29 April 2020 (*1)

(Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Electronic communications networks and services — Directive 2002/20/EC — Article 12 — Administrative charges imposed on undertakings providing an electronic communications service or network — Administrative costs of the national regulatory authority which may be covered by a charge — Yearly overview of the administrative costs and the total of charges levied)

In Case C‑399/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 11 April 2019, received at the Court on 22 May 2019, in the proceedings

Autorità per le Garanzie nelle Comunicazioni,

BT Italia SpA,

Basictel SpA,

BT Enia Telecomunicazioni SpA,

Telecom Italia SpA,

Postepay SpA, formerly PosteMobile SpA,

Vodafone Italia SpA,

intervening parties:

Telecom Italia SpA,

Fastweb SpA,

Wind Tre SpA,

Sky Italia SpA,

Vodafone Omnitel BV,

Vodafone Italia SpA,

THE COURT (Tenth Chamber),

composed of I. Jarukaitis (Rapporteur), President of the Chamber, E. Juhász and C. Lycourgos, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–BT Italia SpA, Basictel SpA and BT Enia Telecomunicazioni SpA, by R. Caiazzo, S. Fienga and F. Costantini, avvocati,

–Telecom Italia SpA, by F. Cardarelli, F. Lattanzi and F.S. Cantella, avvocati,

–Postepay SpA and Fastweb SpA, by F. Pacciani and V. Mosca, avvocati,

–Vodafone Italia SpA, by V. Cerulli Irelli and M. Libertini, avvocati,

–Wind Tre SpA, by B. Caravita di Toritto, R. Santi and S. Fiorucci, avvocati,

–Sky Italia SpA, by O. Grandinetti, D. Majori and A.A. Di Todaro, avvocati,

–the Italian Government, by G. Palmieri, acting as Agent, and by R. Guizzi, S. Fiorentino and P.G. Marrone, avvocati dello Stato,

–the Belgian Government, by P. Cottin, J.‑C. Halleux and C. Pochet, acting as Agents, and by P. Vernet, S. Depré and M. Lambert de Rouvroit, avocats,

–the Lithuanian Government, by K. Dieninis and R. Dzikovič, acting as Agents,

–the European Commission, by L. Malferrari, G. Braun and L. Nicolae, acting as Agents,

having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 99 of the Rules of Procedure of the Court of Justice,

makes the following

1This request for a preliminary ruling concerns the interpretation of Article 12 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; corrigendum OJ 2013 L 241, p. 8) (‘the Authorisation Directive’).

2The request has been made in proceedings between l’Autorità per le Garanzie nelle Comunicazioni (Communications supervisory authority, Italy) (‘the supervisory authority’) and BT Italia SpA, Basictel SpA, BT Enia Telecomunicazioni SpA, Telecom Italia SpA, Postepay SpA, formerly PosteMobile SpA, and Vodafone Italia SpA concerning the contribution payable to the supervisory authority by operators operating in the electronic communications and media services sector, claimed from those companies for the years 2014 to 2016.

Legal context

European Union law

3Article 3(3a) 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’), provides as follows:

‘Without prejudice to the provisions of paragraphs 4 and 5, national regulatory authorities responsible for ex-ante market regulation or for the resolution of disputes between undertakings in accordance with Article 20 or 21 of this Directive shall act independently and shall not seek or take instructions from any other body in relation to the exercise of these tasks assigned to them under national law implementing [EU] law. …

…’

4Article 16 of the Framework Directive provides as follows:

‘1. National regulatory authorities shall carry out an analysis of the relevant markets taking into account the markets identified in the Recommendation, and taking the utmost account of the Guidelines. Member States shall ensure that this analysis is carried out, where appropriate, in collaboration with the national competition authorities.

