Civil Law and Cross-Border Train Operating Agreement Claims in Europe

1. Introduction

Cross-border train operating agreement claims arise when railway undertakings from different European countries enter into agreements concerning the operation of international passenger or freight train services.

A train operating agreement may regulate:

use of railway infrastructure;

train paths;

locomotives;

rolling stock;

traction;

train crews;

maintenance;

station services;

passenger handling;

ticketing;

revenue allocation;

delays and cancellations;

liability for accidents;

insurance;

access charges;

timetable coordination;

cross-border safety requirements;

termination of the operating arrangement.

For example:

Railway Company A (France) + Railway Company B (Germany) → agreement to operate Paris–Frankfurt service.

A dispute may arise because one operator alleges:

non-payment;

excessive infrastructure charges;

refusal to provide traction;

cancellation of train paths;

defective rolling stock;

delay;

breach of exclusivity;

discrimination;

refusal of access;

competition-law infringement;

wrongful termination.

The subject therefore lies at the intersection of contract law, EU railway regulation, competition law and private international law.

The most directly relevant historical authority is European Night Services, because it concerned agreements between railway undertakings for international passenger services through the Channel Tunnel, including operating agreements covering traction, train crew, train paths, cleaning, maintenance and passenger handling. (InfoCuria)

2. Meaning of a Train Operating Agreement

A train operating agreement is a contractual arrangement under which one or more railway undertakings cooperate to provide a rail service.

It may cover:

A. Traction

One undertaking supplies:

locomotive;

driver;

train crew;

traction services.

B. Train paths

The parties coordinate the allocation and use of railway capacity.

C. Rolling stock

One party may provide:

passenger coaches;

locomotives;

multiple units;

specialised international rolling stock.

D. Station services

These may include:

passenger handling;

platform access;

ticketing;

security;

cleaning.

E. Maintenance

One operator may undertake:

routine maintenance;

safety inspection;

emergency repair;

technical servicing.

F. Revenue sharing

The agreement may determine how:

ticket revenue;

ancillary revenue;

compensation;

penalties

are divided.

3. Why Cross-Border Claims Are Complicated

A single international train can involve:

Operator A → infrastructure manager B → station operator C → operator D → passengers in several States.

Consequently, several legal regimes can apply simultaneously.

Contract law

Determines:

breach;

payment;

termination;

damages;

indemnification.

EU railway law

Determines:

market access;

infrastructure access;

train-path allocation;

charging;

regulatory oversight.

Competition law

Determines whether cooperation between railway companies unlawfully restricts competition.

Private international law

Determines:

jurisdiction;

applicable law;

recognition;

enforcement.

4. Main European Legal Framework

A. Directive 2012/34/EU

The Single European Railway Area Directive is central.

It deals with:

access to railway infrastructure;

infrastructure managers;

charging;

capacity allocation;

regulatory bodies;

non-discrimination;

access to services.

The Directive is particularly important where a contractual dispute concerns infrastructure access or charges.

5. Regulation (EC) No 1370/2007

This Regulation concerns public passenger transport services by rail and road.

It becomes particularly important where the train operating agreement is actually a public-service contract rather than an ordinary commercial agreement.

Issues include:

public-service obligations;

compensation;

procurement/award;

exclusivity;

reasonable profit;

financial equilibrium.

6. Article 101 TFEU

Two or more railway operators may cooperate for legitimate reasons.

However, an operating agreement can raise competition concerns if it:

allocates markets;

excludes competitors;

fixes prices;

restricts capacity;

prevents market entry;

coordinates commercially sensitive information.

Therefore:

A train operating agreement is not immune from EU competition law merely because it concerns railway services.

7. Case 1 — European Night Services

European Night Services Ltd and Others v Commission

Joined Cases T-374/94, T-375/94, T-384/94 and T-388/94

Judgment: 15 September 1998

This is the most directly relevant case for the present topic.

