Decree-Law no. 8/2013, of 18 January

Ministério da Economia e do Emprego (Ministry for Economy and Employment)

Decree-Law

Directive No 2006/123/EC, of the European Parliament and of the Council, of 12 December 2006, on services in the internal market, introduces significant changes in the legal system governing the establishment of service providers in Member States, laying down general provisions facilitating the exercise of the freedom of establishment for service providers and the free movement of services, while maintaining a high quality of services.

Decree-Law No 92/2010, of 26 July, which transposes to the internal legal order Directive 2006/123/CE, of the European Parliament and the Council, of 12 December 2006, establishes the principles and rules to simplify the free access to and pursue of service activities carried out on national territory.

In this context, this statutory instrument, of a sectoral nature, aims to promote the adjustments required by the mentioned statutory instrument as regards the requirements for provision of audiotext services and of value-added message-based services, thus amending for this purpose Decree-Law No 177/99, of 21 May, as amended by Law No 95/2001, of 20 August, by Decree-Law No 63/2009, of 10 March, and by Law No 51/2011, of 13 September, which governs the access to and pursue of these activities.

The need for pre-registration at ICP - Autoridade Nacional das Comunicações (ICP - ANACOM) of audiotext service providers and of value-added message-based service providers who wish to establish themselves on national territory is maintained, as the quality of service provided and consumer rights must be ensured, and situations of abuse and fraud avoided. This requirement for administrative permission is grounded on overriding reasons in the general interest, pursuant to paragraph 1 of article 9 of Decree-Law No 92/2010, of 26 July, no exception being made for the tacit approval general principle laid down in paragraph 2b) of that article.

However, legal and formal procedures required for the referred registration are simplified, as is it sufficient in that regard that applications are accompanied, in the case of a natural person, by a simple copy of an identification document and means of proof that the service provider has started the activity concerned, or, in the case of a legal person, by a simple extract from the commercial register or the code of access to the permanent certification.

On the other hand, bodies legally established in a Member State of the European Union or of the European Economic Area for the provision of audiotext services and value-added message-based services, who wish to pursue these activities on national territory, either on a permanent basis, establishing themselves in the country, or on an occasional and sporadic basis, under the freedom to provide services, no longer require registration at ICP - ANACOM. Notwithstanding, these providers remain subject to conditions for pursue of the activity concerned that apply under the law.

The requirement on provision of information concerning the conditions of service provision is also maintained, including the identification of the respective providers, as well as means available to consumers to cease that service provision, extending its scope to providers exempted from registration, without prejudice, as regards value-added message-based services, to the electronic commerce regime laid down in Decree-Law No 7/2004 of 7 January, which transposed to the national legal system Directive 2000/31/EC of the European Parliament and of the Council, of 8 June, on certain legal aspects of information society services, in particular electronic commerce, in the internal market.

This opportunity is also taken to strengthen consumer protection by extending the situations of ban on registration.

Lastly, this statutory instrument aims also to bring the penalty regime provided for in Decree-Law No 177/99, of 21 May, into line with the administrative offence framework regime of the communications sector, approved by Law No 99/2009, of 4 September, as amended by Law No 46/2011, of 24 June.

ICP - Autoridade Nacional das Comunicações was heard.

Therefore:

Under article 198, paragraph 1a), of the Constitution, the Government hereby decrees as follows:

Article 1
Subject-matter

This Decree-Law introduces the fourth amendment to Decree-Law No 177/99, of 21 May, as amended by Law No 95/2001, of 20 August, by Decree-Law No 63/2009, of 10 March, and by Law No 51/2011, of 13 September, which governs the access to and provision of audiotext services and value-added message-based services, so as to bring it into line with provisions of Decree-Law No 92/2010, of 26 July, which transposed to the internal legal order Directive 2006/123/CE, of the European Parliament and the Council, of 12 December 2006, on services in the internal market, and with Law No 99/2009, of 4 September, as amended by Law No 46/2011, of 24 June.

