1 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).

2 The summoned third party (airport managing body) applied on 25 June 2014 to the defendant federal state of Berlin (the entity responsible for the independent supervisory authority) for its approval of the revised scheme of charges decided upon by the airport managing body and applicable from 1 January 2015 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 (airport charges). 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).

3 The claimant has brought an action for annulment against the federal state of Berlin seeking to have the approval set aside. By judgment of 22 June 2016 - OVG 6 A 3.15 [ECLI:DE:OVGBEBB:2016:0622.OVG6A3.15.0A] - (...) the Berlin-Brandenburg Higher Administrative Court (Oberverwaltungsgericht) dismissed the action. It reasoned essentially as follows: The action was inadmissible as the claimant did not have the standing required pursuant to 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 legal effect as to changing the existing private law relationship between the claimant and the summoned third party (hereinafter private law effect; 1) nor did section 19b LuftVG provide third party protection in favour of the claimant (2). No different conclusion could be reached on the basis of national constitutional law (3) nor on the basis of Directive 2009/12/EC (4).

4 1. The legal basis for the airport charges was not the approval but use of the airport. The approval of the charging scheme entitled the summoned third party to assert the new scheme against airport users. The approval did not produce further independent legal effect; as regards the claimant it constituted simply a matter of fact. As the Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) by judgment of 8 July 1977 - VII C 72.74 - held in relation to the predecessor provision, section 43 of the Civil Aviation Licensing Ordinance (LuftVZO, Luftverkehrs-Zulassungs-Ordnung), the approval did not have a legally binding influence on the charge set. Also under section 19b LuftVG, the public law effect was limited to the relationship between the independent supervisory authority and the airport managing body, as the addressee of the approval. That coincided with the view of the civil courts, according to which, the absence of an administrative approval had no influence on the effectiveness under private law of the charge agreed between an airport user and the airport managing body. That assessment - uncontested in relation to the previous legal situation - was not called into question by the recast in section 19b LuftVG. There was nothing to suggest that the legislature had intended to amend the legal situation. In other regulated areas, a private law effect was clearly specified (see, for example, section 37 (2) of the Telecommunications Act, Telekommunikationsgesetz) and section 23 (2) of the Postal Act (PostG, Postgesetz)).

5 2. Section 19b LuftVG did not provide third-party protection in favour of the claimant as an airport user. The approval requirements set out in section 19b (1) third sentence LuftVG did not include any indication of an individualised group to be given protection. Also, to the extent that section 19b (1) fourth sentence no. 3 LuftVG requires "access [to be granted] in the same way to all airport users" and section 19b (1) fourth sentence no. 4 LuftVG provides that "different levels of charges [may not be] levied on airport users without an objective reason", the objective was to protect fair and effective competition by way of the exercise of public authority. Counteracting the distortion of competition was, in addition, the purpose of the provision requiring charges to be set according to non-discriminatory criteria. The transparency requirement was intended to ensure that airport users could identify which charges were levied for which services; however, it did not entitle them to challenge the approval. Nor were the approval requirements of section 19b (3) no. 3 LuftVG geared to the individual interests of individual airport users; they facilitated the collective interest of all users in non-discriminatory and transparent access and in the protection of competition. The same was true for the publication requirement of section 19b (3) no. 4 second sentence LuftVG and the provisions on the consultation procedure in section 19b (3) no. 5 to 7 LuftVG.

6 3. National constitutional law did not demand a different interpretation of section 19b LuftVG. According to the jurisprudence of the civil courts, notwithstanding the state approval required under sections 43 and 43a LuftVZO, airport charges were amenable to a review of equity carried out by the civil courts pursuant to section 315 of the German Civil Code (BGB, Bürgerliches Gesetzbuch); section 19b LuftVG did not alter that position in any way. That review satisfied constitutional law requirements.

