1. 

Directive 2009/12/EC ( 2 ) requires airport managing bodies to charge ‘users’ (that is to say, those engaged in the carriage of passengers, mail or freight by air) ( 3 ) fees for use of the facilities and services which the former provide to the latter.

2. 

The questions raised by the referring court are concerned, in short, with the approval of those airport charges, either by the independent supervisory authority (‘supervisory authority’) or by the managing body of each airport. The referring court also wishes to ascertain how and before which entity the user can challenge those charges.

3.

Article 2 (‘Definitions’) provides:

‘For the purposes of this Directive:

…’

4.

Article 3 (‘Non-discrimination’) states:

‘Member States shall ensure that airport charges do not discriminate among airport users, in accordance with Community law. This does not prevent the modulation of airport charges for issues of public and general interest, including environmental issues. The criteria used for such a modulation shall be relevant, objective and transparent.’

5.

Article 5 (‘Common charging systems’) provides:

‘After having informed the Commission and in accordance with Community law, Member States may allow an airport managing body to apply a common and transparent charging system at airports serving the same city or conurbation, provided that each airport fully complies with the requirements on transparency set out in Article 7.’

6.

Article 6 (‘Consultation and remedy’) prescribes:

‘1.   Member States shall ensure that a compulsory procedure for regular consultation between the airport managing body and airport users or the representatives or associations of airport users is established with respect to the operation of the system of airport charges, the level of airport charges and, as appropriate, the quality of service provided. Such consultation shall take place at least once a year, unless agreed otherwise in the latest consultation. Member States shall retain the right to request more frequent consultations.

2.   Member States shall ensure that, wherever possible, changes to the system or the level of airport charges are made in agreement between the airport managing body and the airport users. To that end, the airport managing body shall submit any proposal to modify the system or the level of airport charges to the airport users, together with the reasons for the proposed changes, no later than four months before they enter into force, unless there are exceptional circumstances which need to be justified to airport users. The airport managing body shall hold consultations on the proposed changes with the airport users and take their views into account before a decision is taken. The airport managing body shall normally publish its decision or recommendation no later than two months before its entry into force. The airport managing body shall justify its decision with regard to the views of the airport users in the event that no agreement on the proposed changes is reached between the airport managing bodies and the airport users.

3.   Member States shall ensure that in the event of a disagreement over a decision on airport charges taken by the airport managing body, either party may seek the intervention of the independent supervisory authority referred to in Article 11 which shall examine the justifications for the modification of the system or the level of airport charges.

4.   A modification of the system or the level of airport charges decided upon by the airport managing body shall, if brought before the independent supervisory authority, not take effect until that authority has examined the matter. The independent supervisory authority shall, within four weeks of the matter being brought before it, take an interim decision on the entry into force of the modification of airport charges, unless the final decision can be taken within the same deadline.

5.   A Member State may decide not to apply paragraphs 3 and 4 in relation to changes to the level or the structure of the airport charges at those airports for which:

7.

In accordance with Article 7 (‘Transparency’):

‘1.   Member States shall ensure that the airport managing body provides each airport user, or the representatives or associations of airport users, every time consultations referred to in Article 6(1) are to be held with information on the components serving as a basis for determining the system or the level of all charges levied at each airport by the airport managing body. That information shall include at least:

…’

8.

Article 11 (‘Independent supervisory authority’) provides:

‘1.   Member States shall nominate or establish an independent authority as their national independent supervisory authority in order to ensure the correct application of the measures taken to comply with this Directive and to assume, at least, the tasks assigned under Article 6. Such an authority may be the same as the entity entrusted by a Member State with the application of the additional regulatory measures referred to in Article 1(5), including with the approval of the charging system and/or the level of airport charges, provided that it meets the requirements of paragraph 3 of this Article.

