Judgment of the Court (Fourth Chamber) of 15 October 2026.#Autorità di regolazione dei trasporti v Captrain Italia and Others.#Requests for a preliminary ruling from the Consiglio di Stato.#Reference for a preliminary ruling – Rail transport – Directive 2012/34/EU – Single railway area – Article 35 – Performance scheme – Scope – Penalties for the disruption caused by railway undertakings – General scheme of penalties applicable in the event of delay on the entire national network – Penalties which may be imposed, depending on the entity to which the delay is attributable, either on the infrastructure manager or on the railway undertaking – Specific scheme of penalties applicable in the event that the stop time in stations connecting with foreign rail networks is exceeded – Penalties imposed solely on railway undertakings – Whether combination of several penalty schemes permissible – Conditions – Annex VI, point 2 – Observance of the basic principles of the performance scheme – Article 56 – Regulatory body – Extent of the supervision – Principle of proportionality.#Joined Cases C-161/25 and C-162/25.

Provisional text

JUDGMENT OF THE COURT (Fourth Chamber)

15 October 2026 (*)

( Reference for a preliminary ruling – Rail transport – Directive 2012/34/EU – Single railway area – Article 35 – Performance scheme – Scope – Penalties for the disruption caused by railway undertakings – General scheme of penalties applicable in the event of delay on the entire national network – Penalties which may be imposed, depending on the entity to which the delay is attributable, either on the infrastructure manager or on the railway undertaking – Specific scheme of penalties applicable in the event that the stop time in stations connecting with foreign rail networks is exceeded – Penalties imposed solely on railway undertakings – Whether combination of several penalty schemes permissible – Conditions – Annex VI, point 2 – Observance of the basic principles of the performance scheme – Article 56 – Regulatory body – Extent of the supervision – Principle of proportionality )

In Joined Cases C‑161/25 and C‑162/25,

TWO REQUESTS for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 18 February 2025, received at the Court on 24 February 2025, in the proceedings

Autorità di regolazione dei trasporti

v

Captrain Italia (C-161/25),

Rail Cargo Carrier Italy Srl,

Fuorimuro Impresa Ferroviaria Srl,

InRail SpA,

SBB Cargo Italia Srl,

Oceanogate Italia SpA,

GTS Rail SpA,

Adriafer Srl con socio unico,

DB Cargo Italia Srl,

Sangritana SpA,

Lokomotion Gesellschaft für Schienentraktion mbH (C‑162/25),

intervening party:

Rete Ferroviaria Italiana SpA

THE COURT (Fourth Chamber),

composed of I. Jarukaitis, President of the Chamber, R. Frendo, N. Jääskinen (Rapporteur), M. Condinanzi and A. Kornezov, Judges,

Advocate General: A. Rantos,

Registrar: V. Di Bucci,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        Captrain Italia, Rail Cargo Carrier Italy Srl, Fuorimuro Impresa Ferroviaria Srl, InRail SpA, SBB Cargo Italia Srl, Oceanogate Italia SpA, GTS Rail SpA, Adriafer Srl con socio unico, DB Cargo Italia Srl, Sangritana SpA, by M. Giordano, avvocato,

–        Lokomotion Gesellschaft für Schienentraktion mbH, by M. Giordano, avvocato,

–        Rete Ferroviaria Italiana SpA, by A. Celotto, avvocato,

–        the Italian Government, by S. Fiorentino, acting as Agent, and by M. De Vergori and M. Stigliano Messuti, avvocati dello Stato,

–        the Polish Government, by B. Majczyna, acting as Agent,

–        the European Commission, by G. Conte and K. Walkerová, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 16 April 2026,

gives the following

Judgment

1        These requests for a preliminary ruling concern the interpretation of Article 35 of Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area (OJ 2012 L 343, p. 32), as amended by Directive (EU) 2016/2370 of the European Parliament and of the Council of 14 December 2016 (OJ 2016 L 352, p. 1) (‘Directive 2012/34’) and of Article 97 TFEU.

2        The requests have been made in two sets of proceedings between, of the one part, the Autorità di regolazione dei trasporti (Transport Regulatory Authority, Italy; ‘the ART’), a national regulatory body for the railway sector in Italy, and Rete Ferroviaria Italiana SpA (‘RFI’), the Italian railway infrastructure manager, and, of the other part, railway undertakings engaged in international freight transport; the proceedings concern a decision of the ART, adopted in 2022, approving the ‘indications and requirements relating to the “2024 network statement”’ drawn up by RFI, which provide for the application of penalties to railway undertakings for exceeding stop times in stations connecting with foreign rail networks.

 Legal context

 European Union law

 The FEU Treaty

3        Article 97 TFEU provides:

‘Charges or dues in respect of the crossing of frontiers which are charged by a carrier in addition to the transport rates shall not exceed a reasonable level after taking the costs actually incurred thereby into account.

Member States shall endeavour to reduce these costs progressively.

