62010CJ0512
JUDGMENT OF THE COURT (First Chamber)
30 May 2013 (
*1
)
‛Failure of a Member State to fulfil obligations — Transport — Directive 91/440/EEC — Development of the Community’s railways — Directive 2001/14/EC — Allocation of railway infrastructure capacity — Article 6(2) and (3) of Directive 2001/14 — Continued absence of financial balance — Articles 6(1) and 7(3) and (4) of Directive 91/440 — Absence of incentives for infrastructure managers — Articles 7(3) and 8(1) of Directive 2001/14 — Calculation of the minimum access charge’
In Case C-512/10,
ACTION under Article 258 TFEU for failure to fulfil obligations, brought on 26 October 2010,
European Commission, represented by H. Støvlbæk and K. Herrmann, acting as Agents, with an address for service in Luxembourg,
applicant,
v
Republic of Poland, represented by M. Szpunar, K. Bożekowska-Zawisza and M. Laszuk, acting as Agents,
defendant,
supported by:
Czech Republic, represented by M. Smolek, T. Müller and J. Očková, acting as Agents,
Italian Republic, represented by G. Palmieri, acting as Agent, and S. Fiorentino, avvocato dello Stato,
interveners,
THE COURT (First Chamber),
composed of A. Tizzano, President of the Chamber, A. Borg Barthet (Rapporteur), E. Levits, J.-J. Kasel and M. Berger, Judges,
Advocate General: N. Jääskinen,
Registrar: A. Impellizzeri, Administrator,
having regard to the written procedure and further to the hearing on 20 September 2012,
after hearing the Opinion of the Advocate General at the sitting on 13 December 2012,
gives the following
Judgment
1
By its application, the European Commission seeks a declaration from the Court that:
—
by failing to adopt the measures necessary to ensure that the entity entrusted with the exercise of essential functions listed in Annex II to Council Directive 91/440/EEC of 29 July 1991 on the development of the Community’s railways (OJ 1991 L 237, p. 25, and – Corrigendum – OJ 1991 L 271, p. 70), as amended by Directive 2004/51/EC of the European Parliament and of the Council of 29 April 2004 (OJ L 164, p. 164 and – Corrigendum – OJ 2004 L 220, p. 58; ‘Directive 91/440’) is independent of the undertaking which provides rail transport services;
—
by failing to adopt in good time appropriate measures to ensure the financial balance of the infrastructure manager;
—
by failing to introduce an incentive scheme to encourage the manager to reduce the costs and charges for the use of infrastructure; and
—
by failing to transpose correctly the provisions on the levying of charges for the use of railway infrastructure in 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 (OJ 2001 L 75, p. 29), as amended by Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 (OJ 2004 L 164, p. 44; ‘Directive 2001/14’),
the Republic of Poland has failed to fulfil its obligations under Article 6(3) of, and Annex II to, Directive 91/440, Articles 4(2), 6(2) and (3), 7(3), 8(1) and 14(2) of Directive 2001/14 and Article 6(1) of Directive 2001/14, read in conjunction with Article 7(3) and (4) of Directive 91/440.
Legal context
European Union law
2
Article 7(3) and (4) of Directive 91/440 provided that:
‘3.   Member States may also accord the infrastructure manager, having due regard to Articles [73 EC], [87 EC] and [88 EC], financing consistent with the tasks, size and financial requirements, in particular in order to cover new investments.
4.   Within the framework of general policy determined by the State, the infrastructure manager shall draw up a business plan including investment and financial programmes. The plan shall be designed to ensure optimal and efficient use and development of the infrastructure while ensuring financial balance and providing means for these objectives to be achieved.’
3
Article 6 of Directive 2001/14 was worded as follows:
‘1.   Member States shall lay down conditions, including where appropriate advance payments, to ensure that, under normal business conditions and over a reasonable time period, the accounts of an infrastructure manager shall at least balance income from infrastructure charges, surpluses from other commercial activities and State funding on the one hand, and infrastructure expenditure on the other.
Without prejudice to the possible long-term aim of user cover of infrastructure costs for all modes of transport on the basis of fair, non-discriminatory competition between the various modes, where rail transport is able to compete with other modes of transport, within the charging framework of Articles 7 and 8, a Member State may require the infrastructure manager to balance his accounts without State funding.
