European Commission v Republic of Poland.
Date: 2018-06-13
28


It should be borne in mind, firstly, that the essential points of law and of fact on which a case is based must be indicated coherently and intelligibly in the application itself (see, inter alia, judgment of 25 April 2013, Commission v Finland, C‑74/11, not published, EU:C:2013:266, paragraph 47 and the case-law cited).
30


It should also be remembered that, according to settled case-law, the subject matter of proceedings under Article 258 TFEU is delimited by the pre-litigation procedure provided for in that provision, the purpose of which is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under EU law and, on the other, to avail itself of its right to defend itself properly against the objections formulated by the Commission. Accordingly, the application must be based on the same grounds and pleas as the reasoned opinion. However, that requirement cannot go so far as to mean that in every case the formal statement of complaints in the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject matter of the proceedings, as defined in the reasoned opinion, has not been extended or altered (see, to that effect, judgments of 4 May 2017, Commission v Luxembourg, C‑274/15, EU:C:2017:333, paragraph 37, and of 14 September 2017, Commission v Greece, C‑320/15, EU:C:2017:678, paragraph 31).
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Secondly, it should be noted that the Commission may bring infringement proceedings before the Court contesting the lack of independence of the investigating body referred to in Article 21 of Directive 2004/49, without having to allege a specific situation in which that independence has actually been undermined. The Member States are required to guarantee the independence of the investigating body through the adoption of a body of rules that ensure that it is able to carry out its tasks without risking being subject to the orders or influence of inter alia the infrastructure manager or a railway undertaking. The lack or inadequacy of such a legal framework suffices by itself to establish an infringement of Article 21(1) of Directive 2004/49 (see, by analogy, judgment of 2 June 2016, Commission v Portugal, C‑205/14, EU:C:2016:393, paragraph 48).
67


Directive 2004/49 does not define the concept of ‘independence’ and it should therefore be construed in its usual meaning. Thus, as regards public bodies, independence usually refers to a status that ensures that the body in question is able to act completely freely in relation to those bodies in respect of which its independence is to be ensured, shielded from any instructions or pressure.
71


In that regard, although, as the Republic of Poland suggests, account should be taken of Article 28a(1) of the Law on Rail Transport, under which the PKBWK is established as a permanent and independent body, the statement of principle in that provision cannot be dissociated from the other aspects of the legal framework in which it evolves. Thus, the issue of whether the Republic of Poland has failed to fulfil its obligation to guarantee the independence of the investigating body vis-à-vis any railway infrastructure manager and any railway undertaking must be examined in the light of the relevant national provisions as a whole.
86


Moreover, although no provision of Directive 2004/49 prohibits the Minister for Transport from appointing and dismissing all of the members of the PKBWK, Article 21(1) thereof, inasmuch as it requires that it have organisational independence vis-à-vis in particular any infrastructure manager and any railway undertaking, precludes the authority that controls the infrastructure manager and a railway undertaking from appointing and dismissing all of the members of the investigating body, where that power is not regulated strictly by legislation, with the result that that authority is bound to take decisions on the basis of objective criteria which are clearly and exhaustively set out and verifiable.
100


Secondly, it should be noted that, in principle, the organisational independence required for the investigating body does not require it to have a separate budget. Thus, the Member States may provide that, from a budgetary point of view, the body comes under a given ministerial department, provided that independent access for that body to the financial resources that must be granted to it for carrying out its tasks are guaranteed.
101


However, given that, in the present case, the PKBWK does not have legal personality and is structurally integrated into the ministry responsible for transport matters, of which the minister responsible is at the same time both the authority controlling an infrastructure manager and a railway undertaking, such independence in terms of access to the financial resources that must be granted to it for carrying out its tasks is not guaranteed by giving it a separate budget.