Competition on the rails: Court: Network agency's long-distance transport decision unlawful

According to a decision by the Cologne Administrative Court, Deutsche Bahn does not have to release at least a quarter of its capacity to competitors in long-distance transport on highly busy routes.

In an emergency decision, the court declared a decision by the Federal Network Agency, which obliges the rail network operator DB InfraGo to a competition clause, to be unlawful. The decision cannot be appealed.

The background is the planned market entry of the Italian railway company Italo into German long-distance transport from 2028. Italo had lodged a complaint with the Federal Network Agency against the way in which the already limited rail capacities in Germany are allocated. The company wanted to improve the conditions for new competitors.

Court: Clause is unsuitable to achieve objective

The Federal Network Agency (BNetzA) then decided on July 17th that the responsible rail infrastructure subsidiary InfraGo would have to award 25 to 40 percent of its capacities to competitors in the future. This therefore applies to heavily used corridors with designated capacity limits, such as those planned for the Munich and Frankfurt nodes.

Deutsche Bahn took urgent action against the BNetzA decision and argued that this would significantly increase the number of conflicts over the use of certain routes at certain times. This would create legal and practical problems for the management of the route capacities by InfraGo.

The court now based its decision on the fact that neither European law nor national railway regulatory law provides for “an obligation for railway operators to include a competition clause in their terms of use”. In addition, the clause is unsuitable for achieving the purpose it pursues.