As can be seen in the following sections, the number of court cases initiated in 2012 (not including litigation associated with breach decisions - as referred to elsewhere in this report) was lower than in 2011, with 15 cases reported, compared to the 26 new processes in which ICP-ANACOM was involved in 2011. However, the activity related to intervention in judicial proceeding did not decrease, since, over 2012, there were developments in many cases that were already ongoing.
Graph 55. Litigation in 2012
Source: ICP-ANACOM.
23.1. Administrative Litigation
23.1. Administrative Litigation
In addition to intervention in four new court cases in which ICP-ANACOM was cited, 51 administrative litigation cases were monitored during 2012, as carried over from previous years and still ongoing; litigation therefore persists at a substantial level.
The four cases instigated in 2012 comprise special administrative actions and interim measures of protection:
- Special administrative action brought by Optimus requesting annulment of the decision on the complaint presented by PTC regarding ICP-ANACOM's decision on the methodology to be used in calculating the NCUS, adopted on 18 August 2011. ICP-ANACOM presented its response in 2012.
- Special administrative appeal brought by Vodafone requesting a declaration of invalidity of article 12, paragraph 10 of Regulation no. 114/2012 of 13 March, amending Regulation no. 58/2005 of 18 August (Portability Regulation). ICP-ANACOM was cited in the proceedings at the end of 2012, and its response was presented in early 2013.
- Interim measure of protection pursuant to article 112, paragraph 2, point f) of CPTA (summons seeking that the administration adopt or refrain from conduct, due to alleged breach or founded fear of violation of administrative law norms) brought by VDRF - Electrónica Áudio e Equipamentos de Telecomunicações, Lda., seeking an order that ICP-ANACOM seal the transmitter of opposing party NFM Global, Lda., and Rádio NFM, Lda., existing on Monte da Virgem, transmitting on the 88.04 MHz frequency, in order to permit the applicant's continued transmission on that frequency. ICP-ANACOM submitted its opposition in 2012.
- Protective measure seeking the suspension of validity of a norm, brought by Vodafone, seeking suspension of article 12, paragraph 10 of Regulation no. 114/2012 of 13 March, amending Regulation no. 58/2005 of 18 August (Portability Regulation). Following submission of a Reasoned Resolution (under the terms of and for the purposes of article 128, paragraph 1, of the CPTA, in conjunction with article 130, paragraph 4, of the same Code), ICP-ANACOM filed its opposition in 2012.
23.2. Tax litigation
ICP-ANACOM was cited in three new tax processes and followed 54 cases carried over from previous years.
23.2.1. Court appeals to applied fees
Cabovisão, ZON TV Cabo Açoreana and Optimus presented three new judicial appeals, seeking the annulment or declaration of nullity of acts in respect of settlement of fees practised by ICP-ANACOM.
In the case of the challenge brought by Cabovisão and by ZON, responses were presented.
In the case brought by Optimus, a response was never presented, since the company withdrew its action, and, in 2012, with the withdrawal ruled as valid, the proceedings were declared closed.
Over the course of the year, ICP-ANACOM also followed 31 cases initiated in previous years.
23.2.2. Summons procedures to adopt
ICP-ANACOM continued to intervene in respect of the summons seeking adoption of a practice in which it was cited in 2011, brought by Cabovisão.
23.2.3. Tax Foreclosures
In 2012, ICP-ANACOM continued to monitor and/or intervene, directly or represented by outside lawyers, in 22 cases of opposition to tax foreclosure procedures and procedures carried over from previous years.
23.3. Civil litigation
In 2012 ICP-ANACOM was cited in respect of eight new cases and continued to accompany 44 cases carried over from previous years.
23.3.1. Declarative actions
ICP-ANACOM was notified of a judgement issued in a declaratory action with ordinary procedure, brought by Santa Casa da Misericórdia de Lisboa, whereby ICP-ANACOM was ordered to bar access to a site having origin outside Portugal. Not concurring with the ruling (in a case which it had not been party to), ICP-ANACOM appealed to a court of second instance, which appeal is pending.
ICP-ANACOM also continued to monitor an ordinary process carried over from previous years.
23.3.2. Unspecified protective orders
ICP-ANACOM was also cited in an unspecified protective order brought by NFM - Global, Lda., and by Rádio NFM, in which the parties sought an order for the restitution of the 88.40 MHz frequency. Opposition was filed and the case remains ongoing.
ICP-ANACOM also continued to accompany an unspecified protective order instigated in 2011.
23.3.3. Judicial company recovery/ revitalization procedures and bankruptcy/insolvency procedures
ICP-ANACOM accompanied four new insolvency cases and two cases of company revitalization, acting in the capacity of creditor (credits resulting from non-payment of fees).
ICP-ANACOM also accompanied 42 company recovery, bankruptcy and insolvency procedures begun in previous years.
