Ministério da Economia (Ministry of Economy)
Decree-Law
(This is not an official translation of the law)
CTT - Correios de Portugal, S.A., is on national territory the provider of the universal postal service since 1999, having the universal postal service concession bases been approved by Decree-Law No. 448/99, of 4 November, as amended by Decree-Laws No. 150/2001, of 7 May, 116/2003, of 12 June, and 112/2006, of 9 of June.
With the publication of Law No. 17/2012, of 26 April, which lays down the legal regime that governs the provision of postal services on national territory, under a full competition regime, as well as of international services to or from national territory, Directive 2008/6/EChttps://www.anacom.pt/render.jsp?contentId=986233 of the European Parliament and of the Council, of 20 February 2008, which amends Directive 97/67/EChttps://www.anacom.pt/render.jsp?contentId=986228 of the European Parliament and of the Council, of 15 December 1997, with regard to the full accomplishment of the internal market of Community postal services and the improvement of quality of service, was transposed to the national legal system.
Law No. 17/2012, of 26 April, maintains the appointment of CTT - Correios de Portugal S.A., as provider of the universal postal service, until 31 December 2020, being incumbent on the Government, under the same law, to amend to the bases of concession in force, according to the regime laid down therein.
This Decree-Law thus undertakes the referred amendment, bringing the bases of concession of the universal postal service in line with the legal framework resulting from Law No. 17/2012, of 26 April.
Moreover, more than a year after the date on which Law No. 17/2012, of 26 April took effect, it is deemed appropriate to introduce a few amendments on certain points, related to the regime that applies to the quality and prices of the universal service, bearing in mind the European legal framework, as well as the cancellation of the entry in the register of postal service providers.
The Conselho Nacional do Consumo (the National Consumer Council) was heard.
Therefore:
Under paragraph 6 of article 57 of Law No. 17/2012, of 26 April, and pursuant to paragraph 1 a) of article 198 of the Constitution, the Government hereby decrees as follows:
Article 1
Subject-matter
This Decree-Law introduces the first amendment to Law No. 17/2012, of 26 April, and the fourth amendment to the bases of the concession of the universal postal service, approved by Decree-Law No. 448/99, of 4 November, as amended by Decree-Laws No. 150/2001, of 7 May, 116/2003, of 12 June, and 112/2006, of 9 of June.
Article 2
Amendment to Law No. 17/2012, of 26 April
Articles 13, 14 and 35 of Law No. 17/2012, of 26 April , are hereby amended to read as follows:
«Article 13
[...]
1 - Parameters of quality of service and performance objectives associated to the universal service provision, related in particular to routing times, the regularity and reliability of services, as well as rules on their measurement, monitoring and disclosure, shall be set out by ICP-ANACOM for a three-year minimum multiannual period, having heard universal service providers and consumer organizations, pursuant to article 43.
2 - [...].
3 - [...].
4 - The results of the measurement referred to in the preceding paragraph shall be the subject of a report published at least once a year by providers of the universal service.
5 - ICP-ANACOM shall ensure that levels of quality of service provided by universal service providers are submitted to audits and other control mechanisms carried out independently, in order to ensure the accurateness and comparability of data provided by universal service providers.
6 - [...].
Article 14
[...]
1 - [...].
2- [Repealed.]
3 - ICP-ANACOM shall establish for a three-year minimum multiannual period the criteria governing the setting of prices of postal services that integrate the universal service.
4 - [...].
5 - [...].
6 - [...].
7 - [...].
8 - [...].
a) [...].
b) [...].
c) [...].
d) Determine the amendment of prices of postal services that integrate the universal service provision, as well as the amendment or removal of conditions associated to prices, duly substantiated as regards compliance with principles provided for in paragraph 1 hereof, taking into account the quality of service provided, to the extent necessary to promote effective competition or to protect the interest of users.
Article 35
[...]
1 - [Former body of the article].
2 - The entry in the record shall be cancelled by ICP-ANACOM where providers terminate their activity.»
Article 3
Amendment to the bases of the concession of the universal postal service
Bases I, II, V, VI, VII, VIII, IX, X, XII, XIII, XIV, XV, XVII, XX, XXII, XXIII, XXIV, XXV, XXVI, XXVII, XXIX, XXXI, XXXIV, XXXV, XXXVI, XXXVII and XXXVIII of the concession of the universal postal service, approved by Decree-Law No. 448/99, of 4 November, as amended by Decree-Laws No. 150/2001, of 7 May, 116/2003, of 12 June, and 112/2006, of 9 of June, are hereby amended to read as follows:
Base I
[...]
