Opinion of the Advocate General — ECLI:EU:C:2020:593
Date: 2020-07-16
Language of the case: Spanish
Subject matter: Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-764/18 - 1 
Case C-764/18 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
5 December 2018 
Referring court:  
Tribunal Supremo (Spain) 
Date of the decision to refer:  
12 July 2018 
Appellant:  
Ayuntamiento de Pamplona 
Respondent:  
Orange Espagne, S.A.U. 
      
Subject-matter of the case in the main proceedings 
Appeal in cassation brought by the Ayuntamiento de Pamplona (Municipal 
Council of Pamplona) against the judgment of the Sala de lo Contencioso-
Administrativo del Tribunal Superior de Justicia de Navarra (the Administrative 
Division of the High Court of Justice of Navarre) delivered on 15 November 2016 
in appeal proceedings. 
Subject-matter and legal basis of the reference for a preliminary ruling 
Interpretation 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), and in particular Articles 12 and 
13 thereof, in order to determine the compatibility with that directive of the 
Spanish legislation imposing a charge on undertakings providing 
telecommunications services, specifically fixed telephony and Internet services, 
calculated exclusively on the basis of the gross annual revenue obtained by the 
company from the provision of the service in the territory concerned. 
EN 
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Questions referred 
1. Is 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), as interpreted by the Court of Justice in 
relation to undertakings operating in the mobile telecommunications sector, and, 
specifically, the limitations set out in Articles 12 and 13 of that directive on the 
taxation powers of the Member States, applicable to undertakings providing fixed 
telephony and Internet services? 
2. If the first question is answered in the affirmative (and it is held that that 
directive is applicable to providers of fixed telephony and Internet services), do 
Articles 12 and 13 of Directive 2002/20/EC allow Member States to impose a 
charge or fee calculated exclusively by reference to the gross annual revenue 
earned by the company – the proprietor of the installed facilities – from the 
provision of fixed telephony and Internet services in the territory concerned? 
Applicable provisions of EU law 
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 L 108, p. 12): Articles 12 and 13. 
EU case-law relied on 
Judgment of the Court of Justice of 12 July 2012, Vodafone España (C-55/11, 
C-57/11 and C-58/11, EU:C:2012:446). 
Order of the Court of Justice of 30 January 2014, France Telecom España, S.A. 
(C-25/13, EU:C:2014:58). 
Judgment of the Court of Justice of 18 September 2003, Albacom and Infostrada 
(C-292/01 and C-293/01, EU:C:2003:480). 
Relevant provisions of national law 
Ordenanza fiscal n.º 22/2014 del Ayuntamiento de Pamplona, reguladora de la 
tasa por aprovechamientos especiales del suelo, vuelo y subsuelo del dominio 
público local por las empresas explotadoras de servicios de suministros (Tax 
Regulation No 22/2014 of the Municipal Council of Pamplona, regulating the 
charge for special uses of the space on, over or under municipal public land by 
utility companies; ‘Tax Regulation No 22/2014’).  
Ley Foral 2/1995, de 10 de marzo, de Haciendas Locales de Navarra (BOE No 
161, of 7 July 1995) (Regional Law 2/1995 of 10 March on local finances of 
Navarre; ‘Regional Law 2/1995’);  
AYUNTAMIENTO DE PAMPLONA 
 
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Real Decreto Legislativo 2/2004, de 5 de marzo, por el que se aprueba el texto 
refundido de la Ley Reguladora de las Haciendas Locales (BOE No 59, of 9 
March 2004) (Royal Legislative Decree 2/2004 of 5 March, approving the 
consolidated text of the Law on local finances; ‘Royal Legislative Decree 
2/2004’). 
Brief summary of the facts and the procedure in the main proceedings 
1 ORANGE ESPAGNE, S.A.U., submitted to the Municipal Council of Pamplona a 
self-assessment of the charge for the special use of the space on, over or under 
municipal public land corresponding to the second quarter of 2014, as a result of 
the fixed telephony and Internet services provided by that company in the 
municipality of Pamplona. 
2 In its self-assessment, that operator complied with Tax Regulation No 22/2014, 
Article 2 of which provided that the chargeable event for the purpose of the 
charge, in this case, was constituted by ‘the exclusive or special use of the space 
on, over or under municipal public land with cables, pipes and tunnels for ... fixed 
telephony, mobile telephony and other electronic communication services, 
including poles carrying overhead lines, cables, brackets, switch boxes, 
distribution boxes, junction boxes, transformers, rails, scales, antennas, aerials, 
automatic vending devices and other similar devices connected with the provision 
of the service’. 
