Provisional text

22 May 2025 (*)

( 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 )

In Case C‑538/23,

REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesverwaltungsgericht (Federal Administrative Court, Austria), made by decision of 21 August 2023, received at the Court on 22 August 2023, in the proceedings

ÖBB-Infrastruktur AG,

Schienen-Control Kommission,

THE COURT (Second Chamber),

composed of K. Jürimäe, President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Second Chamber, M. Gavalec, Z. Csehi (Rapporteur) and F. Schalin, Judges,

Advocate General: T. Ćapeta,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–ÖBB-Infrastruktur AG, by K. Retter, Rechtsanwalt,

–WESTbahn Management GmbH, by E. Lichtenberger, Rechtsanwalt,

–Schienen-Control Kommission, by R. Streller, Chairman,

–the Austrian Government, by A. Posch, J. Schmoll and G. Kunnert, acting as Agents,

–the Netherlands Government, by E.M.M. Besselink and M.K. Bulterman, acting as Agents,

–the Polish Government, by B. Majczyna, acting as Agent,

–the Norwegian Government, by T. Aalia et G.G. Mostuen, acting as Agents,

–the European Commission, by P. Messina and E. Schmidt, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 7 November 2024,

gives the following

This request for a preliminary ruling concerns the interpretation of Article 8(4) and Article 27(2) and (4) 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, and corrigendum OJ 2020 L 351, p. 64), as amended by Directive (EU) 2016/2370 of the European Parliament and of the Council of 14 December 2016 (OJ 2016 L 352, p. 1) (‘Directive 2012/34’), read in conjunction with Annex IV to that directive, of Article 31(3) and Article 32 of Directive 2012/34 and of point 1 of Article 2 of Commission Implementing Regulation (EU) 2015/909 of 12 June 2015 on the modalities for the calculation of the cost that is directly incurred as a result of operating the train service (OJ 2015 L 148, p. 17).

The request has been made in proceedings between ÖBB-Infrastruktur AG (‘ÖBB-Infra’), the main Austrian railway infrastructure manager, and WESTbahn Management GmbH (‘WESTbahn’), a railway undertaking, on the one hand, and the Schienen-Control Kommission (Railway Supervisory Commission, Austria) (‘the SCK’), on the other hand, concerning the authorisation of mark-ups in infrastructure charges.

Legal context

European Union law

Recitals 34, 43 and 70 of Directive 2012/34 state:

‘(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. The network statement should be published in at least two official languages of the [European] Union in line with existing international practices.

…

(43) Within the framework set out by Member States, charging and capacity-allocation schemes should encourage railway infrastructure managers to optimise use of their infrastructure.

…

(70) The overall level of cost recovery through infrastructure charges affects the necessary level of government contribution. Member States may require different levels of overall cost recovery. However, any infrastructure charging scheme should allow traffic which can at least pay for the additional cost which it imposes to use the rail network.’

Article 3 of that directive, entitled ‘Definitions’, provides:

‘For the purpose of this Directive, the following definitions apply:

(1) “railway undertaking” means any public or private undertaking licensed according to this Directive, the principal business of which is to provide services for the transport of goods and/or passengers by rail with a requirement that the undertaking ensure traction; this also includes undertakings which provide traction only;

(2) “infrastructure manager” means any body or firm responsible for the operation, maintenance and renewal of railway infrastructure on a network, as well as responsible for participating in its development as determined by the Member State within the framework of its general policy on development and financing of infrastructure;

…

(19) “applicant” means a railway undertaking or an international grouping of railway undertakings or other persons or legal entities, such as competent authorities under Regulation (EC) No 1370/2007 [of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70 (OJ 2007 L 315, p. 1)] and shippers, freight forwarders and combined transport operators, with a public-service or commercial interest in procuring infrastructure capacity;

…

(26) “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;

…’

Article 4 of Directive 2012/34, entitled ‘Independence of railway undertakings and infrastructure managers’, provides:

‘1. Member States shall ensure that, as regards management, administration and internal control over administrative, economic and accounting matters, railway undertakings directly or indirectly owned or controlled by Member States have independent status in accordance with which they will hold, in particular, assets, budgets and accounts which are separate from those of the State.

Article 8 of that directive, entitled ‘Financing of the infrastructure manager’, is worded as follows in the first subparagraph of paragraph 4 thereof:

‘Member States shall ensure that, under normal business conditions and over a reasonable period which shall not exceed a period of five years, the profit and loss account of an infrastructure manager shall at least balance income from infrastructure charges, surpluses from other commercial activities, non-refundable incomes from private sources and State funding, on the one hand, including advance payments from the State, where appropriate, and infrastructure expenditure, on the other hand.’

Article 27 of Directive 2012/34, entitled ‘Network statement’, states, in paragraphs 2 and 4 thereof:

‘2. The network statement shall set out the nature of the infrastructure which is available to railway undertakings, and contain information setting out the conditions for access to the relevant railway infrastructure. The network statement shall also contain information setting out the conditions for access to service facilities connected to the network of the infrastructure manager and for supply of services in these facilities or indicate a website where such information is made available free of charge in electronic format. The content of the network statement is laid down in Annex IV.

