April 23
2021
Trajan Shipley
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25th February 2021
Competition & State Aid Internal Market

AG Campos Sánchez-Bordona: access to services obligations under EU Railway Directive do not apply to the owner of the facility

Advocate General Campos Sánchez-Bordona has delivered his Opinion in case Latvijas dzelzceļš (C-60/20) advising the Court of Justice to rule that under Article 13 of EU Railway Directive 2012/34, a regulatory body may not oblige a service facility owner who is not the operator to provide mandatory access to services.

The case concerns the leasing out of a depot for its use as a repair and maintenance workshop for locomotives by (a) the manager of the public railway infrastructure in Latvia (LDz), owner of the depot, to (b) an undertaking active in the transport of goods by rail (Baltijas Ekspresis). 

LDz unilaterally terminated the agreement with Baltijas Ekspresis, following which Baltijas Ekspresis commenced legal proceedings before the national regulatory authority. In those proceedings, LDz was ordered to guarantee access to the depot, as a service facility, and to the services supplied there. 

The regulatory authority did so by classifying LDz as the operator of the service facility, although according to the Advocate General, it appears from the referring court’s order that in its view, LDz was not the operator of the facility, but merely its owner. The case concerns whether the obligations under Article 13 of the Directive on conditions of access to services apply to the owner of the facility, when it is not simultaneously the operator, on whether such owner may reconvert a service facility and on whether the regulatory authority may adopt measures to prevent that outcome.

In his Opinion, the Advocate General advises the Court to answer in the negative to the first question, noting that the obligations under Article 13(2) of the Directive apply to the service facility operator, not to the owner when it does not play any part in its management. He further reasons that Article 13(6) is not applicable to the case at issue, since the facility was used on a continuous basis and did not meet the criterion of non-use for at least two consecutive years.

The Advocate General added that, however, under the Directive, the right to ownership of service facilities does not automatically confer on its holders the power to use those facilities at their discretion, and that the regulatory authority is entitled to enforce the Directive’s provisions, even against the will of the owner of a service facility, where the facility had been made available to its operator, although not under Article 13.

The Opinion is available here.

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