1.

This reference for a preliminary ruling has arisen in proceedings in which the dispute concerns the supervisory powers of the German regulatory body ( 2 ) with regard to decisions of the infrastructure manager concerning the charges payable by railway undertakings. Some of those undertakings unsuccessfully requested the regulatory body to order the infrastructure manager to reimburse charges which they considered to have been wrongly paid.

2.

The court required to adjudicate on the dispute has asked the Court of Justice to interpret a number of provisions of Directive 2012/34/EU, ( 3 ) relating to the powers of national regulatory authorities for the railway sector.

3.

In accordance with Article 3 (‘Definitions’):

‘For the purpose of this Directive, the following definitions apply:

…

…

…

…’

4.

Article 55 (‘Regulatory body’) provides:

‘1.   Each Member State shall establish a single national regulatory body for the railway sector. …

…’

5.

Article 56 (‘Functions of the regulatory body’) reads:

‘1.   Without prejudice to Article 46(6), an applicant shall have the right to appeal to the regulatory body if it believes that it has been unfairly treated, discriminated against or is in any other way aggrieved, and in particular against decisions adopted by the infrastructure manager or where appropriate the railway undertaking or the operator of a service facility concerning:

…

…

2.   Without prejudice to the powers of the national competition authorities to secure competition in the rail services markets, the regulatory body shall have the power to monitor the competitive situation in the rail services markets, including in particular the market for high-speed passenger services, and the activities of infrastructure managers in relation to points (a) to (j) of paragraph 1. In particular, the regulatory body shall verify compliance with points (a) to (j) of paragraph 1 on its own initiative and with a view to preventing discrimination against applicants. It shall, in particular, check whether the network statement contains discriminatory clauses or creates discretionary powers for the infrastructure manager that may be used to discriminate against applicants.

…

6.   The regulatory body shall ensure that charges set by the infrastructure manager comply with Section 2 of Chapter IV and are non-discriminatory. Negotiations between applicants and an infrastructure manager concerning the level of infrastructure charges shall only be permitted if these are carried out under the supervision of the regulatory body. The regulatory body shall intervene if negotiations are likely to contravene the requirements of this Chapter.

…

9.   The regulatory body shall consider any complaints and, as appropriate, shall ask for relevant information and initiate consultations with all relevant parties, within 1 month from the receipt of the complaint. It shall decide on any complaints, take action to remedy the situation and inform the relevant parties of its reasoned decision within a pre-determined, reasonable time, and, in any case, within 6 weeks from receipt of all relevant information. Without prejudice to the powers of the national competition authorities for securing competition in the rail service markets, the regulatory body shall, where appropriate, decide on its own initiative on appropriate measures to correct discrimination against applicants, market distortion and any other undesirable developments in these markets, in particular with reference to points (a) to (j) of paragraph 1.

A decision of the regulatory body shall be binding on all parties covered by that decision, and shall not be subject to the control of another administrative instance. The regulatory body shall be able to enforce its decisions with the appropriate penalties, including fines.

…’

6.

Annex VII (‘Schedule for the allocation process’) reads:

…’

7.

Paragraph 66 (‘The regulatory authority and its functions’), provides:

‘(1)   Where the holder of an access permit considers that it has been discriminated against or that its rights have been otherwise infringed by the decisions of a railway infrastructure manager, it shall be entitled to appeal to the regulatory authority ….

…

(3)   If no agreement concerning access or concerning a framework contract is reached, the decisions of the railway infrastructure manager may be reviewed by the regulatory authority, on application by an access permit holder or of its own motion. The application must be lodged within a period during which … the offer to conclude agreements may be accepted.

(4)   The following may, inter alia, be reviewed by the regulatory authority on application or of its own motion:

…

…’

8.

Paragraph 67 (‘Powers of the regulatory authority, supervision of the transport market, rules on enforcement’) stipulates:

‘(1)   The regulatory authority may adopt, with respect to railways and other persons subject to this Law, the measures necessary to eliminate or prevent infringements of this Law or European Union acts that are directly applicable within the scope of this Law. …

…’

9.

