CELEX: 62004CJ0339
Language: en
Date: 2006-07-18
Title: Judgment of the Court (Third Chamber) of 18 July 2006.#Nuova società di telecomunicazioni SpA v Ministero delle Comunicazioni and ENI SpA.#Reference for a preliminary ruling: Consiglio di Stato - Italy.#Telecommunication services - Directive 97/13/EC - Fees and charges applicable to individual licences.#Case C-339/04.

Case C-339/04
      Nuova società di telecomunicazioni SpA
      v
      Ministero delle Comunicazioni
      and
      ENI SpA
      (Reference for a preliminary ruling from the Consiglio di Stato)
      (Telecommunication services – Directive 97/13/EC – Fees and charges applicable to individual licences)
      Opinion of Advocate General Ruiz-Jarabo Colomer delivered on 27 October 2005 
      Judgment of the Court (Third Chamber), 18 July 2006 
      Summary of the Judgment
      1.     Approximation of laws – Telecommunications sector – Common framework for general authorisations and individual licences –
            Directive 97/13
      (European Parliament and Council Directive 97/13)
      2.     Approximation of laws – Telecommunications sector – Common framework for general authorisations and individual licences –
            Directive 97/13
      (European Parliament and Council Directive 97/13, Art. 11)
      1.     Directive 97/13 on a common framework for general authorisations and individual licences in the field of telecommunications
         services applies, in principle, not only to public telecommunication networks and services but also to private telecommunication
         networks which have not been opened to the public and are reserved to a closed group of users, and to services provided on
         those private networks. 
      
      (see para. 28)
      2.     Article 11 of Directive 97/13 on a common framework for general authorisations and individual licences in the field of telecommunications
         services precludes a national provision which requires the holder of an individual licence for the provision of a public telecommunications
         network, for which it has paid a fee as provided for in that article, to pay an additional fee in respect of the private use
         of that network calculated in accordance with criteria which do not correspond to those laid down in that article.
      
      Member States may not levy any fees or charges in relation to authorisation procedures other than those provided for by Directive
         97/13.
      
      (see paras 35, 38, operative part)
JUDGMENT OF THE COURT (Third Chamber)
      18 July 2006 (*)
      
      (Telecommunication services – Directive 97/13/EC – Fees and charges applicable to individual licences)
      In Case C-339/04,
      REFERENCE for a preliminary ruling under Article 234 EC from the Consiglio di Stato (Italy), made by decision of 24 February
         2004, received at the Court on 9 August 2004 in the proceedings
      
      Nuova società di telecomunicazioni SpA
      v
      Ministero delle Comunicazioni,
      ENI SpA,
      THE COURT (Third Chamber),
      composed of A. Rosas, President of Chamber, J.‑P. Puissochet, S. von Bahr (Rapporteur), U. Lõhmus and A. Ó Caoimh, Judges,
      Advocate General: D. Ruiz-Jarabo Colomer,
      Registrar: L. Hewlett, Principal Administrator,
      having regard to the written procedure and further to the hearing on 28 September 2005,
      after considering the observations submitted on behalf of:
      –       Nuova società di telecomunicazioni SpA, by A. Santa Maria and F.G. Scoca, lawyers,
      –       the Italian Government, by I. M. Braguglia, acting as Agent, assisted by P. Gentili, avvocato dello Stato,
      –       the Commission of the European Communities, by E. Traversa and M. Shotter, acting as Agents,
      after hearing the Opinion of the Advocate General at the sitting on 27 October 2005,
      gives the following
      Judgment
      1       The reference for a preliminary ruling concerns the interpretation of Directive 97/13/EC of the European Parliament and of
         the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications
         services (OJ 1997 L 117, p. 15).
      
      2       It has been made in a dispute between Nuova società di telecomunicazioni SpA (‘NST’) and the Ministero delle Comunicazioni
         (Ministry of Communications) concerning the payment of a charge for the private use of a telecommunications network.
      
       Legal context
       Community legislation
      3       Directive 97/13 establishes a common framework for authorisation systems designed to make it significantly easier for new
         operators to enter the market.
      
      4       Under Article 3(3) of that directive, Member States are to ensure that telecommunications services and/or telecommunications
         networks can be provided either with or without authorisation. The directive makes provision for two distinct authorising
         instruments, namely the general authorisation and the individual licence.
      
      5       According to the first indent of Article 2(1)(a) of Directive 97/13, a general authorisation, whether regulated by a ‘class
         licence’ or under general law, does not require the undertaking concerned to obtain an explicit decision by the national regulatory
         authority.
      
      6       According to the second indent of Article 2(1)(a) of that directive, an ‘individual licence’ is granted by a national regulatory
         authority and confers specific rights on an undertaking or subjects its operations to specific obligations.
      
      7       Under Article 7(1) of Directive 97/13, Member States may issue individual licences only for certain specific purposes, and
         in particular in order to allow the licensee access to radio frequencies or numbers.
      
