The procedure concerns a public service contract concluded between Deutsche Bahn and the federal states of Berlin and Brandenburg for the period 2002-2012. Several factors drawn to the attention of the Commission suggest that Deutsche Bahn may be receiving overcompensation for the services rendered.

After receiving a complaint from one of Deutsche Bahn AG's competitors, the Commission examined the public service contract concluded between Deutsche Bahn AG and the federal states of Berlin and Brandenburg in the light of Community rules on the monitoring of State aid. Following this preliminary examination, the Commission believes the contract may entail a risk of overcompensation.

Several factors seem to suggest that this risk exists:

  • The contract provides for compensation calculated on the basis of a single rate per kilometre. The rate applies in respect of the number of kilometres covered with no reference to ticket sales revenue.
  • Some lines, which on a purely commercial basis would seem to be those sustaining the greatest losses, will be taken out of the contract by 2012 (and opened up to competition by tendering), but the compensation rate per kilometre will not be reviewed when this happens. The contract does not contain a clause for the single rate to be reviewed when these lines have been taken out.
  • The contract also allows Deutsche Bahn AG to raise ticket prices, again without this action triggering a review of the compensation rate.
  • Lastly, the federal states concerned conducted their negotiations on the compensation rate without being able to compare Deutsche Bahn's proposal with the fares it charges in other federal states, those fares being covered by confidentiality clauses. Some evidence also suggests that, during its negotiations with the federal states, Deutsche Bahn included matters not related to the contract such as the upkeep or construction of maintenance facilities and the renovation of railway stations or the construction of new stations. These factors combine to suggest that overcompensation may have been paid. [23 October 07]