European Commission v Republic of Slovenia.
Date: 2013-07-11
32. According to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, in particular, Case C‑206/10 Commission  v Germany  [2011] ECR I‑3573, paragraph 25 and the case-law cited).
34. Next, it must 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) thereof established the principle that the body responsible for essential functions listed in Annex II to the directive should be independent (Case C‑473/10 Commission  v Hungary  [2013] ECR I‑0000, paragraph 44).
43. In that connection, it must be recalled, first of all, that traffic management cannot be regarded as an essential function that must be entrusted to an independent entity ( Commission  v Hungary , paragraph 55). As is clear from Article 6(3), second paragraph, of Directive 91/440, the responsibility for managing the infrastructure, with the exception of the essential functions, may be assigned to railway undertakings. Traffic management may therefore be assigned to an infrastructure manager which is also a railway undertaking, as is the case in Slovenia.
44. Second, as regards the Commission’s argument that, in Slovenia, the infrastructure manager is entrusted with the re-allocation of train paths in the event of disruption of traffic, it must be borne in mind that it is not permissible for a party to alter the very subject-matter of the case during the proceedings, and the merits of the action must be examined solely in the light of the claims contained in the application initiating the proceedings (Case C‑543/08 Commission v Portugal  [2010] ECR I‑11241, paragraph 20 and the case-law cited).
45. It should also be noted that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union and 120(c) of the latter’s Rules of Procedure, in any application made under Article 258 TFEU, the Commission must indicate the specific complaints on which the Court is called upon to rule (Case C‑132/09 Commission  v Belgium  [2010] ECR I‑8695, paragraph 36 and the case-law cited).
46. Those heads of claim must be set out unambiguously so that the Court does not rule ultra petita  or indeed fail to rule on a complaint ( Commission  v Belgium , paragraph 37 and case-law cited).
70. Finally, as regards the second part of the fourth complaint, alleging infringement of Article 8(1) of Directive 2001/14, it must be recalled that that provision states that, where the market is able to bear it, mark-ups may be levied by the Member States in order to obtain full recovery of the costs incurred by the infrastructure manager. However, the Member States are not required, under that provision, to lay down in their 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 (Case C‑556/10 Commission  v Germany  [2013] ECR I‑0000, paragraph 89).