CELEX: 62003CC0544
Language: en
Date: 2005-04-07 00:00:00
Title: Opinion of Mr Advocate General Léger delivered on 7 April 2005. # Mobistar SA v Commune de Fléron (C-544/03) and Belgacom Mobile SA v Commune de Schaerbeek (C-545/03). # Reference for a preliminary ruling: Conseil d'État - Belgium. # Article 59 of the EC Treaty (now, after amendment, Article 49 EC) - Telecommunications services - Directive 90/388/EEC - Article 3c - Lifting of all restrictions - Communal taxes on pylons, masts and transmission antennae for GSM. # Joined cases C-544/03 and C-545/03.

OPINION OF ADVOCATE GENERAL
      LÉGER
      delivered on 7 April 2005 (1)
      
      Joined Cases C-544/03
      Mobistar SA
      v
      Commune de Fléron
      and C-545/03
      Belgacom Mobile SA
      v
      Commune de Schaerbeek
      (References for a preliminary ruling from the Conseil d’État (Belgium))
      (Telecommunications – Directive 97/13/EC – Municipal legislation imposing a tax on mobile telephony infrastructures – Unlawfulness)1.     In these cases, the Conseil d’État (Belgium) asks the Court of Justice to interpret Article 49 EC and Article 3c of Commission
         Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services, (2) as amended by Directive 96/2/EC (3) (hereinafter ‘the Directive’). It asks whether those provisions preclude municipal legislation imposing an annual tax on
         transmission antennae, masts and pylons for GSM (‘Global system for mobile communications’). 
      
      I –  The relevant national legislation and the main proceedings 
      2.     Two regulations are at issue in the main actions. The first was adopted by the conseil communal de Schaerbeek at its sitting
         of 8 October 1997. It imposed, for the financial years 1997 to 1999, an annual tax on ‘external antennae’, that is to say,
         satellite dishes and GSM relay antennae. The amount of the tax, which is payable by the owner of the antenna, is fixed at
         BEF 100 000 (EUR 2 478.94) for GSM relay antennae and BEF 5 000 (EUR 123.95) for satellite dishes.
      
      3.     The second regulation was adopted by the conseil communal de Fléron on 27 January 1998. It imposes, with effect from 1 January
         1998 and for a period of three years, an annual tax on transmission pylons, masts and antennae for GSM. The amount of the
         tax, which is also payable by the owner of the antenna, is, in this case too, BEF 100 000 (EUR 2 478.94) per antenna.
      
      4.     Those two regulations are the subject-matter of actions brought before the Consel d’État by mobile telephony operators, established
         in Belgium, in this case Mobistar SA (hereinafter ‘Mobistar’) and Belgacom Mobile SA (hereinafter ‘Belgacom Mobile’). Both
         operators seek the annulment of the taxes at issue, claiming, inter alia, that they are contrary to Article 49 EC and Article
         3c of the Directive, since they constitute unlawful restrictions on the development of their telecommunications network and
         on the freedom to provide mobile telephony services.
      
      II –  Community legislation 
      5.     The aim of the Directive is to liberalise the telecommunications sector. Based on Article 90(3) of the EC Treaty (now Article
         86(3) EC), it initially required the withdrawal of exclusive or special rights to supply telecommunications services other
         than satellite communications, mobile telephony and voice telephony. 
      
      6.     It was subsequently amended several times in order to extend its scope to satellite communications, in 1994, (4) mobile and personal communications services and systems, in 1996, (5) and then, also in 1996, all voice telephony and telecommunications services, including the establishment and the provision
         of the networks required for the provision of such services. (6)
      
      7.     With regard more specifically to mobile telephony, the first amendment introduced in 1996 was designed to enable operators
         to operate and develop their telephony networks for those activities which are allowed by the licences or authorisations,
         including the free choice of underlying facilities. (7) Such a step was seen as essential in order to overcome current distortions of fair competition and, in particular, to allow
         operators control over their cost base. (8) Thus, Article 3c of the Directive, inserted by Directive 96/2, provided:
      
      ‘Member States shall ensure that all restrictions on operators of mobile and personal communications systems with regard to
         the establishment of their own infrastructure, the use of infrastructures provided by third [parties] and the sharing of infrastructure,
         other facilities and sites, subject to limiting the use of such infrastructures to those activities provided for in their
         licence or authorisation, are lifted.’
      
