Orange España (Concept of electronic communications service - Fee for the right to install facilities on, over or under public or private property - Opinion) [2020] EUECJ C-764/18

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(Request for a preliminary ruling from the Tribunal Supremo (Supreme Court, Spain))

(Reference for a preliminary ruling — Directive 2002/20/EC — Scope of application — Concept of electronic communications service — Articles 12 and 13 — Fee for the right to install facilities on, over or under public or private property)

1. The present request for a preliminary ruling concerns the interpretation of Directive 2002/20/EC (‘the Authorisation Directive’), (2) which, according to Article 1(1) thereof, seeks to harmonise and simplify authorisation rules and conditions in order to facilitate the provision of electronic communications networks and services throughout the European Union. It focusses on the interpretation of Articles 12 and 13 of that directive, which allow Member States to impose, respectively, charges that cover the costs incurred in the management of the general authorisation scheme, and fees for rights of use for radio frequencies and numbers or for the rights to install facilities on, over or under public property.

2. This request has been made in a dispute between Orange España SAU, a provider of fixed telephony and internet access services, and the Ayuntamiento de Pamplona (‘the Municipal Council of Pamplona’) regarding a levy imposed for the use of municipal public land in order to install infrastructure enabling the provision of electronic communications services.

3. The referring court, namely the Tribunal Supremo (Supreme Court, Spain), seeks to know whether such a levy falls within the scope of the Authorisation Directive, and, should this be the case, whether the manner of calculating that levy exclusively by reference to the gross annual revenue earned by a company from the provision of certain electronic communications services is consistent with Articles 12 and 13 of the Authorisation Directive. It should be noted that those questions are asked in the light of 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) (‘the judgment in Vodafone España and France Telecom España’), in which the Court found that a fee levied for a similar use of public land fell outside the scope of Article 13 of the Authorisation Directive as it applied to operators who, without owning the facilities installed on that land, used them to provide mobile telephony services, and in which, therefore, the Court did not rule on the merits of the case, that is, on the consistency with that provision of the manner of calculating the fee.

4. 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.’

5. 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 Directive 2002/21/EC (Framework Directive).’

6. The first subparagraph of Article 2 of Tax Regulation No 22/2014 (3) provides:

‘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 ... 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.’

‘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.’

‘1. The base on which the rate shall be applied in order to calculate the charge shall be determined by the gross annual revenue from invoicing that the taxable persons obtain within the municipality. The criteria for determining the tax base do not apply to mobile telephony operators.

2. Gross revenue from invoicing is considered to be that which, being attributable to each undertaking, has been obtained by it as consideration for the services provided in this municipality in the course of its ordinary activity. Only revenue originating from extraordinary events or activities is excluded.

3. Where the taxable person has used other persons’ networks for the purpose of special use, the tax base shall be the gross annual revenue obtained in the municipality, less any amounts payable to the owner of the network for access or interconnection to its network. The latter amounts shall be included by the owners of such networks in their gross annual revenue.

9. According to Article 6 of Tax Regulation No 22/2014, the amount of the charge is calculated by applying a 1.5% rate to the tax base as defined in Article 5 of the same regulation.

II. The facts, the main proceedings and the questions referred for a preliminary ruling

10. Orange España, which, as mentioned in point 2 above, provides fixed telephony and internet access services in the municipality of Pamplona (Spain), submitted to the Municipal Council of Pamplona a self-assessment of the levy for the special use of the space on, over or under municipal public land provided for by Tax Regulation No 22/2014 (‘the levy provided for by Tax Regulation No 22/2014’) corresponding to the second quarter of 2014 as a result of the provision of the aforementioned services (‘the self-assessment’). In the self-assessment, the rate of 1.5% set out in Article 6 of Tax Regulation No 22/2014 was applied to a gross revenue of EUR 1 188 269.59, which resulted in the amount of EUR 7 928.71 being payable by Orange España to the Municipal Council of Pamplona.

11. However, considering that, first, it does not own the network through which it provides services in the municipality of Pamplona and it is not, therefore, a taxable person for the purposes of Tax Regulation No 22/2014, and that, second, Articles 12 and 13 of the Authorisation Directive preclude the imposition of a charge or fee calculated exclusively as a fixed percentage of a company’s gross revenue, Orange España requested the Municipal Council of Pamplona to rectify its self-assessment and, consequently, reimburse the amount unduly paid (‘the rectification request’).

12. By decision of 18 September 2014, the Directora de Hacienda del Ayuntamiento de Pamplona (Director of Finance of the Municipal Council of Pamplona) rejected the rectification request on the ground that there was no error of law or of fact in the self-assessment and that it complied with Tax Regulation No 22/2014, given that that regulation ‘establishes only that mobile telephony operators who are not proprietors of the infrastructure but have rights of use, access or interconnection to third-party networks must be excluded from the scope of application of the levy’.

13. By judgment of 4 December 2015, the Juez de lo Contencioso-Administrativo n.º 1 de Pamplona (Administrative Court No 1, Pamplona, Spain) dismissed the appeal brought against the decision of the Directora de Hacienda del Ayuntamiento de Pamplona (Director of Finance of the Municipal Council of Pamplona), on the ground that, first, Orange España owned the network through which it provided services and it could not, therefore, be exempted from the payment of the levy provided for by Tax Regulation No 22/2014, and, second, the system of calculating that levy was consistent with the third paragraph of Article 105(1) of Ley Foral 2/1995, de 10 de marzo, de Haciendas Locales de Navarra (Regional Law 2/1995 of 10 March 1995 on local finances of Navarre).