2.   Infrastructure managers shall, with due regard to safety and to maintaining and improving the quality of the infrastructure service, be provided with incentives to reduce the costs of provision of infrastructure and the level of access charges.
3.   Member States shall ensure that the provision set out in paragraph 2 is implemented, either through a contractual agreement between the competent authority and infrastructure manager covering a period of not less than three years which provides for State funding or through the establishment of appropriate regulatory measures with adequate powers.
…’
4
Article 7(3) of Directive 2001/14 provided that:
‘Without prejudice to paragraphs 4 or 5 or to Article 8, the charges for the minimum access package and track access to service facilities shall be set at the cost that is directly incurred as a result of operating the train service.’
5
Article 8(1) of Directive 2001/14 provided that:
‘In order to obtain full recovery of the costs incurred by the infrastructure manager a Member State may, if the market can bear this, levy mark-ups on the basis of efficient, transparent and non-discriminatory principles, while guaranteeing optimum competitiveness in particular of international rail freight. The charging system shall respect the productivity increases achieved by railway undertakings.
The level of charges must not, however, 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 which the market can bear.’
Polish law
The Law of 2000
6
Article 15 of the Law on the sale, restructuring and privatisation of the public undertaking Polskie Koleje Państwowe (ustawa o komercjalizacji, restrukturyzacji prywatyzacji przedsiębiorstwa państwowego ‘Polskie Koleje Państwowe’) of 8 September 2000 (Dz. U. of 2000, no 84, position 948), in the version that applies to these proceedings (‘the Law of 2000’), provides that:
‘1.   PKP SA shall create a joint stock company responsible for managing railway lines, operating under the name “PKP Polskie Linie Kolejowe Spółka Akcyjna” (“PLK SA”).
…
4.   PLK SA shall become the railway manager within the meaning of the [Law on rail transport (ustawa o transporcie kolejowym) of 28 March 2003 (Dz. U. of 2007, no 16, position 94; “the Law on rail transport”)].’
The Law on rail transport
7
Article 33(1) to (8) of the Law on rail transport provides that:
‘1.   The [infrastructure] manager shall set the amount of the charges payable by rail carriers for the use of infrastructure.
2.   The basic charge for the use of railway infrastructure shall be set taking into account the cost directly incurred by the manager as a result of operating the train service.
3.   The charge for the use of railway infrastructure shall be composed of the basic charge and additional charges.
3a.   In connection with the basic charge, the manager shall apply a separate charge for:
(1)
minimum access to railway infrastructure, encompassing the services referred to in Part I(1) of the Annex to the Law;
(2)
access to facilities connected with train maintenance, encompassing the services referred to in Part I(2) of the Annex to the Law.
4.   The basic charge for minimum access to railway infrastructure shall be calculated as the product of train runs and the unit rates set according to the category of railway line and type of train, such charge to be calculated separately for passenger transport and freight.
4a.   The manager may apply a minimum unit rate for the basic charge for minimum access to railway infrastructure. The minimum rate shall be applied on an equivalent basis to all passenger rail carriers for the use of railway infrastructure in connection with activities performed under the public service agreement.
…
4c.   The basic charge for access to equipment connected with train maintenance shall be calculated as the product of the services provided and the corresponding unit rates, the amount of which shall vary according to the type of services referred to in Part I(2) of the Annex to the Law.
5.   The unit rate for the basic charge for minimum access to railway infrastructure shall be set per train, per kilometre travelled.
5a.   In setting the unit rates for the basic charge, the manager shall subtract from the amount earmarked for the costs of the provision of railway infrastructure to rail carriers the subsidy for the renovation and maintenance of infrastructure received from the State or local authority budgets and the resources from the Rail Fund.
…
5c.   Any increase in the unit rates for the basic charge for passenger rail transport under a public service agreement may not, during the validity period of the timetables within the meaning of Article 30(5), exceed the inflation index level laid down in the draft budget law for the relevant year.
6.   The manager shall publish, in accordance with current practice, the amount and types of rates of the basic charge and additional charges, making a distinction between passenger transport and freight.
7.   The unit rates for the basic charge and additional charges, except charges for the use of traction current, shall be communicated, together with the calculations of the amounts, to the President of the [Office for Rail Transport].
8.   The President of the [Office for Rail Transport] shall approve the rates referred to in paragraph 7 [above] within 30 days of receipt or refuse to approve them if any infringement of the rules set out in paragraphs [2 to 6 above], Article 34 or in the provisions adopted on the basis of Article 35 is ascertained.’
