–

ÖBB-Infrastruktur Aktiengesellschaft, by J. Andras and A. Egger, Rechtsanwälte,

–

Lokomotion Gesellschaft für Schienentraktion mbH, by G. Horak and A. Stolz, Rechtsanwälte,

–

the European Commission, by W. Mölls, C. Vrignon and G. Wilms, acting as Agents,

1

The request for a preliminary ruling concerns the interpretation of the Convention concerning International Carriage by Rail of 9 May 1980, as amended by the Vilnius Protocol of 3 June 1999 (‘COTIF’), specifically Article 4, Article 8(1)(b) and Article 19(1) of Appendix E to the COTIF, entitled ‘Uniform Rules concerning the Contract of Use of Infrastructure in International Rail Traffic (CUI)’ (‘Appendix E (CUI)’).

2

The request was made in proceedings between ÖBB-Infrastruktur AG, an Austrian undertaking that is a rail infrastructure manager, and Lokomotion Gesellschaft für Schienentraktion mbH (‘Lokomotion Gesellschaft’), a German rail undertaking, concerning a claim for damages following an accident on a railway operated by ÖBB-Infrastruktur.

3

The COTIF entered into force on 1 July 2006. The 49 States that are parties to the COTIF, which include all the Member States of the European Union with the exception of the Republic of Cyprus and the Republic of Malta, constitute the Intergovernmental Organisation for International Carriage by Rail (OTIF).

4

Under Article 2(1) of the COTIF, the aim of OTIF is to promote, improve and facilitate, in all respects, international traffic by rail, in particular by establishing systems of uniform law in various fields of law relating to international rail traffic, such as contracts of use of infrastructure.

5

According to Article 6(1) of the COTIF, entitled ‘Uniform Rules’:

‘So far as declarations are not made in accordance with Article 42 § 1, first sentence, international rail traffic and admission of railway material to use in international traffic shall be governed by:

…

…’

6

Article 4 of Appendix E (CUI) provides:

‘Unless provided otherwise in these Uniform Rules, any stipulation which, directly or indirectly, would derogate from these Uniform Rules, shall be null and void. The nullity of such a stipulation shall not involve the nullity of other provisions of the contract. Nevertheless, the parties to the contract may assume a liability greater and obligations more burdensome than those provided for in these Uniform Rules or fix a maximum amount of compensation for loss of or damage to property.’

7

Article 8 of Appendix E (CUI) provides:

‘§ 1   The manager shall be liable

caused to the carrier or to his auxiliaries during the use of the infrastructure and having its origin in the infrastructure.

…

§ 4   The parties to the contract may agree whether and to what extent the manager shall be liable for the loss or damage caused to the carrier by delay or disruption to his operations.’

8

Article 19(1) of Appendix E (CUI) reads as follows:

‘In all cases where these Uniform Rules shall apply, any action in respect of liability, on whatever grounds, may be brought against the manager or against the carrier only subject to the conditions and limitations laid down in these Uniform Rules.’

9

The explanatory report on Appendix E (CUI) of 30 September 2015 issued by OTIF’s General Assembly (AG 12/13 Add. 8) (‘the explanatory report’) states as follows in respect of Article 4 of Appendix E (CUI):

‘1.   As a rule, the CUI Uniform Rules are mandatory in nature and prevail over national law. The wording follows that of Article 5 of the CIM Uniform Rules.

2.   There is contractual freedom with regard to the commercial conditions of the contract of use.

3.   The final sentence, taken over as it stands from Article 5 of the CIM Uniform Rules, allows the parties to the contract to extend their liability. …

…’

10

The explanatory report states as follows in relation to Article 8 of Appendix E (CUI):

‘1.   § 1 stipulates the principle of the (strict) objective liability of the infrastructure manager. The person having suffered the damage (the carrier or his auxiliary) must prove the cause of the damage (management failure or infrastructure fault). In addition, that person must furnish proof that the damage was caused during the period of use of the infrastructure. …

2.   The text of § 1, letter b) states that liability for loss or damage to property does not include liability for (purely) pecuniary loss. An exception to these, according to § 1, letter c), is pecuniary loss resulting from damages payable by the carrier in accordance with the CIV Uniform Rules or CIM Uniform Rules. Damages suffered by means of transport are damages to property suffered directly by the carrier, even if these means of transport are not the carrier’s property according to civil law, but are at the carrier’s disposal by virtue of a contract in accordance with the [Uniform Rules concerning Contracts of Use of Vehicles in International Rail Traffic (CUV)].

