Information;Order — ECLI:EU:C:2022:851
Date: 2022-10-26
Language of the case: Czech
Court formation: Ninth Chamber
Subject matter: Provisions governing the Institutions;Transport;Acts of the institutions
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Czechia

Summary C-104/21 – 1 
Case C-104/21 
Summary of the order for reference pursuant to Article 98(1) of the Rules of 
Procedure of the Court of Justice 
Date lodged:  
19 February 2021 
Referring court:  
Úřad pro přístup k dopravní infrastruktuře (Czech Republic) 
Date lodged:  
19 February 2021 
Applicant:  
RegioJet a. s. 
Defendant:  
České dráhy a.s. 
  
 Background to the main proceedings 
The Úřad pro přístup k dopravní infrastruktuře (‘Transport Infrastructure Access 
Authority’) (‘the Authority’) is adjudicating on an application concerning the 
imposition of an obligation on the operator of information media for passengers in 
paper form placed at railway stations – České dráhy, a. s., (Czech Rail) which is, 
at the same time, a railway undertaking – to ensure access by other railway 
undertakings to that media.  
Factual and legal context of the request for a preliminary ruling 
The substance of the request for a preliminary ruling is to establish whether 
information media for passengers in paper form placed at railway stations 
constitutes a service facility, as defined by Article 3(11) of Directive 2012/34, in 
conjunction with point 2(a) of Annex II thereto. Both the Applicant and the 
Authority consider that media to constitute service facilities as defined by the 
provisions referred to above, while the Defendant refuses that interpretation, 
pointing to provisions of national legislation implementing the Directive. The 
EN 
SUMMARY OF THE ORDER FOR REFERENCE – CASE C-104/21 
 
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Authority therefore questions whether the Directive has been implemented into 
the Czech legal system correctly and enquires about the possibility of relying on 
the Directive’s direct effect against the Defendant, which is in the form of a public 
limited liability company under private law, but which is fully owned and 
controlled by the State.  
The legal basis of the request for a preliminary ruling is Article 267 TFEU. As 
concerns the standing to refer the preliminary issue to the Court of Justice on that 
basis, the Authority refers to the relevant parts of the reasons stated in its order for 
reference in Case C-453/20, CityRail, and to the judgment of the Court of Justice 
of 22 November 2012, Westbahn Management (C-136/11, EU:C:2012:740). 
The questions referred  
1. Do information media featuring information for passengers in paper form 
that are placed on the premises of a railway station constitute a service 
facility, as defined by Article 3 [point] 11 of Directive 2012/34? 
2. Is Directive 2012/34 binding for České dráhy, a.s., as the State in the 
broader sense of the word, pursuant to Article 288 of the Treaty on the 
Functioning of the European Union? Can individuals rely on the direct effect 
of an incorrectly transposed or untransposed directive against České dráhy, 
a.s.? 
Applicable European legislation  
Treaty on the Functioning of the European Union (‘TFEU’): Article 288, third 
sub-paragraph; 
Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 
23 October 2007 on rail passengers’ rights and obligations (OJ 2007 L 315, p. 14; 
‘Regulation No 1371/2007’): Articles 7 and 8, Annex II 
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; ‘Directive No 2012/34’): Article 3 points 1 and 11, Annex II, point 2(a) 
Applicable case-law of the Court of Justice of the European Union 
Judgment of 12 July 1990, Foster and Others (C-188/89, EU:C:1990:313, 
paragraph 18); 
Judgment of 22 November 2012, Westbahn Management (C-136/11, 
EU:C:2012:740, paragraphs 26 to 31). 
