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Private Enforcement of Competition Law in Regulated Industries: journal article

Can Railway Undertakings Recover Excessive Railway Infrastructure Charges Under Article 102 TFEU?

Heike Schweitzer

European Competition and Regulatory Law Review, Volume 6 (2022), Issue 1, Page 4 - 16

In DB Station & Service AG, the CJEU will have to decide on the relationship between EU regulatory law – namely Directive 2001/14 – that strives to concentrate decisions on the lawfulness of infrastructure access charges with the regulatory authority, and private damage claims based on a concurrent violation of Article 102 TFEU. The referring court – the KG Berlin – proposes that national civil courts may only award competition law damages once the regulatory authority has established the illegality of the charges under regulatory law. This article argues that the KG Berlin thereby misconceives the hierarchy of norms under EU law and fails to recognise the rights conferred upon individuals by the EU competition rules. Keywords: private enforcement, regulated industries, railways, infrastructure, Article 102 TFEU


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

Miguel Sousa Ferro

European Competition and Regulatory Law Review, Volume 6 (2022), Issue 4, Page 350 - 355

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?

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