Provincie Antwerpen v Belgacom NV van publiek recht and Mobistar NV (C-256/13, C-264/13)

Contents

Judgment of the Court (Third Chamber)4 September 2014^note(Reference for a preliminary ruling — Electronic communications networks and services — Directive 2002/20/EC — Article 6 — Conditions attached to the general authorisation and to the rights of use for radio frequencies and for numbers, and specific obligations — Article 13 — Fees for rights of use and rights to install facilities — Regional legislation making undertakings liable to pay a tax on places of business)In Joined Cases C‑256/13 and C‑264/13,REQUESTS for a preliminary ruling under Article 267 TFEU from the Hof van beroep te Antwerpen (Belgium), made by decisions of 30 April and 7 May 2013, received at the Court on 10 and 15 May 2013 respectively, in the proceedingsProvincie AntwerpenvBelgacom NV van publiek recht (C‑256/13),Mobistar NV (C‑264/13),THE COURT (Third Chamber),composed of M. Ilešič, President of the Chamber, C.G. Fernlund, A. Ó Caoimh, C. Toader and E. Jarašiūnas (Rapporteur), Judges,Advocate General: N. Wahl,Registrar: M. Ferreira, Principal Administrator,having regard to the written procedure and further to the hearing on 3 April 2014,after considering the observations submitted on behalf of:— the Provincie Antwerpen, by G. van Gelder, advocaat,— Belgacom NV van publiek recht, by H. de Bauw and B. Den Tandt, advocaten,— Mobistar NV, by T. De Cordier, H. Waem and E. Taelman, advocaten,— the Belgian Government, by A. Vandewalle and M. Jacobs, acting as Agents,— the Hungarian Government, by Z. Fehér, K. Szíjjártó and A. Szilágyi, acting as Agents,— the Polish Government, by B. Majczyna, acting as Agent,— the Swedish Government, by A. Falk, C. Meyer-Seitz, U. Persson, E. Karlsson, L. Swedenborg and C. Hagerman, acting as Agents,— the European Commission, by L. Nicolae, F. Wilman and T. van Rijn, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1These requests for a preliminary ruling concern the interpretation of Articles 6 and 13 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ 2002 L 108, p. 21).

2The requests have been made in two sets of proceedings between the Provincie Antwerpen (the province of Antwerp) and Belgacom NV van publiek recht (‘Belgacom’) and between the Provincie Antwerpen and Mobistar NV (‘Mobistar’), concerning decisions making those two companies liable to pay a general provincial tax in respect of their establishments located in the territory of Antwerp Province.

Legal context

EU law

3Article 1 of the Authorisation Directive, entitled ‘Objective and scope’, provides:1. The aim of this Directive is to implement an internal market in electronic communications networks and services through the harmonisation and simplification of authorisation rules and conditions in order to facilitate their provision throughout the Community.2. This Directive shall apply to authorisations for the provision of electronic communications networks and services.’

4Article 6 of the Authorisation Directive, entitled ‘Conditions attached to the general authorisation and to the rights of use for radio frequencies and for numbers, and specific obligations’, provides:1. The general authorisation for the provision of electronic communications networks or services and the rights of use for radio frequencies and rights of use for numbers may be subject only to the conditions listed respectively in parts A, B and C of the Annex. Such conditions shall be objectively justified in relation to the network or service concerned, non-discriminatory, proportionate and transparent.2. Specific obligations which may be imposed on providers of electronic communications networks and services … or on those designated to provide universal service … 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.3. The general authorisation shall only contain conditions which are specific for that sector and are set out in Part A of the Annex and shall not duplicate conditions which are applicable to undertakings by virtue of other national legislation.4. Member States shall not duplicate the conditions of the general authorisation where they grant the right of use for radio frequencies or numbers.’

5Article 13 of the Authorisation Directive, entitled ‘Fees for rights of use and rights to install facilities’, provides:‘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 [of the European Parliament and of the Council of 7 March 2012 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33)].’

6Part B of the Annex to the Authorisation Directive provides:‘Conditions which may be attached to rights of use for radio frequencies...6. Usage fees in accordance with Article 13 of this Directive....’

Belgian law

7Article 97 of Wet betreffende de hervorming van sommige economische overheidsbedrijven (Law on the reform of certain economic public companies), of 21 March 1991 (Belgisch Staatsblad, 27 March 1991, p. 6155), in the version applicable to the disputes in the main proceedings (‘the Law of 21 March 1991’), provides:1. Subject to the conditions laid down in this chapter, any operator of a public telecommunications network may make use of the public land and properties to install cables, overhead lines and associated equipment and carry out all works in connection therewith, having regard to their purpose and the legal and regulations and administrative provisions provisions governing such use....2. Cables, overhead lines and related equipment installed shall remain the property of the operator of the public communications network concerned.’

