Grounds
Operative part
Parties
In Case C-483/10,
ACTION for failure to fulfil obligations under Article 258 TFEU, brought on 6 October 2010,
European Commission, represented by H. Støvlbæk and R. Vidal Puig, acting as Agents, with an address for service in Luxembourg,
applicant,
v
Kingdom of Spain, represented by S. Centeno Huerta and B. Plaza Cruz, acting as Agents,
defendant,
supported by:
Czech Republic, represented by M. Smolek, T. Müller and J. Očková, acting as Agents,
French Republic, represented by G. de Bergues and M. Perrot, acting as Agents,
interveners,
THE COURT (First Chamber),
composed of A. Tizzano, President of the Chamber, A. Borg Barthet (Rapporteur), E. Levits, J.-J. Kasel and M. Berger, Judges,
Advocate General: N. Jääskinen,
Registrar: C. Strömholm, Administrator,
having regard to the written procedure and further to the hearing on 23 May 2012,
after hearing the Opinion of the Advocate General at the sitting on 6 September 2012,
gives the following
1By its application, the European Commission seeks a declaration from the Court that, by failing to bring into force the laws, regulations and administrative provisions necessary to comply with:
2Article 4 of Directive 91/440, which forms part of Section II of the directive, entitled ‘Management independence’, is worded as follows:
‘1. Member States shall take the measures necessary to ensure that as regards management, administration and internal control over administrative, economic and accounting matters railway undertakings have independent status in accordance with which they will hold, in particular, assets, budgets and accounts which are separate from those of the State.
2While respecting the framework and specific charging and allocation rules established by the Member States, the infrastructure manager shall have responsibilities for its own management, administration and internal control.’
3Recitals 11 to 13 and 34 in the preamble to Directive 2001/14 are worded as follows:
‘(11) The charging and capacity allocation schemes should permit equal and non-discriminatory access for all undertakings and attempt as far as possible to meet the needs of all users and traffic types in a fair and non-discriminatory manner.
(12) Within the framework set out by Member States charging and capacity-allocation schemes should encourage railway infrastructure managers to optimise use of their infrastructure.
(13) Railway undertakings should receive clear and consistent signals from capacity allocation schemes which lead them to make rational decisions.
…
(34) Investment in railway infrastructure is desirable and infrastructure charging schemes should provide incentives for infrastructure managers to make appropriate investments where they are economically attractive.’
4Article 4 of Directive 2001/14, entitled ‘Establishing, determining and collecting charges’, provides in paragraph 1 thereof as follows:
‘Member States shall establish a charging framework while respecting the management independence laid down in Article 4 of Directive 91/440/EEC.
Subject to the said condition of management independence, Member States shall also establish specific charging rules or delegate such powers to the infrastructure manager. The determination of the charge for the use of infrastructure and the collection of this charge shall be performed by the infrastructure manager.’
5Article 11 of Directive 2011/14, entitled ‘Performance scheme’, provides in paragraph 1 thereof as follows:
‘Infrastructure charging schemes shall through a performance scheme encourage railway undertakings and the infrastructure manager to minimise disruption and improve the performance of the railway network. This may include penalties for actions which disrupt the operation of the network, compensation for undertakings which suffer from disruption and bonuses that reward better than planned performance.’
6Article 13 of Directive 2001/14, entitled ‘Capacity rights’, provides in paragraph 2 thereof as follows:
‘The right to use specific infrastructure capacity in the form of a train path may be granted to applicants for a maximum duration of one working timetable period.
An infrastructure manager and an applicant may enter into a framework agreement as laid down in Article 17 for the use of capacity on the relevant railway infrastructure for a longer term than one working timetable period.’
7Article 14 of Directive 2001/14, entitled ‘Capacity allocation’, is worded in paragraph 1 thereof as follows:
‘Member States may establish a framework for the allocation of infrastructure capacity while respecting the management independence laid down in Article 4 of Directive 91/440/EEC. Specific capacity allocation rules shall be established. The infrastructure manager shall perform the capacity allocation processes. In particular, the infrastructure manager shall ensure that infrastructure capacity is allocated on a fair and non-discriminatory basis and in accordance with Community law.’
8Article 21 of Law 39/2003 on the Railway Sector (Ley 39/2003 del Sector Ferroviario) of 17 November 2003 (BOE No 276 of 18 November 2003, p. 40532) (‘the LSF’) sets out the powers and functions of the railway infrastructure manager, which include the collection of charges for the use of the infrastructure.
