CELEX: 62020CC0453
Language: en
Date: 2021-12-16 00:00:00
Title: Opinion of Advocate General Campos Sánchez-Bordona delivered on 16 December 2021.#CityRail a.s. v Správa železnic, státní organizace.#Request for a preliminary ruling from the Úřad pro přístup k dopravní infrastruktuře.#Reference for a preliminary ruling – Article 267 TFUE – Concept of ‘court or tribunal’ – Criteria relating to the constitution and function of that body – Exercise of judicial or administrative functions – Directive 2012/34/EU – Articles 55 and 56 – Single national regulatory body for the railway sector – Independent regulatory authority for the sector – Entitlement to act on an ex officio basis – Power to impose penalties – Decisions that are open to challenge before the courts – Inadmissibility of the request for a preliminary ruling.#Case C-453/20.

Provisional text
OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 16 December 2021 (1)

Case C‑453/20

CityRail, a.s.

v

Správa železnic, státní organizace,

intervener:

ČD Cargo, a.s.

(Request for a preliminary ruling from the Úřad pro přístup k dopravní infrastruktuře (Transport infrastructure access authority, Czech Republic))
(Reference for a preliminary ruling – Article 267 TFEU – Concept of national court or tribunal – Criteria – Regulatory body for the railway sector – Directive 2012/34/EU – Article 56 – Functions of the regulatory body – Administrative nature – Inadmissibility of the request for a preliminary ruling – Rail transport – Single European railway area – Access to infrastructure and service facilities – Goods platforms in freight terminals – Changes to charges for access to infrastructure and for access to, and services in, service facilities – Obligation of the infrastructure manager and the regulatory body to apply Directive 2012/34/EU)

1.        The transport infrastructure access authority in the Czech Republic (2) has referred to the court its uncertainties about the interpretation of Directive 2012/34/EU, (3) as regards, in particular, goods platforms and the charges payable for using them.

2.        The request for a preliminary ruling will be admissible only if the Court accepts that the aforementioned body performs judicial functions within the meaning of Article 267 TFEU. For the reasons I shall explain later, I am of the view that the Court should not accept that this is the case.
I.      Legal framework

A.      European Union law. Directive 2012/34

3.        In accordance with Article 3 (‘Definitions’):
‘For the purposes of this Directive, the following definitions apply:
…
(2)      “infrastructure manager” means any body or firm responsible for the operation, maintenance and renewal of railway infrastructure on a network, as well as responsible for participating in its development as determined by the Member States within the framework of its general policy on development and financing of infrastructure;
(3)      “railway infrastructure” means the items listed in Annex I;
…
(11)      “service facility”  means the installation, including ground area, building and equipment, which has been specially arranged, as a whole or in part, to allow the supply of one or more services referred to in points 2 to 4 of Annex II;
…
(26)      “network statement” means the statement which sets out in detail the general rules, deadlines, procedures and criteria for charging and capacity-allocation schemes, including such other information as is required to enable applications for infrastructure capacity;
…’

4.        Article 13 (‘Conditions of access to services’) states:
‘1.      Infrastructure managers shall supply to all railway undertakings, in a non-discriminatory manner, the minimum access package laid down in point 1 of Annex II.
2.      Operators of service facilities shall supply in a non-discriminatory manner to all railway undertakings access, including track access, to the facilities referred to in point 2 of Annex II, and to the services supplied in these facilities.
…’

5.        Article 27 (‘Network statement’) states:
‘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 network statement shall also contain information setting out the conditions for access to service facilities connected to the network of the infrastructure manager and for supply of services in these facilities …. The content of the network statement is laid down in Annex IV.
3.      The network statement shall be kept up to date and amended as necessary.
4.      The network statement shall be published no less than four months in advance of the deadline for requests for infrastructure capacity.’

6.        Article 29 (‘Establishing, determining and collecting charges’) reads:
‘1.      Member States shall establish a charging framework while respecting the management independence laid down in Article 4.
Subject to that condition, Member States shall also establish specific charging rules or delegate such powers to the infrastructure manager.
Member States shall ensure that the network statement contains the charging framework and charging rules or indicates a website where the charging framework and charging rules are published.
The infrastructure manager shall determine and collect the charge for the use of infrastructure in accordance with the established charging framework and charging rules.
…’

7.        Article 31 (‘Principles of charging’) provides:
‘1.      Charges for the use of railway infrastructure and of service facilities shall be paid to the infrastructure manager and to the operator of service facility respectively and used to fund their business.
…
3.      …  the charges for the minimum access package and for access to infrastructure connecting service facilities shall be set at the cost that is directly incurred as a result of operating the train service.
…
7.      The charge imposed for track access within service facilities referred to in point 2 of Annex II, and the supply of services in such facilities, shall not exceed the cost of providing it, plus a reasonable profit.
…’

8.        Article 55 (‘Regulatory body’) reads:
‘1.      Each Member State shall establish a single national regulatory body for the railway sector. Without prejudice to paragraph 2, this body shall be a stand-alone authority which is, in organisational, functional, hierarchical and decision-making terms, legally distinct and independent from any other public or private entity. It shall also be independent in its organisation, funding decisions, legal structure and decision-making from any infrastructure manager, charging body, allocation body or applicant. It shall furthermore be functionally independent from any competent authority involved in the award of a public service contract.
…’

