ECJ ruling: ÖBB not liable after damage event


LGP has represented the companies of the ÖBB Group for almost 20 years. In a pending case, the European Court of Justice (ECJ) was most recently called upon to provide a reference for a preliminary ruling. The landmark ECJ ruling in international rail transport was published in July 2022.

In the case, which had been pending before the Austrian courts since 2018, ÖBB-Infrastruktur AG, as the responsible infrastructure manager, was sued by a railway undertaking that used locomotives on ÖBB’s tracks. The reason for this was a derailment in a Tyrolean railway station in 2015, in which locomotives owned by the railway undertaking had been damaged. The company had to rent replacement locomotives for the duration of the repair and claimed the replacement rental costs it incurred from ÖBB. The company argued that the rail infrastructure was defective and claimed that this had led to the derailment. In addition to the question of the actual cause of the damage, it was also necessary to clarify whether all of the claims asserted by the plaintiff were compensable.

ÖBB argued that the convention applicable to international rail traffic (Appendix E to COTIF Uniform Rules concerning the Contract of Use of Infrastructure in International Rail Traffic “CUI”) applied in this instance. The journey in question was an international journey, as the train coming from Italy ran through Austria on its way to Germany. ÖBB argued that the replacement rental costs were purely pecuniary losses and that these could not be compensated under the CUI. The Commercial Court of Vienna followed ÖBB’s arguments, but the Higher Regional Court upheld the appeal of the plaintiff, the railway undertaking, and permitted an appeal to the Supreme Court. In this appeal, ÖBB requested a referral to the European Court of Justice due to the international relevance of the legal question at issue and submitted the legal questions to the ECJ for this purpose.

In its ruling issued in the summer of 2022, the ECJ clarified that the costs incurred for the replacement rental of locomotives due to an incident are not covered by the liability of ÖBB as the responsible infrastructure manager. This means that the railway undertaking that used the locomotives and had to hire other locomotives as a substitute for the duration of their repair is left to cover these hire costs itself.

In addition to the question of whether the ECJ had jurisdiction to interpret the CUI at all, the judges in Luxembourg were asked in particular whether ÖBB’s argument was to be followed and whether costs incurred for the substitute hiring of locomotives in such cases of damage were to be levied against the infrastructure manager. In addition, the Supreme Court requested information as to whether the contracting parties concerned could effectively extend their liability by means of corresponding contracts, even if there was an exclusion of liability under the CUI. The ECJ answered the first question in the affirmative, declared itself competent and answered the second question in the negative. Accordingly, the railway undertaking cannot charge the infrastructure manager for the costs incurred for the substitute hire during the period when the damaged locomotives were being repaired. The ECJ also concluded that the contracting parties were free to deviate from this by means of a corresponding contractual agreement and to extend the standard of liability accordingly.

The case will now go back to the Supreme Court, which must implement the ECJ ruling or refer the matter to the Vienna Commercial Court for a new decision. It must now be clarified whether the parties in the case at hand wanted to extend the standard of liability or whether the exclusion of liability will remain. We will report further on this matter in due course.

ÖBB receives legal advice from three LGP lawyers: Dr Julia Andras (Partner), Valentin Neuser (Partner) and Alexander Egger.