Paragraph 68 (‘Decisions of the regulatory authority’) states:

‘(1)   The regulatory authority shall examine a complaint within one month of receipt of that complaint. To that end, it shall request the interested parties to provide the information needed for the adoption of decisions and shall hold conversations with all interested parties. The regulatory authority shall adopt a decision on all complaints and the measures needed to remedy the situation, notifying its reasoned decision to the parties concerned within a predetermined, reasonable period and, in any event, within six weeks of receipt of all the relevant information. Without prejudice to the powers of the competent authorities, the regulatory authority shall decide of its own motion on the appropriate measures to prevent discrimination and distortion of the market.

(2)   Where, in the situation referred to in subparagraphs 1 and 3 of Paragraph 66, the decision of a railway infrastructure manager affects the holder of a right of access to the railway infrastructure:

The decision referred to in the first sentence may also refer to the statement on the rail network or the conditions of use of the service facilities.

(3)   The regulatory authority may, with prospective effect, require the railway infrastructure manager to amend the measures provided for in Paragraph 66(4), or to declare that they have expired, to the extent that they are incompatible with the provisions of this Law or with the European Union acts that are directly applicable within the scope of this Law.’

10.

Between 2002 and 2011, DB Netz AG, ( 5 ) manager of part of the German railway infrastructure, set the infrastructure access charges for each working timetable period.

11.

Länderbahn GmbH DLB, Prignitzer Eisenbahn GmbH, Ostdeutsche Eisenbahn and Ostseeland Verkehrs GmBH (‘the applicants’) are railway undertakings which use the infrastructure managed by DB Netz.

12.

The applicants disagreed that it was appropriate to apply a ‘regional factor’ which formed part of the tariff elements for the use of the DB Netz’s infrastructure. The applicants argued that the charges set by DB Netz were, in part, unlawful, because the ‘regional factor’ was discriminatory to undertakings which operated regional lines. ( 6 ) Accordingly, they either paid the charges claimed subject to reservations or withheld payment.

13.

On 5 March 2010, in its review of the charges approved by DB Netz, the Bundesnetzagentur adopted a decision in which: ( 7 )

14.

On 9 November 2017, the Court of Justice gave the judgment in CTL Logistics, ( 9 ) in which, after examining the German legislation, ( 10 ) it held that Directive 2001/14/EC, ( 11 ) the predecessor of Directive 2012/34, ‘[precludes] the application of national legislation … which provides for a review of the equity of charges for the use of railway infrastructure, on a case-by-case basis, by the ordinary courts and the possibility, if necessary, of amending the amount of those charges, independently of the monitoring carried out by the regulatory body’.

15.

Relying on the judgment in CTL Logistics, the applicants applied to the Bundesnetzagentur for a declaration that the charges approved for the 2003 to 2011 working timetables were invalid and an order requiring DB Netz to reimburse the overpaid charges.

16.

The Bundesnetzagentur, by substantially identical decisions of 11 October 2019, 3 July 2020 and 11 December 2020, dismissed the applications submitted by the applicants. It took the view that there was no legal basis for the claim that it should conduct an ex post review, since the railway undertakings only had the right to challenge the charges while they were in force.

17.

By actions lodged on 6 and 9 November 2019, the applicants applied to the Verwaltungsgericht Köln (Administrative Court, Cologne, Germany) for a declaration that the Bundesnetzagentur is required to conduct an ex post review which would enable it to declare that the charges at issue are invalid with effect ex tunc and to compel DB Netz to reimburse those charges.

18.

Before ruling on the form of order sought by the applicants, that court needs to know, in short:

19.

Against that background, the Verwaltungsgericht Köln (Administrative Court, Cologne) has referred five questions for a preliminary ruling. As directed by the Court of Justice, I shall propose answers to the first four of those questions, which are worded as follows:

20.

The request for a preliminary ruling was received at the Registry of the Court on 2 September 2022.

21.

Written observations were lodged by Prignitzer Eisenbahn GmbH, Ostdeutsche Eisenbahn and Ostseeland Verkehrs GmBH (jointly), DB Netz, the German, Lithuanian, Norwegian and Polish governments, and the European Commission.

