OPINION OF ADVOCATE GENERAL

SAUGMANDSGAARD ØE

delivered on 25 February 2021 ( 1 )

Case C‑12/20

DB Netz AG

v

Bundesrepublik Deutschland

(request for a preliminary ruling

from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Higher Administrative Court for the Land of North Rhine-Westphalia, Germany))

(Reference for a preliminary ruling – Rail transport – International rail freight corridors – Regulation (EU) No 913/2010 – Article 13(1) – Establishment of a one-stop shop for each freight corridor – Article 14 – Nature of the framework laid down by the executive board – Article 20 – Regulatory bodies – Directive 2012/34/EU – Article 27 – Procedure for submitting applications for infrastructure capacity – Role of infrastructure managers – Articles 56 and 57 – Functions of the regulatory body and cooperation between regulatory bodies)

I. Introduction

1. This request for a preliminary ruling, from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Higher Administrative Court for the Land of North Rhine-Westphalia, Germany), concerns the interpretation of Regulation (EU) No 913/2010, ( 2 ) creating a European rail network for competitive freight, in conjunction with Directive 2012/34/EU, ( 3 ) establishing a single European railway area. In particular, in order to improve freight transport and the conditions of use of rail infrastructure in Europe, that regulation established nine freight corridors with a one-stop shop for each, ( 4 ) that is to say, a single point of contact through which EU railway undertakings can apply for infrastructure capacity for train paths ( 5 ) that cross at least one border.

2. This request has been made in proceedings between DB Netz AG, a rail infrastructure manager, and the Federal Republic of Germany, represented by the Bundesnetzagentur für Elektrizität, Gas, Telekommunikation, Post und Eisenbahnen (Federal Network Agency for Electricity, Gas, Telecommunications, Post and Rail, Germany) (‘the Federal Network Agency’). Specifically, the Federal Network Agency, as the national regulatory body, has opposed the intended amendment of the network statement of DB Netz. That amendment removed the option of using an application form to submit applications for infrastructure capacity to the one-stop shop in the event of a technical failure of the electronic booking system.

3. Against that background, the referring court seeks in essence to ascertain which authority is competent to determine the procedure for submitting applications for infrastructure capacity to the one-stop shop. That court is also uncertain whether, when reviewing the network statement of a rail infrastructure manager, a national regulatory body may make a substantive decision without consulting the other national regulatory bodies concerned.

4. In this Opinion, I will propose that the Court of Justice should rule that the procedure for submitting applications for infrastructure capacity to the one-stop shop may only be determined by the infrastructure managers. I will also propose that it rule that the national regulatory bodies have a duty to consult each other before adopting a substantive decision.

II. Legal context

A. European Union law

1. Directive 2012/34

5. Directive 2012/34 repealed and replaced a series of earlier rail transport directives, in particular Directive 91/440/EEC ( 6 ) and Directive 2001/14/EC. ( 7 )

6. Article 27(1) and (2) of Directive 2012/34 provides: ‘1. The infrastructure manager shall, after consultation with the interested parties, develop and publish a network statement … 2. The network statement shall set out the nature of the infrastructure which is available to railway undertakings, and contain information setting out the conditions for access to the relevant railway infrastructure. … The content of the network statement is laid down in Annex IV.’

7. Article 57(1) of the directive provides: ‘The regulatory bodies shall … cooperate for the purpose of coordinating their decision-making across the Union. …’

8. Article 65 of the directive provides: ‘Directives [91/440] and [2001/14], as amended by the Directives listed in Annex IX, Part A, are repealed with effect from [17 June 2015] … References to the repealed Directives shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex X.’

9. Under Annex IV to that directive: ‘The network statement referred to in Article 27 shall contain the following information: … (3) A section on the principles and criteria for capacity allocation. … It shall contain specific criteria which are employed during that process, in particular: (a) the procedures according to which applicants may request capacity from the infrastructure manager; …’

10. Annex X to Directive 2012/34 contains the table showing the correlation between the provisions of that directive and those of Directive 2001/14.

2. Regulation No 913/2010

11. Recital 7 of Regulation No 913/2010 states: ‘(7) This Regulation should, unless otherwise provided, be without prejudice to the rights and obligations of infrastructure managers set out in Directive [91/440] and Directive [2001/14] …’

12. Article 8(1) and (2) of that regulation provides: ‘1. For each freight corridor, Member States concerned shall establish an executive board responsible for defining the general objectives of the freight corridor, supervising and taking the measures as expressly provided for in paragraph 7 of this Article, and in Articles 9 and 11, Article 14(1) and Article 22. The executive board shall be composed of representatives of the authorities of the Member States concerned. 2. For each freight corridor, the infrastructure managers concerned and, where relevant, the allocation bodies as referred to in Article 14(2) of Directive [2001/14], shall establish a management board responsible for taking the measures as expressly provided for in paragraphs 5, 7, 8 and 9 of this Article, and in Articles 9 to 12, Article 13(1), Article 14(2), (6) and (9), Article 16(1), Article 17(1) and Articles 18 and 19 of this Regulation. The management board shall be composed of the representatives of the infrastructure managers.’

13. Article 13(1) of that regulation provides: ‘The management board for a freight corridor shall designate or set up a joint body for applicants to request and to receive answers, in a single place and in a single operation, regarding infrastructure capacity for freight trains crossing at least one border along the freight corridor (hereinafter referred to as a “one-stop shop”).’

