On 7 November 2019, the European Court of Justice published its judgment in Case C‑379/18, Deutsche Lufthansa AG v Land Berlin, on the interpretation of Article 3, Article 6(3) to (5) and Article 11(1) and (7) of Directive 2009/12. The request for preliminary interpretation had been made in proceedings between Deutsche Lufthansa AG (“Lufthansa”) and Land Berlin (Land of Berlin, Germany) concerning the approval by the latter of a new system of airport charges set, with respect to Berlin-Tegel airport (Germany), by Berliner Flughafen GmbH (“BFG”) in its capacity as the airport managing body.

The Land of Berlin, in its capacity as the responsible body of the independent supervisory authority, had authorised the new system of airport charges for Berlin-Tegel airport developed by BFG. In its capacity as an airport user, Lufthansa had brought an action for annulment of that authorisation before the Oberverwaltungsgericht Berlin-Brandenburg (Higher Administrative Court, Berlin-Brandenburg, Germany), which declared the action inadmissible on the ground that Lufthansa lacked standing to bring proceedings for the purposes of the Verwaltungsgerichtsordnung (Code of Administrative Court Procedure). Therefore, Lufthansa had brought an appeal on a point of law (Revision) before the Bundesverwaltungsgericht (Federal Administrative Court, Germany; “the referring court”), submitting that the provisions of the Code of Administrative Court Procedure must result in an action for annulment brought by a private party being declared admissible if the latter plausibly asserts that its rights have been infringed by the contested administrative act. In light of the need to interpret European legislation, the referring court stayed the proceedings and asked two questions to the Court of Justice for a preliminary ruling.

By its first question, the referring court asked whether, in essence, Directive 2009/12, in particular Article 3, Article 6(5)(a) and Article 11(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. According to the Court of Justice, allowing an airport managing body to set, together with an airport user, charges different from those approved by the independent supervisory authority would undermine the principles of consultation, transparency and non-discrimination of airport users, as laid down in Article 3, Article 6(1) and (2) and Article 7 of Directive. Therefore, an adjustment of the airport charges can be accepted only if it is confined to implementing relevant, objective and transparent criteria known to all airport users and those criteria are part of the system of airport charges approved by the independent supervisory authority.

By its second question, the referring court asked whether, in essence,  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 it 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. According to the Court of Justice, national law, in determining an individual’s right of action and legal interest in bringing proceedings, cannot undermine the right to effective judicial protection. However, this doesn’t happen in the present case, inasmuch as a review of the charges based on principles of fairness and any decision by such a civil court using its reasonably exercised discretion would run counter to the principle of non-discrimination of airport users guaranteed by Article 3 of Directive 2009/12.

Marco Stillo