Airport charges: is there flexibility for airports under European law?

On 27 June 2019, Advocate General Campos Sánchez-Bordona delivered his Opinion to the EU Court of Justice in Case C-379/18, following a request for a preliminary ruling from a German administrative court to the Court of Justice on the 2009 European Directive on airport charges.

The Directive, which had to be transposed by Member States into national law in 2011, is a specific EU legal framework for airport charges that applies to all airports in the European Economic Area and Switzerland with more than five million passengers per year and, regardless, to the leading airport in each Member State. It applies to around 70 airports in the EU and covers almost 80% of passenger traffic in the EU.

It sets common principles for the determination and management of airport charges. Its objectives are (i) to ensure greater transparency in the determination of airport charges, (ii) to ensure that there is no discrimination between airlines (subject to adjustments justified by public policy considerations), (iii) to establish regular consultations between airports and airlines, and (iv) to establish, in each Member State, an independent supervisory authority (“ISA”) to settle disputes between airports and airlines over the level of airport charges and to monitor the proper application of the measures taken by Member States to comply with the Directive.

The preliminary ruling procedure submitted to the Court follows a dispute between Deutsche Lufthansa and the State of Berlin. In June 2014, the airport management company of Berlin-Tegel Airport submitted for approval to the ISA a proposal for airport charges relating to the State of Berlin. It was granted, but challenged by Deutsche Lufthansa through an action for annulment brought before the Higher Administrative Court of Berlin-Brandenburg. In June 2016, this court dismissed the appeal brought by the airline for lack of interest. Deutsche Lufthansa then brought an action for review before the Federal Administrative Court, which referred two questions to the EU Court of Justice for a preliminary ruling.

The questions aimed at clarifying the scope of the airport charges Directive, in particular (i) on the potential for an airport management company and its users to agree on charges different to those approved by the ISA, and (ii) on the compliance of the German judicial protection system with the Directive.

Indeed, under German law, the authorisation would not be legally binding for the purposes of the setting of charges. A public law relationship would be created between the ISA and the airport management company as addressee of the decision, the management company and airport users being bound by a private law relationship. The remuneration agreed between these two parties would therefore be effective even without authorisation. The German court therefore doubts whether an appeal brought by an air carrier directly against the charging system approved by the ISA is within the jurisdiction of the administrative court.

Regarding the first question, the Advocate General considered that, by opting for a system in which the ISA approves a proposal for airport charges as a common and transparent charging system submitted by the airport managing body, it would not make sense to allow individual agreements that would differ from it. First, such individual agreements would affect the common nature of the charging system. In addition, in terms of transparency, they would introduce significant distortions. Therefore, the Advocate General concluded that the airport charges Directive precludes the airport managing body and airport users from agreeing airport charges that differ from those approved by the ISA.

As regards the second question, the Advocate General emphasised that it is not for the Court of Justice to rule on the interpretation of domestic law provisions, nor determine which national courts have jurisdiction in a particular matter. It can however provide guidelines on the interpretation of EU law that will guide the national court in its decisions. In this respect, and after examining the legitimate interest of users in challenging airport charges under the Directive, the Advocate General concluded that the Directive precludes the application of national legislation which, according to the prevailing interpretation established by case law, confers jurisdiction on the civil courts to decide on a case-by-case basis and in accordance with equitable criteria claims brought by users in connection with airport charges approved by an ISA, and, at the same time, prevents airport users from directly challenging the decisions of that authority.

The Advocate General’s conclusions in this case therefore make it clear that, according to the airport charges Directive, it is not possible to set charge levels different to those determined by the airport management company, that are also subject to authorisation/approval by the ISA at national level. Even if the Advocate General's conclusions do not prejudge the Court's judgment, it seems that, given the clear provisions of the Directive, the Court will most probably follow these conclusions. The judgment should in principle be delivered within approximately six months of the presentation of the Advocate General's Opinion.

Finally, remember that the issue of airport charges was the subject of a public consultation by the European Commission in 2018 and is the subject of many debates between the main players in this sector, namely airports and airlines.