ECLI:EU:C:2026:317

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OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 16 April 2026 (1)

Joined Cases C‑161/25 and C‑162/25

Autorità di regolazione dei trasporti

Captrain Italia,

Rail Cargo Carrier Italy Srl,

Fuorimuro Inpresa Ferroviaria Srl,

Inrail SpA,

SBB Cargo Italia Srl,

Oceanogate Italia SpA,

GTS Rail SpA,

Adriafer Srl with sole shareholder,

DB Cargo Italia Srl,

Sangritana SpA (C‑161/25),

and

Lokomotion Gesellschaft für Schienentraktion mbH (C‑162/25)

Other party:

Rete Ferroviaria Italiana SpA

(Requests for a preliminary ruling from the Consiglio di Stato (Council of State, Italy))

( Reference for a preliminary ruling – Transport – Single European railway area – Directive 2012/34/EU – Article 35 – Performance scheme – Scope – International freight service – Disruption attributable to the railway undertakings – Border penalties – National penalty scheme additional to and distinct from the general scheme applying to the entire network – Combination of more than one penalty scheme – Coordination of those different schemes – Conditions – Member States’ discretion )

I. Introduction

1. The present requests for a preliminary ruling, submitted by the Consiglio di Stato (Council of State, Italy), concern the interpretation of Article 97 TFEU and Article 35 of Directive 2012/34/EU. (2)

2. The requests were made in two sets of proceedings between, on the one hand, the Autorità di regolazione dei trasporti (Transport Regulatory Authority, Italy) (‘the ART’) and Rete Ferroviaria Italiana SpA (‘RFI’) and, on the other, a number of railway undertakings active on the Italian market, (3) concerning the decision of the ART approving the ‘indications and requirements relating to the “2024 network statement”’ drawn up by the national railways infrastructure manager, namely RFI, which include a penalty scheme intended to penalise railway undertakings for exceeding the stop time at stations connecting with foreign networks (‘border penalties’).

3. In accordance with the Court’s request, the present Opinion will be targeted on the analysis of the first five questions referred for a preliminary ruling in those two cases, which are worded in almost identical terms. Those questions raise, in essence, the point whether Article 35 of Directive 2012/34, a provision which has not yet been interpreted by the Court, allows the Member States to establish, alongside the performance scheme provided for in that article, specific penalty schemes linked with disruption of the rail network and, if so, whether and to what extent those different schemes may be combined and must be coordinated.

II. Legal framework

A. European Union law

4. Recitals 2 and 3 of Directive 2012/34 state:

‘(2) Greater integration of the Union transport sector is an essential element of the completion of the internal market, and the railways are a vital part of the Union transport sector moving towards achieving sustainable mobility.

(3) The efficiency of the railway system should be improved, in order to integrate it into a competitive market, whilst taking account of the special features of the railways.’

5. Article 35 of that directive, entitled ‘Performance scheme’, is worded as follows, in paragraphs 1 and 2:

‘1. Infrastructure charging schemes shall encourage railway undertakings and the infrastructure manager to minimise disruption and improve the performance of the railway network through a performance scheme. This scheme may include penalties for actions which disrupt the operation of the network, compensation for undertakings which suffer from disruption and bonuses that reward better-than-planned performance.

2. The basic principles of the performance scheme as listed in point 2 of Annex VI shall apply throughout the network.’

6. Article 56 of that directive, entitled ‘Functions of the regulatory body’, sets out the functions of the regulatory body. Under paragraph 1, an applicant is to have the right to appeal to that regulatory body if it believes that it has been unfairly treated, discriminated against or is in any other way aggrieved, and in particular in order to challenge certain decisions of the infrastructure manager, including those relating to the network statement and the criteria set out in that document. In accordance with paragraph 2 of that article, the regulatory body is to check whether the network statement contains discriminatory clauses.

7. Annex VI to that directive, entitled ‘Requirements for costs and charges related to railway infrastructure’, is worded as follows, in point 2:

‘The performance scheme as referred to in Article 35 shall be based on the following basic principles:

(a) In order to achieve an agreed level of performance and not to endanger the economic viability of a service, the infrastructure manager shall agree with applicants the main parameters of the performance scheme, in particular the value of delays, the thresholds for payments due under the performance scheme relative both to individual train runs and to all train runs of a railway undertaking in a given period of time;

(b) The infrastructure manager shall communicate to the railway undertakings the working timetable, on the basis of which delays will be calculated, at least five days before the train run. The infrastructure manager may apply a shorter notice period in case of force majeure or late alterations of the working timetable;

…’

B. Italian law

1. Decree-Law No 201/2011

8. According to Article 37 of decreto-legge n. 201 – Disposizioni urgenti per la crescita, l’equità e il consolidamento dei conti pubblici (Decree-Law No 201 laying down emergency provisions for growth, fairness and consolidation of public accounts) of 6 December 2011, (4) converted into a law, with amendments, by Law No 214 of 22 December 2011, (5) entitled ‘Liberalisation of the transport sector’:

‘1. In the context of the regulation of public utility services provided for by legge 14 novembre 1995, n. 481 (Law No 481 of 14 November 1995), the Transport Regulatory Authority is hereby established,… having full autonomy and using its independent judgment and assessment. … The Authority shall oversee the transport sector and the access to relevant infrastructures and ancillary services, in accordance with EU legislation and in compliance with the subsidiarity principle and respecting the jurisdiction of regions and local authorities as referred to in Title V of Section Two of the Constitution. …