14. Article 20(1) of the regulation provides: ‘The regulatory bodies referred to in Article 30 of Directive [2001/14] ( 8 ) shall cooperate in monitoring the competition in the rail freight corridor. In particular, they shall ensure non-discriminatory access to the corridor …’

B. German Law

1. The AEG

15. Paragraph 14(1) of the Allgemeines Eisenbahngesetz (General Law on Railways) of 27 December 1993, in the version under Paragraph 1, point 11, of the Law of 27 April 2005 (BGBl. L 5, p. 1138) (‘the AEG’), provides: ‘Railway infrastructure undertakings shall ensure non-discriminatory use of the infrastructure which they operate and shall provide without discrimination the services which they offer …’.

16. Under Paragraph 14d of the AEG: ‘Public rail infrastructure undertakings shall report to the regulatory body … (6) any proposal to revise or amend the network statement and the conditions of use of service facilities, including the charging principles and amounts envisaged for each. …’

17. Paragraph 14e of that law provides: ‘(1) When it receives a notification under Paragraph 14d, the regulatory body may oppose the revision or amendment proposed in accordance with Paragraph 14d, first sentence, point (6), within … four weeks, provided the intended decisions do not comply with the provisions of railway regulatory law relating to access to rail infrastructure. …’

2. The EIBV

18. Paragraph 4 of the Eisenbahninfrastruktur-Benutzungsverordnung (Regulation on the use of railway infrastructure of 3 June 2005) (BGBl. I, p. 1566) (‘the EIBV’) provides: ‘(1) The rail network operator shall be required to set and … communicate the conditions for use (network statement) applicable to the supply of the services referred to in Annex 1, point 1. At the request of the parties with access entitlement, the rail network manager shall send them, at their expense, the network statement. (2) The network statement must contain at least the statements referred to in Annex 2 and in the other provisions of this regulation, and the general conditions of use of train paths. The list of charges shall not form part of the network statement. …’

19. According to Annex 2 to the EIBV: ‘The network statement referred to in Paragraph 4 shall contain the following information: … 3. The principles and criteria for allocating railway track capacity. Information must be provided on the general characteristics of railway capacity available to the parties with access entitlement and on any restrictions on use, including the need for capacity expected for maintenance purposes. Information on the course and deadlines of the procedure for allocating railway infrastructure capacity must also be provided, in particular (a) the procedure for submitting applications for train paths from parties with access entitlement to the railway operator; …’

III. The main proceedings, the questions referred for a preliminary ruling and the proceedings before the Court of Justice

20. DB Netz, a wholly owned subsidiary of the Deutsche Bahn AG group, is a public rail infrastructure undertaking which manages Germany’s largest rail network.

21. As infrastructure manager, DB Netz is required, under the national law transposing Article 27 of Directive 2012/34, to develop and publish a network statement including information on the procedure whereby parties with access entitlement ( 9 ) can apply to the railway manager for pre-arranged train paths.

22. DB Netz is also involved in the management of EU level freight corridors as referred to in Regulation No 913/2010, which is aimed at creating a European rail network for competitive freight. Specifically, it operates six freight corridors in that rail network. ( 10 )

23. Each freight corridor is managed by an executive board composed of representatives of the national authorities of the Member States concerned, and by a management board, set up by the infrastructure managers concerned. Among other activities, the management board is to designate or set up a one-stop shop for each freight corridor, enabling users of the corridor to apply for infrastructure capacity in a single place and in a single operation.

24. In 2015, the management boards of the freight corridors in which DB Netz participated resolved that applications for infrastructure capacity on pre-arranged international train paths could be made to the respective one-stop shop exclusively by means of the electronic booking system known as ‘PCS’. ( 11 )

25. As a result of that decision, on 31 August 2015, DB Netz notified the Federal Network Agency, which had competence as the national regulatory body, of an intended amendment of its network statement. By that amendment, DB Netz intended to remove the option of using an application form in the event of a technical failure of the PCS system, allowing only that booking system to be used. According to DB Netz, the rules adopted by the management boards did not provide for such a possibility.

26. By decision of 22 September 2015, the Federal Network Agency rejected that intended amendment without examining the specific regulatory situation prevailing in the other Member States concerned and without coordinating in any way with the competent national regulatory bodies in those States. According to the Federal Network Agency, removal of that option conflicted with the obligation of DB Netz under national law to guarantee non-discriminatory use of the railway infrastructure managed by it and non-discriminatory provision of the services it offers, including the processing of applications for train paths.

27. On 15 March 2016, DB Netz brought proceedings before the Verwaltungsgericht Köln (Administrative Court, Cologne, Germany) seeking annulment of the Federal Network Agency’s refusal decision. That action was dismissed and DB Netz appealed to the referring court.

28. In that context, the referring court considers that the Federal Network Agency had sufficient reason to assume that the modification of the procedure for applying to the one-stop shop might be discriminatory if there were no alternative solution to the PCS booking system in the event of a technical failure of that system. The referring court considers that, because the exact time of the application for access to infrastructure capacity can be of decisive importance and since under the EIBV there is a right to submit applications at any time, there is an appreciable risk of access to railway infrastructure being impeded in the event of a technical malfunction of the PCS system.

29. However, that court is uncertain, in the first place, whether that procedure may be regulated by DB Netz in its network statement, and therefore subject to in-depth review by the Federal Network Agency, or whether only the management board is competent to do so.

30. In particular, the referring court states that, although Article 13(1) of Regulation No 913/2010 does not explicitly authorise the management board to regulate the procedure for submitting applications to the one-stop shop, that provision could indeed be interpreted as doing so in order to ensure its useful effect, because applying for capacity requires the procedure to be made uniform. Nevertheless, that court notes that it is not explicit from a literal interpretation of that regulation that the management board is authorised to define that procedure.