8
Article 38a(1) and (2) of the Law on rail transport states that:
‘1.   The minister responsible for transport may, using funds from the State budget or the Rail Fund, co-finance the renovation and maintenance of railway infrastructure in order to reduce the costs and the amount of the charges for use if the infrastructure is made available by the manager in accordance with the principles laid down by this Law.
2.   The task referred to in paragraph 1 shall be performed on the basis of a contract concluded between the minister responsible for transport and the manager for a period of at least three years.’
The 2009 Ministerial Regulation
9
The Regulation of the Minister for Infrastructure concerning conditions for access to and the use of railway infrastructure (rozporządzenie Ministra Infrastruktury w sprawie warunków dostępu i korzystania z infrastruktury kolejowej) of 27 February 2009 (Dz. U. of 2009, no 35, position 274; ‘the 2009 Ministerial Regulation’) provides, in Article 6 thereof, as follows:
‘The basic charge referred to in Article 33(4) of the [Law on rail transport] shall be calculated as the product of the number of train-kilometres travelled and the rate applicable to the category of railway line concerned, such category to be established having regard to the average daily volume of traffic and permitted technical speed, taking into account permanent limits, as well as the type of train and the total gross mass of the train, as specified for the allocated route.’
10
Article 7 of the 2009 Ministerial Regulation provides that:
‘The unit rates for the basic charge referred to in Article 6 shall be set for:
(1)
passenger trains,
(2)
freight trains.’
11
Article 8 of the 2009 Ministerial Regulation provides as follows:
‘1.   In calculating the rates for the provision of railway infrastructure, the infrastructure manager must take into consideration:
(1)
the direct costs, which cover:
(a)
maintenance costs;
(b)
rail traffic management costs; and
(c)
depreciation;
(2)
the indirect costs of the activity, which cover the reasonable costs incurred by the infrastructure manager other than those referred to in subparagraphs 1 and 3;
(3)
the financial costs relating to the repayment of loans taken out by the manager to develop and modernise the infrastructure provided;
(4)
operational work established for the different categories of lines and trains referred to in Article 7.
2.   The rate shall vary according to the category of the railway line and the total gross mass of the train, the rate increasing as those parameters increase.
3.   Where they concern the same category of line and the same total gross mass, the rates for train movements, referred to in Article 7, must be equal.
4.   The rates for the trains referred to in Article 7 shall be set out in the form of tables in which the rows are to relate to the gross mass of the trains and the vertical columns to the railway lines.’
Pre-litigation procedure
12
On 10 May 2007, the Commission sent a questionnaire to the Republic of Poland in order to ensure that Poland had correctly transposed Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001, amending Directive 91/440 (OJ 2001 L 75, p. 1), Directive 2001/13/EC of the European Parliament and of the Council of 26 February 2001, amending Council Directive 95/18/EC on the licensing of railway undertakings (OJ 2001 L 75, p. 26) and Directive 2001/14 (together ‘the first railway package’) into its domestic law. The Polish authorities replied to that questionnaire by letter of 5 July 2007.
13
On 21 October 2007, the Commission requested further clarification, which the Republic of Poland provided in a letter of 20 December 2007.
14
On 26 June 2008, on the basis of the information sent by the Republic of Poland, the Commission gave Poland formal notice requiring it to comply with the directives in the first railway package. The main irregularities identified related to PLK SA’s lack of independence and the levying of infrastructure access charges.
15
On 26 August 2008, the Republic of Poland replied to the Commission’s letter of formal notice.
16
On 9 October 2009, the Commission sent the Republic of Poland a reasoned opinion, in which it complained that the latter had not taken the necessary measures to guarantee the independence of the railway infrastructure manager vis-à-vis rail carriers and invited Poland to take the measures necessary to comply with the reasoned opinion within two months of its receipt.
17
By letter of 9 December 2009, the Republic of Poland responded to the reasoned opinion, disputing the infringements alleged by the Commission.
18
In those circumstances, the Commission brought the present action.
Procedure before the Court
19
By order of the President of the Court of 13 April 2011, the Czech Republic and the Italian Republic were given leave to intervene in support of the form of order sought by the Republic of Poland.
20
By document lodged at the Court Registry on 12 April 2013, the Commission informed the Court that it intended to discontinue its first complaint, alleging infringement of Article 6(3) of Directive 91/440 and Articles 4(2) and 14(2) of Directive 2001/14.
