Provisional text

delivered on 7 November 2024 (1)

Case C-538/23

ÖBB-Infrastruktur AG,

WESTbahn Management GmbH

with the participation of:

Schienen-Control Kommission

(Request for a preliminary ruling from the Bundesverwaltungsgericht (Federal Administrative Court, Austria))

( Reference for a preliminary ruling – Railway transport – Directive 2012/34/EU – Article 31 – Charging principles for the use of railway infrastructure – Article 32 – Exceptions to charging principles – Levying mark-ups – Publication of mark-ups in the network statement – Article 56 – Procedure for approving mark-ups )

1.With the aim of improving the efficiency of the railway transport system, the European Union has established a single European railway area by means of Directive 2012/34. (2)

2.The present reference for a preliminary ruling invites the Court of Justice to interpret the extent to which Directive 2012/34 regulates the procedure for approving charges for the use of railway infrastructure, and more specifically mark-ups.

II. The facts in the main proceedings, the questions referred for a preliminary ruling, and the procedure before the Court

3.The regulation of railways under Directive 2012/34 is a highly technical area of EU law. To help the reader digest its intricacies and understand the facts as they are presented by the referring court, three groups of facts will be discussed in what follows: first, the parties to the main proceedings; second, the two network statements; and third, the chronology of the dispute at national level.

4.Let us first introduce the three participants in the main proceedings.

5.ÖBB-Infrastruktur AG (‘ÖBB’) is an ‘infrastructure manager’. In accordance with point 2 of Article 3 of Directive 2012/34, it is responsible for establishing, managing and maintaining railway infrastructure, including traffic management and control-command and signalling.

6.The Schienen-Control Kommission (Railway Supervisory Commission; ‘the SCK’) is the national regulatory body in Austria, set up in accordance with Articles 55 and 56 of Directive 2012/34. (3)

7.In Austria, on the basis of the relevant national law, that regulatory body is, among other things, tasked with approving mark-ups set by the infrastructure manager.

8.Mark-ups are charges additional to the basic charges that cover the direct costs for the use of railway infrastructure. Member States may allow such mark-ups in accordance with Article 32(1) of Directive 2012/34 ‘in order to obtain full recovery of the costs incurred by the infrastructure manager’. The same provision further states that mark-ups may be permitted, if the market can ‘bear’ it, based on efficient, transparent and non-discriminatory principles.

9.WESTbahn Management GmbH is a ‘railway undertaking,’ within the meaning of point 1 of Article 3 of Directive 2012/34. (4)

10.The infrastructure manager publishes the allocation criteria and charges for the use of the railway infrastructure (‘infrastructure charges’) in a network statement. (5)

11.The present dispute has arisen from ÖBB’s network statements for 2018 and 2019.

12.In both network statements, the published infrastructure charges included mark-ups for the precisely determined five market segments. These were commercial passenger transport, public service passenger long-distance transport, abundant local transport, limited local transport, and freight transport not handled.

13.However, the 2018 network statement, as published, indicated only the total amount to be paid for each market segment, without specifying the division of that total amount between direct costs and mark-ups. In the 2019 network statement, by contrast, the charges for direct costs and mark-ups were indicated separately per train path kilometre travelled for each market segment, and the total charge to be paid was calculated by adding the two together.

14.Austrian law requires that the infrastructure manager apply for approval of mark-ups to the SCK.

15.For mark-ups published in the 2018 network statement, ÖBB applied to the SCK for their approval on 12 August 2016.

16.For mark-ups relating to the 2019 network statement, ÖBB applied to the SCK for their approval on 18 August 2017.

17.The 2018 and 2019 network statements contained a sentence explaining that the procedure for approving mark-ups in accordance with the relevant national law was still ongoing.

18.The 2019 network statement further stated that if ‘a final decision has not been made in that procedure until after the start of the working timetable period’, ‘subsequent and/or back charging of any infrastructure charges that may have been overcharged or undercharged up to that point’ might occur.

19.The present dispute is based on a disagreement between the parties as to whether and by what procedure mark-ups may be introduced. It unfolded as follows.

20.The SCK approved ÖBB’s application for mark-ups for 2018 on 12 December 2016, a decision against which WESTbahn Management appealed. On 5 July 2017, the Bundesverwaltungsgericht (Federal Administrative Court, Austria) (6) annulled that decision on the ground that the approval procedure was defective and referred the case for a new hearing and decision back to the SCK, which continued its approval procedure relating to the 2018 working timetable period.

21.After ÖBB applied for the approval of 2019 mark-ups, the SCK joined those two procedures. In addition, it also joined those two procedures with the procedure for recalculating the direct costs.

22.After the SCK requested ÖBB to recalculate the direct costs, the latter additionally requested a modification of the mark-ups for 2018 and 2019. ÖBB justified this request on the basis of its obligation to meet the revenue target set by the relevant ministry.

23.On 17 December 2020, the SCK upheld the application for the approval of the mark-ups as an infrastructure charge for 2018 and 2019. (7)

24.In point 1 of the operative part of its decision, the SCK determined the charges for direct costs and approved the mark-ups per train path kilometre travelled for each of the five market segments for the 2018 working timetable period. Using both figures, the total charge to be paid was thus calculated. In point 2 of the operative part of its decision, it did the same in relation to the 2019 working timetable, by determining – for each of the five market segments – the charges for direct costs and the approved mark-ups per train path kilometre travelled and then calculating the total charge to be paid by adding the two together.

