Case C‑412/11

European Commission

v

Grand-Duchy of Luxembourg

(Failure of a Member State to fulfil obligations — Transport — Development of the Community’s railways — Directive 91/440/EEC — Article 6(3) and Annex II — Directive 2001/14/EC — Article 14(2) — Independence of the body to which the exercise of essential functions is entrusted)

Summary — Judgment of the Court (First Chamber), 11 July 2013

1.        Actions for failure to fulfil obligations — Examination of the merits by the Court — Situation to be taken into consideration — Situation on expiry of the period laid down in the reasoned opinion

(Art. 258 TFEU)

2.        Transport — Common policy — Development of the Community’s railways — Separation between the infrastructure management and transport activities — Essential functions to be entrusted to an independent body — Concept — Adoption of the measures necessary for restoring normal operating conditions in the event of disruption to the service or danger — Not included — Reallocation of train paths  — Included

(European Parliament and Council Directive 2001/14, Arts 14(2) and 29; Council Directive 91/440, Art. 6(3), and Annex II)

1.        See the text of the decision.

(see para. 30)

2.        The measures necessary for restoring normal operating conditions adopted pursuant to Article 29 of Directive 2001/14 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure, including the withdrawal of train paths, cannot be regarded as directly concerning the essential function of allocating train paths for the purpose of Article 14(2) thereof, a function which must be entrusted to an independent allocation body. Rather, Article 29 deals with ad hoc measures which must be adopted in an emergency to deal with a specific situation and ensure that rights to capacity in the form of train paths may in fact be exercised by the operator holding such rights, in accordance with the working timetable. Therefore, the adoption of such measures falls within traffic management and is not subject to the requirement of independence, so that an infrastructure manager which is simultaneously a railway undertaking may be entrusted with such functions.

However, although the withdrawal of train paths in the event of disruption of traffic is not regarded as an essential function, their re-allocation must be regarded as part of essential functions which may be exercised only by an independent manager or allocation body since, unlike traffic management, which does not involve taking decisions within the meaning of Annex II to Directive 91/440 on the development of Community’s railways, the reallocation of train paths entails adopting decisions relating to train paths.

(see paras 34, 36-38)