2. The Authority shall oversee the transport sector and access to the relevant infrastructures and in particular:

(a) shall ensure, adopting methods that encourage competition, the productive efficiency of operations and the containment of costs for users, undertakings and consumers, as well as fair and non-discriminatory conditions for access to rail, port, airport and motorway infrastructures, …

(b) where it is deemed necessary on the basis of competition conditions actually prevailing in each national and local transport service market, shall set the criteria to determine tariffs, charges and tolls applied by the competent entities, by taking into account the need to ensure the economic equilibrium of regulated undertakings, efficient management production and the containment of costs for users, undertakings and consumers;

…

(i) with particular reference to access to the railway infrastructure, shall perform all the functions of a regulatory body as referred to in article 37 of decreto legislativo 8 luglio 2003, n. 188 (Legislative Decree No 188 of 8 July 2003) and, in particular, shall define the criteria for setting tolls applied by the infrastructure manager and those applying to path and capacity allocation, and supervise their correct application by the infrastructure manager;

…’

2. Legislative Decree No 112/2015

9. Article 13 of decreto legislativo n. 112 – Attuazione della direttiva 2012/34/UE del Parlamento europeo e del Consiglio, del 21 November 2012, che istituisce uno spazio ferroviario europeo unico (Rifusione) (Legislative Decree No 112 transposing Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area (recast)) of 15 July 2015, (6) entitled ‘Conditions of access to services’, states, in paragraph 1:

‘The infrastructure manager shall ensure, and therefore supply, to all railway undertakings to which time paths have been allocated, on fair and non-discriminatory terms and without any additional charge with respect to the charge for access to and use of the infrastructure, the provision of the following services constituting the minimum access package:

(a) processing of requests for railway infrastructure capacity with a view to concluding contracts for the use of the infrastructure;

(b) right to use allocated capacity;

(d) monitoring and regulating train movements, signalling routing convoys, and providing any traffic information;

(e) use of electrical supply equipment for traction current, where available;

(f) all other information required to implement or operate the service for which capacity has been granted.

…’

10. Article 21 of that legislative decree, entitled ‘System for monitoring the performance of railway transport’, provides:

‘1. In order to minimise malfunctions resulting from any disruption to train movements, the infrastructure manager shall adopt, with no additional charge to the State budget, a specific rail transport performance monitoring scheme, which may provide for penalty clauses against network users causing such disruption, compensation for network users which suffer loss or damage as a result of such disruption and types of bonuses for network users which distinguish themselves by performance levels better than those planned in the respective infrastructure access contracts.

2. The basic principles of the performance scheme, referred to in point 2 of Annex VI to [Directive 2012/34], shall apply to the entire network run by the infrastructure manager.’

11. Article 37(1) of that legislative decree, entitled ‘Regulatory body’, provides:

‘The regulatory body shall be the Transport Regulatory Authority, which shall exercise powers in the sector covering rail transport and access to related infrastructures pursuant to Article 37 of Decree-Law No 201 of 6 December 2011, converted into a law, with amendments, by Law No 214 of 22 December 2011, to Article 37 of Decree-Law No 1 of 24 January 2012, converted into a law, with amendments, by Law No 27 of 24 March 2012, to [Directive 2012/34] and to this Decree. That body shall have full autonomy and use its independent judgement and assessment. …’

III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

12. By a decision adopted in 2022, the ART approved the ‘indications and requirements relating to the “2024 network statement”’ submitted by the national railway infrastructure manager, namely RFI. In the context of that decision, the ART established that some of those indications and requirements would be incorporated in the prospetto informativo della rete (network statement) (‘the NS’) for 2024, while others would be incorporated in the 2023 NS.

13. The indications and requirements relating to the 2023 NS and the 2024 NSs included, in particular, penalties imposed at the border, namely penalties imposed on railway undertakings where the scheduled stop times at border stations were exceeded. Those border penalties are thus added to those already provided for, in the context of the performance scheme based on Article 35 of Directive 2012/34, as transposed into Italian law by Article 21 of Legislative Decree No 112/2015, which establishes a general framework based on the application of penalties in the event of delays attributable to the railway undertakings or to the infrastructure manager.

14. The applicant railway undertakings brought an action before the Tribunale amministrativo regionale per il Piemonte (Regional Administrative Court, Piedmont, Italy), seeking annulment of the decision of the ART and of the 2023 NS, claiming, in particular, that those acts established a penalty scheme distinct from that provided for in Article 35 of and Annex VI to Directive 2012/34.

15. By a judgment delivered in 2023, that court considered that the ART was competent to introduce the border penalties on the basis of Article 35 of Directive 2012/34 and Article 21 of Legislative Decree No 112/2015. However, it considered that, while the fact that those penalties existed alongside those applicable under the performance scheme is not per se contrary to the applicable legislation, the ART ought to have provided that they would also be applicable to the infrastructure manager and made provision for appropriate compensatory mechanisms. In addition, that court noted the absence of coordination between the two incentive schemes and the lack of technical assessment of their potential interactions, with the consequence that the ART’s decision was insufficiently reasoned as regards the specific implementing arrangements. It therefore referred the case back to the ART for reconsideration, if appropriate.

16. The ART and RFI lodged an appeal against that judgment before the Consiglio di Stato (Council of State), the referring court. The applicant railway undertakings lodged a cross-appeal, whereby they challenged the finding of the Tribunale amministrativo regionale per il Piemonte (Regional Administrative Court, Piedmont) that the ART did indeed have the power to adopt the border penalties on the basis of Article 35 of Directive 2012/34.

