European Commission v Kingdom of Spain.
Date: 2013-02-28
39. Article 4(1) of Directive 2001/14 provides that the Member States are to establish a charging framework and may also establish specific charging rules, while respecting the management independence of the infrastructure manager. Under that provision, it is the latter’s responsibility, first, to determine the charge for use of the infrastructure and, second, to collect that charge.
41. Next, it should be noted that Article 4 of Directive 2001/14 establishes a division of powers as between Member States and infrastructure managers 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.
44. First, one of the objectives pursued by the charging system established by Directive 2001/14 is to ensure the management independence of the infrastructure manager. In other words, the infrastructure manager must use the charging scheme as a management tool, as pointed out by the Advocate General at point 50 of his Opinion. Thus, recital 12 in the preamble to that directive states that charging and capacity-allocation schemes should encourage railway infrastructure managers to optimise use of their infrastructure within the framework established by the Member States. Those managers could not achieve such optimal use by means of the charging system if their role was confined to calculating the amount of the charge in each individual case, applying a formula established in advance by ministerial order. Infrastructure mangers must therefore be given a degree of flexibility in setting the amount of charges.
45. Similarly, recital 34 in the preamble to Directive 2001/14 states that investment in railway infrastructure is desirable and infrastructure charging schemes should provide incentives for infrastructure managers to make appropriate investments where they are economically attractive. There can be no incentive for managers to invest in infrastructure unless the charging scheme affords them a certain degree of flexibility.
49. It follows from the foregoing considerations that, in order to ensure that the objective of management independence of the infrastructure manager is attained, the latter must, within the charging framework established by the Member States, be given a degree of flexibility in determining the amount of charges so as to enable it to use that flexibility as a management tool.
51. That finding is not undermined by the difficulties which the Kingdom of Spain claims it encountered in adapting national legislation to the requirements of Article 4(1) of Directive 2001/14. According to the Court’s established case-law, a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify the failure to observe obligations or time-limits laid down in a directive (see, inter alia, Case C-369/07 Commission  v Greece  [2009] ECR I-5703, paragraph 45, and the judgment of 25 February 2010 in Case C-295/09 Commission  v Spain , paragraph 10).
64. 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’, as observed by the Advocate General at points 69 and 70 of his Opinion.