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Clarification in comprehensive case on fees for use of railway infrastructure

Kristin Veierød and Kristian Brandt assisted Bane NOR SF in a legal dispute against the Norwegian Railway Authority. They acted as legal counsel during the case presented before the Bogarting Court of Appeals.

During the period from 2017 – 2019, Bane NOR SF received payment from Flytoget for the use of the Gardermoen railway line. The Norwegian Railway Authority required Bane NOR SF to repay part of the road toll Flytoget paid for the use of the railway tracks on the Gardermoen line in the period 2017-2019. The Norwegian Railway Authority was of the opinion that Bane NOR had set and collected fees for the use of the tracks in contravention of the Railway Regulations, the previous distribution regulations and the underlying EU directives. The authority’s decision meant that Bane NOR had to repay substantial amounts.

Bane NOR filed a lawsuit against the Norwegian Railway Authority, claiming that the decision was invalid. The case was presented before the district court and the Railway Authoritys decision was upheld. An appeal was made, and the case was brought to the Bogarting Court of Appeals. On January 27, 2022 a verdict was reached which overturned the decision of the district courts. It was concluded that repayment to Flytoget was invalid and overturned the decision for all years in question.

A request by the Railway Authority to appeal the verdict before the Norwegian Supreme Court was denied, and therefore the judgement made by the Borgarting Court of Appeal’s judgment is enforceable.

The is a significant case because it raised important issues related to administrative, tax, EU/EEA law and contract law issues of significance for the collection of fees for the use of railway infrastructure.