…’

5Recital 30 of the Authorisation Directive states:

‘Administrative charges may be imposed on providers of electronic communications services in order to finance the activities of the national regulatory authority in managing the authorisation system and for the granting of rights of use. Such charges should be limited to cover the actual administrative costs for those activities. For this purpose transparency should be created in the income and expenditure of national regulatory authorities by means of annual reporting about the total sum of charges collected and the administrative costs incurred. This will allow undertakings to verify that administrative costs and charges are in balance.’

6Article 3 of that directive establishes a general authorisation for electronic communications networks and services. According to the definition set out in Article 2(2) of the directive, a ‘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’.

7Under Article 5 of that directive, Member States may grant individual rights of use for radio frequencies and numbers where necessary for certain purposes.

8According to Article 6(2) of the Authorisation Directive:

‘Specific obligations which may be imposed on providers of electronic communications networks and services under Articles 5(1), 5(2), 6 and 8 of Directive 2002/19/EC (Access Directive) and Article 17 of Directive 2002/22/EC (Universal Service Directive) or on those designated to provide universal service under the said Directive shall be legally separate from the rights and obligations under the general authorisation. In order to achieve transparency for undertakings, the criteria and procedures for imposing such specific obligations on individual undertakings shall be referred to in the general authorisation.’

9Article 12 of the Authorisation Directive, entitled ‘Administrative charges’, provides as follows:

‘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.

10Article 5(1) and (2) of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002, on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (OJ 2002 L 108, p. 7), as amended by Directive 2009/140 (‘the Access Directive’) provides as follows:

‘1. National regulatory authorities shall, acting in pursuit of the objectives set out in Article 8 of [the Framework Directive], encourage and where appropriate ensure, in accordance with the provisions of this Directive, adequate access and interconnection, and the interoperability of services, exercising their responsibility in a way that promotes efficiency, sustainable competition, efficient investment and innovation, and gives the maximum benefit to end-users.

In particular, without prejudice to measures that may be taken regarding undertakings with significant market power in accordance with Article 8, national regulatory authorities shall be able to impose:

(a) to the extent that is necessary to ensure end-to-end connectivity, obligations on undertakings that control access to end-users, including in justified cases the obligation to interconnect their networks where this is not already the case;

(ab) in justified cases and to the extent that is necessary, obligations on undertakings that control access to end-users to make their services interoperable;

(b) to the extent that is necessary to ensure accessibility for end-users to digital radio and television broadcasting services specified by the Member State, obligations on operators to provide access to the other facilities referred to in Annex I, Part II on fair, reasonable and non-discriminatory terms.

11Article 6 of the Access Directive concerns the obligations imposed on operators in relation to conditional access and other facilities, while Article 8 deals with the imposition, amendment or withdrawal of obligations.

12Article 17 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 11) (‘the Universal Service Directive’), concerns regulatory controls on undertakings with significant market power operating on the retail market.

Italian law

13Article 1(65) of Legge n. 266 — Disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (legge finanziaria 2006) (Law No 266 — Provisions for drawing up the annual and multiannual State budget (Finance Act for 2006)), of 23 December 2005 (Ordinary Supplement to GURI No 302, of 29 December 2005), provides as follows:

‘From 2007 onwards, the operating expenses … of [the supervisory authority] shall, in so far as they are not covered by funding from the national budget, be financed by the relevant market in accordance with the rules laid down in the legislation in force. The amount of the contributions shall be determined by decision of [that authority], within the limits provided for by law. The contributions shall be paid directly to [that authority] …’

Article 1(66) of that law provides that, for the year 2006, the amount of the contribution to be paid by economic operators in the communications sector is fixed at 0.15% of earnings as recorded in the last set of approved company accounts before the entry into force of that law and that, for subsequent years, the supervisory authority may vary the amount and manner of payment of the contribution up to a maximum of 0.2% of earnings as recorded in the last set of approved company accounts before the adoption of the decision.