9.        Article 56 (‘Functions of the regulatory body’) states:
‘1.      Without prejudice to Article 46(6), an applicant shall have the right to appeal to the regulatory body if it believes that it has been unfairly treated, discriminated against or is in any other way aggrieved, and in particular against decisions adopted by the infrastructure manager or where appropriate the railway undertaking or the operator of a service facility concerning:
(a)      the network statement in its provisional and final versions;
(b)      the criteria set out in it;
(c)      the allocation process and its results;
(d)      the charging scheme;
(e)      the level or structure of infrastructure charges which it is, or may be, required to pay;
(f)      arrangements for access in accordance with Articles 10 to 13;
(g)      access to and charging for services in accordance with Article 13;
…
2.      Without prejudice to the powers of the national competition authorities for securing competition in the rail services markets, the regulatory body shall have the power to monitor the competitive situation in the rail services markets, including in particular the market for high-speed passenger services, and the activities of infrastructure managers in relation to points (a) to (j).  In particular, the regulatory body shall verify compliance with points (a) to (j) of paragraph 1 on its own initiative and with a view to preventing discrimination against applicants. It shall, in particular, check whether the network statement contains discriminatory clauses or creates discretionary powers for the infrastructure manager that may be used to discriminate against applicants.
…
6.      The regulatory body shall ensure that charges set by the infrastructure manager comply with Section 2 of Chapter IV and are non-discriminatory. Negotiations between applicants and an infrastructure manager concerning the level of infrastructure charges shall only be permitted if these are carried out under the supervision of the regulatory body. The regulatory body shall intervene if negotiations are likely to contravene the requirements of this Chapter.
…
8.      The regulatory body shall have the power to request relevant information from the infrastructure manager, applicants and any third party involved within the Member State concerned.
…
9.      The regulatory body shall consider any complaints and, as appropriate, shall ask for relevant information and initiate consultations with all relevant parties, within one month from the receipt of the complaint. It shall decide on any complaints, take action to remedy the situation and inform the relevant parties of its reasoned decision within a pre-determined, reasonable time, and, in any case, within six weeks from receipt of all relevant information. Without prejudice to the powers of the national competition authorities for securing competition in the rail service markets, the regulatory body shall, where appropriate, decide on its own initiative on appropriate measures to correct discrimination against applicants, market distortion and any other undesirable developments in these markets, in particular with reference to points (a) to (j) of paragraph 1.
A decision of the regulatory body shall be binding on all parties covered by that decision, and shall not be subject to the control of another administrative instance. The regulatory body shall be able to enforce its decisions with the appropriate penalties, including fines.
…
10.      Member States shall ensure that decisions taken by the regulatory body are subject to judicial review. The appeal may have suspensive effect on the decision of the regulatory body only when the immediate effect of the regulatory body’s decision may cause irretrievable or manifestly excessive damages for the appellant. This provision is without prejudice to the powers of the court hearing the appeal as conferred by constitutional law, where applicable.
…’

10.      Annex I (‘List of railway infrastructure items’) states:
‘Railway infrastructure consists of the following items, provided they form part of the permanent way, including sidings, but excluding lines situated within railway repair workshops, depots or locomotive sheds, and private branch lines or sidings:
…
–        … passenger and goods platforms, including in passenger stations and freight terminals …
…’

11.      Annex II (‘Services to be supplied to the railway undertakings’) provides:
‘1.      The minimum access package shall comprise:
…
(c)      use of the railway infrastructure, including track points and junctions;
…
2.      Access, including track access, shall be given to the following services facilities, when they exist, and to the services supplied in these facilities:
…
(b)      freight terminals;
…’

12.      Annex IV (‘Content of the network statement’) states:
‘The network statement referred to in Article 27 shall contain the following information:
…
2.      A section on charging principles and tariffs. This shall contain appropriate details of the charging scheme as well as sufficient information on charges as well as other relevant information on access applying to the services listed in Annex II which are provided by only one supplier. It shall detail the methodology, rules and, where applicable, scales used for the application of Articles 31 to 36, as regards both costs and charges. It shall contain information on changes in charges already decided upon or foreseen in the next five years, if available.
…
6.      A section on information on access to and charging for service facilities referred to in Annex II. Operators of service facilities which are not controlled by the infrastructure manager shall supply information on charges for gaining access to the facility and for the provision of services, and information on technical access conditions for inclusion in the network statement or shall indicate a website where such information is made available free of charge in electronic format.
…’
B.      Czech law

13.      Article 2(15) of zákon č. 2/1969 Sb., o zřízení ministerstev a jiných ústředních orgánů státní správy (České republiky), (4) provides that, ‘in the Czech Republic, the central authorities of the State Administration shall be the following: … 15. Úřad pro přístup k dopravní infrastruktuře (UPDI)’.

14.      Zákon č. 320/2016 Sb., o Úřadu pro přístup k dopravní infrastruktuře (5) laid down rules in respect of the UPDI. Article 3(2) thereof provides that, in the exercise of its powers, that body is to be independent, is to act impartially and is to be subject only to laws and other legal provisions. (6)

15.      Zákon 77/2002 Sb., o akciové společnosti České dráhy a státní organizaci Správa železniční dopravní cesty (7) established the entity responsible for managing rail transport. (8)

16.      The State is responsible for the obligations incumbent on the railway infrastructure manager. The latter manages the State’s railway estate and performs its activities in the public interest. The Government appoints and removes the members of its board of directors.

17.      Article 3(1)(k) of Order  No 76/2017 (9) states that places of loading and unloading for the transport of goods are operational parts of the railway station. This, according to Article 2(9) of the Law on railways, is a service facility.

18.      Article 33(1) of the Law on railways provides that the infrastructure manager, as the body responsible for allocating capacity, is to draw up and publish the network statement.

19.      Under Article 34e(1) of the Law on railways, the UPDI is empowered, either of its own motion or at the request of an applicant for the allocation of track capacity, to examine the conformity of the network statement with that law.
II.    Facts, procedure and questions referred for a preliminary ruling

20.      The infrastructure manager approved the document entitled ‘Description of service facilities’ (‘the Description’). (10)

21.      The company CityRail a.s. (11) made an application to the UPDI, on the basis of Article 55 of Directive 2012/34, for a review of the Description, in which the places for the loading and unloading of goods were listed as service facilities.

22.      The infrastructure manager states that those places are elevated (above track level) and unelevated (at track level) handling areas next to the track which are built for the purposes of the loading of goods, as well as the track adjacent to such places of loading and unloading.

23.      The UPDI, however, doubts whether the places intended for loading and unloading may be classified as service facilities. In its opinion, they fall, rather, within the concept of railway infrastructure, even if they are situated within freight terminals and irrespective of whether they are located alongside main lines or sidings.

24.      The UPDI puts that question (which it describes as its main question) to the Court, as well as asking it:
—      whether the infrastructure manager (which, in this case, is also the operator of service facilities) may at any time change prices for the use of railway infrastructure and service facilities;
—      whether the infrastructure manager, as an entity subject to the authority and under the control of the State, is obliged to apply the directly effective rules of Directive 2012/34 or whether it must act only in accordance with national law; and
—      whether the provisions of the network statement may be deemed discriminatory where they conflict with European Union law with which the infrastructure manager is obliged to comply.

