This page concerns the calculation formula of the monitoring tariff owed by the providers of electronic communications networks and services and/or the providers of postal services starting 2007, according to the provisions of Chapter VIII, entitled “The monitoring tariff”, of the Government Emergency Ordinance no.79/2002 on the general regulatory framework for communications, as they were subsequently amended by the Government Emergency Ordinance no.70/2006 on the amendment and completion of certain normative acts in the fields of electronic communications and of postal services, approved with amendments and completions by Law no.133/2007.
1. Legal grounds
As regards the payment of the monitoring tariff, according to the provisions of art.481 paragraphs (1)-(3) of the Government Emergency Ordinance no.79/2002, “Art.481. – (1) Any person having the capacity of a provider of public electronic communications networks, a provider of publicly available electronic communications services or a provider of postal services shall have the obligation to pay to ANRC an annual monitoring tariff, under the conditions stated under this chapter, since the moment of gaining the capacity as a provider and until the termination of such capacity.
(2) The persons mentioned under paragraph (1), who have had the capacity of a provider for a whole calendar year shall be obliged to pay to ANRC an annual monitoring tariff for the next year, calculated as a percentage of the turnover of each provider achieved during the year prior to that for which the monitoring tariff is due.
(3) In case of the persons mentioned under paragraph (1), who did not have the capacity of a provider for the whole calendar year, the monitoring tariff shall be calculated as a percentage of the turnover achieved during the months of the year prior to that for which the monitoring tariff is due and during which these persons have had the capacity of a provider” and, according to the provisions of art.485 of the same normative act, Art.485. – (1) In view of determining the tariff, the persons mentioned under art.481 and art.483 paragraphs (1) and (6) may require that the revenues resulted from the provision of electronic communications networks or services or from the provision of postal services be taken into consideration instead of the turnover, and the provisions under arts.481–484 shall apply accordingly.
(2) In view of applying the provisions under paragraph (1), the providers shall be obliged to keep separate accounting as regards the revenues obtained from the provision of electronic communications networks or services or from the provision of postal services, as the case may be. Such revenues shall be certified by an legally authorised independent auditor, under the conditions set out by ANRC.”
2. Persons who have the obligation to pay the monitoring tariff
The above mentioned legal provisions stipulate that, in accordance with the provisions of the Government Emergency Ordinance no.79/2002, any person who is a provider of electronic communications networks and a provider of publicly available electronic communications services and/or of postal services has the obligation to pay, since the moment of gaining the capacity as a provider and until the termination of such capacity, the annual monitoring tariff calculated as a percentage of the turnover or of the revenues resulted from the provision of electronic communications networks and services or from the provision of postal services, registered during the previous year, based on the choice made by each provider.
3. Calculation of the annual monitoring tariff
The annual monitoring tariff represents a percentage of the turnover or of the revenue achieved from the provision of electronic communications networks and services and/or from the provision of postal services, based on the choice made by each provider.
Following the amendments brought by Law no.133/2007 regarding the approval of the Government Emergency Ordinance no.70/2006 on the amendment and completion of certain normative acts in the fields of electronic communications and of postal services, the percentage applied, as the case may be, to the turnover achieved by each provider of electronic communications networks and the provider of publicly available electronic communications services and/or of postal services during the previous year or to the revenues resulted from the provision of electronic communications networks and services and/or from the provision of postal services may not exceed 0.4%, as a ratio between:
– the expenses listed in the income and expenditure budget of ANRCTI approved in compliance with art.42, form which the incomes form other sources shall be deducted; and
– the cumulated turnover of the providers of electronic communications networks and providers of publicly available electronic communications services and/or postal services providers who owe the annual monitoring tariff
The annual monitoring tariff owed by each provider shall be set out as a result of the multiplication of:
– the percentage determined according to the provisions mentioned above, by
– the turnover/the revenues obtained from the provision of electronic communications networks or services and/or from the provision of postal services of the respective provider.
In view of enforcing the legal provisions regarding the annual monitoring tariff, the turnover of the persons who were providers of electronic communications networks and providers of publicly available electronic communications services and/or of postal services during a whole calendar year “shall be the one mentioned in the financial statements drawn for the year prior to that for which the monitoring tariff is due.” The turnover of the persons who were not providers of electronic communications networks and providers of publicly available electronic communications services and/or of postal services during a whole calendar year “shall be calculated by cumulating the revenues achieved during the months of the year prior to that for which the monitoring tariff is due, during which the respective persons have had the capacity of a provider, by taking into consideration also the month when they gained this capacity and not taking into account the months when such capacity has been terminated.”
The providers who chose that their monitoring tariff be determined based on the revenue obtained from the provision of electronic communications networks or services, according to the provisions of art.485 paragraph (2) of the Government Emergency Ordinance no.79/2002, must keep separated accounts for the revenues obtained from the provision of electronic communications networks or services and/or from the provision of postal services.