14. Ruling on appeal against that judgment, the Tribunal Superior de Justicia de Navarra (High Court of Justice, Navarre, Spain) partially upheld the action by judgment of 15 November 2016. In that judgment, it stated that, given that fixed telephony and internet access services are to be regarded as electronic communications services, they fall within the scope of the Authorisation Directive. Further, it held that, although Articles 12 and 13 of that directive do not preclude a levy being imposed on the owners of networks used to provide fixed telephony, mobile telephony and internet access services, they nonetheless preclude the amount of such a levy being determined on the basis of a company’s gross revenue or turnover, as that manner of calculating is neither objective nor proportionate. Therefore, the Tribunal Superior de Justicia de Navarra (High Court of Justice, Navarre) declared unlawful and annulled the reference to the term ‘mobile’ in the second sentence of the second subparagraph of Article 5(1) of Tax Regulation No 22/2014 (which stated that ‘the criteria for determining the tax base do not apply to mobile telephony operators’). Consequently, it ruled that Orange España was entitled to the reimbursement of the amount of its self-assessment.

15. The Municipal Council of Pamplona brought an appeal on a point of law against the judgment of the Tribunal Superior de Justicia de Navarra (High Court of Justice, Navarre) before the Tribunal Supremo (Supreme Court).

16. The Tribunal Supremo (Supreme Court) considered that, although the judgment in Vodafone España and France Telecom España concerned, as is the case here, a fee for the special use of public land, such fee was, in that judgment, imposed on the providers of mobile telephony service, whereas it is, in the present case, levied on Orange España as a provider of fixed telephony and internet access services. The Tribunal Supremo (Supreme Court) further considered that the Court of Justice had not yet ruled on the consistency with Articles 12 and 13 of the Authorisation Directive of the manner of calculating a charge or fee consisting of a percentage applied to the gross annual revenue obtained by an operator from the provision of electronic communications services in a given territory.

17. Therefore, the Tribunal Supremo (Supreme Court) stayed the proceedings and referred the following questions to the Court 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 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 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 revenue earned by the company – the proprietor of the installed facilities – from the provision of fixed telephony and internet services in the territory concerned?’

18. Written observations were submitted by the Municipal Council of Pamplona, Orange España, the Spanish Government and the European Commission. These parties presented oral argument at the hearing on 18 December 2019.

19. By the first question, the referring court essentially asks the Court whether fixed telephony and internet access services are to be regarded as electronic communications services for the purposes of the Authorisation Directive, including Articles 12 and 13 thereof.

20. The Municipal Council of Pamplona, Orange España and the Commission submit that the Authorisation Directive covers the provision of fixed telephony and internet access services. The Spanish Government supports that view. (4)

21. For the reasons set out below, I have no doubt that fixed telephony and internet access services are to be regarded as electronic communications services for the purposes of the Authorisation Directive, including Articles 12 and 13 thereof.

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

23. According to Article 2(1) of the Authorisation Directive, the definitions set out in Article 2 of Directive 2002/21/EC (‘the Framework Directive’) (5) apply.

24. Pursuant to 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’.

25. According to Article 2(a) of the Framework Directive, ‘electronic communications network[s]’ are transmission systems and equipment ‘which permit the conveyance of signals by wire, radio, optical or other electromagnetic means, including satellite networks, fixed (circuit- or packet-switched, including internet) and mobile terrestrial networks, electricity cable systems’.

26. As regards, first, fixed telephony services, it seems to me that they consist in the conveyance of signals by means referred to in Article 2(a) of the Framework Directive. (6) In that regard, I should point out that recital 10 of the same directive, which specifies that ‘voice telephony’ services are covered by that directive, makes no distinction between fixed and mobile telephony. I should also note that, as recital 5 of the Framework Directive and recital 2 of the Authorisation Directive state, the convergence between the different electronic communications networks and services and their technologies requires that they should be subject to the same rules. It follows that fixed and mobile telephony services should both be regarded as electronic communications services for the purposes of the Framework Directive and, hence, of the Authorisation Directive.

27. As regards, secondly, internet access services, they should also be regarded as electronic communications services within the meaning of Article 2(c) of the Framework Directive. This is because Article 2(a) of the same directive provides that fixed terrestrial networks which permit the conveyance of signals, ‘including internet’, must be regarded as electronic communications networks for the purposes of that directive. Moreover, according to the last sentence of recital 10 of the Framework Directive, ‘access to the internet’ is an electronic communications service. Furthermore, point 2 of the second paragraph of Article 2 of Regulation (EU) 2015/2120 (7) defines the concept of ‘internet access service’ as ‘a publicly available electronic communications service that provides access to the internet’, (8) it being understood that the definition of electronic communications services set out in Article 2(c) of the Framework Directive applies for the purposes of Regulation 2015/2120. (9) Finally, Directive (EU) 2018/1972, (10) which repealed and replaced, among others, the Framework Directive and the Authorisation Directive, clarifies that electronic communications services ‘encompa[ss]’, in particular, ‘“internet access service[s]” as defined in point (2) of the second paragraph of Article 2 of [Regulation 2015/2120]’.