Facts

European railway undertakings including:

British Rail;

Deutsche Bundesbahn;

Nederlandse Spoorwegen;

SNCF;

were involved in agreements concerning international overnight passenger rail services through the Channel Tunnel.

The operating agreements provided for services such as:

traction;

locomotives;

train crew;

train paths;

cleaning;

maintenance;

passenger handling.

The agreements therefore closely resemble the kind of arrangements covered by a modern cross-border train operating agreement. (EUR-Lex)

Decision

The General Court annulled the Commission decision because of deficiencies in its assessment and reasoning concerning:

relevant markets;

competitive effects;

appreciable effect on trade;

supply of necessary railway services.

Principle

A cooperation agreement between railway undertakings must be assessed in its actual economic and regulatory context.

The existence of cooperation does not automatically establish an infringement of competition law.

Importance

This case is particularly useful for:

international train-operation agreements;

joint railway ventures;

traction agreements;

access to essential railway services;

Channel Tunnel services;

cooperation between national railway undertakings.

8. Case 2 — WESTbahn Management

WESTbahn Management GmbH v ÖBB-Infrastruktur AG

Case C-210/18, judgment of 10 July 2019

This case concerned the meaning of railway infrastructure and the scope of the minimum-access package under Directive 2012/34/EU.

The CJEU held that passenger platforms are part of railway infrastructure whose use forms part of the minimum access package. (InfoCuria)

Why it matters for operating agreements

Suppose:

Austrian operator A contracts for international passenger services.

The infrastructure manager then says:

“The platform is a separate commercial service and is not included in minimum access.”

WESTbahn demonstrates that the legal classification of the infrastructure service matters.

Principle

A railway undertaking's contractual access rights must be interpreted in light of the mandatory EU railway-access framework.

Therefore, a private operating agreement cannot simply redefine an EU-regulated infrastructure service in a manner inconsistent with EU law.

9. Case 3 — Die Länderbahn

Die Länderbahn GmbH DLB and Others v Federal Republic of Germany

Case C-582/22, judgment of 7 March 2024

This case concerned railway infrastructure charges and the powers of the national regulatory body under Directive 2012/34/EU.

The dispute concerned charges for railway infrastructure whose period of application had expired and whether the regulatory body could review them and order reimbursement. (InfoCuria)

Principle

Railway undertakings are not necessarily limited to ordinary contractual remedies where the dispute concerns regulated infrastructure charges.

EU railway regulation can provide regulatory review and reimbursement mechanisms.

Operating-agreement relevance

If an operator has paid infrastructure charges under an arrangement that conflicts with mandatory railway-access rules, the dispute may involve:

contractual recovery;

regulatory review;

reimbursement;

EU-law remedies.

10. Case 4 — ÖBB-Infrastruktur and WESTbahn Management

ÖBB-Infrastruktur AG and WESTbahn Management GmbH v Schienen-Control Kommission

Case C-538/23, judgment of 22 May 2025

This case concerned:

infrastructure charges;

mark-ups;

charging principles;

regulatory approval;

the powers of the national railway regulatory body.

The CJEU examined Articles 29, 32 and 56 of Directive 2012/34/EU. (InfoCuria)

Principle

Infrastructure charging arrangements must comply with the EU railway charging framework.

Importance for train operating agreements

An agreement may allocate responsibility for infrastructure charges between the parties, but the parties cannot contract out of mandatory regulatory requirements.

For example:

French Operator A agrees to pay all Austrian infrastructure charges.

If the underlying charge itself is unlawful under EU railway legislation, the contractual allocation of that payment does not necessarily settle the legal issue.

11. Case 5 — Commission v Spain

Commission v Kingdom of Spain

Case C-483/10, judgment of 28 February 2013

This case concerned:

railway infrastructure capacity;

infrastructure charges;

management independence.

The CJEU held that Member States must respect the independence of infrastructure managers in determining infrastructure charges under the applicable railway framework. (InfoCuria)

Principle

The State cannot simply take over functions that EU railway legislation assigns to an independent infrastructure manager.

