Opinion of the Advocate-General



Opinion of the Advocate-General

I – Introduction

1. By the present action, the European Commission seeks a declaration from the Court that the Kingdom of Spain has failed to fulfil its obligations under Articles 4(1), 11, 13(2) and 14(1) of Directive 2001/14/EC, (2) as last amended by Directive 2007/58/EC (3) (‘Directive 2001/14’). The Kingdom of Spain contends that the Commission’s action should be dismissed.

2. This action is one in a series of infringement proceedings, (4) brought by the Commission in 2010 and 2011, concerning the application by Member States of Directive 91/440/EEC, (5) as amended by Directive 2001/12/EC (6) (‘Directive 91/440’) and Directive 2001/14, in particular with regard to access for railway undertakings to infrastructure, that is to say, the rail network. Those actions break new ground since they provide the Court with its first opportunity to rule on the liberalisation of railways within the European Union and, inter alia, to interpret what is known as ‘the first railway package’.

II – Legal framework

A – European Union law

3. Article 4(1) and (2) of Directive 2001/14 provides:

‘1. Member States shall establish a charging framework while respecting the management independence laid down in Article 4 of Directive [91/440].

Subject to the said condition of management independence, Member States shall also establish specific charging rules or delegate such powers to the infrastructure manager. The determination of the charge for the use of infrastructure and the collection of this charge shall be performed by the infrastructure manager.

2. Where the infrastructure manager, in its legal form, organisation or decision-making functions, is not independent of any railway undertaking, the functions, described in this chapter, other than collecting the charges shall be performed by a charging body that is independent in its legal form, organisation and decision-making from any railway undertaking.’

4. Article 11(1) of Directive 2001/14 is worded as follows:

‘Infrastructure charging schemes shall through a performance scheme encourage railway undertakings and the infrastructure manager to minimise disruption and improve the performance of the railway network. This may include penalties for actions which disrupt the operation of the network, compensation for undertakings which suffer from disruption and bonuses that reward better than planned performance.’

5. Under Article 13(2) of that directive:

‘The right to use specific infrastructure capacity in the form of a train path may be granted to applicants for a maximum duration of one working timetable period.

An infrastructure manager and an applicant may enter into a framework agreement as laid down in Article 17 for the use of capacity on the relevant railway infrastructure for a longer term than one working timetable period.’

6. Article 14(1) of that directive provides:

‘Member States may establish a framework for the allocation of infrastructure capacity while respecting the management independence laid down in Article 4 of Directive [91/440]. Specific capacity allocation rules shall be established. The infrastructure manager shall perform the capacity allocation processes. In particular, the infrastructure manager shall ensure that infrastructure capacity is allocated on a fair and non-discriminatory basis and in accordance with Community law.’

7. Article 30 of the directive provides as follows:

‘1. … Member States shall establish a regulatory body. This body, which can be the Ministry responsible for transport matters or any other body, shall be independent in its organisation, funding decisions, legal structure and decision-making from any infrastructure manager, charging body, allocation body or applicant. …

…

3. The regulatory body shall ensure that charges set by the infrastructure manager comply with chapter II and are non-discriminatory. …’ .

B – Spanish law

8. Article 21 of Law 39/2003 on the Railway Sector (Ley 39/2003 del Sector Ferroviario (7) of 17 November 2003 (‘the LSF’) sets out the powers and functions of the railway infrastructure manager, which include collection of charges for the use of railway infrastructure.

9. Article 73(5) of the LSF provides that it is possible to take into account when setting the amount of railway charges, in order to achieve efficient operation of the public rail network, factors reflecting the level of congestion of the infrastructure, the development of new rail transport services and the need to promote the use of under-utilised lines, while guaranteeing optimum competition between railway undertakings.

10. Article 77(1) of that law provides that charges for the use of railway lines belonging to the public rail network and the charge for operating stations and other railway facilities are to be set by ministerial order.

11. Article 81 of the LSF provides inter alia that the setting or, where appropriate, the amendment of the amount of charges for the use of railway infrastructure comes within the area of responsibility of the Ministry of Infrastructure and Transport.

12. Articles 88 and 89 of the LSF list among administrative offences for which penalties may be imposed, certain types of conduct giving rise to ‘disturbance of the operation of the network’.

13. Royal Decree 2395/2004 of 30 December 2004 approves the statutes of the railway infrastructure manager, a public undertaking (Real Decreto 2395/2004 por el que se aprueba el Estatuto de la entidad pública empresarial Administrador de Infraestructuras Ferroviarias). (8) Article 1 of those statutes provides that the railway infrastructure manager (Administrador de Infraestructuras Ferroviarias, ‘the ADIF’) is a public body, similar to those in the category of public undertakings. The ADIF is attached to the Ministry of Infrastructure and Transport, which is responsible for strategic management, evaluation and monitoring of its activity.