22.

At the hearing, held on 15 June 2023, oral argument was presented by Prignitzer Eisenbahn (also representing Ostdeutsche Eisenbahn and Ostseeland Verkehr), DB Netz, the German, Austrian and Polish governments and the Commission.

23.

The referring court proceeds on the basis that Directive 2012/34 is applicable and therefore requests an interpretation of Article 56(1), (6) and (9) thereof.

24.

However, the charges at issue in the dispute, relating to the period 2003-2011, were set and levied when its predecessor, Directive 2001/14, was in force, and therefore it could be asserted that that directive must apply ratione temporis. ( 12 )

25.

In any event, Article 56(1), (6) and (9) of Directive 2012/34 correspond to the less detailed provisions of Article 30(2), (3) and (5) of Directive 2001/14. ( 13 ) That is why, as all the parties confirmed at the hearing, there is no reason not to focus attention on Article 56 of Directive 2012/34, as the referring court requests.

26.

The order for reference cites the judgment in CTL Logistics, to which it refers repeatedly, and the judgment of 8 July 2021, Koleje Mazowieckie. ( 14 ) At the time of submission of the request for a preliminary ruling, the Court had not yet given judgment in DB Station.

27.

Frequent references to that judgment, which was delivered on 27 October 2022, have been made by some of the parties and interveners in the proceedings, who have concluded from it that it provides an answer to a number of the questions referred for a preliminary ruling in this case. ( 15 )

28.

The referring court asks whether the charging system may be challenged ‘even where the period during which the charge to be reviewed was applicable has already expired’.

29.

It is apparent from the order for reference that, in rejecting the complaint lodged by the applicant undertakings, the Bundesnetzagentur linked the right to contest the approval of the charges to such a complaint being made during the period of application of those charges. ( 16 ) Thus, it would not be possible to challenge ‘old charges’. ( 17 )

30.

That position appears to reflect the approach adopted at the relevant time by German legislation ( 18 ) and case-law, ( 19 ) pursuant to which the Bundesnetzagentur may only review charges that are in force and adopt decisions having effects as regards the future. ( 20 )

31.

However, the approach derived from EU law does not allow that temporal limitation, as the German Government acknowledges in its written observations ( 21 ) when referring to the judgment in DB Station.

32.

Article 56(1)(e) of Directive 2012/34 provides that an applicant may appeal ‘to the regulatory body … concerning … the level or structure of infrastructure charges which it is, or may be, required to pay’. In a literal sense, that wording could suggest that appeals concern only charges which are in force or have been established for the future, but that has not been the Court’s interpretation.

33.

The judgment in DB Station held that ‘when an appeal has been brought before [a regulatory body] on the basis of Article 30(2) of Directive 2001/14, that body cannot properly decline its competence to rule on the lawfulness of infrastructure charges levied in the past.’ ( 22 ) That is the case even where ‘a provision of national law … does not allow it to rule on the lawfulness of the infrastructure charges already levied.’ ( 23 )

34.

The regulatory authority is, therefore, competent to examine the lawfulness of charges applied and levied in relation to past working timetables and, where appropriate, annul those charges.

35.

It is legitimate to consider whether or not the right of railway undertakings to seek a review of ‘old charges’ is subject to any time limits ( 24 ) or whether, on the other hand, it may be subject to temporal limitations founded on the principle of legal certainty. Many of the submissions made at the hearing concerned that issue, even though the referring court has not expressly referred to it. I shall therefore deal with it for the sake of completeness.

36.

In the absence of an explicit stipulation in Directive 2012/34, it is for the Member States, in accordance with the principle of procedural autonomy, to set the temporal limitations on actions by which individuals apply to national courts for the reimbursement of sums wrongly paid in breach of EU law. Member States must comply, in all cases, with the principles of effectiveness and equivalence. ( 25 )

37.

However, according to information furnished at the hearing, German law does not appear to provide for those temporal limitations in a specific way for railway infrastructure charges. ( 26 )

38.

