Opinion of the Advocate General — ECLI:EU:C:2022:79
Date: 2022-02-03
Language of the case: German
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Austria

Translation C-500/20 – 1 
Case C-500/20 
Request for a preliminary ruling 
Date lodged: 
6 October 2020 
Referring court: 
Oberster Gerichtshof (Austria) 
Date of the decision to refer: 
6 August 2020 
Applicant and respondent in the appeal on a point of law: 
Lokomotion Gesellschaft für Schienentraktion mbH 
Defendant and appellant in the appeal on a point of law: 
ÖBB-Infrastruktur Aktiengesellschaft 
  
In the case of the applicant, Lokomotion Gesellschaft für Schienentraktion mbH, 
… Munich, Germany … versus the defendant, ÖBB-Infrastruktur 
Aktiengesellschaft, … Vienna …, for the amount of EUR 639,110 plus interest 
and costs, in the appeal proceedings brought by the defendant against the order of 
the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria), acting in 
its capacity as the Court of Appeal, of 29 July 2019 …, by which the partial 
judgment of the Handelsgericht Wien (Commercial Court, Vienna, Austria) of 
1 April 2019 … was set aside further to an appeal by the applicant, the Oberster 
Gerichtshof (Supreme Court, Austria) … … made the following 
O R D E R 
I. The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: [Or. 2] 
1. Is the Court of Justice of the European Union competent to interpret the 
Uniform Rules concerning the Contract of Use of Infrastructure in International 
Rail Traffic (CUI; Appendix E to the Convention concerning International 
Carriage by Rail [COTIF])? 
EN 
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2. If the first question is answered in the affirmative:  
Is Article 8(1)(b) CUI to be interpreted in such a way that the liability of the 
manager for loss of or damage to property as codified therein also includes the 
costs incurred by the carrier as a result of having to lease locomotives to replace 
his existing locomotives due to damage caused to them? 
3. If the first question is answered in the affirmative and the second question in 
the negative:  
Are Articles 4 and 19(1) CUI to  interpreted to the effect that the parties to the 
contract may effectively assume greater liability by means of a blanket reference 
to national law, if this means that, in derogation from strict liability in accordance 
with CUI, liability is conditional upon fault, even though the extent of liability is 
greater? 
II. … [Stay of proceedings] 
G r o u n d s: 
1. A. Facts 
2. The applicant is a private railway firm with its registered office in Germany. It 
provides its customers, in particular, with locomotives for [Or. 3] the purpose of 
unaccompanied combined transport and other types of transport. 
3. The defendant is an Austrian railway infrastructure firm, which operates, among 
other things, the rail infrastructure in the area around Kufstein railway station in 
Austria. 
4. In December 2014, the parties in dispute concluded a contract on the use of the 
defendant’s rail infrastructure for international transport, in accordance with 
which the applicant has the right to use the rail infrastructure made available by 
the defendant in return for a fee and in accordance with the relevant train paths 
agreement. That contract includes the defendant’s General Terms and Conditions 
of Business relating to the Infrastructure Use Contract (‘the GTCs’). 
5. The first paragraph in point 20 in those GTCs under the heading ‘Liability’ 
stipulates the following: 
‘The contractual partners shall accept liability in accordance with the statutory 
provisions and the provisions of international law, particularly those in the 
Allgemeines Bürgerliches Gesetzbuch (General Civil Code of Austria; ABGB), the 
Unternehmensgesetzbuch (Company Code; UGB), the Eisenbahn- und 
Kraftfahrzeughaftpflichtgesetz (Austrian Law on railway and motor vehicle third-
party liability; EKHG) and the CUI, unless these GTCs contain provisions to the 
contrary.’ 
6. Point 34 of the GTCs contains the agreement that the contract is subject to 
Austrian law to the exclusion of the referral rules of the Bundesgesetz über das 
LOKOMOTION 
 
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internationale Privatrecht (Austrian Federal Law on conflict of laws; IPRG) and 
the United Nations Convention on Contracts for the International Sale of Goods. 
7. On 15 July 2015, a train consisting of six locomotives belonging to the applicant 
derailed in Kufstein station, causing damage to two of the applicant’s 
locomotives. The damaged locomotives were unfit for use for the duration of the 
repair work, which meant that the applicant had to lease two [Or. 4] locomotives 
to replace them. The applicant thereby incurred costs. 
8. B. Arguments of the parties 
9. The applicant is claiming from the defendant, in so far as relevant in the appeal 
proceedings before the Oberster Gerichtshof (Supreme Court), EUR 629,110 (plus 
interest and costs) for the costs of leasing the replacement locomotives as a result 
of the accident. It claims that the accident was caused by a (specified) 
shortcoming in the rail infrastructure provided by the defendant. The defendant 
unlawfully and culpably breached its duties of proper manufacture, inspection, 
service, maintenance and repair of the rails as codified in the provisions of railway 
law. The costs of leasing the replacement locomotives are to be regarded as loss of 
or damage to property as referred to in Article 8(1)(b) CUI. 
