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DB Station (C-721/20): How to Reconcile It with Fundamental Rights, Direct Effect and Hierarchy of Norms?

Miguel Sousa Ferro


Keywords: railways, res judicata, national courts, damages, Article 102 TFEU, decision of regulator

Case C-721/20 DB Station & Service AG v ODEG Ostdeutsche Eisenbahn GmbH, Judgment of the Court of Justice (Fourth Chamber) of 27 October 2022
The right to damages arising from an infringement of Article 102 TFEU, which may also infringe the railway infrastructure Directive, can only be exercised after using the railway regulator’s appeal procedure. But what happens if the two sets of rules lead to different outcomes? Must the national court follow the regulator’s decision? Are competition authorities similarly prevented from acting? What if the regulator’s decision is not adopted, does not become res judicata or takes too long? And can this case-law be extended to other regulated activities?

Miguel Sousa Ferro, Professor at the University of Lisbon Law School, Portugal. Managing Partner at Milberg Sousa Ferro (Lisbon). For correspondence: <>. Annotation based on Op-Ed initially published in EULawLive.


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