3 That regulation also provided — in Article 5.1 — that ‘the base on which the rate 
shall be applied in order to calculate the charge shall be determined by the gross 
annual revenue from invoicing that the taxable persons obtain within the 
municipality’, but immediately specified, in the second sentence of Article 5.1, 
that ‘the criteria for determining the tax base do not apply to mobile telephony 
operators’. 
4 In the self-assessment, therefore, the rate (1.5%) set out in Article 6 was applied, 
which resulted in the amount of EUR 7 928.71 payable by the operator (a sum 
which was paid to the municipality), given that its gross revenue amounted to 
EUR 1 188 269.59. 
5 Considering that the EU legislation governing the telecommunications sector (in 
particular, Directive 2002/20/EC) and the case-law of the Court of Justice in 
relation to that legislation was applicable to the charge in question, ORANGE 
ESPAGNE, S.A.U. requested the Municipal Council of Pamplona to rectify its 
self-assessment and, consequently, to reimburse the amount unduly paid. 
6 As grounds for its rectification request, the operator submitted, in essence: (a) that 
ORANGE ESPAGNE, S.A.U. is a user of TELEFÓNICA DE ESPAÑA’s 
networks through interconnection rights and, accordingly, is not the proprietor of 
the networks that run through the municipality of Pamplona; (b) that Directive 
2002/20/EC, as interpreted by the Court of Justice as regards the imposition of 
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taxes and charges on undertakings in the mobile telephony sector is applicable to 
fixed telephony and Internet services; and (c) that imposing a tax calculated 
exclusively as a fixed percentage of the company’s gross revenue is contrary to 
the principles set out in that directive (Articles 12 and 13). 
7 By a decision of 18 September 2014, the Directora de Hacienda del Ayuntamiento 
de Pamplona (Director of Finance of the Municipal Council of Pamplona) rejected 
the request for rectification of the self-assessment on the ground that there was no 
error of law or of fact in that self-assessment and that it complied with the 
applicable tax regulation, as interpreted by the courts and since that regulation 
‘establishes only that mobile telephony operators who are not proprietors of the 
infrastructure but have rights of use, access or interconnection to third-party 
networks must be excluded from the scope of application of the charge’. 
8 An administrative action was brought against that decision, and was dismissed by 
the Juez de lo Contencioso-Administrativo n.º 1 de Pamplona (Administrative 
Court No 1 of Pamplona) by a judgment of 4 December 2015, in which, after 
analysing the case-law of the Court of Justice in its judgment of 12 July 2012, it 
held: (i) that ORANGE ESPAGNE, S.A.U. is, in view of the evidence adduced in 
the judicial proceedings, the proprietor of the infrastructure networks and, as the 
proprietor of those networks, cannot be exempted from the payment of the charge; 
(ii) that the system of calculating the charge is precisely the system authorised by 
the third paragraph of Article 105(1) of Regional Law 2/1995, according to which 
‘charges for the exclusive or special use of the space on, over or under municipal 
public roads by utility companies that affect the general population or a significant 
section of the neighbourhood shall amount to 1.5% of the gross annual revenue 
from invoicing obtained by those companies in each municipality’. 
9 Ruling on an appeal against that judgment, the High Court of Justice of Navarre 
partially upheld that action, holding that the operator was entitled to the 
reimbursement of its self-assessment and declaring unlawful — thereby annulling 
– the term ‘mobile’ in the second subparagraph of Article 5(1) of Tax Regulation 
No 22/2014. In that judgment, it stated, first, that Orange Espagne is the proprietor 
of networks in the municipality of Pamplona. Secondly, it noted that the 
provisions of Articles 12 and 13 of the Authorisation Directive also apply to fixed 
telephony and Internet services and, accordingly, the case-law on those provisions 
are also applicable to fixed telephony and Internet, both as regards the 
impossibility of imposing the charge on operators that are not proprietors of the 
infrastructure installed on public land and as regards the calculation of the charge. 
It therefore held that the charge may be imposed on the proprietor of the networks 
used for the provision of fixed telephony, mobile and Internet services, such as 
ORANGE SPAIN S.A.U., but that the criteria for determining the taxable amount 
laid down in Article 5 of the Tax Regulation are contrary to Articles 12 and 13 of 
the Authorisation Directive, namely (i) the requirement of objectivity or objective 
justification, which is not met where the amount of the charge is determined on 
the basis of a company’s gross revenue or turnover, and (ii) the requirement of 
proportionality, which is not met by a calculation using parameters that result in 
AYUNTAMIENTO DE PAMPLONA 
 
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an amount that goes beyond what is necessary to ensure the optimal use of limited 
resources. 