7 4. Directive 2009/12/EC of the European Parliament and of the Council of 11 March 2009 on airport charges (OJ L 70 p. 11) - hereinafter "the Directive" - did not dictate an alternative conclusion. The purpose of the remedy procedure of article 6 (3) of the Directive was to ensure that the guarantee of non-discriminatory and transparent charges intended by the Directive was subject to public control but did not aim to confer individual rights on individual airport users. That followed also from article 6 (5) first sentence (a) of the Directive, which permits Member States in certain circumstances not to apply subsections 3 and 4 of that article. The requirement that the decisions of the independent supervisory body shall have binding effect, provided for in article 11 (7) fourth sentence of the Directive, facilitated transparency and the guarantee of non-discriminatory charging systems. Even if article 11 (7) first sentence second half sentence of the Directive was intended to confer on airport users a right to be heard also within the scope of article 6 (5) first sentence (a), that consultation requirement could not substitute for proof of a substantive right to have an administrative act set aside enforceable through bringing proceedings.

8 By its appeal on points of law, the claimant challenges that judgment.

9 Proceedings must be suspended and, in accordance with article 267 (3) of the Treaty on the Functioning of the European Union (TFEU), a preliminary ruling must be obtained from the Court of Justice of the European Union (CJEU) on the questions set out in the decision's operative part. These questions concern the interpretation of Directive 2009/12/EC of the European Parliament and the Council of 11 March 2009 on airport charges (OJ L 70 p. 11), in particular article 3, article 6 (3) to (5) and article 11 (1) and (7) thereof. The interpretation given to the Directive will determine whether the claimant, in its capacity as an airport user, is entitled under section 42 (2) VwGO to challenge the administrative approval of the charging scheme, decided upon by the airport managing body, by way of an action for annulment in the administrative courts.

10 A. National law

11 The legal assessment of the appeal on points of law depends in particular on the provisions set out below, in the material version, of the Code of Administrative Court Procedure as promulgated on 19 March 1991 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 686), last amended by article 5 (2) of the Act of 8 October 2017 (BGBl. I p. 3546), the Civil Aviation Act as promulgated on 10 May 2007 (BGBl. I p. 698), last amended by article 2 (11) of the Act of 20 July 2017 (BGBl. I p. 2808) and the German Civil Code as promulgated on 2 January 2002 (BGBl. I p. 42 and p. 2909; BGBl. 2003 I p. 738), last amended by article 1 of the Act of 20 July 2017 (BGBl. I p. 2787):

12 Section 42 VwGO (action for annulment and action for the issuance of an administrative act)
(1) An action can seek to have an administrative act set aside (action for annulment) or to have the adoption of an administrative act ordered in the event of a refusal or failure to act (action for the issuance of an administrative act).
(2) Except where otherwise provided by law, such an action is admissible only if the claimant asserts that his rights have been infringed by the administrative act or by the refusal or failure to act.