4. Documents necessary in order to determine the monitoring tariff
According to the provisions of art.486 paragraphs (1)-(3) of the Government Emergency Ordinance no.79/2002, “Art.486. – (1) The legal persons having the capacity of an undertaking mentioned under art.481 paragraphs (2) and (3), shall have the obligation to submit to ANRC the annual financial statements – that contain the turnovers within the profit and loss account – necessary for the establishment of the monitoring tariff, within 5 days after the expiry of the legal deadline for submitting them to the territorial units of the Ministry of Public Finances.
(2) The natural persons and the family associations who owe the monitoring tariff mentioned under art.481 shall have the obligation to submit to ANRC the annual financial statements on the achieved gross revenues, necessary for the establishment of the monitoring tariff, within 5 days after the expiry of the legal deadline for submitting them to the territorial units of the Ministry of Public Finances.
(3) In case of other categories of persons than those under paragraphs (1) and (2), who have the capacity of a provider, the documents that are necessary for the establishment of the monitoring tariff and the deadline for their submission to ANRC shall be set out by decision of the president of ANRC.”
A person’s failure to send complete and accurate financial statements within the term provided by the Government Emergency Ordinance no.79/2002, under art.486 paragraphs (1)-(2), shall be considered a contravention, according to the provisions of art.55 paragraph (1) letter h1) of the Government Emergency Ordinance no.79/2002 and shall be sanctioned by a fine amounting from RON 5,000 to RON 10,000, in the case of companies with a turnover smaller than 5 million RON, whereas the companies with a turnover higher than 5 million RON – by way of exception from the provisions of the Government Ordinance no.2/2001 on the legal status of contraventions, approved, with amendments and completions by Law no.180/2002, with the subsequent amendments, shall be sanctioned by a fine amounting to maximum 2% of its turnover. In case of repeated breaches, for the companies with a turnover higher than 5 million RON, the fine shall amount to maximum 5% of its turnover.
For the providers of electronic communications networks and providers of publicly available electronic communications services and/or the providers of postal services who chose that their monitoring tariff be calculated based on the revenues obtained from the provision of electronic communications networks and services and/or from the provision of postal services, the manner of exercising their right of choice, as well as the documents to be transmitted to ANRCTI for the purpose of determining this tariff are regulated by the ANRC President’s Decision no..113/2006 on the procedure of exercising the right of choice regarding the calculation of the financial obligations to be paid to the National Regulatory Authority for Communications and the separated accounts conducted by the providers of electronic communications networks or services and by the providers of postal services.
This category of providers, according to the provisions of art.4 paragraph (5) of the ANRC President’s Decision no.113/2006 „will draw up and send ANRC, once with the annual financial statements, a Statement on the revenues obtained from the provision of electronic communications networks or services and/or of postal services and the Consolidated report on the monthly statements regarding the revenues obtained from the provision of electronic communications networks or services and/or of postal services, within 5 days from the expiry of the term for submitting the annual financial statements to the territorial offices of the Ministry of Public Finance”.
By way of exception from the above mentioned provisions, in view of the calculation of the monitoring tariff for the year 2006, the providers of electronic communications networks or services will send ANRCTI – once with the annual financial statements – only the Statement on the revenues obtained from the provision of electronic communications networks or services and/or of postal services for the year 2005 and the synthetic check balance as of December 31, 2005.
Failure to send the Statement on the revenues obtained from the provision of electronic communications networks or services and/or of postal services and the Consolidated report on the monthly statements regarding the revenues obtained from the provision of electronic communications networks or services and/or from the provision of postal services, according to the provisions of art.4 paragraph (8) of the ANRC President’s Decision no.118/2006, shall result into the calculation of the financial obligations to ANRCTI based on the whole turnover.
5. Payment of the annual monitoring tariff
The Government Emergency Ordinance no.70/2006, approved with amendments and completions by Law no.133/2007, brought another amendment related to the calculation of the estimated monitoring tariff for the following year. So far, ANRCTI calculated the estimated monitoring tariff and then regularized the amounts of the final monitoring tariff for the previous year. But, at present, ANRCTI establishes by decision the annual monitoring tariff due by each provider of electronic communications networks and each provider of publicly available of electronic communications services and/or of postal services, by the date of determining the cumulated turnover, but no later than 15th September of the respective year. The decision of calculating the monitoring tariff represents a writ of execution and shall be communicated in written form to each provider.
Furthermore, also following the amendments brought by the Government Emergency Ordinance no.70/2006, approved with amendments and completions by Law no.133/2007, any person who is a provider of electronic communications networks and a provider of publicly available electronic communications services and/or of postal services is obliged to carry out anticipated payments related to the annual monitoring tariff. The amount of the anticipated payments is established, by decision of the ANRCTI President, no later than 15th February and are paid in two instalments, as follows:
– 30% of the monitoring tariff due for the previous year, no later than 15th March of that year;
– 30% of the monitoring tariff due for the previous year, no later than 15th June of that year.
