The commercial law firm orka has represented 14 rail freight companies in important proceedings before the European Court of Justice (ECJ) regarding the admissibility of the so-called “track access charge brake” under EU law. The proceedings are of considerable importance for the entire rail sector.

The proceedings are based on summary proceedings initiated in 2024 by DB InfraGO AG before the Cologne Administrative Court against the approval of the 2025 train path pricing system by the Federal Network Agency. The Cologne Administrative Court considers the cap on train path charges in local rail passenger transport (SPNV) introduced by Section 37 (2) ERegG to be contrary to EU law and has therefore referred the question of conformity with EU law to the ECJ for a preliminary ruling.

In addition to the 14 freight transport companies represented by orka, the Federal Network Agency, the European Commission and the so-called public authorities responsible for the organization and financing of regional rail transport in certain areas were also involved in the oral hearing in Luxembourg on 4 December 2025.

The orka team led by partner Dr. Anselm Grün, salary partner Dr. Dominika Stachurski and salary partner Dr. Moritz Dästner (all in charge) expects a ruling from the ECJ in 2026. Until then, the industry will remain in a phase of considerable uncertainty with regard to the future structure and level of train path charges.

Background: Shift in the distribution of costs in the rail network

The track access charge cap limits the charges that DB InfraGO AG may levy as a rail infrastructure operator for the use of infrastructure (rail network, passenger stations) in regional passenger rail transport. This cap is legally linked to the amount of regionalization funds that the federal government provides to the federal states for regional rail transport.

As DB InfraGO has to cover its total costs through the sum of all charges, the limitation of regional rail passenger transport charges effectively leads to a cost shift at the expense of rail freight transport (SGV) and long-distance passenger rail transport (SPFV). The issue of fair and legally compliant burden sharing has been a highly controversial issue in the industry for years.

Advising lawyers orka: Dr. Anselm Grün (Partner, Regulatory, Berlin, lead), Dr. Dominika Stachurski, LL.M. (Salary Partner, Regulatory, Berlin, lead), Dr. Moritz Dästner (Salary Partner, Antitrust, Düsseldorf, lead), Dr. Johannes Bethge, MLE. (Salary Partner, Regulatory, Berlin), Prof. Dr. Patrick Ostendorf, LL.M. (Of Counsel, Regulatory, Berlin).