Judgment;Abstract — ECLI:EU:C:2026:218
Date: 2026-03-19
Language of the case: German
Court formation: Fourth Chamber
Procedure: Reference for a preliminary ruling
Origin: Germany

summary, the Court of Justice held that determination of the usage charges is a 
necessary element of the management independence of the infrastructure manager. 
According to the referring court’s interpretation, the infrastructure manager’s 
decision may neither be replaced by the State nor overridden beyond certain 
limits; it must retain a ‘certain’ latitude that is actually discernible. That requires, 
in any event, decisions involving choices and assessments as to the factors or 
parameters on which charging determinations are to be based. 
b. On the basis of the above considerations, the referring court takes the view that 
determination of the charges as prescribed in Paragraph 37(2) of the ERegG 
undermines the infrastructure manager’s latitude and infringes upon its 
management independence. 
In that regard, it should be noted, in view of the importance of the infrastructure 
manager’s business decision, that charges for the use of railway infrastructure and 
service facilities serve precisely to fund the business activities of infrastructure 
managers and those of operators of service facilities (see Article 31(1) of 
Directive 2012/34/EU), and the determination of charges involves management 
decisions of essential business importance (see Article 3(2f) of Directive 
2012/34/EU). 
In the Chamber’s opinion, the Court of Justice made it sufficiently clear, in its 
decision of 9 September 2021, that its prior case-law relating to Article 4(1) of 
Directive 2001/14/EC on the independence of the infrastructure manager was to 
be fully adhered to, even upon application of the successor directive, which is 
authoritative in the present case. 
Moreover, by comparison with Directive 2001/14/EC, Directive 2012/34/EU 
gives specific expression, in the wording of Article 4(2) of Directive 2012/34/EU, 
to the management independence with respect to the collection of charges and 
now refers to the management independence of the infrastructure manager vis-à-
vis the Member State in different parts of the operative text of the directive 
(Article 4(2) and Article 29) as well as indirectly in recitals 43 and 66 thereof. It 
can be inferred therefrom that the directive-issuing body continues to ascribe an 
extremely high level of importance to the management independence of 
infrastructure managers vis-à-vis the Member State. The fifth subparagraph of 
Article 29(1) of Directive 2012/34/EU grants the national parliament, subject to 
further conditions, only a right to scrutinise the ‘charges determined by the 
infrastructure manager’ and, where appropriate, to review them, subject to 
additional conditions. 
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The referring court has already explained above that the charges eligible for 
approval under national law are to be calculated using the formula 
‘average charge for the base year multiplied by the annual rate(s) of 
increase until the relevant working timetable year.’ 
Judging by that formula, it is apparent that the infrastructure manager does not 
retain an adequate decision-making latitude. 
As the determining factors for the calculation, neither the average charge for the 
base year nor the annual rate(s) of increase fall within the decision-making power 
of the infrastructure manager. 
In that respect, the referring court considers that adequate independence cannot be 
inferred simply by virtue of the fact that the applicants had an influence, by means 
of the administrative procedure in effect at that time, on the starting basis for the 
calculation – the average charges for the 2020/2021 working timetable period or 
the 2021 calendar year. The ability to depart from previous decisions, even those 
that had been (potentially) intended, and the power to determine future charges 
independently of the old conditions, and in a manner that can also take into 
account changed conditions in the competitive environment, is precisely what 
constitutes independent decision-making freedom on the part of the management. 
Regardless of the foregoing, the applicants were not even aware, when submitting 
their application in respect of the charges for the 2020/2021 working timetable 
period, that those charges, which were approved by decision of 21 September 
2020, would subsequently form the new base year. That is because it was only by 
the Gesetz vom 9. Juni 2021 (Law of 9 June 2021) that the legislature replaced the 
hitherto applicable 2016/2017 base year with the currently applicable provision. 
Furthermore, it also follows therefrom that the formation of the charges for the 
2020/2021 working timetable period was similarly problematic. In that respect 
also, the applicants were strictly required to use the ‘base year’ (= 2016/2017 
working timetable period) parameter, alongside other parameters. 
Lastly, the legislature also specifies the remaining parameter, namely the rate(s) of 
increase, which the infrastructure manager is to use in the calculation method in 
each case. In that regard, the dynamisation rate applied in order to adjust the base 
year charges for the subsequent years is irrelevant. The very fact that the RegG 
lays down strict requirements in that respect makes it clear that the infrastructure 
manager has no decision-making latitude in that regard. 
