OPINION OF ADVOCATE GENERAL
BOBEK
delivered on 23 January 2018(1)
Case C‑530/16
European Commission
v
Republic of Poland
(Failure to fulfil obligations — Directive 2004/49/EC on safety on the Community’s railway undertakings — Article 21(1) — Independence of the investigating body in its organisation, legal structure and decision-making — Independence from any infrastructure manager, railway undertaking and any party whose interests could conflict with the tasks entrusted to the investigating body — Independence from the Minister responsible for transport)
I. Introduction
1. According to Article 21(1) of Directive 2004/49/EC (‘the Railway Safety Directive’), (2) investigations of certain accidents and incidents shall be conducted by a permanent investigating body. In carrying out its tasks, that body is to be independent of a number of actors listed in that provision, such as any infrastructure manager, railway undertaking, or any party whose interests could conflict with the tasks entrusted to the investigating body.
2. The European Commission is of the view that the Republic of Poland has failed to fulfil those requirements. It alleges that the Polish investigating body is not independent of the railway undertaking and the infrastructure manager. This is based on the close ties that exist between that body and the Minister for Infrastructure and Construction who is responsible for transport (‘the Minister’), who effectively controls both the infrastructure manager and the railway undertaking.
II. Legal framework
A. EU law
3. Recital 23 of the Railway Safety Directive states that ‘serious accidents on the railways are rare. However, they can have disastrous consequences and raise concern among the public about the safety performance of the railway system. All such accidents should, therefore, be investigated from a safety perspective to avoid recurrence and the results of the investigations should be made public ...’.
4. According to recital 24, ‘a safety investigation should be kept separate from the judicial inquiry into the same incident and be granted access to evidence and witnesses. It should be carried out by a permanent body that is independent of the actors of the rail sector. The body should function in a way which avoids any conflict of interest and any possible involvement in the causes of the occurrences that are investigated; in particular, its functional independence should not be affected if it is closely linked to the national safety authority or regulator of railways for organisational and legal structure purposes …’.
5. Chapter IV of the Railway Safety Directive is dedicated to the safety authority. Under Article 16(1), ‘each Member State shall establish a safety authority. This authority may be the Ministry responsible for transport matters and shall be independent in its organisation, legal structure and decision making from any railway undertaking, infrastructure manager, applicant and procurement entity’.
6. Chapter V, containing Articles 19 to 25, provides for investigation of accidents and incidents. The first paragraph of Article 19 requires Member States to ensure that ‘an investigation is carried out by the investigating body … after serious accidents on the railway system, the objective of which is possible improvement of railway safety and the prevention of accidents’. The second paragraph gives the investigating body the discretion to decide whether or not to investigate ‘those accidents and incidents which under slightly different conditions might have led to serious accidents’.
7. Article 21 of the Railway Safety Directive provides rules on the investigating body:
‘1. Each Member State shall ensure that investigations of accidents and incidents referred to in Article 19 are conducted by a permanent body, which shall comprise at least one investigator able to perform the function of investigator-in-charge in the event of an accident or incident. This body shall be independent in its organisation, legal structure and decision-making from any infrastructure manager, railway undertaking, charging body, allocation body and notified body, and from any party whose interests could conflict with the tasks entrusted to the investigating body. It shall furthermore be functionally independent from the safety authority and from any regulator of railways.
2. The investigating body shall perform its tasks independently of the organisations referred to in paragraph 1 and shall be able to obtain sufficient resources to do so. Its investigators shall be afforded status giving them the necessary guarantees of independence.
…
4. The investigating body may combine its tasks under this Directive with the work of investigating occurrences other than railway accidents and incidents as long as such investigations do not endanger its independence.
…’
8. Article 23 sets out reporting obligations. In particular, Article 23(1) provides that ‘an investigation of an accident or incident referred to in Article 19 shall be the subject of reports in a form appropriate to the type and seriousness of the accident or incident and the relevance of the investigation findings. The reports shall state the objectives of the investigations as referred to in Article 19(1) and contain, where appropriate, safety recommendations’.
B. Polish law
9. Article 28a of the Ustawa o transporcie kolejowym (‘Law on Rail Transport’) of 28 March 2003, applicable at the relevant time, provided for the establishment and operation of the investigation body, the Państwowa Komisja Badania Wypadków Kolejowych (National Railway Accident Investigation Commission) (‘the PKBWK’) in the following terms:
‘1. Under the responsibility of the Minister for Transport, a permanent National Railway Accident Investigation Commission [PKBWK] shall carry on its activities independently, conducting investigations in respect of serious accidents, accidents and incidents […].
2. The PKBWK shall carry on its activities in the name of the Minister for Transport.
3. The PKBWK shall consist of four permanent members, including a Director, a Deputy Director and a Secretary.
4. The PKBWK may also consist of ad hoc members chosen by the Director of the PKBWK to participate in the procedure from a list provided by the Minister for Transport.
…
6. The Director of the PKBWK shall be appointed and dismissed by the Minister for Transport.
7. The Deputy Director and the Secretary shall be appointed and dismissed by the Minister for Transport, at the request of the Director of the PKBWK.
8. The Minister for Transport, after consulting the Director of the PKBWK, shall appoint and dismiss Members of the PKBWK.
