Regulation on the settlement and collection of fees

ICP - ANACOM
Regulation on the settlement and collection of fees due to ANACOM

I
Report

1. The Instituto das Comunicações de Portugal (ICP) was established by Decree-Law no. 188/81, of 2 July, having its Statutes been approved by Regulatory Decree no. 70/83, of 20 July. These Statutes provided that ICP - ANACOM would be financed by means of fees, fines and other revenues collected in the scope of radio spectrum management; with amounts imposed every year on public communication operators by joint order of the Ministers for Housing, Public Works and Transports, and for Finance and for Planning; with State budget funds and any other revenues, income or values that derived from the Authority’s activity or that by law or contract became its property or was assigned to it.

Except for the State budget funds, this financing solution was essentially maintained by Decree-Law no. 283/89, of 23 August, which repealed Regulatory Decree no. 70/83, and established the following table of revenues for ICP:

- Fees and other revenues charged within the scope of the radio spectrum management;
- Fees and other revenues charged within the scope of licensing and monitoring of operators and providers of communication services;
- Income from fines;
- Fees and other revenues arising from the approval of material and equipment;
- Any other revenues, income or amounts arising from its activity or which by law or contract became its property or was assigned to it, as well as donations, subsidies or other forms of financial support;
- Income from the alienation of its own assets and from the constitution of rights thereon;
- Amounts to be paid by public telecommunications operators, set out on an annual basis by order of the Minister responsible and paid in advance in quarterly instalments, in order to fully cover the difference between the total amount of other revenues and ICP’s total expenditure, which were divided among public telecommunications operators in proportion to their overall revenue in the year immediately preceding the year in which the draft budget was drawn up.

The gradual liberalisation of the telecommunications and postal services sectors, essentially marked by the transposition of Community directives, led to the incorporation into national law of a set of standards that substantially extended ICP’s assignments and that triggered enormous changes in the Statutes, operated by Decree-Law no. 309/2001, of 7 December, involving a review of the respective organic and institutional model and of its name, which changed into ICP - Autoridade Nacional das Comunicações (ICP – ANACOM).

As provided for in the preamble to Decree-Law no. 309/2001, “expanding liberalisation in the sector has meant that the regulatory authority for communications is increasingly called on to ensure real and effective competition in the sector, and to act as a neutral and unbiased arbiter. This means that the guaranteed existence of effective competition between operators and service providers, not just concerning access but also market activity, obviates greater functional and organic independence for ICP – ANACOM”.

Consequently, ICP – ANACOM’s table of revenues not only ceased to include amounts necessary to fully cover the difference between the total amount of other revenues and ICP’s total expenditure by charging public telecommunications operators in proportion to their overall revenue in the year immediately preceding the year in which the draft budget was drawn up, but also – leaving aside revenues from the application of contractual fines and other charges, as well as revenues from the provision of services donations, subsidies or other forms of financial support, alienation of its own property and the constitution of rights thereon, interest deriving from financial applications, and any other revenues, income or values that derived from its activity or that by law or contract was assigned to it or became its property – limited its financing to proceeds of two types of fees:

- Fees and other revenues collected in the scope of the assignment of licences authorising activity and the supervision of operators and providers of communications services;
- Fees and other revenues collected in the scope of the management of the radio spectrum and the national numbering plan.

With the entry into force of the Electronic Communications Law (Law no. 5/2004, of 10 February), this set of fees was systematised as follows:

- On the one hand, fees that are determined with regard to the administrative costs incurred in the management, control and enforcement of the general authorisation scheme, in the allocation of rights of use and in the imposition of specific obligations on issues such as access, interconnection and universal service, among others. This is the case of fees due for the issue of declarations attesting rights of bodies providing electronic communications networks and services; fees due for carrying out the activity of provision of electronic communications networks and services on an annual basis; fees due for the allocation of rights of use for frequencies; and fees due for the allocation of rights of use for numbers and their reservation.

- On the other hand, fees that must reflect the need to ensure the optimal use of resources, that is, of frequencies and numbers, which must be objectively justified, transparent, non-discriminatory and proportionate in relation to their intended purpose taking into account regulatory objectives.