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Applicable national legislation  
Zákon č. 266/1994 Sb., o dráhách (Law 266/1994 on Rail Systems) (‘the Law on 
Rail Systems’): 
– Paragraph 2(9), of the version applicable until 14 January 2020, pursuant to 
which a service facility includes technical facilities used for the provision of 
services immediately related to the operation of rail transport;  
– Paragraph 2(9), of the version applicable from 15 January 2020, pursuant to 
which a service facility includes technical facilities specifically designated by 
their operator for the provision of services immediately related to the operation 
of rail transport;  
– Paragraph 23d(4), pursuant to which the Authority, at the request of a person 
who has been denied, in full or in part, a service by the operator of a service 
facility in violation of this Law, shall impose an obligation on the operator of 
the service facility to enter into an agreement with the applicant, allowing at 
least limited provision of the services concerned. 
Zákon č. 77/2002 Sb., o akciové společnosti České dráhy a státní organizaci 
Správa železniční dopravní cesty (Law No 77/2002, on the public limited liability 
company Czech Rail and on the Rail Administration, state organisation)  (‘Law 
77/2002’): Paragraph 3(1), Paragraph 4(1), Paragraph 5(1), Paragraph 8(2), 
Paragraph 9, Paragraph 12(1) and (3). 
Vyhláška č. 173/1995 Sb., kterou se vydává dopravní řád drah (Decree 173/1995 
issuing the rail transportation rules) (‘Decree No 173/1995’): Paragraph 73(1) and 
(4). 
Vyhláška č. 76/2017 Sb., o obsahu a rozsahu služeb poskytovaných dopravci 
provozovatelem dráhy a provozovatelem zařízení služeb (Decree No 76/2016 on 
the contents and scope of services provided to a carrier by a rail operator and by 
an operator of a service facility) (‘Decree No 76/2017’): Paragraph 3(1)(a) 
Facts of the case and original proceedings  
1 RegioJet a.s. (‘RegioJet’) is a railway undertaking, as defined by Article 3(1) of 
Directive No 2012/34.  
2 České dráhy a.s. (‘ČD’) is also a railway undertaking, as defined by Article 3(1) 
of Directive No 2012/34, which operates approximately 85% of rail passenger 
transport in the Czech Republic and is, at the same time, a competitor of RegioJet. 
3 On 16 October 2020 RegioJet submitted an application to the Authority proposing 
that the Authority, pursuant to Paragraph 23d(4) of the Law on Rail Systems, 
impose on ČD, as a service facility operator, the obligation to enter into an 
SUMMARY OF THE ORDER FOR REFERENCE – CASE C-104/21 
 
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agreement with the applicant on the provision of information system media 
services at selected railway stations. In particular, RegioJet sought access to 
information media for passengers in paper form, namely to stands, click-frames, 
display cases and notice boards (‘media’) owned by ČD. These media are located 
on the premises of railway stations owned by the rail operator, the state 
organisation Správa železnic (‘the Railway Administration’).  
4 ČD has entered into an ‘agreement on the regulation of information systems 
media’ with the rail operator, which governs the placement of approximately 
7,000 media at practically all stations in the Czech Republic. The quid pro quo for 
the placement is a benefit in kind whereby the Railway Administration may use 
some of that media for its own use, e.g., for its own commercial advertising (staff 
recruitment) or for providing information to passengers (railway maps, track 
schedules featuring trains of all carriers, instructions for passengers). 
5 Carriers may request the rail operator’s consent to the placement of their own 
media at stations. The rail operator does not allow any carriers aside from ČD to 
place their media for consideration in the form of a benefit in kind and demands a 
financial consideration for the placement of that media.  
Basic arguments of the parties to the original proceedings 
6 RegioJet considers itself harmed by the differing conditions for the placement of 
media. Furthermore, the areas for the placement of such media at stations are 
limited and the effect of the information provided therein depends on the specific 
position of the media with a view to passenger flow. RegioJet seeks comparable 
conditions for all carriers.  
7 Essentially, RegioJet claims that the contested media constitute service facilities 
as defined by Article 3(11) of Directive No 2012/34 and Paragraph 3(1)(a) of 
Decree No 76/2017, as media for information systems for passengers. 
