Court of Justice of the European Communities (including Court of First Instance Decisions)

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JUDGMENT OF THE COURT (Eighth Chamber)

25 April 2024 (*)

(Reference for a preliminary ruling – Air transport – Airport charges – Directive 2009/12/EC – Article 11(5) – Funding for the independent supervisory authority – Contribution from airport users – Criteria for taxation)

In Case C‑204/23,

REQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 24 March 2023, received at the Court on 28 March 2023, in the proceedings

Autorità di regolazione dei trasporti

v

Lufthansa Linee Aeree Germaniche,

Austrian Airlines,

Brussels Airlines,

Swiss International Air Lines Ltd,

Lufthansa Cargo,

intervening party:

Presidenza del Consiglio dei Ministri,

THE COURT (Eighth Chamber),

composed of N. Piçarra (Rapporteur), President of the Chamber, N. Jääskinen and M. Gavalec, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        Lufthansa Linee Aeree Germaniche, Austrian Airlines, Brussels Airlines, Swiss International Air Lines Ltd and Lufthansa Cargo, by F.L. Arrigoni, avvocato,

–        the Italian Government, by G. Palmieri, acting as Agent, and by M. De Vergori and de S.L. Vitale, avvocati dello Stato,

–        the European Commission, by P.A. Messina and B. Sasinowska, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Article 11(5) 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 the Autorità di regolazione dei trasporti (Italian Transport Regulatory Authority, Italy; ‘the supervisory authority’), on the one hand, and Lufthansa Linee Aeree Germaniche, Austrian Airlines, Brussels Airlines, Swiss International Air Lines Ltd and Lufthansa Cargo (together ‘the airport users concerned’) concerning the validity of a decision of the supervisory authority which set the amount and the methods of payment of the contribution intended to finance that authority for 2019.

 Legal context

 European Union law

3        Recital 12 of Directive 2009/12 states:

‘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.’

4        Article 2 of that directive provides:

‘For the purposes of this Directive:

…

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;

…’

5        Under Article 3 of that directive, entitled, ‘Non-discrimination’, ‘Member States shall ensure that airport charges do not discriminate among airport users, in accordance with Community law’.

6        Article 11 of that directive, entitled ‘Independent supervisory authority’, provides, in paragraphs 3 and 5 thereof:

‘3.      Member States shall guarantee the independence of the independent supervisory authority by ensuring that it is legally distinct from and functionally independent of any airport managing body and air carrier. Member States that retain ownership of airports, airport managing bodies or air carriers or control of airport managing bodies or air carriers shall ensure that the functions relating to such ownership or control are not vested in the independent supervisory authority. Member States shall ensure that the independent supervisory authority exercises its powers impartially and transparently.

…

5.      Member States may establish a funding mechanism for the independent supervisory authority, which may include levying a charge on airport users and airport managing bodies.’

 Italian law

7        Article 37(6)(b) of decreto legge n. 201 – Disposizioni urgenti per la crescita, l’equità e il consolidamento dei conti pubblici (Decree-Law No 201 on urgent provisions for growth, fairness and the consolidation of public accounts) of 6 December 2011 (GURI No 284 of 6 December 2011, Ordinary Supplement No 251), converted into law, with amendments, by legge n. 214 (Law No 214) of 22 December 2011 (GURI No 300 of 27 December 2011, Ordinary Supplement No 276), in the version applicable to the dispute in the main proceedings (‘Law No 214/2011’), provides:

‘The exercise of the powers referred to in paragraph 2 and the activities referred to in paragraph 3, as well as the exercise of the other powers and activities assigned by law, shall be provided for as follows:

…

b)      by means of a financial contribution paid by the economic operators operating in the transport sector and for whom the [supervisory authority] has specifically initiated, in the market in which they operate, the exercise of the powers or the performance of the activities provided for by the law, to an extent not exceeding 0.1% of the turnover received in the previous financial year deriving from the exercise of the activities carried out, with exemption thresholds taking into account the size of the turnover. Turnover is calculated in such a way as to avoid duplication of contributions. The amount of the financial contribution is determined annually by an act of the [supervisory authority], subject to the approval of the President of the Council of Ministers, in agreement with the Minister for Economy and Finance. Comments may be addressed, within a period of 30 days, to the [supervisory authority], which shall comply with them. In the absence of comments, the act shall be deemed to have been approved.’