25.      More specifically, the questions which the UPDI has referred to the Court of Justice for a preliminary ruling are as follows:
‘(1)      Does the place of loading and unloading for the transport of goods, including related tracks, constitute part of railway infrastructure as defined by Article 3(3) of Directive 2012/34?
(2)      Is it in accordance with Directive 2012/34 that an infrastructure manager may at any time change prices for the use of railway infrastructure or service facilities to the detriment of freight forwarders?
(3)      Is Directive 2012/34 binding for  the State body Správa železnic  [(infrastructure manager, Czech Republic)] pursuant to Article 288 [TFEU]?
(4)      Can the rules set out in a network statement be deemed discriminatory if they are not consistent with the EU legislation to which the [infrastructure manager] is obliged to adhere?’
III. Procedure before the Court of Justice

26.      The request for a preliminary ruling was registered at the Court on 23 September 2020.

27.      In accordance with Article 101(1) of the Rules of Procedure of the Court of Justice, the Court asked the UPDI to clarify its judicial nature.

28.      On 10 November 2020, the UPDI submitted its clarification, which was disclosed to the parties intervening in the proceedings so that they could comment on it (‘the document of the UPDI of 10 November 2020’).

29.      The UPDI responded to the arguments put forward by the Czech Government and the Commission in a further document of 10 June 2021.

30.      Written observations have been lodged by the infrastructure manager, CityRail, ČD Cargo, a.s., (12) the Czech, Spanish and Netherlands Governments and the European Commission.

31.      It was not considered necessary to hold a hearing.
IV.    Admissibility of the reference for a preliminary ruling. Concept of court or tribunal and regulatory bodies for the railway sector

32.      Several of the parties intervening in this reference for a preliminary ruling have expressed objections with respect to the UPDI’s nature as a ‘court or tribunal’. The Commission, the Spanish Government and the Czech Government itself reject the proposition as to its nature as such.

33.      The Court previously held (13) that the Schienen-Control Kommission (Rail Supervisory Commission, Austria) could ‘be regarded as a court or tribunal within the meaning of Article 267 TFEU’. That statement supports the UPDI’s claim, both in its order for reference and in its later clarification, that it warrants the same classification. (14)

34.      In my Opinion in Westbahn Management II, (15) published years after the judgment in Westbahn Management I, I expressed my ‘reservations about that classification, which, for similar reasons, could be applied to practically all sectoral regulatory bodies’.

35.      The judgment in Westbahn Management I analysed the particular features of the Schienen-Control Kommission (Rail Supervisory Commission), after examining its origin in law,  its permanence, its compulsory jurisdiction, its inter partes procedure, its application of rules of law and its independence. (16)

36.      Although this is the methodology usually followed, it is reasonable to ask whether it is relevant in relation to entities which must by definition be independent. Rail regulatory bodies are independent pursuant to a requirement under Article 55 of Directive 2012/34 which is transposed into national implementing legislation.

37.      In Article 56 of Directive 2012/34, the EU legislature devised a model for national regulatory bodies for the railway sector bodies which, although required to be independent of other authorities, fall within the typical scope of the State administration. It gave them authority to impose penalties and conferred on them essentially administrative powers (17) which are unrelated to the activities of a court or tribunal.

38.      It is my view that, when the concepts of Article 267 TFEU are applied to such regulatory bodies, the traditional case-law adopted by the Court must be adjusted.

39.      That adjustment is particularly apposite given that the Court itself has refined its case-law concerning Article 267 TFEU. (18) In particular, it recently delivered the judgment in Anesco and Others, (19) which is relevant to regulatory bodies.

40.      In that judgment, the Court held that another railway regulatory body, namely the Comisión Nacional de los Mercados y la Competencia (National Commission on Markets and Competition, Spain; ‘the CNCM’), was not a court or tribunal (and declared its request for a preliminary ruling inadmissible). (20) I shall look straight away at the consequences of that judgment for this reference for a preliminary ruling.

41.      It is true that, in the judgment in Westbahn Management I, the Court accepted that a supervisory commission set up within the Austrian regulatory body could avail itself of Article 267 TFEU. To my mind, the Court, in so doing, perpetuated an inertia which, much as it may have been reasonable at the time (2012), I now consider to be outdated.

42.      For, given the rules actually governing regulatory bodies, which are informed by the common guidelines set out in Directive 2012/34, regard should preferably be had to the content of the functions that will form the basis for classifying a regulatory body’s activities as administrative or judicial.

43.      The approach I am advocating is favoured by those who consider this reference for a preliminary ruling to be inadmissible. They emphasise that the UPDI, although it describes itself as judicial, is organically integral to the State administration, adopts its decisions via administrative procedures and follows the general rules governing those procedures. (21)

44.      What is more, the approach I propose is not unknown in the Court’s case-law. In other judgments, in order to identify the nature of the referring body, the Court has considered whether that body resolves a dispute ‘in proceedings intended to lead to a decision of a judicial nature’. (22)

45.      In the decisions in which it has taken this line, the Court highlights the following as signs indicative of when a body cannot be classified as judicial for the purposes of Article 267 TFEU:
—      The fact that it is empowered to act of its own motion ‘suggests that [it] is not a “court or tribunal”, but has the characteristics of an administrative body’. (23)
—      Where its function is not to review the legality of a decision but to adopt a position, for the first time, on the complaint made by a citizen, that body ‘is not required to decide a legal dispute, within the meaning of the Court’s case-law’. (24)
—      The fact that the body ‘acts … as a specialised administration exercising the power to impose penalties in matters falling within its competence indicates that [it] is administrative and not judicial in nature’. (25)
—      ‘A national body cannot be regarded as a “court or tribunal”, for the purposes of Article 267 TFEU, in circumstances where it decides [matters before it] by performing non-judicial functions, such as functions of an administrative nature’. (26)
—      How the system for challenging the decisions of a regulatory body is organised is significant. This is true where actions against those decisions ‘may be brought … before the President of that body, and the decisions of the President are themselves open to review before the administrative court, in which [proceedings] [the body] has the status of defendant. That organisation of the legal remedies … emphasises the administrative nature of the decisions delivered by that body’. (27)