…

7.   When undertaking an investigation into the justification for the modification of the system or the level of airport charges as set out in Article 6, the independent supervisory authority shall have access to necessary information from the parties concerned and shall be required to consult the parties concerned in order to reach its decision. Without prejudice to Article 6(4), it shall issue a final decision as soon as possible, and in any case within four months of the matter being brought before it. This period may be extended by two months in exceptional and duly justified cases. The decisions of the independent supervisory authority shall have binding effect, without prejudice to parliamentary or judicial review, as applicable in the Member States.

…’

9.

In accordance with Paragraph 42(2), unless the law provides otherwise, an action under administrative law is permissible only if the applicant claims that his rights have been infringed by an administrative act or by the refusal or failure to adopt one.

10.

Article 19b(1) governs the system of airport charges. The airport managing body is to submit this for approval to the licensing authority, which is to approve the system if certain requirements are met. ( 4 )

11.

Paragraph 19b(3) sets out the procedure for authorising the system of charges as comprising the following stages:

12.

Paragraph 315 of the BGB, concerning contracts, provides:

13.

The order for reference was received at the Court of Justice on 8 June 2018.

14.

Written observations have been lodged by Deutsche Lufthansa, Berliner Flughafen Gesellschaft, Land Berlin, the German and Polish Governments and the European Commission. With the exception of the Polish Government, all of the aforementioned parties attended the hearing held on 11 April 2019.

15.

On 25 June 2014, the company managing Berlin-Tegel airport (Berliner Flughafen Gesellschaft mbH) submitted to Land Berlin, of which the supervisory authority formed part), a draft schedule of airport charges for authorisation.

16.

On 13 October 2014, the supervisory authority granted the authorisation requested, in accordance with Paragraph 19b of the Law on air traffic.

17.

Deutsche Lufthansa sought to have that authorisation annulled in an action brought before the Oberverwaltungsgericht Berlin-Brandenburg (Higher Administrative Court, Berlin-Brandenburg, Germany).

18.

By judgment of 22 June, that court dismissed the action on the ground that Deutsche Lufthansa lacked standing to bring proceedings (under Paragraph 42(2) of the VwGO), since the authorisation was not capable of infringing its rights.

19.

Deutsche Lufthansa brought an appeal on a point of law (Revision) before the Bundesverwaltungsgericht (Federal Administrative Court, Germany), which has referred the following two questions to the Court of Justice for a preliminary ruling.

20.

The referring court states that, on the basis of its own case-law, ( 5 ) the authorisation would not be legally binding for the purposes of the setting of charges. Paragraph 19b of the LuftVG creates a public-law relationship only between the supervisory authority and the airport managing body in its capacity as recipient of the authorisation. As the link between the managing body and the airport users is governed by private law, the remuneration agreed between the parties is valid even in the absence of the authorisation.

21.

It explains that, according to civil case-law, it falls to the civil courts, which exercise powers of review as to equity under Paragraph 315 of the BGB, to review the amount of the charges at issue.

22.

Nonetheless, it could be argued that the administrative courts have jurisdiction to hear and determine (and, hence, that the applicant has standing to bring) a direct action against the aforementioned authorisation in the following cases:

23.

The referring court goes on to say that, in the light of the judgment in CTL Logistics, ( 6 ) it is open to question whether Paragraph 315 of the BGB is a suitable vehicle for satisfying the requirements of the Directive. If airport users were found not to have a right of action under civil law to protect their rights, they would have no alternative means of defending their interests, which would be contrary to the principle of effective judicial protection laid down in the German Basic Law.

24.

It points by way of a solution to an interpretation of Paragraph 19b of the LuftVG, consistent with the (German) Constitution, that would have the effect of recognising users as having standing to bring proceedings under Paragraph 42(2) of the VwGO.

25.

The information contained in the documents before the Court indicates that, in Germany, it is the supervisory authority which authorises airport charges. The user is able to challenge the authorisation only indirectly, by way of an action under civil law, meaning that any finding upholding such an action would be of benefit exclusively to the user itself. The airport managing body, on the other hand, is able to challenge the authorisation directly, by way of an action under administrative law.

