CJEU, 4th chamber, January 27, 2021, No C-764/18

THE COURT (Fourth Chamber),

1 This request for a preliminary ruling concerns the interpretation of Articles 12 and 13 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ 2002 L 108, p. 21), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 37) (‘the Authorisation Directive’).

2 The request has been made in proceedings between the Ayuntamiento de Pamplona (municipality of Pamplona, Spain) and Orange España SAU concerning the charge for the exclusive or special use of the space on, over or under municipal public land by utility companies (‘the charge for the use of public land’) to which that company was subject.

Legal context

European Union law

The Framework Directive

3 The common regulatory framework for electronic communications services and networks and associated facilities and services consists of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33), as amended by Directive 2009/140 (‘the Framework Directive’), and of four specific directives, including Directive 2002/20.

4 Article 2 of the Framework Directive, entitled ‘Definitions’, states in points (a) and (c):

‘For the purposes of this Directive:

(a) “electronic communications network” means transmission systems and, where applicable, switching or routing equipment and other resources, including network elements which are not active, which permit the conveyance of signals by wire, radio, optical or other electromagnetic means, including satellite networks, fixed (circuit- and packet-switched, including Internet) and mobile terrestrial networks, electricity cable systems, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed;

…

(c) “electronic communications service” means a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks, including telecommunications services and transmission services in networks used for broadcasting, but exclude services providing, or exercising editorial control over, content transmitted using electronic communications networks and services; it does not include information society services, as defined in Article 1 of Directive 98/34/EC [of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 204, p. 37)], which do not consist wholly or mainly in the conveyance of signals on electronic communications networks’.

The Authorisation Directive

5 Under Article 1 of the Authorisation Directive:

‘1. The aim of this Directive is to implement an internal market in electronic communications networks and services through the harmonisation and simplification of authorisation rules and conditions in order to facilitate their provision throughout the Community.

2. This Directive shall apply to authorisations for the provision of electronic communications networks and services.’

6 Article 2(2) of the Authorisation Directive provides:

‘The following definitions shall also apply:

“general authorisation” means a legal framework established by the Member State ensuring rights for the provision of electronic communications networks or services and laying down sector specific obligations that may apply to all or to specific types of electronic communications networks and services, in accordance with this Directive.’

7 According to Article 12 of the Authorisation Directive, entitled ‘Administrative charges’:

‘1. Any administrative charges imposed on undertakings providing a service or a network under the general authorisation or to whom a right of use has been granted shall:

(a) in total, cover only the administrative costs which will be incurred in 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), 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; and

(b) be imposed upon the individual undertakings in an objective, transparent and proportionate manner which minimises additional administrative costs and attendant charges.

2. Where national regulatory authorities impose administrative charges, they shall publish a yearly overview of their administrative costs and of the total sum of the charges collected. In the light of the difference between the total sum of the charges and the administrative costs, appropriate adjustments shall be made.’

8 Article 13 of the Authorisation Directive, entitled ‘Fees for rights of use and rights to install facilities’, states:

‘Member States may allow the relevant authority to impose 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. Member States shall ensure that such fees shall be objectively justified, transparent, non-discriminatory and proportionate in relation to their intended purpose and shall take into account the objectives in Article 8 of [the Framework Directive].’

Spanish law

9 According to the first sentence of Article 2 of Ordenanza Fiscal n.º 22 del Ayuntamiento de Pamplona, reguladora de las tasas por aprovechamientos especiales del suelo, vuelo y subsuelo del dominio público local por las empresas explotadoras de servicios de suministros (Tax Regulation No 22 of the municipality of Pamplona, regulating the charge for the special use of the space on, over or under municipal public land by utility companies), of 28 November 2013 (BO de Navarra No 240 of 16 December 2013, p. 12766) (‘Tax Regulation No 22/2014’):

‘The chargeable event is constituted by the exclusive or special use of the space on, over or under municipal public land by cables, pipes and tunnels for electrical energy, water, gas or any other fluid, fixed telephony, mobile telephony and other electronic communications services, including poles carrying overhead lines, cables, brackets, switch boxes, distribution boxes, junction boxes, transformers, rails, scales, antennas, aerials, automatic vending devices and other similar devices connected with the provision of the service.’

