CELEX: 62004CC0392
Language: en
Date: 2006-03-16
Title: Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 16 March 2006. # i-21 Germany GmbH (C-392/04) and Arcor AG & Co. KG (C-422/04) v Bundesrepublik Deutschland. # Reference for a preliminary ruling: Bundesverwaltungsgericht - Germany. # Telecommunication services - Directive 97/13/EC - Article 11(1) - Fees and charges for individual licences - Article 10 EC - Primacy of Community law - Legal certainty - Final administrative decision. # Joined cases C-392/04 and C-422/04.

OPINION OF ADVOCATE GENERAL
      RUIZ-JARABO COLOMER
      delivered on 16 March 2006 (1)
      
      Joined Cases C-392/04 and C-422/04
      i-21 Germany GmbH
      and
      ISIS Multimedia Net GmbH & Co. KG
      v
      Bundesrepublik Deutschland
      (References for a preliminary ruling from the Bundesverwaltungsgericht (Germany))
      
      (Telecommunications – General authorisations and individual licences – Directive 97/13/EC – Article 11 – Fees and charges for individual licences – Interpretation of Article 11(1) – Precludes a licence fee calculated on the basis of a forecast of the general administrative costs that will be incurred by
         the national regulatory authority over a period of 30 years – Primacy of Community law versus legal certainty – Final administrative measures contrary to Community law – Reconsideration)
      I –  Introduction
      1.        The Bundesverwaltungsgericht (Federal Administrative Court), Germany, seeks an interpretation of Article 10 EC and Article
         11(1) 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 telecommunications services. (2)
      
      2.        It requires the interpretation by way of a reference for a preliminary ruling in order to resolve two disputes concerning
         whether it is appropriate to review the respective assessments of the fee payable for the grant of licences in the telecommunications
         sector, which assessments have become final because they were not challenged in time.
      
      3.        Both references contain two identical questions. The first goes to the heart of the case-law on Directive 97/13, in particular
         the judgments in Connect Austria, (3)Albacom and Infostrada (4) and ISIS Multimedia and Firma 02, (5) the latter two being cases in which I wrote the Opinions. (6) The second question is particularly important, since it provides the Court of Justice with an opportunity to strike a balance
         between the primacy of Community law and legal certainty, (7) thus changing the course set by the judgment in Kühne & Heitz, (8) the rule in which leads to an impasse.
      
      4.        The Court has a further opportunity to change the direction of its case-law, since it is due to rule on whether to extend
         the above doctrine to judicial decisions having the force of res judicata. (9)
      
      II –  Legislative framework
      A –    Community law
      1.      The ‘principle of loyalty’
      5.        Article 10 EC provides that ‘Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment
         of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community’, and shall
         facilitate ‘the achievement of the Community’s tasks’. Furthermore, ‘[t]hey shall abstain from any measure which could jeopardise
         the attainment of the objectives’ of the Community.
      
      2.      Directive 97/13
      6.        This provision forms part of the Community’s efforts to liberalise the market for electronic communications, which I described
         recently in the Opinion in Nuova società di telecomunicazioni, delivered on 27 October 2005. (10)
      
      7.         The freedom to supply telecommunications services and the opening up of the operation of telecommunications networks are
         the principles governing the rules laid down in the directive, which aim to ensure that telecommunications services are distributed
         and used without hindrance or in accordance with ‘general authorisations’, (11) ‘individual licences’ (12) being no more than an exception or a supplement to the universal permits (recitals 7 and 13 and Articles 3(3) and 7). Both
         forms of permit constitute ‘authorisations’. (13)
      
      8.        That harmonisation is based on the principles of proportionality, transparency and non-discrimination, the aim being to create
         an environment compatible with the freedom of establishment and the freedom to provide services (recitals 1, 2, 4 and 11;
         Article 3(2)).
      
      9.        To that end, the directive does not restrict the number of individual licences which the Member States may grant, unless this
         is essential to ensure the efficient use of radio frequencies and the existence of sufficient numbers. In principle, therefore,
         any organisation which fulfils the conditions laid down and published in national legislation is entitled to receive an individual
         licence (Articles 10(1) and 9(3)).
      
      10.      Articles 6 and 11 of Directive 97/13, which concern fees and charges, are aimed at promoting competition in the telecommunications
         market and at not imposing on operators more restrictions or charges than are necessary, (14) and therefore satisfy the abovementioned criteria of proportionality, neutrality, non-discrimination and transparency (recital
         12).
      
      11.      Article 6 is entitled ‘[f]ees and charges for general authorisation procedures’; Article 11, ‘[f]ees and charges for individual
         licences’.
      
      12.      According to Article 6, ‘[w]ithout 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’.
      
      13.      For its part, Article 11 provides that:
      
      ‘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’.
      
      14.      In accordance with Article 25, the Member States had to comply with the directive before 1 January 1998.
      
      B –    German law
      1.      Charges in the telecommunications sector
      15.      The Telekommunikationsgesetz (Law on Telecommunications; ‘the TKG’) of 25 July 1996 (15) transposes Directive 97/13 into German law. Under Paragraph 16(1), individual licences are to be granted upon payment of
         a fee, the rules governing which are to be laid down in a subsequent regulation.
      
      16.      On the basis of that legislation, the Bundesministerium für Post und Telekommunikation (Federal Ministry of Post and Telecommunications),
         on 28 July 1977, adopted the Telekommunikations-Lizenzgebührenverordnung (Regulation on Telecommunications Licence Fees; ‘the
         TKLGebV 1997’), (16) which, with retroactive effect, came into force on 1 August 1996.
      
      17.      Under that regulation, the fee included not only the administrative costs incurred in granting the licence but also those
         associated with management of the rights and supervision of the corresponding obligations (Paragraph 1(1)).
      
      18.      Class 3 licence (17) fees were charged on the basis of the territory covered by the licence and hence the number of potential users of the services
         provided, the charge ranging from DEM 2 000 (EUR 1 022.58) to DEM 10 600 000 (EUR 5 419 693.94). (18)
      
      19.      The Bundesverwaltungsgericht points out in the orders for reference that the preceding calculations were based on a forecast
         of the general administrative costs which would be incurred by the Regulierungsbehörde für Telekommunikation und Post (Regulatory
         Authority for Telecommunications and Post) (‘the national regulatory authority’) over three decades. (19)
      
      20.      In its judgment of 19 September 2001, the Bundesverwaltungsgericht held that Class 3 licence fees, which had been calculated
         in accordance with the TKLGebV 1997, were not covered by Paragraph 16(1) of the TKG, since they included tasks unrelated to
         authorisation, and also infringed the principle of equality laid down in Paragraph 3(1) of the Basic Law of the Federal Republic
         of Germany. (20)
      
      21.      Once that judgment had been delivered, the TKLGebV 1997 ceased to apply, and was replaced by the Telekommunikations-Lizenzgebührenverordnung
         of 9 September 2002 (‘the TKLGebV 2002’), (21) which introduced for Class 3 licences a fee of EUR 4 260, which could be reduced to a minimum of EUR 1 000 (Paragraph 2(3)).
      
      22.      The German Government states (22) that the assessments which were open to challenge when the judgment of 19 September 2001 was delivered were automatically
         annulled and that certain undertakings agreed with the national regulatory authority to waive the right to take legal action,
         in which cases the fees paid were reimbursed. (23)
      
      23.      The TKLGebV 2002 thus has retroactive effect in relation to fees which have not become final. Paragraph 4 expresses this idea
         by stating that, where an assessment is still open to challenge on the date of publication of the new legislation, the latter
         is to apply to licence holders as from 1 August 1996.
      
      2.      Reconsideration of administrative measures
      24.       This general heading covers three different, though related, procedures, set out in the Verwaltungsverfahrensgesetz (Law
         on Administrative Procedure; ‘the VwVfG’) of 25 May 1976. (24) The first, the ‘reopening of proceedings’ (Wiederaufgreifen des Verfahrens), provided for in Paragraph 51, which, on application
         by the person concerned, provides a means of annulling or amending a measure on grounds arising subsequently, constitutes
         review stricto sensu.
      
      25.      The other two procedures are distinguished by the lawful or unlawful nature of the decision being analysed. The second, set
         out in Paragraph 49, is concerned with ‘revocation of a lawful administrative measure’ (Widerruf eines rechtmäßigen Verwaltungsaktes),
         whereas the third, contained in Paragraph 48, provides for ‘withdrawal of an unlawful administrative measure’ (Rücknahme eines
         rechtswidrigen Verwaltungsaktes), and states that ‘an unlawful administrative measure may, even after it has become final, (25) be withdrawn, wholly or in part, with prospective or retrospective effect’.
      
      26.      According to the orders for reference, the German courts interpret the power provided for in Paragraph 48 as one the discretionary
         nature of which is minimal, not to say non-existent, in certain circumstances. Thus, it confers the right to have an administrative
         measure ‘withdrawn’ if maintaining it in force is ‘simply untenable’, that is to say where it infringes the general principle
         of equality, is contrary to public policy or good faith, or is manifestly unlawful, or where its withdrawal is dictated by
         the specific legal situation of the addressee.
      