…

Article 29 of that directive, entitled ‘Establishing, determining and collecting charges’, provides, in paragraph 1 thereof:

‘Member States shall establish a charging framework while respecting the management independence laid down in Article 4.

Subject to that condition, Member States shall also establish specific charging rules or delegate such powers to the infrastructure manager.

Member States shall ensure that the network statement contains the charging framework and charging rules or indicates a website where the charging framework and charging rules are published.

The infrastructure manager shall determine and collect the charge for the use of infrastructure in accordance with the established charging framework and charging rules.

…’

Article 31 of that directive, entitled ‘Principles of charging’, provides, in paragraph 3 thereof:

‘Without prejudice to paragraph 4 or 5 of this Article or to Article 32, the charges for the minimum access package and for access to infrastructure connecting service facilities shall be set at the cost that is directly incurred as a result of operating the train service.

Before 16 June 2015, the [European] Commission shall adopt measures setting out the modalities for the calculation of the cost that is directly incurred as a result of operating the train. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 62(3).

The infrastructure manager may decide to gradually adapt to those modalities during a period of no more than four years after the entry into force of those implementing acts.’

Article 32 of that directive, entitled ‘Exceptions to charging principles’, is worded as follows in paragraphs 1 and 6 thereof:

‘1. In order to obtain full recovery of the costs incurred by the infrastructure manager a Member State may, if the market can bear this, levy mark-ups on the basis of efficient, transparent and non-discriminatory principles, while guaranteeing optimal competitiveness of rail market segments. The charging system shall respect the productivity increases achieved by railway undertakings.

The level of charges shall not, however, exclude the use of infrastructure by market segments which can pay at least the cost that is directly incurred as a result of operating the railway service, plus a rate of return which the market can bear.

Before approving the levy of such mark-ups, Member States shall ensure that the infrastructure managers evaluate their relevance for specific market segments, considering at least the pairs listed in point 1 of Annex VI and retaining the relevant ones. The list of market segments defined by infrastructure managers shall contain at least the three following segments: freight services, passenger services within the framework of a public service contract and other passenger services.

Infrastructure managers may further distinguish market segments according to commodity or passengers transported.

Market segments in which railway undertakings are not currently operating but may provide services during the period of validity of the charging scheme shall also be defined. The infrastructure manager shall not include a mark-up in the charging system for those market segments.

The list of market segments shall be published in the network statement and shall be reviewed at least every five years. The regulatory body referred to in Article 55 shall control that list in accordance with Article 56.

…

Article 56 of Directive 2012/34, entitled ‘Functions of the regulatory body’, states in paragraphs 1, 2, 6, 9 and 10 thereof:

‘1. Without prejudice to Article 46(6), an applicant shall have the right to appeal to the regulatory body if it believes that it has been unfairly treated, discriminated against or is in any other way aggrieved, and in particular against decisions adopted by the infrastructure manager or where appropriate the railway undertaking or the operator of a service facility concerning:

(a) the network statement in its provisional and final versions;

(b) the criteria set out in it;

(c) the allocation process and its result;

(d) the charging scheme;

(e) the level or structure of infrastructure charges which it is, or may be, required to pay;

(f) arrangements for access in accordance with Articles 10 to 13;

(g) access to and charging for services in accordance with Article 13;

(h) traffic management;

(i) renewal planning and scheduled or unscheduled maintenance;

(j) compliance with the requirements, including those regarding conflicts of interest, set out in Article 2(13) and Articles 7, 7a, 7b, 7c, and 7d.

…

…

A decision of the regulatory body shall be binding on all parties covered by that decision, and shall not be subject to the control of another administrative instance. The regulatory body shall be able to enforce its decisions with the appropriate penalties, including fines.

In the event of an appeal against a refusal to grant infrastructure capacity, or against the terms of an offer of capacity, the regulatory body shall either confirm that no modification of the infrastructure manager’s decision is required, or it shall require modification of that decision in accordance with directions specified by the regulatory body.

10. Member States shall ensure that decisions taken by the regulatory body are subject to judicial review. The appeal may have suspensive effect on the decision of the regulatory body only when the immediate effect of the regulatory body’s decision may cause irretrievable or manifestly excessive damages for the appellant. This provision is without prejudice to the powers of the court hearing the appeal as conferred by constitutional law, where applicable.’

Annex IV to Directive 2012/34 sets out the information contained in the network statement referred to in Article 27 of that directive.

Implementing Regulation 2015/909

Article 2 of Implementing Regulation 2015/909, headed ‘Definitions’, provides:

‘For the purposes of this Regulation, the following definitions shall apply:

(1) “direct cost” means the cost which is directly incurred as a result of operating the train service;

(2) “direct unit cost” means the direct cost per train kilometre, vehicle kilometre, gross tonne kilometre of a train, or a combination of those;

…’

Articles 3 and 4 of that implementing regulation establish, for the purpose of calculating direct costs, the ‘Direct costs on a network-wide basis’ and ‘Non-eligible costs’.

