3/2006 - Germany's new Railway Act (AEG) violates EU law

Complaint with the European Commission in order to initiate legal proceedings against the Federal
Republic of Germany

Netzwerk Privatbahnen has commissioned international lawyers Hogan &
Hartson Raue to lodge a complaint with the European Commission and
urge the Commission to initiate legal proceedings against the Federal
Republic of Germany for a so-called transposition infringement.  

The main basis for the complaint is the claim that since its transposition of
the so-called First Railway Package, which has been overdue since 2003,
the Federal Republic of Germany has adopted a legislative approach that
falls outside the scope of EU directives. Under Germany's new Railway
Act (AEG), the particular approach taken by Germany leaves two functions
of critical importance in the context of competition, namely train path
allocation and charging, under the control of Deutsche Bahn (DB).
However, EU directives 2001/12 and 2001/14 either provide for fully
separate legal ownership of infrastructure companies and rail operators or
– if the national legislator should decide against such institutional
separation - stipulate that train path allocation and charging should be the
responsibility of a neutral body separate from the rail operator. In 2005,
when the AEG was reviewed, the German legislator decided against any
institutional separation of the national rail network and its operation, opting
instead to perpetuate the system dominated by the integrated group. To
comply with the regulations, a neutral body should have been set up to
independently execute the aforementioned functions, which are prone to
discrimination. This is not foreseen by the AEG and hence competition is
limited.
 
Netzwerk Privatbahnen is having the arguments drawn up for the
European Commission with a view to ensuring that conditions of
competition in Germany are fair and in line with EU legislation. This cannot
be achieved without imposing pressure from Brussels.