9. The Minister for Transport may, at the request of the PKBWK, passed by an absolute majority vote, dismiss members of the PKBWK.
10. Any person who:
(1) is a Polish citizen and enjoys full civil rights;
(2) has full capacity to engage in legal acts;
(3) has not been convicted of the intentional commission of a crime; (4) meets the requirements in regard to education and training
may be a member of the PKBWK.
11. A person’s membership of the PKBWK shall come to an end on his death, following his failure to meet the requirements set out in Article 28a(10), or upon receipt of his resignation, submitted to the Minister for Transport.
12. The PKBWK may consist of specialists in the following areas:
(1) rail network operation;
(2) designing, building and maintaining railway lines, junctions and stations;
(3) safety and steering devices for rail networks and communications;
(4) railway vehicles;
(5) railway electrical power;
(6) transportation of hazardous goods by rail.
13. Persons having higher education, suitable qualifications and at least five years’ experience in a given field shall be considered to be experts in that area.
14. Members of the PKBWK, when passing a resolution …, shall be governed by the principle of unfettered assessment of evidence and shall not be bound by any instruction as to the content of the resolutions passed.
15. When investigating a serious accident, accident or incident, the PKBWK may not consist of ad hoc members employed by agencies whose rail infrastructure, workers or vehicles were involved in the event under investigation.
16. Ad hoc members of the PKBWK shall be entitled to remuneration under a civil law contract.
17. A member of the PKBWK may not act as a judicial expert in matters brought before the PKBWK.
18. Where appropriate, experts and operational staff shall be involved in the work of the PKBWK.
19. Experts participating in the work of the PKBWK and providing opinions or expertise shall be entitled to remuneration under a civil law contract.’
10. Article 28d of the Law on Rail Transport further provided that:
‘1. The Minister for Transport shall include in the part of the State budget under his responsibility funding for the PKBWK and its staff to conduct their activities, in particular for the remuneration of its members, experts and operational staff and for technical equipment, training costs, publication costs and experts’ fees.
2. The functioning of the PKBWK shall be ensured by the appropriate department of the corresponding office of the Minister for Transport.
…
4. The Minister for Transport shall determine, by means of an order, the statute governing the PKBWK’s activities and organisational structure, taking into account the nature of the tasks performed by the PKBWK.’
III. Pre-litigation procedure and procedure before the Court
11. On 21 February 2014, the Commission issued a letter of formal notice to the Republic of Poland concerning the incompatibility of several provisions of the the Law on Rail Transport with the Railway Safety Directive. In particular, it raised issues about the lack of independence of the safety authority (in breach of Article 16(1) of the Railway Safety Directive) and of the investigating body (in breach of Article 21(1)).
12. The Republic of Poland responded by letter of 17 April 2014. It denied having breached Article 16(1) and Article 21(1) of the Railway Safety Directive. However, with regard to the other allegations made by the Commission in that letter of formal notice, (3) the Republic of Poland stated that it would amend its legislation in order to comply with the Railway Safety Directive.
13. The Commission remained unconvinced. It issued a reasoned opinion on 27 February 2015, requesting that the Republic of Poland correctly transpose the Railway Safety Directive.
14. The Republic of Poland responded to the reasoned opinion by letter dated 27 April 2015. It informed the Commission that two regulations had been adopted in order to comply with the Railway Safety Directive and that discussion was ongoing regarding a bill to amend the Law on Rail Transport. On 18 and 30 October 2015, the Republic of Poland notified the Commission of another regulation that had been adopted and also of an amendment to the Law on Rail Transport, enacted on 25 September 2015. It further maintained its claim that it did not breach Article 16(1) and Article 21(1) of the Railway Safety Directive.
15. According to the Commission, although the changes made to the national law ensured a correct transposition of a number of provisions of the Railway Safety Directive, the Republic of Poland was still in breach of Article 16(1) and Article 21(1) of that directive. The Commission has therefore brought an action before this Court regarding the lack of independence of the safety authority and that of the investigating body. In that action, it requested the Court to:
– declare that the Republic of Poland has failed to fulfil its obligations under Article 16(1) and Article 21(1) of the Railway Safety Directive:
– by failing to adopt the necessary measures to guarantee the independence of the safety authority vis-à-vis any railway undertaking, infrastructure manager, applicant and procurement entity;
– by failing to adopt the necessary measures to guarantee the independence of the investigating body vis-à-vis the railway undertaking and the infrastructure manager.
– order the Republic of Poland to pay the costs.
16. Subsequently, the Commission decided to withdraw its allegation of a breach of Article 16(1) of the Railway Safety Directive concerning the independence of the safety authority. The Commission noted, in its submissions filed in reply, that a law of 16 November 2016, notified to the Commission on 1 December 2016, has modified the Law on Railway Transport and other national laws. Following that amendment, the Commission is of the view that the Polish law now correctly transposes Article 16(1) of the directive. However, as compliance was brought about only after the commencement of infringement proceedings, the Commission maintains that the Republic of Poland should be ordered to pay the costs related to that plea, in accordance with Article 141(2) of the Court’s Rules of Procedure.
17. With regard to Article 21(1) of the Railway Safety Directive, the Commission maintains its claim that the Polish investigating body is not independent of the infrastructure manager and the railway undertaking. Both the infrastructure manager and the railway undertaking are owned by the State: State ownership is formally vested in the Public Treasury, but the control is effectively exercised by the Minister responsible for transport, on behalf of the State. Thus, the Minister controls the infrastructure manager and the railway undertaking.
