Regime of access to and provision of postal services under a full competition regime

Law No 17/2012, of 26 April

Law No 17/2012, of 26 April, lays down the legal regime that governs the provision of postal services, under a full competition regime, on national territory, as well as of international services to or from national territory, transposing to the national legal system Directive 2008/6/EC of the European Parliament and of the Council, of 20 February 2008.

This law lays down a system of individual license applying to postal services covered by the scope of the universal service, while the provision of other postal services remains subject to the regime of general authorization.

1. Licenses

The following postal services, of a national and international scope, including registered items and insured items, require a license:

a) The service for postal items, excluding direct mail.

b) The service for books, catalogues, newspapers and other periodicals up to 2 Kgs.

c) The service for postal parcels.

The following bodies may hold licenses:

• Natural persons who have opened their activity at the finance services.
   
• Legally constituted legal persons, with principal or secondary establishment in the national territory, whose corporate purpose includes the provision of postal services.
   
• Legally constituted postal service providers established in a Member State of the European Union or of the European Economic Area who wish to provide those services on national territory.

1.1. Particulars to be attached to the license application

Interested parties who wish to obtain a license must submit an application attaching the following particulars:

a) Elements enabling a full identification:

• In the case of natural persons, a simple copy of the identification document and evidence that their activity has been opened at the finance services.
   
• In the case of legal persons, the access code to the permanent certificate or a simple extract of the respective entry in the commercial register, with the indication of the identification number of the legal person.
   
• In the case of a body legally established outside the national territory, a copy of the documents issued by competent authorities of the country of origin. Commercial companies that do not have their head-office in Portugal, however pursue in this country their activity under the freedom to provide services, according to provisions of Decree-Law No 92/2010, of 26 July, are not under the obligation to establish a permanent representation in Portugal, as provided for in article 4 of the Code of Commercial Companies.

b) Description of activities already pursued in the scope of postal services, where appropriate.

c) Information on agreements concluded or to be concluded with third parties for the provision of the intended postal service.

d) Description of the project to be implemented, namely the nature, characteristics of the service and covered areas, postal network over which they operate, levels of quality of service to be ensured and measures expected to be implemented to ensure the operation, reliability and quality of the postal service.

e) Date on which the activity is expected to start.

f) Information on the technical and human capacity required to guarantee compliance with the essential requirements provided for in article 7, specifically:

• The inviolability and secrecy of postal items, subject to the restrictions and exceptions provided for in criminal law and other applicable legislation.
   
• The security of the postal network, namely as regards the transport of dangerous goods.
   
• The confidentiality of information transmitted or stored.
   
• Protection of personal data and of privacy.
   
• Environmental protection and regional planning.
   
• Respect for the terms and conditions of employment and for social security schemes, laid down by law, regulation, administrative provision and by collective work agreement.

The communication may be delivered at Public Attendance Services, sent by post to the head-office or delegations of ICP-ANACOMhttp://www.anacom.pt/render.jsp?categoryId=282676, or by email to info@anacom.ptmailto:info@anacom.pt.

ANACOM’s website and the “Portal do Empreendedor” will make soon available a form to be filled in by interested parties who wish to obtain a license. Until this form is provided, applications do not follow a specific model.

1.2. Procedure

After receiving the application ANACOM must:

• Notify the applicant that the application has been received, providing information on the deadline for the issue of a final decision, the effects resulting from the failure to issue a final decision by that deadline and applicable means of administrative reaction.
   
• Verify whether the application attaches all required particulars and, if not, request the necessary additional documents.
   
• Request, in a substantiated manner, the necessary clarifications on elements submitted by the applicant.

The licensing application must be decided within at the most 40 days from the date it is received by ANACOM, after which a document certifying the tacit approval of the application is automatically issued.

The 40-day period is suspended until ANACOM receives the particulars requested to the applicant, when the application fails to attach all required particulars or clarifications on particulars submitted have been requested.

The application must be rejected in case:

• The applicant fails to observe the imposed requirements.
   
• The applicant is suspended or prevented from pursuing the respective activity further to the imposition of a penalty by ANACOM.
   
• The applicant is a company that directly or indirectly holds a share in, controls, is a subsidiary of or is controlled by a natural or legal person in the situation referred to in the preceding point.

2. General authorization

The following postal services, of a national and international scope, including registered items and insured items, are subject to the general authorization regime:

a) Direct mail postal services.

b) The service for books, catalogues, newspapers and other periodicals exceeding to 2 Kgs.

c) Other present or future services that fulfil the definition of postal service and that, for being added value services, are not covered by the definition of universal service, namely those which may be provided due to the technological evolution and that differ from traditional services. Among other, the following services fall within this category:

i. Operation of document exchange centres;

ii. Express mail services (courier) characterized by the clearance, sorting, transport and distribution of postal items with an increased promptness, differing from regular postal services for a set of additional characteristics, such as:

• Predefined delivery deadlines.
   
• Registered postal items.
   
• Guarantee of provider liability, by means of insurance through which the sender is previously aware of how he may be compensated of damages suffered.
   
• Tracking and tracing of postal items along the provider’s operational circuit, allowing the identification of the delivery status and the provision of information to the customer.

The following bodies may provide postal services subject to a general authorization regime:

• Natural persons who have opened their activity at the finance services.
   
• Legally constituted legal persons, with principal or secondary establishment in the national territory, whose corporate purpose includes the provision of postal services.
   
• Legally constituted postal service providers established in a Member State of the European Union or of the European Economic Area who wish to provide those services on national territory.

2.1. Particulars to be attached to the prior communication to ANACOM

Bodies who wish to provide postal services subject to the general authorization regime must give advance notice to ANACOM of the following particulars:

a) Elements enabling a full identification:

i. In the case of natural persons, a simple copy of the identification document and evidence that their activity has been opened at the finance services.

ii. In the case of legal persons, the access code to the permanent certificate or a simple extract of the respective entry in the commercial register, with the indication of the identification number of the legal person.

iii. In the case of a body legally established outside the national territory, a copy of the documents issued by competent authorities of the country of origin. Commercial companies that do not have their head-office in Portugal, however pursue in this country their activities under the freedom to provide services, according to provisions of Decree-Law No 92/2010, of 26 July, are not under the obligation to establish a permanent representation in Portugal, as provided for in article 4 of the Code of Commercial Companies.

b) Description of the service they intend to provide.

c) Geographic area of action.

d) Postal network over which they operate.

e) Date on which the activity is expected to start.

f) Intention to establish themselves in Portugal, in case they do not wish to pursue their activity under a regime of free provision of services in this country.

The communication may be delivered at Public Attendance Services, sent by post to the head-office or delegations of ICP-ANACOMhttp://www.anacom.pt/render.jsp?categoryId=282676, or by email to info@anacom.ptmailto:info@anacom.pt.

ANACOM’s website and the “Portal do Empreendedor” will make soon available a form to be filled in by interested parties who wish to obtain a license. Until this form is provided, applications do not follow a specific model.

3. Decision

After the communication has been made, bodies must obtain proof of the fact, by means of any legally recognised postal or electronic acknowledgement of receipt.

After the communication has been submitted, attaching all due particulars, notifying bodies may start operating immediately.

Postal services under the general authorization regime may not be provided by notifying bodies that:

• Are suspended or prevented from pursuing the respective activity further to the imposition of a penalty by ANACOM.
   
• Are companies that directly or indirectly hold a share in, control, are a subsidiary of or are controlled by a natural or legal person in the situation referred to in the preceding point.

ANACOM must issue a statement certifying the entry of the notifying body in the register of postal service providers within 10 consecutive days from reception of the respective communication.