The claimant, an air carrier, challenges, in its capacity as an airport user, the approval of a new scheme of charges for Berlin-Tegel Airport, operated by the third party summoned to attend the proceedings as a party whose rights may be affected (hereinafter summoned third party).

The summoned third party applied on 25 June 2014 to the defendant for its approval of the revised scheme of airport charges for Berlin-Tegel Airport decided upon by the summoned third party and applicable from 1 January 2015. By notice of 13 October 2014, the defendant granted the approval requested, determining that the charging scheme met the formal and substantive requirements of section 19b of the Civil Aviation Act (LuftVG, Luftverkehrsgesetz).

On 17 November 2014, the claimant brought an action for annulment against the approval. By judgment of 22 June 2016 - OVG 6 A 3.15 [ECLI:DE:OVGBEBB:2016:OVG6A3.15.0A] - (...) the Berlin-Brandenburg Higher Administrative Court (Oberverwaltungsgericht) dismissed the action as inadmissible. It reasoned essentially as follows: The claimant did not have standing (section 42 (2) of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung). The claimant could not assert that its rights had been infringed by the issuance of the approval. The approval of the charging scheme did not have a legal effect as to changing the existing private law relationship (hereinafter private law effect) between the claimant, in its capacity as an airport user, and the summoned third party, in its capacity as the airport operator, nor did section 19b LuftVG otherwise provide third party protection in favour of the claimant. No different conclusion could be reached on the basis of national constitutional law nor on the basis of Directive 2009/12/EC of the European Parliament and of the Council of 11 March 2009 on airport charges (OJ L 70 p. 11).

Upon the claimant's appeal on points of law, the deciding Senate, in a decision of 12 April 2018 - 3 C 20.16 [ECLI:DE:BVerwG:2018:120418B3C20.16.0] - (...), suspended the proceedings and obtained a preliminary ruling from the Court of Justice of the European Union (CJEU, hereinafter Court of Justice) pursuant to article 267 (3) of the Treaty on the Functioning of the European Union (TFEU) on the interpretation of Directive 2009/12/EC, in particular article 3, article 6 (3) to (5) and article 11 (1) and (7) thereof. The interpretation of the Directive was decisive for whether or not the claimant, in its capacity as an airport user, had standing to challenge through recourse to the administrative courts the administrative approval of the charging scheme adopted by the summoned third party.

In its judgment of 21 November 2019 - C-379/18 [ECLI:EU:C:2019:1000] - (...), the Court of Justice held that (1.) Directive 2009/12/EC, 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, and that (2.) the Directive 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 airport charging scheme, 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 airport charging scheme that that user must pay are inequitable.

6 The claimant's appeal on points of law, on which the Senate, with the parties' consent, decides without an oral hearing (section 141 first sentence in conjunction with section 125 (1) first sentence and section 101 (2) VwGO), is well-founded. The judgment of the Berlin-Brandenburg Higher Administrative Court violates federal law (section 137 (1) no. 1 VwGO) insofar as the Higher Administrative Court holds that the claimant does not have standing to bring an action for the annulment of the defendant's approval of the charging scheme. Based on the preliminary ruling by the Court of Justice of 21 November 2019, the claimant's standing (section 42 (2) VwGO) follows from the fact that the approval of the charging scheme has private law effect (1.), as well as from section 19b LuftVG (2.). However, the Senate cannot decide on the merits of the claimant's action for annulment. The Higher Administrative Court has not made any factual findings which would allow an assessment of the lawfulness of the charging scheme. Pursuant to section 144 (3) first sentence no. 2 VwGO, this leads to the remittal of the case to the lower instance (3.).

7 1. According to the jurisprudence of the Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) it is recognised that the contracting parties can assert that their basic right to exercise the general freedom of action (article 2 (1) of the Basic Law (GG, Grundgesetz) has been infringed if the administrative approval of a charging scheme has private law effects on a contractual relationship governed by civil law. This constitutes the claimant's standing (section 42 (2) VwGO). The general freedom of action includes freedom of contract and, consequently, the right to negotiate contractual agreements with another party free from state restraints. In accordance with article 19 (3) GG, also legal persons under private law are entitled to rely on this basic right (see, i.a., BVerwG, judgment of 5 August 2015 - 6 C 8.14 [ECLI:DE:BVerwG:2015:050815U6C8.14.0] - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 152, 355 para. 12 et seqq. with further references).

