Brussels, 07/09/2012 (Agence Europe) - Into reverse for the Commission in its crusade for the separation between infrastructure managers and railway operators: the advocate general of the EU Court of Justice has settled the issue by judging that Deutsche Bahn's holding model was in conformity with the relevant European legislation, in other words the first railway package, dating from 1991. While the opinions still have to be confirmed by a Court judgment at the end of this year, the preliminary statement already establishes the legitimacy of the German model and the power of Deutsche Bahn. It also brings into question the content of the fourth railway package which is expected in the coming months and should go further in the separation between the railway entities.
Preliminary conclusions. On Thursday 6 September Advocate General Jääskinen gave his opinion on the Commission's appeals against Hungary, Spain, Portugal, Austria and Germany. While the opinions of the advocate general only constitute the preliminary orientation for the Court judgment, in the majority of cases they are followed by the Court. However, it is the advocate general's enlightenment on the joined case for Germany (Deutsche Bahn Netz holding) and Austria (BB-Infrastruktur) which is the most important for the railway industry because it holds that European legislation “does not require member states to make an institutional separation between the manager and the incumbent operator. On the contrary, that directive allows those States to integrate them in a single holding company.”
DB's revenge on the Commission. It is a crushing snub for the Commission which is most definitely chasing after holdings and preparing to toughen the separation between infrastructure managers and railway operators, giving details of new modalities in a fourth railway package due out in the autumn. Moreover the statement was relayed right after the comments on the next reform that were made by European Transport Commissioner Siim Kallas at a conference on the subject organised by the Economic and Social Committee (see EUROPE 10683). Although the commissioner chose not to react to the statement, Rüdiger Grube, the managing director of Deutsche Bahn, did not hide his enthusiasm, even letting it drop that there would be no sense in talking about separation. His point of view is shared by the president of the SNCF, Guillaume Pepy. The advocate general's opinions add yet more weight to the German model, opening up the way for other member states like France to be able to fully assume the holding as a railway entity.
Differing reactions from lobbies. The railway lobbies have not missed their turn at reacting to
Jääskinen's opinions. They see this as proof of urgency for reforming the railway in a fourth package. Monika Heiming, the executive director for European Rail Infrastructure Managers (EIM), considers that the opinion “provides new impetus to the discussions on the fourth railway package and confirms the urgent need to reform the existing EU rules on the independence of infrastructure managers in Europe”. For its part, the European Rail Freight Association (ERFA) is concerned that the Court may follow the advocate general's opinion and thus take the railway “back to square one” , says ERFA secretary general, Pierre Tonon. He says that the Commission should not deviate from its objective and establish a separation between operators and managers which, in his eyes, is “the simplest, cheapest and most efficient model to ensure the development of the rail sector”. Also very concerned by the need to settle the argument in the near future, the executive director of the Community of European Railway and Infrastructure Companies (CER), Libor Lochman, recalls on the contrary that the opinions of the Court only serve to corroborate what his association has long been proclaiming. He says that this opinion is an important signal “for all those member states that recently took a decision to separate their railway holdings not because factual economic evidence suggested it, but because of the pressure of the European Commission services based on a biased interpretation of the rail acquis”. No doubt the Court's final decision will be a climax in the debate on railway unbundling. (MD/transl.fl)