1 This request for a preliminary ruling concerns the interpretation of Articles 45 to 47 of Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area (OJ 2012 L 343, p. 32).
2 The request has been made in proceedings brought by ‘Gargždų geležinkelis’ UAB concerning the decision of the Lietuvos transporto saugos administracija (Lithuanian Transport Safety Administration, Lithuania) (‘the Transport Safety Administration’) refusing to allocate public railway infrastructure capacity to Gargždų geležinkelis, and the order of the Lietuvos Respublikos ryšių reguliavimo tarnyba (Communications Regulatory Authority of the Republic of Lithuania) dismissing the complaint brought by Gargždų geležinkelis against that decision.
3 Recitals 3 and 34 of Directive 2012/34 state: ‘(3) The efficiency of the railway system should be improved, in order to integrate it into a competitive market, whilst taking account of the special features of the railways. … (34) To ensure transparency and non-discriminatory access to rail infrastructure, and to services in service facilities, for all railway undertakings, all the information required to use access rights should be published in a network statement. …’
4 In accordance with point 20 of Article 3 of that directive, ‘congested infrastructure’ means an element of infrastructure for which demand for infrastructure capacity cannot be fully satisfied during certain periods even after coordination of the different requests for capacity.
5 Under point 26 of Article 3 of that directive, ‘network statement’ means the statement which sets out in detail the general rules, deadlines, procedures and criteria for charging and capacity-allocation schemes, including such other information as is required to enable applications for infrastructure capacity.
6 According to point 27 of Article 3 of that directive, ‘train path’ means the infrastructure capacity needed to run a train between two places over a given period.
7 Chapter IV of Directive 2012/34 concerns the levying of charges for the use of railway infrastructure and allocation of railway infrastructure capacity. Section 1 of Chapter IV, entitled ‘General principles’, contains, inter alia, Articles 26 and 27 of that directive.
8 Article 26 of that directive, entitled ‘Effective use of infrastructure capacity’, states: ‘Member States shall ensure that charging and capacity-allocation schemes for railway infrastructure follow the principles set down in this Directive and thus allow the infrastructure manager to market and make optimum effective use of the available infrastructure capacity.’
9 Article 27 of that directive, entitled ‘Network statement’, provides, in paragraph 1 thereof: ‘The infrastructure manager shall, after consultation with the interested parties, develop and publish a network statement which shall be obtainable against payment of a fee which shall not exceed the cost of publication of that statement. …’
10 Section 2 of Chapter IV of Directive 2012/34, entitled ‘Infrastructure and services charges’, contains, inter alia, Articles 31, 32 and 36 of that directive.
11 Article 31 of that directive, entitled ‘Principles of charging’, provides, in paragraph 4 thereof: ‘The infrastructure charges referred to in paragraph 3 may include a charge which reflects the scarcity of capacity of the identifiable section of the infrastructure during periods of congestion.’
12 Article 32 of that directive, entitled ‘Exceptions to charging principles’, states, in the fourth subparagraph of paragraph 1 thereof: ‘Infrastructure managers may further distinguish market segments according to commodity or passengers transported.’
13 Article 36 of Directive 2012/34, entitled ‘Reservation charges’, provides: ‘Infrastructure managers may levy an appropriate charge for capacity that is allocated but not used. That non-usage charge shall provide incentives for efficient use of capacity. The levy of such a charge on applicants that were allocated a train path shall be mandatory in the event of their regular failure to use allocated paths or part of them. …’
14 Section 3 of Chapter IV of that directive, entitled ‘Allocation of infrastructure capacity’, contains Articles 38 to 54 of that directive.
15 Article 38 of that directive, entitled ‘Capacity rights’, provides, in the first subparagraph of paragraph 1 thereof: ‘Infrastructure capacity shall be allocated by an infrastructure manager. Once allocated to an applicant, it shall not be transferred by the recipient to another undertaking or service.’
