Last week, AG Jääskinen published his opinion in Westbahn v. ÖBB Infrastruktur, a case that I actually care about enough that I spent some time trying to figure out what would happen back when I first heard about it a few months ago. Just like me, he concludes that it could go either way. However, because it is his job to actually make a recommendation, the AG decided to just make stuff up, ZGB-style.
Last december, Westbahn entered the Austrian long-distance passenger transport market, starting a service between Vienna and Salzburg. (Italo did the same in Italy last April, putting those countries well ahead of the Netherlands, Germany, France and most other countries in continental Europe.) Because the open access regime in European law was mostly a theoretical possibility until now (on paper, it has existed in Germany since 1994, but so far no one has actually used it), they ran into a number of difficulties. One of those problems – the one that is the topic of this particular piece of litigation – is how to treat the different companies’ services for the purposes of delay information. If a Westbahn train is delayed, passengers are given information about the main connections that are available to them now that they’ve missed the connections they were planning to take. But how can Westbahn give such information about connections to ÖBB trains unless it has real-time data about the ÖBB service?
ÖBB Infrastructure, the defendant here, refused to give this information, arguing that Westbahn should make a bilateral agreement with ÖBB Passenger transport. ÖBB Passenger transport declined to enter into such a contract, unsurprisingly. The regulator, Schienen-Kontrol Kommission, which apparently counts as a judicial entity (cf. par 26-30 of the AG’s opinion), didn’t know whether ÖBB was legally required to provide this information to Westbahn, so they asked a prejudicial question. (Well, two actually.)
1. Is Article 8(2) of, in conjunction with Annex II, Part II, to, Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations to be interpreted as meaning that information on main connecting services must include, in addition to scheduled departure times, notification of delays to or cancellations of those connecting services?
2. If the answer to Question 1 is in the affirmative: is Article 5 of, in conjunction with Annex II to, Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure [and safety certification] to be interpreted, in the light of Article 8(2) of, in conjunction with Annex II, Part II, to, Regulation (EC) No 1371/2007, as meaning that the infrastructure manager is under an obligation to make real‑time data on other railway undertakings’ trains available to railway undertakings in a non‑discriminatory manner, in so far as those trains constitute main connecting services within the meaning of Annex II, Part II, to Regulation (EC) No 1371/2007?
This is an interesting way of getting where they want to go: dividing it up into two steps. As it turns out, neither of them is entirely obvious, but they are at least plausible. The article from the Passenger Rights Regulation mentioned in question 1 simply says that passengers have to be provided with the information listed in the Annex. Turning to Annex II, part II, we simply find a list:
Part II: Information during the journey
- On-board services
- Next station
- Main connecting services
- Security and safety issues.
So the information that must be provided to passenger includes “delays” and “main connecting services”, but what about “delays of main connecting services”? Because the Annex is in list format, there is no way to tell either way.
The second question again requires a logical leap. The claim that infrastructure managers should do their thing on a non-discriminatory basis is reasonable enough. But is that enough to get Westbahn where they want to go? Again, the article in question talks in general terms about the services that have to be provided, in this case by the infrastructure manager to the operator, and the Annex is again in list-form. The items quoted by the AG, which presumably form the basis of Westbahn’s claim, are:
(d) train control including signalling, regulation, dispatching and the communication and provision of information on train movement;
(e) all other information required to implement or operate the service for which capacity has been granted.
…which is not exactly very specific.
Just because this information has to be provided on a non-discriminatory basis, does not mean that the infrastructure manager has to inform the operators about each other’s – in ÖBB’s words – business secrets. It is perfectly possible for ÖBB Infra to act in a non-discriminatory manner by giving each company only information about other trains from the same company and from other operators to the extent that a bilateral agreement exists. That would be a perfectly neutral approach to take, although of course it would benefit the incumbent. (Which, I’m sure, never once crossed the mind of ÖBB Infra.)
AG Jääskinen essentiall comes to the same conclusions. Regarding question 1:
40. A narrow interpretation of the provisions of Annex II, Part II, to Regulation No 1371/2007 concerning the information to be provided during a railway journey would limit the information to which passengers are entitled, with respect to main connecting services, to the departure times described in the timetable. However, such an interpretation would be contrary to the interests of passengers and would prevent the achievement of the objectives of Regulation No 1371/2007, among which include, in the case of late arrivals or departures, the right to be informed of them by the railway undertaking or the station manager, and as soon as such information is available (see, in addition to recital 4, Article 18(1) of Regulation No 1371/2007).
In other words, the provision could be read narrowly, but we don’t want to because that would be contrary to the objective of the reform. The rest of his discussion of the first question just expands on this approach, quoting the different parties’ submissions.
Regarding question 2, there is even less window-dressing. The key problem is simply ignored, and the AG immediately moves on to what is desirable:
47. By its second question, the Schienen‑Control Kommission essentially wishes to know whether a railway infrastructure manager has an obligation to communicate to railway undertakings real time data concerning the main connecting services of other rail transport providers.
48. The question therefore concerns whether there is a correlating obligation on a rail infrastructure manager, under Directive 2001/14, to make information available to railway undertakings that the latter are bound to supply under Article 8(2) of Regulation No 1371/2007.
49. I would answer this question in the affirmative. As was argued by the Polish Government, Directive 2001/14 cannot be interpreted in such a way as to impede the objectives envisaged under Regulation No 1371/2007.
A bit lower, we find some additional pragmatism:
54. A broad interpretation of what is ‘required’, of the kind I am here advocating, is particularly appropriate in the light of the manner in which the railway sector has been re‑organised in Austria as a consequence of liberalisation. This issue is linked with the alleged lack of independence of ÖBB‑Infrastruktur AG from the market leader ÖBB‑Personenverkehr AG. The Court will consider this question in the pending Case C‑555/10 Commission v Austria.
So yes, a narrow reading of the law would produce unpleasant results, so we will read it broadly instead.
It is important to emphasise that I do not think the AG got it wrong. Teleological interpretation is an established approach in EU law, and it has been abused much worse than it is here. When faced with two (or more) viable interpretations of the law, it is a reasonable solution to choose. The only problem is that the EU judiciary has a bit of a reputation in this regard, meaning that they have to be extra careful to motivate their analysis carefully. That means firstly examining carefully the more “objective” interpretation methods, such as a textual interpretation, and then carefully supporting the teleological interpretation not only with quotes from the recitals of EU railway legislation, but also from the travaux préparatoires. Quoting the submissions of parties is no substitute.
It seems quite likely that the Court will follow this opinion. Let’s just hope, though, that their explanation will have more meat to it.
Finally, there is the question of what any of this has to do with the Swiss Civil Code. The answer is that the ZGB has a legendary – at least among legal history geeks – first article:
1 Das Gesetz findet auf alle Rechtsfragen Anwendung, für die es nach Wortlaut oder Auslegung eine Bestimmung enthält.
2 Kann dem Gesetz keine Vorschrift entnommen werden, so soll das Gericht1 nach Gewohnheitsrecht und, wo auch ein solches fehlt, nach der Regel entscheiden, die es als Gesetzgeber aufstellen würde.
3 Es folgt dabei bewährter Lehre und Überlieferung.
In other words, the judge is instructed, if no other source can be found to answer a legal question, to give the answer that he would give if he were a lawmaker. Conceptually, that is fantastically interesting. It is also more or less what AG Jääskinen did in his opinion.