Trans-European transport network. The Court of Justice rules on suppressing the connection of inland ports with the road or rail transport infrastructure

On 16 June 2022, the Court of Justice handed down its judgment in Case C‑229/21, Port de Bruxelles SA and Région de Bruxelles-Capitale v Infrabel SA, on the interpretation of Article 15(1) of Regulation (EC) No 1315/2013. The request has been made in two proceedings between Port de Bruxelles SA (“Port”) and Infrabel SA (“Infrabel”), an undertaking managing the railway infrastructure in Belgium, and between Région de Bruxelles-Capitale (Region of Brussels-Capital) and Infrabel concerning the request submitted by Port to obtain an order for Infrabel to keep the port of Brussels’ only railway access to the Belgian railway network perfectly functioning.

On 12 October 2018, Port sued Infrabel before the Tribunal de première instance francophone de Bruxelles (French-speaking Court of First Instance of Brussels) to prevent it from dismantling the buildings and installations covered by Regulation No. 1315/2013 and, in particular, the port of Brussels’ only railway access to the Belgian railway network which, according to two royal decrees of 2004, Infrabel should have dismantled and restored by 31 December 2020. On 30 October 2018, therefore, Infrabel sued the FIF-FSI (Fonds d’Infrastructure FerroviaireSA (Railway infrastructure Fund; “FIF”) to force its intervention.

Subsequently, Port asked the court of first instance to prohibit Infrabel, pending the final judgment on the merits of the case, from dismantling the railway connection concerned, and to order the company to keep the network perfectly functioning, while Infrabel asked the judge, in case the above mentioned request was accepted, to prohibit FIF from asking for compensation pending the judgment. During the proceedings, however, FIF and Infrabel concluded an agreement extending to 30 June 2021 the date by which the railway network concerned should have been dismantled.

Since the Tribunal de première instance francophone de Bruxelles rejected Port’s request for interim measures, the latter appealed to the Cour d’appel de Bruxelles (Court of Appeal of Brussels; the “referring court”) which, in light of the need to interpret the relevant European legislation, decided to stay the proceedings and to ask the Court of Justice whether Article 15(1) of Regulation No. 1315/2013 should be interpreted as meaning that, when an inland port is part of the global network, pursuant to Article 6 (1) and (3) and Article 38 of that regulation, and has connections with both road and rail transport infrastructures, it precludes, save in exceptional circumstances, removing one of these two types of connections.

According to the Court Article 15(1) of Regulation No. 1315/2013, in light of its context, precludes the abolition, as regards an inland port that already has connections both with road and rail transport infrastructures, of its connection with one of these two types of infrastructures. Nevertheless, taking into account the objectives pursued by Regulation No. 1315/2013 on environment, traffic safety and land planning, certain exceptional circumstances are, a priori, suitable to justify removing the connection of an inland port with road or rail transport infrastructures. The transport infrastructure’s lack of maintenance by the responsible authorities of the Member State concerned or the economic exploitation of the land occupied by such infrastructure, however, do not qualify as such.

Marco Stillo