Opinion of the Advocate General — ECLI:EU:C:2024:939
Date: 2024-11-07
Language of the case: German
Procedure: Reference for a preliminary ruling
Origin: Austria

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: 
22 August 2023 
Referring court: 
Bundesverwaltungsgericht (Austria) 
Date of the decision to refer: 
21 August 2023 
Appellants: 
ÖBB-Infrastruktur AG 
WESTbahn Management GmbH 
Respondent: 
Schienen-Control Kommission 
 
Subject matter of the main proceedings 
Complaints against the approval of market mark-ups on infrastructure charges in 
accordance with Article 32 of Directive 2012/34 
Subject matter and legal basis of the request for a preliminary ruling 
The request for a preliminary ruling under Article 267 TFEU concerns the 
interpretation of Article 32 of Directive 2012/34/EU of the European Parliament 
and of the Council of 21 November 2012 establishing a single European railway 
area 
Questions referred 
I. Must EU law, in particular Article 32 of Directive 2012/34/EU of the 
European Parliament and of the Council of 21 November 2012 establishing a 
EN 
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single European railway area (Directive 2012/34/EU), be interpreted as meaning 
that the Member State concerned must approve market mark-ups ex ante, before 
the start (or at least before the end) of the relevant working timetable period for 
which the market mark-ups have been requested? Or can the Member State also 
approve the market mark-ups ex post after the end of the relevant working 
timetable period (possibly years later)? Must the approval of market mark-ups by 
the Member State in accordance with Article 32 of Directive 2012/34/EU be 
understood as a legally binding approval? 
II. Must EU law, in particular Article 32(1) and (6) of Directive 2012/34/EU in 
conjunction with Article 27(4) thereof, be interpreted as meaning that – in 
chronological order – the market mark-ups (in the event of changes to essential 
components) must first be published in the network statement (if necessary subject 
to approval) and are to be approved by the Member State only after they have 
been published? Has there already been a modification of essential elements, for 
the purposes of Article 32(6) of Directive 2012/34/EU, if ‘only’ the level of the 
market mark-ups in relation to the working timetable period for the previous year 
is changed? 
III. (If the first sentence of Question II is answered in the affirmative) Must EU 
law, in particular Article 32(1) and (6) of Directive 2012/34/EU in conjunction 
with Article 27(2) and (4) thereof and in conjunction with point 2 of Annex IV to 
Directive 2012/34/EU – read in the light of the obligation of transparency and 
planning security set out in recital 34 of Directive 2012/34/EU – be interpreted as 
meaning that market mark-ups may not be approved by the Member State if the 
levels of the market mark-ups themselves have not been published in the network 
statement for the relevant working timetable period (for which approval of those 
market mark-ups was requested), but rather, in that network statement, only a total 
charge per train path kilometre (as the sum of the charges for costs directly 
incurred as a result of operating the train service in accordance with Article 31(3) 
of Directive 2012/34/EU and the market mark-ups in accordance with Article 32 
of Directive 2012/34/EU) was published for each market segment? Railway 
undertakings therefore could not find out from those network statements either the 
charges for ‘direct costs’ (within the meaning of Article 31(3) of Directive 
2012/34/EU, read in conjunction with point 1 of Article 2 of Commission 
Implementing Regulation (EU) 2015/909 of 12 June 2015 on the modalities for 
the calculation of the cost that is directly incurred as a result of operating the train 
service (Implementing Regulation 2015/909/EU)), or the market mark-ups in 
accordance with Article 32 of Directive 2012/34/EU per market segment. 
