Track-access charges after the CJEU judgment — the re-tariffing, the Köln litigation and SPNV contract cash flows

What the Court decided, and why it bites retrospectively

The cap in § 37(2) ERegG, read with § 5(3) and (10) RegG, tied the permitted growth of SPNV track-access charges to the dynamisation rate of the Regionalisierungsmittel — 1.8 % and, from 2026, 3 % — and required the resulting shortfall to be recovered through mark-ups on long-distance and freight. The Court held that this offends the managerial independence of the infrastructure manager under Directive 2012/34/EU: the manager must retain a core of entrepreneurial discretion over how charges are actually set, and may not be reduced to applying a statutory formula with no room of its own.

Two features of the judgment do the damage. First, the Court did not limit its temporal effects, so the finding reaches back to charging years already invoiced. Second, nothing in it adds money to the system: the total cost ceiling is unchanged, so relieving one market segment necessarily loads another. Germany currently has no statutory cap on SPNV track-access charges at all — § 37(2) ERegG is disapplied and no successor provision has been enacted. The draft tenth amendment to the railway legislation, in stakeholder consultation in August 2026, does not contain a charging reform; the industry associations have asked for one, together with a multi-year price corridor and the deletion of the one-sided full-cost recovery duty in § 31(2) ERegG.

The July decision and the numbers

By decision of 22 July 2026 (BK10-26-0047_E) the Bundesnetzagentur withdrew the approval of 11 December 2025 and re-set the 2026 charges within the unchanged ceiling of €6.991 bn: SPNV +9 % (DB InfraGO) and +11 % (DB RNI), long-distance −17 % and −18 %, freight −12 % and −14 %. DB InfraGO had applied for +10.2 % on the SPNV side. The originally approved figures had been +3 % for SPNV against an average of +2.4 %, after the statutory reduction of the return on equity to 1.9 % had already taken roughly €700 m out of the cost base.

The re-invoicing runs in monthly tranches, with up to three correction invoices per month for earlier periods; DB InfraGO has indicated completion for 2026 by the end of 2026. The 2025 charging year is a separate, still-open proceeding — the application filed on 23 April 2026 covered 2025 and 2026 together, and only 2026 has been decided. Grant recipients should expect fresh EBA notices and, in some constellations, partial repayment of subsidies already granted.

Looking forward, the ceiling for the 2027 network timetable was set at €7.317 bn on 24 June 2026 — about 5 % above 2026, and some €231 m below what DB InfraGO had claimed — with an SPNV charging application of +7.8 %, an average of around €7.59 per kilometre. A second increase therefore lands on the same contracts twelve months after the first.

The proceedings

Three distinct disputes are running, and conflating them is easy.

Operators against the regulator. On 31 August 2026 more than forty railway undertakings, joined by the Free State of Bavaria, brought proceedings before the VG Köln against the decision of 22 July 2026, organised by the Bundesverband SchienenNahverkehr. The pleaded grounds are reported as methodological and structural defects in the calculation of the charges and a lack of transparency in the derivation of the underlying costs. The case number is not public; whether interim relief has been sought is not on the record either, and DB InfraGO is invoicing the additional amounts in the meantime. One trade report describes the claim as coordinated with all sixteen Länder; what is documented is the accession of Bavaria, with a second Land reported as directly supporting it.

Länder against the Federal Government. The special transport ministers' conference of 6 August 2026, chaired by Bavaria, resolved unanimously to take the litigation route if the Federal Government declines further compensation. That is a conditional resolution, not a filed action, and no such action has been verified as brought. It would in any event travel a different road than the Köln proceedings — a federal-state financing dispute rather than an administrative challenge to a regulatory decision.

The infrastructure manager against the regulator. DB InfraGO filed its own claim and interim application on 23 July 2026 against the 2027 cost ceiling. It is separately litigating the Bundesnetzagentur's decision of 17 July 2026 on long-distance competition — a different subject matter, covered in the note on open-access Fernverkehr fleets.

A parallel ruling is instructive on the prospects of interim relief. By orders of 23 July 2026 (18 L 2379/24 and 18 L 437/26) the VG Köln refused DB InfraGO's applications for provisional payment of higher station charges for 2025 and 2026 under the modified standard of § 35(6) sentence 2 ERegG, holding that the manager had produced no verifiable body of figures but had merely escalated the previous year's charges. The same orders indicate that the station-charge cap is, in the court's provisional view, likewise incompatible with Union law — the second shoe, for a second charging regime.

Who carries it — and what that does to a financing

Economically the burden ends with the authorities and therefore the Länder: operators pass the additional charges to their Aufgabenträger, and the associations describe the recovery in exactly those terms. The VRR was already spending €370 m of €772 m of its 2024 Regionalisierungsmittel on infrastructure charges before any of this; Lower Saxony has put its own additional burden at €90 m. A nationwide figure of €800 m circulates in Länder statements, which sits oddly beside the regulator's €400 m for 2026 and is most plausibly read as 2025 and 2026 combined — that reconciliation is not documented.