26.

In that context, the referring court’s doubts revolve around whether the administrative courts might have jurisdiction to hear and determine a challenge which a user (an airline) brings directly against a system of charges approved by the supervisory authority. This would be the case if the parties were unable to negotiate prices different from those established by that authority and if the judicial defence of users’ rights conferred on the civil courts were considered incompatible with the Directive.

27.

The Court of Justice cannot embark upon an interpretation of provisions of domestic law, nor determine which national courts have jurisdiction to determine which matters or what rules govern the standing of applicants in the corresponding civil or administrative proceedings. It can, however, provide guidelines on the interpretation of EU law that will enable the referring court to draw the necessary inferences.

28.

Before I turn to analysing the two questions referred for a preliminary ruling, I think it appropriate to consider whether the Directive grants airport users a legitimate interest in objecting to the way in which charges have been set.

29.

During the gestation of the directive on airport charges, the Commission framed its proposal within ‘a wider initiative that places the focus on airports and that [sought] to promote efficient airport operations and the optimal use of scarce capacity’. ( 7 ) In particular, it pointed to the importance of charges for the efficiency of the airline business. ( 8 )

30.

The competitiveness of EU air carriers therefore stands at the centre of the design of the airport charging system. ( 9 )

31.

The options available to the Commission were, inter alia, as follows:

32.

It was the third option, as set out in recital 2 of the Directive, ( 11 ) that prevailed. So it is that, when it comes to charges, the relationship between airport managing bodies and users must comply with a number of basic principles that are defined in the text of that directive.

33.

Those principles are, more specifically, non-discrimination, transparency and participation by those concerned in the procedure.

34.

As regards non-discrimination, Article 3 of the Directive provides that charges must not be such as to ‘discriminate among airport users’. This is a rule the purpose of which is to guarantee fair competition between the air carriers using the airport, thus making it impossible for some carriers to be favoured over others in such a way as to enable them to overtake their competitors by offering services that are more attractive to the market. ( 12 )

35.

As regards the participation of users in the charge-setting procedure, Article 6 of the Directive requires that consultations between users and managing bodies be held periodically — at least once a year — (paragraph 1) and in the event of any change to the system or the level of airport charges (paragraph 2). ( 13 )

36.

The final decision adopted may take two forms, as provided for in Article 6 of the Directive, depending on whether:

37.

Finally, the Directive calls for transparency in Article 7. Although that provision refers only to the consultations under Article 6(1), the principle of transparency also applies to the procedure for changing the system or the level of charges set out in paragraph 2. This is why the airport managing body is required to submit the proposed change to the users, ‘together with the reasons for the proposed changes’.

38.

At the same time as it calls for charges to be subject to the principles which I have just listed, the Directive refers in Article 6 to the remedies available to airport users for challenging decisions of the managing body which, in their opinion, do not comply with those principles.

39.

Those remedies are correlative to the rights granted to users. If the Directive states that they must be guaranteed informed participation in the decision-making procedure (to the extent that, if the managing body takes issue with their claims, it must issue a reasoned decision), it is at the same time conferring on them a right that must be respected. The EU legislature’s wish was that the position of users should operate as an indispensable element in the adoption of the final decision.

40.

The same is true of the principles of transparency and non-discrimination: any breach of those principles may be relied on by users and, if appropriate, lead to the annulment of the decision approving the charges. If the latter is, for example, contrary to (the requirement of) equality as between air carriers, there is little doubt that the carrier adversely affected by that discrimination will have a remedy against it.

41.

That potential remedy may also tackle other components of the system of charges introduced. The economic relationship between the airport managing body and the users is to be based on a balance between the charges and the costs which they are intended to finance. ( 15 ) The user must therefore have access to a mechanism for challenging charges, the level of which exceeds that balance, that is to say, which represents a burden that is clearly disproportionate to the costs of the service or the use of the facilities.