…’

11

The explanatory report states as follows in relation to Article 19 of Appendix E (CUI):

‘The aim of this Article is to protect fully the liability system laid down in the law for contractual claims by limiting extra-contractual claims, even those made by third parties, from being undermined in those cases in which a contracting party could otherwise be claimed against without limitation on an extra-contractual basis. …

…’

12

The Agreement between the European Union and the Intergovernmental Organisation for International Carriage by Rail on the Accession of the European Union to the [COTIF], signed on 23 June 2011 in Bern (OJ 2013 L 51, p. 8) (‘the accession agreement’), entered into force, pursuant to Article 9 of the agreement, on 1 July 2011.

13

Article 2 of the accession agreement provides:

‘Without prejudice to the object and the purpose of the [COTIF] to promote, improve and facilitate international traffic by rail and without prejudice to its full application with respect to other Parties to the [COTIF], in their mutual relations, Parties to the [COTIF] which are Member States of the Union shall apply Union rules and shall therefore not apply the rules arising from that [COTIF] except in so far as there is no Union rule governing the particular subject concerned.’

14

According to Article 7 of the accession agreement:

‘The scope of the competence of the Union shall be indicated in general terms in a written declaration made by the Union at the time of the conclusion of this Agreement. That declaration may be modified as appropriate by notification from the Union to OTIF. It shall not replace or in any way limit the matters that may be covered by the notifications of Union competence to be made prior to OTIF decision-making by means of formal voting or otherwise.’

15

The accession agreement was approved on behalf of the European Union by Council Decision 2013/103/EU of 16 June 2011 on the signing and conclusion of the Agreement between the European Union and the Intergovernmental Organisation for International Carriage by Rail on the Accession of the European Union to the Convention concerning International Carriage by Rail (COTIF) of 9 May 1980, as amended by the Vilnius Protocol of 3 June 1999 (OJ 2013 L 51, p. 1).

16

Annex I to Decision 2013/103 contains a declaration by the European Union made on signing the accession agreement, concerning the exercise of competence (‘the EU declaration’).

17

The EU declaration states:

‘In the rail sector, the European Union … shares competence with the Member States of the Union … pursuant to Articles 90 and 91, in conjunction with Article 100(1), and Articles 171 and 172 [TFEU].

…

On the basis of [Articles 91 and 171 TFEU] the Union has adopted a substantial number of legal instruments applicable to rail transport.

Under Union law, the Union has acquired exclusive competence in matters of rail transport where the [COTIF] or legal instruments adopted pursuant to it may affect or alter the scope of these existing Union rules.

For subject matters governed by the [COTIF] in relation to which the Union has exclusive competence, Member States have no competence.

Where Union rules exist but are not affected by the [COTIF] or legal instruments adopted pursuant to it, the Union shares competence on matters in relation to the [COTIF] with Member States.

A list of the relevant Union instruments in force at the time of the conclusion of the Agreement is contained in the Appendix to this Annex. The scope of the Union competence arising out of these texts has to be assessed in relation to the specific provisions of each text, especially the extent to which these provisions establish common rules. Union competence is subject to continuous development. In the framework of the Treaty on European Union and the TFEU, the competent institutions of the Union may take decisions which determine the extent of the competence of the Union. The Union therefore reserves the right to amend this declaration accordingly, without this constituting a prerequisite for the exercise of its competence in matters covered by the [COTIF].’

