Overlap Between Article 102 TFEU and Sector Regulation: Case C-721/20 DB Station & Service v ODEG

Abstract

The Court of Justice ruled on 27 October 2022 on a request for a preliminary ruling from the Kammergericht (Higher Regional Court of Berlin) in a civil proceeding between DB Station & Service AG and ODEG Ostdeutsche Eisenbahn GmbH concerning reimbursements of alleged unfair infrastructure charges. DB Station & Service is a subsidiary of Germany’s state-owned railway incumbent tasked with managing stations, whereas ODEG is a private new entrant using railway infrastructure for passenger transport. It is the latest ruling in a series of disputes before German and EU courts concerning the competence to review those charges and the provisions applicable thereto. The judicial review of railway infrastructure charges in Germany has, for more than a decade, given rise to many fundamental questions related to the interplay between national civil law and EU law, EU primary law and secondary law, and the competences of regulatory bodies and national courts. It would go far beyond the scope of this article to give a comprehensive overview of all aspects of this fascinating saga. However, some background knowledge on the Court of Justice judgement in DB Station & Service is necessary in order to understand its implications.