16 Article 39 of Directive 2012/34, entitled ‘Capacity allocation’, provides, in paragraph 1 thereof: ‘Member States may lay down a framework for the allocation of infrastructure capacity subject to the condition of management independence laid down in Article 4. Specific capacity-allocation rules shall be laid down. The infrastructure manager shall perform the capacity-allocation processes. In particular, the infrastructure manager shall ensure that infrastructure capacity is allocated in a fair and non-discriminatory manner and in accordance with Union law.’
17 Article 45 of that directive, entitled ‘Scheduling’, provides: ‘1. The infrastructure manager shall, as far as possible, meet all requests for infrastructure capacity including requests for train paths crossing more than one network, and shall, as far as possible, take account of all constraints on applicants, including the economic effect on their business. 2. The infrastructure manager may give priority to specific services within the scheduling and coordination process but only as set out in Articles 47 and 49. 3. The infrastructure manager shall consult interested parties about the draft working timetable and allow them at least one month to present their views. Interested parties shall include all those who have requested infrastructure capacity and other parties who wish to have the opportunity to comment on how the working timetable may affect their ability to procure rail services during the working timetable period. 4. The infrastructure manager shall take appropriate measures to deal with any concerns that are expressed.’
18 Article 46 of that directive, entitled ‘Coordination process’, provides, in paragraphs 1 to 3 thereof: ‘1. During the scheduling process referred to in Article 45, where the infrastructure manager encounters conflicts between different requests, it shall attempt, through coordination of the requests, to ensure the best possible matching of all requirements. 2. Where a situation requiring coordination arises, the infrastructure manager shall have the right, within reasonable limits, to propose infrastructure capacity that differs from that which was requested. 3. The infrastructure manager shall attempt, through consultation with the appropriate applicants, to resolve any conflicts. Such consultation shall be based on the disclosure of the following information within a reasonable time, free of charge and in written or electronic form: (a) train paths requested by all other applicants on the same routes; (b) train paths allocated on a preliminary basis to all other applicants on the same routes; (c) alternative train paths proposed on the relevant routes in accordance with paragraph 2; (d) full details of the criteria being used in the capacity-allocation process. In accordance with Article 39(2), that information shall be provided without disclosing the identity of other applicants, unless applicants concerned have agreed to such disclosure.’
19 Article 47 of Directive 2012/34, entitled ‘Congested infrastructure’, is worded as follows: ‘1. Where, after coordination of the requested train paths and consultation with applicants, it is not possible to satisfy requests for infrastructure capacity adequately, the infrastructure manager shall immediately declare that section of infrastructure on which this has occurred to be congested. This shall also be done for infrastructure which can be expected to suffer from insufficient capacity in the near future. 2. Where infrastructure has been declared to be congested, the infrastructure manager shall carry out a capacity analysis as provided for in Article 50, unless a capacity-enhancement plan, as provided for in Article 51, is already being implemented. 3. Where charges in accordance with Article 31(4) have not been levied or have not achieved a satisfactory result and the infrastructure has been declared to be congested, the infrastructure manager may, in addition, employ priority criteria to allocate infrastructure capacity. 4. The priority criteria shall take account of the importance of a service to society relative to any other service which will consequently be excluded. In order to guarantee the development of adequate transport services within this framework, in particular to comply with public-service requirements or to promote the development of national and international rail freight, Member States may take any measures necessary, under non-discriminatory conditions, to ensure that such services are given priority when infrastructure capacity is allocated. …’
20 Article 49 of that directive, entitled ‘Specialised infrastructure’, states, in paragraphs 1 and 2 thereof: ‘1. Without prejudice to paragraph 2, infrastructure capacity shall be considered to be available for the use of all types of service which conform to the characteristics necessary for operation on the train path. 2. Where there are suitable alternative routes, the infrastructure manager may, after consultation with interested parties, designate particular infrastructure for use by specified types of traffic. Without prejudice to Articles 101, 102 and 106 [TFEU], when such designation has occurred, the infrastructure manager may give priority to this type of traffic when allocating infrastructure capacity. Such designation shall not prevent the use of such infrastructure by other types of traffic when capacity is available.’
