Telefónica Móviles España SA v Administración del Estado and Secretaría de Estado de Telecomunicaciones.
Date: 2011-03-10
20. As is clear from recitals 1, 3, 4 and 5 in the preamble, Directive 97/13 is among the measures adopted to achieve the complete liberalisation of telecommunications services and infrastructures. To that end, Directive 97/13 established a common framework applicable to authorisation schemes, intended to facilitate significantly the entry of new operators into the market. In addition to laying down rules for authorisation procedures and the content of authorisations, that framework sets out the nature and scope of the financial payments related to those procedures which Member States may impose on undertakings in the field of telecommunications services (Joined Cases C‑292/01 and C‑293/01 Albacom and Infostrada  [2003] ECR I‑9449, paragraphs 35 and 36).
21. The common framework which Directive 97/13 seeks to establish would be rendered redundant if Member States were free to establish the financial charges to be borne by undertakings in the sector ( Albacom and Infostrada , paragraph 38). Accordingly, Member States may not levy any fees or charges in relation to authorisation procedures other than those provided for by Directive 97/13 (Case C‑339/04 Nuova società di telecomunicazioni  [2006] ECR I‑6917, paragraph 35).
22. As is stated in recital 12 to Directive 97/13, those charges must be based on objective, non-discriminatory and transparent criteria. Moreover, they must not conflict with the objective of the complete liberalisation of the market, which implies opening it completely to competition ( Albacom and Infostrada , paragraph 37).
23. As regards, more specifically, any fees imposed by Member States on undertakings which hold individual licences under Article 11 of Directive 97/13, Article 11(1) provides that those fees are to seek only to cover the administration costs generated by the work involved in implementing those licences (Joined Cases C‑392/04 and C‑422/04 i-21 Germany and Arcor  [2006] ECR I‑8559, paragraph 28).
24. As regards the use of scarce resources, Article 11(2) of Directive 97/13 authorises Member States to set, in addition to charges designed to cover administration costs, a supplementary charge with the purpose of ensuring optimal use of such resources (see, to that effect, Joined Cases C‑327/03 and C‑328/03 ISIS Multimedia Net and Firma O2  [2005] ECR I‑8877, paragraph 23). In addition, that supplementary charge must, under the terms of Article 11, be non‑discriminatory and take into account the need to foster the development of innovative services and competition.
25. Article 11(2) of Directive 97/13 accordingly lays down the requirements with which Member States must comply in determining the amount of a charge for the use of scarce resources, without thereby expressly providing a specific method for determining the amount of such a charge or the use which must subsequently be made of the income from that charge.
27. It is also apparent from the European Commission’s written observations that the authorisation to use public property which constitutes a scarce resource enables the holder of that authorisation to make significant economic gains and grants that holder advantages as compared with other operators who are also seeking to use and exploit that resource, which justifies imposing a charge which reflects, inter alia, the value of the use of the scarce resource at issue.
28. In those circumstances, as the Spanish Government and the Commission have argued, the purpose of ensuring that operators make optimal use of scarce resources to which they have access means that the charge must be set at an appropriate level to reflect inter alia the value of the use of those resources, which requires account to be taken of the economic and technical situation of the market concerned.
30. As regards the requirement that the need to foster the development of innovative services and competition be taken into account, this entails that the amount of the charge cannot have the effect of hindering the access of new operators to the market or of reducing the capacity of telecommunications service operators for innovation (see, to that effect, Case C‑431/07 P Bouygues and Bouygues Télécom v Commission  [2009] ECR I‑2665, paragraph 125). It also means that competition must not be distorted, which can be guaranteed only if equality of opportunity is secured as between the various economic operators (see, to that effect, ISIS Multimedia Net and Firma O2 , paragraphs 38 and 39).
31. Thus, Member States cannot, in principle, apply different charges to competing operators for the use of scarce resources whose values appear to be equivalent in economic terms (see, to that effect ISIS Multimedia Net and Firma O2 , paragraphs 40 and 41).
33. That is borne out, moreover, by the ‘Authorisation’ Directive, even if it is inapplicable ratione temporis  to the case before the national court, recital 32 to which states that Member States should be able to levy usage fees for the use of radio frequencies and numbers as an instrument to ensure the optimal use of such resources, without the directive circumscribing the purpose for which fees for rights of use are employed.