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Administrative Rule no. 829/2010, of 31 August31.08.2010
Published in D.R. number 169 (Series I) of 31 August 2010
Ministério da Agricultura, do Desenvolvimento Rural e das Pescas (Ministry of Agriculture, Rural Development and Fisheries)
Being broadband connectivity an essential element for the development, adoption and use of information and communication technologies (ICT) in the economy and in society, it is strategically important to make it available to citizens in rural areas, as it is capable of making rural areas more attractive, halting the trend for an economic and social decline, as well as the desertification of those areas.
Next Generation Broadband Networks are capable of providing broadband access services with improved characteristics, such as a higher speed, compared to that provided by current copper networks. In addition, these networks enable free access by users to competing networks and services at their choice and support general mobility.
Technological development and innovation are powerful tools for the promotion of economic and social development. Investments such as Next Generation Broadband Networks have a spread territorial nature and, ensuring the best communications, have important repercussions in the effectiveness of economy and economic agents, across the several industries, thus significantly contributing towards stimulating the country’s development, on account of the relevant impact in business dynamics and creation of jobs.
The deployment of next generation broadband networks in rural areas will thus contribute to the provision of equal opportunities to all citizens, being a crucial factor in the promotion of e-inclusion and enhancement of human capital, contributing also for the appearance of externalities in the rural development policy, in the long term, at the level of job offers, growth, competitiveness and sustainability of industries established in these regions.
Studies on this issue generally agree that two of the main critical factors for the business viability of next generation broadband networks investment projects are the population density - cost driver - and income per capita - income potential driver.
Costs of deploying next generation broadband networks in rural areas are extremely heavy, compared to those in urban and suburban areas, especially on account of the need for local loops of greater length together with a wider dispersion of the population.
These factors, in articulation with income per capita which, as a general rule, are lower than those in urban and suburban areas, together with the existence of older populations, which typically are less willing to accept innovative services, and with a lower degree of competition, with a likely repercussion at the level of prices, tend to condition the viability of the deployment and operation of Next Generation Networks, in rural areas, at market conditions.
The criteria thus defined for identifying municipalities covered by this intervention allows the State’s initiative to focus only in crucial areas, ensuring that next generation broadband networks are deployed and operated in rural areas, clearly accelerating the investment cycle and filling gaps which would arise in the absence of public supports in these areas.
Therefore, the Government, through the Minister of Agriculture, Rural Development and Fisheries, pursuant to article 4 of Decree-Law number 37-A/2008, of 5 March, as amended by Decree-Law number 66/2009, of 20 March, and by Decree-Law number 69/2010, of 16 June, hereby orders as follows:
Regulation Implementing Measure No 3.6, ''Deployment of Next Generation Broadband Networks in Rural Areas'', integrated in Subprogram No 3, ''Dynimizing Rural Areas'', of the Programme for the Rural Development of Mainland Portugal, PRODER for short, is hereby approved in the annex to this Regulation, which is deemed to be an inherent part hereof.
The Regulation referred to in article 1 comprises two annexes, deemed to be inherent parts thereof, concerning the geographical area of application and eligible expenditure.
This Administrative Rule takes effect on the day following that of its publication.
The Minister of Agriculture, Rural Development and Fisheries, António Manuel Soares Serrano, on 23 August 2010.
REGULATION IMPLEMENTING MEASURE NO 3.6, «DEPLOYMENT OF NEXT GENERATION BROADBAND NETWORKS IN RURAL AREAS»
This Regulation lays down the regime implementing measure No 3.6, ''Deployment of Next Generation Broadband Networks in Rural Areas'', integrated in Subprogram No 3, ''Dynimizing Rural Areas'', of the Programme for the Rural Development of Mainland Portugal, hereinafter referred as PRODER for short.
Support provided for herein aims at making the deployment of next generation broadband networks in rural areas a reality, and pursues the following objectives:
a) Provision of access to next generation broadband services to rural populations and economic agents;
b) Increase of business competitiveness and creation of jobs in rural areas, through the provision of innovative services, supported in next generation broadband networks;
c) Contribution to the social and economic development of rural areas;
d) Fight against e-exclusion.