 The dispute in the main proceedings and the questions referred for a preliminary ruling

8        On 19 December 2018, the supervisory authority adopted, on the basis of Article 37(6)(b) of Law No 214/2011, a decision which set the amount and the methods of payment of the contribution due to that authority by airport users for 2019.

9        The airport users concerned brought an action before the Tribunale amministrativo regionale per il Piemonte (Regional Administrative Court, Piedmont, Italy) against that decision.

10      After that court upheld their action, the supervisory authority lodged an appeal before the Consiglio di Stato (Council of State, Italy), the referring court, claiming, first, that economic operators in the transport sector come within the scope of the entities required to pay the contribution provided for in Article 37(6)(b) of Law No 214/2011 and, secondly, that, in the aviation sector, which is governed by Directive 2009/12, the supervisory authority exercises its powers with regard to both airport managing bodies and airport users.

11      For their part, the airport users concerned submit that the contribution, based on turnover, which they owe under the supervisory authority’s decision, is a general tax that is not connected to the provision of a specific service, unlike the charge referred to in Article 11(5) of Directive 2009/12. Consequently, the Italian legislation is contrary to Article 11(5) of that directive in so far as it provides for a financial contribution intended to cover all the costs of that authority without linking that contribution to actual operating costs. Furthermore, if all airport users, and not only those established in the Member State covered by the relevant supervisory authority or incorporated under the law of that Member State, were required to contribute to financing supervisory authorities in several Member States, that would create a multiplication of abnormal costs for them in a manner contrary to the spirit of that directive.

12      The referring court considers that Article 37(6)(b) of Law No 214/2011 does not, prima facie, infringe EU law, in so far as, under Article 11(3) and (5) of Directive 2009/12, Member States are entitled to secure funding for supervisory authorities by imposing a financial contribution on airport users to obtain those funds.

13      While accepting that an airport charge is distinct from financial contributions not linked to a specific service, since the former constitutes consideration for a service, that court notes that the funding mechanism ‘which may include levying a charge’, provided for in Article 11(5) of that directive, does not exclude a form of funding independent from the performance of a specific service. In any event, according to that court, the national practice takes account, in the multi-phase procedure established in Article 37(6)(b) of Law No 214/2011, of the correlation between the amount of the contribution in question and the operating costs of the supervisory authority.

14      The referring court adds that the introduction of a common framework for airport charges, provided for by Directive 2009/12, is intended to ensure uniform treatment not only among EU airport managing bodies but also among airport users such as air carriers, from which it infers that a possible restriction of the contribution in question to airport users established in a national territory could distort competition.

15      In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Must Article 11(5) of [Directive 2009/12] – [the provision] relating to the airport sector – be interpreted as meaning that the funding of the [supervisory authority] must be carried out only by means of levying airport charges, or may it … also be carried out by means of other forms of funding such as levying a financial contribution ([the Consiglio di Stato (Council of State)] finds that collecting the sums intended to fund the [supervisory authority] by means of levying airport charges is merely an option for Member States)?

(2)      Must the charges or the financial contribution which may be levied for the funding of the supervisory authority pursuant to Article 11(5) of [Directive 2009/12] relate only to specific services and costs – which, in any event, are not referred to in [that directive] – or is their correlation to the [supervisory authority’s] operating costs as resulting from the financial statements submitted to and audited by the public authorities … sufficient?

(3)      Must Article 11(5) of [Directive 2009/12] be interpreted as meaning that charges may be levied only on persons resident or incorporated under the law of the State which established the [supervisory authority], and can this also apply in the case of financial contributions levied for the operation of [that authority]?’

 Consideration of the questions referred

 The first and second questions

16      By its first and second questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 11(5) of Directive 2009/12, must be interpreted as precluding national legislation under which funding for an independent supervisory authority is secured by levying a financial contribution on airport users, the amount of which does not correlate to the cost of services provided by that authority.

17      Under Article 11(5) of Directive 2009/12, ‘Member States may establish a funding mechanism for the independent supervisory authority, which may include levying a charge on airport users and airport managing bodies’.

18      In the first place, it should be noted that the ‘charge’ referred to in that provision is distinct from the ‘airport charge’ within the meaning of point 4 of Article 2 of that directive. First, that airport charge is levied ‘for the benefit of the airport managing body’ defined in point 2 of Article 2 of that directive, whereas a ‘charge’, referred to in Article 11(5) thereof, may, in particular, be levied on airport managing bodies. Secondly, the consideration for the ‘airport charge’, within the meaning of point 4 of Article 2 of that directive, comprises ‘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’. The provision of those services does not fall within the scope of the powers of the ‘independent supervisory authority’, referred to in Article 11 of that directive.

