Official Journal of the European Union

C series

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C/2025/3856

21.7.2025

(Case C-538/23,

(1)

ÖBB-Infrastruktur and WESTbahn Management)

(Reference for a preliminary ruling - Rail transport - Directive 2012/34/EU - Levying of charges for the use of railway infrastructure - Establishing, determining and collecting charges - Article 29 - Exceptions to charging principles - Article 32 - Mark-ups - Modalities for calculation and publication - Article 56 - Functions of the regulatory body - Authorisation procedure for mark-ups, provided for by national law - Conditions)

(C/2025/3856)

Language of the case: German

Referring court

Parties to the main proceedings

Applicants: ÖBB-Infrastruktur AG, WESTbahn Management GmbH

Defendant: Schienen-Control Kommission

Operative part of the judgment

Article 29(1) and Articles 32 and 56 of Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area, as amended by Directive (EU) 2016/2370 of the European Parliament and of the Council of 14 December 2016,

must be interpreted as not precluding a Member State from making the levy of mark-ups, imposed on charges for the use of railway infrastructure determined by the infrastructure manager, subject to an authorisation procedure, provided, however, that such a procedure respects the latitude which the railway infrastructure manager must enjoy in determining the amount of the charges so as to enable it to use that flexibility as a management tool, does not encroach on the prerogatives of the parties involved and does not prevent the regulatory body from performing its functions in accordance with Article 56.

Article 27(2) and Article 32(1) and (6) of Directive 2012/34, as amended by Directive 2016/2370,

must be interpreted as meaning that, first, information on mark-ups in charges need not necessarily be published in the network statement prior to their authorisation by the regulatory body, second, that that document must specify, for each segment of the market concerned, the information on mark-ups in addition to charges for the costs directly incurred as a result of operating the train service and, third, that a mere change in the amount of those mark-ups is not a modification of an essential element of the charging system, within the meaning of Article 32(6) of Directive 2012/34, as amended.

Article 29(1) and Articles 32 and 56 of Directive 2012/34, as amended by Directive 2016/2370,

must be interpreted as meaning that the information on mark-ups published in the network statement for the relevant working timetable period is binding on the regulatory body when exercising the authorisation power conferred on it by a Member State, in the sense that the amendments which that body asks the infrastructure manager to make to those mark-ups must be limited to remedying situations that are incompatible with Directive 2012/34, as amended, and cannot include appraisals of appropriateness by that body.

Article 4 and Article 32(1) of Directive 2012/34, as amended by Directive 2016/2370,

must be interpreted as precluding, for the purpose of establishing mark-ups, account being taken of an overall revenue which must be obtained by the Member State from the railway infrastructure manager. For the purpose of determining the total cost incurred by that manager, account must be taken, where relevant, of the State subsidies it has received to cover the costs related to making that infrastructure available.

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(1) OJ C, C/2023/642.

ELI: http://data.europa.eu/eli/C/2025/3856/oj

ISSN 1977-091X (electronic edition)

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