GERMANY: The rule meant to make room for Italo on German lines cut back by construction work has been ruled unlawful. The Administrative Court of Cologne found on 8 October that the regulator could not make DB InfraGO cap DB Fernverkehr’s share of capacity there. The interim ruling cannot be appealed.
The cap would have held DB Fernverkehr to 60–75% of the long-distance capacity left on sections restricted by construction work or diversions, wherever rivals want to run regular-interval services. The court’s 18th chamber found no basis for it in EU law or in German rail regulation.
It also judged the clause unfit for its purpose. Because it would apply only for limited periods, on limited sections and in limited cases, it could not give a new operator the planning certainty an investment needs, the court said. The order to treat DB’s station lounges as service facilities, open to other operators, fell as well.
Italo’s road into Germany
The Federal Network Agency (BNetzA) issued the rule on 17 July after a complaint from Italo, which plans to invest about EUR 3.6bn in German long-distance services from April 2028. The regulator had presented a draft at the end of June, and DB InfraGO took it to court in August.
The ruling does not shut Italo out, but it removes the protection its complaint produced. The clause was meant to apply to the 2028 timetable, planned in 2027 – the first one Italo intends to run in. The court stressed that it had not decided on competition in long-distance traffic in general or on any operator’s access to the network.
What happens now
The clause stays off the table until the main proceedings are decided. BNetzA told news agency dpa that it still considers the rule objectively justified. Italo said it would wait for the written reasoning and is sticking to its plans for Germany, while DB InfraGO welcomed the early legal certainty.
Under the July decision, DB InfraGO was due to submit its draft of the clause to the regulator this autumn.