The anticipated payments are established based on the annual monitoring tariff, under the terms provided by art.482 paragraph (2) of the Government Emergency Ordinance no.79/2002 for the previous year, without taking into account the anticipated payments made during that year. “The difference between the annual monitoring tariff established and the anticipated payments established in compliance with paragraph (1) shall be paid within 30 days after the decision of the president of ANRC, provided under art.482 paragraph (2), is communicated or shall be returned in compliance with the Fiscal Code procedure, as the case may be.”
Payment of the annual monitoring tariff, as well as of the anticipated payments shall be performed by banking discount, money order or cash, in accordance with the provisions of the Government Ordinance no.15/1996 on consolidating the financial-currency discipline, approved, with amendments and completions, by Law no.131/1996, with the subsequent amendments and completions. The payment date of the annual monitoring tariff or of the anticipated payments shall be considered the date of debiting the bank account of the paying provider or the date specified in the payment confirmation issued by the competent bodies, as the case may be. Payment shall be proved by a copy of the payment order certified by the bank performing the payment transaction or by a copy of the payment confirmation issued by ANRCTI, as the case may be.
ANRCTI manages the monitoring tariff owed by the providers of networks and providers of publicly available electronic communications services and/or of postal services, enforcing correspondingly the provisions of the Government Ordinance no.92/2003 regarding the Fiscal Code procedure, republished.
As well, the Government Emergency Ordinance no.70/2006, approved with amendments and completions by Law no.133/2007 reintroduced the obligation of paying the monitoring tariff due when ceasing the activity in the fields of electronic communications networks and services and/or of postal services. Thus, upon the cessation of the capacity of a provider, regardless of the form of this cessation, any provider of electronic communications networks, of publicly available electronic communications services and/or of postal services shall pay a monitoring tariff calculated as follows:
– in case the cessation of the capacity of a provider occurs before the setting out of the annual monitoring tariff in compliance with article art.482 paragraph (2) of the Government Emergency Ordinance no.79/2002, the monitoring tariff to be paid by the provider shall be the multiplication of the percentage established by ANRC in accordance with art.481 paragraph (4) of the Government Emergency Ordinance no.79/2002 for the previous year by the turnover achieved during the previous year or during the months of the previous year when he had the capacity of a provider, cumulated with the turnover achieved by that provider during the months of the year when the cessation occurs and during which he had this capacity;
– in case the cessation of the capacity of a provider occurs after the setting out of the annual monitoring tariff in compliance with art.482 paragraph (2) of the Government Emergency Ordinance no.79/2002, in addition to this tariff, the provider shall pay a supplementary tariff, calculated as the multiplication of the percentage established by ANRC under art.481 paragraph (4) of the Government Emergency Ordinance no.79/2002 for the current year by the turnover achieved during the months of the year when the cessation occurs and during which he had this capacity.
Once their capacity as a provider of electronic communications networks, as a providers of publicly available electronic communications services and/or as a provider of postal services ceases, the persons owing the monitoring tariff upon the cessation of activity in the fields of electronic communications and/or of postal services shall have the obligation to transmit to ANRC a report on the turnover achieved during the previous year or during the months of the previous year when he had the capacity of a provider, cumulated with the turnover achieved during the months of the year when the cessation occurs and during which he had this capacity or, respectively, related to the turnover achieved during the months of the year when the cessation occurs and during which he had this capacity, under the conditions set out by ANRC.
The monitoring tariff owed upon the cessation of activity in the fields of electronic communications networks and services and/or of postal services is established by decision of the ANRCTI President, within 7 days from the receipt of the above mentioned documents. Should the persons mentioned under paragraph (1) not communicate to ANRCTI the documents, once the capacity of a provider ceases, until these are transmitted, ANRCTI shall impose on these persons the obligation to pay the monitoring tariff as if the capacity of a provider would not have ceased.
The persons who gained the capacity of a provider of electronic communications networks or services or of postal services during the same year when this capacity ceases shall owe a monitoring tariff equal to the multiplication of the percentage mentioned under art.483 paragraph (1) letter a) or under paragraph (1) letter b), as the case may be, by the turnover achieved during the months when he had this capacity.
As well, following another amendment brought by the Government Emergency Ordinance no.70/2006, approved with amendments and completions by Law no.133/2007, the providers of electronic communications networks and the providers of publicly available electronic communications services and/or of postal services which register a turnover which does not exceed the equivalent in RON of 100,000 euros, at the average exchange rate of the period when the turnover was achieved, calculated based on average monthly exchange rate communicated by the National Romanian Bank, do not have the obligation to pay the monitoring tariff.