OPINION OF ADVOCATE GENERAL

delivered on 12 December 2002 (1)

Albacom SpA and Infostrada SpA v Ministero del Tesoro, del Bilancio e della Progammazione economica

(Reference for a preliminary ruling from the Consiglio di Stato of the Italian Republic)

((Telecommunications – General authorisations and individual licences – Directive 97/13/EC – Article 11 – Fees and charges for individual licences))

The Consiglio di Stato (Council of State) of the Italian Republic (Third Division), in the extraordinary petitions to the President of the Republic (2) by Albacom SpA and Infostrada Spa, refers for a preliminary ruling two identical questions relating to the interpretation of Directive 97/13/EC of the European Parliament and the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services (hereinafter the Directive) in order to ascertain whether Article 11 permits the legal systems of the Member States to require the holders of individual licences to make financial payments, whatever they may be called, other than those allowed by the Directive.

I ─ Legal framework

In order to achieve the complete liberalisation of telecommunications, the Directive establishes a common infrastructure ─ to which the legal codes of the Member States must be adjusted ─ for the granting of general authorisations and individual licences in the sphere of the services which make up that market, on the basis of the principles of proportionality, transparency and non-discrimination. In short, it is a question of fine tuning, in the telecommunications sector, two of the essential tools for constructing a single market: freedom of establishment and freedom to provide services. (4)

4. In order to implement that liberalising rule, the Directive also applies the guiding principle that there shall be no limit to the number of individual licences which the Member States may grant, except to the extent necessary to ensure the efficient use of radio frequencies or the existence of sufficient numbers. Therefore, any undertaking which fulfils the conditions published in national legislation shall be entitled to receive an individual licence. (8)

5. Articles 6 and 11 of the Directive follow the same course of promoting competition in the telecommunications market and not imposing on undertakings more restrictions or charges than necessary, (9) thereby complying with the principle of proportionality. They are headed, respectively, Fees and charges for general authorisation procedures and Fees and charges for individual licences.

6. Article 6...Without prejudice to financial contributions to the provision of universal service in accordance with the Annex, Member States shall ensure that any fees imposed on undertakings as part of the authorisation procedures seek only to cover the administrative costs incurred in the issue, management, control and enforcement of the applicable general authorisation scheme. Such fees shall be published in an appropriate and sufficiently detailed manner, so as to be readily accessible.

B ─ Developments in Italian law

8. The Codice postale e della telecommunicazioni (Postal and Telecommunications Code; the Codice Postale) of 1973 (10) established that telecommunications services belonged to the State, while allowing them to be indirectly managed by means of a franchise, the franchisee being required to pay an annual royalty. (11)

10. The new regulation abolished exclusive and special rights. It also acknowledged the right of every undertaking to provide telecommunications services and to install telecommunications networks, subject to administrative authorisations, without prejudice to the concessions provided for by law. (15) The requirement that activities in the telecommunications sector were to be subject to licences and authorisations was confirmed in Article 4 of Decree-Law No 249 of 31 July 1997 (16) on the designation of the supervisory authority and the establishment of rules in the telecommunications and audiovisual sector). (17)

11. The announced adjustment of Italian law to the requirements imposed by Community law was made, in accordance with the abovementioned principles, by Presidential Decree No 318 of 19 September 1997. (18) The procedure for obtaining general authorisations and individual licences is governed by Article 6, paragraphs 5, 20 and 21 of which contain provisions relating to the levying by the State of fees and charges:5. The charge to be paid by undertakings in respect of the general authorisation procedure shall cover solely the administrative costs in connection with preliminary investigation, with monitoring the management of the service, and of enforcing compliance with the conditions laid down in the authorisation ...20. Without prejudice to the financial charges for the provision of universal service in accordance with Article 3, the charge imposed on undertakings for individual licences is intended solely to cover the administrative costs connected with preliminary investigation, monitoring the management of the service and enforcing compliance with the conditions laid down in the licences ...21. If scarce resources are to be used, the authority may impose charges designed also to ensure the optimum use of those resources, taking into account the relevant commercial aspects. Those charges shall be non-discriminatory and must reflect, in particular, the need to promote the development of innovative services and competition ... .In those three situations, the amount of the charge is determined by the Authority designated in Law No 249 of 31 July 1997, cited above, by specific decision published in accordance with the law currently in force and with the requirements of Article 19(3)(b) of that legal provision.