14. Article 3 of the statutes of the ADIF lists the powers and functions of that body, which include the collection of charges for the use of railway infrastructure.

15. Articles 14, 15 and 23 of those statutes provide that the ADIF is to be managed by the board of management and the President, who is also the chairman of the board of management. Article 15 provides that members of the board of management are to be appointed and dismissed by the Minister for Infrastructure and Transport. Article 23(1) of the statutes provides that the President of the ADIF is to be appointed by the Council of Ministers on a proposal from the Minister for Infrastructure and Transport.

16. Royal Decree No 2396/2004 of 30 December 2004 approves the statutes of the public undertaking RENFE-Operadora (Real decreto por el que se aprueba el Estatuto de la entidad pública empresarial RENFE Operadora). (9) Article 1 of those statues provides that, like the ADIF, RENFE-Operadora is a public body, similar to those in the category of public undertakings, attached by statute to the Ministry of Infrastructure and Transport, which is responsible for strategic management, evaluation and the monitoring of its activity.

17. Under Articles 7 and 8 of the statutes of RENFE-Operadora, the latter is to be managed by the board of management and the President, who is also the chairman of the board. Article 8(1) of the statutes provides that members of the board are to be freely appointed or dismissed by the Minister for Infrastructure and Transport. The President is to be appointed by the Council of Ministers on a proposal from the Minister for Infrastructure and Transport, in accordance with Article 16(1) of those statutes.

18. Order of the Ministry of Development FOM/898/2005 sets the amounts of the rail charges provided for in Articles 74 and 75 of Law 39/2003 (Orden del Ministerio de Fomento FOM/898/2005 por la que se fijan las cuantίas de las cánones ferroviarios establecidos en los artίculos 74 y 75 de la Ley 39/2003) (10) of 8 April 2005.

19. Article 11 of Order of the Ministry of Development FOM/897/2005 concerning the declaration regarding the network and the procedure for allocating railway infrastructure capacity (Orden del Ministerio del Fomento FOM/897/2005 relativa a la declaración sobre la red y al procedimiento de adjudicación de capacidad de infraestructura ferroviaria) (11) of 7 April 2005 (‘Order FOM/897/2005’) provides:

‘[The ADIF] shall allocate the infrastructure capacity where applied for as follows:

(a) …

(b) if there is more than one application for the same train path or if the network has been declared to be congested, the following priorities shall be taken into account in the allocation, in descending order:

1. any priorities which may have been laid down by the Ministry of Infrastructure and Transport for the different types of services on each line, taking into account in particular freight services.

…

4. The allocation, and actual use by the applicant, under previous working timetables, of the train paths for which allocation is sought.

…’

III – Pre-litigation procedure and procedure before the Court

20. On 15 June 2007 the Commission sent the Spanish authorities a questionnaire concerning the application of Directives 91/440, 95/18/EC (12) and 2001/14.

21. Following an exchange of correspondence with the Spanish authorities, the Commission, by letter of 27 June 2008, sent the Kingdom of Spain a letter of formal notice in which it expressed doubts regarding the compatibility of certain aspects of the Spanish railway legislation with Directives 91/440 and 2001/14.

22. By letter of 16 October 2008, the Kingdom of Spain responded to the letter of formal notice. It sent the Commission additional information in its correspondence of 5 February and 13 July 2009.

23. By lett er of 9 October 2009, the Commission then sent the Kingdom of Spain a reasoned opinion, in which it maintained that the legislation at issue did not comply with Directives 91/440 and 2001/14, to which that Member State responded by letter of 16 December 2009.

24. Not being satisfied with the Kingdom of Spain’s response, the Commission decided to bring the present action, which was received at the Court on 6 October 2010.

25. By order of the President of the Court of 16 February 2011, the Czech Republic was given leave to intervene in support of the form of order sought by the Kingdom of Spain. By order of 8 September 2011, the French Republic was granted leave to intervene in support of the form of order sought by the Kingdom of Spain.

26. By document lodged at the Court Registry on 26 March 2012, the Commission stated that, following the adoption by the Kingdom of Spain of Law 2/2011 on a sustainable economy (Ley 2/2011 de Economía Sostenible), (13) of 4 May 2011, it was withdrawing the third and fourth complaints of its action, which alleged infringement of Article 30(1) of Directive 2001/14 and of Article 10(7) of Directive 91/440, respectively. (14)

27. The Commission, the Spanish Government and the French Government were represented at the hearing which took place on 23 May 2012.

