OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 31 March 2022 ( 1 )

Case C‑229/21

Port de Bruxelles SA,

Région de Bruxelles-Capitale

v

Infrabel SA

interested parties

Région de Bruxelles-Capitale,

Port de Bruxelles,

Lineas SA

(Request for a preliminary ruling from the cour d’appel de Bruxelles (Court of Appeal, Brussels, Belgium))

(Reference for a preliminary ruling – Transport – European Union guidelines for the development of the trans-European transport network – Core network – Inland waterways transport infrastructure – Obligation of a Member State to connect inland ports with road and rail infrastructure)

I. Introduction

1. This request for a preliminary ruling concerns the interpretation of Article 15(1) of Regulation (EU) No 1315/2013 of the European Parliament and of the Council of 11 December 2013 on Union guidelines for the development of the trans-European transport network and repealing Decision No 661/2010/EU. ( 2 )

2. The request has been made in proceedings brought by the company Port de Bruxelles SA with a view to retaining the sole access rail line from the port of Brussels (Belgium) to the Belgian rail network.

3. I will set out the reasons why I am of the view that, in accordance with Article 15(1) of Regulation No 1315/2013, Member States must refrain from removing either the road or the rail infrastructure to which an internal port is already connected, particularly if that port is part of the core network that makes up the trans-European transport network, subject to certain operating conditions which are for the national court to assess.

II. Legal context

4. Recitals 7, 8 and 13 of Regulation No 1315/2013 state the following: ‘(7) The trans-European transport network consists to a large extent of existing infrastructure. In order fully to achieve the objectives of the new trans-European transport network policy, uniform requirements regarding the infrastructure should be established in a Regulation to be complied with by the infrastructure of the trans-European transport network. (8) The trans-European transport network should be developed through the creation of new transport infrastructure, through the rehabilitation and upgrading of existing infrastructure and through measures promoting its resource-efficient use. In specific cases, due to the absence of regular maintenance in the past, rehabilitation of rail infrastructure is necessary. Rehabilitation is a process resulting in the achievement of the original construction parameters of existing railway infrastructure facilities combined with the long-term improvement of its quality compared to its current state, in line with the application of the requirements and provisions of this Regulation. … (13) The core network should be identified and appropriate measures should be taken for its development by 2030 as a priority within the framework provided by the comprehensive network. The core network should constitute the backbone of the development of a sustainable multimodal transport network and should stimulate the development of the entire comprehensive network. It should enable Union action to concentrate on those components of the trans-European transport network with the highest European added value, in particular cross-border sections, missing links, multimodal connecting points and major bottlenecks serving the objective, set out in the [European Commission’s] White Paper, [entitled “Roadmap to a Single European Transport Area – Towards a competitive and resource efficient transport system” ( 3 )], of reducing greenhouse gas emissions from transport by 60% below 1990 levels by 2050. …’

5. Article 1 of that regulation, which is entitled ‘Subject matter’, provides: ‘1. This Regulation establishes guidelines for the development of a trans-European transport network comprising a dual-layer structure consisting of the comprehensive network and of the core network, the latter being established on the basis of the comprehensive network. 2. This Regulation identifies projects of common interest and specifies the requirements to be complied with for the management of the infrastructure of the trans-European transport network. …’

6. Article 4 of the regulation, which is entitled ‘Objectives of the trans-European transport network’, provides: ‘The trans-European transport network shall strengthen the social, economic and territorial cohesion of the Union and contribute to the creation of a single European transport area which is efficient and sustainable, increases the benefits for its users and supports inclusive growth. It shall demonstrate European added value by contributing to the objectives laid down in the following four categories: … (b) efficiency through: … (iii) optimal integration and interconnection of all transport modes; … (v) efficient use of new and existing infrastructure; … (c) sustainability through: … (ii) contribution to the objectives of low greenhouse gas emissions, low-carbon and clean transport, fuel security, reduction of external costs and environmental protection; (iii) promotion of low-carbon transport with the aim of achieving by 2050 a significant reduction in CO2 emissions, in line with the relevant Union CO2 reduction targets; …’

7. Article 5 of the same regulation, which is entitled ‘Resource-efficient network’, states: ‘1. The trans-European transport network shall be planned, developed and operated in a resource-efficient way, through: (a) development, improvement and maintenance of existing transport infrastructure; (b) optimisation of infrastructure integration and interconnection; …’

8. In Section 1 of Chapter II, which is entitled ‘The comprehensive network’, of Regulation No 1315/2013, Article 13 of that regulation, which is entitled ‘Priorities for railway infrastructure development’, provides: ‘In the promotion of projects of common interest related to railway infrastructure, and in addition to the general priorities set out in Article 10, priority shall be given to the following: … (f) where appropriate, connecting railway transport infrastructure with inland waterway port infrastructure.’