21
In its observations on the discontinuance, the Republic of Poland submitted that the Commission should be ordered to pay the costs relating to that complaint.
The action
Second complaint: continued absence of financial balance
Arguments of the parties
22
The Commission claims that the Republic of Poland did not take appropriate measures to ensure, in good time, the financial balance of the infrastructure manager, namely PLK SA, in breach of its obligations under Article 6(1) of Directive 2001/14, read in conjunction with Article 7(3) and (4) of Directive 91/440. The Commission states that it is clear from the Polish Government’s reply to the reasoned opinion that the income and expenditure of PLK SA would not be balanced until 2012.
23
The Republic of Poland claims that the infrastructure manager achieved financial balance if account is taken of its operating profit before depreciation. Article 6(1) of Directive 2001/14 does not provide that depreciation costs are to be taken into account in determining whether financial balance has been achieved, in particular the costs for railway lines which are being or will be withdrawn in the future, so that possible renovation costs were not taken into account when the infrastructure access charges were set.
24
As regards Article 7(3) of Directive 91/440, the Republic of Poland maintains that Articles 33 to 35 of the Law on rail transport, concerning charges to be paid by rail carriers, provide for the financing of the railway infrastructure and that the State budget and the Rail Fund, which may provide funds for the costs of renovating and maintaining the railway infrastructure pursuant to Articles 38 and 38a of that Law, constitute a second source of financing. PLK SA income obtained from carrying on activities other than providing railway infrastructure constitutes a third source of financing for PLK SA.
25
In relation to Article 7(4) of Directive 91/440, the Republic of Poland submits that PLK SA prepares, as is required by its statutes, annual financial plans, which include annual investment programmes, to be drawn up in such a way as to ensure that they are financed from different sources.
Findings of the Court
26
Pursuant to Article 6(1) of Directive 2001/14, Member States are to lay down conditions to ensure that, under normal business conditions and over a reasonable time period, the accounts of an infrastructure manager at least balance income from infrastructure charges, surpluses from other commercial activities and State funding on the one hand, and infrastructure expenditure on the other.
27
In the opinion of the Republic of Poland, that provision does not require the Member States to ensure that the infrastructure manager’s profit and loss account is balanced, contrary to what the Commission maintains, but only to provide the necessary financing to ensure that the operating profit, before depreciation, is balanced.
28
It must first be noted that, if, in accordance with accounting principles, depreciation is not treated as ‘expenditure’, a concept which implies a cash-flow, but rather as a charge without any disbursement, the use of that term in Article 6(1) of Directive 2001/14 cannot in any event be regarded as decisive because the second subparagraph of that provision refers to ‘infrastructure costs’.
29
It should then be noted, as observed by the Advocate General in point 55 of his Opinion, that the use of the term ‘advance payments’ in Article 6(1) of Directive 2001/14, in as much as it appears to suggest a priori that the obligation referred to in that provision is intended to protect not the accounting balance but the liquidity of the manager, could constitute an argument in favour of the interpretation put forward by the Republic of Poland.
30
However, it must also be pointed out, as observed by the Advocate General in point 57 of his Opinion, that the provisions of Article 7 of Directive 91/440 which, in paragraphs 3 and 4 respectively, allow Member States to provide the infrastructure manager with financing consistent with its tasks, size and financial requirements, and require the infrastructure manager to draw up a business plan ensuring financial balance in keeping with the general policy determined by the State, specifically aim to ensure the liquidity of the infrastructure manager.
31
Consequently, if the infrastructure manager’s obligation to balance the accounts were construed as being intended to protect not the accounting balance but the liquidity of the manager, Article 6(1) of Directive 2001/14 would have no field of application distinct from that of Article 7(3) and (4) of Directive 91/440.
32
Furthermore, it must be pointed out that recording the depreciation of assets is, in accordance with Article 35(1)(b) of the Fourth Council Directive 78/660/EEC of 25 July 1978, based on Article [44(2)(g) EC], on the annual accounts of certain types of companies (OJ 1978, L 222, p. 11), an accounting requirement without which the annual accounts of a capital company such as PLK SA could not give a true and fair view of the company’s assets, liabilities, financial position and profit or loss, as required by Article 2(3) of that directive.