18

Recitals 1 to 3 of Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area (OJ 2012 L 343, p. 32) provide:

19

Article 1 of Directive 2012/34, entitled ‘Subject-matter and scope’, reads as follows:

‘1.   This Directive lays down:

…’

20

Article 3 of Directive 2012/34, entitled ‘Definitions’, states as follows:

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

…’

21

Chapter IV of Directive 2012/34, which contains Articles 26 to 57, is entitled ‘Levying of charges for the use of railway infrastructure and allocation of railway infrastructure capacity’. According to Article 28 thereof, entitled ‘Agreements between railway undertakings and infrastructure managers’:

‘Any railway undertaking engaged in rail transport services shall conclude the necessary agreements under public or private law with the infrastructure managers of the railway infrastructure used. The conditions governing such agreements shall be non-discriminatory and transparent, in accordance with this Directive.’

22

Lokomotion Gesellschaft is a private railway undertaking that has its registered office in Germany. It provides its customers with locomotives for various types of transport.

23

ÖBB-Infrastruktur is an Austrian railway infrastructure undertaking which manages infrastructure for rail transport and operates, in particular, the rail infrastructure in the area around Kufstein railway station in Austria.

24

In December 2014, those undertakings concluded a contract for the use of ÖBB-Infrastruktur’s rail infrastructure for international transport, under which Lokomotion Gesellschaft is entitled to use that rail infrastructure in return for a fee set in accordance with the agreement concerning the relevant train paths.

25

The General Terms and Conditions relating to the Infrastructure Use Contract (‘the general terms and conditions’) form an integral part of that contract. Point 20 of those general terms and conditions provides that the liability of the contractual partners will be governed by the statutory provisions and the provisions of international law, including those of the Allgemeines Bürgerliches Gesetzbuch (Austrian General Civil Code), the Unternehmensgesetzbuch (Austrian Company Code), the Eisenbahn- und Kraftfahrzeughaftpflichtgesetz (Austrian Law on railway and motor vehicle third-party liability) and Appendix E (CUI), unless the general terms and conditions provide otherwise.

26

According to point 34 of those general terms and conditions, the contract is subject to Austrian law with the exception of the referral rules of the Bundesgesetz über das internationale Privatrecht (Austrian Federal Law on Private International Law) and of the United Nations Convention on Contracts for the International Sale of Goods signed in Vienna on 11 April 1980.

27

On 15 July 2015, a train of locomotives comprising six locomotives, and belonging to Lokomotion Gesellschaft, derailed in Kufstein station, causing damage to two of those locomotives. The damaged locomotives were unfit for use while they were being repaired and Lokomotion Gesellschaft therefore leased two replacement locomotives. It then brought an action against ÖBB-Infrastruktur before a first-instance court seeking reimbursement of the cost of leasing those locomotives, which amounts to EUR 629110 plus interest and expenses.

28

Lokomotion Gesellschaft claims, first, that the accident was caused by a shortcoming in the rail infrastructure managed by ÖBB-Infrastruktur. In its view ÖBB-Infrastruktur unlawfully and culpably failed to comply with its duties of proper manufacture, inspection, servicing, maintenance and repair of the rails, laid down by the provisions of railway law. Secondly, the costs of leasing the replacement locomotives should, in its view, be regarded as ‘loss of or damage to property’ within the meaning of Article 8(1)(b) of Appendix E (CUI).

29

ÖBB-Infrastruktur argues that the rail infrastructure was not defective. It claims that the accident was caused because a coupling hook, which was already under excessive strain before the derailment, came loose on the derailed locomotive, and that Lokomotion Gesellschaft is at fault. Furthermore, it argues that the loss suffered was purely pecuniary loss for which Lokomotion Gesellschaft cannot obtain compensation under the applicable provisions of Appendix E (CUI).

30

By a partial judgment, the first-instance court refused Lokomotion Gesellschaft’s application, finding that according to Article 19(1) of Appendix E (CUI), that appendix, as a single liability system, replaced all other national liability systems. It emphasised that, according to the definition in Article 8(1)(b) of Appendix E (CUI), ‘loss of or damage to property’ is confined to the destruction of, or damage to, movable or immovable property. However, the leasing costs claimed in the main proceedings constitute purely pecuniary loss that is not covered by either Article 8(1)(b) or Article 8(1)(c) of Appendix E (CUI) and is therefore not eligible for compensation. That court also found that point 20 of the general terms and conditions does not constitute an agreement between the parties for the purposes of Article 8(4) of Appendix E (CUI), giving rise to liability on the part of ÖBB-Infrastruktur in accordance with the national rules.