17. In those circumstances, the Consiglio di Stato (Council of State) seeks to determine whether a scheme such as that established by Article 21 of Legislative Decree No 112/2015, which does not preclude the application of an additional penalty scheme distinct from that provided for generally by the NS is compatible with Article 35 of Directive 2012/34.

18. The referring court wonders, in particular, whether Article 35 of that directive, which makes provision for penalties for incidents which cause the network to malfunction, compensation for undertakings which suffer as a result of such malfunction and bonuses that reward better-than-planned performance, may be interpreted as meaning that such penalties provided for by rules additional to and distinct from the general scheme established by the NS may be introduced, thus entailing a combination of penalties for the same incident (namely a delay at a border station) and de facto extending the provisions of that scheme to breaches of obligations occurring at border stations.

19. In that regard, the referring court considers that an integrated and coordinated scheme including two types of penalties cannot be accepted without a clear definition of its nature and its degree of autonomy in the light of EU law. In its view, it is appropriate, in particular, in accordance with the principle of legal certainty, to determine whether EU law permits such a combination of penalty schemes or, in the event that coordination would be required, to what extent those two schemes ensure, including for the penalties applied at border stations, respect for the principles inherent in the right of access to services.

20. If Article 35 of Directive 2012/34 allowed the combination of more than one penalty scheme, thus permitting a railway undertaking to be given, for the same incident, such as a delay in a border station, both a penalty under the general scheme applicable to the entire network and a specific penalty for a border station, it would be necessary to specify the requirements pertaining to such a combination, namely, first, whether that provision requires that the competent national authority, in this instance the ART, respect the principle of neutrality of the mechanism introduced, in particular by providing for bonuses for diligent railway undertakings, compensation for undertakings that have suffered loss or damage and the application of penalties for the infrastructure manager as well when it is responsible for the delay and, second, whether, and to what extent, Article 35 of that directive requires the competent national authority to coordinate the general scheme of the performance scheme and the specific scheme of border penalties, so that those two mechanisms contribute to achieving, in a coherent manner, the objective of network performance without entailing a disproportionate burden for railway undertakings required to pay border penalties.

21. In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer to the Court, in Case C‑161/25, six questions for a preliminary ruling, the first five of which form the subject matter of the present targeted Opinion:

‘(1) May a penalty scheme be imposed other than that provided for in Article 35 of Directive 2012/34?

(2) Does Article 35 [of Directive 2012/34] permit the combination of more than one penalty scheme, in other words, does it permit, in relation to the same incident – a delay at a border station – the railway undertaking to be subject both to the penalty provided for in the general scheme which applies to the entire network and to a penalty that is specific to the border station?

(3) If the answer to the previous question is in the affirmative, does Article 35 [of Directive 2012/34] require the [Transport Regulatory Authority], when it introduces or, in any event, “validates” a penalty scheme for border stations imposed on rail freight undertakings, to ensure at all times compliance with the provisions of that article, guaranteeing the neutrality of the measure, so that: (i) bonuses must be given to diligent railway undertakings, (ii) compensation is to be provided to undertakings suffering loss or damage and (iii) the penalties must also be imposed on the manager where the manager itself is the cause of the delay, where it is considered that the neutrality of the measure implies that each penalty is such as to affect both sides?

(4) If the answer to [the second question] is in the affirmative, does Article 35 [of Directive 2012/34] require the [Transport Regulatory Authority] to coordinate, and if so to what extent, the penalty scheme incorporated in the “performance [scheme]” and the scheme of border penalties, so that both schemes pursue the objective of network efficiency in a coordinated manner, without being excessively onerous for railway undertakings affected by border penalties?

(5) If the answer to [the second question] is in the affirmative, does Article 35 [of Directive 2012/34] require coordination of the ceilings laid down by the two penalty scheme[s] and an assessment of their economic impact on railway undertakings, so that the principle of efficiency is weighed against the principle[s] of proportionality and reasonableness and the profitability of rail services is not jeopardised?’

22. In Case C‑162/25, the Consiglio di Stato (Council of State) also decided to stay the proceedings and to refer to the Court of Justice for a preliminary ruling the same questions as those submitted in Case C‑161/25, apart from the third question, the final part of which is worded as follows:

‘If the answer to the [second] question is in the affirmative, does Article 35 [of Directive 2012/34] require the [Transport Regulatory Authority], when it introduces or, in any event, “validates” a penalty scheme for border stations imposed on rail freight undertakings, to ensure at all times compliance with the provisions of that article, guaranteeing the neutrality of the measure, so that: (i) bonuses must be given to diligent railway undertakings, (ii) compensation is to be provided to undertakings suffering loss or damage and (iii) the penalties must also be imposed on the manager where the manager itself is the cause of the delay, on the premiss that neutrality implies that each penalty always affects both sides?’

23. By decision of the President of the Court of Justice of 1 April 2025, Cases C‑161/25 and C‑162/25 were joined for the purposes of the written and oral parts of the procedure and the judgment.

24. Written observations were submitted to the Court by Captrain Italia, Lokomotion Gesellschaft für Schienentraktion, RFI and the Italian and Polish Governments, and by the European Commission.

IV. Analysis

A. Preliminary observations

25. The present reference for a preliminary ruling concerns, in essence, the compatibility with Article 35 of Directive 2012/34 of national regulations which do not preclude the implementation of a penalty scheme additional to and distinct from that provided for, generally, by the performance scheme referred to in that article. The interpretation of that article is central to the five questions formulated by the referring court that form the subject matter of the present targeted Opinion.