9. Section 2 of that chapter, which concerns ‘Inland waterways transport infrastructure’, includes Articles 14 to 16. Article 14, which is entitled ‘Infrastructure components’, states, in point (e) of paragraph 1 thereof, that inland waterways infrastructure is to comprise, in particular, inland ports, including the infrastructure necessary for transport operations within the port area.

10. Paragraph 1 of Article 15 of that regulation, which is entitled ‘Transport infrastructure requirements’, provides: ‘Member States shall ensure that inland ports are connected with the road or rail infrastructure.’

11. Article 16 of the regulation, which is entitled ‘Priorities for inland waterway infrastructure development’, states: ‘In the promotion of projects of common interest related to inland waterway infrastructures, and in addition to the general priorities set out in Article 10, priority shall be given to the following: … (d) connecting inland port infrastructure to rail freight and road transport infrastructure; …’

12. Chapter III of the same regulation, which is entitled ‘The core network’, includes Article 38, which concerns the ‘Identification of the core network’, under which: ‘1. The core network, as shown on the maps contained in Annex I, shall consist of those parts of the comprehensive network which are of the highest strategic importance for achieving the objectives of the trans-European transport network policy, and shall reflect evolving traffic demand and the need for multimodal transport. It shall, in particular, contribute to coping with increasing mobility and ensuring a high safety standard as well as contributing to the development of a low-carbon transport system. 2. The core network shall be interconnected in nodes and provide for connections between Member States and with neighbouring countries’ transport infrastructure networks. 3. Without prejudice to Article 1(4) and Article 41(2) and (3), Member States shall take the appropriate measures for the core network to be developed in order to comply with the provisions of this Chapter by 31 December 2030. In accordance with Article 54, the implementation of the core network shall be evaluated by the Commission by 31 December 2023.’

13. Article 39 of Regulation No 1315/2013, which is entitled ‘Infrastructure requirements’, states in paragraph 2 thereof: ‘The infrastructure of the core network shall meet all the requirements set out in Chapter II. …’

14. Article 40 of that regulation, which concerns the ‘Development of the core network’, reads as follows: ‘The transport infrastructure included in the core network shall be developed in accordance with the corresponding provisions of Chapter II.’

15. Article 41 of the regulation, which is entitled ‘Nodes of the core network’, provides: ‘1. The nodes of the core network are set out in Annex II and include: (a) urban nodes, including their ports and airports; (b) maritime ports and inland waterways ports; … 2. Maritime ports of the core network indicated in Part 2 of Annex II shall be connected with the railway and road and, where possible, inland waterway transport infrastructure of the trans-European transport network by 31 December 2030, except where physical constraints prevent such connection. …’

III. The dispute in the main proceedings and the question referred for a preliminary ruling

16. Port de Bruxelles is a legal person governed by public law and is responsible for the management, operation and development of the canal, the port of Brussels, the fore-port, the port facilities and their outbuildings in the Région de Bruxelles-Capitale (Brussels Capital Region, Belgium).

17. Infrabel SA is a Belgian public economic undertaking. It operates the Belgian rail network and owns the railway sidings and assets needed or useful for such operation.

18. The FIF-FSI (Fonds d’infrastructure ferroviaire) (Railway Infrastructure Fund) ( 4 ) is a public limited company established under private law and is responsible for the management and development of land and other commercial activities in the field of the development, purchase and sale, management and financing of real estate. All of its capital is indirectly held by the Belgian State.

19. Two royal decrees of 14 June 2004 ( 5 ) and of 30 December 2004 ( 6 ) require Infrabel, no later than 31 December 2020, to dismantle the railway facilities located at the Schaerbeek-Formation site in Brussels (Belgium) and to restore that site so that it can be handed over to the FIF wholly unoccupied. One of the remaining facilities to be dismantled is the only rail link between the port facilities of the port of Brussels and the Belgian rail network.

20. On 12 October 2018, Port de Bruxelles brought proceedings against Infrabel before the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking), Belgium) seeking an order prohibiting Infrabel from ‘taking any action contrary to the provisions of Regulation No 1315/2013 “TEN-T”, including the dismantling of the structures and facilities covered by [that] regulation … and in particular the rail connection linking the Brussels fore-port area of the port of Brussels to (Infrabel’s) network’.

21. On 30 October 2018, Infrabel brought an action for the FIF to be joined to the proceedings. The Kingdom of Belgium joined the proceedings voluntarily on 13 November 2018 to allow the future judgment to be enforceable against it. Région de Bruxelles-Capitale and the public limited company Lineas SA also joined the proceedings at a later stage in support of Port de Bruxelles.

22. On 14 March 2019, Port de Bruxelles requested that the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking)), as an interim measure, prohibit Infrabel, pending a final judgment on the merits of the case, from taking out of service and dismantling sidings area C, including the port’s single rail access link, and order it to keep that link in perfect working order and to maintain it in accordance with best practice.