14. The rules giving effect to those provisions were laid down by the Minister for the Treasury, Budget and Economic Planning by Decree of 21 March 2000. (26)

15. Article 1 of that decree provides: 1. ... holders of licences for installing and supplying public telecommunications networks, and for supplying public telephony services and mobile and personal communications services shall be required to pay the charge established by Article 20(2) of Law No 448 of 23 December 1998, during the years and in the amount stated in that paragraph.2. The charge shall apply to the installation and supply of public telecommunications networks, and to the supply of public telephony services and mobile and personal communications services.

16. Article 2(1) states: For determining the amount of the charge, turnover shall mean ... the amount of business stipulated in Article 20 of Presidential Decree No 663 of 26 October 1972. (27) The turnover refers solely to the activity which is subject to the charge. (28)

II ─ The facts in the main actions and the question referred for a preliminary ruling

17. Albacom and Infostrada are two Italian companies holding individual licences to supply telecommunications services and, as such, are subject to the charge laid down in Article 20(2) of Law No 448 of 1998. During the financial year 1999 they paid the amount of that charge, without prejudice to their right to a refund if appropriate.

18. The two companies have challenged the Ministerial Decree of 21 March 2000 by separate actions brought before the President of the Republic, in which they invoke Article 11 of the Directive and seek a declaration that Article 20(2) of Law No 448 should not be applied to them or, in the alternative, the referral to the Court of Justice of a question on the correct interpretation of the Community provisions.

19. In the proceedings held to hear those extraordinary petitions, the Minister who adopted the contested Decree has asked the Consiglio di Stato to issue an opinion.

III ─ The proceedings before the Court of Justice

21. By order of 12 September 2001, the President of the Court of Justice decided to join the two cases, since they concern the same subject-matter.

22. Written observations have been submitted, within the time-limit prescribed for that purpose by Article 20 of the EC Statute of the Court of Justice, by the Commission, the Italian Government, and the undertakings which are the applicants in the main proceedings.

23. At the hearing held on 21 November 2002, the representatives of the parties which have submitted written observations presented oral argument.

IV ─Assessment of the question referred for a preliminary ruling

A ─ Definition of the issue

24. The national court does not indicate which provision in the Directive it is asking the Court of Justice to interpret. However, from the factual context of the case in which the question arises, it is clear that it is Article 11, in which the Community legislature defines the powers of the Member States to impose charges on undertakings which hold individual licences in the telecommunications sector.

25. The Commission and Infostrada direct all their arguments towards establishing that the Italian legislation is incompatible with the aforementioned Article 11, and ask the Court of Justice to give a ruling to that effect.

26. It should be pointed out that the purpose of the jurisdiction to give preliminary rulings conferred by Article 234 EC is that the Court shall interpret or, if appropriate, give a ruling on the validity of the provisions of European law which constitute its material scope. The Court of Justice cannot give a ruling on national legal provisions or on their compatibility with Community law. It is for the courts of the Member States to carry out the latter task, once the doubts they have are clarified by the preliminary ruling.

B ─ The tax rules referred to by Articles 6 and 11 of the Directive

27. As the Commission rightly points out, both provisions are superfluous to the Directive. They contain tax rules inserted in a piece of procedural legislation, which, as I have pointed out, is designed to contribute to the complete liberalisation of the telecommunications market. To achieve that goal it is necessary to remove obstacles to the entry of new operators, (29) within a common framework to which the legal systems of the Member States must be adjusted with a view to developing the information society.

28. Those tax regulations must be interpreted in accordance with the aforementioned objective: fiscal charges imposed on telecommunications undertakings as part of authorisation procedures must not discourage them from entering the market, and must therefore be based only on objective, non-discriminatory and transparent criteria. (30)

30. General authorisations are permits defined in advance in a general manner, (31) which allow undertakings to operate in the telecommunications market without the need for an explicit decision by the competent body, but with possible subsequent monitoring. (32)

31. On the other hand, individual licences are specific authorisations for holders to operate, which require a decision from the administration in an ad hoc procedure. (33)

32. Those differences account for the fact that, whereas Article 6 talks of [covering] the administrative costs incurred in the issue, management control and enforcement of the applicable general authorisation scheme, Article 11(1) refers to disbursements of the same kind in respect of the issue, management, control and enforcement of the applicable individual licences. (34) For this reason, the second provision requires that the fee for an individual licence shall be proportionate to the work involved, a stipulation which is not made in respect of the charge in the case of general authorisations.

33. Articles 6 and 11(1) of the Directive therefore relate to different tax devices which, whatever they are called, (35) are remunerative and parafiscal in nature, because they tend to compensate for the act or administrative service which affects the taxpayer. However, owing to the different nature of the service provided, the amount of the charge to which the first of the aforementioned provisions refers is used unspecifically to cover the cost of operating the applicable general authorisation scheme, (36) whereas the charge for the individual permits is used solely to offset the costs incurred by the administration in respect of the issue, management, control and enforcement of each particular licence.

