The door to knock down the old ‘RTVE Tax’ by legal means was closed by the Constitutional Court. But the telecommunications operators do not give up and grab the last cartridge: reduce the million-dollar bill paid from 2009 to 2021. part of the income generated by third-party channels that were included in their pay television offer and those that did not have direct editorial responsibility.
The so-called ‘RTVE rate’ is a tax figure with which the operation of public broadcasting has been financed since the entry into force of the new law in 2009. Telecos pay in two ways: as a provider of audiovisual services, through their pay-TV platforms, and as telcos, based on their global revenue. The companies presented a cascade of resources. In the Central Economic Administrative Court, dependent on the Tax Agency; in the National Court; in the TJUE, or in the Constitutional Court. The chances of being able to outlaw this figure are fading. But there was a loophole, at least, to lower the cost.
Vodafone received one of the many ‘doors slammed’ by the National Court -in whose Litigation Chamber there was a certain division- that clearly supported the position of the Treasury. It was in May 2022 when this sentence of the AN was issued. The magistrates endorsed the TEAC’s arguments insisting that the operators, whether or not they have editorial responsibility for all the television channels they broadcast, are cable television service providers and as such are subject to the contribution.
The company argued that a relevant question had not been resolved: whether the income generated in channels “whose editorial responsibility corresponds to third parties” should be included in the tax base. The Court rejected that possibility. It was time to go to the supreme. The High Court understands that there is an interest in establishing jurisprudence on the part of its magistrates. He believes that it is necessary to put black on white on those cases in which a teleco assumes a double role: dissemination of other people’s products and audiovisual content for which it does hold direct authorship. Because they charge a single amount for both services, it is not clear if they should integrate all the income for both types or only those over which they have control in the content that is broadcast.
From the Contentious Chamber they insist that the law does not fully clarify the element of editorial responsibility for the purposes of considering an audiovisual communication service when it comes to payment services, as reflected in the admission order dated at the end of March and consulted by La Información. It refers to the jurisprudence of the Superior Court of Justice of the EU (CJEU) on these concepts that also generate certain doubts.
The TS defends that the doctrine can be projected to other cases of Vodafone and others referring to liquidations between 2009 and 2021 that totaled more than 1,500 million
It is not clear how the economy can affect the large companies in the sector. It must be remembered that the new audiovisual law approved in 2022 by the Government of Pedro Sánchez and which came into force in its entirety this year 2023 eliminates the 0.9% exceptionally required of operators in addition to the income generated by television that now they are on the table of the Supreme – that money is collected from the spectrum rate paid by the main groups with frequencies.
relevant doctrine
The High Court insists that despite the changes, it considers that the doctrine that is set “is likely to be projected to other cases of the same and other operators and multiples during periods prior to the modification” that comes into force now. Obviously, if it is finally considered that these channels are not included in the tax base, the reduction in the bill would be significant. It is estimated by the sector that more than 1,500 million euros have been paid for this concept in recent years – an average of between 100 and 130 million a year among all the actors.
This is called to be the last judicial chapter of this rate, after years of a long journey. As the Supreme Court acknowledges in its order, they themselves ruled in 2017 in two sentences -referring to a handful of appeals- on different grounds for challenge claimed by the operators. They closed the door. Then the question of unconstitutionality was analyzed, which was on the table of the Constitutional Court on two occasions and ended up being rejected. It was also analyzed by the CJEU if it did not comply with European regulations and it was also shelved.