23. In the event that that request were granted, Infrabel asked that that court inter alia prohibit the FIF from claiming compensation from it pending the delivery of the judgment on the merits.

24. By judgment of 20 December 2019, the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking)) found that it ‘lacked jurisdiction’ to hear and determine the action brought by Port de Bruxelles, save in so far as it sought to rely on an easement. It rejected the application for interim measures made by Port de Bruxelles on the ground that the commitment made by Infrabel in the agreement concluded with the FIF on 5 November 2019, extending until 30 June 2021 the deadline for the dismantling of the railway facilities at issue, was sufficient to settle the position of the parties temporarily. Port de Bruxelles and Région de Bruxelles-Capitale appealed against that judgment before the referring court, which decided that the FIF and the Kingdom of Belgium should be excluded from the case.

25. The referring court asks about the right of Port de Bruxelles to rely, before the Belgian courts, on a subjective right under Article 15 of Regulation No 1315/2013. It explains that, according to Port de Bruxelles, that provision imposes a positive obligation, namely to create a system in which infrastructure is interconnected and in respect of which the authorities enjoy a discretionary power, as well as a negative obligation, namely not to act contrary to the objectives of that regulation and therefore, specifically, not to adversely affect the integrity of the existing infrastructure.

26. Infrabel takes the opposing view on the ground that, according to the wording of that provision, in particular its French-language version, inland ports must be connected either with the road infrastructure or with the rail infrastructure as that language version uses the conjunction ‘or’.

27. In that regard, the referring court observes that the Dutch-language version of Article 15(1) of Regulation No 1315/2013 uses the conjunction ‘and’ not ‘or’. It infers from that fact that a literal interpretation of that provision is not enough to determine its exact meaning.

28. According to that court, that provision may be interpreted in two opposing ways. It could be inferred from Article 3(n), and Article 28(1) of that regulation that a single connection of one transport mode, such as an internal port, with another transport mode is sufficient and that, in the present case, Port de Bruxelles should be satisfied with the road connection of its port infrastructure.

29. However, an alternative interpretation of Article 15 of the regulation could be argued, since, first, that instrument has its origin in the commitments made by the Commission in its White Paper, to which the regulation refers. It follows from that fact that that the objectives of that regulation are twofold, namely to increase the competitiveness of transport and to deliver a minimum 60% reduction of greenhouse gas emissions from transport by 2050. Second, the provisions of Articles 5, 10, 16 and 34 of Regulation No 1315/2013 and the guidance set out in recitals 7 and 8 of that regulation could support such an interpretation.

30. It is in those circumstances that the cour d’appel de Bruxelles (Court of Appeal, Brussels) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Where an inland port – which forms part of the core network – is already connected to the road and to the rail network, does Article 15 of [Regulation No 1315/2013], construed in isolation or in conjunction with other provisions of that regulation, lay down an obligation to keep and to maintain both those links or an obligation to refrain from removing one of them, even merely by failing to maintain it?’

31. Furthermore, the referring court requested the application of the expedited procedure, pursuant to Article 105(1) of the Rules of Procedure of the Court, on the ground that, in order to ensure the effectiveness of the answer awaited from the Court, it has prohibited Infrabel from dismantling the railway facilities at issue in the main proceedings until a fresh ruling has been issued on the matter following receipt of the answer from the Court to the question referred. However, since 1 July 2021, Infrabel has in principle been liable to the payment of damages to the FIF for the delay in dismantling those facilities.

32. The President of the Court rejected that application for the expedited procedure by decision of 4 May 2021 and decided that the information communicated by the referring court justified the case being dealt with as a priority, pursuant to Article 53(3) of the Rules of Procedure.

33. Port de Bruxelles, Infrabel, Région de Bruxelles-Capitale, the Belgian Government and the Commission submitted written observations. Those parties, with the exception of Région de Bruxelles-Capitale, presented oral argument at the hearing held on 19 January 2022.

IV. Analysis

34. The purpose of the question referred for a preliminary ruling is, in essence, to determine whether Article 15 of Regulation No 1315/2013 precludes the removal of a road or rail link where an internal port, such as the port of Brussels, has both such links.

35. Regulation No 1315/2013 defines the long-term strategy for the development of a full trans-European transport network, ( 7 ) bringing together the infrastructure for railway, maritime, air and multimodal ( 8 ) transport, as well as roads and inland waterways. ( 9 ) That network has two components: the comprehensive network and the core network. ( 10 ) The objective of the regulation is to complete the core network by 2030, ( 11 ) whereas the deadline for the comprehensive network is set as 2050. ( 12 )

36. As is made clear in Annex II to Regulation No 1315/2013, and in accordance with Article 41(1) thereof, the internal port of Brussels is a node of the core network. ( 13 ) On that basis, that port is a part of the comprehensive network ( 14 ) which is of the highest strategic importance for achievement of the objectives for the development of the trans-European transport network. ( 15 )

37. As inland waterways infrastructure that is part of the core network, ( 16 ) the port of Brussels is subject to the requirements laid down for the comprehensive network in Chapter II of that regulation, ( 17 ) particularly in Section 2 thereof, which include those set out in Article 15 of the regulation.

38. The referring court asks the Court about the interpretation of that provision, the direct effect of which is contested by Infrabel, in a situation in which the existing infrastructure is governed by national provisions adopted in 2004.

39. Accordingly, I would point out, as regards the scope of Regulation No 1315/2013, that there can be no doubt that that regulation does not just govern projects for the creation of new infrastructure but also applies to existing infrastructure. ( 18 ) No restriction vis-à-vis its use or the need to rehabilitate it, or even to upgrade it, is laid down.

40. As regards the temporal application of that regulation, which does not contain any special transitional provisions, it may be observed, in accordance with the principle established by the Court concerning the application of substantive rules, ( 19 ) that, whilst the legal position of Port de Bruxelles vis-à-vis Infrabel is governed by the royal decrees adopted in 2004, their effects have not been exhausted. ( 20 ) The regulation is therefore applicable in the present case. ( 21 )

41. As for the direct effect of Article 15 of Regulation No 1315/2013, as it is defined in the case-law of the Court, ( 22 ) it is my view, contrary to Infrabel’s position, that that provision does not afford any discretion to the Member States in relation to the link between internal ports and the road or rail infrastructure, or require on their part the adoption of any additional implementing measures. ( 23 )

42. I note that Infrabel argues that Member States enjoy some discretion since Article 15 of Regulation No 1315/2013 provides that they ‘shall ensure’ that the ports are connected with the road or rail infrastructure. In its view, those words do not have the binding effect of a provision drafted in such terms: internal ports shall be connected. That analysis is supported by the fact that failing to comply with such an obligation entails merely the requirement to report that fact to the Commission, in accordance with Article 56 of Regulation No 1315/2013. In addition, Infrabel contends that the wording of Article 16 of that regulation, upon which Port de Bruxelles relies, is one aspect of the programmatic nature of the regulation. Lastly, in its view, Port de Bruxelles could not rely on a ‘ratchet effect’ of the regulation, on the basis of Article 5 thereof, thereby establishing the obligation to keep the existing access infrastructure. Member States are therefore free to dismantle an existing link and to erect a new one without being subject to constraints as regards timelines, financing and the features of the link, which are determined by Regulation No 1315/2013.

43. I would point out that, to my knowledge, the Court has yet to rule on the direct effect of a provision of a regulation which contains those words: ‘Member States shall ensure’. I do not believe that they have the scope given to them by Infrabel, since the provisions of EU law invoked before the national court, and in particular Article 15 of Regulation No 1315/2013, form part of a system that governs the development of the trans-European network, laying down rules for the implementation of that network and requirements vis-à-vis the interoperability of the transport infrastructure.

44. In addition, it is in that context that the legislature set out in Article 15 of that regulation, in sufficiently clear and precise terms, an obligation on Member States to provide for or retain a link between internal ports and other land transport infrastructure. Moreover, as regards the core network, provision is specifically made for a review of that network to be conducted in a shorter timeframe. ( 24 ) It must also be observed that, by virtue of Article 5 of the regulation, all measures had to be adopted, with effect from its entry into force, to make existing infrastructure compatible with the requirements of Regulation No 1315/2013. Furthermore, if it were to be accepted that Member States were under no obligation to act in relation to the existing infrastructure, then that regulation would be rendered ineffective.

45. However, the question arises whether that obligation relates to just one of those infrastructures (road or rail) or to both of them.

46. In that regard, the referring court’s doubts regarding the wording of that provision stem from the differences that exist between certain language versions. Only in the Bulgarian- and Dutch-language versions does the obligation to connect internal ports relate to both types of infrastructure. ( 25 )

47. It is settled case-law of the Court that the words used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision or be made to override the other language versions. ( 26 )

48. I note, on reading the provisions of Regulation No 1315/2013 in their entirety, that the EU legislature used the conjunction ‘or’ in the articles that lay down requirements (Articles 12, 15 and 22 of that regulation), whereas the conjunction ‘and’ is used in the articles that set the priorities for development, namely (Article 16(d) and Article 41 of the regulation). ( 27 )

49. I do not therefore share the view of the Belgian Government, Port de Bruxelles and Région de Bruxelles-Capitale that Article 15(1) of Regulation No 1315/2013 lays down an obligation on Member States ( 28 ) to connect internal ports with two types of infrastructure, that is to say road and rail.

50. However, I note the lack of clarity in Article 15 of the regulation in relation to existing infrastructure. A distinction must, in my view, be drawn between the creation of links and retaining them, particularly where the Member State has already opted for a multimodal arrangement.