Article 34 of the decreto legislativo n. 259 — Codice delle comunicazioni elettroniche (Legislative Decree No 259 establishing the Electronic Communications Code) of 1 August 2003 (Ordinary Supplement to GURI No 214 of 15 September 2003), in the version applicable to the dispute in the main proceedings (‘the Electronic Communications Code’), provides as follows:

‘1. In addition to the contributions referred to in Article 35, administrative charges may be imposed on undertakings providing networks or services by virtue of the general authorisation or to which a right of use has been granted covering only the administrative costs 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 28(2), which may include costs of international cooperation, harmonisation and standardisation, market analysis, monitoring compliance and other market controls, as well as regulatory work involving preparation and enforcement of secondary legislation and administrative decisions, such as decisions on access and interconnection. The administrative charges shall be imposed upon the individual undertakings in an objective, transparent and proportionate manner which minimises additional administrative costs and attendant charges.

2a. In order to cover the total administrative costs incurred in carrying out the regulatory, supervisory, dispute-resolution and penalty-imposing tasks assigned by law to [the supervisory authority] in the fields referred to in paragraph 1, the amount of the administrative charges referred to in paragraph 1 shall be determined in accordance with Article 1(65) and (66) of Law No 266 of 23 December 2005, and shall be in proportion to the income earned by undertakings from the activities covered by the general authorisation or in respect of which rights of use have been granted.

2b. The Ministry, together with the Ministry of the Economy and Finances, and [the supervisory authority] shall publish annually the administrative costs incurred in connection with the activities referred to in paragraph 1 and the total amount of the charges levied in accordance with paragraphs 2 and 2a. Where there is a difference between the total amount of charges and the administrative costs, appropriate adjustments shall be made.’

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

By judgments of 31 January, 13 February, 1 and 17 March 2017, the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy) upheld the actions brought by:

BT Italia, Basictel and BT Enia Telecomunicazioni against Decision 567/14 of the supervisory authority of 6 November 2014, determining the amount of and arrangements for payment of the contribution due to that authority for 2015, and against Decision 87/15 of that authority, concerning the adoption of the telematics form and the instructions for the payment of that contribution;

PosteMobile against Decision 547/13 of the supervisory authority, determining the amount of and arrangements for payment of the contribution due to that authority for 2014, against Decision 71/14 of that authority, concerning the adoption of the telematics form and the instructions for the payment of that contribution for 2015, and against a letter from that authority claiming a further payment of the contribution for 2014;

PosteMobile against Decisions 567/14 and 87/15 of the supervisory authority and against a letter from that authority claiming it owed a further payment of the contribution for 2015;

Telecom Italia against Decision 605/15 of the supervisory authority of 5 November 2015 determining the amount of and arrangements for payment of the contribution due to that authority for 2016, and against Decision 34/16 of that authority of 24 February 2015, concerning the adoption of the telematics form and the instructions for the payment of that contribution for 2016; and

Vodafone Italia against Decisions 605/15 and 34/16 of the supervisory authority.

In its five judgments, the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio) accepted the arguments put forward by those companies and annulled the decisions of the supervisory authority referred to in the preceding paragraph, holding that the method used by that authority to determine the tax base on which the amount of the contribution payable to it was calculated was incorrect, in that it referred to all the activities which that authority was required to carry out under the regulatory framework and took into account all income received by the taxable operators, thus including costs which should not have been included. In that context, that court found that Article 34(2a) of the Electronic Communications Code, adopted in 2015, did not apply to the cases in the main proceedings since it was a new, non-retroactive provision. It therefore held, in accordance with the judgment of 18 July 2013, Vodafone Omnitel and Others (C‑228/12 to C‑232/12 and C‑254/12 to C‑258/12), that the contribution due to the supervisory authority should cover only the total costs relating to the supervisory authority’s regulatory activities and that the costs in question are to be narrowly defined as costs relating to the provision, management, control and enforcement of the general authorisation scheme.

