Tribunal Constitucional (Constitutional Court)
Judgement no. 152/2013
File no. 460/12
The 1st Section of the Constitutional Court hereby rules as follows:
1. The representative of the Public Prosecutor's Office to the Lisbon Tax Court appeals to the Constitutional Court, under paragraph 1 a) of article 70 of Law No 28/82, of 15 November, as it currently stands (LTC), against the judgement given by that Court on 17 May 2012, refusing the application of paragraph 7 of Administrative Rule No 126-A/2005, of 31 January, on the grounds of organic unconstitutionality, for violation of paragraph 1 i) of article 165 of the Constitution of the Portuguese Republic.
2. The defendant - Vodafone Portugal - Comunicações Pessoais, S.A. -, not satisfied with the determination of the Management Board of ICP-ANACOM of 21 September 2006, which rejected the administrative complaint against the settlement of fees for use of radio spectrum, for the first and second six-month period of 2005, challenged that decision in court. Among grounds put forward, the defendant claims "infringement of the law for application of unconstitutional laws, given that ANACOM itself considers administrative rules governing fees applicable to telecommunications, although amounts due and settlement timings have be determined, to be silent as regards the levying procedure, failing to specify how elements required to identify taxable persons (subjective levying) and to determine the tax base (subjective levying) [objective levying] are to be gathered. In fact, the challenged party confuses "levying" with the real assessment of the duty, which must be provided for in a material law." as well as "infringement of the law as regards the basis of assessment of the fee which under the combined terms of Administrative Rule No 126-A/2005, of 31 January, and license ICP-ANACOM 006/TCM held by the challenging party, should only cover mobile telephones in which SIM cards are integrated and not the total number of subscribers established for statistical purposes, as this last situation excludes cards issued and not used. To consider such cards would imply the violation of the principle of the ability to pay, which must be determined according to mobile stations in operation, as the fee concerned corresponds to the use of radio spectrum, a public asset."
On the issue of constitutionality in question, the judgment under appeal states as follows:
It follows from Law No 5/2004, of 10 February (Electronic Communications Law, hereinafter referred to as ECL) that the use of frequencies (whether or not covered by an individual right of use, as according to articles 30, paragraph 1 and 16, paragraph 1 b) of ECL not all uses of frequencies imply the need for an allocation of a individual right of use) is subject to a fee (cf. article 105, paragraph 1 f), pursuant to Decree-Law No 151-A/2000, of 20 July, to which that provision explicitly refers).
On the other hand, and pursuant to article 105, paragraph 6, of ECL, fees for use of frequencies must reflect the need to ensure the optimal use of frequencies and numbers, and must be objectively justified, transparent, non-discriminatory and proportionate in relation to their intended purpose, taking the regulatory objectives set forth in article 5 into account.
In accordance with paragraph 2 of article 19 of Decree-Law No 151-A/2000, of 20 July (statutory instrument that governs the legal regime applicable to the licensing of radiocommunications networks and stations, the supervision of the installation of such stations and the use of the radio spectrum, as well as the regime applicable to the sharing of radiocommunications infrastructures), the establishment of the amount of fees due for the use of radio spectrum takes into account, depending on the service, spectral parameters of coverage and use, specifically the number of stations used, the frequencies or channels assigned, the frequency band, the bandwidth, the level of congestion in the region of implementation, the level of economic and social development in the region of implementation, the area of coverage, the type of use and user, the exclusive or shared nature of the frequencies or channels assigned.
The definition of the amount and periodicity of settlement of the fees provided for is passed on to an administrative rule by the member of the Government responsible for communications (cf. article 19, paragraph 7, of Decree-Law No 151-A/2000).
The administrative rule in force in 2005, and as such applicable to settlements sub judice, was Administrative Rule No 126-A/2005, of 31 January (which was repealed by Administrative Rule No 386/2006, which took effect on 1 January 2006).
If follows from paragraph 7 of Administrative Rule No 126-A/2005 that fees for use of radio spectrum must be "settled in advance", every six months, in January and July (with the exception of those applicable to the FWA system and those amounting to EUR 250 or less, which must be settled every year in January).
According to item 2.1.1 of the annex to this Administrative Rule, the fee under consideration, with code 22107 (fee which under Administrative Rule No 240/91, of 23 March, as and results from license ICP 006/TCM, was previously identified with code 5115) amounted to EUR 2.64 "for each mobile station".
ECL thus establishes a duty for the use of radio spectrum frequencies, whose extra-economic purpose is the need to ensure the respective optimal use. This is easily understandable given that a limited resource is at stake, the requirement for proportionality in relation to the intended purpose being also highlighted (cf. article 105, paragraph 1f) and paragraph 6 of ECL).