25.I understand this explanation of the SCK’s decision by the referring court to mean that, first, as a result of the recalculation, direct costs were reduced, and second, in order to meet the revenue target despite that reduction, the increase of mark-ups requested by ÖBB was approved.

26.Both the ÖBB and WESTbahn Management brought an appeal against that decision, which the referring court must rule on in the main proceedings.

27.In its order for reference, the referring court added a final consideration to this set of facts: the SCK based its calculations on the ‘revenue target’ set by the Republic of Austria, which is calculated in the context of the subsidies that ÖBB receives from the State.

28.The SCK’s decision stated that ‘this revenue target (excluding service trains and excluding discounts and surcharges) must be covered by charges, taking into account a subdivision into direct costs, on the one hand, and mark-ups, on the other. Whereas mark-ups are intended to cover at least part of the overhead costs, thus fixed costs, charges are based on the costs incurred directly as a result of operating the train service’.

29.In the circumstances described above, the referring court, the Bundesverwaltungsgericht (Federal Administrative Court), decided to stay the 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 final decision?

(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 Question 2 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 [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)], or the market mark-ups in accordance with Article 32 of [Directive 2012/34] per market segment.

(4)(If the first sentence of Question 2 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 purposes 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 the 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?’

30.Written observations have been submitted by ÖBB, WESTbahn Management, the SCK, the Austrian, Netherlands, Norwegian, and Polish Governments, and the European Commission.

31.No hearing was held.

III. Legal framework

32.Article 4 of Directive 2012/34 provides for the independence of railway undertakings and infrastructure managers:

‘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.

33.The network statement is regulated by Article 27 of Directive 2012/34 (8) as follows:

‘1. 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. The network statement shall be published in at least two official languages of the Union. The content of the network statement shall be made available free of charge in electronic format on the web portal of the infrastructure manager and accessible through a common web portal. That web portal shall be set up by the infrastructure managers in the framework of their cooperation in accordance with Articles 37 and 40.

3. The network statement shall be kept up to date and amended as necessary.

34.The first three sentences of Article 29(1) of that directive allocate tasks in respect of the charging framework as follows:

‘1. 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.’

35.As regards the charging principles, the first three paragraphs of Article 31 of Directive 2012/34 (9) are relevant for our purposes:

‘1. Charges for the use of railway infrastructure and of service facilities shall be paid to the infrastructure manager and to the operator of service facility respectively and used to fund their business.

3. 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 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). [(10)]

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.’

36.Mark-ups are regulated by Article 32 of Directive 2012/34, the first paragraph of which is relevant:

‘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 system 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.’

37.In accordance with Paragraph 67d(6) of the Bundesgesetz über Eisenbahnen, Schienenfahrzeuge auf Eisenbahnen und den Verkehr auf Eisenbahnen (Eisenbahngesetz) (Federal Law on railways, rolling stock and rail traffic (Law on railways), ‘the EisbG’), the setting of mark-ups must be approved by the SCK, which is obliged to give its consent if the basic conditions set out in Paragraph 67d(1) of the EisbG are met.

38.Paragraph 42 of the Bundesgesetz zur Neuordnung der Rechtsverhältnisse der Österreichischen Bundesbahnen (Bundesbahngesetz) (Federal Law reorganising the legal relationships of the Austrian Federal Railways (Federal Law on railways)) empowers the Republic of Austria to subsidise ÖBB and, relatedly, to set a revenue target (namely the total charges which ÖBB must generate from the infrastructure charges plus market mark-ups in the relevant working timetable period).

39.The five questions of the referring court all ask, in one way or another, what Directive 2012/34 has to say about the procedure for approving mark-ups of costs related to the use of railway infrastructure and the method of their calculation.

40.The case-law on the matter is scarce. The Court has dealt with mark-ups only in respect of their effect on the competitiveness of railway transport. (11) When it comes to the procedures for determining charges for the use of railway infrastructure, including any possible mark-ups, Directive 2012/34 offers little guidance. (12) The Court has only had the opportunity to address direct costs (as opposed to mark-ups) in the context of Directive 2001/14, (13) one of the three predecessors to Directive 2012/34, which regulated the levying of charges for the use of railway infrastructure.

41.The participants to the present preliminary ruling procedure offer diverging interpretations of Directive 2012/34 as to, first, the possible limitations it imposes on the regulatory freedom of the Member States, and, second, the roles it assigns to the infrastructure manager and the regulatory body.

42.On one side of the spectrum stands the Norwegian Government which, in its written observations, argues that Directive 2012/34 says nothing about (that is, neither requires nor prohibits) a possible ex ante or ex post approval procedure for mark-ups. Following this argument would lead to a straightforward answer for the referring court: subject to the charging rules regulated by Directive 2012/34, Member States are otherwise free to regulate the procedure that infrastructure managers must follow in order to charge mark-ups.

