Provincie Antwerpen v Belgacom NV van publiek recht and Mobistar NV.
Date: 2014-09-04
26. It must be observed that Article 6 of the Authorisation Directive relates to the conditions and the specific obligations attached to the general authorisation and to the rights of use for radio frequencies and for numbers. That article provides that the general authorisation for the provision of electronic communications networks or services and the rights of use for radio frequencies and rights of use for numbers may be subject only to the conditions listed respectively in parts A, B and C of the annex to that directive.
29. As to whether Article 13 of the Authorisation Directive precludes the undertakings concerned being subject to a tax such as that at issue in the main proceedings, it should be noted that the Court has already held that the Authorisation 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 Vodafone Malta and Mobisle Communications , C‑71/12, EU:C:2013:431, paragraph 20 and the case-law cited).
30. Thus, according to settled case-law, Member States may not, within the framework of the Authorisation Directive, levy any fees or charges in relation to the provision of networks and electronic communication services other than those provided for by that directive (judgment in Vodafone España and France Telecom España , EU:C:2012:446, paragraph 28 and the case-law cited).
31. As regards Article 13 of the Authorisation Directive, it should be noted that 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 (see, to that effect, judgment in Vodafone Malta and Mobisle Communications , EU:C:2013:431, paragraph 19).
32. Article 13 of the Authorisation Directive permits Member States to impose a supplementary charge for the rights of use for radio frequencies or numbers or rights to install facilities with the purpose of ensuring optimal use of those resources (see, to that effect, judgment in Belgacom and Others , C‑375/11, EU:C:2013:185, paragraph 42 and the case-law cited).
33. The term ‘facilities’ and the expression ‘install’, used in Article 13, 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 (see, to that effect, judgment in Vodafone España and France Telecom España , EU:C:2012:446, paragraph 32).
34. However, Article 13 of the Authorisation Directive does not concern all fees to which infrastructure permitting the provision of networks and electronic communication services are subject.
35. The Authorisation Directive applies, according to Article 1(2) thereof, to authorisations for the provision of electronic communications networks and services and Article 13 thereof concerns only the fees for the rights of use for radio frequencies or numbers or rights to install facilities on, over or under public or private property which reflect the need to ensure the optimal use of these resources.
36. In the present case, the orders for reference state that any legal entity incorporated under Belgian or foreign law which has an establishment in the Province of Antwerp, used by that legal entity or reserved for its use is subject to the tax in question in the main proceedings regardless of the nature of the establishment and the activity of those subject to the tax. The amount of that tax depends on the area occupied by the establishments. Those subject to the tax are therefore not just operators providing electronic communications networks or services or those enjoying the rights provided for by Article 13 of the Authorisation Directive.
37. It follows that the chargeable event giving rise to the tax at issue in the main proceedings is not linked to the granting of rights of use for radio frequencies or rights to install facilities within the meaning of Article 13 of the Authorisation Directive. Therefore, such a tax does not constitute a fee within the meaning of Article 13 thereof and, consequently, does not come within the scope of that directive.