31. In the second place, the referring court is uncertain whether, if that procedure has to be regulated by DB Netz and subject to review by the Federal Network Agency, that national regulatory body is required, when reviewing the network statement, to comply with the provisions of Article 20 of Regulation No 913/2010, which requires cooperation with the other regulatory bodies, or whether it is subject only to the provisions of Directive 2012/34. Further, the referring court wonders whether, even in the latter hypothesis, the Federal Network Agency can act without consulting the other national regulatory bodies. According to the referring court, the lack of any such cooperation could make it virtually impossible to achieve the objective of Article 13(1) of Regulation No 913/2010, that is to say, the ability to request infrastructure capacity in a single place and in a single operation.

32. In the third place, if the management board of a freight corridor is authorised, itself, to determine the procedure for submitting applications to a one-stop shop, the referring court is uncertain whether the Federal Network Agency is entitled to review the network statement of DB Netz beyond substantive compliance with the rules adopted by that board.

33. In the fourth place and lastly, in so far as the national regulatory bodies are authorised to review the procedure for submitting applications to the one-stop shop for infrastructure capacity, the referring court is uncertain whether the framework defined by the executive board under Article 14(1) of Regulation No 913/2010 is a provision of EU law which binds the Member States and their regulatory bodies, is subject to the ultimately binding interpretation of the Court of Justice and precludes a decision by the national regulatory body such as that adopted in the situation in the main proceedings.

34. In those circumstances, the Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Higher Administrative Court for the Land of North Rhine-Westphalia) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is [Regulation No 913/2010], in particular with regard to the tasks assigned to the management board of a freight corridor under Article 13(1), Article 14(9) and Article 18(c) of that Regulation, to be interpreted as meaning that the management board for a freight corridor is authorised to define the procedure for submitting applications for allocation of infrastructure capacity to the one-stop shop referred to in Article 13(1) of that Regulation itself, for example by requiring, as in the present circumstances, the exclusive use of an electronic booking tool, or is that procedure subject to the general provisions of Article 27(1) and (2) read in conjunction with point 3(a) of Annex IV to [Directive 2012/34], which means that it may be regulated solely by the infrastructure managers involved in a freight corridor in their respective network statements? (2) If the first question is to be answered to the effect that the procedure referred to [in that first question] has to be regulated solely in the network statement of the infrastructure managers involved in a freight corridor, is the review of the network statement by a national regulatory body governed in this respect by Article 20 of Regulation [No 913/2010] or exclusively by the provisions of Directive [2012/34] and the national legislation adopted for its transposition? (a) If the review is governed by Article 20 of Regulation [No 913/2010], is it compatible with the provisions of that article for a national regulatory body to object to a regulation in the network statement such as that referred to [in that first question], without acting jointly and in a substantively uniform manner with the regulatory bodies of the other States involved in the freight corridor or at least consulting them beforehand in order to ensure a uniform approach? (b) In so far as the review is governed by the provisions of Directive [2012/34] and the national legislation adopted for its transposition, is it compatible with those provisions, in particular with the general duty of coordination laid down in the second sentence of Article 57(1) of that directive, for a national regulatory body to object to such a regulation, without acting jointly and in a substantively uniform manner with the regulatory bodies of the other States involved in the freight corridor or at least having consulted them beforehand in order to ensure a uniform approach? (3) If the first question is to be answered to the effect that the management board for a freight corridor is authorised to define the procedure mentioned [in that first question] itself, does a national regulatory body have the authority, under Article 20 of Regulation [No 913/2010] or the provisions of Directive [2012/34] and the legislation created for its transposition, to review the network statement of an infrastructure manager for more than its substantive compliance with the procedure defined by the management board and, where appropriate, to object thereto, if the network statement of an infrastructure manager contains regulations on that procedure? If this were to be answered in the affirmative, how are the questions set out in point 2(a) and (b) to be answered with regard to this authority of the regulatory body? (4) In so far as the national regulatory bodies, on the basis of the questions above, are authorised to review the procedure referred to [in that first question], is Article 14(1) of Regulation [No 913/2010] to be interpreted as meaning that the framework defined by the executive board under that provision is EU law which binds the national regulatory bodies and the national courts, has priority of application over national law and is subject to the ultimately binding interpretation of the Court? (5) If the fourth question is to be answered in the affirmative, does the designation made under Article 14(1) of Regulation [No 913/2010] by the executive boards of all the freight corridors under Article 8(2) of the respective framework, according to which the corridor capacity is to be published and allocated via an international application system, which shall as far as possible be harmonised with the other freight corridors, preclude a decision of a national regulatory body by which an infrastructure manager involved in a freight corridor is provided, for its network statement, with stipulations for structuring that application system which are not agreed with the national regulatory bodies of the other States involved in the freight corridors?’

35. DB Netz, the Federal Network Agency, on behalf of the Federal Republic of Germany, and the European Commission lodged written observations with the Court. No hearing was held.

IV. Analysis

A. Preliminary observations

36. As I stated in point 3 of this Opinion, the request for a preliminary ruling invites the Court in essence to rule on which authority is competent to determine the procedure for submitting applications for infrastructure capacity to the one-stop shop. The Court is also invited to clarify whether a regulatory body, when reviewing the network statement of a rail infrastructure manager, is required to consult the other national regulatory bodies concerned before taking a decision.

37. Before examining the substance of the referring court’s questions, it is necessary to elucidate the relationship between Regulation No 913/2010 and Directive 2012/34.

38. First of all, as the Commission and the Federal Network Agency have observed, I note that it is clear from recital 7 of Regulation No 913/2010 that, unless otherwise provided, the regulation applies without prejudice to the rights and obligations of infrastructure managers set out in Directive 91/440 and in Directive 2001/14. After those directives were repealed by Directive 2012/34, it is clear from Article 65 of the repealing directive that ‘references to the repealed Directives shall be construed as references to this Directive’.

