Proximus (Judgment) [2015] EUECJ C-517/13 (17 December 2015)

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(Reference for a preliminary ruling — Electronic communications networks and services — Directive 97/13/EC — Articles 4 and 11 — Directive 2002/20/EC — Article 6 — Conditions which may be attached to the general authorisation and to the rights of use for radio frequencies and numbers, and specific obligations — Article 13 — Fee for the rights to install facilities — Scope — Provincial legislation — Charge on mobile telephony network transmission and reception pylons and/or units)

REQUEST for a preliminary ruling under Article 267 TFEU from the tribunal de première instance de Namur (Court of First Instance, Namur, Belgium), made by decision of 11 September 2013, received at the Court on 27 September 2013, in the proceedings

Proximus SA, formerly Belgacom SA, continuing the proceedings brought by Belgacom Mobile SA

composed of M. Ilešič, President of the Second Chamber, acting as President of the Third Chamber, C. Toader, D. Šváby, E. Jarašiūnas (Rapporteur) and C.G. Fernlund, Judges,

having regard to the written procedure and further to the hearing on 3 September 2015,

– Proximus SA, formerly Belgacom SA, continuing the proceedings brought by Belgacom Mobile SA, by H. De Bauw and B. Den Tandt, advocaten,

– the Belgian Government, by J. Van Holm and M. Jacobs, acting as Agents, assisted by Me J. Bourtembourg, avocat,

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

1 This request for a preliminary ruling concerns the interpretation of Articles 6 and 13 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ 2002 L 108, p. 21) (‘the authorisation directive’).

2 This request has been made in proceedings between Proximus SA, formerly Belgacom SA, continuing the proceedings brought by Belgacom Mobile SA, and the Province of Namur concerning a charge on mobile telephony network transmission and reception pylons and units installed in that province.

3 Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services (OJ 1997 L 117, p. 15) was repealed, with effect from 25 July 2003, by Article 26 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33) (‘the framework directive’).

4 As is clear from recitals 1, 3, 4 and 5 in the preamble thereto, Directive 97/13 was among the measures adopted for the complete liberalisation of telecommunications services and infrastructures. To that end, Directive 97/13 established a common framework applicable to authorisation schemes, intended to facilitate significantly the entry of new operators onto the market. In addition to laying down rules relating to authorisation procedures and the content of those authorisations, that framework set out rules concerning the nature and scope of financial payments relating to those procedures that Member States could impose on undertakings in the field of telecommunications services.

5 Article 4 of Directive 97/13, entitled ‘Conditions attached to general authorisations’, provided in its paragraph 1 as follows:

‘Where Member States subject the provision of telecommunications services to general authorisations, the conditions which, where justified, may be attached to such authorisations are set out in points 2 and 3 of the Annex. Such authorisations shall entail the least onerous system possible consistent with enforcing the relevant essential requirements and relevant other public interest requirements set out in points 2 and 3 of the Annex.’

6 Article 11 of that directive, entitled ‘Fees and charges for individual licences’, provided:

‘1. Member States shall ensure that any fees imposed on undertakings as part of authorisation procedures seek only to cover the administrative costs incurred in the issue, management, control and enforcement of the applicable individual licences. The fees for an individual licence shall be proportionate to the work involved and be published in an appropriate and sufficiently detailed manner, so as to be readily accessible.

2. Notwithstanding paragraph 1, Member States may, where scarce resources are to be used, allow their national regulatory authorities to impose charges which reflect the need to ensure the optimal use of these resources. Those charges shall be non-discriminatory and take into particular account the need to foster the development of innovative services and competition.’

7 Article 1 of the authorisation directive, entitled ‘Objective and scope’, states in its paragraph 2:

‘This Directive shall apply to authorisations for the provision of electronic communications networks and services.’

8 Article 2 of the authorisation directive, entitled ‘Definitions’, in its paragraph 2(a) defines ‘general authorisation’ as ‘a legal framework established by the Member State ensuring rights for the provision of electronic communications networks or services and laying down sector specific obligations that may apply to all or to specific types of electronic communications networks and services, in accordance with this Directive’.

9 Article 6 of the authorisation directive relates to the conditions which may be attached to the general authorisation and to the rights of use for radio frequencies and numbers, and to specific obligations. Paragraph 1 states:

‘The general authorisation for the provision of electronic communications networks or services and the rights of use for radio frequencies and rights of use for numbers may be subject only to the conditions listed respectively in parts A, B and C of the Annex. Such conditions shall be objectively justified in relation to the network or service concerned, non-discriminatory, proportionate and transparent.’

10 Article 13 of the authorisation directive, entitled ‘Fees for rights of use and rights to install facilities’, provides as follows:

‘Member States may allow the relevant authority to impose fees for the rights of use for radio frequencies or numbers or rights to install facilities on, over or under public or private property which reflect the need to ensure the optimal use of these resources. Member States shall ensure that such fees shall be objectively justified, transparent, non-discriminatory and proportionate in relation to their intended purpose and shall take into account the objectives in Article 8 of [the framework directive].’

11 On 17 October 1997, the conseil provincial de Namur (provincial council of Namur) adopted a tax regulation imposing an annual charge on mobile telephony network transmission and reception pylons and units in respect of the 1998 tax year (‘the tax regulation’).

12 The tax regulation states, in Article 1, that that charge is applicable to ‘[mobile telephony] network transmission and reception pylons and units, installed in the Province of Namur’.

13 According to Article 2 of that tax regulation, ‘the natural or legal person operating the [mobile telephony] network transmission and reception pylons and units is liable to pay’ the charge.

14 Article 3 of the tax regulation provides that the amount of the charge at issue is BEF (Belgian Francs) 100 000 (approximately EUR 2 478) per pylon and BEF 50 000 (approximately EUR 1 239) per mobile telephony network transmission and reception unit.

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

15 It is apparent from the file before the Court that Belgacom Mobile SA, predecessor in law to Belgacom SA, now Proximus SA, is the operator of a public communications network and that it is thus the owner and operator of mobile telephony network transmission and reception pylons and units, installed in the Province of Namur.

16 In 1999, the authorities of the Province of Namur issued a notice of assessment pursuant to the tax regulation, imposing the charge at issue in the main proceedings, in a total amount of EUR 328 458.92, on Belgacom Mobile SA in respect of the 1998 tax year. An objection was lodged against that notice of assessment with the governor of the province. When that complaint was rejected, Belgacom Mobile SA brought proceedings before the tribunal de première instance de Namur (Court of First Instance, Namur) on 14 June 2000.

17 In support of its action before the referring court, Belgacom Mobile SA claims that the tax regulation is not compatible with the authorisation directive, since it imposes a charge which falls within the scope of that directive and does not fulfil the conditions laid down in Article 13 thereof.

18 The Province of Namur contends that the authorisation directive is not applicable in this case, since the charge at issue in the main proceedings is neither a charge linked to the general authorisation to operate an electronic communications network nor a fee linked to the installation of facilities on or under public or private property.

19 In the light of those observations, the referring court is uncertain as to the compatibility of the charge at issue in the main proceedings with the authorisation directive.

20 In those circumstances, the tribunal de première instance de Namur (Court of First Instance, Namur) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Must Article 13 of [the authorisation directive] be interpreted as precluding legislation of a national or local authority which imposes, for budgetary purposes outside the purposes of that authorisation, a tax on mobile communications infrastructures used in the context of performing activities covered by a general authorisation granted pursuant to that directive (as the case may be, distinguishing the situation in which those infrastructures are established on private property from the situation in which they are established on public property)?

(2) Must Article 6(1) of [the authorisation directive] be interpreted as precluding legislation of a national or local authority which imposes, for budgetary purposes outside the purposes of that authorisation, a tax on mobile communications infrastructures which does not feature among the conditions listed in Part A of the annex to that directive, in particular as it does not constitute an administrative charge within the terms of Article 12 [of that directive]?’

21 At the outset, it should be noted that the request for a preliminary ruling refers to the authorisation directive. The Court will provide, consequently, the interpretation of that directive requested by the referring court. However, that directive, pursuant to its Article 19, entered into force on the day of its publication in the Official Journal of the European Communities, namely 24 April 2002, and, according to its Article 18, was applicable only from 25 July 2003. It is apparent from the order for reference that the objective of the main proceedings, brought by Belgacom Mobile SA on 14 July 2000, is the annulment of a notice of assessment issued in 1999, when Directive 97/13 was still in force.

22 However, in the event that the referring court should ultimately find that the dispute in the main proceedings falls within the scope of Directive 97/13, it should be stated that the answers given in this judgment to the questions raised are applicable to the previous legislative act.

23 It must be noted that, in essence, Article 6(1) of the authorisation directive corresponds to Article 4(1) of Directive 97/13, since those provisions both seek to restrict the conditions that Member States might or may attach to the general authorisation. Moreover, Article 13 of the authorisation directive corresponds to Article 11(2) of Directive 97/13, since both of those provisions aim to restrict the possibility for Member States of levying, under certain conditions, fees while taking account of the need to ensure optimal use of scarce resources, and to promote competition, the development of the internal market and the promotion of the interests of the citizens of the European Union. It is apparent from the fact that those provisions correspond that the interpretation of the provisions of the authorisation directive is applicable to the provisions of Directive 97/13.

24 By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Articles 6 and 13 of the authorisation directive must be interpreted precluding a charge, such as that at issue in the main proceedings, being imposed on any natural or legal person operating mobile telephony network transmission and reception pylons and/or units.

25 Pursuant to Article 1(2) of the authorisation directive, that directive applies to authorisations for the provision of electronic communications networks and services.