…’

 Directive 2012/34

4        Recitals 2 and 3 of Directive 2012/34 state:

‘(2)      Greater integration of the [European] Union transport sector is an essential element of the completion of the internal market, and the railways are a vital part of the Union transport sector moving towards achieving sustainable mobility.

(3)      The efficiency of the railway system should be improved, in order to integrate it into a competitive market, whilst taking account of the special features of the railways.’

5        The provisions of Section 2 of Chapter IV of that directive, entitled ‘Infrastructure and services charges’, include Article 35, itself entitled ‘Performance scheme’, which provides in paragraphs 1 and 2:

‘1.      Infrastructure charging schemes shall encourage railway undertakings and the infrastructure manager to minimise disruption and improve the performance of the railway network through a performance scheme. This scheme may include penalties for actions which disrupt the operation of the network, compensation for undertakings which suffer from disruption and bonuses that reward better-than-planned performance.

2.      The basic principles of the performance scheme as listed in point 2 of Annex VI shall apply throughout the network.’

6        Article 55 of Directive 2012/34, entitled ‘Regulatory body’, provides in paragraph 1:

‘Each Member State shall establish a single national regulatory body for the railway sector. Without prejudice to paragraph 2, this body shall be a stand-alone authority which is, in organisational, functional, hierarchical and decision-making terms, legally distinct and independent from any other public or private entity. It shall also be independent in its organisation, funding decisions, legal structure and decision-making from any infrastructure manager, charging body, allocation body or applicant. It shall furthermore be functionally independent from any competent authority involved in the award of a public service contract.’

7        Article 56 of that directive, entitled ‘Functions of the regulatory body’, states:

‘1.      Without prejudice to Article 46(6), an applicant shall have the right to appeal to the regulatory body if it believes that it has been unfairly treated, discriminated against or is in any other way aggrieved, and in particular against decisions adopted by the infrastructure manager or where appropriate the railway undertaking or the operator of a service facility concerning:

(a)      the network statement in its provisional and final versions;

(b)      the criteria set out in it;

(c)      the allocation process and its result;

(d)      the charging scheme;

(e)      the level or structure of infrastructure charges which it is, or may be, required to pay;

….

2.      Without prejudice to the powers of the national competition authorities to secure competition in the rail services markets, the regulatory body shall have the power to monitor the competitive situation in the rail services markets, including in particular the market for high-speed passenger services, and the activities of infrastructure managers in relation to points (a) to (j) of paragraph 1. In particular, the regulatory body shall verify compliance with points (a) to (j) of paragraph 1 on its own initiative and with a view to preventing discrimination against applicants. It shall, in particular, check whether the network statement contains discriminatory clauses or creates discretionary powers for the infrastructure manager that may be used to discriminate against applicants.

…

6.      The regulatory body shall ensure that charges set by the infrastructure manager comply with Section 2 of Chapter IV and are non-discriminatory.

…’

8        Annex VI to Directive 2012/34, entitled ‘Requirements for costs and charges related to railway infrastructure’, is worded as follows in point 2(a) and (b) thereof:

‘The performance scheme as referred to in Article 35 shall be based on the following basic principles:

(a)      In order to achieve an agreed level of performance and not to endanger the economic viability of a service, the infrastructure manager shall agree with applicants the main parameters of the performance scheme, in particular the value of delays, the thresholds for payments due under the performance scheme relative both to individual train runs and to all train runs of a railway undertaking in a given period of time;

(b)      The infrastructure manager shall communicate to the railway undertakings the working timetable, on the basis of which delays will be calculated, at least five days before the train run. The infrastructure manager may apply a shorter notice period in case of force majeure or late alterations of the working timetable;

…’

 Italian law

 Decree-Law No 201 of 6 December 2011

9        Article 37 of decreto-legge n. 201 – Disposizioni urgenti per la crescita, l’equità e il consolidamento dei conti pubblici (Decree-Law No 201 laying down emergency provisions for growth, fairness and consolidation of public accounts) of 6 December 2011 (GURI No 284 of 6 December 2011, Ordinary Supplement No 251), converted into law, with amendments, by legge n. 214 (Law No 214) of 22 December 2011 (GURI No 300 of 27 December 2011, Ordinary Supplement No 276), provides:

‘1.      In the context of the regulation of public utility services …, the Transport Regulatory Authority (“the Authority”) is hereby established, … having full autonomy and using its independent judgment and assessment. … The Authority shall oversee the transport sector and the access to relevant infrastructures and ancillary services, in accordance with EU legislation and in compliance with the subsidiarity principle and respecting the jurisdiction of regions and local authorities as referred to in Title V of Section Two of the Constitution. … …

2.      The Authority shall oversee the transport sector and access to the relevant infrastructures and in particular:

(a)      shall ensure, adopting methods that encourage competition, the productive efficiency of operations and the containment of costs for users, undertakings and consumers, as well as fair and non-discriminatory conditions for access to rail, port, airport and motorway infrastructures, … without prejudice to the competences of the road and motorway infrastructure agency … as well as regards passenger and freight mobility at national, local and urban level, including in relation to stations, airports and ports, excluding the road haulage sector.

