[Original] proposal submitted by CTT, on 09.03.2017:
In its original proposal, CTT proposed that indicators and respective objectives remained in force for a three-year period, from 01.10.2017 (inclusive) until 30.09.2020 (inclusive), and that they would be ensured by the concessionaire (CTT) every day of application of the contract, save for situations for which the concessionaire was not responsible.
ANACOM Decision of 05.06.2017:
ANACOM agreed with the period of application presented by CTT, which corresponds to the duration (three years) provided for in paragraph 2 of base XV of the Bases of Concession.
However, the Regulatory Authority did not accept that objectives were ensured “save for situations for which the concessionaire was not responsible”. The Authority referred that, in the case of situations where density objectives to be defined are not fulfilled, it must be determined, on a case-by-case basis and in line with the Bases of Concession, whether CTT is liable for wilful acts or omissions leading to such situations, a judgement that takes place in the framework of powers of supervision provided for in the concession contract, which is essential to apportion liability in that respect.
[Revised] proposal submitted by CTT, on 18.07.2017:
CTT maintains its proposal that indicators and respective objectives remain in force for a three-year period, from 01.10.2017 (inclusive) until 30.09.2020, and that they are ensured by the concessionaire every day of their application.
Compared to the original communication, CTT eliminated from its proposal the condition according to which objectives would only be ensured by the concessionaire save for situations for which it was not responsible.
CTT clarified that the inclusion of that condition in its original proposal was intended only to safeguard the possibility of situations where objectives are not met due to force majeure events or of phenomena which CTT may not be able to control, without prejudice to a case-by-case analysis of each incident, adding that the Bases of Concession themselves lay down (in Base XXX) that in cases of force majeure, obligations arising from the concession contract are suspended for the period corresponding to the duration of the case of force majeure, the original proposal of CTT thus being a mere reflection of that general principle of the applicable legal framework.
Position taken by ANACOM:
ANACOM maintains its agreement with the period of application presented by CTT, which corresponds to the duration (three years) provided for in paragraph 2 of base XV of the Bases of Concession.
As regards the withdrawal by CTT of the condition “save for situations for which the concessionaire was not responsible”, ANACOM stresses that it meets the decision taken by this Authority on 05.06.2017, and that there is no need, nor benefit, to reflect in specific rules on postal network density and minimum services provided, general principles on force majeure situations already provided for in the concession contract, pursuant to which objectives here at stake are determined.
