TC – Ruling No. 779/2024
Through Ruling No. 779/2024, the Constitutional Court, in successive abstract review, declared unconstitutional the provision defining the scope and rates applicable to providers of electronic communications networks and services.
The decision concerns the unconstitutionality of the rule applying to providers categorized under "Tier 2," as set out in paragraphs 1 and 2 of Annex II of Ordinance No. 1473-B/2008 of December 17, as amended by Ordinance No. 296-A/2013 of October 2.
Employing a dual criterion—functional and structural—the Court concluded that the fee in question constitutes a "true financial contribution, rather than a tax." Consequently, the assessed provisions do not fall under the purview of Article 103(2) of the Constitution.
The ruling emphasized the parliamentary reservation regime applicable to financial contributions and the relevance of Article 165(1)(i) of the Constitution, especially given the absence of a general legal framework governing fees and financial contributions.
Referring to arguments made in Ruling No. 429/2023, the Court noted that Annex IX of Ordinance No. 1473-B/2008 regulates Law No. 17/2012. However, the ordinance’s provisions on subjective and objective scope go beyond the boundaries set by paragraphs 2 to 4 of Article 44 of that law, making them "substantially innovative." Regarding the objective scope and applicable rates for "Tier 2" providers, the ordinance establishes the tiers, defines the passive subjects within "Tier 2," and uses relevant revenues from the previous year’s postal services as the determinant criterion for cost allocation.
Thus, the fee is considered a tax that was "primarily regulated through administrative rule-making, that is, by exercising administrative power." However, this matter falls within the joint legislative competence of the Parliament and the Government. The violation here is not limited to Article 165 (i) of the Constitution, which restricts parliamentary competence in taxation matters, but extends to "an intrusion by the administrative power into a domain reserved by the constitutional order to the legislative power."
Consequently, the Constitutional Court declared, with general binding effect, the unconstitutionality of the provision defining the scope and rates applicable to providers of electronic communications networks and services categorized under "Tier 2." This provision stems from paragraphs 1 and 2 of Annex II of Ordinance No. 1473-B/2008, as amended by Ordinance No. 296-A/2013, for violating Articles 165 (i) and 266 of the Portuguese Constitution.
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Full text of the judgment available here.