However, the law does not define the objective basis of assessment of the duty, which raises difficulties of interpretation, as it is not possible to reach a clear conclusion as to what the provision intended the nature of the charge under consideration to be. In fact, although paragraph 1 of article 27 of ECL distinguishes "financial contributions" and "fees" according to article 105 (cf. respectively points q) ad r)) the literal argument is not decisive here in the light of the extra-economic purpose of ensuring an optimal use of radio spectrum.
After all, and given that operators, such as the challenging party, are provided with spectrum channels and frequencies for their exclusive use which are allocated by means of a license issued for the purpose, it is not possible to conclude that an optimal use of spectrum is obtained through taxation intended to regulate the effective use only, as in fact the failure to use radiofrequencies for which the possibility of exclusive use exists undermines also an optimal use of spectrum.
On the other hand, if the objective of optimal use of radio spectrum is achieved by creating a duty whose real basis of assessment leads to the conclusion that not only the effective use of radio spectrum, which is public domain, is being taxed, than such a charge will no longer have the nature of fee to acquire that of contribution.
It thus follows that, as the law does not define the real basis of assessment of what it refers to as fee for the use of frequencies, it is not possible to conclude whether the legislator intended to create a real fee or rather a financial contribution.
On the other hand, Administrative Rule No 126-A/2005 provides that the fee amounts to EUR 2.64 "for each mobile station", and it must be "settled in advance", every six months, in January and July.
It does not follow from ECL what mobile station means for the purpose of the application of the fee under consideration, neither from Decree-Law No 151-A/2000, nor even from Administrative Rule No 126-A/2005.
At this juncture, it should be clarified that the definition of the concept of "mobile station" represents not an issue of objective levying, in the sense of concrete determination of the tax base (a task immediately prior to the settlement, which on its turn consists in the determination of the collection by applying the fee to the tax base, which in the case under consideration is clearly an administrative settlement), as the challenged party claims, but of the definition of the objective basis of assessment of the fee, that is, the abstract definition of the range of situations to which it should be applied.
In practise, the duty’s basis of assessment is defined through an administrative understanding made available via a circular of the challenged party, which for the purpose makes the concept of mobile station coincide with that of "subscriber" for statistical purposes.
In fact, in the scope of the settlement procedure for fees under consideration, the challenged party defines and discloses in a circular its understanding of what mobile station/subscriber means for the purposes of fee application. On the basis of this understanding, it collects with taxable persons the relevant information for the purpose of objective levying of the fee and lastly carries out the respective settlement stricto sensu, by applying the fee to the tax base, which is determined according to information provided by taxable persons (cf. points 5, 6 and 7 of the statement of reasons in fact).
The challenged party itself admits that "it is on the basis of information provided by operators, according to criteria defined in ICP-ANACOM’s circulars concerning the provision of information for statistical purposes and market monitoring, that fees due for the use of radio spectrum, under code 22 107, have been levied, and the corresponding settlement notices (invoices) have been issued" (cf. article 35 of the contestation, emphasis added).
The file also includes evidence that in a first stage the adopted definition of "subscriber" reflected some concern that radio frequencies were effectively used, aligning it with the range of service users with a valid and active contract, in conditions to originate or receive traffic, and as such excluding "users that, for reasons of operator collection management, namely non-payment of bills and fraud situations, are unable to originate or receive traffic", or those "who allowed the time provided to top up the card to expire" (cf. point 5 of the statement of reasons in fact). This evolved to a definition of subscriber where the mere susceptibility or probability of use of frequencies is clearly taken into consideration, thus being deemed as subscribers "all users covered by a contractual relationship established with a national operator of the Terrestrial Mobile Service, namely in the modalities of subscription or activated pre-paid card (the card is deemed to be activated after the first call is made or received), to whom the right to originate or to receive traffic, over the respective network, is conferred" (cf. point 7 of the statement of reasons in fact; emphasis added).
This view is confirmed and reinforced in the report concerning the audit to the mobile land service provided by the challenging party, which clarifies that "ICP-ANACOM defined that the criterion of the possibility of using spectrum should be privileged" and which clearly states that the range of subscribers should include "all services which have not presented any activity in the reporting month, that is, which have not originated/terminated traffic and which have not been topped up even where spectrum may be used" (cf. point 13 of the statement of reasons in fact; emphasis added).
With all due respect, contrary to what the challenged body declares in the scope of allegations, the relevant issue for the characterization of the legal nature of the duty in question is in fact whether the effective use of radio spectrum in an economic sense or the susceptibility of that use is charged.
