1 This request for a preliminary ruling concerns the interpretation of Article 3, Article 6(3) to (5) and Article 11(1) and (7) of Directive 2009/12/EC of the European Parliament and of the Council of 11 March 2009 on airport charges (OJ 2009 L 70, p. 11).
2 The request has been made in proceedings between Deutsche Lufthansa AG 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.
3 Recitals 1, 2, 7, 9, 11 to 13 and 15 of Directive 2009/12 state: ‘(1) The main task and commercial activity of airports is to ensure the handling of aircraft, from landing to take-off, and of passengers and cargo, so as to enable air carriers to provide air transport services. For this purpose, airports offer a number of facilities and services related to the operation of aircraft and the processing of passengers and cargo, the cost of which they generally recover through airport charges. Airport managing bodies providing facilities and services for which airport charges are levied should endeavour to operate on a cost-efficient basis. (2) 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. Such a framework should be without prejudice to the possibility for a Member State to determine if and to what extent revenues from an airport’s commercial activities may be taken into account in establishing airport charges. … (7) Incentives for starting up new routes, such as to promote, inter alia, the development of disadvantaged and outermost regions should only be granted in accordance with [EU] law. … (9) The Council of the International Civil Aviation Organisation (the ICAO Council) in 2004 adopted policies on airport charges that included, inter alia, the principles of cost-relatedness, non-discrimination and an independent mechanism for economic regulation of airports. … (11) Airport charges should be non-discriminatory. A compulsory procedure for regular consultation between airport managing bodies and airport users should be put in place with the possibility for either party to have recourse to an independent supervisory authority whenever a decision on airport charges or the modification of the charging system is contested by airport users. (12) In order to ensure impartial decisions and the proper and effective application of this Directive, an independent supervisory authority should be established in every Member State. The authority should be in possession of all the necessary resources in terms of staffing, expertise, and financial means for the performance of its tasks. (13) It is vital for airport users to obtain from the airport managing body, on a regular basis, information on how and on what basis airport charges are calculated. Such transparency would provide air carriers with an insight into the costs incurred by the airport and the productivity of an airport’s investments. To allow an airport managing body to properly assess the requirements with regard to future investments, the airport users should be required to share all their operational forecasts, development projects and specific demands and suggestions with the airport managing body on a timely basis. … (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. However, access to a differentiated level of infrastructure or services should be open to all carriers that wish to avail of them on a non-discriminatory basis. If demand exceeds supply, access should be determined on the basis of objective and non-discriminatory criteria to be developed by an airport managing body. Any differentiation in airport charges should be transparent, objective and based on clear criteria.’
4 Article 1 of that directive, entitled ‘Subject matter’, provides, in paragraph 5: ‘This Directive shall be without prejudice to the right of each Member State to apply additional regulatory measures that are not incompatible with this Directive or other relevant provisions of [EU] law with regard to any airport managing body located in its territory. This may include economic oversight measures, such as the approval of charging systems and/or the level of charges, including incentive-based charging methods or price cap regulation.’
5 Article 2 of that directive, concerning ‘Definitions’, provides, inter alia: ‘… 2. “airport managing body” means a body which, in conjunction with other activities or not as the case may be, has as its objective under national laws, regulations or contracts the administration and management of the airport or airport network infrastructures and the coordination and control of the activities of the different operators present in the airports or airport network concerned; 3. “airport user” means any natural or legal person responsible for the carriage of passengers, mail and/or freight by air to or from the airport concerned; 4. “airport charge” means a levy collected for the benefit of the airport managing body and paid by the airport users for the use of facilities and services, which are exclusively provided by the airport managing body and which are related to landing, take-off, lighting and parking of aircraft, and processing of passengers and freight; …’
6 Article 3 of Directive 2009/12, entitled ‘Non-discrimination’, provides: ‘Member States shall ensure that airport charges do not discriminate among airport users, in accordance with [EU] 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.’
