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05 February 2020
On 13 October 2014 the independent supervisory authority Land Berlin allowed Berliner Flughafen GmbH (BFG) to restructure airport charges for Berlin-Tegel Airport. A user of the airport, Deutsche Lufthansa AG, rejected the approved charges and brought an annulment action claiming that the supervisory authority should not have approved the new fee structure. Lufthansa also argued that the charges were too high and did not meet the Air Traffic Act's requirements, which govern the procedure for drawing up fee schedules.
The Berlin-Brandenburg Higher Administrative Court declared the action inadmissible, as Deutsche Lufthansa AG was not authorised to sue under Paragraph 42(2) of the Code of Administrative Court Procedure. The court based its decision on the fact that the fee authorisation had a public law effect and was limited to the relationship between Land Berlin as the independent supervisory authority and the recipient of that authorisation – namely, BFG as the airport managing body. Deutsche Lufthansa AG appealed the decision before the Federal Administrative Court.
During the lawsuit, the Federal Administrative Court referred the following questions to the European Court of Justice (ECJ):
whether Directive 2009/12, concretely Article 3, Article 6 para. 5 lit. a) and Article 11 para. 1 and 7 thereof, must be interpreted as precluding a national provision that allows an airport managing body to determine, together with an airport user, airport charges different from those set by that body and approved by the independent supervisory authority, within the meaning of that directive... [and]
whether Directive 2009/12 must be interpreted as precluding an interpretation of national law whereby an airport user is prevented from challenging directly the decision of the independent supervisory authority approving the charging system, but can bring an action against the airport managing body before a civil court and can plead in that action only that the charges determined in the charging system that that user must pay are inequitable.(1)
With reference to the first question, the ECJ clarified that independent supervisory authority decisions have a binding effect on all airlines. Any agreement between an airport managing body and an airport user which defines airport charges differently from those approved by the independent supervisory authority is incompatible with the EU Airport Charges Directive (2009/12/EC). The EU Airport Charges Directive aims to establish a common framework to regulate the essential features of airport charges and meet basic requirements in the relationship between airport managing bodies and airport users. Further, the permission to set individual airport charges would go against the principles of consultation, transparency and non-discrimination stated explicitly in the EU Airport Charges Directive.
With reference to the second question, the ECJ contested the possibility of legal action. Under the EU Airport Charges Directive, airlines can directly challenge the approval of a fee scale introduced by a supervisory authority. The so-called 'equity control' provided for in German civil law prohibits German civil courts from ensuring effective legal protection for airport users, as a civil judicial review is based solely on subjective elements and has a binding effect inter partes (ie, between the disputing parties). Therefore, airport users must be able to obtain a judicial review that is based on objective elements. This can be achieved by granting airport users the possibility to take administrative legal action. Whether the civil or administrative courts have jurisdiction in Germany is not clarified in the ECJ's decision. However, on the basis of existing German law, the Federal Administrative Court will likely confirm Lufthansa's right to take legal action and undertake a substantive examination of the fee structure's approval, or at least refer this task back to the Berlin-Brandenburg Higher Administrative Court.
Deutsche Lufthansa AG achieved its goal of defending itself effectively against higher airport charges. The airline underlined the possibility of a judicial review to examine the appropriateness of airport charges.
However, it is clear from the ECJ's decision that, for the time being, there is no scope for free pricing under the EU Airport Charges Directive and thus no contractual freedom for airport users.
The ECJ's decision shows that it has remained true to its principles and reinforced the aims of the EU Airport Charges Directive – namely, non-discrimination, consultation and transparency.
For further information on this topic please contact Louisa-Ann Lange at Arnecke Sibeth Dabelstein by telephone (+49 69 97 98 85 0) or email (firstname.lastname@example.org). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.
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