28. Consequently, the answer to the first question should be that fixed telephony and internet access services must be regarded as electronic communications services within the meaning of Article 2(c) of the Framework Directive and, as such, as electronic communications services for the purposes of the Authorisation Directive, including Articles 12 and 13 thereof.

29. By the second question, which is to be answered only if the Court finds that the Authorisation Directives applies to providers of fixed telephony and internet access services, the referring court asks whether Articles 12 and 13 of that directive allow Member States to impose a charge or fee calculated exclusively by reference to the gross annual revenue earned by a company from the provision of those services in a given territory.

30. I will examine below, first, whether a charge or fee such as the levy provided for by Tax Regulation No 22/2014 falls within the scope of Articles 12 or 13 of the Authorisation Directive, and, secondly, should either of those provisions apply, whether it precludes that that charge or fee be calculated exclusively by reference to the gross annual revenue earned by a company from the provision of fixed telephony and internet access services in a given territory.

31. At the hearing, the Municipal Council of Pamplona submitted that the levy provided for by Tax Regulation No 22/2014 falls outside the scope of application of the Authorisation Directive, given that that levy is imposed not just on electronic communications operators, but on all network operators which provide services of general interest. (11).

32. The Spanish Government concurs with the view taken by the Municipal Council of Pamplona that the Authorisation Directive is not applicable to the levy provided for by Tax Regulation No 22/2014. It stresses that that directive does not seek to achieve tax harmonisation. Consequently, there is, according to the Spanish Government, no need to answer the questions referred.

33. Orange España and the Commission take the position that the levy provided for by Tax Regulation No 22/2014 falls within the scope of Article 13 of the Authorisation Directive.

34. Before I examine whether a levy such as that provided for by Tax Regulation No 22/2014 falls within the scope of either Article 12 or Article 13 of the Authorisation Directive, I shall determine below whether that directive precludes Member States from imposing charges or fees for the provision of electronic communications networks and services, other than those provided for by Articles 12 and 13 thereof.

(a) Does the Authorisation Directive preclude Member States from imposing charges or fees other than those provided for by Articles 12 and 13 thereof?

35. In my opinion, the Authorisation Directive does not preclude charges or fees other than those provided for by Articles 12 and 13 thereof being imposed for the provision of electronic communications networks and services, subject, however, to the condition that such charges or fees do not undermine the effectiveness of that directive.

36. It is true that, in the judgment of 18 September 2003, Albacom and Infostrada (C‑292/01 and C‑293/01, EU:C:2003:480) (‘the judgment in Albacom’), the Court held that Member States are precluded from imposing on ‘undertakings which hold individual licences in the telecommunications sector, solely because they hold such licences’ charges or fees ‘other than and in addition to’ (12) those which come under one of the cases expressly mentioned in Articles 6 and 11 of Directive 97/13/EC. (13) According to the Court, this was because the objective of Directive 97/13, namely the liberalisation of the telecommunications market, would be jeopardised were Member States free to establish the financial charges borne by undertakings in the sector and thereby create obstacles to the freedom to provide telecommunications services. (14) As noted by Advocate General Léger, it follows from the judgment in Albacom that ‘the list of financial charges which Member States may impose on telecommunications undertakings in respect of authorisation procedures or the authorisations themselves is exhaustive: if the charge in question does not fall into one of the categories established by Directive 97/13, it is prohibited’. (15)

37. The Court took a similar position in the judgment in Vodafone España and France Telecom España in relation to a fee for the use of public land levied, under Spanish law, on providers of mobile telephony services. In that judgment, the Court held, first, that Article 13 of the Authorisation Directive does not cover that fee as it is levied on operators that do not own the facilities installed on municipal public land, but merely use those facilities to provide mobile telephony services, and, secondly, that that provision precludes that fee being imposed on the same operators. (16) The ground for the Court’s finding that Article 13 of the Authorisation Directive precludes that fee is to be found in paragraph 28 of the judgment, in which the Court ruled that ‘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 communications services other than those provided for by that directive’.

38. However, in judgments subsequent to those in Albacom and in Vodafone España and France Telecom España, the Court, having found that the charge or fee under examination did not fall within the scope of Article 12 or 13 of the Authorisation Directive, nonetheless held that those provisions did not preclude that charge or fee being imposed. (17) In those judgments, the Court gave no consideration to the objective or the framework of the Authorisation Directive, on which it had relied in the judgments in Albacom and in Vodafone España and France Telecom España to find that that directive precluded Member States from imposing, in relation to the provision of networks and electronic communications services, charges or fees not falling within the scope of Articles 12 or 13 thereof. It follows from these judgments that, as Advocate General Wahl noted, ‘Article 13 of the Authorisation Directive does not set out exhaustively all the fees and charges that may be imposed on electronic communications operators’. (18)

39. Admittedly, it could be argued that the judgments in Albacom and in Vodafone España and France Telecom España may be reconciled with the judgments cited in footnote 17 above if one were to consider that it is only ‘within the framework of the Authorisation Directive’ (19) that Member States may not levy charges or fees other than those provided for by Articles 12 and 13 thereof. If that approach were to be followed, the Authorisation Directive would have to be interpreted as precluding charges or fees other than those provided for in Articles 12 and 13 thereof being levied where such fees or charges are linked to the provision of electronic communications networks or services, (20) and, conversely, as not precluding such charges or fees being levied where they are not linked to the provision of electronic communications networks or services. (21)

