European Commission v Federal Republic of Germany.
Date: 2013-02-28
66. According to settled case-law, in proceedings under Article 258 TFEU for failure to fulfil obligations, it is for the Commission to prove the allegation that the obligation has not been fulfilled. It is therefore the Commission’s responsibility to place before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumptions (see, inter alia, Case C-494/01 Commission v Ireland  [2005] ECR I-3331, paragraph 41; Case C-335/07 Commission v Finland  [2009] ECR I-9459, paragraph 46: and the judgment of 10 December 2009 in Case C-390/07 Commission  v United Kingdom , paragraph 43).
82. It should be recalled that one of the objectives pursued by the charging system introduced by Directive 2001/14 is to ensure independence of management by the infrastructure manager. In other words, the latter must, as observed by the Advocate General at point 80 of his Opinion, use the charging system as a management tool. Thus, recital 12 in the preamble to that directive that states that charging and capacity-allocation schemes must encourage railway infrastructure managers to optimise use of their infrastructure within the framework set out by Member States. In order to make such optimisation possible, the managers must be granted some degree of flexibility, as mentioned in recital 20.
83. Similarly, the application of other provisions of Directive 2001/14 require that infrastructure managers be allowed some degree of flexibility, in order to encourage them to optimise use of their infrastructure. Indeed, Article 8(2) of the directive provides that the infrastructure manager may set or continue to set higher charges on the basis of the long-term costs of certain investment projects. Article 9 of the directive permits the infrastructure manager to introduce a system of discounts on charges levied by operators.
84. It should also be noted that Article 4(1) of Directive 2001/14 establishes a division of powers as between the Member States and the infrastructure manager with regard to charging schemes. The Member States are to establish a charging framework, while the determination and collection of the charge are tasks to be performed by the infrastructure manager. However, as the Advocate General stated at point 78 of his Opinion, the State may recover infrastructure costs in full by means of mark-ups, if the market can bear this and if in so doing it does not exclude the use of infrastructure by market segments which can pay at least the cost that is directly incurred as a result of operating the railway service, plus a rate of return.
89. As regards the Commission’s argument that a test of the market’s capacity to bear the costs must be carried out in order to determine whether all segments of the market can bear those costs, it should be noted that such a test must be carried out by the infrastructure manager only if it intends to levy mark-ups on costs specifically on the basis of market segments. As pointed out at paragraph 84 above, the Member State is required only to establish a charging framework, while charging itself is a matter for the infrastructure manager. It follows that the Federal Republic of Germany is not required under Directive 2001/14 to lay down in its national legislation the detailed rules in accordance with which the infrastructure manager must determine the capacity of market segments to bear any increase in costs and the circumstances in which it is required to do so.
106. As regards the Commission’s argument that Article 6(2) of Directive 2001/14 requires the Member States to provide incentives to reduce access charges separate from the incentives adopted with a view to lowering costs, recital 40 in the preamble to the directive clearly states that a railway infrastructure is a natural monopoly and that it is therefore necessary to provide infrastructure managers with incentives to reduce costs and manage their infrastructure efficiently. That recital does not refer to charges but simply to costs.
107. It is true that Article 6(2) of Directive 2001/14 provides that incentives must be given in order to reduce costs and access charges. It does not, however, provide that such incentives must be adopted as separate measures.
108. If the Commission’s view were accepted, that would amount to recognising that a Member State is under an obligation to provide the infrastructure manger with an incentive to pass on to network users, through a reduction in charges, part of the surpluses obtained as a result of an increase in its efficiency, even though it might not be in a position to recover all the costs of provision of infrastructure. That interpretation would require the Member State, in consideration for passing on that benefit, to fund the infrastructure. It is clear that such an interpretation is at variance with the second subparagraph of Article 6(1) of Directive 2001/14, which provides that a Member State may, within the charging framework of Articles 7 and 8 of the directive, require the infrastructure manager to balance its accounts without State funding.