10. The defendant objects to the extent that it believes that the rail infrastructure was 
not defective. The accident was attributable to a loose coupling hook on the 
derailed locomotives that was already under excessive strain before derailment, 
and that the applicant is at fault. The defendant claims that mere pecuniary loss 
has been suffered, which is not eligible for compensation in accordance with the 
applicable legal provisions of the CUI. 
11. C. Proceedings to date 
12. The Court of First Instance dismissed the form of order sought by the applicant 
for EUR 629,110, plus interest and costs, by partial judgment. It held the legal 
opinion that the applicable Uniform Rules concerning the Contract of Use of 
Infrastructure in International Rail Traffic (CUI), as a sole liability system, in 
accordance with Article 19(1) therein, would displace all other national liability 
rules. The court stated that the definition of ‘loss of or damage to property’ in 
Article 8(1)(b) CUI is limited to the [Or. 5] destruction of or damage to moveable 
or immoveable property. The lease costs claimed for are, however, mere 
pecuniary losses, which are not covered by Article 8(1)(b) or Article 8(1)(c) CUI 
and are therefore not eligible for compensation. Point 20 of the GTCs does not 
constitute any agreement in accordance with Article 8(4) CUI that would give rise 
to liability on the part of the defendant in accordance with national rules. 
13. The Court of Appeal set aside the partial judgment by the Court of First Instance 
and ordered it to reach a new decision after additional proceedings. It held the 
view that the term ‘loss of or damage to property’ in the provision on liability in 
Article 8(1)(b) CUI could be understood to have a broad meaning and would also 
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cover ‘secondary loss of or damage to property’ such as the leasing costs being 
claimed here. 
14. The Oberster Gerichtshof (Supreme Court) must decide on an appeal brought by 
the defendant against the decision by the Court of Appeal to set aside the 
judgment. 
15. The Oberster Gerichtshof (Supreme Court) has ordered that the proceedings of the 
appeal on a point of law be stayed and the questions of EU law material to the 
decision in the case be referred to the Court of Justice of the European Union. 
16. D. Applicable international law 
The Convention concerning International Carriage by Rail (COTIF) of 9 May 
1980 contains seven appendices, which form integral parts of the Convention, 
including the Uniform Rules concerning the Contract of Use of Infrastructure in 
International Rail Traffic (CUI; Appendix E concerning International Carriage by 
Rail [Or. 6] (COTIF)). The provisions of the CUI that are relevant to the present 
case read as follows: 
‘Article 4 – Mandatory law 
Unless provided otherwise in these Uniform Rules, any stipulation which, directly 
or indirectly, would derogate from these Uniform Rules, shall be null and void. 
The nullity of such a stipulation shall not involve the nullity of other provisions of 
the contract. Nevertheless, the parties to the contract may assume a liability 
greater and obligations more burdensome than those provided for in these 
Uniform Rules or fix a maximum amount of compensation for loss of or damage to 
property. 
… 
Article 8 – Liability of the manager 
Section 1 The manager shall be liable 
a) for bodily loss or damage (death, injury or any other physical or mental 
harm), 
b) for loss of or damage to property (destruction of, or damage to, movable or 
immovable property), 
c) for pecuniary loss resulting from damages payable by the carrier under the 
CIV Uniform Rules and the CIM Uniform Rules, 
caused to the carrier or to his auxiliaries during the use of the infrastructure and 
having its origin in the infrastructure. 
… 
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Section 4 The parties to the contract may agree whether and to what extent the 
manager shall be liable for the loss or damage caused to the carrier by delay or 
disruption to his operations. 
… 
Article 9 – Liability of the carrier 
… 
Article 19 – Other actions 
Section 1 In all cases where these Uniform Rules shall apply, any action in 
respect of liability, on whatever grounds, may be brought against the manager or 
against the carrier [Or. 7] only subject to the conditions and limitations laid 
down in these Uniform Rules. 
…’ 
17. E. National law 
18. Paragraph 1293 et seq. ABGB codify the liability for compensation for losses on 
the basis of fault of the person who caused the loss or damage. In contractual 
relationships, as in the present case, the liable party is required to prove that it is 
not at fault with regard to non-compliance with its contractual obligations 
(Paragraph 1298 ABGB). The liable party must be responsible for the fault of its 
employees (Paragraph 1313a ABGB). Subject to the (as-yet un-established) 
condition of fault being attributable to the defendant, the lease costs being claimed 
for the replacement locomotives are eligible for compensation in accordance with 
national law. 