In that context, it will be for the referring court to determine whether the German provisions leave the period for bringing an action open indefinitely or, on the other hand, lay down temporal limitations on the right to pursue an action, based on the expiry of rights or the limitation (time-barring) of actions.

39.

In the context of that assessment of domestic law, which, I stress, only the referring court is in a position to carry out, it may be relevant to examine whether the principle of legal certainty must take precedence over the principle of legality (regard being had to the fact that the regional factor used was declared unlawful and later abolished) and whether there is any evidence to infer that a legitimate expectation had been created that ‘old charges’ would no longer be contested.

40.

If it is accepted that it is possible to apply, directly or by analogy, the general limitation periods, whether under civil law or administrative law, or the time limits, the referring court will have to identify the point when these start to run, a question which is also determined, in principle, by national law. ( 27 )

41.

Two possible days on which time starts to run were discussed at the hearing:

42.

In summary, I believe that the judgment in DB Station contains the solutions for answering question 1 to the effect that the regulatory authority may review the lawfulness of charges corresponding to periods that have already expired. It is for the referring court to assess whether, in accordance with national provisions, the exercise of the right to challenge those fees is subject to time limits and if those time limits were observed in the main proceedings.

43.

If the answer to its first question is in the affirmative (as I propose), the referring court asks whether, under Article 56(1), (6) and (9) of Directive 2012/34, ‘in the case of an ex-post review of old charges, the regulatory body may declare them to be invalid with ex-tunc effect’.

44.

In defining the functions of the regulatory body, Article 56(9) of Directive 2012/34 grants that body broad powers of intervention, under which it may adopt appropriate measures to ‘correct … undesirable developments in these [railway] markets, in particular with reference to points (a) to (j) of paragraph 1.’

45.

The supervisory powers of the regulatory body, which extend to ‘old charges’ in the terms I have set out above, allow that body to declare contested decisions invalid, thereby depriving those decisions of a legal basis. I believe that this follows from Article 56(9) of Directive 2012/34 which, as I have just pointed out, permits the regulatory body, after the receipt and processing of a complaint, ( 28 ) to take ‘action to remedy the situation’ by means of decisions that are binding on all the parties concerned.

46.

The fact that a similar solution is not reached under national law does not present an obstacle: the Court of Justice has emphasised ‘that the provisions of [Article 56(9) of Directive 2012/34] are unconditional and sufficiently precise and that they therefore have direct effect … Accordingly, those provisions are binding on all the authorities of the Member States, that is to say, not merely the national courts but also all administrative bodies, including decentralised authorities, and those authorities are required to apply them’. ( 29 )

47.

A declaration of invalidity thus made has retroactive effect (ex tunc) to the time when the invalidity occurred. That is the logic of any system of remedies which enables an administrative body or court to annul acts that are subject to review by it.

48.

By that logic, where decisions of an infrastructure manager are unlawful and are annulled by the regulatory body on account of the defects they contain, the declaration of the regulatory body means that the contested act is totally or partially null and void from the outset.

49.

A declaration of nullity with effect ex tunc does not however appear to have been the approach adopted by the German legislature in Paragraph 68(3) of the ERegG, but it is required in accordance with EU law for the reasons set out above. ( 30 )

50.

Subject to an affirmative answer to the previous two questions, question 3 seeks to ascertain whether Article 56(1), (6) and (9) of Directive 2012/34 ‘[permits] national legislation which excludes the possibility of an ex-post review of old charges with ex-tunc effect’.

51.

In reality, the answer to that question can be inferred from the answer to question 2 (in fact, they could be answered together), based on the following assumptions:

52.

Consequently, under Article 56(1), (6) and (9) of Directive 2012/34, national law may not preclude regulatory bodies in the railway sector from reviewing the lawfulness of charges relating to financial years that have already expired, within the time limits allowed. That article of Directive 2012/34 also precludes national law from prohibiting a declaration of invalidity of a charge from having retroactive (ex tunc) effect from the time when that charge became applicable.

53.