1 - [...]:
a) […];
b) […];
c) [Repealed.]
d) [Repealed.]
e) [...];
f) [Repealed.]
g) [...];
h) Postal establishments, locations where concessionary postal services are provided and where other services and products supplied by the concessionaire and by third parties may be purchased, namely post stations and post offices;
i) Post stations, concessionary establishments where concessioned postal services are provided and where other services and products may be supplied by the concessionaire and by third parties, according to the concessionary’s objectives;
j) Post offices, establishments of public or private bodies where, in parallel with other activities, concessioned postal services are provided, within the framework of a contract or other legal instrument concluded with the concessionaire.
2 - The definitions and classifications set out in Law No. 17/2012, of 26 April, apply to the present Bases.
Base II
Subject-matter and scope of the concession
1 - [...]
a) The provision of the universal postal service under the terms and with the scope defined in articles 10 to 12 of Law No. 17/2012, of 26 April, including the registered mail service used in court or administrative proceedings;
b) The issue and sale of stamps, stamped post-cards and other stamped items bearing the word “Portugal”;
c) The sitting of letter boxes on the public highway intended for the deposit of postal items;
d) The provision of the electronic mailbox public service, provided for in Resolution of the Council of Ministers No. 50/2006, and defined in article 4 of Decree-Law No. 112/2006, of 9 June, which enables subscribers to this service to receive, by electronic means or by electronic and physical means, written or other communications from services and bodies of the State’s direct, indirect and autonomous administration, as well as from independent administrative bodies and from courts, namely including legal summons and notifications in the field of administrative procedures and judicial procedures, of any nature, invoices, acknowledgments of receipt, postal items and direct mail;
e) The provision of special payment order services that allows the transfer of funds, by electronic and physical means, of a national and international scope, known as postal order service;
2 - The registered mail service used in court or administrative proceedings referred to in point a) of the preceding paragraph, as well as services and activities referred in points b), c) and e) of the same paragraph, shall be exclusively provided by the concessionaire.
3 - The concession integrates the maintenance, development and operation of the set of human and material resources required for the provision of the universal postal service and other services and activities integrated within the subject-matter of the concession, which consist in the postal network allocated to the concession.
4 - In addition to the provision in paragraph 1, the grantor, on grounds of public interest, may charge the concessionaire with the operation of other services under conditions to be agreed upon between both parties, which must be added to the concession contract, preceded by the corresponding amendment to the present bases of concession.
Base V
Postal network allocated to the concession
1 - The concessionaire undertakes to allocate to the concession the set of human and material resources required for the provision of the universal postal service and other services and activities integrated within the subject-matter of the concession, namely including those in the its operating units.
2 - The provision in the preceding paragraph shall be without prejudice to the possibility of sale, replacement or encumbrance of assets that integrate the postal network allocated to the concession, excluding those which are part of the State’s public or private domain, insofar as this does not affect the provision of concessionary services.
3 - [Repealed.]
Base VI
[...]
1 - The concession contract shall be valid until 31 December 2020.
2 - [Repealed.]
3 - [Repealed.]
4 - [Repealed.]
5 - [Repealed.]
6 - [Repealed.]
7 - [Repealed.]
Base VII
[...]
1 - In addition to concessionary services, the concessionaire is entitled to provide, both in Portugal and abroad, other postal services, under paragraph 8 of article 57 of Law No. 17/2012, of 26 April, as well as to pursue any other activities which allow the improvement of the public postal network’s profitability, either directly or by creating or participating in companies or other legal forms of cooperation between undertakings.
2 - Activities referred to in the preceding paragraph comprise the provision of services of public or general interest, according to conditions to be agreed with the State, and may also include the provision of banking services.
3 - The provision of services and pursue of activities referred to in the preceding paragraphs shall not affect compliance by the concessionaire with its obligations under the concession contract, and where appropriate, shall be governed by the respective qualifying documents and other legislation and regulations that apply to services and activities concerned.
Base VIII
[...]
