Opinion of the Advocate General — ECLI:EU:C:2023:221
Date: 2023-03-16
Language of the case: Lithuanian
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Lithuania

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date of receipt:  
9 November 2021 
Referring court:  
Lietuvos vyriausiasis administracinis teismas (Lithuania) 
Date of the order for reference:  
5 November 2021 
Appellant:  
‘Gargždų geležinkelis’ UAB 
Other parties to the proceedings:  
Lietuvos transporto saugos administracija, 
Lietuvos Respublikos ryšių reguliavimo tarnyba, 
‘LTG Infra’ AB 
  
Subject matter of the action in the main proceedings 
Dispute concerning the allocation of public railway infrastructure capacity 
following application of the priority rule provided for in a provision of national 
law. 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of provisions of Directive 2012/34/EU of the European Parliament 
and of the Council; third paragraph of Article 267 TFEU. 
EN 
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Questions referred 
Must the first and second sentences of Article 47(4) of Directive 2012/34/EU be 
interpreted as unambiguously prohibiting the establishment of a national legal 
regulation which provides that, in the event of congested infrastructure, the 
intensity of the use of railway infrastructure can be taken into account at the time 
of capacity allocation? Does it have a bearing on this assessment whether the 
railway infrastructure utilisation rate is linked to the actual utilisation of that 
infrastructure in the past or to the planned utilisation during the period for which 
the relevant timetable is in force? Do the provisions of Articles 45 and 46 of 
Directive 2012/34/EU, which confer a broad discretion on the public 
infrastructure manager or on the entity making decisions on the capacity to 
coordinate the requested capacity, and the implementation of those provisions in 
national law have any significance for that assessment? Does the fact that 
infrastructure is identified as congested in a particular case due to the capacity 
applied for by two or more railway undertakings in respect of the carriage of the 
same freight have any significance for that assessment? 
Does the provision of Article 45(2) of Directive 2012/34/EU that ‘[t]he 
infrastructure manager may give priority to specific services within the scheduling 
and coordination process but only as set out in Articles 47 and 49’ mean that the 
infrastructure manager may also apply a national priority rule in cases where 
infrastructure is not identified as congested? To what extent (on the basis of which 
criteria) must the infrastructure manager, prior to identifying infrastructure as 
congested, coordinate the requested train paths and consult with applicants on the 
basis of the first sentence of Article 47[(1)] of Directive 2012/34/EU? Should that 
consultation with applicants cover the assessment as to whether two or more 
applicants have submitted competing requests for the carriage of the same freight 
(goods)? 
Provisions of EU law cited 
Article 39(1), Article 45(1) and (2), Article 46(1) and (2), Article 47 and 
Article 52(1) of 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). 
Provisions of national law cited 
Paragraph 5 of Article 7(3) of the Railway Transport Code of the Republic of 
Lithuania of 22 April 2004 (hereinafter referred to as the ‘RTC’) (the version as 
set out in Law No XIII-588 of 30 June 2017 is relevant in the present case), which 
provides that the railway traffic safety authority is to allocate public railway 
infrastructure capacity to railway undertakings (carriers). 
GARGŽDŲ GELEŽINKELIS 
 
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Article 29 of the RTC (the version as set out in Law No XII-2488 of 23 June 2016 
is relevant in the present case), which sets out the basic provisions governing the 
allocation of public railway infrastructure capacity. Paragraph 6 of this article 
states that ‘[t]he principles governing the allocation of public railway 
infrastructure capacity and the procedure for the submission of applications for 
infrastructure capacity (rejection thereof), the declaration that an element of public 
railway infrastructure is congested, establishment of the working railway 
timetable, cooperation where capacity is to be allocated on more than one railway 
network, capacity analysis and capacity enhancement plans, and the procedure 
governing the conclusion of contracts and framework agreements for the use of 
public railway infrastructure shall be set out in the Rules on the Allocation of 
Public Railway Infrastructure Capacity. These Rules shall be approved by the 
Government’. 
Point 28 of the Rules on the Allocation of Public Railway Infrastructure Capacity, 
approved by Government Resolution No 611 of 19 May 2004 (hereinafter referred 
to as ‘the Rules’). 
Brief description of the facts and procedure in the main proceedings 
1 On 3 April 2019, the appellant, the private limited liability company Gargždų 
geležinkelis (hereinafter referred to as ‘“Gargždų geležinkelis” UAB’), submitted 
an application for the allocation of public railway infrastructure capacity for 
freight and service trains for the period of validity of the 2019–2020 working 
timetable (hereinafter referred to as the ‘WT’). 