Operating-agreement relevance

This matters when a train operator argues that a governmental decision has altered:

access conditions;

infrastructure prices;

train paths;

operating costs.

12. Case 6 — Commission v Bulgaria

Commission v Republic of Bulgaria

Case C-152/12, judgment of 13 February 2014

This case concerned railway infrastructure charging and the possibility of imposing mark-ups.

The Court examined the rules governing charges and the relationship between charges and the costs directly incurred as a result of operating train services. (InfoCuria)

Principle

Railway infrastructure charges must comply with the EU regulatory charging framework.

Importance

This can become relevant to a contractual dispute where:

one operator pays charges on behalf of another;

the parties dispute allocation of access costs;

an operator challenges the amount of infrastructure charges;

a contract incorporates regulated charges.

13. Case 7 — Commission v Hungary

Commission v Hungary

Case C-473/10, judgment of 28 February 2013

This case concerned:

railway infrastructure capacity;

allocation of railway capacity;

infrastructure charges;

implementation of EU railway legislation.

The case illustrates the importance of an effective and independent regulatory framework for access to railway infrastructure. (curia)

Relevance

A cross-border operator may claim:

“The infrastructure manager unlawfully denied or restricted our train paths.”

The dispute may therefore have both:

contractual elements; and

regulatory/EU-law elements.

14. Case 8 — DB InfraGO and DB RegioNetz Infrastruktur

DB InfraGO AG and DB RegioNetz Infrastruktur GmbH v Bundesrepublik Deutschland

Case C-770/24, judgment of 19 March 2026

This is a recent railway case concerning:

infrastructure-manager independence;

railway charges;

short-distance passenger transport;

statutory calculation of infrastructure charges.

The CJEU held that national legislation requiring infrastructure charges to be calculated through a fixed mathematical formula could undermine the independence required under Directive 2012/34/EU. (InfoCuria)

Importance

It reinforces a modern principle:

Railway infrastructure managers must retain sufficient regulatory and commercial flexibility in determining infrastructure charges.

For train operating agreements, this matters when contractual pricing depends on regulated infrastructure charges.

15. Case 9 — Commission v Luxembourg

Commission v Grand Duchy of Luxembourg

Case C-305/10, judgment of 7 April 2011

This case concerned working conditions of mobile workers engaged in interoperable cross-border railway services and Directive 2005/47/EC.

The dispute concerned Luxembourg's failure to transpose the relevant rules within the prescribed period. (InfoCuria)

Importance

Although not primarily a contractual train-operating dispute, it is important where operating agreements allocate responsibility for:

train crews;

working time;

rest periods;

cross-border mobile staff.

An operating agreement cannot override mandatory railway labour protections.

16. Case-Law Table

17. Types of Cross-Border Train Operating Claims

A. Traction Claims

One railway undertaking agrees to provide:

locomotive;

driver;

crew;

traction.

A dispute may arise if the service is:

unavailable;

delayed;

defective;

cancelled;

technically inadequate.

The parties may claim:

additional costs;

lost revenue;

delay damages;

contractual penalties.

18. Train-Path Claims

A train path is the allocated capacity allowing a train to operate over specified infrastructure at particular times.

An operating agreement may depend upon obtaining train paths.

A dispute may arise where:

paths are refused;

paths are altered;

paths are delayed;

competing operators receive preferential treatment.

Such disputes can involve the railway regulatory framework in addition to the contract.

19. Infrastructure-Charge Claims

The parties may disagree over:

who pays infrastructure charges;

whether the charges were correctly calculated;

whether mark-ups were lawful;

whether discounts apply;

whether charges should be reimbursed.

The cases Commission v Bulgaria, Commission v Spain, Die Länderbahn, and ÖBB-Infrastruktur/WESTbahn are particularly useful here. (InfoCuria)

20. Rolling-Stock Claims

An international operating agreement may require one party to provide rolling stock.

Disputes may concern:

defective coaches;

locomotive failure;

technical certification;

maintenance;

repair costs;

availability;

compatibility with foreign infrastructure.

The contract should therefore specify:

technical standards;

inspection obligations;

maintenance responsibility;

acceptance procedures;

liability;

insurance.

21. Delay and Cancellation Claims

International trains can be delayed because of:

infrastructure failure;

rolling-stock failure;

border procedures;

signalling problems;

crew shortages;

weather;

industrial action;

regulatory intervention.

A contract may contain:

delay compensation;

liquidated damages;

performance bonuses;

force-majeure provisions.

The court must determine whether the delay falls within the contractual risk allocation.

22. Force Majeure

Typical force-majeure events may include:

natural disasters;

extraordinary infrastructure failure;

government restrictions;

war;

terrorism;

unexpected regulatory action;

major technical emergencies.

However:

Ordinary operational difficulties are not automatically force majeure.

The applicable national contract law and the wording of the agreement remain important.

23. Competition-Law Claims

A train operating agreement can also create competition concerns.

Suppose two major railway operators agree:

“Operator A will operate all international trains between Country X and Country Y, and Operator B will not enter the market.”

The agreement may need examination under Article 101 TFEU.

European Night Services is particularly useful because it involved agreements between railway undertakings concerning international passenger services and necessary railway services. (EUR-Lex)

24. Essential Railway Services

An international train operator may depend upon another railway undertaking for:

traction;

train paths;

terminal services;

maintenance;

technical facilities;

passenger handling.

If the supplying railway undertaking controls a facility that competitors need, the dispute may raise questions about:

access;

discrimination;

essential facilities;

competition;

regulatory obligations.

The European Night Services litigation expressly involved the issue of the supply of necessary services and “essential facilities.” (InfoCuria)

25. Non-Discrimination

An infrastructure manager or railway service provider should not necessarily be permitted to give one operator preferential treatment without lawful justification.

Example:

Operator A receives cheaper access and better train paths than Operator B.

Operator B may challenge the arrangement through:

the contract;

national regulatory proceedings;

competition law;

EU railway-access rules.

26. Public-Service Rail Agreements

Not every train operating agreement is purely commercial.

A government or regional authority may contract with a railway undertaking to operate:

regional trains;

commuter trains;

cross-border public services.

This may trigger Regulation 1370/2007.

The agreement may determine:

public-service obligations;

compensation;

fares;

service frequency;

routes;

quality requirements.

The dispute may concern whether compensation is legally justified or whether the award complied with EU requirements.

27. Cross-Border Revenue-Sharing Claims

International operators may agree:

Passenger revenue = 60% Operator A + 40% Operator B.

Disputes may concern:

ticketing data;

passenger numbers;

refunds;

commission;

currency conversion;

fraud;

ticket allocation.

The contract should establish:

accounting method;

audit rights;

reporting deadlines;

currency;

payment mechanism;

interest;

dispute procedure.

28. Applicable Law

A cross-border operating agreement should normally contain an express choice-of-law clause.

Example:

“This agreement shall be governed by French law.”

But this does not remove mandatory EU railway or competition rules.

Therefore, a court may need to apply:

Chosen national contract law + mandatory EU railway law + EU competition law.

29. Jurisdiction

The parties may select:

French courts;

German courts;

Austrian courts;

another competent forum;

arbitration.

A jurisdiction clause should be carefully drafted because disputes may involve several contractual relationships.

For example:

Operator A ↔ Operator B
Operator B ↔ Infrastructure Manager
Operator A ↔ Station Operator

A single train service may therefore produce multiple proceedings.

30. Arbitration

International train operating agreements frequently lend themselves to arbitration because the parties may be from different countries.

An arbitration clause can specify:

seat;

governing law;

arbitral institution;

number of arbitrators;

language;

emergency relief;

confidentiality.

However, disputes involving mandatory regulatory decisions may not always be capable of being determined purely through private arbitration.