10 The Municipal Council of Pamplona brought an appeal in cassation against the 
judgment of the Administrative Division of the High Court of Justice of Navarre. 
Principal submissions of the parties to the main proceedings 
11 In its appeal in cassation, the Municipal Council of Pamplona maintains that the 
judgment under appeal is contrary to the case-law laid down by the Court of 
Justice in its judgment of 12 July 2012 since, in its view, that case-law cannot be 
extended to operators providing fixed telephony and Internet services. The 
appellant submits that the interpretation adopted in the judgment under appeal 
extends the interpretative criterion of the Court of Justice not only as regards the 
subject, since it extends it to operators that make genuine use of municipal public 
land with their own networks and infrastructure, but also as regards the system of 
calculating the tax, which expressly refers to mobile operators. 
12 ORANGE ESPAGNE, S.A.U., in opposing the appeal in cassation, submits that 
the case-law set out in the judgment of the Court of Justice of 12 July 2012 
(Joined Cases C-55/11, C-57/11 and C-58/11) is fully applicable to the present 
case, since that judgment concerned the interpretation of EU legislation (the 
Authorisation Directive) which make no distinction between operators of mobile 
telephony services and operators of fixed telephony services. In addition, in 
relation to the method of calculation, ORANGE ESPAGNE, S.A.U. emphasises 
that the Court of Justice has not ruled on that issue, although the Tribunal 
Supremo de España (Supreme Court of Spain) has set out criteria in that respect 
(in the judgment of 15 October 2012, which relied on the Opinion of the Advocate 
General of the European Union in the case that gave rise to the aforementioned 
judgment of 12 July 2012). It therefore argues that that it is absolutely necessary 
that the Court of Justice rule on the limits applicable to the methods of calculating 
the charges imposed for the use of municipal public land by undertakings 
providing electronic communications services. 
Brief summary of the reasons for the request for a preliminary ruling 
13 The chargeable event for the tax imposed in the present case is the ‘the exclusive 
or special use of the space on, over or under municipal public land with cables, 
pipes and tunnels for ... fixed telephony, mobile telephony and other electronic 
communication services, including poles carrying overhead lines, cables, brackets, 
switch boxes, distribution boxes, junction boxes, transformers, rails, scales, 
antennas, aerials, automatic vending devices and other similar devices connected 
with the provision of the service’.  
Pursuant to Article 24 of Royal Legislative Decree 2/2004, and the third 
subparagraph of Article 105(1) of Regional Law 2/1995, undertakings providing 
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telephony services had to pay a special charge – amounting to 1.5% of the gross 
annual revenue from invoicing obtained in the municipality in which they 
operated – for the exclusive or special use of the space on, over or under 
municipal public roads. 
14 The introduction of such requirements in Spanish law (by Law of December 2002) 
resulted in the adoption, by a number of Spanish municipalities, of tax regulations 
intended to lay down a specific charge for the exclusive or special use or 
exploitation of municipal public land by undertakings providing mobile telephony 
services, even if they were not the proprietors of the installations in question. 
15 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), includes the following two provisions:  
‘Article 12: Administrative charges 1. Any administrative charges imposed on 
undertakings providing a service or a network under the general authorisation or 
to whom a right of use has been granted shall: (a) in total, cover only the 
administrative costs which will be incurred in the management, control and 
enforcement of the general authorisation scheme and of rights of use and of 
specific obligations as referred to in Article 6(2), which may include costs for 
international cooperation, harmonisation and standardisation, market analysis, 
monitoring compliance and other market control, as well as regulatory work 
involving preparation and enforcement of secondary legislation and administrative 
decisions, such as decisions on access and interconnection; and (b) be imposed 
upon the individual undertakings in an objective, transparent and proportionate 
manner which minimises additional administrative costs and attendant charges. 2. 
Where national regulatory authorities impose administrative charges, they shall 
publish a yearly overview of their administrative costs and of the total sum of the 
charges collected. In the light of the difference between the total sum of the 
charges and the administrative costs, appropriate adjustments shall be made. 
Article 13: Fees for rights of use and rights to install facilities 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 Directive 
2002/21/EC (Framework Directive).’ 
16 By orders of 28 and 29 October and 3 November 2010, the Supreme Court — 
ruling on cases involving a challenge to the lawfulness of the charge imposed on 
undertakings providing mobile telephony services – referred questions to the 
Court of Justice of the European Union concerning the interpretation of those 
provisions, specifically and in summary: 
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(a)  Whether Member States were entitled to impose a fee for the right to install 
resources not only on the operator who is the proprietor of the electronic 
telecommunications network but also on operators who merely receive 
interconnection services and who, as a result, are limited to having access to 
that network and to using it. 