8 An approval has private law effect where the charge set in the charging scheme adopted by one of the contracting parties and approved by the supervisory authority is binding on the contracting parties and they are barred from derogating from such when concluding user agreements. This may, for instance, result from the fact that an approved charge takes the place of a charge agreed between the parties; similar provisions exist in the regulatory area of postal and telecommunication charges (see on this BVerwG, judgment of 5 August 2015 - 6 C 8.14 - BVerwGE 152, 355 para. 12 et seqq. with further references).

9 According to the preliminary ruling by the Court of Justice of 21 November 2019, the administrative approval of a charging scheme for airport use also has private law effect pursuant to Directive 2009/12/EC. Directive 2009/12/EC, 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 - in this case the summoned third party - to determine, together with an airport user, airport charges different from those set by that body, within the meaning of that Directive, and approved by the independent supervisory authority - in this case the defendant (para. 34 to 53 and para. 72).

10 2. According to the judgment by the Court of Justice of 21 November 2019, Directive 2009/12/EC also precludes an interpretation of national law whereby an airport user is prevented from challenging directly the decision of the independent supervisory authority approving the airport charging scheme, 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 airport charging scheme that that user must pay are inequitable (para. 54 to 71 and para. 72).

11 a) The Court of Justice held that it is in violation of the general EU law principle of effective judicial protection (para. 56) if the airport user were obliged to initiate proceedings against the airport managing body before a civil court deciding on the charges set in the charging scheme on the basis of equitable criteria under section 315 (3) of the German Civil Code (BGB, Bürgerliches Gesetzbuch), insisting exclusively on the economic rationality of the individual contract (CJEU, judgment of 21 November 2019 para. 66 et seqq.). It can only be ensured that the charging policy is applied in the same way to all the undertakings concerned if the charges are set on the basis of uniform criteria; the exclusive assessment under section 315 (3) BGB of the economic rationality of the individual contract is not sufficient for this purpose (CJEU, judgments of 21 November 2019 para. 67 and of 9 November 2017 - C-489/15, CTL Logistics [ECLI:EU:C:2017:834] - para. 74). In addition to this, other 'crucial' aspects of the procedure 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 deficiencies 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 (CJEU, judgment of 21 November 2019 para. 68). Finally, a review of equity of the charges and the adoption, if necessary, of a decision based on equitably exercised discretion, in accordance with section 315 (3) BGB, run counter to the principle of non-discrimination of airport users guaranteed by article 3 of Directive 2009/12/EC, particularly since the judgments of the German civil courts have only inter partes effect (CJEU, judgments of 21 November 2019 para 69 and of 9 November 2017 para. 83 and 94). It follows from this that section 315 (3) BGB does not allow the German civil courts to ensure effective judicial protection for the airport users (CJEU, judgment of 21 November 2019 para. 70).

12 b) If, based on this, the review of equity of the charges by the civil courts does not meet the requirements under EU law, the claimant - also in view of article 19 (3) and (4) first sentence GG (see BVerwG, decision of 12 April 2018 - 3 C 20.16 - (...) para. 34 et seq.) - must be permitted to challenge the administrative approval of the charging scheme before the administrative courts. The required standing results not only from article 2 (1) GG but also from section 19b LuftVG. The basic principles underpinning Directive 2009/12/EC, namely non-discrimination, transparency and consultation with the persons concerned, may simultaneously be regarded as obligations of the airport managing body and as rights on which airport users can rely in court (CJEU, judgment of 21 November 2019 para. 58). The same must apply to section 19b LuftVG, which transposes these principles into national law; section 19b LuftVG, at least insofar, provides third party protection in favour of the airport users.

13 3. However, the Senate cannot decide on the merits of the claimant's admissible action for annulment of the approval of the charging scheme. The required factual findings have not been made by the Higher Administrative Court. Therefore, the challenged judgment is to be set aside and the matter is to be remitted to the Higher Administrative Court for a further hearing and decision, pursuant to section 144 (3) first sentence no. 2 VwGO.