43.Somewhat more cautiously, it can be stated, as the Commission does in its written observations, that Directive 2012/34 does not expressly mention any procedure for the approval of mark-ups. Despite this, the Commission also takes the view that the independence of the railway infrastructure manager argues against the complete regulatory freedom of Member States when they choose to introduce an approval procedure. (14)

44.On the other side of the spectrum stands WESTbahn Management, which argues that only an ex ante approval of infrastructure charges complies with the requirements of Directive 2012/34, namely the requirement that railway undertakings receive ‘clear and consistent economic signals from capacity-allocation schemes and from charging schemes which lead them to make rational decisions’. (15) In order to comply with this requirement, WESTbahn Management argues that the mark-ups published in the network statement must be approved ex ante, before the working timetable comes into force. The only decision that may be made ex post is that of the regulatory body, which may decide on a reduction of costs following an action brought by a railway undertaking under Article 56 of Directive 2012/34.

45.In what follows, I will, first, set out my understanding of the system established by Directive 2012/34 with regard to levying mark-ups (Section A). This will lead me to the second part, where I will answer the five questions raised by the referring court (Section B).

46.I will describe the system introduced by Directive 2012/34, as I understand it, in two steps. First, I will explain the charging principles it establishes (subsection 1). Second, I will assess the respective roles of the Member States, the infrastructure manager, and the regulatory body in setting the charges for the use of railway infrastructure and their mutual relationship (subsection 2).

1. Charging principles

47.According to the first subparagraph of Article 29(1) of Directive 2012/34, the charging framework is established by the Member States, which, must, however, respect the independence of the infrastructure manager.

48.Within the charging framework thus established, it is for the infrastructure manager to determine and collect charges. (16) The infrastructure manager does so in the network statement, (17) which it must publish at least four months before the deadline for requests for infrastructure capacity. (18)

49.When determining charges, the infrastructure manager must respect the principle of equal treatment and of non-discrimination of railway undertakings, (19) which is, according to the Court, ‘the central criterion for the determination and collection of the charge for use of the infrastructure’. (20)

50.The charges are collected based on an agreed working timetable, which is, according to point 1 of Annex VII to Directive 2012/34, established once a calendar year.

51.What may infrastructure managers charge for?

52.Article 31(1) of Directive 2012/34 tells us that charges are paid for the use of the railway infrastructure, and serve to fund the infrastructure manager’s business.

Article 31(3) of Directive 2012/34 states that the charges for the minimum access package shall be set at the cost that is directly incurred as a result of operating the train service. What can be calculated as direct costs is further specified in an implementing regulation and is of limited scope. Direct costs do not, therefore, cover all the costs that may be incurred by the railway infrastructure manager.

54.In order to obtain the full recovery of the costs incurred by the infrastructure manager, mark-ups may be charged. Article 32 of Directive 2012/34 characterises mark-ups as an exception to the charging principles. It also requires that mark-ups be levied by a Member State only where they are based on efficient, transparent and non-discriminatory principles and only ‘if the market can bear’ it. Furthermore, mark-ups must guarantee the competitiveness of the rail market segments.

55.Overall, then, charges may cover the range between direct costs (the charges for the minimum access package and track access to service facilities, which must be set at the cost that is directly incurred as a result of operating the train service) and total costs (all costs incurred by the infrastructure manager, which may be recovered by levying mark-ups).

56.Thus, mark-ups serve only to cover costs that are incurred by the infrastructure manager, and not to make a profit.

57.In that respect, recital 71 of Directive 2012/34 states that railway infrastructure is ‘a natural monopoly and it is therefore necessary to provide infrastructure managers with incentives to reduce costs and to manage their infrastructure efficiently’. In other words, to avoid the temptations that monopolies hold for infrastructure managers, the objective of the charging rules is the full recovery of the costs incurred – but nothing more.

58.Article 4(2) of Directive 2012/34 guarantees the independence of the infrastructure manager. According to the Court, the infrastructure manager must, ‘within the charging framework established by the Member States, be given a certain latitude in determining the amount of the charges so as to enable it to use that flexibility as a management tool’. Its independence must be guaranteed both in relation to the Member State and the regulatory body.

59.For example, in Commission v Czech Republic, the Court found that the setting, by the Czechia, of the maximum charge for the use of railway infrastructure interfered with the independence of the infrastructure manager. Similarly, in Commission v Spain, the Court decided that ‘infrastructure charging schemes should provide incentives for infrastructure managers to make appropriate investments where they are economically attractive’, and that infrastructure managers must therefore be given flexibility in setting the actual amount of charges.

60.In Commission v Germany, the Court referred to some examples where the infrastructure manager might want to use that flexibility to optimise the railway infrastructure: the infrastructure manager may set or continue to set higher charges based on the long-term costs of certain investment projects; it may also introduce a system of discounts on charges levied by operators.

61.The independence of infrastructure management must also be respected in relation to setting mark-ups.

62.Under the first sentence of Article 32(1) of Directive 2012/34, it is the Member State that ‘may, if the market can bear this, levy mark-ups’. As also argued by the Commission, the Member State thus has the primary role in approving the possibility of charging mark-ups.

63.In other words, if the charging framework, as decided by the Member State under Article 29(1) of Directive 2012/34, does not prescribe the possibility of charging mark-ups, infrastructure managers are not allowed to include them in their network statement, or to collect them based on the working timetable.

64.However, if a Member State has included the possibility of mark-ups in the charging framework, infrastructure managers can then charge such mark-ups, which must be listed in the network statement.