21 Article 52 of that directive, entitled ‘Use of train paths’, provides, in paragraph 1 thereof: ‘In the network statement, the infrastructure manager shall specify conditions whereby it will take account of previous levels of utilisation of train paths in determining priorities for the allocation process.’
22 Paragraph 28 of the rules on the allocation of public railway infrastructure capacity, approved by Lietuvos Respublikos Vyriausybės nutarimas Nr. 611 ‘Dėl viešosios geležinkelių infrastruktūros pajėgumų skyrimo taisyklių patvirtinimo’ (Decision No 611 of the Government of the Republic of Lithuania approving the rules on the allocation of public railway infrastructure capacity), of 19 May 2004 (Žin., 2004, No 83-3019), as amended by Lietuvos Respublikos Vyriausybės nutarimas Nr. 355 (Decision No 355 of the Government of the Republic of Lithuania), of 9 April 2018 (TAR, 2018, No 2018-6085) (‘the allocation rules’), states: ‘Where possible, the public railway infrastructure manager shall, in order to reconcile requests for allocation relating to the same capacity, propose to applicants and/or maintenance undertakings capacity other than that referred to in their requests. In the event that applicants and/or maintenance undertakings reject the alternative capacity proposed by the public infrastructure manager or in the absence of such capacity, the public infrastructure manager shall apply the priority rule, whereby the capacity in question shall be allocated to the applicant which will use it to provide passenger and luggage transport services on international routes; if the capacity will not be used to provide passenger and luggage transport services on international routes, it shall be allocated to the applicant which will use it to provide passenger and luggage transport services on local routes; if the capacity will not be used to provide passenger and luggage transport services on international or local routes, it shall be allocated to the applicant or maintenance undertaking which will use it on the highest number of days; if the capacity is intended to be used on the same number of days, it shall be allocated to the applicant or maintenance undertaking which has requested to be allocated the highest possible number of journeys on the relevant route.’
23 On 3 April 2019, Gargždų geležinkelis made a request to the Transport Safety Administration for an allocation of public railway infrastructure capacity for freight trains, in respect of the working timetable for the period from 2019 to 2020. That request was forwarded to the public infrastructure manager, namely the Railway Infrastructure Directorate of ‘Lietuvos geležinkeliai’ AB, now ‘LTG Infra’ (‘the infrastructure manager’).
24 After examining that request, the infrastructure manager concluded that, due to the limited capacity of certain sections of the railway infrastructure concerned, it was not possible to include in the working timetable all the capacity requested by applicants, including that requested by Gargždų geležinkelis, in so far as their requests were, in part, competing. As regards the claim made by Gargždų geležinkelis that the congestion of that railway infrastructure might have been artificial, since the working timetable included requests for capacity allocation made by various applicants for the carriage of the same freight, the infrastructure manager stated that those requests for allocation did not contain information on the freight intended to be transported and that it was therefore not in a position to confirm that claim.
25 Although a coordination process had been initiated in order to resolve the dispute, one of the applicants, which was not Gargždų geležinkelis, refused to participate and the infrastructure manager was unable to offer that company any other capacity than that referred to in its request. Furthermore, finding that, at the end of that coordination process, it was unable to satisfy all the requests made on account of insufficient capacity, the infrastructure manager declared the infrastructure to be congested in the sections concerned.
26 Subsequently, in September 2019, the infrastructure manager sent the Transport Safety Administration an amended draft working timetable with a view to the adoption of capacity allocation decisions, together with information on the actual capacity of the sections concerned, determined on the basis of the requests received.
27 On 30 September 2019, Gargždų geležinkelis referred the matter to the Transport Safety Administration.
28 By decision of 15 October 2019, the Transport Safety Administration found that, in examining and coordinating the requests submitted to it, the infrastructure manager had acted in compliance with the requirements of the legislation in force and had neither infringed Gargždų geležinkelis’ rights nor prejudiced its legitimate interests.