13 Section 19b LuftVG (charging scheme)
(1) The operator of a civil airport or civil landing stage shall adopt a scheme concerning the charges payable for the use of facilities and services related to the lighting, take-off, landing and parking of aircraft and the processing of passengers and freight (charging scheme). The charging scheme shall be submitted to the approval authority for approval. The approval shall be issued where the charges set out in the charging scheme are determined according to criteria that are relevant, objective, transparent and non-discriminatory. It shall be ensured in particular that
1. the chargeable services and infrastructure are clearly defined,
2. the calculation of the charges reflects the costs and is fixed in advance,
3. all aerodrome users are granted access in the same way to the services and infrastructure of the civil airport or civil landing stage,
4. charges of different amounts are not levied on aerodrome users without an objective reason.
A modulation of charges to pursue public or general interests is permitted in relation to civil airports and civil landing stages; the criteria used for this purpose shall be relevant, objective and transparent. The charging scheme for civil airports shall include a modulation of the charges to reflect noise protection issues; in addition, a modulation should be made to reflect polluting emissions.
(2) Subsection 1 shall not apply to (not relevant here).
(3) Notwithstanding subsection 1, for the approval of charging schemes for civil airports with an annual traffic of over five million passenger movements the following shall apply:
1. The operator of a civil airport shall submit to airport users a reasoned proposal for any charging scheme no later than six months before the scheme is intended to enter into force with a view to agreeing the charges. The same shall apply to amendments of the charging scheme. The time-limit specified in the first sentence shall not apply if there are exceptional circumstances which need to be explained to airport users.
2. The application for approval shall be made to the approval authority no later than five months before the intended charging scheme enters into force. The application shall be reasoned. Consideration shall be given to differing views of the airport users. The information listed in numbers 6 and 7 shall be included.
3. The approval shall be granted where the level of charges determined by the civil airport operator is proportionate to the level of the likely actual costs and it is evident that the approach taken is consistent with an efficient service provision. The approval authority may dispense with the review provided for in the first sentence where a written agreement with airport users regarding the charging scheme is submitted by the civil airport operator and state aid law is not infringed.
4. The decision of the approval authority should be taken within two months of receipt of the application for the charging scheme approval. The approval decision shall be published as a rule no later than two months before entering into force in the official air transport gazette Nachrichten für Luftfahrer.
5. The operator of a civil airport shall hold a consultation with airport users at least once a year with respect to the charging scheme. The date of the consultation shall be communicated to airport users at least one month in advance. Airport users may call in their associations or appoint representatives for the consultation.
6. The operator of a civil airport shall provide airport users in good time before the date of the consultation with the following documents and information:
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. This should show that the operator of the civil airport has taken an approach that is consistent with an efficient service provision;
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 civil airport as regards the charges, traffic growth and proposed investments;
g) the actual use of the civil 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. For these purposes, only investments that serve the immediate expansion of the civil airport as a transport facility shall be relevant. Pre-financing should be taken into account only where airport users benefit from improved or less expensive services, the corresponding parts of the charge are used exclusively for the financing of the proposed infrastructure projects and are levied only for a limited period.
7. Airport users shall provide to the operator of a civil airport, in good time before the consultation takes place, in particular the following information:
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.
8. Information provided or received in the framework of the consultation shall be considered as confidential or economically sensitive and be handled accordingly. In the case of companies that are quoted on the stock exchange, stock exchange regulations in particular shall be complied with. Where information is communicated to associations and appointed representatives, airport users shall ensure that confidentiality is maintained.
9. The operator of a civil airport is free to choose whether and, if so, to what extent revenue and costs arising from the airport's other commercial activities are taken into consideration when setting charges.
(4) An airport operator specified in subsection 3 that operates more than one civil airport within a single conurbation may, with the consent of the approval authority, adopt a charging scheme that applies to all civil airports.
(5) In order to ensure smooth and efficient operations at an airport, airport operators specified in subsection 3 and airport users may conclude a service level agreement with regard to the quality of services provided at the airport. In that context, consideration shall be given to the charging scheme and the nature and scope of the services to which airport users are entitled in return for airport charges.
(6) (...)

14 Section 19b LuftVG was recast by article 1 no. 4 of the Fourteenth Act to Amend the Civil Aviation Act (Vierzehntes Gesetz zur Änderung des Luftverkehrsgesetzes) of 8 May 2012 (BGBl. I p. 1032); it replaces the predecessor provision contained in section 43a LuftVZO of 19 June 1964 (BGBl. I p. 370), which until 1 February 2002 was set out, with identical wording, in section 43 LuftVZO.

15 Section 43 and section 43a LuftVZO were worded as follows:
(1) In the case of civil airports, before commencement of airport operations, the airport operator shall submit to the approval authority for its approval a scheme of charges for the take-off, landing and parking of aircraft and for the use of passenger facilities.
(2) (...)

16 The standard to be used in civil courts in reviewing airport charges decided upon by the airport managing body follows from section 315 BGB.

17 Section 315 BGB (Specification of performance by one party):
(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 equitably exercised discretion of the party making it.
(2) The specification is made by declaration to the other party.
(3) Where the specification is to be made at the equitably 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 is made by judicial decision; the same applies if the specification is delayed.

18 B. Material legal issues in the main proceedings and relevance of the questions referred

19 1. Pursuant to section 42 (2) VwGO, the admissibility of the claimant's action for annulment is dependent on the claimant having standing; according to that provision, in as much as the law - as is the case here - does not provide otherwise, the action is admissible only if the claimant asserts that his rights have been infringed by the administrative act or by the refusal to act. The infringement of the claimant's own rights must appear possible on the basis of the arguments advanced in support of the claim. That possibility may only be excluded where evidently no perspective exists from which the claimant's individual rights could be regarded as infringed (established jurisprudence, see, i.a., BVerwG, judgment of 10 October 2002 - 6 C 8.01 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 117, 93).

20 In accordance with the rule of law principle of article 20 (3) in conjunction with article 19 (4) first sentence of the Basic Law (GG, Grundgesetz), judicial protection may not be completely denied to a person concerned. The principle of effective legal protection within the meaning of article 19 (4) first sentence GG demands in the case of public law disputes that a genuinely effective means of judicial control is conferred on an individual with a view to the protection or enforcement of his individual public law rights. That includes a requirement that the court may review the application for legal protection on factual and legal matters and has sufficient decision-making powers to prevent an infringement of rights or to remedy violations of rights that have occurred (established jurisprudence, see, for example, Federal Constitutional Court (BVerfG, Bundesverfassungsgericht), decision of 27 October 1999 - 1 BvR 385/90 [ECLI:DE:BVerfG:1999:rs19991027.1bvr038590] - Rulings of the Federal Constitutional Court (BVerfGE, Entscheidungen des Bundesverfassungsgerichts) 101, 106 <122 et seq.> with further references). The same follows, in the case of civil law disputes, from the general right to have access to justice before a court included within the rule of law principle. It demands the review by a judge, in principle a full review on factual and legal matters, of the subject matter of the dispute (established jurisprudence, see, for example, BVerfG, decision of 12 February 1992 - 1 BvL 1/89 - BVerfGE 85, 337 <345>).

21 2. The claimant would have standing under German law to bring its action for annulment if the defendant's (prior) approval of the charging scheme, decided upon by the summoned third party in its capacity as airport managing body, as required under section 19b (1) second sentence LuftVG has a private law effect, in other words, the possibility to agree different charges is precluded. In establishing the approval requirement, the German legislature made use of the possibility provided for in article 6 (5) first sentence (a) of Directive 2009/12/EC. According to that provision, 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 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.

22 a) The use that airport users make of the facilities and services provided by Berlin-Tegel Airport which are covered by the charging scheme takes place, as is the case at other airports situated in Germany, on a civil law basis. The airport managing body's right to obtain remuneration from the airport user follows from the civil law contract that comes into existence between the parties through the actual use of the airport with the take-off or landing of aircraft. In this legal relationship between an airport managing body and an airport user, charging schemes must be categorised, from a legal perspective, as general terms and conditions unilaterally determined by the airport managing body (established jurisprudence, see, i.a., BVerwG, judgment of 8 July 1977 - VII C 72.74 - (…) para 18 et seq.; Federal Court of Justice (BGH, Bundesgerichtshof), judgment of 18 October 2007 - III ZR 277/06 - Rulings of the Federal Court of Justice in Civil Matters (BGHZ, Entscheidungen des Bundesgerichtshofs in Zivilsachen) 174, 48 <51> with further references). The consensus view is that the recast of section 19b LuftVG has not changed anything in terms of this "fundamental relationship" under civil law, on which the use of an airport is based (see, i.a., Munich Higher Administrative Court (Verwaltungsgerichtshof), decision of 19 May 2014 - 8 A 13 April 0059 [ECLI:DE:BAYVGH:2014:0519.8A13.40059.0A - (...) para. 5; (...)).

23 b) If an approval has private law effect, the contracting parties concerned can assert that their basic right to exercise the general freedom of action specified in article 2 (1) GG has been infringed, which accords them standing pursuant to section 42 (2) VwGO. The general freedom of action within the meaning of article 2 (1) GG 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 on this point, i.a., BVerwG, judgment of 5 August 2015 - 6 C 8.14 [ECLI:DE:BVerwG:2015:050815U6C8.14.0] - BVerwGE 152, 355 para. 12 et seqq. with further references).

24 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. In the regulation of postal and telecommunication charges this is partially the case. For example, section 23 (1) PostG specifies that a licensee shall levy only the charges that have been approved by the regulatory authority. Section 23 (2) first sentence PostG provides that contracts for services that include charges other than those approved shall be effective on condition that the charge approved shall take the place of the charge agreed. Pursuant to section 23 (2) second sentence PostG, contracts shall be considered ineffective where an approved charge is absent notwithstanding a requirement under section 19 PostG for the charge to be approved. The Telecommunications Act contains comparable provisions. Under section 37 (1) TKG, an operator of a public telecommunications network having significant market power may not levy charges other than those approved by the Federal Network Agency (Bundesnetzagentur). Under section 37 (2) TKG, contracts for services that include charges other than those approved shall be effective on condition that the charge approved shall take the place of the charge agreed. Having regard to those provisions, the Federal Administrative Court found that an interference in the private autonomy and a private law effect of the relevant approval results in each case from the fact that a charge set by virtue of public authority takes the place of a charge agreed between the parties (see BVerwG, judgment of 5 August 2015 - 6 C 8.14 - BVerwGE 152, 355 para. 12 and 20).

25 c) Section 19b LuftVG does not include comparable provisions. Nor does the explanatory memorandum contain any indication that the legislature wished to accord the approval requirement of section 19b (1) second sentence LuftVG a private law effect in the abovementioned sense (see Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 17/8098 pp. 1, 11 and 15). Such indications would have been expected. In addition to the legislative provisions in the field of postal and telecommunication services, also the jurisprudence of the Federal Court of Justice and the Federal Administrative Court in relation to sections 43 and 43a LuftVZO was known to the legislature. The Federal Court of Justice had held that the absence of a public approval did not impair the binding private law effect of a charging scheme on airport users and that no immediate pricing law effect resulted from an approval under section 43 (1) LuftVZO (see BGH, judgment of 24 November 1977 - III ZR 27/76 - (...) para 60 et seq.) The Federal Administrative Court had held that an approval granted pursuant to section 43 LuftVZO to an airport operator (= airport managing body) to increase charges concerned only the legal relationship with the addressee of the approval and could not infringe the rights of an air carrier using the airport for landing and parking its aircraft (= airport user) and for that reason the airport user lacked standing (see BVerwG, judgment of 8 July 1977 - VII C 72.74 - (...) para 16 et seqq.)

26 This supports the view that also under section 19b LuftVG airport users and the airport managing body should retain the possibility to establish airport charges that derogate from the approved rates. It must be added that a private law effect of the approval of airport charges and the consequential standing for airport users would involve a fundamental change to the existing system of legal protection. Legal protection for airport users would be transferred from the civil courts to the administrative courts. This raises further issues that were not considered on the recast of section 19b LuftVG. Moreover, in the present appeal proceedings on points of law, the Representative of the Interests of the Federation at the Federal Administrative Court (Vertreter des Bundesinteresses beim Bundesverwaltungsgericht) submitted, in consultation with the Federal Ministry of Transport and Digital Infrastructure (Bundesministerium für Verkehr und digitale Infrastruktur), the Ministry responsible for the draft legislation, that, in discussions with the federal states and trade associations, the Ministry had always taken the position that the legal effect of the approval of the charging scheme should be limited solely - as had been the case hitherto - to the airport operator. The legislature had purposely not provided for a private law effect of that kind.

27 d) These considerations based on national law cannot prevail, however, if Directive 2009/12/EC requires that the airport managing body and airport users are precluded - other than in a situation of a differentiation of services as set out in article 10 of the Directive - from agreeing charges for the use of the airport facilities and services specified in article 2 no. 4 of the Directive that derogate from those approved by the independent supervisory authority in accordance with article 6 (5) first sentence (a) of the Directive. Such interpretation would entail that, for reasons of EU law, the administrative approval pursuant to section 19b LuftVG was binding also in this respect. The administrative approval of the charging scheme set by the airport managing body would thus be accorded a private law effect, as understood under national law; as a consequence this would also establish the standing of airport users within the meaning of section 42 (2) VwGO.

28 A possible argument in support of the view that the parties are strictly bound in this way to the airport charges approved by the independent supervisory authority might be the fact that article 6 (5) first sentence (a) of the Directive permits Member States not to apply article 6 (3) and (4) not only where the airport charges are approved (in advance) by the independent supervisory authority but also where the charges are determined by the supervisory authority itself. In the latter case it appears rather unlikely, however, that a derogation from the charges determined by the authority is intended to be possible; the same would arguably have to apply also to the first group of cases. In both cases, in accordance with article 11 (7) first sentence of the Directive, the independent supervisory authority must reach a decision on whether the level of charges is justified. In addition, article 11 (7) fourth sentence of the Directive provides that decisions of the independent supervisory authority shall have binding effect, without prejudice to parliamentary or judicial review, as applicable in the Member States.

29 As an interpretation of Directive 2009/12/EC is necessary to clarify the EU law effects of an approval of airport charges by the independent supervisory authority in accordance with article 6 (5) first sentence (a) of the Directive and as the outcome of that interpretation is unclear (see CJEU, judgment of 6 October 1982 - 283/81 [ECLI:EU:C:1982:335], CILFIT), a preliminary ruling is to be obtained from the Court of Justice of the European Union in accordance with article 267 (3) TFEU on the first question set out in the operative part.

30 3. Independently of this, an airport user would have standing under section 42 (2) VwGO to seek the annulment of an approval of that kind if section 19b LuftVG were to provide third-party protection in favour of the airport user. For this to operate, it must be possible to derive from individuating constituent elements of the relevant legal provision a category of persons that is sufficiently differentiated from the public at large (established jurisprudence, see, i.a., BVerwG, judgments of 28 November 2007 - 6 C 42.06 - BVerwGE 130, 39 para. 11; and of 3 August 2000 - 3 C 30.99 - BVerwGE 111, 354 <357> with further references). It must follow from the provision's protective purpose, as determined through interpretation, that the provision is intended (also) to further directly the legal interests of that category of persons and does not affect their rights simply in a factual sense, in other words, merely incidentally (established jurisprudence, see, i.a., BVerwG, judgment of 10 October 2002 - 6 C 8.01 - BVerwGE 117, 93 <99>).

31 a) As set out above, on a date at which section 43 LuftVZO applied, and thus before Directive 2009/12/EC entered into force, the Federal Administrative Court held that airport users did not have standing under administrative law to challenge the administrative approval of airport charges determined by the airport operator; the approval did not affect the legal position of an airport user (BVerwG, judgment of 8 July 1977 - VII C 72.74 - (...) para 18 et seq.). Earlier the Federal Court of Justice had held that charges for the take-off and landing of aircraft levied in accordance with a charging scheme approved by the authorities in accordance with section 43 LuftVZO must be asserted in the ordinary courts as they are based on a private law contract for the use of the airport. It considered charging schemes to constitute general terms and conditions of the airport operator which were subject to review by the civil courts pursuant to section 315 (3) BGB. The administrative approval of the unilaterally determined charging scheme did not preclude a review by the civil courts (BGH, judgment of 27 October 1972 - KZR 1/72 - (...)). The Federal Court of Justice confirmed that jurisprudence in two further judgments, adding that the absence of the approval by the state did not impair the private law effectiveness of a charging scheme (BGH, judgments of 24 November 1977 - III ZR 27/76 - (...); and of 23 January 1997 - III ZR 27/96 - (...)).

32 For the reasons already mentioned concerning a possible private law effect of the administrative approval of a charging scheme, there is strong support for the view, also as regards the possibility to derive third-party protection from section 19b LuftVG, that the German legislature did not intend to amend the existing system of legal protection, in other words, that section 19b LuftVG continues not to confer individual rights on airport users.

33 b) Also in this regard, Directive 2009/12/EC, for example the non-discrimination provision of article 3, could require the claimant to be accorded standing within the meaning of section 42 (2) VwGO in order to challenge the approval.

34 aa) That would be the case - in order not to deny the claimant, in its capacity as an airport user, the legal protection required under constitutional law - if a review of the charging scheme by the civil courts in accordance with section 315 BGB did not satisfy the requirements of the Directive. A restriction - for reasons of EU law - of review in the civil courts of approved charges would mean that airport users, were they also unable to access the administrative courts on account of their lack of standing (section 42 (2) VwGO), could not have recourse to legal protection of any kind to contest the determination of the airport charges by the airport managing body. That would not be compatible with national constitutional law. Given the necessity of affording legal protection, in principle full legal protection, through state courts it is, in principle, not acceptable, on constitutional grounds, in the case of state regulated charges, to deny both an administrative court and civil court review of the substantive charges to persons who are required to pay such charges (BVerfG, decision of 28 December 1999 - 1 BvR 2203/98 [ECLI:DE:BVerfG:1999:rk19991228.1bvr220398] - (...)). On that basis, it would be problematic on constitutional grounds to deny to airport users the administrative court review of the legality of the airport charges sought by those users on the grounds that an individual public-law right is absent if also the civil courts do not exercise any review of the substantive legality of the charges (see BVerwG, judgments of 10 October 2002 - 6 C 8.01 - BVerwGE 117, 93 <104 et seq.> on charges under telecommunications law; and of 21 December 1995 - 3 C 34.94 - BVerwGE 100, 230 <236> on the standing of a privately insured patient to challenge the approval of an agreement on nursing charges). Thus, where, by reason of EU law, review by the civil courts is unavailable, this must result, by way of an interpretation of section 19b LuftVG in conformity with the constitution, in a conferral of standing within the meaning of section 42 (2) VwGO.

35 In light of the judgment of the Court of Justice of the European Union of 9 November 2017 - C-489/15 [ECLI:EU:C:2017:834] - (...) on cancellation charges under railway legislation, it cannot be regarded as certain - notwithstanding substantial differences in the EU legislation at issue in that case from the requirements of the Directive on airport charges - that the civil court review of airport charging schemes in accordance with section 315 BGB is compatible with Directive 2009/12/EC.

36 In that judgment, the Court of Justice ruled that the provisions of 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 (OJ L 75 p. 29), as amended by Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004, in particular article 4 (5) and article 30 (1), (3), (5) and (6) of that Directive, as amended, must be interpreted as meaning that they preclude the application of national legislation, such as that at issue in the main proceedings, which provides for a review of the equity of charges for the use of railway infrastructure, on a case-by-case basis, by the ordinary courts and the possibility, if necessary, of amending the amount of those charges, independently of the monitoring carried out by the regulatory body provided for in article 30 of Directive 2001/14/EC, as amended by Directive 2004/49/EC. The Court of Justice based its ruling, inter alia, on the fact that a review of equity in each particular case in accordance with section 315 BGB runs counter to the principle of non-discrimination enshrined in Directive 2001/14/EC (see above, para. 70). The jurisprudence of the civil courts in the framework of section 315 BGB leads to the application of material criteria of assessment as regards equivalence of services, which are not provided for in Directive 2001/14/EC (see above, para. 72). There were practically insurmountable difficulties in integrating, in a non-discriminatory system, the individual judicial decisions given by the civil courts (see above, para. 88). This results, inter alia, at least until the intervention of a supreme court, in discrimination amongst the users of the rail infrastructure, depending on whether or not the railway undertakings have seised a civil court and on the tenor of the decision given by that court, in clear breach of the principle of non-discrimination enshrined in article 4 (5) of Directive 2001/14/EC (see above, para. 89). In addition, the civil courts encroached on the latitude accorded to infrastructure managers under Directive 2001/14/EC (see above, para. 77 et seqq.) and on the exclusive jurisdiction of the regulatory body conferred by article 30 of Directive 2001/14/EC to review charges and enforce the Directive's requirements (see above, para. 84 et seqq.).

37 The principle of non-discrimination is provided for also in article 3 of Directive 2009/12/EC. Its first sentence specifies that Member States shall ensure that airport charges do not discriminate among airport users, in accordance with Community law. Pursuant to the second sentence, this does not prevent the modulation of airport charges for issues of public and general interest, including environmental issues. According to the third sentence, the criteria used for such a modulation shall be relevant, objective and transparent. Thus, it may be asked whether the Court of Justice's considerations set out above can be applied within the scope of Directive 2009/12/EC and, hence, to airport charges and preclude a review by the civil courts in accordance with section 315 BGB of the airport charges decided upon by the airport managing body and approved by the independent supervisory authority.