If the duty falls on the effective use of the radio spectrum, then we have a real fee, but if the susceptibility of use is the issue being charged, then we face a financial contribution.
Recalling what fee means, it is a "sum of money compulsorily required by a public body, in return for an administrative provision caused or influenced by the taxable person", and what characterizes them at objective level is the fact that they "fall on administrative provisions which the taxable person effectively caused or benefits from, this being the pre-condition which defines them as strictly commutative duties and distinguishes them from contributions and taxes" (...). The use of a public asset, as is the case here, may be the underlying administrative provision.
Contributions should be regarded as "sum of money compulsorily required by a public body, in return for an administrative provision presumably caused or used by the taxable person", and may be distinguished from fees given that these duties are "simply paracommutative" (...).
The fundamental difference between taxes and contributions lies in the fact that the former "aim to finance public expenses at large, and in principle may not be assigned to specific public services or expenses, whereas the latter, like fees in strict sense, aim to finance specific public services and specific public expenses" (...).
It is thus possible to conclude that through the administrative definition of the real basis of assessment of the duty under consideration, and given that a subscriber is deemed to be included therein insofar as it is provided with the mere possibility of use and not where it has effectively used radio spectrum, ICP-ANACOM views the duty under consideration as a contribution and not as a fee.
This conclusion is not put into question by the arguments of the challenged body as to what "mobile station" means. In fact, the problem remains, even if it follows from good practise or technical standards, as the challenging body claims, that "mobile station" should refer to the mobile telephone associated to a SIM card likely to be used, even where "payable events" do not occur.
In fact, the activation of the SIM card and the mere possibility of using it to effectively use spectrum does not imply that such use will occur, and even if, as the challenged body alleges, the mere existence of an active SIM card generates a use, which the challenged body itself admits will be occasional, this use will not have the intensity of a "payable event", thus the taxation of such situations does not reflect a taxation of the effective use of spectrum.
On the other hand, it must be emphasized that it does not follow from ECL that the real basis of assessment of the "fee for use" means "mobile stations" in the perspective of the challenging body.
Moreover, although there is nothing to prevent the establishment of financial contributions, such establishment must comply with constitutional provisions.
In fact, up to the 1997 constitutional review, financial contributions were considered by doctrine and case law as being subject to reservation of parliamentary law, being deemed for the purpose as real taxes (...).
By virtue of Constitutional Law No 1/97, of 20 September, article 165, paragraph 1 i) of the Constitution was amended, to explicitly provide for "financial contributions to public entities" (as Canotilho/Moreira expressively declare, when referring to contributions "The Constitution seems to have accommodated the controversial concept of parafiscal taxation" (...), the establishment of the general regime being reserved to parliamentary law.
On this matter, we agree with the doctrine position which considers not to make sense that the constitutional legislator intended, with this amendment to the Fundamental Law, to "unconditionally provide the Government with the possibility to establish duties with a hybrid structure and the unclear outlines of modern contributions, but rather to make this power subject to the prior edition of a general regime setting out the structuring principles and essential elements", the issue of this general regime being deemed to be "an essential condition to ensure the material legitimisation of such contributions". Consequently, financial contributions are not allowed to be established, under article 165, paragraph 1 i) of the Constitution, by means of a simple decree-law, let alone by administrative act, as is the case here, without first "being laid down by parliamentary law the general regime providing for the necessary framework". As such, it must be deemed that until the general regime of financial contributions to public bodies, provided for in article 165, paragraph 1 i) of the Constitution, is created, the establishment and definition of the regime of contributions is subject to the full reservation of law (...) which covers the definition of the respective real assessment.
It must be recalled that not only the challenged party itself defines the base of objective assessment of the duty, through an administrative act, but by doing so it defines the specific legal nature of such duty, legal nature relatively to which the ECL takes no stand, as referred earlier.
In the light of the above, we conclude that the challenging party is right when it alleges that the settlement sub judice is illegal for violation of a constitutional provision, namely article 165, paragraph 1 i) of the Constitution, because up to the creation of the general regime of financial contribution to public bodies provided for therein it must be considered that the establishment and definition of the conditions governing contributions is subordinated to the full reservation of the law, thus the settlement under consideration, being based on an illegal definition of the base of assessment of the contribution, for being organically unconstitutional, is illegal itself, and thus must be annulled in full.
3. Urged to claim, the appellant - the Public Prosecutor's Office - presented the following conclusions:
1st) the "specific regime" governing "fees for use of radio spectrum", in the case of the land mobile service, applicable to mobile stations, has a legal basis which is deemed to be constitutionally appropriate, as their "fundamental elements" have been set out in an European directive and in a parliamentary law, which combined define, in addition, the respective assessment (objective and subjective) and rate.
2nd) the "specific regime" so established does not infringe the letter and spirit of the relative reservation of the law, laid down in article 165, paragraph 1 i) of the Constitution, given that as regards matters concerning "duties and other financial contributions to public bodies", even if not edited by the Assembly of the Republic (or by the Government, using the respective legislative authorization), it is restricted to the respective "general regime".
4. The defendant - Vodafone Portugal - Comunicações Pessoais, S.A. - counterclaimed as follows:
1. The Court a quo considered that neither the Electronic Communications Law nor Decree-Law No 151-A/2000, of 20 July, define the real basis of assessment of the duty (irrespective of whether the latter is qualified as a fee or as a financial contribution).
2. In fact, and as the Court a quo notes, (p. 40), although only Administrative Rule No 126-A/2005, of 31 January (which is not a legislative act) indicates that the fee/contribution amounts to EUR 2.64 "for each mobile station", the fact is that not even this statutory instrument defines what a mobile station means, a definition which is absolutely decisive to the determination of the real assessment of the fee/contribution.
3. In fact, as the Court a quo rightly refers, (p.40), the definition of the concept of "mobile station" results in the definition of the objective basis of assessment of the fee, that is, the definition in abstract of the range of situations to which it is to be applied.
4. It cannot but be considered, as such, that the provision the Court a quo refused to apply, on the basis of unconstitutionality, was that resulting from paragraph 1 of the administrative rule, where it approves fees provided for in the annex thereto, combined with the provision in annex to the administrative rule, where it establishes that a fee amounting to EUR 2.64 is to be levied on each mobile station.
5. The Court a quo (p. 41), it is true, goes even further and considers that, even if the objective basis of assessment of the fee/contribution was provided for in a Decree-Law not authorized by the parliament, as is the case of Decree-Law No 151-A/2000, of 20 July, there would also be unconstitutionality, given that - in the perspective of the Court a quo, with which the defendant agrees - the establishment of financial contributions by simple Decree-Law pursuant to article 165, paragraph 1 i), let alone by administrative act, as in this case, is not acceptable.
6. Therefore, the Constitutional Court must first check whether the definition of mobile station, to the extent that it represent a definition of the real basis of assessment of the fee/contribution, as provided for in Administrative Rule No 126-A/2005, of 31 January, is unconstitutional, as it fails to be provided for in a parliamentary Law or an authorized Decree-Law (violation of the principle of reservation of parliamentary law).
7. Second, the Constitutional Court must check whether the definition of mobile station, to the extent that it represent a definition of the real basis of assessment of the fee/contribution, as provided for in Administrative Rule No 126-A/2005, of 31 January, is unconstitutional, as it fails to be provided for in a legislative act (violation of the principle of reservation of the legislative function/principle of legality).
8. In fact, the requirement for a formal law (parliamentary Law and not a simple Decree-Law) is one thing and the requirement for a material law (parliamentary Law or Decree-Law, not a regulation) is another.
9. The Public Prosecutor’s representative himself acknowledges that the fundamental elements of fees/financial contributions must be provided for in a legislative act and not in an administrative act.
10. It must also be referred, nevertheless, that the Public Prosecutor’s representative, having considered that the Government is entitled to legislate on the specific regime of each fee, without needing prior parliamentary authorisation (an approach which on its own would lead to the unconstitutionality of the provision of the administrative rule setting out the assessment of the fee), concludes (point 15) that it must be ensured that the Parliament was involved in the definition of the principles and basic rules governing the "fundamental elements" of the duty.
11. As regards these fundamental elements, the company believes that, although they fail to be defined, one must consider that at least the (objective and subjective) "assessment" and "rate" of the duty under consideration must be covered (cfr. in parallel, article 103, paragraph 2, of the Constitution).
12. It may thus be concluded that, whether the Public Prosecution agrees that the assessment of the fee/financial contribution should be provided for in a parliamentary law (as appears to be the case) or not (as sometimes also appears to be the case), it is unquestionable that it agrees that the assessment of the fee/contribution must be provided for and defined in a legislative act and not an administrative act.
13. In casu, the real assessment of the fee/financial contribution is only defined (and only to an inadequate extent) in an administrative rule, which refers a mobile station, however no legislative provision is made for that fee is to be levied on mobile stations any more than the meaning of the concept of "mobile station" is explained.
14. The Administrative Rule (insufficiently) establishes the assessment of the fee/financial contribution, a matter which should have been established in a legislative act, and moreover, such definition is not clear as to its contents, not allowing any interpretative guidelines, which on its own infringes the principle of legality, provided for in the Constitution, in its sub-principle of reservation of regulatory clarification, as well as in the principle of protection of expectations.
