Wettbewerb auf der Schiene: Gericht: Fernverkehrsbeschluss der Netzagentur rechtswidrig

The German state rail company, Deutsche Bahn, must make at least a quarter of its capacity available to competitors on congested routes following a decision by the Administrative Court in Cologne. The court declared a decision by the Federal Network Agency, which obligated the rail infrastructure subsidiary InfraGo of Deutsche Bahn to a competitive clause, unlawful due to the speed of its issuance.

The ruling cannot be appealed. The decision is prompted by the planned entry of the Italian railway company Italo into German long-distance rail transport starting in 2028. Italo had lodged a complaint with the Federal Network Agency against the manner in which limited rail capacities in Germany are allocated. The company aimed to improve the conditions for new competitors.

Consequently, the Federal Network Agency on July 17th decided that InfraGo must allocate between 25 and 40 percent of capacities to competitors on heavily congested corridors with established capacity limits, such as Munich and Frankfurt hubs. However, Deutsche Bahn contested the decision swiftly, arguing that it would result in a significant increase in conflicts over the use of specific routes at certain times, leading to legal and practical challenges for the management of rail capacities by InfraGo.

The court justified its decision based on the absence of any provision in both European and national rail regulatory laws that mandates a rail operator to include a competitive clause in its operating conditions. Additionally, the court held that the clause is unsuitable for achieving the intended objective.