      8.     Part of the legislative framework established by those provisions was subsequently amended and replaced by Commission Directive
         2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services. (9) However, this directive is not applicable to the present case rationae temporis. 
      
       III – The references for a preliminary ruling 
      9.     The Conseil d’État, before which the actions have been brought by Belgacom Mobile and Mobistar, states that the question whether
         the contested regulations are compatible with Directive 96/2, in so far as that directive prohibits restrictions on the development
         of mobile communications networks, calls for an interpretation of the term ‘restriction’.
      
      10.   It explains that, while this term is not defined in either Article 1 or in Article 3c of the Directive, the recitals in the
         preamble to Directive 96/2 appear to suggest that the restrictions in question are only of a technical nature, as they refer,
         for example, to ‘removing restrictions on the free choice of underlying facilities used by operators of mobile networks for
         the operation and development of their networks’ (first recital) and to the fact that ‘the number of licences granted is still
         ... subject to technical restrictions such as a ban on using infrastructure other than those provided by the telecommunications
         organisation’ (fourth recital).
      
      11.   The Conseil d’État states that it would be wrong, however, to conclude that the restrictions to be lifted by Member States
         are exclusively of a technical nature, or that the list of technical restrictions in the preamble to Directive 96/2 is exhaustive:
         Article 3c of the Directive expressly refers to ‘all’ restrictions on infrastructure, so that a reasonable doubt exists as
         to whether Article 3c may also cover taxation measures which apply to mobile communication infrastructures. 
      
      12.   The Conseil d’État adds that the matter of whether the contested taxes are compatible with primary Community law, in this
         case Article 49 EC, is also in issue.
      
      13.   In those circumstances, it decided to stay proceedings and to refer the following two questions to the Court of Justice for
         a preliminary ruling: 
      
      ‘1.      Must Article 49 [EC] be interpreted as precluding the introduction, by legislation of a national or local authority, of a
         tax on mobile and personal communications infrastructures used to carry on activities provided for in licences and authorisations?
      
      2.      Given that Article 3c of Directive 90/388 ... refers to the lifting of “all restrictions”, does that article preclude the
         introduction, by legislation of a national or local authority, of a tax on mobile and personal communications infrastructures
         used to carry on activities provided for in licences and authorisations?’ 
      
      III –   Analysis 
      14.   Although the two questions referred by the Conseil d’État relate exclusively to Article 49 EC and Article 3c of the Directive,
         I agree with what was stated during the hearing before the Court, that the main action must be decided taking account also
         of other legislation applicable to this case, namely 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 telecommunications services.
         (10)
      
      15.   It is apparent from the preamble thereto (11) that this directive forms part of the measures adopted by the legislature to ensure the complete liberalisation of telecommunications
         services and infrastructures from 1 January 1998. To that end, Directive 97/13 establishes a common framework for the regimes
         of general authorisations and individual licences granted by Member States in the field of telecommunications services: in
         order significantly to facilitate the entry of new operators into the market, (12) it required the regimes to be based on objective, transparent, non-discriminatory and proportionate criteria. (13) From that point of view, Directive 97/13 lays down tax provisions which seek to promote competition and to restrict the financial
         charges which Member States may impose on undertakings in the telecommunications sector.
      
      16.   It follows that, where Member States decide, as in this case, to impose fiscal charges on mobile telephony operators holding
         an authorisation or individual licence, (14) they are required to comply with the provisions of Directive 97/13. That directive is therefore relevant in order to resolve
         the disputes in the main actions because it might, on its own, lead the Conseil d’État to rule out application of the contested
         municipal regulations. I therefore suggest, in accordance with the case-law of the Court, (15) that the Court provide the Conseil d’État with any necessary ruling on the interpretation of that directive. 
      
      A –    Directive 97/13 
      17.   The relevant provisions of Directive 97/13 are contained in Articles 6 and 11. 
      18.   Article 6 is entitled ‘Fees and charges for general authorisations procedures’. It provides: 
      ‘Without prejudice to financial contributions to the provision of universal service in accordance with the Annex, Member States
         shall ensure that any fees imposed on undertakings as part of the authorisation procedures seek only to cover the administrative
         costs incurred in the issue, management, control and enforcement of the applicable general authorisation scheme. Such fees
         shall be published in an appropriate and sufficiently detailed manner, so as to be readily accessible.’ 
      