46.      In the judgment in Anesco and Others, as I stated above, the Court declared the request for a preliminary ruling made by the CNMC to be inadmissible, for, inter alia, the following reasons:
—      ‘The fact the CNMC acts ex officio  as a specialised administration exercising the power to impose penalties in matters falling within its competence indicates that the decision which it is called upon to make in the proceedings which led to the present request for a preliminary ruling is administrative and not judicial in nature.’ (28)
—      ‘…  The decision of the CNMC putting an end to the proceedings is an administrative decision which, whilst being final and immediately enforceable, is not capable of acquiring the attributes of a judicial decision, in particular the force of res judicata  (see, to that effect, judgment of 16 February 2017, Margarit Panicello, C‑503/15, EU:C:2017:126, paragraph 34 and the case-law cited).’ (29)
—      ‘The administrative nature of the proceedings in the main suit is also confirmed by Article … which provides that the adoption of a decision by the Board of the CNMC puts an end to the proceedings which are expressly qualified as “administrative”. In addition, under Article … an action before the administrative courts may be brought against such a decision, during which the CNMC … acts as a defendant in the court proceedings at first instance […] or as an appellant or respondent in the event of an appeal ….’ (30)

47.      It follows from the foregoing premises that, ‘in order to establish whether a national body, entrusted by law with different categories of functions, is to be regarded as a court or tribunal within the meaning of Article 267 TFEU, it is necessary to determine in what specific capacity it is acting within the particular legal context in which it seeks a ruling from the Court’. (31)

48.      Now, in the light of the case-law set out above, I take the view that the UPDI performs administrative functions and not the judicial ones that would permit it to avail itself of Article 267 TFUE, since:
—      It is empowered to act both at the request of a party and of its own motion (on some occasions, only of its own motion). In particular, in the proceedings which gave rise to the present reference for a preliminary ruling, it was able to intervene, without distinction, at the request of a party and of its own motion. (32)
—      It has extensive capacity to assess the commission of infringements and to impose fines in the exercise of its power to hand down penalties. (33)
—      Its decisions are open to appeal before genuinely judicial bodies, whether ordinary (34) or administrative. In proceedings before the administrative courts, the UPDI acts as a defendant at first instance. (35)

49.      The inadmissibility of the request for a preliminary ruling is confirmed, in my opinion, by an examination of the harmonised legislation (Directive 2012/34) setting out, in the form of a reference framework, the EU law governing regulatory bodies in the rail sector.

50.      Although Article 56(1) of Directive 2012/34 confers on those bodies the power to dispose of claims made against decisions issued in the subject areas which it lists, (36) paragraph 2 of that article empowers them to exercise review on their own initiative.

51.      Article 56(8) of Directive 2012/34 gives them powers of investigation, authorising them to collect information in order to perform their ‘appeal function and … [their] function of monitoring the competition in the rail services markets in accordance with paragraph 2’.

52.      Article 56(9) of Directive 2012/34 empowers them, where appropriate, to decide ‘on [their] own initiative on appropriate measures to correct discrimination against applicants, market distortion and any other undesirable developments in these markets, in particular with reference to points (a) to (j) of paragraph 1’.

53.      Consequently, even where they are called upon to settle a claim, they do so in an environment in which a trigger by the parties is not essential, since the regulatory bodies themselves have the means at their disposal to take action of their own motion. It would be illogical to accept the proposition that, notwithstanding that they can operate on their own initiative, they perform judicial functions, if they are able to arrive at the same outcome by making a complaint or a claim.

54.      Finally, Article 56(1) of Directive 2012/34 provides that decisions of regulatory bodies are subject to judicial review, carried out by bodies which are — at this stage — of a genuinely judicial nature. From the point of view of the unity of interpretation of EU law, ‘the existence of those judicial appeals ensures the effectiveness of the mechanism of the request for a preliminary ruling provided for in Article 267 TFEU’. (37)

55.      In short, it is reasonable to say, as was the case in Anesco and Others, that the decisions of the regulatory bodies in the railway sector ‘resemble administrative decisions, which precludes them from being adopted in the exercise of judicial functions’. (38)

56.      Furthermore, admitting references for a preliminary ruling from administrative bodies whose decisions are subject to judicial review might give rise to irregularities which Advocate General Ruiz-Jarabo Colomer highlighted in the course of a line of reasoning that is as relevant now as it was twenty years ago. (39)

57.      Advocate General Ruiz-Jarabo Colomer stated, in essence, that if the foregoing were a possibility, the reply from the Court might be of no use for the purposes of the final decision on the dispute, (40) and that the retrospective intervention of the authentic judicial bodies might be obstructed by a reference for a preliminary ruling made by the administrative bodies. (41) In his view, ‘the acceptance of references for preliminary rulings from administrative bodies seriously hinders the dialogue between courts established by the Treaty, distorts its aims and undermines the judicial protection of the citizen’. (42)

58.      In the light of all of the foregoing, I consider that the request for a preliminary ruling is inadmissible. In the event that the Court thinks otherwise, I shall nonetheless analyse the questions raised by the regulatory body.
V.      Substance

A.      First question referred

59.      The UPDI’s uncertainty concerns the ‘place of loading and unloading for the transport of goods, including related tracks’. Does this form part of the railway infrastructure within the meaning of Article 3(3) of Directive 2012/34 or of the service facilities? (43)

60.      Passenger platforms are part of the railway infrastructure, in accordance with the combined provisions of the second indent of Annex I to, and Article 3(3) of, Directive 2012/34. The judgment in Westbahn Management II confirmed this. (44)

61.      It is now necessary to determine whether the same can automatically be said of goods platforms. Although, in principle, goods platforms too are part of the railway infrastructure, it is important to bear in mind that, pursuant to those same provisions, freight terminals — like passenger stations — are a service facility (point 2(a) and (b) of Annex II to Directive 2012/34).

