Ministério da Economia, da Inovação e do Desenvolvimento (Ministry of Economy, Innovation and Development)
Decree-Law
In its Report on ''Consumer Mobility in the Electronic Communications Sector'', released in February 2010, the Autoridade da Concorrência (Competition Authority) identifies the lack of consumer mobility as one of the barriers to an increased level of competition in the electronic communications sector in Portugal.
As far as mobile communications are concerned, the study stresses, among costs arising from the change of operator or service provider that constrain such mobility, contractual costs, which consist in the contractual establishment of the obligation binding the consumer to use the contracted service for a loyalty period of at least 12, 18 or 24 months, in exchange for the sale of equipment at a low price, and compatibility costs, regarding the acquisition of equipment that only allows consumers to use services provided by a specific operator or provider.
The Autoridade da Concorrência points out some solutions to increase consumer mobility in the mobile communications sector and to foster competition.
These solutions entail, specifically, the prohibition to charge any amounts for unlocking cell phones at the end of the loyalty period, and during this period, the setting of limits on amounts charged for that service, taking into account, first, the sale price of equipment without any subsidises, and second, the moment on which the operation is requested.
This Authority refers also that the prohibition to pay any amounts for the unlocking operation must be applied to all types of equipment that allow access to electronic communication services.
On its turn, ICP - Autoridade Nacional das Comunicações (ICP-ANACOM), by determination of 11 December 2008, determined that, where electronic communication services standard contracts introduce loyalty periods, appropriate clauses should be included that clearly and undoubtedly inform consumers on the justification for the loyalty period, as far as the granting to customers of quid pro quo or benefits is concerned, the duration of the loyalty period, the fees charged for the unlocking service, simple and swift means available to the customer to know the date of expiry of the loyalty period and the amount due for early termination of the contract, means to calculate the amount due by the customer in case of early termination of the contract, and, last, clauses that specify that in case the customer chooses to pay the value of benefits initially granted, at the end of the loyalty period or in case of early termination of the contract, he/she is entitled to have the equipment unlocked for the amount indicated initially on the contract, in which case no additional amount is required.
This Decree-Law thus aims to guarantee user rights, fostering their mobility, as well as an increased competition in the electronic communications market.
Thus, in the first place, the charging by electronic communication service operators of any amounts for the service of unlocking equipment, after the expiry of the loyalty period, is prohibited.
In the second place, a limit is set on prices charged to end a contract or to ask for release during this period.
Last, in the third place, a limit is also established on amounts charged for the unlocking service, where a loyalty period has not been foreseen.
ICP - Autoridade Nacional das Comunicações (ICP-ANACOM) and the Autoridade da Concorrência were heard.
The consultation of the Conselho Nacional do Consumo (National Consumer Council) was promoted.
Apritel - Associação dos Operadores de Telecomunicações was heard on a voluntary basis.
Therefore:
Pursuant to article 198, paragraph 1a) of the Constitution, the Government hereby orders as follows:
Article 1
Subject-matter
This Decree-Law establishes limits on amounts charged for the service of unlocking equipment that allow access to electronic communication services, as well as for termination of contracts in the course of the loyalty period, in order to guarantee user rights as far as electronic communications are concerned, and to promote an increased level of competition in this sector.
Article 2
Scope
1 - The charging of any amounts for the service of unlocking equipment referred to in the preceding article, after the end of the contractual loyalty period, shall be prohibited.
2 - During the loyalty period, values charged for contract termination and for equipment unlocking shall not exceed:
a) 100% of the cost of the equipment at its date of acquisition or possession, without any discounts, deductions or subsidies whatsoever, in the first six months of that period, minus the amount already paid by the user or any other amount claimed for compensation against the mobile communication operator;
b) 80% of the cost of the equipment at its date of acquisition or possession, without any discounts, deductions or subsidies whatsoever, after the first six months of that period, minus the amount already paid by the user, or any other amount claimed for compensation against the mobile communication operator;
c) 50% of the cost of the equipment at its date of acquisition or possession, without any discounts, deductions or subsidies whatsoever, in the final year of the loyalty period, minus the amount already paid by the user, or any other amount claimed for compensation against the mobile communication operator;
3 - The charging of any amounts in addition to those specified in the preceding article, by way of compensation for termination of contract during the loyalty period, shall be prohibited.
4 - Where a loyalty period has not been foreseen, values charged for equipment unlocking shall not exceed the cost of the equipment at its date of acquisition or possession, without any discounts, deductions or subsidies whatsoever, minus the amount already paid by the user.
5 - For the purposes hereof, an unlocking service shall mean a service provided by the operator or service provider consisting of a software download that allows the access of the equipment to other operators or service providers.
Article 3
Unlocking operation
The obligation to unlock the equipment shall be incumbent on the operator or service provider responsible for the respective locking operation, and shall be fulfilled within 5 days at the most from the date on which it was requested by the user.
Article 4
Maximum length of the loyalty period
The loyalty period shall not exceed 24 months.
Article 5
Information duty
1 - Without prejudice to article 47 of Law number 5/2004, of 10 February, the mobile communication operator shall inform the user, before conclusion of the contract, of the characteristics of the equipment, namely whether it is locked, price and the conditions under which the equipment may be unlocked, as well as the price for a locked and unlocked equipment.
2 - At any time during the loyalty period, and at the request of the user, the operator or service provider shall provide information on the expiry of that period and of the device locking, as well as on the amount due for early termination of contract.
3 - The burden of proof of compliance with provisions herein shall lie with the operator or service provider.
Article 6
Enforcement
It shall be incumbent on ICP - Autoridade Nacional das Comunicações (ICP-ANACOM) to provide for the enforcement hereof.
Article 7
Offences
1 - Failure to comply with articles 2 and 4 hereof shall be deemed a serious offence, punishable under paragraph 3 of article 7 of Law number 99/2009, of 4 September, which approves the framework scheme of administrative offences within the communications sector.
2 - Failure to comply with articles 3 and 5 hereof shall be deemed a minor offence, punishable under paragraph 2 of article 7 of Law number 99/2009, of 4 September, which approves the framework scheme of administrative offences within the communications sector.
Article 8
Mandatory nature
Any convention or provision contrary to or excluding provisions herein shall be deemed null and void.
Article 9
Transitional rules
1 - This Decree-Law shall apply to all contracts in progress at the time of its entry into force, without prejudice to the following paragraph.
2 - The provision in article 4 shall apply to contracts concluded from the date of entry into force hereof.
Article 10
Entry into force
This Decree-Law shall enter into force within 90 days following its publication.
Checked and approved in the Council of Ministers of 25 March 2010. - José Sócrates Carvalho Pinto de Sousa - José Manuel Santos de Magalhães - Fernando Medina Maciel Almeida Correia - António Augusto da Ascenção Mendonça.
Promulgated on 20 May 2010.
Let it be published.
The President of the Republic, ANÍBAL CAVACO SILVA.
Counter-signed on 20 May 2010.
The Prime Minister, José Sócrates Carvalho Pinto de Sousa.
