Case C-545/10

European Commission

v

Czech Republic

‛Failure of a Member State to fulfil obligations — Transport — Directive 91/440/EEC — Development of the Community’s railways — Article 10(7) — Regulatory body — Competences — Directive 2001/14/EC — Allocation of railway infrastructure capacity — Article 4(1) — Charging framework — Article 6(2) — Measures intended to provide the infrastructure manager with incentives to reduce the costs of provision of infrastructure and the level of access charges — Article 7(3) — Setting charges for the minimum access package and track access to service facilities — Cost directly incurred as a result of operating the railway service — Article 11 — Performance scheme — Article 30(5) — Regulatory body — Competences — Administrative appeal against the decisions of the regulatory body’

Summary — Judgment of the Court (First Chamber), 11 July 2013

Actions for failure to fulfil obligations — Examination of the merits by the Court — Situation to be taken into consideration — Situation on expiry of the period laid down in the reasoned opinion

Transport — Rail transport — Directive 2001/14 — Allocation of railway infrastructure capacity and the levying of charges — Levying of charges for the use of infrastructure — Obligations of the Member States — Introducing a performance scheme — Scope

Transport — Rail transport — Directive 2001/14 — Allocation of railway infrastructure capacity and the levying of charges — Levying of charges for the use of infrastructure — Establishment of charges on the basis of direct costs — Cost that is directly incurred as a result of operating the train service — Meaning — Transposition and application — Member States’ discretion

Transport — Rail transport — Directive 2001/14 — Allocation of railway infrastructure capacity and the levying of charges — Obligations of the Member States — Establishing measures to provide the infrastructure manager with incentives to limit the costs of providing infrastructure and to reduce the level of access charges — Compatibility of the measures with safety requirements and with the quality of the infrastructure service

Transport — Rail transport — Directive 2001/14 — Allocation of railway infrastructure capacity and the levying of charges — Levying of charges for the use of infrastructure — Obligations of the Member States — Respect for the independence of the infrastructure manager — Scope — Member State setting a maximum charge for the use of infrastructure — Unlawful

A Member State which lays down a maximum amount for charges for the use of railway infrastructure fails to fulfil its obligations under 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. The setting, by an annual decision, of a maximum charge for the use of railway infrastructure has the effect of restricting the infrastructure manager’s freedom of action to an extent incompatible with the objectives of Directive 2001/14. In particular, in accordance with what is laid down in Article 8(2) of Directive 2001/14, the infrastructure manager must be in a position to set or to continue to set higher charges on the basis of the long-term costs of certain investment projects. (see paras 36, 37, 40)

While it is true that, under Article 6(3) of Directive 2001/14 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure, Member States are required to take into account the state of the infrastructure when applying Article 6(2) and (3) of that directive, and that the choice of incentives to be adopted, and more particularly the specific objectives pursued by Member States through those incentives, must be compatible with safety requirements and with the quality of the infrastructure service, they are nevertheless also required either to ensure that multi-annual funding agreements containing incentives to reduce the costs of the provision of infrastructure and the level of access charges are concluded, or to establish an appropriate regulatory framework for that purpose. (see paras 50, 52, 54)

Under Article 7(3) of Directive 2001/14 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure, 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 of that directive. As regards the term ‘cost that is directly incurred as a result of operating the train service’, a term belonging to economics, the application of which raises considerable practical difficulties, it is clear that the directive does not contain any definition of the term and that no provision of EU law identifies the costs covered by, or those not covered by, that term. Therefore, it must be concluded that, as EU law now stands, Member States have a certain discretion when transposing and applying that term in national law. (see paras 62, 64, 65)

See the text of the decision. (see paras 70, 72, 116, 123)

It follows from Article 11(1) of Directive 2001/14 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure, first, that the Member States must include in infrastructure charging schemes a performance scheme the purpose of which is to encourage both railway undertakings and the infrastructure manager to improve network performance. Second, as regards the types of incentive which may be introduced by the Member States, the latter remain free to choose the specific measures that are to form part of the scheme, provided such measures constitute a coherent and transparent whole which may be described as a ‘performance scheme’. A financial compensation scheme in the form of reciprocal contractual penalties, the rules for which must be defined in the contract, cannot be regarded as a complete and proper implementation of Article 11 of Directive 2001/14, as such a scheme is purely voluntary because its application is left to the discretion of the contracting parties. Similarly, a national provision which is restricted to the imposition of fines, either in the event of failure to comply with the obligations to ensure the operation of the network, or in the absence of measures being taken to rectify disruptions, cannot be regarded as establishing a performance scheme within the infrastructure charging system for the purposes of Article 11. Finally, the same is true of a provision which provides only for the grant of financial resources with a view to maintaining or improving the condition of the railway infrastructure. (see paras 80, 82-84)

See the text of the decision. (see paras 85, 86)

Article 30 of Directive 2001/14 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure must be interpreted as meaning that the administrative decisions adopted by the regulatory body, which must be established by the Member States pursuant to paragraph 1 of that article, can be subject only to judicial review. Therefore, Article 30 of that directive prevents the regulatory body’s decisions from being subject, prior to any judicial review, to a mandatory review by another administrative body. (see paras 100, 102-104)

See the text of the decision. (see paras 108, 109)