Industry

Details regarding the payment of annual monitoring tariff

The annual monitoring tariff must be paid to ANCOM by all the authorised providers of electronic communications networks and services and of postal services proving that their turnover or revenues obtained exclusively from such activities exceed EUR 100,000.

 

These provisions take into account the calculation method for the monitoring tariff owed by the providers of providers of electronic communications networks and services and/or of postal services starting 2012, according to the provisions of Chapter X, ”Monitoring tariff”, of the Government Emergency Ordinance no.111/2011 on electronic communications, approved with amendments and completions by Law no.140/2012.
1.      Legal ground
 
As regards the payment of the monitoring tariff, according to the provisions of Article 122 of the Government Emergency Ordinance no.111/2011 ”A person having the capacity as a provider of public electronic communications networks, a provider of publicly available electronic communications services or a provider of postal services shall pay to ANCOM an annual monitoring tariff, under the conditions stated in this Chapter, since the moment of gaining the capacity as a provider and until such capacity ends.” and according to the provisions of Article 124 of the same normative act:
”(1) The monitoring tariff referred to in Article 122 shall be calculated as a percentage from the turnover achieved in the year preceding the year for which the tariff is owed, in the case of the persons who had the capacity as providers during the entire previous calendar year.
(2) In the case of the persons who did not have the capacity as providers during the entire previous calendar year, the monitoring tariff referred to in paragraph (1) shall be calculated as a percentage from the turnover registered in the months of the year preceding the year for which the tariff is owed, when the person in question had the capacity as a provider.
(5) In the case of the persons under paragraph (1), the amount considered for determining the monitoring tariff shall be the whole turnover presented in the annual financial statements prepared for the year preceding the year for which the monitoring tariff is owed.
(6) The turnover of the persons under paragraph (2) shall be determined by cumulating the revenues obtained in the months of the year preceding the year for which the tariff is owed, when they had the capacity as providers, taking into consideration including the month when they gained such capacity.
(7) As for the authorised natural persons, individual enterprises and family associations, the turnover shall be composed of the total gross revenues obtained in the year preceding the year for 95/130 which the monitoring tariff is owed, respectively the total gross revenues obtained in the months of the year preceding the year for which the tariff is owed, when they had the capacity as providers”.
According to the provisions of Article 129 of the Government Emergency Ordinance no.111/2011, ”(1) The persons referred to in Article 124 and in Article 126 paragraphs (1) and (6) may require, in view of determining the tariff, to take into consideration the revenues resulted exclusively from the provision of electronic communications networks or services or from the provision of postal services instead of the turnover, whereas the provisions of Articles 124 to 126 shall appropriately apply.

 

(2) With a view to applying the provisions of paragraph (1), the providers shall keep separate accounts with regard to the revenues obtained from the provision of electronic communications networks or services or from the provision of postal services, as the case may be. These revenues shall be certified by an independent auditor or by an accounting expert authorised under the law, under the conditions established by ANCOM.”

 

2.      Persons under the obligation to pay a monitoring tariff
 
According to the above-mentioned legal provisions, any person having the capacity as a provider of public electronic communications networks and services and/or a provider of postal services has the obligation to pay – in accordance with the provisions of the Government Emergency Ordinance no. 11/2011 -, since the moment of gaining the capacity as a provider and until such capacity ends, an annual monitoring tariff calculated as a percentage of the turnover or of the revenues obtained from the provision of electronic communications networks and services or from the provision of postal services, registered in the previous year, based on each provider’s choice.
 
3. Calculation method for the annual monitoring tariff
 

The annual monitoring tariff is a percentage of the turnover or of the revenues obtained from the provision of electronic communications networks and services or from the provision of postal services, registered in the previous year, based on each provider’s choice.
The percentage applied, based on the provider’s choice, either on the turnover corresponding to the previous year of each provider of electronic communications networks and services and/or of postal services or on the revenues obtained from the provision of electronic communications networks and services or of postal services, cannot exceed 0.4%, as a ratio of:
  • the administrative expenditures provided in Article 123(2) of the Government Emergency Ordinance no.111/2011, minus revenues from other sources, also taking into consideration the amounts of the annual surplus resulted from the execution of the previous years’ budgets, and
  • the cumulated turnover, corresponding to the previous year, of all the providers of electronic communications and/or of postal services that owe the annual monitoring tariff.
The annual monitoring tariff owed by each provider is established a result of:
  • the above-mentioned percentage, times
  • the turnover/ the revenues obtained from the provision of electronic communications networks or services and/or of postal services registered by the respective provider.
The legislative solution is inspired from the regulations in force at the European level comes in the vein of financing regulatory authorities manly from the contributions of entities within their scope of competence.
With a view to enforcing the legal provisions on the annual monitoring tariff, for the entities that had the capacity as a provider of electronic communications networks and services and/or of postal services throughout a whole calendar year, the turnover ”is the whole turnover provided in the annual financial statements drawn up for the year preceding the one for which the monitoring tariff is owed.” The turnover of entities that did not hold the capacity as a provider of electronic communications networks and services and/or of postal services throughout a whole calendar year, the turnover ”is determined based on summing up the revenues obtained during the months of the year preceding the one for which the monitoring tariff is owed, in which the respective entity had the capacity as a provider, including the month when that capacity was acquired”.