29 In addition, by decision of 17 October 2019, the Director of the Transport Safety Administration decided not to allocate to Gargždų geležinkelis the capacity requested by it on the ground that there was no such capacity. That capacity had been allocated to other undertakings pursuant to the priority rule laid down in paragraph 28 of the allocation rules. That decision stated that it was not possible to offer alternative capacity, since the section of public railway infrastructure concerned was also congested.
30 By order of 13 February 2020, the Director of the Communications Regulatory Authority of the Republic of Lithuania held that the administrative complaint brought by Gargždų geležinkelis against the decision of 17 October 2019 was unfounded and, accordingly, dismissed that complaint.
31 After the legal action brought by Gargždų geležinkelis before the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius, Lithuania) against the order of 13 February 2020 was also dismissed by judgment of 22 October 2020, that company brought an appeal against that judgment before the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania), the referring court.
32 That court harbours doubts, in two respects, as to whether the national rules governing the allocation of public railway infrastructure capacity are compatible with Directive 2012/34.
33 In the first place, the referring court notes that, during the period at issue in the main proceedings, the only solution to the issue of the infrastructure concerned being congested was to apply the priority rule laid down in paragraph 28 of the allocation rules. In so far as Article 47(4) of Directive 2012/34 allows Member States to establish priorities for the allocation of infrastructure capacity on the basis of the type of services provided, that court considers that the first and second criteria laid down in that paragraph 28, according to which priority given is specifically related to the type of services that the applicant intends to provide, are compatible with that provision.
34 By contrast, the third and fourth criteria, according to which capacity allocation depends on the intensity of the use of the network concerned, give rise to doubts. In that context, the referring court states that, according to Gargždų geležinkelis, such priority rules do not ensure observance of the principle of non-discrimination since those rules confer an undue advantage on the incumbent carrier. By contrast, the infrastructure manager argues that prioritisation in relation to more intensive use of the network is based on a criterion of efficient use of the public railway infrastructure.
35 In that regard, the referring court points out that the measures which may be taken by the Member States under Article 47(4) of Directive 2012/34 must be taken under non-discriminatory conditions.
36 It also recalls that, in the judgment of 28 February 2013, Commission v Spain (C‑483/10, EU:C:2013:114), the Court analysed the content of Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (OJ 2001 L 75, p. 29), which was repealed and replaced by Directive 2012/34.
37 In that judgment, the Court held, with regard to a provision of Spanish law, that the criterion based on actual use of the network, as a criterion for the allocation of infrastructure capacity, is discriminatory in so far as it leads, where there is more than one application for the same train path or the network is congested, to advantages being maintained for the incumbent users and access to the most attractive train paths being denied to new entrants. In addition, the Court did not accept that the ground of justification relied on in that regard by the Member State concerned, based on ensuring more efficient use of infrastructure, was well founded, since it considered that, in order to attain that objective, there was no need whatsoever to discriminate between network operators or to deny access to new entrants to the network.
38 With regard to the main proceedings, the referring court notes four specific circumstances.
39 First, unlike the situation examined by the Court in the judgment of 28 February 2013, Commission v Spain (C‑483/10, EU:C:2013:114), the possibility, provided for by the national priority rule, namely paragraph 28 of the allocation rules, of taking into account the intensity of the use of the infrastructure at the time of capacity allocation does not relate to past use but to future use of the infrastructure.
40 Second, the provisions of Directive 2012/34 governing capacity allocation, more specifically Articles 45 and 46 thereof, confer on the infrastructure manager a broad discretion to resolve any disputes concerning competing requests for capacity on a case-by-case basis.
41 Third, under Article 52(1) of Directive 2012/34, the infrastructure manager is authorised to take account of previous levels of utilisation of train paths.
