Albacom and Infostrada, both Italian companies, are holders of licences to operate public
telecommunications networks. They were required by the Italian State to pay an annual
charge proportional to their turnover, under a law of 19981 and an implementing
decree of 2000 adopted by the Ministry of the Treasury (3% in 1999,
2.7% in 2000, 2.5% in 2001, 2% in 2002 and 1.5% in 2003).
For Albacom, that amounted to EUR 2 740 000
(ITL 5 300 000 000).
Since they considered that the Italian law in practice re-established the fee which
applied when telecommunications services were subject to a monopoly, the companies submitted an
extraordinary petition to the President of the Republic seeking annulment of the decree.
The Treasury then requested an opinion concerning the validity of that decree from
the Consiglio di Stato.
The Consiglio di Stato asked the Court of Justice of the European Communities
for a preliminary ruling on the interpretation of the Directive on a common
framework for general authorisations and individual licences in the field of telecommunications services2.
In essence, it asked whether the Directive allows Member States to impose financial
charges proportional to their turnover on holders of telecommunications licences.
The Court first points out that the Community directive is among the measures
for the complete liberalisation of telecommunications services and infrastructure. It establishes a common
framework which also lays down rules for the financial charges which Member States
may impose.
Those charges must be based on objective, non-discriminatory and transparent criteria. They must
not be contrary to the objective of complete liberalisation of the market and
its full opening to competition.
The Court finds that the only financial charges envisaged by the Directive are:
(1) those intended to cover administration costs generated by the implementation of licences,
(2) those relating to the use of scarce resources, and (3) financial contributions
to the provision of universal service.
The contested charge does not correspond to any of those three types of
charges.
The Court observes that the common framework for telecommunications services would be rendered
redundant if Member States were free to establish the financial charges to be
borne by undertakings in the sector.
Moreover, in the first phase of implementing Community directives intended to liberalise the
national telecommunications market, the Italian Republic had discontinued the charge on turnover which
telecommunications service franchisees were previously required to pay. The Court finds that the
charge re-introduces a financial obstacle to the liberalisation process.
The Court holds that such a charge considerably increases the fees and charges
which Member States are expressly authorised to impose under the Directive and creates
a significant obstacle to the freedom to provide telecommunications services.
The Directive therefore prohibits Member States from imposing such charges.
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Unofficial document, for media use only, which does not bind the Court of Justice Available in English, French and Italian. The full text of the judgment can be found on the internet (www.curia.eu.int ). In principle it will be available from midday CET on the day of delivery. For additional information please contact Christopher Fretwell Tel: (00352) 4303 3355 Fax: (00352) 4303 2731 |