European Commission v Hungary.
Date: 2013-02-28
44. It should be recalled that Directive 91/440 instigated the liberalisation of rail transport, aiming to ensure equitable and non-discriminatory access to infrastructure by rail undertakings. For the purpose of ensuring such access, the first subparagraph of Article 6(3) of Directive 91/440 established the principle that the body responsible for essential functions listed in Annex II to the directive should be independent.
47. It should also be noted that the objective of ensuring equal and non-discriminatory conditions of access for all railway undertakings is referred to in recital 11 in the preamble to Directive 2001/14. According to that recital, the charging and capacity allocation schemes should permit equal and non-discriminatory access for all undertakings and attempt as far as possible to meet the needs of all users and traffic types in a fair and non-discriminatory manner.
55. It is apparent from the foregoing considerations that traffic management cannot be regarded as an essential function that must be entrusted to an independent entity. As is clear from the second subparagraph of Article 6(3) of Directive 91/440, responsibility for infrastructure management outside essential functions may be entrusted to railway undertakings. Traffic management may therefore be assigned to an infrastructure manager which is also a railway undertaking, as is the case in Hungary.
56. That finding is not undermined by the Commission’s argument that, in the event of disruption to the service or danger, the adoption of measures necessary for restoring normal operating conditions, including the withdrawal of train paths, is a matter of train path allocation.
57. Article 29 of Directive 2001/14 provides for the adoption of the measures necessary to address a situation in which train movements have been disrupted as a result of technical failure or accident and, where absolutely necessary, an emergency on account of a breakdown making the infrastructure temporarily unusable.
59. Second, it is clear that that provision concerns specific measures which must be taken when train movements have been disrupted in order to restore, for safety reasons, normal operating conditions, which is not the case with the other provisions in Chapter III, which relate to the establishment of the working timetable and the ad hoc allocation of individual train paths. Measures adopted under Article 29 of Directive 2001/14 cannot therefore be regarded as directly concerning the essential function of allocating capacity or train paths for the purpose of Article 14(2) of the directive, a function which must be entrusted to an independent allocation body. Rather, Article 29 deals with ad hoc measures which must be adopted in an emergency to deal with a specific situation and ensure that rights to capacity in the form of train paths may in fact be exercised by the operator holding such rights, in accordance with the working timetable.
96. It is established case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-89/09 Commission  v France  [2010] ECR I-12941, paragraph 18, and the judgment of 14 April 2011 in Case C-390/10 Commission v Luxembourg , paragraph 11).