Article 2
Amendment to Decree-Law No 177/99, of 21 May

Articles 4, 5, 6, 7, 8, 11, 13, 14 and 15 of Decree-Law No 177/99, of 21 May, as amended by Law No 95/2001, of 20 August, by Decree-Law No 63/2009, of 10 March, and by Law No 51/2011, of 13 September, are hereby amended to read as follows:

«Article 4
[...]

1 - Without prejudice to paragraph 7, natural or legal persons that intend to provide services covered by this Decree-Law shall register with ICP - Autoridade Nacional das Comunicações (ICP – ANACOM).

2 - The following entities may be registered:

a) Natural persons with open activity at the Tax Office;

b) Legally constituted legal persons.

3 - For the purposes of paragraph 1, an application shall be submitted to ICP - ANACOM:

a) Accompanied by a simple copy of an identification document and means of proof that the service provider has started the activity concerned, in case of a natural person, or a simple extract from the commercial register or the code of access to the respective permanent certification, in case of a legal person;

b) With the identification of the name, address and other physical or electronic contacts of the service provider.

4 - [...]:

a) [...];

b) Natural persons who were shareholders or board members of legal persons whose registration was suspended or repealed under article 13;

c) Legal persons that directly or indirectly hold a share in, control, are a subsidiary of or are controlled by natural or legal persons referred to in point a);

d) Legal persons with shareholders or board members who hold any of these qualities in legal persons whose registration was suspended or repealed under article 13.

5 - Without prejudice to article 8, the decision on the registration application must be issued within 10 days from the date of reception of particulars referred to in paragraph 3.

6 - If the time limit referred to in the preceding paragraph has lapsed without any decision being notified, the registration application shall be deemed to have been granted.

7 - Entities legally established in a Member State of the European Union or of the European Economic Area for the provision of audiotext services or value-added message-based services, who wish to pursue these activities on national territory, shall not require registration but remain subject to applicable conditions for pursue of the activity concerned, namely provisions in articles 5 to 9-A.

8 - For public order and consumer protection purposes, the requirement in paragraph 2 of article 8 shall apply exclusively to providers of value-added message-based services intended for the national territory who do not establish themselves therein.

Article 5
Commencement of service and consumer information

1 - Entities who wish to pursue the activities referred to in article 3 on national territory shall inform ICP - ANACOM in advance of services intended to be provided, by means of a mere communication, with the respective name, address and other physical and electronic contacts of the service provider, accompanied by the general conditions for provision of services concerned.

2 - For the purpose of allocation of access codes, under article 8, entities shall submit to ICP - ANACOM an application attaching the following particulars:

a) An express statement with a detailed description of the service to be provided;

b) [Repealed];

c) [...];

d) [...].

3 - The communication referred to in paragraph 1, the request for allocation referred to in the preceding paragraph and the registration application referred to in the preceding article may be submitted at the same time.

4 - Entities must communicate to ICP – ANACOM any alteration to particulars previously supplied and mentioned in paragraph 2, within at the most five days from the occurrence of the event giving rise thereto or, in case of entities under the freedom of provision of services, within at the most five days from the restart of the service provision on national territory, where absent therefrom on the date of the relevant fact.

5 - In the absence of the communication referred to in the preceding paragraph and in case of failure to regularise the situation within a period of90 days, namely where service providers cannot be notified at the address indicated or at other contacts, ICP - ANACOM is entitled to recover the allocated access codes and to revoke the issued registration, where appropriate.

6 - ICP - ANACOM shall make available on its website a list of persons on national territory providing services referred to in article 3, based on communications and requests referred to in paragraph 3, including the following information:

a) Name, address and other physical or electronic contacts of the service provider;

b) Detailed description of services provided;

c) General conditions of service provision.

Article 6
[...]

1 - [...].

