Judgment — ECLI:EU:C:2011:141
Date: 2011-03-10
Language of the case: Spanish
Court formation: Third Chamber
Subject matter: Right of establishment;Freedom to provide services;Telecommunications
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary of the Judgment Approximation of laws – Telecommunications sector – Common framework for general authorisations and individual licences – Directive 97/13 – Fees and charges applicable to undertakings holding individual licences – Optimal use of scarce resources – Imposition of a charge on holders of individual licenses for the use of radio frequencies (European Parliament and Council Directive 97/13, Art. 11(2)) The requirements, laid down in Article 11(2) of Directive 97/13 on a common framework for general authorisations and individual licences in the field of telecommunications, that a charge imposed on operators of telecommunications services for the use of scarce resources must seek to ensure optimal use of those resources and must take into account the need to foster the development of innovative services and competition, are to be interpreted as not precluding national legislation which provides for a fee to be levied on operators of telecommunications services holding individual licences for the use of radio frequencies, but does not allocate a specific use to the income derived from that fee, and which significantly increases the fee for one particular technology but leaves it unchanged for another. Directive 97/13 does not in any way indicate that those requirements would mean that such a charge must be used for a particular purpose, or that a particular use must be subsequently made, of the income from that charge, by the Member State concerned. It follows that the Member State concerned may freely use that income. Furthermore, those requirements cannot preclude Member States from establishing, for the purposes of determining the amount of that charge, a distinction, even a significant one, between, on the one hand, the digital or analogue technology used and, on the other, within each technology, the different uses which are made of it, so that equality of opportunity is secured as between the various economic operators. In addition, those requirements cannot, in principle, prevent Member States from increasing, even significantly, the charge payable for one particular technology in response to both technical and economic developments on the market for telecommunications services, but leaving unchanged the charge for another technology, provided that the different amounts imposed reflect the respective economic values of the uses made of the scarce resource. Lastly, the mere fact that such an increase in the amount of the charge is substantial does not in itself mean that this is incompatible with the purpose that a charge for the use of scarce resources must have under Article 11(2) of Directive 97/13, in so far as the requirements arising from that purpose are respected, that is to say, provided that the charge is neither excessive nor too low. (see paras 32, 34-36, 40, operative part)