42 Fourth, Gargždų geležinkelis claims that, as regards its own request, the infrastructure at issue in the main proceedings is not actually congested, given that it is in competition with another undertaking for the same freight. According to that company, the issue of overlapping capacity should be addressed only within the scheduling process and the coordination process, provided for in Articles 45 and 46 of Directive 2012/34, by refraining from applying priority rules, so as not to encourage the operator that would benefit from those rules to abuse the right to request capacity.
43 In the light of those considerations, the referring court is uncertain whether Article 47(4) of Directive 2012/34 precludes the adoption of national legislation which provides that, in the event of congested railway infrastructure, the intensity of the use of that infrastructure can be taken into account at the time of capacity allocation.
44 In the second place, with regard to the coordination of requests for capacity and to infrastructure being congested, the referring court notes that, according to Directive 2012/34, the infrastructure manager must, first of all, after receiving all the requests, seek to coordinate such requests before declaring, where appropriate, the infrastructure to be congested and applying the measures intended to address the issue of that infrastructure being congested, which include priority rules.
45 According to the referring court, it is thus clear from Article 47(1) of Directive 2012/34 that the application of priority rules is subject to the condition that the infrastructure has been declared to be congested. However, under Article 45(2) of that directive, the infrastructure manager may give priority to specific services within the scheduling process and the coordination process. That directive therefore authorises prioritisation before the infrastructure is declared to be congested.
46 The referring court is uncertain as to the content of the obligation to coordinate requests and consult with applicants pursuant to Article 47(1) of Directive 2012/34 before declaring the infrastructure to be congested. As regards the main proceedings, it is apparent that Gargždų geležinkelis is in competition with another railway undertaking and both undertakings have made requests for capacity that is, in part, the same.
47 Where several undertakings are competing for carriage of the same freight, the infrastructure is not technically congested because the freight in question will be carried by only one of those undertakings in any event. The referring court is therefore uncertain whether the infrastructure manager must determine whether the freight of several railway undertakings is the same before it can declare the infrastructure to be congested.
48 In those circumstances, the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must the first and second [subparagraphs] of Article 47(4) of [Directive 2012/34] be interpreted as unambiguously prohibiting the establishment of a national legal regulation which provides that, in the event of congested [railway] infrastructure, the intensity of the use of [that] infrastructure can be taken into account at the time of capacity allocation? Does it have a bearing on this assessment whether the railway infrastructure utilisation rate is linked to the actual utilisation of that infrastructure in the past or to the planned utilisation during the period for which the relevant timetable is in force? Do the provisions of Articles 45 and 46 of [Directive 2012/34], which confer a broad discretion on the public infrastructure manager or on the entity making decisions on the capacity [allocation] to coordinate the requested capacity, and the implementation of those provisions in national law have any significance for that assessment? Does the fact that infrastructure is identified as congested in a particular case due to the capacity applied for by two or more railway undertakings in respect of the carriage of the same freight have any significance for that assessment? (2) Does the provision of Article 45(2) of [Directive 2012/34] that “the infrastructure manager may give priority to specific services within the scheduling and coordination process but only as set out in Articles 47 and 49” mean that the infrastructure manager may also apply a national priority rule in cases where [that] infrastructure is not identified as congested? To what extent (on the basis of which criteria) must the infrastructure manager, prior to identifying infrastructure as congested, coordinate the requested train paths and consult with applicants on the basis of the first sentence of Article 47[(1)] of [Directive 2012/34]? Should that consultation with applicants cover the assessment as to whether two or more applicants have submitted competing requests for the carriage of the same freight (goods)?’
49 By its second question, which it is appropriate to examine first, the referring court asks, in essence, with regard to the scheduling process and the coordination process referred to in Articles 45 and 46 of Directive 2012/34: (i) whether the infrastructure manager must ascertain whether several applicants have submitted competing requests for capacity for the carriage of the same freight; (ii) whether the infrastructure manager may apply, within those processes, a priority rule provided for by national law when the infrastructure is not declared to be congested, and (iii) to what extent the infrastructure manager must coordinate requests for train paths and consult with applicants before declaring the infrastructure to be congested.