7 According to Article 6 of that directive, entitled ‘Consultation and remedy’: ‘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. Where a multi-annual agreement between the airport managing body and the airport users exists, the consultations shall take place as foreseen in such agreement. 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 body 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: (a) there is a mandatory procedure under national law whereby airport charges, or their maximum level, shall be determined or approved by the independent supervisory authority; or (b) there is a mandatory procedure under national law whereby the independent supervisory authority examines, on a regular basis or in response to requests from interested parties, whether such airports are subject to effective competition. Whenever warranted on the basis of such an examination, the Member State shall decide that the airport charges, or their maximum level, shall be determined or approved by the independent supervisory authority. This decision shall apply for as long as is necessary on the basis of the examination conducted by that authority. The procedures, conditions and criteria applied for the purpose of this paragraph by the Member State shall be relevant, objective, non-discriminatory and transparent.’
8 Article 7 of that directive, entitled ‘Transparency’, provides: ‘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. The information shall include at least: (a) a list of the various services and infrastructure provided in return for the airport charge levied; (b) the methodology used for setting airport charges; (c) the overall cost structure with regard to the facilities and services which airport charges relate to; (d) the revenue of the different charges and the total cost of the services covered by them; (e) any financing from public authorities of the facilities and services which airport charges relate to; (f) forecasts of the situation at the airport as regards the charges, traffic growth and proposed investments; (g) the actual use of airport infrastructure and equipment over a given period; and (h) the predicted outcome of any major proposed investments in terms of their effects on airport capacity. 2. Member States shall ensure that airport users submit information to the airport managing body before every consultation, as provided for in Article 6(1), concerning in particular: (a) forecasts as regards traffic; (b) forecasts as to the composition and envisaged use of their fleet; (c) their development projects at the airport concerned; and (d) their requirements at the airport concerned. 3. Subject to national legislation, the information provided on the basis of this Article shall be considered as confidential or economically sensitive and handled accordingly. In the case of airport managing bodies that are quoted on the stock exchange, stock exchange regulations in particular shall be complied with.’
9 Article 11 of that directive, which relates to the ‘Independent supervisory authority’, provides, in paragraphs 1 and 7: ‘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.’
10 Paragraph 19b, entitled ‘System of charges’, of the Luftverkehrsgesetz (Law on air traffic), in the version applicable to the dispute in the main proceedings (‘the LuftVG’), provides: ‘(1) The operator of a civil airport or of a civil aerodrome shall establish a system of charges which must be paid for the use of facilities and services which are related to lighting, take-off, landing and parking of aircraft as well as the processing of passengers and freight (charging system). The charging system must be submitted for approval to the licensing authority. Approval shall be granted where the charges contained in the charging system are determined on the basis of relevant, objective, transparent and non-discriminatory criteria. In particular, it should be ensured that 1. the services and infrastructure subject to charges are clearly defined; 2. the charges are calculated on the basis of cost and are set in advance; 3. all users of a civil airport or of an aerodrome have the same form of access to the services and infrastructure of those facilities; 4. airport users are not charged at different levels without objective justification. A modulation of charges on the basis of the general and public interest shall be permissible for civil airports and aerodromes; the criteria used for that purpose must be relevant, objective and transparent. The charging system for civil airports must differentiate between charges on the basis of protection against noise, on the one hand, and of pollution, on the other. … (3) Without prejudice to the provisions of subparagraph (1), the following rules shall apply to the authorisation of the charging system of civil airports whose annual traffic exceeds five million passenger movements: 1. No later than 6 months before the entry into force of the system of charges, the operator of a civil airport shall submit to the airport users a draft, including a statement of reasons, for the purposes of reaching an agreement. The same shall apply to any changes to the charging system. The period referred to in the first sentence [of the present point] shall not apply in exceptional circumstances which must be demonstrated to the airport users. 2. The application for authorisation must be submitted to the licensing authority no later than 5 months before the entry into force of the proposed system of charges. It must be reasoned. Any objections raised by airport users must be taken into account. … 3. Authorisation must be granted if the charges set are proportionate to the anticipated operating costs and serve to ensure the efficient provision of services. The licensing authority may dispense with the examination for the purposes of the preceding sentence where the operator of the civil airport presents a written agreement made with the airport users concerning the charging system and where there is no infringement of the rules on State aid. … 5. The operator of a civil airport shall consult the airport users at least once a year on the charging system. …’
11 Paragraph 42(2) of the Verwaltungsgerichtsordnung (Code of Administrative Court Procedure) covers actions for annulment and injunction and, in the version applicable to the dispute in the main proceedings, states, inter alia, that, in so far as the law does not provide otherwise, an action for annulment of an administrative act is admissible only if the applicant claims that its rights have been infringed by that act.