39. This means that Directive 2012/34 forms the backdrop for the provisions of Regulation No 913/2010 and that, accordingly, those provisions must be read in the light of that directive.

40. In the first place, I note that, according to Article 2(1) of Regulation No 913/2010, the definitions of ‘infrastructure manager’ and ‘network statement’ laid down in Directive 2012/34 are to apply to that regulation.

41. In the second place, under Article 27(1) of Directive 2012/34, each manager ( 12 ) must develop and publish the national network statement. That statement is to detail the general rules, procedures and criteria for charging and capacity-allocation schemes, including all the information on the conditions for access to the rail infrastructure and for applying for infrastructure capacity. ( 13 ) Under Article 27(2) of that directive, read in conjunction with point 3(a) of Annex IV thereto, the network statement is also to contain ‘the procedures according to which applicants may request capacity from the infrastructure manager’.

42. That statement is reviewed by a national regulatory body which, under Article 55(1) of Directive 2012/34, is established by each Member State and is a completely independent stand-alone authority. ( 14 ) That body has power, inter alia, to check whether the network statement contains discriminatory clauses. ( 15 ) Further, Article 20(1) of Regulation No 913/2010 provides that this body is also competent for ensuring non-discriminatory access to the freight corridor.

43. Furthermore, I note that, in order to facilitate applications for infrastructure capacity on the freight corridors, Regulation No 913/2010 introduced an option of applying to a one-stop shop, that is to say, a single point of contact on each freight corridor enabling applicants to book pre-arranged train paths.

44. Regulation No 913/2010 also provided for a management board and an executive board for each freight corridor. Those boards, established under Article 8(1) and (2) of that regulation, differ in that they are set up differently and their composition is different.

45. First, the executive board is set up by the Member States involved in the freight corridor and is composed of representatives of the authorities of those States. ( 16 ) This board is responsible, inter alia, for defining the general objectives of the freight corridor and the framework for the allocation of infrastructure capacity on it. ( 17 )

46. Second, the management board is established by the infrastructure managers and is composed of representatives of those managers. ( 18 ) This board is responsible, among other activities, for designating or setting up the one-stop shop for each freight corridor, ensuring optimal coordination of the allocation of capacity between infrastructure managers, and drawing up and publishing a document (‘the CID’) ( 19 ) containing information on the conditions of use of the freight corridor. ( 20 )

47. I will first explain why I believe, unlike DB Netz, that the procedure for submitting applications for infrastructure capacity to the one-stop shop must be regulated by the infrastructure manager in the network statement (Section B). I will then argue, in contrast to the Federal Network Agency, that the national regulatory body, before making a substantive decision, must consult the other bodies concerned in order, in so far as possible, to agree on a common approach (Section C). Lastly, I will conclude that the framework for the allocation of infrastructure capacity established by the executive board of a freight corridor is not EU law and does not bind that regulatory body (Section D).

B. The competent authority to determine the procedure for submitting applications for infrastructure capacity to the one-stop shop (first question)

48. By its first question, the referring court asks whether the authority competent to determine the procedure for submitting applications for infrastructure capacity to the one-stop shop referred to in Article 13(1) of Regulation No 913/2010 is the management board of a freight corridor or the national infrastructure manager.

49. It should be recalled that, with the aim of establishing harmonising rules relating to freight corridors, ( 21 ) Article 13 of Regulation No 913/2010 provided for a one-stop shop established or designated by the management board of the corridor concerned. The applications in question relate in particular to the allocation of ‘Pre-arranged Train Paths’ (‘PaPs’). ( 22 )

50. DB Netz maintains that establishing the one-stop shop is intrinsically linked to defining the procedure for requesting capacity from it and that, therefore, the power to designate or set up the one-stop shop, which Article 13(1) of Regulation No 913/2010 confers on the management board, also implies that the management board is authorised to determine the arrangements for submitting applications at the one-stop shop. According to DB Netz, allowing the infrastructure managers to govern the procedure for applying at the one-stop shop in their network statements would present a risk of contradictory rules and would run counter to the objective of Regulation No 913/2010, which seeks to harmonise that procedure.

51. However, I share the Commission’s view that the power that Regulation No 913/2010 confers on the management board of a freight corridor is limited to the measures expressly mentioned in the regulation, which do not envisage competence to determine the procedure for submitting applications for infrastructure capacity to the one-stop shop. On the contrary, as can be seen from Directive 2012/34, that competence lies with the infrastructure managers. As I will show below, this interpretation is borne out, inter alia, by the objectives of Regulation No 913/2010. ( 23 )

52. In accordance with settled case-law, ( 24 ) my analysis is based on the wording of Regulation No 913/2010 and of Directive 2012/34, and on the travaux préparatoires for that regulation and the objectives it pursues.

1. The literal interpretation of Regulation No 913/2010 and Directive 2012/34

53. As regards the wording of Regulation No 913/2010, it is necessary to refer, first, to Article 8(2) thereof, according to which the management board of a freight corridor is ‘responsible for taking the measures as expressly provided for’ in a number of provisions, including Article 8(9) and Article 14(9) of that regulation.

