Action brought on 5 August 2011 - European Commission v Grand Duchy of Luxembourg

(Case C-412/11)

Language of the case: French

Parties

Applicant: European Commission (represented by: J.-P. Keppenne and H. Støvlbæk, acting as Agents)

Defendant: Grand Duchy of Luxembourg

Form of order sought

Declare that, because the measures adopted by it to implement the first railway package are insufficient, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 6(3) of and Annex II to amended Directive 91/440/EEC ¹ and Article 14(2) of Directive 2001/14/EC, ²

order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The Commission complains of the national provisions in case since they provide that, in the event of disruption to traffic, allocation of train paths is made by the Société nationale des chemins de fer luxembourgeois (CFL; Luxembourg National Railway Company) and not by an independent body. CFL thus participates in the exercise of essential functions, which does not ensure fair and non-discriminatory access to the infrastructure for other operators.

In reply to the objections raised by the Luxembourg authorities, the Commission points out, firstly, that the statement of the Luxembourg authorities that there is no reallocation of train paths in the event of disruption to traffic is incorrect. When the timetable can no longer be followed, CFL lets late trains pass, which constitutes a reallocation of train paths. Secondly, the Commission contests the argument that Article 29 of Directive 2001/14/EC constitutes a lex specialis derogating from the general rule and enabling justification of the allocation of train paths by CFL in the event of disruptions.

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¹ - Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 91/440/EEC on the development of the Community's railways (OJ 2001 L 75, p. 1).

² - 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).