9Article 73(5) of the LSF provides that, in order to achieve effective operation of the public railway network, it is possible to take into account when setting the amount of railway charges factors reflecting the level of congestion of the infrastructure, the development of new rail transport services and the need to promote the use of under-utilised lines, while guaranteeing optimum competition between railway undertakings.
10Article 76(1) and (2) of the LSF provides as follows:
‘1. The administration of charges for use of the railway infrastructure shall be the responsibility of the infrastructure manager, who may, as regards the charge for the use of stations and other railway facilities, require the submission of any document necessary for the requisite assessments to be carried out.
2The detailed rules may be laid down on an individual or joint basis in accordance with the terms of the Ministerial Order approving the forms of assessment and establishing the periods within which and the means by which the amounts chargeable are to be collected.’
11Article 77(1) of the LSF provides that charges for the use of railway lines belonging to the public rail network and the charge for the use of stations and other railway facilities are to be set by ministerial order.
12Article 81(1)(j) of the LSF provides inter alia that the setting or, where appropriate, the amendment of the amount of charges for use of the railway infrastructure is the responsibility of the Ministry of Infrastructure and Transport.
13Articles 88 and 89 of the LSF classify certain types of conduct connected with disturbance of the operation of the network on the part of railway undertakings as serious, or very serious, offences for which penalties may be imposed.
14Royal Decree 2395/2004 of 30 December 2004 approving the Statutes of the Railway Infrastructure Manager, a public undertaking, (BOE No 315 of 31 December 2004, p. 42785) sets out, in an annex thereto, the text of the Statutes of that public undertaking (‘the ADIF’). Article 1 of the Statutes states that that undertaking is a public body, comparable to those classified as public undertakings in Article 43(1)(b) of Law 6 of 14 April 1997 on the organisation and operation of the general administration of the State. The ADIF is attached, by statute, to the Ministry of Infrastructure and Transport, which is responsible, in accordance with Article 43(2) of the abovementioned law, for the strategic management, evaluation and monitoring of the activities of that undertaking.
15Article 3(1) of the Statutes of the ADIF sets out the powers and functions of that public undertaking, which include the collection of charges for use of the railway infrastructure.
16Royal Decree 2396/2004 of 30 December 2004 approving the Statutes of the public undertaking RENFE-Operadora (BOE No 315 of 31 December 2004, p. 42797) provides that RENFE-Operadora is a public undertaking attached by statute to the Ministry of Infrastructure and Transport, which is responsible for the strategic management, evaluation and monitoring of its activities.
17Ministerial Order FOM/898/2005 of 8 April 2005 (BOE No 85 of 9 April 2005, p. 12331) sets the amount of charges for use of railway lines forming part of the public rail network and stations and other railway facilities.
18Article 11 of Ministerial Order FOM/897/2005 of 7 April 2005 concerning the declaration regarding the network and the procedure for allocating railway infrastructure capacity (BOE No 85 of 9 April 2005, p. 12324) (‘Ministerial Order 897/2005’), provides as follows:
‘The railway infrastructure manager shall allocate infrastructure capacity where applied for as follows:
…
(b) if there is more than one application for the same train path or if the network has been declared to be congested, the following priorities shall be taken into account in the allocation, in descending order:
1any priorities which may have been laid down by the Ministry of Infrastructure and Transport for the different types of service on each line, account being taken in particular of freight services.
…
4the allocation, and actual use by the applicant, under previous working timetables, of the trains paths use of which is sought.
…’
19On 15 June 2007, the Commission sent the Spanish authorities a questionnaire concerning the application of, inter alia, Directives 91/440 and 2001/14.
20Following an exchange of correspondence with the Spanish authorities, on 27 June 2008 the Commission sent to the Kingdom of Spain a letter of formal notice in which it expressed doubts regarding the compatibility of certain aspects of Spanish railway legislation with those directives.
21By letter of 16 October 2008, that Member State replied to the letter of formal notice. It also submitted additional information to the Commission by letter of 5 February and 13 July 2009.
22By letter of 9 October 2009, the Commission sent to the Kingdom of Spain a reasoned opinion in which it maintained that Spanish railway legislation did not comply with Directive 91/440 or Directive 2001/14 and requested it to take the measures necessary to comply with the opinion within two months of its notification. That Member State replied to that opinion by letter of 16 December 2009.
