Cologne court strikes down order forcing Deutsche Bahn to free rail capacity for Italo
The Cologne Administrative Court ruled on Thursday that a Bundesnetzagentur order on competitor capacity is unlawful, and the decision cannot be appealed. The order had been meant to ease Italo's planned entry into German long-distance rail in 2028.
The ruling
The Administrative Court in Cologne ruled on Thursday that a competitor clause imposed by the Bundesnetzagentur (BNetzA), Germany's federal network regulator, is unlawful. The decision was issued as an emergency ruling (Eilbeschluss) and cannot be appealed. Deutsche Bahn is therefore not required to keep a quarter of capacity on the busiest long-distance lines free for rivals. Reports gave slightly different descriptions of the order: the BNetzA set a range of 25 to 40 percent, while some outlets summarized it as at least one quarter.
The court gave two grounds. First, neither European nor German rail regulation law obliges a track operator to include a competitor clause in its access terms, so the regulator had no legal basis to impose one. Second, the clause was judged unsuitable for achieving its stated purpose. The court found the rule too weak to trigger investment, and said no investment decision would be made dependent on whether the clause existed.
Background: the Italo complaint
Italo, the Italian rail operator, plans to run trains in Germany from 2028 and has planned high investment sums for that entry. It filed a complaint with the BNetzA about how scarce rail capacity is allocated, and had asked for multi-year framework contracts to secure planning certainty. The regulator rejected that request and instead ordered the competitor clause, limited to particularly congested lines. On 17 July the BNetzA decided that DB InfraGo, a Deutsche Bahn infrastructure subsidiary, must give competitors 25 to 40 percent of capacity on heavily used corridors with defined capacity limits, such as the Munich and Frankfurt nodes. In a conflict, a single company would receive only 60 to 75 percent of long-distance capacity on those corridors.
Deutsche Bahn challenged the order in an emergency procedure. It argued that the clause would significantly increase conflicts over the use of certain train paths at certain times, creating legal and practical problems for InfraGo's management of track capacity. InfraGo produces the network timetables year by year.
A second order also fell
The BNetzA had also wanted to require Deutsche Bahn to give competitors space at stations for their own lounges. The court refused to classify those lounges as service facilities, ruling that the services offered there were not 'railway-operations related'. It held that the BNetzA had no jurisdiction over such offers.
Reactions and what follows
Deutsche Bahn said the ruling creates clarity, and wrote in a press release:
This is also good given the very limited capacity on the German rail network.
The BNetzA told Die Zeit that it still considers the clause sensible 'to promote competition on the rail in the interest of passengers'. The network timetable for 2028 will nonetheless be drawn up without the clause. Italo's order of 26 high-speed trains, worth about 1.2 billion euros, is built at the Siemens plant in Krefeld, which employs around 2,000 people. Reporting on the ruling raised the question of what it means for that contract, and the future of the order remains open in the coverage.