10 Article 4(3) of Tax Regulation No 22/2014 provides:

‘Mobile telephone operators that do not own the networks through which this service is provided, even if they own rights of use, access or interconnection to these networks, shall not be obliged to pay the charge.

In other cases of supply services, both the owners of the networks or infrastructure used and the holders of a right of use, access or interconnection to those networks or infrastructure shall be taxable persons.’

11 Article 5(1) of Tax Regulation No 22/2014 provides that the tax base of the annual charge is to be determined by the gross income from the annual turnover that the taxable persons obtain within the municipality and that the criteria for determining that base do not apply to ‘mobile telephony operators’.

12 Under Article 6 of that tax regulation, the rate of the charge is set at 1.5% of the gross operating income invoiced by the operators.

13 Article 24 of Real Decreto Legislativo 2/2004, por el que se aprueba el texto refundido de la Ley Reguladora de las Haciendas Locales (Royal Legislative Decree 2/2004, approving the consolidated text of the Law on local finances), of 5 March 2004 (BOE No 59 of 9 March 2004, p. 10284), and the third paragraph of Article 105(1) of Ley Foral 2/1995 de Haciendas Locales de Navarra (Regional Law 2/1995 on local finances of Navarra; ‘Regional Law 2/1995’), of 10 March 1995 (BO de Navarra No 36 of 20 March 1995), provide that charges for the exclusive or special use of the space on, over or under municipal public roads by companies providing services that affect all or a significant section of the population are to amount to 1.5% of the gross income from the annual turnover obtained by those companies in each municipality.

The dispute in the main proceedings and the questions referred for a preliminary ruling

14 Orange España submitted to the municipality of Pamplona a self-assessment of the charge for the use of public land laid down in Tax Regulation No 22/2014, corresponding to the second quarter of 2014, as a result of the fixed telephony and Internet access services provided by that company in the municipality of Pamplona.

15 Nevertheless, taking the view that that charge is contrary to EU legislation governing the telecommunications sector, in particular the Authorisation Directive, as interpreted by the Court, Orange España requested the municipality of Pamplona to rectify the self-assessment and to reimburse the amount unduly paid.

16 In support of its rectification request, Orange España submitted that, first, it was not the owner of the networks that it uses in the municipality of Pamplona, but rather a user of those networks through interconnection rights. It then stated that fixed telephony and Internet access services fall within the scope of the Authorisation Directive, as interpreted by the Court as regards the imposition of charges and fees on undertakings in the mobile telephony sector. Lastly, it submitted that it was contrary to Articles 12 and 13 of that directive to impose a charge calculated exclusively on the basis of a fixed percentage of the undertaking’s gross income.

17 The municipality of Pamplona rejected that request, considering that the amount of the charge due was not vitiated by any error of fact or of law. Orange España brought an action against that decision before the Juzgado de lo Contencioso-Administrativo n.º 1 de Pamplona (Administrative Court No 1, Pamplona, Spain). That action was dismissed by judgment of 4 December 2015, on the ground that, first, Orange España was the owner of the infrastructure networks and could not therefore be exempted from payment of the charge and, secondly, that the amount of the charge had been determined in accordance with the third paragraph of Article 105(1) of Regional Law 2/1995.

18 Orange España appealed against that judgment to the Tribunal Superior de Justicia de Navarra (High Court of Justice, Navarra, Spain). That court confirmed that Orange España was, in its capacity as owner of networks and infrastructure occupying municipal public land, liable for payment of the charge at issue. However, it upheld the appeal in part, ruling that the method of determining the amount of that charge was contrary to Articles 12 and 13 of the Authorisation Directive and that Orange España was therefore entitled to have its self-assessment rectified. That court considered that the amount of that charge had to be determined in the light of the principles of objectivity and of proportionality set out in those articles, and not on the basis of a company’s gross income or turnover, since the amount obtained in that case goes beyond what is necessary to ensure the optimal use of limited resources.