      III –  Facts and questions referred
      27.      ISIS Multimedia Net GmbH & Co. KG and i-21 Germany GmbH (‘ISIS’ and ‘i-21’) both hold Class 3 Telecommunications Licences
         in Germany for which they were charged DEM 131 660 (EUR 67 316.69) and DEM 10 600 000 (EUR 5 419 693.94) respectively, pursuant
         to Paragraph 16(1) of the TKG and the TKLGebV 1997.
      
      28.      Each company assented to and paid the corresponding fee, which thus became unchallengeable.
      
      29.      However, other companies holding telecommunications licences challenged the assessments issued to them and obtained before
         the Bundesverwaltungsgericht the judgment of 19 September 2001 (26) to which I have already referred, which annulled those assessments on the ground that they were based on a regulation – the
         TKLGebV 1997 – which was contrary to higher-ranking law, and ordered that the claimants be reimbursed for the sums which they
         had paid to the State.
      
      30.      Having been notified of that judgment, ISIS and i-21 applied to the national regulatory authority to recover the amount paid.
         After their applications had been refused, they each brought judicial actions before the Verwaltungsgericht, the administrative
         court of first instance, which dismissed their applications on the grounds that the amounts claimed could not be reimbursed
         because the assessments were final and that re‑examination was not possible under Paragraph 51(1) or Paragraph 48(1) of the
         VwVfG.
      
      31.      They then brought leap-frog appeals on points of law before the Bundesverwaltungsgericht. That court found that the claims
         had no prospect of succeeding under German law but was uncertain as to the impact of Community law in this regard, and therefore
         stayed proceedings and referred the following questions for a preliminary ruling in both cases:
      
      ‘Is Article 11(1) of Directive 97/13/EC … to be interpreted as precluding … a licence fee calculated to anticipate the amount
         of a national regulatory authority’s general administrative costs over a period of 30 years, to be charged in advance?’
      
      If the answer is in the affirmative:
      ‘Are Article 10 EC and Article 11 of the licensing directive to be interpreted as meaning that a fee assessment that determines
         fees within the meaning of Question 1 and which has not been contested, although it could have been, must be set aside where
         that is permissible under national law but not mandatory?’
      
      IV –  Procedure before the Court of Justice
      32.      By order of 6 December 2004, the President of the Court of Justice joined the two cases, since they share the same subject-matter.
      
      33.      Observations were submitted, within the period laid down in Article 23 of the EC Statute of the Court of Justice, by the Commission,
         the German and Netherlands Governments and the appellants in the main proceedings.
      
      34.      At the hearing held on 1 February 2006, oral argument was presented by representatives of the parties which had participated
         in the written procedure.
      
      V –  Analysis of the questions referred 
      A –    Premiss
      35.      The Bundesverwaltungsgericht confirms that, under German law, fees for the grant of Class 3 and 4 individual licences in the
         telecommunications sector are capable of being annulled because the TKLGebV 1997, under which they were introduced, was unlawful.
         It so held in its judgment of 19 September 2001.
      
      36.      It is equally convinced that there is no discretion under national law to reconsider final assessments, and that the persons
         to whom those assessments are addressed cannot therefore obtain reimbursement of the sums incorrectly paid.
      
      37.      However, it wishes to ascertain whether the same solution holds good under Community law or whether, on the contrary, Community
         law requires that the unlawful fees be revoked, with all the consequences this entails, even when they are no longer open
         to challenge (second question). This question presupposes that such fees also infringe the Community legal order, which means
         that an examination of their possible ‘Community illegality’ is a prerequisite for the reference for a preliminary ruling
         (first question). (27)
      
      38.      The preliminary ruling procedure has been clearly defined as operating within the ambit of Community law and precludes any
         discussion of the relevant national legislation, although the latter does serve as a counterpoint and framework for the proceedings.
         Crucially, as regards the first question, the TKG, which has been found to have been infringed by the TKLGebV 1997, transposes
         Directive 97/13 into German law, and, as regards the second, in the absence of specific legislation, the rights conferred
         by European law must be protected in accordance with the rules of procedure applicable under German law. (28)
      
      B –    The first question 
      39.      The national court seeks to ascertain whether Article 11(1) of Directive 97/13 allows a fee which is calculated on the basis
         of a forecast of the ordinary administrative costs which will be incurred by the national regulatory authority over a period
         of thirty years.
      
      40.      The answer requires an analysis of the nature of the fees and charges provided for in the above directive.
      
      1.      Articles 6 and 11 of Directive 97/13
      41.      Although apparently similar in content, the two articles, as I stated in the Opinion in Albacom and Infostrada, (29) are different in scope because they relate to different schemes.
      
      42.      General authorisations are permits defined in advance in a general way, (30) which allow undertakings to operate in the telecommunications market without an express decision by the competent body, although
         such operations may be subject to subsequent monitoring, as set out in Article 5.
      
      43.      On the other hand, individual licences, which are specific authorisations for holders to operate, require a particular decision
         for which there is an ad hoc procedure (the second indent of Article 2(1)(a) and Article 9 of the directive support this definition).
      
      44.       Those differences explain the fact that, whereas Article 6 is concerned with ‘[covering] the administrative costs incurred
         in the issue, management control and enforcement of the applicable general authorisation scheme’, Article 11(1) refers to similar disbursements in connection with ‘the issue, management, control and enforcement of the
         applicable individual licences’. (31) For this reason, Article 11 requires that the fee for an individual licence should be proportionate to the work involved,
         a qualification which does not appear in general authorisations.
      
      45.       Consequently, Articles 6 and 11(1) of the directive both provide for devices which, irrespective of the name given to them, (32) are remunerative and parafiscal in nature, since they are intended to offset the costs of an act or service which affects
         the taxpayer. However, owing to the diverse origins of the charge, the fee defined in the first article is used, in a non-specific
         manner, to cover the cost of operating the ‘applicable general authorisation scheme’, (33) whereas that for individual licences is used exclusively to offset the costs incurred by the Administration in connection
         with the issue, management, control and enforcement of each particular licence.
      
      46.      Article 11(2), on the other hand, provides for a fee in which there is no element of remuneration and which can be classified
         as a tax, albeit for a particular purpose. (34)
      
      2.      The individual licence fee under Article 11(1) of Directive 97/13
      47.      The event giving rise to this fee is the completion of a procedure for granting the licence, or for its management, control
         or enforcement.
      
      48.      It serves to cover the cost of carrying out the necessary formalities, which means that the revenue from it must not be used
         to finance other activities of the national regulatory authority.
      
      49.      The proportionality of the fee to the work carried out is a requirement of the scheme, and the fee must therefore correspond
         to the amount of the costs incurred, but must never exceed that amount. This is dictated by its nature as remuneration. If
         the fee were to exceed that amount, it would become a tax.
      
      50.       The rules governing this fee are based on the principles of neutrality, non‑discrimination, transparency and publicity.
      
      51.      The foregoing considerations provide a framework for answering the first question raised by the Bundesverwaltungsgericht.
         That answer must determine whether it is appropriate to calculate the amount of the fee on the basis of a prospective analysis
         of the costs that will be incurred by the national regulatory authority over a particular period.
      
      3.      Method of assessing and levying the individual licence fee
      52.      The fee provided for in Article 11(1) of Directive 97/13 thus serves only to cover the costs incurred in the issue, management,
         control and enforcement of individual licences, and must be commensurate with the work involved in those tasks.
      
      53.      Subject to compliance with those requirements, the Member States are free to choose the methods and procedures for charging,
         and to determine the amount of the fee.
      
      54.      The purpose of the fee requires that it be levied only when the chargeable event occurs, that is to say after the licence
         has been issued, and once the administrative act of management, control or enforcement has been performed. This approach helps
         make the fee as accurate as possible, because, when the assessment is carried out a posteriori, all the components of the work undertaken are known, the charge being calculated from a flat-rate assessment of the number
         and qualification of the officials involved, the time taken and the unavoidable costs incurred in carrying out the operation. (35) However, this formula has the disadvantage of subjecting the taxpayer to repeated payments, thus creating endless work for
         the tax administration, which increases costs and undermines efficiency.
      
      55.      Since the intention is to compensate the tax authorities for the costs incurred in an extended process of public administration
         for the benefit of the licence holder, there is no reason why the fee should not be charged in advance and determined by means
         of a careful calculation of its amount. If it is charged in this way, it makes no difference whether the fee is collected
         in a single payment or in instalments.
      
      56.      In the judgment in Fantask and Others (paragraph 32), which I have just cited in footnote 35, concerning indirect taxes on the raising of capital, the Court accepted
         that the fee at issue in that case could be fixed in advance, on the basis of a projection of costs, and levied at regular
         intervals. There is no reason why that view cannot be extended to the fee for individual licences in the telecommunications
         sector, provided that, as pointed out in the judgment itself (paragraphs 32 to 34), the Member States check at regular intervals
         that the amount does not exceed the costs incurred, and ensure the payment of any refunds necessary.
      
      4.      The period covered by the fee: its limits
      57.      The longer the period to which the calculation relates, the greater the risk of error, since the projection becomes more complex
         as it extends over time. Objectivity declines as uncertainty grows, and the risk of disproportion is greater when the data
         being used is less reliable.
      
      58.      The situation is worse if the length of the period is not only used to determine the amount of the fee but also affects its
         payment, which must be made in a single instalment so that it is effective over the entire period of the projection. In those
         circumstances, the principles of proportionality and neutrality contained in Directive 97/13 are largely undermined, since
         payment is made today for services which will not be received until long into the future. Those principles would suggest,
         though they do not require, that the administrative service and the determination and payment of the fee should be effected
         more contemporaneously.
      
      59.      The nature of the sector, its development and the extent to which it is open are also important factors. The scope for projection
         in a stable market in which competition has long been well established and in which, logically, no major surprises are to
         be expected and events are easily predicted is not the same as in a fluctuating market which has recently been liberalised
         and in which unforeseen changes are anticipated.
      
      60.      Consequently, Directive 97/13 does not preclude the calculation or collection in advance of a fee such as that at issue, provided
         that these acts do not adversely affect the aforementioned guarantees of neutrality and proportionality which the directive
         itself lays down.
      
      61.      Adverse effects do arise where a fee determined on the basis of a forecast of costs for the next thirty years is levied at
         a time when the telecommunications market is becoming more flexible.
      
      62.      In my Opinion in Nuova società di telecomunicazioni, referred to above, I pointed out that the 1990s saw the beginning of the process of opening up the telecommunications market
         and harmonising national laws through the development of a collection of legislative provisions which were constantly being
         updated. (36) That legislation is still not final. Accordingly, the fact that, in 1997, at the height of this process of upheaval, a fee
         was fixed on the basis of a forecast of the general costs that would be incurred by the national regulatory authority until
         the year 2027 is beyond all reason and, for the reasons already given, runs counter to the spirit of Directive 97/13. (37) Proof of the foregoing lies not least in the fact that that directive, adopted in 1997, was superseded five years later by
         Directive 2002/20, cited above, which replaces individual licences with ‘rights of use’, contains more detailed rules on the
         assessment of charges (38) and leaves out of the scheme fees such as that at issue in the main proceedings.
      
      63.      The foregoing analysis coincides with that of the Bundesverwaltungsgericht in the aforementioned judgment of 19 September
         2001, since, crucially, the TKG, which was implemented by the TKLGebV 1997, transposes Directive 97/13. (39) German legal commentators take the same view. (40)
      
      64.      In the light of the foregoing considerations, I propose that the Court answer the first question to the effect that Article
         11(1) of Directive 97/13 and, in particular, the principles of neutrality and proportionality preclude the imposition of a
         fee for the issue, management, control and enforcement of individual licences which is calculated on the basis of a forecast
         of the general administrative costs that will be incurred by the national regulatory authority over a period of 30 years.
      
      C –    The second question 
      1.      Preliminary considerations: the appropriate approach
      65.      It being established that the contested assessments are contrary not only to German law, as the Bundesverwaltungsgericht held,
         but also to Community law, it remains to be determined whether Community law requires a review of their validity, even if
         they were not challenged at the appropriate time.
      
      66.      The relevant German legislation is the VwVfG, under which, as is apparent from points 24 to 26 of this Opinion and from the
         orders for reference, it is not permissible either to annul the administrative measures in question or to grant the claims
         of ISIS and i-21.
      
      67.      This gives a clear picture of the substance of the dispute and reveals the error in the rule in Kühne & Heitz, which, in making reconsideration of a final decision conditional upon the existence of an express legislative provision
         to that effect in national law, perplexes the Bundesverwaltungsgericht, which could have arrived at the same unsatisfactory
         conclusion without having to make a reference for a preliminary ruling. Moreover, reliance on national law, as advocated by
         the Court of Justice in such cases, raises serious problems, including, in particular, disparities in the protection of rights
         derived from the Community legal order. (41)
      
      68.      The cases at issue here concern not whether, under German law, it is possible to reconsider and, if appropriate, to annul
         the now unchallengeable fees imposed on the abovementioned undertakings, since the courts have already ruled that that is
         not so, but whether, notwithstanding such an obstacle, Community law requires that those fees be reviewed and, if so, under
         what conditions.
      
      69.      It was that dilemma which prompted the question referred by the College van Beroep von het bedrijfsleven of the Netherlands
         in Kühne & Heitz and Advocate General Léger found the correct way to resolve it in his Opinion of 17 July 2003, in which he proposed that
         it be approached from the standpoint of the primacy of European law and its direct applicability.
      
      70.      The Court must consider that proposal, and, in so doing, balance the requirements of legal certainty against those of Community
         legality in order to determine whether the former always represent an insurmountable barrier or whether, on some occasions,
         they must yield to the latter.
      
      2.      The principle of legal certainty: its limits
      71.      The importance of this principle to the proper functioning of any political entity is clear. In my Opinion in Commission v AssiDomän Kraft Products and Others (‘AssiDomän’), (42) I pointed out that the law abhors disorder, and therefore equips itself with arms to fight its root cause: instability (point
         55).
      
      72.      Of particular significance among those arms is legal certainty, one instrument for ensuring which is ‘finality’; administrative
         decisions become unchallengeable on expiry of the prescribed periods for contesting them or once they have been confirmed
         after all means of challenging them have been exhausted.
      
      73.      Consequently, on expiry of the period for contesting it, a decision, even if vitiated, cannot be challenged and the defect
         becomes a permanent part of the legal order.
      
      74.      The incontestability of final measures, even unlawful ones, is therefore the general rule, (43) since no system permits the validity of legal situations to be the subject of indefinite dispute.
      
      75.      The Court has shown itself to be sensitive to this structural rule and has taken it into account since its first decisions. (44) In the judgment in Kühne & Heitz, it held that rule to be a general principle of Community law (paragraph 24), which finding it reiterated in the judgment
         in Gerekens and Procola (paragraph 22). (45) In its judgment in AssiDomän, the Court held that a Community institution is not required to reconsider decisions which have been assented to when other,
         identical decisions, which were contested at the appropriate time, have been annulled by the courts (paragraph 63).
      
      76.      However, that principle may become an obstacle to the uniform and correct application of Community law, (46) and the Court has therefore refused to recognise it as being absolute (47) and as taking precedence in every situation. In its judgment in SNUPAT v High Authority, (48) the Court held that it must be reconciled with other values worthy of protection.
      
      77.      The first of those values limiting legal certainty is equity, (49) an assessment of which I proposed in my Opinion in AssiDomän, not with a view to finding a solution to the dispute in that case but in order to clarify, generally, the scope of legal
         certainty in the Community context. Although the Court of Justice concurred with the view put forward in my Opinion, it omitted
         to refer to the limit represented by equity. The finality of a decision must not constitute an obstacle to further analysis
         of its substance if maintaining it in force leads to intolerable injustice. For similar reasons, most, if not all, Member
         States make it possible to breach the incontestability of administrative decisions when the periods for challenging them have
         expired. The German system provides a good example. According to the orders for reference, the German courts have reduced
         the element of discretion which Paragraph 48 of the VwVfG grants to the Administration by conferring on individuals the right
         to apply to have a decision withdrawn where maintaining it in force is ‘simply untenable’. (50)
      
      78.      That curb on legal certainty is thus distinctly subjective. It is intended to abolish adverse measures which offend against
         the most elementary sense of justice and to eliminate discrimination and other breaches of equality. (51)
      
      79.      The other limit I should now like to mention, which is more objective, operates at the level of ‘supralegality’ and has to
         do not only with the foundations which underpin the legal system and give life to all other rules of law, but also with the
         direction that system is to follow. (52) Where maintaining a final measure in force undermines the essence of the system or leads it to an impasse, annulment of the
         measure is inevitable.
      
      80.      In fact, both boundaries are partially ‘co-extensive’, since many of the values which underpin equity represent general principles
         common to the legal systems of the Member States and some of them have been enshrined in positive law at the highest level
         as fundamental rights of the individual. In short, measures which diminish protection more than they serve to enhance it must
         be rejected, since there is no greater uncertainty than that arising from injustice or manifest unlawfulness.
      
      81.      Consequently, in the Community legal order, legal certainty would, exceptionally, not apply if there were a need to safeguard
         the foundations of that order, and the reconsideration of unchallengeable decisions would be permitted. (53) However, it is appropriate to specify the circumstances in which that exemption would apply. To that end, it seems advisable
         to look to the past to find confirmation that the structure of that legal order, in large measure the creation of case-law,
         is intended to ensure its effectiveness and attain the objectives of the Treaties.
      
      82.      None the less, it is necessary to point out that there is one limit which is always unbreachable: the rights of third-parties. (54) Where such rights are adversely affected, stability, even if unjust, must prevail, the injured party being compensated by
         other slightly more indirect means, such as State liability for infringement of Community law.
      
      3.      A continuing effort to protect Community law
      83.      In its judgment in Van Gend & Loos, (55) the Court conferred on Community law the status of an independent legal order for the benefit of which the Member States
         have limited their sovereignty. It held that Article 12 of the EEC Treaty (now, after amendment, Article 25 EC) has direct
         effect and creates for individuals subjective rights which are capable of protection by the national courts. The judgment
         concerned a conflict between the abovementioned provision of the EEC Treaty, which prohibited the raising of customs duties,
         and a new tariff approved by the Netherlands Government in 1960, which increased from 3% to 8% the rate of tax on a number
         of products.
      
