Vodafone Malta ltd. and Mobisle Communications ltd. v Avukat Ġenerali and Others.
Date: 2013-06-27
19. It should be noted at the outset that Article 13 of the Authorisation Directive lays down the conditions under which fees may be imposed for the rights of use for radio frequencies or numbers or rights to install facilities on, over or under public or private property. However, as is apparent from the order for reference, the levying of a charge referred to as ‘excise duty’ on all payments received by mobile telephony operators for their services, such as the charge at issue in the main proceedings, is linked to the ‘provision of mobile telephony services’. As a consequence, Article 13 of the Authorisation Directive is irrelevant for the purpose of the main proceedings.
20. With regard to Article 12 of the Authorisation Directive, it should be noted that the directive 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 (see, by analogy, Albacom and Infostrada , paragraphs 35 and 36, and Case C‑284/10 Telefónica de España  [2011] ECR I‑6991, paragraph 18).
23. Thus, it is the Court’s settled case‑law, in particular with regard to administrative charges imposed by Member States on operators holding a general authorisation under Article 12 of the Authorisation Directive, that the only purpose of such charges is to cover the administrative costs incurred in four administrative activities, namely the issue, management, control and enforcement of the applicable general authorisation scheme (see, by analogy, Telefónica de España , paragraph 22).
24. It is apparent from the foregoing that a charge the trigger for which is linked to a general authorisation procedure for access to the electronic telecommunications services market falls within the scope of Article 12 of the Authorisation Directive. The Member States must ensure that such an administrative charge is levied only for the purposes described in Article 12 of the Authorisation Directive and complies with the requirements set out in that provision.
25. On the other hand, a charge the trigger for which is linked not to a general authorisation procedure for access to the electronic telecommunications services market but to the use of mobile telephony services provided by operators and which is ultimately borne by the user of such services does not fall within the scope of Article 12 of the Authorisation Directive.
29. In the light of all the foregoing, the answer to the question referred is that Article 12 of the Authorisation Directive must be interpreted as not precluding the legislation of a Member State, such as the legislation at issue in the main proceedings, under which operators providing mobile telephony services are liable to pay ‘excise’ duty, calculated as a percentage of the charges paid to them by the users of those services, provided the trigger for that duty is not linked to the general authorisation procedure for access to the electronic communications services market but to the use of mobile telephony services provided by the operators and the duty is ultimately borne by the user of those services, which is a matter for the national court to verify.
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