19 The municipality of Pamplona brought an appeal in cassation before the Tribunal Supremo (Supreme Court, Spain), arguing that the Tribunal Superior de Justicia de Navarra (High Court of Justice, Navarra) had misconstrued the case-law of the Court of Justice applicable to mobile telephony operators, set out in the judgment of 12 July 2012, Vodafone España and France Telecom España (C‑55/11, C‑57/11 and C‑58/11, EU:C:2012:446), by extending it to operators providing fixed telephony and Internet access services. In its defence, Orange España contends that the Authorisation Directive does not distinguish between operators of mobile telephony services and operators of fixed telephony services. The Court’s interpretation of Article 13 of that directive in that judgment can therefore be applied to any situation in which providers of electronic communications services are subject to charges in order to be able to use radio frequencies or numbers or to install facilities. Orange España also points out that the Court of Justice did not rule in that judgment on the method of calculating the amount of such a charge.

20 In those circumstances, the Tribunal Supremo (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is the Authorisation Directive, as interpreted by the Court of Justice in relation to undertakings operating in the mobile telecommunications sector, and, specifically, the limitations set out in Articles 12 and 13 of that directive on the taxation powers of the Member States, applicable to undertakings providing fixed telephony and Internet access services?

(2) If the first question is answered in the affirmative (and it is held that that directive is applicable to providers of fixed telephony and Internet access services), do Articles 12 and 13 of the Authorisation Directive allow Member States to impose a charge or fee calculated exclusively by reference to the gross annual income earned by the company – the proprietor of the installed facilities – from the provision of fixed telephony and Internet access services in the territory concerned?’

Consideration of the questions referred

The first question

21 By its first question, the referring court asks, in essence, whether the Authorisation Directive must be interpreted as applying to undertakings providing fixed telephony and Internet access services.

22 It follows from Article 1(2) of the Authorisation Directive that it applies to ‘authorisations for the provision of electronic communications networks and services’.

23 Article 2(1) of the Authorisation Directive provides that, for the purposes of that directive, ‘the definitions set out in Article 2 of [the Framework Directive] shall apply’.

24 Consequently, in order to determine the scope of the Authorisation Directive, it is necessary to refer to the definitions of the terms ‘electronic communications networks’ and ‘electronic communications services’ in the Framework Directive.

25 Article 2(a) of the Framework Directive defines an ‘electronic communications network’ as ‘transmission systems and, where applicable, switching or routing equipment and other resources, including network elements which are not active, which permit the conveyance of signals by wire, radio, optical or other electromagnetic means, including satellite networks, fixed (circuit- and packet-switched, including Internet) and mobile terrestrial networks, electricity cable systems, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed’.

26 Under Article 2(c) of the Framework Directive, an ‘electronic communications service’ is ‘a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks, including telecommunications services and transmission services in networks used for broadcasting’.

27 The case at issue in the main proceedings concerns the supply of Internet and fixed telephony services through cable networks and other technical resources.

28 It follows from the abovementioned provisions that that directive does not distinguish, for the purposes of defining ‘electronic communications services’, between fixed telephony services and mobile telephony services. As the Advocate General noted in point 26 of his Opinion, recital 10 of the Framework Directive states, without any distinction between fixed telephony and mobile telephony, that ‘voice telephony and electronic mail conveyance services are covered by this Directive’.

29 As regards Internet access, Article 2(a) of the Framework Directive refers to it expressly and, as the Advocate General also noted in point 27 of his Opinion, recital 10 of that directive specifies that ‘access to the Internet’ is an electronic communications service.