62.      As in Westbahn Management II, problems arise when it comes to trying to differentiate between platforms, on the one hand, and the service facility in which they are located, on the other (in that case, the issue was passenger stations, in this case, it is freight terminals). Inasmuch as these are disparate concepts that cannot readily be defined without reference to the actual situation of each platform or terminal and its particular characteristics, casuistry becomes inevitable and it is not for the Court to ascertain the technical details of each set of circumstances. (45)

63.      The UPDI seeks clarification as to whether the place adjacent to the track where the loading and unloading of goods takes place falls within the concept of railway infrastructure. To that end, it is important to identify the meaning of the term ‘goods platform’ in Annex I to Directive 2012/34. On the basis of its ordinary meaning of a raised-level surface alongside the track, it falls to be determined whether the spaces intended for operations involving loading onto, and unloading from, the lower part of the train, at track level,  are excluded. (46)

64.      The answer to this question must not disregard the objectives of Directive 2012/34 when it refers to the ‘minimum access package’, which includes use of the railway infrastructure. Account will also have to be taken of the nature of the goods and the conditions for their transport, loading and unloading.

65.      The elementary physical justification for a passenger platform is to make it easier for passengers to enter and exit the train, which operation requires them to scale the height between the ground and the train door. Since goods, obviously, do not possess such autonomy, and someone has to put them on (the train) or take them off (the train), it makes no difference whether those operations are carried out from the ground at track level, from a platform, from a lorry or from any other means of transport.

66.      To my mind, therefore, what matters most is to have regard to the characteristics of the loading and unloading operations. If the intention is to deposit goods next to the train for loading or after unloading, the operation will form part of the basic content of the minimum access package: the space adjacent to the track must in those circumstances be treated in the same way as the platform and be included in the railway infrastructure.

67.      In that scenario, goods platforms, like passenger platforms, will be ‘components of the infrastructure service … which are essential to enable an operator to provide a service and which should be provided in return for minimum access charges’. (47)

68.      In the abstract, this approach lends itself to the complex reality of freight terminals, (48) which Annex I to Directive 2012/34 classifies as railway infrastructure, along with the main lines and sidings. As I have already said, however, the technical characteristics of loading and unloading operations may in particular cases lead to a different outcome.

69.      Although I see no reason why goods platforms, both on main lines and in sidings, should not be regarded as forming part of the railway infrastructure, their reflection in the calculation of the charge will have to be limited to the extent to which they are actually used in the loading and unloading of goods. Anything other than their strict use in this way, such as in the goods handling operations themselves, (49) will already be included in the collection of activities associated with the service facility.

70.      In principle, therefore, the ‘goods platforms’ referred to in Annex I to Directive 2012/34 (understood as being the space adjacent to the side of the train which is used exclusively for loading and unloading the train on main lines or in sidings) are a component of the railway infrastructure the use of which is included in the minimum access package, in accordance with point 1(c) of Annex II to that directive.
B.      Second question referred

71.      The UPDI wishes to ascertain whether Directive 2012/34 authorises the infrastructure manager to change charges for the use of railway infrastructure or service facilities unilaterally, to the detriment of freight forwarders. (50)

72.      Directive 2012/34 provides for the payment of charges for the use of both railway infrastructure and service facilities. Those charges are paid to the infrastructure manager and the operator of service facilities respectively and are used to fund their business (Article 31(1)), in accordance with the following criteria:
—      For the minimum access package, the ‘charge … shall be set at the cost that is directly incurred as a result of operating the train service’ (first subparagraph of Article 31(3) of Directive 2012/34).
—      As regards service facilities, the charge is not to exceed the cost of providing the service, plus a reasonable profit (Article 31(7) of the same directive).

73.      In accordance with Article 29(1) of Directive 2012/34, the network statement, which is to be adopted by the infrastructure manager, must contain the charging framework and the charging rules.

74.      The rules governing the network statement (contained in Article 27(2) of Directive 2012/34) lay down an obligation to publish conditions of access to the railway infrastructure and service facilities.

75.      Annex IV to Directive 2012/34 refers to charges in point 2, which is of a more general nature, and in point 6, which is specifically concerned with charges for the use of service facilities.

76.      Paragraphs 3 and 7 of Article 31 set out different criteria for determining the amount of the charges payable in each case.
1.      Charges for the use of infrastructure

77.      As regards the use of railway infrastructure, I have already recalled that the charge for minimum access and for access to infrastructure connecting service facilities ‘shall be set at the cost that is directly incurred as a result of operating the train service’.

78.      The items listed in Annex I must be taken into account in the calculation of those charges, in accordance with Article 29 et seq. of Directive 2012/34 and, as from its entry into force, Implementing Regulation (EU) 2015/909. (51)

79.      Implementing Regulation 2015/909 includes a methodology whereby any change to charges must be justified by a change in  the basic factors used in the setting of direct costs. (52) Subject to that criterion and in accordance with that regulation, the infrastructure manager will be empowered to update or review charges.

80.      In principle, Directive 2012/34 does not set any time limits for updating those charges. Article 27(3) thereof allows the network statement to be updated and amended as necessary. Point 2 of Annex IV to Directive 2012/34 provides that the network statement must contain ‘information on changes in charges already decided upon or foreseen’.

81.      Changes to charges will therefore be subject to what is expressed in advance by the network statement. This ensures that railway undertakings have ‘predictable charging systems and have reasonable expectations for the development of infrastructure charges’. (53)

82.      It is not inconceivable, however, that unforeseeable circumstances may make it advisable to change charges early by updating the amounts thereof so as to adapt the charges to those circumstances (54) or to variations in directly incurred costs.

83.      Under the scheme of Directive 2012/34, therefore, the association between scheduling and requests by railway undertakings seeking to access infrastructure is not merely anecdotal. (55)
2.      Charges for access to service facilities

84.      As regards the charge imposed for access to service facilities and the supply of services in such facilities, Article 31(7) of Directive 2012/34 requires, as I have already recalled, that this should not exceed the cost of supply, plus a reasonable profit.

85.      That provision is supplemented by Implementing Regulation (EU) 2017/2177, (56) Article 4 of which, concerning the service facility description, mentions among the elements to be contained in that description ‘information on charges for getting access to service facilities’ (Article 4(2)(m)).

86.      Article 5(3) of Implementing Regulation 2017/2177 authorises operators of service facilities to keep the service facility description (including charges) up to date as necessary. (57)

87.      Those charges may therefore be updated or reviewed (58) provided that they comply with the restrictions deriving from EU legislation, which means that they must observe the limits relating to the cost of supplying the service and the reasonableness of the profit, (59) respect the principles of transparency and non-discrimination (60) and comply with the criterion of ‘need’ as the ground for any increase.
3.      Interim conclusion

88.      The foregoing supports the inference that the infrastructure manager may, on condition of compliance with certain substantive, procedural and temporal requirements, change the amount of the charges for use of railway infrastructure or service facilities (if it takes on the functions of service facility operator). (61)
C.      Third question referred

89.      The UPDI asks whether the infrastructure manager is bound by Directive 2012/34. In order to answer that question, it is necessary first of all to clarify the nature of the infrastructure manager.

