Opinion of the Advocate General — ECLI:EU:C:2012:524
Date: 2012-09-06
Language of the case: Spanish
Subject matter: Transport
Procedure: Action for failure to fulfil obligations - successful
Origin: Spain

Summary — Judgment of the Court (First Chamber), 28 February 2013 1. Transport — Rail transport — Directive 2001/14 — Allocation of railway infrastructure capacity and levying of charges — Infrastructure pricing — Obligations of the Member States — Scope — Determination of the charge for use of the infrastructure — Not included — Competence of the infrastructure manager (European Parliament and Council Directive 2001/14, Art. 4(1)) 2. Member States — Obligations — Implementation of directives — Failure to fulfil obligations — National system pleaded as justification — Not permissible (Art. 258 TFEU) 3. Transport — Rail transport — Directive 2001/14 — Allocation of railway infrastructure capacity and levying of charges — Infrastructure pricing — Obligations of the Member States — Implementation of a performance scheme — Scope (European Parliament and Council Directive 2001/14, Art. 11(1)) 4. Transport — Rail transport — Directive 2001/14 — Allocation of railway infrastructure capacity and levying of charges — Infrastructure capacity — Obligations of the Member States — Establishment of specific allocation rules — Scope (European Parliament and Council Directive 2001/14, Art. 14(1)) 5. Transport — Rail transport — Directive 2001/14 — Allocation of railway infrastructure capacity and levying of charges — Infrastructure capacity — Obligations of the Member States — Guarantee of equal and non-discriminatory access to the railway network for railway undertakings (European Parliament and Council Directive 2001/14, Recital 11 and Arts 13(2) first and second paras, 14(1) and 17) 1. Article 4(1) of Directive 2001/14 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure provides that the Member States are to establish a charging framework for the railway infrastructure and may also establish specific charging rules, while respecting the management independence of the infrastructure manager. Under that provision, it is the latter’s responsibility, first, to determine the charge for use of the infrastructure and, second, to collect that charge. In that regard, in order to ensure that the objective of management independence of the infrastructure manager is attained, the latter must, within the charging framework established by the Member States, be given a degree of flexibility in determining the amount of charges so as to enable it to use that flexibility as a management tool. (see paras 39, 49) 2. See the text of the decision. (see para. 51) 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, firstly, 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. Secondly, 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, the mere possibility, laid down in the national law of a Member State, of introducing a performance scheme is not sufficient for the purpose of implementing 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. (see paras 64, 66) 4. The specific capacity allocation rules referred to in Article 14(1) of Directive 2001/14 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure cannot be construed as conferring a measure of discretion on the controlling body of a Member State’s railway market for the purpose of allocating infrastructure capacity. Consequently the mere existence in national law of the possibility for that controlling body, if necessary, to set the allocation priorities for the various types of service on each line, where there is an overlap in the requests for the same train path or when the network is congested, constitutes of itself a source of legal uncertainty for the operators and cannot be regarded as complying with the requirement laid down in Article 14(1) of that directive, that specific capacity allocation rules are to be established by the Member States. (see paras 87, 89, 90) 5. In the light of one of the objectives of Directive 2001/14 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure, which is to permit equal and non-discriminatory access for all railway undertakings to the rail network, as set out in recital 11 in the preamble to that directive, the purpose of the prohibition on the use of infrastructure capacity for longer than the one working timetable period laid down in the first subparagraph of Article 13(2) of Directive 2001/14 is to prevent an undertaking from having the right to use a train path indefinitely. However, the second subparagraph of that provision makes available an exception to that prohibition, where a framework agreement has been concluded between the infrastructure manager and the railway undertaking, as provided for in Article 17 of the directive. In that regard, the legislation of a Member State which applies the criterion of actual use of the network as the criterion for the allocation of infrastructure capacity where there is more than one application for the same train path or the network is congested is contrary to Article 13(2) of Directive 2001/14, since the actual use of the network is not subject to the conclusion of a framework agreement. In addition, such a criterion for allocation is discriminatory since it leads to advantages being maintained for the incumbent users and access to the most attractive train paths being denied to new entrants. That Member State cannot justify that discrimination on the ground that it pursues the objective of ensuring more efficient use of infrastructure, since Directive 2001/14 contains specific provisions designed to provide incentives for the efficient use of infrastructure capacity while at the same time ensuring fair and non-discriminatory access to the rail network. (see paras 92, 93, 95, 96, 98)