The Council of State rejected the advertisers' request for the abolition of the internet levy in favour of EDOEP

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CoE A' 7m. 1477/2022

President. Sp. Chrisikopoulou, Vice President of the CoE

Presenter: Ant. Antti Ziabaras, President of the CoE

 

Internet contribution 2% for the benefit of EDOEP. Inadmissible as an application by the Association of Advertising Companies for the annulment of the 11/2018 Circular and other response - information documents of EDOEPP.

With the decision of the Council of State A' 7m. 1477/2022, which was issued on the application of the Union of Advertising and Communication Companies of Greece (EDEE) for the annulment of the 11/2018 Circular and other documents of EDOEP related to the internet contribution 2% (para. 1 of article 6 of Law no. 248/1967, as replaced by para. 2 of Article 24 of Law no. 4498/2017), the following was held:

I. The special internet levy is payable by the recipients of advertising or promotion services or, in general, the promotion of sales of products or the provision of services carried out exclusively or primarily via the internet, provided that they have their residence or registered office in Greece. In particular, within the meaning of the provisions of par. 1(f) and 2(e) of Article 6 of Law No. 248/1967, as those paragraphs were replaced, respectively, by paras. 2 and 3 of Article 24 of Law No. 4498/2017, and Articles 23 and 24 of the Revenue Collection Regulation of the EDEAP, advertisers or advertisers exclusively or primarily through the Internet are obliged, if they have their residence or registered office in Greece, to pay to the E.D.O.E.E.A.P., which is calculated on the fee they pay to the online advertising service provider, regardless of whether the provider is domiciled or based in Greece or abroad. Advertising or promotion shall be understood as advertising or promotion within the meaning of paragraph f of par. 1 of Article 6 of Law no. 248/1967, not any communication that takes place on the internet for a fee, but only that which takes place in the context of commercial, industrial, craft, business or other generally professional activity and which is intended to promote the sale of products or the provision of services. Moreover, that contribution is payable to the E.D.O.E.A.P. by the recipient of the advertising services only if the internet service provider of those services is not an undertaking or an operator of an information or entertainment medium (media) operating in Greece. In the opposite case, i.e. if the online provider of the advertising services is a mass media and entertainment medium (media) operating in Greece, the media enterprise shall pay the fee provided for in subparagraph b of para. 1 of Article 6 of the a.n. 248/1967, the additional employer's contribution of 2% on its turnover and not (and not) the special contribution under point (f) of paragraph (f) of Article 6(1)(b) of Article 6(1)(a) of Law No. 248/1967. 1 of that article.

II. The contested Circular, as is apparent from its entire content, is a simple informative - interpretative circular of the E.D.O.E.E.A.P., which clarifies to those concerned the scope of those liable to pay the internet levy and the scope of application of the provision and provides explanations for its correct and uniform application. Consequently, it is not enforceable and is unduly affected by the application for annulment. The EDPS also submits that the circular contains new regulatory provisions. Likewise, the other contested documents of the Hellenic Advertising Standards Authority are purely informative - informative in nature, since the Agency clarifies to the addressees of the documents (the Association of Advertising Companies, the Greek Advertising Association and the Hellenic Chamber of Hotels) the meaning and scope of the provision in paragraph (f) of Article 5(1) of the Directive. 1 of Article 6 of Law No. 248/1967 and explains to them, also on the basis of examples, how the contribution is calculated. Consequently, they are not enforceable and are inadmissibly affected by the application for annulment. It is also incorrect to claim that the documents in question introduce rules which are contrary to the provisions of Law No 248/78. 4498/2017 and therefore have a regulatory content.

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