Legal topics

Important legal topics are presented in the 2022 Integrated Report; significant developments occurred in relation to the following legal issues in the first half of 2023.

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 the project partners seeking additional financing contributions on the basis of what is known as the “negotiation clause.” The first oral hearing took place on May 8, 2023, which consisted mainly of procedural matters. The date for the continuation of oral proceedings was set for August 1, 2023. On this continuation date, the court wants to hear the factual and legal position, in particular regarding the contractual adjustment claim asserted by DB Group. The outcome of the proceedings remains undetermined.

Civil proceedings on infrastructure utilization fees

A large number of disputes relating to train-path usage and station fees are still pending in 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 ruling by the German Federal Supreme Court (BGH) in 2011, rail infrastructure utilization fees charged before the Railway Regulation Act (ERegG) entered into force could be reviewed by civil courts for fairness based on Section 315 of the German Civil Code (BGB), even if they were valid under regulatory law. The European Court of Justice (ECJ) ruled in 2017 that a review of the fairness of infrastructure fees by civil courts pursuant to 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 issued a preliminary ruling that the antitrust law applicability to rail infrastructure fees 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 up­hold their decision (ECJ, C - 721/20 – DB Station & Service). With reference to the ECJ ruling, the German Federal Network Agency (BNetzA) has initiated a review of the old fees in dispute. In addition, DB Netz AG is awaiting another preliminary ruling from the ECJ regarding the extent of the BNetzA’s retrospective review powers (C- 582/22). It is not yet clear how the proceedings will develop.

Antitrust topics

Antitrust proceedings initiated by the Federal Cartel Office regarding online sales and distribution

In an administrative procedure by the Federal Cartel Office (BKartA) against DB AG first initiated in 2019, the BKartA issued a prohibition order against DB AG on June 26, 2023, which was served on DB AG on June 28, 2023. The BKartA 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 there is currently no established case law or administrative practice. The order requires DB AG to make changes to its sales system on short notice. No fine was imposed. DB AG considers the decision unlawful and has appealed it.

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