«The general and standard contract conditions which must be subscribed / accepted by the customer to contract the service provision must be made public and disclosed.
Information to be made public and disclosed, in the scope of standard contract conditions, must be supplemented, where appropriate, by a warning that the service provision depends on the acceptance of loyalty periods, which shall be given the same highlight as the service tariff, in terms of prominence and font size.
With regard to loyalty periods, clear information must also be made available on:
- The duration of the loyalty period and conditions that apply in case of termination of the contract before that period is over; and
- Where the loyalty period is due to the sale of equipment under special conditions, the provider shall provide information on the characteristics of the equipment, namely whether it is locked, the respective price and unlocking conditions, as well as the price for a locked and unlocked equipment.
The formalities and documents required of the client to terminate the contract must be made publicly available.»
On this point f) of section B, ACOP refers that the disclosure and publication of general and standard contract conditions which must be subscribed / accepted by the customer is not sufficient. This association believes that the customer must be informed and clarified on the contents of those conditions, at the time of the subscription of the respective contract.
PT considers that the provision of this information on standard contract conditions is already required by ANACOM's determination issued in this scope, thus the company feels that it should not be necessary to publish the same information in various media, as this would duplicate information.
As regards the provision on information on loyalty periods, APRITEL refers that the draft decision submitted to consultation proposes the publication of information with a level of detail that cannot be met in each and every information medium. For example, loyalty periods cannot be published in packages (kits) as they may vary according to the chosen products and services, or with the ongoing campaigns, which would imply a high risk of information provided being outdated or inaccurate.
ANACOM's position
The requirement that the consumer must be informed and clarified on the contents of standard contract conditions corresponds to an obligation on the part of the service provider that results directly from the law - articles 5 and 6 of the Regime of Standard Contract Clauses approved by Decree-Law number 446/85, of 25 October, as amended by Decree-Law number 323/2001, of 17 December - which fully apply to the contracting of electronic communications services. There is no reason, for a measure that aims to regulate the object and form of disclosure to the public of conditions of provision and use of electronic communications services, to make a specific reference to that obligation which, on the one hand, is in force for all situations in which standard contract conditions are used, and which, on the other, is specially relevant for the moment when services are contracted.
As regards PT's observation that the provision of information on standard contract conditions already results from an obligation imposed by ANACOM, it is clarified that the determination on the object and form of disclosure to the public of conditions of provision and use of electronic communications services does not require the duplication of media to provide information. It suffices if the medium - which may be a single one - for providing information complies with the requirements of the (various) determinations issued by ANACOM.
APRITEL's line of argument is rejected. If for other products and services this information is able to be provided, what prevents this information from being ensured as far as electronic communications are concerned? Anyway, the requirement to provide the information on the existence of minimum contractual periods/loyalty periods arises directly from ECL (point f) of paragraph 2 of article 47, which transposes in this scope the requirements set out in Directive 2002/22/EC). Consequently, if APRITEL's arguments were accepted, those requirements expressly provided for both on national and Community law would be infringed.
Sector companies will not fail to find the appropriate solution to ensure the disclosure in appropriate and evident terms of this type of information.
As far as this provision is concerned, the terminology adjustment of the reference to "loyalty periods'' must be ensured, and it is replaced, in line with point f) of paragraph 2 of article 47 of ECL, by "minimum contractual periods''.
Still on this matter, it is justified to make a reference to the obligation laid down in point f) of paragraph 2 of article 47 of ECL (which transposes the requirements set out in Directive 2002/22/EC), and in the specific terms provided for in that legal provision, to clarify, in the final determination to be issued, that to this point f) of point B must be added information on conditions for termination of the contract.
Relatively to these aspects, it must be referred that ANACOM still registers many complaints on number portability processes, specially associated to defective information of users on existing procedures and charges.