A tribunal must distinguish:

contractual dispute

from

challenge to an exercise of public regulatory authority.

31. Liability Between Railway Operators

A contract should allocate responsibility for:

Operator A

rolling stock;

crew;

maintenance.

Operator B

traction;

infrastructure coordination;

station handling.

Infrastructure manager

network access;

train paths;

infrastructure availability.

The absence of clear allocation can lead to complicated contribution claims.

32. Passenger Claims

A train operating agreement may also generate passenger-related liability.

For example:

Operator A sells the ticket.
Operator B physically operates part of the journey.

A passenger suffers:

cancellation;

delay;

lost luggage;

injury.

The operators may subsequently dispute internal allocation of liability.

Passenger rights under applicable EU railway legislation may operate independently of the contractual allocation between operators.

33. Insurance

International operating agreements commonly require:

public-liability insurance;

passenger-liability insurance;

rolling-stock insurance;

employer liability;

third-party liability.

A dispute may concern:

whether the policy responds;

policy limits;

deductibles;

contribution between insurers;

cross-border recognition of insurance.

34. Damages

Potential damages include:

Direct losses

repair costs;

additional traction costs;

replacement trains;

additional crew;

infrastructure charges.

Consequential losses

lost ticket revenue;

cancellation costs;

customer compensation;

reputational losses where legally recoverable.

Regulatory losses

Where permitted by applicable law:

unlawful charges;

reimbursement;

regulatory penalties passed through contractually.

The claimant must generally establish:

Breach → causation → actual loss → legally recoverable damage.

35. Defences

A railway undertaking may argue:

1. No contractual breach

The disputed event was outside its obligations.

2. Force majeure

The event was extraordinary and uncontrollable.

3. Regulatory intervention

Performance became impossible because of a mandatory public decision.

4. Contributory fault

The claimant contributed to the loss.

5. Limitation of liability

The contract limits recoverable damages.

6. Lack of causation

The alleged breach did not cause the claimed loss.

7. Regulatory illegality

The requested contractual performance would itself violate EU railway or competition law.

36. Key Difference: Contract Claim vs Regulatory Claim

This distinction is essential.

Contract claim

“Operator B failed to provide the agreed locomotive.”

This is primarily contractual.

Regulatory claim

“The infrastructure manager unlawfully denied railway capacity.”

This may require regulatory proceedings and application of Directive 2012/34/EU.

Competition claim

“Two railway operators agreed to exclude a competing operator.”

This may engage Article 101 TFEU.

One factual dispute can contain all three dimensions.

37. Practical Example

Facts

A French railway undertaking and an Italian railway undertaking agree to operate a Paris–Milan service.

Under their agreement:

France supplies traction for the French section;

Italy supplies traction for the Italian section;

both contribute rolling stock;

revenue is divided 55:45;

each party pays certain infrastructure charges.

The Italian operator subsequently refuses to provide traction.

The French company hires an alternative operator at a much higher price.

Claims

The French operator may claim:

breach of contract;

additional traction expenses;

lost revenue;

passenger compensation;

contractual penalties.

Additional questions

The court may need to determine:

governing law;

jurisdiction;

validity of the liability clause;

whether alternative traction costs were reasonably mitigated;

whether the failure resulted from force majeure;

whether regulatory railway rules affected performance.

38. Second Example — Excessive Infrastructure Charges

A German railway company operates international trains in Austria.

Its operating agreement requires it to bear infrastructure charges.

It later argues that the charges were calculated unlawfully.

The dispute may involve:

Contract law

→ Who ultimately bears the cost?

Railway law

→ Were the charges lawfully calculated?

Regulatory law

→ Could the national regulator review them?

Restitution

→ Can excess charges be recovered?

The Die Länderbahn and ÖBB-Infrastruktur/WESTbahn judgments are particularly useful for the regulatory dimension. (InfoCuria)

39. Recent Development: DB InfraGO

The 2026 DB InfraGO judgment is particularly significant for current European railway litigation.