65.If a Member State, in principle, allows mark-ups to be charged, in conformity with the requirement for independence of the infrastructure manager, it is for that actor to decide on specific market segments and to calculate the mark-ups. In so doing, the infrastructure manager must evaluate the relevance of such mark-ups for specific market segments, taking into consideration the pairs provided for in point 1 of Annex VI to the Directive 2012/34. The segments listed in the network statement must include at least freight services, passenger services within the framework of a public service contract, and other passenger services.

66.The list of market segments for which mark-ups are charged is monitored by the regulatory body in accordance with its supervisory powers under Article 56 of Directive 2012/34. The regulatory body acts after an appeal has been lodged by an applicant or of its own motion.

67.Aside from this power arising under the sixth subparagraph of Article 32(1) of Directive 2012/34, Article 56(1) thereof more generally empowers the regulatory body to decide on appeals, submitted by railway undertakings against the infrastructure manager’s decisions concerning, among other things, the charging scheme and the level or structure of infrastructure charges that a railway undertaking is, or may be required, to pay.

68.When the regulatory body exercises its monitoring of the infrastructure charges as determined by the infrastructure manager, its decision ‘must be based on infringement of Directive 2012/34 and be limited to remedying situations of incompatibility’.

69.Article 56 of Directive 2012/34 says nothing about whether the regulatory body’s monitoring takes place before or after the infrastructure manager determines the mark-ups.

70.However, the Court has clarified, even if not in relation to mark-ups, that the regulatory body may exercise its monitoring also after the charges have already been levied.

71.Lastly, in respect of the regulatory body, its decisions, under Article 56(10) of Directive 2012/34, are subject to judicial review.

72.Taking into account the findings from the previous section on the charging principles and the relationship between the different actors under Directive 2012/34, I will answer the questions raised by the referring court as follows.

1. The first question

73.By its first question, the referring court asks whether the Member State must approve the levying of mark-ups ex ante or whether it can also do so after the relevant working timetable period. In addition, it asks whether any such approval is to be considered final.

74.As the Commission has suggested in its observations, even though this question asks when the Member State must approve the mark-up, it should be read as asking when the regulatory body must approve specific mark-ups proposed by the infrastructure manager before the start of the relevant timetable period.

75.As has already been explained, the possibility of charging mark-ups must always be approved by the Member States. Without such, in principle, ex ante approval, the infrastructure manager cannot charge mark-ups at all. However, the referring court’s question rather concerns the situation in which charging mark-ups is, in principle, allowed by the Member State and the infrastructure manager decides to make use of that possibility. In such a case, the question is therefore whether concrete mark-ups which the infrastructure manager wishes to charge must be approved in advance.

76.That reading of the referred question would be in line with the referring court’s description of the relevant national law, according to which the regulatory body approves the levying of mark-ups, which, if challenged, may happen to take place after the relevant working timetable period, as was the situation in the present case.

77.In answering the question thus understood, I am, first, of the view that there is nothing in Directive 2012/34 that precludes an approval procedure that is entrusted to a regulatory body. Therefore, in accordance with the Norwegian Government’s view, an approval procedure for concrete mark-ups is not necessary under the directive. However, that possibility is also not excluded.

78.Given that Directive 2012/34 does not take a position on the necessity of an approval procedure, it also does not determine whether the procedure is to take place ex ante or after the timetable period for which mark-ups are charged has already finished and the charges have been collected.

79.Directive 2012/34 does not, therefore, prevent Member States from introducing either an ex ante or ex post approval procedure for concrete mark-ups by a regulatory body.

80.Such a national choice, however, needs to take into account several caveats.

81.First, given that the infrastructure manager must be independent of the regulatory body, it is important that the latter’s monitoring does not go beyond what is permissible under Article 56(6) of Directive 2012/34: the compliance of mark-ups with Section 2 of Chapter IV of Directive 2012/34 and with the principle of non-discrimination.

82.That also means that the approval of mark-ups does not interfere with the freedom of the infrastructure manager to, within the charging framework, determine the necessary charges in line with the objectives of Directive 2012/34, such as the optimisation of the railway infrastructure, and other discretionary aims set out in Section 2 of Chapter IV of Directive 2012/34.

83.Second, although the approval of concrete mark-ups may be decided on after the working timetable period (as is the case in the main proceedings), I agree with the SCK that mark-ups nevertheless must be listed in the network statement, even if they have not yet been approved. This would ensure that railway undertakings receive clear and consistent economic signals, as required by recital 44 of Directive 2012/34. In addition, this would ensure that, regardless of the duration of the approval procedure, the infrastructure manager complies with its obligation under Article 27(4) of Directive 2012/34, by publishing the network statement at least four months before the deadline for requests for infrastructure capacity by railway undertakings.

84.Third, such an approval procedure must not hamper the supervisory role of the regulatory body under Article 56 of Directive 2012/34 and the protection thus afforded to applicants.

85.Whether such an approval is to be considered final may be answered by recourse to Article 56(10) of Directive 2012/34: there must be a possibility of judicial review of the regulatory body’s decisions. The approval is, therefore, not final insofar as it may be subject to judicial review.

86.In conclusion, Article 32 of Directive 2012/34 does not preclude an approval procedure of mark-ups that takes place either before or after the relevant working timetable, under the condition that the infrastructure manager remain independent in determining the charges in line with the objectives of that directive and the regulatory body maintain its controlling role. Such an approval is, subject to national procedural rules ensuring judicial review of the regulatory body’s decisions under Article 56(10) of Directive 2012/34.