54. Specifically, under Article 8(9) of Regulation No 913/2010, the management board is to ‘coordinate … the use of interoperable IT applications or alternative solutions that may become available in the future to handle requests for international train paths’. In addition, under Article 14(9) of the regulation, the management board is to put in place ‘procedures to ensure optimal coordination of the allocation of capacity between infrastructure managers … for requests as referred to in Article 13(1)’. ( 25 )

55. The Court has also held that the objective of simplifying infrastructure capacity allocation on freight corridors by means of a one-stop shop ‘is confirmed by the establishment of management bodies responsible for ensuring the coordination of rail traffic management along each freight corridor’. ( 26 )

56. This means, in my view, that the management board has only a coordinating role relating in particular to applications for infrastructure capacity, once they have been made. ( 27 ) In contrast, it is not responsible for determining the procedures for submitting applications to the one-stop shop. That is the responsibility of the infrastructure managers, in accordance with Directive 2012/34.

57. Indeed, I recall that it is clear from Article 27(1) and (2) of Directive 2012/34, read in conjunction with point 3(a) of Annex IV to that directive, that the infrastructure manager is to develop and publish the network statement which is to contain, inter alia, the procedures for submitting applications for capacity to the infrastructure manager. ( 28 ) The rules governing those procedures must therefore be contained in the network statement developed by the manager. This means that only the manager is competent to determine the procedure for submitting applications to the one-stop shop. ( 29 )

58. That interpretation is not called into question by the fact that point 3(a) of Annex IV to Directive 2012/34 refers expressly to requests for capacity ‘from the infrastructure manager’, rather than from the one-stop shop. As the Federal Network Agency has observed, even if applicants submit their requests to the one-stop shop, in practice they are dealing with the infrastructure managers running a freight corridor. That being so, the one-stop shop is simply a body through which applicants can submit their requests without needing to contact all the infrastructure managers running the freight corridor concerned. ( 30 )

59. It therefore seems to me that, as the Federal Network Agency has highlighted, the procedure for submitting applications for infrastructure capacity to the one-stop shop is a mandatory component of the network statement and cannot, as such, be subject to an independent regulatory regime falling within the competence of the management board.

60. In my opinion, that interpretation is also corroborated by the judgment in SJ, ( 31 ) on public procurement procedures in the transport sector, in which the Court interpreted Annex IV to Directive 2012/34 and concluded from it that ‘any request for infrastructure capacity must, under Directive 2012/34, be submitted to the infrastructure manager by a railway undertaking in accordance with the network statement drawn up by it and must comply with the principles and criteria set out in that document’.

61. Having regard to the foregoing, I do not believe that it emerges, either expressly or implicitly, from the wording of Regulation No 913/2010 or of Directive 2012/34 that the power to determine the procedure for submitting applications to the one-stop shop has been conferred on the management board. Instead, a literal interpretation of those legislative texts suggests that competence to do so lies with the infrastructure managers, which must lay down conditions for access to rail infrastructure, including the procedure for applying to the one-stop shop, in their network statements.

2. The travaux préparatoires for Regulation No 913/2010

62. The travaux préparatoires for Regulation No 913/2010, in my view, corroborate that interpretation. It can be seen from that work that the legislature intended to give the infrastructure managers an opportunity to play a primary role in managing the one-stop shop.

63. Although no such intention can be inferred from the Commission’s initial proposal for a regulation, ( 32 ) it is clearly apparent from the position of the European Parliament adopted at first reading that the infrastructure managers ‘may be assigned to function as the front office of the one-stop shop for the applicants requesting train paths’. ( 33 ) In its report on the proposal for a regulation, the Parliament also expressly emphasised that it was undesirable for the one-stop shop to be a separate organisation outside the managers. ( 34 ) The Council of the European Union also stated, in its common position, that the one-stop shop was to be designated or established ‘through collaboration between infrastructure managers’. ( 35 )

64. The intention not to separate the one-stop shop from the infrastructure managers is also clear from an opinion of the Commission on the Parliament’s amendments to the Council’s position, which explicitly stated that the one-stop shop function could be performed by ‘a technical body within the corridor management structure or one of the infrastructure managers concerned’. ( 36 )

65. It therefore emerges from the travaux préparatoires of Regulation No 913/2010 that the one-stop shop was conceived as a body closely linked to the infrastructure managers and that the legislature did not intend to deprive those managers of authority to determine the procedures for making applications at the one-stop shop.

66. Accordingly, the origin of Regulation No 913/2010 in my view reinforces the literal interpretation that I suggested above to the effect that determining the procedure for submitting applications for infrastructure capacity to the one-stop shop falls within the competence of the infrastructure managers. ( 37 )

3. The objectives of Regulation No 913/2010

67. As regards the objectives pursued by Regulation No 913/2010, I believe that the interpretation proposed here furthers the achievement of, inter alia, the objective of strengthening cooperation between the infrastructure managers and laying down rules aimed in particular at establishing one-stop shops enabling applicants to submit their requests for capacity in a single place and in a single operation.

68. DB Netz, for its part, claims that this objective could be jeopardised if the managers were able to regulate the procedure for submitting applications in their network statement. Specifically, in its view, such a situation could give rise to inconsistency between the rules in the various national statements.

69. However, the procedure contained in the network statement reflects the cooperation between the infrastructure managers under Directive 2012/34. ( 38 ) I would also emphasise that the function of the management board envisaged by Regulation No 913/2010 is precisely that of coordinating and cooperating with the infrastructure managers to ensure that the network statements do not contain contradictory rules.