12 The criterion on the basis of which the German civil courts review the charges set by the airport managing body is apparent from Paragraph 315 of the Bürgerliches Gesetzbuch (Civil Code), in the version applicable to the dispute in the main proceedings (‘the BGB’). That provision, entitled ‘Specification of performance by one party’, provides: ‘(1) Where performance is to be specified by one of the parties to the contract, then in case of doubt it is to be assumed that the specification is to be made at the reasonably exercised discretion of the party making it. (2) The specification shall be by way of a declaration made to the other contracting party. (3) Where the specification is to be made at the reasonably exercised discretion of a party, the specification made is binding on the other party only if it is equitable. If it is not equitable, the specification shall be effected by judgment; the same shall apply where the specification is delayed.’
13 Deutsche Lufthansa, an air transport company, contests, in its capacity as an airport user, the approval of a new system of airport charges for Berlin-Tegel airport, which is managed by the Land of Berlin.
14 By a decision of 13 October 2014, the Land of Berlin, in its capacity as the responsible body of the independent supervisory authority, authorised, with effect from 1 January 2015, the new system of airport charges developed by BFG (‘the contested authorisation’).
15 Deutsche Lufthansa brought an action for annulment of that authorisation. By judgment of 22 June 2016, that action was declared inadmissible by the Oberverwaltungsgericht Berlin-Brandenburg (Higher Administrative Court, Berlin-Brandenburg, Germany) on the ground that Deutsche Lufthansa lacked standing to bring proceedings for the purposes of Paragraph 42(2) of the Code of Administrative Court Procedure.
16 In the first place, that court noted that, in line with a judgment of the Bundesverwaltungsgericht (Federal Administrative Court, Germany) of 8 July 1977 concerning the provision that preceded Paragraph 19b of the LuftVG and which was contained in the Luftverkehrs-Zulassungs-Ordnung (Air Traffic Licensing Order) of 19 June 1964 (BGBl. 1964 I, p. 370), the legal basis of the airport charges is not the contested authorisation but the use of the airport, so that that authorisation has no autonomous legal effect other than that of allowing the airport managing body to apply the new charging rules vis-à-vis the airport users. According to the Oberverwaltungsgericht Berlin-Brandenburg (Higher Administrative Court, Berlin-Brandenburg), Paragraph 19b of the LuftVG confirms that the public-law effect of that authorisation is limited to the relationship between the independent supervisory authority and the airport managing body that is the recipient of that authorisation. It stated that, despite relating to legislation preceding that applicable to the dispute in the main proceedings, that interpretation remains valid.
17 In the second place, it stated that Paragraph 19b of the LuftVG does not offer any protection for third parties on which Deutsche Lufthansa could rely as an airport user. The requirements of non-discrimination and transparency are not capable of conferring on airport users the possibility of bringing an action against the authorisation of a system of airport charges.