23Not being satisfied with the Kingdom of Spain’s response to the reasoned opinion, the Commission decided to bring the present action, which is based on five complaints.
24By orders of the President of the Court of 16 February and 8 September 2011, the Czech Republic and the French Republic, respectively, were granted leave to intervene in support of the form of order sought by the Kingdom of Spain.
25By document lodged at the Court Registry on 26 March 2012, the Commission informed the Court that, following the adoption by the Kingdom of Spain of Law 2/2011 on sustainable economy (Ley 2/2011 de Economía sostenible) of 4 March 2011 (BOE No 55 of 5 March 2011, p. 25033), it was withdrawing the third and fourth complaints, concerning Article 30(1) of Directive 2001/14 and Article 10(7) of Directive 91/440 respectively.
The action
26The Commission maintains that the Spanish legislation at issue does not comply with Article 4(1) of Directive 2001/14, in so far as the amount of the charges is set entirely by ministerial order, with the result that the only function allocated to the infrastructure manager, namely the ADIF, is the collection of charges. Indeed, the ADIF does no more than calculate the amount of the charge in each particular case, applying a formula established in advance and in detail by the ministerial authorities. That entity therefore has no discretion to adjust the amount of the charge in any individual case.
27According to the Commission, the Spanish legislation in question also fails to comply with the requirement relating to the management aut onomy of the railway infrastructure manager, since, by entrusting to the ministerial authorities alone the task of setting the amount of charges, it deprives the infrastructure manager of an essential management tool.
28The interpretation of the word ‘determination’ in the second subparagraph of Article 4(1) of Directive 2001/14 advocated by the Kingdom of Spain is, in the Commission’s view, excessively restrictive, in the light of both the usual meaning of that word and the requirement laid down in the first subparagraph of that provision that the management independence of the infrastructure manager be respected. Article 4 of Directive 2001/14 establishes that the determination of the charge for use of the infrastructure is the responsibility of the infrastructure manager and does not make any distinction between the various types of determination put forward by that Member State.
29The Commission is also of the view that the interpretation of Article 4(1) of Directive 2001/14 advocated by the Kingdom of Spain is incompatible with other provisions of that directive, which are invariably based on the premiss that the functions of the infrastructure manger are not confined to the assessment and collection of charges.
30The Kingdom of Spain states that the infrastructure charges have been defined as taxes. National legislation thus provides that they are taxes for which the chargeable event is the private use of the public railway domain. Thus, the essential elements of those charges should be regulated by statute and the specific amount of the charges set by a general administrative measure, that is, by ministerial order at the very least.
31The Kingdom of Spain states that the ADIF is a public undertaking which must necessarily, under national law, be answerable to a ministry and it is therefore not empowered to adopt statutory provisions, that power lying with the ministry having responsibility for it. Article 76 of the LSF entrusts the ADIF with the administration of such charges, which entails certain functions in respect of the monitoring, assessment and establishment of the charge payable in each individual case, as well as the collection of those charges. The ADIF may, in addition, propose to the Ministry of Infrastructure and Transport that other types of charges be introduced where a line or railway station is reclassified.
32The Kingdom of Spain is of the view that the word ‘determination’ in the second subparagraph of Article 4(1) of Directive 2001/14 does not necessarily entail the setting of the amount of charges. In its view, that provision should be construed as referring only to the establishment of the specific charge to be paid for use of the infrastructure in each individual case and the collection of that charge.
33Accordingly, Spanish legislation draws a distinction between, on the one hand, the general determination of the charges – by establishing the framework and scheme for levying such charges – and the determination of charging schemes for use of the infrastructure, which are the responsibility of the Minster for Infrastructure and Transport – and, on the other hand, the establishment of the specific charge to be paid in each individual case, which falls within the remit of the ADIF.
34On the basis of that distinction, the Kingdom of Spain contends that the interpretation which it advocates of Article 4(1) of Directive 2001/14 is compatible with the other provisions of the directive.
35The Kingdom of Spain also maintains that the interpretation proposed by the Commission would be difficult to reconcile with the framework of Spanish law as it currently stands, unless national administrative and tax legislation were to be radically altered.
36The Czech Government states that, when establishing the charging framework, Member States are required to ensure the ‘independent status of the transport undertakings’, not that of the entity responsible for rail infrastructure. It concludes from this that intervention by the Member State concerned by setting specific charges is acceptable in the light of the requirements of Directive 2001/14.