2 By letter of 3 May 2019, Lietuvos transporto saugos administracija (the 
Lithuanian Transport Safety Administration) (hereinafter referred to as the 
‘Administration’) forwarded that application for assessment to the public 
infrastructure manager – ‘Lietuvos geležinkeliai Geležinkelių infrastruktūros 
direkcija’ AB (the Railway Infrastructure Directorate of the limited liability 
company ‘Lietuvos geležinkeliai’) (hereinafter referred to as ‘the infrastructure 
manager’). From 8 December 2019, the functions of the infrastructure manager 
have been exercised by a subsidiary established by ‘Lietuvos geležinkeliai’ AB. 
3 On 10 July 2019, the infrastructure manager provided the Administration with a 
draft version of the WT and informed it that it was not possible to include in the 
timetable all the capacity requested by applicants due to limited capacity at certain 
elements of the railway infrastructure, as some of those requests were mutually 
incompatible. It also stated that it was not possible to offer them the use of the 
requested capacity at different times or on alternative routes because maximum 
capacity had already been reached at specific sections. The infrastructure manager 
requested allocation of reserve capacity to meet last-minute applications at 
specified sections of the infrastructure. 
4 By letter of 23 September 2019, the infrastructure manager informed the appellant 
that the declaration that an element of public railway infrastructure was congested 
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was based on the actual capacity of the section, which was determined following 
analysis of the applications for the allocation of capacity received for the period 
during which the relevant working timetable was in force. 
5 On 24 September 2019, the infrastructure manager informed the Administration 
that, following coordination, it was unable to satisfy all the applications in one of 
the elements of the public railway infrastructure because the capacity at that 
element of the public railway infrastructure was insufficient and the element of the 
public railway infrastructure at the specified sections was congested for the period 
during which the 2019–2020 WT was in force. 
6 In September 2019, the infrastructure manager provided the Administration with 
an updated draft version of the WT for the purpose of taking decisions on the 
allocation of capacity and with information on the actual capacity of the sections 
calculated in accordance with the applications which had been received. 
7 On 30 September 2019, the appellant requested the Administration to examine the 
actions of the infrastructure manager. 
8 By decision of 15 October 2019, the Administration decided that the actions of the 
infrastructure manager in examining and coordinating applications had been 
performed in compliance with the requirements of the legislation in force at that 
time and that they did not infringe the rights and legitimate interests of the 
appellant. The Administration also found that the facts set out in the appellant’s 
complaint of 30 September 2019 were irrelevant for the decision on the allocation 
of capacity for the 2019–2020 WT. 
9 By decision of 17 October 2019, the Director of the Administration decided not to 
allocate to the appellant the capacity requested in the application on the ground 
that no capacity was available. Following application of the priority rule set out in 
Point 28 of the Rules, the capacity was allocated to other undertakings. The 
decision indicated that it was not possible to offer alternative capacity because the 
element of the public railway infrastructure was congested. 
10 By order of 13 February 2020 concerning the complaint of ‘Gargždų geležinkelis’ 
UAB of 12 November 2019, the Director of Lietuvos ryšių reguliavimo tarnyba 
(Communications Regulatory Authority of Lithuania) declared the appellant’s 
complaint regarding the contested decision to be unfounded and dismissed it. 
11 The appellant brought proceedings before the Vilniaus apygardos administracinis 
teismas (Vilnius Regional Administrative Court). By judgment of 22 October 
2020, the Vilniaus apygardos administracinis teismas (Vilnius Regional 
Administrative Court) dismissed that action. The appellant has now brought an 
appeal against that judgment before the Lietuvos vyriausiasis administracinis 
teismas (Supreme Administrative Court of Lithuania). 
GARGŽDŲ GELEŽINKELIS 
 
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Essential arguments of the parties to the main proceedings 
12 The referring court indicates that Directive 2012/34 provides for two capacity 
allocation options in the event of congested infrastructure: the congested 
infrastructure charge (Article 31(4)) and priority rules (Article 47). In the present 
case, the priority rule provided for in Point 28 of the Rules was the only measure 
designed to address the problem of congested infrastructure during the period 
concerned. Under this rule, capacity is allocated by, in the first place, taking into 
account the type of service to be provided: (1) to an applicant who will perform 
the carriage of passengers and luggage on international routes; (2) to an applicant 
who will perform such carriage on local routes; or by, in the second place, taking 
into account the intensity of capacity utilisation, (3) to an applicant who will use 
the capacity for more days; or, if the number of days coincides, (4) to an applicant 
who requests allocation of more runs on the route in question. 
