Case C‑512/10

European Commission

v

Republic of Poland

(Failure of a Member State to fulfil obligations — Transport — Directive 91/440/EEC — Development of the Community’s railways — Directive 2001/14/EC — Allocation of railway infrastructure capacity — Article 6(2) and (3) of Directive 2001/14 — Continued absence of financial balance — Articles 6(1) and 7(3) and (4) of Directive 91/440 — Absence of incentives for infrastructure managers — Articles 7(3) and 8(1) of Directive 2001/14 — Calculation of the minimum access charge)

Summary — Judgment of the Court (First Chamber), 30 May 2013

1.        Transport — Rail transport — Directive 2001/14 — Allocation of railway infrastructure capacity and the levying of charges — Infrastructure charging — Obligations of the Member States — Financial balance of the infrastructure manager — Conditions

(European Parliament and Council Directive 2001/14, Art. 6(1))

2.        Transport — Rail transport — Directive 2001/14 — Allocation of railway infrastructure capacity and the levying of charges — Obligations of the Member States — No incentives to encourage the railway infrastructure manager to reduce the costs of providing infrastructure and the level of access charge — Failure to fulfil obligations

(European Parliament and Council Directive 2001/14, Art. 6(2))

3.        Transport — Rail transport — Directive 2001/14 — Allocation of railway infrastructure capacity and the levying of charges — Obligations of the Member States — Calculation of the charge levied for minimum access to railway infrastructure —Charge not corresponding to the cost directly incurred as a result of operating the train service — Failure to fulfil obligations

(European Parliament and Council Directive 2001/14, Art. 7(3))

1.        The obligation under Article 6(1) of Directive 2001/14 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure, as amended by Directive 2004/49, whereby Member States are to lay down conditions to ensure that, under normal business conditions and over a reasonable time period, the accounts of an infrastructure manager at least balance income from infrastructure charges, surpluses from other commercial activities and State funding, on the one hand, and infrastructure expenditure, on the other, must be construed as being a requirement to balance the infrastructure manager’s profit and loss account. However, where the infrastructure manager’s profit and loss account does not balance, that is not sufficient, in itself, to conclude that the Member State in question has failed to fulfil its obligations under that provision. To reach such a conclusion, it would also be necessary to establish, in accordance with the actual wording of that provision, that the failure to balance the accounts occurs ‘under normal business conditions’ and ‘over a reasonable time period’.

(see paras 26, 34, 35)

2.        A Member State fails to fulfil its obligations under Article 6(2) of Directive 2001/14 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure, as amended by Directive 2004/49, where it fails to adopt incentives to encourage the railway infrastructure manager to reduce the costs of providing infrastructure and the level of access charges.

In that regard, the fact that the legislation adopted in order to transpose Directive 2001/14 into national law sets the objective of reducing expenditure and the amount of the charges for use, is not sufficient since that legislation fails to define the incentive mechanism by which that objective should be achieved.

(see paras 57, 90, operative part 1)

3.        A Member State fails to fulfil its obligations under Article 7(3) of Directive 2001/14 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure, as amended by Directive 2004/49, where it permits the inclusion, in the calculation of charges levied for the minimum access package and track access to service facilities, of costs which cannot be regarded as costs directly incurred as a result of operating the train service.

In that regard, because they include fixed costs relating to the provision of a stretch of line on the rail network which the manager must bear even in the absence of train movements, the maintenance and traffic management costs referred to in that legislation must be considered to be only partially directly incurred as a result of operating the train service. Furthermore, it is clear that financial costs and the indirect costs of the activity do not have a direct link with the operation of the train service. Finally, since it is determined, not on the basis of the actual wear of the infrastructure attributable to traffic, but with reference to accounting rules, depreciation cannot be viewed as being directly incurred as a result of operating the train service.

(see paras 82-84, 90, operative part 1)