Opinion of the Advocate General — ECLI:EU:C:2012:792
Date: 2012-12-13
Based on: Treaty on the Functioning of the European Union (consolidated version 2008)
Subject matter: Transport
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: France

Summary — Judgment of the Court (First Chamber), 18 April 2013 1. Actions for failure to fulfil obligations — Examination of the merits by the Court — Situation to be taken into consideration — Situation on expiry of the period laid down in the reasoned opinion (Art. 258 TFEU) 2. Transport — Common policy — Development of the Community’s railways — Separation between infrastructure management and transport operations — Essential functions having to be entrusted to an independent body — Meaning — Conducting technical implementation studies necessary for scrutinising applications for train paths carried out before a decision is taken and for the last-minute allocation of train paths — Included (European Parliament and Council Directive 2001/14, Art. 14(2); Council Directive 91/440, Art. 6(3) and Annex II) 3. Transport — Rail transport — Directive 2001/14 — Allocation of railway infrastructure capacity and levying of charges — Levying of charges for the use of infrastructure — Obligations of the Member States — Putting in place a performance scheme — Scope (European Parliament and Council Directive 2001/14, Art. 11(1) and (2)) 4. Transport — Rail transport – Directive 2001/14 — Allocation of railway infrastructure capacity and levying of charges — Levying of charges for the use of infrastructure — Obligations of the Member States — Introducing incentives to encourage the infrastructure manager to limit the costs of providing infrastructure and to reduce the level of the access charges — No obligation to make provision for separate measures (European Parliament and Council Directive 2001/14, Arts 6(2) and (3), 7(3) and 8(1)) 1. See the text of the decision. (see para. 43) 2. Under Annex II to Directive 91/440 on the development of the Community’s railways the following are deemed to be essential functions within the meaning of Article 6(3): preparation and decision-making related to the licensing of railway undertakings, decision-making related to the path allocation including both the definition and the assessment of availability and the allocation of individual train paths, decision-making related to infrastructure charging and monitoring observance of public service obligations required in the provision of certain services. It follows from that list that a railway undertaking may not be entrusted with conducting the technical implementation studies necessary for scrutinising applications for train paths carried out before a decision is taken and for the last-minute allocation of train paths, because those studies form part of the definition and assessment of the availability of train paths, and because the last-minute allocation of train paths constitutes an allocation of individual train paths for the purposes of Annex II to Directive 91/440 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure; those functions therefore must be entrusted to an independent body. Indeed, Article 14(2) of Directive 2001/14 provides that entities responsible for the functions of allocating train paths must be independent in their legal form, organisation and decision-making functions. (see paras 46-48) 3. It follows from Article 11(1) of Directive 2001/14 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure, first, that the Member States must include in infrastructure charging schemes a performance scheme the purpose of which is to encourage both railway undertakings and the infrastructure manager to improve network performance. Second, as regards the types of incentive which may be introduced by the Member States, the latter remain free to choose the specific measures that are to form part of the scheme, provided such measures constitute a coherent and transparent whole which may be described as a ‘performance scheme’. In that regard, a scheme which takes the form of a specific charge to be levied on the fee for reserving freight paths with a total length greater than 300 km and a speed of not less than 70 km/h does not form a coherent and transparent whole which can be described as a performance scheme within the meaning of Article 11 of Directive 2001/14. Indeed, Article 11 requires Member States actually to set up a performance scheme as part of the charging scheme. Moreover, provisions for compensating the infrastructure manager for non-use of a train path, responsibility for which may be attributed to the railway undertaking, and for compensating the railway undertaking as a result of the withdrawal of train paths, for which the manager is responsible, do not constitute a performance scheme either. Finally, with regard to the introduction, on an experimental basis, of a specific performance scheme mechanism as provided for by a performance contract, that mechanism is solely the responsibility of the infrastructure manager. Thus, the performance contract does not constitute a performance scheme that encourages not only the infrastructure manager but also the railway undertakings. Furthermore, under Article 11(2) of Directive 2001/14, the basic principles of the performance scheme apply to the network. The provisions of the performance contract are, however, limited to the freight network. (see paras 70, 72-74) 4. It is clear from Article 6(2) and (3) of Directive 2001/14 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure that it is open to Member States to implement incentive measures to reduce railway infrastructure costs and the level of access charges through a multi-annual contractual agreement or through regulatory provisions. However, there is no provision that such incentives must be adopted as separate measures. Moreover, the incentives to reduce the costs of provision of infrastructure can only have the effect of reducing the level of access charges, irrespective of whether those charges are set on the basis of Article 7(3) of Directive 2001/14 or on that of Article 8(1) of the directive. (see paras 78, 83, 86)