      84.      By conferring direct effect on Community provisions, the Court was implicitly recognising their primacy over national systems,
         which was intimated in its judgment of 27 February 1962 in Commission v Italy, (56) and made explicit in its judgment in Costa v ENEL. (57) In that decision, echoing the reasoning of the judgment in Van Gend & Loos concerning the transfer of sovereignty and the distinctive characteristics of the Community legal order, the Court held that
         it was impossible for the Member States to give precedence over a system accepted on the basis of the principle of reciprocity
         to a unilateral measure adopted subsequently, and went on to say that the objectives of that legal order would be called into
         question if its binding force varied from one place to another by reason of subsequent national legislation. That decision
         was also based on Article 189 of the EC Treaty (now, after amendment, Article 249 EC), which, by making regulations binding,
         prevents national provisions from standing in their way, since the foundations of the Community would otherwise be called
         into question.
      
      85.      Direct effect and primacy are not simply means of organising relations between different legal systems, but the expression
         of the Community as an association of States, peoples and citizens. (58) However, given the context in which the judgments in Van Gend & Loos and Costa v ENEL were delivered, doubts remained as to whether those findings applied to directives. In its judgment in Ratti, (59) however, the Court conferred the same primacy on directives, holding that, upon expiry of the period for its transposition,
         a person who complies with the provisions of a directive cannot be made subject to national legislation which has not been
         adapted in accordance with that directive.
      
      86.      The opportunity to give a ruling on the other characteristic was provided by a German citizen, Mrs Becker, who refused to
         pay the value added tax on certain credit transactions, even though they were liable to VAT under the German legislation in
         force. She relied on the first paragraph of Article 13B(d) of the Sixth VAT Directive, (60) which the Member States had undertaken to transpose before 1 February 1979, in order to claim that such legal transactions
         were exempt. In the judgment in Becker, (61) the Court held that, from that date, the provisions of the Sixth Directive which are unconditional and sufficiently precise
         could be relied on directly in the Federal Republic of Germany, since such provisions, though not directly effective, do have
         direct effect where Member States fail to transpose them or do so incorrectly. In those circumstances, they cannot be divested
         of the binding nature which is conferred on them by Article 189 of the EEC Treaty.
      
      87.      That quality is thus constructed as an automatic ‘penalty’ for failure by the Member States to fulfil their obligations, and
         doubts therefore arose as to whether the same applies where directives govern horizontal relationships from which the public
         authorities are absent. The answer, in the negative, was given by the Court in its judgment in Marshall, (62) which heads a long list of decisions on which the judgment in Pfeiffer and Others (63) is one of the latest entries.
      
      88.      However, the abovementioned characteristics of Community law advised against resignation to the non-application of its provisions,
         since that would undermine the purposes of the Treaty. The Court pointed out that the principle of loyalty laid down in Article
         5 of the EC Treaty (now Article 10 EC) requires the Member States to take all appropriate measures, whether general or particular,
         to attain the aims of directives, a duty incumbent upon all national authorities, including the courts. That idea, set out
         in the judgment in Von Colson and Kamann, (64) has mitigated the refusal to confer direct effect on directives in disputes between individuals, and prompted the doctrine
         of ‘interpretation in conformity with Community law’, according to which, when interpreting Community law, national courts
         must give meaning to the Community provision, in accordance with the third paragraph of Article 189 of the EC Treaty.
      
      89.      In the judgment in Marleasing, (65) the Court developed that line of reasoning further and showed exactly how Community law could be enforced. The dispute concerned
         whether a contract of incorporation was void on grounds of lack of cause, a ground absent from Article 11 of Directive 68/151/EEC, (66) which had not been implemented in Spanish law, but provided for in Articles 1261 and 1275 of the Spanish Civil Code. The
         Court held that the national law should be interpreted in the light of the wording and purpose of the directive, and that
         a company could not be declared void on any ground other than those listed in Article 11 of that directive. The national court
         settled the dispute (67) by applying the Community provision in the place of the articles of the Civil Code.
      
      90.      That consequence had been recognised by the Court in its case-law. The judgment in Simmenthal (68) imposed on the courts of the Member States the obligation to give full effect to Community law, if necessary by discarding
         contrary provisions of national law, even if adopted subsequently, without waiting for them to be repealed or removed from
         the statute book by constitutional means. The flip side of that coin is provided by the judgment in Fratelli Costanzo, (69) in which the Court held that a directive must be applied, even ex officio, notwithstanding the existence of national rules which are contrary to it.
      
      91.      The objective is always the same: to ensure the effectiveness of Community law. The doctrine of interpretation in conformity
         with Community law and the power to annul national law are derogations prompted by the fact that directives have not been
         given horizontal direct effect. A good example is provided by the judgment in Arcaro, (70) in which the Court condemned the fact that there is no mechanism for eliminating national rules which are contrary to a directive
         and conceded that the commitment incumbent on national courts to interpret national rules in the light of the relevant Community
         legislation comes up against insurmountable obstacles where those rules subject an individual to an obligation which has not
         yet been incorporated into national law. Not even the judgment in Pfeiffer and Others, cited above, provided a definitive solution to the problem, since, following the suggestions made in my Opinion of 27 April
         2004, the second one delivered in the case, the Court proposed that, in carrying out such an interpretation, national courts
         should not confine themselves to examining the provisions of law specifically adopted to transpose a directive, but should
         also consider the rest of national law in order to help achieve an outcome which does not infringe Community law.
      
      92.      The Court of Justice, ever at pains to secure the effectiveness of Community law, sought to close the circle in order to prevent
         the difficulties arising from its connection with national legal systems from leading to an impasse. The judgment in Francovich and Bonifaci (71) established the principle that, where the purpose of a directive cannot be attained by means of interpretation, the Member
         State must make good the loss occasioned to individuals as a result of its failure to incorporate the provisions of that directive
         into national law within the prescribed period or the failure to do so correctly. The full effect of Community provisions
         would be called into question and the protection of the rights they confer would be weakened, if those afforded such protection
         were denied compensation where those rights are infringed through the fault of a Member State; this is particularly true if
         the effectiveness of such rights is subject to action by the State and, as a consequence, individuals cannot, in the absence
         of such action, rely on them before their national courts. The Court also justified that idea by reference to Article 5 of
         the EC Treaty, cited above, which lays down the obligation to nullify the unlawful consequences of an infringement of Community
         law.
      
      93.      The latter judgment outlined the conditions governing the incurrence of the duty to compensate. Subsequent decisions have
         refined those conditions by specifying the national authorities which are to be held liable. In its judgment in Brasserie du Pêcheur and Factortame, (72) the Court recognised the existence of such State liability, even though the infringement had been committed by the legislature,
         while in the judgment in Köbler (73) it did likewise in relation to the judiciary. In the judgment in Commission v Italy, (74) the Court also held that the State as legislature was liable for failing to amend legislation that the Italian courts interpreted
         in a manner contrary to the effectiveness of Community law. (75)
      
      4.      The requirements governing the reconsideration of administrative measures
      94.      The foregoing points of this Opinion show that the criteria governing the application, repeal, interpretation and hierarchy
         of provisions, or that which places the courts under strict adherence to the written law, the importance of which in the constitutional
         systems of the Member States is similar to that of the criterion of legal certainty, have given way where there has been a
         need to ensure the effectiveness of Community law, without undermining the foundations of the national legal systems.
      
      95.      Since, as I have already pointed out, equity and general principles of law sometimes temper the impact of legal certainty,
         it is reasonable to suggest that this should be the case where its strict application undermines the essence of Community
         law and gives rise to situations which infringe those principles. If that view is applied to the specific circumstances of
         ISIS and i-21, it follows that a further examination of the final assessments would be appropriate if maintaining them in
         force adversely affected the objectives of Community law and gave rise to injustices contrary to its foundations, in particular
         the requirement of proportionality. (76)
      
      a)      An outcome which impedes the opening up of telecommunications
      96.      The first step would therefore be to ascertain whether the maintenance in force in relation to ISIS and i-21 of the high fees
         which they paid without challenge, while such fees were refunded to other operators following legal action or negotiation,
         calls into question the objectives of Directive 97/13 and, in general, the body of provisions aimed at liberalising the telecommunications
         market.
      
      97.      The proposed solution to the first question provides some guidance in this regard, since, as I have said, Article 11(1) precludes
         a charge such as that provided for in the TKLGebV 1997. However, this abstract finding is insignificant because mere non-conformity
         is not indicative of an insurmountable obstacle to the will of the legislature.
      
      98.      The answer becomes clearer on closer examination of the provisions relating to fees and charges in Directive 97/13 and the
         way in which events have unfolded.
      