 

The providers that chose their monitoring tariff to be calculated based on the revenues obtained from the provision of electronic communications networks and services and/or of postal services, according to the provisions of Article 129 (2) of the Government Emergency Ordinance no.111/2011, must keep separated accounts for the revenues from the provision of electronic communications networks and services and/or of postal services.
4. Documents required for determinig the monitoring tariff
According to the provisions of Article 130 paragraphs (1)-(5) of the Government Emergency Ordinance no.111/2011, (1) The persons mentioned in Article 124 paragraphs (1) and (2), except for the persons under paragraph (2), shall send ANCOM the annual financial statements containing the 98/130 turnovers under the profit and loss account, necessary for determining the monitoring tariff, within 7 days from the expiration of the legal term provided for their submission to the competent bodies they are registered with, according to the legislation in force.
(2) The authorised natural persons, family associations and individual enterprises owing the monitoring tariff referred to in Article 124 shall send ANCOM the annual financial statements on the gross revenues achieved, necessary to determine the monitoring tariff, within 7 days from the expiration of the legal term provided for their submission to the competent bodies they are registered with, according to the legislation in force.
(3) The persons under Article 124 paragraph (2) shall send ANCOM, in the timeframe established in paragraph (2), the statement on the turnover achieved in the months of the previous year when they had the capacity as providers of electronic communications networks or services or of postal services.
(4) The non-submission within the terms and under the conditions set by the legal provisions of the documents referred to in paragraph (3), necessary to determine the monitoring tariff, shall trigger its determination based on the turnover provided for in Article 124 paragraph (5).
(5) Failure to submit the documents referred to in paragraphs (1) and (2) shall trigger the determination of the monitoring tariff by considering the last turnover made available to ANCOM.”
Moreover, failure to submit the annual financial statements in accordance with Article 130 of the Government Emergency Ordinance no.111/2011 is a contravention, according to the provisions of Article 142 item 54 of the Government Emergency Ordinance no. 111/2011, and is sanctioned by a fine amounting from RON 5,000 to RON 60,000, and – for repeated breaches -, by fine amounting to maximum RON 100,000, for companies with a turnover of up to RON 3,000,000. By way of exception from the provisions of Article 8 (2) letter a) of the Government Emergency Ordinance no.2/2001 on the legal regime of contraventions, approved with amendments and completions by Law no.180/2002, with the subsequent amendments and completions, for companies with a turnover of more than RON 3,000,000, the previously mentioned contravention is sanctioned by a fine amounting to maximum 2% of the turnover, and – for repeated breaches – by fine of maximum 5% of the turnover.
For the providers of electronic communications networks and services and/or of postal services that chose their monitoring tariff to be calculated based on the revenues obtained from the provision of electronic communications networks and services and/or of postal services, the manner of exercising the right of option and the documents that must be transmitted to ANCOM  for the purpose of determining this tariff are regulated by the ANRCTI President’s Decision no.2892/2007 on the procedure of determining certain financial obligations of the provisers of electronic communications networks or services and of the providers of postal services to the National Authority for Regulation in Communications and Information Technology.
This category of providers, according to the provisions of Article 5 (5) of the ANRCTI President’s Decision no.2892/2007, “shall draw up and send to ANRCTI, together with the annual financial statements, the Statement on the revenues achieved from the provision of electronic communications networks or services and/or from the provision of postal services and the Consolidated monthly statements on the revenues achieved from the provision of electronic communications networks or services and/or from the provision of postal services within 5 days from the expiry date of the legal term provided for the submission of the annual financial statements to the competent bodies, according to the legislation in force”.
Failure to send the Statement on the revenues achieved from the provision of electronic communications networks or services and/or from the provision of postal services and the Consolidated monthly statements on the revenues achieved from the provision of electronic communications networks or services and/or from the provision of postal services, according to the provisions of Article 5 (6) of the ANRCTI President’s Decision no.2892/2007, will trigger ANCOM to determine the financial obligations based on the turnover.
5. Payment of the annual monitoring tariff
On the date of determining the cumulated annual turnover provided in Article 124 (3) indent b) of the Government Emergency Ordinance no.111/2011, not later than 15 September of the respective year, ANCOM establishes by Decision the annual monitoring tariff owed by each provider of electronic communications and/or of postal services. The decision establishing the monitoring tariff is communicated in writing to each provider.
According to the provisions of Article 127 of the Government Emergency Ordinance no.111/2011, ”(1) ANCOM may require the persons referred to in Article 122 to phase the payment of the annual monitoring tariff, as follows:
a) a share of 30% of the last monitoring tariff owed, until the 15th of March, but not less than 15 days from the communication of the ANCOM president’s decision; 97/130
b) a new share of 30% of the last monitoring tariff owed, until the 15 th of June, but not less than 15 days from the communication of the ANCOM president’s decision.
(2) The amount of the prepayments referred to in paragraph (1) shall be set out until the 15th of February by decision of the ANCOM president.
(3) The last monitoring tariff owed, based on which the prepayments are determined, is the monitoring tariff set out pursuant to Article 125 paragraph (2), without considering the prepayments made in the respective year.
(4) The difference between the annual monitoring tariff determined pursuant to Article 125 paragraph (2) and the possible prepayments determined according to paragraph (1) shall be paid in the timeframe specified in Article 128 or, as appropriate, shall be returned by ANCOM in accordance with the Fiscal Procedure Code”.
The payment of the annual monitoring tariff, as well as the pre-payments are to be made by money order or cash, in accordance with the provisions of Law no.70/2015 regarding the consolidation of the financial discipline with respect to the collection and the performance of cash payments and the amendment and supplementation of Emergency Government Ordinance no. 193/2002 on the application of modern payment systems. The payment date is considered the date of debiting the bank account of the provider that makes the payment. Proof of payment is a copy of the payment order, certified by the bank where the payment has been made or a copy of the payment document issued by the relevant entities, as applicable.
The monitoring tariff owed by the providers of electronic communications networks and services and/or by the providers of postal services is managed by ANCOM, where the provisions of Law no. 207/2015 on the Code of fiscal procedure are applicable.
Moreover, upon cessation of the capacity as a provider, irrespective of its category, a provider of electronic communications networks and services and/or of postal services must pay a monitoring tariff, as follows:
  • if the capacity as a provider has ceased before determining the annual monitoring tariff pursuant to Article 125 paragraph (2) of the Government Emergency Ordinance no 111/2011, the provider shall owe a monitoring tariff which stands for the multiplication result between the percentage set by ANCOM under the terms of Article 124 paragraph (3) of the Government Emergency Ordinance no 111/2011 for the previous year and the turnover achieved in the previous year or in the months of the previous year when the respective provider had such capacity, cumulated with the turnover obtained in the months when it had such capacity in the year of cessation;
  • if the capacity as a provider has ceased after determining the annual monitoring tariff pursuant to Article 125 paragraph (2) of the Government Emergency Ordinance no 111/2011, besides this tariff, the provider shall owe an additional tariff, calculated multiplying the percentage set by ANCOM under the terms of Article 124 paragraph (3) of the Government Emergency Ordinance no 111/2011 for the ongoing year by the turnover obtained in the months when it had such capacity in the year of cessation.
Within 15 days from the cessation of the capacity as a provider, the persons owing the monitoring tariff specified in case of cessation of the activity in the field of electronic communications and/or of postal services must submit to ANCOM a statement on the turnover achieved in the previous year or in the months of the previous year when they had such capacity, cumulated with the turnover achieved in the months they had the capacity as providers of the year during which the cessation takes place or, respectively, on the turnover achieved in the months in which they had this capacity of the year during which the cessation takes place, under the conditions set out by ANCOM. The monitoring tariff owed in case of cessation of the activity in the field of electronic communications and/or of postal services is set out by decision of the ANCOM president. In case of failure to communicate these documents to ANCOM, within 15 days from the cessation of the capacity as a provider of electronic communications and of postal services, these persons will be required to pay the monitoring tariff owed at the cessation of the capacity as a provider, by taking into consideration the last turnover available to ANCOM, multiplied by 1/12 and by the number of months of the year when they had this capacity, without being established the monitoring tariff, excluding the month when the capacity ended, and the last percentage of the turnover set by ANCOM in view of calculating the monitoring tariff prior to the cessation.
The persons whose capacity as a provider of electronic communications networks or services or as a postal service provider has ceased in the same year they gained this capacity will owe a monitoring tariff established multiplying the percentage under Article 126 (1) indent a) or, as appropriate, under paragraph (1) indent b) of the Government Emergency Ordinance no. 111/2011 and the turnover obtained in the months in which they had such capacity, including the month when they gained the capacity and excluding the month of cessation.
The providers of electronic communications networks and services and/or of postal services registering a turnover which does not exceed the equivalent in RON of EUR 100,000, at the average exchange rate registered in the period when the turnover was achieved, calculated based on the monthly average exchange rate communicated by the National Bank of Romania, shall not pay the monitoring tariff.