38 This civil law assessment of fairness takes account of the following principles. According to the established jurisprudence of the Federal Court of Justice (see, summarising the issue, BGH, decision of 7 June 2016 - KZR 12/15 [ECLI:DE:BGH:2016:070616BKZR12.15.0] - (…) para. 18 et seq.), the test of fairness under section 315 BGB requires a weighing of the objective economic interests of both parties and a comprehensive assessment of the purpose of the contract and the significance of the service for which the price is intended to constitute appropriate consideration. This weighing may also take account of further considerations, for example, requirements set out in specific legislation. In this regard, the "fair price" corresponds neither in theoretical or practical terms to a specific amount; rather the holder of the right to determine the price - in this case the airport managing body - retains a latitude that must be exercised in accordance with objective criteria. The specific criteria to be used are not set out in section 315 BGB. Thus, the provision allows for reference to pricing factors which follow from specific legislative provisions applicable to the contractual relationship concerned. For example, as regards contracts for the use of electricity and gas networks, the Federal Court of Justice held that, when exercising its discretion to determine prices, the network operator must be guided by the energy industry objectives of delivering a mains supply of electricity and gas that is, in the interests of the general public, as inexpensive and environmentally sustainable as possible and, in addition, ensuring effective competition (BGH, judgment of 18 October 2005 - KZR 36/04 - (...); on the inclusion of the principles of railway legislation on the calculation of charges in the assessment of fairness, see BGH, judgment of 18 October 2011 - KZR 18/10 - (…) para 17 with further references). Within the range at hand the holder of the right to make the determination usually has several options. The purpose of the civil court review is to assess whether the determination made by that person is within the limits set by section 315 (3) first sentence BGB. The review of equity thus furthers elementary contractual fairness (BGH, judgment of 18 October 2007 - III ZR 277/06 - BGHZ 174, 48 para. 19 et seqq. with further references); it also facilitates the enforcement of the charging principles provided for in EU law. In the case of excessive charges the review in the civil courts pursuant to section 315 (3) BGB results in a judicial recalculation of the amount that stays within the limits of equitable discretion, with ex tunc effect; in that connection, the civil court must respect the principles provided for in the Directive on the determination of charges (see BGH, decision of 7 June 2016 - KZR 12/15 - (...) para 43). Although, initially, a judicial recalculation of the charges has only an inter partes effect, it may be presumed that other users who are in a comparable position to the successful claimant would, after gaining knowledge of the recalculation of the charges in the civil courts, also bring an action such that, overall, a non-discriminatory harmonisation of the charges would result. Although, initially, a judicial recalculation of the charges has only an inter partes effect, it may be presumed that other users who are in a comparable position to the successful claimant would, after gaining knowledge of the recalculation of the charges in the civil courts, also bring an action such that, overall, a non-discriminatory harmonisation of the charges would result.

39 bb) Independently of this, standing for the claimant, in its capacity as an airport user, to challenge the approval is conceivable in light of the rights and powers conferred on airport users under Directive 2009/12/EC.

40 The Directive awards airport users the status of "parties concerned" (article 11 (7) at the end of the first sentence of Directive 2009/12/EC). The system and level of airport charges should, wherever possible, be made in agreement between the airport managing body and airport users (article 6 (2) of Directive 2009/12/EC). The fundamental importance of airport charges to airport users and their "legitimate interest" in a reasonable charging scheme are expressly referred to in the Directive (recitals 13 and 15 of Directive 2009/12/EC). The charging scheme must be transparent and non-discriminatory (article 3 and recitals 4 and 11 of Directive 2009/12/EC).

41 Having regard to the criteria identified according to which the charging scheme must be formed, the legislative provisions of the Directive could be intended also to further the interests of airport users. This applies not least in order to prevent discrimination between individual airport users (see BT-Drs. 17/8098 p. 11 (...)). For this purpose, airport users are granted extensive procedural rights, which, in addition to rights to be informed, consulted and heard, in particular also include the power to trigger a review and approval decision by the supervisory authority.

42 Also in this respect is a preliminary ruling from the Court of Justice of the European Union necessary.