Telefónica de España SA v Administración del Estado.
Date: 2011-07-21
18. As is clear from recitals 1 and 3 to 5 in the preamble, Directive 97/13 is among the measures adopted to achieve the complete liberalisation of telecommunications services and infrastructures. To that end, Directive 97/13 established a common framework applicable to authorisation schemes, intended to facilitate significantly the entry of new operators into the market. In addition to laying down rules for authorisation procedures and the content of authorisations, that framework sets out the nature and scope of the financial payments related to those procedures which Member States may impose on undertakings in the field of telecommunications services (Joined Cases C-292/01 and C-293/01 Albacom and Infostrada [2003] ECR I-9449, paragraphs 35 and 36, and Case C-85/10 Telefónica Móviles España [2011] ECR I-0000, paragraph 20).
19. The common framework which Directive 97/13 seeks to establish would be rendered redundant if Member States were free to establish the financial charges to be borne by undertakings in the sector. Accordingly, Member States may not levy any fees or charges in relation to authorisation procedures other than those provided for by that directive (Cases C-339/04 Nuova società di telecomunicazioni [2006] ECR I-6917, paragraph 35, and Telefónica Móviles España,  paragraph 21).
20. As is stated in recital 12 in the preamble to Directive 97/13, those payments must be based on objective, non-discriminatory and transparent criteria. Moreover, they must not conflict with the objective of the complete liberalisation of the market, which implies opening it completely to competition ( Albacom and Infostrada , paragraph 37, and Telefónica Móviles España , paragraph 22).
22. The effect of Article 6 is that those fees may cover only the costs incurred in four administrative activities, namely the issue, management, control and enforcement of the applicable general authorisation scheme.
23. Although such fees may cover so-called ‘general’ administrative costs, those must, however, relate only to the four activities referred to in the previous paragraph and the fees may not thus include expenditure relating to other tasks such as the general supervisory activities of the national regulatory authority and, in particular, monitoring possible abuses of a dominant position. Indeed, that form of monitoring goes beyond the work strictly generated by the implementation of general authorisations (see, by analogy, as regards the fees imposed pursuant to Article 11 of Directive 97/13, Joined Cases C-392/04 and C-422/04 i-21 Germany and Arcor  [2006] ECR I-8559, paragraphs 32, 34 and 35).
27. It also follows that such a fee may only cover the costs resulting from the administrative activities referred to in paragraph 22 of this judgment. Thus, the combined revenue received by Member States by way of the fee at issue cannot exceed all of the costs incurred in those administrative activities, which is a matter for the national court to ascertain.
29. In that regard, it is important to note, firstly, that Directive 97/13 merely states, in Articles 6 and 11, that the fees imposed on holders of general authorisations and holders of individual licences may ‘seek only’ to cover the administrative costs incurred respectively in the issue, management, control and enforcement of the applicable general authorisations scheme or the individual licences. Secondly, while the second sentence of Article 11(1) of that directive expressly provides that the amount of the fee claimed must be proportionate to the work involved (see, to that effect, i-21 Germany and Arcor , paragraph 39), it is important on the other hand to note that Article 6 does not impose the requirement of a proportionate relationship between the fee applicable to general authorisations granted to a chargeable operator and the work involved in the issue, management, control and enforcement of those general authorisations for that operator.