OPINION OF ADVOCATE GENERAL

JÄÄSKINEN

delivered on 7 June 2012 ( 1 )

Case C‑136/11

Westbahn Management GmbH

ÖBB‑Infrastruktur AG

(Reference for a preliminary ruling from the Schienen‑Control Kommission (Austria))

‛Railway transport — Concept of ‘court or tribunal’ — Obligation on the manager of railway infrastructure to supply to railway enterprises, in real time, information concerning the circulation of trains, and notably delays and cancellations on connecting services — Obligations of railway infrastructure managers under Directive 2001/14/EC — Obligations of railway undertakings under Regulation (EC) No 1371/2007 — Directive 91/440/EEC — Directive 2001/16/EC — Directive 95/46/EC’

I – Introduction

The order for reference from the Schienen‑Control Kommission, which is the Austrian administrative tribunal having jurisdiction over disputes in the liberalised railway transport sector, seeks clarification of the type of information that railway undertakings must supply to passengers under Article 8(2) of and Annex II, Part II, to Regulation (EC) No 1371/2007. ( 2 ) More specifically, it concerns whether passengers are entitled to ‘real time data’ on train timetabling, which provides up‑dated information on delays and cancellations concerning connecting services across the Austrian railway network during any given journey, and for all carriers, or whether Article 8(2) is limited to information concerning the published timetable, and delays and cancellations only of the carrier with whom a passenger is travelling.

If Article 8(2) of Regulation No 1371/2007 encompasses the above described ‘real time data’, the national court would further like to know whether there is a link between this duty, and those imposed on railway infrastructure managers under Article 5 of and Annex II to Directive 2001/14/EC. ( 3 ) This question arises in circumstances in which the ‘real‑time data’ a railway undertaking wishes to supply to passengers is held by a railway infrastructure manager, and the latter has declined to release it to the undertaking concerned.

The novelty of the dispute lies in the fact that this is the first opportunity that has been presented to the Court for providing guidance on the interpretation of Regulation No 1371/2007. ( 4 ) It is also the first time the Court has been asked to accept a preliminary reference from the Schienen‑Control Kommission. This therefore raises the preliminary issue, although it was uncontested in the proceedings, of whether the Schienen‑Control Kommission is a ‘court or tribunal’ for the purposes of Article 267 TFEU, and thus whether the order for reference is admissible.

II – Legal framework

A – Union law

Article 6(3) of Directive 91/440 on the development of the Community’s railways, as amended by Directive 2001/12/EC, ( 5 ) provides as follows,

‘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.’

Article 1(1) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data ( 6 ) under the heading ‘Object of the Directive’ provides,

‘In accordance with this Directive, Member States shall protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data.’

Recital 1 of Directive 2001/14 states as follows,

‘Greater integration of the Community railway sector is an essential element of the completion of the internal market and moving towards achieving sustainable mobility.’

Article 5(1) of Directive 2001/14 titled ‘Services’ provides,

‘Railway undertakings shall, on a non‑discriminatory basis, be entitled to the minimum access package and track access to service facilities that are described in Annex II. The supply of services referred to in Annex II, point 2 shall be provided in a non‑discriminatory manner and requests by railway undertakings may only be rejected if viable alternatives under market conditions exist. If the services are not offered by one infrastructure manager, the provider of the “main infrastructure” shall use all reasonable endeavours to facilitate the provision of these services.’

Annex II to Directive 2001/14 under the heading ‘Services to be supplied to the railway undertakings’ provides,

‘1.

The minimum access package shall comprise:

…

(d)

train control including signalling, regulation, dispatching and the communication and provision of information on train movement,

(e)

all other information required to implement or operate the service for which capacity has been granted.

…’

Article 1 of Directive 2008/57/EC of the European Parliament and of the Council of 17 June 2008 on the interoperability of the rail system within the Community ( 7 ) under the heading ‘Purpose and scope’ provides that,

‘1. This Directive sets out to establish the conditions to be met to achieve interoperability within the Community rail system in a manner compatible with the provisions of Directive 2004/49/EC. These conditions concern the design, construction, placing in service, upgrading, renewal, operation and maintenance of the parts of this system as well as the professional qualifications and health and safety conditions of the staff who contribute to its operation and maintenance.

2. The pursuit of this objective must lead to the definition of an optimal level of technical harmonisation and make it possible to:

(a)

facilitate, improve and develop international rail transport services within the European Union and with third countries,

...

(c)

contribute to the interoperability of the rail system within the Community.’

10.

Recitals 1 to 5, 7 to 9, and 21 of Regulation No 1371/2007 on rail passengers’ rights and obligations state as follows:

‘(1)

In the framework of the common transport policy, it is important to safeguard users’ rights for rail passengers and to improve the quality and effectiveness of rail passenger services in order to help increase the share of rail transport in relation to other modes of transport.

(2)

The Commission’s communication “Consumer Policy Strategy 2002‑2006” sets the aim of achieving a high level of consumer protection in the field of transport in accordance with Article 153(2) of the Treaty.

(3)

Since the rail passenger is the weaker party to the transport contract, passengers’ rights in this respect should be safeguarded.

(4)

Users’ rights to rail services include the receipt of information regarding the service both before and during the journey. Whenever possible, railway undertakings and ticket vendors should provide this information in advance and as soon as possible.

(5)

More detailed requirements regarding the provision of travel information will be set out in the technical specifications for interoperability (TSIs) referred to in Directive 2001/16/EC of the European Parliament and of the Council of 19 March 2001 on the interoperability of the conventional rail system.

…

(7)

Railway undertakings should cooperate to facilitate the transfer of rail passengers from one operator to another by the provision of through tickets, whenever possible.

(8)

The provision of information and tickets for rail passengers should be facilitated by the adaptation of computerised systems to a common specification.

(9)

The further implementation of travel information and reservation systems should be executed in accordance with the TSIs.

…

(21)

This Regulation should be without prejudice to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.’

11.

Article 1(a) of Regulation No 1371/2007 entitled ‘Subject matter’ provides,

‘This Regulation establishes rules as regards the following:

(a)

the information to be provided by railway undertakings, the conclusion of transport contracts, the issuing of tickets and the implementation of a Computerised Information and Reservation System for Rail Transport.’

12.

Article 8 of Regulation No 1371/2007 entitled ‘Travel information’ provides,

‘1. Without prejudice to Article 10, railway undertakings and ticket vendors offering transport contracts on behalf of one or more railway undertakings shall provide the passenger, upon request, with at least the information set out in Annex II, Part I in relation to the journeys for which a transport contract is offered by the railway undertaking concerned. Ticket vendors offering transport contracts on their own account, and tour operators, shall provide this information where available.

2. Railway undertakings shall provide the passenger during the journey with at least the information set out in Annex II, Part II.

3. The information referred to in paragraphs 1 and 2 shall be provided in the most appropriate format. Particular attention shall be paid in this regard to the needs of people with auditory and/or visual impairment.’

13.

Article 10(1) of Regulation No 1371/2007 entitled ‘Travel Information and reservation systems’ provides,

‘In order to provide the information and to issue tickets referred to in this Regulation, railway undertakings and ticket vendors shall make use of the CIRSRT, to be established by the procedures referred to in this Article.’ ( 8 )

14.

Article 18(1) of Regulation No 1371/2007 titled ‘Assistance’ provides that,

‘In the case of a delay in arrival or departure, passengers shall be kept informed of the situation and of the estimated departure time and estimated arrival time by the railway undertaking or by the station manager as soon as such information is available.’

15.

Annex II to Regulation No 1371/2007 contains a list of the minimum information to be provided by railway undertakings and/or ticket vendors. According to this list, pre‑journey information should include ‘Time schedules and conditions for the fastest trip’ and ‘Time schedules and conditions for the lowest fares’. Information provided during the journey should include ‘On‑board services’, ‘Next station’, ‘Delays’, ‘Main connecting services’ and ‘Security and safety issues.’

B – National law

16.

Article 54 of the Eisenbahngesetz (‘EisbG’) provides:

‘2. The provisions of the sixth part of the present law aim at assuring the economical and efficient use of railway lines in Austria

by establishing, on the railway transport market, equal and functional competition between railway transport enterprises on the principle railway lines and on the secondary lines connecting to other principle or secondary railway lines,

by encouraging the penetration of new transport enterprises in the market in railway transport,

by ensuring access to railway infrastructure to beneficiaries,

by keeping competition under review to protect the beneficiaries of access to the rail network from abuse of a dominant position.’

17.

Article 58 of the EisbG provides,

‘(1) For the purpose of access to the railway infrastructure, the railway infrastructure undertaking shall make available, on a non‑discriminatory basis, to persons who are entitled to access, a minimum access package comprising the following services in addition to access:

…

train control including … the communication and provision of information on train movements,

the requisite communication and information system services, without which it is legally, economically and practically impossible for persons entitled to access to exercise their rights in this connection.

…

(4) For the purpose of access to the railway infrastructure, the railway infrastructure undertaking may make the following ancillary services available to those entitled to access, but it is not obliged to do so:

access to the telecommunications network which is more extensive than the access provided for under Paragraph 1(3),

provision of additional information, …’

III – The dispute in the main proceedings and the questions referred for a preliminary ruling

18.

Westbahn Management GmbH (‘Westbahn Management’) wishes to provide passenger services on the Wien Westbahnhof (Vienna West Station) – Salzburg Hauptbahnhof (Salzburg Central Station) railway line. Westbahn Management was granted operational authorisation to provide this service by decision of the Federal Ministry of Transport, Innovation and Technology of 29 May 2009.

19.

ÖBB Holding AG is the sole shareholder of ÖBB‑Infrastruktur AG, and ÖBB‑Personenverkehr AG. The former is the largest rail infrastructure manager in Austria and is responsible for managing most of the Austrian rail network, including the Vienna‑Salzburg line. It is also the defendant in the main proceedings. ÖBB‑Personenverkehr AG is the leading undertaking in the passenger‑transport services market in Austria, and the former holder of a State monopoly.

20.

ÖBB‑Infrastruktur AG has at its disposal real‑time data on all trains operating on the Austrian rail network for which it is responsible. This real‑time data includes the current position of the train, and the arrival, transit, and departure ti