Geographical area of application
This Regulation applies to municipalities indicated in annex i.
For the purposes hereof, and in addition to definitions in Decree-Law number 37-A/2008, of 5 March, the following definitions shall apply:
a) ''Investment plan'' shall mean the duly scheduled set of actions and resources that aims to deploy the co-financed project within the established time frame;
b) ''High-speed network'' shall mean the high-speed electronic communications network to be set up, managed, operated and maintained in rural areas, constituted, among other elements, by acquired, installed or built movable property which are essential for the proper development of activities referred to in the application for support, especially all works, installations, equipment, liabilities and assets, equipment and respective accessories used to ensure that the network is made operational, supervised and maintained, save where it is expressly excluded by law or appropriate legal right;
c) ''Termination of the operation'' shall mean the year on which the operation is concluded, as established in the financing contract.
Natural or legal persons who are successful tenderers of international public procurement for the set up, management, operation and maintenance of high-speed electronic communications networks in rural areas may apply for support as provided for herein.
Eligibility criteria for beneficiaries
To apply for support provided for herein, applicants shall meet the following requirements:
a) They shall have been legally established;
b) They shall be successful tenderers of international public procurement for the set up, management, operation and maintenance of high-speed electronic communications networks in the area covered by the project;
c) They shall comply with all legal conditions required for pursuing the respective activity, namely with their licensing issues.
Eligibility criteria for operations
To apply for support provided for herein, investment projects for the set up of high-speed electronic communications networks shall meet the following requirements:
a) They shall include an investment plan, together with the application for support, the deadline for implementation of which shall not exceed the duration of PRODER;
b) They shall be consistent with commitments undertaken by the applicant, as successful tenderer of international public procurement for the set up, management, operation and maintenance of high-speed electronic communications networks in the area under consideration;
c) The shall comply with legal provisions that apply to proposed investments, namely as far as licensing issues are concerned;
d) They shall present reasonable investment costs.
1 - Eligible expenditure shall be that set out in annex ii to this Regulation.
2 - Costs incurred as from the date on which the contract for the set up, management, operation and maintenance of high-speed electronic communications networks is concluded shall be eligible.
Obligations of beneficiaries
Beneficiaries of support provided for herein shall meet the following obligations, in addition to those provided for in Decree-Law number 37-A/2008:
a) To implement the operation under the terms and within the time limits set in the financing contract;
b) To comply with public procurement legal provisions relatively to the implementation of operations;
c) To publish financial support allocated, pursuant to applicable Community or national law and PRODER technical guidelines;
d) To comply with legal obligations, namely tax and social security requirements;
e) To comply with applicable legal obligations as regards occupational health and safety matters;
f) To maintain the activity and legal conditions required for engaging in such activities until the termination of the operation;
g) To communicate to PRODER’s managing authority, hereinafter referred to as managing authority, any relevant alterations or events which may jeopardise assumptions based on which the application for support was approved;
h) To leave a clear trail, at any time, for all economic and financial movements relating to the operation, using off-balance sheet accounts or a cost accounting methodology, or any other accounting breakdown method allowing for the separation of operation transfers and other accounting movements;
i) To keep duly organized, for three years after the closing date of PRODER, all original records which support information and remarks made in the scope of the application for support, on which presented investment options were based, as well as documentation supporting management of the expenditure, for consultation at any time by bodies concerned in the analysis, monitoring and control of operations;
j) To ensure that all cash payments and receipts relatively to the operation take place through a bank account opened specifically to this effect;
l) To guarantee the management, operation and maintenance of infrastructures after the completion of the work in the terms of the international public procurement contract;
m) To maintain up-to-date accounting records according to specifications of the Accounting Standard System.
Form and level of support
1 - Support shall be granted as non-reimbursable subsidy.
2 - The support rate shall be established in a Commission decision on State support for the set up, management, operation and maintenance of high-speed electronic communications networks in rural areas.
Types of supported operations
Support provided for in this Regulation may granted to operations for the set up of high-speed electronic communications networks in rural areas, namely:
a) Set up of infrastructures for next generation broadband network and respective access, including means of transmission (backhaul), POPs (point of presence) and equipment;
b) Set up of broadband telecommunications equipment, hardware and software and control and monitoring systems;
c) Set up of passive infrastructures for next generation broadband networks, such as civil engineering works, like ducts and masts, and other network elements like dark fibre and passive equipment, in synergy with other infrastructures, power, transports, water, sewerage networks, among others, or improvement of existing broadband infrastructure.
Criteria for selecting applications for support
Support provided for herein may be granted to applications for support that fall under categories referred to in the preceding article, insofar as they are submitted by successful tenderers referred to in point c) of article 6, and comply with eligibility criteria set out in this Regulation.
Submission of applications for support
1 - Applications for support shall be submitted within certain time periods, under paragraph 2 a) of article 6 of Decree-Law number 37-A/208, of 5 March, the opening of which shall be disclosed by the managing authority 10 consecutive days ahead of the submission start date.
2 - Applications for support shall be submitted in an online form available at PRODER’s website, www.proder.pthttp://www.proder.pt, and are subject to online confirmation, the date on which the application is sent being deemed as the date of submission of the support application.
3 - Applications for support shall attach an opinion from the Ministry of Public Works, Transport and Communications that guarantees that the investment plan is consistent with commitments undertaken by the applicant as successful tenderer of international public procurement for the set up, management, operation and maintenance of high-speed electronic communications networks in the area under consideration, and that technical solutions are appropriate for the purpose.
1 - Notices of submission periods shall be approved by the manager, after hearing the managing committee, presenting the following information:
a) Purposes to be achieved;
b) Types of operations to be supported;
c) Eligible geographical area;
d) Deadline for submitting applications for support;
e) Budgetary envelope to be granted;
f) Form and level of support to be granted, in compliance with article 10.
2 - Notices of periods for submitting applications for support shall be disclosed at www.proder.pthttp://www.proder.pt and published in two media bodies.
Analysis and decision on applications for support
1 - The technical secretariat of the managing authority, hereinafter referred to as technical secretariat, shall analyse and provide an opinion on applications for support, which shall include an assessment of compliance by the beneficiary and the operation with eligibility criteria, the checking of selection criteria, calculation of total eligible costs and projected level of support.
2 - Where appropriate, applicants shall be requested to submit required or additional elements, failure to do so or to reply constituting grounds for rejection of the application.
3- For the purposes of the technical analysis, a binding opinion shall be issued by the Ministry of Public Works, Transport and Communications, from whom other expert opinions may be requested as appropriate.
4 - Applications for support shall be decided by the manager, after hearing the managing commission.
1 - The grant of support shall be formalised by written contract between the beneficiary and IFAP, I.P.
2 - IFAP, I.P., shall send the financing contract to the beneficiary within 10 working days from the date of notification of the manager's approval decision, and the beneficiary shall duly sign and return it within 20 working days, otherwise the right to conclude the contract shall be cancelled, under paragraph 6 of article 10 of Decree-Law number 37-A/2008, of 5 March.
Implementation of operations
1 - Beneficiaries shall start the physical implementation of operations within at the most six months from the date on which the financing contract was signed, and conclude it on the date set out in the investment plan, not exceeding the duration of PRODER.
2 - In exceptional and duly substantiated situations, the managing authority may authorize the extension of time-limits set out in the preceding paragraph.
Changes in the project
1 - Changes in the project can be made by submitting an application for changes, in exceptional situations, namely suspension of works, change in the implementation schedule or alteration of implementation conditions.
2 - Applications for changes shall be formalised by submitting a substantiated notice to the technical secretariat, providing a summary of requested changes and detailed information on the respective grounds.
3 - Applications for changes shall attach an opinion from the Ministry of Public Works, Transport and Communications.
Submission of payment claims
1 - Payment claims shall be submitted in an online form available at the website of IFAP, I.P., www.ifap.pthttp://www.ifap.pt, and are subject to online confirmation, the date on which the application is sent being deemed as the date of submission of the payment claim.