18. According to the Commission, Polish law fails to guarantee the independence of the investigating body from the Minister. The investigating body has no legal status of its own. It is a part of the Ministry. It does not have decisional independence because it does not act in its own name but on behalf of the Minister, who must sign off on its decisions. The Commission also argues that the conditions and methods of appointment and revocation of the members of the investigating body do not guarantee their independence. Finally, the obligation of the investigating body to systematically request financial or human resources considerably limits its organisational independence vis-à-vis the Minister.
19. In its defence, the Republic of Poland claims that the Commission’s action is inadmissible and, in any event, unfounded. Polish law contains precise and detailed guarantees of independence that ensure the organisational, legal and decisional independence of the investigating body. There is no relationship of subordination between the investigating body and the Minister. In practice, the Minister has never interfered with the daily operational work of the investigating body. The fact that the investigating body is a structure within the Ministry and acts on the behalf of the Ministry in fact enhances the former’s legitimacy and authority.
20. Therefore, according to the Republic of Poland, there has been no breach of Article 21(1) of the Railway Safety Directive. The Republic of Poland thus requests the Court to dismiss the action brought by the Commission in its entirety and to order the Commission to bear the costs.
21. Written submissions were made by the Republic of Poland and the Commission. Both parties also presented oral argument at the hearing held on 26 October 2017.
IV. Assessment
22. This Opinion is structured as follows: I start by outlining the structure of Article 21(1) of the Railway Safety Directive (A). I then focus on the second sentence of Article 21(1), the relevant provision in the present case, first at the exact nature of independence required by that provision (B), and then specifically from whom that independence is to be guaranteed (C). Having set out those requirements, I then turn to their application in the present case (D).
A. The structure of Article 21(1) of the Railway Safety Directive
23. Article 21(1) of the Railway Safety Directive contains three sentences. The first sentence requires the establishment of a permanent investigating body. It is followed by two further specifications of the level of independence that body must have. The nature and the scope of each of those sentences differ.
24. On the one hand, the second sentence of Article 21(1) requires the independence of the investigation body ‘in its organisation, legal structure and decision-making’ from a number of actors: ‘any infrastructure manager, railway undertaking, charging body, allocation body and notified body, and from any party whose interests could conflict with the tasks entrusted to the investigating body’.
25. On the other hand, the third sentence of Article 21(1) aims at a different (perhaps rather narrower) type of independence on the part of the investigating body: that body shall be functionally independent of the safety authority and any regulator of railways.
26. Article 21(1) of the Railway Safety Directive thus distinguishes between two kinds — and admittedly levels — of independence applying to the same investigating body. The first kind is ‘mere’ functional independence from the safety authority and the regulator of railways while the second is ‘enhanced’ independence in organisation, legal structure and decision-making from any infrastructure manager, railway undertaking, charging body, allocation body and notified body, and from any party whose interests could conflict with the tasks entrusted to the investigating body.
27. It could be assumed that the difference in wording was inspired by the fact that the entities aimed at in the third sentence are, by virtue of their respective tasks, less likely to interfere with the tasks of an investigating body. By contrast, the entities referred to in the second sentence are presumed to defend interests that are more likely to conflict with those of the investigating body.
28. The third sentence of Article 21(1) is not applicable in the present case, though it might certainly be of some indirect, interpretative use. It sheds light on what the type of independence within the second sentence in contrast to that in the third sentence might be. However, it is quite clear that the independence of the investigating body from the safety authority or the regulator of railways is not being questioned by the present action.
29. Thus, it is the second sentence that is the yardstick for the present case. Although that sentence already sets out some indications as to the independence it aims at, there are two variables that need to be developed in greater detail: what kind of independence (B) and from whom exactly (C). It is these two issues to which I now turn.
B. Independence from what?
30. Article 21(1) of the Railway Safety Directive requires the investigating body to be independent of a number of entities in three ways: organisation, legal structure and decision-making. The directive provides no further definitions of these terms.
31. From the general perspective, the Court has already stated that ‘in relation to a public body, the term “independence” normally means a status which ensures that the body concerned can act completely freely, without taking any instructions or being put under any pressure’. (4) Thus, independence entails, in essence, that the body in question be insulated from other entities whose action may be driven by other kinds of interests than those pursued by that body. To that effect, the body must enjoy a number of concrete guarantees of independence that protect it against undue interferences that could prevent it from carrying out its tasks and fulfilling its mission. (5)
32. However, independence can hardly be understood as a unitary notion, a sort of ‘off-the-rack’ single blueprint, that would provide for a set of guarantees universally applicable to all the independent bodies in exactly the same way. Independence is more like a ladder which one can climb up or down and stop at a specific rung, depending on the distance needed from given actor(s) in order to complete one’s tasks independently. Thus, the exact guarantees that are needed will be defined in view of the functions that the body in question is supposed to exercise independently.