IV – Analysis of the action

A – The first complaint: infringement of Article 4(1) of Directive 2001/14

1. Arguments of the parties

28. The Commission claims that the Spanish legislation does not comply with Article 4(1) of Directive 2001/14, in so far as the amount of charges is set entirely by ministerial order, with the result that the only function assigned to the ADIF is the collection of charges. The ADIF does no more than calculate the amount of the charge in each particular case, by applying a formula that is set in advance and in detail by the national authorities. That entity therefore has no discretion to adjust the amount of the charge in each particular case.

29. According to the Commission, the Spanish legislation also failed to comply with the requirement to observe the management independence of the infrastructure manager, since, by entrusting to the national authorities alone the setting of the amount of charges it deprives the infrastructure manager of an essential management tool.

30. Article 6(2) of that directive, in providing that the infrastructure manager is to be given incentives to reduce the costs of provision of infrastructure and the level of charges, necessarily means that the amount of the charges is to be set by the infrastructure manager and not by the Member States.

31. Monitoring of the charges set by the infrastructure manager, as provided for in Article 30(3) of that directive, would, in the Commission’s view, be meaningless if the amount of the charges was set entirely by the authorities of the Member States.

32. The Spanish Government contends that infrastructure charges have been defined as taxes. The national legislation therefore provides that they are taxes for which the taxable event is the private use of the public railway domain. Thus, the essential elements of those charges should be regulated by statute and the specific amount of the charges should be set by a general administrative measure, that is, by a ministerial order at least.

33. The Spanish Government states that the ADIF, the infrastructure manager on Spanish territory, is a public undertaking which must necessarily, according to the national legislation, come under a ministry and is therefore not empowered to adopt statutory provisions, since that power lies with the ministry which it comes under. Article 76 of the LSF assigns to the ADIF the management of such charges, which includes certain functions in respect of the monitoring, assessment and setting of the charge payable in each specific case and the collection of that charge. The ADIF may, in addition, propose to the Ministry of Infrastructure and Transport that other types of charges should be imposed where a line or railway station is reclassified.

34. The Spanish Government does not share the Commission’s interpretation of Article 4(1) of Directive 2001/14 and contends that the term ‘determination’ used in that provision does not necessarily require the setting of the amount of the charges. Where that provision states that determination of the charges is to be performed by the infrastructure manager, this should be interpreted as meaning that the provision refers only to the setting of the specific charge to be paid for the use of infrastructure in each particular case.

35. Since Article 4 itself refers to establishing and collecting charges, it is necessary to draw a distinction between, on the one hand, determining charges in a general way – by establishing the final version of the framework and scheme for levying such charges and determining infrastructure charging schemes, which are the responsibility of the Minister for Infrastructure and Transport – and, on the other hand, setting the specific charge in each particular case, which is a matter for the ADIF.

36. On the basis of that distinction, the Spanish Government contends that its interpretation of Article 4(1) of Directive 2001/14 complies with the other provisions of that directive.

37. It is clear from Article 6(2) of Directive 2001/14 that it is for the State and not the infrastructure manager to reduce the amount of charges for access to the rail network.

38. The provision laid down in Article 9(3) of Directive 2001/14, whereby infrastructure managers may introduce discount schemes, is expressly contained in Article 73(5) of the LSF. The fact that that provision is drafted in a general way does not mean that discounts cannot exist.

39. The reference in Article 30(3) of Directive 2001/14 to charges set by the infrastructure manager means the charges imposed by the manager at a particular time in a particular case. Use of the term ‘set’ does not refer to the setting of charges, and the amounts of charges, in a general way, which is the responsibility of the Ministry of Infrastructure and Transport.

40. Lastly, the Czech Republic states that, when establishing the charging framework, Member States are required, under Article 4 of Directive 91/440, to ensure the ‘independent status’ of the transport undertakings and not of the entity responsible for railway infrastructure. It concludes from this that intervention by the State concerned by means of setting specific charges is an acceptable instrument from the point of view of Article 4(1) of Directive 2001/14.

2. Examination of the first complaint

41. By this complaint, the Commission submits essentially that the Spanish legislation does not comply with Article 4(1) of Directive 2001/14 in so far as it is the Ministry of Infrastructure and Transport which sets the amount of the charges by means of a ministerial order. Thus, the infrastructure manager is responsible only for collection of the charges. For that reason, the national legislation at issue is not compatible with the requirement to respect the management independence of the infrastructure manager.