The CJEU held that national legislation imposing a fixed mathematical formula for certain infrastructure charges was incompatible with the required independence of railway infrastructure managers. (curia)

This illustrates an increasingly important principle:

National legislation, regulatory decisions and private railway contracts must operate within the EU railway-access framework.

40. Most Important Six Cases

If an examination requires at least six cases, remember:

1. European Night Services — Joined T-374/94 and related cases

International train operating agreements + competition.

2. WESTbahn — C-210/18

Passenger platforms + minimum access package.

3. Die Länderbahn — C-582/22

Review and reimbursement of infrastructure charges.

4. ÖBB-Infrastruktur/WESTbahn — C-538/23

Infrastructure charging and mark-ups.

5. Commission v Spain — C-483/10

Infrastructure-manager independence and charges.

6. Commission v Bulgaria — C-152/12

Charges and costs directly incurred by train operations.

For a modern answer, add:

7. DB InfraGO — C-770/24

2026 charging formula + infrastructure-manager independence.

8. Commission v Luxembourg — C-305/10

Working conditions of mobile workers in interoperable cross-border rail services.

41. Case-Law Development

The cases can be understood as a progression:

European Night Services
↓
International railway cooperation and competition

Commission v Spain / Bulgaria / Hungary
↓
Infrastructure access, capacity and charging

WESTbahn
↓
Scope of minimum railway access

Die Länderbahn
↓
Regulatory review and reimbursement

ÖBB-Infrastruktur/WESTbahn
↓
Modern charging and regulatory control

DB InfraGO
↓
Independence and contemporary charging methodology

42. Exam Formula

For a Cross-Border Train Operating Agreement Claim, use:

Parties → Operating Agreement → Services Allocated → Train Paths → Infrastructure → Rolling Stock → Crew → Charges → Revenue Sharing → Applicable Law → Jurisdiction → EU Railway Rules → Competition Law → Breach → Causation → Damages → Regulatory Remedies.

Short formula

“Contract + Access + Capacity + Charges + Operations + Competition + Jurisdiction + Remedies.”

43. Ultra-Short Revision Notes

European Night Services = core case on international railway operating agreements.

Train operating agreements may involve traction, crew, paths, rolling stock and passenger services.

WESTbahn = passenger platforms can form part of minimum railway access.

Die Länderbahn = regulatory review/reimbursement of infrastructure charges.

ÖBB-Infrastruktur/WESTbahn = charging and mark-ups.

Commission v Spain = independence of infrastructure manager.

Commission v Bulgaria = charging framework.

Commission v Hungary = capacity allocation and charging.

DB InfraGO = 2026 development on charging methodology and managerial independence.

Commission v Luxembourg = mobile workers in interoperable cross-border railway services.

Contractual rights cannot override mandatory EU railway rules.

Competition law can apply to cooperation between railway operators.

Regulatory claims and private contractual claims must be distinguished.

Damages require breach, causation and legally recoverable loss.

Conclusion

Cross-border train operating agreement litigation in Europe is not simply an ordinary breach-of-contract dispute. The contractual relationship operates inside a highly regulated European railway system.

The central authority is European Night Services, because it directly involved agreements among railway undertakings for international passenger services and operating arrangements covering traction, train crews, train paths, cleaning, maintenance and passenger handling. (EUR-Lex)

The later cases—particularly WESTbahn, Die Länderbahn, ÖBB-Infrastruktur/WESTbahn, Commission v Spain, Commission v Bulgaria and DB InfraGO—show how disputes concerning access, infrastructure, charges and regulatory independence can directly affect the rights and liabilities created by cross-border train operating agreements. (InfoCuria)

Thus, the essential legal approach is:

First identify the contractual obligation → then identify the railway-regulatory framework → examine access, capacity and charges → check competition-law restrictions → determine governing law and jurisdiction → establish breach and causation → calculate damages or seek regulatory/civil remedies.