42.

Article 6 of the Directive provides that appeals against decisions of the managing body, where this is competent to approve charges, are to be brought before the supervisory authority. That provision does not say, however, that the decision adopted by that authority in adjudication of such appeals may itself be challenged before the courts.

43.

We have to look to Article 11(7), in fine, of the Directive to find a reference to the judicial review of acts issued by the supervisory authority. In accordance with that provision, the decisions of that authority ‘shall have binding effect, without prejudice to parliamentary or judicial review, as applicable in the Member States’.

44.

The wording of the final sentence of Article 11(7) of the Directive poses at least two problems:

45.

To my mind, those problems can be resolved, at a higher level, by reference to the provisions of EU primary law. As a general rule, the second subparagraph of Article 19(1) of the TEU requires Member States to provide ‘remedies sufficient to ensure effective legal protection in the fields covered by Union law’. To much the same effect, Article 47 of the Charter of Fundamental Rights of the European Union states that ‘everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy’.

46.

Inasmuch as the Directive confers on airport users both a legitimate interest and genuine subjective rights, the application of those two provisions of higher-ranking law compels Member States to introduce procedures to ensure the effective judicial protection of such users in this specific field.

47.

The point of uncertainty raised by the referring court is whether the mechanism just so provided for in German law is sufficient to provide effective judicial protection for the rights and interests which the Directive confers on airport users.

48.

As I have already explained, under the German system, the airport managing body issues a proposal and the supervisory authority approves the airport charges.

49.

The German legislature thus opted for the alternative provided for in Article 6(5)(a) of the Directive. In keeping with that option, it is bound to recognise the decisions of the supervisory authority as having binding effect, since this is the consequence that justifies and gives useful effect to the scheme of the Directive.

50.

It would make little sense for Article 5 of the Directive to call for a ‘common and transparent charging system’ at airports serving ‘the same city or conurbation’ if it were permissible for individual agreements to fall outside the application of that provision in relation to one or more users.

51.

Such individual agreements would not only detract from the common nature of the charging system but would also, from the point of view of transparency, introduce a number of insurmountable distortions.

52.

After all, users are to have access to information on ‘the components serving as a basis for determining the system or the level of all charges levied at each airport by the airport managing body’ (Article 7(1)). ( 18 ) Such components include, for example, details of costs and charges. There would be no point in providing information on, for example, the revenue from the various charges and the cost of the services covered by them (Article 7(1)(d)) if that parameter were dispensed with after the charging system had been approved.

53.

Even when providing for services to be ‘differentiated’, as it does in Article 10, the Directive sets out general grounds for so doing, but does not permit customisation in relation to certain users. Under that provision, the managing body may offer personalised services, in which case the level of charges may vary ‘according to the quality and scope of such services and their costs or any other objective and transparent justification’. Those ‘differentiated airport charges’, however, form part of the same general system that is approved (in Germany) by the supervisory authority, which predetermines the content of that system, the components of which are not subject to individualised negotiation.

54.

At the hearing, there was some discussion about whether the airport managing body and users can agree charges where the supervisory authority approves the maximum level of such charges (Article 6(5)(a), in fine, of the Directive). The question would be whether, in such circumstances, the charges could be negotiated individually or would have to be negotiated with all of the airport users. ( 19 )

55.

The arguments set out above militate in favour of an answer in the affirmative, provided that: (i) the maximum laid down is observed; (ii) the negotiation is in any event collective; (iii) any air carrier is able to benefit from the same charge as has been granted to one or more other carriers at a level below the approved maximum; and (iv) the airport managing body’s agreement with users is subject to subsequent review by the supervisory authority. Only in this way are the principles that inform the Directive, in particular non-discrimination, safeguarded. ( 20 )

56.

The key features of the German system, as they are set out in the order for reference, can be summarised as follows: ( 21 )

57.