33. The core of independence and the first rung on the ladder is ‘decision-making independence’: to be allowed to make a decision in the individual case impartially, without taking any instructions beforehand and fearing any repercussions after the decision. Beyond that core, an administrative authority can find itself at many higher rungs of the ladder where there is a need for greater impartiality: from independent legal personality to guarantees against removal of individual members, to own budget and/or full self-administration and other elements. At the very top of that ladder, a highly independent and thus impartial administrative authority will start approaching the guarantees that are required and reserved for the judicial function.
34. The bottom line is that the ‘right’ distance or rung on the ladder that the authority in question ought to be at is the one which will neutralise any potential conflict of interests and ensure that the actual tasks of the independent administrative authority are carried out in an impartial and effective manner.
35. It is nonetheless clear that the minimum guarantee applicable to any independent administrative authority worthy of that name is decision-making independence: in the sense of being able to adopt impartial decisions in individual cases, free from the interference of any other entities that have potentially conflicting aims or interests. The members of that authority cannot be bound by instructions of any kind in the performance of their duties. (6) At the same time, however, such minimum independence requirements aimed at impartial decision-making in individual cases do not per se prevent the existence of overall structural or organisational links between the concerned entities, provided that there are clear and robust guarantees that there cannot be any interference in individual decision-making.
36. Turning now specifically to bodies that investigate railway accidents, Article 21(1) of the Railway Safety Directive requires independence of the investigating body in organisation, legal structure and decision-making from a number of railway actors. The wording, context and purpose of Article 21(1) of the Railway Safety Directive further elucidate what these requirements might mean.
37. First, on its natural meaning, independence as to the organisation should entail the possibility for the investigating body to decide on its internal structure and to have its own organs and rules of procedure. Furthermore, rules relating to the appointment and dismissal of members of the investigating body to prevent any influence on its decision-making will also fall under this category. While such an independent body should have its own organs, and should have sufficient resources to effectively carry out its tasks, (7) a separate budget does not as such appear to be a necessity. (8)
38. Regarding legal structure, the investigating body should have a separate legal personality. (9) It cannot be a mere (dependent) department within a broader structure comprising a party which potentially has conflicting interests.
39. Turning to decision-making, independence in this respect implies that the body can adopt decisions freely, without any external interference. It means guarantees of impartiality in decision-making.
40. Second, the context and the overall purpose of these three aspects of independence show the need for the investigating bodies to be able to conduct their investigations and draft safety recommendations free from interference from any entity in whose interest it might be that the actual causes of those accidents remain undisclosed.
41. Thus, it is rather clear that if interpreted in view of the functions of that body, the investigation foreseen by the directive is a technical, administrative investigation. It does not apportion liability. As foreseen by recital 24, that is the task for the judicial inquiry. This fact should not, however, obfuscate the significance that such a seemingly ‘technical’ investigation is likely to have in reality. Precisely because of its technical expertise, an opinion, once formed and voiced on the causes of railway accidents or incidents, will carry considerable weight. Coupled with the task to also make safety recommendations for the future, in order to prevent accidents from reoccurring, it appears that the investigating body should enjoy a rather high degree of independence from all the entities that have interests which could conflict with those investigating tasks.
42. Third, there is the broader context (or the systematic argument). Interpretation of the second sentence of Article 21(1) of the Railway Safety Directive could be undertaken in the light of other EU secondary law instruments that entrust similar bodies with similar functions.
43. The parties to these proceedings, as well as, for that matter, the previous part of this Opinion, referred to several parallel regulatory regimes. However, it should be acknowledged that, beyond the interpretation of general notions, deeper analogies with those regulatory regimes in the context of the present case are of limited use for a simple reason: the regulatory regimes and the concrete functions of the authority in question differ, sometimes considerably.
44. Within the same area, the guarantees of independence are bound to be different. For instance, apart from investigating bodies, taking another administrative entity competent in the railway sector, the national regulatory body shall be functionally independent of any competent authority involved in the award of a public service contract. It shall be a stand-alone authority which is legally distinct and independent of any other public or private entity in organisational, functional, hierarchical and decision-making terms. It shall also, in less compelling terms, be independent in its organisation, funding decisions, legal structure and decision-making of any infrastructure manager, charging body, allocation body or applicant. (10)
45. When looking beyond the railway sector, perhaps the closest analogy that could be made is with other administrative authorities that investigatetransport accidents. Although concerning a different means of transport, such authorities could be said to share the same aims and function. Thus, their regulation and requirements as to their independence should perhaps be worded in similar terms and have the same scope.
46. That does not, however, appear to be the case. With regard to the civil aviation investigation authorities, Regulation (EU) No 996/2010 (11) appears to be structured differently. On the one hand, those authorities ‘should be able to conduct their investigations entirely independently’ (12) and ‘shall be allocated a budget … to carry out [their] functions’. (13) On the other hand, Article 4(2) of the same regulation only requires functional independence from a number of entities. Next, with regard to bodies investigating accidents in the maritime transport sector, it follows from the first subparagraph of Article 8(1) of Directive 2009/18/EC (14) that they must be ‘independent in [their] organisation, legal structure and decision-making of any party whose interests could conflict with the task entrusted to [them]’.
47. Although at some level of abstraction there are certainly some common themes emerging, the textual and systemic difference between the individual regimes does not genuinely allow for the formulation of any common standards.
