Legal Grounds for Liability and Potential Claims for Damages against Railway Infrastructure Undertakings

We would like to draw attention to a legal basis for liability and potential claims for damages against railway infrastructure undertakings (RIUs), which have only in recent years significantly materialized in case law and practice, thus gaining importance, particularly for railway undertakings (RUs) and other authorized users.

• RUs and RIUs are connected via so-called track access agreements. From a legal perspective, a (train) path refers to the share of an RIU's track capacity required for an RU's train to operate between two locations at a specific time. As early as 2021, the Federal Court of Justice ruled that the track access agreement is to be treated as a rental agreement. The provision of the rented item, the track, to the RU as tenant is an essential contractual obligation of the RIU as the lessor of the track. The limitations of liability contained in the terms of use of the dominant RIU in Germany, DB InfraGO AG (formerly DB Netz AG), were deemed ineffective. The track must be usable at the agreed times. Otherwise, there is a defect in the rented item, and thus a claim by the RU for compensation for damages incurred due to the track's non-contractual availability.
• In daily practice, short-term track outages and delayed provisions are common. The affected RUs bear the consequences and also face claims from their customers. Due to the dilapidated condition of the railway infrastructure and the legally mandated and widely discussed corridor and general renovations, further significant restrictions are to be expected in the near future.
• RUs and other path applicants are advised not to simply accept restrictions on ordered and allocated paths but to examine and enforce claims for damages against DB InfraGO AG in each individual case. This applies equally to spot traffic and regular services.

The contacts in our Rail Competence Team are available for any questions and will be happy to assist you in assessing possible claims for damages.