January 23
2022
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11th January 2022
Internal Market Justice & Litigation

Analysis: “Goods Platforms: Another Extension of the Scope of the Minimum Access Package?” by Patricia Perennes

Context

On 16 December 2021, Advocate General (AG) Campos Sánchez-Bordona issued his Opinion in CityRail (C-453/20).

In this case, the freight operator CityRail made an application asking the Czech transport infrastructure access authority (Úřad pro přístup k dopravní infrastruktuře, hereafter UPDI) to review a document entitled ‘Description of service facilities’ approved by the infrastructure manager (Správa železnic).

The UPDI referred to the Court of Justice its uncertainties about the interpretation of Directive 2012/34 regarding the nature of the facilities dedicated to the loading and unloading of goods (goods platforms). Are goods platforms a component of the railway infrastructure, and therefore part of the ‘minimum access package’ which guarantees the provision of services without which the transport operation could not take place? Or, on the contrary, are they service facilities? In the ‘Description of service facilities’, goods platforms were listed as service facilities.

This is the main question raised by the UPDI. It also raised secondary questions regarding how frequently the Správa železnic may change prices for the use of railway infrastructure and a more procedural question regarding whether the Správa železnic, as an entity under the control of the Czech State, is obliged to apply Directive 2012/34.

In his Opinion on the case, the AG first found that the request for a preliminary ruling is inadmissible because UPDI does not perform judicial functions, and he then turned to the main question.

The precedent of Westbahn Management

The issue at stake is very similar to the one raised in Westbahn Management (C-210/18). In that prior case, the question raised by the Austrian Railway Supervisory Commission was whether the passenger platforms were part of the railway infrastructure or rather of railway stations (and therefore service facilities).

AG Campos Sánchez-Bordona also issued an Opinion in Westbahn and was followed by the Court of Justice. He noted that Annex I to Directive 2012/34 states that railway infrastructure consists, in particular, of ‘passenger and goods platforms, including in passenger stations and freight terminals.’ Based on this Annex, the Court concluded that ‘it is thus clear from the actual wording of those provisions of Directive 2012/34 that the use of passenger platforms is covered by the minimum access package’ (judgment, paragraph 26).

The AG’s reasoning in CityRail is analogous: ‘The “goods platforms” referred to in Annex I to Directive 2012/34/EU (…) are a component of the railway infrastructure.’ (point 100).

Importance of the issue

The issue at stake is no trivial matter. Depending on the classification of goods platforms – rail infrastructure vs service facilities – their pricing strongly differs according to Article 31 of Directive 2012/34. Pursuant to paragraph 3 thereof, ‘the charges for the minimum access package (…)  shall be set at the cost that is directly incurred as a result of operating the train service’. On the contrary, paragraph 7 states that pricing of service facilities ‘shall not exceed the cost of providing it, plus a reasonable profit’. In other words, the classification of goods platforms may have significant financial consequences.

In addition, this classification also has consequences regarding access rights. Provision of access to rail infrastructure is mandatory because they are part of the minimum access package. On the contrary, in the case of service facilities, access can be denied if there are viable alternatives.

Potential consequences

As happened with Westbahn, the forthcoming judgment in CityRail may have important consequences across the EU. In Westbahn, written observations were submitted before the Court of Justice not only by the Austrian infrastructure manager, but also by the Polish and French Governments and by the European Commission. The ruling Westbahn ruling had an apparent impact on rail infrastructure pricing across Europe. For example, the French Infrastructure manager changed the pricing of passenger platforms in its 2020 Network Statement, in which explicit mention of the Westbahn ruling was made (see here).

The future judgement, if it follows the AG’s conclusions, should have similar impact on the pricing strategy of goods platforms of many European infrastructure managers.

 

Patricia Perennes is a rail expert, specialized in competition and regulation issues. She worked for SNCF Réseau and SNCF and is now Transport vice director at a French Regional Public Transport Authority.

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