33
It must also be pointed out, as observed by the Advocate General in point 59 of his Opinion, that the requirement to write off the value of assets does not depend on whether or not the undertaking intends to renew a fixed asset.
34
In light of the foregoing, the requirement laid down in Article 6(1) of Directive 2001/14 must be construed as being a requirement to balance the infrastructure manager’s profit and loss account.
35
However, where the infrastructure manager’s profit and loss account does not balance, that is not sufficient, in itself, to conclude that the Member State in question has failed to fulfil its obligations under Article 6(1) of Directive 2001/14. To reach such a conclusion, it would also be necessary to establish, in accordance with the actual wording of that provision, that the failure to balance the accounts occurs ‘under normal business conditions’ and ‘over a reasonable time period’.
36
The Commission maintains in this regard that if PLK SA accumulates losses at a level equivalent to that indicated by the Republic of Poland in its reply to the letter of formal notice, it would be impossible for it to achieve the financial balance required under Article 6(1) of Directive 2001/14. Moreover, the Commission considers that Poland has not accorded the infrastructure manager financing that is consistent with its tasks, size and financial requirements.
37
According to the figures contained in the application, the deficit of PLK SA increased from 2% in 2006 to 10% (forecast) in 2009. Over the same period, State funding rose from 10.8% to 19.3% (forecast), whereas costs covered by income from infrastructure access charges fell in parallel from 79.4% in 2006 to 64.4% in 2009 (forecast).
38
The Republic of Poland claims, however, that it is expected that by 2015 the State will cover 37.5% of infrastructure-linked expenditure, which, it states, will result in an appreciable drop in the level of charges for rail carriers.
39
In its rejoinder, the Republic of Poland points out that it submitted in its reply to the reasoned opinion the government plan for an increase in the financing of the infrastructure manager, the objective of which is to balance the budget by 2012. In addition, Poland also expects that it will balance the budget when planning the income and expenditure of PLK SA. Whilst stating that the final outcome will depend on the economic climate, the Republic of Poland points out that in 2009 there was a 17% fall in the volume of goods carried by rail compared with the previous year.
40
In that regard it must be pointed out that Article 6(1) of Directive 2001/14 does not offer any clarification concerning the application of the criterion of the ‘reasonable time period’, which, according to the first subparagraph of Article 8(4) 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) (repealing, inter alia, Directive 2001/14 from 15 December 2012), may not exceed a period of five years.
41
In this case, it is apparent from the documents before the Court that the Republic of Poland granted the first subsidy of 340 million zlotys (PLN) to PLK SA in 2006, after the manager had commenced its activities. The annual State subsidy was increased to PLN 900 million in 2010, and to PLN 1 200 million in 2012, the year in which financial balance was to be achieved. Lastly, in subsequent years, that subsidy is expected to increase by PLN 100 million each year.
42
According to the information in the case file, the Polish rail network is very dense, in poor condition and to a large extent unprofitable. Moreover, the independent management of the railway infrastructure began only recently, the first State subsidy having been granted in 2006. At the same time, despite the repeated grant of funding by the Polish State to the infrastructure manager, its income has fallen, in part because of the major economic crisis faced by the European Union. According to the Polish State’s financial plans, the budget is nevertheless expected to be balanced by 2012.
43
Having regard to the foregoing, it cannot be concluded that the Republic of Poland has not laid down appropriate conditions to ensure that, under normal business conditions and over a reasonable time period, the accounts of the infrastructure manager at least balance income from infrastructure charges and infrastructure expenditure.
44
Therefore, the second complaint relied on by the Commission in support of its action must be dismissed.
Third complaint: absence of incentives for the manager to reduce the costs of providing infrastructure and the amount of access charges
Arguments of the parties
45
The Commission claims that, by failing to introduce, in accordance with Article 6(2) and (3) of Directive 2001/14, an incentive scheme to encourage the manager to reduce the costs of providing infrastructure and the amount of the charges for access to the infrastructure, the Republic of Poland has failed to fulfil its obligations under those provisions.
46
The Commission argues, in particular, that Article 38a of the Law on rail transport does not create an incentive scheme suitable for the purpose of encouraging the manager to reduce the costs of providing infrastructure and the level of access charges.
47
The Republic of Poland claims first that, while Directive 2001/14 requires Member States to introduce incentives with a view to increasing the efficiency of the infrastructure manager, it does not in any event define the nature of those incentives.