15. It is our opinion, and well as that of endorsed doctrine, such as is the case of Sérgio Vasques, that as long as no general fee regime is established, the parliamentary involvement is required for each fee that is laid down. Nevertheless, we recall, in casu the unconstitutionality remains even if this view is not accepted, given that in casu the assessment of the fee was not even approved in a Decree-Law, but only in an Administrative Rule.
That said, it is now for this Court to examine the matter and decide.
5. The issue which the Constitutional Court it urged to settle concerns the possible organic unconstitutionality of paragraph 7 of Administrative Rule No 126-A/2005, of 31 January, combined with the respective annex, for infringement of article 165, paragraph 1 i) of the Constitution. Consequently the nature of the duty provided for therein - fee for use of radio spectrum - must be determined so that its validity may be assessed in the light of the principle of reservation of (formal and material) law.
As is known, the matter of binding State revenues was for a long time guided by a dichotomous perspective, according to which the revenue at stake should fall either within the category of fees or of taxes, in order to determine whether requirements associated with the principle of reservation of the law were complied with. As is widely recognised, the difference between fee and tax relates to whether the duty is unilateral or bilateral: taxes have a unilateral structure, while fees have a bilateral or synallagmatic structure. This bilateral structure results functionally from the nature of the fact that gives rise to ensuing obligations, which consists in the provision of a public service, in the use of public assets or in the removal of a legal limitation to the activity of individuals (the so-called "license fees"). In fact, the commutativity of fees resides in the fact that they are required on the occasion and depending on a public provision, aiming to remunerate the individual use made by the taxable person (Sérgio Vasques, Manual de Direito Fiscal, Almedina, 2011, p. 207).
Therefore, it is mainly due to the fact that fees do not aim at fulfilling the general financial needs of the Sate, according to the ability to pay of taxable persons and observing a duty of solidarity, that the specific creation of these duties is not subject to the principle of reservation of formal law and, thus, that they do not require being issued by means of a law in a formal sense (cfr. article 165, paragraph 1 i) of the Constitution).
Based on this traditional dichotomous perspective, there are several cases in which the Constitutional Court, in view of the lack of this bilateral or synallagmatic nature, concluded that binding revenues at stake, although formally known as "fees" or "tariffs", should in fact be deemed to be included in the category of taxes, thus leading to the organic unconstitutionality of provisions that originated them (cfr. among others, Judgements No 369/99, 558/98, 437/03, 63/99, 127/04, 247/04, available at www.tribunalconstitucional.pt). However, it must be stressed that constitutional case law has reserved this conclusion for cases where there is an "intolerable disproportion" between the amount paid by the taxable person as fee and the cost of the asset or service provided (cfr. among others, Judgements No 369/99, 1140/96, 22/00, 227/01, 68/07 and 410/10, all available at www.tribunalconstitucional.pt).
The constitutional review of 1997 made a key contribution to undermining the above-mentioned dichotomous perspective, so as to include in the framework of binding revenues the "tertium genus" which other financial contributions to public bodies unmistakably represent.
There are some doctrine positions that point towards the hybrid nature of this third category, which is close to taxes - due to the lack of an individual compensatory measure - but also to fees - as it aims to return the service provided by a public body to a uniform set of bodies - relating, to this extent, to the concept of parafiscal taxation [Gomes Canotilho/Vital Moreira, Constituição da República Portuguesa Anotada, vol. I, 2007, p. 1094; and also Cardoso da Costa, «Sobre o princípio da legalidade das "taxas" e (e das demais contribuições financeiras)», Estudos em Homenagem ao Professor Doutor Marcello Caetano no Centenário do seu Nascimento, Coimbra Editora, 2006, p. 805].
This category, however, is highly heterogeneous, and some doctrine views state that it covers duties as diverse as social security contributions, economic regulation fees, associative charges due to professional bodies and even modern environmental charges and special excise duties (Sérgio Vasques, Manual de Direito Fiscal, cit., p. 223 et seq.) Other positions declare that financial contributions are connected to three types of charges: financial contributions in the strict sense, which stand as "financing instruments for new services of general interest", para-fiscal contributions, which are deemed to be "financing instruments for new administrative bodies whose activity benefits a homogeneous group of addressees", and also extra-fiscal contributions, which are used as "instruments guiding behaviours" (vd. Suzana Tavares da Silva, As Taxas e a Coerência do Sistema Tributário, 2nd ed., forthcoming, p. 78 et seq.).
The Constitutional Court has had the opportunity to align with this new tripartite classification, relatively to regulatory fees charged by the Entidade Reguladora para a Comunicação Social (the Media Regulatory Authority), which were expressly qualified, not as taxes or as fees, but as financial contributions (cfr. among others, Judgements No 365/08 and 613/08, available at www.tribunalconstitucional.pt). Nevertheless, it was clear in these judicial decisions that having overcome the dichotomous classification issue failed to fully settle the problems connected to the principle of reservation of formal law. In fact, as with fees, the constitutional legislator did not submit to the reservation of law in the formal sense the specific creation of each financial contribution, but only the respective "general regime". Given the legislative omission that exists in this field, the doctrine raises the question whether, until such regime is drawn up, the establishment and discipline of contributions may be carried out by the Government by means of a simple Decree-Law, or, on the contrary, if parliamentary intervention is required.
There are essentially two opinions on this matter: those who believe that, until the mentioned general regime is issued, financial contributions should be based on the legal regime of taxes, its individual establishment requiring parliamentary intervention (Sérgio Vasques, Manual de Direito Fiscal, cit., p. 244; and Suzana Tavares da Silva, As Taxas e a Coerência do Sistema Tributário, cit., pp. 18-19); and those who state that, while the general regime is not issued, the governmental competence for the establishment of financial contributions should be maintained [Cardoso da Costa, «Sobre o princípio da legalidade das "taxas" e (e das demais "contribuições financeiras")», cit., pp. 803-804]. Constitutional case law, in the judgements issued on ERC’s regulatory fees, endeavoured to reconcile both these positions, highlighting that, having the mentioned fee been established by means of a Parliamentary law, the requirement for a parliamentary provision of a general regime of financial contributions should be deemed to be fulfilled, given that the parliamentary definition of general principles applicable to ERC's fees was presented "with even more detail than might be expected from a general regime set out by parliamentary law" (cfr. again, Judgements No 365/08 and 613/08).
6. The gradual liberalisation of the telecommunications sector, which started in the 1990s, entailed, in Portugal, the option for establishing a sector regulatory body endowed with functional autonomy - ICP-ANACOM. This body is governed by Decree-Law No 309/2001, of 7 December, as well as by the Electronic Communications Law (Law No 5/2004, of 10 February, as amended by Law No 51/2011, of 13 September). ICP-ANACOM’s financing is based fundamentally on the collection of fees, as provided for in article 105 of the Electronic Communications Law (hereinafter ECL), as amended by Law No 51/2011, of 13 September:
1 - Fees may be imposed on:
a) Declarations supporting rights issued by the NRA pursuant to paragraph 5 of article 21;
b) The exercise of the activity of electronic communications networks and services provider, on an annual basis;
c) The assignment of frequency usage rights;
d) The assignment of rights of use for numbers and the reservation thereof;
e) The use of numbers;
f) The use of frequencies.
2 - The amounts of fees referred to in points a) to e) of the preceding paragraph shall be established by administrative rule of the member of the Government responsible for the communications area and shall constitute revenue for the NRA.
3 - The use of frequencies, whether covered by a right of use or not, is subject to fees set out in Decree-Law number 151-A/2000 of 20 July, as amended by Decree-Laws number 167/2006, of 16 August, and 264/2009, of 28 September.
4 - The amounts of fees referred to in points a) to d) of paragraph 1 shall be determined with regard to the administrative costs incurred in the management, control and enforcement of the general authorisation scheme and of rights of use and of specific obligations as referred to in article 28, which may include costs for international cooperation, harmonisation and standardisation, market analysis, monitoring of compliance and other market control, as well as regulatory work involving the preparation and enforcement of secondary legislation and administrative decisions, such as decisions on access and interconnection; such fees shall be imposed upon undertakings in an objective, transparent and proportionate manner which minimises additional administrative costs and associated charges.
6 - The fees referred to in points e) and f) of paragraph 1 shall reflect the need to ensure the optimal use of frequencies and numbers, shall be objectively justified, transparent, non-discriminatory and proportionate in relation to their intended purpose and shall take the regulatory objectives set forth in article 5 into account.
The analysis of the provision draws attention to the fact that ICP-ANACOM is empowered to charge two types of fees: fees defined exclusively on the basis of associated costs - those provided for in points a) to d) of paragraph 1 of article 105 - and fees defined with the ultimate aim of ensuring an optimal use of scarce resources, such as frequencies and numbers (administrative incentive pricing) - those provided for in points e) and f) of paragraph 1 of that same article (cfr. ICP-ANACOM - Advisory Council, Parecer sobre o novo modelo de taxas do espetro radioelétrico, June 2008, available at www.anacom.pt). The constitutionality issue here under consideration concerns the mentioned second type of fees.
It is recalled that the "radio spectrum is divided in frequency bands, ranging from 9 kHz to 3000 GHz, which are assigned to various radiocommunication services (e.g. fixed, mobile, broadcasting, radio determination, radio navigation, amateur, radio astronomy, etc.) In the scope of spectrum planning, and given its scarcity, care has been taken to ensure that frequencies are shared, as much as possible, by different radiocommunication services, safeguarding the non-existence of harmful interference". One of ICP-ANACOM’s powers, under ECL, is precisely to guarantee the planning, management and control of radio spectrum (cfr. article 15), task which involves several instruments, such as the National Frequency Allocation Plan (NFAP), fees for the use of spectrum, and more recently, auctions for the allocation of rights of use for radio spectrum.
It follows from the above that fees for the allocation of rights of use for frequencies should not to be confused with fees for the use of radio spectrum. In fact, the general principle relating to the use of frequencies is that of non-dependence on the allocation of rights of use. That is to say, pursuant to paragraph 1b) of article 16 of ECL, it is the NFAP that specifies the cases where rights of use are required, as well as the respective allocation procedures. Such procedures - which must be transparent, open and non-discriminatory - include auctions or tenders, options provided for in article 19, paragraph 13, of Decree-Law No 151-A/2000, of 20 July, as amended by Decree-Law No 264/2009, of 28 September and by Law No 20/2012, of 14 May, and governed by Regulation No 560-A/2011, of 19 October. In other words, in those cases where the NFAP does not make the use of spectrum dependent on the prior allocation of a right, a regime of full accessibility is in place (v. National Frequency Allocation Plan, 2010/2011 Edition, available at www.anacom.pt). It should also be noted that, although the amount received by ICP-ANACOM further to the auction or tender procedures may largely exceed the administrative expenses incurred for the allocation of the right - as the Authority itself acknowledges in the Consultation Report on the Draft Regulation of the public tender for the allocation of a frequency usage right, on a national basis, in the 450-470 MHz frequency band for the provision of the publically available land mobile service, pp. 27 and 28, of 4 July 2008 (available at www.anacom.pt) - this does not preclude the payment by the successful tenderer of the fee for use of spectrum, as results from point g) iii) of paragraph 3 of article 33 of Regulation No 560-A/2011 of 19 October.
The fee for use of radio spectrum is based on European Law (cfr. article 11, paragraph 2, of Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997, recital 32 and article 13 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002) which provides for the possibility of levying usage fees for the use of radio frequencies and numbers, to "ensure the optimal use of such resources". At the time of the act of settlement giving rise to the present issue of constitutionality, these fees were governed by Decree-Law No 151-A/2000, of 20 July, as well as by Administrative Rule No 126-A/2005, of 31 January. The former specifies, in paragraph 1 of article 19, the criteria governing the definition of the amount of such fees. Such criteria include: a) the number of stations used; b) the frequencies or channels assigned; c) the frequency band; d) the bandwidth; e) the amount of congestion in the implementation region; f) economic and social development in the implementation region; g) the coverage area; h) the type of use and user; i) the exclusive or shared nature of the frequencies or channels assigned. The latter provides, in article 7 - provision which the Court of Appeal rejected, on grounds of unconstitutionality - as follows:
7. The administrative fees and usage fees concerning the radio spectrum shall be settled in advance, and as regards the latter, every six months, in January and July, with the exception of those applicable to the FWA system and those amounting to EUR 250 or less, in which case the correspondent fees shall be settled annually in January.
It may be concluded that, being at stake the Land Mobile Service (LMS), the tax base is calculated according to the number of mobile stations, that is, SIM (Subscriber Identity Module) cards held by subscribers who are in a contractual relation with a national LMS operator. Circular ANACOMS03900/2002, approved by ICP-ANACOM, defines subscribers as "all users covered by a contractual relation with a national Land Mobile Service operator, in the modalities of subscription or activated pre-paid card (the card is deemed to be activated after the first call is made or received), who are given the right to originate or to receive traffic via the respective network".
Curiously, the calculation model, which the appealed decision considers to be based on the "possibility of usage of spectrum" and not on its effective use, failed to satisfy the doctrine, which even deemed it to be "incompatible with the extra-fiscal purpose set out by the Community and national legislators for fees for the use of frequencies, which consist in an optimal use of these resources, as well as with limits which must frame the outlines of these fees by national legislators." As such, such fees "should be defined on the basis of the cost or value of the amount/unit of allocated spectrum and not according to the number of SIM cards" [Conceição Gamito/João Riscado Rapoula, "As taxas de regulação económica no setor das comunicações eletrónicas", As taxas de regulação económica em Portugal (coord. Sérgio Vasques), Almedina, 2008, p. 212].