31

The appeal court set aside that partial judgment and referred Lokomotion Gesellschaft’s application back to the first-instance court for a fresh ruling. It held on that point that the expression ‘loss of or damage to property’ in Article 8(1)(b) of Appendix E (CUI) had to be interpreted broadly as also covering ‘secondary loss of or damage to property’ such as the leasing costs for replacing damaged locomotives that were being claimed from ÖBB-Infrastruktur.

32

ÖBB-Infrastruktur brought proceedings against the annulment decision of the appeal court before the Oberster Gerichtshof (Supreme Court, Austria), the referring court.

33

First of all, the referring court is of the view that since the agreement concluded between the European Union and OTIF on the European Union’s accession to the COTIF is a mixed agreement, the areas under the COTIF in which the European Union has exclusive competence and those in which it shares competence with the Member States are not clearly apparent from the EU declaration. It notes that, in the light of that declaration, the Court of Justice appears to have jurisdiction in all the areas under the COTIF.

34

Nevertheless, in view of the uncertainty expressed in academic writings as regards the Court of Justice’s jurisdiction to hear references for a preliminary ruling concerning mixed agreements, the referring court is unsure whether the Court of Justice has jurisdiction in the case in the main proceedings.

35

Next, the referring court finds that the costs of leasing the locomotives at issue in the main proceedings do not in themselves constitute ‘loss of or damage to property’ consisting of the destruction of, or damage to, movable or immovable property, within the meaning of Article 8(1)(b) of Appendix E (CUI). However, since those costs are closely linked to loss of or damage to property, that court poses the question whether they can be regarded as secondary loss of or damage to property.

36

Lastly, should the Court of Justice find that the costs of leasing the locomotives concerned are not covered by Article 8(1)(b) of Appendix E (CUI), the referring court believes it would be necessary to determine whether a blanket reference to a national body of laws can be understood as a stipulation which would derogate from the Uniform Rules, within the meaning of Article 4 of Appendix E (CUI) and, if it can, whether such a reference must in fact be regarded as an ‘extension’ of liability, for the purposes of Article 4, where that body of law is stricter than the COTIF in relation to the circumstances in which a party can be held liable, in particular the requirement that there must be fault.

37

In those circumstances, the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

38

In accordance with Article 267 TFEU, the Court has jurisdiction to interpret the acts of the institutions, bodies, offices or agencies of the European Union.

39

It is apparent from the Court’s settled case-law that an agreement concluded by the Council, pursuant to Articles 217 and 218 TFEU constitutes, as regards the European Union, an act of one of its institutions, that the provisions of such an agreement form an integral part of the legal order of the European Union from the time it enters into force and that, in the context of that legal order, the Court has jurisdiction to give a preliminary ruling on the interpretation of that agreement (judgments of 30 April 1974, Haegeman, 181/73, EU:C:1974:41, paragraphs 3 to 6, and of 2 September 2021, Republic of Moldova, C‑741/19, EU:C:2021:655, paragraph 23).

40

As regards mixed agreements concluded by the European Union and its Member States on the basis of joint competence, where a case is brought before the Court in accordance with Article 267 TFEU, it has jurisdiction to define the obligations which the European Union has assumed and those which remain the sole responsibility of the Member States and for that purpose to interpret the provisions of such an agreement (see, by analogy, judgments of 14 December 2000, Dior and Others, C‑300/98 and C‑392/98, EU:C:2000:688, paragraph 33, and of 8 March 2011, Lesoochranárske zoskupenie, C‑240/09, EU:C:2011:125, paragraph 31).