The referring court asks whether ‘the competent regulatory body’s remedial action … also includes, in principle, the possibility to order the infrastructure manager to reimburse charges which had been levied unlawfully, even though claims for reimbursement between the railway undertakings and the infrastructure manager can be enforced by way of civil proceedings’.

54.

The question assumes that, in Germany, railway undertakings may, in all cases, bring proceedings before the civil courts in order to require the infrastructure manager to reimburse charges levied unlawfully.

55.

Consequently, I believe that the question comes down to whether, in accordance with Directive 2012/34, those railway undertakings are also entitled to have recourse to the regulatory body in order to obtain such reimbursement. That will be the case only if that body has the power to order the infrastructure manager to reimburse the charges.

56.

It follows from paragraph 97 of the judgment in CTL Logistics that the intervention of the regulatory body is decisive for the purpose of declaring that charges are unlawful, in so far as it is an essential prerequisite enabling the civil courts subsequently to order reimbursement of the charges. That declaration was confirmed, in similar terms and with regard to applications relating to an action for liability, in the judgment in Koleje Mazowieckie. ( 31 )

57.

The issue which now arises is whether Article 56(1), (6) and (9) of Directive 2012/34 grants a regulatory body for the railway sector itself the power to order reimbursement of a charge which has been unlawfully levied, thereby avoiding parallel or successive proceedings.

58.

The resolution of that issue is linked to the determination of whether national regulatory authorities are entitled to intervene in relationships between economic operators that are subject, in principle, to private law, ( 32 ) and to do so in both declaratory (declaration of nullity of a contract) ( 33 ) and enforcement proceedings (orders for repayment, orders that one party must compensate another). Once again, it falls to the legal system of each Member State to choose one or other approach, if that is not predetermined by EU law.

59.

From the point of view of EU law, suffice it to stay that, as regards the declaratory stage, the judgment in CTL Logistics resolved the uncertainties concerning the powers of regulatory authorities for the railway sector, in the sense set out above, and that was assumed by the German legislature. ( 34 )

60.

However, with regard to the enforcement stage, EU law does not always contain explicit provisions on the power of regulatory bodies to require undertakings subject to supervision by them to reimburse sums unlawfully levied. In the absence of such provisions, Member States have some latitude for those purposes.

61.

In a case related to the internal market for electricity, ( 35 ) the Court of Justice held that Directive 2009/72/EC ( 36 ) did not preclude a Member State from conferring on a national regulatory authority the power to order electricity undertakings to reimburse their customers for the sums paid to cover costs pursuant to a contractual term declared to be unlawful by that authority. ( 37 )

62.

The reasoning in the judgment in Green Network may be helpful for the purposes of this case. In that judgment, the Court:

63.

In summary, the Court maintained that, in view of the open wording of the provisions of Directive 2009/72, although that directive does not lay down an obligation to the effect that the regulatory authority has the power to order repayment, each Member State may provide that that is the case in its domestic legislation.

64.

As concerns Directive 2012/34, it is for the regulatory body ‘to “monitor the competitive situation in the rail services markets” and to review, in that context, the decisions taken by the stakeholders in the railway sector, in particular in the light of the various factors set out in Article 56(1) of Directive 2012/34’. ( 42 )

65.

Specifically, Article 56(1)(d) and (e) of Directive 2012/34 grants an applicant the right to ‘appeal to the regulatory body if it believes that it has been unfairly treated, discriminated against or is in any other way aggrieved, and in particular against decisions adopted by the infrastructure manager … concerning … the charging scheme [and] the level or structure of infrastructure charges which it is, or may be, required to pay’.

66.

The counterpart of that right is the power of the regulatory body to declare whether or not decisions of the infrastructure manager concerning charges are valid. The regulatory body is required to ensure, in accordance with Article 56(6) of Directive 2012/34, ‘… that charges set by the infrastructure manager comply with Section 2 of Chapter IV and are non-discriminatory.’ ( 43 )

67.

Thus far, nothing suggests that the decisions of the regulatory body for the railway sector are more than merely declaratory. There is no indication in Directive 2012/34 that Member States have an obligation to grant enforcement powers to regulatory authorities. The position laid down in the judgment in Green Network (the directive neither requires nor precludes) is therefore applicable.