13 The appellant claims that the priority rule provided for in national law in cases 
where capacity is allocated to a carrier who performs carriage for more days or 
performs more runs fails to ensure compliance with the principle of non-
discrimination. This rule, it argues, unjustifiably confers an advantage on an 
incumbent carrier because new carriers seeking to enter the railway transport 
market are not able to perform more runs or to perform carriage for more days 
than a carrier who has already established itself in the market. 
14 In the opinion of the infrastructure manager, the fact that the appellant is unable to 
guarantee a more intensive use of the network proves that it is not prepared to 
ensure as effective a utilisation of the public railway infrastructure as possible, on 
which the priority linked with more intensive use of the network is based. The 
infrastructure manager claims that the priority rule is not, in principle, intended for 
monopolising the relevant market but is designed to use limited resources – that is 
to say, the railway infrastructure – in such a way as to achieve maximum added 
value. Where two or more applicants are in competition for the same section, the 
allocation of the capacity to the applicant which ensures the highest and most 
efficient overall occupancy of the network allows the network to be used in a 
manner that is most economically advantageous for society. 
Concise justification of the request for a preliminary ruling 
15 The referring court has doubts as to the interpretation of the provisions of 
Directive 2012/34 in two respects: first, concerning the application of the priority 
rules when public railway infrastructure is identified as congested according to 
Article 47 of the directive; and, second, concerning the procedure for the 
allocation of public railway infrastructure capacity provided for in that directive. 
16 The referring court points out that, according to the second sentence of 
Article 47(4) of Directive 2012/34, Member States may take any measures 
necessary, under non-discriminatory conditions, to ensure that services in areas of 
public interest are given priority when infrastructure capacity is allocated, and it 
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draws attention to the judgment of 28 February 2013, European Commission v 
Kingdom of Spain (C-483/10, EU:C:2013:114), in which the Court of Justice 
analysed the content of Directive 2001/14/EC of the European Parliament and of 
the Council of 26 February 2001, which was in force prior to the adoption of 
Directive 2012/34. 
17 In paragraphs 95 to 99 of the judgment in Case C-483/10, the Court of Justice 
stated that the criterion based on actual use of the network, as a criterion for the 
allocation of infrastructure capacity, is discriminatory in so far as it leads, where 
there is more than one application or where the network is congested, to 
advantages being maintained for the incumbent users and access to the most 
attractive train paths being denied to new market entrants. The Court of Justice 
noted that the objective of ensuring more efficient use of infrastructure capacity 
could be attained on the basis of specific provisions of Directive 2001/14, for 
example, Article 27(2), which provides that it is possible for the infrastructure 
manager to specify conditions whereby it will take account of previous levels of 
utilisation of train paths in determining priorities for the capacity allocation 
process. It also stated that the application of the said discriminatory criterion 
cannot be justified on the ground of its purported compliance with Article 22(4) of 
Directive 2001/14, which provides that, where the infrastructure is congested, the 
priority criteria are to take account of the importance of a service to society, 
relative to any other service which will be excluded. In fact, that provision does 
not allow for any allocation criterion, since, under the second subparagraph of that 
provision, where the infrastructure is congested, infrastructure capacity must be 
allocated ‘under non-discriminatory conditions’. 
18 The referring court expresses doubts as to the assessment of the first and second 
sentences of Article 47(4) of Directive 2012/34/EU as unambiguously prohibiting 
the establishment of a legal regulation according to which, in the event of 
congested infrastructure, the intensity of the use of railway infrastructure can be 
taken into account at the time of capacity allocation. It points out the following 
relevant circumstances. 
19 First, unlike in the situation examined by the Court of Justice in Case C-483/10, 
Point 28 of the Rules provides for the possibility to take into account the future, 
but not the past, intensity of the use of railway infrastructure during capacity 
allocation. In this regard, it should be noted that Directive 2012/34 provides 
safeguards which would allow the entity making a decision on capacity to take 
into account the use of capacity by the railway undertaking, such as the 
reservation charge provided for in Article 36, which may be levied for capacity 
that is allocated but not used. 
20 Second, the provisions of Directive 2012/34 regulating the allocation of capacity 
confer on the infrastructure manager or on the entity performing its functions a 
wide discretion to decide on potential disagreements concerning competing 
capacities. Article 45(1) of Directive 2012/34 provides that the infrastructure 
manager, inter alia, ‘shall, as far as possible, take account of all constraints on 
GARGŽDŲ GELEŽINKELIS 
 
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applicants, including the economic effect on their business’. Article 46(1) of the 
directive requires the infrastructure manager to attempt, through coordination of 
conflicting requests, to ensure the best possible matching of all requirements, and 
Article 46(2) enables the infrastructure manager ‘to propose infrastructure 
capacity that differs from that which was requested’. Article 46(3) of Directive 
2012/34 provides that ‘[t]he infrastructure manager shall attempt, through 
consultation with the appropriate applicants, to resolve any conflicts’. Finally, 
Article 46(5) of the directive indicates that ‘[w]here requests for infrastructure 
capacity cannot be satisfied without coordination, the infrastructure manager shall 
attempt to accommodate all requests through coordination’. 