48. Finally, at the outer end of the systematic spectrum is the case-law that has been most frequently invoked in the context of the present case, on the independence of the data protection authorities. This is understandable from a practical point of view, as the Court already had the opportunity to address those issues in the context of Directive 95/46/EC. (15) As for the actual guarantees and their exact level, that instrument and the case-law interpreting it might be, if anything, used to provide a contrast (such as making clear the lengths to which the EU legislature apparently did not wish to go) rather than an analogy with the Railway Safety Directive.
49. Unlike the Railway Safety Directive, the General Data Protection Regulation, (16) soon to replace Directive 95/46, foresees the ‘complete independence’ of supervisory authorities. (17) According to the Regulation, it entails that those authorities have their ‘own staff … subject to the exclusive direction of the member or members of the supervisory authority concerned’ (18) and ‘separate, public annual budgets’. (19) In addition, Article 53 expressly sets out conditions for the appointment and end of term in office of members of supervisory authorities so that their independence is ensured. It is thus clear that that regulation contains rather detailed requirements of and high standards of independence, clearly going beyond those envisaged by the Railway Safety Directive.
50. In the light of the above, it follows that the second sentence of Article 21(1) of the Railway Safety Directive requires that the investigating body be independent in three ways: in terms of organisation, legal structure and decision-making. Furthermore, those three dimensions of independence are to be looked at contextually, in view of the aim that the thus postulated independence of an investigating body is supposed to safeguard: the ability of the investigating bodies to conduct their investigations and draft their safety recommendations with freedom from any interference on the part of an entity in whose interest it might be not to have the actual causes of those accidents disclosed.
51. Having outlined what kind or what degree of independence is required under Article 21(1) of the Railway Safety Directive, I shall now turn to the second variable contained in the second sentence of Article 21(1): independence from whom precisely?
C. Independence from whom?
52. Article 21(1), second sentence, of the Railway Safety Directive lists a number of entities from which the investigating body shall be independent in its organisation, legal structure and decision-making. These are any infrastructure manager, railway undertaking, charging body, allocation body, notified body and any party whose interests could conflict with the tasks entrusted to the investigating body.
53. There is a clear difference in the type of entities listed. First, there are the specific entities: infrastructure manager, railway undertaking, charging body, allocation body, notified body. Second, there is the residual category of any party whose interests could conflict with the tasks entrusted to the investigating body.
54. Logically, it could be assumed that with regard to the concretely listed entities, the legislature effectively presumed that a conflict of interests would arise because of the inherently different and opposing nature of those entities, by virtue of their functions. Thus, provided that the investigating body is not independent of (or directly dependent on) any of the listed entities with regard to the three aspects of independence listed, there will be a breach of Article 21(1) of the Railway Safety Directive.
55. By contrast, the residual category is construed differently. On the one hand, it is open ended — namely any party whose interests could conflict. On the other hand, such conflicts of interests must be clearly established in the individual case, again with regard to the three aspects of independence listed in the second sentence of Article 21(1) of the Railway Safety Directive.
56. The residual category of any party with a conflict of interests also covers, in my view, situations of indirect dependence or mediated influence. It includes situations in which the investigating body is not formally speaking directly dependent on any of the listed entities, but where one or more of those listed (or other) entities are themselves, as well as the investigating body, effectively dependent on another third party. That other entity then becomes a party whose interests could not only conflict, but rather inherently and structurally clash, with the tasks entrusted to the investigating body.
57. Considering that the investigation of railway accidents or incidents is most likely to concern infrastructure managers or railway undertakings, it is paramount that the investigating body should be independent of those actors in particular, so that there is no interference with the tasks carried out by the investigating body. As stated by recital 24, ‘a safety investigation … should be carried out by a permanent body that is independent of the actors of the rail sector. The body should function in a way which avoids any conflict of interest and any possible involvement in the causes of the occurrences that are investigated’. As a result, and also considering the significance of its tasks and its accountability to the public, (20) the investigating body should be able to carry out its tasks independently, with no risk of pressure coming directly or indirectly from any other railway actors.
58. The last remaining general question is whether a public authority such as, for instance, a Minister, could be classed under ‘any party whose interests could conflict with the tasks entrusted to the investigating body’?
59. Certainly, it is clear from the wording, legislative history and broader context of Article 21(1) of the Railway Safety Directive that it is not required in general and abstractly that the investigating body has to be independent of public authorities as such.
60. The list in Article 21(1) clearly does not mention any such public authorities. (21) Again, by contrast, other EU secondary law instruments noted and addressed the need to provide for such a clear and structural separation in their respective contexts expressly: (22) for example, Directive 95/46 requires ‘complete independence’ of supervisory authorities. (23) That notion has been construed by the Court as requiring those authorities to be ‘free from any external influence, including the direct or indirect influence of the State or the Länder, and not of the influence only of the supervised bodies’. (24) However, yet again, the Railway Safety Directive appears to operate in a different context. (25)
61. It follows that Article 21(1) of the Railway Safety Directive cannot be interpreted as directly requiring the investigating body to be independent of the executive or any other public authority as such.
62. However, the latter can certainly fall under the category of a ‘party whose interests could conflict with the tasks entrusted to the investigating body’, depending on the actual factual circumstances of a case. Such a conflict of interests will be inherently present when a public authority effectively controls one or even several entities that are expressly mentioned in the second sentence of Article 21(1) of the Railway Safety Directive, such as infrastructure managers and railway undertakings.