Article 3(1) of that implementing regulation provides:

‘Direct costs on a network-wide basis shall be calculated as the difference between, on the one hand, the costs for providing the services of the minimum access package and for the access to the infrastructure connecting service facilities and, on the other hand, the non-eligible costs referred to in Article 4.’

Austrian law

The Bundesgesetz über Eisenbahnen, Schienenfahrzeuge auf Eisenbahnen und den Verkehr auf Eisenbahnen (Eisenbahngesetz) (Federal Law on railways, rolling stock and rail traffic) of 7 March 1957 (BGBl., 60/1957) has included, since its version of 27 November 2015 (BGBl. I, 137/2015), Paragraph 67d(1) and (6), which provides:

‘(1) Where infrastructure charges and other revenues derived from the management of railway infrastructure are not sufficient to cover all the costs, additional mark-ups may be set on the basis of efficient, transparent and non-discriminatory principles, while guaranteeing optimal competitiveness of rail market segments. The level of charges must not, however, exclude the use of infrastructure by market segments which can pay at least the cost that is directly incurred as a result of operating the rail service, plus a market rate of return.

…

(6) Any additional mark-ups shall require the authorisation of the [SCK], which shall issue its approval if the conditions set out in subparagraph (1) are met. …’

The Bundesgesetz zur Neuordnung der Rechtsverhältnisse der Österreichischen Bundesbahnen (Bundesbahngesetz) (Federal Law reorganising the legal relationships of the Austrian Federal Railways) of 29 December 1992 (BGBl. I, 825/1992), in the version of 19 August 2009 (BGBl. I, 95/2009), provides, in Paragraph 42(1) thereof:

‘[ÖBB-Infra] shall bear any costs incurred in the performance of its obligations. At the request of [ÖBB-Infra], the Federal Government shall grant it a subsidy, inter alia, for operating and making available the railway infrastructure to users to the extent that and for as long as the revenues which can be generated from the users of the railway infrastructure under the prevailing market conditions do not cover the costs of managing the railway infrastructure in a cost-effective and efficient manner.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

ÖBB-Infra is the main railway infrastructure manager in Austria. It is responsible for determining and collecting the charges for the use of that infrastructure and for publishing the related information in the network statement. Those charges consist, inter alia, of charges for the direct costs for the use of the infrastructure and mark-ups applied to those charges. Such mark-ups must be authorised by the SCK, in accordance with Paragraph 67d of the Federal Law on railways, rolling stock and rail traffic, as amended on 27 November 2015.

On 12 August 2016, ÖBB-Infra requested authorisation from the SCK to apply mark-ups in infrastructure charges for the 2018 working timetable period, that is to say, the period from 10 December 2017 to 8 December 2018. That was the first request by ÖBB-Infra.

By decision of 12 December 2016, the SCK authorised those mark-ups. WESTbahn brought an action challenging that decision before the Bundesverwaltungsgericht (Federal Administrative Court, Austria), which is the referring court. In a judgment of 5 July 2017, it annulled that decision and referred the case back to the SCK for a new decision.

On 18 August 2017, ÖBB-Infra requested authorisation from the SCK to apply mark-ups in infrastructure charges for the 2019 working timetable period, that is to say, the period from 9 December 2018 to 7 December 2019. The SCK included that request, with reference number SCK-17-009, in the annex to the SCK-16-012 procedure for authorising mark-ups for the 2018 working timetable period.

The SCK also initiated a procedure, with reference number SCK-18-010, for control of ÖBB-Infra’s direct costs and likewise included it in the annexes to the SCK-16-012 and SCK-17-009 procedures cited above.

In the 2018 network statement, only the total charge payable per train kilometre travelled was indicated for each market segment. By contrast, in the 2019 network statement, the charges for direct costs and mark-ups for each train kilometre travelled for each market segment were set out separately, as was the total charge payable per train kilometre, which was obtained by adding the charges and mark-ups.

In relation to the mark-ups, the 2018 and 2019 network statements indicated that the authorisation procedure was ongoing. In the 2019 network statement, it was further stated that, if the final decision terminating that procedure had not been taken until after the start of the working timetable period, any amounts that had been overcharged or undercharged would be reimbursed or recovered, respectively.

On 24 June 2019, ÖBB-Infra requested amendment of its claims in respect of the mark-ups for 2018 and 2019 on the basis that, if the SCK were to set the direct costs at a lower level in the SCK-18-010 procedure than had been planned by the former, those mark-ups would have to be set at a higher level in order to achieve the revenue target set by the Verkehrsministerium (Ministry of Transport, Austria).

In that context, the referring court notes that ÖBB-Infra received State subsidies for 2018 and 2019, and that the Ministry of Transport informs ÖBB-Infra of the total amount of the charges it must generate for each working timetable period, based on the infrastructure charges plus mark-ups. The SCK bases its calculation of mark-ups on that revenue target.