70. In that regard, I note that, as I explained in points 53 to 56 of this Opinion, the functions of the management board of a freight corridor are limited by certain provisions of Regulation No 913/2010 and that none of those provisions authorise that board itself to determine the procedure for submitting applications as referred to in Article 13(1) of that regulation. Conversely that regulation does make it clear that the management board must ensure optimal coordination between the infrastructure managers. ( 39 )

71. Moreover, that interpretation is not called into question by Article 18(c) of Regulation No 913/2010, according to which the management board is to draw up, regularly update and publish a document (‘the CID’) containing the information on the procedures referred to in Article 13(1) of that regulation. ( 40 ) As the Federal Network Agency maintains, that document is in fact purely for information purposes and does not authorise the management board to lay down a binding procedure for submitting applications to the one-stop shop. ( 41 )

72. In the light of the foregoing, I consider that interpreting Regulation No 913/2010, read in the light of Directive 2012/34, as meaning that it is the infrastructure managers that have power to regulate the procedure for requesting infrastructure capacity in their network statements, ensures the useful effect of Article 13(1) of that regulation and does not prevent the procedure from being harmonised.

73. I find that, in the present case, DB Netz, as a rail infrastructure manager, is competent to determine the procedure for applying to the one-stop shop, in cooperation with the other infrastructure managers, but cannot do so, as DB Netz argues, by means of a resolution of the management board of the freight corridor in which it is involved.

74. In the light of the foregoing, I propose that the Court should answer the first question referred for a preliminary ruling to the effect that Regulation No 913/2010, in conjunction with Article 27(1) and (2) of Directive 2012/34 and point 3(a) of Annex IV thereto, must be interpreted as meaning that the procedure for submitting applications for infrastructure capacity to the one-stop shop referred to in Article 13(1) of that regulation must be regulated by the infrastructure managers in their network statements.

C. Duty of cooperation between regulatory bodies (second question)

75. By its second question, the referring court asks whether the review of the network statement by the national regulatory body is governed by Article 20 of Regulation No 913/2010 or exclusively by the provisions of Directive 2012/34, in particular Article 57(1), and whether a duty of cooperation between national regulatory bodies emerges from the framework of rules applicable in the present case.

76. That court is asking, in essence, whether, when reviewing the network statement, the national regulatory body has to seek a common approach with the other bodies involved before taking a decision, or whether it has authority to adopt such a decision without consulting them.

77. First, I note that the national regulatory bodies have power to review the network statements under the wording of both Article 56(1) and (2) of Directive 2012/34, ( 42 ) in conjunction with Article 57 of that directive, ( 43 ) and Article 20(1) and (3) of Regulation No 913/2010. ( 44 ) It emerges from those provisions that the regulatory bodies monitor competition on the freight corridors and in that field may intervene on their own initiative in order to prevent any discrimination against applicants.

78. Articles 56 and 57 of Directive 2012/34 relate to the market for rail services in general, whereas Article 20 of Regulation No 913/2010, which reflects those provisions in so far as competition is concerned, relates specifically to the rail freight market.

79. Secondly, I recall that, in the dispute in the main proceedings, the Federal Network Agency saw fit to intervene following an amendment to the network statement of DB Netz in relation to the application procedure at the one-stop shop. Specifically, the Federal Network Agency presumed that the removal of any alternative means of submitting applications to the one-stop shop in the event of a technical failure of the electronic booking system gave rise to discrimination. ( 45 )

80. Since the dispute in the main proceedings concerns discrimination on a rail freight network, I believe that Article 20(1) of Regulation No 913/2010, which establishes precisely that regulatory bodies can intervene in relation to discrimination concerning a rail freight corridor, is the provision applicable to this case. Moreover, that article provides that the regulatory bodies are to cooperate in order to ensure non-discriminatory access to the corridor. It appears that there was no such cooperation in the present case since, according to the decision to refer, the Federal Network Agency made a substantive decision without consulting the other bodies concerned.

81. The Federal Network Agency argues that Article 20 of Regulation No 913/2010 does not apply to the situation at hand, because it applies only in particular cases, including where specific incidents concerning the activities of the one-stop shop are reported to the national regulatory body. ( 46 ) In its view, Article 20 does not apply in the context of a general review of the network statement.

82. Contrary to what the Federal Network Agency maintains, I am of the view that Article 20(1) of Regulation No 913/2010 is drafted in sufficiently broad terms to apply in a case such as that in the main proceedings concerning a general discrimination issue. In addition, I consider that it is also clear from that provision that national regulatory bodies have a duty to cooperate which requires them to agree a uniform approach where a substantive decision is made.

83. Indeed, Article 20(1) of Regulation No 913/2010 establishes a general obligation on regulatory bodies to cooperate in relation to competition in the context of a freight corridor. As the Commission emphasised, that provision is broad in scope and not limited to the monitoring of the activities of the one-stop shop.

84. Recital 25 of Regulation No 913/2010 corroborates that view, stating that ‘in order to ensure non-discriminatory access to international rail services, it is necessary to ensure efficient coordination between the regulatory bodies with regard to the different networks covered by the freight corridor’. ( 47 )

85. I therefore share the Commission’s view that it is clear from Article 20(1) that the EU legislature envisaged cooperation between regulatory bodies in the form of coordination, which naturally had to involve consulting the other national regulatory bodies, with the aim, in so far as possible, of agreeing on a uniform approach. On the contrary, no provision of Regulation No 913/2010 suggests that the decisions of a regulatory body must be contingent on the consent of other regulatory bodies or that the regulatory body is bound by their decisions.

86. This means that a regulatory body cannot make a decision such as that in the main proceedings without consulting the other bodies concerned.

87. I am therefore of the view that the answer to the second question referred for a preliminary ruling should be that, when reviewing the network statement, the regulatory body must comply with Article 20 of Regulation No 913/2010 and must, before adopting its decision, consult the other national regulatory bodies concerned in order, in so far as possible, to agree on a uniform approach.