40. However, it seems to me that the approach described in the preceding point would not be consistent with the Court’s finding, in the judgments of 6 October 2015, Base Company (C‑346/13, EU:C:2015:649) (‘the judgment in Base Company’) and of 17 December 2015, Proximus (C‑517/13, EU:C:2015:820) (‘the judgment in Proximus’), that the Authorisation Directive does not preclude, respectively, a tax being imposed on the owners of mobile telephony transmission pylons or masts (22) and a charge being imposed on all natural or legal persons operating mobile telephony network transmission and reception pylons and/or units, (23)even though none of those levies fell within the scope of Article 13 of the Authorisation Directive. In my view, given that mobile telephony transmission or reception pylons, masts and units enable the provision of electronic communications networks and services, the levies under consideration in those two judgments may only be regarded as linked to the provision of such networks and services and, therefore, as imposed ‘within the framework of the Authorisation Directive’. Therefore, were the approach described in the preceding point to be followed, this would lead to the conclusion that those levies are precluded by that directive. However, the Court held that they were not.

41. To my mind, it follows that the Court’s finding in the judgments cited in footnote 17 above that the Authorisation Directive does not preclude a fee or charge other than those provided for by Articles 12 and 13 thereof being imposed should be considered to overturn the previous case-law and, in particular, the judgment in Vodafone España and France Telecom España. (24) I note, in that regard, that, in the order of 30 January 2014, France Telecom España (C‑25/13, not published, EU:C:2014:58) (‘the order in France Telecom España’), which concerned a levy ‘of the same nature’ as that under consideration in the judgment in Vodafone España and France Telecom España, (25) the Court took a somewhat different approach to that followed in that judgment. In both that judgment and that order, the Court found that Article 13 of the Authorisation Directive precluded the imposition of that levy. However, in that judgment, the levy was considered to fall outside the scope of Article 13 of that directive, whereas, in that order, it was regarded as falling within the scope of that provision. (26) I further note that, in the judgments in Base Company and in Proximus, the finding that ‘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’ (27) led the Court to rule that Member States are not precluded from levying fees on the infrastructure enabling the provision of such networks and services even where those fees fall outside the scope of Article 13 of the Authorisation Directive. (28)

42. Consequently, it seems to me that the Authorisation Directive does not preclude charges or fees other than those provided for by Articles 12 and 13 thereof being imposed for the provision of electronic communications networks and services, subject, however, to the condition that such charges or fees do not undermine the effectiveness of that directive, that is, that they do not create obstacles to the freedom to provide electronic communications networks and services or to the promotion of competition in the provision of such networks and services. (29)

43. I shall now examine whether a levy such as that provided for by Tax Regulation No 22/2014 falls within the scope of either Article 12 or Article 13 of the Authorisation Directive.

(b) Does a levy such as that provided for by Tax Regulation No 22/2014 fall within the scope of either Article 12 or Article 13 of the Authorisation Directive?

44. First, there is no doubt that such a charge does not fall within the scope of Article 12 of the Authorisation Directive.

45. According to case-law, 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 the national regulatory authority, must be exclusively intended to cover the overall administrative costs relating to the activities mentioned in Article 12(1)(a) of that directive. (30) However, nothing in the documents before the Court suggests that the levy provided for by Tax Regulation No 22/2014 is intended to cover the overall administrative costs relating to one or more of those activities. Nor is it alleged that this is the case, given that, in response to a question by the Court, all parties agreed that that charge does not fall within the scope of Article 12 of the Authorisation Directive.

46. Second, it seems to me that a levy such as that provided for by Tax Regulation No 22/2014 does not fall within the scope of Article 13 of the Authorisation Directive.

47. As mentioned in point 41 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. According to the Court’s case-law, a charge the trigger for which is linked to the granting of rights to install facilities on, over or under public or private property falls within the scope of Article 13 of the Authorisation Directive. (31)

48. Admittedly, in the order in France Telecom España, a levy the trigger for which was linked, not to the granting of rights to install facilities on, over or under public property, but to the use of such facilities, was found to fall within the scope of Article 13 of the Authorisation Directive. However, that criterion – which, to my knowledge, the Court has not applied in other judgments or orders – is not consistent with the wording of Article 13 of the Authorisation Directive, which expressly refers to fees imposed for the rights to ‘install’ facilities on, over or under public or private property.

49. As for the meaning of the terms ‘facilities’ and ‘install’, used in Article 13 of the Authorisation Directive, they 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. (32)

50. In the present case, the first subparagraph 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 … fixed telephony, mobile telephony and other electronic communications services …’. (33) Moreover, pursuant to Article 4(3) of that regulation, with regard to electronic communications services other than mobile telephony services, both the owners of the infrastructure enabling provision of such services and the holders of rights of use or access to that infrastructure are taxable persons.

51. Consequently, the event that triggers liability for the levy provided for by Tax Regulation No 22/2014 is linked to the granting of rights of use of the facilities on, over or under municipal public land and, thereby, of municipal public land, not to the granting of rights to install such facilities.

52. Therefore, that levy does not resemble the fee/charge in the judgment of 30 January 2018, X and Visser (C‑360/15 and C‑31/16, EU:C:2018:44, paragraphs 69 and 70), which was imposed on suppliers of electronic communications networks in return for the right to install cables in and on public land for a public electronic communications network and was found to fall within the scope of Article 13 of the Authorisation Directive.