Since the national mechanisms for protecting the rights of airport users are not harmonised, each Member State is competent to establish those mechanisms in accordance with the principle of procedural autonomy and the further principles of equivalence and effectiveness.

58.

Prima facie, the system of judicial protection designed by the German legislature could be regarded as legitimate if Paragraph 315 of the BGB provided a procedural framework for defending users’ rights that were appropriate from the point of view of both process (information, consultation and participation) and substance (non-discrimination and consistency between charges and costs).

59.

To my mind, however, it is not.

60.

The foregoing summary description supports the inference that the system designed by German law for challenging airport charges is the same as that which was examined in the judgment in CTL Logistics, which was concerned with similar issues in the context at that time of German railway infrastructure charges. The parallels between the two systems require us to take that precedent as a point of reference, given that the issue in that case too was the application of Paragraph 315 of the BGB to resolve the disputes in question.

61.

By way of objection to the notion of extrapolating the case-law established in the judgment in CTL Logistics to this dispute, it has been argued that the rules governing railway infrastructure usage and the system of railway infrastructure usage charges are not comparable to the rules and system applicable to airport charges.

62.

It is true that there are regulatory differences between the railway and aviation sectors. Whereas, in the case of the former, Directive 2012/34/EU ( 23 ) covers both the allocation of railway infrastructure capacity (and service facilities) to railway undertakings and the setting of charges, in the aviation sector, the legislation appears to be more disparate. An examination of the foundations of the two bodies of legislation, however, shows that the similarities are greater than the differences when it comes to charges.

63.

In both cases, (railway or airport) facilities have limited capacity and that capacity has to be made available to users in a non-discriminatory manner. Both sectors retain the distinction between the infrastructure and services which the administrator (railway infrastructure manager or airport managing body) must make available to the user (railway undertaking or air carrier), on the one hand, and the services that may be provided by a third party (railway service facility operator or groundhandling agent), on the other.

64.

The systems of railway and airport charges share an undeniable parallel in relation to the principle of non-discrimination. ( 24 ) A corollary of the requirement of equality as between user undertakings is the need for decisions on charges to affect all those concerned in the same way. The guarantee of a unity of approach to the setting of charges means that there must be a supervisory authority that has the last word.

65.

The same parallel is present in the function of that supervisory authority. In the railway sector, its powers are similar to those which have already been described in relation to airport charges. In particular, Articles 55 to 58 of Directive 2012/34 deal with the regulatory body before which undertakings providing services may challenge (Article 56) the system of charges or the level or structure of those charges.

66.

I take the view, therefore, that a comparison of the legislative rules governing charges in the railway area and the airport sector respectively reveal an index of coincidence such as to all allow the judgment in CTL Logistics to be applied to airport charges.

67.

Starting from that premiss, I shall highlight how the answer given by the Court of Justice in the judgment in CTL Logistics can be transposed to this case. The reasoning on which that judgment is based is articulated through seven successive arguments (paragraphs 69 to 102), of which I shall focus in particular on four.

68.

First, the Court of Justice held that ‘the assessment of fairness in each particular case runs counter to the principle of non-discrimination enshrined in Article 4(5) and recital 11 of Directive 2001/14’. In order to substantiate that assertion, it went on to say that, ‘by insisting exclusively on the economic rationality of the individual contract, the application of Paragraph 315 of the BGB disregards the fact that only if the charges are set on the basis of uniform criteria can it be ensured that the charging policy is applied in the same way to all the railway undertakings’. ( 25 )

69.

Now, that same logic leads to the conclusion that, in the case of airport charges, the dispute resolution mechanism applied by the civil courts, which is based on equitable criteria and judgments effective only inter partes, is not consistent with the common system and the principle of non-discrimination set out in Article 3 of the Directive.

70.