8 ČD rejects the opinion that media constitute a service facility. In its argument, it 
relies on the definition of a service facility in Article 3(11) of Directive 
No 2012/34 and in Paragraph 2(9) of the Law on Rail Systems, in the version 
applicable from 15 January 2020. It takes the view that of the essence is the 
expression of will of the operator of the facility, who decides whether such a 
facility is to be used for the provision of services pursuant to Annex II to the 
Directive. Furthermore, it points to the definition of the term ‘information system’ 
which, according to ČD, means an electronic IT system whose individual 
components – because it is a system – interact with one another in real time.  
Summary of the grounds for the order for reference  
9 During the proceedings, the Authority concluded that ČD had designated the 
media a service facility, by its decision to provide information therein pursuant to 
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Paragraph 3(1)(a) of Decree No 76/2017, meaning ‘information about train arrival 
and departures, service interruptions, services of carriers and other transport links 
within integrated transport systems’. The Authority interpreted the term 
‘information system’ with a view to Paragraph 73(4) of Decree No 173/1995, 
according to which a predicted restriction in rail transport ‘shall be announced on 
information boards located at stations’. The definition in Paragraph 2(9) of the 
Law on Rail Systems nevertheless gives an operator latitude to determine what it 
will include among service facilities.  
The first question 
10 The question whether media constitute service facilities is of the essence for the 
decision on the merits of the matter and concerns interpretation of EU law, as the 
term ‘service facility’ is harmonised in Article 3(11) of Directive No 2012/34, so 
it should be interpreted similarly by all Member States.  
11 The dispute primarily concerns the term ‘information system’ used by the Czech 
Decree. It transposes point 2(a) of Annex II to Directive No 2012/34, pursuant to 
which a service facility also includes ‘travel information displays.’ The term 
‘display facilities’ may be given varied interpretations, but a reference can be 
made to the French version of the Directive which uses the term ‘affichage’, 
which could be interpreted as information board, poster, or notice board.  
12 In addition, a teleological interpretation may lead to the conclusion that the 
purpose of the Directive is that a service facility should include any facility for the 
display of travel information, regardless of whether or not that facility is 
electronic.  
13 Furthermore, Articles 7 and 8, in conjunction with Annex II to Regulation 
No 1371/2007, set out the extent of information to be mandatorily provided by a 
railway undertaking. Not all information is provided in electronic form; certain 
railway stations are not equipped with electronic systems. Schedules, information 
about service interruptions that may cause train delays or cancellations, and 
conditions of carriage (including prices) are also provided in the form of an 
information board. 
14 With a view to a linguistic and teleological interpretation of point 2(a) of Annex II 
to Directive No 2012/34, the Authority maintains that the media are facilities for 
displaying travel information and do constitute a service facility, as defined by 
Article 3(11) of Directive No 2012/34. 
15 The contentious issue is that the media may feature information which is not 
intended exclusively for passenger carriage. There may be recruitment fliers for 
employees, product offerings of individual carriers, or other advertising that goes 
beyond the scope of the provision of services. ČD argues that a change in contents 
cannot change whether the media are classified as service facilities. The Authority 
maintains that even facilities not used for the provision of services have been 
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established to allow for their provision. Hence, they should constitute service 
facilities even if, at a given time, there is no need to provide information to 
passengers through them. 
16 Furthermore, ČD argues that companies other than carriers place the same media 
on the premises of railway stations for commercial advertising purposes. The 
Authority does not, however, qualify those media as service facilities. According 
to the Authority, a railway operator may permit the placement of such media only 
if there is sufficient room for media serving as service facilities displaying travel 
information. Media with commercial advertising do not fall within the sphere of 
competence of the regulatory authority; fees for their placement are not subject to 
price regulation. Electronic information facilities, too, permit commercial 
advertising in practice, as long as it does not limit the extent and quality of the 
provision of travel information. 
17 The obligation to provide media as service facilities, subject to the conditions 
stipulated by Directive No 2012/34, should be limited to the provision to 
passengers of information whose contents are established by binding legislation. 