2 - [...]:

a) [...];

b) [...];

c) [...];

d) To allow ICP - ANACOM to verify equipment, granting it access to the respective premises as well as to any documents as requested;

e) To provide information intended for statistical purposes, on the terms, timescales and frequency required by ICP - ANACOM.

Article 7
[...]

1 - [...].

2 - [...].

3 - [...].

4 - This article applies only to contracts governed by Portuguese Law.

Article 8
[...]

1 - [...].

2 - The following services require a specific access code, to be allocated by ICP - ANACOM:

a) [...];

b) [...];

c) [...].

3 - [...].

4 - Access codes shall be granted within at the most 15 days from reception by ICP - ANACOM of particulars referred to in paragraph 2 of article 5, exceeding which the applicant may bring an action before the administrative courts seeking an order requiring ICP – ANACOM to perform the act under consideration.

5 - Without prejudice to paragraph 2, the provision of audiotext services and of value-added message-based services on national territory using access codes from numbering plans of other Member States of the European Union or of the European Economic Area in which the provider is established shall be allowed, insofar as compliance with requirements in articles 9 and 9-A in the Portuguese language or, as regards providers of value-added message-based services intended for the national territory who do not establish themselves therein, with requirements in article 10 of Decree-Law No 7/2004, of 7 January, is observed.

Article 11
[...]

1 - [...].

2 – Service providers concerned by this statutory instrument who are established on national territory shall also be subject to the payment of an annual fee.

3 - Amount of fees referred to in the previous paragraphs, which shall revert to ICP - ANACOM, shall be determined by order of the member of the Government in charge of the communications area, on the basis of costs associated to the corresponding administrative, technical, operational and monitoring tasks.

Article 13
[...]

1 – In case of an infringement of obligations provided for in paragraph 2 of article 6, namely the infringement of conditions and limits inherent to the respective access code, or the absence of the oral message mentioned in paragraph 2 of article 9, ICP - ANACOM shall suspend the use of the access code assigned to the concerned service provider and indicate the necessary remedies, establishing a time limit not exceeding 10 days during which providers must remedy the situation.

2 – [...].

3 – Where remedies are not put into effect within the deadline, ICP - ANACOM shall revoke the allocation of the access code from the service provider, as well as its registration, where appropriate.

4 – [...].

5 – The allocation revocation or suspension of the use of the access code by the service provider, as well as the cancellation of its registration, may be publicised by ICP - ANACOM and shall be communicated to the provider of support services.

6 - In case of infringement of measures imposed on providers who have not been registered with ICP - ANACOM and who provide services intended for the national territory using access codes from numbering plans of other Member States of the European Union or of the European Economic Area, ICP - ANACOM shall make use of administrative cooperation, pursuant to article 15-B, so that the competent authority in the Member State of origin of the provider may monitor it and apply penalties thereon, under applicable law, without prejudice to provision of Law No 99/2009, of 4 September, as amended by Law No 46/2011, of 24 June, on failure to comply with measures recommended by ICP - ANACOM.

Article 14
[...]

1 - Failure to comply with paragraph 6 of article 9-A shall be deemed to be a minor administrative offence.

2 - The provision of services referred to in article 3 without having been allocated an access code by ICP - ANACOM, in situations other than those provided for in paragraph 5 of article 8, as well as the violation of paragraph 1 of article 4, paragraphs 1 and 4 of article 5, paragraph 2 a) and c) to e) of article 6, paragraph 3 of article 7 and paragraph 3 of article 8, shall be deemed to be serious offences.

3 - Non-compliance with paragraphs 1, 2 and 3 of article 9 and with paragraphs 1, 2, 4 and 5 of article 9-A shall be deemed to be very serious offences.

