In the 5/2024 issue of the magazine RdTW (Recht der Transportwirtschaft) Gisela Hebrant, LL.M. published a review of a recent ECJ decision on railroad infrastructure charges.
Recently, the ECJ issued a third ruling on the so-called old charges for the use of railroad infrastructure. This decision confirms that the Federal Network Agency is authorized and obliged to review railroad infrastructure charges retrospectively (ex post) and with retroactive effect (ex tunc). This means that the Federal Network Agency not only has to review the legality of current charges, but also past charges (old charges). However, according to the ruling, the civil courts are responsible for ordering the repayment of fees that have been declared invalid.
This has practical implications:
The ruling is good news for the many rail transport companies that are conducting so-called “old charges” proceedings against DB InfraGO AG. For years, numerous civil court proceedings concerning the repayment (payment) of charges set in the past by the former DB Netz AG (old charges) have been up in the air. In 2017, the ECJ ruled that civil courts may not rule on the illegality of charges without a prior decision by the BNetzA. However, the BNetzA did not consider itself authorized to rule on old charges that were no longer valid. Together with the second ruling on legacy charges handed down in 2022, this third ruling gives the proceedings an anchor again: the BNetzA can now carry out the review necessary for the proceedings to continue.
The author and your usual contacts will be happy to answer any questions you may have!
Gisela Hebrant, LL.M.
hebrant@tigges.legal
+49 211 8687 185