Therefore, criteria for taxation differ according to whether fees are determined with regard to the administrative costs or to the optimal use of frequencies and numbers.

It is also incumbent on ICP - ANACOM to collect fees due in the scope of the legal scheme that applies to the Amateur and Amateur-Satellite Services; the legal scheme that applies to the Personal Radio Service – Citizen Band (PRS – CB); the legal scheme that applies to the access to and provision of audiotext services; the legal scheme that applies to the set up of infrastructures for telecommunications in buildings and respective connections to public telecommunications networks; the scheme of certification of premises; the conformity assessment scheme of equipment, material and infrastructures; and, lastly, fees due by bodies licensed and authorized to provide postal services.

2. It follows from the above that ICP - ANACOM is responsible for charging a very heterogeneous range of fees, with different means of adoption and settlement, although the distinction between fees charged according to administrative costs and to the optimal use of common resources is applied in an uniform fashion.

Fees associated to administrative costs

– Fees due for the issue of declarations attesting rights of bodies providing electronic communications networks and services;
– Fees due for carrying out the activity of provision of electronic communications networks and services;
– Fees due for the allocation of rights of use for frequencies;
– Fees due for the allocation of rights of use for numbers and their reservation;
– Fees due in the scope of the amateur and amateur-satellite services, except where connected to the optimal use of common resources;
– Fees due in the scope of the access to and provision of audiotext services;
– Fees due in the scope of the set up of infrastructures for telecommunications in buildings and respective connections to public telecommunications networks;
– Fees due in the scope of the certification of premises;
– Fees due in the scope of the conformity assessment of equipment, material and infrastructures;
– Fees due by bodies licensed and authorized to provide postal services.

Fees connected to the optimal use of common resources

– Fees for use of frequencies;
– Fees for use of numbers;
– Fees due in the scope of the legal scheme that applies to the Personal Radio Service – Citizen Band (PRS – CB);
– Fee for the use of an annual occasional call sign (AOCS);
– Fee for the use of radio spectrum due by the national amateur certificate (NAC) holder.

3. Administrative Rule no. 1473-B/2008, of 17 December, approved a new fee model to be applied by ICP - ANACOM, based on the distinction between fees determined according to administrative costs and fees due for the use of common resources. This new financing model of ICP - ANACOM aims to implement the provision in article 105 of the Electronic Communications Law, as well as other rules that apply in the scope of fees due to ICP - ANACOM.

However, matters concerning the adoption, settlement and collection of charges due to ICP - ANACOM are not covered by Administrative Rule no. 1473-B/2008, of 17 December, which merely approves the respective amounts, as well as the settlement timetables. The only provisions with a procedural nature are articles 3 and 4, which state that the payment of the fee due for the provision of publicly available electronic communications networks and services requires the submission to ICP - ANACOM of a statement signed by the body empowered to bind the legal person, indicating the amount of relevant revenues achieved in the preceding calendar year directly connected to the pursue of the activity.

Therefore, taking into account the experience gained as regards the adoption and settlement of fees due for the use of spectrum, it is deemed justified to draw up a regulation on the settlement and collection of fees due to ICP – ANACOM, so as to ensure that their adoption is carried out in an uniform fashion, by means of simple and transparent procedures, that guarantee that liable entities understand the purpose and justification of amounts paid.

The aim is thus to introduce a systematised procedural dimension in ICP – ANACOM’s new fee model, dealing with questions connected to the internal and external settlement and collection procedures.

4. The drawing up of a Regulation such as this one is based on the legal authorisation in articles 9 a) and 26 b) of ICP – ANACOM’s Statutes.

In fact, by providing that in the scope of its powers of regulation and supervision, ICP - ANACOM is entitled to draw up regulations deemed to be indispensable for the exercise of its assignments, article 9 a) of its Statutes grants ICP - ANACOM a general regulatory power where the pursue of its assignments is at stake, which naturally includes the collection of fees necessary to finance its regulation and supervision activities, as well as those resulting from the use of common resources.