63. It might be added that the Court’s judgment in Commission v Italy, (26) invoked by the Republic of Poland in the present proceedings, does not alter that conclusion.
64. In that judgment, the Court held that the Commission failed to establish that Article 30(1) of Directive 2001/14, which requires the regulatory body to be independent of several railway actors, (27) also included the regulatory body’s indirect independence from the railway undertaking, but mediated via the Minister, as the Italian railway company was owned by the State. (28)
65. That finding appears to be of rather limited relevance for the present case and for the interpretation of the requirements of Article 21(1) of the Railway Safety Directive. Without even entering into a discussion of the systemic and functional differences between a regulatory body and an investigating body, which is further emphasised by the fact that each comes from a different legislative instrument (and operate in a different legislative context), it suffices to outline two significant textual differences. First, unlike Article 30 of Directive 2001/14, Article 21(1) of the Railway Safety Directive does not expressly envisage the possibility that the body in question be the Minister itself. Second, the latter also includes the open-ended, residual category of a ‘party whose interests could conflict with the task entrusted to the investigating body’, which is not the case under Directive 2001/14.
66. In sum, although not explicitly listed in the second sentence of Article 21(1) of the Railway Safety Directive, a public authority such as a Minister can be, depending on the factual context, a party whose interests could conflict with the tasks entrusted to the investigation body. If that is indeed the case, then it must be ensured that the investigating body is independent in its organisation, legal structure and decision-making of such public authority.
D. Application to the present case
67. Applying the framework of analysis laid out above to the facts of the present case, it would appear that the Republic of Poland has not fulfilled the requirements stemming from Article 21(1) of the Railway Safety Directive. The Polish investigating body, the PKBWK, is not independent of the Minister responsible for transport in its legal structure, organisation and decision-making.
1. Direct or indirect dependence?
68. As follows from the written submissions and as further confirmed at the hearing, the Polish State owns both the infrastructure manager and the railway undertaking. The Commission maintained that the Public Treasury, represented by the Ministry of Transport, owns 100% of the holding PKP S.A., which comprises a number of companies, including the railway undertaking. The State also owns 85.90% of the infrastructure manager’s shares (PKP PLK S.A.). Neither of these affirmations was contradicted by the Republic of Poland. Thus, the Minister controls both the infrastructure manager and the railway undertaking.
69. It was also correctly noted by the Commission that such a situation creates the conditions of a conflict of interest within the Ministry. The Minister is bound to have an inherent interest in the operation and business results of the infrastructure manager and, in the context of investigations of accidents, the railway undertaking.
70. In this way, the Minister becomes a ‘party whose interests could conflict with the tasks entrusted to the investigating body’ within the meaning of the second sentence of Article 21(1) of the Railway Safety Directive. As a consequence, in order to meet the requirements of that provision the investigating body must be independent of the Minister in its organisation, legal structure and decision-making.
71. For the sake of completeness and clarity, it ought to be added that the exact articulation of the argument advanced by the Commission is slightly different. The Commission maintains that the investigating body is — indirectly through the Minister — not independent of the infrastructure manager. Thus, the Commission effectively draws a relationship of indirect dependency between the investigating body and one of the listed entities, the infrastructure manager, but without identifying the Minister as a party whose interests could conflict with the tasks entrusted to the investigating body.
72. Such an approach might be possible. It seems nonetheless somewhat cumbersome from the point of view of the logical construction of the second sentence of Article 21(1) of the Railway Safety Directive. (29) It is not entirely clear to me why it would be necessary to make such a argumentative detour by invoking indirect links between the investigating body and the infrastructure manager when it is possible to go straight to the core of the problem by focusing on the direct links contemplated — and also expressly prohibited — by that provision between the investigating body and any party with a conflict of interests.
73. Be that as it may, it is undisputed that the Commission reproaches the Republic of Poland for being in breach of Article 21(1) of the Railway Safety Directive because of the legal and factual framework of the Polish law, and the role provided for the Minister responsible for transport. How exactly that situation is to be classified within the categories of the (pertinently invoked) provision of EU law is a legal question for this Court.
2. Elements of (in)dependence
(a) Legal structure
74. It has not been challenged that the PKBWK is an integral part of the Ministry. It has no legal personality. As stated by the Republic of Poland at the hearing, it formally draws its powers from the Minister. Therefore it is clear that the PKBWK, as a mere department of the Ministry, is not independent of the Minister in its legal structure.
(b) Organisation
75. The Commission maintains that in terms of its organisation too, the PKBWK is not independent, for three main reasons: first, the rules on appointment and revocation of its members leave too much discretion to the Minister; second, the PKBWK cannot decide on its own internal rules; and third, it is dependent on the Minister with regard to human and financial resources.
76. First, the Commission argues that the conditions of appointment and revocation of the members of the PKBWK do not sufficiently guarantee their independence from the Minister. It contends that Polish law does not lay down substantive criteria for the appointment of the Director, permanent members or ad hoc members. According to the Commission, permanent members can even be representatives of the infrastructure manager or railway undertaking. In addition, the Minister has unlimited power to dismiss the PKBWK’s Director.