34. Article 11(2) refers to a contribution in which there is no notion of compensation and which is in the nature of a tax, albeit with a particular allocation.

C ─ Analysis of Article 11 of the Directive

36. The event giving rise to the licence fee is the completion of the procedure for granting the licence, or for the management, control or enforcement of the authorisation certificate.

37. Its sole aim is to cover the cost of carrying out those administrative procedures. The Commission rightly points out that the revenue from that charge is not used to finance other activities of the body responsible for granting and supervising the licences. (37)

38. The amount of the contribution must be in proportion to the work carried out to bring about the events giving rise to the charge. That is to say, whatever the level of the charge, it has to be fixed in the light of the costs incurred, but under no circumstances may it exceed that amount. That is necessary because of its remunerative nature; if it were to exceed the amount, it would become a tax.

39. The principles of objectivity, non-discrimination and transparency govern the establishment of the charge, which must be published in a sufficiently detailed manner. (38)

40. The above principles also apply to the charge referred to in Article 11(2) of the Directive.

41. One sphere to which individual licences relate is that of scarce resources, a concept which, contrary to the Italian Government's argument, has to be defined from the point of view of Community law. According to the provisions of the Directive, (39) radio frequencies and numbers constitute such resources. To ensure their optimum use, it is logical for the Community legislature to allow Member States to impose a charge on the holders of these single permits.

42. The nature of this contribution is, as I have pointed out, very different from that of the fee provided for in paragraph 1 of the provision, because it does not seek to recover the costs incurred by the Administration in granting and managing these licences, but is designed to optimise the use of scarce resources, [by fostering] the development of innovative services and competition. (40)

43. The three aforementioned principles of objectivity, non-discrimination and transparency, and also the Directive's intention to open the market to all operators and not to impose more restrictions or burdens than strictly necessary, require the rate of the charge and contribution not to be of a level which would discourage the entry of new competitors or the introduction of new telecommunications services.

44. I therefore come to the crux of the problem raised by the Consiglio di Stato. Does Article 11 preclude Member States from imposing on the holders of individual licences fiscal charges other than those allowed by the Directive?

45. In my view, the reply is in the affirmative. First, the wording of the provision (41) gives reason to believe that Article 11 imposes a restriction on the financial and taxation sovereignty of the Member States since, when carrying out the procedures relating to individual licences in the sphere of telecommunications services, they cannot apply charges other than those provided for in the provision. If any charge imposed on undertakings in connection with the authorisation procedures has to seek only to cover the corresponding administrative costs, it is not possible to charge them other contributions which pursue a different aim.

46. Teleological and systematic criteria for interpretation corroborate that view.

47. I have already indicated that the purpose of the harmonisation sought by the Directive is the complete liberalisation of the telecommunications market and the removal of obstacles to the entry of new operators (favor libertatis principle). The barriers it seeks to eliminate are not only the official and obvious barriers, such as the general requirement to have permits and authorisations before operating in that market, but also the material barriers, which, to varying extents, are capable of hindering the full achievement of the proposed objective.

48. It is therefore logical not to impose on the holders of individual licences in the telecommunications sector, merely for being so, fiscal charges other than those laid down in Article 11 of the Directive: a fee to cover the expenses of granting the licence or, if appropriate, its management, control and enforcement, and a tax which ensures the optimum use of scarce resources. The very title of the provision leads to this interpretation: Fees and charges for individual licences. (42)

49. If it is not interpreted in that way, the effectiveness of the rule would be endangered. If, as well as the contributions authorised by Article 11 of the Directive, (43) Member States were empowered to impose other charges on holders of individual licences in the telecommunications sector merely because they held those licences and operated in the market, (44) they would be able to thwart the purpose of the Community legislation. (45)

50. Furthermore, if the two paragraphs of Article 11 are read together properly, it may be seen that that was the legislature's intention. If any fees imposed as part of authorisation procedures must seek only to cover the administrative costs incurred in the process (paragraph 1) and if it is possible to impose another charge of a fiscal nature on the holders of individual licences only as an exception if they have scarce resources (paragraph 2), it is clear that the Directive intends that telecommunications undertakings provided with an authorisation of that kind should not be charged, because of that circumstance, with other taxes.