On the other hand, by treating ICP - ANACOM as the State, namely as regards the coercive collection of fees, article 2 a) of Decree-Law no. 309/2001, of 7 December, explicitly integrates this matter in the range of powers granted to ICP- ANACOM.

Moreover, it is incumbent upon the Board of Directors of ICP - ANACOM to collect revenues and authorise expenditure, as well as to approve regulations and to take determinations as necessary for the performance of its tasks (article 26 b) and g) of ICP - ANACOM Statutes).

However, the collection of fees by ICP - ANACOM requires a prior procedure of adoption and settlement, with a view to determine the amount the liable entity must pay. This procedure must of course be approved by the fee beneficiary, according to the general principles governing the administrative activity. In fact, notwithstanding the fact that the hand-over of a general power to draw up regulations which may contain primary law to bodies that do not integrate the autonomous public administration is a novel feature for Portuguese Law, the limits to which the exercise of such regulatory power is subject are well known:

- Compliance with the Constitution;
- Respect for the rule of law;
- Conformity with assignments of ICP - ANACOM;
- Observance of article 11, paragraph 1, of ICP - ANACOM Statutes (obedience to the principles of legality, necessity, clarity, participation and publicity);
- Primacy of Government regulations issued in the scope of special legal powers.

The adoption, settlement and collection of fees due to ICP - ANACOM – which are revenues deemed to be essential for its proper operation – are based, on the one hand, on its own legislation, governing the material scheme of each fee and in the respective implementation Administrative Rule, and, on the other, on procedural rules which cannot but be contained in an administrative regulation framing the respective procedures of adoption, settlement and collection.

In the light of the above, it must be concluded that the approval of a regulation with these characteristics falls within the scope of ICP – ANACOM’s external regulatory power, explicitly laid down in articles 9a) and 26 b) and g) of its statutes.

II
LEGAL FACTS

Administrative Rule no. 1473-B/2008, of 17 December, approved a new fee model to be applied by ICP - ANACOM, based on the distinction between fees determined according to administrative costs and fees due for the use of common resources.

ICP – ANACOM’s new fee model aims to implement article 105 of the Electronic Communications Law; paragraph 7 of article 19 of Decree-Law no. 151-A/2000, of 20 July; paragraph 3 of article 19 of Decree-Law no. 150/2001, of 7 May; paragraph 6 of article 19 of Decree-Law no. 53/2009, of 2 March; of article 11 of Decree-Law no. 47/2000, of 24 March; article 11 of Decree-Law no. 177/99 of 21 May; and paragraph 1 of article 45 of Decree-Law no. 59/2000, of 19 April.

However, matters concerning the adoption, settlement and collection of fees due to ICP - ANACOM are not covered by Administrative Rule no. 1473-B/2008, of 17 December, which merely defines the respective amounts, settlement timetables, and in the specific case of fees due for the provision of publicly available electronic communications networks and services, the submission to ICP - ANACOM of a statement indicating the amount of relevant revenues achieved in the preceding calendar year directly connected to the pursue of the activity.

Considering:

1. The lack of an uniform regulation on the settlement and collection of fees charged by ICP - ANACOM, that prevents the transparent identification of rules that apply to the payment of the referred fees;

2. The experience gained as regards the adoption and settlement of fees due for the use of radio spectrum;

3. That, on account of the wide range of fees due to ICP - ANACOM, it is necessary to define rules on their adoption, settlement and collection;

4. That the implementation of these rules will be an essential complement to ICP – ANACOM’s new fee model, dealing with questions connected to the internal and external adoption, settlement and collection procedures.

Considering also that these rules may be the subject-matter of an administrative regulation approved on the basis of a legal authorization contained in articles 9 a) and 26 b) and g) of ICP – ANACOM’s Statutes, as this is not a matter covered by the principle of enactment by the parliament.