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

54. As mentioned in point 42 above, the Authorisation Directive does not preclude charges or fees other than those provided for by Articles 12 and 13 thereof being imposed for the provision of electronic communications networks and services, subject, however, to the condition that such charges or fees do not undermine the effectiveness of that directive. In the present case, it seems to me that – as will be shown in points 76 to 79 below, and subject to verification by the referring court – there is no reason to consider that the levy provided for by Tax Regulation No 22/2014 creates an obstacle to the provision of electronic communications networks and services or to the promotion of competition in the provision of such networks and services.

55. It follows that Articles 12 and 13 of the Authorisation Directive do not preclude a levy such as that provided for by Tax Regulation No 22/2014 being imposed.

56. Consequently, there is, in my opinion, no need to examine whether the manner of calculating a charge exclusively by reference to the gross annual revenue earned by a company from the provision of fixed telephony and internet access services is consistent with Article 13 of the Authorisation Directive. However, should the Court consider that a levy such as that provided for by Tax Regulation No 22/2014 falls within the scope of that provision, I shall examine that question below.

57. The levy provided for by Tax Regulation No 22/2014 is, according to Articles 5 and 6 thereof, calculated by applying a 1.5% rate to the gross annual revenue earned by a company from the provision of (in this case) fixed telephony and internet access services in the municipality concerned. In the judgment which is under appeal in the main proceedings, the Tribunal Superior de Justicia de Navarra (High Court of Justice, Navarre) held that Articles 12 and 13 of the Authorisation Directive preclude such a manner of calculating a charge as it is neither objective (on account of the reference to a company’s gross annual revenue) nor proportionate (on account of the use of calculation parameters that lead to an amount in excess of what is necessary to ensure the optimal use of limited resources). (34) The referring court is thus essentially asking whether that interpretation of Articles 12 and 13 of the Authorisation Directive is correct.

58. The Municipal Council of Pamplona contends that Article 13 of the Authorisation Directive does not preclude a manner of calculating the charge exclusively by reference to a company’s gross revenue. The Municipal Council of Pamplona argues, in particular, that (i) in the judgment in Vodafone España and France Telecom España, the Court did not rule on the consistency with Article 13 of the Authorisation Directive of the manner of calculating the fee; (ii) that provision is silent on that manner of calculating the fee; (iii) the calculation of the fee by reference to a company’s gross revenue is an objective and non-discriminatory methodology, which avoids having to estimate the value of the use of public property; and (iv) a portion of that revenue accounts for the market value of the use of public property. The Spanish Government supports the position of the Municipal Council of Pamplona.

59. Orange España submits that Article 13 of the Authorisation Directive precludes a manner of calculating the fee exclusively by reference to a company’s gross revenue. Orange España relies, in particular, on the Opinion of Advocate General Sharpston in Joined Cases Vodafone España (C‑55/11, C‑57/11 and C‑58/11, EU:C:2012:162, point 77), according to which the fee must be established on the basis of parameters that relate to the need to ensure the optimal use of rights of way, such as the intensity, duration and value of the undertaking’s use of the property in question, and on the judgments of 10 March 2011, Telefónica Móviles España (C‑85/10, EU:C:2011:141, paragraph 28), and of 21 March 2013, Belgacom and Others (C‑375/11, EU:C:2013:185, paragraph 51), according to which the fee must be set at an appropriate level to reflect, inter alia, the value of the use of the scarce resources to which operators have access. The Commission supports the position of Orange España.

60. For the reasons set out below, I consider that Article 13 of the Authorisation Directive (35) precludes a manner of calculating the fee exclusively by reference to the gross revenue earned by a company from the provision of electronic communications networks or services in a given territory.

61. First, it is true that Article 13 of the Authorisation Directive does not lay down a specific method for determining the amount of a fee for the right to install facilities on, over or under public or private property. (36)

62. However, Article 13 of the Authorisation Directive requires Member States to ensure, first, that fees for rights to install facilities on, over or under public or private property serve to ensure the optimal use of that property; and, second, that such fees ‘[are] objectively justified, transparent, non-discriminatory and proportionate in relation to their intended purpose and [take] into account the objectives in Article 8 of [the Framework Directive]’. These are cumulative conditions. (37)

63. Therefore, it is subject to the conditions mentioned in the preceding point, which I shall examine below, that Member States enjoy discretion to determine the manner of calculating the fee for the right to install facilities on, over or under public or private property.

64. Secondly, although an administrative charge falling within the scope of Article 12 of the Authorisation Directive may be calculated by reference to a company’s turnover or gross revenue, it does not follow that the same is true of a fee falling within the scope of Article 13 of that directive.

65. This is because, while recital 31 of the Authorisation Directive expressly states that ‘a turnover related distribution key’ is a ‘fair, simple and transparent’ manner of calculating an administrative charge, (38) there is no equivalent to that statement with regard to fees within the meaning of Article 13 of that directive.

66. Thirdly, it is, in my opinion, doubtful that a manner of calculating the fee exclusively by reference to the gross revenue earned by a company from the provision of electronic communications services ensures the optimal use of the facilities enabling the provision of those services and, therefore, of the public land on, over or under which they are built.

67. According to the Court’s case-law, the purpose of ensuring that operators make optimal use of scarce resources to which they have access means that the fee 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. (39) As Advocate General Sharpston notes, the amount of the fee must be ‘linked to the intensity of the use of the “scarce” resources and the current and future value of that use’. (40)

68. It seems to me that a fee based on the gross revenue earned by a company from the provision of electronic communications services is only indirectly linked to the value of the use of the public property on, over or under which the infrastructure enabling the provision of such services is built, and it is thus doubtful that a fee calculated in such a manner can ensure the optimal use of that public property. In the words of Advocate General Sharpston, ‘a fee based on the gross revenue earned by an undertaking seems likely to be levied principally to generate revenue’, (41) and it is thus inconsistent with Article 13 of the Authorisation Directive.

69. In that regard, the Spanish Government contends that it is difficult to determine the value of the use of public property, as there is, by definition, no market for such property or the use thereof. According to the Spanish Government, the manner of calculating a fee by reference to the gross revenues earned by a company from the provision of electronic communications services makes it possible to estimate the value of the use of the public property since that revenue is generated using that property. Likewise, the Municipal Council of Pamplona submits that a portion of the gross revenue earned by a company from the provision of electronic communications services accounts for the value of the use of the public property on, over or under which the facilities enabling the provision of those services are built.

70. In my view, that argument cannot succeed, given that the link between the gross revenue earned from the provision of such services and the value of the use of the public property is only indirect. The amount of a company’s gross revenue depends not only on the intensity of the use of the facilities installed on public property, but also on a number of other elements, such as the pricing decisions taken by the company. Furthermore, a company’s gross revenue may only be an indication of the value of the use of the public property by that company. As the Commission argues, it is no indication of the value of an efficient, or ‘optimal’, use of that public property, as Article 13 of the Authorisation Directive requires.

71. Fourthly, should the manner of calculating the fee for the use of the facilities installed on, over or under public property differ between fixed and mobile telephony operators, or between owners and users of those facilities, where those undertakings are not in a different situation, this would amount to discriminatory treatment contrary to Article 13 of the Authorisation Directive.

72. In that regard, I note that, under Article 5(1) of Tax Regulation No 22/2014, the levy provided for by that regulation is calculated by reference to a company’s gross revenue with regard to providers of fixed telephony operators, but not with regard to mobile telephony operators. (42)

73. This does not, in the view of the Municipal Council of Pamplona, amount to discriminatory treatment. According to the Municipal Council of Pamplona, whereas the provision of fixed telephony and internet access services requires that cables be installed under public property, the provision of mobile telephony services (most of the time) does not require underground cables, with the result that the providers of the former services may be treated differently from the providers of the latter services with regard to the charge levied for the use of the cables installed under public property.

74. It is for the referring court to verify whether, on account of the fact that the providers of fixed telephony and internet access services make more intensive use of the facilities installed under public property than the providers of mobile telephony services, they are in a different situation. Should this be the case, this may justify a difference in treatment, such as a different manner of calculating the fee for the use of those facilities. Should this, however, not be the case, such a difference in treatment would not be justified, in the light, in particular, of the obligation to prevent discrimination against the use of particular technology set out in recital 2 of the Authorisation Directive. (43)

75. In any event, I note that, should the referring court find that the levy provided for by Tax Regulation No 22/2014 is not discriminatory, the conditions set out in Article 13 of the Authorisation Directive are cumulative. (44) Therefore, for that levy to be inconsistent with the latter provision, it is sufficient that, as demonstrated in points 66 to 70 above, it does not seek to ensure the optimal use of the facilities installed under public property, without there being any need to establish that that charge is also discriminatory.

76. Fifthly, should the fee for the use of facilities installed on, over or under public property not take into account the objectives in Article 8 of the Framework Directive and, in particular, the promotion of competition in the provision of electronic communications networks and services and the development of the internal market for those networks and services, that fee would be inconsistent with Article 13 of the Authorisation Directive.

77. According to case-law, the requirement that those objectives be taken into account entails that the amount of the charge cannot have the effect of hindering the access of new operators to the market or of reducing the capacity of telecommunications services operators for innovation. It also means that competition must not be distorted, which can be guaranteed only if equality of opportunity is secured as between the various economic operators. (45)

78. In the present case, Article 5(3) of Tax Regulation No 22/2014 states that, where an operator uses a network owned by another company, the tax base for the charge payable by that operator consists of the gross revenue earned, less any amounts payable to the network’s owner for the use of that network (the latter amounts being included in the gross revenue of the network’s owner).

79. Therefore, it cannot – subject to verification by the referring court – be argued that equality of opportunity is not secured as between, on the one side, the operators who own the facilities used for the provision of electronic communications services, and, on the other side, the operators who use those facilities, given that the latter can subtract from the tax base for the levy provided for by Tax Regulation No 22/2014 the amounts paid for the use of the facilities and that, therefore, they do not bear a double financial burden. (46)

80. Should the referring court find that equality of opportunity is indeed secured, this should not, however, lead to the conclusion that a levy such as that provided for by Tax Regulation No 22/2014 is consistent with Article 13 of the Authorisation Directive, given that, as mentioned in point 62 above, the conditions set out in that provision are cumulative.

81. I conclude that, should the Court consider that a levy such as that provided for by Tax Regulation No 22/2014, liability for which is triggered not by the installation, but by the use of the facilities installed on, over or under public property, falls within the scope of Article 13 of the Authorisation Directive, that provision should be interpreted as precluding a manner of calculating that levy exclusively by reference of the gross turnover earned by a company from the provision of fixed telephony and internet access services in the municipality concerned.

