OPINION OF ADVOCATE GENERAL
delivered on 7 June 2012 (1)
Westbahn Management GmbH
(Reference for a preliminary ruling from the Schienen‑Control Kommission (Austria))
(Railway transport – Concept of ‘court or tribunal’ – Obligation on the manager of railway infrastructure to supply to railway enterprises, in real time, information concerning the circulation of trains, and notably delays and cancellations on connecting services – Obligations of railway infrastructure managers under Directive 2001/14/EC – Obligations of railway undertakings under Regulation (EC) No 1371/2007 – Directive 91/440/EEC – Directive 2001/16/EC – Directive 95/46/EC)
I – Introduction
1. The order for reference from the Schienen‑Control Kommission, which is the Austrian administrative tribunal having jurisdiction over disputes in the liberalised railway transport sector, seeks clarification of the type of information that railway undertakings must supply to passengers under Article 8(2) of and Annex II, Part II, to Regulation (EC) No 1371/2007. (2) More specifically, it concerns whether passengers are entitled to ‘real time data’ on train timetabling, which provides up‑dated information on delays and cancellations concerning connecting services across the Austrian railway network during any given journey, and for all carriers, or whether Article 8(2) is limited to information concerning the published timetable, and delays and cancellations only of the carrier with whom a passenger is travelling.
2. If Article 8(2) of Regulation No 1371/2007 encompasses the above described ‘real time data’, the national court would further like to know whether there is a link between this duty, and those imposed on railway infrastructure managers under Article 5 of and Annex II to Directive 2001/14/EC. (3) This question arises in circumstances in which the ‘real‑time data’ a railway undertaking wishes to supply to passengers is held by a railway infrastructure manager, and the latter has declined to release it to the undertaking concerned.
3. The novelty of the dispute lies in the fact that this is the first opportunity that has been presented to the Court for providing guidance on the interpretation of Regulation No 1371/2007. (4) It is also the first time the Court has been asked to accept a preliminary reference from the Schienen‑Control Kommission. This therefore raises the preliminary issue, although it was uncontested in the proceedings, of whether the Schienen‑Control Kommission is a ‘court or tribunal’ for the purposes of Article 267 TFEU, and thus whether the order for reference is admissible.
II – Legal framework
A – Union law
4. Article 6(3) of Directive 91/440 on the development of the Community’s railways, as amended by Directive 2001/12/EC, (5) provides as follows;
‘Member States shall take the measures necessary to ensure that the functions determining equitable and non‑discriminatory access to infrastructure, listed in Annex II, are entrusted to bodies or firms that do not themselves provide any rail transport services. Regardless of the organisational structures, this objective must be shown to have been achieved.
Member States may, however, assign to railway undertakings or any other body the collecting of the charges and the responsibility for managing the railway infrastructure, such as investment, maintenance and funding.’
5. Article 1(1) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (6) under the heading ‘Object of the Directive’ provides;
‘In accordance with this Directive, Member States shall protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data.’
6. Recital 1 of Directive 2001/14 states as follows;
‘Greater integration of the Community railway sector is an essential element of the completion of the internal market and moving towards achieving sustainable mobility.’
7. Article 5(1) of Directive 2001/14 titled ‘Services’ provides;
‘Railway undertakings shall, on a non‑discriminatory basis, be entitled to the minimum access package and track access to service facilities that are described in Annex II. The supply of services referred to in Annex II, point 2 shall be provided in a non‑discriminatory manner and requests by railway undertakings may only be rejected if viable alternatives under market conditions exist. If the services are not offered by one infrastructure manager, the provider of the “main infrastructure” shall use all reasonable endeavours to facilitate the provision of these services.’
8. Annex II to Directive 2001/14 under the heading ‘Services to be supplied to the railway undertakings’ provides;
‘1. The minimum access package shall comprise:
(d) train control including signalling, regulation, dispatching and the communication and provision of information on train movement;
(e) all other information required to implement or operate the service for which capacity has been granted.