30 It must therefore be held that ‘electronic communications services’, within the meaning of the Framework Directive, are services which consist in the conveyance of signals on electronic communications networks, whether those networks are fixed or mobile, and that they cover fixed or mobile telephony services and Internet access services. Since the scope of the Authorisation Directive is determined on the basis of the definitions set out in the Framework Directive, it follows from the foregoing that the Authorisation Directive applies to authorisations for the provision of Internet access and fixed telephony networks and services.

31 Consequently, the answer to the first question is that the Authorisation Directive must be interpreted as applying also to undertakings providing fixed telephony and Internet access services.

The second question

32 By its second question, the referring court asks, in essence, in the event that the first question is answered in the affirmative, whether Articles 12 and 13 of the Authorisation Directive must be interpreted as precluding national legislation which imposes, on undertakings which are the proprietors of infrastructure or networks necessary for electronic communications and which use them in order to provide fixed telephony and Internet access services, a charge the amount of which is determined exclusively on the basis of the annual gross income obtained by those undertakings on the territory of the Member State concerned.

33 Pursuant to Article 1(2) of the Authorisation Directive, that directive applies to authorisations for the provision of electronic communications networks and services (see judgment of 17 December 2015, Proximus, C‑517/13, EU:C:2015:820, paragraph 25).

34 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 (judgments of 4 September 2014, Belgacom and Mobistar, C‑256/13 and C‑264/13, EU:C:2014:2149, paragraph 29; of 6 October 2015, Base Company, C‑346/13, EU:C:2015:649, paragraph 15; and of 17 December 2015, Proximus, C‑517/13, EU:C:2015:820, paragraph 26).

35 As is apparent from 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 (judgment of 17 December 2015, Proximus, C‑517/13, EU:C:2015:820, paragraph 27 and the case-law cited).

36 It follows that, for the provisions of the Authorisation Directive to be applicable to a charge such as that at issue in the main proceedings, the trigger for that charge must be linked to a general authorisation procedure, which ensures, under Article 2(2)(a) of that directive, rights for the provision of electronic communications networks or services (judgment of 17 December 2015, Proximus, C‑517/13, EU:C:2015:820, paragraph 28 and the case-law cited).

37 In that regard, it must be recalled that the administrative charges which Member States may impose, under Article 12 of the Authorisation Directive, on undertakings providing a service or a network under a general authorisation or to which a right of use has been granted, in order to finance the activities of a national regional authority, must be exclusively intended to cover the overall administrative costs relating to the activities mentioned in Article 12(1)(a) of that directive (judgment of 30 January 2018, X and Visser, C‑360/15 and C‑31/16, EU:C:2018:44, paragraph 64).

38 Moreover, the Court has already pointed out that Article 13 of the Authorisation Directive does not concern all fees to which infrastructure permitting the provision of networks and electronic communication services is subject (judgment of 4 September 2014, Belgacom and Mobistar, C‑256/13 and C‑264/13, EU:C:2014:2149, paragraph 34, and of 17 December 2015, Proximus, C‑517/13, EU:C:2015:820, paragraph 30 and the case-law cited).

39 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 of 17 December 2015, Proximus, C‑517/13, EU:C:2015:820, paragraph 31 and the case-law cited).

40 In the present case, the first sentence of Article 2 of Tax Regulation No 22/2014 provides that ‘the chargeable event is constituted by the exclusive or special use of the space on, over or under municipal public land by cables, pipes and tunnels for electrical energy, water, gas or any other fluid, fixed telephony, mobile telephony and other electronic communications services …’. In addition, under Article 4(3) of that regulation, both the owners of the networks or infrastructure used and the holders of a right of use, access or interconnection to those networks or infrastructure, other than mobile telephony operators, are liable to pay that charge.

41 As regards the interpretation of Article 12 of the Authorisation Directive, it appears from the file before the Court and from the parties’ replies to a question put to them by the Court at the hearing that the charge for the use of public land does not fall within the scope of that article, since it is not intended to cover the overall administrative costs connected with the activities of the national regulatory authority. Therefore, it cannot be classified as an ‘administrative charge’ within the meaning of that article.

42 Consequently, Article 12 of the Authorisation Directive does not preclude national legislation which provides for such a charge.

43 As regards the interpretation of Article 13 of that directive, the Court has held that the terms ‘facilities’ and ‘install’ used in that provision refer, respectively, to the physical infrastructure enabling provision of electronic communications networks and services and to their physical installation on the public or private property concerned (judgment of 17 December 2015, Proximus, C‑517/13, EU:C:2015:820, paragraph 34 and the case-law cited).

44 However, as noted in paragraph 38 above, 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 (judgment of 4 September 2014, Belgacom and Mobistar, C‑256/13 and C‑264/13, EU:C:2014:2149, paragraph 34).

45 As can be seen from paragraph 40 above, the chargeable event for the charge for the use of public land is constituted by the exclusive or special use of the space on, over or under municipal public land by means of various infrastructure, and the persons subject to that charge are therefore the operators of networks or services of electrical energy, water, gas or any other fluid, fixed telephony, mobile telephony and other electronic communications services which use that infrastructure.

46 In addition, Article 4(3) of Tax Regulation No 22/2014 provides that that charge applies not only to the holders of a right of use, access or interconnection to the networks or infrastructure used, but also to the owners of those networks and infrastructure, including therefore those who do not personally use those networks or infrastructure.

47 It follows that the scope of the charge for the use of public land is not limited to operators providing electronic communications networks or services or those enjoying the rights provided for by Article 13 of the Authorisation Directive, which, however, it is for the national court to verify (see, to that effect, judgment of 4 September 2014, Belgacom and Mobistar, C‑256/13 and C‑264/13, EU:C:2014:2149, paragraph 36).

48 Moreover, Tax Regulation No 22/2014 in no way provides that, as regards the exclusive or special use of public land by means of various infrastructure, it is necessary to determine in that respect the natural or legal person who installed that infrastructure, as follows necessarily from Article 13 of the Authorisation Directive.

49 Accordingly, the charge for the use of public land imposed by that tax regulation cannot be regarded as a charge imposed on undertakings providing electronic communications networks and services in return for the right to install facilities (see, to that effect, judgment of 17 December 2015, Proximus, C‑517/13, EU:C:2015:820, paragraph 35).

50 Consequently, since the chargeable event for the charge for the use of public land is linked, in accordance with that tax regulation, to the grant of the right to use the facilities placed on or under municipal public land, it does not depend on the right to install such facilities within the meaning of Article 13 of the Authorisation Directive, referred to in paragraph 43 above.

51 It follows that the charge provided for by Tax Regulation No 22/2014 falls outside the scope of Article 13 of the Authorisation Directive.

52 Consequently, Article 13 of the Authorisation Directive does not preclude national legislation which provides for a charge such as the charge for the use of public land.

53 In the light of the foregoing considerations, the answer to the second question is that Articles 12 and 13 of the Authorisation Directive must be interpreted as not precluding national legislation which imposes, on undertakings which are the proprietors of infrastructure or networks necessary for electronic communications and which use them in order to provide fixed telephony and Internet access services, a charge the amount of which is determined exclusively on the basis of the annual gross income obtained by those undertakings on the territory of the Member State concerned.

Costs

54 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

1. Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, must be interpreted as applying also to undertakings providing fixed telephony and Internet access services.

2. Articles 12 and 13 of Directive 2002/20, as amended by Directive 2009/140, must be interpreted as not precluding national legislation which imposes, on undertakings which are the proprietors of infrastructure or networks necessary for electronic communications and which use them in order to provide fixed telephony and Internet access services, a charge the amount of which is determined exclusively on the basis of the annual gross income obtained by those undertakings on the territory of the Member State concerned.

[Signatures]

* Language of the case: Spanish.