      99.      Article 11 and Article 6 promote competition in telecommunications by prohibiting the imposition on undertakings of fees other
         than those for which they provide in order to facilitate the entry of new operators; they thus contribute to the establishment
         of a common market in that sector and guarantee the freedoms of movement by permitting only those restrictions that are necessary
         for the general interest. (77)
      
      100. Consequently, if fees other than those expressly laid down in Directive 97/13 are charged (Albacom and Infostrada) or if fees in conformity with the provisions of the directive are not charged on the basis of equal treatment (ISIS Multimedia and Firma O2), the purposes of the Community are frustrated. It is just such a situation which ISIS and i‑21 are challenging.
      
      101. When the measures now being contested were adopted (the first on 18 May 2001, the second on 14 June 2000), three hundred and
         five undertakings holding Class 3 and 4 licences were operating on the German market. Of those, nine obtained reimbursement
         following the successful pursuit of legal action; however, one hundred and forty-nine achieved the same result through negotiation.
         Another group of five secured reimbursement because their assessments were automatically annulled on the ground that they
         were not final when the Bundesverwaltungsgericht delivered its judgment of 19 September 2001. Eight companies are in the same
         situation as ISIS and i-21.
      
      102. Thus, while a small group of Class 3 and 4 licence holders have paid the fees applicable under the repealed TKLGebV 1997,
         which are indisputably high (in particular, ISIS paid EUR 67 316.69, and i-21 paid EUR 5 419 693.94), the rest are operating
         on the market for the price of the fees contained in the TKLGebV 2002, which vary from EUR 1 000 to EUR 4 260. The differences
         are enormous and illogical, and are necessarily reflected in the balance sheets of the undertakings concerned.
      
      103. During the transition from a stage characterised by a closed market governed by exclusive and special rights for certain companies
         to another stage characterised by efforts to establish a competitive market open to all, any curb on the incorporation of
         new operators consolidates the status quo and restricts competition, particularly if it involves discrimination. In its judgment in Connect Austria, cited above, the Court is very explicit in this regard when it reiterates that a system of undistorted competition can be
         guaranteed only if equality of opportunity is secured between economic operators (paragraph 83), an assertion which enabled
         the Court, in its judgment in ISIS Multimedia and Firma O2, also cited above, to hold that Directive 97/13 does not permit the favourable treatment of a former monopoly which now occupies
         a dominant position. As a consequence, regulatory authorities must act with neutrality and must not introduce arbitrary disparities.
         
      
      104. In short, the continued existence of the unlawful measures at issue in this case (the impact of which, it should not be forgotten,
         will last for thirty years) reinforces a situation which is contrary to Community law in that it impedes the completion of
         the gradual process of opening-up initiated by Directives 90/387 (78) and 90/388. (79)
      
      105. It would also be necessary to determine whether the effect described above is essentially unfair and contrary to the principles
         underlying Community law.
      
      b)      An unacceptable consequence
      106. First of all, the effect of the measures at issue is the unequal treatment of persons who appear to be in an identical situation,
         all of them being holders of Class 3 and 4 licences to operate on the German market. (80) If there were no objective and reasonable justification for this consequence, its fundamental incompatibility with a basic
         rule of Community law (81) would necessitate a re-examination of the disputed assessments, notwithstanding that they have become final. If, however,
         there were a satisfactory explanation for that consequence, legal certainty would preclude further analysis.
      
      107. It could be argued that the route taken by ISIS and i-21 was not the same as that taken by the other organisations, since
         ISIS and i-21 did not challenge the assessments issued to them, and that this therefore excuses the difference in treatment.
         However, that assertion is not entirely correct, since at least some of those organisations that obtained reimbursement did
         not challenge the assessments either, in particular those which concluded ‘equal treatment’ agreements with the national regulatory
         authority, which organisations, according to the German Government, waived the right to bring legal proceedings following
         reimbursement of the fees paid. Other companies did not even appeal, because their fees were annulled automatically.
      
      108. The reasons why ISIS and i-21 remained outside the negotiations are of little importance, (82) because their failure to act, which rendered the unlawful fees imposed on them unchallengeable, does not justify the different,
         unfavourable and disproportionate treatment afforded to them. A number of considerations support that assessment.
      
      109. Firstly, from a purely practical point of view, their passivity does not amount to a lack of diligence, since, at the time
         when they were required to pay, the TKLGebV 1997 and the administrative measures adopted to implement it had not been declared
         unlawful. (83) In other words, at that time, they could not have been expected to take such precautionary measures, since the defect later
         held to exist was not then manifest.
      
      110. Secondly, from a broader perspective, the fact that, under the legislation applicable in these cases, the coming into being
         within the legal system of an irregularity incompatible with the objectives of that legal system should depend on a random
         event such as the date of a judgment, that is to say 19 September 2001, is unacceptable. Such discrimination between operators,
         which adversely affects both equal opportunity of access to the telecommunications market and the liberalisation of that market,
         and is based on the date on which the Bundesverwaltungsgericht annulled the TKLGebV 1997, should not result in a refusal to
         re-examine the fees which were no longer open to challenge at that time or the automatic revocation of the other fees and
         their replacement by the lower ones applicable under the TKLGebV 2002. The undertakings fortunate enough to have been charged
         the fee at a later date received an unexpected gift which they had done nothing to deserve.
      
      111. Finally, from a more fundamental point of view, maintaining an unlawful measure in force, irrespective of its scope and effects
         on the legal system, on the basis of the argument that it was ‘assented to’ by its addressee, not only raises to the highest
         level a technical device intended to safeguard the law but is an approach specific to private law which fails to take into
         account the essential fact that the Administration is bound by the public interest and legality. I made this point in the
         Opinion in AssiDomän, cited above (point 49).
      
      112. It is appropriate to mention, in the interests of a rigorous examination of the concept, some cases of ‘finality’ which differ
         in terms of their lawfulness, their substance and their subjection or otherwise to review. The requirements of legal certainty
         are greater if the administrative decision has been subjected to judicial review, which adds to the ‘finality’ of the measure
         the force of ‘res judicata’. In the tension between stability and legality, the latter holds greater sway where, as in the main proceedings, (84) the former is exclusively administrative.
      
      113. However, some would argue that the difference in the approaches adopted by the undertakings concerned none the less excuses
         a slight difference in treatment, those undertakings having followed separate courses in order to reach the same destination.
         Those that challenged the assessment issued to them or negotiated a solution took a direct route: annulment following automatic
         review. Those that took a passive approach and allowed the time-limit for appeal to expire followed a far more tortuous route:
         proceedings for pecuniary damages against the State. However, this view disregards the choice of those which, while wishing
         to remain inactive, benefited from an event beyond their control (delivery of the judgment of the Bundesverwaltungsgericht
         before their assessments had become final) and thus won an advantage which they had likewise done nothing to bring about themselves.
         It is also a purely subjective point of view which fails to take account of the objective dimension of the public interest,
         which requires equal treatment in order to remove any obstacle to the opening-up of the telecommunications market.
      
      114. In short, in the circumstances of both references for a preliminary ruling, there has been an infringement of Community law
         which is contrary to equity and to the general principles underlying Community law, and the solutions adopted should therefore
         be reconsidered.
      
      5.      Proper extent of the procedural autonomy of the Member States
      115. The answer is self-evident: where appropriate, national courts must review administrative measures in accordance with the
         procedures contained their respective legal systems. (85) It should be recalled that, in the absence of harmonising measures, (86) it is for the Member States to lay down the procedures for protecting the rights conferred by Community law, though that
         power is subject to two limits: firstly, the rules introduced must not be less favourable than those established for similar
         domestic actions (the principle of equivalence); secondly, they must not be framed in such a way as to make the bringing of
         such actions excessively difficult or impossible in practice (principle of effectiveness). (87)
      
      116. The legal systems of the Member States make provision, under various names, for the possibility of conducting a further review
         of unchallengeable administrative measures if they are vitiated by certain defects. In German law, Paragraph 48 of the VwVfG
         confers on the Administration the power to withdraw an unlawful decision, even if it is final. Where maintaining such a decision
         in force is regarded as being ‘simply untenable’, the national courts have curbed that power to such an extent that it has
         ceased to be discretionary and now constitutes an obligation to annul.
      
      117. It is therefore for the referring court to interpret and apply that provision in a way which, having due regard for the aforementioned
         principles, and while guaranteeing the rights of third parties and preventing the adoption of measures having unlawful outcomes,
         gives full effect to Article 11(1) of Directive 97/13. 
      
      118. It must not be forgotten that Article 11(1), like Article 11(2), is, from the point of view of its content, unconditional
         and sufficiently precise and therefore has direct effect, (88) a fact which places on the national court an obligation to ensure that the domestic procedural provisions facilitate a solution
         which is consistent with that feature of the Community provision. The duty to interpret national law in a manner consistent
         with the requirements of Community law, which was established by the Court in the judgment in Marleasing and defined in the judgment in Pfeiffer and Others, both cited above, is eminently applicable here.
      