51. An interpretation to that effect can, it appears to me, be inferred from the context provided in the articles of Regulation No 1315/2013 that determine priorities for the development of the trans-European transport network, and in particular the inland waterways infrastructure. As priority is to be given to ‘connecting inland port infrastructure to rail freight and road transport infrastructure’, ( 29 ) the removal of one of them, given the difference in the wording of Article 15(1) of that regulation, would make no sense.

52. More generally, interpreting Article 15(1) of Regulation No 1315/2013 to mean that a link to several transport infrastructures that already exist must not be removed is justified, in the light of the objectives pursued by that regulation, by the development of the structured trans-European transport network with a view to its optimisation.

53. Article 4 of that regulation sets out the objectives to which that network contributes in so far as it promotes the creation of a single European transport area which is efficient and sustainable.

54. With regard, in the first place, to the objective of efficiency, it is achieved inter alia through optimal integration and interconnection of all transport modes ( 30 ) as well as through ‘use of new and existing infrastructure’. ( 31 )

55. In that connection, Article 5(1) of Regulation No 1315/2013 determines the best ways to use resources in the management of the trans-European transport network, relying on existing infrastructure ( 32 ) and optimising the interconnection of structures. ( 33 )

56. In addition, account must be taken of the design of the core network and of its components within the trans-European transport network.

57. It must be borne in mind that that core network is defined as ‘consist[ing] of those parts of the comprehensive network which are of the highest strategic importance for achieving the objectives for the development of the trans-European transport network’. ( 34 ) Article 41 of that regulation clarifies that that core network is formed inter alia of the main urban nodes, ( 35 ) including ports and airports as well as maritime ports and inland waterways ports.

58. In addition, an urban node is of particular relevance when analysing all the provisions of Regulation No 1315/2013 because, first, it is characterised by its location in an area in which transport infrastructure of the trans-European transport network is connected with other parts of that infrastructure and with the regional and local traffic infrastructure. ( 36 )

59. Second, the objective of connecting such nodes, wherever possible with multimodal links, as long as they are economically viable, environmentally sustainable and feasible by 2030, is referred to in recital 41 of Regulation No 1315/2013.

60. Accordingly, a further argument can be put forward based on the objectives regarding such multimodal links. ( 37 ) In order to allow multimodal transport of passengers and goods, Member States must ensure, in accordance with Article 28(1) of that regulation, that two or more modes of transport are connected, ( 38 ) namely freight terminals, passenger stations, inland ports, airports and maritime ports.

61. One final point that is useful in interpreting the scope of Article 15 of the regulation can, to my mind, be found in the existence of core network corridors, as regards infrastructure making up that network. Chapter IV of the regulation, which is entitled ‘Implementation of the core network through network corridors’, includes Article 43(2), under which ‘core network corridors shall be multimodal and open to the inclusion of all transport modes covered in this regulation. They cross at least two borders and, if possible, involve at least three transport modes, including, where appropriate, motorways of the sea’.

62. It follows, in my opinion, from all those considerations that, while the obligations on Member States are those laid down in Regulation No 1315/2013 vis-à-vis the comprehensive network, and in particular in Article 15 thereof, the high standard required to satisfy the objective of efficiency, ( 39 ) which is necessary for transport infrastructure, depends on whether that infrastructure is a component of the core network. ( 40 ) The significance of that network within the trans-European transport network and its potential implementation using corridors must therefore be taken into consideration.

63. In the second place, as provided for in Article 4 of that regulation, ( 41 ) sustainability is a further objective to which that trans-European network contributes through the implementation and promotion of low-carbon transport, in accordance with the European Union’s objectives in relation to environmental protection. ( 42 )

64. In addition, in relation to goods, it was recommended in the White Paper, ( 43 ) in relation to long-haul journeys, that use be made of multimodal solutions based on maritime and inland navigation as well as on trains. For freight shipments over short and medium distances, transport solutions other than by truck were encouraged, such as by rail or inland waterway. Similarly, in relation to the development of seaports, the view was taken that inland waterways, where unused potential existed, had to play an increasing role, in particular in moving goods to the hinterland and in linking the European seas. ( 44 )

65. Moreover, further to the written observations submitted by the Belgian Government, ( 45 ) it is worth noting that the objective of promoting sustainable transport modes and modal shift inter alia towards railways and inland waterways is further pursued in the context of efforts to accelerate the completion of the core network. I refer, in this regard, to the evaluation of Regulation No 1315/2013 on Union Guidelines for the development of a trans-European transport network ( 46 ) and to the proposal for a Regulation of the European Parliament and of the Council on Union guidelines for the development of the trans-European transport network, amending Regulation (EU) 2021/1153 and Regulation (EU) No 913/2010 and repealing Regulation (EU) 1315/2013. ( 47 ) I note, in addition, that recital 11 of that draft, which is at the reading stage before the Parliament, refers to Directive 2021/1187.