(b)  Whether the fees at issue satisfied the requirements of Article 13 of the 
Authorisation Directive. 
(c)  Whether Article 13 of the Authorisation Directive fulfilled the conditions 
laid down in the case-law of the Court of Justice to have direct effect. 
(d)  In the alternative, if the Court of Justice were to consider that the charge 
may be applied to operators who are not proprietors of the network that they 
use in order to provide the service, how the amount of that charge should be 
determined. 
17 The Court of Justice ruled on those references for a preliminary ruling in the 
judgment of 12 July 2012, Vodafone España and France Telecom España (Joined 
Cases C-55/11, C-57/11 and C-58/11), in which the Court of Justice held that 
Article 13 of the Authorisation Directive 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 operators which, without being proprietors of those facilities, 
use them to provide mobile telephony services. 
18 The Court reiterated that conclusion in its order of 30 January 2014, France 
Telecom España (C-25/13), as regards operators which provide electronic 
communications services without being proprietors of those facilities. 
19 In the aforementioned judgment of 12 July 2012, Vodafone España and France 
Telecom España (C-55/11, C-57/11 and C-58/11), the Court of Justice did not 
address the question concerning the manner of calculating the charge, which was 
also raised by the Supreme Court of Spain, on the ground that it was unnecessary 
for the resolution of the dispute, since it was clear from the reply to the first 
question that the charge could not be imposed on operators which (i) provided 
mobile telephony services, and (ii) were not the proprietors of the networks used 
to provide the service. 
20 Applying the Court of Justice’s interpretation, the Supreme Court upheld the 
administrative appeals brought by the companies providing mobile telephony 
services against municipal regulations under which, despite the fact that those 
companies were not proprietors of the facilities occupying local public land, they 
were required to pay a charge for their use of those facilities. 
21 Thus, the Court of Justice’s interpretation of the sectoral directives on 
telecommunications and the Supreme Court’s application of those directives 
referred to mobile telephony services as electronic communication services and, in 
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addition, to undertakings that were not proprietors of the networks they used to 
provide the service. 
22 As we stated above, the judgment under appeal is based on a factual element 
which has not been called into question in the present case and which must be 
regarded as undisputed for the purposes of the resolution of the case: ORANGE 
ESPAGNE, S.A.U. is the proprietor in the municipality of Pamplona of the 
networks through which it provides its fixed telephony and Internet services. 
The High Court of Justice of Navarre further concludes that the provisions of 
Articles 12 and 13 of the Authorisation Directive also apply to fixed telephony 
and Internet services ‘and, accordingly, the case-law on these provisions are also 
applicable to fixed telephony and Internet, both as regards the impossibility of 
imposing the fee on those which are not proprietors of the infrastructure installed 
on public land and as regards the calculation of the fee’. 
It therefore concludes that the charge may be imposed on a ‘proprietor of the 
networks for the provision of fixed telephony, mobile and Internet services’, such 
as ORANGE ESPAGNE, S.A.U., but that the criteria for determining the taxable 
base laid down in Article 5 of the Regulation are contrary to Articles 12 and 13 of 
the Authorisation Directive, namely (i) the requirement of objectivity or objective 
justification (which is not satisfied where the amount of the charge is determined 
by the gross income obtained by a company or by its turnover) and (ii) the 
requirement of proportionality (which is not satisfied where a calculation uses 
parameters that lead to an amount that goes beyond what is necessary to ensure 
the optimal use of limited resources). 
That is, in essence, the ratio decidendi of the judgment: although it is legitimate 
and in accordance with the EU legislation to impose a charge on ORANGE 
ESPAGNE, S.A.U. for the fixed telephony and Internet services that it provides in 
the municipality of Pamplona, the amount of that charge – as set out in the 
Regulation – is not proportional to the use or exploitation of public land by that 
operator. 
23 In the judgment of 18 September 2003, Albacom and Infostrada (Cases C-292/01 
and C-293/01) – concerning the interpretation of 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 
telecommunication services (OJ L 117, p. 15), in particular Articles 6 and 11 
thereof (which are very similar to the current Articles 12 and 13 of the 
Authorisation Directive, which replaced it) – the Court of Justice concluded that 
that directive prohibits Member States from imposing financial charges consisting 
of a percentage of turnover on undertakings which hold individual licences in the 
telecommunications sector, solely because they hold such licences and for 
carrying out that activity. That judgment was delivered in the context of a dispute 
in Italy concerning the tax imposed on ‘public telephony and mobile and personal 
communications services’. 
