a) Places of loading and unloading (‘places of loading’) are defined as 
elevated (above the track level) as well as unelevated (at track level) 
handling areas next to the track, built for the purpose of the loading of 
goods and also adjoining track for places of loading; they were 
included in the Service Facility Description on the basis of Annex II, 
point 2 to Directive 2012/34. 
b) Instead of allocating capacity pursuant to Regulation 2017/2177, the 
Railway Administration introduced reservation of capacity for long-
term use. Reservation of capacity, its cancellation, and the use of 
places of loading is free of charge.  
c) Nearly all the capacity of places of loading is reserved, regardless of 
its actual use, until Friday, when it is confirmed/released and made 
available to others for the following week (48 hours to 9 days in 
 
5 The company CityRail, a.s. is the applicant as defined by Article 3(19) of Directive 2012/34 
(‘CityRail’). Another applicant that sent its opinion to the Authority, thereby becoming actively 
involved in the proceedings, is ČD Cargo, a.s. 
6 The infrastructure manager and operator of the service facility as defined by Article 3(2) and 
3(12) of Directive 2012/34 and also the allocator as defined by Zákon č. 266/1994 Sb, o drahách 
(Law No. 266/1994 on Railways) (‘the Law on Railways’).  
7 The term ‘network statement’ as defined in Article 27 of Directive 2012/34 is the equivalent of 
the term ‘prohlášení o dráze’ (‘railway statement’) as defined by Czech legislation. 
8 A Service Facility Description is included in the network statement pursuant to Paragraph 
33(3)(l) of the Law on Railways, and Article 27 of Directive 2012/34 and Annex IV, point 6, 
thereto. Pursuant to Paragraph 33(6) of the Law on Railways and Article 5 of Commission 
Implementing Regulation (EU) 2017/2177 of 22 November 2017 on access to service facilities 
and rail-related services (‘Regulation No 2017/2177’), a Service Facility Description may be 
contained in a separate document to which the network statement merely refers.  
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advance). This essentially bars the access of subsequent long-term as 
well as ad hoc requests of other forwarders. In many cases, capacity is 
reserved for a single forwarder who requests it and to whom related 
infrastructure capacity has been allocated (for trains bringing wagons 
for loading and unloading). 
d) The Railway Administration has reserved the right to change prices 
(introduce a charge), in the form of a notice of a change of the Service 
Facility Description, at least one calendar month in advance.  
3. The rationale given for the rules by the Railway Administration is the 
following: 
- It is not possible to determine one year in advance specific days for the 
presentation of wagons for loading and their removal afterwards.  
- A disturbance on the market occurs in the event of an intervention in the rules by 
a regulatory authority. Regulation 2017/2177 does not use the term ‘reservation of 
service facility capacity’, but if the Authority prohibits reservation, capacity will 
be allocated on the same terms and the possibility of its use by another forwarder 
in the event of its cancellation (failure to confirm) one week in advance will be 
eliminated. The Railway Administration can attempt to coordinate capacity 
allocation, but once allocated it cannot take capacity away pursuant to 
Article 10(1) of Commission Regulation 2017/2177. 
- There is no legal basis for the imposition of sanctions against applicants. 
- The Railway Administration has the right to change the Service Facility 
Description as required, pursuant both to Article 27(3) of Directive 2012/34 and 
national legislation.  
E. The Authority’s Position  
1. First and foremost, the Authority raises the issue whether the inclusion of 
places of loading among service facilities as defined in Annex II, point 2, to 
Directive 2012/34 is compliant with the Directive.  
2. Furthermore, the Authority is of the view that there is discrimination, as the 
Railway Administration has introduced the term ‘reservation of service facility 
capacity’, whereby it failed to take into account, contrary to Article 11 of 
Regulation 2017/2177, the objective of securing an efficient use of available 
capacity, and failed to ensure, in breach of Article 7(2) of the same regulation, 
consistency of the allocated capacity on infrastructure and in service facilities.  
3. Furthermore, the Authority has concluded that it is difficult to introduce a 
sanction for the failure to use capacity in service facilities and nor, having regard 
to Article 31(7) of Directive 2012/34, can the levying of charges be ordered for 
the use of service facilities. 
CITYRAIL 
 