26. As a preliminary point, I note that Article 35 of Directive 2012/34 provides for the establishment of a performance scheme the objective of which is to optimise the use of the railway infrastructure by encouraging the railway undertakings and the infrastructure manager to adopt more efficient management methods. To that end, that article allows the Member States to implement a set of measures aimed at achieving that objective, including penalties for incidents that disrupt the operation of the network, compensation for undertakings which suffer from that disruption and bonuses that reward better-than-planned performance. The performance schemes thus established by the Member States must also comply with the basic principles set out in point 2 of Annex VI to that directive.

27. It follows, moreover, from the Court’s case-law relating to Article 11 of Directive 2001/14/EC, (7) which was replaced by Article 35 of Directive 2012/34, that while the Member States must include in infrastructure charging schemes a performance scheme aimed at encouraging both railway undertakings and the infrastructure manager to improve network performance, the latter remain free to choose the specific measures that are to form part of the scheme, provided that such measures constitute a coherent and transparent whole which may be described as a ‘performance scheme’. (8)

28. Therefore, as is apparent from the preceding factors, although the Member States are required, under Article 35 of Directive 2012/34, to introduce a performance scheme at national level, that article leaves them a discretion as to its actual configuration, since no detail is provided as regards its form or its precise methods. (9)

29. In fact, as an instrument of minimum harmonisation, that article does not define a specific penalty scheme, but merely gives the Member States the option to provide for a set of measures, including penalties, in order to achieve the objectives pursued by Directive 2012/34. In other words, that article imposes on them an obligation of result, in the sense that they must ensure that the performance scheme put in place makes it possible to minimise disruption and improve the performance of the railway network.

30. It is in the light of the foregoing considerations that the questions referred for a preliminary ruling, relating to the interpretation of Article 35 of Directive 2012/34, submitted by the referring court in the present case should be examined.

B. The first question

1. Admissibility

31. Before I analyse the first question referred for a preliminary ruling, it is appropriate to deal with the plea of inadmissibility raised by the Italian Government. That Government claims, in particular, that, as formulated, that question is inadmissible in so far as the referring court has not specified, first, the nature of the doubt regarding the application of Article 35 of Directive 2012/34 in the main proceedings and, second, whether the interpretation proposed by the referring court in the order for reference may be contrary to a national provision.

32. In that regard, I recall that, according to the Court’s settled case-law, provided that the questions referred to it relate to the interpretation of EU law, they enjoy a presumption of relevance and, in principle, the Court is required to give a ruling. The Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite obvious that the interpretation of EU law sought bears no relation to the actual facts or the purpose of the main action, where the problem is hypothetical or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (10)

33. That does not appear to be the case here, since the first question concerns the interpretation of a provision of EU law, the relevance of which in the context of the main action is sufficiently obvious from the order for reference. It is clear from that order that the interpretation of Article 35 of Directive 2012/34 sought by the referring court is necessary in order to determine whether the Italian scheme applicable in this case, which does not preclude the possibility of establishing a penalty scheme specific to border stations in addition to and distinct from that established by the performance scheme applicable on Italian territory, is contrary to that provision of EU law.

34. It follows that the arguments put forward by the Italian Government in relation to the inadmissibility of the first question must be rejected and, therefore, the first question referred for a preliminary ruling must be held to be admissible.

2. Substance

35. By its first question, the referring court asks, in essence, whether Article 35 of Directive 2012/34 must be interpreted as meaning that the Member States may only introduce a performance scheme in accordance with that article and the basic principles set out in point 2 of Annex VI to that directive, to which that article refers, or whether they may also establish such a scheme outside the framework defined by that provision. (11)

36. I observe, by way of preliminary point, as mentioned in points 26 to 28 of the present Opinion, that a set of measures designed to encourage both railway undertakings and the infrastructure manager to improve the network performance must be regarded as constituting a ‘performance scheme’ within the meaning of Article 35 of Directive 2012/34, provided that those measures form part of a coherent and transparent whole.

37. Accordingly, the mere fact that such a scheme is made up of a number of different measures resulting from distinct legal acts cannot in itself preclude its being classified as a ‘performance scheme’. The same applies where the same body decides to adopt an additional act in order to supplement some of the measures previously adopted in the context of that scheme. The amendment of the scheme by the introduction of new measures or the amendment of those already existing, in particular, with a view to correcting a disfunction on the rail market cannot in itself call into question the existence of that scheme or permit the view that it constitutes a different performance scheme. (12)

38. It will be recalled, in the first place, that Article 35 of Directive 2012/34 requires the infrastructure managers to put in place a performance scheme designed to encourage railway undertakings and the infrastructure manager itself to reduce disruption and improve the performance of the railway network.

39. Since Article 35 provides for the establishment of a performance scheme while defining the objectives and basic principles that should govern it, the Member States cannot put such a scheme in place without complying with the requirements thus set by Directive 2012/34. Accordingly, although considerable room for manoeuvre is allowed to the Member States in designing the performance schemes, they can establish such schemes only in compliance with Article 35 of that directive and the basic principles set out in point 2 of Annex VI thereto, to which Article 35 refers.

40. I note, in that regard, that although the concept of ‘performance scheme’ is not defined in Article 35 of that directive, the basic principles set out in point 2 of Annex VI thereto and the objectives pursued by such a scheme, to my mind, permit the view that any regulation relating to the levying of charges for the use of the railway infrastructure that is intended to encourage railway undertakings and the infrastructure manager to minimise disruption and improve the performance of the railway network must be understood as coming within that concept, irrespective of the classification applied or of the name attributed to such a measure in national law.

