Nuova società di telecomunicazioni SpA v Ministero delle Comunicazioni and ENI SpA (C-339/04)

Contents

Judgment of the Court (Third Chamber)18 July 2006^noteIn Case C-339/04,REFERENCE for a preliminary ruling under Article 234 EC from the Consiglio di Stato (Italy), made by decision of 24 February 2004, received at the Court on 9 August 2004 in the proceedingsNuova società di telecomunicazioni SpAvMinistero delle Comunicazioni,ENI SpA,THE COURT (Third Chamber),composed of A. Rosas, President of Chamber, J.-P. Puissochet, S. von Bahr (Rapporteur), U. Lõhmus and A. Ó Caoimh, Judges,Advocate General: D. Ruiz-Jarabo Colomer,Registrar: L. Hewlett, Principal Administrator,having regard to the written procedure and further to the hearing on 28 September 2005,after considering the observations submitted on behalf of:— Nuova società di telecomunicazioni SpA, by A. Santa Maria and F.G. Scoca, lawyers,— the Italian Government, by I.M. Braguglia, acting as Agent, assisted by P. Gentili, avvocato dello Stato,— the Commission of the European Communities, by E. Traversa and M. Shotter, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 27 October 2005,gives the following

Judgment

1The reference for a preliminary ruling concerns the interpretation of 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 (OJ 1997 L 117, p. 15).

2It has been made in a dispute between Nuova società di telecomunicazioni SpA (‘NST’) and the Ministero delle Comunicazioni (Ministry of Communications) concerning the payment of a charge for the private use of a telecommunications network.

Legal context

Community legislation

3Directive 97/13 establishes a common framework for authorisation systems designed to make it significantly easier for new operators to enter the market.

4Under Article 3(3) of that directive, Member States are to ensure that telecommunications services and/or telecommunications networks can be provided either with or without authorisation. The directive makes provision for two distinct authorising instruments, namely the general authorisation and the individual licence.

5According to the first indent of Article 2(1)(a) of Directive 97/13, a general authorisation, whether regulated by a ‘class licence’ or under general law, does not require the undertaking concerned to obtain an explicit decision by the national regulatory authority.

6According to the second indent of Article 2(1)(a) of that directive, an ‘individual licence’ is granted by a national regulatory authority and confers specific rights on an undertaking or subjects its operations to specific obligations.

7Under Article 7(1) of Directive 97/13, Member States may issue individual licences only for certain specific purposes, and in particular in order to allow the licensee access to radio frequencies or numbers.

8Article 7(2) of the directive provides, however, that the establishment and provision of public telecommunications networks as well as other networks involving the use of radio frequencies may be subject to individual licences.

9Concerning the fees and charges applicable to individual licences, Article 11(1) of Directive 97/13 provides that fees are to seek only to cover the administrative costs incurred in the issue, management, control and enforcement of the applicable individual licences. The fees for an individual licence are to be proportionate to the work involved and to be published in an appropriate and sufficiently detailed manner, so as to be readily accessible.

10Where, however, scarce resources are to be used, Article 11(2) of Directive 97/13 permits Member States to authorise their national regulatory authorities to impose charges which reflect the need to ensure the optimal use of those resources.

National legislation

11Before the liberalisation of the telecommunications market, companies entitled to provide public utility services could, in the context of a franchise system, operate telecommunications networks for their internal needs, in accordance with the Postal and Telecommunication Code approved by Presidential Decree No 156 (testo unico delle disposizioni legislative in materia postale di bancoposta e di telecomunicazioni approvato con decreto del Presidente della Repubblica n^o 156), of 29 March 1973 (GURI No 113, of 3 May 1973; ‘the Code’).

12In the context of the liberalisation of the telecommunications market, Presidential Decree No 318, applying Community directives in the telecommunications sector (decreto del Presidente della Repubblica n^o 318, Regolamento per l'attuazione di direttive comunitarie nel settore delle telecomunicazioni), of 19 September 1997 (ordinary supplement to the GURI No 221, of 22 September 1997; ‘Decree No 318/97’), made it possible for certain companies to obtain an individual licence to offer telecommunication services to the public.