Under the regulatory power of ICP - ANACOM, this regulation is hereby drawn up, in order to simplify the adoption, settlement and collection of fees due to ICP - ANACOM, enabling operators to be aware, on the one hand, of the general regime that applies to the adoption, settlement and collection of fees charged by ICP - ANACOM, and, on the other, of the substantive regime of each fee.
The Board of Directors of ICP - ANACOM, having submitted the draft regulation to a public consultation, hereby determines, pursuant to in articles 9 a) and 26 b) and g) of ICP – ANACOM’s Statutes, to approve the following Regulation on the settlement and collection of fees due to ICP - ANACOM:

REGULATION ON THE SETTLEMENT AND COLLECTION OF FEES DUE TO ANACOM

Article 1
Scope and authorizing law

This regulation establishes the adoption, settlement and collection procedures of fees due to ICP - ANACOM, and it is approved pursuant to paragraph 2 a) of Decree-Law no. 309/2001, of 7 December, article 9 a), article 11 and article 26 b) of ICP – ANACOM’s Statutes, approved by Decree-Law no. 309/2001, of 7 December.

Article 2
Fees

1. ICP - ANACOM is responsible for the adoption, settlement and collection of fees associated to administrative costs and to criteria of optimal use of common resources.

2. The following fess shall be associated to administrative costs:

a. Fees due for the issue of declarations attesting rights of bodies providing electronic communications networks and services;
b. Fees due for carrying out the activity of provision of electronic communications networks and services;
c. Fees due for the allocation of rights of use for frequencies;
d. Fees due for the allocation of rights of use for numbers and their reservation;
e. Fees due in the scope of the amateur and amateur-satellite services, except where connected to the optimal use of common resources referred to in points d) and e) of the following paragraph;
f. Fees due in the scope of the set up of infrastructures for telecommunications in buildings (ITED);
g. Fees due in the scope of the access to and provision of audiotext services;
h. Fees due for the access to and exercise of the postal service activity.
3. The following fees are connected to the optimal use of common resources:
a. Fees for the use of frequencies for mobile electronic communications services;
b. Fees for the use of frequencies for broadcasting services;
c. Fees for the registration of the Personal Radio Service – Citizen Band (CB);
d. Fee for the use of an annual occasional call sign (AOCS);
e. Fee for the use of radio spectrum due by the national amateur certificate (NAC) holder;
f. Fees for the use of frequencies for the fixed service;
g. Fees for the use of frequencies for radiodetermination services;
h. Fees for the use of frequencies for satellite radio services;
i. Fees for the use of frequencies for other radio services;
j. Fees for the radio data system;
k. Fees for use of numbers.

Article 3
Liable entities

Liable entities shall mean natural or legal persons, assets or factual or legal bodies bound to the payment of fees due to ICP - ANACOM, either directly, as proxies, or having subsidiary liability.

Article 4
Adoption

1 – In fees charged by ICP - ANACOM, the taxable amount is determined pursuant to the legal and regulatory provisions that apply to each type of fee.

2 – For the purpose of the adoption of fees due to ICP - ANACOM, data or documents submitted by liable entities to ICP - ANACOM including elements on the basis of assessment of each type of fee shall be deemed to be declarations.

Article 5
Information duties

1 – Liable entities must provide ICP - ANACOM, within the time-limits set out in the legal and regulatory provisions that apply to each type of fee, with the declarations, data or documents required for the purpose of the respective adoption or settlement.

2 – Without prejudice to other sanctions that apply in situations of non-compliance with duties provided for in the preceding paragraph, ICP - ANACOM is entitled, pursuant to article 108, article 113, paragraph 1 ttt), paragraphs 4 and 5, and article 116 of Law no. 5/2004, of 10 February, as amended by Law no. 176/2007, of 8 May, to impose mandatory penalty payments.

Article 6
Audits

1 – ICP - ANACOM may launch audits in order to:

a) Gather the necessary elements to adopt and settle fees;
b) Analyse the accuracy and precision of elements submitted by liable entities.

2 – These audits shall be carried out in compliance with the rules of the General Tax Law on tax procedure, general provisions of the Tax Procedure and Proceedings Code and rules of the Additional Scheme of Tax Inspection Procedure, which apply duly adapted to the specificities of the legal relation of the fee and ICP – ANACOM’s organic structure.

3 – For the purposes of the preceding paragraph, ICP - ANACOM is entitled to use its own services or specially qualified and authorized external consultants, namely statutory auditors and audit firms.

