EN

Official Journal of the European Union

C 38/7

(Case C-557/10)

2011/C 38/08

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: H. Støvlbæk and M. França, Agents)

Defendant: Portuguese Republic

Form of order sought

—Declare that, with regard to transposition of the first railway package, the Portuguese Republic has failed to fulfil its obligations under Article 5(3) of Council Directive 91/440/EEC (1) of 29 July 1991 on the development of the Community's railways (as amended by Directive 2001/12/EC) (2), Article 7(3) of Directive 91/440/EEC and Article 6(1) of Directive 2001/14/EC (3) 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,

—order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

Management independence

Article 5(3) of Directive 91/440 contains a list of decisions that railway undertakings must be able to take without State interference. These include decisions relating to staff, assets and own procurement. These decisions must be taken in the context of the general policy guidelines determined by the State. However, in Portugal, with regard to the public undertaking CP, the State not only lays down general strategic guidelines for the acquisition and disposal of holdings in other companies, but also requires individual decisions to acquire or dispose of holdings in the capital of companies to be subject to the approval of the government. For these reasons, the Commission considers that Portugal has failed to fulfil its obligations under Article 5(3) of Directive 91/440 (as amended).

Tariffs for access to railway infrastructure

Under Articles 7(3) of Directive 91/440 (as amended) and 6(1) of Directive 2001/14, Member States are to lay down conditions to ensure that the accounts of the railway infrastructure manager are balanced. In Portugal, however, income from infrastructure charges, State funding and other income from commercial activities is insufficient to balance the accounts of the infrastructure manager, the public undertaking REFER E.P. For these reasons, the Commission considers that Portugal has failed to fulfil its obligations under Article 7(3) of Directive 91/440 (as amended) and 6(1) of Directive 2001/14.

(1) OJ L 1991 237, p. 25

(2) OJ L 2001 75, p. 1

(3) OJ 2001 L 75, p. 29