Legal topics
Procedure 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 the project partners seeking additional financing contributions on the basis of what is known as the negotiation clause. We submitted our surrejoinder in June 2021, to which the defendants responded in a timely fashion in early 2022. No further pleadings have been filed at this time. The court announced a date for a hearing.
Civil proceedings on infrastructure utilization fees
A large number of disputes relating to train-path and station fees are still pending with the civil courts. This concerns the question of whether, and according to which standards, the civil courts may subject the regulated fees to a further civil court assessment. According to a judgment by the German Federal Supreme Court (Bundesgerichtshof; BGH) in 2011, rail infrastructure usage fees charged on the basis of the legal situation before the entry into force of the ERegG could be reviewed by civil courts for their equity on the basis of Section 315 of the German Civil Code (BGB), even if they were effective under regulatory law. The European Court of Justice (ECJ) ruled in 2017 that a review of the equity of infrastructure charges by civil courts in accordance with Section 315 BGB is incompatible with European railway law. However, the BGH continued to stipulate an antitrust law review by the civil courts. On February 8, 2022, the BGH issued final rulings for the first time, requiring DB Netz AG to repay regional factor fees. On October 27, 2022, the ECJ ruled in a preliminary ruling procedure that the antitrust law applicable to rail infrastructure charges by the civil courts was affirmed in principle, but this was linked to the condition that the regulatory authority will be consulted first, and the civil courts must follow their ruling (ECJ, C-721/20 – DB Station&Service). With reference to the ECJ ruling, the BNetzA has opened proceedings to review the old fees in dispute. It is not yet clear how the proceedings will develop.
European Commission investigation support measures for DB Cargo
The European Commission is carrying out state aid proceedings against the Federal Republic of Germany concerning possible support measures for DB Cargo AG. With the decision of January 31, 2022, it initiated a formal investigation procedure. The investigation is based on a complaint from a competitor. The competitor believes the domination and profit and loss transfer agreement between DB Cargo AG and DB AG, as well as certain other measures, represents competition-distorting aid. The purpose of the investigation that has now been initiated is to clarify the issues raised. The European Commission is conducting the examination without prejudging the outcome. The Federal Republic of Germany and DB Group had already rejected the allegations during the preliminary investigation. In their view, the measures do not in fact contain any aid.
Partial administration of Schenker Italiana S.p.A.
On May 17, 2022, a subsidiary of DB Schenker, Schenker Italiana S.p.A., Peschiera Borromeo/Italy, was put into partial administration. An administrator was appointed. It was not a criminal case against the company or its management, but a preventive measure to prevent the use or infiltration of the company by external parties. The administration was lifted on February 9, 2023, after the company had further strengthened specific aspects of its internal control system.
Antitrust topics
Antitrust proceedings of the Federal Cartel Office (Bundeskartellamt) for online distribution
In administrative proceedings against DB AG conducted by the Federal Cartel Office (Bundeskartellamt, BKartA) since 2019, the Federal Cartel Office sent DB AG a draft prohibition order, known as a warning letter in April 2022. According to its preliminary assessment, the Federal Cartel Office came to the conclusion that the structure of DB AG’s relationship with online sales service providers who distribute their tickets for DB AG as a commercial representative is prohibited in certain respects. The proceedings concern new legal issues relating to online sales and distribution, for which established case law and administrative practice has been lacking to date. DB AG has commented on the allegations and is still in dialog with the Federal Cartel Office.
DB Group appeals ruling against rail cartel
DB Group companies filed an appeal against the judgment of the Frankfurt am Main Regional Court of August 3, 2022 before the OLG Frankfurt am Main (Higher Regional Court) due to serious errors in the facts of the case and in the legal assessment. The District Court of Frankfurt am Main rejected the claim for compensation for damages by DB Netz AG and other DB companies against Moravia Steel, a Czech steel manufacturer, and other companies under the statute of limitations. Between 2001 and 2010/2011, several rail suppliers illegally agreed on delivery rates and prices for deliveries of rail to DB Group. In 2012 and 2013, the German Federal Cartel Office imposed fines totaling € 134.5 million on Moravia Steel and other cartel members. In December 2012, DB Group brought an action for compensation for damages in the amount of several hundreds of millions of euros before the Frankfurt am Main Regional Court.