      19.   Article 11 of Directive 97/13 is entitled ‘Fees and charges for individual licences’. It is worded as follows: 
      ‘1. Member States shall ensure that any fees imposed on undertakings as part of authorisation procedures seek only to cover
         the administrative costs incurred in the issue, management, control and enforcement of the applicable individual licences.
         The fees for an individual licence shall be proportionate to the work involved and be published in an appropriate and sufficiently
         detailed manner, so as to be readily accessible. 
      
      2. Notwithstanding paragraph 1, Member States may, where scarce resources are to be used, allow their national regulatory
         authorities to impose charges which reflect the need to ensure the optimal use of these resources. Those charges shall be
         non-discriminatory and take into particular account the need to foster the development of innovative services and competition.’
         
      
      20.   The content and scope of those provisions was clarified by the Court in its judgment of 18 September 2003 in Albacom and Infostrada. (16)
      
      21.   Those cases involved an Italian law (17) introducing a charge for the installation and provision of telecommunications networks, the provision of telephony and mobile
         and personal communications services. The charge was to be paid by the holders of concessions for telecommunications services
         or of individual licences. It was calculated as a percentage of turnover of the services provided in the previous year, that
         is, 3% for 1999, 2.7% for 2000, 2.5% for 2001, 2% for 2002 and 1.5% for 2003. 
      
      22.   The companies Albacom and Infostrada, which both held individual licences, challenged the charge at issue on the ground that
         it was contrary to Article 11 of Directive 97/13.
      
      23.   When the case was referred for a preliminary ruling, the Court found that the contested charge did not come under any of the
         cases mentioned in Articles 6 and 11 of Directive 97/13: it did not seek to cover the administrative costs relating to the
         authorisation procedure or to ensure the use of scarce resources or to finance the provision of universal service within the
         meaning of those provisions. (18)
      
      24.   The Italian Government maintained that the contested charge was therefore not prohibited. Since Article 11(2) of Directive
         97/13 allowed Member States to impose additional charges in the case of scarce resources, it had also to be possible for them
         to impose additional charges which, as in the present case, were intended to contribute to investments made by the State in
         order to liberalise the telecommunications sector. (19)
      
      25.   The Court rejected that argument for two reasons. First, it held that the wording of Article 11 of Directive 97/13 called
         for a restrictive interpretation. (20) Article 11(1) expressly provides that Member States are to ensure that any fees imposed on undertakings as part of authorisation
         procedures seek only to cover the administrative costs incurred by the licensing system and, in relation to that general provision,
         Article 11(2) inserts a reservation which is strictly limited to the case of ‘scarce resources’. 
      
      26.   The Court also considered that, if Member States were free to establish the financial charges to be borne by telecommunications
         undertakings in respect of authorisation procedures, the common framework established by Directive 97/13 would be rendered
         redundant. (21) The aim of the framework is to harmonise the nature and scope of the financial charges, related to authorisation procedures,
         which Member States may impose on undertakings in the sector, with the aim of removing obstacles to the freedom to provide
         telecommunications services and to make a significant contribution to the entry of new operators into the market. (22) The Court therefore considered that, if the Italian Republic were allowed to maintain the contested charge, that would effectively
         reintroduce a significant obstacle to the liberalisation process and would therefore be contrary to the aims of Directive
         97/13.
      
      27.    It follows that the list of financial charges which Member States may impose on telecommunications undertakings in respect
         of authorisation procedures or the authorisations themselves is exhaustive: if the charge in question does not fall into one
         of the categories established by Directive 97/13, it is prohibited. 
      
      28.   In the present case, the parties agree that the contested taxes do not come under any of the cases expressly mentioned in
         Articles 6 and 11 of Directive 97/13.
      
      29.    In their observations, the communes of Schaerbeek and Fléron stated that the contested regulations pursued two objectives,
         one more important than the other. (23) The first, and principal, objective is purely fiscal: for the communes, it is a question of obtaining enough revenue to cover
         all the costs engendered by their activities. The commune of Fléron even stated that, in that regard, the contested taxes
         had the same characteristics as any other tax, in that they are imposed on the taxpayer merely because he exercises a certain
         profession or activity. The second objective of the contested regulations, which is secondary, is environmental: the communes
         wish to avoid a proliferation of external antennae on their territory and to obtain compensation for the aesthetic harm caused
         by the presence of those antennae.
      