(b)      where it is deemed necessary on the basis of competition conditions actually prevailing in each national and local transport service market, shall set the criteria to determine tariffs, charges and tolls applied by the competent entities, by taking into account the need to ensure the economic equilibrium of regulated undertakings, the productive efficiency of management and the containment of costs for users, undertakings and consumers;

…

(i)      with particular reference to access to the railway infrastructure, shall perform all the functions of a regulatory body … and, in particular, shall define the criteria for setting tolls applied by the infrastructure manager and the criteria applying to path and capacity allocation, and supervise their correct application by the infrastructure manager;

…’

 Legislative Decree No 112

10      Article 13 of decreto legislativo n. 112 – Attuazione della direttiva 2012/34/UE del Parlamento europeo e del Consiglio, del 21 novembre 2012, che istituisce uno spazio ferroviario europeo unico (Legislative Decree No 112 transposing Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area) of 15 July 2015 (GURI No 170 of 24 July 2015, p. 1; ‘Legislative Decree No 112’), entitled ‘Conditions of access to services’, provides:

‘1.      The infrastructure manager shall ensure, and therefore supply, to all railway undertakings to which time paths have been allocated, on fair and non-discriminatory terms and without any additional charge with respect to the charge for access to and use of the infrastructure, the provision of the following services constituting the minimum access package:

(a)      processing of requests for railway infrastructure capacity with a view to concluding contracts for the use of the infrastructure;

(b)      right to use allocated capacity;

(c)      use of the railway infrastructure, including track points and junctions;

(d)      monitoring and regulating train movements, signalling and routing convoys, and providing any traffic information;

(e)      use of electrical supply equipment for traction current, where available;

(f)      all other information required to implement or operate the service for which capacity has been granted.

…’

11      Article 21 of Legislative Decree No 112, entitled ‘System for monitoring the performance of railway transport’, states:

‘1.      In order to minimise malfunctions resulting from any disruption to train movements, the infrastructure manager shall adopt, with no additional charge to the State budget, a specific rail transport performance monitoring scheme, which may provide for penalty clauses against network users causing such disruption, compensation for network users which suffer loss or damage as a result of such disruption and types of bonuses for network users which distinguish themselves by performance levels better than those planned in the respective infrastructure access contracts.

2.      The basic principles of the performance scheme, referred to in point 2 of Annex VI to [Directive 2012/34], shall apply to the entire network run by the infrastructure manager.’

12      Article 37(1) of Legislative Decree No 112, entitled ‘Regulatory body’, is drafted as follows:

‘The regulatory body shall be the Transport Regulatory Authority, which shall exercise powers in the sector covering rail transport and access to related infrastructures pursuant to Article 37 of Decree-Law No 201 of 6 December 2011, converted into a law, with amendments, by Law No 214 of 22 December 2011, to Article 37 of Decree-Law No 1 of 24 January 2012, converted into a law, with amendments, by Law No 27 of 24 March 2012, to [Directive 2012/34] and to this Decree. That body shall have full autonomy and use its independent judgment and assessment.’

 The disputes in the main proceedings and the questions referred for a preliminary ruling

13      By a decision adopted in 2022, the ART approved the ‘indications and requirements relating to the “2024 network statement”’ drawn up by RFI. By that decision, the ART provided that some of those indications and requirements would be incorporated in the network statement for 2024, while the others would be incorporated in the 2023 network statement.

14      Those indications and requirements provided for two types of penalty. On the one hand, they included penalties imposed under the general scheme applicable to the entire network, as referred to in Article 21 of Legislative Decree No 112 transposing Article 35 of Directive 2012/34 into Italian law, which may be imposed, depending on the entity to which the delay is attributable, either on the infrastructure manager or on the railway undertaking. On the other hand, they introduced a specific scheme of penalties for exceeding the stop time provided for at stations connecting with foreign rail networks, which may be imposed solely on railway undertakings engaged in international freight transport.

15      The defendant railway undertakings in the main proceedings brought an action before the Tribunale amministrativo regionale per il Piemonte (Regional Administrative Court, Piedmont, Italy) seeking annulment of the ART’s decision, referred to in paragraph 13 above, and of the network statement for 2023. Before that court, they argued, inter alia, that that decision and that document were vitiated by illegality in so far as they established a scheme of penalties distinct from that laid down in Article 35 of, and Annex VI to, Directive 2012/34 and provided, in respect of railway undertakings, for a combination of penalties for the same incident, namely a delay in a connecting station.

16      That court upheld both actions in part, on the ground that the contested acts were vitiated by a failure to conduct a proper investigation and to state reasons. Consequently, it annulled those acts and referred the two cases back to the ART so that it could, if necessary, exercise its power again.

17      The ART lodged an appeal against that judgment before the Consiglio di Stato (Council of State, Italy), which is the referring court. The railway undertakings, defendants in the main proceedings, for their part brought a cross-appeal in which they contended that the border penalties are contrary to Article 97 TFEU and that they are disproportionate.

18      In the first place, the referring court asks whether a penalty scheme may be established outside the framework laid down by Article 35 of Directive 2012/34 and, therefore, whether that article allows Member States to provide for a specific penalty scheme applicable only to railway undertakings engaged in international freight transport, as is at issue in the main proceedings (‘the specific scheme of border penalties’); that scheme is intended to impose penalties for exceeding stop times in stations connecting with foreign rail networks, in addition to the penalties which may be imposed, under the general scheme applying to the entire network, either on the infrastructure manager or on the railway undertaking, depending on the person responsible for the delay of a train running on the railway infrastructure.

19      In the second place, in the event that the Member States could introduce such a specific scheme of border penalties, that court seeks to ascertain whether Article 35 of Directive 2012/34 permits the combination of penalties, such that a railway undertaking may be subject, for the same incident, namely a delay in a connecting station, both to a penalty under the general scheme applying to the entire network and to a border penalty.

20      In the third place, in the event that that combination of penalties is consistent with Article 35, the referring court is uncertain as to the requirements governing that combination. It asks, in particular, whether that article requires the competent national authority, in present case, the ART, first, to observe the principle of neutrality of the mechanism which it introduces and, second, to ensure coordination between the various penalty schemes applicable and to verify that such combination does not lead to a disproportionate burden on the railway undertakings concerned.

21      In the fourth and last place, the referring court asks whether Article 97 TFEU precludes a performance scheme that does not take into account the revenue that railway undertakings have or may obtain in order to cover the transit costs actually incurred in crossing the border.

22      In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following questions, which are essentially identical in Cases C‑161/25 and C‑162/25, to the Court of Justice for a preliminary ruling:

‘(1)      May a penalty scheme be imposed other than that provided for in Article 35 of [Directive 2012/34]?

(2)      Does Article 35 [of Directive 2012/34] permit the combination of more than one penalty scheme, in other words, does it permit, in relation to the same incident – a delay at a border station – the railway undertaking to be subject both to the penalty provided for in the general scheme which applies to the entire network and to a penalty that is specific to the border station?

(3)      If the answer to the previous question is in the affirmative, does Article 35 of [Directive 2012/34] require the regulatory authority, when it introduces or, in any event, “validates” a penalty scheme for border stations imposed on rail freight undertakings, to ensure at all times compliance with the provisions of that article, guaranteeing the neutrality of the measure, so that: (i) bonuses must be given to diligent railway undertakings [whose performance is better than planned], (ii) compensation is to be provided to undertakings [suffering loss or damage] and (iii) the penalties must also be imposed on the manager where the manager itself is the cause of the delay, on the premiss that neutrality implies that each penalty always affects both sides?

(4)      If the answer to [the second question] is in the affirmative, does Article 35 of [Directive 2012/34] require the regulatory authority to coordinate, and if so to what extent, the penalty scheme incorporated in the “performance [scheme]” and the scheme of border penalties, so that both schemes pursue the objective of network efficiency in a coordinated manner, without being excessively onerous for railway undertakings affected by border penalties?

(5)      If the answer to [the second question] is in the affirmative, does Article 35 of [Directive 2012/34] require coordination of the ceilings laid down by the two penalty scheme[s] and an assessment of their economic impact on railway undertakings, so that [on the one hand,] the principle of efficiency is weighed against the principle[s] of proportionality and reasonableness and [on the other hand,] the profitability of rail services is not jeopardised?

(6)      If the answer to [the second question] is in the affirmative, must Article 97 TFEU be interpreted as meaning that the charges or duties, which may be received by the carrier, are to be understood as the charges or duties incurred by the railway undertaking in transit, which must correspond to the concrete costs actually incurred by the manager of the railway infrastructure used for transit, “in addition to the transport rates”, that is, irrespective of the revenues which the carrier has or may obtain to cover those transit costs?’

 Procedure before the Court

23      By decision of the President of the Court of Justice of 1 April 2025, Cases C‑161/25 and C‑162/25 were joined for the purposes of the written and oral parts of the procedure and the decision closing the proceedings.

 Consideration of the questions referred

 The first question

 Admissibility

24      The Italian Government disputes the admissibility of the first question referred for a preliminary ruling on the ground that the referring court did not specify the nature of its doubts, in the present case, concerning the interpretation of Article 35 of Directive 2012/34 or indicate how that interpretation would be contrary to a provision of national law.

25      According to settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite obvious that the interpretation of EU law sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, to that effect, judgment of 12 February 2026, Valora Effekten Handel, C‑864/24, EU:C:2026:94, paragraph 28 and the case-law cited).