41

Next, the Court has jurisdiction to interpret the provisions of a mixed agreement that relate to the obligations assumed by the European Union provided they are in a field in which the European Union has exercised its powers (see, to that effect, judgment of 8 March 2011, Lesoochranárske zoskupenie, C‑240/09, EU:C:2011:125, paragraphs 32 and 34).

42

It also follows from settled case-law that, where a provision of an international agreement can apply both to situations falling within the scope of national law and to situations falling within the scope of EU law, it is clearly desirable, in order to forestall future differences of interpretation, that the provision should be interpreted uniformly, whatever the circumstances in which it is to apply (see, in particular, judgment of 2 September 2021, Republic of Moldova, C‑741/19, EU:C:2021:655, paragraph 29 and the case-law cited).

43

Only the Court, acting in cooperation with the courts and tribunals of the Member States pursuant to Article 267 TFEU, is in a position to ensure such uniform interpretation (see, by analogy, judgment of 14 December 2000, Dior and Others, C‑300/98 and C‑392/98, EU:C:2000:688, paragraph 38).

44

In the present case, as is stated in Article 2 of the COTIF, OTIF’s aim ‘is to promote, improve and facilitate, in all respects, international traffic by rail’, in particular by establishing a system of uniform law in the various fields that constitute such traffic (judgment of 5 December 2017, Germany v Council, C‑600/14, EU:C:2017:935, paragraph 54).

45

In that context, Appendix E (CUI) governs contracts for the use of rail infrastructure (CUI) for transport purposes, including the form and the framework conditions of those contracts. Specifically, Article 8(1), Article 4 and Article 19(1) of Appendix E (CUI), on whose interpretation the Court has been asked to rule, set out, inter alia, the rules on the liability of the infrastructure manager. That appendix therefore concerns contract law in the field of international rail transport. As a result, those provisions may affect, inter alia, the legal regime applicable to agreements between rail undertakings and the managers of the rail infrastructure used.

46

That subject matter pertains to a field, that is to say, transport, in which, pursuant to Article 4(2)(g) TFEU, the European Union has joint competence, which it exercised by adopting Directive 2012/34.

47

Although Directive 2012/34 contains no rules comparable to those set out in Appendix E (CUI), it is nonetheless, as can be seen from recital 1, a recast version of Directives 91/440, 95/18 and 2001/14, which are expressly cited in the appendix to the EU declaration among the instruments embodying the European Union’s exercise of the competence in relation to transport that it shares with the Member States.

48

Furthermore, recitals 2 and 3 of that directive underscore the importance of greater integration of the EU transport sector and of improving the efficiency of the railway system while taking account of the special features of the railways.

49

In that respect, Article 1 of Directive 2012/34 states in particular that the directive lays down the rules applicable to the management of railway infrastructure and to rail transport activities of the railway undertakings established or to be established in a Member State and the principles and procedures applicable to the setting and collecting of railway infrastructure charges and the allocation of railway infrastructure capacity as set out in Chapter IV thereof. Article 3(1) and (2) of that directive defines ‘railway undertaking’ and ‘infrastructure manager’. Furthermore, Article 28 of that directive, which is contained in Chapter IV, relates to agreements between railway undertakings and infrastructure managers, and states that those agreements must be non-discriminatory and transparent.

50

Specifically, it should be noted that the prohibition on discrimination in Article 28 of Directive 2012/34 applies to all provisions applicable to the contractual relationship between the infrastructure manager and the rail undertaking, including the applicable provisions on liability.

51

It should therefore be found that the rules set out in Appendix E (CUI), and specifically the rules on the liability of the manager established in Article 4 and Articles 8(1) and 19(1) of that appendix, are applicable both to situations falling within the scope of national law and to situations falling within the scope of EU law and that, therefore, in line with the case-law set out in paragraph 42 of this judgment, it is clearly desirable that they should be interpreted uniformly.

52

Accordingly, the Court does have jurisdiction to interpret Article 4 and Articles 8(1) and 19(1) of Appendix E (CUI).

53

Having regard to the findings made during examination of the Court’s jurisdiction, the answer to the first question is that, when a reference has been made under Article 267 TFEU, the Court has jurisdiction to interpret Article 4, Article 8(1)(b) and Article 19(1) of Appendix E (CUI).

