Opinion of the Advocate General — ECLI:EU:C:2023:701
Date: 2023-09-21
Language of the case: German
Subject matter: Transport;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-582/22 – 1 
Case C-582/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
2 September 2022 
Referring court: 
Verwaltungsgericht Köln (Germany) 
Date of the decision to refer: 
1 September 2022 
Applicants: 
Die Länderbahn GmbH DLB 
Prignitzer Eisenbahn GmbH 
Ostdeutsche Eisenbahn 
Ostseeland Verkehrs GmBH 
Defendant: 
Federal Republic of Germany 
  
Subject matter of the main proceedings 
The subject matter is railway legislation, specifically the question as to whether an 
ex-post review of old charges for the use of the rail network of the joined party, 
DB Netz AG, is possible. 
Subject matter and legal basis of the request 
The subject matter of the request is the question as to how Article 56 of Directive 
2012/34/EU is to be interpreted, specifically whether, under that provision, an ex-
post review of the lawfulness of old charges is possible or even necessary in the 
light of the judgment of the Court of Justice of the European Union (‘the Court’) 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-582/22 
 
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of 9 November 2017, CTL Logistics (C-489/15, EU:C:2017:834); the legal basis is 
Article 267 TFEU. 
Questions referred for a preliminary ruling 
1. Must Article 56(1), (6) and (9) of Directive 2012/34/EU be interpreted as 
meaning that a charging scheme is capable of forming the subject matter of a 
complaint even where the period during which the charge to be reviewed was 
applicable has already expired (complaint against an ‘old charge’)? 
2. If Question 1 is answered in the affirmative, must Article 56(1), (6) and (9) 
of Directive 2012/34/EU be interpreted as meaning that, in the case of an ex-post 
review of old charges, the regulatory body may declare them to be invalid with ex-
tunc effect? 
3. If Questions 1 and 2 are answered in the affirmative, does the interpretation 
of Article 56(1), (6) and (9) of Directive 2012/34/EU permit national legislation 
which excludes the possibility of an ex-post review of old charges with ex-tunc 
effect? 
4. If Questions 1 and 2 are answered in the affirmative, must Article 56(9) of 
Directive 2012/34/EU be interpreted as meaning that, with regard to legal 
consequences, the competent regulatory body’s remedial action which is provided 
for in that provision also includes, in principle, the possibility to order the 
infrastructure manager to reimburse charges which had been levied unlawfully, 
even though claims for reimbursement between the railway undertakings and the 
infrastructure manager can be enforced by way of civil proceedings? 
5. If Questions 1 and 2 are answered in the negative, does a right to complain 
against old charges arise in any event from the first paragraph of Article 47 of the 
Charter of Fundamental Rights of the European Union and the second 
subparagraph of Article 19(1) of the Treaty on European Union (TEU) in so far 
as, where the regulatory body has not decided on the complaint, reimbursement of 
unlawful old charges under the rules of national civil law is precluded in 
accordance with the case-law of the Court in CTL Logistics (judgment of 
9 November 2017, C-489/15, EU:C:2017:834)? 
Provisions of EU law relied on 
Charter of Fundamental Rights of the European Union, Article 47 
Treaty on European Union (TEU), second subparagraph of Article 19(1) 
Directive 2012/34/EU of the European Parliament and of the Council of 
21 November 2012 establishing a single European railway area, recitals 34, 42 
and 76, and Article 56(1), (6) and (9) 
DIE LÄNDERBAHN AND OTHERS 
 
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Case-law of the Court: Judgment of 9 November 2017, CTL Logistics, C-489/15, 
EU:C:2017:834; judgment of 8 July 2021, Koleje Mazowieckie, C-120/20, 
EU:C:2021:553. 
Case pending before the Court: C-721/20 concerning the question as to whether a 
review of access charges under railway legislation in the light of Article 102 
TFEU and/or national competition law is compatible with Directive 2001/14/EC 
of the European Parliament and of the Council of 26 February 2001 on the 
allocation of railway infrastructure capacity and the levying of charges for the use 
of railway infrastructure and safety certification; Opinion of Advocate General 
Ćapeta of 7 April 2022 (C-721/20, EU:C:2022:288). 