77. In the course of these proceedings, the Republic of Poland failed to rebut those allegations.
78. Article 28a(6) of the Law on Rail Transport provides that the Director of the PKBWK shall be appointed and dismissed by the Minister. Under Article 28a(7) and (8), the Deputy Director, the Secretary and the members of the PKBWK are appointed and dismissed by the Minister, at the request of or on a proposal from the Director. In addition, as follows from Article 28a(4), ad hoc members of the PKBWK are chosen by the Director, but from a list established by the Minister.
79. Accordingly, it follows from those national provisions that the Minister has a pivotal role in the appointment and dismissal of the members of the PKBWK. All permanent members are appointed by him and ad hoc members are chosen from a list established by him. It is immaterial that, as argued by the Republic of Poland, the list of ad hoc members is, in practice, actually drawn up by the Director of the PKBWK. Although that might well be the practice, Article 28a(4) of the Law on Rail Transport still clearly states that the list is provided by the Minister. The fact that the Deputy Director, Secretary and ‘ordinary’ members of the PKBWK shall be appointed by the Minister at the request of or on a proposal from the Director does not significantly reduce the discretion of the Minister in view of how the Director himself is appointed, and may be dismissed by the Minister.
80. That discretion appears to be even broader in view of the absence of any detailed conditions for appointment regarding qualifications. Apart from the general conditions laid down in Article 28a(10) of the Law on Rail Transport, (30) the national legislation does not provide further criteria on the suitability of the members. Additionally, the relevant national provision (31) that prohibits the appointment of persons employed by agencies whose rail infrastructure, workers or vehicles were involved in an accident or incident formally applies only to ad hoc members, as opposed to permanent ones.
81. With regard to the end of the term in office of the PKBWK’s members, Article 28a(11) foresees three events upon which a person’s membership of the PKBWK shall end: death, resignation or failure to comply with the conditions laid down in Article 28a(10). However, it is unclear whether Article 28a(11) is exhaustive, because Article 28a(6) to (9) envisages the dismissal of the PKBWK’s members by the Minister. Admittedly, it is only the Director who can be directly dismissed by the Minister. The other members can be dismissed by the Minister at the request of or on a proposal from the Director or the PKBWK.
82. It is rather unclear from the wording of those provisions whether the Minister can in practice freely dismiss the members of the PKBWK or whether he is bound by the requests or proposals made to this effect by the Director. However, in terms of guarantees of independence of the PKBWK and its members, this issue is a bit of a red herring: if the Minister has the power to dismiss the Director, at any time and at his discretion, how could that person ever provide any systemic guarantees (by not making the proposal or refusing his consent) against the dismissal of (or failure to dismiss) other members of the PKBWK?
83. Second, as far as internal rules are concerned, the Commission maintained that the Minister decisively shapes the organisation of the PKBWK by adopting those rules. Although the Republic of Poland argued at the hearing that those rules are elaborated by the investigating body itself, it is nonetheless the case, pursuant to Article 28d(4) of the Law on Rail Transport, that it is for the Minister to determine, by means of an order, the statute governing the PKBWK’s activities and organisational structure.
84. Third, some further doubts about the PKBWK’s organisational independence may derive from the arrangements in matters of financial and human resources. The Commission emphasises that the absence of its own resources does not allow the PKBWK to carry out its tasks. The obligation of the PKBWK to systematically request financial or human resources would considerably limit its organisational independence from the Minister.
85. I do not think that the issue of budgetary independence needs to be addressed in the present case. (32) The Commission did not put forward in its application to this Court that the Republic of Poland breached Article 21(2) of the Railway Safety Directive, which provides that the investigating body shall be able to obtain sufficient resources to perform its tasks independently. Although it could be suggested that that requirement could be read into organisational independence within the meaning of Article 21(1), it would appear to me that the previous two points discussed in this section already suffice to establish that the PKBWK is not independent in its organisation of the Minister.
(c) Decision-making
86. Finally, the Commission argues that the PKBWK lacks decision-making independence from the Minister because it does not act in its own name, but in the name of the Minister. Accordingly, it appears that it cannot take decisions on its own. According to the Commission, all measures taken by the PKBWK must have the approval of and be signed off by the Minister. That is a risk for the independence of the investigating body vis-à-vis the Minister.
87. Although I do not necessarily share all the criticisms raised by the Commission, there are clearly problematic elements in the current national legislative framework that translate into the lack of decision-making independence.
88. As follows from Article 28a(2) of the Law on Rail Transport, the PKBWK shall carry on its activities in the name of the Minister. Such a statement may very well be interpreted as implying that the Minister adopts the resolutions himself. The current practice could be, as argued by the Republic of Poland, that the Minister does not effectively influence or take part in the decision-making and that only PKBWK members adopt resolutions. However, the wording of Article 28a(2) suggests otherwise.
89. More importantly perhaps, as established at the hearing, the publication of PKBWK resolutions in the Official Journal of the Ministry can only be carried out following the signature of that document by the Minister. The latter is therefore clearly involved, perhaps not strictly speaking in the decision-making process, but certainly in making the resolution public. The ensuing discussion, also echoed at the hearing, of how far such a signature is a ‘mere formality’ and if, hypothetically, the Minister could refuse to sign and thus prevent publication, cannot obfuscate the significance of this fact: as already mentioned several times, information transparency and publicity, including the free circulation of the potential findings to the concerned public, is a strong element of the investigative independence expressly foreseen by the Railway Safety Directive. (33) Put simply, he who controls the distribution of the information owns the information.