41. Were that not so, it would be a simple matter for the Member States to circumvent that provision by establishing performance improvement mechanisms that escaped the rules which it lays down and might thus prove to be incompatible with those rules. Furthermore, if parallel schemes could be authorised on the sole ground that they were classified differently in national law, Article 35 of Directive 2012/34 would be rendered ineffective. A performance scheme existing outside the regulatory framework defined by that directive would, moreover, be liable to undermine the general objective pursued by that directive, namely the establishment and proper functioning of an integrated railway market within the EU and its improvement, (13) while adversely affecting the requirements of transparency and coherence that emerge from the Court’s case-law referred to in point 27 of the present Opinion.

42. It follows that, in principle, the penalties or sanctions imposed because of acts or omissions giving rise to disruption of the railway network, the objective of which is ultimately to reduce disruptions of that network, must be regarded as one of the components of a performance scheme. They cannot therefore be introduced outside the normative framework established in Article 35 of Directive 2012/34.

43. That assertion, however, does not preclude the possibility that Member States might adopt, as regards other aspects not coming within the scope of that article, measures which they consider appropriate, including in the form of penalties, provided that no other provision of Directive 2012/34 precludes them. Thus, regulatory measures that do not pursue a performance improvement objective or which are unrelated to performance assessment, such as, in particular, mechanisms designed to penalise failure to observe the rules on railway security, do not come within the scope of Article 35 of that directive.

44. It must be stated, in the second place, as follows from Article 35(2) of Directive 2012/34 read in conjunction with point 2 of Annex VI, point 2 to that directive, that that provision governs the performance scheme in a comprehensive and unified manner as a constituent element of the system of charges, and that the principles that underlie that scheme are intended to apply to the entire network. It should be emphasised, in that regard, that Article 35 of that directive makes no distinction between the different locations on the railway network of a Member State and does not provide for a particular scheme or an exemption as regards the rules applicable to border stations. (14)

45. In the present case, it is apparent that, contrary to the submissions of the Italian and Polish Governments, (15) the penalty mechanism at issue in the main proceedings, applicable at border stations, does indeed come within the scope of Article 35 of Directive 2012/34. That is so because, although they concern a specific aspect of the railway infrastructure, those penalties pursue the objective of encouraging performance improvement, which is a decisive criterion for the purpose of the classification of a measure as forming part of a performance scheme. In establishing a scheme of responsibility with penalties in the event of disruption attributable to the railway undertakings at the level of border stations, those penalties tend to reduce disruption and to improve the efficiency of the network, in other words they pursue objectives which form part of the logic of such a scheme, and indeed constitute a separate component of that scheme. The fact that the scope of the scheme in question is limited to certain points of the railway network, in this instance border stations, is not in itself decisive, since Article 35 of that directive does not require that the penalties imposed necessarily apply uniformly to the entire national territory. Likewise, the fact that those penalties were introduced on the basis of different legal instruments does not seem relevant in the present case, since Article 35 of that directive does not require that all of those measures be part of one and the same legal act.

46. In the light of the foregoing, I propose that the answer to the first question should be that Article 35 of Directive 2012/34 must be interpreted as meaning that it does not permit the establishment of a performance scheme that does not comply with the requirements of that article and which departs from the basic principles set out in point 2 of Annex VI to that directive, to which that article refers; and that all the measures incorporated in the railway infrastructure charging scheme designed to reduce disruption and improve railway network performance come within its scope and must therefore be considered to form part of a performance scheme. In so far as it pursues the objective of promoting the optimum use of the network, a penalty scheme applicable specifically to border stations comes within the scope of Article 35 of that directive, notwithstanding that it was established on the basis of a distinct act, and must therefore comply with the conditions laid down therein and with the basic principles set out in point 2 of Annex VI to that directive, even though those penalties concern a specific segment of the railway network.

C. The second, fourth and fifth questions

47. By its second, fourth and fifth questions, the referring court asks, in essence, whether Article 35 of Directive 2012/34 must be interpreted as meaning that it allows more than one penalty scheme to be combined, so that, in respect of the same incident, such as a delay at the border station, a railway undertaking may be subject to the penalty provided for by the general scheme applicable to the entire network and at the same time to a specific penalty applied for a delay at a border station and, if so, whether the regulatory body (in this instance the ART) is required to ensure coordination between those schemes and to check that they respect the principle of proportionality. (16)

48. In the light of the answer which I propose should be given to the first question and of the connection between the second, fourth and fifth questions, I propose to deal with the latter questions together.

49. I note, in the first place, that, under Article 35 of Directive 2012/34, the Member States have a broad discretion in the actual design of performance schemes, provided that those schemes remain compatible with the network performance objectives set by that directive. That article, which does not lay down a specific penalty scheme, gives no precise indication of the nature or the extent of any penalties, let alone whether more than one penalty scheme may be combined.

50. It follows that, in so far as Article 35 of Directive 2012/34 does not preclude outright a combination of more than one penalty scheme, the Member States remain free to introduce a performance scheme composed of different measures, by introducing, inter alia, as in the present case, specific penalties where the stop period at border stations is exceeded, alongside the penalties generally applicable in the event of delay on the entire national network. Nor is there anything to prevent a Member State, if it finds that there is a malfunction or disruption at a specific place on the rail network, from adopting additional measures, whether in regard to the infrastructure manager or to the railway undertakings, in order to remedy it, provided that those measures are compatible with that directive.