68.

It could be argued, however, that the functions of the railway regulatory authority, under Article 56(9) of Directive 2012/34, go further than the merely declaratory, since it is authorised to adopt ‘appropriate measures to correct discrimination against applicants, market distortion and any other undesirable developments in these markets, in particular with reference to points (a) to (j) of paragraph 1.’

69.

According to that line of argument, the latitude which Directive 2012/34 grants railway regulatory authorities is greater than that outlined in Directive 2009/72. Their powers (to ‘remedy’ and ‘correct’) go further than the merely declaratory and include enforcement powers, such as the power to order repayment of charges unlawfully levied by the infrastructure manager.

70.

However, I do not believe that the differences between the two directives are that significant. Looking at Directive 2009/72, the binding effect of decisions of regulatory authorities in the electricity sector was also linked to the ability to require compliance with those decisions. Thus, for example, Article 37(10) of that directive authorised regulatory bodies ‘to require transmission and distribution system operators, if necessary, to modify the terms and conditions, including tariffs’. In certain situations, regulatory authorities could ‘decide on the appropriate compensatory measures’.

71.

To my mind, only the EU legislature may adopt a decision as important as that of conferring on a regulatory body, by means of a directive, the power to order the repayment of sums which were set in the context of a contractual relationship. Where a directive is silent as regards that power, the Green Network approach must be followed.

72.

There is nothing to prevent the EU legislature from deciding that, where an infrastructure manager levies unlawful charges, the regulatory authority may itself require the infrastructure manager to repay those charges in order to remedy the breach of the legal system. ( 44 ) However, I repeat, Directive 2012/34 does not include such a provision.

73.

In other words, I do not believe that Directive 2012/34 imposes on Member States an obligation to the effect that the regulatory body is, in any event, vested with the power to order repayment, and certainly not that it alone has the power to do so. A priori, other systems, which include mechanisms for coordination between different types of authorities (judicial and administrative), are permitted. ( 45 )

74.

With specific regard to the charges provided for in Directive 2012/34, the judgment in CTL Logistics accepted that charges may be reimbursed, under the conditions laid down therein, ‘by application of the provisions of civil law’. ( 46 )

75.

It is, therefore, a matter which falls within the scope of the procedural autonomy of Member States. It is the latter which must choose to: (a) grant enforcement powers to regulatory authorities to order repayment of charges, powers which may co-exist with those of the civil courts; or (b) limit the pursuit of an action for repayment to the civil courts alone, on condition that the criteria laid down in the judgment in CTL Logistics are fulfilled and proceedings comply with the principles of equivalence and effectiveness.

76.

As is logical, it falls to the referring court to interpret domestic law in order to determine which system of conferral of competence applies therein. Without wishing to carry out its task for it, I believe that a number of indicators which appeared in the parties’ observations and at the hearing could show that, under German law, the Bundesnetzagentur has the power to order the repayment of unlawful charges.

77.

The German Government has argued that, in accordance with its interpretation of the ERegG, the regulatory body is authorised to order repayment when it adopts a decision in proceedings commenced of its own motion but not where proceedings were commenced as a result of an application (complaint) by a railway undertaking. ( 47 )

78.

Although I find it difficult to understand how the regulatory body may not do on application by a party what it may do of its own motion, ( 48 ) since Directive 2012/34 places those two types of proceeding on the same footing, ( 49 ) I repeat that that is something on which only the German courts can adjudicate when interpreting national law.

79.

In addition, if the national legislature decides to grant the regulatory body the power to order the infrastructure manager to repay charges levied unlawfully, I see no reason why there should be different treatment depending on whether the proceedings before that body were commenced on application by a party or ex officio.

80.

In the light of the foregoing considerations, I propose that the Court of Justice reply to the Verwaltungsgericht Köln (Administrative Court, Cologne, Germany) as follows:

‘Article 56(1), (6) and (9) of Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area

must be interpreted as meaning that: