DB InfraGO chief warns against special access deal for Italo
GERMANY: DB InfraGO has warned that a special access deal for Italo would not survive a legal challenge. The assessment puts Bundesnetzagentur’s preferred solution directly in conflict with the infrastructure manager set to implement it.
Philipp Nagl, chief executive of DB InfraGO, told Redaktionsnetzwerk Deutschland on 31 May that a short-term “new services clause” being discussed as a priority mechanism for new market entrants carries extreme legal risk. No comparable instrument exists elsewhere in Europe, he said.
Nagl’s warning lands as Bundesnetzagentur prepares a ruling expected in mid-June — and as Federal Transport Minister Patrick Schnieder has publicly welcomed Italo’s market entry. The gap between minister and infrastructure chief is now the defining tension in Germany’s first open-access dispute to test the post-2017 access rules.
A regulator caught between two positions
The clause under discussion — a Neuverkehrsklausel — would adjust how capacity is allocated to ensure new entrants are not systematically disadvantaged against established operators. Germany discontinued its long-term framework access contracts in 2017. No replacement mechanism has been established since.
Nagl’s argument is precise: track slots granted under a legally untested instrument risk being struck down by courts within eighteen months. The infrastructure manager would then have allocated capacity under rules a court has declared incompatible with EU law.
That outcome would expose every operator that received slots under the clause — including Italo — to legal uncertainty over their right to run services.
FlixTrain has standing to challenge
FlixTrain has objected to Italo’s long-term track access terms. If Bundesnetzagentur adopts a Neuverkehrsklausel that effectively prioritises Italo, FlixTrain has both the standing and the commercial incentive to take the decision to court.
A successful challenge would not just delay Italo. It would remove the legal basis for the access arrangement entirely — leaving Bundesnetzagentur without a workable instrument and the market without a resolution.
Netinera, the third operator with declared ambitions for German long-distance entry, faces the same dependency on the regulatory outcome.
Minister and infrastructure chief are not aligned
Schnieder has positioned the government as welcoming competition on Germany’s long-distance network.
Nagl is not arguing against competition. He said explicitly that the colour of the trains makes no difference to DB InfraGO as infrastructure manager.
His argument is narrower: the legal instrument being proposed does not exist in any comparable European market, and the EU’s capacity regulation — which will eventually provide a binding framework — does not deliver that framework until 2031.
What Bundesnetzagentur must now decide
The regulator has already expanded its procedure beyond Italo’s original complaint into a broader review of whether DB InfraGO’s access rules are lawful as written. A ruling is expected in mid-June.
That ruling will determine whether DB InfraGO’s current access rules can accommodate new entrants before 2031 — or whether the market remains structurally closed to competition regardless of political intent.
Italo has tied a EUR 1.2 billion Siemens Velaro order to regulatory clarity before June. FlixTrain and Netinera are waiting on the same decision.