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4. In a preliminary measure, the Authority, by way of provisional measures, 
disallowed the application of certain provisions of the Service Facility 
Description, as the parties concerned are already incurring serious harm.  
F. Legal framework and reasons for referring the first question  
1. The conditions of access to railway infrastructure, as regulated in Section 3 
of Directive 2012/34, differ from the conditions of access to services set out in 
Article 13(2) to (8) of Directive 2012/34 and in Regulation 2017/2177. If places of 
loading were to be included in railway infrastructure instead of in service 
facilities, point 6 of Annex IV to Directive 2012/34 would not apply to the Service 
Facility Description, but, rather, its entire contents would have to be included 
directly in a network statement.  
2. Pursuant to Article 3(3) of Directive 2012/34 in conjunction with Annex I 
thereto, railway infrastructure includes ‘goods platforms, including in passenger 
stations and freight terminals’, without the platforms being defined.  
3. Applying teleological interpretation, the Authority leans towards the opinion 
that the purpose of the provisions of the Directive is to include in railway 
infrastructure any places designed for the loading or unloading of goods, not only 
a platform defined restrictively as an elevated platform. There is no reason why 
such places of loading should be handled differently only on the basis of whether 
they are or are not elevated.  
4. On the other hand, places of loading do constitute a part of stations and may 
constitute a part of freight terminals, which are included among service facilities 
according to Annex II, point 2, to Directive 2012/34. 
5. The Authority leans towards the opinion that also adjoining track for loading 
and unloading, which constitute a part of a place of loading, despite being a part 
of a station or freight terminal, constitute railway infrastructure, having regard to 
Annex I to Directive 2012/34, which includes sidings in such infrastructure.  
6. Furthermore, the costs expended directly on the operation of the train service 
determine the fees for the minimum access package referred to in Article 31 of 
Directive 2012/34. The calculation of direct costs on a network-wide basis is not 
to include the part of the costs of maintenance and renewal of civil infrastructure 
that is not directly incurred by operation of the train service. 9 In loading and 
unloading, costs may be incurred by the soiling or wear of platforms and access 
roads. For the purpose of charging, if places of loading were to be included in 
railway infrastructure, the term train service would need to be interpreted such as 
to also include the processes of loading and unloading.  
 
9 Article 4(1)(o) of 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.  
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7. The Authority refers to the judgment of the Court of Justice of 10 July 2019, 
WESTbahn Management, C-210/18, EU:C:2019:586, according to which 
“passenger platforms,” referred to in Annex I to Directive 2012/34 in the same 
paragraph as goods platforms, constitute a component of railway infrastructure.  
8. National legislation. Pursuant to Paragraph 3(1)(k) of Vyhláška č. 76/2017 
(Decree No. 76/2017), 10 places of loading and unloading for the transport of 
goods are operating components of a railway station, which are, pursuant to 
Paragraph 2(9) of the Law on Railways, a service facility.  
G. Legal framework and reasons for referring the second question 
1. As stated above, the Railway Administration is entitled to change the zero 
rate set out in the Service Facility Description for the use of places of loading, 
upon notice given at least one month in advance. Any such change during the 
applicability of a timetable without methodology rules and calculation tables 
being drawn up would have a financial impact on all applicants – railway 
companies, public service customers, consignors, forwarders, as well as combined 
transport operators.  
2. Article 27 of Directive 2012/34 applies to the contents, publication, and 
changes to a Service Facility Description, as a part of a network statement. 
Article 27 cannot be interpreted so broadly as to mean that a network statement 
may be changed to the detriment of forwarders at any point as required, without 
restrictions, as is the opinion of the Railway Administration. According to this 
article, a network statement must be published no less than four months in 
advance of the deadline for requests for infrastructure capacity.  
5. In this regard, recitals 44 and 52 and Article 30(2) of Directive 2012/34, and 
Annex I, point 2, and Annex V, point 2, thereto are also relevant, in terms of 
ensuring transparency, foreseeability and legal certainty.  
6. Charging for places of loading may also be viewed as introducing essential 
elements into the charging system and thus be subject to the deadline set in 
Article 32(6) of Directive 2012/34 (publication three months in advance of the 
publication of a network statement).  
4. National legislation. Pursuant to Paragraph 33(1) of the Law on Railways, 
the Railway Administration as the allocator is to draw up a network statement and 
to publish it twelve months in advance of the day on which the timetable comes 
into force and, at least thirty days prior to that publication, it is to make it possible 
for interested stakeholders to submit their opinion. According to Paragraph 33(5) 
 