8Article 98 of the Law of 21 March 1991 provides:1. Prior to installing cables, overhead lines and related equipment in the public land, any operator of a public telecommunications network shall submit a location plan and system details for the approval by the authority responsible for the public land....2. The authorities may not impose any tax, fee, toll, charge or payment whatsoever on the operator of the public telecommunications network concerned for that right of use.Any operator of a public telecommunications network shall also be either, free of charge, to a right of way for the cables, overhead lines and associated equipment in the public or private infrastructure situated on the public land....’

9For the years 2005 to 2008, the provincieraad van de Provincie Antwerpen (Council of the Province of Antwerp) adopted four tax regulations introducing a general provincial tax in respect of establishments situated in that province. According to the case-file, the wording of the main provisions of the tax regulations in respect of the years 2005 to 2007 (‘the 2005-2007 tax regulations’) is identical. The tax regulation in respect of the year 2008 (‘the 2008 tax regulation’) differs from the previous tax regulations, in particular as regards the amount of the tax imposed.

10Thus, Article 1 of the 2005-2007 tax regulations provides, that the general provincial tax is to be due, inter alia, for each establishment, which is defined as ‘any individual or communal area, in whatever form. Adjacent areas shall be regarded as a single establishment, provided that those areas are not separated from each other by a public road, separating wall, etc. Two or more areas, connected to each other by the existence of a right of way, shall be regarded as a single establishment’.

11According to Article 1B(2) of those tax regulations, the general provincial tax is due, inter alia, by ‘any legal entity incorporated under Belgian or foreign law which is subject to corporation tax, including a legal entity which has been placed in liquidation, and which on 1 January [of the year in question] has one or more establishments in the Province of Antwerp, which it uses or is reserved for its use’.

12Article 2B of those regulations provides that the tax is, in principle, EUR 99 for establishments with an area of up to 1 000 m2.

13The tax provided for by the 2008 tax regulation, adopted on 5 October 2007, is also due for each establishment located in the Province of Antwerp. Article 1B(2) of that tax regulation is worded identically to Article 1B(2) of the 2005-2007 tax regulations.

14The first and second paragraphs of Article 8 of the 2008 tax regulation provide:‘Every taxable person shall be liable to pay the tax in respect of each establishment, however it may be described, which is used or reserved for use by that person and is situated in the Province of Antwerp.A taxable establishment is any area which is intended for business purposes or is used for business purposes, reserved for such use or contributes to the achievement [or to] the implementation of the purposes of a business.’

15Article 11 of that tax regulation provides that the amount of tax owed by establishments with an area less than or equal to 1 000 m2 is, in principle, EUR 135.

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

16Belgacom and Mobistar are providers of electronic communications services and networks.

17The orders for reference state that Belgacom and Mobistar installed, in the Province of Antwerp, a significant number of cellular telephone communication masts, pylons and antennae necessary for the provision of electronic communications.

18Pursuant to the tax regulations referred to in paragraph 9 above, the authorities of the Province of Antwerp issued tax assessment notices concerning the tax due by Belgacom for 2007 and 2008 and by Mobistar for 2005 to 2007, in respect of their establishments situated in the Province of Antwerp.

19Belgacom and Mobistar entered objections against those tax assessment notices with the Governor of the Province of Antwerp. Following the rejection of those objections, those companies brought actions before the Rechtbank van eerste aanleg te Antwerpen (Court of First Instance, Antwerp), which annulled the tax assessment notices in question. The Province of Antwerp has brought an appeal before the referring court against the judgment delivered at first instance.

20The orders for reference also state that the Grondwettelijk Hof (Constitutional Court) ruled on the constitutionality of Article 98(2) of the Law of 21 March 1991 by judgment of 15 December 2011, in which it held that that provision does not prohibit the provinces from imposing a tax, for budgetary or other reasons, on the economic activity of telecommunications operators which is carried on in the province through the presence on public or private land of cellular telephone communication masts, pylons or antennae used for that activity.

21In the proceedings pending before the referring court, Belgacom and Mobistar have raised the question whether the tax assessment notices at issue are compatible with the Authorisation Directive. In addition, those companies have argued that the assessment of the Grondwettelijk Hof concerning the general provincial tax at issue in the main proceedings is not compatible with the Court’s case-law, specifically with the judgment in Vodafone España and France Telecom España (C‑55/11, C‑57/11 and C‑58/11 EU:C:2012:446), 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 communication services other than those provided for by that directive.

22The Hof van beroep te Antwerpen asks, in the light of that judgment of the Court, whether the Grondwettelijk Hof’s interpretation of Article 98(2) of the Law of 21 March 1991 is compatible with Articles 6 and 13 of the Authorisation Directive.

23In those circumstances, the Hof van beroep te Antwerpen decided to stay the proceedings and refer, in both Case C‑256/13 and Case C‑264/13, the following question to the Court:‘Must Article 6 and/or Article 13 of [the Authorisation] Directive 2002/20/EC … be interpreted as precluding a public authority of a Member State from being allowed to tax, for budgetary or other reasons, the economic activity of telecommunications operators which arises in the territory or a part thereof through the presence on public or private property of [cellular telephone communication] masts, pylons or antennae which are used for that activity?’

