¿Es compatible el canon concesional de un servicio público con tasas exigidas por usos de dominio público relacionadas con el objeto de una concesión administrativa?

Resumo

When administrative concessions are granted (whether for works or services), a concession fee is usually charged, which is in the nature of a tax for the use of the transferred public domain. It is, however, debatable whether other taxes can also be levied for private use or special use of public property which, although not assigned by the public contract, can be considered to a large extent to be inherent to the assignment of the public domain for which the concession fee was charged. In this regard, it is necessary to take into consideration whether, on the one hand, the public concession contract itself has expressly exempted such taxes or whether the public domain for which the tax is charged has been specifically identified as inherent to the administrative concession itself; or, on the contrary, nothing has been indicated in this regard in the concession agreement. In the latter case, the quantification of the tax may be relevant in order to consider the assignment of the public domain other than the one identified as the object of the concession and the consequent collection of additional taxes to the concession fee. It is also relevant, in relation to the above, to investigate whether there is any type of legal limitation with respect to the determination of certain fees or particular tax exemptions for a very long period of time and longer, in any case, than the 4-year term of office that local assemblies usually have. The paper refers to the jurisprudence that has dealt with such issues in recent years and reflects on the consistency of the same or on whether, eventually, it can be considered that there has been a change of doctrine in this regard with the judgment of the Supreme Court of 15 February 2021