66. Accordingly, it follows from those considerations, without there being any need to rely on the standstill principle or a ‘ratchet effect’, as invoked by Port de Bruxelles, ( 48 ) that the dismantling of a rail line connecting an internal port of the core network with the rail infrastructure, which also satisfies the environmental sustainability conditions, cannot be consistent, in principle, with the requirements of Article 15(1) of Regulation No 1315/2013.

67. In the present case, account should therefore be taken of the fact that the port of Brussels is part of the core network of the trans-European transport network as an internal port, ( 49 ) that Brussels is part of two core network corridors and three pre-identified sections, and that the matter at issue is the dismantling of the only rail line connecting that port with the railway transport infrastructure, which satisfies, in principle, the objectives of efficiency and sustainability.

68. However, the clarifications provided by Infrabel concerning the last use of the rail link in December 2018 and its condition, as a result of which it should be taken out of service with effect from 1 January 2021, together with the Commission’s observations, justify, in my view, providing for specific limits on the application of the principle that the existing infrastructure should be kept, without however losing sight of the unconditional obligation to maintain it since the entry into force of Regulation No 1315/2013 ( 50 ) and the objective of promoting the integration of inland waterways into the transport system, ( 51 ) which is set out in that regulation.

69. In that regard, reservations relating to the condition of the transport infrastructure, its economic viability or its environmental sustainability could be expressed in line with those expressed by the EU legislature in recital 41 of that regulation.

70. In my opinion, the national court alone is in a position to assess, in the light of the circumstances and the context in which the project at issue was decided on, that project’s compliance with the regulation, which seeks to promote and develop a trans-European transport network, taking into account more specifically the fact that that project is to be carried out within the core network.

71. However, in so far as, in the present case, the justification for the dismantling of the rail line at issue relied on before the national court is the increase in the sale value of the land at the Schaerbeek-Formation site, I consider it appropriate to make clear that that justification is at odds with the objectives of Regulation No 1315/2013, which require inter alia that a multimodality of means of transporting goods is kept.

72. In my view, the retention of the existing rail link must form the subject of a socio-economic analysis, ( 52 ) based on an assessment of the advantages it provides as compared with the costs of its rehabilitation and, where appropriate, its replacement, without consideration of the value of the land with or without any easement.

73. It is therefore my view that the dismantling of a rail line connecting an internal port with railway transport infrastructure is contrary to the obligations imposed on Member States in Regulation No 1315/2013, unless such a project is justified in the light of the results of an analysis that takes account of its costs and of its social, economic, climate-related and environmental advantages, which is to be assessed by the competent national authority.

V. Conclusion

74. In the light of all the foregoing considerations, I propose that the Court answer the question referred for a preliminary ruling by the cour d’appel de Bruxelles (Court of Appeal, Brussels, Belgium) as follows: Article 15(1) of Regulation (EU) No 1315/2013 of the European Parliament and of the Council of 11 December 2013 on Union guidelines for the development of the trans-European transport network and repealing Decision No 661/2010/EU, read in conjunction with Articles 4, 5 and Article 16(d) of that regulation, is to be interpreted as precluding a national measure ordering the dismantling of a rail link to an internal port if it is not justified by the results of a socio-economic analysis, which must be assessed in the light of the objectives of the regulation by the competent national authority.

( 1 ) Original language: French.

( 2 ) OJ 2013 L 348, p. 1.

( 3 ) Of 28 March 2011, COM(2011) 144 final/2. This French-language version annuls and replaces document COM(2011) 144 final of 28 March 2011. The ‘White Paper’.

( 4 ) the ‘FIF’.

( 5 ) Moniteur belge of 14 June 2004, p. 51971.

( 6 ) Moniteur belge of 30 December 2004, p. 87338.

( 7 ) That regulation was adopted on the basis of Article 172 TFEU. See, to that effect, judgment of 12 November 2015 (C‑121/14, EU:C:2015:749, paragraphs 44 to 46). As set out in Article 59 of the regulation and explained in recital 1 thereof, the regulation replaces Decision No 661/2010/EU of the European Parliament and of the Council of 7 July 2010, on Union guidelines for the development of the trans-European transport network (OJ 2010 L 204, p. 1), which had followed the recast of the guidelines adopted by Decision No 1692/96/EC of the European Parliament and of the Council of 23 July 1996, on Community guidelines for the development of the trans-European transport network (OJ 1996 L 228, p. 1).

( 8 ) Multimodal transport is defined in Article 3(n) of the regulation as the carriage of passengers or freight, or both, using two or more modes of transport.

( 9 ) See Article 2(2) of Regulation No 1315/2013.

( 10 ) See Article 1(1) of that regulation.

( 11 ) See, to that effect, Article 38(3) of the regulation.

( 12 ) See Article 39 of Regulation No 1315/2013.