4 - Without prejudice to other applicable penalties, minor offences shall be liable to the following fines:

a) Between (Euro) 500 and (Euro) 2 500, where committed by a natural person;

b) Between (Euro) 750 and (Euro) 5 000, where committed by a micro-enterprise;

c) Between (Euro) 1 500 and (Euro) 10 000, where committed by a small enterprise;

d) Between (Euro) 3 000 and (Euro) 20 000, where committed by a medium-sized enterprise;

e) Between (Euro) 5 000 and (Euro) 50 000, where committed by a large enterprise.

5 - Without prejudice to other applicable penalties, serious offences shall be liable to the following fines:

a) Between (Euro) 1 500 and (Euro) 7 500, where committed by a natural person;

b) Between (Euro) 2 500 and (Euro) 10 000, where committed by a micro-enterprise;

c) Between (Euro) 5 000 and (Euro) 25 000, where committed by a small enterprise;

d) Between (Euro) 10 000 and (Euro) 50 000, where committed by a medium-sized enterprise;

e) Between (Euro) 25 000 and (Euro) 100 000, where committed by a large enterprise.

6 - Without prejudice to other applicable penalties, very serious offences shall be liable to the following fines:

a) Between (Euro) 5 000 and (Euro) 20 000, where committed by a natural person;

b) Between (Euro) 7 500 and (Euro) 50 000, where committed by a micro-enterprise;

c) Between (Euro) 15 000 and (Euro) 75 000, where committed by a small enterprise;

d) Between (Euro) 25 000 and (Euro) 100 000, where committed by a medium-sized enterprise;

e) Between (Euro) 50 000 and (Euro) 200 000, where committed by a large enterprise.

7 - [Former paragraph 3].

8 – Amounts of fines and additional penalties provided for respectively in paragraph 5 of article 7 and in article 11, both of Law No 99/2009, of 4 September, as amended by Law No 46/2011, of 24 June, shall apply to administrative offences provided for in this statutory instrument.

Article 15
[...]

1 - Admonitions, fines and additional penalties provided for in this law, as well as termination of offence proceedings, shall be incumbent on the Management Board of ICP - ANACOM.

2 - [...].

3 - [...].

4 - [...].»

Article 3
Addition to Decree-Law No 177/99, of 21 May

Articles 15-A and 15-B are hereby added to Decree-Law No 177/99, of 21 May, as amended by Law No 95/2001, of 20 August, by Decree-Law No 63/2009, of 10 March, and by Law No 51/2011, of 13 September, which shall read as follows:

«Article 15-A
One-stop-shop

1 - All communications and notifications provided for herein, as well as the sending of documents, applications and information, shall be made electronically through the electronic one-stop-shop, provided for in article 6 of Decree-Law No 92/2010, of 26 July.

2 - Where the electronic one-stop-shop is not available and consequently compliance with the preceding paragraph is not possible, any other legally permitted form of communication may be used.

Article 15-B
Administrative cooperation

Competent authorities within the meaning of this statutory instrument shall take part in administrative cooperation, in the scope of procedures concerning providers established in another Member State of the European Union or of the European Economic Area, pursuant to chapter VI of Decree-Law No 92/2010, of 26 July, namely through the Internal Market Information System.»

Article 4
Repealing provision

Paragraph 2b) of article 5 and paragraph 4 of article 16 of Decree-Law No 177/99, of 21 May, as amended by Law No 95/2001, of 20 August, by Decree-Law No 63/2009, of 10 March, and by Law No 51/2011, of 13 September, are hereby repealed.

Article 5
Republication

Decree-Law no. 177/99 of 21 May, with the new wording, is hereby republished in annex hereto, being an integral part hereof.

Checked and approved in the Council of Ministers of 8 November 2012. - Pedro Passos Coelho - Álvaro Santos Pereira.

Promulgated on 10 January 2013.

Let it be published.

The President of the Republic, Aníbal Cavaco Silva.

Countersigned on 11 January 2013.

The Prime Minister, Pedro Passos Coelho.

ANNEX
(Referred to in article 5)

Republication of Decree-Law No 177/99, of 21 May

Article 1
Subject-matter

This statutory instrument governs the access to and the provision of audiotext services and of value-added message-based services.