Provisions of national law relied on  
Eisenbahnregulierungsgesetz (Law on railway regulation; ‘the ERegG’): 
Paragraph 66 (‘The regulatory authority and its tasks’), subparagraphs 1, 3 and 4; 
Paragraph 67 (‘Powers of the regulatory authority, supervision of the transport 
market, rules on enforcement’), subparagraph 1, Paragraph 68 (‘Decisions of the 
regulatory authority’). 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicants are or were railway undertakings (RUs) which offer local rail 
passenger transport services in several regions of the Federal Republic of 
Germany and, to a certain extent, in neighbouring countries. In so doing, they use 
or used the rail network of the joined party, DB Netz AG, in order to provide the 
transport service. 
2 The joined party belongs to the federally owned Deutsche Bahn AG group and 
operates the largest rail network in the Federal Republic of Germany. For the use 
of its railways, it levies charges which apply to the applicants on the basis of 
individually concluded framework contracts for the use of those railways. Those 
train path charges are levied on the basis of the charging principles in the 
applicable network statement (NS) unilaterally drawn up by the joined party, 
including the applicable list of charges. For each working timetable period (WTP), 
the joined party draws up a train path pricing system (TPS), which sets out the 
charges to be paid. A WTP and thus also the respective train path charges apply 
for a period of one year. 
3 The defendant, the Federal Republic of Germany, represented by the 
Bundesnetzagentur für Elektrizität, Gas, Telekommunikation, Post und 
Eisenbahnen (Federal Agency for Electricity, Gas, Telecommunications, Post and 
Rail Networks), is the supreme German regulatory authority. 
4 The actions have been brought as a consequence of the judgment of the Court of 
9 November 2017 (CTL Logistics, C-489/15, EU:C:2017:834; ‘the judgment in 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-582/22 
 
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CTL Logistics’). In accordance with that judgment, claims for reimbursement 
under civil law are possible only if, in accordance with the provisions of national 
law, the illegality of the charge has first been found by the regulatory body or by a 
court which has reviewed that body’s decision (see paragraph 97 of the judgment 
cited). 
5 The applicants request, in the context of a decision on their complaints, that the 
defendant carry out an ex-post review of the lawfulness of old charges levied by 
the joined party. During the period during which they applied, the amounts of the 
charges and the charging principles were subject to a preliminary examination by 
the regulatory authority (ex-ante review), which had a right of objection under the 
Allgemeines Eisenbahngesetz (General Law on railways; ‘the AEG, old version’) 
in the event of unlawful schemes. It is only since the introduction of the 
Eisenbahnregulierungsgesetz (Law on railway regulation; ‘the ERegG’) that the 
amounts of the charges and the charging principles have been subject to approval. 
6 With regard to the charging periods concerned in the present case, the defendant 
did not make use of its right of objection in the course of the preliminary 
examination. Since 2008, the defendant has subjected the joined party’s TPS to 
various reviews, in particular also with regard to the lawfulness of ‘regional 
factors’ (a component of the TPS). 
7 According to a long-standing practice of the civil courts, the latter reviewed the 
agreed infrastructure usage charges under national civil law on an individual, inter 
partes basis in order to determine whether they were equitable, and would declare 
them to be invalid in the event that they were inequitable, and then reject any 
claims for payment made by the infrastructure managers or grant any claims for 
reimbursement made by the RUs. A large number of the RUs concerned made use 
of the possibility to bring a civil action. Most of those actions have not yet been 
ruled on by final judgment. The applicants have hitherto refrained from bringing 
such actions before the civil courts with regard to most of the charging periods at 
issue. 
8 On the basis of the judgment in CTL Logistics, the applicants and a large number 
of other RUs filed, in the course of the complaint procedure under Paragraphs 66 
and 68 of the ERegG, an application with the defendant requesting that the 
charges at issue be declared to be invalid and the joined party be obliged to 
reimburse the overpaid charges. 
9 The defendant refused the applications by several substantially identical decisions 
of 11 October 2019, 3 July 2020 and 11 December 2020. In the grounds for its 
decisions, it stated that, when the charges concerned were applicable during the 
period covered by the relevant NRPs, holders of access permits (that is to say the 
RUs) were afforded effective legal protection in the form of the possibility of ex-
ante review. It cannot be inferred from either EU law or the Court’s case-law that 
the legal protection under the regulatory legislation extends to the ex-post review 
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of old charges. A reversal could cause a variety of problems, which in turn could 
impair both the freedom to pursue an occupation and competition. 
10 By their actions brought before the referring court on 6 and 9 November 2019, the 
applicants – and, in other sets of proceedings, a large number of other RUs – seek 
an order requiring the defendant to declare the infrastructure usage charges to be 
invalid with retroactive effect and to establish associated reimbursement 
obligations on the part of the joined party in so far as the charges were based on 
regional factors. 