2 - The payment claim concerns expenditure actually incurred and paid, supporting documents related to expenditure being presented to the technical secretariat within 5 working days, together where appropriate with documentation concerning the procedure referred to in article 9b) and an opinion by the Ministry of Public Works, Transport and Communications, certifying that the declaration of the expenditure under consideration corresponds to the contractual investment made.
3 - Only payment claims regarding expenditure incurred by bank transfer, account debit or check shall be accepted, insofar as they are certified by the respective bank statement, under contractual clauses and the following paragraphs.
4 - Claims for advance payment on investment amounts may be submitted, where provided for in the financing contract, by furnishing a security corresponding to 110% of the advance payment sum.
5 - Payment shall be proportional to the eligible investment and other contractual conditions, the amount of the last instalment corresponding at least to 20% of the operation’s total eligible expenditure.
Analysis of payment claims
1 - The technical secretariat shall analyse payment claims, which shall be submitted by beneficiaries within at the most three months from the contractual deadline for the deployment of the operation.
2 - Applicants may be requested to submit additional elements, failure to do so or to reply constituting grounds for rejection of the claim.
3 - The analysis referred to in paragraph 1 shall set out the eligible expenditure and the amount to be paid to the beneficiary, and validate the expenditure declared in the respective payment claim.
4 - Operation locations shall be visited at least once during their implementation periods, preferably during the analysis of the last payment claim.
1 - Support payments shall be carried out by IFAP, I.P., by bank transfer, to the bank account referred to in article 9 j), pursuant to contractual clauses and within 10 working days after the expenditure authorization has been issued.
2 - Where the final eligible investment is lower than the approved investment, the support granted shall be proportionally adjusted to the investment made.
1 - The operation is subject to on-the-spot checks as from the date on which the financing contract is concluded, namely to check compliance with paragraph 1 of article 72 of Council Regulation (EC) No 1698/2005 of 20 September.
2 - In addition to the provision in the preceding paragraph, the operation is subject to an on-the-spot check up to 24 months after the final payment.
3 - On-the-spot checks may take place without advance notice, the beneficiary being notified to assess the issue within 10 working days from the respective on-the-spot check report.
Reductions or exclusions
Where situations of non-compliance or irregularities are detected, namely in the scope of controls carried out, the beneficiary may be applied the reductions or exclusions provided for in Commission Regulation (EC) No 1975/2006 of 7 December 2006.
The effectiveness of decisions taken pursuant to this Regulation is deemed to be suspended until the approval by the European Commission of the regime of State aid applicable to support provided for herein.
Geographical area of application
(Referred to in article 3)
a) In NUT II Centre Region:
Idanha-a-Nova, Penamacor, Almeida, Figueira de Castelo Rodrigo, Manteigas, Meda, Pinhel, Sabugal, Trancoso, Fornos de Algodres, Aguiar da Beira, Penalva do Castelo and Sátão.
b) In NUT II Alentejo Region:
Alandroal, Aljustrel, Almodôvar, Alter do Chão, Alvito, Arraiolos, Arronches, Avis, Barrancos, Castelo de Vide, Chamusca, Coruche, Crato, Fronteira, Gavião, Golegã, Marvão, Mértola, Mora, Moura, Mourão, Nisa, Ourique, Ponte de Sor, Redondo, Reguengos de Monsaraz, Salvaterra de Magos, Serpa, Sousel, Viana do Alentejo and Vila Viçosa.
c) In NUT II Algarve Region:
Alcoutim, Aljezur, Castro Marim, Monchique and Vila do Bispo.
(Referred to in article 8)
1 - Drafting of implementation studies and projects, including consulting activities, monitoring activities, technical assistance and work supervision, up to a maximum limit of 10% of the operation’s total eligible costs.
2 - Construction and improvement of infrastructures and installations required to set up networks and access thereto.
3 - Set up of next generation broadband networks.
4 - Equipment, namely means of transmission and ground equipment.
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