In addition, the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio) upheld the complaint raised before it that the yearly overview provided for in Article 12(2) of the Authorisation Directive had not been adopted for the year 2014 and found that the yearly overview had to be published before the contribution due to the supervisory authority could be demanded.

The supervisory authority appealed against those judgments before the Consiglio di Stato (Council of State, Italy). The Consiglio di Stato (Council of State) noted that Article 34(2a) of the Electronic Communications Code was adopted, in the context of infringement proceedings brought by the European Commission, to avert the bringing of an action for failure to fulfil obligations as a result of the incorrect transposition of Articles 6 and 12 of the Authorisation Directive. However, the court of first instance took the view that the new provision did not have retroactive effect and thus did not examine whether it was compatible with Article 12 of the Authorisation Directive, even though it applied ratione temporis at least to the contribution due to the supervisory authority for 2016.

The referring court considers that there is some doubt as to the compatibility with EU law of the national rules adopted prior to and subsequent to the adoption of Article 34(2a) of the Electronic Communications Code. It states that, following the judgment of 18 July 2013, Vodafone Omnitel and Others (C‑228/12 to C‑232/12 and C‑254/12 to C‑258/12), the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio), when seeking to determine which were the activities in respect of which the administrative costs could be taken into account to finance the supervisory authority, concluded from that judgment that the Court had treated the activities listed in Article 12 of the Authorisation Directive as equivalent solely to the activity of regulation undertaken by the national regulatory authority (‘the NRA’), whereas, according to the referring court, no such equivalence was apparent from that provision or from that judgment. The referring court considers that, in that judgment, the Court did not address the issue of ‘ex ante regulatory activities’, which is a question of central importance in the main proceedings, and that the Court’s case-law is not specific as regards the scope of the NRA’s activities in question.

Furthermore, the referring court queries the compatibility of Article 34(2b) of the Electronic Communications Code with Article 12(2) of the Authorisation Directive.

It is on that basis that the Consiglio di Stato (Council of State) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Does Article 12(1)(a) of [the Authorisation Directive] preclude national legislation which imposes on undertakings authorised under that directive the total administrative costs incurred by the [NRA] in organising and carrying out all the tasks, including regulatory, supervisory, dispute-resolution and penalty-imposing tasks, assigned to it under the European framework for electronic communications … or are the activities mentioned in Article 12(1)(a) of [the Authorisation Directive] co-extensive with the “ex ante regulatory activities” performed by the [NRA]?

(2) Is Article 12(2) of [the Authorisation Directive] to be interpreted as meaning that the yearly overview of the administrative costs of the [NRA] and of the charges levied:

(a) may be published after the end of the financial year, in accordance with national laws on public accounting, in which the administrative charges have been levied, and

(b) permits the [NRA] to make the “appropriate adjustments” even with reference to financial years that are not immediately consecutive?’

Consideration of the questions referred

Admissibility

Postepay, Fastweb SpA, Wind Tre SpA and Sky Italia SpA submit, in essence, that the questions referred are inadmissible in the light of Article 94 of the Rules of Procedure of the Court of Justice, since the order for reference does not set out the reasons which led the referring court to query the interpretation of the provisions of EU law, even though the Court has already given a precise indication of those activities of the NRA which can be financed by a contribution from operators and has already had the opportunity to rule on the relevant Italian regulations on two occasions, in the judgments of 18 July 2013, Vodafone Omnitel and Others (C‑228/12 to C‑232/12 and C‑254/12 to C‑258/12), and of 28 July 2016, Autorità per le Garanzie nelle Comunicazioni (C‑240/15).

In addition, they submit that the second part of the first question, relating to ‘ex ante regulatory activities’, raises an issue that is essentially factual in nature. The referring court is in fact asking the Court to rule on the way in which Article 12 of the Authorisation Directive is applied in the Member State in question, whereas that is a task for the referring court itself. As regards the second question, the referring court has not provided any factual evidence relating to the adoption and content of the yearly overviews in question or any explanation as to the reasons for the alleged incompatibility of Article 34(2b) of the Electronic Communications Code with Article 12(2) of the Authorisation Directive. Moreover, the two questions have no genuine and practical relevance for the resolution of the dispute in the main proceedings.

