All three Belgian mobile operators in August last year challenged the national law that provides for new lump sum mobile spectrum fees, including for licenses that already had been renewed. The Belgian law dated March 15, 2010, adds new fees to licenses that continued in effect past their original termination date, based on “roll over” provisions that provided for a “tacit renewal.” In response to the challenge, in June this year, the Belgian Constitutional Court sent four questions to the Court of Justice of the EU to interpret the European law aspects of the fees. The Belgian court’s June 16, 2011, Arrêt n° 110/2011 (in French, PDF 140 kB) contains the pertinent sections from the March law plus the four questions.
The answers to these questions by the Court of Justice in case C-375/11 could help clarify what latitude national governments and regulators have in setting spectrum fees for a wide set of spectrum users, not only for mobile operators. Challenges such as this will no doubt increase in the future as existing rights of use come up for renewal and new rights of use (for 4G spectrum, for example) are issued. The recent amendments to the Framework Directive and the Authorisation Directive also create a number of ambiguities regarding spectrum licenses that will no doubt have to be clarified through litigation in the coming years.
The court asks in particular whether the new fees are compatible with Articles 13 and 14 of the Authorisation Directive. Article 13 provides for fees connected with a right of use of spectrum. The court asks if the new fee can be justified under Article 13 if another fee already exists for this purpose. The compatibility with Article 14 relates to amendment of licenses. The court asks if the new fee should be considered as an amendment to existing rights of use for 2G spectrum, which would require the national regulator to comply with certain procedures specified in Article 14.
This case can be compared to the recent Court of Justice decision in Case C-284/10, Telefónica de España, issued on July 21, in which the Court concluded that EU law should be interpreted as "not precluding legislation of a Member State introducing a fee imposed on holders of general authorisations, calculated annually and on the basis of the gross operating income of the chargeable operators." This decision applies to general authorization and individual license fees, not solely to fees for rights of use for spectrum, and thus has even wider application. The Court held that while such the fees cannot exceed the administrative costs of the regulator, there is no requirement that the fee imposed on a particular operator relate to the specific costs related to that operator.