9. Article 1 of Directive 2008/57/EC of the European Parliament and of the Council of 17 June 2008 on the interoperability of the rail system within the Community (7) under the heading ‘Purpose and scope’ provides that;
‘1. This Directive sets out to establish the conditions to be met to achieve interoperability within the Community rail system in a manner compatible with the provisions of Directive 2004/49/EC. These conditions concern the design, construction, placing in service, upgrading, renewal, operation and maintenance of the parts of this system as well as the professional qualifications and health and safety conditions of the staff who contribute to its operation and maintenance.
2. The pursuit of this objective must lead to the definition of an optimal level of technical harmonisation and make it possible to:
(a) facilitate, improve and develop international rail transport services within the European Union and with third countries;
(c) contribute to the interoperability of the rail system within the Community.’
10. Recitals 1 to 5, 7 to 9, and 21 of Regulation No 1371/2007 on rail passengers’ rights and obligations state as follows:
‘(1) In the framework of the common transport policy, it is important to safeguard users’ rights for rail passengers and to improve the quality and effectiveness of rail passenger services in order to help increase the share of rail transport in relation to other modes of transport.
(2) The Commission’s communication “Consumer Policy Strategy 2002‑2006” sets the aim of achieving a high level of consumer protection in the field of transport in accordance with Article 153(2) of the Treaty.
(3) Since the rail passenger is the weaker party to the transport contract, passengers’ rights in this respect should be safeguarded.
(4) Users’ rights to rail services include the receipt of information regarding the service both before and during the journey. Whenever possible, railway undertakings and ticket vendors should provide this information in advance and as soon as possible.
(5) More detailed requirements regarding the provision of travel information will be set out in the technical specifications for interoperability (TSIs) referred to in Directive 2001/16/EC of the European Parliament and of the Council of 19 March 2001 on the interoperability of the conventional rail system.
(7) Railway undertakings should cooperate to facilitate the transfer of rail passengers from one operator to another by the provision of through tickets, whenever possible.
(8) The provision of information and tickets for rail passengers should be facilitated by the adaptation of computerised systems to a common specification.
(9) The further implementation of travel information and reservation systems should be executed in accordance with the TSIs.
(21) This Regulation should be without prejudice to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.’
11. Article 1(a) of Regulation No 1371/2007 entitled ‘Subject matter’ provides;
‘This Regulation establishes rules as regards the following:
(a) the information to be provided by railway undertakings, the conclusion of transport contracts, the issuing of tickets and the implementation of a Computerised Information and Reservation System for Rail Transport.’
12. Article 8 of Regulation No 1371/2007 entitled ‘Travel information’ provides;
‘1. Without prejudice to Article 10, railway undertakings and ticket vendors offering transport contracts on behalf of one or more railway undertakings shall provide the passenger, upon request, with at least the information set out in Annex II, Part I in relation to the journeys for which a transport contract is offered by the railway undertaking concerned. Ticket vendors offering transport contracts on their own account, and tour operators, shall provide this information where available.
2. Railway undertakings shall provide the passenger during the journey with at least the information set out in Annex II, Part II.
3. The information referred to in paragraphs 1 and 2 shall be provided in the most appropriate format. Particular attention shall be paid in this regard to the needs of people with auditory and/or visual impairment.’
13. Article 10(1) of Regulation No 1371/2007 entitled ‘Travel Information and reservation systems’ provides;
‘In order to provide the information and to issue tickets referred to in this Regulation, railway undertakings and ticket vendors shall make use of the CIRSRT, to be established by the procedures referred to in this Article.’ (8)
14. Article 18(1) of Regulation No 1371/2007 titled ‘Assistance’ provides that;
‘In the case of a delay in arrival or departure, passengers shall be kept informed of the situation and of the estimated departure time and estimated arrival time by the railway undertaking or by the station manager as soon as such information is available.’
15. Annex II to Regulation No 1371/2007 contains a list of the minimum information to be provided by railway undertakings and/or ticket vendors. According to this list, pre‑journey information should include ‘Time schedules and conditions for the fastest trip’ and ‘Time schedules and conditions for the lowest fares’. Information provided during the journey should include ‘On‑board services’, ‘Next station’, ‘Delays’, ‘Main connecting services’ and ‘Security and safety issues.’