18 In the third place, the Oberverwaltungsgericht Berlin-Brandenburg (Higher Administrative Court, Berlin-Brandenburg) stated that the airport charges had been subject, until the repeal of the provision preceding Paragraph 19b of the LuftVG, to civil court review on the basis of equitable criteria under Paragraph 315 of the BGB, a review deemed to satisfy the constitutional requirements. According to that court, Paragraph 19b of the LuftVG had no impact in that regard.
19 In the fourth and last place, that court stated that that assessment is also compatible with Directive 2009/12, in particular with Articles 6 and 11 thereof.
20 Deutsche Lufthansa brought an appeal on a point of law (Revision) against the judgment of the Oberverwaltungsgericht Berlin-Brandenburg (Higher Administrative Court, Berlin-Brandenburg) before the referring court. Deutsche Lufthansa submits that Paragraph 42(2) 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.
21 According to the referring court, Deutsche Lufthansa would have standing to bring an action for annulment under German law if the contested authorisation had an effect giving rise to consequences under private law, that is to say if, in a system of airport charges, the charge set by one of the contracting parties and authorised by the independent supervisory authority were mandatory for the contracting parties who would not be able to depart from it in the context of usage agreements.
22 When the authorisation of a system of airport charges has an effect giving rise to consequences under private law, the contracting parties in question could claim that their freedom to act resulting from Article 2(1) of the Grundgesetz (German Basic Law) has been infringed. In so far as that freedom to act includes contractual freedom and thus the right to negotiate with the other party the content of contractual agreements free from any State coercion, it would be capable of establishing standing for those parties, for the purposes of Paragraph 42(2) of the Code of Administrative Court Procedure.
23 The referring court notes, in that regard, first, that, in the area of post and telecommunications, the German legislature expressly provided for such an effect giving rise to consequences under private law.
24 It states that, by contrast, there is nothing to suggest that the German legislature intended that the requirement of authorisation under the second sentence of Paragraph 19b(1) of the LuftVG should have such an effect giving rise to consequences under private law. According to the referring court, that silence on the part of the German legislature cannot be fortuitous as, on the one hand, the previous laws contained provisions giving rise to consequences under private law, and, on the other hand, the judgment of the Bundesverwaltungsgericht (Federal Administrative Court) of 8 July 1977, cited in paragraph 16 of the present judgment, cannot be ignored. Therefore, according to the referring court, it must be deduced from that that the airport users and the airport managing body may, even under Paragraph 19b of the LuftVG, set the charges while disregarding the authorised tariffs.
25 Further, the referring court states that recognising that the authorisation of a system of airport charges has an effect giving rise to consequences under private law and, accordingly, that airport users have standing, would fundamentally alter the traditional system of remedies, since civil remedies would make way for administrative remedies, a scenario not intended by the German legislature.
26 That court notes that those considerations based on national law could however be of no relevance if Directive 2009/12 provides, as a matter of principle, that airport managing bodies and airport users are not allowed to agree airport charges different from those approved by the independent supervising authority under point (a) of the first sentence of Article 6(5) of that directive.
27 Secondly, the referring court states that an airport user would have standing, under Paragraph 42(2) of the Code of Administrative Court Procedure, to bring proceedings against an authorisation such as the contested authorisation if Paragraph 19b of the LuftVG offers protection to airport users as third parties. However, for that to be the case, the provision in question must provide for individualising factual elements that allow a circle of persons to be identified that is sufficiently distinguishable from the general public.
28 Thirdly, the referring court states that Directive 2009/12, in particular Article 3 which prohibits any discrimination, could mean that Deutsche Lufthansa’s standing to bring proceedings for the purposes of Paragraph 42(2) of the Code of Administrative Court Procedure must be recognised in the context of an action brought against the contested authorisation. That would be the case if the review of the system of charges by the civil courts on the basis of equitable criteria in accordance with Paragraph 315 of the BGB did not satisfy the requirements of that directive. It would be contrary to the constitutional requirements, in the case of charges subject to State control, to refuse, as a general rule, to persons who must pay them a review of those charges both by the administrative and by the civil courts.