      8       Article 7(2) of the directive provides, however, that the establishment and provision of public telecommunications networks
         as well as other networks involving the use of radio frequencies may be subject to individual licences.
      
      9       Concerning the fees and charges applicable to individual licences, Article 11(1) of Directive 97/13 provides that fees are
         to 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 are to be proportionate to the work involved and to be published in
         an appropriate and sufficiently detailed manner, so as to be readily accessible.
      
      10     Where, however, scarce resources are to be used, Article 11(2) of Directive 97/13 permits Member States to authorise their
         national regulatory authorities to impose charges which reflect the need to ensure the optimal use of those resources.
      
       National legislation
      11     Before the liberalisation of the telecommunications market, companies entitled to provide public utility services could, in
         the context of a franchise system, operate telecommunications networks for their internal needs, in accordance with the Postal
         and Telecommunication Code approved by Presidential Decree No 156 (testo unico delle disposizioni legislative in materia postale
         di bancoposta e di telecomunicazioni approvato con decreto del Presidente della Repubblica n° 156), of 29 March 1973 (GURI
         No 113, of 3 May 1973; ‘the Code’).
      
      12     In the context of the liberalisation of the telecommunications market, Presidential Decree No 318, applying Community directives
         in the telecommunications sector (decreto del Presidente della Repubblica n°318, Regolamento per l’attuazione di direttive
         comunitarie nel settore delle telecomunicazioni), of 19 September 1997 (ordinary supplement to the GURI No 221, of 22 September
         1997; ‘Decree No 318/97’), made it possible for certain companies to obtain an individual licence to offer telecommunication
         services to the public.
      
      13     Article 6 of Decree No 318/97 governs the procedure for granting general authorisations and individual licences and lays down
         the rules for levying charges. According to that article, save where scarce resources are to be used, the charge imposed on
         undertakings for individual licences is intended solely to cover the administrative costs incurred in the issue of the licence,
         monitoring the management of the service and enforcing compliance with the conditions laid down in the licences themselves.
      
      14     Article 21(2) to (5) of Decree No 318/97, which had extended the new system to networks for private use, was repealed by Article
         20 of Law No 448, introducing public finance measures for stabilisation and development (legge n° 448, Misure di finanza pubblica
         per la stabilizzazione e lo sviluppo), of 23 December 1998 (ordinary supplement to the GURI No 302, of 29 December 1998; ‘Law
         No 448/98’). The latter article did, however, provide that the provisions of the Code concerning the calculation of pecuniary
         charges relating to private networks would remain applicable until the adoption of new regulatory and legislative provisions
         on the matter.
      
      15     Under Article 4(6) of Law No 249, on the designation of the telecommunications supervisory authority and the establishment
         of rules in the telecommunications and audiovisual sector (legge n° 249, Istituzione dell’Autorità per le garanzie nelle comunicazioni
         e norme sui sistemi delle telecomunicazioni e radiotelevisivo), of 31 July 1997 (ordinary supplement to the GURI No 177, of
         31 July 1997), companies entitled to provide public utility services which had established private networks to meet their
         own needs are required to set up a separate company to carry out any activity in that sector and must pay charges in that
         respect in accordance with Article 20 of Law No 448 of 1998.
      
       The dispute in the main proceedings 
      16     The dispute in the main proceedings, as described in the order for reference, may be summarised as follows.
      17     In accordance with Article 213 of the Code, ENI SpA (‘ENI’) was, before the liberalisation of the telecommunications market,
         the assignee of radio frequencies for its internal needs.
      
      18     Following that liberalisation, and as a result in particular of Directive 97/13, ENI established NST and entrusted to that
         company the management of the telecommunications network hitherto used only for its internal needs.
      
      19     On 12 June 1998, NST obtained an individual licence pursuant to Decree No 318/97, transposing Directive 97/13 into national
         law, for the provision, by means of that network, of telecommunications services to the public.
      
      20     The Ministry of Telecommunications demanded two fees from NST in relation to that network, one for the provision of telecommunication
         services to the public and the other for private use of that network. That second fee was demanded for 1999 by a written communication
         from that ministry of 26 February 1999 and corresponded to the amount previously paid by ENI in accordance with the Code.
      
      21     NST challenged the second fee before the Italian administrative courts.
      22     The Consiglio di Stato (Council of State) has doubts as to whether the obligation on NST to pay two distinct fees for public
         use and private use of a network is compatible with Directive 97/13. In the alternative, the Consiglio di Stato questions
         whether the calculation of the second fee is compatible with Article 11 of that directive.
      
      23     In those circumstances, the Consiglio di Stato decided to stay the proceedings and refer the following questions to the Court
         for a preliminary ruling:
      
      ‘(1)      Is a national provision which – having required companies entitled to provide public utility services, which have established
         telecommunications networks in the past to meet their own needs under a system of paid franchises, to set up a separate company
         to carry out any activity in the field of telecommunications – provides that the separate company, although licensed to provide
         public services, must pay, albeit only on a temporary basis, an additional fee for the allocation of the telecommunications
         network to the parent company, compatible with the basic principles laid down in the abovementioned Directive 97/13?
      
