2017 Integrated Report – Departure into a new era

Legal topics

Proceedings regarding additional financing contributions for Stuttgart 21

At the end of 2016, in order to avoid risks under the statute of limitations, we initiated proceedings in the Stuttgart Administrative Court against our project partners seeking additional financing contributions on the basis of what is known as the negotiation clause. Following several extensions, the time limit for our project partners to file a statement of defense is January 31, 2018. A hearing cannot be expected to take place before the second half of 2018.

Civil proceedings on infrastructure usage fees

According to a ruling by the Federal Court of Justice (Bun­desgerichtshof; BGH) in 2011, fees for the use of rail infrastructure could be reviewed by the civil courts for fairness under legislation prevailing before the entry into force of the Railway Regulation Act (Eisenbahnregulierungsgesetz, ERegG), according to the standard set out in Section 315 of the German Civil Code (Bürgerliches Gesetzbuch; BGB), even if the BNetzA did not object to the fees and they were effective according to regulatory law. In 2016, the ERegG created legal certainty by introducing approval of train-path and station-use charges by BNetzA and legally ex­cluding a parallel review of approved charges by the civil courts on the basis of proceedings under Section 315 BGB.

However, a number of legal disputes between DB Netz AG, DB Station&Service AG and TOC or public transport authorities or Federal states are currently pending based on the previous legal situation.

In September 2015, Berlin Regional Court suspended civil proceedings based on the previous legal situation and asked the European Court of Justice (ECJ) for a preliminary ruling on the applicability of fairness reviews under civil law. On November 9, 2017 the ECJ ruled that fairness reviews of infrastructure charges by civil courts in accordance with Section 315 BGB are incompatible with European railway law. In December 2017, the BGH withdrew a parallel request of the BGH for a preliminary ruling in proceedings relating to station fees. Following the ECJ ruling a retrospective fair­­ness review of rail infrastructure charges is excluded, even based on the previous legal situation. The civil proceedings still pending in this matter must now be considered by the civil courts in accordance with the rulings of the ECJ. In the light of the ECJ ruling, DB Netz AG – and consequently also DB Station&Service AG, it is thought – now have much im­­proved prospects of success in these proceedings.

Lawsuit by the Federal state of Saxony-Anhalt

The Federal state of Saxony-Anhalt filed a lawsuit against DB Netz AG, DB Regio AG and DBAG claiming compensation for damages under antitrust law due to allegedly illegal train-path pricing by DB Netz AG through the levying of regional factors between 2005 and 2011. The lawsuit was extended to include the assertion of corresponding claims against DB Regio AG for 2003 and 2004. DB Group opposed this lawsuit in every respect. For its part, DB Regio AG is suing the Federal state of Saxony-Anhalt for reimbursement of outstanding transport contract-related receivables re­­lating to increased infrastructure utilization costs between 2008 and 2014. The Federal state has offset its alleged claims for compensation under antitrust law for 2003 and 2004 against the receivables owing to DB Regio AG. The ruling of the ECJ on the non-applicability of Section 315 BGB has improved our prospects of success in both cases. We expect rulings in the course of 2018.