48
The Republic of Poland then submits that the minister responsible for transport decides each year, along with PKP SA, a company wholly controlled by the Treasury, whether or not to give rewards to PLK SA board members with a view to increasing the efficiency of the infrastructure manager.
49
The Republic of Poland also refers to other corporate governance instruments applicable to PLK SA, such as the decision that the costs of rail protection services are not to be borne by the charge for access to infrastructure, but that those services are to be financed from funds obtained by the company from other types of activities, and the fact that the amount of public funds allocated to the manager’s operational activity is made subject to the effectiveness of its activity.
50
Finally, the Republic of Poland submits that Article 33 of the Law on rail transport, under which the unit rates of the charges are submitted for approval to the President of the Office for Rail Transport, implements adequately the regulatory measures laid down in Article 6(3) of Directive 2001/14.
51
The Czech Republic contends that the requirement for incentives to reduce the costs of providing infrastructure and the level of access charges is the ultimate objective of Article 6(2) of Directive 2001/14, that is to say, it is the status which must be achieved. As that provision expressly stipulates, it is necessary to create the preconditions for this. Thus, in seeking to attain that objective, a Member State must have due regard to safety and to maintaining and improving the quality of the infrastructure service.
52
The Czech Republic adds that, in a situation in which the infrastructure is in poor condition, those preconditions are not met. In those circumstances, the conclusion of an agreement between the Member State and the infrastructure manager on the financing of the costs of repairing or maintaining infrastructure is a measure intended to achieve the ultimate objective laid down in Article 6(2) of Directive 2001/14, which must be regarded as sufficient, having regard to the state of the infrastructure.
53
In its reply to the statement in intervention submitted by the Czech Republic, the Commission claims that such an interpretation of Article 6(2) of Directive 2001/14 is incorrect.
54
In its view, it does not follow from that provision that the requirement to introduce the incentives specified therein depends on the state of the railway infrastructure. On the contrary, such a requirement exists in its own right. Thus, the conclusion of an agreement between the Member State concerned and the infrastructure manager on financing the costs of repairing and maintaining infrastructure which does not include incentives for the manager to reduce the costs of providing infrastructure and the level of access charges does not satisfy the requirement laid down by that provision.
Findings of the Court
55
It follows from Article 6(2) of Directive 2001/14 that the infrastructure managers are, with due regard to safety and to maintaining and improving the quality of the infrastructure service, to be provided with incentives to reduce the costs of the provision of infrastructure and the level of access charges for use of the infrastructure.
56
Article 6(3) of Directive 2001/14 provides that the requirement laid down in Article 6(2) is to be implemented, either through a multi-annual agreement between the infrastructure manager and the competent authority which provides for State funding or through the establishment of appropriate regulatory measures with adequate powers.
57
In this case, it is clear that while Article 38a(1) and (2) of the Law on rail transport sets the objective of reducing expenditure and the amount of the charges for use, it nevertheless fails to define the incentive mechanism by which that objective should be achieved.
58
Moreover, it is common ground that the Law on rail transport does not establish regulatory measures with adequate powers requiring the infrastructure manager to be accountable for its management to a competent authority, in accordance with Article 6(3) of Directive 2001/14.
59
In addition, it should be pointed out that the Republic of Poland does not maintain that, even if they could be regarded as incentives within the meaning of Article 6(2) of that directive, the measures it relies on, referred to in paragraphs 48 and 49 above, form part of a multi-annual funding agreement, in accordance with Article 6(3).
60
Finally, as regards the Czech Republic’s arguments, suffice it to state that, while it follows from Article 6(2) of Directive 2001/14 that Member States are required to take into consideration the state of the infrastructure when applying Article 6(2) and (3), they are nonetheless also required either to conclude multi-annual funding agreements containing incentives or to establish an appropriate regulatory framework for that purpose.
61
Having regard to all the foregoing, it must be concluded that the Commission’s third complaint in support of its action is well founded.
Fourth complaint: the calculation of the charge levied for minimum access to railway infrastructure
Arguments of the parties
62
The Commission claims that the Republic of Poland has not fulfilled its obligations under Articles 7(3) and 8(1) of Directive 2001/14.
63
It claims that the term ‘cost that is directly incurred as a result of operating the train service’ within the meaning of Article 7(3) of that directive refers to the ‘marginal cost’. According to the Commission, the ‘marginal cost’ corresponds solely to the costs generated by actual train movements, not to the fixed costs which cover, in addition to the costs connected with the operation of the railway service, overhead costs relating to the operation of the infrastructure, which must be borne even in the absence of train movements.