50 As a preliminary matter, it should be recalled that, according to settled case-law, it is necessary, when interpreting a provision of EU law, to consider not only its wording but also its context and the objectives of the legislation of which it forms part (judgment of 21 December 2021, Bank Melli Iran, C‑124/20, EU:C:2021:1035, paragraph 43 and the case-law cited).
51 Under the first subparagraph of Article 38(1) of Directive 2012/34, read in conjunction with Article 39(1) thereof, available infrastructure capacity is to be allocated by the infrastructure manager in a fair and non-discriminatory manner and in accordance with EU law.
52 With regard to scheduling, Article 45(1) of that directive provides that the infrastructure manager is, as far as possible, to meet all requests for infrastructure capacity and is, as far as possible, to take account of all constraints on applicants, including the economic effect on their business.
53 Under Article 45(3) and (4) of that directive, the infrastructure manager is to consult interested parties about the draft working timetable, is to allow them at least one month to present their views and is to take appropriate measures to deal with any concerns that are expressed.
54 During the scheduling process, where the infrastructure manager encounters conflicts between different requests, it is to attempt, in accordance with Article 46(1) of that directive, through coordination of those requests, to ensure the best possible matching of all requirements. Under Article 46(2) and (3), it is to have the right, within reasonable limits, to propose capacity that differs from that which was requested and is to attempt, through consultation with the appropriate applicants, to resolve any conflicts.
55 In the first place, it does not follow from the provisions of Article 45 of Directive 2012/34 or from those of Article 46 thereof that the nature of the goods which an applicant intends to transport is a relevant factor in the scheduling process and the coordination process. In particular, that indication is not included in the information disclosed for the purposes of consultation with applicants, listed in Article 46(3) of that directive.
56 That is confirmed by the context of Articles 45 and 46 of Directive 2012/34, which form part of Section 3 of Chapter IV of that directive, entitled ‘Allocation of infrastructure capacity’.
57 As the Advocate General observed, in essence, in point 64 of his Opinion, while there is no reference to goods transported in the provisions of Directive 2012/34 relating to the allocation of infrastructure capacity, which appear in Section 3, the same is not true of the provisions relating to infrastructure charges, which appear in Section 2 of that chapter. Thus, the fourth subparagraph of Article 32(1) of that directive provides that the infrastructure manager may further distinguish market segments according to commodity or passengers transported.
58 Moreover, the objective underlying the provisions of Directive 2012/34 relating to the allocation of infrastructure capacity, namely the optimum effective use of that capacity, referred to in Article 26 of that directive, does not require account to be taken, for the purposes of that allocation, of the type of goods which an applicant intends to transport.
59 Accordingly, the infrastructure manager is not required to ascertain, for the purpose of allocating infrastructure capacity, whether several applicants have submitted competing requests for capacity for the carriage of the same freight.
60 In the second place, with regard to the question whether the infrastructure manager may apply a priority rule provided for by national law, the referring court’s doubts concern the interpretation of Article 45(2) of Directive 2012/34, according to which ‘the infrastructure manager may give priority to specific services within the scheduling and coordination process but only as set out in Articles 47 and 49’.
61 Articles 47 and 49 of Directive 2012/34 concern ‘congested infrastructure’ and ‘specialised infrastructure’ respectively.
62 Thus, Article 47(1) of that directive provides that, where, after coordination of the requested train paths and consultation with applicants, it is not possible to satisfy requests for infrastructure capacity adequately, the infrastructure manager is immediately to declare that section of infrastructure on which this has occurred to be congested. In that case, under the conditions laid down in Article 47(3), the infrastructure manager may employ priority criteria to allocate infrastructure capacity.
63 In addition, Article 49(2) of Directive 2012/34 provides that, where there are suitable alternative routes, the infrastructure manager may designate particular infrastructure for use by specified types of traffic and may give priority to that type of traffic when allocating infrastructure capacity.