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24 It has already been pointed out that the Spanish law (the consolidated text of the 
Ley de Haciendas Locales de 2004), in regulating the calculation of the charges 
for the exclusive or special use of the space on, over or under municipal public 
roads by companies providing services of general interest or which affect the 
general public or a significant section of the neighbourhood, sets the amount of 
that charge at 1.5% of the gross annual revenue from invoicing earned by those 
companies in the municipality and expressly excludes mobile telephony services 
from the charge. 
25 As can be seen from the above, the Court of Justice of the European Union has not 
expressly ruled that Directive 2002/20/EC of the European Parliament and of the 
Council of 7 March 2002 (Authorisation Directive) is applicable to operators of 
fixed telephony and Internet services. Furthermore, although that conclusion may 
be inferred from its order of 30 January 2014 in Case C-25/13, it is undisputed 
that the Court of Justice has not yet ruled on the requirements flowing from the 
Authorisation Directive in relation to the calculation of the charge payable by 
operators which are proprietors of the networks via which they provide their fixed 
telephony and Internet services. We note, in connection with the lack of case-law 
in that respect, that in the judgment of the Court of Justice of 12 July 2012, 
Vodafone España and France Telecom España (Joined Cases C-55/11, C-57/11 
and C-58/11), after stating that the only person that may be charged the fee for the 
rights to install facilities referred to in Article 13 of the Authorisation Directive 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’, it did not answer – on the 
ground that it was unnecessary to do so – the second question referred by the 
Supreme Court of Spain, namely, whether the conditions in accordance with 
which the fee is required under Spanish law ‘meet the requirements of objectivity, 
proportionality and non-discrimination’ laid down in Article 13, together with the 
need to ensure the optimal use of the resources concerned. 
26 In summary: (i) the Court of Justice’s interpretation of the sectoral directives on 
telecommunications and the Supreme Court’s application of those directives 
referred to mobile telephony services; (ii) it is not clear from the case-law of the 
Court of Justice whether the limitations and constraints arising from Articles 12 
and 13 of the Authorisation Directive also apply to fixed telephony and Internet 
services and (iii) nor has the Court of Justice ruled — as regards those articles of 
the Authorisation Directive — on the calculation of the charge or fee for the 
exclusive of special use of public land from the perspective of compliance with 
the principles of transparency, objectivity, proportionality and non-discrimination 
referred to in those provisions of the directive. 
27 The outcome of the dispute therefore depends on whether the Authorisation 
Directive is applicable to the present case (operators of fixed telephony and 
Internet services) and, in the event that it is applicable, on the correct 
interpretation of Articles 12 and 13 of that directive as regards a manner of 
calculating the charge or fee consisting of a percentage applied to the gross 
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revenue of the operator obtained from the provision of those services in the 
territory concerned. 
28 A reference for a preliminary ruling is appropriate where there is reasonable doubt 
as to the interpretation of EU law, that is to say, where the terms of the EU 
legislation do not point to a single interpretation that would be self-evident not 
only to the competent court but also to the other Member States (judgment of the 
Court of Justice of the European Union of 6 October 1982, Cilfit, Case C-283/81). 
In the present case, there are doubts in relation to the application of the 
Authorisation Directive to fixed telephony and Internet operators and, especially, 
as regards the interpretation of the provisions of that directive relating to the 
calculation of the charge or fee payable by the proprietors of the relevant 
networks, such as the operator in the present case in relation to the services it 
provides in the municipality of Pamplona. 
We do not consider, with the certainty indicated in the judgment under appeal, 
that the Authorisation Directive is undoubtedly applicable to the present case and, 
especially, that the manner of calculating the charge (by a percentage applied to 
the gross revenue obtained by the operator concerned in the relevant territory) 
breaches – again, with the certainty and confidence demonstrated in that judgment 
–  the requirements of transparency, objectivity and proportionality referred to in 
Articles 12 and 13 of that directive. 
29 In short, it is appropriate to make a reference for a preliminary ruling to the Court 
of Justice of the European Union, pursuant to Article 267 of the Treaty on the 
Functioning of the European Union, concerning both the application of that 
directive to fixed telephony and Internet services (provided, in this case, in the 
municipality of Pamplona through facilities owned by the operator) and the 
interpretation to be given to its provisions (specifically Articles 12 and 13) when 
determining or calculating the charge or fee that may be payable.