More specifically, the statutory construct does not simply have the effect of 
depriving the infrastructure manager, in the exercise of its management function, 
of the possibility of basing the charges for SPNV services on costs that are in 
excess of the specified cost increases and which result from a higher cost 
development or even, conversely, of passing on cost reductions to the desired 
extent. It also forces the applicants – on account of the national obligation to 
ensure full cost coverage – to compensate for impending coverage shortfalls by 
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increasing charges in the SPFV and SGV segments, notwithstanding the 
possibility that that could conflict with the business interest. 
Disproportionately high increases in charges in the SPFV and SGV segments over 
several years could also lead to a considerable decline in those transport segments, 
which could, in turn, have an impact on the incentives for infrastructure managers 
to make appropriate investments in the railway infrastructure in instances where 
that would make economic sense. 
In that regard, see again CJEU, judgment of 28 February 2013, 
C-473/10, paragraph 45. 
The referring court does not share the legal view advanced by the defendant, 
which asserts that the law limits the applicants only with respect to the dynamic of 
the increase and does not specify the individual charge, since, according to the 
defendant, a price could be regarded as prescribed only if it was fixed or 
calculable without a substantive decision on the part of the infrastructure manager. 
According to the referring court’s understanding, the requirements laid down in 
Paragraph 37(2) of the ERegG no longer constitute a specific charging rule, as 
referred to in the second subparagraph of Article 29(1) of Directive 2012/34/EU, 
that would respect the management independence of the infrastructure manager. 
On the contrary, the infrastructure manager must, in the context of 
Paragraph 37(2) of the ERegG, apply for the charges on a case-by-case basis, 
taking into account the legislative framework established by the State and 
financially fixed by the regionalisation fund, in a manner that is limited to the 
mere calculation of the charge on the basis of a calculation method specified by 
the State. In the view of the referring court, that blatantly conflicts with the case-
law of the Court of Justice as laid down in its judgment of 28 February 2013 
(C-473/10) and its subsequent decisions. 
That means, in the context of the average charge formation under Paragraph 37(2) 
of the ERegG, that the infrastructure manager has, at most, ‘latitude’ to form sub-
segments and to distribute the fixed average charge per Bundesland among them, 
in so far as the relevant groups have been charged the average charge maintained 
for their group during the 2020/2021 working timetable period. However, even if 
it is not necessary for there to be a standardised charge for tracks and passenger 
stations per Bundesland, the level of the average charge within the Bundesländer 
or the transport authority areas – and hence an essential factor/parameter for the 
calculation – cannot be modified as result of exercising the above-mentioned 
latitude. That does not meet the requirements of the directive. 
The referring court also considers that the infrastructure manager’s option of 
exercising the latitude that is undoubtedly available to it within the framework of 
the charges calculation for the SPFV and SGV transport services is sufficient to 
ensure respect for the management independence referred to in the directive. In 
that respect, it must also be taken into account that the charges for SPNV services 
that are in dispute in the present proceedings account for the vast majority of the 
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charges to be levied for all transport services, that is to say the total volume of 
charges. Based on the reasoning set out above, it is even the case that the charge 
formation under Paragraph 37(2) of the ERegG has a considerable impact that 
extends beyond the SPNV transport services to the SPFV and SGV transport 
services and curtails the decision-making latitude that is available in respect of the 
latter. 
In so far as the infrastructure manager is afforded the option under 
Paragraph 37(3) of the ERegG to enter into derogating contractual arrangements 
with regional authorities, that is not sufficient to take adequate account of the 
management independence. First, the scope is limited to the operation of 
passenger stations; railways are not covered in that respect. Second, a contractual 
agreement is required, which the infrastructure manager cannot establish 
unilaterally. Even the review and reporting obligations of the regulatory authority 
provided for under Paragraph 37(4) to (7) of the ERegG, which are intended in 
particular to make any coverage shortfalls transparent retrospectively, does 
nothing to change the situation. They serve only to ensure a subsequent review of 
the cost coverage and have no bearing on the management independence. The 
same is true of the exemption provision laid down in Paragraph 2a(4) of the 
ERegG, which is subject to strict conditions that the applicants are unable to fulfil. 
4. In conclusion, the referring court proposes that the Court of Justice answer 
the question referred for a preliminary ruling as follows: 
Article 4(2) and Article 29(1) of Directive 2012/34/EU are to be 
interpreted as precluding national provisions that require the 
infrastructure manager, in the area of short-distance rail passenger 
transport, to calculate the charges subject to approval by multiplying 
the average charges for the relevant transport services in a statutory 
base year by an annual dynamisation rate prescribed by law.