29 Fourthly, the referring court considers that, according to settled case-law, the equitable criteria provided for in Paragraph 315 of the BGB require a weighing up of the objective economic interests of the contracting parties in question as well as a comprehensive assessment of the subject matter of the contract and the significance of the performance for which the price requested is deemed to represent reasonable consideration. Further, the referring court states that, even though Paragraph 315 of the BGB does not provide for that, other aspects, such as possible provisions of special laws, like the principles of EU law concerning charges, could also be taken into consideration in the context of that weighing up.
30 Moreover, according to the referring court, where the charges are too high, the civil court would determine the equitable amount, conferring on it an ex tunc effect, in accordance with Directive 2009/12. Even though a new setting of the amount of charges by the court initially has only inter partes consequences, the other users would not fail to rely on it by bringing their own similar actions, so that those actions would lead to an overall equalisation of the amount of the charges.
31 In that regard, the referring court considers that it cannot be ascertained from the judgment of 9 November 2017, CTL Logistics (C‑489/15, EU:C:2017:834) whether the approach that the Court took in that judgment can be applied to airport charges governed by Directive 2009/12 or whether the review of the system of charges by the civil courts on the basis of equitable criteria in accordance with Paragraph 315 of the BGB is consistent with Directive 2009/12.
32 The referring court states that Deutsche Lufthansa, in its capacity as an airport user, could also be deemed to have standing in the context of an action brought against the contested authorisation, as Directive 2009/12 confers, in the first sentence of its Article 11(7), the status of ‘parties concerned’ on airport users. Thus, that directive could be regarded as serving the interests of airport users by recognising their rights to information and consultation.
33 In the light of the fact that establishing whether Deutsche Lufthansa, in its capacity as an airport user, has standing, in accordance with Paragraph 42(2) of the Code of Administrative Court Procedure, in the context of an action for annulment brought against the contested authorisation, depends on the interpretation of Directive 2009/12, the Bundesverwaltungsgericht (Federal Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is a national provision which provides that the system of airport charges decided upon by the airport managing body must be submitted to the independent supervisory authority for approval, without prohibiting the airport managing body and the airport user from setting charges different from those approved by the supervisory authority, compatible with Directive [2009/12], in particular Article 3, Article 6(3) to (5) and Article 11(1) and (7) thereof? (2) Is an interpretation of national law whereby an airport user is prevented from challenging the approval of the charging system by the independent supervisory authority, but can bring an action against the airport managing body and can plead in that action that the charges determined in the charging system are inequitable, compatible with the aforementioned directive?’
34 By its first question, the referring court asks, in essence, whether 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.
35 As is evident from both the request for a preliminary ruling and the reply of the German Government to a question asked by the Court at the hearing, by adopting Paragraph 19b(1) and (3) of the LuftVG, the Federal Republic of Germany sought to apply Article 6(5)(a) of Directive 2009/12.
36 That latter provision authorises a Member State to decide not to apply paragraphs 3 and 4 of Article 6 of that directive, in relation to changes to the level or the structure of the airport charges at those airports for which there is a mandatory procedure under national law whereby airport charges, or their maximum level, are to be determined or approved by the independent supervisory authority.
37 In the present case, it appears that, after having consulted the airport users, the airport managing body determined the new system of airport charges and then submitted it to the independent supervisory authority for approval. Thus, that authority approved a comprehensive system of airport charges. In those circumstances, as noted by the Advocate General in point 54 of his Opinion, the intervention of the independent supervisory authority was not limited to determining or approving the maximum level of those charges.
38 In the light of the wording of Article 6(5)(a) of Directive 2009/12, it must be considered that both the mandatory nature of the procedure provided for in Paragraph 19b(1) and (3) of the LuftVG and the fact that the independent supervisory authority approves the system of airport charges established by the airport managing body mean that that body cannot in any way depart from that system of charges without depriving that authority’s approval of its effectiveness.