( 13 ) In accordance with the same legislation, Brussels is an urban node of the core network.

( 14 ) See Article 1(1) of that regulation.

( 15 ) See, in that regard, Article 6(3), and Article 38(1) of the regulation.

( 16 ) See, to that effect, Article 6(2) and (3) and Article 14(1)(e) of Regulation No 1315/2013.

( 17 ) See Article 6(2), Article 39(2) and Article 40 of the regulation.

( 18 ) See, inter alia, recitals 7 and 8, Article 5(1) and Article 7(1) of Regulation No 1315/2013. See, for a reminder of those provisions, judgment of 12 November 2015, United Kingdom v Parliament and Council (C‑121/14, EU:C:2015:749, paragraphs 51 and 52). In the present case, I note that the referring court does not question the fact that the railway at issue may be regarded as existing.

( 19 ) See, inter alia, judgment of 3 June 2021, Jumbocarry Trading (C‑39/20, EU:C:2021:435, paragraphs 28 and 29 and the case-law cited).

( 20 ) The situation at issue did, admittedly, arise under the former law (see footnote 7 to this Opinion), but the dispute concerns dismantling operations that are still to be undertaken. See, in this regard, judgment of 26 May 2016, Județul Neamț and Județul Bacău (C‑260/14 and C‑261/14, EU:C:2016:360, paragraph 55 and the case-law cited). If the legal situation at issue was definitively established prior to the entry into force of that regulation, I take the view that it follows from its wording, its purpose and its scheme that immediate effect must be given to it for the same reasons as those set out in points 41 and 44 of this Opinion.

( 21 ) See, in a similar situation concerning the environment, Opinion of Advocate General Sharpston in Stadt Papenburg (C‑226/08, EU:C:2009:440, points 52, 60, 64 and 69), as well as judgment of 14 January 2010, Stadt Papenburg (C‑226/08, EU:C:2010:10, paragraph 50).

( 22 ) See, inter alia, judgment of 15 June 2021, Facebook Ireland and Others (C‑645/19, EU:C:2021:483, paragraph 110).

( 23 ) Examination of the legislative work concerning the choice to draw up a regulation and not a directive supports that analysis. See, by way of comparison, new provisions in force and the future provisions set out in point 65 of this Opinion.

( 24 ) See Article 38(3) and Article 54 of the regulation.

( 25 ) The word ‘и’ is used in the Bulgarian-language version and the word ‘en’ appears in the Dutch-language version. For another example of differences, see the various language versions of Article 28(1) of Regulation No 1315/2013.

( 26 ) See, to that effect, judgment of 6 October 2021, Consorzio Italian Management and Catania Multiservizi (C‑561/19, EU:C:2021:799, paragraphs 43, 44 and 46 and the case-law cited).

( 27 ) See, in the same vein, Article 13(f) of the regulation.

( 28 ) With the exception of the Republic of Cyprus and of the Republic of Malta, for as long as no railway system is established within their territory (see Article 57 of that regulation).

( 29 ) Article 16(d) of that regulation. Emphasis added. See also Article 10(1)(b) of the regulation, which states that, in the development of the comprehensive network, general priority is to be given to measures that are necessary for ensuring optimal integration of the transport modes and interoperability within transport modes.

( 30 ) See Article 4(b)(iii) of Regulation No 1315/2013.

( 31 ) Article 4(b)(v) of that regulation.

( 32 ) See Article 5(1)(a) of that regulation.

( 33 ) See Article 5(1)(b) of the regulation.

( 34 ) Article 6(3) and Article 38(1) and (3) of Regulation No 1315/2013.

( 35 ) These include, in particular, the capitals of the Member States.

( 36 ) See also Article 30(a) and (b) of that regulation, which states that, when developing the comprehensive network in urban nodes, Member States are, where feasible, to aim to ensure interconnection between rail, road, air and, as appropriate, inland waterway and maritime infrastructure of the comprehensive network for passenger transport, as well as interconnection between rail, road and, as appropriate, inland waterway, air and maritime infrastructure of the comprehensive network for freight transport.

( 37 ) Recital 13 of Regulation No 1315/2013 states that the core network is the ‘backbone of the development of a sustainable multimodal transport network’. See also recital 40 of that regulation, in accordance with which the core network ‘should be multimodal, that is to say, it should include all transport modes and their connections as well as relevant traffic and information management systems’.

( 38 ) See footnote 8 to this Opinion for a reminder of the definition of the expression ‘multimodal transport’.

( 39 ) See point 53 of this Opinion.

( 40 ) See also, to that effect, Commission staff working document on the planning methodology for the trans-European transport network (TEN-T) accompanying Commission proposal for a Regulation of the European Parliament and of the Council on Union guidelines for the development of the trans-European transport network, amending Regulation (EU) 2021/1153 and Regulation (EU) No 913/2010, and repealing Regulation (EU) 1315/2013 (SWD(2021)/471 final/2), pp. 4 and 5.