Article 2
Concept

1 - Audiotext services are those that are carried on the fixed network telephone service or mobile network telephone services, their specific content and nature distinguishing them from the latter.

2 - Value-added services based on message sending shall be deemed to mean information society services provided through a message supported on electronic communications services which imply an immediate or delayed payment from the consumer of a value which is added to the price of the electronic communications service, in return for the provision of the transmitted contents, namely for the information service, entertaining service, or other.

Article 3
Pursue of the activity

The provision of audiotext services and of value-added message-based services must be registered pursuant hereto.

Article 4
Registration

2 - The following entities may be registered:

a) Natural persons with open activity at the Tax Office;

b) Legally constituted legal persons.

3 - For the purposes of paragraph 1, an application shall be submitted to ICP - ANACOM:

b) With the identification of the name, address and other physical or electronic contacts of the service provider.

4 - Registration is prohibited in the following cases:

a) Natural or legal persons whose registration was suspended or repealed under article 13;

b) Natural persons who were shareholders or board members of legal persons whose registration was suspended or repealed under article 13;

c) Legal persons that directly or indirectly hold a share in, control, are a subsidiary of or are controlled by natural or legal persons referred to in point a);

d) Legal persons with shareholders or board members who hold any of these qualities in legal persons whose registration was suspended or repealed under article 13.

5 - Without prejudice to article 8, the decision on the registration application must be issued within 10 days from the date of reception of particulars referred to in paragraph 3.

6 - If the time limit referred to in the preceding paragraph has lapsed without any decision being notified, the registration application shall be deemed to have been granted.

7 - Entities legally established in a Member State of the European Union or of the European Economic Area for the provision of audiotext services or value-added message-based services, who wish to pursue these activities on national territory shall not require registration but remain subject to applicable conditions for pursue of the activity concerned, namely provisions in articles 5 to 9-A.

Article 5
Commencement of service and consumer information

2 - For the purpose of allocation of access codes, under article 8, entities shall submit to ICP - ANACOM an application attaching the following particulars:

a) An express statement with a detailed description of the service to be provided;

b) [Repealed];

c) A technical plan detailing the equipment to be used;

d) An indication of the provider of support services.

a) Name, address and other physical or electronic contacts of the service provider;

b) Detailed description of services provided;

c) General conditions of service provision.

Article 6
Rights and obligations of providers

1 - Service providers shall enjoy the following rights:

a) To carry out their activity under the terms set out in paragraph 2 a) of article 5;

b) To freely set the price of the services provided.

2 - Service providers shall comply with the following obligations:

a) To observe the conditions and restrictions inherent in the respective access code;

b) To comply with applicable legislation in respect of advertising, copyright and related rights, consumer protection, protection of personal data, industrial property, and legislation in respect of gambling activities;

c) To use only equipment duly approved by the competent entity;

d) To allow ICP - ANACOM to verify equipment, granting it access to the respective premises as well as to any documents as requested;

e) To provide information intended for statistical purposes, on the terms, timescales and frequency required by ICP - ANACOM.

Article 7
Relations with providers of support services

1 - Contracts concluded between service providers covered by this Decree-Law and providers of support services shall be put in writing and shall contain the following information:

a) Identification of the contractual parties;

b) Registration number and access code allocated by ICP - ANACOM;

c) A detailed description of the service to be provided as submitted to ICP - ANACOM;

d) An obligation in writing in respect of the use of the support services for the provision of services in accordance with the detailed description referred to in paragraph c);

e) The method used for invoicing, together with the relevant regulations governing the settlement of amounts due;

f) Regulations that apply in the event of non-payment by customers of the amounts due for services provided when collection of amounts owed is the responsibility of the telecommunications service provider.

2 - Where, under the terms of the contract, the provider of support services is responsible for the invoicing and collection of amounts due for the provision of services covered by this Decree-Law, these amounts shall be duly broken down.