51. Article 11 of the Directive is designed to harmonise the fees and charges which Member States may impose on the holders of individual licences in order to operate in the telecommunications sector. The basis for that harmonisation is to be found in Article 2 EC, in that differences between the tax laws of the Member States jeopardises the achievement of the objectives it pursues. Tax harmonisation is not an aim of the European Union, but a tool for its construction. Disparities in the tax treatment of the same taxable event by the Member States are likely to cause significant distortions of competition, which would affect the freedom of movement of persons, capital and goods, and the freedom to provide services.

52. In short, the common framework of general authorisations and individual licences in telecommunications services, which the Directive seeks to establish, would weaken if it left the Member States free to impose the charges to be paid by undertakings in the sector. If the Community legislature has included in the Directive provisions which in principle lie outside its scope, that is because it believes that the process of harmonisation also has to extend to those matters.

53. The interpretation which I suggest is corroborated by the Authorisation Directive of 2002, which has replaced Directive 97/13/EC and which requires that the systems which regulate the administrative charges and fees for the use of radio frequencies and numbers should not distort competition or create barriers in the market, (46) which reflects the view that the holders of authorisations and licences (rights of use in the new terminology) cannot be subject, as such, to charges other than those laid down by Community legislation.

V ─ Conclusion

54. In the light of the foregoing considerations, I propose that the Court of Justice give the following reply to the question submitted by the Consiglio di Stato: Directive 97/13/EC 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 precludes Member States from imposing on undertakings holding individual licences tax contributions other than and additional to those provided for in Article 11 of that directive.

1 – Original language: Spanish.

2 – Since the judgment in Joined Cases C-69/96 to C-79/96 Garofalo and Others [1997] ECR I-5603, the Court of Justice has had no doubt that the Italian Council of State, when it issues an opinion in relation to an extraordinary petition brought before the President of the Republic, constitutes a court or tribunal within the meaning of Article 234 EC.

3 – OJ 1997 L 117, p. 15.

4 – See recitals 1, 2, 4 and 11, and Article 3(2), of the Directive.

5 –

According to the first indent of Article 2(1)(a) of the Directive, general authorisation means an authorisation, regardless of whether it is regulated by a class licence or under general law and whether such regulation requires registration, which does not require the undertaking concerned to obtain an explicit decision by the national regulatory authority before exercising the rights stemming from the authorisation.

Individual licence means an authorisation which is granted by a national regulatory authority and which gives an undertaking specific rights or which subjects that undertaking's operations to specific obligations supplementing the general authorisation where applicable, where the undertaking is not entitled to exercise the rights concerned until it has received the decision by the national regulatory authority (second indent of Article 2(1)(a) of the Directive).

See recitals 7 and 13, and Articles 3(3) and 7, of the Directive.

See Articles 10(1) and 9(3) of the Directive.

See the Annex to the Directive.

Approved by Presidential Decree No 156 of 29 March 1973 (Gazzeta Ufficiale della Repubblica Italiana (hereinafter GURI), No 113, 3 May 1973, ordinary supplement, p. 2).

See Articles 1, 4 and 188.

The starting point was Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services (OJ 1990 L 192, p. 10). The first amendment was made by Commission Directive 94/46/EC of 13 October 1994, especially in relation to satellite communications (OJ 1994 L 268, p. 15). Commission Directive 95/51/EC of 18 October 1995 (OJ 1995 L 256, p. 49) abolished the restrictions on the use of cable television networks for the provision of already liberalised telecommunications services. In the same year, Directive 95/62/EC of the European Parliament and the Council of 13 December 1995 (OJ 1995 L 321, p. 6) established open network provision conditions for the voice telephony service. Directive 90/388 was amended again by Commission Directive 96/2/EC of 16 January 1996 (OJ 1996 L 20, p. 59) in order to include mobile and personal communications services and systems within its field of application. Commission Directive 96/19/EC of 13 March 1996 (OJ 1996 L 74, p. 13) amended the 1990 provision by implementing full competition in the telecommunications markets. The final amendment was made by Commission Directive 1999/64/EC of 23 June 1999 (OJ 1999 L 175, p. 39), whose aim was to ensure that telecommunications networks and cable television networks owned by a single operator are separate legal entities. Part of the above collection of legal provisions has been repealed and replaced by Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (OJ 2002 L 249 p. 21).

GURI No 249 of 23 October 1996, p. 33.

GURI No 300 of 23 December 1996, p. 16.

See Article 1(2) of the Presidential Decree and Article 2(1) of the Law.

GURI No 177, 31 July 1997, ordinary supplement, p. 5.

See paragraphs 1 and 2.

GURI No 221, 22 September 1997, ordinary supplement, p. 5.