It was not ultimately until a decision of 17 December 2020 that the SCK fixed, for the 2018 and 2019 working timetable periods, the charges for direct costs and mark-ups and the total charge payable per train kilometre travelled.

ÖBB-Infra and WESTbahn brought actions challenging that decision before the referring court. ÖBB-Infra contests that decision, claiming, in essence, higher mark-ups than those published in the 2018 and 2019 network statements.

In that context, the referring court asks, first, whether it is possible for mark-ups in charges to be approved after the expiry of the validity of the relevant working timetable period. Second, it is uncertain as to the order in which those mark-ups must be published in the network statement and approved, and third, it is uncertain as to the necessary scope of publication. Fourth, it seeks to ascertain whether the Member State is bound by the amount of the mark-ups in charges subject to its approval. Fifth, it seeks guidance on the possible impact of a ‘revenue target’, set by the Member State, on the calculation of those mark-ups.

In those circumstances the Bundesverwaltungsgericht (Federal Administrative Court) decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must EU law, in particular Article 32 of Directive [2012/34], be interpreted as meaning that the Member State concerned must approve market mark-ups ex ante, before the start (or at least before the end) of the relevant working timetable period for which the market mark-ups have been requested? Or can the Member State also approve the market mark-ups ex post after the end of the relevant working timetable period (possibly years later)? Must the approval of market mark-ups by the Member State in accordance with Article 32 of [Directive 2012/34] be understood as a legally binding approval?

(2) Must EU law, in particular Article 32(1) and (6) of Directive [2012/34] in conjunction with Article 27(4) thereof, be interpreted as meaning that – in chronological order – the market mark-ups (in the event of changes to essential components) must first be published in the network statement (if necessary subject to approval) and are to be approved by the Member State only after they have been published? Has there already been a modification of essential elements, for the purposes of Article 32(6) of [Directive 2012/34], if “only” the level of the market mark-ups in relation to the working timetable period for the previous year is changed?

(3) (If the first sentence of [the second question] is answered in the affirmative) Must EU law, in particular Article 32(1) and (6) of Directive [2012/34] in conjunction with Article 27(2) and (4) thereof and in conjunction with point 2 of Annex IV to Directive [2012/34] – read in the light of the obligation of transparency and planning security set out in recital 34 of Directive [2012/34] – be interpreted as meaning that market mark-ups may not be approved by the Member State if the levels of the market mark-ups themselves have not been published in the network statement for the relevant working timetable period (for which approval of those market mark-ups was requested), but rather, in that network statement, only a total charge per train path kilometre (as the sum of the charges for costs directly incurred as a result of operating the train service in accordance with Article 31(3) of Directive [2012/34] and the market mark-ups in accordance with Article 32 of Directive [2012/34]) was published for each market segment? Railway undertakings therefore could not find out from those network statements either the charges for ‘direct costs’ (within the meaning of Article 31(3) of Directive [2012/34], read in conjunction with point 1 of Article 2 of [Implementing Regulation 2015/909]), or the market mark-ups in accordance with Article 32 of Directive [2012/34] per market segment.

(4) (If the first sentence of [the second question] is answered in the affirmative) Must EU law, in particular Article 32(1) and (6) of Directive [2012/34] in conjunction with Article 27(4) thereof – read in the light of the obligation of transparency and planning security set out in recital 34 of Directive [2012/34] – be interpreted as meaning that the market mark-ups published in the network statement for the relevant working timetable period have a binding effect for the approval by the Member State? Does it follow from that binding effect that the Member State may not approve higher market mark-ups per market segment than those published in the accompanying network statement? Or is there a binding effect only to the extent that the total charges approved (thus the charges for “direct costs” in accordance with Article 31(3) of [Directive 2012/34] in conjunction with point 1 of Article 2 of Implementing Regulation [2015/909] and market mark-ups in accordance with Article 32 of [Directive 2012/34]) may not be higher than those published in the network statement, whereas the market mark-ups themselves may be approved at a level which is higher than that published in the network statement? Is there also a binding effect in respect of the level of the application for approval originally submitted to the Member State with regard to the market mark-ups? If so, in what sense (no increase, no further reduction permissible)? Is there any other form of binding effect?