82. In the light of the foregoing, I propose that the Court give the following reply to the questions referred by the Tribunal Supremo (Supreme Court, Spain):

(1) Fixed telephony and internet access services must be regarded as electronic communications services within the meaning of Article 2(c) 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), and, as such, as electronic communications services for the purposes 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), including Articles 12 and 13 thereof.

(2) Articles 12 and 13 of Directive 2002/20 must be interpreted as not precluding the imposition of a levy such as that at issue in the main proceedings, liability for which is triggered by the exclusive or special use of the space on, over or under public land for infrastructure enabling the provision of fixed telephony and internet access services.

2 Directive of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications network and services (Authorisation Directive) (OJ 2002 L 108, p. 21).

3 Ordenanza fiscal n.º 22/2014 del Ayuntamiento de Pamplona, reguladora de la tasa por aprovechamientos especiales del suelo, vuelo y subsuelo del dominio público local por las empresas explotadoras de servicios de suministros (Tax Regulation No 22/2014 of the Municipal Council of Pamplona, regulating the charge for special uses of the space on, over or under municipal public land by utility companies) (‘Tax Regulation No 22/2014’).

4 More precisely, the Spanish Government submits that the Authorisation Directive ‘seems to refer’ to all electronic communications networks and services, whether fixed or mobile.

5 Directive 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).

6 I should specify that there is no evidence that any of the two exceptions provided for by Article 2(c) of the Framework Directive, namely, services providing content and information society services which do not consist mainly or wholly on the conveyance of signals on electronic communications networks, apply to the present case (see judgment of 13 June 2019, Google, C‑193/18, EU:C:2019:498, paragraph 29).

7 Regulation of the European Parliament and of the Council of 25 November 2015 laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union (OJ 2015 L 310, p. 1).

9 Reference should be made to the first paragraph of Article 2 of Regulation 2015/2120, which states that ‘for the purposes of this Regulation, the definitions set out in Article 2 of [the Framework Directive] apply’.

10 Directive of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ 2018 L 321, p. 36). See point 4(a) of Article 2 of that directive. It entered into force on 20 December 2018 and is to be transposed by 21 December 2020 and is not, therefore, applicable to the main proceedings (see Articles 124 and 126 thereof).

11 At the hearing, the Municipal Council of Pamplona stressed that the levy provided for by Tax Regulation No 22/2014 differs from the fee under examination in the judgment in Vodafone España and France Telecom España since the latter was levied only on providers of mobile telephony services. The Municipal Council of Pamplona explained that the fee under examination in that judgment was levied by certain municipalities as an exception to the levy imposed, in the amount of 1.5% of gross revenues, on all providers of services of general interest in return for the occupation of public property, and that that fee was calculated using a formula whose factors included estimated average telephone use per urban unit, the share of mobile telephony use, the number of fixed telephone lines installed in the municipality, the number of inhabitants in the municipality and estimated average telephony and service use per mobile telephone (see, in that regard, Opinion of Advocate General Sharpston in Joined Cases Vodafone España, C‑55/11, C‑57/11 and C‑58/11, EU:C:2012:162, points 29 and 30).

13 Directive of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services (OJ 1997 L 117, p. 15). Directive 97/13 was repealed by the Framework Directive. Articles 6 and 11 of Directive 97/13 correspond to Articles 12 and 13 of the Authorisation Directive.

15 Opinion of Advocate General Léger in Joined Cases Mobistar and Belgacom Mobile (C‑544/03 and C‑545/03, EU:C:2005:203, point 27).

16 Judgment in Vodafone España and France Telecom España (paragraphs 34 and 35).

17 Judgments of 27 June 2013, Commission v France (C‑485/11, not published, EU:C:2013:427, paragraphs 34 and 39); of 27 June 2013, Vodafone Malta and Mobisle Communications (C‑71/12, EU:C:2013:431, paragraphs 28 and 29); of 4 September 2014, Belgacom and Mobistar (C‑256/13 and C‑264/13, EU:C:2014:2149, paragraphs 37 and 38); of 6 October 2015, Base Company (C‑346/13, EU:C:2015:649, paragraphs 22 to 24); and of 17 December 2015, Proximus (C‑517/13, EU:C:2015:820, paragraphs 35 and 36).

18 Opinion of Advocate General Wahl in Base Company (C‑346/13, EU:C:2015:446, point 32). The same must be said of Article 12 of the Authorisation Directive (as Advocate General Wahl noted in point 34 of his Opinion).

19 Judgments of 18 July 2006, Nuova società di telecomunicazioni (C‑339/04, EU:C:2006:490, paragraph 35); of 10 March 2011, Telefónica Móviles España (C‑85/10, EU:C:2011:141, paragraph 21); of 12 July 2012, Vodafone España and France Telecom España (C‑55/11, C‑57/11 and C‑58/11, EU:C:2012:446, paragraph 28); of 21 March 2013, Belgacom and Others (C‑375/11, EU:C:2013:185, paragraph 40); of 4 September 2014, Belgacom and Mobistar (C‑256/13 and C‑264/13, EU:C:2014:2149, paragraph 30); of 6 October 2015, Base Company (C‑346/13, EU:C:2015:649, paragraph 16); of 17 December 2015, Proximus (C‑454/13, EU:C:2015:819, paragraph 20); and of 30 January 2018, X and Visser (C‑360/15 and C‑31/16, EU:C:2018:44, paragraph 79).