90.      The order for reference describes the Czech infrastructure manager as a State body. The Czech infrastructure manager, on the other hand, points up its status as an ‘independent and sovereign’ (sic) legal person and the fact that it is not ‘an element or an organisational unit of the Czech State’ and does not act on behalf of that Sate. (62)

91.      It is not for the Court to interpret the rules of national law in order to settle that disagreement but to abide, in principle, by the order for reference. (63) In the view of the UPDI, as I have said, the Czech infrastructure manager is a State body subject to the authority of the State and acting under its control. (64)

92.      Under Article 3(2) of Directive 2012/34, Member States enjoy a margin of discretion when it comes to determining the nature of the infrastructure manager, which can be either a body or an undertaking.

93.      The Court has held, generally, that certain ‘organisations or bodies … must be treated as comparable to the State, either because they are legal persons governed by public law that are part of the State in the broad sense, or because they are subject to the authority or control of a public body, or because they have been required, by such a body, to perform a task in the public interest and have been given, for that purpose, … special powers’. (65)

94.      On that basis, and subject to the referring court’s findings, everything indicates that the Czech infrastructure manager is an emanation of the State, which has created it by law, entrusted it with functions in the public interest including special powers, and appoints and revokes its board of directors.

95.      According to the Court, State authorities, even if they are not ‘courts or tribunals’ within the meaning of Article 267 TFEU, are not exempt from ‘the obligation to ensure that EU law is applied when adopting their decisions and to disapply, if necessary, national provisions which appear to be contrary to provisions of EU law that have direct effect, since these are obligations that fall on all competent national authorities, not only on judicial authorities’. (66)

96.      The infrastructure manager cannot therefore evade the directly effective requirements of Directive 2012/34.
D.      Fourth question referred

97.      The UPDI wishes to ascertain whether ‘the rules set out in a network statement [can be] deemed discriminatory if they are not consistent with the EU legislation to which the [infrastructure manager] is obliged to adhere’. (67)

98.      The answer to that question must be based on the answer given to the third question. Since the infrastructure manager is bound by Directive 2012/34, its acts (including the network statement) must comply with that directive.

99.      The fact that one part of the network statement does not comply with Directive 2012/34 does not mean, however, that that statement is, on that ground alone, discriminatory. It will be discriminatory if it introduces measures which, in themselves, afford to some undertakings treatment which is unjustified by comparison with that afforded to others.
VI.    Conclusion

100. In the light of the foregoing, I suggest that the Court declare the request for a preliminary ruling from the Úřad pro přístup k dopravní infrastruktuře (Transport infrastructure access authority, Czech Republic) inadmissible.
In the alternative, I propose that the reply to that request should be as follows:
1.      The ‘goods platforms’ referred to in Annex I to Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area, being spaces adjacent to the side of a train which are used exclusively for loading onto, and unloading from, the train on main lines or in sidings, are a component of the railway infrastructure.
2.      The infrastructure manager may change the charges for use of railway infrastructure, provided that this is justified in accordance with Commission Implementing Regulation (EU) 2015/909 of 12 June 2015 on the modalities for the calculation of the cost that is directly incurred as a result of operating the train service, and in accordance with the decisions or forecasts of change contained in the network statement, except where it does so in an attempt to respond to extraordinary circumstances.
Where necessary, the operator of the service facility may, while still complying with the contractual obligations entered into with the railway undertakings, change the charges for access to that facility and for the supply of services, on condition that the amended charge does not exceed the cost of providing the service, plus a reasonable profit, and is consistent with the principles of transparency and non-discrimination.
3.      An infrastructure manager classified as a State body, whatever its legal form, is bound by the directly effective provisions of Directive 2012/34.
4.      Any network statement that does not comply with Directive 2012/34 may be regarded as discriminatory if it introduces measures which, in themselves, afford to some undertakings treatment which is unjustified by comparison with that afforded to others.

1      Original language: Spanish.

2      Úřad pro přístup k dopravní infrastruktuře (‘the UPDI’).

3      Directive of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area (OJ 2012 L 343, p. 32), as amended by Directive (EU) 2016/2370 of the European Parliament and of the Council (OJ 2016 L 352, p. 1).

4      Law 2/1969 on the organisation of ministries and other central state authorities of the (Czech Republic).

5      Law 320/2016 on the regulatory body for access to transport infrastructure.

6      On the previous Czech legislation governing the railway sector, see judgment of 11 July 2013, Commission v Czech Republic  (C‑545/10, EU:C:2013:509).

7      Law 77/2002 on the public limited company České dráhy and the State body Správa železnic.

8      That entity takes on the functions of infrastructure manager and operator of service facilities within the meaning of Article 3(2) and (12) of Directive 2012/34. It is also responsible for allocating railway infrastructure capacity, in accordance with zákon č. 266/1994 Sb, o drahách (Law 266/1994 on railways, tracks with catenaries and cableway or chain transport;  ‘the Law on railways’).

9      Vyhláška Ministerstva dopravy č. 76/2017 Sb., o obsahu a rozsahu služeb poskytovaných dopravci provozovatelem dráhy a provozovatelem zařízení služeb (Order of the Ministerstvo dopravy (Ministry of Transport, Czech Republic)  No 76/2017 on the subject matter and scope of the services supplied to the operator by the infrastructure manager of railways, tracks with catenaries and cableway or chain transport and by the operator of service facilities).

10      The Description (reference 16396/2019-SZDC-GR-O11) contains the information necessary to access service facilities and related rail services. In the view of the UPDI (paragraph 28 of the order for reference), the Description may be materially regarded as forming part of the network statement, a proposition which the infrastructure manager and ČD Cargo, a.s do not accept.

11      The UPDI classifies that railway undertaking as an ‘applicant’ within the meaning of Article 3(19) of Directive 2012/34, since it exhibits ‘a commercial or public-service interest in the purchase of infrastructure capacity’.