(5) Must EU law, in particular Article 32(1) of Directive [2012/34], be interpreted as meaning that, for the [purpose] of determining whether market mark-ups are permissible in principle (apart from the market viability to be verified) – thus, for the purposes of the full recovery of the infrastructure manager’s costs – it is not necessary to take as a basis an overall revenue which must be obtained by the Member State from the railway infrastructure manager (“revenue target”), consisting of the sum of the charges for the costs directly incurred as a result of operating the train service in accordance with Article 31(3) of Directive [2012/34] and the market mark-ups in accordance with Article 32(1) of Directive [2012/34]? Rather, must the costs, in order to obtain full recovery, be determined and established in order to make it possible to assess on the basis thereof whether and to what extent any market mark-ups can be approved? When determining whether market mark-ups are permissible in principle (apart from the market viability to be verified), must State subsidies from the Member State to the railway infrastructure undertaking also be taken into account? If so, what form should this take? Must those State subsidies, where appropriate, be deducted from the costs required for full recovery (in addition to the charges for the costs directly incurred as a result of operating the train service)? In that context, must EU law, in particular Article 32(1) of Directive [2012/34] in conjunction with Article 8(4) thereof, be interpreted as meaning that, in addition to charges for the costs directly incurred as a result of operating the train service and any State subsidies to be taken into account, the Member State must determine – and include in the assessment of whether market mark-ups are permissible – all other profits of the railway infrastructure undertaking from other economic activities and all non-refundable incomes received by that undertaking from private sources? If so, what form should this take? Where appropriate, should they also be deducted from the costs required for full recovery? Must other charges levied by the railway infrastructure undertaking – such as charges for the use of passenger platforms (“station charges”) and charges for the use of electrical supply equipment for traction current – as well as other business positions of the railway infrastructure undertaking be included in that assessment?’

Consideration of the questions referred

The first question

By its first question, the referring court asks, in essence, whether Directive 2012/34, and in particular Article 32 thereof, must be interpreted as meaning that that directive does not preclude 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 and, if so, whether the decision adopted at the end of that procedure must necessarily be taken before the start of the relevant working timetable period for which those mark-ups have been requested. The referring court also wishes to ascertain whether that authorisation must be regarded as final.

In accordance with the first subparagraph of Article 32(1) of Directive 2012/34, in order to obtain full recovery of the costs incurred by the infrastructure manager a Member State may, if the market can bear this, levy mark-ups on the basis of efficient, transparent and non-discriminatory principles, while guaranteeing optimal competitiveness of rail market segments. The third subparagraph of Article 32(1) provides that, before approving the levy of such mark-ups, the Member State is to ensure that the infrastructure manager has evaluated their relevance for specific market segments, considering at least the pairs listed in point 1 of Annex VI to that directive and retaining the relevant ones.

Those mark-ups are in addition to charges for the use of infrastructure and service facilities, which constitute a basic element of the railway infrastructure charging scheme, as governed by Section 2 of Chapter IV of Directive 2012/34.

Within that section 2, the first subparagraph of Article 29(1) of Directive 2012/34 requires that, in the interests of the proper functioning of the charging scheme for that infrastructure, Member States are to establish a ‘charging framework’ while respecting the management independence of the railway infrastructure manager laid down in Article 4 of that directive. The fourth subparagraph of Article 29(1) of that directive states that the infrastructure manager is to determine and collect the charge for the use of infrastructure in accordance with the established charging framework and charging rules.

Article 29(1) of Directive 2012/34 thus establishes a division of powers between Member States and the infrastructure manager with regard to charging schemes. It is for the Member States to draw up a framework for levying charges, while the determination of the charge and collection fall, in principle, to the infrastructure manager (judgment of 9 September 2021, LatRailNet and Latvijas dzelzceļš, C‑144/20, EU:C:2021:717, paragraph 44 and the case-law cited).

Since Article 32 of Directive 2012/34 appears in the same section of Chapter IV of that directive as Article 29 thereof, the foregoing approach must also be applied with regard to the determination of mark-ups, notwithstanding the fact that the third subparagraph of Article 32(1) of that directive refers to the approval by the Member State of the levy of such mark-ups, particularly since the division of powers established in the latter provision echoes Article 4 of that directive.

That being the case, it is apparent from the wording of Article 56(1)(d) and (e) of Directive 2012/34 that decisions taken by the railway infrastructure manager concerning the charging scheme and the level or structure of infrastructure fees are subject to a review by the regulatory body.

In that regard, it is common ground that, first, under Article 56(1) and (2) of Directive 2012/34, that body acts either at the request of an applicant, within the meaning of Article 3(19) of Directive 2012/34, or on its own initiative. In addition, in accordance with Article 56(6) of that directive, the regulatory body is to ensure that charges set by the infrastructure manager comply with Section 2 of Chapter IV of that directive and are non-discriminatory.

Second, in accordance with the second subparagraph of Article 56(9) and Article 56(10) of Directive 2012/34, the decisions of the regulatory body are binding on all parties concerned, are not subject to the control of any other administrative instance and may be subject to judicial review.

Third, the power of the regulatory body to review the lawfulness of infrastructure charges does not depend on whether proceedings were brought before it before or after the expiration of the respective periods during which those charges apply. Not only is that body precluded from validly waiving its power to determine the lawfulness of infrastructure charges levied in the past, but such a power necessarily implies that such a body may, if necessary, declare those charges invalid ex tunc (see, to that effect, judgments of 27 October 2022, DB Station & Service, C‑721/20, EU:C:2022:832, paragraph 87, and of 7 March 2024, Die Länderbahn and Others, C‑582/22, EU:C:2024:213, paragraphs 49 and 55).