IV. (If the first sentence of Question II is answered in the affirmative) Must EU 
law, in particular Article 32(1) and (6) of Directive 2012/34/EU in conjunction 
with Article 27(4) thereof – read in the light of the obligation of transparency and 
planning security set out in recital 34 of Directive 2012/34/EU – be interpreted as 
meaning that the market mark-ups published in the network statement for the 
relevant working timetable period have a binding effect for the approval by the 
Member State? Does it follow from that binding effect that the Member State may 
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not approve higher market mark-ups per market segment than those published in 
the accompanying network statement? Or is there a binding effect only to the 
extent that the total charges approved (thus the charges for ‘direct costs’ in 
accordance with Article 31(3) of Directive 2012/34/EU in conjunction with 
point 1 of Article 2 of Implementing Regulation (EU) 2015/909 and market mark-
ups in accordance with Article 32 of Directive 2012/34/EU) may not be higher 
than those published in the network statement, whereas the market mark-ups 
themselves may be approved at a level which is higher than that published in the 
network statement? Is there also a binding effect in respect of the level of the 
application for approval originally submitted to the Member State with regard to 
the market mark-ups? If so, in what sense (no increase, no further reduction 
permissible)? Is there any other form of binding effect? 
V. Must EU law, in particular Article 32(1) of Directive 2012/34/EU, be 
interpreted as meaning that, for the purposes of determining whether market mark-
ups are permissible in principle (apart from the market viability to be verified) – 
thus, for the purposes of the full recovery of the infrastructure manager’s costs – it 
is not necessary to take as a basis an overall revenue which must be obtained by 
the Member State from the railway infrastructure manager (‘revenue target’), 
consisting of the sum of the charges for the costs directly incurred as a result of 
operating the train service in accordance with Article 31(3) of Directive 
2012/34/EU and the market mark-ups in accordance with Article 32(1) of 
Directive 2012/34/EU? Rather, must the costs, in order to obtain full recovery, be 
determined and established in order to make it possible to assess on the basis 
thereof whether and to what extent any market mark-ups can be approved? When 
determining whether market mark-ups are permissible in principle (apart from the 
market viability to be verified), must State subsidies from the Member State to 
the railway infrastructure undertaking also be taken into account? If so, what form 
should this take? Must those State subsidies, where appropriate, be deducted from 
the costs required for full recovery (in addition to the charges for the costs directly 
incurred as a result of operating the train service)? In that context, must EU law, 
in particular Article 32(1) of Directive 2012/34/EU in conjunction with 
Article 8(4) thereof, be interpreted as meaning that, in addition to the charges for 
the costs directly incurred as a result of operating the train service and any State 
subsidies to be taken into account, the Member State must determine – and 
include in the assessment of whether market mark-ups are permissible – all other 
profits of the railway infrastructure undertaking from other economic activities 
and all non-refundable incomes received by that undertaking from private 
sources? If so, what form should this take? Where appropriate, should they also 
be deducted from the costs required for full recovery? Must other charges levied 
by the railway infrastructure undertaking – such as charges for the use of 
passenger platforms (‘station charges’) and charges for the use of electrical supply 
equipment for traction current – as well as other business positions of the railway 
infrastructure undertaking be included in that assessment? 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-538/23 
 
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Provisions of EU law cited 
Directive 2012/34, recital 34, Article 8(4), Article 27(2) and (4), Article 31(3), 
Article 32(1) and (6), Annex IV, point 2 
Implementing Regulation 2015/909, Article 2, point 1 
Provisions of national law relied on 
Bundesgesetz über Eisenbahnen, Schienenfahrzeuge auf Eisenbahnen und den 
Verkehr auf Eisenbahnen (Eisenbahngesetz) (Federal Law on railways, rolling 
stock and rail traffic (Law on railways), ‘the EisbG’), Paragraph 59, in the version 
resulting from BGBl I No 143/2020, 67; Paragraph 67, in the version resulting 
from BGBl. No 137/2015 and in the version resulting from BGBl. No 231/2021; 
Paragraph 67d, in the version resulting from BGBl. No 137/2015 
Bundesgesetz zur Neuordnung der Rechtsverhältnisse der Österreichischen 
Bundesbahnen (Bundesbahngesetz) (Federal Law reorganising the legal 
relationships of the Austrian Federal Railways (Federal Law on railways) in the 
version resulting from BGBl. No 95/2009, Paragraph 42(1) to (3) 
Brief summary of the facts and procedure 
1 ÖBB-Infrastruktur AG (‘ÖBB-Infra’) is the railway infrastructure undertaking 
which is responsible in Austria for the publication of charges in the relevant 
network statement (‘NS’) and for the collection of charges. Market mark-ups are 
approved by the competent national regulator, the Schienen-Control Kommission 
(Railway Supervisory Commission; ‘the SCK’). 
