Administrative Court declares DFS charge calculation model legally valid

20.09.2017.- The calculation model used by DFS for the calculation of air navigation services charges is legal. This was decided by the Darmstadt Administrative Court on Tuesday with regard to terminal charges levied on the airline Ryanair. The Irish airline had filed an action against a total of 24 invoices for charges from 2012 and 2013, alleging that the calculation basis was unlawful. The Court has now rejected the substance of this action.

The legal dispute revolved around the Ordinance on Terminal Charges of the Air Navigation Services issued by the German Federal Ministry of Transport. Ryanair challenged the provisions of this ordinance. The ordinance lays down, inter alia, that the terminal charges are to be based on the maximum take-off mass of an aircraft. If an aircraft manufacturer allows the choice between several maximum take-off masses, the highest of the maximum take-off masses permitted per aircraft is the one taken for the calculation.

This was and still is the case with the Boeing 737-800 aircraft type used by Ryanair. Depending on the route length and the amount of jet fuel required, this aircraft can be operated with alternative maximum take-off masses of just under 75, 72 and 67 tonnes. Airlines have the choice of either operating this type of aircraft with a flexible weight or setting one of the three maximum take-off masses. For the calculation of charges, such a limit must be documented in what is known as a certificate of airworthiness or an equivalent official document. Should the airline waive the option of taking a documented fixed mass, it can operate the aircraft with the maximum take-off mass. This is then the basis for the calculation of the charges. This means that it is irrelevant whether the airline makes use of this possibility in individual cases.

Ryanair had indicated to DFS that it operates all of its B 737-800s in the lowest take-off mass class. However, doubts about this arose in 2012, as the airline also flies to destinations that would be impossible to reach with this low mass due to the increased amount of jet fuel needed. During spot checks at Bremen and Hahn airports, the German Federal Aviation Office (Luftfahrtbundesamt) found that Ryanair aircraft exceeded the stated maximum take-off mass. In the absence of evidence that the aircraft operated by Ryanair were certified solely for a lower maximum take-off mass class, DFS then adapted the calculation of the terminal charges for Ryanair aircraft to reflect these findings. In addition, DFS retrospectively – until 2009 – charged the airline for the difference between the lower charges and the rate that Ryanair should have paid.

Ryanair paid these claims only under protest and, following an unsuccessful appeal in 2014, filed a lawsuit against these invoices. The airline was demanding around EUR 500,000 back of the charges it had paid. The airline argued that DFS should not have calculated the charges - as stipulated in the charging ordinance - on the basis of the maximum take-off mass officially documented for the aircraft type, but on the basis of the maximum take-off mass of each individual flight.

The Darmstadt Administrative Court has rejected this argumentation. The seventh chamber accepted the legal opinion of DFS. It found that Ryanair has to allow the calculation to be based on the maximum take-off mass in each case, unless it presents official proof of a lower take-off mass. Only in one case, the first repayment for the year 2009, did the court recognise a partial formal flaw in the decision and partially reversed it. This means that DFS has to pay back EUR 47,000 to Ryanair. The Court ruled that the remaining claims, which add up to more than EUR 450,000, were legally admissible.

The decision is of fundamental importance to DFS, as Ryanair only paid the terminal charges for the subsequent years as conditional payments. These were not the object of the lawsuit. The verdict confirms that the charges invoiced by DFS were properly calculated. The new European regulation on the calculation of air navigation services charges, which has been in force since 2013, also applies the highest take-off mass when several maximum take-off masses exist. From the point of view of DFS, the verdict of the Administrative Court can be applied to the new legal situation and en-route charges. The verdict is not yet legally binding.

DFS Deutsche Flugsicherung GmbH, the German air navigation service provider, is a State-owned company under private law with 5,430 employees as at 30 June 2017. DFS ensures the safe and punctual flow of air traffic over Germany. Around 2,000 air traffic controllers guide up to 10,000 flights in German airspace every day, about three million movements every year. This makes Germany the country with the highest traffic volume in Europe. The company operates control centres in Langen, Bremen, Karlsruhe and Munich as well as control towers at 16 international airports in Germany. The subsidiary, DFS Aviation Services GmbH, markets and sells products and services related to air navigation services as well as providing air traffic control at nine regional airports in Germany and at London Gatwick Airport in the UK.