Vodafone España SAU v Diputación Foral de Guipúzcoa.
Date: 2020-10-06
29


To that end, Directive 2002/20 lays down not only rules governing the procedures for granting general authorisations or rights to use radio frequencies or numbers and the content of those authorisations but also rules setting out the nature and scope of the financial payments related to those procedures which Member States may impose on undertakings in the electronic communications services sector (judgment of 17 December 2015, Proximus, C‑454/13, EU:C:2015:819, paragraph 19 and the case-law cited).
32


Thus, according to settled case-law, Member States may not, within the framework of Directive 2002/20, levy any charges or fees in relation to the provision of networks and electronic communication services other than those provided for by that directive (see, to that effect, judgment of 17 December 2015, Proximus, C‑454/13, EU:C:2015:819, paragraph 20 and the case-law cited), namely those referred to in paragraphs 30 and 31 of the present judgment.
34


In that regard, it is sufficient to recall that the Court has held that Article 13 of Directive 2002/20 does not preclude a cumulation of several fees, in that it does not preclude national legislation which provides for the charging of a fee intended to favour optimal use of frequencies in addition to another fee which fulfils the same objective, provided that those fees, taken together, satisfy the conditions set out in that article (see, to that effect, judgment of 21 March 2013, Belgacom and Others, C‑375/11, EU:C:2013:185, paragraph 48).
36


In that regard, it follows from the settled case-law of the Court that, in the context of the examination of the tax levy concerned, the referring court cannot be bound by the classification of that levy under the applicable national law and that it is for that court to rely on the objective characteristics of that levy (see, to that effect, judgment of 18 January 2017, IRCCS – Fondazione Santa Lucia, C‑189/15, EU:C:2017:17, paragraph 29).
43


In that regard, the Court admittedly held that, in view of its characteristics, a charge for which the taxable persons were not exclusively operators providing electronic communications networks or services or those benefiting from the rights provided for in Article 13 of Directive 2002/20 did not constitute a ‘fee’ within the meaning of that article (see, to that effect, judgment of 4 September 2014, Belgacom and Mobistar, C‑256/13 and C‑264/13, EU:C:2014:2149, paragraph 36).
44


However, the Court specified that this was the case because the chargeable event giving rise to the charge at issue in the main proceedings was not linked to the granting of rights of use for radio frequencies or numbers or rights to install facilities on, over or under public or private property (see, to that effect, judgment of 4 September 2014, Belgacom and Mobistar, C‑256/13 and C‑264/13, EU:C:2014:2149, paragraph 37), the fact that that charge was imposed on all economic operators not being decisive in reaching that conclusion.
46


This is the case, in particular, where the fee concerned is imposed on undertakings providing electronic communications networks and services in return for the right to use radio frequencies (see, to that effect, judgment of 6 October 2015, Base Company, C‑346/13, EU:C:2015:649, paragraph 22).
49


If, in the light of the foregoing, the referring court were to conclude that the tax on the transfer of assets falls within the scope of Article 13 of Directive 2002/20, it would be for that court to ascertain whether that tax and the charge for the allocation of public radio frequencies, taken together, satisfy the conditions set out in that article (see, to that effect, judgment of 21 March 2013, Belgacom and Others, C‑375/11, EU:C:2013:185, paragraph 48).
50


In that regard, the fee for the rights of use for radio frequencies which Member States may introduce must be objectively justified, transparent, non-discriminatory and proportionate in relation to its intended purpose and take into account, inter alia, the objectives which are the promotion of competition and efficient use of radio frequencies (see, to that effect, judgment of 21 March 2013, Belgacom and Others, C‑375/11, EU:C:2013:185, paragraph 46).
51


It is also apparent from Article 13 of Directive 2002/20, read in conjunction with recital 32 thereof, that a fee charged to operators of telecommunications services for the use of radio frequencies must pursue the purpose of ensuring optimal use of those frequencies and not hinder the development of innovative services and competition on the market (judgment of 21 March 2013, Belgacom and Others, C‑375/11, EU:C:2013:185, paragraph 47).
52


As regards, more specifically, the method of determining the amount of the fee for the use of radio frequencies, 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 (judgment of 21 March 2013, Belgacom and Others, C‑375/11, EU:C:2013:185, paragraph 50 and the case-law cited).
53


In those circumstances, 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 (judgment of 21 March 2013, Belgacom and Others, C‑375/11, EU:C:2013:185, paragraph 51 and the case-law cited).