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Resolution of the Council of Ministers no. 147/2002, of 26 December26.12.2002
Published in D.R. number 298 (Series I-B) of 26 December 2002
Presidência do Conselho de Ministros (Presidency of the Council of Ministers)
The telecommunications liberalization process having been concluded, the status of an asset belonging to the public domain of the basic network is no longer justified, having regard namely to the fact that the access to this network by all telecommunications operators is duly ensured by the regime of open network provision to which PT Comunicações is bound under the law.
In the European Union arena, there is no situation where the historic operator does not hold the ownership of the network; therefore, the ownership of the basic network not only has not prevented it, in the remaining European countries, from operating as an open network, supporting the transmission of general services, but also its use by all telecommunications operators on an equal basis and in a regime of full competition has not been hindered.
Pursuant to Law n. º 29/2002 of 6 December, the deassignment of the basic network of the public domain on the part of the State, and likewise its dismissal, represent on the one hand a natural development of the market of national telecommunications, and on the other hand they allow PT Comunicações to stand on equal ground with other European operators.
The compliance with the principle of open network provision being ensured, the dismissal of the ownership of the basic network is also a measure of sound financial management, since it gives the State the possibility to earn substantial as well as immediate revenue, regarding the payment of a rent for the concession of the basic network, in accordance with the Concession Contract, the initial guidelines of which were published in annex to Decree-Law n. º 40/95 of 15 February, whereby PT Comunicações holds the effective possession of the basic network.
In so far as the management and operation of the basic network are ascribed up to 2025 exclusively to PT Comunicações, and moreover, the respective buy-back scheme is only allowed as from 2010, by means of an expensive compensation process, no other disposal model of the basic network ownership may be considered but a direct agreement procedure with PT Comunicações, acting as concessionaire and entity responsible for the provision of the telecommunications universal service.
This being the case, the disposal of the basic network ownership in favor of PT Comunicações constitutes an important move towards the liberalization of the sector, allowing PT Comunicações to stand on equal ground with the major companies on the European market, while the State is provided with an opportunity to improve the allocation of its financial resources.
It should also be noted that, being the basic network the support of the provision of the telecommunications universal service, and since PT Comunicações was designated as the provider of the universal service, pursuant to Decree-Law n. º 48/99 of 5 November, it is essential that the concession contract is amended so as to adapt it to the new network ownership regime, while avoiding any disturbance to the essential core of the rights and obligations entered into by the concessionaire in the course of the concessionary activities, as well as to its economic balance.
Thus, the amending agreement of the concession contract shall be concluded in accordance with the respective guidelines, the draft decree-law of which was approved by the Council of Ministers on this day.
Under the terms of paragraph g) of article 199 of the Constitution, the Council of Ministers hereby resolves:
1 . To approve the minute of the purchase contract of the telecommunications basic network and of the telex network, to be concluded between the State and PT Comunicações, S.A.
2 . To approve the minute of the amending agreement of the concession contract of the telecommunications public service, to be concluded between the State and PT Comunicações, S.A.
3 . To delegate to the Minister of State and for Finance, Maria Manuela Dias Ferreira Leite, the powers to grant the purchase contract of the telecommunications basic network and of the telex network, on behalf of the Government.
4 . To delegate to the Minister for the Economy, Carlos Manuel Tavares da Silva, the powers to grant the amending agreement of the concession contract of the telecommunications public service, on behalf of the Government.
5 . This resolution shall take effect as from the date of the respective signature, hereby being ratified all of the acts and doings heretofore taken or done in the context of the delegated powers.
Presidency of the Council of Ministers, 11 December 2002. - The Prime Minister, José Manuel Durão Barroso.
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