19      In the second place, it is clear from the wording of Article 11(5) of Directive 2009/12 that establishing a funding mechanism for supervisory authorities is merely an option for Member States and not an obligation. The same is true of levying a charge on airport users, as defined in point 3 of Article 2 of that directive, for the purpose of that funding.

20      It follows that, when Member States decide, in accordance with Article 11(5) of Directive 2009/12, to establish a funding mechanism for their supervisory authorities, they are not required to establish a correlation between, on the one hand, the amount of the contribution they impose on airport users and airport managing bodies and, on the other, the cost of services provided by such an authority.

21      However, when such a mechanism is established, Member States must comply with the general principles of EU law, such as the principle of proportionality and the principle of non-discrimination (see, by analogy, judgments of 23 April 2009, Angelidaki and Others, C‑378/07 to C‑380/07, EU:C:2009:250, paragraphs 83 and 85, and of 5 May 2011, Ze Fu Fleischhandel and Vion Trading, C‑201/10 and C‑202/10, EU:C:2011:282, paragraph 37).

22      In accordance with the principle of proportionality, the national legislation implementing a funding mechanism for the supervisory authority, pursuant to Article 11(5) of Directive 2009/12, must not go beyond what is necessary to achieve the intended objective of that provision (see, to that effect, judgment of 8 February 2018, Lloyd’s of London, C‑144/17, EU:C:2018:78, paragraph 32 and the case-law cited), namely, as is apparent from the third paragraph of Article 11, read in the light of recital 12 of that directive, to grant that authority the resources in terms of staffing, technical expertise and financial means capable of allowing it to carry out its functions impartially, transparently and completely independently.

23      As regards the prohibition of discrimination between airport users, that prohibition is provided for in Article 3 of Directive 2009/12, so far as concerns airport charges, within the meaning of point 4 of Article 2 of that directive, and stems directly from the principle of non-discrimination concerning the charges or contributions imposed on those users pursuant to Article 11(5) of that directive.

24      In light of the foregoing considerations, the answer to the first and second questions is that Article 11(5) of Directive 2009/12 must be interpreted as not precluding national legislation under which funding for an independent supervisory authority is secured by levying a financial contribution on airport users, the amount of which does not correlate to the cost of services provided by that authority, in so far as such legislation complies with the general principles of EU law, in particular the principles of proportionality and non-discrimination.

 The third question

25      By its third question, the referring court asks, in essence, whether Article 11(5) of Directive 2009/12, must be interpreted as precluding national legislation under which funding for an independent supervisory authority is secured by levying a financial contribution on airport users, even if they are not established in the Member State covered by that authority or incorporated under the law of that Member State.

26      In that regard, it should be noted, in the first place, that the wording of Article 11(5) of Directive 2009/12 does not restrict the application of the funding mechanism for the independent supervisory authority to certain categories of airport users, on the basis of their establishment in the Member State concerned or their incorporation under the law of that Member State.

27      In the second place, as has been noted, in essence, by both the referring court and the European Commission in its written observations, a restriction of the contributions imposed in respect of funding the independent supervisory authority of a Member State only to airport users established in the territory of that Member State, whereas airport users established in another Member State are exempt from such contributions, even though the latter use the airports of the first Member State, would be likely to distort competition between those two categories of airport users.

28      In the light of the foregoing, the answer to the third question is that Article 11(5) of Directive 2009/12, must be interpreted as not precluding national legislation under which funding for an independent supervisory authority is secured by levying a financial contribution on airport users, even if they are not established in the Member State covered by that authority or incorporated under the law of that Member State.

 Costs

29      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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.

On those grounds, the Court (Eighth Chamber) hereby rules:

1.      Article 11(5) of Directive 2009/12/EC of the European Parliament and of the Council of 11 March 2009 on airport charges

must be interpreted as not precluding national legislation under which funding for an independent supervisory authority is secured by levying a financial contribution on airport users, the amount of which does not correlate to the cost of services provided by that authority, in so far as such legislation complies with the general principles of EU law, in particular the principles of proportionality and non-discrimination.

2.      Article 11(5) of Directive 2009/12

must be interpreted as not precluding national legislation under which funding for an independent supervisory authority is secured by levying a financial contribution on airport users, even if they are not established in the Member State covered by that authority or incorporated under the law of that Member State.

[Signatures]

*      Language of the case: Italian.

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