51. The fact nonetheless remains that, while the Member States may have a number of penalty schemes that may exist together, they must ensure that the measures adopted respect the principles enshrined in that directive and interact in a coherent and transparent manner. (17)

52. I note, in the second place, that in the event of a scheme composed of different measures, including both penalties and bonuses, the requirement to ensure that those measures constitute a coherent and transparent whole so that such a scheme may satisfy the obligations provided for in Directive 2012/34 implies, or indeed assumes, a certain degree of coordination between the various measures forming part of the performance scheme.

53. I would point out in that regard that, under Article 56 of Directive 2012/34, the task of market ‘regulator’, and therefore responsibility for ensuring the proper functioning of the railway network, has been entrusted to the regulatory body designated by each Member State. In the context of the power to review the legality which Article 56 conferred on that regulatory body, in this instance the ART, that body should also ensure that the different penalties provided for are, as a whole, necessary and proportionate by reference to the objectives set out in Article 35 of that directive. (18) More precisely, in the review of the performance scheme proposed by the infrastructure manager – namely, where the ART is required to approve the various measures laid down for that purpose in the NS, in accordance with Article 56 of that directive – (19) that authority must examine all of those measures in order to be satisfied that they pursue, in a coherent manner, the network performance objective.

54. However, in my view such an analysis assumes that the regulatory body does in fact examine the way in which those two penalty schemes interact and the effects which they have on the railway undertakings. (20) More precisely, in a case such as this, the ART must, in particular, ensure the coherence of the specific penalties prescribed for exceeding the stop time at border stations with the penalties generally applicable in the event of delay on the entire national network, and check that, considered as a whole, those penalties do not go beyond what is necessary to attain the objective pursued by Article 35 of Directive 2012/34, namely the reduction of disruption and the improvement of network performance and that they respect the principle ne bis in idem. (21)

55. The same applies to the assessment of the economic effects of the different measures imposed on the railway undertakings. The ART will thus have to check whether the imposition by the network manager of a double penalty on a railway undertaking, where the stop time at a border station is exceeded, is liable to undermine the economic viability and profitability of those undertakings.

56. In the light of the foregoing, I propose that the answer to the second, fourth and fifth questions should be that Article 35 of Directive 2012/34 must be interpreted as meaning that the Member States have the power to put in place a performance scheme providing for specific penalties where the scheduled stop time at border stations is exceeded, alongside the penalties generally applicable in the event of delay on the entire national network, provided that that scheme is coherent and does not give rise, as a whole, to the application of disproportionate penalties. In accordance with Article 56 of that directive, the national regulatory authority is required, when validating the performance scheme, to verify that the two penalty schemes applied pursue, in a coordinated manner, the objective of improving network performance and to evaluate the economic impact of those penalties on the railway undertakings, in order to ensure that the economic viability and the profitability of the railway services are not jeopardised.

D. The third question

57. By its third question, which should be examined last, the referring court asks, in essence, whether Article 35 of Directive 2012/34 must be interpreted as meaning that, in view of the requirement to ensure the neutrality of a performance scheme provided for in that article, the regulatory body must check that that scheme also provides for bonuses for diligent railway undertakings and for compensation for undertakings that have suffered loss or damage, and that penalties for delay also apply to the infrastructure manager where it is responsible for the delay.

58. For the reasons which I shall set out in the following points, I am of the view that that question should be answered in the negative.

59. I would point out, at the outset, that Article 35 of Directive 2012/34 provides only that Member States may, not that they must, provide for a set of measures which are referred to in that provision. It should also be emphasised that it does not in any way follow from the wording of that article that a performance scheme must necessarily include each of the three components identified by that directive in order to be considered compatible with it.

60. As a result, the Member States have a discretion that allows them to determine which measures provided for in that provision would be best capable of meeting the objectives pursued by Directive 2012/34 and to adapt their application according to the specific characteristics of the disruption of the network, and that the competent national authority is not required to make use of all of those measures or to combine more than one of them.

61. Admittedly, a performance scheme is primarily intended to include measures applicable both to the infrastructure manager and to the railway undertakings, which assumes a degree of reciprocity with respect to the obligations placed on the various parties, in particular as regards the penalties introduced to ensure the neutrality of the scheme and to encourage them to take the necessary measures to reduce the frequency and impact of delays on the network. However, that does not necessarily imply an obligation to provide for penalties or for the same penalties for the railway undertakings and for the infrastructure manager, or to check that each penalty is associated with or counterbalanced by another measure, such as a bonus or compensation. (22)

62. In that regard, I note that, by its very nature, a performance scheme may be composed of a set of distinct measures designed to respond to different aspects of the levying of charges on the railway infrastructure, as confirmed by point 2 of Annex VI to Directive 2012/34. It cannot therefore be precluded outright that, for a specific aspect of the railway network, certain measures will apply only to the infrastructure manager or solely to the railway undertakings concerned, without that meaning in itself that a national measure is incompatible with Article 35 of that directive. Such a choice may, in fact, be justified by practical considerations, which it is for the national regulatory authority to verify. Thus, provided that the infrastructure manager and the railway undertakings carry out activities of a different nature and for that reason are subject to distinct obligations, they cannot necessarily be required, in practice, to come within the penalty scheme in the event of disruption affecting rail traffic.