39 It follows that, when a national provision such as Paragraph 19b(1) and (3) of the LuftVG provides for a mandatory procedure by virtue of which the system of airport charges is to be approved by an independent supervisory authority, that system must also be mandatory for all users, without it being possible to set, together with a particular airport user, charges different from those previously approved.
40 That literal interpretation is also borne out by a contextual interpretation of that directive.
41 In the first place, Article 11(7) of Directive 2009/12 provides that the decisions of the independent supervisory authority are to have binding effect, without prejudice to parliamentary or judicial review, as applicable in the Member States. The authority of the decisions of the independent supervisory authority would be altered if the airport managing body could depart from them, by concluding with an airport user an agreement that sets airport charges different from those provided for in the system of airport charges approved by the independent supervisory authority.
42 Further, as stated in recital 2 of that directive, the EU legislature considered it 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.
43 Establishing that common framework leads to that independent supervisory authority being accorded an important role, outlined in particular in Article 11(1) of Directive 2009/12. It is apparent from that provision that the independent supervisory authority is responsible for ensuring the correct application of the measures taken to comply with that directive and to assume, at least, the tasks assigned under Article 6 of that directive. Recital 12 of Directive 2009/12 also states that the intervention of that authority is meant to ensure that the decisions are impartial as well as to ensure the proper and effective application of that directive. Moreover, the independent supervisory authority is to ensure compliance with the principle of non-discrimination, in accordance with the first sentence of Article 3 of Directive 2009/12.
44 In the second place, 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 2009/12.
45 First, it must be noted that Article 6(5)(a) of Directive 2009/12 only authorises the Member States to decide not to apply paragraphs 3 and 4 of Article 6 of that directive, so that those States still have to comply with paragraphs 1 and 2 of that article. In order to ensure compliance with the principle of non-discrimination, Article 6(1) of Directive 2009/12 obliges the Member States to make provision for a procedure for consultation between the airport users or the representatives or associations of airport users and the airport managing body. Those consultations, which are to take place in principle at least once a year, concern the operation of the system of airport charges, the level of airport charges and, as appropriate, the quality of service provided.
46 Article 6(2) of that directive encourages Member States to prioritise a consensual approach when modifying the system or level of airport charges. Thus, they must ensure that, wherever possible, those changes are agreed between the airport managing body and the airport users. In particular, the airport managing body is to 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 4 months before they enter into force, unless there are exceptional circumstances which need to be justified to airport users. The airport managing body is to 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 is to normally publish its decision or recommendation no later than 2 months before its entry into force. The airport managing body is to 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 body and the airport users.
47 Thus, it appears that the consultation with the airport users when modifying the system or level of the airport charges, provided for in Article 6(2) of Directive 2009/12, would be rendered meaningless if, after having consulted with those users and obtained the approval of the independent supervisory authority, the airport managing body could depart, for the benefit of a particular airport user, from the system of charges that had been negotiated and approved in that manner.
48 Secondly, by departing, for the benefit of an airport user, from the system of airport charges approved by the independent supervisory authority, the managing body would be favouring that particular user and, in doing so, would infringe not only the principle of non-discrimination but also the principle of transparency, guaranteed, respectively, in Articles 3 and 7 of Directive 2009/12. Recital 13 of that directive states, in that regard, that it is vital for airport users to obtain from the airport managing body, on a regular basis, information on how and on what basis airport charges are calculated. Such transparency would provide air carriers with an insight into the costs incurred by the airport and the productivity of an airport’s investments.
49 The principles of transparency and non-discrimination thus appear to be closely linked, in the sense that compliance with the former allows users to identify infringements of the latter. In order to ensure that airport charges do not discriminate among airport users, as required by the first sentence of Article 3 of Directive 2009/12, read in conjunction with recital 11 of that directive, the airport managing bodies are to put in place a compulsory procedure for regular consultation with the airport users with the possibility for either party to have recourse to an independent supervisory authority whenever a decision on airport charges or the modification of the charging system is contested by airport users.
