On 28 September 2023, the Court of Justice handed down its judgment in Case C‑671/21, «Gargždų geležinkelis» UAB, on the interpretation of Articles 45 to 47 of Directive 2012/34/EU. The request has been made in proceedings brought by «Gargždų geležinkelis» UAB (“UAB”) concerning the decision of the Lietuvos transporto saugos administracija(Lithuanian Transport Safety Administration) refusing to allocate public railway infrastructure capacity as well as the order of the Lietuvos Respublikos ryšių reguliavimo tarnyba (Communications Regulatory Authority of the Republic of Lithuania) dismissing the complaint brought by UAB against that decision.

On 3 April 2019, UAB made a request to the Transport Safety Administration for an allocation of public railway infrastructure capacity for freight trains, in respect of the working timetable for the period from 2019 to 2020. That request was forwarded to the public infrastructure manager who, after examining it, concluded that, due to the limited capacity of certain sections of the railway infrastructure concerned, it was not possible to include in the working timetable all the capacity requested by applicants, including that requested by UAB, in so far as their requests were, in part, competing. 

Since the coordination process to resolve the dispute failed, on 30 September 2019 UAB referred the matter to the Transport Safety Administration, which in the meantime received by the infrastructure manager an amended draft working timetable with a view to the adoption of capacity allocation decisions, together with information on the actual capacity of the sections concerned. By its decision the Transport Safety Administration, on the one hand, found that the infrastructure had neither infringed UAB’s rights nor prejudiced its legitimate interests and, on the other one, decided not to allocate the capacity requested by it on the ground that there was none. Since its complaints before the Communications Regulatory Authority and the Vilniaus apygardos administracinis teismas (Regional Administrative Court of Vilnius) were dismissed, UAB brought an appeal before the Lietuvos vyriausiasis administracinis teismas(Supreme Administrative Court of Lithuania; the “referring court”) which, in light of the need to interpret the relevant European legislation, decided to stay the proceedings and to refer two questions to the Court of Justice for a preliminary ruling.

By the second question, the referring court asked with regard to the scheduling process and the coordination process referred to in Articles 45 and 46 of Directive 2012/34: (i) whether the infrastructure manager must ascertain whether several applicants have submitted competing requests for capacity for the carriage of the same freight; (ii) whether the infrastructure manager may apply, within those processes, a priority rule provided for by national law when the infrastructure is not declared to be congested, and (iii) to what extent the infrastructure manager must coordinate requests for train paths and consult with applicants before declaring the infrastructure to be congested.

According to the Court, since it does not follow from the provisions of Articles 45 and 46 of Directive 2012/34 that the nature of the goods which an applicant intends to transport is a relevant factor in the scheduling process and the coordination process, the infrastructure manager is not required to ascertain, for the purpose of allocating the related capacity, whether several applicants have submitted competing requests for capacity for the carriage of the same freight. Article 45(2), moreover, does not preclude the infrastructure manager from applying, within the scheduling and the coordination process, certain criteria, including those involving some form of prioritisation, provided that their application allows infrastructure capacity to be allocated in a fair and non-discriminatory manner. Finally, the infrastructure manager must attempt, through coordination of the requests, to ensure the best possible matching of all requirements and to resolve any conflicts through consultation with the appropriate applicants.

By the first question, instead, the referring court asked whether the first and second subparagraphs of Article 47(4) of Directive 2012/34 must be interpreted as precluding the adoption of national legislation which provides that, in the event of congested railway infrastructure, the intensity of the use of the infrastructure may be taken into account at the time of capacity allocation.

According to the Court, a priority criterion based on projections for future use of the network is likely to have a discriminatory effect on new entrants where those projections are based on data derived from recent use, since new entrants are unable to provide such data. Such a criterion, therefore, is compatible with Directive 2012/34 only in so far as it has safeguards to ensure that the criterion is not applied to the detriment of new entrants.

Marco Stillo