CJEU on the SPNV Trassenpreisbremse — preliminary reference and what the outcome will mean for rolling-stock risk allocation
The CJEU has before it a preliminary reference from the VG Köln (Nov. 2024) asking whether the German statutory cap on SPNV track-access-charge growth is compatible with Directive 2012/34/EU. The outcome will feed back directly into SPNV contracts with pass-through clauses and into the financeability of rolling stock where track-access risk sits with the operator.
The statutory cap
The ERegG amendment that entered into force on 1 April 2023 introduced, via the transitional provision in § 66c ERegG, a statutory ceiling on the annual increase of SPNV track-access charges of 1.8 % for the years 2023 to 2025 and decoupled the SPNV path from the dynamisation formula of the Regionalisierungsmittel. The stated purpose was to shield SPNV operators from charge increases that would, via RegG-funded service contracts, ultimately be borne by the Länder budgets.
The reference from VG Köln
By referral order of November 2024 (VG Köln, 18 K 4019/23), the Verwaltungsgericht Köln, seised in parallel charging-approval proceedings before the Bundesnetzagentur, referred to the CJEU the question whether the statutory ceiling is compatible with the charging principles of Directive 2012/34/EU, in particular the infrastructure manager's managerial independence in charge-setting (Art. 4 in conjunction with Art. 29) and the principles governing the calculation of infrastructure charges (Arts. 31 and 32). The Court's practical concern was whether a hard legislative cap leaves enough room for the infrastructure manager to recover the costs directly incurred as a result of operating the train service as mandated by Art. 31(3).
What is at stake
A judgment that disapplied the cap would shift the risk of retrospective or prospective SPNV track-access-charge increases back toward the infrastructure manager (DB InfraGO) and, through pass-through clauses in Verkehrsverträgen, toward operators and — via Kapitaldienstgarantien and Wiedereinsatzgarantien — ultimately toward PTAs. A judgment that upheld the cap would stabilise the cost-of-service envelope for the 2023–2025 tender cohort but would re-open the question how DB InfraGO recovers the capped revenue shortfall.
Implications for contract design and rolling-stock risk
Two items should be live in any Verkehrsvertrag or financing document currently being drafted. First, the pass-through clause on Trassenentgelten should distinguish charges levied in accordance with an enforceable charging statement from charges payable only upon final judicial determination of legality, with a clear allocation of the interim liquidity risk. Second, financial models that rely on the cap should include a sensitivity case for a CJEU judgment that disapplies it; the carrying cost of that sensitivity is the true financial cost of the regulatory uncertainty.
Where this sits
See also the market-access section on Directive 2012/34/EU and the ERegG, and the financing structures page on how charging risk interacts with PTA-side guarantees.
Last reviewed: 18 April 2026. These notes are not legal advice. See the Disclaimer.