European Commission v French Republic.
Date: 2013-04-18
43. However, 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 prevailing in the Member State at the end of the period laid down in the reasoned opinion, and the Court cannot take account of any subsequent changes (see, inter alia, the judgments of 27 September 2007 in Case C-9/07 Commission  v France , paragraph 8, and of 18 November 2010 in Case C-48/10 Commission  v Spain , paragraph 30).
49. In that regard, the Court cannot accept the French Republic’s argument that Article 14(2) of Directive 2001/14 does not apply because there is an independent infrastructure manager, RFF, responsible for the essential function of allocating individual train paths. Contrary to what the French Republic maintains, the independence required of the railway infrastructure manager must demonstrate pursuant to Article 14(2) of Directive 2001/14 must be verified even where that manager is independent of the rail transport undertakings, if essential functions remain allocated to a railway undertaking. Thus, as the Advocate General observes at point 41 of his Opinion, the DCF remains subject to the requirements of Article 6(3) of Directive 91/440 and Article 14(2) of Directive 2001/14, which cannot be dissociated from one another. Otherwise, Member States would be able to evade the provisions of those directives by putting in place an infrastructure manager which, although independent, would delegate essential functions to a railway undertaking, which would be contrary to the objective referred to in recital 11 of Directive 2001/14, namely to ensure for all railway undertakings fair and non-discriminatory terms for access to the infrastructure.
70. It follows from this, first, that the Member States must include in infrastructure charging schemes a performance scheme the purpose of which is to encourage both railway undertakings and the infrastructure manager to improve network performance. Second, as regards the types of incentive which may be introduced by the Member States, the latter remain free to choose the specific measures that are to form part of the scheme, provided such measures constitute a coherent and transparent whole which may be described as a ‘performance scheme’ (see Case-483/10 Commission  v Spain  [2013] I-0000, paragraph 64).
82. As regards the Commission’s argument that Article 6(2) of Directive 2001/14 requires the Member States to provide measures intended to reduce access charges separate from the incentives to lower 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 (see Case C-556/10 Commission  v Germany  [2013] ECR I-0000, paragraph 106).
83. 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 (see Commission  v Germany , paragraph 107).
84. If the Commission’s view were accepted, that would amount to recognising that a Member State is under an obligation to provide the infrastructure manager 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 (see Commission  v Germany , paragraph 108).