      30.   It is therefore apparent that the contested charges do not fall into any of the three categories mentioned in Articles 6 and
         11 of Directive 97/13: they do not seek to cover the administrative costs relating to the procedure to authorise or grant
         the licences, or to finance the provision of universal service, or to ensure the use of ‘scarce resources’ within the meaning
         of Article 11(2) of Directive 97/13. 
      
      31.   The file also shows that those three categories of costs are covered by other levies, introduced by the Royal Decree of 7
         March 1995 on the establishment and operation of GSM mobile telephony networks, (24) as amended. (25) Accordingly, Article 15(1) of that decree provides that operators holding an authorisation are to pay an annual charge of
         BEF 10 000 000 (EUR 247 893.52) to cover the ‘administration costs of the authorisation’ and an annual charge of BEF 1 000 000
         (EUR 24 789.35) for the ‘costs of providing the frequencies’. In addition, Article 15a of the Royal Decree provides that operators
         holding an authorisation are required to make a financial contribution to a Fund for the universal telecommunications service,
         in accordance with the laws and regulations in force.
      
      32.   It follows that the contested taxes do not fall into the categories of financial charges authorised by Directive 97/13.
      33.   However, at the hearing, the Commission of the European Communities maintained that the contested taxes could be regarded
         as charges designed to ensure optimum use of ‘scarce resources’ within the meaning of Article 11(2) of that directive; in
         the present case, those resources would be the transmission antennae for GSM. 
      
      34.   I do not believe this argument can be upheld. Irrespective of the fact that, in Directive 97/13, the term ‘scarce resources’
         covers primarily other aspects, such as the numbers available or, as in the Royal Decree, the radio frequencies, (26) the parties agree that, in this case, the contested taxes were not adopted in order to ensure that the transmission antennae
         for GSM were shared between the various mobile telephony operators. We have seen that the taxes were introduced mainly with
         the aim of obtaining tax revenue and, secondarily, to compensate for the aesthetic and environmental disadvantages caused
         by the presence of those antennae.
      
      35.   At the hearing the Commission also submitted that the judgment in Albacom and Infostrada  cannot be applied to this case. It pointed out that Articles 6 and 11 of Directive 97/13 applied only to charges imposed ‘as
         part of the authorisation procedures’ and that, in that judgment, there was a direct link between the holding of the licence
         and the contested charge: the charge in question was imposed on telecommunications undertakings simply because they held a
         licence. According to the Commission, there is no such link in the present case, since the contested charge is not payable
         by the holder of the licence but by the owner of the antenna.
      
      36.   I agree with Mobistar that this argument is excessively formalistic. It is clear that, in practice, the persons who are owners
         of transmission antennae for GSM also hold a licence or authorisation within the meaning of Directive 97/13. Furthermore,
         the Commission has not cited any example of cases in which mobile telephony infrastructure is in the possession of a person
         other than the person authorised to set up and operate a mobile telephony network under an authorisation or licence. 
      
      37.   In those circumstances, I consider that the provisions of Directive 97/13 preclude the maintenance of the contested taxes.
      B –    Article 49 EC and Article 3c of the Directive
      38.   Having regard to those factors, the questions referred by the Conseil d’État regarding the interpretation of Article 49 EC
         and Article 3c of the Directive have become devoid of purpose. 
      
      IV –  Conclusion 
      39.   In the light of the foregoing considerations, I therefore propose that the Court give the following reply to the questions
         referred for a preliminary ruling by the Conseil d’État:
      
      Directive 97/13/EC 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 telecommunications services, and in particular Article 11, must be interpreted as
         precluding municipal legislation introducing an annual tax on mobile and personal communications infrastructures where the
         owner of the infrastructure holds a licence within the meaning of those provisions.
      
      1 –	Original language: French.
      
      2 –	OJ 1990 L 192, p. 10. 
      
      3 – 	Commission Directive 96/2/EC of 16 January 1996 amending Directive 90/388 with regard to mobile and personal communications
         (OJ 1996 L 20, p. 59).
      