2 For the 2018 working timetable period, ÖBB-Infra applied for the first time for 
the approval of market mark-ups on infrastructure charges. That working 
timetable period ran from 10 December 2017 to 8 December 2018. Up until 
10 April 2017, rail transport undertakings could make requests for the allocation 
of infrastructure capacity for that period. Four months before the expiry of that 
period, ÖBB-Infra published in its NS the train path product catalogue for the 
corresponding period. 
3 The 2019 working timetable period ran from 9 December 2018 to 7 December 
2019. Up until 9 April 2018, rail transport undertakings could make requests for 
the allocation of infrastructure capacity for that period. Four months before the 
expiry of that period, ÖBB-Infra published in its NS the train path product 
catalogue for the corresponding period. 
4 The product catalogues for the 2018 and 2019 working timetable periods each 
contained the following information: ‘Infrastructure charges shall be paid by [rail 
transport undertakings] for services provided in the minimum access package in 
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accordance with [reference to other sections of the NS]. The infrastructure charge 
shall be set in accordance with the provisions of the Law on railways (in 
particular Paragraph 67 et seq.) and Implementing Regulation 2015/909/EU. … 
Infrastructure charges include costs directly incurred as a result of operating the 
train service (Paragraph 67(1) of the EisbG) and market mark-ups 
(Paragraph 67d of the EisbG) as well as surcharges/discounts (Paragraph 67a et 
seq. of the EisbG). … Market mark-ups are set for the market segments 
“commercial passenger transport”, “public service passenger long-distance 
transport”, “abundant local transport”, “limited local transport” and “freight 
transport not handled”.’ 
5 In the 2018 NS, only the total charge to be paid per train path kilometre travelled 
was indicated for each of the five abovementioned market segments and not the 
level of the charges for direct costs and market mark-ups in each market segment. 
6 In the 2019 NS, by contrast, for each market segment both the market mark-ups 
and the charges for direct costs were indicated per train path kilometre travelled, 
and then from both the total charge to be paid was calculated. 
7 The 2018 and 2019 NS each contained the following sentence with regard to 
market mark-ups: ‘The procedure for approving market mark-ups under 
Paragraph 67d(6) of the EisbG is still ongoing.’ Only the 2019 NS contained in 
addition a more detailed approval requirement in the event that ‘a final decision 
has not been made in that procedure until after the start of the working timetable 
period’ whereby, in that case, ‘subsequent and/or back charging of any 
infrastructure charges that may have been overcharged or undercharged up to 
that point’ was announced. 
8 By letter of 12 August 2016, ÖBB-Infra applied to the SCK for approval of the 
precisely determined market mark-ups for the five market segments mentioned 
above (which had not previously been published in the 2018 NS) as an 
infrastructure charge for the 2018 working timetable period. Those market mark-
ups were approved by the SCK for the 2018 working timetable period. 
9 On appeal by WESTbahn against that decision, the Bundesverwaltungsgericht 
(Federal Administrative Court, Austria) annulled the decision on the ground that 
the investigation procedure was defective and referred the case for a new hearing 
and decision back to the SCK, which continued its procedure relating to the 2018 
working timetable period. 
10 By letter of 18 August 2017, ÖBB-Infra applied to the SCK for approval of the 
precisely determined mark-ups for the five market segments mentioned above (the 
levels of which had previously been published in the 2019 NS) as an infrastructure 
charge for the 2019 working timetable period. 
11 The SCK joined that procedure with the procedure for the 2018 mark-ups and 
initiated a procedure to examine ÖBB-Infra’s direct costs, which was also joined 
with the other two procedures. 