42. It should be observed from the outset that the first complaint raises the same issue as the second complaint in Case C-473/10 Commission v Hungary , with regard to independence in respect of charging, but from the opposite perspective. In the latter case, that complaint relates specifically to interpretation of the words ‘collection’ and ‘recovery’, a function which is not an ‘essential function’ within the meaning of Article 6(3) of Directive 91/440 that must be performed by an infrastructure manager independent of any railway company. (15) The latter issue arises also in slightly different terms in C-545/10 Commission v Czech Republic .

43. I should like to point out that, under Article 4(1) of Directive 2001/14, the Member States are to establish a charging framework. In that regard they may also establish specific charging rules, while respecting the independence of the infrastructure manager. It is the latter’s responsibility to determine the charge for the use of infrastructure. In addition, it is to be responsible for the collection of that charge. The latter task does not therefore constitute an essential function and it may thus be delegated to operators which are not independent or to any other entity. I would add that Article 4(4) and (5), Article 8(1) and Article 11 of that directive use the terms ‘charging scheme’, ‘charging system’ and ‘charging schemes’, respectively.

44. The main argument put forward by the Spanish Government challenging this complaint is based on an interpretation of the phrase ‘determination of the charge’ contained in Article 4(1) of Directive 2001/14. According to the Spanish Government, that phrase refers only to the setting of the specific charge to be paid for the use of infrastructure in each particular case.

45. That argument cannot succeed. Directive 2001/14 draws a distinction between, on the one hand, the charging framework and, on the other hand, determination of the charge. In view of that distinction, it is necessary, as the Commission suggests, to assign to the term ‘determination’ a broader meaning than to the term ‘assessment’, which is only a stage in the collection procedure and which must be considered to be covered by the term ‘collection’. That interpretation is supported by the regulatory context of the contested provision and the objectives of the directive at issue.

46. In that context it is appropriate to draw a parallel with the arguments of the Hungarian Government in Case C-473/10 Commission v Hungary . According to that government, a distinction may be drawn between, on the one hand, the formation of charges, the actual setting of them, and their collection. The first corresponds to the establishment of the different charging rules by the Member State or by the infrastructure manager. The second concerns the setting of the various individual charges which a particular railway undertaking must pay in a specific situation according to the services it has applied for. The third means the specific act of paying the charge – the procedure for which is laid down in advance – to the infrastructure manager.

47. In the present case, the Commission criticises the Kingdom of Spain because the amount of the charges is set entirely by ministerial order, so that only the collection of the charges is entrusted to the ADIF.

48. It must be conceded that the first paragraph of Article 8 of Directive 91/440 provides that, after consulting the relevant manager, ‘Member States [are to] lay down the rules for determining this fee’. In that regard, the sixth recital in the preamble to that directive appears even more unequivocal. That recital states that, ‘in the absence of common rules on allocation of infrastructure costs, Member States shall, after consulting the infrastructure management, lay down rules providing for the payment by railway undertakings and their groupings for the use of railway infrastructure; whereas such payments must comply with the principle of non-discrimination between railway undertakings’.

49. Recital 12 in the preamble to Directive 2001/14, however, states that the objective of charging and capacity-allocation schemes is to encourage railway infrastructure managers to optimise use of their infrastructure within the framework set out by Member States. I do not consider that such optimisation through charging is possible unless, within the framework of the charging scheme, the infrastructure manager is given a certain amount of flexibility and its role goes beyond merely calculating charges. The same considerations apply with regard to the infrastructure manager’s powers referred to in Articles 8(2) and (9) of Directive 2001/14, in so far as mark-ups and discounts on charges are concerned.

50. Directive 2001/14 establishes an area of charging reserved for the infrastructure manager. With regard to the State, the upper limit of that area results from the requirement for flexibility within the charging framework intended to allow it to be used as a management tool. In order to ensure the objective of management independence, only the regulatory and financial framework may be laid down by the State. With regard to operators that are not independent, the lower limit of that area – below which there is only ‘collection’ – corresponds to the distinction between, on the one hand, mere calculation of the charge on the basis of objective data and criteria and, on the other hand, the decisions necessitating choices and assessments concerning the factors included in such calculations. The latter distinction is the decisive one for the purposes of assessing the need for the existence of an independent charging body within the meaning of Article 4(2) of Directive 2001/14, where the infrastructure manager is not independent in its legal form, organisation or decision making.

51. That interpretation is moreover supported by the overall scheme of Directive 2001/14 and by the context of the contested provision within the regime laid down by that directive. I must point out in that regard that, under Article 6(2) of Directive 2001/14, the infrastructure manager is to be provided with incentives to reduce the costs of provision of infrastructure and the level of access charges. It is clear from Article 9(2) of that directive that the manager may offer discounts on charges levied on a railway undertaking. Lastly, Article 30(2) and (3) of that directive show that the discretion that the infrastructure manager must have concerns inter alia the criteria contained in the network statement, the allocation process and its result, the charging scheme and the level or structure of infrastructure fees.