19. F. Grounds for the questions referred 
20. 1. Question 1: 
21. In accordance with Article 1 of the Agreement of 3 June 1999 between the 
European Union and the Intergovernmental Organisation for International 
Carriage by Rail on the Accession of the European Union to the Convention 
concerning International Carriage by Rail (COTIF) of 9 May 1980, in the version 
as amended by the Vilnius Protocol, the European Union acceded to that 
Convention under the conditions stated in the Agreement in accordance with 
Article 38 of the Convention (OJ 2013 L 51, p. 8). 
22. That Agreement was approved in accordance with Article 1 of Council Decision 
of 16 June 2011 on the signing and conclusion of the Agreement between the 
European Union and the Intergovernmental Organisation for International [Or. 8] 
Carriage by Rail on the Accession of the European Union to the Convention 
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concerning International Carriage by Rail (COTIF) of 9 May 1980, in the version 
as amended by the Vilnius Protocol of 3 June 1999 (OJ 2013 L 51, p. 1). 
23. In accordance with Annex I (Declaration by the European Union concerning the 
exercise of competence) to this Council Decision, the European Union shares 
competence in the rail sector with the Member States of the Union pursuant to 
Articles 90 and 91, together with Article 100(1), and Articles 171 and 172 of the 
Treaty on the Functioning of the European Union (TFEU). Under Union law, the 
Union has acquired exclusive competence in matters of rail transport where the 
Convention concerning International Carriage by Rail (COTIF) of 9 May 1980, in 
the version as amended by the Vilnius Protocol of 3 June 1999 (‘the Convention’) 
or legal instruments adopted pursuant to it may affect or alter the scope of these 
existing Union rules. For subject matters governed by the Convention in relation 
to which the Union has exclusive competence, Member States have no 
competence. Where Union rules exist but are not affected by the Convention or 
legal instruments adopted pursuant to it, the Union shares competence on matters 
in relation to the Convention with Member States (OJ 2013 L 51, p. 3). 
24. It therefore involves a mixed Convention, whereby the Declaration by the [Or. 9] 
European Union does not state with any absolute clarity the areas of COTIF in 
which the Union has exclusive competence and those in which it shares 
competence with the Member States. 
25. Commentary in the literature has described the competence of the Court of Justice 
of the European Union for references for a preliminary ruling on mixed 
conventions as unclear …. It seems likely in this specific case that the Court has 
comprehensive competence, because the Union, at least according to its own 
declaration, is, in principle, competent in all areas of the Convention; there is only 
a lack of clarity with regard to the extent of exclusive competence. Nevertheless, 
in view of the doubt expressed in the literature, it is not entirely clear whether the 
Court of Justice of the European Union is actually competent in the present case.  
To this extent nothing can be inferred from its decision in the case C-261/15, 
Demey, since, in that case, although the Court of Justice interpreted the CIV 
(Appendix A to COTIF), its application was directed by Regulation (EC) 
No 1371/2007, so that there was no doubt as to the existence of a legal act under 
EU law and therefore the act of an institution as referred to in Article 267 TFEU. 
The same is not true in relation to the CUI. 
26. 2. Question 2: 
27. The leasing costs for the replacement locomotives leased as a result of damage to 
locomotives do not, by themselves, constitute ‘loss of or damage to property’ that 
exists in the ‘destruction of, or damage to, movable or immovable property’ 
(Article 8(1)(b) CUI). [Or. 10] However, these costs are so closely related to the 
damage caused to the applicant’s locomotives that they could be regarded as 
‘secondary loss of or damage to property’, as in the view of the Court of Appeal. 
LOKOMOTION 
 
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It is therefore unclear whether the leasing costs claimed for are eligible for 
compensation in accordance with the cited provision. 
28. 3. Question 3: 
29. Should the Court of Justice deem the leasing costs being claimed for as not 
covered by Article 8(1)(b) CUI, the third question arises. If it is answered in the 
affirmative, the liability for fault in accordance with ABGB will need to be 
examined. If it is answered in the negative, the claim is not justified. It is therefore 
of decisive importance whether 
30. (a) the blanket reference to a national body of laws can be understood at all as 
constituting a derogating stipulation as referred to in Article 4 CUI, and 
31. (b) if this body of laws is stricter than this Convention in relation to grounds 
for liability (due to the requirement of fault in the present case), but provides for 
further claims if the existing extent of liability applies, this could actually be 
regarded in this case as ‘assuming greater liability’ in the sense of Article 4 CUI. 
32. In the view of the referring court, the second of these questions could well only be 
answered in the affirmative if, when assessing the ‘assumption of greater 
liability’, reference were not made to the body of laws as such, but rather the 
outcome of its application in the individual case. Article 4 CUI does not clearly 
indicate whether this is the case. 
33. G. … [national proceedings] [Or. 11] 
Supreme Court, 
Vienna, 6 August 2020 
…