Wednesday, October 03, 2012

Commission pushes for judicial activism

Now that I've finally had the chance to read the five opinions on railway infringement cases that Advocate-General Jääskinen published on September 6, I have to say that I find some of the Commission's claims distinctly odd. They seem to have tried to get in Luxembourg what they couldn't get in Brussels.

The cases against Hungary, Spain and particularly Portugal are fairly straightforward. In those cases, the Commission argued for a generally accepted reading of Directive 91/440 and the 1st Railway Package while the Member States in question either admitted wrongdoing (Portugal) or were advocating a reading of the legislation that was distinctly implausible.

In the case of Portugal, the country was in the process of abolishing the requirement that the incumbent rail operator should get prior authorisation from the Minister for Transport before taking certain decisions, just like it was in the process of setting up a system to make sure the accounts of the infrastructure manager balance. It just had not finished doing those things yet by the end of the period established in the Commission's reasoned opinion. That happens all the time in infringement proceedings. The Member State gets a slap on the wrist, but ultimately there is no real dispute between it and the Commission.

Spain tried to argue that the access charges that are paid by the transport companies for access to the railway system, being levied by a public company, were something akin to a tax and therefore needed to be established by law or by Ministerial decree. That may well be as a matter of philosophy, but it is not the approach taken in art. 4 of Directive 2001/14, which establishes a more nuanced division of power between the Ministry and the Infrastructure Manager. Likewise, Spain seems to have overlooked art. 11 of that Directive, which requires that the infrastructure charging scheme include certain performance incentives, and the requirement of art. 14 that capacity allocation should be done by the infrastructure manager and not by the Ministry.

The Hungarian case is already more tricky. That country still lost on the question of the financial viability of the infrastructure manager, just like Portugal, on the absence of performance incentives in the access charging system, like Spain, as well as on the question of whether the access charges are always high enough to cover the direct costs attributable to the transport in question. However, the Commission went on its face in the area of capacity allocation and access charge levying, where it tried to push for a more drastic approach to independence, just like in the German and Austrian cases.

What these three cases have in common is that the Commission is trying to get the Court to say that a holding model does not make the infrastructure company sufficiently independent, even though such a model, whereby the infrastructure company and one or more passenger transport companies are both owned by a holding company, is expressly permitted by art. 6 of Directive 91/440, as amended by Directive 2001/12:
Article 6
1. Member States shall take the measures necessary to ensure that separate profit and loss accounts and balance sheets are kept and published, on the one hand, for business relating to the provision of transport services by railway undertakings and, on the other, for business relating to the management of railway infrastructure. Public funds paid to one of these two areas of activity may not be transferred to the other.
The accounts for the two areas of activity shall be kept in a way that reflects this prohibition.
2. Member States may also provide that this separation shall require the organisation of distinct divisions within a single undertaking or that the infrastructure shall be managed by a separate entity.
3. Member States shall take the measures necessary to ensure that the functions determining equitable and non-discriminatory access to infrastructure, listed in Annex II, are entrusted to bodies or firms that do not themselves provide any rail transport services. Regardless of the organisational structures, this objective must be shown to have been achieved.
Member States may, however, assign to railway undertakings or any other body the collecting of the charges and the responsibility for managing the railway infrastructure, such as investment, maintenance and funding.
In its evaluation of the 1st Railway Package, specifically in Annex 5 to the evaluation, the Commission outlined exactly what it thought was necessary in order for the infrastructure manager to be sufficiently independent that it could be entrusted with the responsibility to establish access charges and allocate capacity. However, unfortunately for the Commission, annexes to Commission Staff Working Documents are not binding EU law.

So the long and the short of it is that the Advocate-General observes that the requirements of Annex 5 go beyond what is required by binding EU law, and declines the invitation to read these additional requirements into the law. Much as AG Jääskinen was willing to use his idea of the best interests of passengers to read a pro-liberalisation agenda into an ambiguous law in Westbahn v. ÖBB, he is hardly going to do that when the legislation is as clear as here.

Which brings me to my ultimate question: What is the Commission trying to achieve here? This is a sensitive area of the law, with potential ramification for the Member States that amount to billions of euros, never mind national prestige and control over a service of undoubted general interest. In three railway packages, the Commission hasn't been able to persuade the Member States to require complete unbundling. Even in the Recast Directive, which is so new that it hasn't even been formally adopted yet, the holding company model is still permitted. Perhaps the Commission would say that it is not really trying to get the Court to force Germany, France, Italy and many other Member States to abolish their holding models, because they have the alternative under art. 6(3) of Directive 2001/12 of creating an independent body for access charging and capacity allocation. But realistically, I don't see how that is any more palatable, since that would imply creating a wholly new governance model for the industry, one that doesn't exist anywhere else. (Although in Switzerland they have Trasse Schweiz to take care of the capacity allocation process.)

Then again, the Court hasn't spoken yet.

UPDATE: In a highly non-official response, a Commission official emphasised that the Commission is not bringing infringement proceedings against all countries that have a holding company model, but only those where it objects to the specific form in which this model is cast. To be continued...

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