1 - [...]
a) To ensure the provision of concessionary services across national territory;
b) [...];
c) To guarantee and enforce secrecy and inviolability of postal items, as well as data protection, subject to any restrictions and exceptions laid down by law;
d) [...];
e) To guarantee a level playing field for all persons as regards an equal and transparent access to and use of concessionary services, upon fulfilment with requirements and payment of corresponding prices, and any undue or unjustified preference or discrimination shall not be demonstrated towards any natural or legal person requesting such services;
f) To publish in an appropriate form, namely in its website, and to regularly supply users with information on general conditions of access to and use of services provided, as well as on respective prices and levels of quality;
g) To make available and to submit to ICP-ANACOM all information and statistical data deemed by the Regulatory Authority to be necessary for the monitoring of activities pursued in the scope of the concession, including those requested under article 45 of Law No. 17/2012, of 26 April;
h) [...];
i) To comply with national laws in force, where appropriate, and with orders, injunctions, commands, directives and instructions addressed to it under the law by relevant authorities, as well as with determinations that, under the concession contract, are addressed to it by the grantor or by ICP-ANACOM;
j) [...];
k) [Former point l)];
l) To ensure the provision of user support services, namely by making available a suitable information, support and complaint handling system, under article 41 of Law No. 17/2012, of 26 April;
m) To adopt measures which ensure the ease of use by users with special needs, namely by adapting the structures where this service is provided so as to ensure an easy access thereto, under the law;
n) To comply with obligations required by the provision of the universal postal service arising from the international binding of the Portuguese State.
2 - For the purposes of points c) and d) of the previous paragraph, the concessionaire undertakes to take all necessary and appropriate measures within its power to ensure and enforce the inviolability and confidentiality of postal items, as well as the protection of personal data and of privacy, under existing legislation, and it shall not be liable for any actions or omissions for which it is not responsible.
3 - The concessionaire’s employees and other workers are required not to disclose the contents of postal items or other information they become aware of in the course of their duties, except where lawfully permissible.
Base IX
Specific obligations in the scope of the postal network
1 - The following obligations shall be complied with by the concessionaire as regards the postal network allocated to the concession:
a) To establish the postal network and to guarantee its good working order, safety and preservation, as well as to look after its functionality and proper operation;
b) To develop the postal network in both qualitative and quantitative terms, so as to ensure the appropriate levels of quality of services provided on the network, and meeting the objectives set out under Base XV;
c) To comply with applicable legislation in the scope of regional planning and the environment and heritage protection.
2 - In addition to the preceding paragraph, the following obligations shall also be complied with by the concessionaire:
a) To ensure to other postal service providers the access, under transparent and non-discriminatory conditions, to the universal network, pursuant to article 38 of Law No. 17/2012, of 26 April;
b) To make available to other postal service providers the access to elements of its postal infrastructure or to services it provides, under article 39 of Law No. 17/2012, of 26 April.
Base X
Specific obligations in the context of concessionary services
1 - The following specific obligations are incumbent upon the concessionaire when providing postal item delivery services included in the scope of the universal postal service, referred to in paragraph 1 a) of Base II:
a) Collection of postal items at least once a day, and on every working day, from points of access to the universal service network, except under exceptional circumstances or geographical conditions previously defined by ICP-ANACOM;
b) Distribution of postal items at least once a day, and on every working day, to the address of each addressee, except under exceptional circumstances or geographical conditions previously defined by ICP-ANACOM or, in cases and conditions previously defined by ICP-ANACOM, at appropriate locations.
2 - Distributors of postal items in the scope of legal summons and notification services by post, provided for in paragraph 1 a) of Base II:
a) Are deemed to be employees for the purposes of paragraph 1 d) of article 386 of the Criminal Code;
b) Shall observe procedural rules as regards legal summons and notification by post, namely the provisions of article 228 and 246 of the Civil Procedure Code and article 113 of the Criminal Procedure Code.
3 - The specific obligations for the concessionaire in the scope of the issue and sale of stamps, stamped post-cards and other stamped items, of the electronic mailbox public service and of the postal order service referred to in points b), d) and e) of paragraph 1 of base II, shall be governed by specific national regulations, and by international regulations in the case of the postal order service.
4 - [Repealed.]
Base XII
[...]
1 - The concessionaire undertakes to provide the services that integrate the universal service according to the parameters of quality of service and performance objectives set out by ICP-ANACOM under paragraph 1 of article 13 of Law No. 17/2012, of 26 April.
2 - Without prejudice to applicable penalties, in case of failure to comply with performance objectives set out under paragraph 1 of article 13 of Law No. 17/2012, of 26 April, ICP-ANACOM shall apply mechanisms to compensate users of the universal service, pursuant to article 47 of Law No. 17/2012, of 26 April.
Base XIII
[...]
1 - The concessionaire undertakes to be provided with a cost accounting system, under articles 15 and 16 of Law No. 17/2012, of 26 April.
2 - The cost accounting system referred in the preceding paragraph shall also allow the separation of accounts between each of the concessionary services and products, and articles 15 and 16 of Law No. 17/2012, of 26 April, shall apply, duly adapted.
3 - [Repealed.]
Base XIV
[...]
1 - The concessionaire undertakes to draft and to maintain an up-to-date inventory of real estate and movable property allocated to the concession, the purchase value of which exceeds the amount defined by ICP-ANACOM under rules referred to in paragraph 4.
2 - The inventory referred to in the previous paragraph shall also include the goods referred to in paragraph 8.
3 - The inventory must make a clear distinction between goods allocated to the provision of the universal service and other goods allocated to the concession.
4 - Without prejudice to paragraph 8, it shall be incumbent on ICP-ANACOM, having heard the concessionaire, to define the rules on the asset inventory allocated to the concession referred to in paragraph 1.
5 - ICP-ANACOM shall assess whether the inventory complies with the rules defined and shall decide on an annual basis whether to approve it.
6 - [Former paragraph 3].
7 - Without prejudice to other applicable penalties, in the event of failure to comply with paragraph 1 or with rules defined under paragraph 4, or where the inventory is not approved, under the preceding paragraph, the grantor reserves the right to carry out the inventory of property allocated to the concession, with the concessionaire bearing the corresponding costs.
8 - The State’s private and public property allocated to the concession shall be governed by standards that apply specifically, namely the legal regime of the real estate management of the public domain of the State, Autonomous Regions and local authorities and the legal regime of the real estate management of the private domain of the State and public institutes, provided for in the law, specifically as regards inventories.
Base XV
Objectives concerning the development of the postal network
and minimum services provided
1 - It shall be incumbent on the concessionaire to communicate to ICP-ANACOM:
a) Development objectives for postal establishments and other points of access to the postal network allocated to the concession;
b) Objectives as regards the minimum services provided, including rules on minimum operating periods of postal establishments.
2 - The objectives and rules referred to in the preceding paragraph shall be set for three-year periods, and may be reviewed prior to the expiry of each period, where required by the exceptional circumstances of the case.
3 - For the purposes of paragraph 1, the concessionaire shall take specifically account of the following factors:
a) Distribution of the population on national territory;
b) Distance between access points;
c) Urban or rural nature of areas covered;
d) Traffic and demand evolution.
4 - The communication referred to in paragraph 1 must be substantiated on the basis of factors indicated in the preceding paragraph.
5 - Where ICP-ANACOM considers that objectives and rules presented by the concessionaire fail to meet the needs of users, it shall notify the concessionaire, stating its reasons, within 60 days from the communication referred to in the preceding paragraph, so that the latter reviews such objectives and rules within 30 working days.
6 - Where, after the review referred to in the preceding paragraph, ICP-ANACOM considers that objectives and rules presented by the concessionaire still fail to meet the needs of users, the Authority shall issue a determination, having heard users and the concessionaire, within 60 working days, setting out the referred objectives and rules, based on factors indicated in paragraph 3.
7 - Where ICP-ANACOM deems, further to the communication from the concessionaire referred to in paragraph 1 or to the reviewed proposal mentioned in the preceding paragraph, that objectives and rules presented by the concessionaire are suitable to meet the needs of users, it shall issue a decision approving the referred objectives, having heard users, within 50 working days.
8 - The establishment of objectives concerning the development of the postal network and minimum services provided shall take into due account the principles laid down in Law No. 17/2012, of 26 April, namely those set out in paragraph 2 a) and b) thereof, so as to ensure the existence, availability, accessibility and quality of the universal service provision, as well as the economic and financial sustainability and viability of the universal service provision.
Base XVII
[...]
1 - The supervision of the concession, including the monitoring of the postal network allocated to the concession, shall be incumbent on the member of the Government responsible for the finance area, as far as financial matters are concerned, and as regards all other matters, on the member of the Government responsible for the communications area, assisted by ICP-ANACOM, and individually on ICP-ANACOM, in the scope of its assignments.
2 - For the purpose of the preceding paragraph, the concessionaire shall provide to the member of the Government responsible for the finance area or body indicated for this purpose by the latter, to the member of the Government responsible for the communications area and to ICP-ANACOM all required co-operation, undertaking to provide access to its facilities, equipment of whatsoever nature and all documentation and files, to provide any requested information and elements, namely statistics and management records that are used, affording in respect of such documents all required clarifications, and within the required time-limits, form and degree of detail.