88. Having regard to the answers to the first and second questions, it is not necessary to examine the third question.

D. The nature of the framework established for allocating infrastructure capacity and its consequences for the national regulatory bodies (fourth and fifth questions)

89. As I observed in the preceding section, the national regulatory bodies are authorised to review the network statement, which contains the procedure for submitting applications to the one-stop shop.

90. In that context, the referring court expresses uncertainty as to the nature of the framework for allocating infrastructure capacity on the freight corridor, established by the executive board under Article 14(1) of Regulation No 913/2010. In particular, that court wishes to know whether that framework is an act of EU law which binds the national regulatory bodies and the national courts, whilst subject to final binding interpretation by the Court of Justice, and precludes a unilateral decision by a national regulatory body aimed at imposing a system for requesting capacity which has not been coordinated with other national regulatory bodies.

91. To answer that question, it is worth recalling that, under Article 8(1) and (4) of Regulation No 913/2010, the executive board of a freight corridor is set up by ‘the Member States concerned’ and ‘shall take its decisions on the basis of mutual consent of the representatives of the authorities of the Member States concerned’. ( 48 )

92. Furthermore, it can be seen from the wording of Article 14(1) of Regulation No 913/2010 that the executive board defines the framework in question in accordance with Article 39 of Directive 2012/34. That article indicates that it is the Member States that lay down the framework for the allocation of infrastructure capacity subject to the condition that the independence of the infrastructure managers is guaranteed.

93. In common with the Commission, I consider that it emerges from the foregoing that the executive board is not an EU institution, body, office or agency, but is a body created by the Member States concerned.

94. The rules comprising that framework are adopted collectively by the executive board and are intended to implement EU law as laid down by Directive 2012/34 and Regulation No 913/2010.

95. It follows from the foregoing, as the Commission has argued, that the framework established by the executive board under Article 14(1) of Regulation No 913/2010 is not an act of EU law and does not display the specific characteristics of EU law, namely that such an act binds the national authorities and courts, has primacy over national law ( 49 ) and is subject to final binding interpretation by the Court of Justice.

96. That framework is therefore not binding on the national regulatory body and does not prevent it from intervening in a situation such as that in the main proceedings in order to rectify an issue of discrimination affecting the procedure for submitting applications for infrastructure capacity, such as it is set out in the network statement of the infrastructure manager.

97. I would add that there are rules governing the regulatory body’s powers to intervene, in particular Article 20 of Regulation No 913/2010. As can be seen from the answer to the second question, the national regulatory body may not impose a requirement on an infrastructure manager, such as DB Netz, in relation to the procedure for submitting applications for capacity unless the other national regulatory bodies have been consulted on the matter. The reason for that constraint is not the legal nature of the framework established by the executive board, as the referring court envisages in its fifth question, but the scope of the powers that Directive 2012/34 and Regulation No 913/2010 confer on the regulatory bodies.

98. I therefore propose that the Court should reply to the fourth and fifth questions to the effect that the framework for allocating infrastructure capacity on the freight corridor, established by the executive board under Article 14(1) of Regulation No 913/2010, is not an act of EU law and does not bind the national regulatory body.

V. Conclusion

99. In the light of the foregoing, I propose that the Court should reply as follows to the questions referred for a preliminary ruling by the Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Higher Administrative Court for the Land of North Rhine-Westphalia, Germany): (1) Regulation (EU) No 913/2010 of the European Parliament and of the Council of 22 September 2010 concerning a European rail network for competitive freight, as amended by Regulation (EU) No 1316/2013 of the European Parliament and of the Council of 11 December 2013, in conjunction with Article 27(1) and (2) of, and point 3(a) of Annex IV to Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area, must be interpreted as meaning that the procedure for submitting applications for the allocation of infrastructure capacity to the one-stop shop referred to in Article 13(1) of that regulation must be regulated by the infrastructure managers in their network statements. (2) When reviewing the network statement, the regulatory body must comply with Article 20 of Regulation No 913/2010, as amended by Regulation No 1316/2013, and must, before adopting its decision, consult the other national regulatory bodies concerned in order, in so far as possible, to agree a uniform approach. (3) The framework for allocating infrastructure capacity on the freight corridor established by the executive board under Article 14(1) of Regulation No 913/2010, as amended by Regulation No 1316/2013, is not an act of EU law and does not bind the national regulatory body.

( 1 ) Original language: French.

( 2 ) Regulation of the European Parliament and of the Council of 22 September 2010 concerning a European rail network for competitive freight (OJ 2010 L 276, p. 22), as amended by Regulation (EU) No 1316/2013 of the European Parliament and of the Council of 11 December 2013 (OJ 2013 L 348, p. 129) (‘Regulation No 913/2010’).

( 3 ) Directive of the European Parliament and of the Council of 21 November 2012 (OJ 2012 L 343, p. 32).

( 4 ) Also referred to as the ‘Corridor One-Stop-Shop’ or ‘C-OSS’.

( 5 ) Under Article 3(24) and (27) of Directive 2012/34, ‘infrastructure capacity’ is defined as ‘the potential to schedule train paths requested for an element of infrastructure for a certain period’, whilst a ‘train path’ is defined as ‘the infrastructure capacity needed to run a train between two places over a given period’.

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

( 7 ) 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).

( 8 ) Article 30 of Directive 2001/14 was included in Article 55 and Article 56(1) of Directive 2012/34.

( 9 ) Those parties with access entitlement are the ‘applicant[s]’ referred to in Article 3(19) of Directive 2012/34, that is to say, among others, the railway undertakings that use the freight corridors. I would point out that in the present case Deutsche Bahn is an ‘integrated’ railway undertaking and, as such, it is both user and manager of railway infrastructure (with the management activity carried on by DB Netz). In respect of the organisation of pre-arranged international train paths, see footnote 22 to this Opinion.