4 – Persons or bodies involved in inspection measures shall be duly accredited by ICP - ANACOM.

Article 7
Settlement

Fees mentioned in article 2 shall be settled by ICP - ANACOM by means of a notice of settlement and collection, which shall include a demonstration of the settlement, as well as an indication of means of defence and the deadline to challenge the notified act.

Article 8
Additional settlement

1 – After the audit referred to in article 6 has been carried, and in case errors or omissions having a detrimental effect on ICP – ANACOM are found, for which the liable entity is accountable, the additional settlement of fees, compensatory interest and expenses referred to in article 9 shall be promoted.

2 – The liable entity shall be notified to pay within 30 days, pursuant to article 22, otherwise a coercive collection shall take place.

3 – The grounds for the additional settlement, the respective amount, payment deadline and warning of the consequences of failing to make the payment, as well as the indication of the means of defence and the deadline to challenge the notified act, shall be contained in the notice referred to in the preceding article.

Article 9
Expenses

Liable entities shall be responsible for audit expenses incurred by ICP - ANACOM where errors or omissions are committed intentionally or with serious negligence, to a maximum amount of 100 000€, without prejudice to breach liability that may apply.

Article 10
Compensatory interest

Where the settlement of the full or partial amount of the fee due is delayed, due to the fault of the liable entity, compensatory interest shall be due pursuant to article 35 of the General Tax Law.

Article 11
Default interest

Where the settlement is based on an error on the part of ICP - ANACOM from which results a payment of a fee in excess of the amount provided for by law, default interest shall be due pursuant to article 43 of the General Tax Law.

Article 12
Minimum limits

1 – Where the total amount of the notice of settlement is lower than 10€, fees shall not be coercively charged, except where this arises from adjustments resulting from settlements already carried out.

2 - No obligation to make repayment arises where the amount of the fee to be repaid is lower than 10€, following the settlement revision.

Article 13
Set-off

1 – Any claims the liable entity may have, resulting from repayment, settlement revision, administrative complaint or legal challenge, shall be set off in debts to ICP - ANACOM, except where an administrative complaint, legal challenge, legal appeal or proceedings against enforcement is pending, or debs are paid in instalments.

2 – Debts to ICP – ANACOM may be set off at the request of the liable entity, even where the deadline for voluntary payment has not expired.

Article 14
Settlement revision

1 – The revision of fee settlement may take place on the initiative of ICP - ANACOM or at the request of the liable entity, within four years from settlement or at any time where the fee has not been paid, where it is shown that there was an illegality, error or omission on the part of ICP - ANACOM or of the liable entity.

2 – The settlement revision implies the additional settlement or the restitution of sums unduly paid and the payment of default or compensatory interest, as the case may be.

3 – The restitution of sums unduly paid, where it occurs, must take place within 30 days from the settlement revision.

Article 15
Expiry of the right to settlement

1 – The right to settle fees expires where the settlement is not properly notified to the liable entity within four years from the end of the calendar year in which the taxable fact took place.

2 – In the situation of attested error in the declaration of the liable entity, the expiry deadline referred to in the preceding paragraph shall be three years.

3 – The expiry period shall also be suspended with the notification to the liable entity that an audit has been launched; however this effect shall cease, and the calculation of the time-limit restarts, where the audit duration exceeds six months from the date of the notification.

4 – The expiry period shall also be suspended in a situation of legal proceedings on the decision of which depends the settlement of the fee, since its start until the decision becomes enforceable, and in case the right to settlement results from a complaint, administrative appeal, request for revision or challenge, since the respective application until its decision.

Article 16
Payment deadline

Fees due to ICP - ANACOM shall be paid:

a) Within 30 days from the issue of the notice of settlement and collection, except for the following paragraph;
b) On the moment the application is satisfied, as regards fees set out in paragraph 1 a) to f) of article 19 of Decree-Law no. 53/2009, of 2 March, and fees due for the granting of certificates and temporary licenses.

Article 17
Payment

Fees shall be paid according to one of the following modalities, as indicated in the notice of settlement and collection:

a) In cash, at ICP – ANACOM’s services;
b) By check or postal order made payable to ICP - ANACOM;
c) Using the ATM system;
d) Using the direct debit scheme;
e) At post offices.