Given this framework, the duty under consideration must thus be qualified in the light of the tripartite classification set out above. The fee for use of radio spectrum is a duty due for the use of a public asset (i) - radio spectrum (cfr. article 84, paragraph 1 f) of the Constitution, combined with article 14 of ECL) - the purpose of which, however, is the achievement of extra-fiscal objectives, maxime, the optimal use of frequencies and numbers (ii), thus being deemed to be a financial contribution.
This is thus a duty by means of which individuals are allowed to enjoy a public asset (cfr. Judgements No 20/2003 and 204/2003, available at www.tribunalconstitucional.pt), which grants them an individual advantage or benefit. However, the provision due by these individuals is not exclusively determined - as it should, in case a real fee was at stake - on the basis of the usefulness resulting from the use of that asset, but also according to extra-fiscal consideration, as envisaged by the above-mentioned European directive (Suzana Tavares da Silva, As taxas e a coerência do sistema tributário, cit., p. 96 et seq.).
7. The duty under consideration taking on the nature of a financial contribution, this Court must now take a stand relatively to the issue of organic constitutionality of paragraph 7 of Administrative Rule No 126-A/2005, of 31 January, for infringement of paragraph 1 i) of article 165 of the Constitution. There is no doubt that the elements that arise both from ECL and from European Law - which are the provision of the duty itself, the material principles with which it must comply, and its underlying purposes - do not fully meet the requirements which doctrine and case-law (Gomes Canotilho/Vital Moreira, Constituição da República Portuguesa Anotada, cit., pp. 1091-1092; and Saldanha Sanches, Manual de Direito Fiscal, 3rd ed., Coimbra Editora, 2007, p. 116) generally associate to the principle of reservation of formal and material law in the field of taxes (cfr. articles 165, paragraph 1 i) and 103, paragraph 3, of the Constitution). In fact, both "fee" assessment criteria and conditions for exemption are only determined by virtue of Decree-Law No 151-A/2000, of 20 July, read in conjunction with Administrative Rule No 126-A/2005, of 31 January.
Bearing in mind these considerations, the doctrine and case-law solutions presented for this matter must be retrieved, in order to understand whether the creation and discipline of contributions may be carried out by the Government by means of a simple Decree-Law, even if the general regime referred to in article 165, paragraph 1 i) of the Constitution has not yet been approved.
It is not enough to determine whether elements specified in ECL are more or less detailed than those covered in a possible general regime of "other financial contributions to public bodies" (cfr. reasoning in Judgement No 613/08, mentioned earlier), given that such greater detail does not make up for the lack of a harmonising and consistency-delivering regime, as one may assume such a regime to be.
However, the solution - established by doctrine - according to which financial contributions should be applied the tax legal regime would paralyze and obstruct "the autonomy of governmental action in a field which in fact is its own". This argument is of particular importance in the context, as is the case here, of duties that take on a regulatory function - understood as task of public powers that aims to guarantee an efficient and socially responsible functioning of sectors connected to services of general economic interest - co-determined by European law [in this respect, Cardoso da Costa, «Sobre o princípio da legalidade das "taxas" (e das "demais contribuições financeiras")», cit., p. 803-804].
What is at stake is a duty that - albeit it in moderate terms, as we have seen - is still governed by the principle of equivalence, that is, one to which the principle of the ability to pay underlying taxes is not applicable (Sérgio Vasques, Manual de Direito Fiscal, cit., p. 244). As such, the solution requires weighing the risk of paralysing Government action, on the one hand, against the risk of proliferation, not controlled by Parliament, of duties that are hybrid or imperfectly synallagmatic. From this assessment it may be concluded that financial contributions must be created by parliamentary law, and that at this level some of its fundamental elements must be sufficiently outlined - which, in casu, is effectively the case.
As such, this Court concludes that, having the fee for use of radio spectrum been created by formal law, the development by the Government, by means of simple Decree-Law and/or administrative rule, of some of its fundamental elements does not represent an infringement of paragraph 1 i) of article 165 of the Constitution.
8. In the light of the above, the Constitutional Court hereby decides:
a) Not to find unconstitutional paragraph 7 of Administrative Rule No 126-A/2005, of 31 January, read in conjunction with the respective annex, for violation of paragraph 1 i) of article 165 of the Constitution;
b) Therefore, to declare the appeal to be well founded.
No court fees apply.
Lisbon, 20 March 2013. - José da Cunha Barbosa - Maria Lúcia Amaral - Maria João Antunes - Maria de Fátima Mata-Mouros - Joaquim de Sousa Ribeiro