12      According to the order for reference, ČD Cargo a.s. is also an ‘applicant’ within the meaning of Article 3(19) of Directive 2012/34, and participated actively in the proceedings conducted before the regulatory body.

13      Judgment of 22 November  2012, Westbahn Management (C‑136/11, EU:C:2012:740; ‘the judgment in  Westbahn Management I’).

14      In paragraph 19 of its document of 10 June 2021, it argues that, if the Austrian regulatory body may make references for a preliminary ruling, its counterparts in other Member States should have the same power. In actual fact, the body which referred the questions for a preliminary ruling in  Westbahn Management I was the Rail Supervisory Commission (Schienen-Control Kommission), which adjudicated on appeals against decisions of the regulatory body (Schienen-Control GmbH).

15      Opinion in Westbahn II (C-210/18, EU:C:2019:277, footnote 3; ‘Westbahn II’).

16      The Court relied on Paragraphs 81 to 84 of the Eisenbahngesetz (Austrian Law on Railways, BGBl. 60/1957). See paragraph 28 of the judgment in Westbahn Management I.

17      Functions relating to inter-administrative cooperation and consultation in connection with procedures for drafting administrative measures;  internal powers of self-organisation;  charging scheme review;  supervision of negotiations between interested parties; statistical activities; market analysis and observation, including auditing.

18      The fact that the Court’s approach is evolving is demonstrated by judgment of the Grand Chamber of 21 January  2020, Banco de Santander (C‑274/14, EU:C:2020:17, paragraph 55), which departed from the line of case-law drawn by, judgment of 21 March 2000, Gabalfrisa and Others (C‑110/98 to C‑147/98, EU:C:2000:145). The Court justified its about-turn by reference ‘notably [to] the most recent case-law of the Court concerning, in particular, the criterion of independence’.

19      Judgment of 16 September  2020 (C‑462/19, EU:C:2020:715; ‘the judgment in Anesco and Others’). The Spanish Government referred to it in paragraph 14 of its written observations. It is true that, in that case, the Court’s analysis was exclusively concerned with the activities of the CNCM as a competition authority. However, in its operations as a railway regulatory body, the CNCM exhibits the same features (inasmuch as it acts on its own initiative, it is administrative in nature and its decisions lack the force of res judicata and are subject to judicial review) as in its other functions.

20      The CNMC is the body which supervises and oversees the rail sector in Spain, pursuant to the first final provision of Ley 38/2015, de 29 de septiembre, del sector ferroviario (Law 38/2015 of 29 September 2015 on the rail sector), which amends Articles 11 and 12 of Ley 3/2013, de 4 de junio, de creación de la CNMC (Law 3/2013 of 4 June 2013 on the creation of the CNMC). In accordance with the second final provision thereof, Law 38/2015 incorporates Directive 2012/34 into Spanish law.

21      Paragraphs 8, 15 and 16 of the document of the UPDI of 10 November 2020.

22      Judgment of 31 January  2013, Belov (C‑394/11, EU:C:2013:48, paragraph 39).

23      Order of 14 November  2013, MF 7 (C‑49/13, EU:C:2013:767  paragraph 18; ‘the order in MF 7’), and judgment in Anesco and Others,  paragraph 44.

24      Order of 24 March  2011, Bengtsson (C‑344/09, EU:C:2011:174, paragraph 23), which cites the judgment of 12 November  1998, Victoria Film (C‑134/97, EU:C:1998:535, paragraphs 16 and 18).

25      Judgment in Anesco and Others, paragraph 44.

26      Order in MF 7, paragraph 16.

27      Ibidem,  paragraph 19.

28      Judgment in Anesco and Others, paragraph 44.

29      Ibidem, paragraph 48.

30      Ibidem, paragraph 49.

31      Judgment of 31 January  2013, Belov (C‑394/11, EU:C:2013:48, paragraph 41). When the Court makes that determination, its decision will depend largely on the quality of the information provided by the referring body and those taking part in the preliminary ruling proceedings. When, as here, that information is called into question (the infrastructure manager submits that the UPDI has relied on some fragments of the legislation and disregarded others), a degree of legal uncertainty emerges.

32      The document of the UPDI of 10 November  2020, paragraph 17.

33      Ibidem, paragraph 18, in which it states that it is empowered to institute proceedings in respect of any infringement which it discovers and to act of its own motion.

34      The UPDI complains that the Czech civil courts are able, without its involvement in the relevant disputes, to ‘interfere in an impermissible manner with its exclusive competence in matters relating to the railway sector’ (paragraph 46 of the document of the UPDI of 10 November 2020). This particular question forms the subject of the requests for a preliminary ruling submitted by a Czech civil court in Cases C‑221/21 and C‑222/21, still pending.

35      The document of the UPDI of 10 November  2020, paragraphs 37 to 39.

36      The regulatory body does not perform a task of reviewing the legality of an administrative act every time it disposes of a complaint made against a decision of the infrastructure manager: the infrastructure manager may be both a body and an undertaking (Article 3(2) of Directive 2012/34). In the latter case, the first formally administrative statement of position would be that of the regulatory body.

37      Judgment of 31 January 2013, Belov (C‑394/11, EU:C:2013:48, paragraph 52).

38      Judgment in Anesco and Others, paragraph 41.

39      Opinion in De Coster (C‑17/00, EU:C:2001:366, point 79). The Advocate General emphasised that ‘the way in which the question is formulated may determine the Court’s reply …. If the question is referred by an administrative body, any judicial remedy sought against its decision may be affected by the reference, by the way in which or the time at which it was made, so that the real judicial body is to a large extent deprived of the power to use the preliminary-ruling procedure, since, even if, in theory, it could make another reference, this would cause the parties an additional delay in the main proceedings, which would be intolerable where the administration of justice was already slow’.

40      Ibidem, point 78: ‘The judicial body which reviews an administrative decision adopted on the basis of the reply given by the Court of Justice may consider that it was unnecessary to make the reference or that it should have been approached from another point of view. If it comes to the conclusion that neither the interpretation nor the application of rules of Community law is in issue in the dispute, the reference for a preliminary ruling and all the effort invested in settling the question will have been pointless, with the added disadvantage that the fact that its judgments are not taken into account because they are considered unnecessary undermines the legitimacy of the Court of Justice’.

