On 25 April 2024, the Court of Justice handed down its judgment in C‑204/23, Autorità di regolazione dei trasporti v Lufthansa and others, on the interpretation of Article 11(5) of Directive 2009/12/EC. The request has been made in proceedings between, on the one hand, the Autorità italiana di regolazione dei trasporti (Italian Transport Regulatory Authority) and, on the other hand, Lufthansa Linee Aeree Germaniche,  Austrian Airlines, Brussels Airlines, Swiss International Air Lines Ltd and Lufthansa Cargo (together: “the airport users concerned’) on the validity of the decision by which such authority set the amount and the methods for paying the contribution intended to finance it for 2019.

Such decision was challenged by the airport users concerned before the Tribunale amministrativo regionale per il Piemonte (Regional Administrative Court of Piedmont), which upheld their action. Therefore, the supervisory authority lodged an appeal before the Consiglio di Stato (Council of State; the “referring court”) which, in light of the need to interpret the relevant European legislation, decided to stay the proceedings and to refer to the Court of Justice three questions a preliminary ruling.

By the first and the second questions, the referring court asked 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.

According to the Court, 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 managing bodies and, on the other, the cost of services provided by the authority. When such a mechanism is established, however, Member States must comply with the general principles of EU law, such as proportionality and non-discrimination.

By the third question, instead, the referring court asked 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 latter’s law.

According to the Court, 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 the latter, whereas airport users established in another Member State are exempt from such contributions even though they use the airports of the first State, would be likely to distort competition between those two categories of users.

Marco Stillo