( 10 ) The annex to Regulation No 913/2010 contains a list of the freight corridors. The six corridors operated by DB Netz are as follows: ‘Rhine – Alpine’, ‘Scandinavian – Mediterranean’, ‘Atlantic’, ‘Orient/East-Med’, ‘North Sea – Baltic’ and ‘Rhine – Danube’.

( 11 ) PCS stands for ‘Path Coordination System’. The applications in question are made online on the website: https://pcs.rne.eu/.

( 12 ) Under Article 3(2) of Directive 2012/34, an infrastructure manager is ‘any body or firm responsible in particular for establishing, managing and maintaining railway infrastructure’. In other words, the manager is simply the undertaking entrusted with running a national rail network, including maintaining and managing that network.

( 13 ) See, Article 3(26) and Article 27(2) of Directive 2012/34.

( 14 ) The Federal Network Agency is a national regulatory body.

( 15 ) See Article 56(2) of Directive 2012/34.

( 16 ) See Article 8(1) of Regulation No 913/2010.

( 17 ) See Article 8(1) and Article 14(1) of Regulation No 913/2010.

( 18 ) See Article 8(2) of Regulation No 913/2010.

( 19 ) CID stands for ‘Corridor Information Document’.

( 20 ) See Article 13(1), Article 14(9) and Article 18 of Regulation No 913/2010.

( 21 ) See to that effect, recital 10 of Regulation No 913/2010.

( 22 ) Under Article 14(3) of Regulation No 913/2010, those pre-arranged train paths for freight trains are to be organised, following the procedure referred to in Article 40 of Directive 2012/34, with a view to the efficient allocation of infrastructure capacity involving several networks in the European rail system. See footnote 5 to this Opinion for the definitions of ‘train path’ and ‘infrastructure capacity’.

( 23 ) See subsection 3 of this Opinion, in particular point 67.

( 24 ) See for example, judgment of 10 December 2018, Wightman and Others (C‑621/18, EU:C:2018:999, paragraph 47).

( 25 ) Emphasis added.

( 26 ) See judgment of 12 November 2015, United Kingdom v Parliament and Council (C‑121/14, EU:C:2015:749, paragraph 57). Emphasis added.

( 27 ) The importance of the coordinating role of the management board also emerges from Article 12 and from Article 14(6) as well as from Article 16(1) of Regulation No 913/2010.

( 28 ) See point 41 of this Opinion.

( 29 ) See, in the same vein, Article 18(a) of Regulation No 913/2010, according to which the national network statements are drawn up in accordance with the procedure set out in Article 27 of Directive 2012/34.

( 30 ) That view is to my mind borne out by Article 13(3) of Regulation No 913/2010, according to which the one-stop shop is to take a decision with regard to applications for pre-arranged train paths and to ‘inform the competent infrastructure managers of these applications and the decision taken without delay’.

( 31 ) Judgment of 28 February 2019 (C‑388/17, EU:C:2019:161, paragraph 38).

( 32 ) Proposal for a Regulation of the European Parliament and of the Council [of 11 December 2008] concerning a European rail network for competitive freight (COM(2008) 852 final).

( 33 ) See Article 10(2) of the position of the European Parliament adopted at first reading on 23 April 2009 with a view to the adoption of Regulation (EC) No …/2009 of the European Parliament and of the Council concerning a European rail network for competitive freight (OJ 2010 C 184 E, p. 354).

( 34 ) See Amendment 49 of the report of 2 April 2009 on the proposal for a regulation of the European Parliament and of the Council concerning a European rail network for competitive freight (A6-0220/2009).

( 35 ) See Article 12(1) of the position of the Council at first reading with a view to the adoption of a regulation of the European Parliament and of the Council concerning a European rail network for competitive freight adopted by the Council on 22 February 2010 (OJ 2010 C 114 E, p. 1).

( 36 ) Opinion of the Commission on the European Parliament amendments at second reading to the Council position regarding the proposal for a regulation of the European Parliament and of the Council concerning a European rail network for competitive freight (COM(2010) 457 final, p. 3).

( 37 ) See points 53 to 61 of this Opinion.

( 38 ) See to that effect, Article 40 of Directive 2012/34.

( 39 ) See Article 14(9) of Regulation No 913/2010.

( 40 ) See point 46 of this Opinion.

( 41 ) See also recital 26 of Regulation No 913/2010.

( 42 ) Under Article 56 of Directive 2012/34, the regulatory body is authorised, on its own initiative where necessary, to control the network statement with a view to preventing any discrimination against applicants.

( 43 ) Article 57(1) and (2) of Directive 2012/34 imposes a general obligation to cooperate on the regulatory bodies, whereas Article 57(3) establishes a monitoring obligation where a specific international train path is involved, which is not the situation under analysis in the present case.

( 44 ) According to Article 20(1) of Regulation No 913/2010, which refers to Article 56(1) of Directive 2012/34, the regulatory bodies are to cooperate in monitoring the competition in the rail freight corridor and ensure non-discriminatory access to the corridor, within the framework of an own-initiative investigation if necessary. Article 20(3) of Regulation No 913/2010, on competition issues relating to an ‘international train path for freight train concerned’, relates to specific cases that have already been identified, which are not under analysis in the present case.

( 45 ) See points 25 and 26 of this Opinion.

( 46 ) See Article 13(5) of Regulation No 913/2010.

( 47 ) Emphasis added.

( 48 ) See also point 45 of this Opinion.

( 49 ) See judgment of 24 June 2019, Popławski (C‑573/17, EU:C:2019:530, paragraph 53).