Case C-375/11

Belgacom SA and Others

v

Belgian State

(Request for a preliminary ruling from the Cour constitutionnelle (Belgium)]

‛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’

Summary — Judgment of the Court (Fourth Chamber), 21 March 2013

Approximation of laws — Telecommunications sector — Electronic communications networks and services — Authorisation — Directive 2002/20 — Amendments to rights and obligations — Charge to holders of rights of use for radio frequencies of a one-off fee payable for both a new acquisition of rights of use for radio frequencies and for renewals of those rights — Amendment not constituting a restriction or withdrawal of the rights of use for radio frequencies — Lawfulness

Approximation of laws — Telecommunications sector — Electronic communications networks and services — Authorisation — Directive 2002/20 — Amendments to rights and obligations — Charge to holders of rights of use for radio frequencies of a one-off fee payable for both a new acquisition of rights of use for radio frequencies and for renewals of those rights — Lawfulness — Conditions — Determination by the national court

Approximation of laws — Telecommunications sector — Electronic communications networks and services — Authorisation — Directive 2002/20 — Fees for rights of use and rights to install facilities — Charge to holders of rights of use for radio frequencies of a one-off fee payable for both a new acquisition of rights of use for radio frequencies and for renewals of those rights — Fixing of the amount of that one-off fee — Reference either to the amount of the former one-off licence fee calculated on the basis of the number of frequencies and period of time to which the rights of use relate, or to the amounts raised through auction — Lawfulness — Conditions — Determination by the national court

Approximation of laws — Telecommunications sector — Electronic communications networks and services — Authorisation — Directive 2002/20 — Fees for rights of use and rights to install facilities — Procedure for granting rights of use for radio frequencies — Procedure for renewing those rights — Application of the same scheme

Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — General or hypothetical questions — Question on the interpretation of Directive 2002/20 as to whether it allows Member States to charge a one-off fee to mobile telephone operators hoping to acquire new rights to use radio frequencies — Admissibility

See the text of the decision. (see paras 30-32)

In the telecommunications sector, regarding the charging of a one-off fee, Directive 2002/20 on the authorisation of electronic communications networks and services refers only to the procedure for granting rights of use for radio frequencies and does not contain any specific provision laying down the conditions for the procedure for renewing previously-allocated rights of use for radio frequencies. However, as individual rights of use are granted by a Member State for a limited period, renewal of an authorisation must be regarded as a granting of new rights for a new period. Consequently, under Directive 2002/20, the procedure for granting rights of use for radio frequencies and the procedure for renewal of those rights must be subject to the same scheme. Accordingly, Article 13 of that directive must be applied in the same way to both procedures. (see paras 37-39)

Articles 12 and 13 of Directive 2002/20 on the authorisation of electronic communications networks and services 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, and also to a fee 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 on a common regulatory framework for electronic communications networks and services, 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. (see paras 48, 54, 55, operative part 1)

Article 14(1) of Directive 2002/20 on the authorisation of electronic communications networks and services must be interpreted as not precluding a Member State from charging a mobile telephone operator 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, and also to a fee covering the cost of managing the authorisation, 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. (see paras 60, 62, operative part 2)