Ville de Mons v Base Company, anciennement KPN.
Date: 2015-10-06
14. It is appropriate to bear in mind, at the outset, that, under Article 1(2) of the Authorisation Directive, that directive applies to authorisations for the provision of electronic communications networks and services (judgment in Belgacom and Mobistar , C‑256/13 and C‑264/13, EU:C:2014:2149, paragraph 35).
15. That 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 (judgment in Belgacom and Mobistar , C‑256/13 and C‑264/13, EU:C:2014:2149, paragraph 29 and the case-law cited).
16. Thus, according to the Court’s settled case-law, Member States may not, within the framework of the Authorisation Directive, 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, judgments in Vodafone España and France Telecom España , C‑55/11, C‑57/11 and C‑58/11, EU:C:2012:446, paragraphs 28 and 29, and in Belgacom and Mobistar , C‑256/13 and C‑264/13, EU:C:2014:2149, paragraph 30 and the case-law cited).
17. It follows that, as the Advocate General notes, in essence, in points 33 to 36 of his Opinion, for the provisions of the Authorisation Directive to be applicable to a tax such as that at issue in the main proceedings, the trigger for that tax must be linked to a general authorisation procedure, which ensures, under Article 2(2)(a) of the Authorisation Directive, rights for the provision of electronic communications networks or services (see, to that effect, judgments in Commission  v France , C‑485/11, EU:C:2013:427, paragraphs 30, 31 and 34; Vodafone Malta and Mobisle Communications , C‑71/12, EU:C:2013:431, paragraphs 24 and 25; and Fratelli De Pra and SAIV , C‑416/14, EU:C:2015:617, paragraph 41).
18. In that respect, the Court has stated, as regards Article 13 of the Authorisation Directive, to which the question of the referring court relates in the present case, that that article does not concern all fees to which infrastructure permitting the provision of networks and electronic communication services are subject (judgment in Belgacom and Mobistar , C‑256/13 and C‑264/13, EU:C:2014:2149, paragraph 34).
19. In fact, that article concerns 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 (judgment in Belgacom and Mobistar , C‑256/13 and C‑264/13, EU:C:2014:2149, paragraph 31 and the case-law cited).
21. According to the case-law of the Court, the terms ‘facilities’ and ‘install’, used in Article 13 of the Authorisation Directive, refer to the physical infrastructure enabling provision of electronic communications networks and services and to their physical installation on the public or private property concerned, respectively (judgment in Belgacom and Mobistar , C‑256/13 and C‑264/13, EU:C:2014:2149, paragraph 33 and the case-law cited).
22. Accordingly, although the tax at issue in the main proceedings is imposed on owners of transmission pylons or masts intended to support antennas necessary for the proper functioning of the mobile telecommunications network, which constitute physical infrastructure enabling provision of electronic communications networks and services, it does not appear that that tax has the characteristics of a fee which is imposed on undertakings providing electronic communications networks and services in return for the right to install facilities.