It follows from the foregoing that (i) the charging scheme established by Directive 2012/34 is based on the principle that it is for the Member State to establish a framework for levying charges covering, inter alia, the general charging rules, (ii) it is for the railway infrastructure manager to implement that framework by determining and collecting charges for the use of that infrastructure and service facilities and any mark-ups imposed on those charges, and (iii) the decisions taken by that manager are subject to a review by the regulatory body, which acts ex post and may take decisions that have retroactive effect.

By contrast, Directive 2012/34, and in particular Chapter IV thereof, does not lay down any prior authorisation procedure either for charges for the use of infrastructure and service facilities or for any mark-ups.

More specifically, it is apparent from the wording of Article 56 of Directive 2012/34, and from that of Article 30 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 preceded it, that that Article 56 does not lay down any prior authorisation procedure for infrastructure charges. Article 56 does not require infrastructure managers to submit the infrastructure charges that they intend to levy or the variables used to calculate them to the regulatory body for authorisation. On the contrary, Article 56 merely provides for a review of the charges already set, which is apparent, in particular, from paragraph 1 and the first sentence of paragraph 6 of that article. That review is a matter for the regulatory body which gives its decision either in the context of an appeal or on its own initiative (see, to that effect, judgment of 24 February 2022, ORLEN KolTrans, C‑563/20, EU:C:2022:113, paragraphs 43 and 50).

Since, as is apparent from the foregoing considerations, Directive 2012/34 does not lay down any prior authorisation procedure for infrastructure charges or for variables used to determine those charges, it cannot determine the detailed rules of such a procedure either (see, by analogy, judgment of 24 February 2022, ORLEN KolTrans, C‑563/20, EU:C:2022:113, paragraph 54).

That said, having regard to the fact that, in accordance with Article 56 of Directive 2012/34, the regulatory body may take decisions on its own initiative and that it must ensure, in accordance with paragraph 6 of that article, that the charges set by the infrastructure manager comply with Section 2 of Chapter IV of that directive, that directive cannot be interpreted as precluding a Member State from requiring the regulatory body to examine of its own motion, in all cases, decisions taken by a railway infrastructure manager concerning charging.

Nor, for the same reason, does it preclude a Member State, when transposing Directive 2012/34 into national law, from providing for such a systematic review once the infrastructure manager informs the regulatory body of its intention to levy or amend charges.

However, such an authorisation procedure cannot undermine either the effective implementation of the charging scheme established by Chapter IV of Directive 2012/34, or other provisions of that directive, its coherence or the objectives which it pursues.

In that regard, in the first place, it should be borne in mind that the system established by Directive 2012/34 seeks to ensure the management independence of the infrastructure manager. In order for such independence to be guaranteed, it is necessary for the infrastructure manager to enjoy latitude, within the charging framework established by the Member States, in determining the amount of the charges so as to enable it to use that flexibility as a management tool (see, to that effect, judgment of 9 September 2021, LatRailNet and Latvijas dzelzceļš, C‑144/20, EU:C:2021:717, paragraph 41 and the case-law cited).

Consequently, the review carried out by the regulatory body in the course of an authorisation procedure must be limited to remedying situations of incompatibility in the light of Section 2 of Chapter IV of Directive 2012/34 or of the principle of non-discrimination. That regulatory body is, therefore, not authorised to compel the railway infrastructure manager to submit to its appraisal of appropriateness, since, if it were to do so, the regulatory body would undermine the latitude which the infrastructure manager must be given (see, to that effect, judgment of 9 September 2021, LatRailNet and Latvijas dzelzceļš, C‑144/20, EU:C:2021:717, paragraphs 46 and 47).

In the second place, even though, as is apparent from paragraph 44 above, Directive 2012/34 does not determine the detailed rules for any authorisation procedure, the fact remains that such detailed rules cannot encroach on the prerogatives of the parties involved and, in particular, prevent the railway infrastructure manager from complying with the time limit laid down in Article 27(4) of Directive 2012/34 for the publication of the network statement.

Furthermore, an authorisation procedure must not limit the possibility for the persons referred to in Article 56(1) of Directive 2012/34 to assert their rights where they believe that they have been unfairly treated, discriminated against or in any other way aggrieved, and in particular by bringing an appeal against decisions adopted by the infrastructure manager or, where appropriate, by the railway undertaking or the operator of a service facility.

In the third place, an authorisation procedure must not prevent the regulatory body from performing its duties in accordance with Article 56 of Directive 2012/34, or compromise the protection thus afforded to applicants.

In that regard, it should be recalled that, in accordance with Article 56(10) of that directive, decisions taken by the regulatory body must be amenable to judicial review.

Consequently, a decision taken by the regulatory body in the course of an authorisation procedure can only be final from an administrative point of view and cannot be exempt from judicial review.

The answer to the first question is, therefore, that Article 29(1) and Articles 32 and 56 of Directive 2012/34 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.

