On the 27th June 2013, the European Court of Justice gave a ruling in case C-71/12 following a reference made to it by the Maltese Constitutional Court in the case Vodafone Malta Limited et vs Avukati Generali et. This related to a case before the Maltese courts filed by Vodafone Malta Limited and Mobisle Communications Limited against the Attorney General, the Comptroller of Customs , the Minister of Finance and the Malta Communications Authority whereby plaintiffs are contesting the legality of 3% excise tax levied by Government on the use of mobile telephony services arguing that this tax is in breach of EU law – specifically articles 12 and 13 of Directive 2002/20/EC [the ‘Authorisation Directive’].

The European Court in response to the reference made to it decided that Article 12 must be interpreted as not precluding the legislation of a Member State such as the legislation at issue in the main proceedings, under which operators providing mobile telephony services are liable to pay ‘excise’ duty, calculated as a percentage of the charges paid to them by the users of those services, provided the trigger for that duty is not linked to the general authorisation procedure for access to the electronic communications services market but to the use of mobile telephony services provided by the operators and the duty is ultimately borne by the user of those services, which is a matter for the national court to verify.