3 – The provision of the support service shall not be suspended due to failure to pay services covered by this Decree-Law.

4 - This article applies only to contracts governed by Portuguese Law.

Article 8
Allocation and use of access codes

1 - ICP - ANACOM shall assign to service providers covered by this Decree-Law different access codes based on the nature and content of the service provided, according to the detailed description of the service provided in the declaration referred to in paragraph 2 a) of article 5.

2 - The following services require a specific access code, to be allocated by ICP - ANACOM:

a) Services declared to have erotic or sexual contents;

b) Services that imply the sending of more than one message or the periodic or continuous sending of messages, with value added per message;

c) Services aimed for donations subject to a different tax regime.

3 - Audiotext service providers shall respect the restrictions inherent in the respective access codes allocated to them.

Article 9
Audiotext services pricing information

1 - Indications of the cost of audiotext services shall, depending on the service, mention:

a) The cost per minute;

b) The cost of each fifteen-second period, solely for services with a maximum duration of one minute and provided that the provider's equipment automatically terminates the call once this period has elapsed;

c) The cost of the call, for all services with fixed call costs, regardless of its duration.

2 - Providers shall furnish users with information at the moment they connect to the service in the form of a ten-second recorded message charged at the rates of the telecommunications service that supports it. This message shall explain the nature of the service and, if applicable, that it is aimed at adults, and shall state the cost of the call in accordance with the regulations set out in the previous paragraphs.

3 - Audiotext services shall emit an audible signal at the end of each minute that has elapsed since the start of the call.

Article 9-A
Conditions for the provision of value-added message-based services

1 – Except for services referred to in paragraph 5, prior to the provision of the service, providers shall send to the customer a clear and unambiguous message, supported on the electronic communications service used to provide the service, which shall include:

a) The Identification of the service provider;

b) The nature of the service to be provided, the minimum contractual period, where appropriate, and where a continuous provision in concerned, the means to terminate the contract;

c) The total price due for the service;

d) A request for confirmation of the service demand.

2 – In case of a service which must be provided in a continuous fashion, the information in point c) of the preceding paragraph shall include the price of each received message and the price to be paid periodically.

3 – The absence of a reply to the request for confirmation provided for in point d) of paragraph 1 implies the absence of a contract.

4 – Value-added messages shall not be charged for the engaging of the service or confirmation of service demand.

5 – In the case of voting services, competitions or other services that in a similar way do not require the sending of contents, the sending of messages the contents of which consist in the transmission of the achieved result shall not be charged.

6 – Providers of services referred to in paragraph 2 c) of article 8 shall send to the donor messages with relevant tax information at no cost.

7 – The burden of proof of compliance with duties laid down in this article and of the presentation of the reply referred to in paragraph 3 falls on the service provider.

Article 10

[Repealed].

Article 11
Charges

1 - Charges shall be made for the following:

a) The act of registering;

b) Endorsements to the registration;

c) Substitution of the registration if lost.

2 – Service providers concerned by this statutory instrument who are established on national territory shall also be subject to the payment of an annual fee.

Article 12
Monitoring

1 - Without prejudice to the following paragraph, it is incumbent upon ICP - ANACOM to monitor if services provided are in conformity with assigned access codes, as well as compliance with article 9 and 9-A.

2 - Monitoring the provision of audiotext services shall also be incumbent on entities which, according to the subject matter, are endowed with powers, in the scope of the application of the Advertising Code and the Copyright and Related Rights Code, the applicable consumer protection and personal data legislation, Decree-Law No 422/89, of 2 December, as amended by Decree-Law No 10/95, of 19 January, and Decree-Law n.º 11 223, of 6 November 1925, and complementary legislation.

Article 13
Suspension and cancellation

2 – (Repealed.).

4 – The registration or assignment of new access codes to service providers in the situation referred to in the previous paragraph is prohibited.

Article 14
Administrative offence and fines