63. Furthermore, although the measures adopted in the context of a performance scheme must be assessed in the light of the need to ensure the neutrality of the scheme and of the pursuit of the objective of reducing disruption and improving performance in the use of the network, such an assessment can be carried out only following an actual examination that takes account of all of the relevant circumstances. I would make clear, moreover, that, as observed in points 53 and 54 of the present Opinion, the assessment of the compatibility of a performance scheme with Article 35 of Directive 2012/34 must be carried out in a global and non-abstract manner, taking account of all of the measures provided for in the national regulations in order to determine whether they form a body of coherent and transparent rules that make it possible to ensure that the objectives pursued by that directive are achieved, while respecting the principles of EU law.

64. In the light of the foregoing, I propose that the answer to the third question should be that Article 35 of Directive 2012/34 must be interpreted as meaning that, in order for a performance scheme to be compatible with that provision, it is not necessary that it provide, in addition to the penalties imposed in the event of delays attributable to the railway undertakings, bonuses for diligent undertakings and compensation for undertakings which have suffered loss or damage and, furthermore, that each of the measures forming part of that scheme and including penalties impose the same penalties on the railway undertakings and on the infrastructure manager, provided that that scheme, taken as a whole, is coherent and proportionate by reference to the objective pursued by Article 35 of that directive, consisting in encouraging the railway undertakings and the infrastructure manager to minimise disruption and improve the performance of the railway network.

V. Conclusion

65. In the light of the foregoing considerations, I propose that the Court should answer the first to fifth questions submitted by the Consiglio di Stato (Council of State, Italy) in Joined Cases C‑161/25 and C‑162/25 as follows:

Article 35 of Directive 2012/34/UE of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area

must be interpreted as meaning that:

(1) It does not permit the establishment of a performance scheme that does not comply with the requirements of that article and which departs from the basic principles set out in point 2 of Annex VI to that directive, to which that article refers; and that all the measures incorporated in the railway infrastructure charging scheme designed to reduce disruption and improve railway network performance come within its scope and must therefore be considered to form part of a performance scheme. In so far as it pursues the objective of promoting the optimum use of the network, a penalty scheme applicable specifically to border stations comes within the scope of Article 35 of that directive, notwithstanding that it was established on the basis of a distinct act, and must therefore comply with the conditions laid down therein and with the basic principles set out in point 2 of Annex VI to that directive, irrespective of the fact that those penalties concern a specific segment of the railway network;

(2) The Member States have the power to put in place a performance scheme providing for specific penalties where the scheduled stop time at border stations is exceeded, alongside the penalties generally applicable in the event of delay on the entire national network, provided that that scheme is coherent and does not give rise, as a whole, to the application of disproportionate penalties. In accordance with Article 56 of Directive 2012/34, the national regulatory authority is required, when validating the performance scheme, to verify that the two penalty schemes applied pursue, in a coordinated manner, the objective of improving network performance and to evaluate the economic impact of those penalties on the railway undertakings, in order to ensure that the economic viability and the profitability of the railway services are not jeopardised;

(3) In order for a performance scheme to be compatible with Article 35 of Directive 2012/34, it is not necessary that it provide, in addition to the penalties imposed in the event of delays attributable to the railway undertakings, bonuses for diligent undertakings and compensation for undertakings which have suffered loss or damage and, furthermore, that each of the measures forming part of that scheme and including penalties impose the same penalties on the railway undertakings and on the infrastructure manager, provided that that scheme, taken as a whole, is coherent and proportionate by reference to the objective pursued by that provision, consisting in encouraging the railway undertakings and the infrastructure manager to minimise disruption and improve the performance of the railway network.

1 Original language: French.

2 Directive of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area (OJ 2012 L 343, p. 32), as amended by Directive (EU) 2016/2370 of the European Parliament and of the Council of 14 December 2016 (OJ 2016 L 352, p. 1) (‘Directive 2012/34’).

3 More precisely, in Case C‑161/15, Captrain Italia, Rail Cargo Carrier Italy Srl, Fuorimuro Impresa Ferroviaria Srl, Inrail SpA, SBB Cargo Italia Srl, Oceanogate Italia SpA, GTS Rail SpA, Adriafer Srl with sole shareholder, DB Cargo Italia Srl and Sangritana SpA, and, in Case C‑162/25, Lokomotion Gesellschaft für Schienentraktion mbH (together ‘the applicant railway undertakings’).

4 GURI No 284 of 6 December 2011, Ordinary supplement No 251.

5 GURI No 300 of 27 December 2011, Ordinary supplement No 297 (‘Decree-law No 201/2011’).

6 GURI No 170, 24 July 2015 (‘Legislative Decree No 112/2015’).

7 Directive of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (OJ 2001 L 75, p. 29).

8 Judgments of 28 February 2013, Commission v Spain (C‑483/10, EU:C:2013:114, paragraph 64), and of 11 July 2013, Commission v Czech Republic (C‑545/10, EU:C:2013:509, paragraph 80).

9 See, in that regard, Report of the Independent Regulators’ Group – Rail, entitled ‘Performance Schemes in rail: a European overview’ (IRG-Rail (2025) 10), published in November 2025, in particular pages 8 and 9, available only in English at the following website: https://irg-rail.eu/download/5/1472/202510ReportonPerformanceSchemesinrailaEuropeanoverview.pdf. As that report on the application of performance schemes in the railway sector, drawn up by the group composed of the competent regulatory authorities within the EU, indicates, the design and implementation of those schemes varies considerably across Member States. In any event, I would point out that on 11 July 2023 the Commission submitted a Proposal for a Regulation of the European Parliament and of the Council on the use of railway infrastructure capacity in the single European railway area, amending Directive 2012/34/EU and repealing Regulation (EU) No 913/2010 (COM(2023) 443 final), in order to reinforce the management and performance of the European rail network. The current performance scheme, provided for in Article 35 of Directive 2012/34, remains essentially confined to national level, leaving the Member States a broad discretion as to the measures and methods applied, resulting, as the Commission observes in the grounds of that proposal for a regulation, in a varied collection of national schemes.

10 Judgment of 12 February 2026, Valora Effekten Handel (C‑864/24, EU:C:2026:94, paragraph 28 and the case-law cited).

11 Although the wording of the first question refers generally to the possibility of imposing a ‘penalty scheme’ outside the framework defined in Article 35 of Directive 2012/34, without specifying the type of penalties referred to, it is apparent from the order for reference that, by its question, the Consiglio di Stato (Council of State) seeks, in essence, to ascertain whether a penalty mechanism applicable specifically to border stations must be considered to be distinct from the performance scheme provided for in Article 35 of that directive or whether it falls within the scope of that provision.

12 That is not the position where there are a number of rules relating to separate aspects of the railway infrastructure, introduced separately and incoherently, possibly by different bodies, which might be considered to constitute a different ‘scheme’.

13 See, to that effect, in particular, recitals 2 and 3 of Directive 2012/34.

14 It is interesting to note that, according to the expert report cited in footnote 9 to the present Opinion, in most Member States (in 18 of them) the performance schemes cover international links, while in a minority (six of them, including Italy) those links are not included. See, to that effect, pp. 8 and 9 of that report.

15 It should be made clear, in that regard, that the Polish Government claims that Article 35 of Directive 2012/34 does not govern the imposition of additional penalties which do not come within the scheme for the levying of charges, or which do not apply to the whole rail network, but only to certain specific points of the rail network, such as border stations. The Italian Government maintains that those border penalties were introduced within the framework of a limited scheme that does not come exclusively within the performance scheme.

16 In the interest of completeness, I note that, although it does not expressly raise a plea of illegality with respect to the fourth and fifth questions, the Italian Government, while noting in its written observations that it is not the Court’s role to formulate advisory opinions on general or hypothetical questions, takes issue with the referring court for having formulated questions that do not concern the interpretation of EU law. Those arguments can be rejected without much difficulty, since it is sufficiently obvious that, by those two questions, the referring court asks about the conclusions that must be drawn from a possible combination of penalties with respect to the railway undertakings, and about the role of the competent national authority in that context, in particular whether that authority might be under an obligation to ensure the coordination of those different schemes.

17 See, to that effect, points 27 to 29 of the present Opinion.

18 In accordance with point 2(a) of Annex VI to Directive 2012/34, the penalties applied, considered as a whole, must not only be necessary ‘in order to achieve an agreed level of performance’ but also be proportionate to that objective, in such a way as not to ‘endanger the economic viability’ of the services provided by the railway undertakings.

19 In that regard, I note that Article 56 of Directive 2012/34 expressly provides for two methods of intervention by the regulatory body. Paragraph 1 of that article provides that, where the regulatory body receives an appeal brought by an applicant which believes that it has been unfairly treated, discriminated against or is in any other way aggrieved, that body is required to evaluate, in particular, the NS in its provisional and final versions and the criteria set out in that statement. Under paragraph 2 of that article, moreover, the regulatory authority is to have the power to act on its own initiative, in particular to check that the NS does not contain discriminatory clauses or grant to the infrastructure manager discretionary powers capable of being used to discriminate against applicants. It is also apparent from the file made available to the Court that the NS, which is at the origin of the present dispute, included both the performance scheme and the border penalty scheme.

20 Although the referring court wonders about the compatibility of the Italian legislation at issue in the main proceedings with Article 35 of Directive 2012/34, there is nothing in the order for reference to indicate how such a combination would in that court’s view be unjustified or potentially disproportionate. Admittedly, the definitive assessment of the compatibility of that legislation with EU law is a matter for that court. However, the fact that the two penalty schemes at issue pursue complementary objectives, that their content and the conditions of their application are defined in a clear and transparent manner and that the maximum amount of the penalty linked with exceeding the stop time at a border station is subject to a predetermined ceiling argues, prima facie, and except for the arbitrary application by the infrastructure manager or manifestly unreasonable interpretation by the ART, in favour of those measures being justified by reference to the objectives pursued by Article 35 of that directive.

21 It should also be noted that, although that problem was not raised as such by the referring court, in so far as, in the present case, those two penalty schemes are defined clearly and precisely and pursue complementary objectives, the principle ne bis in idem cannot preclude the combination of the penalties. See, to that effect, judgment of 30 January 2025, Engie România (C‑205/23, EU:C:2025:43, paragraph 63).

22 While almost all performance schemes include penalties for actors which disrupt the operation of the network (22 out of 24), a large majority of the schemes examined (17 out of 24) also foresee compensation for diligent railway undertakings. Apart from the penalties and compensation mechanisms envisaged, a number of Member States – approximately one third of respondents (9 out of 24) – reported that their national performance schemes incorporate bonus arrangements. Those bonuses are intended to reward good performance, either by recognising the results that exceed predefined targets or by comparing relative performance between operators. See, in that regard, Expert Report, cited in footnote 9 to the present Opinion, p. 13.

Opinion of Advocate General Rantos delivered on 16 April 2026.###

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