54

By its second question, the referring court asks, in essence, whether Article 8(1)(b) of Appendix E (CUI) must be interpreted as meaning that the liability of the infrastructure manager for loss of or damage to property also includes the costs incurred by the rail undertaking in order to lease replacement locomotives while the damaged locomotives were being repaired.

55

The referring court is uncertain in that respect whether Article 8(1)(b) of Appendix E (CUI) also provides that the infrastructure manager is liable for costs which, although they do not cover loss which, in itself, constitutes loss of or damage to property, are closely linked to that loss or damage.

56

According to settled case-law, an international treaty, such as the COTIF, must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose, in keeping with general international law, which is binding on the European Union, as codified by Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969 (United Nations Treaty Series, Vol. 1155, p. 331) (see, to that effect, judgment of 12 May 2021, Altenrhein Luftfahrt, C‑70/20, EU:C:2021:379, paragraph 31 and the case-law cited).

57

Article 8(1)(b) of Appendix E (CUI) states that the infrastructure manager is liable for loss of or damage to property (the destruction of, or damage to, movable or immovable property).

58

Since that article establishes strict liability, which is therefore without any fault on the part of the infrastructure manager, it must be interpreted narrowly.

59

On a literal interpretation of Article 8(1)(b) of Appendix E (CUI), use of the expression ‘loss of or damage to property’ followed by a reference, in parentheses, to destruction of or damage to movable or immovable property suggests that the manager’s liability is limited to the damage caused to the actual substance of the damaged property and does not extend to loss or damage arising from that property not being available.

60

That interpretation is confirmed by the context surrounding Article 8(1)(b) of Appendix E (CUI). Article 8(1) of Appendix E (CUI) in fact lists the three kinds of loss or damage for which the manager is strictly liable. The extent of that liability is therefore clearly defined. It consists of the bodily loss or damage referred to in Article 8(1)(a) of Appendix E (CUI), the loss of or damage to property referred to in Article 8(1)(b) of that appendix and the pecuniary loss referred to in Article 8(1)(c) thereof. Given that Article 8(1) distinguishes in that way between those three types of loss and damage, those categories must be regarded as mutually exclusive and accordingly, among other consequences, it must be found that the liability of the manager for the loss of or damage to property under Article 8(1)(b) of Appendix E (CUI) does not include pecuniary loss.

61

That finding is corroborated by the explanatory report, which, in relation to Article 8(1)(b) of Appendix E (CUI), states that the liability for loss of or damage to property under that article does not include liability for pecuniary loss.

62

In that context, it should be emphasised in particular that in relation to loss of or damage to property it emerges from the explanations given in that explanatory report with respect to Article 8 of Appendix E (CUI) that liability for damage suffered by means of transport, established in Article 8(1)(b) of Appendix E (CUI), relates only to damage suffered ‘directly’ by the carrier.

63

Nevertheless, it is not inconceivable that other loss or damage may be eligible for compensation under other articles. It should be noted in that respect that Article 8(1)(c) of Appendix E (CUI) provides that the manager is liable for pecuniary loss resulting from damages payable by the carrier under the CIV Uniform Rules and the CIM Uniform Rules.

64

Furthermore, as the Advocate General stated, in point 111 of her Opinion, Article 8(4) of Appendix E (CUI) supports a narrow interpretation of the scope of the manager’s liability for loss of or damage to property under Article 8(1)(b) of that appendix. Under that provision, the parties to the contract may agree whether and to what extent the manager is to be liable for the loss or damage caused to the carrier by delay or disruption to its operations. That may include, in particular, the loss incurred by a railway undertaking as a result of not being able to use a damaged vehicle.

