On 5 July 2018 - BVerwG 3 C 21-16 - the Federal Administrative Court in Leipzig issued another landmark ruling on the decommissioning of railway infrastructure in connection with the "Stuttgart 21" project. In doing so, it not only clarified the basic principles for interpreting the terms "line" and "station", but also dealt with the newly legally introduced "service facilities".

The background to the legal dispute was the intention of DB Netz AG, within the framework of the "Stuttgart 21" project, to discontinue the operation of the above-ground Stuttgart terminus station, including its feeder tracks, after completion of the new underground station, without first carrying out a decommissioning procedure pursuant to Section 11 of the General Railway Act (AEG). Stuttgarter Netz AG - a private company (represented by Orth Kluth) - intended to take over the old terminus station in order to operate it in parallel with the underground station. Since the Federal Railway Authority (Eisenbahn-Bundesamt) refused to prohibit DB Netz AG from dismantling the station without a prior decommissioning procedure by means of a supervisory order, Stuttgarter Netz AG brought an action before the Stuttgart Administrative Court. The court dismissed the action for lack of legal protection because the plaintiff could still assert its interest in taking over the station within the framework of the planning approval procedure required for the dismantling of the station (VG Stuttgart, judgement of 09.08.2016 - 13 K 2947/12 -).

The Federal Administrative Court (BVerwG) now disagreed with this, but dismissed Stuttgarter Netz AG's appeal as unfounded, because none of the elements of decommissioning under Section 11 AEG had been fulfilled. Following the Senate's ruling of 25 May 2016 - BVerwG 3 C 2-15 - on the "Sulingen connecting line", the Senate clarified that the closure of a line or a station was to be assessed on the basis of a functional approach. The decisive factor was therefore whether all connections to Stuttgart's main railway station would be maintained and the station would continue to be accessible. The continued existence of all track or station facilities, however, was not relevant.

In addition, the BVerwG dealt with the newly introduced offence of decommissioning "service facilities" in § 11 AEG. In this respect, it was decisive whether the respective facilities were independent service facilities or only parts of the existing railway station.

The scope of the decommissioning provisions in § 11 AEG was previously largely unclear. The BVerwG has now decided in favour of a narrow interpretation, even if, in Orth Kluth's opinion, the meaning and purpose of § 11 AEG as well as the systematics of the AEG regulations would have permitted a more far-reaching interpretation. Nevertheless, the Senate's ruling makes a decisive contribution to legal clarity.