Belgacom SA and Others v État belge.
Date: 2013-03-21
30. It should be borne in mind that, according to the Court’s settled case-law, questions on the interpretation of European Union law referred by a national court, in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, C‑378/10 VALE Építési  [2012] ECR I-0000, paragraph 18 and the case-law cited).
40. It should be noted that, according to settled case-law, within the framework of the Authorisation Directive, Member States may not levy any fees or charges in relation to the provision of networks and electronic communication services other than those provided for by that directive (see, by analogy, Case C‑339/04 Nuova società di telecomunicazioni  [2006] ECR I‑6917, paragraph 35; Case C‑85/10 Telefónica Móviles España  [2011] ECR I‑1575, paragraph 21; and Joined Cases C‑55/11, C‑57/11 and C‑58/11 Vodafone España and France Telecom España  [2012] ECR I-0000, paragraph 28).
42. It should be borne in mind that Article 13 of the Authorisation Directive authorises Member States to set, in addition to charges designed to cover administration costs, a supplementary charge for the rights of use for radio frequencies with the purpose of ensuring optimal use of those 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, and Telefónica Móviles España , paragraph 24).
45. Furthermore, it is apparent from the Court’s case-law that the Authorisation Directive does not circumscribe the purpose for which such fees must be collected (see, to that effect, Telefónica Móviles España , paragraph 33).
46.  Article 13 of that directive does, however, require Member States to ensure that fees for the use of radio frequencies are objectively justified, transparent, non-discriminatory and proportionate in relation to their intended purpose and take into account the objectives, including the promotion of competition and efficient use of radio frequencies, as laid down in Article 8 of the Framework Directive.
47. It is also apparent from Article 13 of and recital 32 in the preamble to the Authorisation Directive that a fee charged to operators of telecommunications services for the use of resources must pursue the purpose of ensuring optimal use of such resources and not hinder the development of innovative services and competition on the market.
48. Articles 12 and 13 of the Authorisation Directive do not, therefore, preclude national legislation, such as that at issue in the main proceedings, which provides for the charging of a fee intended to favour optimal use of frequencies, even when it is in addition to another annual fee which also pursues in part the same objective, provided that all those fees satisfy the conditions set out in paragraphs 46 and 47 of the present judgment, which it is for the national court to determine.
49. As regards the detailed rules for fixing the amount of a one-off fee for rights of use for radio frequencies such as that at issue in the main proceedings, it should be noted that the Authorisation Directive lays down the requirements with which Member States must comply in determining the amount of a fee for the use of radio frequencies, without thereby expressly providing a specific method for determining the amount of such a fee ( Telefónica Móviles España , paragraph 25).
50. It should be remembered 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 ( Telefónica Móviles España , paragraph 27).
51. 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 ( Telefónica Móviles España , paragraph 28).
52. It follows, as observed by the Advocate General in points 54 and 55 of his Opinion, that the fixing of a fee for rights of use for radio frequencies by reference either to the amount of the former one-off licence fee calculated on the basis of the number of frequencies and months to which the rights of use relate, or to the amounts raised through auction, may be an appropriate method for determining the value of the radio frequencies.