      119. Moreover, beyond the context of the specific features of the German legal system, which provides the national court with a
         provision on which to base its task of giving effect to Community law, the difficulty could be resolved by means of interpretation. (89) In the judgment in Ciola, (90) the Court held that a final administrative measure which is incompatible with Community law cannot reduce the legal protection
         afforded to individuals. Under the third pillar of the European Union, where decisions do not have direct effect (Article
         34(2)(b) TEU), the Court, in the recent judgment in Pupino, (91) allowed the national court to apply an exceptional procedural formality (taking evidence before the trial in criminal proceedings)
         in a situation which had not been provided for by the national legislature, in order to fulfil the objectives of Council Framework
         Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings. (92)
      
      120. For the same purpose, the Court has supported, even in the context of judicial proceedings, although exceptionally so, interpretations
         which are inconsistent with the wording of national legislation, the rule in Simmenthal and Factortame and Others (93) requiring courts to dispense with any provision which represents a barrier to the full effectiveness of Community law. To
         that effect, in the judgment in Peterbroeck, (94) the Court held that Community law precludes a national procedural rule which, in the circumstances of the main proceedings, (95) prohibited the national court from assessing of its own motion the compatibility of a national legal measure with a Community
         provision if it had not been relied on by the individual within a certain period. In the judgment in Océano Grupo Editorial and Salvat Editores, (96) the Court held that interpretation in conformity with Community law requires the national court to favour the interpretation
         which gives effect to Council Directive 93/13/EEC of 5 April 1993 (97) on consumer protection and to decline of its own motion the jurisdiction conferred on it by virtue of an unfair term. Similarly,
         the Court held in the judgment in Cofidis (98) that that directive precludes a national provision which, in proceedings brought by a seller or supplier against a consumer
         on the basis of a contract concluded between them, prohibits the national court, on expiry of a limitation period, from finding,
         of its own motion [or] following a plea raised by the defendant, that a term of the contract is unfair. In the judgment in
         Larsy, (99) the Court found that national rules (in that case, the principle of the authority of res judicata) are to be excluded in so far as they hinder the effective protection of rights deriving from the direct effect of Community
         law.
      
      121. Consequently, by virtue of the undertaking of loyalty to the Community contained in Article 10 EC, Article 11 of Directive
         97/13 requires that assessments which are contrary to it and which have become final because they were not challenged in time
         should be reviewed, if maintaining them in force is at odds with the spirit of that provision and gives rise to situations
         which are unfair and contrary to equity or to the other principles underlying Community law. National courts must interpret
         their national law in such a way as to ensure that, in such circumstances, it allows the aforementioned measures to be re-examined,
         provided that the rights of third parties are respected.
      
      VI –  Conclusion
      122. In the light of the foregoing considerations, I propose that the Court of Justice should answer the questions raised by the
         Bundesverwaltungsgericht as follows:
      
      1)         Article 11(1) 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 telecommunications services precludes a fee for the issue,
         management, control and enforcement of individual licences which is calculated on the basis of a forecast of the general administrative
         costs that will be incurred by the national regulatory authority over a period of 30 years.
      
      2)         Having regard to the duty of loyal cooperation contained in Article 10 EC, Article 11(1) of Directive 97/13 requires that
         assessments to individual licence fees which infringe that provision and have become final because they were not challenged
         within the prescribed periods should be capable of being reconsidered if, by impeding the attainment of the objectives pursued
         by the directive, they consolidate situations which are contrary to equity or to the principles underlying Community law.
         It is for the national courts to interpret their national law in a way which ensures that it facilitates such review, without
         prejudice to the rights of third parties.
      
      1 –	Original language: Spanish.
      
      2 – 	OJ 1997 L 117, p. 15. This directive has been replaced by 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 2002 L 108, p. 21).
      3 – 	Case C-462/99 [2003] ECR I-5197.
      
      4 – 	Joined Cases C-292/01 and C-293/01 [2003] ECR I-9449.
      
      55 – 	Joined Cases C-327/03 and C-328/03 [2005] ECR I-8877.
      
      66 – 	Opinions of 12 December 2002 and 9 December 2004, respectively.
      
      77 – 	Galetta, D.U., ‘Autotutela decisoria e diritto comunitario’, in Rivista Italiana di Diritto Pubblico, 2005, pp. 35 to 59, maintains that any reconsideration of an administrative measure which cannot be challenged requires
         a careful balancing of values. On one side of the scale is the primacy of Community law, underpinned by the principles of
         legality, equivalence, effectiveness and loyal cooperation. On the other side is legal certainty (p. 50).
      
      88 – 	Case C-453/00 [2004] ECR I-837.
      
      9 –	Case C-234/04 Kapferer, the Opinion in which was delivered by Advocate General Tizzano on 10 November last year and the judgment in which was given
         today. A similar issue is raised in Case C-274/04 ED & F Man Sugar Ltd, which concerns whether, in an action challenging a sanction relating to export refunds, it is possible to examine whether
         an exporter actually claimed an amount in excess of that due, even though the recovery order has become final; Advocate General
         Léger, in his Opinion of 29 September 2005, proposes an affirmative answer.
      
      10 – 	Case C-339/04, in which judgment has not yet been delivered. See, in particular, points 3 to 6.
      
      11 – 	According to the first indent of Article 2(1)(a) of the directive, general authorisation is any which, ‘regardless of
         whether it is regulated by a ‘class licence’ or under general law and whether such regulation requires registration …, does
         not require the undertaking concerned to obtain an explicit decision by the national regulatory authority before exercising
         the rights stemming from the authorisation’.
      
      12 – 	An individual licence is one ‘which is granted by a national regulatory authority and which gives an undertaking specific
         rights or which subjects that undertaking’s operations to specific obligations supplementing the general authorisation where
         applicable, where the undertaking is not entitled to exercise the rights concerned until it has received the decision by the
         national regulatory authority’ (second indent of Article 2(1)(a) of the directive).
      
      13 – 	The directive defines ‘authorisations’ as ‘any permission setting out rights and obligations specific to the telecommunications
         sector and allowing undertakings to provide telecommunications services’ and ‘establish and/or operate telecommunications
         networks for the provision of such services …’ (first paragraph of Article 2(1)(a)).
      
      14 – 	The conditions to which the authorisations can be made subject are set out in the annex to the directive.
      
      15 – 	BGBl. 1996, I, p. 1120.
      
      16 – 	BGBl. 1997, I, p. 1936.
      
      17 – 	This category includes licences entitling the holder or another person to provide public telecommunications services in
         a given area (point A.3 of the Annex to Paragraph 1(1) of the TKLGebV 1997.
      
      18 – 	The fee was calculated by means of a fraction, the numerator representing the product of the number of inhabitants in
         the licence area (EG) and the maximum fee for Class 3 licences set out in point A.3 of the Annex to the TKLGebV 1997 (GD), the denominator being the total population of Germany (ED). In accordance with that formula, the fee for a Class 3 licence for the entire national territory was DEM 10 600 000, that
         amount decreasing in proportion to as the number of potential customers (Paragraph 3(4) in conjunction with the Annex to Paragraph
         1(1) of the TKLGebV 1997).
      
      19 – 	To be more precise, in its judgment of 19 September 2001 (Case 6 C 13.00, BVerwGE Volume 115, p. 125), to which I shall
         refer later, the Bundesverwaltungsgericht stated that the amount of the general administration costs was calculated from the
         personnel and equipment costs for 52.1 posts over a period of 30 years.
      
      20 – 	The finding of illegality also extended to the fees for Class 4 licences, which entitle holders to provide telephony services
         through telecommunications networks operated by the holder within a particular area (point A.4 of the Annex to Paragraph 1(1)
         of the TKLGebV 1997).
      
      21 – 	BGBl. 2002, I, p. 3542. 
      
      22 – 	Paragraph 13 et seq. of its statement in intervention.
      
      23 – 	Footnote 26 and point 101 of this Opinion.
      
      24 –	BGBl. 1976, I, p. 1253. Version of 21 September 1998 (BGBl. 1998, I, p. 3050).
      
      25 – 	The German legislation uses the word ‘unanfechtbar’, which may be translated into Spanish as ‘inimpugnable’ (‘unchallengeable’)
         or ‘inatacable’ (‘incontestable’). I prefer to use the qualifier ‘firme’ (‘final’), which refers in continental administrative
         law to decisions which, for whatever reason (exhaustion of the relevant remedies or expiry of the time-limits for pursuing
         them), cannot be reviewed in ordinary proceedings, rather than the term ‘definitiva’ (‘definitive’), which describes decisions
         representing the final word of the Administration, although proceedings may be brought before the courts.
      
      26 – 	In fact, nine substantively identical judgments were delivered on that day. Thirty-seven companies brought legal proceedings,
         nine of which (Storm Telecommunications Limited, KDD-CONOS AG, Carrier 1 International GmbH, TelePassport Service AG, Airdata
         Holding GmbH, ECN Telekommunikation GmbH, BerliKomm Telekommunikationsgesellschaft GmbH, Telegate Aktiengesellschaft für telefonische
         Informationsdienste and First Telecom GmbH) obtained judgments in their favour. The other 28 reached agreement with the Administration
         on reimbursement of the fee.
      
