Opinion of the Advocate General — ECLI:EU:C:2019:548
Date: 2019-06-27
Language of the case: German
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Germany

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. IV. Conclusion 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: (1) Directive 2009/12/EC of the European Parliament and of the Council of 11 March 2009 on airport charges precludes the airport managing body and airport users from agreeing airport charges at variance with those approved by the independent supervisory authority. (2) Directive 2009/12 precludes the application of national legislation, such as that at issue in this dispute, which, according to the prevailing interpretation established by case-law, confers jurisdiction on the civil courts to dispose on a case-by-case basis and in accordance with equitable criteria claims brought by users in connection with airport charges approved by an independent supervisory authority, and, at the same time, prevents airport users from challenging the decisions of that authority directly. 1 Original language: Spanish. 2 Directive of the European Parliament and of the Council of 11 March 2009 on airport charges (OL 2009 L 70, p. 11; ‘the Directive’). 3 I shall use the term user in this sense, to the exclusion, therefore, of passengers that use airport facilities and services (to whom the airlines then pass on the charge). 4 The charges must comply with appropriate, objective, transparent and non-discriminatory criteria; the services and infrastructure charged for must be clearly defined; the charges must be calculated on the basis of cost and set in advance; all users must have the same form of access to the services and infrastructure; different charges may not be imposed without objective justification. 5 It takes as its reference the judgment of 8 July 1977, which concerned Paragraph 43 of the former air traffic licensing regulation. 6 Judgment of 9 November 2017, C‑489/15, ‘judgment in CTL Logistics’, EU:C:2017:834. 7 Proposal for a Directive of the European Parliament and of the Council on airport charges (presented by the Commission) SEC(2006) 1688; SEC(2006) 1689; COM(2006) 820 final. 8 ‘EU air carriers operate in a strongly cyclical economic environment with increased international competition … The entire aviation supply chain should become as competitive as possible in order to ensure the continued competitiveness of the whole EU economy. Airport charges are an important link in this chain as they account for between 4% and 8% of the major EU carriers’ operational costs.’ 9 The German Government is aware of this when it recognises in its observations (paragraph 54) the importance of the level of charges both to airports and to air carriers as a factor in the latter’s choice of destinations. 10 Focus paper on the impact of the Proposal for a Directive of the European Parliament and of the Council on airport charges (presented by the Commission). SEC(2006) 1688, paragraph 6.2.2. (http://www.europarl.europa.eu/registre/docs_autres_institutions/commission_europeenne/sec/2006/1688/COM_SEC(2006)1688_EN.pdf). 11 ‘It is necessary to establish a common framework regulating the essential features of airport charges and the way they are set, as in the absence of such a framework, basic requirements in the relationship between airport managing bodies and airport users may not be met.’ 12 During the legislative procedure, that rule was supplemented to make it clear that the principle of non-discrimination did not prevent the introduction of modulations to charges on objective and transparent public-interest grounds (Legislative Resolution of the European Parliament of 15 January 2008 on the Proposal for a Directive of the European Parliament and of the Council on airport charges (COM(2006) 0820 — C6‑0056/2007 — 2007/0013(COD)). Article 3 of the Directive refers to those modulations on the basis of ‘relevant, objective and transparent criteria’. In a similar vein, the Directive allows the level of charges to be varied in the event of different infrastructures or levels of service. However, these cannot be offered in a discriminatory manner (recital 15 and Article 10 of the Directive). Access is to be decided upon on the basis of objective criteria to be ‘developed by an airport managing body’. 13 If no agreement is reached, the airport managing body is required to justify its decision with regard to the views of the users. 14 The consultations do not end with the provisions contained in Article 6: according to Article 11(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’. Therefore, be it in the context of an appeal against the decision of the airport managing body or in the course of the decision-making process itself, the supervisory authority must take into account the opinion of the airport users. 15 See, inter alia, recitals 1 (‘the cost of which they generally recover through airport charges’) and 10 (‘an airport charge is a levy that is designed and applied specifically to recover the cost of providing facilities and services for civil aviation’) of the Directive. Particularly telling is recital 15: ‘airport managing bodies should be enabled to apply airport charges corresponding to the infrastructure and/or the level of service provided as air carriers have a legitimate interest to require services from an airport managing body that correspond to the price/quality ratio’. 16 The Proposal for a Commission Directive included all acts adopted by the supervisory authority. 17 This second problem does not arise in Germany, which has established a system for the judicial review of decisions adopted by the supervisory authority. The issue now, as the referring court points out, is whether the procedures for exercising that review are governed by the Directive. At the hearing, the Commission recognised that parliamentary review was not an alternative to judicial review, which must always remain available to users. 18 Article 6(2), in reference to changes, talks about ‘the reasons for the proposed changes’. 19 I do not think that this discussion is relevant to the settlement of the present case, since, according to the order for reference, the supervisory authority approved the airport managing body’s proposal, which would mean that no maximum level was laid down. At the hearing, it was emphasised that the scale of charges consists of various components, each capable of economic valuation, the sum of which makes up the final result. Charges below the maximum will necessarily comply with these parameters. 20 The German Government appears to accept this as a matter of fact when, in its written observations (paragraph 35), it states that it is possible to depart from the scale of charges provided that the maximum level laid down by that scale is observed and account is taken of the principles of transparency, objectivity and non-discrimination 21 Paragraphs 22 and 38, essentially. 22 Notwithstanding that other users, on becoming aware of the civil court’s judgment, may bring their own actions in order to benefit from the same relief. 23 Directive of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area (OJ 2012 L 343, p. 32). This repeals Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (OJ 2001 L 75, p. 29). 24 So far as concerns airport charges, Directive 2009/12 refers to this principle in Article 3. In the case of railway charges, Directive 2012/34 refers to it in Article 29(3): ‘Infrastructure managers shall ensure that the application of the charging scheme results in equivalent and non‑discriminatory charges for different railway undertakings that perform services of an equivalent nature in a similar part of the market’. 25 Judgment in CTL Logistics, paragraphs 70 and 74. 26 Ibidem, paragraph 87. The underlying situation is assessed in more detail in the Opinion of Advocate General Mengozzi in CTL Logistics (C‑489/15, EU:C:2016:901), points 1 and 9. 27 According to the order for reference, since the administrative-law relationship is regarded as existing only between the supervisory authority and the airport managing body, the latter alone has standing to bring an action under administrative law. 28 Judgment in CTL Logistics, paragraph 91. 29 Ibidem, paragraph 92. 30 Ibidem, paragraph 94. 31 As was made clear at the hearing, the procedure provided for in Paragraph 315 of the BGB is confined to analysing the equitable balance between the respective acts of performance of the parties but does not extend to examining the authorisation approving the system of charges.