26      In the present case, the first question concerns the interpretation of a provision of EU law, the relevance of which for the resolution of the disputes in the main proceedings is clear from the order for reference. In the light of the information contained in that order, it is apparent that the interpretation of Article 35 of Directive 2012/34, as sought by the referring court, is necessary in order to enable it to assess the compatibility with EU law of national legislation which, first, lays down a general scheme of penalties applicable in the event of delay on the entire national network – under which penalties may be imposed, according to the person responsible for the delay, both on the infrastructure manager and on the railway undertakings – and, second, authorises the application of a specific scheme of border penalties where the stop time in stations connecting with foreign rail networks is exceeded, penalties which may be imposed solely on railway undertakings engaged in international freight transport.

27      It follows that the first question is admissible.

 Substance

28      By its first question in both joined cases, the referring court asks, in essence, whether Article 35 of Directive 2012/34 must be interpreted as precluding national legislation which authorises, alongside the general scheme of penalties entailed by a performance scheme within the meaning of Article 35 of that directive, which that national legislation has introduced, the application of a specific scheme of border penalties, not formally intended to implement Article 35, in the event that the stop time in stations connecting with foreign rail networks is exceeded.

29      First, under Article 35(1) of Directive 2012/34, Member States are required to include, in the railway infrastructure charging schemes, a ‘performance scheme’ aimed at encouraging both railway undertakings and the infrastructure manager to minimise disruption and improve the performance of the railway network. That scheme may include penalties for actions which disrupt the operation of the network, compensation for undertakings which suffer from disruption and bonuses that reward better-than-planned performance.

30      Second, in accordance with Article 35(2) of that directive, the performance schemes thus established by the Member States must observe the basic principles set out in point 2 of Annex VI to that directive.

31      Furthermore, it should be noted that Article 35 of Directive 2012/34 does not expressly define the concept of ‘performance scheme’ and simply requires that infrastructure charging schemes include such a scheme, without laying down the specific rules for its implementation, save to state that that scheme may include penalties, compensation and bonuses. However, as the Advocate General stated, in essence, in point 40 of his Opinion, it follows from a combined reading of that article and the basic principles set out in point 2 of Annex VI to Directive 2012/34 that any regulation or measure relating to the levying of charges intended, in particular, to optimise the use of the railway infrastructure and to encourage railway undertakings and the infrastructure manager to minimise disruption and improve the performance of the railway network must be understood as coming within such a scheme, irrespective of the classification applied or of the name attributed to such a measure in national law.

32      Accordingly, it must be held that a specific scheme of border penalties, such as that at issue in the cases in the main proceedings, although not formally intended to implement Article 35 of Directive 2012/34, nevertheless falls within the scope of that article, to the extent that such a scheme pursues the objectives of promoting the optimal use of the rail network and of encouraging railway undertakings to minimise disruption and improve the performance of that network, which it is for the referring court to ascertain.

33      This is the case regardless of the fact that that scheme was introduced on the basis of an act separate from that which introduced the general scheme of penalties applicable to the entire network, that it concerns only a specific segment of the network, such as border stations, and that it was adopted in order to supplement measures previously put in place in the context of the performance scheme with a view to remedying disruption affecting that segment, as the Advocate General observed, in essence, in point 45 of his Opinion.

34      Consequently, it must be held that a specific scheme of border penalties, such as that at issue in the cases in the main proceedings, must comply with the requirements laid down in Article 35 of Directive 2012/34 and observe the basic principles set out in point 2 of Annex VI to that directive.

35      Admittedly, as the Court has already held in the context of the interpretation of Article 11 of Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (OJ 2001 L 75, p. 29), which has been replaced by Article 35 of Directive 2012/34, Member States remain free to choose the specific measures that are to form part of the performance scheme (see, to that effect, judgments of 28 February 2013, Commission v Spain, C‑483/10, EU:C:2013:114, paragraph 64, and of 11 July 2013, Commission v Czech Republic, C‑545/10, EU:C:2013:509, paragraph 80).

36      However, while Member States enjoy a broad discretion in putting in place the specific measures forming part of the performance scheme referred to in Article 35 of Directive 2012/34, it cannot be inferred from this that they are authorised to disregard the requirements of Article 35, as well as the basic principles set out in point 2 of Annex VI to that directive. Consequently, since Article 35 provides for the establishment of a performance scheme while defining the objectives and basic principles that should govern it, the Member States cannot put such a scheme in place without complying with the requirements set by Directive 2012/34.

37      A different interpretation of Article 35 of Directive 2012/34 would have the effect of facilitating the circumvention of the rules laid down by that directive and would thus risk depriving that article of its effectiveness and undermining the objective which it pursues, as set out in paragraph 1 of that article, of encouraging railway undertakings and the infrastructure manager to minimise disruption and improve the performance of the railway network.

38      Such an interpretation would also be contrary to the objective of liberalising the rail market, which underlies Directive 2012/34, as is apparent from recitals 2 and 3 thereof. Indeed, the latter state that that directive seeks to ensure greater integration of the Union transport sector, which is an essential element of the completion of the internal market, and to improve the efficiency of the railway system, in order to integrate it into a competitive market.