41      Ibidem, point 79: ‘If the [judicial body] considers that the question should have been formulated differently, it will be faced with the difficult situation: the reference for a preliminary ruling has been made and the reply received but, for reasons of procedural economy, it is not inclined to resort again to the preliminary-ruling procedure in order to straight out the track which it considers became twisted because the reference was incorrectly made’.

42      Ibidem, point 79.

43      Directive 2012/34 guarantees access both to the railway infrastructure and the service facilities.  However, the extent of that right of access is not the same.  Thus, in the case of the railway infrastructure, the rules are stricter and railway undertakings cannot be denied access.  Recital 65 of Directive 2012/34 refers to the desirability of defining ‘those components of the infrastructure service which are essential to enable an operator to provide a service and which should be provided in return for minimum access charges’.

44      Judgment in Westbahn Management II, operative part: ‘Annex II to Directive 2012/34 … must be interpreted as meaning that “passenger platforms”, referred to in Annex I to that directive, are an element of the railway infrastructure the use of which is part of the minimum access package, in accordance with point 1(c) of Annex II’.

45      I made this point in Opinion in Latvijas dzelzceļš (Railway service facilities) (C‑60/20, EU:C:2021:147, point 36), when I stated that ‘classification as a service facility – as distinct from railway infrastructure – depends on a number of technical factors the presence of which the referring court alone is in a position to establish’.

46      In its observations, the Netherlands Government relies on this factor to support its submission that goods platforms are to be construed as forming part of the service facility.

47      Recital 65 of Directive 2012/34.

48      Article 3(s) 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 (OJ 2013 L 348, p. 1), the Spanish version of which calls them ‘terminales de mercancías’ (goods terminals), defines them as ‘a structure equipped for transhipment between at least two transport modes or between two different rail systems, and for temporary storage of freight, such as ports, inland ports, airports and rail-road terminals’.

49      The definition of goods terminal shows how close direct access to the side of the train has to be in order for the goods to be dealt with. The organisation of a freight terminal (however small it may be) will generally require the goods handling to be carried out by the terminal operator.  It is not enough, therefore, for the train to arrive at a railway infrastructure area; the goods have to be handled.  Consequently, possession of the right to use the minimum access package (which includes goods platforms) will not in itself be effective if it is not possible to load and unload. That possibility will depend on the ability of the service facility operator to perform those operations, notwithstanding that the platform is regarded as forming part of the railway infrastructure.

50      It would appear from paragraph 26 of the order for reference that the uncertainty has arisen because the infrastructure manager reserved the right to revise the tariffs in the following terms: ‘tariff changes shall be communicated in the form of an amendment to this description at least one month in advance’.

51      Commission Implementing Regulation of 12 June 2015 on the modalities for the calculation of the cost that is directly incurred as a result of operating the train service (OJ 2015 L 148, p. 17).

52      Recital 17 of Implementing Regulation 2015/909: ‘For different reasons, such as productivity gains, the spread of new technologies or a better understanding of cost causation, the calculation of direct costs should be updated or reviewed regularly in accordance with, inter alia, best international practice’.

53      Recital 18 of Implementing Regulation 2015/909.

54      This was the case recently with the health crisis brought about by COVID-19, in the face of the deterioration of demand for transport by rail. The Commission recommended that infrastructure managers respond by adopting, inter alia, temporary stimulus measures such as ‘the waiver, reduction or deferral of track access charges for the use of rail infrastructure’. See the Proposal for a Regulation of the European Parliament and of the Council establishing measures for a sustainable rail market in view of the COVID-19 pandemic (COM(2020) 260 final).

55      In Directive 2012/34, the definition of infrastructure capacity is based on the scheduling of train paths for a certain period (Article 3(24)), and the definition of network statement refers to the deadlines, procedures and criteria for charging schemes (Article 3(26)). In addition, Article 27(4) shows a link between the network statement and requests for infrastructure capacity which is then transposed to the rules governing the schedule for the allocation process, requests by applicants and the working timetable (Articles 43 and 44 and Annex VII).

56      Commission Implementing Regulation  of 22 November  2017 on access to service facilities and rail-related services (OJ 2017 L 307, p. 1). The Spanish version uses the term ‘tarifas’ (tariffs) instead of ‘cánones’ (charges).

57      Infrastructure managers must ‘in due time inform the applicants having already requested access or subscribed to one or more services in the service facility about any relevant changes in the service facility description’.

58      I shall leave aside the terms of the contractual relationship between the railway undertaking and the operator of the service facility.

59      The criterion for setting these charges is less strict than that for the charges for access to infrastructure, which are subject to the rigorous calculation of direct costs.

60      So far as concerns access to service facilities, these principles are set out in Articles 10(1) and 13(2) of Directive 2012/34. In accordance with recital 4 of Implementing Regulation 2017/2177, ‘transparency on conditions for access to service facilities and rail related services and information on charges is a pre-requisite for enabling all applicants to access service facilities and services supplied in those facilities on a non-discriminatory basis. …’ (no emphasis in the original).

61      In any event, whether the charges relate to railway infrastructure or service facilities, the regulatory body will be competent to exercise its review functions under Article 56 of Directive 2012/34.

62      Observations of the infrastructure manager, paragraph I(a).

63      As the Court recalled in the judgment of 2 April 2020, Coty Germany (C‑567/18, EU:C:2020:267, paragraph 21), ‘the Court, when answering questions referred for a preliminary ruling, must take account, under the division of jurisdiction between the Courts of the European Union and the national courts, of the factual and legislative context of the questions as described in the order for reference’.

64      Paragraphs 45 and 46 of the order for reference. 

65      Judgment of 10 October  2017, Farrell (C‑413/15, EU:C:2017:745, paragraph 34).

66      Judgment of 21 January  2020, Banco de Santander (C‑274/14, EU:C:2020:17, paragraph 78).

67      In the grounds for the question (but not in the question itself), the UPDI states that, under national law, it is competent to verify only whether the network statement is consistent with the Law on railways, not with EU law. If that it is the case, it is incumbent upon it not to apply that national rule, which would conflict with the principle of the primacy of EU law. To my mind, Article 34e(1) of the Law on railways does not inevitably lead to that interpretation. However, as I have already said, the interpretation of domestic law is a matter for the national courts, not the Court.