3 - At the request of ICP-ANACOM and in the presence of the concessionaire’s representatives, inspections may be carried out to allow the verification of the operating and safety conditions and state of repair of the postal network allocated to the concession, as well as the quality levels provided in the various services included in the concession.
4 - ICP-ANACOM’s determinations that are issued in the scope of its supervisory powers shall be applied within the time period established for this purpose and shall bind the concessionaire, without prejudice to the possibility to resort to the dispute settlement procedure provided for in base XXXVII.
5 - ICP-ANACOM and its officials must keep secret any information collected, namely those of a commercial nature, in the scope of supervisory measures carried out, and shall not use nor disclose such information for other purposes than the supervisory measure itself or some other purpose deemed relevant under the law.
6 - Where the concessionaire fails to comply with the determinations issued by ICP-ANACOM in the scope of its supervisory powers, the Authority shall be entitled to rectify the situation, either directly or through third parties, the corresponding costs being borne by the concessionaire, without prejudice to the applicable penalties.
Base XX
[...]
1 - The concessionaire shall not, without the authorisation of the grantor, make any corporate decision which directly or indirectly aims or leads to one of the following situations:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...].
2 - [...].
3 - It shall be incumbent upon the concessionaire, according to the objectives concerning the development of the postal network and minimum services provided set out under base XV:
a) [...];
b) [...].
4 - [Repealed.]
Base XXII
[...]
1 - [...].
2 - Pursuant to the preceding paragraph, the concessionaire is specifically entitled to sub-contract:
a) Any of the operations that integrate the postal service activity, defined as such in article 4 of Law No. 17/2012, of 26 April;
b) [...];
c) [...].
3 - [...].
Base XXIII
[...]
1 - [...].
2 - [...]:
a) [...];
b) [...];
c) To carry out, under the law and according to the urban building and development legal regime, exempted from prior control, any works required to sit letter boxes on the public highway intended for the deposit of postal items;
d) To request from the member of the Government responsible for the communications area compulsory purchases in the public interest, to request the constitution of administrative easements, to set up protection areas and to access land and public buildings, where this is required to ensure the operation of concessionary services, while respecting legislation in force.
Base XXIV
[...]
1 - The concessionaire shall define the prices of services that integrate the universal service according to articles 14 and 14-A of Law No. 17/2012, of 26 April.
2 - [Repealed.].
3 - [Repealed.].
4 - [Repealed.].
5 - [Repealed.].
6 - [Repealed.].
Base XXV
[...]
1 - [...].
2 - Agreements on terminal dues concluded by the concessionaire shall comply with principles referred to in the preceding paragraph.
3 - The concessionaire must notify ICP-ANACOM of agreements mentioned in the preceding paragraph within 30 days of their conclusion.
Base XXVI
Universal service compensation and funding
1 - The concessionaire is entitled to a compensation for the net cost of the universal service pursuant to articles 18 and 19 of Law No. 17/2012, of 26 April.
2 - Having been found the existence of a net cost of the universal service that is deemed by ICP-ANACOM to be an unfair financial burden, it shall be compensated via the compensation fund provided for in articles 20 to 22 of Law No. 17/2012, of 26 April.
Base XXVII
[...]
1 - Without prejudice to breaches which may give rise to sequestration or termination of the concession under Bases XXIX and XXXIV, failure by the concessionaire to comply with obligations arising under the concession, with determinations issued by the grantor under the law or the concession contract, or with ICP-ANACOM’s determinations issued pursuant to paragraph 4 of base XVII, shall entail the application of contractual fines of an amount up to 565 000 (Euro), which shall be updated every year by the index of consumer prices, according to the seriousness of infringements committed and injuries resulting therefrom, as well as to the degree of fault of the concessionaire.
2 - [...].
3 - Fines referred to in paragraph 1 shall be applied by order of the member of the Government responsible for the communications area, on ICP-ANACOM’s proposal, they shall be notified in writing to the concessionaire, and become operational irrespective of any other formality.
4 - The amount of fines applied under the present base shall revert at 60% to the State and at 40% to ICP-ANACOM.
5 - The payment of fines applied under the present Base shall not relieve the concessionaire from civil liability for losses and damages resulting from the infringement.
Base XXIX
[...]
1 - [...].
2 - [...]:
a) [...];
b) [...];
c) Shortcomings in the general state of facilities and equipment of the postal network allocated to the concession which compromise the continuity and or quality of the provision of services included in the concession.