87.By its second question, the referring court asks whether the mark-ups must be published in the network statement before approval is granted, and whether any change in the level of mark-ups amounts to a modification of an essential element of the charging system within the meaning of Article 32(6) of Directive 2012/34.

88.As regards the chronological order, with reference to my conclusions in point 83 above, I am of the view that the amount of mark-ups should be published in the network statement in compliance with the deadline contained in Article 27(4) of Directive 2012/34. Subject to this condition, it is otherwise for the national law precisely to determine the required chronology for approval of mark-ups. If such an approval is required, but pending at the time of the publication of the network statement, this should also be stated.

89.Is the change in the amount of mark-ups to be considered a change of an essential element of the charging system within the meaning of Article 32(6) of Directive 2012/34? Any modification of an ‘essential element’ has as its consequence that the publication of the network statement must take place three months earlier for the respective timetable period, in comparison to a situation where no change in essential elements occurs.

Directive 2012/34 does not offer any further information on what is to be considered an ‘essential element’ of the charging system. However, the requirement that the network statement be published earlier if such a change occurs suggests that ‘essential elements’ are those on the basis of which railway undertakings plan their activities for the coming year. If the change is such that the railway undertakings could not have anticipated the charges for the forthcoming timetable period, such a change is an essential change.

91.In that respect, I share the view of the Commission and the Polish Government, who argue that if only the amount of mark-ups has changed in comparison to the previous working timetable period, but the reasons, methodology, the market segments, and the market research remain the same, such a change should not be considered to be a change of an essential element of the charging system.

92.If national law prescribes an approval procedure for the determination of mark-ups by the regulatory body, as Austrian law does, that body should then verify whether the change is such as to require earlier publication in line with Article 32(6) of Directive 2012/34, and in accordance with the requirement of transparency referred to in recital 34 thereof.

93.I therefore propose that the Court answer the second question as follows. Directive 2012/34 does not regulate whether mark-ups must be published in the network statement before being approved, if approval is required by national law. That directive only requires that the amount of mark-ups be published in the network statement in compliance with the deadline contained in Article 27(4) of Directive 2012/34, that is, no less than four months in advance of the deadline for requests for infrastructure capacity. The change in the level of mark-ups, which, in accordance with Article 32(6) of Directive 2012/34, requires earlier publication of the network statement, is to be considered a change of an essential element of the charging system within the meaning of that provision only if it is a result of a change in the reasons, methodology, or list of market segments on the basis of which the amount of mark-up is calculated. A mere change in the amount of mark-ups based on the same reasons and methodology is not a change of an essential element within the meaning of Article 32(6) of Directive 2012/34.

3. The third question

94.By its third question, the referring court asks whether it suffices, for the purposes of Article 27(2) and (4) and Article 32(1) and (6) of Directive 2012/34, that the infrastructure manager lists in the network statement total charges per train path kilometre, without specifying the respective amounts pertaining to direct costs on the one hand, and mark-ups, on the other.

95.On this question, I share the view of the SCK that railway undertakings should be given information about charges that is as precise as possible in the network statement.

96.Such a requirement for precise information follows from point 2 of Annex IV, to which Article 27 of Directive 2012/34 refers, which supports the interpretation that the network statement should contain specific information on direct costs and mark-ups, respectively.

97.In addition, railway undertakings are entitled to challenge before the regulatory body charges as specified in the network statement which are contrary to the rules and principles contained in Directive 2012/34. As the directive’s rules relating to these two distinct types of charges are different, the right of railway undertakings to initiate a review would be impaired if the information is not provided separately for direct costs and mark-ups.

98.I therefore propose that the Court answer the third question as follows. It does not suffice, for the purposes of Article 27(2) and (4) and Article 32(1) and (6) of Directive 2012/34, that the infrastructure manager lists in the network statement total charges per train path kilometre. Rather, the respective amounts pertaining to direct costs on the one hand, and mark-ups, on the other, must be specified.

99.By its fourth question, the referring court asks whether the mark-ups, as set out in the network statement, are binding on the regulatory body that decides on their approval. More specifically, the referring court wishes to ascertain whether the regulatory body would be obliged to order a possible amendment of mark-ups only up to the level of the total charges as set out in the network statement, and what type of amendments, if any, the regulatory body would be allowed to order.

100.As presented in points 67 and 68 above, the regulatory body is, under Article 56 of Directive 2012/34 entitled to oversee any infringement of that directive and ‘to indicate to the … 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’.

101.Nevertheless, in order to respect the independence of the infrastructure manager in setting the charges in accordance with the charging principles described in Section A.1 above, the regulatory body can hardly engage in its own economic appraisals and, for example, set higher mark-ups than those set by the infrastructure manager.

102.Rather, its powers of amendment must be confined to ensuring that the rules and objectives of Directive 2012/34 are achieved.

103.If a Member State has introduced a system of approval for concrete mark-ups by the regulatory body, that body is subject to the same rules and objectives of Directive 2012/34 in the approval procedure. The regulatory body may, therefore, only approve or reject the mark-ups or order their modification, but it may not determine the amount of mark-ups in the infrastructure manager’s stead.