11 In essence, the applicants, on the one side, and the defendant and the joined party, 
on the other side, are in dispute as to whether there must be a subsequent 
possibility of review in relation to old charges, entailing retroactive effect, and 
whether, following the judgment in CTL Logistics, it is in any event possible to 
demand that the regulatory authority take a decision on the lawfulness of such 
charges. The referring court states that, in addition to the present case, a total of 32 
cases raising similar issues are pending before it. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
12 The referring court takes the view that Directive 2012/34/EU must be interpreted, 
in continuation of the Court’s case-law, as requiring a review of old charges and 
allowing a decision with ex tunc effect (Questions 1, 2, 3 and 5). By contrast, 
claims for reimbursement must be pursued exclusively by way of civil 
proceedings (Question 4). 
13 In that connection, the referring court seeks to ascertain, by Questions 1 and 2, 
whether Article 56 of Directive 2012/34/EU must be interpreted as meaning that 
the applicants have the possibility to lodge a complaint with the aim of an ex-post 
review of ‘old charges’ which entails retroactive effect. The defendant dismissed 
the complaints lodged as inadmissible, and thereby declined to take a substantive 
decision on the merits. In the event that the applicants do in principle have the 
possibility to lodge such a complaint, the defendant will be obliged to examine the 
lawfulness of the charges at issue ex post, to determine the result with erga omnes 
effect and, where appropriate, to order further legal consequences attaching to that 
result. Question 3 asks whether national legislation may deviate therefrom, that is 
to say whether the possibility of the ex-post review of old charges, entailing 
retroactive effect, may be excluded. Question 4 seeks clarification as to how 
invalid charges can be reversed. If, in accordance with the judgment in CTL 
Logistics, a prior review of charges under public law (by the regulatory authority) 
is required for the purposes of claims for reimbursement under civil law, the 
referring court takes the view that clarification is also required as to whether the 
regulatory authority also has the power, under Article 56(1), (6) and (9) of 
Directive 2012/34/EU, itself to determine claims for reimbursement in order to 
avoid the possibility of several legal channels existing in parallel or sequentially. 
Question 5 is asked in the event that the possibility to lodge such a complaint does 
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not in principle exist (Question 1 is answered in the negative), the complaint 
cannot lead to a declaration of invalidity ex tunc (Question 1 is answered in the 
affirmative, Question 2 is answered in the negative) or a national power to 
derogate is presumed to exist (Questions 1 and 3 are answered in the affirmative). 
The referring court takes the view that clarification would then be required as to 
whether, in the light of the judgment in CTL Logistics and Article 47 of the 
Charter and Article 19 TEU, the defendant was entitled to dismiss the applicants’ 
complaints against the old charges as inadmissible or was required to take a 
decision on the merits. 
14 In order to explain its view of how those questions might be answered, the 
referring court draws on the wording and the spirit and purpose of Article 56(1), 
(6) and (9) of Directive 2012/34/EU, and, furthermore, on the case-law of the 
Court in the judgment in CTL Logistics and on the notion of effective legal 
protection. 
15 Accordingly, the wording of the provision is extremely broad and allows for a 
broad understanding of the powers conferred on the regulatory body. The first 
sentence of Article 56(1) of Directive 2012/34/EU attaches to an applicant’s belief 
that ‘it has been unfairly treated, discriminated against or is in any other way 
aggrieved’. That wording is open in several respects and suggests that the EU 
legislature intended to open up the broadest possible scope of application with 
regard to the right of complaint of railway undertakings. Since the wording in the 
first sentence of Article 56(1) of Directive 2012/34/EU establishes the 
requirement that the applicant has already been aggrieved (‘has been’), that 
wording covers not only all current instances in which the applicant has been 
aggrieved, but also all past such instances. If the applicant has been aggrieved, the 
first sentence of Article 56(6) of Directive 2012/34/EU provides that the 
regulatory body ‘shall ensure that charges set by the infrastructure manager 
comply with Section 2 of Chapter IV and are non-discriminatory’. Article 56(9) of 
Directive 2012/34/EU further states that the regulatory body is to take ‘action to 
remedy the situation’ and, where appropriate, decide on ‘appropriate measures to 
correct discrimination against applicants’. Therefore, in the view taken by the 
referring court, it follows from the wording of that directive that the EU 
legislature intended to ensure that it is in any event possible for the regulatory 
body – with the powers conferred on it by that provision – to take and enforce 
remedial action which ensures that the charges set unilaterally by infrastructure 
managers are non-discriminatory. This means, in the view taken by the referring 
court, that old charges could also be declared to be invalid with retroactive effect 
on the grounds of the unlawfulness of, inter alia, discriminatory regional factors. 