64 While it is true that Articles 47 and 49 of Directive 2012/34 provide that priority criteria may be applied, respectively, with regard to congested infrastructure or to specialised infrastructure within the meaning of those provisions, Article 45(2) of that directive cannot be understood as precluding the infrastructure manager from applying, within the scheduling process and the coordination process, certain criteria, including criteria that involve some form of prioritisation, provided that their application allows infrastructure capacity to be allocated in a fair and non-discriminatory manner and in accordance with EU law, as required by Article 39(1) of that directive.
65 That is confirmed by Article 27(1) of Directive 2012/34, read in conjunction with point 26 of Article 3 thereof, from which it is apparent that the infrastructure manager is to develop and publish a network statement setting out, inter alia, the criteria for capacity-allocation schemes. In addition, Article 46(3)(d) of that directive provides that consultation to resolve any conflicts is to be based on the disclosure of, inter alia, full details of the criteria being used in the capacity-allocation process.
66 Moreover, the fact that the infrastructure manager acts on the basis of predetermined criteria contributes to improving the efficiency of the railway system and is essential to ensuring transparency in the allocation of infrastructure capacity, objectives which are emphasised, respectively, in recitals 3 and 34 of Directive 2012/34.
67 In the third place, as regards the extent to which the infrastructure manager must coordinate requests for train paths and consult with applicants before declaring the infrastructure to be congested, it is apparent from the order for reference that, although a coordination process was initiated in the present case in order to resolve the dispute regarding capacity allocation, one of the applicants, which was not the appellant in the main proceedings, refused to participate.
68 Furthermore, according to the information provided by the appellant in the main proceedings, which was not challenged during the proceedings before the Court, the national legislation at issue in the main proceedings does not define the detailed arrangements for the coordination process, which consisted, in the present case, of an exchange of correspondence.
69 In that regard, it should be noted, as the Advocate General observed, in essence, in points 51 and 52 of his Opinion, that the coordination process referred to in Article 46 of Directive 2012/34 plays a key role in the allocation of infrastructure capacity in the event of conflicting requests. The success of that coordination process necessarily depends on both the infrastructure manager and the applicants actively seeking a satisfactory solution.
70 Thus, the infrastructure manager must, as noted in paragraph 54 of the present judgment, attempt, through coordination of the requests, to ensure the best possible matching of all requirements and to resolve any conflicts through consultation with the appropriate applicants.
71 Such requirements would not be met if the coordination process were essentially limited to a mere exchange of correspondence that did not involve the infrastructure manager and the applicants actively seeking a satisfactory solution.
72 In that context, the refusal of an applicant to participate in the coordination process constitutes a circumstance that must be duly taken into account by the infrastructure manager in resolving the conflict and in allocating capacity, to the detriment of that applicant, in so far as that applicant does not actively seek a satisfactory solution with the infrastructure manager and the other applicants, as noted in paragraph 69 of the present judgment.
73 In the light of all the foregoing considerations, the answer to the second question is that Articles 45 and 46 of Directive 2012/34 must be interpreted as meaning that, within the scheduling process and the coordination process referred to in those articles, the infrastructure manager: - is not required to ascertain whether several applicants have submitted competing requests for capacity for the carriage of the same freight; - may apply certain criteria, including criteria that involve some form of prioritisation, provided that their application allows infrastructure capacity to be allocated in a fair and non-discriminatory manner and in accordance with EU law; - must attempt actively to seek a satisfactory solution with applicants in the event of conflicts.
74 By its first question, the referring court asks, in essence, whether the first and second subparagraphs of Article 47(4) of Directive 2012/34 must be interpreted as precluding the adoption of national legislation which provides that, in the event of congested railway infrastructure, the intensity of the use of the infrastructure may be taken into account at the time of capacity allocation.
75 As recalled in paragraph 62 of the present judgment, in accordance with Article 47(1) of Directive 2012/34, where, after coordination of the requested train paths and consultation with applicants, it is not possible to satisfy requests for infrastructure capacity adequately, the infrastructure manager is immediately to declare that section of infrastructure on which this has occurred to be congested.