24By order of the President of the Court of 6 June 2013, Cases C‑256/13 and C‑264/13 were joined for the purposes of the written and oral procedure and of the judgment.

The question referred for a preliminary ruling

25By its question, the referring court asks, in essence, whether Articles 6 and 13 of the Authorisation Directive must be interpreted as precluding operators providing electronic communications networks or services from being subject to a general tax on establishment, on account of the presence on public or private property of cellular telephone communication masts, pylons or antennae which are necessary for their activity.

26It must be observed that Article 6 of the Authorisation Directive relates to the conditions and the specific obligations attached to the general authorisation and to the rights of use for radio frequencies and for numbers. That article provides that the general authorisation for the provision of electronic communications networks or services and the rights of use for radio frequencies and rights of use for numbers may be subject only to the conditions listed respectively in parts A, B and C of the annex to that directive.

27In that regard, it is apparent from condition 6 of part B of the annex to the Authorisation Directive that radio frequency usage fees, in accordance with Article 13 of that directive, are included among the conditions which may be attached to those rights.

28In the present case, the orders for reference do not show that the tax at issue in the main proceedings is included among the conditions and the specific obligations, listed exhaustively in the annex to the Authorisation Directive, which are attached to the general authorisation or to the rights of use for radio frequencies under Article 6 of the Authorisation Directive. Therefore, Article 6 of the Authorisation Directive is not relevant to the disputes in main proceedings.

29As to whether Article 13 of the Authorisation Directive precludes the undertakings concerned being subject to a tax such as that at issue in the main proceedings, it should be noted that the Court has already held that the Authorisation Directive lays down not only rules governing the procedures for granting general authorisations or rights to use radio frequencies or numbers and the content of those authorisations but also rules setting out the nature and scope of the financial payments related to those procedures which Member States may impose on undertakings in the electronic communications services sector (judgment in Vodafone Malta and Mobisle Communications, C‑71/12, EU:C:2013:431, paragraph 20 and the case-law cited).

30Thus, according to settled case-law, Member States may not, within the framework of the Authorisation Directive, levy any fees or charges in relation to the provision of networks and electronic communication services other than those provided for by that directive (judgment in Vodafone España and France Telecom España, EU:C:2012:446, paragraph 28 and the case-law cited).

31As regards Article 13 of the Authorisation Directive, it should be noted that that article concerns the conditions under which fees may be imposed for the rights of use for radio frequencies or numbers or rights to install facilities on, over or under public or private property (see, to that effect, judgment in Vodafone Malta and Mobisle Communications, EU:C:2013:431, paragraph 19).

32Article 13 of the Authorisation Directive permits Member States to impose a supplementary charge for the rights of use for radio frequencies or numbers or rights to install facilities with the purpose of ensuring optimal use of those resources (see, to that effect, judgment in Belgacom and Others, C‑375/11, EU:C:2013:185, paragraph 42 and the case-law cited).

33The term ‘facilities’ and the expression ‘install’, used in Article 13, 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 (see, to that effect, judgment in Vodafone España and France Telecom España, EU:C:2012:446, paragraph 32).

34However, 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.

35The Authorisation Directive applies, according to Article 1(2) thereof, to authorisations for the provision of electronic communications networks and services and Article 13 thereof concerns only the 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.

36In the present case, the orders for reference state that any legal entity incorporated under Belgian or foreign law which has an establishment in the Province of Antwerp, used by that legal entity or reserved for its use is subject to the tax in question in the main proceedings regardless of the nature of the establishment and the activity of those subject to the tax. The amount of that tax depends on the area occupied by the establishments. Those subject to the tax are therefore not just operators providing electronic communications networks or services or those enjoying the rights provided for by Article 13 of the Authorisation Directive.

37It follows that the chargeable event giving rise to the tax at issue in the main proceedings is not linked to the granting of rights of use for radio frequencies or rights to install facilities within the meaning of Article 13 of the Authorisation Directive. Therefore, such a tax does not constitute a fee within the meaning of Article 13 thereof and, consequently, does not come within the scope of that directive.

38In the light of all the foregoing considerations, the answer to the question referred is that Articles 6 and 13 of the Authorisation Directive must be interpreted as not precluding operators providing electronic communications networks or services from being subject to a general tax on establishments, on account of the presence on public or private property of cellular telephone communication masts, pylons or antennae which are necessary for their activity.

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: Articles 6 and 13 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (‘the Authorisation Directive’) must be interpreted as not precluding operators providing electronic communications networks or services from being subject to a general tax on establishments, on account of the presence on public or private property of cellular telephone communication masts, pylons or antennae which are necessary for their activity.