10 Vyhláška Ministerstva dopravy č. 76/2017 Sb., o obsahu a rozsahu služeb poskytovaných 
dopravci provozovatelem dráhy a provozovatelem zařízení služeb (Decree of the Ministry of 
Transport No. 76/2017 on the contents and scope of services provided to a forwarder by a 
railway operator and operator of a service facility).  
CITYRAIL 
 
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of that Law, should a network statement change, the allocator must again publish 
that change. The Law on Railways does not stipulate the possibility for 
stakeholders to submit their opinion on such a change prior to its publication.  
H. Legal framework and reasons for referring the third question 
1. According to the Authority, the fact that places of loading are included 
among service facilities constitutes an incorrect implementation of Directive 
2012/34. In that case, can the Authority therefore apply the direct effect of 
Directive 2012/34 vis-à-vis the Railway Administration and can CityRail claim 
the direct effect of the Directive with respect to the Railway Administration in a 
situation when the failure to apply the Directive would result in a restriction of the 
company’s right to obtaining access to places of loading?  
2. The Authority points to paragraph 18 of the judgment of the Court of Justice 
of 12 July 1990, A. Foster and Others v. British Gas plc, C-188/89, 
EU:C:1990:313, and notes that the Railway Administration is subject to the 
sovereign power of the State and to State supervision, thereby meeting the criteria 
of paragraph 18 of the judgment, and the Railway Administration may be assumed 
to constitute the State as provided for in Article 288 TFEU.  
3. It is, however, not clear to the Authority whether the Railway 
Administration is obliged to apply Directive 2012/34 directly or whether it is 
bound solely by the national transposition. The answer to this question will 
influence the Authority’s position as to whether the Railway Administration has 
breached the law.  
4. National legislation. The Railway Administration was established by Zákon 
77/2002 Sb., o akciové společnosti České dráhy a státní organizaci Správa 
železniční dopravní cesty (Law 77/2002 on the joint-stock company České dráhy 
(Czech Railways) and the state organisation Správa železniční dopravní cesty 
(Railway Track Administration)), pursuant to which the state guarantees its 
obligations; the organisation only manages state assets, members of its executive 
body are appointed and recalled by the government, and it pursues its activity 
(operation of a transport route) in the public interest.  
I. Legal framework and reasons for referring the fourth question 
1. Having regard to Article 56 of Directive 2012/34 and pursuant to Paragraph 
34e(1) of the Law on Railways, the Authority is entitled to assess only whether a 
network statement complies with the Law on Railways, but not whether it 
complies with directly applicable EU legislation.  
2. Should questions 1 and 3 be answered in the affirmative, the Authority takes 
the view that conflict arises between the network statement and Directive 2012/34, 
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but in principle not with the Law on Railways, with the exception of Paragraph 
33(1) of the Law, which demands rules to be non-discriminatory. 
3. The purpose of Article 56 would therefore be met if the Authority could find 
the rules contained in the network statement discriminatory in so far as they 
contravene directly applicable EU legislation.