The second and third questions

The second and third questions referred by the national court both concern the scope of the obligation to publish a network statement, laid down in Article 27 of Directive 2012/34, in the context of mark-ups in charges determined on the basis of Article 32 of that directive. They should be examined together.

By those questions, the referring court asks, in essence, whether Article 27(2) and Article 32(1) and (6) of Directive 2012/34 must be interpreted as meaning, first, that mark-ups in charges must 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 modification in the amount of those mark-ups is a modification of an essential element of the charging system, within the meaning of Article 32(6) of that directive.

The referring court is uncertain, in the first place, as to the relationship between the obligation to publish the network statement and the procedure for authorising mark-ups in charges, as provided for in national law.

In that regard, it follows from the answer to the first question that in so far as Directive 2012/34 does not provide for an authorisation procedure, it does not, by implication, govern the detailed rules with which such a procedure should comply.

However, the caveats set out in the answer to the first question are also relevant here. The detailed rules required under national law for such an authorisation procedure must not, therefore, encroach on the prerogatives of the parties involved and must not, in particular, make it impossible for the railway infrastructure manager to comply with the time limit laid down in Article 27(4) of Directive 2012/34 for the publication of the network statement.

It follows that the choice made by a Member State to make mark-ups in infrastructure charges subject to an authorisation procedure cannot prevent the infrastructure manager from publishing, in the network statement, information on the mark-ups which it has determined, without having to await the outcome of that procedure, while at the same time indicating, where appropriate, that such a procedure is ongoing.

The referring court asks, in the second place, whether it is sufficient, in the light of Article 27(2) of Directive 2012/34, for the network statement to indicate an overall charge per train kilometre travelled, which covers both the costs directly incurred as a result of operating the train service, in accordance with Article 31(3) of that directive, and the mark-ups determined under Article 32 of that directive, or whether that document must necessarily specify, for each segment of the market concerned, the amounts of mark-ups in addition to charges relating to the costs directly incurred as a result of operating the train service.

In that regard, it must be noted that point 26 of Article 3 of Directive 2012/34 defines ‘network statement’ as ‘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.’

Article 27(2) of that directive states that the network statement is to contain information setting out the conditions for access to the relevant railway infrastructure and service facilities connected to the network of the infrastructure manager and for supply of services in those facilities; the content of the network statement is laid down in Annex IV.

According to point 2 of that annex, the network statement is to include a section on charging principles and tariffs which is to contain appropriate details of the charging scheme as well as sufficient information on charges. In that regard, it is to detail the methodology, rules and, where applicable, scales used for the application of Articles 31 to 36 of Directive 2012/34, as regards both costs and charges.

Furthermore, it is apparent from recital 34 of that directive that the purpose of the network statement is to give railway undertakings all the information required to use their rights of access to railway infrastructure and to services in service facilities in a non-discriminatory and transparent manner.

It follows from that recital 34 and from the wording of point 26 of Article 3 and Article 27(2) of Directive 2012/34, and from point 2 of Annex IV thereto, that, in order to meet the requirements set out in those provisions and to achieve the objective which they pursue, it is not sufficient for the railway infrastructure manager to include in the network statement an overall charge per train kilometre travelled covering the costs directly incurred as a result of operating the train service and any mark-ups.

In addition, as is apparent from paragraphs 37 and 38 above, railway undertakings are entitled to challenge before the regulatory authority any charges published in the network statement which are contrary to the rules and principles set out in Directive 2012/34. Since, as the Advocate General observed in essence in point 97 of her Opinion, mark-ups are governed by rules derogating from the charging principles applicable to charges for the use of infrastructure and of service facilities, the right of railway undertakings to initiate a review would be impaired if the information on the costs directly incurred as a result of operating the train service and on those mark-ups were not provided separately in that document.

It follows that where the infrastructure network manager determines mark-ups on the basis of Article 32 of Directive 2012/34, the network statement must specify, for each segment of the market concerned, the information on mark-ups in addition to charges relating to costs which are directly incurred as a result of operating the train service.

The referring court is uncertain, in the third place, as to the interpretation of Article 32(6) of Directive 2012/34, which provides that if an infrastructure manager intends to modify the essential elements of the charging system referred to in paragraph 1 of that article, it is to make them public at least three months in advance of the deadline for the publication of the network statement according to Article 27(4) of that directive.

Article 27(4) provides that the network statement is to be published no less than four months in advance of the deadline for requests for infrastructure capacity.

Accordingly, for any modification of an ‘essential element’ of the charging system, the three months provided for in Article 32(6) of Directive 2012/34 are in addition to the four months provided for in Article 27(4) of that directive, thus giving the operators concerned more time to prepare their commercial decision to request railway infrastructure capacity in the knowledge of the foreseeable costs they will have to bear.

Although Directive 2012/34 does not define what is to be considered an ‘essential element’ of the charging system, it may nevertheless be inferred from the objective pursued by the obligation to publish a network statement, from the definition of that document and from the description of the information which must necessarily be included in that document, as recalled in paragraphs 63 to 66 above, that the ‘essential elements of the charging system’, within the meaning of Article 32(6) of that directive, include the elements used to calculate the mark-ups and the methodology followed, but not necessarily the result of that calculation.

Consequently, as the Polish Government and the European Commission submitted in their written observations, if only the amount of mark-ups has changed compared to the previous working timetable period without, in particular, the principles governing the calculation of those mark-ups being amended, such a change must not be regarded as a modification of an essential element of the charging system.

The answer to the second and third questions is, therefore, that Article 27(2) and Article 32(1) and (6) of Directive 2012/34 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 that directive.

The fourth question

By its fourth question, the referring court asks, in essence, whether Directive 2012/34 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.

As is apparent from the answer to the first question, in the allocation of powers provided for by Directive 2012/34, it is for the railway infrastructure manager to determine and collect charges for the use of that infrastructure, including any mark-ups, in accordance with the established charging framework and charging rules. Furthermore, although the levy of those mark-ups may be subject to an authorisation procedure, that procedure must respect the functions of the regulatory body as guaranteed in Article 56 of that directive.

Pursuant to that article, it is then for the regulatory body to review, at the request of an applicant or on its own initiative, whether those charges comply with that directive and with the national provisions adopted for its implementation. As regards mark-ups in particular, it is for that body to review whether the information on mark-ups published in the network statement complies with the charging framework established by the Member State pursuant to Article 29(1) of that directive and the charging system established by the railway infrastructure manager pursuant to Article 32(1) and (6) of that directive.

Accordingly, for the purposes of that review, the regulatory body is authorised to indicate to the railway infrastructure manager the amendments that have to be made to the charging system in order to remedy the incompatibilities between that system and the requirements laid down in Directive 2012/34 (see, to that effect, judgment of 9 September 2021, LatRailNet and Latvijas dzelzceļš, C‑144/20, EU:C:2021:717, paragraphs 38 and 45).

Although such amendments may have the effect, as the case may be, of increasing or reducing the mark-ups, they must nonetheless be limited to remedying such situations of incompatibility. The regulatory body is not indeed authorised to compel the railway infrastructure manager to submit to its appraisal of appropriateness, since, if that were the case, the regulatory body would undermine the latitude which the infrastructure manager must be given, as was noted in paragraph 49 above.

The answer to the fourth question is, therefore, that Article 29(1) and Articles 32 and 56 of Directive 2012/34 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 that directive and cannot include appraisals of appropriateness by that body.

The fifth question

By its fifth question, the referring court asks, in essence, whether Article 32(1) of Directive 2012/34 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 and whether, for the purpose of calculating the total cost incurred by the infrastructure manager, it is necessary to take into account other revenue received by that infrastructure manager, in particular State subsidies.

83In that regard, it should be recalled, as stated in paragraph 48 above, that in order to guarantee the objective of management independence of the infrastructure manager, as provided for in Article 4 of Directive 2012/34, the latter must be given a certain latitude in determining the amount of the charges.

84Irrespective of whether, as required by Article 32(1) of Directive 2012/34, the market can bear the mark-ups, the setting, by a Member State, of an overall amount of revenue which must be obtained by the infrastructure manager has the effect of restricting the infrastructure manager’s freedom of action to an extent incompatible with that objective (see, by analogy, judgment of 11 July 2013, Commission v Czech Republic, C‑545/10, EU:C:2013:509, paragraph 36).

85The obligation to attain such an amount is likely to encourage the railway infrastructure manager to give priority to the collection of revenue, whereas, in the light of recital 43 of Directive 2012/34, charging schemes must encourage railway infrastructure managers to optimise the use of infrastructure.

86As regards the calculation of the amount of the mark-ups, it should be recalled that, under the first subparagraph of Article 31(3) of Directive 2012/34, the cost that is directly incurred as a result of operating the train service is covered by the charges for the minimum access package and for access to infrastructure connecting service facilities. Under the charging scheme established by the Member State, the difference between that cost and the total cost related to that operation, incurred by the infrastructure manager, may, in accordance with Article 32(1) of that directive, be met through mark-ups.

87In the light of the charging principles thus established by Directive 2012/34, any revenues of the infrastructure manager which are not related to making the railway infrastructure available are irrelevant for the purpose of determining the total cost incurred by the infrastructure manager.

88By contrast, as the Advocate General noted in essence in points 115 to 118 of her Opinion, the State subsidies received by the railway infrastructure manager to cover the costs related to making the railway infrastructure available must be deducted from the amount of the total cost that may serve as a basis for calculating the mark-ups. Such subsidies are intended to cover the same costs as those which may be the subject of those mark-ups, and those mark-ups cannot be used to generate profits.

89In the light of the foregoing, the answer to the fifth question is that Articles 4 and 32(1) of Directive 2012/34 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.

Costs

90Since 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, in addition to the costs of those parties, are not recoverable.

On those grounds, the Court (Second Chamber) hereby rules:

1.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.

2.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.

3.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.

4.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.

[Signatures]

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Language of the case: German.