37By its first complaint, the Commission claims that the Spanish legislation at issue does not comply with Article 4(1) of Directive 2001/14 in so far as, first, it empowers the Ministry of Infrastructure and Transport to set the amount of charges by means of ministerial order, so that the sole task of the ADIF, the infrastructure manager, is to collect the charges and, second, it is incompatible with the requirement that the manager should be independent.
38In that regard, the Commission and the Kingdom of Spain do not agree as to the correct interpretation of the words ‘[t]he determination of the charge’ in the second subparagraph of Article 4(1) of Directive 2001/14. According to that Member State, those words refer only to the establishment of the actual charge to be paid for use of the infrastructure in each individual case, not the determination of the amount of charges on the basis of the charging framework established by the Member States. Indeed, in Spain such a charge is fiscal in nature and its determination is solely a matter for the State.
39Article 4(1) of Directive 2001/14 provides that the Member States are to establish a charging framework and may also establish specific charging rules, while respecting the management independence of the infrastructure manager. Under that provision, it is the latter’s responsibility, first, to determine the charge for use of the infrastructure and, second, to collect that charge.
40It is clear, first of all, that the second subparagraph of Article 4(1) of Directive 2001/14 simply refers to the ‘determination of the charge’, without further qualification and without drawing any distinction between different types or levels of determination of charges, unlike the provisions of the Spanish legislation at issue.
41Next, it should be noted that Article 4 of Directive 2001/14 establishes a division of powers as between Member States and infrastructure managers with regard to charging schemes: the Member States are to establish a charging framework, while the determination and collection of the charge are tasks to be performed by the infrastructure manager.
42In order to respect that division of powers, it is necessary, as observed by the Advocate General at point 45 of his Opinion, to assign to the word ‘determination’ a broader meaning than to the word ‘assessment’ used in Article 76(1) of the LSF. Assessment is merely a stage in the collection procedure, as pointed out by the Commission, and must therefore be regarded as being covered by the word ‘collection’ in the second sentence of the second subparagraph of Article 4(1) of Directive 2001/14.
43Lastly, that interpretation is supported by the objectives of Directive 2001/14 and the legislative context of Article 4(1) of the directive.
44First, one of the objectives pursued by the charging system established by Directive 2001/14 is to ensure the management independence of the infrastructure manager. In other words, the infrastructure manager must use the charging scheme as a management tool, as pointed out by the Advocate General at point 50 of his Opinion. Thus, recital 12 in the preamble to that directive states that charging and capacity-allocation schemes should encourage railway infrastructure managers to optimise use of their infrastructure within the framework established by the Member States. Those managers could not achieve such optimal use by means of the charging system if their role was confined to calculating the amount of the charge in each individual case, applying a formula established in advance by ministerial order. Infrastructure mangers must therefore be given a degree of flexibility in setting the amount of charges.
45Similarly, recital 34 in the preamble to Directive 2001/14 states that investment in railway infrastructure is desirable and infrastructure charging schemes should provide incentives for infrastructure managers to make appropriate investments where they are economically attractive. There can be no incentive for managers to invest in infrastructure unless the charging scheme affords them a certain degree of flexibility.
46Second, other provisions of Directive 2001/14 give support to a broader interpretation of the words ‘determination of the charge’ in the second subparagraph of Article 4(1) thereof than that advocated by the Kingdom of Spain. Indeed, Article 6(2) of the directive provides that the infrastructure manager is to be given incentives to reduce the costs of provision of infrastructure and the level of access charges. In accordance with Article 8(2) of the directive, the infrastructure manager may set or continue to set higher charges on the basis of the long-term costs of certain investment projects. Article 9 of the directive allows the infrastructure manager to introduce a system of discounts on the charges levied on operators.
47Similarly, it is apparent from Article 30(2) and (3) of Directive 2001/14 that decisions adopted by the infrastructure manager concerning the charging scheme or the level or structure of infrastructure fees may be the subject of an appeal before the regulatory body. The very fact that such decisions may be appealed against would be meaningless if the role of the manager was confined, as the Kingdom of Spain claims, to establishing the actual charge by applying a formula laid down in advance by ministerial order.
48Moreover, under the Spanish legislation at issue, it is the Ministry of Infrastructure and Transport which acts as the regulatory body. While it is true that Article 30(1) of Directive 2001/14 provides that the ministry responsible for transport matters may be designated as the regulatory body, that provision nevertheless requires that body to be independent of the charging body. That ministry cannot therefore be regarded as fulfilling its regulatory function in accordance with that provision if, at the same time as it performs its regulatory role, it also determines the amount of charges.
49It follows from the foregoing considerations that, in order to ensure that the objective of management independence of the infrastructure manager is attained, the latter must, within the charging framework established by the Member States, be given a degree of flexibility in determining the amount of charges so as to enable it to use that flexibility as a management tool.
50In the present case, it is apparent from the file before the Court that the ADIF does not enjoy the management independence necessary for the exercise of its powers since those powers are confined to establishing the specific charge in each individual case by applying a formula laid down in advance by ministerial order. It must therefore be concluded that, in that regard, the Spanish legislation in question does not comply with Article 4(1) of Directive 2001/14.
51That finding is not undermined by the difficulties which the Kingdom of Spain claims it encountered in adapting national legislation to the requirements of Article 4(1) of Directive 2001/14. According to the Court’s established case-law, a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify the failure to observe obligations or time-limits laid down in a directive (see, inter alia, Case C-369/07 Commission v Greece [2009] ECR I-5703, paragraph 45, and the judgment of 25 February 2010 in Case C-295/09 Commission v Spain , paragraph 10).
52In the light of all the foregoing, the first complaint relied on by the Commission in support of its action must be upheld.
53The Commission claims that Spanish legislation does not contain any measure capable of implementing Article 11 of Directive 2001/14, which provides for the establishment of a performance scheme.
54Articles 88 and 89 of the LSF, which classify certain infringements of railway legislation as ‘serious’ or ‘very serious’, do not form part of the ‘charging scheme’. The fines to which such infringements may give rise penalise railway undertakings, not the infrastructure manager.
55The Commission is also of the view that Article 73(5) of the LSF is not sufficient, in itself, to implement the performance scheme established in Article 11 of Directive 2001/14, since it provides only for the possibility of introducing such a scheme. The introduction of such a scheme is not a right the exercise of which is left to the discretion of the Member States but a requirement imposed by Directive 2001/14.
56The Commission also points out that at section 6.2.5 of the 2010 Statement on the Railway Network, entitled ‘Performance scheme measures’, the ADIF presents the introduction of an incentive scheme as a mere possibility, not a requirement imposed by Article 11 of Directive 2001/14.
57The Kingdom of Spain disputes the claims that its national legislation contains no provision transposing Article 11 of Directive 2001/14.
58In the first place, that Member State contends that Article 73(5) of the LSF provides that it is possible to take into account, when setting the amount of railway infrastructure charges, factors reflecting the level of congestion of the infrastructure, the development of new rail transport services and the need to promote the use of under-utilised lines, while at the same time guaranteeing, in any event, optimum competition between railway undertakings.
59In second place, Articles 88 and 89 of the LSF classify certain actions associated with disruption of the network as administrative offences which are penalised by the imposition of fines.
60In third place, the Kingdom of Spain argues that, in accordance with Section 6.2.5 of the 2010 Statement on the Railway Network, the ADIF seeks to provide incentives for railway undertakings which satisfy to a large extent the criteria applied when allocating infrastructure capacity. That section goes on to state, inter alia, that Article 11 of Directive 2001/14 also provides for the ‘possibility of encouraging’, by means of a performance scheme, a reduction in disturbances to a minimum, thus improving the operation of the rail network.
61In fourth place, the Kingdom of Spain submits that any railway undertaking which applies for and obtains a train path must pay a reservation charge at the time it is granted, prior to actual use of the path. Payment of that charge entails a commitment on the part of the railway undertaking to comply with the terms of use of the network applied for, on pain of forfeiting the charge paid.
62The French Republic argued at the hearing that Article 11 of Directive 2001/14 must be interpreted as setting an objective and imposing on Member States an obligation with regard to the means to be used in seeking to attain that objective. Like the Kingdom of Spain, it takes the view that that directive does not require that the measures adopted should necessarily form part of an independent performance scheme.
63Article 11 of Directive 2001/14 provides that infrastructure charging schemes are to encourage railway undertakings and the infrastructure manager to minimise disruption and improve the performance of the railway network by means of a performance scheme. That provision also states that the scheme may include penalties, compensation and bonuses.
64It follows from this, first, that the Member States must include in infrastructure charging schemes a performance scheme the purpose of which is to encourage both railway undertakings and the infrastructure manager to improve network performance. Second, as regards the types of incentive which may be introduced by the Member States, the latter remain free to choose the specific measures that are to form part of the scheme, provided such measures constitute a coherent and transparent whole which may be described as a ‘performance scheme’, as observed by the Advocate General at points 69 and 70 of his Opinion.
65For the purpose of examining whether the Commission’s second complaint is well founded, it is therefore necessary to determine whether the relevant Spanish legislative measures comply with the requirements of Article 11 of Directive 2001/14.
66As regards the possibility provided for in Article 73(5) of the LSF of taking account of factors relating to improvements in the network’s performance and the development of the network when setting the amount of charges, it is clear that, while that provision forms part of the charging scheme, the mere possibility of introducing a performance scheme is not sufficient for the purpose of implementing Article 11 of Directive 2001/14. Indeed, as established at paragraph 64 above, Article 11 requires Member States actually to set up a performance scheme as part of the charging scheme. Similarly, the Kingdom of Spain’s argument relating to the 2010 Statement on the rail network must be rejected on the same ground.
67It should be noted that the penalties provided for in Articles 88 and 89 of the LSF do not form part of the charging scheme, since they come under Title VII of the LSF, entitled ‘Rules on penalties and inspection’. Moreover, those penalties apply to certain infringements connected with disruption of the network committed only by railway undertakings, not by the infrastructure manager.
68Lastly, with regard to the reservation charge provided for under Spanish legislation, the possibility available to the infrastructure manager of levying such a charge for rail capacity that is requested but not used, as provided for in Article 12 of Directive 2001/14, has a more limited purpose than that of providing incentives to reduce disruption and improve performance of the network, that is to say, to use capacity efficiently.
69It follows from the foregoing considerations that the Commission’s second compliant must be upheld.
70The Commission claims that the priority for the allocation of infrastructure capacity established in Article 11(b)(1) of Ministerial O rder 897/2005 (‘the first allocation priority’) is contrary to Article 14(1) of Directive 2001/14 in so far as it is a matter left to the discretion of the Ministry of Infrastructure and Transport, whereas Article 14 provides that specific capacity allocation rules are to be established.
71The Commission also maintains that the priority for the allocation of infrastructure capacity established in Article 11(b)(4) of that ministerial order (‘the fourth allocation priority’) is, first, contrary to Article 13(2) of Directive 2001/14, in that it might lead in practice to a railway undertaking having the right to use a train path indefinitely, thus depriving of any practical effect the prohibition laid down in that provision whereby train paths may not be granted for more than one working timetable period.
72Second, the Commission considers that the fourth allocation priority does not comply with Article 14(1) of Directive 2001/14, in that might, in practice, prevent access to more attractive train paths for new entrants – generally undertakings established in Member States other than the Kingdom of Spain – and maintain advantages for the incumbent users – generally Spanish undertakings – which would be discriminatory.
73The Kingdom of Spain disputes that the first allocation priority is contrary to Article 14(1) of Directive 2001/14. It claims that the allocation criterion set out in that provision leaves open the possibility, in special or exceptional circumstances, for priority to be given to a type of service other than freight services in order to avoid congestion of the rail network. It states that on no occasion since the entry into force of Ministerial Order 897/2005 has the Ministry of Infrastructure and Transport availed itself of that possibility, which demonstrates that no discretion has been exercised in this matter.
74The Kingdom of Spain also disputes that the fourth allocation priority is contrary to Articles 13(2) and 14(1) of Directive 2001/14.
75The criterion set out in Article 11(b)(4) of the ministerial decree is only one of a number of criteria for allocating capacity when it is insufficient or when there is more than one application for the same train path. According to the Kingdom of Spain, that criterion involves rational and fair discrimination in so far as it is reasonable to take account of operators’ actual past use of capacity in order to optimise use of the rail network.
76That Member State refers to Article 22(4) of Directive 2001/14, which provides that where the infrastructure is congested, the priority criteria are to take account of the importance of a service to society, relative to any other service which will consequently be excluded.
77According to the Kingdom of Spain, Article 13(2) of Directive 2001/14 does not contain an absolute prohibition on an undertaking having indefinite use of a train path. That interpretation is supported by the fact that the second subparagraph of that provision states that framework agreements may be entered into for the use of capacity on the relevant railway infrastructure for a longer term than one working timetable period.
78In its reply, the Commission submits, with regard to the first allocation priority, that Article 11(b)(1) of Ministerial Order 897/2005 makes no reference to exceptional or specific circumstances such as those mentioned by the Kingdom of Spain. It adds that the very existence of the first priority constitutes in itself a source of legal uncertainty for operators.
79As regards the fourth allocation priority, the Commission argues that Article 12 of Directive 2001/14 makes express provision for infrastructure managers to levy a reservation charge in order to maximise the return on the operation of the railway system.
80The Commission states that Article 22 of Directive 2001/14 is applicable only where the infrastructure is congested, whereas Article 11(b)(4) of Ministerial Order 897/2005 is applicable not only in such cases but also generally, where there is more than one application for the same train path. In any event, none of the provisions in Article 22 allow Member States to adopt an allocation criterion such as the one to which the complaint under consideration relates.
81The Commission submits that the possibility of entering into framework agreements provided for in Article 13(2) of Directive 2001/14 is an exception to the general rule and reliance on that exception is subject to conditions laid down in Article 17 of that directive.
82In its rejoinder, the Kingdom of Spain contends, with regard to the first allocation priority, that while Article 14(1) of Directive 2001/14 does not expressly envisage the situation in which exceptional circumstances dictate that predetermined priorities must be changed, it does not preclude such a situation being taken into account.
83As regards the fourth allocation priority, that Member State is of the view that the fact that it possible to take comparable paths into consideration when taking account of past use adds an element of legal uncertainty, since no criteria are given for the comparability of such paths.
84First, with regard to the Commission’s arguments to the effect that the first allocation priority does not comply with Article 14(1) of Directive 2001/14, it should be recalled that Article 11(b)(1) of Ministerial Order 897/2005 provides that if there is more than one application for the same train path or if the network is congested, the Minister for Infrastructure and Transport may, if appropriate, establish allocation priorities for the different types of service on each line, taking account in particular of freight services.
85Article 14(1) of Directive 2001/14 expressly provides that specific capacity allocation rules are to be established by the Member States, which may also, under that provision, establish a framework for the allocation of capacity while respecting the management independence laid down in Article 4 of Directive 91/440.
86It should be noted that recital 13 in the preamble to Directive 2001/14 states that railway undertakings should receive clear and consistent signals from capacity allocation schemes which lead them to make rational decisions.
87It follows from this that the specific capacity allocation rules referred to in Article 14(1) of Directive 2001/14 cannot be construed as conferring a measure of discretion on the Ministry of Infrastructure and Transport for the purpose of allocating infrastructure capacity, as observed by the Advocate General at point 91 of his Opinion.
88That finding is supported by Article 20(2) of Directive 2001/14, which provides that the infrastructure manager alone may give priority to specific services, but only as set out in Articles 22 and 24 of the directive, relating to congested infrastructure and specialised infrastructure, respectively.
89It must therefore be found that Article 11(b)(1) of Ministerial Order 897/2005 does not comply with the requirement laid down in Article 14(1) of Directive 2001/14 for specific capacity allocation rules to be established.
90That finding is not called into question by the Kingdom of Spain’s interpretation of the first allocation priority, to the effect that it leaves open the possibility, in special or exceptional circumstances, for priority to be given to a type of service other than freight services. The wording of Article 11(b)(1) of Ministerial Order 897/2005 makes no reference to ‘special or exceptional circumstances’, the only criterion referred to in that provision being that requiring account to be taken in particular of freight services. Similarly, the fact that that provision has never been applied by the Ministry of Infrastructure and Transport does not mean that it is not open to it, in some circumstances, to establish additional allocation priorities under that provision. The mere existence of that first allocation priority constitutes in itself a source of legal uncertainty for operators, as pointed out by the Commission, and it cannot be regarded as complying with the requirement laid down in Article 14(1) of Directive 2001/14.
91Second, as regards the claim that the fourth allocation priority does not comply with Article 13(2) of Directive 2001/14, it should be noted in that regard that, in accordance with the first subparagraph of that provision, the maximum duration of use of specific infrastructure capacity in the form of a train path is one working timetable period. The second subparagraph of that provision provides that a railway undertaking may, under a framework agreement as provided for in Article 17 of the directive, use railway infrastructure capacity for a longer term than one working timetable period.
92As is apparent inter alia from recital 11 in the preamble to Directive 2001/14, one of the objectives of the directive is to permit equal and non-discriminatory access for all undertakings to the rail network. In the light of that objective, the purpose of the prohibition on the use of infrastructure capacity for longer than the one working timetable period laid down in the first subparagraph of Article 13(2) of Directive 2001/14 is to prevent an undertaking from having the right to use a train path indefinitely. However, the second subparagraph of that provision makes available an exception to that prohibition, where a framework agreement has been concluded between the infrastructure manager and the railway undertaking, as provided for in Article 17 of the directive.
93It is clear that the Spanish legislation in question, namely Article 11(b)(4) of Ministerial Order 897/2005, provides that, if there is more than one application for the same train path or if the network is congested, account is to be taken of the allocation, and actual use by the applicant, under previous working timetables, of the trains paths use of which is sought, without there being any requirement for a framework agreement to be concluded where such factors are to be taken into account.
94Furthermore, with regard to the Commission’s argument relating to the purportedly discriminatory nature of the fourth allocation priority, it should be recalled that Article 14(1) of Directive 2001/14 provides that the infrastructure manager is to ensure in particular that infrastructure capacity is allocated on a fair and non-discriminatory basis and in accordance with European Union law.
95It is clear, as the Kingdom of Spain itself also acknowledges, that the criterion based on actual use of the network, as criterion for the allocation of infrastructure capacity, is discriminatory in so far as it leads, where there is more than one application for the same train path or the network is congested, to advantages being maintained for the incumbent users and access to the most attractive train paths being denied to new entrants.
96The Kingdom of Spain justifies that discrimination on the ground that it pursues the objective of ensuring more efficient use of infrastructure.
97However, even if such an objective could justify the discriminatory nature of the fourth allocation priority, it is sufficient to point out that, in order to attain that objective, there is no need whatsoever for the measure in question to discriminate between network operators or to deny access to new entrants to the network.
98Directive 2001/14 contains specific provisions designed to provide incentives for the efficient use of infrastructure capacity while at the same time ensuring fair and non-discriminatory access to the rail network, as the Advocate General observed at point 97 of his Opinion. By way of example, Article 27(2) of the directive provides that it is possible for the infrastructure manager to specify conditions whereby it will take account of previous levels of utilisation of train paths in determining priorities for the capacity allocation process. In the same vein, Article 12 of the directive provides that the infrastructure manager may levy a reservation charge for capacity that has been requested but not used in order to provide incentives for efficient use of infrastructure capacity.
99Similarly, the discriminatory nature of the fourth allocation priority cannot be justified on the ground of its purported compliance with Article 22(4) of Directive 2001/14, which provides that, where the infrastructure is congested, the priority criteria are to take account of the importance of a service to society, relative to any other service which will be excluded. It is sufficient to point out in that regard that that provision does not allow for any allocation criterion such as that established by the fourth allocation priority, since, under the second subparagraph of that provision, where the infrastructure is congested, infrastructure capacity must be allocated ‘under non-discriminatory conditions’.
100It follows from the foregoing considerations that the fifth complaint must be upheld. The Commission’s action must therefore be upheld in its entirety.
101As a consequence, the Court finds that, by failing to bring into force the laws, regulations and administrative provisions necessary to comply with Articles 4(1), 11, 13(2) and 14(1) of Directive 2001/14, the Kingdom of Spain has failed to fulfil its obligations under those provisions.
102Under 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. Since the Commission has applied for costs to be awarded against the Kingdom of Spain and the latter has been unsuccessful, the Kingdom of Spain must be ordered to pay the costs. In accordance with Article 140(1) of the Rules of Procedure, the Czech Republic and the French Republic, which intervened in the proceedings, are to bear their own costs.
Operative part
On those grounds, the Court (First Chamber) hereby:
1Declares that, by failing to bring into force the laws, regulations and administrative provisions necessary to comply with Articles 4(1), 11, 13(2) and 14(1) of 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, as amended by Directive 2007/58/EC of the European Parliament and of the Council of 23 October 2007, the Kingdom of Spain has failed to fulfil its obligations under those provisions;
2Orders the Kingdom of Spain to pay the costs;
3Orders the Czech Republic and the French Republic to bear their own costs.
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