      27 – 	In its written observations, the German Government proposes that the Court of Justice refrain from carrying out the latter
         examination, on the ground that Directive 97/13 has been repealed, that the new Directive 2002/20 abolishes individual licences
         and that its charging provisions entered into force on 25 July 2003 and are not applicable to prior events. This approach
         seems erroneous since the disputes in the main proceedings concern whether a fee assessed under the first of the directives
         cited, in accordance with rules adopted in implementation of  the national legislation transposing the directive, is consistent
         with Community law, and it therefore seems manifestly appropriate to undertake the examination proposed by the Bundesverwaltungsgericht.
         In short, the national events and rules to be adjudicated on must be examined by reference to the Community legislation applicable
         at the material time.
      
      28 – 	The Court has consistently taken this view since its judgment in Case 33/76 Rewe [1976] ECR 1989.
      
      29 – 	The following lines reproduce point 29 et seq. of that Opinion.
      
      30 – 	They may be predetermined either by the Administration (‘class licences’) or by the legislature itself (this follows from
         recital 8 and the first indent of Article 2(1)(a) of Directive 97/13). 
      
      31 – 	Article 11(1) of the Spanish version of the directive refers to ‘régimen de licencias individuales aplicable’ (applicable
         individual licence scheme) but the German, Italian, English and French texts do not contain the word ‘scheme’. The first reads
         ‘die Ausstellung, Verwaltung, Kontrolle und Durchsetzung der jeweiligen Einzelgenehmigungen’; the second, ‘il rilascio, la
         gestione, il controllo e l’esecuzione delle relative licenze individuali’; the English, ‘in the issue, management, control
         and enforcement of the applicable individual licences’; and the French, ‘à la délivrance, à la gestion, au contrôle et à l’application
         des licences individuelles applicables’.
      
      32 – 	‘Tasas’ (fees) or ‘precios públicos’ (public charges). Some years ago, there was heated debate among Spanish legal commentators
         as to the respective definitions of those two terms. See Aguallo Avilés, A., Tasas y precios públicos: análisis de la categoría jurídica del precio público y su delimitación con la tasa desde la perspectiva
            constitucional, Editorial Lex Nova, Valladolid, 1992, and Martín Fernández, F.J., Tasas y precios públicos en el derecho español, Instituto de Estudios Fiscales – Marcial Pons, Ediciones Jurídicas, S.A., Madrid, 1995.
      
      	In the German, English, French and Italian versions of the directive, the words ‘Gebühren’, ‘fees’, ‘taxes’ and ‘diritti’
         are used respectively.
      
      33 – 	Directive 2002/20 endorses this interpretation when it states, in recital 31, that ‘[w]ith a general authorisation system
         it will no longer be possible to attribute administrative costs and hence charges to individual undertakings except for the
         granting of rights to use numbers, radio frequencies and for rights to install facilities’, that is to say [except] for the
         permits referred to in the 1997 directive as ‘individual licences’ and in the new one as ‘rights of use for radio frequencies
         and numbers’ (Article 5).
      
      34 – 	In points 40 to 43 of the Opinion in Albacom and Infostrada, I examined the elements and properties of that tax, which fosters equal treatment and encourages innovative services and
         competition. In the Opinion in Isis Multimedia and Firma 02, I considered those requirements at length, specifically in relation to the situation on the German market (points 33 et
         seq.).
      
      35 – 	The Court applied the same criteria in relation to indirect taxes on the raising of capital, harmonised by Directive 69/335/EEC
         of the Council of 17 July 1969 (OJ English Special Edition 1969 (II), p. 412), in the judgment in Joined Cases C-71/91 and
         C-178/91 Ponente Carni and Cispadina Costruzioni [1993] ECR I-1915, paragraph 43. In its judgment in Case C‑188/95 Fantask and Others [1997] ECR I-6783, the Court held that account may be taken not only of the material and salary costs which are directly
         related to the service paid for by the charge, but also of the proportion of the overheads of the competent authority which
         can be attributed to it (paragraph 30).
      
      36 – 	In points 3 et seq., I explained the changes in the legislation governing telecommunications in the Community.
      
      37 – 	The individual licence fee scheme presupposes that, on the basis of an economy of scale, the more licence holders there
         are, the lower the fee which each has to pay will be (opening facilities and taking on staff to serve 4 undertakings is not
         the same as doing so for 25). Consequently, a method which disregards the increase in the number of operators in an expanding
         sector, and requires the charging of a fee which, because of the length of the period prescribed, bears no relation to reality,
         must be rejected.
      
      38 – 	Article 12(1)(a) concerns costs incurred in the management, control and enforcement of rights of use; it also concerns
         costs resulting from ‘international cooperation, harmonisation and standardisation, market analysis, monitoring compliance
         and other market control, as well as regulatory work involving preparation and enforcement’, and goes on to state, after reiterating
         the requirements of neutrality, transparency and proportionality, that national regulatory authorities ‘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 12(2)).
      
      39 – 	The judgment refers to the dynamics of telecommunications and to the three decades to which the forecast relates. The
         Bundesverwaltungsgericht finds that, in 1997, it was not possible to imagine how that sector would develop, since it was not
         known how many national and foreign companies would be in a position to compete with the dominant, formerly monopoly-holding,
         undertaking, or what the consequences would be for licensing.
      
      40 – 	Schütz, R. and Nüsken, J.P., ‘Gebühr für Telekommunikationslizenz – Rechtswidrige Haushaltssanierung auf Kosten des Wettbewerbs?’,
         in Multimedia und Recht, 1998, pp. 523 to 528. Von Roenne, H., ‘Gebühr fur TK-Lizenzen’, in Multimedia und Recht, 1998, pp.
         XIV to XVI, asks whether a period of 30 years is relevant in a rapidly-developing market and whether licences will survive
         for that length of time or even less.
      
      41 – 	Coutron, A., ‘Cour de Justice, 13 janvier 2004, Kühne & Heitz NV/Productschap voor Pluimvee en Eieren’, in Revue des affaires européennes, 13th year (2003-2004), 3, pp. 417 to 434, criticises the Court of Justice for relying on national law, because, in so doing, it
         runs the risk of creating differences in the protection of the rights of individuals (pp. 525 and 427). Peerbux-Beaugendre,
         Z., ‘Une administration ne peut invoquer le principe de la force de chose définitivement jugée pour refuser de réexaminer
         une décision dont une interprétation préjudicielle ultérieure a révélé la contrariété avec le droit communautaire (Commentaire
         de l'arrêt de la CJCE du 13 janvier 2004)’, in Revue du droit de l'Union européenne, 3-2004, pp. 559 to 567, fears that this judgment will be a source of further divergence in the application of Community
         law (p. 566). Martín Rodríguez, P., ‘La revisión de los actos administrativos firmes: ¿Un nuevo instrumento de garantía de
         la primacía y efectividad del derecho comunitario? Comentario a la sentencia del TJCE de 13 de enero de 2004, C-453/00, Kühne
         & Heitz NV’, in Revista General de Derecho Europeo, No 5, October 2004 (www.iustel.com), maintains that a literal interpretation of that judgment makes it worthless since few
         legal systems entitle the Administration to review an administrative decision which has been endorsed by a judgment.
      
      42 – 	Case C-310/97 [1999] ECR I-5363.
      
      43 – 	In German legal commentary, Potacs, M., ‘Bestandskraft staatlicher Verwaltunsakte oder Effektivität des Gemeinschaftsrechts?
         – Anmerkung zum Urteil vom 13. Januar, Kühne & Heitz NV/Productschap voor Pluimvee en Eieren, Rs C-453/00’, in Europarecht, 2004, pp. 595 to 603, points out that, in such situations, Community law takes precedence only exceptionally and only if
         national law does not provide sufficient mechanisms for resolving the dispute.
      
      44 – 	In Joined Case 7/56 and 3/57 to 7/57 Algera and Others [1957] ECR 39, the Court annulled decisions relating to staff which had been adopted by the Common Assembly of the European
         Coal and Steel Community by reference to rules common to the national laws of the Member States concerning the revocation
         of unlawful measures, which allow such measures to be reconsidered within a reasonable period of time.
      
      45 – 	Case C-459/02 [2004] ECR I-7315.
      
      46 – 	Hatje. A., ‘Die Rechtskraft und ihre Durchbrechungsmöglichkeiten im Lichte des Gemeinschaftsrechts’, in Das EuGH-Verfahren in Steuersachen, Vienna, 2000, pp. 133 to 149, in particular, p. 135.
      
      47 – 	Peerbux-Beaugendre, Z., ‘Autorité de la chose jugée et primauté du droit communautaire’, in Revue française de droit administratif, No 3, May-June 2005, pp. 473 to 481, supports that view, since a definitive judgment is no more than the expression of a
         relative ‘legal truth’ the consequences of which must be restricted in certain circumstances.
      
      48 – 	Joined Cases 42/59 and 49/59 [1961] ECR 53.
      
      49 –	In its written observations, the Commission calls this the ‘principle of substantive justice’.
      
      50 –	This occurs, as I have already pointed out (point 26 of this Opinion), if the continued existence of the decision infringes
         the principle of equality, is contrary to public policy or the principle of good faith or is manifestly unlawful, or if, in
         the circumstances, discretion can be properly exercised only by annulment of the decision.
      