GURI No 63, 17 March 1998, p. 27.

Article 3.

Article 4.

Article 5.

Article 6.

GURI No 302, 29 December 1998, ordinary supplement, p. 5.

3% for 1999, 2.7% for 2000, 2. 5% for 2001, 2% for 2002 and 1.5% for 2003.

GURI No 92, 19 April 2000, p. 12.

GURI No 292, 11 November 1972, ordinary supplement No 1, p. 2. This is the decree which introduces and governs value added tax.

Note not relevant to the English version.

See recitals 3 and 5 of the Directive.

See recital 12 of the Directive.

They may be predetermined either by the administration (class licences) or by the legislature itself (see recital 8 and the first indent of Article 2(1)(a) of the Directive).

See Article 5 of the Directive.

See the second indent of Article 2(1)(a) and Article 9 of the Directive.

Emphasis added. In Article 11(1) of the Spanish version of the Directive, the expression régimen de licencias individuales aplicable is used, but the first noun does not appear in the texts in Italian, English and French. In the first of these, the wording is il rilascio, la gestione, il controllo e l'esecuzione delle relative licenze individuali. The English version of the Directive says in the issue, management, control and enforcement of the applicable individual licences. Finally, the French version includes the phrase à la délivrance, à la gestion, au contrôle et a l'application des licences individuelles applicable.

Tasas or precios públicos. Years ago there was a furious doctrinal debate amongst Spanish academic lawyers regarding the definition of those two concepts. Reference may be made to Aguallo Avilés, A., Tasas y precios públicos: análisis de la categoría jurídica del precio público y su delimitación con la tasa desde la perspectiva constitucional. Editorial Lex Nova, Valladolid, 1992. Also recommended is the work of Martín Fernández, F.J., Tasas y precios públicos en el derecho español. Instituto de Estudios Fiscales ─ Marcial Pons, Ediciones Jurídicas, S.A., Madrid, 1995. In the English, French and Italian versions of the Directive, the terms fees, taxes and diritti are used respectively.

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), which has replaced Directive 97/13/EC, repealed by Directive 2002/21/EC of the European Parliament and of the Council of the same date on a common regulatory framework for electronic communications networks and services (Framework Directive)(OJ 2002 L 108, p.) supports this interpretation when it states, in recital 31, that [w]ith a general authorisation system it will no longer be possible to attribute administrative costs and hence charges to individual undertakings except for the granting of rights to use numbers, radio frequencies and for rights to install facilities; that is to say, in the 1997 Directive they were called individual licences and in the new one rights of use for radio frequencies and numbers (Article 5).

National regulatory authority in the terminology of the Directive (Article 2(1)(b)).

See recital 12 and Article 11(1) of the Directive.

See recital 13, Articles 7(1)(a) and 10(1) of the Directive, and points 4.1 and 4.2 of the Annex.

The last sentence of Article 11(2) of the Directive. Recital 32 of the Authorisation Directive of 2002 leaves it to the Member States to determine the purposes for which the amounts collected in respect of this tax are to be employed (charges for rights of use and rights to install facilities, in the words of the Directive). Consequently, they may for instance be used to finance activities of national regulatory authorities that cannot be covered by administrative charges. It adds that, in the case of competitive or comparative selection procedures, payment arrangements should ensure that such fees do not in practice lead to selection on the basis of criteria unrelated to the objective of ensuring optimal use of radio frequencies.

Member States shall ensure that any fees imposed on undertakings as part of authorisation procedures seek only to cover the administrative costs incurred ... (emphasis added).

On the other hand, Article 6 speaks of Fees and charges for general authorisation procedures (emphasis added).

Which, in Italian law, are found in Article 6(5), (20) and (21) of Presidential Decree No 318 of 1997, and in the Ministerial Decree of 5 February 1998.

Such as the contribution provided for in Article 20(3) of the Budget Law for 1999, implemented in the Decree of 21 March 2000.

See the case-law of the Court of Justice, cited by the Commission in its written observations, in relation to Directive 69/335/EEC of the Council of 17 July 1969 concerning indirect taxes on the raising of capital (OJ English special edition 1969 First Series II, p. 412). In particular, the judgments in Joined Cases C-71/91 and C-178/91 Ponente Carni and Cispadina Costruzioni [1993] ECR I-1915, paragraphs 30 and 31; Case C-188/95 Fantask and Others [1997] ECR I-6783, paragraphs 26 and 27; and Case C-56/98 Modelo I [1999] ECR I-6427, paragraphs 25 and 27.

Recitals 31 and 32.