ECJ rules on the relationship between antitrust and regulatory law
In a whole series of lawsuits, railway undertakings are claiming back station usage fees paid between 2005 and 2010. Until 2017, they based their claim on section 315 BGB. After the ECJ ruled on 09.11.2017 that § 315 BGB could not be applied in these cases due to the Railway Directive, German courts examined the alleged claims under antitrust law. The ECJ now clarified that any market abuse could be examined by the civil courts. However, this is only possible after the competent regulatory authority (the Federal Network Agency) had reviewed the charges. A corresponding decision by the authority, which has not yet been made in this case, must be observed under cartel law due to the duty of loyal cooperation between the courts and the authority. According to the ECJ, this is the only way to ensure that the special features of the railway infrastructure, which had to be taken into account by the regulatory authority, were also taken into account in the anti-trust assessment.