      51 –	Spanish law requires the public authorities automatically to declare void, on their own initiative or at the request of
         the person concerned, measures which have concluded administrative proceedings or which have not been contested within the
         prescribed period, if they adversely affect rights and freedoms capable of protection under the Constitution, such measures
         being fundamentally void (Article 102(1) in conjunction with Article 62(1)(a) of Ley 30/1992, de 26 de noviembre, de Régimen
         Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común (Law No 30/1992 of 26 November 1992 on
         the rules governing the public authorities and the common administrative procedure) (Boletín Oficial del Estado of 27 November 1992)).
      
      52 –	The Spanish Constitution of 1978 is very expressive in this regard. After stating in Article 9(1) that all persons, citizens
         and public authorities alike, are bound by the Constitution and all other legal provisions, it qualifies that assertion, when
         defining the status of the Administration, to the effect that the latter is to serve the general interest in a spirit of objectivity,
         in full subordination to written law and ‘[the principles of] law’ (Article 103(1)), and makes the Administration subject
         to judicial review as to both the lawfulness of its activity and its adherence to the purposes for which it was created (Article
         106(1)).
      
      53 –	Hatje, A., op. cit. in footnote 45, p. 146, adopts a similar position by defending the primacy of Community law if formal finality presents an
         obstacle to its implementation.
      
      54 –	Budischowsky, J., ‘Zur Rechtskraft gemeinschaftswidriger Bescheide’, in Zeitschrift für Verwaltung, 2000, pp. 2 to 15, and Urlesberger, F., ‘Zur Rechtskraft im Gemeinschaftsrecht’, in Zeitschrift für Rechtsvergleichung, Internationales Privatrecht und Europarecht, 2004, pp. 99 to 104, take the view that powers of review must end where the rights of others begin. Article 106 of Spanish
         Law No 30/1992 prohibits those powers where, because of the passage of time or on other grounds, they are contrary to equity, good faith, the rights of individuals or legislation.
      
      55 –	Case 26/62 [1963] ECR 1.
      
      56 –	Case 10/61 [1962] ECR 1.
      
      57 –	Case 6/64 [1964] ECR 585.
      
      58 –	Rodríguez Iglesias, G. C., ‘El Poder Judicial en la Unión Europea’, in La Unión Europea tras la Reforma, Universidad de Cantabria, 1998, p. 15.
      
      59 –	Case 148/78 [1979] ECR 1629.
      
      60 –	Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover
         taxes – Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).
      
      61 –	Case 8/81 [1982] ECR 53.
      
      62 –	Case 152/84 [1986] ECR 723.
      
      63 –	Joined Cases C-397/01 to C-403/01 [2004] ECR I-8835.
      
      64 –	Case 14/83 [1984] ECR 1891.
      
      65 –	Case C-106/89 [1990] ECR I-4135.
      
      66 –	First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests
         of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58
         of the Treaty, with a view to making such safeguards equivalent throughout the Community (OJ English Special Edition 1968
         (I), p. 41).
      
      67 –	Judgment of 23 February 1991 of the Juzgado de Primera Instancia e Instrucción (Court of First Instance and Examining Magistrates’
         Court) No 1, Oviedo.
      
      68 –	Case 106/77 [1978] ECR 629.
      
      69 –	Case 103/88 [1989] ECR 1839.
      
      70 –	Case C-168/95 [1996] ECR I-4705.
      
      71 –	Joined Cases C-6/90 and C-9/90 [1991] ECR I-5357.
      
      72 –	Joined Cases C-46/93 and C-48/93 [1996] ECR I-1029.
      
      73 –	Case C-225/01 [2003] ECR I-10239.
      
      74 –	Case C-129/00 [2003] ECR I-14637.
      
      75 –	Martín Rodríguez, P., op. cit., in footnote 40, describes the judgments in Kühne & Heitz, Köbler and Commission v Italy as a ‘carta de la responsabilidad judicial’ (roadmap of judicial liability).
      
      76 –	Galletta, D.U., op. cit. in footnote 7, p. 58, emphasises the role of proportionality in this regard, which requires an
         assessment of the circumstances of each case.
      
      77 –	For a teleological interpretation of the directives adopted since 1990, see points 45 et seq. of the Opinion in Nuova società di telecomunicazioni.
      
      78 –	Council Directive 90/387/EEC of 28 June 1990 on the establishment of the internal market for telecommunications services
         through the implementation of open network provision (OJ 1990 L 192, p. 1).
      
      79 –	Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services (OJ 1990
         L 192, p. 10).
      
      80 –	Reinersddorff, W., ‘Rückforderung gezahlter Lizenzgebühren trotz Rechtskraft des Gebührenbescheids’, in Multimedia und Recht, 2002, pp. 299 to 300, draws attention to the complicated paradox of undertakings which paid the fee without taking legal
         action, and proposes that, in order to obtain reimbursement of the sums unduly paid, they should bring actions for damages
         against the State for the incorrect transposition of Directive 97/13.
      
      81 –	The prohibition against any unjustified unequal treatment forms part of the legal systems of the Member States and, through
         Article 6(2) TEU, constitutes a general principle of Community law.
      
      82 –	According to their oral submissions, i-21, a British undertaking established in the United Kingdom, was unaware of the
         possibility of reaching an agreement, whereas ISIS was aware of it but only partially.
      
      83 –	At the hearing, it was pointed out that the Oberverwaltungsgericht (Higher Administrative Court), Nordrhein-Westfalen,
         in an order granting interim relief of 27 October 1999,  assumed the legislation and implementing measures to be lawful (Case
         13 B 843/99, published in Multimedia und Recht, 2000, p. 115 et seq.).
      
      84 –	In which respect these proceedings differ from those in Kühne & Heitz, in which the administrative decision was endorsed by the courts in a judgment at final instance.
      
      85 –	According to Galetta, D.U., op. cit., in footnote 7, the public authorities must, within the context of the procedural autonomy conferred on the Member States,
         use the instruments at their disposal to eliminate the consequences of a breach of Community law (p. 49).
      
      86 –	Soriano, J.E., ‘Dos vivas por el triunfo de los principios generales en el derecho administrativo de la Comunidad (Nota
         sobre las conclusiones del abogado general Ruiz-Jarabo sobre la aplicación de la equidad como criterio justificador de una
         nueva vía de revisión de oficio. Asunto C-310/97 P)’, in Gaceta Jurídica de la Unión Europea y de la Competencia, No 200, April-May 1999, pp. 49 to 54, argues that a provision laying down a ‘Community administrative procedure’ should
         be drawn up.
      
      87 –	The judgments in Rewe and Case 45/76 Comet [1976] ECR 2043 were the first in a long list of judgments in which the Court ruled to that effect. The judgment in Case C-201/02
         Wells [2004] ECR I-723 used the foregoing doctrine to revoke or suspend an authorisation to operate a quarry which had been granted
         without the relevant environmental impact assessment.
      
      88 –	In the abovementioned judgment in Connect Austria, the Court conferred this characteristic on Article 11(2) of the directive.
      
      89 –	Frenz, W., ‘Rücknahme eines gemeinschaftsrechtswidrigen belastenden VA’, in Deutsches Verwaltungsblatt, 2004, pp. 373 to 376, supports the application of national legislation if it provides for the withdrawal of final administrative
         measures, any discretion which it recognises becoming an obligation. However, if national law is silent on the matter, he
         argues that domestic procedural rules should be discarded in order to prevent disparities between the Member States. He points
         out that this feature of finality is capable of blocking Community law, a consequence which is prohibited by the Court, as
         is demonstrated by its case-law on the direct effect of directives and State liability. Budichowsky, J., ‘Zur Rechtskraft
         gemeinschaftswidriger Bescheide’, in Zeitschrift für Verwaltung, 2000, pp. 2 to 15, concurs with that position, taking the view that the Community legal order must take precedence over
         domestic rules which automatically prevent review. According to Antonucci, M., ‘Il primato del diritto comunitario’, in Il Consiglio di Stato, 2004, pp. 225 to 233, national authorities have no option but to reconsider previous decisions adopted by them which are
         contrary to Community law as interpreted by the Court of Justice. Gentili, F., ‘Il principio comunitario di cooperazione nella
         giurisprudenza della Corte di Giustizia C.E.’, in Il Consiglio di Stato, 2004, pp. 233 to 238, points out that the principle in question (cooperation) requires that any administrative decision
         contrary to Community law should automatically be annulled, and that the exercise of review by the administrative authorities
         of measures which they themselves have adopted should cease to be discretionary, as it is in many national legal systems.
      
      90 –	Case C-224/97 [1997] ECR I-2517.
      
      91 –	Case C-105/03 [2005] ECR I-5285.
      
      92 –	OJ 2001 L 82, p. 1.
      
      93 –	Case C-213/89 [1990] ECR I-2433.
      
      94 –	Case C-312/93 [1995] ECR I-4599.
      
      95 –	Situation described in paragraphs 17 to 21 of the judgment.
      
      96 –	Joined Cases C-240/98 to C-244/98 [2000] ECR I-4941.
      
      97 –	Directive on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).
      
      98 –	Case C-473/00 [2002] ECR I-10875.
      
      99 –	Case C-118/00 [2001] ECR I-5063.