16 That interpretation is confirmed by the spirit and purpose of the provision of 
Article 56 of Directive 2012/34/EU. Non-discriminatory access is emphasised in 
recitals 34 and 42. In that respect, the regulatory body oversees the application of 
the rules set out in the directive (see, to that effect, recital 76). The recitals thus 
make clear that one of the main regulatory objectives pursued by the directive is to 
ensure non-discriminatory access of railway undertakings to railway infrastructure 
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and that the regulatory body has the task of overseeing the achievement of that 
objective. If, as in the present proceedings, it is at issue that a charging scheme is 
discriminatory, then that scheme clearly violates the abovementioned regulatory 
objective, and it is for the regulatory body to remedy that violation. 
17 The referring court takes the view that, moreover, the Court’s case-law to date can 
be understood only as meaning that a review of the lawfulness of old charges by 
the regulatory body is possible and necessary. In the view of the referring court, it 
can be inferred in particular from paragraph 97 of the judgment in CTL Logistics 
that, under EU law on the regulation of railways, a reversal of infrastructure usage 
charges is in principle possible. Against that background, the referring court 
considers that it is questionable whether – at national level – the remedy provided 
for under EU law, in the form of a complaint by the railway undertaking, can be 
limited by its very nature. This is because, for reasons of effectiveness (effet utile) 
alone, it would appear to be out of the question that an element so essential to 
guaranteeing the objectives of the directive, such as the right of complaint 
conferred on railway undertakings or the competence of the regulatory body to 
take remedial action, can be limited in the context of its implementation at 
national level. 
18 Lastly, the notion of effective legal protection under Article 47 of the Charter and 
the second subparagraph of Article 19(1) TEU also supports an interpretation in 
favour of the possibility for the regulatory body to review old charges with 
retroactive effect. This is because, in the present case, following the judgment in 
CTL Logistics, the applicants would be completely deprived of legal protection if 
they did not have the possibility to have the old charges reviewed by the defendant 
with ex-tunc effect. The practice of the national civil courts that was prevailing in 
Germany up until the judgment in CTL Logistics was rejected by the Court by that 
ruling in so far as, in order to assert any claims for reimbursement, the railway 
undertakings concerned are now first dependent on an official decision by the 
regulatory body concerning the validity of the charges. If the Court were to rule in 
the present case that a retroactive review of the old charges is no longer possible, 
the applicants’ legal protection would be brought to an end at this point – 
depending on the outcome of the request for a preliminary ruling currently 
pending in DB Station & Service, C-721/20. This would be incompatible with the 
abovementioned provisions. 
19 Therefore, it appears to the referring court that a review of old charges with ex 
tunc effect in accordance with Article 56 of Directive 2012/34/EU is possible and 
necessary. It would be in line with the legal order if discriminatory charges were 
declared to be invalid (including retrospectively) due to their discriminatory effect 
and had to be reimbursed. A person (in this case the railway infrastructure 
manager) who levies discriminatory charges is fundamentally not worthy of 
protection, and, in principle, there is also no reason why a person who obtained 
charges unlawfully should retain them. On the other hand, this does not mean that 
there cannot also be cases in which special protection of legitimate expectations 
plays a role and the person who levied the unlawful charge is worthy of protection 
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on an exceptional basis. The referring court takes the view that there must in any 
event be a possibility, in principle, for charges that are no longer applicable to be 
reviewed as to their lawfulness and to be reversed in the event that they are 
unlawful. 
20 By contrast, in so far as the applicants seek to extend the competences of the 
regulatory authority by interpreting Article 56(9) of Directive 2012/34/EU as 
meaning that claims for reimbursement can be made within the framework of a 
regulatory decision under public law, the referring court is not convinced by this, 
because the relationship between the railway undertakings and the infrastructure 
managers is contractual and thus governed by civil law, with the result that, 
according to the national understanding, it is possible to bring civil proceedings. 
The referring court takes the view that it cannot be inferred from either EU law or 
the case-law of the Court that a claim for reimbursement under civil law and a 
claim for reimbursement under public law exist in parallel on an equal footing and 
that holders of access permits therefore have a right to choose between those 
claims. In that respect, the referring court considers that that view is supported by 
the Opinion of Advocate General Ćapeta in C-721/20 (EU:C:2022:288).