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12 The SCK requested that ÖBB-Infra recalculate the direct costs. Subsequently, by 
letter of 24 June 2019, ÖBB-Infra requested amendments to the market mark-ups 
initially requested for 2018 and 2019 on the ground that, if the direct costs were 
likely to be set at a lower level by the SCK than those envisaged by ÖBB-Infra, 
the market mark-ups would have to be set at a higher level in order to attain the 
revenue target set at ministerial level. 
13 As a result, the SCK gave a decision on ÖBB-Infra’s applications for approval of 
mark-ups pursuant to Paragraph 67d(6) of the EisbG as an infrastructure charge 
for 2018 and 2019 and in the competition monitoring procedure on ÖBB-Infra’s 
direct costs. In point 1 of the operative part of its decision, it determined the 
market mark-ups and charges for direct costs per train path kilometre travelled for 
each of the five market segments for the 2018 working timetable period and then 
from both calculated the total charge to be paid. In point 2 of the operative part of 
its decision, it determined the market mark-ups and charges for direct costs per 
train path kilometre travelled for each of the five market segments for the 2019 
working timetable period and then from adding both calculated the total charge to 
be paid. 
14 Both ÖBB-Infra and WESTbahn appealed against that decision before the 
referring court, each also challenging points 1 and 2 of the operative part of that 
decision concerning the mark-ups and direct costs for the 2018 and 2019 working 
timetable periods. 
15 ÖBB-Infra receives State subsidies from the Republic of Austria in accordance 
with Paragraph 42 of the Federal Law on Railways and also received such 
subsidies for 2018 and 2019. In that context, the Republic of Austria notifies 
ÖBB-Infra, via the Ministry of Transport and after consultation with the Ministry 
of Finance, on the basis of Paragraph 42 of the Federal Law on Railways, for each 
working timetable period, of the total charges (‘revenue target’ or ‘target 
revenue’) which ÖBB-Infra must generate from the infrastructure charges plus 
market mark-ups in the relevant working timetable period. For the 2018 working 
timetable period, the Republic of Austria set a target revenue of EUR 369.05 
million, excluding service trains and excluding discounts and surcharges (such as 
the congestion surcharge or locomotive factor) (including service trains, however 
excluding discounts and surcharges, the target revenue was fixed at EUR 377.67 
million). The term ‘service trains’ must be construed as purely ‘locomotive train 
journeys’ and ‘empty passenger trains’, thus transfer journeys without goods and 
without passengers. For the 2019 working timetable period, the Republic of 
Austria set a target revenue of EUR 376.49 million, excluding service trains and 
excluding discounts and surcharges (including service trains, however excluding 
discounts and surcharges, the target revenue was fixed at EUR 385.53 million). 
16 The SCK bases its calculation of the market mark-ups on the respective ‘revenue 
target’ (excluding service trains and excluding discounts and surcharges) and 
states the following in its decision: ‘This revenue target (excluding service trains 
and excluding discounts and surcharges) must be covered by charges, taking into 
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account a subdivision into direct costs, on the one hand, and mark-ups, on the 
other. Whereas mark-ups are intended to cover at least part of the overhead costs, 
thus fixed costs, charges are based on the costs incurred directly as a result of 
operating the train service (c). These vary – unlike overheads – according to the 
number of train path kilometres (Ztrkm). Thus, as a first step, the direct costs of 
all train path kilometres of the respective market segment must be deducted from 
the specified revenue target in order to determine the level of the share of 
overhead costs to be covered by mark-ups. This is henceforth referred to as the 
contribution margin target.’ 
Main arguments of the parties to the main proceedings 
17 As regards the approval of market mark-ups, ÖBB-Infra takes the view in law that 
this is a time-related approval, thus an ex-post approval. The SCK shares that view 
and relies on, first, the case-law of the Verwaltungsgerichtshof (Supreme 
Administrative Court, Austria) and legal literature and, secondly, on the judgment 
[of the Court of Justice] of 9 November 2017, CTL Logistics (C-489/15, 
EU:C:2017:834) (inter alia, paragraph 97). 
18 Against this, WESTbahn argues that the obligation of transparency under railway 
law and the protection of legitimate expectations preclude retroactive approval, 
which is why ex-ante approval is provided for. The case-law of the Supreme 
Administrative Court on which the SCK relies was, WESTbahn submits, adopted 
in the context of the SCK’s general ex-post competition supervision. However, the 
present case concerns an ex-ante approval procedure in relation to charges which 
constitute an exception to the general charging schemes under railway law. The 
main objective of ex-ante control and approval of charges is to avoid 
shortcomings in legal protection and in law enforcement for railway undertakings 
which might arise due to the significant imbalance of powers resulting from a 
monopoly on the part of the network owner. Ex-post control does not reliably 
prevent restriction of competition. The judgment of 9 November 2017, CTL 
Logistics (C-489/15, EU:C:2017:834), is not, it contends, relevant since that case 
concerned the delimitation of powers in relation to the review of charges subject 
to regulation under public law. It neither explicitly nor implicitly contains a 
statement with regard to the power of regulatory authorities to determine the level 
of charges retroactively. 
19 WESTbahn takes the view that the EU legislature has adopted a coherent system 
in the order of establishing, approving, publishing and applying charges. This 
constitutes an exception to the general charging system. Thus, the establishment 
of charges already requires approval. It is only subsequently that the charges are 
published in the NS, on the basis of which contracts governed by private law are 
then concluded between railway infrastructure undertakings and rail transport 
undertakings. Therefore, the use of the market mark-ups which were published in 
the 2018 and 2019 NS, but not authorised, is, it submits, unlawful. 
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20 The SCK considers that the market mark-ups may be approved despite the failure 
to publish them in the 2018 NS. It states that it is true that infrastructure charges 
and market mark-ups must be indicated separately. However, the principle of 
proportionality, which is also decisive in the context of the implementation of EU 
law and is enshrined in Article 51(1) of the Charter of Fundamental Rights of the 
European Union, precludes eligibility being denied on the ground of a lack of 
publication. The rail transport undertakings were aware of the overall 
infrastructure charge per market segment as a result of the publication in the 2018 
NS. Thus, financial planning security also existed. 
21 In its decision, the SCK assumes that the published charges have a binding effect 
in so far as it may not set higher total charges per market segment, thus the sum of 
the charges for direct costs and market mark-ups, than those previously published 
in the NS. However, it is free to set both the charges for direct costs and market 
mark-ups at levels which are higher or lower than those published in the NS, so 
long as the published total charges are not exceeded. 
22 ÖBB-Infra takes the legal view that, as a railway infrastructure undertaking, it 
should also be protected in respect of its planning security: it submitted 
applications for approval of the mark-ups for each of the two working timetable 
periods 16 months in advance and started planning the charges with lead times of 
approximately 22 months before the beginning of each working timetable period. 
Thus, in the final setting of the charges, the referring court must be free to alter in 
any direction the charges for direct costs and the market mark-ups, even if this 
results in the level of the total charges published or applied for being exceeded. 
ÖBB-Infra therefore asks the referring court, in its principal claims, to set the 
charges for direct costs and market mark-ups at specific levels (and thus 
regardless of a binding effect and in part at a level which is higher than that 
published in the NS). 
23 WESTbahn considers that a ‘revenue target’ is, in principle, unlawful. The SCK, it 
argues, should instead have determined the costs for full cost recovery and should 
have set market mark-ups only if there was a ‘shortfall’ in relation to ÖBB-Infra’s 
total revenue. In that regard, the State subsidies under Paragraph 42 of the Federal 
Law on Railways should also have counted towards the coverage costs, as should 
other charges levied by ÖBB-Infra, for example those for the use of passenger 
platforms or for the use of utilities. 
24 Against this, ÖBB-Infra contends that the SCK’s assessment of the ‘revenue 
target’ is too low. It states that the SCK should not have disregarded service trains 
in the calculation, but should rather have used the overall revenue target set by the 
minister responsible. 
Brief summary of the reasons for the request for a preliminary ruling 
25 The referring court does not make any submissions of its own, but confines itself 
to reproducing the submissions of the parties.