90. Finally, the fact that, as argued by the Republic of Poland, Article 28a(1) of the Law on Rail Transport provides that the PKBWK shall carry on its activities independently, and that Article 28a(14) states that ‘members of the PKBWK … shall not be bound by any instruction as to the content of the resolutions passed’ is certainly a welcome and appropriate provision. However, seen in the context and against all the other problematic elements of the national legal framework discussed in this section, which clearly fall short of the requirements provided in Article 21(1) of the Railway Safety Directive, it is certainly not enough to remedy those other shortcomings as regards independence in organisation, legal structure and decision-making.
3. Conclusion
91. In view of the foregoing, the joint operation of all those individual factors discussed lead to the conclusion that the PKBWK effectively operates as a mere department of the Ministry of Transport, as opposed to an independent body within the meaning of the second sentence of Article 21(1) of the Railway Safety Directive. Therefore, the PKBWK fails to present the required elements of independence stated therein.
92. I would therefore suggest to the Court to declare that, by failing to adopt the necessary measures to guarantee the independence of the investigating body from the Minister responsible for transport, who controls the infrastructure manager and the railway undertaking, and is thus a party whose interests could conflict with the tasks of the investigating body, the Republic of Poland has failed to fulfil the requirements deriving from Article 21(1) of the Railway Safety Directive.
93. Two concluding remarks are called for.
94. First, as was clearly highlighted in the previous parts of this Opinion, the specific circumstances of the present case are characterised by a situation in which the investigating body is a part of a Ministry which, at the same time, also controls the infrastructure manager and the railway undertaking. Thus, very limited, if any, consequences can be drawn from such singular ‘functional trinity’ within one and the same public body for situations in which the Minister did not have such close ties with the infrastructure manager (and the railway undertaking). For a start, if there were no similar ties or no connection at all, the Minister per se could hardly be qualified as a ‘party whose interests could conflict with the tasks entrusted to the investigating body’ in the sense of Article 21(1) of the Railway Safety Directive.
95. Second, a common theme running like the proverbial fil rouge through this case, and in particular the defences submitted by the Republic of Poland in response to the lack of guarantees of independence of the PKBWK, could with some degree of simplification be paraphrased as ‘yes, indeed, the applicable national law in question says so, but in practice, it is actually done differently, it is in fact compliant with the requirements of the directive’. (34)
96. There is a twofold answer to this argument: specific and general. As far as the infringement procedure under Article 258 TFEU is concerned — and more specifically actions brought before this Court for failure to fulfil obligations under the Treaties concerning institutional guarantees of independence of administrative authorities — it has been clearly established that transposition of such guarantees by mere administrative practice will not be sufficient. (35) Without denying the importance of such practice, there must also be clear and visiblelegislative or regulatory provisions upstream that explicitly lay down specific arrangements ensuring that the kind and level of independence required by EU law will be attained.
97. That specific answer is, on a more systemic level, fully in line with the general understanding of institutional guarantees of independence. Such guarantees cannot, by definition, depend on the goodwill and good behaviour of the individual actors and the administrative practice of the day. They are supposed to be clearly and explicitly embedded in the legislative structure and to operate irrespective of the identity and intentions of the specific actors in question.
98. Without in any way underestimating the actual operation of the law in institutional practice and the paramount importance of the need for independence being internalised by the respective actors, correct transposition of such independence guarantees certainly cannot limit itself to the possibility that certain (positive) things could happen in practice. A correct transposition must guarantee that because of the institutional set up and safeguards in place, certain (less positive) things simply cannot happen.
V. Costs
99. With regard to the plea deriving from the breach of Article 21(1) of the Railway Safety Directive, under Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the Commission has applied for costs to be awarded against the Republic of Poland and the latter has been unsuccessful, the Republic of Poland must be ordered to pay the costs.
100. With regard to the plea deriving from the breach of Article 16(1) of the Railway Safety Directive, Article 141(1) and (2) of the Rules of Procedure provide that a party that discontinues or withdraws from proceedings shall be ordered to pay the costs if they have been applied for in the other party’s observations on the discontinuance. However, at the request of the party that discontinues or withdraws from proceedings, the costs shall be borne by the other party if this appears to be justified by the conduct of that party.
101. Without taking any, even an indirect, position on whether or not the Republic of Poland has complied with Article 16(1) of the Railway Safety Directive, the fact remains that the Republic of Poland only modified its legislation and notified the Commission following the commencement of legal proceedings by the Commission before this Court. Through its (in)action, the Republic of Poland has therefore obliged the Commission to also bring the latter plea. Since, in its reply which announced the discontinuation of this plea, the Commission also requested the costs of that plea to be awarded, it appears indeed to be justified for the Republic of Poland to bear the costs related to that plea as well.
VI. Conclusion
102. For the reasons outlined above, I propose that the Court should:
(1) declare that, by failing to adopt the necessary measures to guarantee the independence of the investigating body from the Minister responsible for transport, who controls the infrastructure manager and the railway undertaking, and is thus a party whose interests could conflict with the tasks of the investigating body, the Republic of Poland has failed to fulfil the requirements deriving from Article 21(1) of Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community’s railways and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification;
(2) order the Republic of Poland to bear the entirety of costs of the present proceedings.