50 Thirdly, the fact that the second sentence of Article 3 of Directive 2009/12 authorises the modulation of airport charges for issues of public and general interest, including environmental issues, cannot cast doubt on the foregoing considerations. As stated in the third sentence of that provision, read in conjunction with recital 15 of that directive, the criteria used for such a modulation must be relevant, objective, transparent, and therefore clear.
51 It follows that a modulation of the airport charges cannot be made within the confidential framework of contractual negotiations between the airport managing body and an individual airport user. On the contrary, such a modulation cannot be accepted unless it is confined to implementing criteria known to all airport users in so far as those criteria are part of the system of airport charges approved by the independent supervisory authority.
52 The criteria allowing the airport charges to be modulated must therefore be contained in a system of airport charges submitted for approval to the independent supervisory authority, which presupposes that the airport users were also consulted on those criteria.
53 In the light of the foregoing, the answer to the first question is that Directive 2009/12, and 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.
54 By its second question, the referring court asks, in essence, 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.
55 As a preliminary point, it must be noted that, by providing that the decisions of the independent supervisory authority are to have binding effect, without prejudice to parliamentary or judicial review, as applicable in the Member States, the last sentence of Article 11(7) of Directive 2009/12 lends itself to being interpreted as authorising the Member States to choose between parliamentary and judicial review.
56 However, according to settled case-law, the principle of effective judicial protection is a general principle of EU law stemming from the constitutional traditions common to the Member States which today is enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (see, to that effect, judgment of 13 March 2007, Unibet, C‑432/05, EU:C:2007:163, paragraph 37). Further, under the second subparagraph of Article 19(1) TEU, Member States are to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law.
57 It follows that the lack of judicial review cannot be compensated for by parliamentary review.
58 Further, as noted, in essence, by the Advocate General in points 32 to 40 of his Opinion, the basic principles underpinning Directive 2009/12, namely non-discrimination, transparency and consultation with those concerned when modifying the system or level of airport charges, which are respectively guaranteed by Articles 3, 7 and 6 of that directive, read in conjunction with recitals 9 and 11 to 13 of that directive, may simultaneously be regarded as obligations of the airport managing body and as rights on which airport users can rely in court in their capacity as ‘parties concerned’, within the meaning of Article 11(7) of Directive 2009/12.
59 In those circumstances, it is for the courts of the Member States to ensure judicial protection of an individual’s rights under Directive 2009/12 (see, to that effect, in particular, judgment of 13 March 2007, Unibet, C‑432/05, EU:C:2007:163, paragraph 38).
60 In that regard, while it is, in principle, for national law to determine an individual’s standing and legal interest in bringing proceedings, EU law nevertheless requires that the national legislation does not undermine the right to effective judicial protection (see, to that effect, judgment of 13 March 2007, Unibet, C‑432/05, EU:C:2007:163, paragraph 42), in accordance with the second subparagraph of Article 19(1) TEU.
61 However, the principle of effective judicial protection does not require it to be possible, as such, to bring a free-standing action which seeks primarily to dispute the compatibility of national provisions with EU law, provided one or more legal remedies exist, which make it possible to ensure, indirectly, respect for an individual’s rights under EU law (see, to that effect, judgment of 13 March 2007, Unibet, C‑432/05, EU:C:2007:163, paragraphs 47 and 53).
62 In that regard, while it is in principle for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, those procedural rules must not, in particular, render practically impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness) (see, to that effect, judgment of 13 March 2007, Unibet, C‑432/05, EU:C:2007:163, paragraphs 39 and 43 and the case-law cited).
