Opinion of the Advocate General — ECLI:EU:C:2012:528
Date: 2012-09-06
Language of the case: German
Subject matter: Transport
Procedure: Action for failure to fulfil obligations - unfounded
Origin: Germany

Summary — Judgment of the Court (First Chamber), 28 February 2013 1. Transport — Common policy — Development of the Community’s railways — Rail infrastructure manager — Independence — Assessment criteria set out in the Commission working document — Binding legal value — None — Obligation to transpose — None (European Parliament and Council Directive 2001/14; Council Directive 91/440) 2. Actions for failure to fulfil obligations — Proof of failure — Burden of proof on Commission — Production of evidence showing failure — Presumptions — Not permissible (Art. 258 TFEU) 3. Transport — Rail transport — Directive 2001/14 — Allocation of railway infrastructure capacity and charging — Levying of charges for the use of railway infrastructure — Obligations of the Member States — Scope — Determination of the infrastructure charge — Not included — Powers of the infrastructure manager (European Parliament and Council Directive 2001/14, Arts 4(1), 7(3) and 8(1)) 4. Transport — Rail transport — Directive 2001/14 — Allocation of railway infrastructure capacity and charging — Levying of charges for the use of railway infrastructure — Obligations of the Member States — Putting in place mechanisms encouraging infrastructure managers to reduce the costs of provision of infrastructure and the level of access charges — Obligation to lay down separate measures — None (European Parliament and Council Directive 2001/14, Arts 6(2) and (3), 7(3) and 8(1)) 5. Transport — Common policy — Development of the Community’s railways — Obligations of the Member States — Establishment of a regulatory body for the railway market — Powers — Obligation to provide for a right to act in the absence of a complaint or a specific suspicion of an infringement — None (European Parliament and Council Directive 2001/14, Art. 30(4); Council Directive 91/440, Art. 10(7)) 1. A Commission working document listing the criteria on the basis of which the Commission examines the independence of the national railway infrastructure manager, as required by Directive 2001/14 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure, and the measures adopted to ensure that independence has no binding legal value as it has never been published in the Official Journal of the European Union, was made public three years after the expiry of the period prescribed for the transposition of the directive and has never been referred to in any legislative act. Therefore, a Member State cannot be criticised for failing to include those criteria in the laws and regulations transposing Directive 91/440 on the development of the Community’s railways and Directive 2001/14. In those circumstances, the failure to transpose those criteria cannot of itself, lead to the conclusion that the national railway infrastructure manager lacks independent decision-making powers vis-à-vis the undertaking of which it forms part and which, as holding company, also supervises railway undertakings. (see paras 35, 58, 62, 65) 2. See the text of the decision. (see para. 66) 3. As regards the charging and railway infrastructure capacity schemes, 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 capacity establishes a division of powers as between the Member States and the infrastructure manager. The Member States are to establish a charging framework, while the determination and collection of the charge are tasks to be performed by the infrastructure manager. However, the State may recover infrastructure costs in full by means of mark-ups, if the market can bear this and if in so doing it does not exclude the use of infrastructure by market segments which can pay at least the cost that is directly incurred as a result of operating the railway service, plus a rate of return. In order to comply with the objectives pursued by Directive 2001/14, the infrastructure charge constitutes, a minimum, corresponding to the cost that is directly incurred as a result of operating the railway service as provided for in Article 7(3) of that directive, and a maximum, arising from the total costs incurred by the infrastructure manager, as provided for in Article 8(1) of the directive. The principle of direct costs and the principle of total costs are not interchangeable. The system provided for in Article 8(1) of Directive 2001/14 may be used only if the market can bear this, a market study being required in order to verify whether that is the case. Therefore, the result is that a Member State does not fail to fulfil its obligations under Directive 2001/14 where its national legislation does not state with certainty whether it is necessary to apply the principle of direct costs or the principle of total costs, but allow full recovery of the costs incurred and give the infrastructure manager the option of distinguishing between long-distance passenger services, short-distance passenger services and rail freight services, and also between market segments within those services. However, Directive 2001/14 does not require Member States to lay down more detailed rules on charging. (see paras 84, 85, 87, 88) 4. It follows from Article 6(2) and (3) of Directive 2001/14 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure capacity that it is open to Member States to implement incentive measures to reduce the costs of provisions of infrastructure and the level of access charges in the context of a multi-annual contract or by means of regulatory provisions. It does not, however, provide that such measures must be adopted as separate measures. Moreover, that incentive measures to reduce the costs of provision of infrastructure can only have the effect of reducing the level of access charges, irrespective of whether those charges are set on the basis of Article 7(3) of Directive 2001/14 or on that of Article 8(1) of the directive. (see paras 101, 107, 110) 5. The role of the regulatory body provided for in Article 30(4) of Directive 2001/14 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure capacity is to monitor and guarantee non-discriminatory access to railway infrastructure in the context of capacity allocation and charging. Therefore, the possibility for that body to obtain information derives from Article 30(2) of Directive 2001/14, which provides that an applicant has a right to appeal to the regulatory body if it believes that it has been unfairly treated, discriminated against or is in any other way aggrieved. However, neither Article 30(4) nor Article 10(7) of Directive 91/440 on the development of the Community’s railways, requires that the regulatory body has powers to obtain information in the absence of any complaint or suspicion of infringement of those directives or that imposes penalties in the event of any infringement. Thus, a Member State cannot be criticised for failing to provide for such measures in its national legislation. (see paras 120, 124, 126, 128)