In its recent ruling C-375/11, the Court of Justice of the European Union (“CJEU”) held that Articles 12 and 13 of the Directive 2002/20/EC (Authorization Directive) do not preclude an EU member state from charging mobile telephone operators, which hold rights of use for radio frequencies, a one-off fee for both a new acquisition of rights of use for radio frequencies and for renewals of those rights.

The dispute concerned three Belgian operators of mobile telephone networks, Belgacom SA, Mobistar SA, and KPN Group Belgium SA, and the amendments to Belgian law regarding fees for rights to use radio frequencies. The operators brought an action before the Constitutional Court of Belgium (Cour constitutionelle), claiming that the amendments were against Articles 3, 12, 13, and 14 of the Authorization Directive. More specifically, the operators objected to the fact that the one-off fee becomes payable not only when the authorization is granted but also when it is renewed, and is in addition to the fee for making the frequencies available, which is paid annually.

In its ruling, the CJEU held that Articles 12 and 13 of the Authorization Directive do not preclude the member states from charging operators holding right of use for radio frequencies a one-off fee payable for both a new acquisition and renewal of rights of use for radio frequencies, in addition to an annual fee for making the frequencies available. However, the CJEU specified that the fees must be genuinely intended to ensure the optimal use of the resource made up of the radio frequencies. They must also be objectively justified, transparent, non-discriminatory, and proportionate in relation to their intended purpose. Also, the member states must take into account the objectives of Article 8 of the Directive 2002/21/EC (Framework Directive), i.e. the policy objectives and regulatory principles.