On 12 November 2020, the Court of Justice held its judgment in Case C-796/19, European Commission v Republic of Austria, on the application by which the Commission sought a declaration that, by designating as “competent authority” for the purposes of Directive 2007/59/EC an authority other than the safety one referred to in Article 16 of Directive 2004/49/EC, the Republic of Austria has failed to fulfil its obligations under Article 3(a) of Directive 2007/59.

On 20 November 2015, the Commission sent a letter of formal notice informing the Republic of Austria of its concerns on the compatibility with Article 3(a) of Directive 2007/59 of the designation, as competent authority, of an entity other than the one referred to in Article 16 of Directive 2004/49. By contrast, the Republic of Austria stated that the legislation at issue was consistent with the European law, pointing out that, in accordance with the principle of Member States’ institutional autonomy, Directive 2007/59 did not preclude that Member State from entrusting a federal body such as the Schieneninfrastruktur-Dienstleistungsgesellschaft mbH with the performance, under the supervision of the Minister, of certain tasks for which the competent authority, within the meaning of that directive, is responsible.

Deeming that the Republic of Austria’s replies were unsatisfactory, on 28 April 2017 the Commission sent a reasoned opinion reaffirming the complaint set out in the letter of formal notice. However, since the Republic of Austria restated its view as well, the Commission appealed the Court of Justice and asked it to declare a violation of Article 3(a) of Directive 2007/59.

According to the Court, Directive 2004/49 provides for the designation, in each Member State, of a single national body responsible for tasks relating to railway safety, although two Member States may, where appropriate, entrust a binational body with the performance of those tasks. This interpretation is supported not only by the general scheme of Directive 2004/49, from which it is apparent that information on railway safety in the European Union must, in each Member State, be transmitted centrally to a single safety authority, but also from the objective pursued by the Directive itself, which aims at concentrating essential railway safety regulatory functions within a single body. So that, according to the Court, whether or not Schieneninfrastruktur-Dienstleistungsgesellschaft mbH is subordinate to the Minister is irrelevant, inasmuch as such a relationship between two entities with separate legal personality would not ensure the correct transposition of the above-mentioned obligation.

Marco Stillo