64
In addition, the Commission argues that, in its reply to the reasoned opinion, the Republic of Poland acknowledged that the level of the unit rates for the basic charge for minimum access to infrastructure is dependent on planned operation works, the estimated cost of providing railway infrastructure as part of minimum access and the anticipated financing of railway infrastructure repairs and maintenance. However, those elements are not directly linked to the direct operating costs, but relate to the recovery of all the costs incurred by the manager.
65
As regards the possibilities for mark-ups on charges on the basis of Article 8(1) of Directive 2001/14, the Commission argues that, as is clear from a combined reading of the first and second subparagraphs of Article 8(1), Member States are required to introduce a supervisory mechanism covering all market segments for rail carriers and their ability to pay. That mechanism should make it possible to identify ‘market resilience’ and to ensure that certain sectors of the market which, thus far, have been able to pay the minimum charge for access to the infrastructure are not excluded.
66
However, the Law on rail transport does not create such a mechanism.
67
As regards, firstly, the complaint concerning Article 7(3) of Directive 2001/14, the Republic of Poland argues that the Law on rail transport was amended during the pre-litigation procedure in accordance with the Commission’s requirements.
68
In particular, Article 33 of the Law on rail transport provides that the basic charge for the use of railway infrastructure is set in light of the costs borne by the manager on the basis of train movements by the rail carrier.
69
The Republic of Poland also challenges the Commission’s claim that it follows from the provisions of Polish legislation that the costs directly incurred as a result of operating the train service correspond to overall maintenance and operating costs.
70
Furthermore, the Republic of Poland maintains that the Commission’s submission that the term ‘cost that is directly incurred as a result of operating the train service’ refers to the ‘marginal cost’ is unfounded. It points out in that regard that, since Directive 2001/14 does not define that term, Member States enjoy a degree of freedom, having due regard to the objectives of the directive, in defining its constituent elements and determining the amount of the access charge.
71
Secondly, as regards the complaint alleging infringement of Article 8(1) of Directive 2001/14, the Republic of Poland maintains that the Commission has not explained on what basis it found, in the light of the provisions in force in Poland, that a mark-up was added to the costs taken into consideration in calculating the charge for minimum access to include the rate of return referred to in Article 8(1) of Directive 2001/14.
72
With regard to the Commission’s complaint alleging incorrect transposition of Article 7(3) of Directive 2001/14, the Czech Republic argues that it does not in any way follow from that provision that only marginal costs can be classified as ‘cost[s] that [are] directly incurred as a result of operating the train service’. According to the Czech Republic, since neither that directive nor any other provision of European Union law defines the costs covered by that term, the determining factor is simply whether a direct link with the operation of the train service may be established.
Findings of the Court
73
Article 7(3) of Directive 2001/14 provides that the charges for the minimum access package and track access to service facilities must be set at the cost that is directly incurred as a result of operating the train service, without prejudice to Article 7(4) or (5) or to Article 8.
74
It is clear that Directive 2001/14 does not contain any definition of the term ‘cost that is directly incurred as a result of operating the train service’ and that no provision of European Union law identifies the costs covered by, or those not covered by, that term.
75
Furthermore, as regards a term derived from economics, the application of which, as pointed out by the Advocate General in point 93 of his Opinion, raises considerable practical difficulties, it must be concluded that, as European Union law currently stands, Member States have a certain discretion when transposing and applying that term in national law.
76
In this case, it follows that it is necessary to verify whether the Polish legislation in question permits the inclusion in the calculation of charges levied for the minimum access package and track access to railway infrastructure of items which clearly have not been incurred directly as a result of operating the train service.
77
In that regard, Article 33(2) of the Law on rail transport provides that the basic charge for the use of railway infrastructure is to be set taking into account the cost directly incurred by the infrastructure manager as a result of operating the train service.
78
In accordance with Article 33(4) of the Law on rail transport, the basic charge for minimum access to railway infrastructure is to be calculated as the product of train runs and the unit rates set according to the category of railway line and type of train, such charge to be calculated separately for passenger transport and freight. Under Article 33(5), the unit rate for the basic charge for minimum access to railway infrastructure is to be set per train, per kilometre travelled.
79
The methods for calculating the basic charge for minimum access to railway infrastructure are defined in Article 6 of the 2009 Ministerial Regulation.
80
Article 8(1) of the 2009 Ministerial Regulation states in that respect that in calculating the rates for the provision of railway infrastructure, the infrastructure manager is to take into consideration the direct costs, which cover maintenance costs, rail traffic management costs and depreciation. It also provides that the financial costs relating to the repayment of loans taken out by the manager to develop and modernise the infrastructure provided, the indirect costs of the activity, which cover the reasonable costs incurred by the manager other than the costs mentioned above, and operational work established for the different categories of lines and trains must be taken into consideration.
81
As the Advocate General pointed out in point 99 of his Opinion, the costs connected with signalling, traffic management, maintenance and repairs are liable to vary, at least partially, depending on traffic and, accordingly, may be considered, in part, to be directly incurred as a result of operating the train service.
82
It follows, conversely, that because they include fixed costs relating to the provision of a stretch of line on the rail network which the manager must bear even in the absence of train movements, the maintenance and traffic management costs referred to in Article 8(1) of the 2009 Ministerial Regulation must be considered to be only partially directly incurred as a result of operating the train service.
83
As regards indirect costs and financial costs, also mentioned in the national provision referred to above, it is clear that they do not have a direct link with the operation of the train service.
84
Finally, since it is determined, not on the basis of the actual wear of the infrastructure attributable to traffic, but with reference to accounting rules, depreciation cannot be viewed as being directly incurred as a result of operating the train service.
85
In those circumstances, it must be held that the 2009 Ministerial Regulation, in determining the charge levied for the minimum access package and track access to service facilities, results in account being taken of costs which cannot be considered to be directly incurred as a result of operating the train service.
86
Therefore, the Commission’s complaint alleging infringement of Article 7(3) of Directive 2001/14 must be considered well founded.
87
However, the Commission’s complaint alleging infringement of Article 8(1) of Directive 2001/14 cannot be upheld.
88
The Republic of Poland disputes that it exercised the option available under that provision of levying mark-ups on access charges, and the Commission has failed to demonstrate the validity of its allegation in that regard.
89
In the light of the foregoing, the Commission’s fourth complaint must be upheld in so far as Polish legislation permits the inclusion, in the calculation of charges levied for the minimum access package and track access to service facilities, of costs which cannot be regarded as costs directly incurred as a result of operating the train service within the meaning of Article 7(3) of Directive 2001/14.
90
Accordingly, the Court, firstly, declares that, by failing to adopt incentives to encourage the railway infrastructure manager to reduce the costs of providing infrastructure and the level of access charges, and by permitting the inclusion, in the calculation of charges levied for the minimum access package and track access to service facilities, of costs which cannot be regarded as costs directly incurred as a result of operating the train service, the Republic of Poland has failed to fulfil its obligations under Articles 6(2) and 7(3), respectively, of Directive 2001/14, and, secondly, dismisses the Commission’s action as to the remainder.
Costs
91
Under Article 138(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, they are to be ordered to bear their own costs. Furthermore, Article 141(1) of those rules provides that a party who discontinues or withdraws from proceedings is to be ordered to pay the costs if they have been applied for in the other party’s observations on the discontinuance.
92
In this case, the Commission discontinued the first complaint relied on in support of its action, and in its observations on that discontinuance the Republic of Poland applied for the Commission to be ordered to pay the costs relating to that complaint.
93
However, since the Commission and the Republic of Poland have each succeeded on some and failed on other heads, they must be ordered to bear their own costs.
94
Pursuant to Article 140(1) of those rules, under which Member States which have intervened in the proceedings are to bear their own costs, the Czech Republic and the Italian Republic must be ordered to bear their own costs.
On those grounds, the Court (First Chamber) hereby:
1.
Declares that, by failing to adopt incentives to encourage the railway infrastructure manager to reduce the costs of providing infrastructure and the level of access charges, and by permitting the inclusion, in the calculation of charges levied for the minimum access package and track access to service facilities, of costs which cannot be regarded as costs directly incurred as a result of operating the train service, the Republic of Poland has failed to fulfil its obligations under Articles 6(2) and 7(3), respectively, of 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, as amended by Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004;
2.
Dismisses the action as to the remainder;
3.
Orders the European Commission, the Republic of Poland, the Czech Republic and the Italian Republic to bear their own costs.
[Signatures]
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*1
)	Language of the case: Polish.