Secondly, ‘various decisions of independent civil courts, possibly not harmonised by the case-law of the higher courts, would take the place of the unity of the review carried out by the competent body, subject, if appropriate, to a later review carried out by the courts hearing the actions brought against that body’s decisions, which are the administrative courts, … The result is a juxtaposition of two non-coordinated routes to decisions, which is in clear contradiction of the objective pursued in Article 30 of Directive 2001/14’. ( 26 )

71.

The position is similar in the airport sector. The unity of approach exhibited by the supervisory authority, whether in approving the system of charges directly itself or overseeing by way of appeal the system approved by the airport managing body, is compromised by a system which does not allow the acts of that authority to be challenged directly by users and provides instead for individual civil actions having inter partes effects. ( 27 )

72.

Thirdly, under the two-route system for challenging railway charges, the supervisory authority was not compelled to bring the system of charges into line with the decision of the civil court, in accordance with Paragraph 315 of the BGB, since ‘no obligation of that sort flows from the provisions of Directive 2001/14 concerning the regulatory body’. ( 28 )

73.

The same is true of airport charges. The supposition that the regulatory authority ‘should merely react to individual decisions already given by the civil courts on the basis of Paragraph 315 of the BGB’ ( 29 ) is, in this sector too, contrary to the task conferred on the supervisory authority.

74.

Fourthly, the Court of Justice emphasised that, in the railway sector, applying the mechanism based on jurisdiction under two branches of law ‘[would not uphold] the fact that the decisions taken by the regulatory body are binding on all parties concerned, as follows from the second subparagraph of Article 30(5) of Directive 2001/14. … It would run counter to that principle for judgments delivered by the civil courts, if necessary on the basis of criteria set by the legislation concerning the calculation of charges, to have effects only on the parties to the disputes brought before those courts’. ( 30 )

75.

That argument is, once again, applicable to disputes which users may raise with respect to airport charges, in the absence of erga omnes effects on the part of the civil-law judgments that dispose of them.

76.

It falls within the remit of the civil court, according to Paragraph 315 of the BGB, to make a modulation ex aequo et bono to the synallagmatic aspects the contractual relationship. On that basis, it could even assess the proportionality as between the costs of the service provided and the price (charge).

77.

It is, however, logical to assume that the jurisdiction of a civil court would not extend to other crucial aspects of the process that culminated in the approval of the charge, such as matters relating to the formation of the will of the decision-making body or any formal defects that may have been relevant to the shaping of the content of the administrative decision. ( 31 )

78.

Accordingly, users — whom the German civil courts deny standing to challenge before them decisions adopted by the supervisory authority — would not be able to apply to any court to obtain a review of those elements, which are of a markedly administrative nature and play a decisive role in the approval of charges.

79.

Neither is there any indication that the effects of a civil-law judgment given in an individual dispute can be extended to other users. It would seem that the only avenue available to other users would be to bring new actions before the civil courts. The effectiveness of the Directive would thus be dependent upon individual users’ decisions to bring successive claims, which would themselves be subject to uncontrollable contingencies. This does not guarantee the preservation of a common system of charges based on non-discrimination, transparency and the participation of users.

80.

It follows from the foregoing that users must have available to them a judicial remedy that enables them to challenge a decision of the supervisory authority without restrictions.

81.

At the hearing, some of the parties raised the objection that allowing users to challenge the decisions of the supervisory authority before the administrative courts might paralyse the collection of airport charges, given the procedural rules on the suspension of acts under appeal.

82.

That objection is untenable. First, it would fall to the national legislature to introduce, in this as in other sectors, the procedural rules necessary to avoid a widespread paralysis in the levying of charges. Secondly, as one of the parties recognised at the hearing, the supervisory authority is empowered under the national legislation in force to require the payment of such charges in any event, notwithstanding any challenge to its decisions before the courts, if this is necessary on public-interest grounds.

83.

In the light of the foregoing lines of reasoning, I propose that the Court of Justice respond to the Bundesverwaltungsgericht (Federal Administrative Court, Germany) as follows: