In a recent court ruling, the German Federal Court of Justice has confirmed its previous case law according to which EU antitrust law (in particular the prohibition of abuse of a dominant position pursuant to Art. 102 TFEU) is applicable to the track access charges of Deutsche Bahn and corresponding fees for the use of railway tracks can therefore be reviewed by the civil courts - in parallel to and independently of the jurisdiction of the Federal Network Agency – at least according to antitrust standards (Federal Court of Justice, ruling of 8 December 2020, File No. KZR 60/16; the reasons for the decision were submitted on 22 April 2021). Orth Kluth has represented the claimant in these proceedings.

The legal dispute concerns the increase of cancellation fees charged by Deutsche Bahn between 2008 and 2011. Exactly these fees were already subject of the landmark ruling by the European Court of Justice (ECJ) of 9 November 2017 (C-489/15) in which the ECJ held that at least a fairness review based on Section 315 of the German Civil Code), at this time contrary to the view of to the Federal Court of Justice (Federal Court of Justice, ruling of 18 October 2011, KZR 18/10) would infringe EU law (more particularlythe Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification).

In its ruling, the Federal Court of Justice provides important considerations regarding the appropriate antitrust review for track access charges. The Federal Court of Justice primarily addresses the prohibition of abusively increased prices for the use of essential facilities and the prohibition of hindering competition on the downstream transport market, in particular by way of a margin squeeze. For both alternatives, the Federal Court of Justice provides concrete indications for further examination. From the Federal Court of Justice' point of view, with regard to the cancellation fees in dispute, the preliminary conclusion appears to be that the sudden price increase at the time is an expression of the (abusive) exploitation of pricing leeway not sufficiently controlled by competition (para. 30 of the decision). The Higher Regional Court Düsseldorf (to which the Federal Court has referred the matter back) must now make a final decision on the legal dispute.

The Federal Court of Justice had already ruled in earlier decisions that the ECJ decision did not preclude the application of antitrust law to DB's train path and station prices (decision of 29 October 2019, KZR 39/19; decision of 1 September 2020, KZR 12/15). However, the Kammergericht (Higher Regional Court) Berlin has more recently requested a preliminary ruling fromthe ECJ (Case C-721/20) whether EU law might also bar the application of antitrust law to regulated infrastructure charges by civil courts. A decision by the ECJ is still pending here. The Federal Court of Justice had denied the necessity of a corresponding request for preliminary ruling in this regard based on the acte claire doctrine.

Advising lawyers: Dr. Anselm Grün, lead and Dr. Dominika Stachurski LL.M., both Regulatory Law / Antitrust Law