39      In the light of the foregoing reasons, the answer to the first question in both joined cases is that Article 35 of Directive 2012/34 must be interpreted as meaning that a specific scheme of border penalties, not formally intended to implement Article 35 of that directive, applicable in the event that the stop time in stations connecting with foreign rail networks is exceeded, falls within that provision in so far as that scheme pursues the objectives of promoting the optimal use of the rail network and of encouraging railway undertakings to minimise disruption and to improve the performance of that network. In such a case, Article 35 of Directive 2012/34 does not preclude national legislation which authorises the application of such a specific scheme, alongside the general scheme of penalties entailed by a performance scheme within the meaning of that article, which that latter legislation has established, to the extent that that specific scheme complies with the requirements laid down in Article 35 of Directive 2012/34 and observes the basic principles set out in point 2 of Annex VI to that directive.

 The second, fourth and fifth questions

40      By its second, fourth and fifth questions in both joined cases, which it is appropriate to examine together, the referring court asks, in essence, whether Article 35 of Directive 2012/34 must be interpreted as allowing Member States to lay down, in the context of the performance scheme, both a general scheme of penalties applicable in the event of delay on the entire national network and a specific scheme of border penalties applicable in the event that the stop time in stations connecting with foreign rail networks is exceeded, such that for the same incident several penalties may be imposed on a railway undertaking and, if so, whether the regulatory body is required to coordinate those penalty schemes and verify that their combination observes the principle of proportionality.

41      As has been pointed out in paragraph 36 above, the Member States have a broad discretion in putting in place the specific measures forming part of the performance scheme referred to in Article 35 of Directive 2012/34, intended to encourage both railway undertakings and the infrastructure manager to improve network performance. The fact remains, however, that, in accordance with Article 35(2), that scheme must observe the basic principles set out in point 2(a) of Annex VI to that directive.

42      In view of that discretion and of the fact that Article 35 of Directive 2012/34 simply provides that the performance scheme may include penalties, without specifying their nature or extent, the Member States remain, in principle, free to establish a scheme composed of various penalties, by introducing a specific scheme of penalties intended to reduce disruption linked to delays occurring in a particular segment of the network, alongside the general scheme of penalties applicable in the event of delay on the entire national network.

43      However, as is apparent from the case-law cited in paragraph 35 above, although the Member States have freedom to choose the specific measures forming part of the performance scheme, those measures must nevertheless constitute a coherent and transparent set of measures capable of being classified as a ‘performance scheme’ within the meaning of Article 35 of Directive 2012/34.

44      That requirement presupposes, as the Advocate General observed in essence in point 52 of his Opinion, that the various measures forming part of that scheme are coordinated by the regulatory body which the Member States are required to designate in accordance with Article 55(1) of that directive.

45      As the Court has pointed out, that body is authorised, under Article 56 of Directive 2012/34, which confers on it a power of oversight in respect of the infrastructure charging scheme, to indicate to the undertaking exercising the essential functions of the railway infrastructure manager the amendments that have to be made to that charging scheme in order to remedy the incompatibilities between that scheme and the requirements laid down in that directive. Furthermore, as is apparent in particular from Article 56(6), the regulatory body’s decisions can be based only on infringement of the provisions of Section 2 of Chapter IV of Directive 2012/34, including Article 35 of that directive, or on breach of the principle of non-discrimination (see, to that effect, judgment of 9 September 2021, LatRailNet and Latvijas dzelzceļš, C‑144/20, EU:C:2021:717, paragraphs 38, 45 and 46).

46      First, Article 56(2) of Directive 2012/34 provides that the regulatory body is to ensure that infrastructure managers comply with the provisions of that directive, in particular as regards the content of the network statement referred to in Article 56(1)(a). Second, it is apparent from point 2(a) of Annex VI to that directive, to which Article 35(2) of that directive refers, that the measures provided for in the context of the performance scheme must enable an agreed level of performance to be achieved, without endangering the economic viability of the services.

47      Consequently, in the first place, when exercising the powers assigned to it, the regulatory body is required to verify, first, that the set of measures forming part of the performance scheme established by the infrastructure manager in the network statement pursues, in a coherent and transparent manner, the objective of improving network performance and, second, that those measures observe the principle of proportionality.

48      Observance of the principle of proportionality, which is a general principle of EU law, requires that the measures adopted do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation at issue; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see, to that effect, judgments of 22 March 2017, Euro-Team and Spirál-Gép, C‑497/15 and C‑498/15, EU:C:2017:229, paragraphs 39 and 40, and of 24 February 2022, Agenzia delle dogane e dei monopoli and Ministero dell’Economia e delle Finanze, C‑452/20, EU:C:2022:111, paragraph 37 and the case-law cited).

49      It follows that, where a performance scheme includes several penalty schemes capable of applying to the same incident, it is for the regulatory body to verify that those schemes are consistent with each other and that they comply with the requirements laid down in Article 35 of Directive 2012/34 and observe the basic principles set out in point 2 of Annex VI thereto. That body must also verify that the penalties that may be imposed pursuant to those schemes, taken as a whole, are appropriate, necessary and proportionate in the light of the objective pursued by Article 35 of that directive, namely the reduction of disruption and the improvement of the rail network’s performance and, therefore, that they do not go beyond what is necessary to achieve that objective.

50      In the second place, as regards the assessment of the economic impact of the various measures imposed on railway undertakings, the regulatory body is required to verify, having regard to point 2(a) of Annex VI to Directive 2012/34, that the performance scheme does not endanger the economic viability of a service and that the measures comprising that scheme, including in particular the various penalty schemes put in place in order to reduce disruption and improve performance, are not liable to undermine the economic viability and profitability of the railway undertakings concerned.

51      Furthermore, it should be noted that there is nothing before the Court to suggest that the penalties that may apply to the same incident in the context of the performance scheme at issue in the main proceedings are criminal in nature, in particular in view of the degree of severity of the penalty that the person concerned is liable to incur (see, to that effect, judgment of 30 January 2025, Engie România, C‑205/23, EU:C:2025:43, paragraph 49), which it is for the referring court to verify; accordingly, the principle ne bis in idem does not appear to apply in the present case.

52      In the light of all the foregoing considerations, the answer to the second, fourth and fifth questions in both joined cases is that Article 35 of Directive 2012/34 must be interpreted as allowing Member States to lay down, in the context of the performance scheme, both a general scheme of penalties applicable in the event of delay on the entire national network and a specific scheme of border penalties applicable in the event that the stop time in stations connecting with foreign rail networks is exceeded, with the result that, for the same incident, a railway undertaking may be subject to several penalties. Where that performance scheme comprises several penalty schemes, the regulatory body is required to verify, first, that the measures forming part of that scheme pursue, in a consistent and transparent manner, the objective of improving the network’s performance and, second, that those measures observe the principle of proportionality and do not undermine the economic viability and profitability of the railway undertakings concerned.

 The third question

53      By its third question in both joined cases, the referring court asks, in essence, whether Article 35 of Directive 2012/34 must be interpreted as requiring the regulatory body to verify, first, that the performance scheme provided for in that article necessarily includes, in addition to the imposition of penalties, the grant of bonuses to railway undertakings whose performance is better than planned and the grant of compensation for undertakings which have suffered loss or damage, and, second, that the penalties in the event of delay also apply to the infrastructure manager where the latter is responsible for the delay.

54      In accordance with Article 35(1) of Directive 2012/34 and as recalled in paragraph 29 above, the performance scheme which Member States are required to establish may include penalties for actions which disrupt the operation of the network, compensation for undertakings which suffer from that disruption and bonuses that reward better-than-planned performance. However, it is not apparent from the wording of that provision that such a scheme must necessarily include each of the three components covered by the provision, namely penalties, compensation and bonuses, in order to be regarded as compatible with it.

55      On the contrary, as has been noted in paragraphs 35 and 36 above, Member States have a broad discretion enabling them to determine which of the measures referred to in Article 35(1) of Directive 2012/34 are such as, first, to meet the objectives pursued by that provision, namely promoting the optimal use of the rail network, reducing disruption and improving performance in the use of that network and, second, to define the specific rules for the implementation thereof, in accordance with the needs of optimisation and improvement and network disruption identified.

56      Consequently, as point 2 of Annex VI to Directive 2012/34 confirms, a performance scheme may consist in various measures designed to address various aspects of the levying of charges for the use of railway infrastructure, to the extent that, as has been noted in paragraphs 43 and 49 above, those measures constitute a coherent, transparent and proportionate set of measures capable of achieving the objectives referred to in the preceding paragraph of the present judgment.

57      From that point of view, as the Advocate General observed, in essence, in point 62 of his Opinion, when it comes to improving a specific aspect of the rail network, it may be open to the Member State concerned to lay down measures applying only to the infrastructure manager or solely to the railway undertakings concerned. Indeed, provided that the infrastructure manager and the railway undertakings carry out activities of a different nature and for that reason are subject to distinct obligations, they cannot necessarily be required to come within the same penalty scheme in the event of disruption affecting rail traffic.

58      That said, such a scheme cannot, however, result in discriminatory treatment of certain railway undertakings. Under Article 56(2) of Directive 2012/34, the regulatory body is to have the power to monitor the competitive situation in the rail services markets. It must, in particular, ascertain, on its own initiative, that the network statement does not contain discriminatory clauses in respect of applicants.

59      It follows from all of the foregoing that the answer to the third question in both joined cases is that Article 35 of Directive 2012/34 must be interpreted as not requiring the regulatory body to verify, first, that the performance scheme provided for in that article necessarily includes, in addition to the imposition of penalties, the grant of bonuses to railway undertakings whose performance is better than planned and the grant of compensation for undertakings which have suffered loss or damage, and, second, that the penalties in the event of delay also apply to the infrastructure manager where the latter is responsible for the delay. By contrast, Article 35 does require that body to verify that, taken as a whole, that scheme constitutes a coherent, transparent and proportionate set of measures capable of achieving the objectives referred to in Article 35.

 The sixth question

60      By its sixth question in both joined cases, the referring court asks, in essence, whether Article 97 TFEU must be interpreted as precluding national legislation which authorises, in the context of the performance scheme referred to in Article 35 of Directive 2012/34, a specific scheme of border penalties applicable to railway undertakings in the event that the stop time in stations connecting with foreign rail networks is exceeded, without taking into consideration the revenues which those undertakings have or may obtain to cover transit costs.

61      In accordance with the first paragraph of Article 97 TFEU, charges or dues in respect of the crossing of frontiers which are charged by a carrier in addition to the transport rates are not to exceed a reasonable level after taking the costs actually incurred thereby into account. Thus, that provision contributes to reducing the costs directly linked to the crossing of borders within the European Union in order to promote the completion of the internal market.

62      In the present case, the disputes in the main proceedings concern the lawfulness of the specific scheme of border penalties, namely a specific scheme of penalties applicable to railway undertakings in the event that the stop time in stations connecting with foreign rail networks is exceeded, which is additional to the general scheme of penalties applicable in the event of delay on the entire national network. Those penalties, which are imposed on railway undertakings by the infrastructure manager, constitute, as is apparent from the orders for reference, a mechanism intended to encourage railway undertakings to reduce disruption and improve the performance of the rail network.

63      The establishment of such a scheme cannot be treated in the same way as the charges or dues referred to in Article 97 TFEU. The latter are to be understood as sums charged by the carrier. That is not the case with the penalties at issue in the cases in the main proceedings, which are imposed on railway undertakings by the infrastructure manager in the context of a performance scheme.

64      In those circumstances, it must be held that the national legislation at issue in the main proceedings does not fall within the scope of Article 97 TFEU.

65      In the light of the foregoing reasons, the answer to the sixth question in both joined cases is that Article 97 TFEU must be interpreted as not applying to national legislation which authorises, in the context of the performance scheme referred to in Article 35 of Directive 2012/34, a specific scheme of border penalties applicable to railway undertakings in the event that the stop time in stations connecting with foreign rail networks is exceeded, without taking into consideration the revenues which those undertakings have or may obtain to cover transit costs.

 Costs

66      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

1.      Article 35 of Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area, as amended by Directive (EU) 2016/2370 of the European Parliament and of the Council of 14 December 2016,

must be interpreted as meaning that a specific scheme of border penalties, not formally intended to implement Article 35 of that directive, applicable in the event that the stop time in stations connecting with foreign rail networks is exceeded, falls within that provision in so far as that scheme pursues the objectives of promoting the optimal use of the rail network and of encouraging railway undertakings to minimise disruption and to improve the performance of that network. In such a case, Article 35 of Directive 2012/34, as amended, does not preclude national legislation which authorises the application of such a specific scheme, alongside the general scheme of penalties entailed by a performance scheme within the meaning of that article, which that latter legislation has established, to the extent that that specific scheme complies with the requirements laid down in Article 35 and observes the basic principles set out in point 2 of Annex VI to Directive 2012/34, as amended.

2.      Article 35 of Directive 2012/34, as amended by Directive 2016/2370

must be interpreted as allowing Member States to lay down, in the context of the performance scheme, both a general scheme of penalties applicable in the event of delay on the entire national network and a specific scheme of border penalties applicable in the event that the stop time in stations connecting with foreign rail networks is exceeded, with the result that, for the same incident, a railway undertaking may be subject to several penalties.Where that performance scheme comprises several penalty schemes, the regulatory body is required to verify, first, that the measures forming part of that scheme pursue, in a consistent and transparent manner, the objective of improving the network’s performance and, second, that those measures observe the principle of proportionality and do not undermine the economic viability and profitability of the railway undertakings concerned.

3.      Article 35 of Directive 2012/34, as amended by Directive 2016/2370

must be interpreted as not requiring the regulatory body to verify, first, that the performance scheme provided for in that article necessarily includes, in addition to the imposition of penalties, the grant of bonuses to railway undertakings whose performance is better than planned and the grant of compensation for undertakings which have suffered loss or damage, and, second, that the penalties in the event of delay also apply to the infrastructure manager where the latter is responsible for the delay. By contrast, Article 35 does require that body to verify that, taken as a whole, that scheme constitutes a coherent, transparent and proportionate set of measures capable of achieving the objectives referred to in Article 35.

4.      Article 97 TFEU

must be interpreted as not applying to national legislation which authorises, in the context of the performance scheme referred to in Article 35 of Directive 2012/34, as amended by Directive 2016/2370, a specific scheme of border penalties applicable to railway undertakings in the event that the stop time in stations connecting with foreign rail networks is exceeded, without taking into consideration the revenues which those undertakings have or may obtain to cover transit costs.

[Signatures]

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*      Language of the case: Italian.