DECO, FENACOOP and UGC considered the proposed amendments to be positive, as they reinforce consumer rights to information. FENACOOP adds that information duties provided for in this determination should be common to all electronic communications services and that, bearing in mind that this issue deals with offers that are very diversified and in constant development, and that there is a material inequality between consumers and service providers, it is important that information provided is clear, comprehensive and appropriate.
While acknowledging the importance of some of the measures proposed to clarify consumers, APRITEL and service providers/operators who addressed the matter consider that the draft decision entails an excessive regulatory intervention on the part of ANACOM.
In Vodafone's view, ANACOM's action must be guided by reasonable and proportional principles, and rules restricting the freedom of action of companies should not be laid down nor should regulatory intervention be promoted where the normal operation of market forces is able to pursue the regulatory objectives identified in article 5 of ECL. Zon also takes the view that the constant changes to the draft submitted to consultation severely obstruct business freedom, without there being any reasons for such an intervention.
Vodafone further believes that the set of information to be provided by operators should be limited to provisions of the Law and to what it strictly requires to clarify consumers of a given operator. PT also shares this opinion and adds that the information requirements provided for in this determination must be consistent with the information covered in contract conditions approved by ANACOM.
APRITEL, PT, Vodafone and Zon stress also that an excess of information conveyed by companies has the potential to cause consumer disinterest and jeopardises the making of a free and informed choice. Zon adds that the excess of information may contribute to deepen any doubts there may be on conditions of service provision. Vodafone declares that it is fundamental to focus on the internet, through the operators' institutional website, so that the public is provided with more in-depth information on conditions of access and use of services.
Vodafone and APRITEL refer also that almost all information provided for in the draft decision submitted to consultation is already disclosed in the draft contract publicly available pursuant to article 47 of the ECL, thus it is already available for public consultation prior to the conclusion of the contract.
PT declares further that it is not evident from the draft decision submitted to consultation if measures were taken to find among consumers whether they deem the volume of information already available in a pre-contract stage to be useful and which information is considered essential for a free and informed choice when contracting electronic communications services, that is, which information corresponds to the consumer's actual needs.
ANACOM's position
Contrary to what APRITEL and service providers/operators who addressed the matter have said, there is no excessive regulatory intervention on the part of ANACOM in the notified draft decision.
ANACOM is exercising a power, in the pursue of regulatory objectives provided for in points a) and c) of paragraph 1, point a) of paragraph 2 and points b) and d) of paragraph 4 of article 5 of the ECL, and fulfilling a requirement provided for in the same law - point b) of paragraph 1 of article 39 and paragraph 2 of article 47 of the ECL - , in order to guarantee a right granted to users expressly laid down in the law, that is, that users are provided in a timely manner and prior to the conclusion of any contract with written information on the conditions of access to and use of the service.
It should be highlighted that information covered in the draft decision submitted to consultation does not differ from that which, under Directive 2002/22/EC (as amended by Directive 2009/136/EC) must be provided by undertakings on standard terms and conditions with regard to access to and use of services. The solution established in the Portuguese law does not differ from the one which must be in force in other countries of the European Union. Taking this aspect into account, it is easy to understand that, contrary to what was pointed out, there is no excessive regulatory intervention in the draft decision submitted to consultation.
As regards the alleged disincentive effect of the also alleged excess of information on conditions of offer, it must be stressed that it is the complexity of information and the way how it is presented that may lead to the disincentive of its addressees or raise doubts thereon. The requirement for comprehensive information is laid down in paragraph 1 of article 21 of Directive 2002/22/EC (as amended by Directive 2009/136/EC), which provides that information must be published in a clear, comprehensive and easily accessible manner. This obligation results from European Union law, and providers must make sure that, as required by the Directive, the information is not only comprehensive, but also easy to understand.
The provision of information in a simple, clear and transparent manner will allow it to be readily understandable, enabling the making of free and informed choices on services.
With regard to the use of institutional websites of operators as the privileged channel for providing information on offer conditions, this means for conveying information was already provided for in the initial version of this determination, being in line with the current wording of paragraph 2 of article 47 of ECL. However, information must also be provided by other means for those who are unable to access websites of providers.
It must also be referred that replacing the obligation of provision of information with the disclosure of the contract model or models used by companies is neither appropriate nor sufficient to guarantee that end-users are informed about all conditions of access to and use of services in the terms required by ECL and the Directive it transposes (vd. articles 39 and 47 of ECL and article 21 and annex II of Directive 2002/22/EC). Moreover, the wording of contracts used by service providers is frequently extensive and complex, and does not enable an easy and immediate understanding, in a pre-contract stage, of conditions of provision and use of services.
With reference to PTC's statement relatively to whether measures were taken to find among consumers if they deemed the volume of information already available to be useful, it is highlighted that the purpose of the public consultation carried out was exactly to be aware of positions of interested parties, and as such, also of consumers. Comments and proposals presented by all bodies that addressed the matter, especially consumer associations, will be analysed in this report and, where appropriate, they will be reflected in the final decision. Notwithstanding, as referred above, is must be stressed that consumer associations deemed this measure to strengthen consumer rights to information.