13Article 6 of Decree No 318/97 governs the procedure for granting general authorisations and individual licences and lays down the rules for levying charges. According to that article, save where scarce resources are to be used, the charge imposed on undertakings for individual licences is intended solely to cover the administrative costs incurred in the issue of the licence, monitoring the management of the service and enforcing compliance with the conditions laid down in the licences themselves.

14Article 21(2) to (5) of Decree No 318/97, which had extended the new system to networks for private use, was repealed by Article 20 of Law No 448, introducing public finance measures for stabilisation and development (legge n^o 448, Misure di finanza pubblica per la stabilizzazione e lo sviluppo), of 23 December 1998 (ordinary supplement to the GURI No 302, of 29 December 1998; ‘Law No 448/98’). The latter article did, however, provide that the provisions of the Code concerning the calculation of pecuniary charges relating to private networks would remain applicable until the adoption of new regulatory and legislative provisions on the matter.

15Under Article 4(6) of Law No 249, on the designation of the telecommunications supervisory authority and the establishment of rules in the telecommunications and audiovisual sector (legge n^o 249, Istituzione dell'Autorità per le garanzie nelle comunicazioni e norme sui sistemi delle telecomunicazioni e radiotelevisivo), of 31 July 1997 (ordinary supplement to the GURI No 177, of 31 July 1997), companies entitled to provide public utility services which had established private networks to meet their own needs are required to set up a separate company to carry out any activity in that sector and must pay charges in that respect in accordance with Article 20 of Law No 448 of 1998.

The dispute in the main proceedings

16The dispute in the main proceedings, as described in the order for reference, may be summarised as follows.

17In accordance with Article 213 of the Code, ENI SpA (‘ENI’) was, before the liberalisation of the telecommunications market, the assignee of radio frequencies for its internal needs.

18Following that liberalisation, and as a result in particular of Directive 97/13, ENI established NST and entrusted to that company the management of the telecommunications network hitherto used only for its internal needs.

19On 12 June 1998, NST obtained an individual licence pursuant to Decree No 318/97, transposing Directive 97/13 into national law, for the provision, by means of that network, of telecommunications services to the public.

20The Ministry of Telecommunications demanded two fees from NST in relation to that network, one for the provision of telecommunication services to the public and the other for private use of that network. That second fee was demanded for 1999 by a written communication from that ministry of 26 February 1999 and corresponded to the amount previously paid by ENI in accordance with the Code.

21NST challenged the second fee before the Italian administrative courts.

22The Consiglio di Stato (Council of State) has doubts as to whether the obligation on NST to pay two distinct fees for public use and private use of a network is compatible with Directive 97/13. In the alternative, the Consiglio di Stato questions whether the calculation of the second fee is compatible with Article 11 of that directive.

23In those circumstances, the Consiglio di Stato decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:(1) Is a national provision which — having required companies entitled to provide public utility services, which have established telecommunications networks in the past to meet their own needs under a system of paid franchises, to set up a separate company to carry out any activity in the field of telecommunications — provides that the separate company, although licensed to provide public services, must pay, albeit only on a temporary basis, an additional fee for the allocation of the telecommunications network to the parent company, compatible with the basic principles laid down in the abovementioned Directive 97/13?(2) Is a national provision which calculates (on a temporary basis) the second and additional fee charged for the activity carried out for the parent company on the basis of what was paid in the past by the parent company under the previous system of exclusive rights, with separate franchises for telecommunication systems for public use and franchises for systems for private use, consistent with Community law and the interpretation placed thereon by the Fifth Chamber of the Court of Justice in its judgment of 18 September 2003 [C-292/01 and C-293/01 Albacom and Infostrada [2003] ECR I-9449)]?’