65

In the present case, Lokomotion Gesellschaft is seeking compensation for the costs it incurred in leasing two locomotives to replace the damaged locomotives while they were being repaired. The action in the main proceedings is therefore not seeking compensation for the harm resulting from the material damage caused to the damaged locomotives, but compensation for the costs arising from Lokomotion Gesellschaft’s intention to continue to provide its services without interruption. Costs incurred to remedy the effects of loss of or damage to property, such as the costs of leasing locomotives, constitute pecuniary loss rather than a loss of or damage to property within the meaning of Article 8(1)(b) of Appendix E (CUI), and, without prejudice to the fact that other provisions may apply, are not covered by the strict liability of the infrastructure manager under Article 8(1)(b).

66

In the light of the foregoing, the answer to the second question is that Article 8(1)(b) of Appendix E (CUI) must be interpreted as meaning that the liability of the infrastructure manager for loss of or damage to property does not cover the costs incurred by the railway undertaking in order to lease replacement locomotives while the damaged locomotives were being repaired.

67

By its third question, the referring court asks, in essence, whether Article 4 and Article 19(1) of Appendix E (CUI) must be interpreted as meaning that the parties to the contract may extend their liability by a blanket reference to national law, under which the scope of the infrastructure manager’s liability is broader but that liability is dependent on the existence of fault.

68

According to Article 4 of Appendix E (CUI), unless provided otherwise in the Uniform Rules, any stipulation which directly or indirectly derogates from the Uniform Rules is null and void. It nevertheless provides that the parties to the contract may assume a liability greater and obligations more burdensome than those provided for in the Uniform Rules or fix a maximum amount of compensation for loss of or damage to property.

69

As the explanatory report states in relation to Article 4 of Appendix E (CUI), that article provides that the provisions of that appendix are mandatory in nature and prevail over national law.

70

The provisions of Appendix E (CUI) are therefore binding in all the situations covered by that appendix, including so far as concerns the manager’s liability defined in Article 8(1) of that appendix.

71

However, as the explanatory report states in respect of Article 4 of Appendix E (CUI), the parties to the contract may extend their liability as regards situations not already covered by that appendix. That means that the provisions of Article 8(1) of that appendix must be understood as mandatory only inasmuch as they set the minimum extent of the manager’s liability.

72

The contractual partners may therefore agree to extend their liability and to include that extension in the contract of use. The parties’ contractual freedom allows them to choose whether they themselves wish to establish a clause in the contract extending their liability or whether they wish to use a reference to national law.

73

As the Advocate General highlighted in point 127 of her Opinion, Article 4 of Appendix E (CUI) does not limit the ability that the parties to a contract have by virtue of that article to contract more extensive liability. Nor does anything prevent the liability of a party to a contract from being extended by means of a reference to national law.

74

Furthermore, the extension of liability provided for in Article 4 of Appendix E (CUI) in respect of situations not already covered by that appendix is in addition to the strict liability established in Article 8(1) of that appendix.

75

Accordingly, Article 4 of Appendix E (CUI) does not preclude that the consequence of a reference to national law may be to establish a liability system other than strict liability, in addition to the liability rules in Appendix E (CUI).

76

That finding is not undermined by Article 19(1) of Appendix E (CUI), according to which any action in respect of liability, on whatever grounds, may be brought against the manager or against the carrier only subject to the conditions and limitations laid down in Appendix E (CUI). As the explanatory report states in relation to Article 19, that article does not concern the liability of the parties to a contract in their mutual relations, but the extra-contractual liability of contractual parties to third parties.

77

In the present case, it can be seen from the facts set out by the referring court that the parties agreed general terms and conditions that form part of the contract. Point 20 of those general terms and conditions provides that the liability of the contractual partners will be governed by the statutory provisions and the provisions of international law, including those of the General Civil Code, the Company Code and the Law on railway and motor vehicle third-party liability. Accordingly, the referring court needs to determine whether that reference has the effect of extending the liability of at least one of the parties to the contract but does not adversely affect the rights that the other party derives from Appendix E (CUI).

78

In the light of the foregoing, the answer to the third question is that Article 4 and Article 19(1) of Appendix E (CUI) must be interpreted as meaning that the parties to the contract may extend their liability by a blanket reference to national law, under which the scope of the infrastructure manager’s liability is broader and that liability is dependent on the existence of fault.

79

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fifth Chamber) hereby rules: