# C_2013156EN.01000701.xml

| 1.6.2013 | EN | Official Journal of the European Union | C 156/7 |
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1.6.2013

EN

Official Journal of the European Union

C 156/7

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Judgment of the Court (Fourth Chamber) of 21 March 2013 (request for a preliminary ruling from the Cour constitutionnelle — Belgium) — Belgacom SA, Mobistar SA, KPN Group Belgium SA v Belgian State

(Case C-375/11) (1)

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(Telecommunication services - Directive 2002/20/EC - Articles 3 and 12 to 14 - Rights to use radio frequencies - Fees for rights to use radio frequencies - One-off fees for grant and renewal of rights to use radio frequencies - Method of calculation - Alteration of existing rights)

2013/C 156/09

Language of the case: French

Referring court

Referring court

Cour constitutionnelle

Parties to the main proceedings

Parties to the main proceedings

Applicants: Belgacom SA, Mobistar SA, KPN Group Belgium SA

Applicants:

Defendant: Belgian State

Defendant:

Re:

Re:

Request for a preliminary ruling — Cour constitutionnelle (Belgium) — Interpretation of Articles 3, 12, 13 and 14(1) and (2) 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) — National rules requiring individual operators holding rights of use for mobile telephone frequencies to pay a one-off fee in the context of authorisations to install and operate on their territory mobile phone networks for a period of 15 years — Renewal of operators’ individual rights — Obligation for applicants for new acquisition of rights to pay a one-off fee, fixed by auction, in addition to the annual fees — Whether permitted

Operative part of the judgment

Operative part of the judgment

| 1. | Articles 12 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 Member State from charging mobile telephone operators holding rights of use for radio frequencies a one-off fee payable for both a new acquisition of rights of use for radio frequencies and for renewals of those rights, in addition to an annual fee for making the frequencies available, intended to encourage optimal use of the resources while at the same time also covering the cost of managing the authorisation, provided that those fees genuinely are intended to ensure optimal use of the resource made up of those radio frequencies and are objectively justified, transparent, non-discriminatory and proportionate in relation to their intended purpose and take into account the objectives in Article 8 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), which it is for the national court to assess.
  Subject to that same condition, the fixing of the amount of a one-off fee for rights of use for radio frequencies by reference either to the amount of the former one-off licence fee calculated on the basis of the number of frequencies and months to which the rights of use relate, or to the amounts raised through auction, may be an appropriate method for determining the value of the radio frequencies. |
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1.

Articles 12 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 Member State from charging mobile telephone operators holding rights of use for radio frequencies a one-off fee payable for both a new acquisition of rights of use for radio frequencies and for renewals of those rights, in addition to an annual fee for making the frequencies available, intended to encourage optimal use of the resources while at the same time also covering the cost of managing the authorisation, provided that those fees genuinely are intended to ensure optimal use of the resource made up of those radio frequencies and are objectively justified, transparent, non-discriminatory and proportionate in relation to their intended purpose and take into account the objectives in Article 8 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), which it is for the national court to assess.

Subject to that same condition, the fixing of the amount of a one-off fee for rights of use for radio frequencies by reference either to the amount of the former one-off licence fee calculated on the basis of the number of frequencies and months to which the rights of use relate, or to the amounts raised through auction, may be an appropriate method for determining the value of the radio frequencies.

| 2. | Article 14(1) of Directive 2002/20 must be interpreted as not precluding a Member State from charging a mobile telephone operator a fee such as that at issue in the main proceedings, provided that that amendment is objectively justified and effected in a proportionate manner and notice has been given to all interested parties in order to enable them to express their views, which it is for the national court to assess in the light of the circumstances at issue in the main proceedings. |
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2.

Article 14(1) of Directive 2002/20 must be interpreted as not precluding a Member State from charging a mobile telephone operator a fee such as that at issue in the main proceedings, provided that that amendment is objectively justified and effected in a proportionate manner and notice has been given to all interested parties in order to enable them to express their views, which it is for the national court to assess in the light of the circumstances at issue in the main proceedings.

| 3. | Article 14(2) of Directive 2002/20 must be interpreted as not precluding a Member State from charging a mobile telephone operator a fee such as that at issue in the main proceedings. |
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3.

Article 14(2) of Directive 2002/20 must be interpreted as not precluding a Member State from charging a mobile telephone operator a fee such as that at issue in the main proceedings.

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(1)  OJ C 282, 24.9.2011.

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