In that regard, it should be recalled, first, that, according to the Court’s settled case-law, in the context of the cooperation between the Court of Justice and the national courts provided for in Article 267 TFEU, the need to provide an interpretation of EU law which will be of use to the national court means that the national court is bound to observe scrupulously the requirements relating to the content of a request for a preliminary ruling, expressly set out in Article 94 of the Rules of Procedure. Thus, it is essential, as stated in Article 94(c) of those rules, that the reference for a preliminary ruling itself contains a statement of the reasons which prompted the national court to inquire about the interpretation or validity of certain provisions of EU law (see, to that effect, judgment of 19 April 2018, Consorzio Italian Management and Catania Multiservizi, C‑152/17, EU:C:2018:264, paragraphs 21 and 22 and the case-law cited).

Second, within the context of that cooperation, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (judgment of 13 November 2018, Čepelnik, C‑33/17, EU:C:2018:896, paragraph 20).

It follows that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 13 November 2018, Čepelnik, C‑33/17, EU:C:2018:896, paragraph 21).

In the present case, it is apparent from the request for a preliminary ruling that, as regards the first question referred, the referring court cannot find in the Court’s case-law and, in particular, in the judgment of 18 July 2013, Vodafone Omnitel and Others (C‑228/12 to C‑232/12 and C‑254/12 to C‑258/12), the guidance it needs to resolve the dispute in the main proceedings as regards which NRA activities can be financed by administrative charges under Article 12 of the Authorisation Directive and, in particular, whether those activities correspond to the activity of ‘ex ante regulatory activities’ alone. As for the second question, the referring court states that, in the main proceedings, the court of first instance upheld the applicants’ complaint, finding that the yearly overview had to be published before the contribution due to the supervisory authority could be demanded, something that the supervisory authority contests in its appeals.

In those circumstances, it must be held that the referring court has sufficiently set out the reasons which led it to refer questions to the Court and that the interpretation sought is not unrelated to the purpose of the main proceedings.

It follows that the questions referred for a preliminary ruling are admissible.

Substance

Under Article 99 of its Rules of Procedure, where, inter alia, the reply to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law or where the answer to the question referred admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order.

It is appropriate to apply that provision in the present case.

The first question

By its first question, the court asks, in essence, whether Article 12(1)(a) of the Authorisation Directive must be interpreted as meaning that the costs that may be covered by a charge imposed under that provision on undertakings providing an electronic communications service or network are the total administrative costs borne by the NRA in carrying out all its activities, including regulatory, supervisory, dispute-resolution and penalty-imposing tasks, or only those resulting from ‘ex ante regulatory activities’.

In that regard, it must be borne in mind that, in response to a similar question referred by the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio), before which the applicants were disputing the amount of the charge imposed on them under the same national legislation as that at issue in the main proceedings on the grounds that the charge included items not directly linked to expenses incurred by the NRA in the ex ante regulation of the market, the Court ruled, in the judgment of 18 July 2013, Vodafone Omnitel and Others (C‑228/12 to C‑232/12 and C‑254/12 to C‑258/12), that Article 12 of the Authorisation Directive must be interpreted as not precluding legislation of a Member State pursuant to which undertakings providing electronic communications services or networks are liable to pay a charge intended to cover all the costs incurred by the NRA which are not financed by the State, the amount of which is determined according to the income received by those undertakings, provided that that charge is intended to cover only the costs relating to the activities mentioned in Article 12(1)(a), that the totality of the income obtained in respect of that charge does not exceed the total costs relating to those activities and that that charge is imposed upon individual undertakings in an objective, transparent and proportionate manner.