( 41 ) See point 53 of this Opinion.

( 42 ) See, in this regard, Article 4(c)(ii) and (iii) of the regulation and, with regard to greenhouse gas emissions, recital 13 of the same regulation. See also, in the same vein, Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions, entitled ‘The European Green Deal’ of 11 December 2019 (COM(2019) 640 final), which places climate action at the heart of its priorities by setting an EU climate neutrality objective for 2050 as well as a greenhouse gas emission reductions target of at least 55% by 2030 compared with 1990 levels (point 2.1.1). Those objectives likewise appear in Regulation (EU) 2021/1119 of the European Parliament and of the Council of 30 June 2021 establishing the framework for achieving climate neutrality and amending Regulations (EC) No 401/2009 and (EU) 2018/1999 (‘European Climate Law’) (OJ 2021 L 243, p. 1). In the field of transport, the European Green Deal calls for a 90% reduction in greenhouse gas transport emissions with a view to the European Union becoming a climate neutral economy by 2050, whilst working towards a zero pollution ambition. See, in that regard, communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions entitled ‘Pathway to a Healthy Planet for All EU Action Plan: “Towards Zero Pollution for Air, Water and Soil”’ of 12 May 2021 (COM(2021) 400 final).

( 43 ) See, in that regard, White Paper, paragraphs 22 and 24 (under point 2.2 entitled ‘An efficient core network for multimodal intercity travel and transport’).

( 44 ) See, to that effect, White Paper, paragraph 27. See also Article 13(f), and Article 41(2) of Regulation No 1315/2013. In the communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, entitled ‘Sustainable and Smart Mobility Strategy – putting European transport on track for the future’ of 9 December 2020 (COM(2020) 789 final), it is estimated that the share of the market held by rail freight traffic will increase by 50% by 2030 and double by 2050, and that transport by inland waterways and short sea shipping is set to increase by 25% by 2030 and by 50% by 2050 (paragraph 44 and table in paragraph 45).

( 45 ) The documents cited by the Belgian Government predate the adoption of Directive (EU) 2021/1187 of the European Parliament and of the Council of 7 July 2021 on streamlining measures for advancing the realisation of the trans-European transport network (TEN-T) (OJ 2021 L 258, p. 1). That directive has applied since 9 August 2021 and must enter into force in the Member States by 10 August 2023. The Directive covers the following matters: the pre-identified sections of the cross-border links and missing links in the core network corridors of the trans-European transport network, as listed in Annex I, and the projects on the core network corridors exceeding EUR 300 million. Member States may decide to expand the scope of the Directive in order to include therein all projects related to that core network or even to the comprehensive network. In that case, the State is required to notify that decision to the Commission.

( 46 ) See, in that regard, Commission Staff Working Document of 26 May 2021 (SWD(2021) 117 final), p. 28, with regard to the need to intensify efforts with a view to achieving the new strategic objectives; pp. 87 and 94, as regards enhancing the quality of the infrastructure; and pp. 9 and 94, as far as concerns adapting the trans-European transport network to greener forms of transport.

( 47 ) COM(2021) 812 final of 14 December 2021. See, in particular, drafts of Article 20(1)(e), Article 21(1)(a) and Article 22(1) and (2). At the hearing, the Commission explained that, in that draft, the objective of multimodality, which is at issue here, to which attention is again drawn, would become an even more important objective and that the port of Brussels should be kept as a major urban node and a core network node.

( 48 ) Port de Bruxelles does not refer to a standstill clause in its written observations, but it does cite Versweyvelt, A.‑S., ‘Het standstill-beginsel inzake leefmilieu in de rechtspraak van het Grondwettelijk Hof’, Milieu- en Energierecht (MER), die Keure, Bruges, 2015, p. 3. According to the author, the fact that Union citizens cannot derive individual rights from Article 37 of the Charter of Fundamental Rights of the European Union does not prevent a standstill obligation from being derived from that article, which would mean that any citizen can challenge a particular EU policy if it has a negative impact on the environment.

( 49 ) See point 36 of this Opinion.

( 50 ) Accepting that a failure to comply with obligations to maintain transport infrastructure can justify the removal of that infrastructure would run counter to Article 5 of that regulation and encourage such practices. See, in addition, recital 8 of the regulation, which advocates the rehabilitation of the infrastructure in the event that regular maintenance is not carried out. See also point 44 of this Opinion.

( 51 ) See point 5 of Annex I to the White Paper.

( 52 ) See, in relation to projects of common interest, method of assessing economic viability advocated in Article 7(2)(c) of Regulation No 1315/2013, recital 22 of that regulation and a reminder of those provisions in the judgment of 12 November 2015, United Kingdom v Parliament and Council (C‑121/14, EU:C:2015:749, paragraph 48).