The legal allocation, however, is contractual, and it is where the diligence has to be done. A gross contract with a genuine pass-through of Trassenentgelte leaves the operator largely indifferent and the authority exposed; a gross contract with an index that tracks general cost inflation rather than actual charges leaves a gap precisely of the kind this decision opens; a net contract leaves the operator with both. The recommendation made here in March — that pass-through clauses should distinguish charges levied under an enforceable charging statement from charges payable only on final judicial determination, and allocate the interim liquidity risk expressly — has become a live cash question rather than a drafting nicety, because the correction invoices are going out while the Köln proceedings run.

For rolling-stock financings three consequences follow. First, availability payments under PSO contracts are the collateral cash flow behind most German SPNV fleet debt, whether the operator finances directly behind a Kapitaldienstgarantie or an authority pool carries the asset. A retrospective charge increase that an authority must absorb out of a fixed Regionalisierungsmittel envelope competes directly with the capital service in that envelope. Second, the announced route is service reduction: the competitor association mofair puts the unmitigated effect at a cut of at least ten and more realistically twenty per cent of SPNV volume, precisely because personnel and vehicle costs are remanent. Volume cuts in a gross contract reduce the kilometre-based revenue that the model assumed, while the leasing obligation stays whole. Third, the 2027 round adds +7.8 % on top. Financial models built on the pre-2026 trajectory — SPNV charges rose only 11 % between 2020 and 2024, against 19.9 % for long-distance and freight — are structurally mispriced, and so are the bids that were calculated on them.

There is also a legitimate-expectation argument worth noting, which the Ministerpräsidentenkonferenz of 25 June 2026 made in its own terms: the Länder ordered long-dated services in reliance on the cap. The same reliance underlies fleet financings whose terms run beyond the transport contract that carries them, and it is the reasoning a party would deploy in seeking contractual adjustment.

The federal side has moved the other way

No compensation commitment has been given. The Länder complained of federal silence in July, and again at the special conference in August; the coalition agreement's promise to reform the charging system is unimplemented, and the Bundesrat had already asked for a concept »without delay« in October 2025, together with a switch from equity injections — roughly €19 bn of infrastructure funding between 2015 and 2025, refinanced through the charges themselves — to construction grants that do not feed back into the charge base.

The 2027 federal budget goes in the opposite direction: the transport chapter falls by €1.47 bn to €26.43 bn, the transport share of the infrastructure special fund from €22 bn to €17.72 bn, and the charge-subsidy lines for freight (€265 m to €200 m) and long-distance (around €200 m to around €5 m) are cut. The segments the judgment relieved lose their subsidy; the segment it burdened gets nothing. A reform that moved the charging standard from full cost to the direct cost of train operation is the structural answer the associations argue for, and it is costed at €2–3.8 bn of federal money a year — which is why it has not happened.

What to watch

The Bundesnetzagentur's decision on the 2025 charging year, still outstanding. The Köln proceedings, in particular any application for interim relief, since suspension would change the liquidity position of every operator now paying correction invoices. Whether the tenth amendment picks up a charging reform before it leaves consultation. And, for anyone drafting now, the treatment of track-access charges in the tender documentation of the procedures currently in the market — the allocation chosen there will outlive this dispute.

Where this sits

This note continues the March note on the preliminary reference. See also the financing structures page on guarantee instruments and authority pools, the market-access section on Directive 2012/34/EU and the ERegG, and the Aufgabenträger profiles for the authority side of the contracts affected.

Sources: CJEU, judgment of 19 March 2026, C-770/24 (reference from VG Köln); Bundesnetzagentur press releases of 12 December 2025 and 22 July 2026 and decision BK10-26-0047_E; Bundesnetzagentur cost-ceiling decision of 24 June 2026; DB InfraGO customer information of April and July 2026 and Geschäftsbericht 2025; VG Köln, orders of 23 July 2026, 18 L 2379/24 and 18 L 437/26; Bundesverband SchienenNahverkehr statements of 23 July and September 2026; Bayerisches Staatsministerium für Wohnen, Bau und Verkehr on the special VMK of 6 August 2026; Ministerpräsidentenkonferenz of 25 June 2026, TOP 1.09; VRR, VDV and mofair publications; Deutsches Verkehrsforum, comments on the draft tenth amendment (18 August 2026); Bundestag hib on the 2027 federal budget. The case number of the Köln proceedings, whether interim relief was sought, and whether the Länder have in fact filed against the Federal Government are not public at the time of writing and are described as such above. Facts as published; not independently verified. Last reviewed: 20 September 2026. These notes are not legal advice. See the Disclaimer.