Vodafone Omnitel NV (C‑228/12, C‑231/12 and C‑258/12), Fastweb SpA (C‑229/12 and C‑232/12), Wind Telecomunicazioni SpA (C‑230/12 and C‑254/12), Telecom Italia SpA (C‑255/12 and C‑256/12) and Sky Italia srl (C‑257/12) v Autorità per le Garanzie nelle Comunicazioni Presidenza del Consiglio dei Ministri (C‑228/12 to C‑232/12, C‑255/12 and C‑256/12), Commissione di Garanzia dell’Attuazione della Legge sullo Sciopero nei Servizi Pubblici Essenziali (C‑229/12, C‑232/12 and C‑257/12) and Ministero dell’Economia e delle Finanze (C‑230/12).
Date: 2013-07-18
26. Furthermore, it must be recalled that, under Article 83 of those rules, the Court may at any time, after hearing the Advocate General, order the opening or reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court.
30. In that connection, it must be observed that, according to settled case-law of the Court, the need to provide an interpretation of European Union law which will be of use to the national court makes it necessary that the national court should define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (Case C‑134/03 Viacom Outdoor [2005] ECR I‑1167, paragraph 22; Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio  ECR I‑11987, paragraph 26; and Case C-94/07 Raccanelli [2008] ECR I-5939, paragraph 24).
31. The information provided in orders for reference must not only be such as to enable the Court to reply usefully but must also enable the governments of the Member States and other interested parties to submit observations pursuant to Article 23 of the Statute of the Court of Justice of the European Union (order of 2 March 1999 in Case C‑422/98 Colonia Versicherung and Others  [1999] ECR I‑1279, paragraph 5; Case C‑20/05 Schwibbert [2007] ECR I‑9447, paragraph 21; and Raccanelli , paragraph 25).
35. In that connection, it must be recalled that the Authorisation Directive not only lays down the 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, Joined Cases C-292/01 and C-293/01 Albacom and Infostrada  [2003] ECR I‑9449, paragraphs 35 and 36; Case C-284/10 Telefónica de España  [2011] ECR I‑6991, paragraph 18; and Case C-71/12 Vodafone Malta and Mobisle Communications [2013] ECR I-0000, paragraph 20).
36. The legal framework ensuring freedom to provide electronic communications networks and services established by the Authorisation Directive would be rendered redundant if Member States were free to establish the financial charges to be borne by undertakings in the sector (see, by analogy, Albacom and Infostrada , paragraph 38, and Telefónica de España, paragraph 19).
38. It follows from the wording of Article 12(1)(a) of the Authorisation Directive that Member States may impose on undertakings providing a service or a network under the general authorisation or to whom a right to use radio frequencies or numbers has been granted only the total administrative costs covering the management, control and enforcement of the general authorisation scheme and of rights of use and of specific obligations as referred to in Article 6(2) thereof, which may include costs for international cooperation, harmonisation and standardisation, market analysis, monitoring compliance and other market control, as well as regulatory work involving preparation and enforcement of secondary legislation and administrative decisions, such as decisions on access and interconnection.
39. Such charges may cover only the costs relating to the activities set out in the preceding paragraph, which cannot include expenditure relating to other tasks (see, by analogy, Joined Cases C-392/04 and C-422/04 i-21 Germany and Arcor  [2006] ECR I-8559, paragraphs 29, 32, 34 and 35, and, and Telefónica de España , paragraph 23).
40. Therefore, as the referring court observes, the charges imposed pursuant to Article 12 of the Authorisation Directive are not intended to cover all the administrative costs incurred by the NRA.
41. Furthermore, the Authorisation Directive does not lay down either the method for determining the amount of administrative charges which may be imposed pursuant to Article 12 thereof or the means of collecting those charges. However, first of all, it is clear from Article 12(2) of that directive, read in the light of recital 30 in the preamble thereto, that those charges must cover the actual administrative costs relating to the activities mentioned in paragraph 38 of this judgment and must be in balance with those costs. Thus, the totality of the income obtained by the Member States from the charge concerned cannot exceed the total costs relating to those activities (see, by analogy, Telefónica de España , paragraph 27). Second, Article 12(1)(b) of the Authorisation Directive requires the Member States to impose the administrative charges upon undertakings in an objective, transparent and proportionate manner.
42. It follows from all of the foregoing considerations that, although it is open to the Member States to impose a charge on undertakings providing electronic communications services or networks in order to finance the NRA’s activities, that charge must be exclusively intended to cover the costs relating to the activities mentioned in Article 12(1)(a) of the Authorisation Directive, that the totality of the income obtained from that charge must not exceed the amount of the costs relating to those activities and that the charge should be imposed upon individual undertakings in an objective, transparent and proportionate manner, which is for the national court to ascertain.