In paragraph 38 of that judgment, the Court found that it followed from the wording of Article 12(1)(a) of the Authorisation Directive that Member States may impose on undertakings providing a service or a network under the general authorisation or to which a right to use radio frequencies or numbers has been granted only administrative charges covering the overall administrative costs relating to 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) of that directive, 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.

In paragraphs 39 and 40 of the judgment of 18 July 2013, Vodafone Omnitel and Others (C‑228/12 to C‑232/12 and C‑254/12 to C‑258/12), the Court stated that such charges may cover only the costs relating to the activities set out in the preceding paragraph of this order, which cannot include expenditure relating to other tasks, and that, accordingly, the charges imposed pursuant to Article 12 of the Authorisation Directive are not intended to cover all administrative costs, of whatever nature, incurred by the NRA. The Court stated in paragraph 41 of that judgment that it is clear from Article 12(2) of that directive, read in the light of recital 30 thereof, that those charges must cover the actual administrative costs relating to those activities and must balance out against those costs. Thus, the totality of the income obtained by the Member States from the charge concerned cannot exceed the total costs relating to those activities.

Those considerations were reiterated by the Court in the judgments of 28 July 2016, Autorità per le Garanzie nelle Comunicazioni (C‑240/15), and of 30 January 2018, X and Visser (C‑360/15 and C‑31/16), paragraphs 45 and 46.

In paragraph 22 of the judgment of 27 June 2013, Vodafone Malta and Mobisle Communications (C‑71/12), the Court also stated that the administrative charges referred to in Article 12 of the Authorisation Directive represent remuneration since, first, they may be levied only for the administrative services performed by NRAs for electronic communications operators in connection with, inter alia, the general authorisation or the grant of a right to use radio frequencies or numbers and, second, they must cover the administrative costs incurred in providing those services.

It is clear both from the wording of Article 12(1)(a) of the Authorisation Directive and from the interpretation of that wording given previously in the judgments referred to in paragraphs 34 to 38 above that the costs of the NRA that may be covered by a charge under that provision are not the entirety of the NRA’s operating costs, but the overall administrative costs relating to three categories of activities referred to in that provision, namely:

–first, the management, control and enforcement of the general authorisation scheme referred to in Article 3 of the Authorisation Directive, which includes the conditions which may be attached to the general authorisation, as listed in Part A of the annex to that directive;

–second, the management, control and enforcement of the rights of use for radio frequencies and numbers referred to in Article 5 of the Authorisation Directive and the conditions which may be attached to those rights, as listed in Parts B and C of the annex to that directive;

–third, the management, control and enforcement of the specific obligations referred to in Article 6(2) of the Authorisation Directive, which include the obligations which may be imposed on providers of electronic communications networks and services in accordance with Article 5(1) and (2) and Articles 6 and 8 of the Access Directive or Article 17 of the Universal Service Directive, and the obligations which may be imposed on providers designated to provide universal service in accordance with the latter directive.

The overall administrative costs relating to those three categories of activities 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.

In relation to the NRA’s regulatory, supervisory, dispute-resolution and penalty-imposing tasks referred to by the referring court, it should be noted that such tasks are inherent in the management, control and enforcement of the general authorisation scheme, of the rights of use or of the specific obligations, which means that the costs to which they give rise can be covered by the administrative charges imposed under Article 12(1)(a) of the Authorisation Directive.

As for the ‘ex ante regulatory activity’ referred to by the referring court, it must be noted that the referring court does not indicate what it means by that expression, which does not appear in the Authorisation Directive, the Framework Directive, the Access Directive or the Universal Service Directive. On the other hand, ex ante market regulation, for which the NRA is responsible, as stated in Article 3(3a) of the Framework Directive, consists in imposing on providers of electronic communications networks and services obligations such as those laid down in Article 5(1) and (2) or Article 6 of the Access Directive and those imposed under Article 8 of the Access Directive or under Article 17 of the Universal Service Directive, on undertakings designated as having significant market power following the market analysis procedure provided for in Article 16 of the Framework Directive. It must therefore be concluded that ex ante market regulation forms an integral part of the third category of NRA activities mentioned in paragraph 39 above and of certain of the tasks mentioned in paragraph 40. Accordingly, the costs that may be covered by the administrative charges imposed in accordance with Article 12(1)(a) of the Authorisation Directive cannot be limited to those arising from the activity of ex ante market regulation.