52. In the present case, it is the relevant ministry, the Ministry of Infrastructure and Transport, which acts as the regulatory body in Spain. However, that ministry has a dual role in the operation of the charging scheme in that it also determines the charges. Even though Article 30(1) of Directive 2001/14 allows the appointment of a competent ministry as the regulatory body, the same provision also requires the independence of that body in return. In order to carry out its regulatory function, inter alia by ensuring the lawfulness of the charges set by the ADIF, the Spanish ministry must not determine those charges as well, as is currently the case in Spain. (16)

53. Consequently, even though the Member State can lay down the factors and criteria that must be applied when determining the amount of the charge, it is for the infrastructure manager, while observing the regulatory and financial framework laid down by the State, to determine the charges in individual cases in a way that goes beyond merely calculating the charge according to a formula entirely predetermined by the State, as is the case in Spain. In that regard, the ADIF has no discretion to determine the amount of the charge in individual cases, which is contrary to Article 4(1) of Directive 2001/14.

54. Lastly, I observe that, according to settled case-law, a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in a directive. (17) It is also stated in case-law that the same applies even where the domestic provisions at issue are at constitutional level. (18)

55. Therefore the rules on the determination of taxes and the legal nature of the ADIF as a public undertaking, relied on by the Spanish Government, have no relevance as regards analysis of the failure in the present case.

56. I conclude from this that the Commission’s first complaint must be upheld.

B – The second complaint: infringement of Article 11 of Directive 2001/14

1. Arguments of the parties

57. The Commission complains that the Spanish legislation contains no measure for implementing Article 11 of Directive 2001/14. Article 11 of Order FOM/897/2005 lays down criteria for the allocation of infrastructure capacity and does not form part of the ‘charging scheme’, contrary to what is required by Article 11 of Directive 2001/14.

58. Similarly, Articles 88 and 89 of the LSF, which classify certain infringements of the railway legislation as ‘serious’ or ‘very serious’ do not form part of the ‘charging scheme’. The fines to which such infringements may give rise are penalties of an administrative nature. Those provisions allow railway undertakings to be penalised and not the ADIF.

59. The Commission adds that Article 73(5) of the LSF is not sufficient in itself to implement the performance scheme referred to in Article 11 of Directive 2001/14, since it only provides for the possibility of introducing such a scheme. However, the introduction of such a scheme is not a prerogative which it is left to the discretion of Member States to exercise, but a requirement imposed by Directive 2001/14.

60. The Commission states, lastly, that the ADIF presents the introduction of the incentive scheme as a mere possibility and not as an obligation imposed by Article 11 of Directive 2001/14.

61. The Spanish Government denies that its domestic legislation contains no provisions transposing Article 11 of Directive 2001/14.

62. In the first place, it contends that Article 73(5) of the LSF provides that it is possible to take into account, when setting the amount of railway infrastructure charges, factors reflecting the level of congestion of the infrastructure, the development of new rail transport services, and the need to promote the use of under-utilised lines, while guaranteeing in any event optimum competition between railway undertakings.

63. In the second place, Articles 88 and 89 of the LSF classify as administrative offences certain actions associated with disruption of the network which, where they take place, are penalised by the imposition of fines.

64. In the third place, the Spanish Government states that the ADIF is seeking to provide incentives for railway undertakings which comply with the infrastructure capacity allocated to them, with the objective, inter alia, of encouraging a reduction of the number of incidents on the network to a minimum.

65. Lastly, it contends that any railway undertaking which applies for and obtains a train path must pay a reservation charge at the time it is granted, prior to actual use of the path. Payment of that charge implies commitment on the part of the railway undertaking to comply with the use of the network which it has applied for, otherwise it will forfeit the charge it has paid.

66. The French Government contends that Article 11 of Directive 2001/14 should be interpreted as setting an objective and imposing on Member States an obligation with regard to the means to be used in seeking to attain that objective. In its view, the Member States thus remain free to choose the means to be used in that context. Like the Spanish Government, the French Government takes the view that those measures need not be part of an independent performance scheme in order to comply with the requirements of Article 11 of Directive 2001/14.

2. Examination of the second complaint

67. I would point out first of all that, as provided in Article 11 of Directive 2001/14, infrastructure charging schemes must encourage railway undertakings and the infrastructure manager to minimise disruption and improve the performance of the railway network through establishing a ‘performance scheme’.