63 Moreover, it is for the national courts to interpret the procedural rules governing actions brought before them, in such a way as to enable those rules, wherever possible, to be implemented in such a manner as to contribute to the attainment of the objective of ensuring effective judicial protection of an individual’s rights under EU law (see, to that effect, judgment of 13 March 2007, Unibet, C‑432/05, EU:C:2007:163, paragraph 44). In addition, a national court cannot validly claim that it is impossible for it to interpret a provision of national law in a manner that is consistent with EU law merely because that provision has consistently been interpreted in a manner that is incompatible with EU law (judgment of 11 September 2018, IR, C‑68/17, EU:C:2018:696, paragraph 65).
64 It is in the light of these considerations that the second question referred must be answered.
65 In the present case, it is apparent from the order for reference that in Germany, under Paragraph 42(2) of the Code of Administrative Court Procedure, an action for annulment brought against an administrative act is admissible only if the applicant asserts that its rights have been infringed by that act. Following the judgment of the Bundesverwaltungsgericht (Federal Administrative Court) of 8 July 1977, cited in paragraph 16 of the present judgment, the decision whereby the independent supervisory authority approves a system of airport charges is deemed not to produce any legal effect other than in the context of the relationship between that authority and the airport managing body. Thus, such a decision can be challenged only indirectly, before a civil court, by an action brought against a decision of an airport managing body requesting the payment of a charge. Further, given that Paragraph 315(3) of the BGB obliges a civil court judge to give judgment on the basis of equitable criteria, that judge must strike a balance between the objective economic interests of the contracting parties in question, but also assess in a comprehensive manner the subject matter of the agreement and the significance of the performance for which the price requested is deemed to represent reasonable consideration. Nevertheless, it is clear from the national case-law that the civil court judge can also take into consideration other aspects arising from special laws, such as principles of EU law.
66 Thus, it must be determined whether, in the main proceedings, the obligation, for the airport user wishing to challenge the decision of the independent supervisory authority approving the system of airport charges in the light of Directive 2009/12, to initiate proceedings in a civil court giving judgment on the basis of equitable criteria, under Paragraph 315(3) of the BGB, does not render practically impossible or excessively difficult the exercise of rights conferred by that directive, contrary to the principle of effectiveness (see, to that effect, judgment of 13 March 2007, Unibet, C‑432/05, EU:C:2007:163, paragraph 43 and the case-law cited).
67 In that regard, it is sufficient to state, as the Court has previously observed in a similar context, that, by insisting exclusively on the economic rationality of the individual contract, the application of Paragraph 315(3) 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 undertakings concerned (see, to that effect, judgment of 9 November 2017, CTL Logistics, C‑489/15, EU:C:2017:834, paragraph 74).
68 Further, as noted by the Advocate General in point 77 of his Opinion, other ‘crucial’ aspects of the process that culminated in the approval of the airport charges, such as matters relating to the formation of the will of the independent supervisory authority or any formal defects that may have been relevant to the shaping of the content of the approval decision, are not subject to the jurisdiction of a civil court.
69 Finally, a review of the charges based on the principle of equity and the adoption, if necessary, of a decision based on an assessment at the reasonably exercised discretion of those courts, in accordance with Paragraph 315(3) of the BGB, run counter to the principle of non-discrimination of airport users guaranteed by Article 3 of Directive 2009/12, particularly since the judgments delivered by the German civil courts have effects only on the parties to the disputes brought before those courts (see, by analogy, judgment of 9 November 2017, CTL Logistics, C‑489/15, EU:C:2017:834, paragraphs 83 and 94).
70 It follows that Paragraph 315(3) of the BGB, according to which airport users are unable to obtain a judicial review that is carried out on the basis of objective elements and is capable of ensuring full compliance with the conditions set by Directive 2009/12, does not allow the German civil courts to ensure effective judicial protection for those users.
71 In those circumstances, the answer to the second question is that 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.
72 Since these proceedings are, for the parties to the main proceedings, a step in the action before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.