In the light of all the above considerations, the answer to the first question is that Article 12(1)(a) of the Authorisation Directive must be interpreted as meaning that the costs which may be covered by a charge imposed under that provision on undertakings providing electronic communications networks and services are only those relating to the three categories of NRA activities referred to in that provision, including regulatory, supervisory, dispute-resolution and penalty-imposing tasks, and are not limited to costs arising from the activity of ex ante market regulation.

The second question

By its second question, the referring court asks, in essence, whether Article 12(2) of the Authorisation Directive must be interpreted as precluding the legislation of a Member State under which, first, the yearly overview provided for in that provision is published after the end of the financial year in which the administrative charges were levied and, second, the appropriate adjustments are made in a financial year which does not immediately follow the financial year in which those charges were levied.

In that regard, it must be noted, as recalled in paragraph 36 above, that it is clear from Article 12(2) of the Authorisation Directive, read in the light of recital 30 thereof, that the administrative charges which may be imposed in accordance with Article 12 of that directive must cover the actual administrative costs relating to the activities mentioned in Article 12(1)(a) and must balance out against those costs. Thus, the totality of the income obtained by the Member States from the charge concerned cannot exceed the total costs relating to those activities.

The purpose of the yearly overview provided for in Article 12(2) of the Authorisation Directive, as is made clear in recital 30 of that directive, is to create transparency in the income and expenditure of NRAs, thus allowing the undertakings concerned to verify that administrative costs and charges balance out against each other.

As the Court previously stated, in paragraph 41 of the judgment of 18 July 2013, Vodafone Omnitel and Others (C‑228/12 to C‑232/12 and C‑254/12 to C‑258/12), the Authorisation Directive does not lay down either the method for determining the amount of administrative charges which may be imposed pursuant to Article 12 thereof or the means of collecting those charges.

It follows that it is for Member States to determine the procedures for publishing the yearly overview and implementing the appropriate adjustments required under Article 12(2) of the Authorisation Directive, whilst ensuring that transparency is achieved in such a way that the undertakings concerned can verify that administrative costs and charges balance out against each other.

Neither the fact that the yearly overview was published after the end of the financial year in which the administrative charges were levied nor the fact that the appropriate adjustments were made in a financial year not immediately following the financial year in which those charges were levied appears, in itself, to prevent that requirement being satisfied.

Consequently, the answer to the second question is that Article 12(2) of the Authorisation Directive must be interpreted as not precluding the legislation of a Member State under which, first, the yearly overview provided for in that provision is published after the end of the financial year in which the administrative charges were levied and, second, the appropriate adjustments are made in a financial year which does not immediately follow the financial year in which those charges were levied.

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 (Tenth Chamber) hereby rules:

Article 12(1)(a) 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), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, must be interpreted as meaning that the costs which may be covered by a charge imposed under that provision on undertakings providing electronic communications networks and services are only those relating to the three categories of national regulatory authority activities referred to in that provision, including regulatory, supervisory, dispute-resolution and penalty-imposing tasks, and are not limited to costs arising from the activity of ex ante market regulation.

Article 12(2) of Directive 2002/20, as amended by Directive 2009/140, must be interpreted as not precluding the legislation of a Member State under which, first, the yearly overview provided for in that provision is published after the end of the financial year in which the administrative charges were levied and, second, the appropriate adjustments are made in a financial year which does not immediately follow the financial year in which those charges were levied.

[Signatures]

*1 Language of the case: Italian.