68. It is apparent from the documents submitted to the Court that the relevant Spanish legislation contains measures for the allocation of infrastructure capacity and penalties in the event of infringement of the railway legislation.

69. However, it should be noted that the measures and penalties to which the Spanish Government refers do not form a scheme for the purposes of Article 11 of Directive 2001/14. Those measures and penalties, which do not in any event form part of the charging scheme and which allow penalties to be imposed only on railway undertakings and not on the infrastructure manager, do not form a coherent and transparent whole, so they cannot be described as a ‘performance scheme’ meeting the requirements of Directive 2001/14. On the contrary, they are specific measure and penalties that are independent of each other.

70. In other words, the Member States are required to establish a performance scheme which forms part of the infrastructure charging schemes in accordance with Article 11 of Directive 2001/14. As regards incentives, the Member States remain free in their choice of appropriate measures, provided they comply with the requirements of that directive, and inter alia Article 11 thereof, which requires the establishment of a performance scheme, but which leaves flexibility as regards the specific measures contained in that scheme.

71. In addition, it is apparent from the documents submitted to the Court that the ADIF presents the introduction of the incentive scheme provided for in Article 11 of Directive 2001/14 merely as a possibility and not as an obligation which the Spanish authorities are bound to comply with. Like the Commission, I consider that merely mentioning the possibility of introducing such a scheme is not sufficient to ensure compliance with Article 11 of that directive, the content of which does not by any means support the Spanish Government’s interpretation of that provision.

72. I conclude from this that the Commission’s second complaint must be upheld.

C – The fifth complaint: infringement of Articles 13(2) and 14(1) of Directive 2001/14

1. Arguments of the parties

73. The Commission claims that the first infrastructure allocation priority in Article 11(b)(1) of Order FOM/897/2005 is contrary to Article 14(1) of Directive 2001/14 since it gives the relevant minister an excessive amount of discretion, although Article 14 provides that specific capacity allocation rules are to be established.

74. The Spanish Government denies that the first allocation priority is contrary to Article 14(1) of Directive 2001/14. That allocation criterion leaves open the possibility, in special or exceptional circumstances, for priority to be given to another type of services, not freight services, in order to avoid congestion of the rail network.

75. The Spanish Government states that since the entry into force of Order FOM/897/2005 the Ministry of Infrastructure and Transport has not availed itself of that possibility, which demonstrates the absence of any discretion in this matter.

76. With regard to the first allocation priority, the Commission observes that the interpretation proposed by the Spanish Government has no basis in the wording of Article 11(b)(1) of Order FOM/897/2005. It contends that that provision makes no reference to the existence of exceptional or specific circumstances such as those mentioned by the Spanish Government. The Commission adds that the mere existence of the first priority constitutes in itself a source of legal uncertainty for operators, so that the Spanish authorities’ alleged practice of not providing for additional priorities except in exceptional circumstances cannot be considered to be sufficient for the purposes of implementing Article 14(1) of Directive 2001/14.

77. The Spanish Government maintains in that regard that Article 14(1) of Directive 2001/14 does not expressly envisage a situation in which exceptional circumstances would require predetermined priorities to be changed, but, on the other hand, it does not preclude such a situation being taken into account. Consequently, the interpretation of Article 14 proposed by the Spanish Government cannot be considered to be contrary to Directive 2001/14.

78. The Commission contends also that the fourth infrastructure allocation priority in Article 11(b)(4) of Order FOM/897/2005 is contrary to Articles 13(2) and 14(1) of Directive 2001/14.

79. First, the Commission considers that that fourth allocation priority infringes Article 13(2) of the directive in that it might lead in practice to a railway undertaking having the right to use a path indefinitely. Such a practice would remove the effectiveness of the prohibition laid down in Article 13, whereby train paths may not be granted for longer than one working timetable period.

80. Secondly, the Commission considers that the fourth allocation priority does not comply with Article 14(1) of Directive 2001/14 in that it might in practice prevent access to more attractive train paths for new entrants (generally undertakings of other Member States) and maintain advantages for the incumbent users (generally Spanish undertakings), which would be discriminatory.

81. In the context of the fourth allocation priority, the Commission argues that Article 12 of Directive 2001/14 expressly provides the possibility for infrastructure managers to levy a reservation charge in order to maximise the return on the operation of the rail system. While not objecting to account being taken, among other allocation criteria, of past use by operators, the Commission considers that in order for the incumbent user of a train path not to be favoured in a discriminatory manner as compared with new entrants it is necessary to take into account not only past use of the relevant train path concerned in each allocation process but also past use by other operators of comparable paths.