The questions

24By its two questions, the Consiglio di Stato asks, in essence, whether Article 11 of Directive 97/13 precludes a national provision, such as that at issue in the main proceedings, which requires a company holding an individual licence for the provision of a public telecommunications network, for which it has paid a fee as provided for in that article, to pay an additional fee in respect of the private use of that network.

25The Italian Government argues that Directive 97/13 does not apply to private telecommunication networks or services, but only to public telecommunication networks or services. It therefore considers that that directive does not preclude the charging of an additional fee, such as the second fee at issue in the main proceedings, in relation to the private use of a telecommunication network.

26The Court finds in that respect that, according to Article 1(1) of Directive 97/13, the latter concerns the procedures for granting authorisations for the purposes of providing telecommunication services, without making any distinction between networks open to the public and private networks.

27In addition, Article 7(2) of that directive authorises Member States to enact a system of individual licences for the establishment and provision of public telecommunication networks as well as other networks involving the use of radio frequencies.

28It follows that that directive applies, in principle, not only to public telecommunication networks and services but also to private telecommunication networks which have not been opened to the public and are reserved to a closed group of users, and to services provided on those private networks.

29According to the referring court, the network at issue in the main proceedings has been opened to the public by virtue of the individual licence authorising NST to provide a public telecommunication network, in accordance with Article 7(2) of Directive 97/13.

30In that respect, it should be noted that, in accordance with the fifth recital of Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in Telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP) (OJ 1997 L 199, p. 32), the word ‘public’ refers to any network or service that is made publicly available for use by third parties.

31Moreover, it follows from the second subparagraph of Article 2(2) of Council Directive 90/387/EEC of 28 June 1990 on the establishment of the internal market for telecommunications services through the implementation of open network provision (OJ 1990 L 192, p. 1), as amended by Directive 97/51/EC of the European Parliament and of the Council of 6 October 1997 (OJ 1997 L 295, p. 23), that ‘public telecommunications network’ is to be interpreted as a telecommunications network ‘used, wholly or in part, for the provision of publicly available telecommunications services’.

32It follows that a network such as that at issue in the main proceedings, which has been made available to the public after having been used solely for private purposes, must be regarded as a public telecommunications network within the meaning of Directive 97/13.

33Therefore, such a telecommunications network, and all services supplied under it, fall in their entirety within the scope of that directive.

34In those circumstances, it needs to be examined whether the charging of two distinct fees for the provision of a public telecommunications network and the services provided on that network complies with the rules of that directive.

35In that respect, it should be noted that Member States may not levy any fees or charges in relation to authorisation procedures other than those provided for by Directive 97/13 (see, to that effect, Albacom and Infostrada, paragraph 41).

36Article 11 of that directive expressly provides that Member States are to ensure that any fees imposed on undertakings as part of authorisation procedures seek only to cover the administrative costs incurred by the licensing system (Albacom and Infostrada, paragraph 33).

37It is apparent from the order for reference and from the observations submitted to the Court that the second fee has been calculated in accordance with the criteria laid down by the Code before the liberalisation of the telecommunications market, which do not correspond to those laid down in Article 11 of Directive 97/13.

38In the light of the above, the answer to the questions referred must be that Article 11 of Directive 97/13 precludes a national provision, such as that at issue in the main proceedings, which requires the holder of an individual licence for the provision of a public telecommunications network, for which it has paid a fee as provided for in that article, to pay an additional fee in respect of the private use of that network calculated in accordance with criteria which do not correspond to those laid down in that article.

Costs

39Since 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.

Operative part

On those grounds, the Court (Third Chamber) hereby rules: Article 11 of 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 a national provision, such as that at issue in the main proceedings, which requires the holder of an individual licence for the provision of a public telecommunications network, for which it has paid a fee as provided for in that article, to pay an additional fee in respect of the private use of that network calculated in accordance with criteria which do not correspond to those laid down in that article.