Only owners and not users of telco equipment can be charged for installing it on public land, ECJ says

In its judgment, the ECJ said that only owners of mobile telephone equipment could be subject to a fee for installing that equipment on public land.

Two companies providing mobile services in Spain, Vodafone España and France Telecom España, had challenged fees imposed on their operations "for the installation of necessary infrastructure" in several Spanish municipalities as they did not own the facilities, but rather only used them. The decision could, according to business newswire Dow Jones, save the companies an estimated 200 million euro.

Public and private owners of land are entitled to charge telecommunications operators license fees before they can install their equipment on or over that land. Although some mobile telecoms operators provide their services through network infrastructure that they own themselves, European and national legislation encourages them to share network infrastructure. In addition, some 'virtual' network operators do not own any infrastructure themselves and instead operate entirely over networks owned by others.

In the UK operators do not pay for the right to keep infrastructure installed on public streets and pavements, but they do pay rent or licence fees on other land and buildings owned by central and local government.

The ECJ said that the Authorisation Directive, which permits member states to impose fees on rights to install "necessary facilities" on, over or under public or private property, did not define the party responsible for paying the fee related to those rights. However, the accompanying Framework Directive granted those rights to "an undertaking authorised to provide public communications networks and entitled, for that purpose, to install the necessary facilities" - meaning that only the proprietor of the infrastructure, as the party holding those rights, could be subject to the fee.

"[The law] must be interpreted as precluding the imposition of a fee for the right to install facilities on, over or under public or private property on operating undertakings which, without being proprietors of those facilities, use them to provide mobile telephony services," it concluded.

Property law expert Dev Desai of Pinsent Masons, the law firm behind Out-Law.com, said that the decision could affect proposed changes to the Electronic Communications Code, which are currently being consulted on by the Law Commission in England and Wales. The Code gives electronic communications network providers rights to install and maintain equipment such as masts, cables and conduits on public and private land, and provides for financial compensation for landowners.

"Any reforms of the law that Parliament considers as a result of the consultation process will need to ensure that non-owner users of network infrastructure are not charged for their sharing of telecommunications sites, in particular in relation to land and buildings owned by central or local government. These 'virtual' operators, which do not own network infrastructure of their own but rather buy telecoms network usage wholesale from the major operators, have most to immediately gain from this decision," Desai said.

He added that although the case dealt with telecoms installations on public land, it "left open" the implication that fees imposed by private landowners on operators that use, but did not own, network infrastructure could be open to similar challenge. "We are likely to see further cases in this area in the future," he said.