A service facility operator should not be obliged to provide media to carriers for 
advertising and promotional purposes.  
18 The premises of a station for the placement of media (e.g., walls, floors) could 
also be classified as service facilities. Such an interpretation would not, however, 
be compliant with the definition in Article 3(11) of Directive No 2012/34. 
19 Given that the opinions concerning the interpretation differ, the Authority requests 
a preliminary ruling as to whether the media in question constitute service 
facilities.  
The second question 
20 The Authority points to the change in the definition of a service facility in 
Paragraph 2(9) of the Law on Rail Systems, effective from 15 January 2020 (see 
the section ‘Applicable national legislation’ above). The Authority takes the view 
that that was a change from a substantive to a formalistic approach. Whereas 
before, the Law designated as service facilities those facilities that are used for 
that purpose, now such facilities must be specifically designated by their operator 
as service facilities. That definition differs from Article 3(11) of Directive 
No 2012/34, according to which a ‘service facility means the installation, 
including ground area, building and equipment, which has been specially 
arranged, as a whole or in part, to allow the supply of one or more services 
referred to in points 2 to 4 of Annex II’. That definition likewise gives precedence 
to the factual situation. The Authority maintains that the transposition is incorrect.  
21 Nevertheless, directives have a direct effect only upon States (see Article 288 
TFEU), not upon persons under private law. If a law is less restrictive to a person 
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under private law than is the Directive, the direct effects of the Directive cannot 
be enforced with respect to that person. 
22 The question remains, nevertheless, whether the public limited liability company 
ČD can be considered the State in a broader sense of the word. If so, it would be 
subject to the direct effect of directives and it would have to adhere to the relevant 
provisions of the directive directly.  
23 That issue is fundamental for the evaluation of whether, if the answer to the first 
question is in the affirmative, the Authority must assess if the media are service 
facilities in the light of to the definition provided in Paragraph 2(9) of the Law on 
Rail Systems, or in the light of the definition provided in Article 3(11) of 
Directive No 2012/34. 
24 The Authority points to paragraph 18 of the judgment of the Court of Justice of 
12 July 1990, Foster and Others (C-188/89, EU:C:1990:313; ‘judgment in 
Foster’), in accordance with which the Court of Justice has accepted in many 
cases that unconditional and sufficiently precise provisions of a directive could be 
relied on against organisations or bodies which were subject to the authority or 
control of the State or had special powers beyond those which result from the 
normal rules applicable to relations between individuals.  
25 ČD was established on the basis of Law No 77/2002 and subject to the prior 
consent of the government of the Czech Republic. The State is the company’s sole 
shareholder, its shares are negotiable only with the prior consent of the 
government. According to the Law, the State exercises its shareholder rights via a 
steering committee whose members are appointed by the government. According 
to the company’s Articles of Association, the steering committee fulfils the 
extensive competences of a general meeting, including the election and recall of 
Supervisory Board members. According to the Articles of Association, the 
Supervisory Board elects and recalls members of the Management Board. An 
amendment to the Articles of Association falls within the competence of the 
general meeting, hence, the State as the sole shareholder, through the steering 
committee.  
26 It follows from applicable provisions of Law No 77/2002 and from the ČD 
Articles of Association that the company is subject to the authority of the State 
and to its supervision. This means that two of the three conditions listed in 
point 18 of the judgment in Foster have been met. In order for individuals to be 
able to rely on the provisions of the Directive against ČD, only one of the three 
conditions listed in the judgment must be met. The Authority therefore maintains 
that ČD must be considered the State in a broader sense of the word, and as being 
bound by directives. 
27 If the answer to the first question is in the affirmative, the unconditional and 
sufficiently precise interpretation of Directive No 2012/34 will be such that the 
media do constitute service facilities pursuant to Article 3(11) of the Directive. It 
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will not, however, be clear whether the Authority may apply the Directive to ČD 
directly (and whether RegioJet may also directly rely on the Directive against ČD) 
or whether ČD is bound solely by its national transposition.