      (2)      Is a national provision which calculates (on a temporary basis) the second and additional fee charged for the activity carried
         out for the parent company on the basis of what was paid in the past by the parent company under the previous system of exclusive
         rights, with separate franchises for telecommunication systems for public use and franchises for systems for private use,
         consistent with Community law and the interpretation placed thereon by the Fifth Chamber of the Court of Justice in its judgment
         of 18 September 2003 [C‑292/01 and C‑293/01 Albacom and Infostrada [2003] ECR I‑9449)]?’
      
       The questions
      24     By its two questions, the Consiglio di Stato asks, in essence, whether Article 11 of Directive 97/13 precludes a national
         provision, such as that at issue in the main proceedings, which requires a company holding an individual licence for the provision
         of a public telecommunications network, for which it has paid a fee as provided for in that article, to pay an additional
         fee in respect of the private use of that network.
      
      25     The Italian Government argues that Directive 97/13 does not apply to private telecommunication networks or services, but only
         to public telecommunication networks or services. It therefore considers that that directive does not preclude the charging
         of an additional fee, such as the second fee at issue in the main proceedings, in relation to the private use of a telecommunication
         network.
      
      26     The Court finds in that respect that, according to Article 1(1) of Directive 97/13, the latter concerns the procedures for
         granting authorisations for the purposes of providing telecommunication services, without making any distinction between networks
         open to the public and private networks.
      
      27     In addition, Article 7(2) of that directive authorises Member States to enact a system of individual licences for the establishment
         and provision of public telecommunication networks as well as other networks involving the use of radio frequencies.
      
      28     It follows that that directive applies, in principle, not only to public telecommunication networks and services but also
         to private telecommunication networks which have not been opened to the public and are reserved to a closed group of users,
         and to services provided on those private networks.
      
      29     According to the referring court, the network at issue in the main proceedings has been opened to the public by virtue of
         the individual licence authorising NST to provide a public telecommunication network, in accordance with Article 7(2) of Directive
         97/13.
      
      30     In that respect, it should be noted that, in accordance with the fifth recital of Directive 97/33/EC of the European Parliament
         and of the Council of 30 June 1997 on interconnection in Telecommunications with regard to ensuring universal service and
         interoperability through application of the principles of Open Network Provision (ONP) (OJ 1997 L 199, p. 32), the word ‘public’
         refers to any network or service that is made publicly available for use by third parties.
      
      31     Moreover, it follows from the second subparagraph of Article 2(2) of 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), as amended by Directive 97/51/EC of the European Parliament and of the Council of 6 October 1997 (OJ 1997 L 295, p. 23),
         that ‘public telecommunications network’ is to be interpreted as a telecommunications network ‘used, wholly or in part, for
         the provision of publicly available telecommunications services’.
      
      32     It follows that a network such as that at issue in the main proceedings, which has been made available to the public after
         having been used solely for private purposes, must be regarded as a public telecommunications network within the meaning of
         Directive 97/13.
      
      33     Therefore, such a telecommunications network, and all services supplied under it, fall in their entirety within the scope
         of that directive.
      
      34     In those circumstances, it needs to be examined whether the charging of two distinct fees for the provision of a public telecommunications
         network and the services provided on that network complies with the rules of that directive.
      
      35     In that respect, it should be noted that Member States may not levy any fees or charges in relation to authorisation procedures
         other than those provided for by Directive 97/13 (see, to that effect, Albacom and Infostrada, paragraph 41).
      
      36     Article 11 of that directive expressly provides that Member States are to ensure that any fees imposed on undertakings as
         part of authorisation procedures seek only to cover the administrative costs incurred by the licensing system (Albacom and Infostrada, paragraph 33).
      
      37     It is apparent from the order for reference and from the observations submitted to the Court that the second fee has been
         calculated in accordance with the criteria laid down by the Code before the liberalisation of the telecommunications market,
         which do not correspond to those laid down in Article 11 of Directive 97/13.
      
      38     In the light of the above, the answer to the questions referred must be that Article 11 of Directive 97/13 precludes a national
         provision, such as that at issue in the main proceedings, which requires the holder of an individual licence for the provision
         of a public telecommunications network, for which it has paid a fee as provided for in that article, to pay an additional
         fee in respect of the private use of that network calculated in accordance with criteria which do not correspond to those
         laid down in that article.
      
       Costs
      39     Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
         the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
         of those parties, are not recoverable.
      
      On those grounds, the Court (Third Chamber) hereby rules:
      Article 11 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 national provision,
            such as that at issue in the main proceedings, which requires the holder of an individual licence for the provision of a public
            telecommunications network, for which it has paid a fee as provided for in that article, to pay an additional fee in respect
            of the private use of that network calculated in accordance with criteria which do not correspond to those laid down in that
            article.
      [Signatures]
      * Language of the case: Italian.