Opinion of the Advocate General — ECLI:EU:C:2012:162
Date: 2012-03-22
Language of the case: Spanish
Subject matter: Telecommunications
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary of the Judgment 1. Court proceedings — Oral procedure — Reopening — Conditions (Rules of Procedure of the Court of Justice, Art. 61) 2. Approximation of laws — Telecommunications sector — Electronic communications networks and services — Authorisation — Directive 2002/20 — Scope ratione personae — Fees for rights to install facilities on, over or under public or private property — Operators which are not proprietors of those facilities but use them to provide mobile telephony services — Not included (European Parliament and Council Directive 2002/20, Art. 13) 3. Approximation of laws — Telecommunications sector — Electronic communications networks and services — Authorisation — Directive 2002/20 — Article 13 — Subjection to a fee for certain rights — Direct effect (European Parliament and Council Directive 2002/20, Art. 13) 1. See the text of the decision. (see para. 23) 2. Article 13 of Directive 2002/20 on the authorisation of electronic communications networks and services must be interpreted as precluding the imposition of a fee for the right to install facilities on, over or under public or private property on operating undertakings which, without being proprietors of those facilities, use them to provide mobile telephony services. First, it follows from the first indent of Article 11(1) of Directive 2002/21 on a common regulatory framework for electronic communications networks and services that the rights to install facilities on, over or under public or private property are granted to an undertaking authorised to provide public communications networks, namely to one which is entitled to install the necessary facilities on, under or in the spaces above the ground. Second, the terms ‘facilities’ and ‘install’ 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 respectively. Accordingly, the only person who may be charged the fee for the rights relating to the installation of facilities referred to in Article 13 of Directive 2002/20 is the holder of those rights, who is also the proprietor of the facilities installed on, over or under the public or private property concerned. (see paras 31-33, 35, operative part 1) 3. Article 13 of Directive 2002/20 on the authorisation of electronic communications networks and services has direct effect and therefore it grants individuals the right to rely upon it before the national courts to dispute the application of a decision by a public authority that is incompatible with that article. That provision provides, in unconditional and precise terms, that Member States may impose fees for rights in three specific cases, namely for the rights of use for radio frequencies or numbers or for the rights to install facilities on, over or under public or private property. (see paras 38, 39, operative part 2)