20 The scope of the Authorisation Directive being defined in Article 1(2) thereof as covering ‘authorisations for the provision of electronic communications networks and services’.

21 See in that regard, Opinion of Advocate General Wahl in Base Company (C‑346/13, EU:C:2015:446, points 31 to 37). See also Opinion of Advocate General Sharpston in Joined Cases Vodafone España (C‑55/11, C‑57/11 and C‑58/11, EU:C:2012:162, point 67), according to which ‘a charge or fee … falls within the scope of the Authorisation Directive if it is levied in connection with access to the market for electronic communications networks and services or to resources such as numbers, radio frequencies and “rights of way”. If that is the case, Member States may impose fees and charges only for the purposes and subject to the conditions described in Articles 12 and 13. They may not impose any other fees or charges. … I thus do not consider that a Member State is free to levy any fee that is not covered by Article 12 or 13 of the Authorisation Directive’.

24 See, in that regard, Pilczer, J.-S., ‘Les redevances sur les opérateurs de communications électroniques: peut-on se faire une idée claire et précise de la portée de l’article 13 de la directive “autorisation” ?’, in Bulletin fiscal 2015, issue 5, pp. 268 to 275.

26 See paragraph 34 of the judgment in Vodafone España and France Telecom España and paragraph 28 of the order in France Telecom España.

27 Judgments in Base Company (paragraph 18), and in Proximus (paragraph 30).

28 Judgments in Base Company (paragraph 24), and in Proximus (paragraph 36).

29 See Opinion of Advocate General Wahl in Base Company (C‑346/13, EU:C:2015:446, point 37).

30 Judgment of 30 January 2018, X and Visser (C‑360/15 and C‑31/16, EU:C:2018:44, paragraph 64).

31 Judgment of 4 September 2014, Belgacom and Mobistar (C‑256/13 and C‑264/13, EU:C:2014:2149, paragraph 37); judgments in Base Company (paragraph 22), and in Proximus (paragraph 35); and judgment of 30 January 2018, X and Visser (C‑360/15 and C‑31/16, EU:C:2018:44, paragraph 71). See also Opinion of Advocate General Wahl in Base Company (C‑346/13, EU:C:2015:446, point 54), according to which fees fall within the scope of Article 13 of the Authorisation Directive ‘where the event which gives rise to them is the grant of rights of use for radio frequencies and rights to install facilities in the broad sense’.

32 Judgment in Vodafone España and France Telecom España (paragraph 32), and Opinion of Advocate General Sharpston in Joined Cases Vodafone España (C‑55/11, C‑57/11 and C‑58/11, EU:C:2012:162, point 52). See also judgment of 4 September 2014, Belgacom and Mobistar (C‑256/13 and C‑264/13, EU:C:2014:2149, paragraph 33); judgments in Base Company (paragraph 21), and in Proximus (paragraph 34); and judgment of 30 January 2018, X and Visser (C‑360/15 and C‑31/16, EU:C:2018:44, paragraph 68).

35 I shall not examine whether Article 12 of the Authorisation Directive precludes such a manner of calculating the fee as there is no question that that fee is not intended to cover administrative costs relating to the management, control and enforcement of the general authorisation scheme (see points 44 and 45 above).

36 Judgment of 21 March 2013, Belgacom and Others (C‑375/11, EU:C:2013:185, paragraph 49).

37 Opinion of Advocate General Wahl in Base Company (C‑346/13, EU:C:2015:446, point 77).

38 See judgment of 21 July 2011, Telefónica de España (C‑284/10, EU:C:2011:513, paragraph 32).

39 Judgments of 10 March 2011, Telefónica Móviles España (C‑85/10, EU:C:2011:141, paragraph 28), and of 21 March 2013, Belgacom and Others (C‑375/11, EU:C:2013:185, paragraph 51).

40 Opinion of Advocate General Sharpston in Joined Cases Vodafone España (C‑55/11, C‑57/11 and C‑58/11, EU:C:2012:162, point 76).

41 Opinion of Advocate General Sharpston in Joined Cases Vodafone España (C‑55/11, C‑57/11 and C‑58/11, EU:C:2012:162, point 79).

42 See, in that regard, the annulment, by the Tribunal Superior de Navarra (High Court of Justice, Navarre), of the term ‘mobile’ in the second sentence of the second subparagraph of Article 5(1) of Tax Regulation No 22/2014, mentioned in point 14 above.

43 Opinion of Advocate General Sharpston in Joined Cases Vodafone España (C‑55/11, C‑57/11 and C‑58/11, EU:C:2012:162, points 88 and 89).

45 Judgment of 10 March 2011, Telefónica Móviles España (C‑85/10, EU:C:2011:141, paragraph 30). See also judgment of 20 October 2005, ISIS Multimedia Net and Firma O2 (C‑327/03 and C‑328/03, EU:C:2005:622, paragraph 39).

46 See Opinion of Advocate General Sharpston in Joined Cases Vodafone España (C‑55/11, C‑57/11 and C‑58/11, EU:C:2012:162, point 63).

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Orange España (Concept of electronic communications service - Fee for the right to install facilities on, over or under public or private property - Opinion) [2020] EUECJ C-764/18_O (16 July 2020) URL: http://www.bailii.org/eu/cases/EUECJ/2020/C76418_O.html Cite as: [2020] EUECJ C-764/18_O, ECLI:EU:C:2020:593, EU:C:2020:593

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