76 Under Article 47(3) of Directive 2012/34, where charges in accordance with Article 31(4) of that directive have not been levied or have not achieved a satisfactory result and the infrastructure has been declared to be congested, the infrastructure manager may, in addition, employ priority criteria to allocate infrastructure capacity.
77 In accordance with the first subparagraph of Article 47(4) of that directive, those criteria must take account of the importance of a service to society relative to any other service which will consequently be excluded. The second subparagraph of Article 47(4) states that, in order to guarantee the development of adequate transport services within this framework, in particular to comply with public-service requirements or to promote the development of national and international rail freight, Member States may take any measures necessary, under non-discriminatory conditions, to ensure that such services are given priority when infrastructure capacity is allocated.
78 In the judgment of 28 February 2013, Commission v Spain (C‑483/10, EU:C:2013:114, paragraph 95), the Court held that the criterion based on actual use of the network, as a criterion for the allocation of infrastructure capacity, is discriminatory in so far as it leads, where there is more than one application for the same train path or the network is congested, to advantages being maintained for the incumbent users and access to the most attractive train paths being denied to new entrants.
79 It is true, as the referring court points out, that the priority criterion examined by the Court in the case that gave rise to that judgment concerned the actual use of the railway infrastructure in the past, whereas the national legislation at issue in the main proceedings contains criteria relating to the planned use of the network. Moreover, it should be borne in mind that such a future-oriented criterion can be distinguished from a criterion relating to the past in so far as new entrants can also plan a volume of use.
80 That being so, as the Advocate General observed, in essence, in points 70, 71 and 73 of his Opinion, a priority criterion based on projections for future use of the network is just as likely to have a discriminatory effect on new entrants, in particular where those projections are based on data derived from recent use, since new entrants are unable to provide such data.
81 Furthermore, as regards the objective of ensuring efficient use of infrastructure capacity, referred to in Article 26 of Directive 2012/34 and relied on by the Lithuanian Government, it should be noted that, in order to attain that objective, there is no need whatsoever to discriminate between network operators or to deny access to new entrants to the network (see, to that effect, judgment of 28 February 2013, Commission v Spain, C‑483/10, EU:C:2013:114, paragraph 97).
82 Directive 2012/34 contains specific provisions designed to provide incentives for the efficient use of infrastructure capacity while at the same time ensuring fair and non‑discriminatory access to the rail network. By way of example, Article 52(1) of the directive provides that it is possible for the infrastructure manager to specify conditions whereby it will take account of previous levels of utilisation of train paths in determining priorities for the capacity allocation process. In the same vein, Article 36 of that directive provides that the infrastructure manager may levy a reservation charge for capacity that has been requested but not used in order to provide incentives for efficient use of infrastructure capacity (see, by analogy, judgment of 28 February 2013, Commission v Spain, C‑483/10, EU:C:2013:114, paragraph 98).
83 It follows that a priority criterion based on the planned use of infrastructure capacity is compatible with Directive 2012/34 only in so far as it is has safeguards to ensure that the criterion is not applied to the detriment of new entrants.
84 Moreover, it should be noted that neither Article 47 of Directive 2012/34 nor the definition of ‘congested infrastructure’ in point 20 of Article 3 of that directive refers to the goods which an applicant intends to transport. Therefore, for the purpose of assessing whether infrastructure is congested, the fact that, in a specific case, several applicants have requested capacity for the carriage of the same freight is irrelevant.
85 In the light of all the foregoing considerations, the answer to the first question is that Article 47(3) and (4) of Directive 2012/34 must be interpreted as precluding national legislation which, for the purpose of allocating infrastructure capacity in the event of congested infrastructure, provides for the application of a priority criterion based on the planned use of that capacity, unless that criterion has safeguards to ensure that it is not applied to the detriment of new entrants.
86 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.