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Land transportation
In a highly-anticipated verdict, on March 19 the European Court of Justice (ECJ) ruled against the German government’s policy of capping track access charges, finding that the regime applying to local and regional passenger services is “incompatible with EU law”.
Judges found that the track access charge cap enshrined in the German Railway Regulation Act violates the principle of the independence of infrastructure managers. The case was brought jointly by German infrastructure manager DB InfraGO and the German Federal Transport Agency (BNetzA).
Since 2016, track access charges for local and regional services have been linked to regional funding for public transport, effectively acting as a price cap. While this has kept costs down for local and regional operators, track access charges for other operators, and notably freight and inter-city passenger operators, have risen to partly compensate for the cap.
The ECJ ruling effectively puts an end to this system and is expected to lead to a comprehensive revision of the German track access charging regime. The court rejected BNetzA's request to limit the retrospective effect of the ruling. The federal agency warned of serious economic consequences should the ruling have to be applied retrospectively, but the ECJ did not agree.
As a result, the federal government and the operators involved now face having to make substantial back payments, as well as deal with compensation claims from other operators that did not benefit from the cap. However, this would only apply to 2025 and 2026, as charges up to 2024 have already been deemed final.
According to German media reports, the federal government is expected to quickly create a legal framework that simultaneously complies with European Union (EU) requirements for independence and prevents a collapse in the funding regime for local and regional services.
German news outlets also suggest that as track access charges are one of the main sources of revenue for maintaining and upgrading rail infrastructure, the ruling could, in the longer term, lead to a reallocation of federal funding to offset the rising cost of operating local and regional services without jeopardising the financial stability of infrastructure maintenance and renewal.
Industry reaction
The response to the ruling has been mixed. The Federal Ministry of Transport (BMV) welcomed the legal certainty provided by the judgement. It announced an imminent reform of the track access charging system and says potential approaches will be presented to stakeholders as soon as possible, ahead of the introduction of a new system next year.
The Federal Association of Local Rail Transport (BSN) says that public transport authorities have long been calling for reform. “The federal government must now live up to its financial responsibility so that the states can maintain regional rail transport to the same extent as before and expand it in line with demand," says Jan Görnemann, managing director of BSN.
The German Rail Freight Association (Die Güterbahnen) says that freight operators anticipate refunds worth hundreds of millions of euros. In addition to DB InfraGO, several long-distance passenger operators, 11 members of Die Güterbahnen and DB Cargo have challenged the track access charge cap for 2025 and 2026.
“Federal transport minister, Patrick Schnieder, must now prioritise presenting proposals for a fair, legally sound, reliable, and effective track access charging system that will boost transport volumes,” says Peter Westenberger, managing director of Die Güterbahnen.