B – National law
16. Article 54 of the Eisenbahngesetz (‘EisbG’) provides:
‘2. The provisions of the sixth part of the present law aim at assuring the economical and efficient use of railway lines in Austria
1. by establishing, on the railway transport market, equal and functional competition between railway transport enterprises on the principle railway lines and on the secondary lines connecting to other principle or secondary railway lines,
2. by encouraging the penetration of new transport enterprises in the market in railway transport,
3. by ensuring access to railway infrastructure to beneficiaries,
4. by keeping competition under review to protect the beneficiaries of access to the rail network from abuse of a dominant position.’
17. Article 58 of the EisbG provides;
‘(1) For the purpose of access to the railway infrastructure, the railway infrastructure undertaking shall make available, on a non‑discriminatory basis, to persons who are entitled to access, a minimum access package comprising the following services in addition to access:
2. train control including … the communication and provision of information on train movements;
3. the requisite communication and information system services, without which it is legally, economically and practically impossible for persons entitled to access to exercise their rights in this connection.
(4) For the purpose of access to the railway infrastructure, the railway infrastructure undertaking may make the following ancillary services available to those entitled to access, but it is not obliged to do so:
1. access to the telecommunications network which is more extensive than the access provided for under Paragraph 1(3);
2. provision of additional information; …’
III – The dispute in the main proceedings and the questions referred for a preliminary ruling
18. Westbahn Management GmbH (‘Westbahn Management’) wishes to provide passenger services on the Wien Westbahnhof (Vienna West Station) – Salzburg Hauptbahnhof (Salzburg Central Station) railway line. Westbahn Management was granted operational authorisation to provide this service by decision of the Federal Ministry of Transport, Innovation and Technology of 29 May 2009.
19. ÖBB Holding AG is the sole shareholder of ÖBB‑Infrastruktur AG, and ÖBB‑Personenverkehr AG. The former is the largest rail infrastructure manager in Austria and is responsible for managing most of the Austrian rail network, including the Vienna‑Salzburg line. It is also the defendant in the main proceedings. ÖBB‑Personenverkehr AG is the leading undertaking in the passenger‑transport services market in Austria, and the former holder of a State monopoly.
20. ÖBB‑Infrastruktur AG has at its disposal real‑time data on all trains operating on the Austrian rail network for which it is responsible. This real‑time data includes the current position of the train, and the arrival, transit, and departure times for the remainder of the journey. It also includes information such as unexpected delays and cancellations.
21. ÖBB‑Infrastruktur AG provides each individual railway undertaking with the real‑time data relating to their own trains, but not the real time data of other railway undertakings that operate on the Austrian railway network. However, real time data on all railway undertakings that operate on the network is displayed by ÖBB‑Infrastruktur AG on electronic notice boards at major stations.
22. Westbahn Management asked ÖBB‑Infrastruktur AG to make other railway undertakings’ real‑time data available to it, so that Westbahn Management would in future be able to inform its passengers of the current departure times of connecting services in the light of unexpected delays and cancellations. ÖBB‑Infrastruktur AG rejected that request by letter of 22 October 2010. It said that, in principle, it only discloses data pertaining to the railway undertaking making the request, and it advised Westbahn Management to reach an agreement with the various railway undertakings concerned, by which those undertakings would agree to the disclosure of their data.
23. However, no such agreement was reached between Westbahn Management and ÖBB‑Personenverkehr AG, with the latter refusing to conclude an agreement of this kind. In the light of this, Westbahn Management issued a complaint against ÖBB‑Infrastruktur AG before the Schienen‑Control Kommission in competition monitoring proceedings.
24. The Schienen‑Control Kommission found it necessary to refer the following questions to the Court of Justice of the European Union for a preliminary ruling pursuant to Article 267 TFEU:
‘1. Is Article 8(2) of, in conjunction with Annex II, Part II, to, Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations to be interpreted as meaning that information on main connecting services must include, in addition to scheduled departure times, notification of delays to or cancellations of those connecting services?
2. If the answer to Question 1 is in the affirmative: is Article 5 of, in conjunction with Annex II to, Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure [and safety certification] to be interpreted, in the light of Article 8(2) of, in conjunction with Annex II, Part II, to, Regulation (EC) No 1371/2007, as meaning that the infrastructure manager is under an obligation to make real‑time data on other railway undertakings’ trains available to railway undertakings in a non‑discriminatory manner, in so far as those trains constitute main connecting services within the meaning of Annex II, Part II, to Regulation (EC) No 1371/2007?’
25. Westbahn Management, ÖBB‑Infrastruktur AG, the Polish Government and the European Commission have submitted written observations. All except the Polish Government participated at the hearing of 21 March 2012.
IV – Analysis
A – Preliminary observations
1. Admissibility of the order for reference
26. According to the settled case‑law, in order to determine whether the body making a reference is a court or tribunal for the purposes of Article 267 TFEU, which is a question governed by EU law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedures are inter parties, whether it applies the rule of law and whether it is independent. (9)
27. In the request for a preliminary ruling, the Schienen‑Control Kommission has provided the Court with detailed information on the rules under which it was established, its composition, its decision making process, and its rules of procedure.
28. The Schienen‑Control Kommission was established, and permanently, under federal law and its jurisdiction, which is of a compulsory nature, covers settlement of disputes relating to railway markets enumerated in the relevant federal act. It consists of three members, each of whom have a deputy member. The Chairperson and Deputy Chairperson must be members of the judiciary appointed to the Schienen‑Control Kommission by the Federal Ministry of Justice. The other members and their deputies are appointed by the Federal Government. The members may not be ministers or secretaries of state of the Federal or Land Governments and they must be independent of any parties having a link to the activities of the Schienen‑Control Kommission.
29. The Schienen‑Control Kommission is bound by the general law on administrative procedure. Proceedings before the Schienen‑Control Kommission are inter partes and may take the form of a hearing to which witnesses and experts can be invited to attend. The decisions of the Schienen‑Control Kommission cannot be set aside by administrative decisions but are subject to judicial review by the Verwaltungsgerichtshof (Administrative Court).
30. The question of whether Austrian independent administrative tribunals are judicial in nature has arisen previously before the Court. (10) In the light of this case‑law, and the manner in which the Schienen‑Control Kommission has been established and functions that I have described above, it undoubtedly amounts to a ‘court or tribunal’ for the purposes of Article 267 TFEU. The Schienen‑Control Kommission is established by law, its members are independent, it applies rules of law, and it operates as an inter parties tribunal, with compulsory jurisdiction. (11) These factors are sufficient to satisfy the court’s case‑law under Article 267 TFEU.
2. Business secrets and data protection
31. In their written observations, Westbahn Management and ÖBB‑Infrastruktur AG disagree as to whether, as a matter of Austrian law, information concerning delays and cancellations of train services amount to business secrets. They also disagree as to whether such information is protected as personal data under both Austrian law and Directive 95/46.
32. With regard to the former issue, I will start by noting that it is beyond the competence of the Court to provide guidance on the meaning of national legal provisions. Therefore, given that the protection of business secrets is a general principle of EU law, (12) and the dispute to hand turns on the interpretation of EU legislation, the protection of business secrets under Austrian law is to be interpreted in conformity with EU law. (13)
33. In my opinion, information will only amount to a business secret under EU law if it comprises information about an undertaking’s business activity, disclosure of which could result in serious harm to the undertaking. (14) The information need also have a confidential quality to it. (15) This has been confirmed by the Court in ruling on the meaning of the related concept of the protection of confidential information, which further requires that the information in issue would, if released, ‘prejudice the legitimate commercial interests of particular undertakings’. (16) In my view, it cannot be ‘legitimate’ to withhold information, the availability of which the EU legislature considers necessary in the context of the liberalisation of railway services. (17)
34. In my opinion, information about train delays and cancellations is not confidential in nature, either with respect to the undertakings concerned or passengers. On the contrary, its accessibility is a condition for a well functioning rail transportation system, based on the plurality of service providers, and the interoperability of services and networks. ÖBB‑Infrastruktur AG displays it on screens in stations. As Westbahn Management has pointed out in its written observations, this information is not sensitive. Its release does not prejudice any ‘legitimate’ commercial interest of ÖBB‑Infrastruktur AG, given that the purpose of Directive 2001/14 is to open up railway networks to competition.
35. With regard to EU data protection law and information concerning train delays and cancellations, I would also adopt the arguments of Westbahn Management. That is, as is clear from the 11th recital and Articles 1 and 2, Directive 95/46 protects only personal data. (18) Personal data is defined in Article 2(a) of Directive 95/46 as ‘any information relating to an identified or identifiable natural person (“data subject”); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity’. The same is reflected in Article 8 of the EU Charter.
36. Information held by an undertaking on train delays and cancellation does not therefore attract this protection because it is not personal information. Equally, Article 39 TEU refers to ‘the protection of individuals with regard to the processing of personal data’, while Article 16(2) TFEU refers to ‘the protection of individuals’ in the context of the processing of personal data. Westbahn Management is not seeking information about passengers, and not even of the other service providers as such, but simply on the issue of whether the scheduled connecting services are in fact available.
B – The first preliminary question
37. By its first question, the Schienen‑Control Kommission wishes to know whether, under Article 8(2) of Regulation No 1371/2007, a railway undertaking is obliged to put at the disposal of passengers who are in the course of making a journey information concerning delays and cancellations of connecting trains, and in particular those of other railway enterprises.
38. The objectives of Regulation No 1371/2007, which guide the interpretation of Article 8(2), are summarised in the recitals. In the framework of the common transport policy, it is important to safeguard users’ rights for rail passengers and to improve the quality and effectiveness of rail passenger services (recital 1). A high level of consumer protection must also be attained (recital 2), and the passenger, as the party in the weaker position under the contract, is to have his or her rights safeguarded (recital 3). This includes the right to obtain information concerning rail journeys both before they commence and while they are being taken, and, wherever possible, as soon as possible (recital 4).
39. Further, as can be understood from recitals 5, 8 and 9 of Regulation No 1371/2007, the regulation equally seeks to facilitate access to this information on a cross border scale. This end is also served by the establishment of conditions aimed at promoting the inter‑operability of national systems and transposing European standards that is envisaged in Directive 2008/57 and particularly Article 1 thereof. The predecessor directive to Directive 2008/57, namely Directive 2001/16, is referred to in recital 5 of Regulation No 1371/2007, (19) and in the context of travel information. This scheme seeks to encourage rail journeys across Europe by recourse to multiple carriers. The availability of information concerning unscheduled delays and cancellations is central to achieving this objective.
40. A narrow interpretation of the provisions of Annex II, Part II, to Regulation No 1371/2007 concerning the information to be provided during a railway journey would limit the information to which passengers are entitled, with respect to main connecting services, to the departure times described in the timetable. However, such an interpretation would be contrary to the interests of passengers and would prevent the achievement of the objectives of Regulation No 1371/2007, among which include, in the case of late arrivals or departures, the right to be informed of them by the railway undertaking or the station manager, and as soon as such information is available (see, in addition to recital 4, Article 18(1) of Regulation No 1371/2007).
41. Further, as has been pointed out in the written observations of the Commission, a contrary interpretation would mean that only the scheduled timetable of main connecting services would have to be communicated to passengers during the voyage. This information would be useless if there have been delays or cancellations in the course of the journey. As was pointed out by the Polish Government, the information provided during the journey cannot be a mere repetition of the information that has to be provided before it.
42. The EU legislature has drawn a distinction, in Article 8 of Regulation No 1371/2007 between the information passengers are entitled to before a journey commences (see Article 8(1) and Part I of Annex II) and the information to which they are entitled during a voyage (Article 8(2) and Part II of Annex II). If the content of the information required before a journey were not interpreted as being static, and the information during the journey as dynamic, the distinction drawn by the EU legislature between pre‑journey information and during‑journey information would make no sense. The information that a passenger needs before and during a journey are not generally the same.
43. Annex II, Part I, to Regulation No 1371/2007 makes specific reference to any ‘activities likely to disrupt or delay services’. As the Polish Government has pointed out, it would weaken the rights of travellers, in breach of the objective of Regulation No 1371/2007, which is to provide a high level of consumer protection (see recital 2) if delays and cancellations fell outside these ‘activities’. It would be further contrary to the objectives of Regulation No 1371/2007 if this information was deliberately delayed until a passenger reached a station at which they wished to board a connecting train, and saw, for the first time, on a display screen that it had been delayed.
44. The Commission has also pointed out in its written observations that a narrow interpretation of the information to which passengers are entitled would impede the transfer of passengers, and thus frustrate the purpose of Article 9(1) of Regulation No 1371/2007, and recital 7, which aim to encourage the purchase of through tickets. Article 9(1) provides that railway ‘undertakings and ticket vendors shall offer, where available, tickets, through tickets and reservations’ while recital 7 adds that the provision of through tickets will ‘facilitate the transfer of rail passengers from one operator to another’. I agree with the Commission’s argument. Such discouragement would be inconsistent with the aims of the common transport policy, which is referred to in recital 1 of Regulation No 1371/2007, and would lead to passenger preferencing of larger railway undertakings that cover all sectors of a journey, and which were therefore able to provide comprehensive information throughout it.
45. Finally, at the hearing ÖBB‑Infrastruktur AG made reference to the difficulties in selecting real time data concerning connecting trains that would be useful to an undertaking such as Westbahn Management. It was suggested that it would be impossible for ÖBB‑Infrastruktur AG to select the relevant real time data from the information that it holds; transferring all of it would swamp Westbahn Management and render the information useless.
46. Here it is sufficient to note that the obligation to supply information that is imposed by Article 8(2) of and Annex II, part II, to Regulation No 1371/2007 is limited to main connecting services. Such an interpretation complies with the principle of proportionality, and ÖBB‑Infrastruktur AG can find guidance on the manner of communicating real time data on delays and cancellations across the rail network by virtue of Article 8(3) of Regulation No 1371/2007. It provides that information referred to in Articles 8(1) and (2) ‘shall be provided in the most appropriate format’. As the Commission has observed, this means that ÖBB‑Infrastruktur AG has to be judicious in its selection of information, and ensure that the information released is useful to passengers. This is further refined by Article 18 of Regulation No 1371/2007, which designates information concerning ‘delay in arrival or departure’ as information of which passengers ‘shall be kept informed’, and ‘as soon as such information is available’. It is to be provided by ‘the railway undertaking or by the station manager’.
C – The second preliminary question
47. By its second question, the Schienen‑Control Kommission essentially wishes to know whether a railway infrastructure manager has an obligation to communicate to railway undertakings real time data concerning the main connecting services of other rail transport providers.
48. The question therefore concerns whether there is a correlating obligation on a rail infrastructure manager, under Directive 2001/14, to make information available to railway undertakings that the latter are bound to supply under Article 8(2) of Regulation No 1371/2007.
49. I would answer this question in the affirmative. As was argued by the Polish Government, Directive 2001/14 cannot be interpreted in such a way as to impede the objectives envisaged under Regulation No 1371/2007.
50. In any event, as the Commission pointed out in its written observations, Article 5 of Directive 2001/14 provides railway undertakings with an entitlement, on a non‑discriminatory basis, to the minimum access package and track access to service facilities that are described in Annex II to Directive 2001/14. Under Annex II, point 1(d), to Directive 2001/14, this includes ‘the communication and provision of information on train movement’.
51. Moreover, Annex II, point 1(d), is to be read in conjunction with point 1(e) of Annex II to Directive 2001/14 which entitles railway undertakings to ‘all other information required to implement or operate the service for which capacity has been granted’.
52. The wording of these provisions points towards an interpretation according to which rail undertakings like Westbahn Management are entitled to real time data. Greater integration of the Union railway sector is an essential element of the completion of the internal market (see recital 1 of Directive 2001/14). In the light of this objective, point 1(e) of Annex II to Directive 2001/14 must be interpreted broadly, and so as to encompass all types of information that is necessary to provide railway services, and which can only be obtained from the infrastructure manager.
53. Real time data is ‘required’ by Westbahn Management in order to comply with its obligations under Regulation No 1371/2007, and to provide a competitive service. Further, both the position of ÖBB‑Personenverkehr AG, as market leader in the provision of railway services, and its relationship with ÖBB‑Infrastruktur AG, as a member of the same group of companies, is relevant to the assessment of the information that is ‘required’ by Westbahn Management ‘to implement or operate’ a railway service. In practical terms, this plainly includes real time data, so that Westbahn Management can compete effectively on the market.
54. A broad interpretation of what is ‘required’, of the kind I am here advocating, is particularly appropriate in the light of the manner in which the railway sector has been re‑organised in Austria as a consequence of liberalisation. This issue is linked with the alleged lack of independence of ÖBB‑Infrastruktur AG from the market leader ÖBB‑Personenverkehr AG. The Court will consider this question in the pending Case C‑555/10 Commission v Austria.
55. I would also query whether, in light of the fact that ÖBB‑Infrastruktur AG and ÖBB‑Personenverkehr AG belong to the same group of companies, the information being supplied by ÖBB‑Infrastruktur AG , as the infrastructure manager, is being supplied on a non‑discriminatory basis. As pointed out at the hearing by Westbahn Management, passengers travelling with ÖBB‑Personenverkehr AG will receive a better service than those travelling with Westbahn Management. ÖBB‑Personenverkehr AG passengers will receive real time data on unscheduled delays and cancellations of ÖBB‑Personenverkehr AG trains, which form the main bulk of railway services, while those travelling with Westbahn Management will not.
V – Conclusion
56. On the basis of these reasons, I would propose answering the preliminary questions referred by the Schienen‑Control Kommission as follows.
(1) Article 8(2) of, in conjunction with Annex II, Part II, to, Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations is to be interpreted as meaning that information on main connecting services must include, in addition to scheduled departure times, notification of delays to or cancellations of those connecting services.
(2) Article 5 of, in conjunction with Annex II to, Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure [and safety certification] is to be interpreted, in the light of Article 8(2) of, in conjunction with Annex II, Part II, to Regulation No 1371/2007, as meaning that the infrastructure manager is under an obligation to make real‑time data on other railway undertakings’ trains available to railway undertakings in a non‑discriminatory manner, in so far as those trains constitute main connecting services within the meaning of Annex II, Part II, to Regulation No 1371/2007.
1 – Original language: English.
2 – Regulation of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations (OJ 2007 L 315, p. 14).
3 – Directive of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (OJ 2001 L 75, p. 29) as amended by Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community’s railways (OJ 2004 L 164, p. 44). The title of Directive 2001/14 was amended by Article 30 of Directive 2004/49 to read: ‘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’.
4 – There have been a series of cases concerning Directive 2001/14, but all of them have concerned the failure to transpose the Directive within the prescribed period, and have been brought by the Commission in the context of Article 258 TFEU. Moreover, there is a case pending against Austria in which Austria’s transposition of both Directive 2001/14 and Council Directive 91/440/EEC of 29 July 1991 on the development of the Community’s railways (OJ 1991 L 237, p. 25) has been called into question by the Commission, particularly from the perspective of the independence of the defendant in the main proceedings as the infrastructure manager in Austria (see Case C‑555/10 Commission v Austria). I will address the significance of this below.
5 – Directive of the European Parliament and of the Council of 26 February 2001 amending Council Directive 91/440/EEC on the development of the Community’s railways (OJ 2001 L 75, p. 1).