82. The Commission states that Article 22 of Directive 2001/14 is applicable only where infrastructure is congested, whereas Article 11(b)(4) of Order FOM/897/2005 is applicable not only in such cases but also generally where there is more than one application for the same train path. In any event, none of the provisions contained in Article 22 allow Member States to adopt an allocation criterion like the one to which the present complaint relates.

83. The possibility of entering into framework agreements, provided for in Article 13(2) of Directive 2001/14 and relied on by the Spanish Government, constitutes an exception to the general rule, which may only be used under the conditions laid down in Article 17 of Directive 2001/14.

84. The Spanish Government denies that the fourth allocation priority is contrary to Articles 13(2) and 14(1) of Directive 2001/14.

85. The criterion contained in Article 11(b)(4) of Order FOM/897/2005 is only one of a number of criteria for allocating capacity when it is insufficient or where there is more than one application for the same path. According to the Spanish Government, that criterion involves rational and fair discrimination in so far as it is reasonable to take into account operators’ actual past use of capacity in order to optimise use of the rail network.

86. In that context, the Spanish Government refers to Article 22(4) of Directive 2001/14, which provides that in the event of infrastructure being congested the priority criteria are to take account of the importance of a service to society, relative to any other service which will consequently be excluded.

87. According to that government, Article 13(2) of Directive 2001/14 does not contain an absolute prohibition on an undertaking having the use of a train path indefinitely. That interpretation is supported by the fact that that provision states that framework agreements may be entered into for the use of capacity on the relevant railway infrastructure for a longer term than one working timetable period.

88. The Spanish Government also considers that taking comparable paths into consideration when taking account of past use adds an element of legal uncertainty, since the comparable nature of such paths is not defined.

89. The Spanish Government considers, lastly, that the Commission’s argument that Article 11(b)(4) of Order FOM/897/2005 applies generally where more than one application is made is a little contrived, since the fact that more than one application has been made for the same path means that that path is congested.

2. Examination of the fifth complaint

90. As regards first of all the first infrastructure allocation priority established by Article 11(b)(1) of Order FOM/897/2005, it should be noted that Article 14(1) of Directive 2001/14 provides expressly that specific capacity allocation rules are to be established by the Member States and that they may also establish a framework for the allocation of infrastructure capacity, while respecting the management independence laid down in Article 4 of Directive 91/440.

91. According to recitals 18 and 20 in the preamble to Directive 2001/14, that directive requires that the infrastructure manager should have flexibility with regard to the allocation of infrastructure. However, the wording of the directive does not allow the conclusion to be drawn that specific capacity allocation rules may introduce an element of political discretion into the allocation of infrastructure. The power to grant priority to certain services lies with the infrastructure manager, which can exercise it only under the strict conditions listed in Article 22, concerning congested infrastructure, and Article 24, concerning specialised infrastructure, of Directive 2001/14.

92. In the case of the Kingdom of Spain, the discretion granted to the ministry, not only in exceptional circumstances but as a general rule, seems to me to conflict with Directive 2001/14 all the more since it is the ministry which acts as the regulatory body within the meaning of Article 30(3) of Directive 2001/14.

93. With regard to the fourth allocation priority established by Article 11(b)(4) of Order FOM/897/2005, it should be noted that, under the first subparagraph of Article 13(2) of Directive 2001/14, the maximum duration of the use of specific infrastructure capacity in the form of a train path is one working timetable period. According to the second subparagraph of Article 13(2), a railway undertaking may, under a framework agreement and in accordance with Article 17 of Directive 2001/14, use infrastructure capacity for a longer term than one working timetable period.

94. In that regard, the relevant Spanish legislation, Article 11(b)(4) of Order FOM/897/2005, does not require the existence of a framework agreement in order for account to be taken of the allocation, and actual use by the applicant, under previous working timetables, of the train paths for which allocation is sought, as required by Directive 2001/14. That is why the Spanish legislation at issue is not covered by the exception provided for in the second subparagraph of Article 13(2) of Directive 2001/14, which allows the right to use specific infrastructure capacity in the form of a train path to be granted for a longer term than one working timetable period.

95. As regards the discriminatory nature of the fourth priority criticised by the Commission, I note that the Spanish Government itself acknowledges that that priority involves discrimination between incumbent users and new entrants. Such discrimination is, in my view, manifestly in conflict with the main objective of the European Union railway legislation, which is to ensure non-discriminatory access to infrastructure. That objective promotes opening up rail services provided by incumbent operators to competition from new entrants.

96. The Spanish Government justifies the discriminatory nature of the criterion of the actual use of the network, as a criterion for the allocation of infrastructure capacity, by the objective of guaranteeing more efficient use of the rail network. That justification cannot be accepted. Favouring the incumbent operator does not automatically lead to efficient use of the network.

97. I would add that Directive 2001/14 contains specific provisions to provide incentives for the efficient use of infrastructure capacity. That objective of providing incentives is contained, inter alia, in Article 12 of Directive 2001/14, concerning reservation charges, Article 23(2) of that directive, concerning the need for reserve capacity to be kept available in order to respond rapidly to foreseeable ad hoc requests for capacity, and Article 27 of that directive, concerning the use of train paths. Favouring the incumbent operator does not appear among the measures provided for by the directive in order to promote efficient use of the network. That criterion is therefore not compatible with the requirements of Directive 2001/14, and in particular Article 13(2) thereof.

98. I conclude from this that the Commission’s fifth complaint must be upheld.

V – Costs

99. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

100. As the Commission has claimed that the Kingdom of Spain should be ordered to pay the costs, this claim must be upheld if, as I propose, the action for failure to fulfil obligations is upheld in its entirety.

101. Under the first subparagraph of Article 69(4) of the Rules of Procedure, the French Republic and the Czech Republic, which have sought leave to intervene in this case, are to bear their own costs.

VI – Conclusion

102. In view of the foregoing considerations, I propose that the Court should:

(1) declare that the Kingdom of Spain has failed to fulfil its obligations under 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 2007/58/EC of the European Parliament and of the Council of 23 October 2007, with regard to

– Article 4(1), by providing that charges for the use of infrastructure are to be determined by ministerial order;

– Article 11, by failing to take the necessary measures to establish a performance scheme;

– Articl e 13(2), by allowing the relevant minister excessive discretion to draw up specific rules for the allocation of capacity, and

– Article 14(1), by providing that previous allocation to, and actual use by, an applicant of previous working timetables is to be taken into account in the allocation of railway infrastructure capacity.

(2) order the Kingdom of Spain to pay the costs.

(3) order the French Republic and the Czech Republic to bear their own costs.

(1) .

(2) – Directive 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 and safety certification (OJ 2001 L 75, p. 29). The title of Directive 2001/14 was amended by Article 30 of Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community’s railways (OJ 2004 L 164, p. 44). Its title is now ‘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’.

(3) – Directive of the European Parliament and of the Council of 23 October 2007 (OJ 2007 L 315, p. 44).

(4) – Cases pending before the Court C-473/10 Commission v Hungary ; C-512/10 Commission v Poland ; C-528/10 Commission v Greece ; C-545/10 Commission v Czech Republic ; C-555/10 Commission v Austria ; C-556/10 Commission v Germany ; C-557/10 Commission v Portugal ; C-625/10 Commission v France ; C-627/10 Commission v Slovenia ; C-369/11 Commission v Italy ; and C-412/11 Commission v Luxembourg .

(5) – Council Directive of 29 July 1991 on the development of the Community’s railways (OJ 1991 L 237, p. 25).

(6) – Directive of the European Parliament and of the Council of 26 February 2001 (OJ 2001 L 75, p. 1).

(7) – BOE No 276 of 18 November 2003.

(8) – BOE No 315 of 31 December 2004.

(9) – BOE No 315 of 31 December 2004.

(10) – BOE No 85 of 9 April 2005.

(11) – BOE No 85 of 9 April 2005.

(12) – Council Directive of 19 June 1995 on the licensing of railway undertakings (OJ 1995 L 143, p. 70).

(13) – BOE No 55 of 5 March 2011.

(14) – Following the partial withdrawal by the Commission, some of the observations of the Czech Republic concerning Article 30(1) of Directive 2001/14 and Article 10(7) of Directive 91/440 became devoid of purpose.

(15) – It should be noted in that regard that under Article 6(3) of Directive 91/440, essential functions as listed in Annex II thereto must be entrusted to bodies that do not themselves provide any rail transport services in order to ensure equitable and non-discriminatory access to infrastructure.

(16) – It should be added that the organisation introduced in Spain is placed under the full control of the State. The ADIF and the incumbent operator (RENFE) are public undertakings coming under the Ministry of Infrastructure and Transport. The regulatory body is an integral part of the ministry and appeals may be made against its decisions to the minister.

(17) – See, inter alia, Case C-295/09 Commission v Spain [2010] ECR I-24, paragraph 10 and the case-law cited.

(18) – Case 102/79 Commission v Belgium [1980] ECR 1473, paragraph 15. See, recently, Case C-212/06 Gouvernement de la Communauté française and Gouvernement wallon [2008] ECR I-1683, paragraph 58 and the case-law cited.