21 Third, although Article 52(1) of Directive 2012/34 allows the infrastructure 
manager to take account of previous levels of utilisation of train paths, that is to 
say, previous utilisation of the infrastructure, it also establishes the possibility to 
rely on the actual infrastructure utilisation rate in allocating capacity. Given the 
fact that railway undertakings may compete for the same freight, the interpretation 
of Article 47(4) of Directive 2012/34 as unambiguously prohibiting the 
application of the actual infrastructure utilisation criterion or as not prohibiting 
this would lead to a situation in which, in the case of conflicting applications, 
either a new market entrant or an already existing market player would have an 
advantage in all cases, depending on the extent to which the actual infrastructure 
utilisation can be taken into account in the case of congested infrastructure. 
22 Fourth, the present appellant claims that there is no actual congestion of 
infrastructure in the present case because it is competing with another undertaking 
for the same freight. Therefore, it argues, the rules of priority should probably not 
even be applied in this case, and the issue of the overlap of capacity should be 
addressed on the basis of the consultation and coordination procedures provided 
for in Articles 45 and 46 of Directive 2012/34, while proposing that the problem 
of competition for freight should not be addressed by use of the procedure relating 
to congested infrastructure. In such a situation, if it is found that two or more 
railway undertakings are indeed competing for the same freight, an unambiguous 
interpretation of the priority rules may encourage abuse of the right to request 
capacity, in the knowledge that the infrastructure will be identified as being 
congested and the rules will be favourable to either an incumbent market player or 
a new market entrant. 
23 The referring court then goes on to state that it is clear from the structure of the 
capacity allocation process provided for in Directive 2012/34 that the 
infrastructure manager, once all applications have been received, must first of all 
seek to coordinate them and, in the event of failure to coordinate certain 
applications, must declare the infrastructure to be congested and take measures 
related to the problem of congested infrastructure, such as the application of the 
priority rule. 
24 It may be concluded from Article 47(1) of Directive 2012/34 that the priority rule 
applies only if the infrastructure has been declared to be congested. However, 
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Article 45(2) of Directive 2012/34 provides that the infrastructure manager may 
give priority to specific services within the scheduling and coordination process 
but only as set out in Articles 47 and 49. Therefore, according to Directive 
2012/34, priority may also be applied at an earlier stage, that is to say, prior to the 
declaration that the infrastructure is congested. According to Point 28 of the 
Rules, the infrastructure manager may apply the priority rule when coordinating 
applications. 
25 The referring court refers to the judgment of the Court of Justice of 28 February 
2019, Konkurrensverket v SJ (C-388/17, EU:C:2019:161), paragraph 39 of which 
states that ‘although the railway infrastructure manager must, pursuant to 
Article 45 of Directive 2012/34, endeavour as far as possible to meet all requests 
for infrastructure capacity, it is required, in accordance with Article 46 of that 
directive, in the case of competing requests, to coordinate those requests in order 
to ensure the best match between them. It may thus, within reasonable limits, 
propose capacity that differs from that which was requested or may be unable to 
respond favourably to certain applications’. 
26 In this regard, the referring court is uncertain as to the content of the obligation of 
the infrastructure manager or of the entity allocating capacity to coordinate the 
requested train paths and to consult with applicants prior to identifying the 
infrastructure as congested, as provided for in Article 47(1) of Directive 2012/34. 
The facts relating to the present case suggest that the appellant is in competition 
with another railway undertaking, with both undertakings requesting at least 
partially overlapping capacity. Where two or more railway undertakings are 
competing for carriage of the same freight, there is, technically, no congestion of 
infrastructure because the freight in question will be carried by one or other 
undertaking in any event. It is therefore questionable whether the conditions laid 
down in Article 47 of Directive 2012/34 – to coordinate the requested train paths 
and to consult with applicants – covers the obligation of the infrastructure 
manager to determine the potential overlap of the freight of two or more railway 
undertakings prior to identifying the infrastructure as congested. 
27 In those circumstances, having assessed the provisions of the national legislation 
and the practice applied by the infrastructure manager, the referring court requests 
the Court of Justice to answer the questions referred for a preliminary ruling.