6 – OJ 1995 L 281, p. 31.
7 – OJ 2008 L 191, p. 1. Article 40 of Directive 2008/57 repealed Directive 2001/16/EC of the European Parliament and of the Council of 19 March 2001 on the interoperability of the trans‑European conventional rail system (OJ 2001 L 110, p. 1) with effect from 19 July 2010.
8 – CIRSRT is the initialism for Computerised Information and Reservation System for Rail Transport.
9 – Case C‑205/08 Umweltanwalt von Kärnten  ECR I‑11525, paragraph 35; Case 61/65 Vaassen‑Göbbels v Beambtenfonds voor het Mijnbedrijf  ECR 261; Joined Cases C‑9/97 and C‑118/97 Jokela and Pitkäranta  ECR I‑6267, paragraph 18; Case C‑195/06 Österreichischer Rundfunk  ECR I‑8817, paragraph 19; Case C‑506/04 Wilson  ECR I‑8613, paragraph 48.
10 – See e.g. Umweltanwalt von Kärnten and the detailed observations of Advocate General Ruiz‑Jarabo Colomer in that case. See also the Opinion of Advocate General Ruiz‑Jarabo Colomer in Case C‑393/06 Ing. Aigner  ECR I‑2339, where the Advocate General concluded that the Vergabekontrollsenat of Vienna was not a ‘court or tribunal’ for the purposes of Article 267 TFEU, and his Opinion in Österreichischer Rundfunk, where Advocate General Ruiz‑Jarabo Colomer took the view that the Bundeskommissionssenat of Austria was not a court or tribunal. The Court followed neither opinion, and answered the questions referred under Article 267 TFEU.
11 – See Umweltanwalt von Kärnten, paragraph 35; Vaassen‑Göbbels v Beambtenfonds voor het Mijnbedrijf, p. 273; Jokela and Pitkäranta, paragraph 18; Österreichischer Rundfunk, paragraph 19; Wilson, paragraph 48.
12 – Case C‑1/11 Interseroh Scrap and Metals Trading  ECR I‑0000, paragraph 43; Case C‑450/06 Varec  ECR I‑581, paragraph 49 and the case‑law cited. Under Article 339 TFEU the members of the institutions of the Union, the members of committees, and the officials and other servants of the Union shall be required, even after their duties have ceased, not to disclose information of the kind covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their cost components.
13 – While the EU Charter of Fundamental Rights makes no express reference to the protection of business secrets, it includes, in Article 16, the freedom to conduct a business. Further, Article 7 protects private and family life, as the Court has held that the notion of ‘private life’ in Article 7 ‘cannot be taken to mean that the professional or commercial activities of either natural or legal persons are excluded’. See Varec, paragraph 48, and Joined Cases C‑92/09 and C‑93/09 Volker und Markus Schecke and Eifert  ECR I‑0000, paragraph 59.
14 – Case T‑353/94 Postbank v Commission  ECR II‑921, paragraph 87.
15 – Postbank v Commission, paragraph 68, where the Court of First Instance observed that undertakings are entitled to the protection of non‑disclosure of ‘confidential information, and in particular business secrets’.
16 – Varec, paragraph 38.
17 – As has been observed in one leading commentary, information ‘which is already known outside the undertaking will not normally be considered confidential’. See Bellamy, C., and Child, G.: European Community Law of Competition, Oxford University Press, 2007, p. 737, footnote 555.
18 – This is as evident from the text of Directive 95/46 as it is from the leading cases interpreting it. See e.g. Joined Cases C‑465/00, C‑138/01 and C‑139/01 Österreichischer Rundfunk and Others  ECR I‑4989; Case C‑73/07 Satakunnan Markkinapörssi and Satamedia  ECR I‑9831; Volker und Markus Schecke and Eifert, paragraphs 52 and 53.
19 – Pursuant to Article 40 of Directive 2008/57, reference to ‘the repealed Directives’, which includes Directive 2001/16 ‘shall be construed as references to this Directive and shall be read in accordance with the correlation table set out in Annex XI’.