26 That directive lays down not only rules governing the procedures for granting general authorisations or rights to use radio frequencies or numbers and the content of those authorisations but also rules setting out the nature and scope of the financial payments related to those procedures which Member States may impose on undertakings in the electronic communications services sector (see judgments in Belgacom and Mobistar, C‑256/13 and C‑264/13, EU:C:2014:2149, paragraph 29, and Base Company, C‑346/13, EU:C:2015:649, paragraph 15).

27 Thus, according to the Court’s settled case-law, Member States may not, within the framework of the authorisation directive, levy any charges or fees in relation to the provision of networks and electronic communication services other than those provided for by that directive (judgment in Base Company, C‑346/13, EU:C:2015:649, paragraph 16; see also, to that effect, judgments in Vodafone España and France Telecom España, C‑55/11, C‑57/11 and C‑58/11, EU:C:2012:446, paragraphs 28 and 29, and Belgacom and Mobistar, C‑256/13 and C‑264/13, EU:C:2014:2149, paragraph 30).

28 It follows that, for the provisions of the authorisation directive to be applicable to a charge such as that at issue in the main proceedings, the trigger for that charge must be linked to a general authorisation procedure, which ensures, under Article 2(2)(a) of the authorisation directive, rights for the provision of electronic communications networks or services (judgment in Base Company, C‑346/13, EU:C:2015:649, paragraph 17; see also, to that effect, judgments in Fratelli De Pra and SAIV, C‑416/14, EU:C:2015:617, paragraph 41; Commission v France, C‑485/11, EU:C:2013:427, paragraphs 30, 31 and 34; and Vodafone Malta and Mobisle Communications, C‑71/12, EU:C:2013:431, paragraphs 24 and 25).

29 In that regard, the Court has noted that Article 6 of the authorisation directive relates to the conditions and specific obligations attached to the general authorisation and to the rights of use for radio frequencies and for numbers. That article provides that the general authorisation for the provision of electronic communications networks or services and the rights of use for radio frequencies and rights of use for numbers may be subject only to the conditions listed respectively in parts A, B and C of the annex to that directive (judgment in Belgacom and Mobistar, C‑256/13 and C‑264/13, EU:C:2014:2149, paragraph 26).

30 Moreover, it has noted that Article 13 of the authorisation directive does not concern all fees to which infrastructure permitting the provision of networks and electronic communication services are subject (judgments in Belgacom and Mobistar, C‑256/13 and C‑264/13, EU:C:2014:2149, paragraph 34, and Base Company, C‑346/13, EU:C:2015:649, paragraph 18).

31 That article concerns the conditions under which fees may be imposed for the rights of use for radio frequencies or numbers or rights to install facilities on, over or under public or private property (judgments in Belgacom and Mobistar, C‑256/13 and C‑264/13, EU:C:2014:2149, paragraph 31, and Base Company, C‑346/13, EU:C:2015:649, paragraph 19).

32 In the present case, it is apparent from the order for reference that ‘the natural or legal person operating the [mobile telephony] network transmission and reception pylons and units is liable to pay’ the charge at issue in the main proceedings.

33 As the observations submitted to the Court reveal, the trigger for that charge, which is imposed on all natural or legal persons operating mobile telephony network transmission and reception pylons and/or units, whether or not they have an authorisation granted pursuant to the authorisation directive, does not appear to be linked to a general authorisation procedure entitling undertakings to provide electronic communications networks and services or linked to the general authorisation within the meaning of Article 6(1) of the authorisation directive, although that is a matter to be determined by the referring court.

34 Moreover, according to the case-law of the Court, the terms ‘facilities’ and ‘install’, used in Article 13 of the authorisation directive, respectively refer to the physical infrastructure enabling provision of electronic communications networks and services and to their physical installation on the public or private property concerned (judgments in Belgacom and Mobistar, C‑256/13 and C‑264/13, EU:C:2014:2149, paragraph 33, and Base Company, C‑346/13, EU:C:2015:649, paragraph 21).

35 Accordingly, although the charge at issue in the main proceedings is imposed on all natural or legal persons operating mobile telephony network transmission and reception pylons and/or units, which constitute physical infrastructure enabling provision of electronic communications networks and services, it does not appear that that charge has the characteristics of a fee which is imposed on undertakings providing electronic communications networks and services in return for the right to install facilities.

36 In the light of the foregoing, the answer to the questions referred is that Articles 6 and 13 of the authorisation directive must be interpreted as not precluding a charge, such as that at issue in the main proceedings, being imposed on any natural or legal persons operating mobile telephony network transmission and reception pylons and/or units.

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

Articles 6 and 13 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) must be interpreted as not precluding a charge, such as that at issue in the main proceedings, being imposed on any natural or legal persons operating mobile telephony network transmission and reception pylons and/or units.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Proximus (Judgment) [2015] EUECJ C-517/13 (17 December 2015) URL: http://www.bailii.org/eu/cases/EUECJ/2015/C51713.html Cite as: [2015] EUECJ C-517/13, EU:C:2015:820, ECLI:EU:C:2015:820

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