Article 18
Non-compliance

1 – Where the liable entity fails to pay fees due within the deadlines set out herein, interest for late payment becomes payable, pursuant to article 44 of the General Tax Law, without prejudice to surcharges that are due, namely under paragraph 8 of article 19 of Decree-Law no. 151-A/2000, of 20 July.

2 – Debs which are not paid voluntarily shall be subject to coercive collection.

3 – Without prejudice to the preceding paragraphs, the failure to pay fees due to ICP - ANACOM determines the application of article 110 of Law no. 5/2004, of 10 February, without prejudice to other legal sanction mechanisms.

Article 19
Payment in instalments

1 – Fees due to ICP - ANACOM of an amount exceeding 1000€ (one thousand Euros) may be paid in equal monthly instalments, not exceeding ten, paying interest at the rate of debts to the State and other public bodies.

2 – The payment in instalments requires the provision by the applicant of a consistent guarantee, which may consist of a bank guarantee, a security deposit, fidelity guarantee insurance, or any other means likely to ensure the payment of the full amount of the fee and interest, and the acceptance thereof by ICP - ANACOM.

3 – The application for payment in instalments, as well as the guarantee referred to in the preceding paragraph must be submitted to ICP - ANACOM up to eight days in advance of the payment deadline.

4 – The failure to pay any of the instalments determines the prompt payment of remaining instalments.

Article 20
Coercive collection

1 – Pursuant to article 2 a) of Decree-Law no. 309/2001, of 7 December, failure to voluntarily pay fees due to ICP - ANACOM leads to the issue of a payment order, which is deemed as an enforcement order in a tax execution procedure, and shall contain the following elements:

a) Identification of the liable entity, including tax number;
b) Origin of the debt and respective amount;
c) Number of the settlement notice;
d) Elements at the basis of the settlement;
e) Date as from which interest is due and amount which bears such interest;
f) Any other useful indication for an effective execution procedure;
g) Signature of the issuer and date of the certificate.
2 – ICP - ANACOM shall send the notice to the liable entity by registered mail before issuing the payment order for coercive payment purposes.

Article 21
Time bar

1 – The recovery of fees due to ICP - ANACOM shall be time-barred within a period of eight years from the date on which the taxable fact took place.

2 – The time bar shall be interrupted by summons, administrative appeal, request for revision and legal challenge.

3 – The time bar shall be suspended during the period of payment in instalments or for as long as a final judgement has not been passed or it is not enforceable, thus ending the proceedings, in situations of complaint, administrative appeal, request for revision, challenge, legal appeal or proceedings against enforcement, in situations where the debt collection may be suspended.

Article 22
Notifications

Notifications referred to herein shall be performed by any means that ensure that the liable person is made aware of the notified act, namely by registered mail or registered mail with acknowledgement of receipt, telefax or electronic data transmission.

Article 23
Supplementary legislation

The rules of the General Tax Law and of the Tax Procedure and Proceedings Code, duly adapted, are applicable in the alternative.

Article 24
Entry into force

This Regulation shall enter into force five days after its publication.

Means of defence to be indicated in notices of settlement and collection referred to in article 7, as well as in notifications of acts referred to in articles 8 and 14

Pursuant to article 68 and 70 of the Tax Procedure and Proceedings Code, an administrative complaint may be lodged within 120 days from the voluntary payment deadline. The administrative complaint does not have a suspensive effect on the collection, except where an appropriate guarantee is provided.

Pursuant to article 102 of the Tax Procedure and Proceedings Code, a legal challenge may be submitted before the Lisbon Tax Court within 90 days from the voluntary payment deadline or, in case the administrative complaint is rejected, within 15 days from the notification of rejection.

Pursuant to article 68, paragraph 2, of the Tax Procedure and Proceedings Code, the submission of a legal challenge prevents the lodging of an administrative complaint with the same basis.

Consult:

Relatório da consulta pública sobre o Regulamento de liquidação e cobrança de taxas devidas ao ICP-ANACOM
(PDF 164 KB)

Consult:

See also: