The authorities responsible for local rail passenger transport (SPNV) sanction the railway operating companies (RUs) via the transport contracts with penalties, which amount to a total of a mid three-digit million sum annually, for unpunctual line service. To a large extent, however, the reasons for the delays do not originate from the sphere of the RUs, but are network-related. In the action now decided by the Federal Court of Justice, ODEG had passed on the penalties to DB Netz AG by way of recourse for those delays that were not caused by itself. The recourse claim includes both delays caused by infrastructural deficiencies and delays otherwise occurring on the network. As the network operator, only DB Netz AG has an overview of the causes of delays. This does not imply any guarantee liability on the part of DB Netz AG, as it can exonerate itself at fault level.

The BGH has now basically confirmed this approach, but referred the legal dispute back to the Higher Regional Court of Frankfurt because of the amount of the claim asserted. Since DB Netz AG has asserted, among other things, the invalidity of the penalties anchored by the public transport authorities in the transport contracts (due to violations of the law on general terms and conditions, among other things), the public transport authorities have joined the legal dispute. It remains to be seen whether the Frankfurt Higher Regional Court will also rule on this in the remitted legal dispute.

For the RUs in regional rail transport, the ruling means a long-awaited fundamental clarification of the joint liability of DB Netz AG with regard to delay penalties of the public transport authorities.

But the ruling is also significant for rail freight transport. Because here, too, there are always consequences of damage due to delays that are not caused by the RUs themselves. In such cases, the freight RUs can also assert claims for damages against the network operator.

Advising lawyers: Dr. Anselm Grün (lead), Dr. Dominika Stachurski, Of Counsel Prof. Dr. Patrick Ostendorf, LL.M. (all Regulatory Law/Antitrust Law)