104.I therefore propose that the fourth question be answered as follows. If a Member State has introduced a procedure for the approval of mark-ups by the regulatory body, that body may grant such approval in accordance with Article 56 of Directive 2012/34, while respecting the independence of the infrastructure manager. In conclusion, the amount of charges set out in the network statement is binding on the regulatory body, but it may, in the exercise of its monitoring, order amendments to it in accordance with Article 56 of Directive 2012/34, while respecting the independence of the infrastructure manager.

5. The fifth question

105.By its fifth question, the referring court is asking about the method for calculating the total costs incurred by the infrastructure manager in the process of determining the validity of mark-ups. More specifically, the referring court asks whether it should take into account the revenue target set by the State. It also asks whether the following should be included or deducted from total costs: first, any State subsidies given to the infrastructure manager; second, all other profits of the infrastructure manager from other economic activities; third, all non-refundable incomes received by the infrastructure manager from private sources; and fourth, other charges levied by and business positions of the infrastructure manager.

106.First, the revenue target. As explained by the referring court in the order for reference, Austria sets a yearly revenue target for ÖBB. It also subsidises its business operations.

107.Similar to the facts in Commission v Czech Republic, where the State set a maximum price cap for the infrastructure manager and thereby breached its independence, it seems to me that setting a revenue target also necessarily interferes with that independence.

108.As argued by the Commission, setting a revenue target deprives the infrastructure manager of the ability to determine the charges in accordance with the discretion referred to in point 60 and footnote 28 above.

109.I agree with the Commission and therefore conclude that the revenue target should not be considered a relevant factor when deciding on the validity of mark-ups determined by the infrastructure manager, as that would interfere with its independence guaranteed by Article 4(2) of Directive 2012/34.

110.When it comes to the question whether the other income listed by the referring court should be taken into consideration, I am of the view that a distinction must be made between subsidies and other incomes to which the question refers.

111.As explained above in respect of charging principles, charges may cover the range between direct costs and total costs. However, all of them always refer to costs incurred by the infrastructure manager for enabling the use of the railways infrastructure either directly (by operating the train service), or indirectly (for example, due to investment projects on the railway infrastructure under Article 32(3) of Directive 2012/34).

112.The system of charges, which serves to cover total costs incurred by the infrastructure manager, should enable it to provide such a service, even if it has no other income. The calculation of mark-ups that serves to cover the total costs of such services should therefore be separate from any other possible income of the infrastructure manager.

113.It is true that such additional income may, under normal business conditions, contribute to the overall balance between income and expenditure of an infrastructure manager, as required by Article 8(4) of Directive 2012/34. However, that does not change the need for the infrastructure manager to cover all the costs associated with making the railway infrastructure available, independently of any other business the manager may have.

114.Therefore, income – such as profits of the infrastructure manager from other economic activities, non-refundable income received by the infrastructure manager from private sources and other charges levied, and its business positions – which is not related to the making available of railway infrastructure, is irrelevant for calculating mark-ups.

115.On the contrary, subsidies granted to the infrastructure manager for the purpose of covering its losses related to making available the railway infrastructure cover the same costs as those for which mark-ups may be charged.

116.Indeed, if the infrastructure manager is, by charging mark-ups, able to cover all of the costs incurred by providing railway infrastructure, the need for subsidies aimed at covering the loss related to that service would disappear.

117.However, if the infrastructure manager has received subsidies to cover the costs related to making available the railway infrastructure and those subsidies exceed direct costs, charging mark-ups for the same costs would result in a profit, unless the subsidies are reimbursed in the amount covered by mark-ups. As explained earlier, mark-ups cannot be charged for any purpose other than to cover the costs connected with making available the railway infrastructure.

118.For that reason, I am of the view that the modality and the amount of subsidies received by the infrastructure manager must be taken into consideration in calculating the amount of mark-ups.

119.I propose that the Court answer the fifth question as follows. Other sources of income and costs not associated with the total costs incurred by the infrastructure manager for the use of the railway infrastructure, such as the income from other economic activities, non-refundable income received from private sources and other charges levied by and business positions of the infrastructure manager cannot form part of the calculation of mark-ups. However, the modality and the amount of subsidies granted for covering the loss related to making available the railway infrastructure should be taken into consideration in such calculations.

120.In light of the foregoing, I propose that the Court of Justice answer the questions of the Bundesverwaltungsgericht (Federal Administrative Court, Austria) as follows:

(1) Article 32 of Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area does not preclude an approval procedure of mark-ups that takes place either before or after the relevant working timetable, under the condition that the infrastructure manager remain independent in determining the charges in line with the objectives of that directive and the regulatory body maintain its controlling role. Such an approval is subject to national procedural rules ensuring judicial review of the regulatory body’s decisions under Article 56(10) of Directive 2012/34.

(2) Directive 2012/34 does not regulate whether mark-ups must be published in the network statement before being approved, if an approval is required by national law. That directive only requires that the amount of mark-ups be published in the network statement in compliance with the deadline contained in Article 27(4) of Directive 2012/34, that is, no less than four months in advance of the deadline for requests for infrastructure capacity. The change in the level of mark-ups, which, in accordance with Article 32(6) of Directive 2012/34, requires earlier publication of the network statement, is to be considered a change of an essential element of the charging system within the meaning of that provision only if it is a result of a change in the reasons, methodology, or list of market segments on the basis of which the amount of mark-up is calculated. A mere change in the amount of mark-ups based on the same reasons and methodology is not a change of an essential element within the meaning of Article 32(6) of Directive 2012/34.

(3) It does not suffice, for the purposes of Article 27(2) and (4) and Article 32(1) and (6) of Directive 2012/34, that the infrastructure manager lists in the network statement total charges per train path kilometre. Rather, the respective amounts pertaining to direct costs on the one hand, and mark-ups, on the other, must be specified.

(4) If a Member State has introduced a procedure for the approval of mark-ups by the regulatory body, that body may grant such approval in accordance with Article 56 of Directive 2012/34, while respecting the independence of the infrastructure manager. In conclusion, the amount of charges set out in the network statement is binding on the regulatory body, but it may, in the exercise of its monitoring, order amendments to it in accordance with Article 56 of Directive 2012/34, while respecting the independence of the infrastructure manager.

(5) Other sources of income and costs not associated with the total costs incurred by the infrastructure manager for the use of the railway infrastructure, such as the income from other economic activities, non-refundable income received from private sources and other charges levied by and business positions of the infrastructure manager cannot form part of the calculation of mark-ups. However, the modality and the amount of subsidies granted for covering the loss related to making available the railway infrastructure should be taken into consideration in such calculations.

1 Original language: English.

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). Directive 2012/34 is a recast of several directives that have been significantly amended over time. See Council Directive 91/440/EEC of 29 July 1991 on the development of the Community’s railways (OJ 1991 L 237, p. 25); Council Directive 95/18/EC of 19 June 1995 on the licensing of railway undertakings (OJ 1995 L 143, p. 70); and 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).

3See also recital 76 of Directive 2012/34: ‘The efficient management and fair and non-discriminatory use of rail infrastructure require the establishment of a regulatory body that oversees the application of the rules set out in this Directive and acts as an appeal body, without prejudice to the possibility of judicial review. Such a regulatory body should be able to enforce its information requests and decisions by means of appropriate penalties.’

4That provision defines a railway undertaking as: ‘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’.

5See point 26 of Article 3 of Directive 2012/34, which defines it 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’. The contents of the network statement are listed in Annex IV to Directive 2012/34.

6Judgment of the Bundesverwaltungsgericht (Federal Administrative Court) No W110 2146830-1 of 5 July 2017, AT:BVWG:2017:W110.2146830.1.00.

7The SCK decision of 17 December 2020, No SCK‑16‑012, SCK‑17‑009, and SCK‑18‑010.

8See also recital 34 of Directive 2012/34.

9See also recital 44 of Directive 2012/34: ‘Railway undertakings should receive clear and consistent economic signals from capacity-allocation schemes and from charging schemes which lead them to make rational decisions.’

10See Implementing Regulation 2015/909.

11Judgment of 9 September 2021, LatRailNet and Latvijas dzelzceļš (C‑144/20, EU:C:2021:717).

12See, in respect of Directive 2001/14, judgment of 24 February 2022, ORLEN KolTrans (C‑563/20, EU:C:2022:113, paragraph 43): ‘In that regard, it should be noted that neither Article 30 of Directive 2001/14 nor any other provision of that directive lays down a procedure for the approval of infrastructure fees or variables enabling those charges to be determined.’

13Judgment of 24 February 2022, ORLEN KolTrans (C‑563/20, EU:C:2022:113).

14The Netherlands and the Polish Governments agree that Directive 2012/34 does not prescribe the modalities of approval. The Netherlands Government is also of the view that an ex ante approval procedure best meets the objectives of that directive.

15Recital 44 of Directive 2012/34.

16See the fourth subparagraph of Article 29(1) of Directive 2012/34. On the difference between setting the charging framework by the Member State and the determination of charges by the infrastructure manager, see the Opinion of Advocate General Jääskinen in Commission v Spain (C‑483/10, EU:C:2012:524, points 45 to 53).

17See, in that respect, Article 27 of and Annex IV to Directive 2012/34.

18See Article 27(4) of Directive 2012/34.

19See Article 29(3) of Directive 2012/34: ‘Infrastructure managers shall ensure that the application of the charging scheme results in equivalent and non-discriminatory charges for different railway undertakings that perform services of an equivalent nature in a similar part of the market and that the charges actually applied comply with the rules laid down in the network statement.’

20Judgment of 8 July 2021, Koleje Mazowieckie (C‑120/20, EU:C:2021:553, paragraph 42).

21According to point 1 of Annex II to Directive 2012/34, the minimum access package includes: ‘(a) handling of requests for railway infrastructure capacity; (b) the right to utilise capacity which is granted; (c) use of the railway infrastructure, including track points and junctions; (d) train control including signalling, regulation, dispatching and the communication and provision of information on train movement; (e) use of electrical supply equipment for traction current, where available; (f) all other information required to implement or operate the service for which capacity has been granted.’

22See also recital 69 of Directive 2012/34.

23See Implementing Regulation 2015/909.

24See, for example, judgment of 30 May 2013, Commission v Poland (C‑512/10, EU:C:2013:338, paragraph 90). In that case, Poland included, among others, financial costs related to the repayment of loans taken out by the manager for the development and modernisation of infrastructure.

25The referring court expressly excluded from the subject matter of the request for a preliminary ruling the question whether the market can bear the mark-ups.

26On the interpretation of competitiveness in Article 32 of Directive 2012/34, see Opinion of Advocate General Campos Sánchez-Bordona in LatRailNet and Latvijas dzelzceļš (C‑144/20, EU:C:2021:251, points 37 to 45).

27Judgments of 28 February 2013, Commission v Germany (C‑556/10, EU:C:2013:116, paragraphs 79 to 81). The Court further explained in paragraph 86: ‘Between those two extremes, Directive 2001/14 provides that the charge may vary by the inclusion of a charge which reflects the scarcity of capacity, as provided for in Article 7(4) of the directive, the cost of environmental effects referred to in Article 7(5) or specific investment projects, as mentioned in Article 8(2), as well as the discounts provided for in Article 9.’ These provisions essentially correspond to Article 31(4) and (5), Article 32(3), and Article 33 of Directive 2012/34.

28Judgment of 9 September 2021, LatRailNet and Latvijas dzelzceļš (C‑144/20, EU:C:2021:717, paragraph 42).

30Judgment of 11 July 2013, Commission v Czech Republic (C‑545/10, EU:C:2013:509, paragraph 36).

31Judgment of 28 February 2013, Commission v Spain (C‑483/10, EU:C:2013:114, paragraph 45).

32Judgment of 28 February 2013, Commission v Spain (C‑483/10, EU:C:2013:114, paragraph 44).

33Judgment of 28 February 2013, Commission v Germany (C‑556/10, EU:C:2013:116, paragraph 83).

34Also confirmed by the Court in judgment of 9 September 2021, LatRailNet and Latvijas dzelzceļš (C‑144/20, EU:C:2021:717, paragraph 44).

35These pairs are, for example, passenger versus freight services; or domestic versus international services, and so forth.

36Under the sixth subparagraph of Article 32(1) of Directive 2012/34, the information on market segments – for the use of which mark-ups are charged – must be published in the network statement and updated regularly.

37According to point 19 of Article 3 of Directive 2012/34, an applicant is ‘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 1191/96 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’.

38See judgment of 3 May 2022, CityRail (C‑453/20, EU:C:2022:341, paragraphs 55 to 57).

39As held by the Court, the control of the regulatory body may concern ‘any infringement of the provisions of Directive 2012/34’. Judgment of 9 September 2021, LatRailNet and Latvijas dzelzceļš (C‑144/20, EU:C:2021:717, paragraph 35).

40See also recital 76 of Directive 2012/34: ‘The efficient management and fair and non-discriminatory use of rail infrastructure require the establishment of a regulatory body that oversees the application of the rules set out in this Directive and acts as an appeal body, without prejudice to the possibility of judicial review. Such a regulatory body should be able to enforce its information requests and decisions by means of appropriate penalties.’

41Judgment of 9 September 2021, LatRailNet and Latvijas dzelzceļš (C‑144/20, EU:C:2021:717, paragraph 47).

42Judgment of 7 March 2024, Die Länderbahn and Others (C‑582/22, EU:C:2024:213, paragraph 55). The Court made this decision in the context of a question whether the regulatory body may decide on the lawfulness of the charges already levied, meaning after their validity period, and it found that it may (paragraphs 55 to 57).

43The Court decided, in respect of Article 30 of Directive 2001/14 that the regulatory body (and possibly a court reviewing that body’s decision) has the exclusive power to decide on the illegality of the charge in light of the legislation concerning access to the railway infrastructure, to the exclusion of civil courts deciding on actions for damages. See, judgment of 9 November 2017, CTL Logistics (C‑489/15, EU:C:2017:834, paragraph 97). Article 30 of Directive 2001/14 corresponds to Article 56 of Directive 2012/34. See judgment of 27 October 2022, DB Station & Service (C‑721/20, EU:C:2022:832, paragraph 64).

44See points 58 to 60 above.

45

Subject to verification by the referring court, it appears from the facts of the case that the network statements for both 2018 and 2019 indicated that the procedure for approving mark-ups was still ongoing, but the 2018 network statement did not list their precise amounts.

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46‘If an infrastructure manager intends to modify the essential elements of the charging system referred to in paragraph 1 of this Article, it shall make them public at least three months in advance of the deadline for the publication of the network statement according to Article 27(4).’

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47Judgment of 9 September 2021, <i>LatRailNet and Latvijas dzelzceļš</i> (C‑144/20, EU:C:2021:717, paragraph 45).

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48The Court, for example, found that Spain had breached the infrastructure manager’s independence in setting the charges when it reduced its powers to ‘applying a formula established in advance by ministerial order’. See judgment of 28 February 2013, <i>Commission </i>v<i> Spain</i> (C‑483/10, EU:C:2013:114, paragraph 44).

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49Judgment of 11 July 2013, <i>Commission </i>v<i> Czech Republic</i> (C‑545/10, EU:C:2013:509).

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50The Commission also argues that, in attempting to reach the revenue target, the infrastructure manager might be incentivised to maximise profits, rather than optimise the efficiency of the railway infrastructure, which is one of the aims of Directive 2012/34. See its recitals 3, 6, and 43.

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51These include the charges for the minimum access package and track access to service facilities, which must be set at the cost that is directly incurred as a result of operating the train service.

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52These are all the costs incurred by the infrastructure manager, which may be recovered by levying mark-ups.