      4 –	Commission Directive 94/46/EC of 13 October 1994 (OJ 1994 L 268, p. 15).
      
      5 –	Directive 96/2.
      
      6 –	Commission Directive 96/19/EC of 13 March 1996, with regard to the implementation of full competition in telecommunications
         markets (OJ 1996 L 74, p. 13). Directive 90/388 was also subject to other amendments, introduced by Commission Directive 95/51/EC
         of 18 October 1995 with regard to the abolition of the restrictions on the  use of cable television networks for the provision
         of already liberalised telecommunications services (OJ 1995 L 256, p. 49), and by Commission Directive 1999/64/EC of 23 June
         1999 in order to ensure that telecommunications networks and cable TV networks owned by a single operator are separate legal
         entities (OJ 1999 L 175, p. 39). 
      
      7 –	First recital in the preamble to Directive 96/2.
      
      8 –	Ibid.
      
      9 –	OJ 2002 L 249, p. 21.
      
      10 –	OJ 1997 L 117, p. 15. Under Article 25 of Directive 97/13, Member States were required to bring into force the laws, regulations
         and administrative provisions necessary to comply with the directive and publish the conditions and procedures attached to
         authorisations ‘as soon as possible and, in any event, not later than 31 December 1997’. In respect of the period between
         the date on which that directive came into force, 27 May 1997, and the time-limit for transposing it, 31 December 1997, it
         need only be noted that, according to the case-law, the Member States were required, during that period, to ‘refrain from
         taking any measures liable seriously to compromise the result prescribed’ (Case C-129/96 Inter-Environnement Wallonie [1997] ECR I-7411, paragraph 45). 
      
      11 – 	First, third and fifth recitals. 
      
      12 –	Fifth recital.
      
      13 –	Second and third recitals.
      
      14–	It is apparent from the documents before the Court that Mobistar and Belgacom Mobile were authorised to set up and operate
         a GSM network in Belgium under an individual authorisation issued by the Minister for Telecommunications, on 27 November 1995
         for Mobistar (see Mobistar’s written observations, point 3) and on 2 July 1996 for Belgacom Mobile (see Belgacom Mobile’s
         written observations, point 1, and the Royal Decree of 2 July 1996 granting Belgacom Mobile an authorisation to operate a
         GSM mobile telephony network, attached to Annex 1 of those observations). 
      
      15 –	It is settled case-law of the Court that, in order to provide a helpful answer to the national court which has referred
         a question to it for a preliminary ruling, the Court may deem it necessary to consider provisions of Community law to which
         the national court has not referred in its question (see inter alia the judgments in Case 35/85 Tissier [1986] ECR 1207, paragraph 9; Case C-107/98 Teckal [1999] ECR I‑8121, paragraph 39; Case C-265/01 Pansard and Others [2003] ECR I-683, paragraph 19; and Case C-271/01 COPPI [2004] ECR I-1029, paragraph 27. 
      
      16 –	Joined Cases C-292/01 and C-293/01 [2003] ECR I-9449.
      
      17–	Article 20(2) of Law No 448 of 23 December 1998, introducing public finance measures for stabilisation and development (budget
         law 1999) (GURI No 302 of 29 December 1998, ordinary supplement, p. 5). 
      
      18 –	Albacom and Infostrada, cited above, paragraphs 24 to 28.
      
      19 – 	Ibid., paragraphs 31 and 32.
      
      20 –	Ibid., paragraphs 33 and 34.
      
      21 –	Ibid., paragraph 38. Also see, on this point, the Opinion of Advocate General Ruiz-Jarabo Colomer in that case (point 52).
      
      22 –	Albacom and Infostrada, cited above, paragraphs 35 to 37.
      
      23 –	See the written observations of the commune of Schaerbeek (pp. 14 to 17) and the written observations of the commune of
         Fléron (p. 8).
      
      24 –	Moniteur belge  of 8 April 1995, hereinafter ‘the Royal Decree’.
      
      25 –	See Annex 2 to the written observations of Belgacom Mobile.
      
      26 –	See to that effect points 29 to 32 of the Opinion of Advocate General Ruiz-Jarabo Colomer in Joined Cases C-327/03 and
         C-328/03 ISIS Multimedia Net and Firma 02, pending before the Court.