3 - [...].
4 - [...].
5 - [...].
6 - [...].
Base XXXI
[...]
1 - Without prejudice to point k) of paragraph 1 of base VIII and to the preceding base, in the event of war or crisis, the grantor reserves the right, through the member of the Government responsible for the communications area, to manage and operate services included in the concession.
2 - [...].
Base XXXIV
[...]
1 - [...]:
a) Failure to comply with obligations assumed by the concessionaire under the concession contract;
b) Infringement of legislation applicable to the concessionary activity;
c) [...];
d) Unfounded and repeated opposition to inspection and repeated and unjustified disobedience to legitimate determinations issued by the grantor and ICP-ANACOM;
e) Refusal to properly maintain and repair facilities and equipment that integrate the postal network allocated to the concession;
f) [...];
g) Intentional failure to comply with final judgments and arbitration awards.
2 - Where any of the cases of non-compliance which under the preceding paragraph are grounds for termination of the concession, occur, the grantor shall notify the concessionaire to comply with its obligations in full within the period set for this purpose, and to rectify or remedy the consequences of its acts, except in the case of an irredeemable infringement.
3 - [...].
4 - The termination shall be incumbent upon the member of the Government responsible for the communications area and shall take effect upon notification of the concessionaire, regardless of any other formality.
5 - [...].
Base XXXV
[...]
1 - [...].
2 - On expiry of a one-year-period from the notification of redemption, the grantor shall assume all rights and obligations taken on by the concessionaire prior to the date of notification, in order to ensure the continuation of activities and the provision of concessionary services, and also those which have been taken on by the concessionaire further to that date, insofar as they have been previously authorised by the grantor.
3 - In case of redemption, the concessionaire shall be entitled to a compensation of an amount that corresponds to the number of years that remain to the term of the concession, multiplied by the average value of Earnings before Interest, Taxes, Depreciation and Amortization (EBITDA) resulting from concessionary service provision activities, achieved in the five years preceding the redemption notification.
4 - [Repealed.]
Base XXXVI
[...]
1 - Without prejudice to paragraph 5 of base XXXIV, in case of extinction of the concession, for any of the reasons provided for in the law, all goods of the public and private domain of the State shall revert free-of-charge and automatically to the grantor; the concessionaire undertakes to return them in perfect conditions of operation, preservation and safety, without prejudice to the normal wear and tear resulting from their use and free of any foreseeable liabilities, and shall not invoke, on any grounds, a withholding right.
2 - [...].
3 - [...].
Base XXXVII
Dispute settlement procedure
1 - Any disputes arising between the parties as regards the application, interpretation or incorporation of gaps of the concession contract shall be settled by an arbitral tribunal, in accordance with the following base.
2 - The submission of any matter to the dispute settlement process shall not release the concessionaire from the timely compliance with the provisions of the present Bases and determinations issued by the grantor or by ICP-ANACOM and notified to it in this scope, including those that have been issued after the date of such submission, nor shall it allow any interruption in the pursue of activities included in the concession, which shall be carried out in accordance with the terms in force on the date of submission of the matter, until a final decision is given in the respective dispute settlement procedure.
Base XXXVIII
[...]
1 - [...].
2 - The party that decides to submit a dispute to an arbitral court under the preceding paragraph shall present its reasons for doing so, and immediately choose its own arbitrator in the application for the set up of an arbitral court, which must be addressed to the other party by means of a registered letter with acknowledgement of receipt, and the latter, within 20 working days of receipt of the registered letter, shall choose its own arbitrator and arrange for his defence.
3 - The arbitrators chosen under the preceding paragraph shall appoint the third court arbitrator within 10 working days from the appointment of the arbitrator chosen by the defendant.
4 - Where no agreement is reached as regards the appointment of the third arbitrator, the choice shall be made by the President of the Lisbon Court of Appeal, at the request of either party.
5 - [...].
6 - The arbitral court may be assisted by technical experts appointed as deemed appropriate, and in all cases it shall be advised by people or bodies with suitable legal training in Portuguese law.
7 - The arbitral court shall judge in accordance with existing law and no further appeal lies to any other court, without prejudice to legal provisions as regards the annulment of the arbitral decision.
8 - The decisions of the arbitral court shall be given within at the most six months from the date on which the court was set up, as determined under paragraph 5, representing the final decisions of the dispute settlement procedure and shall include the establishment of legal costs and the proportion to be paid by each party.
9 - [...].»
Article 4
Addition to Law No. 17/2012, of 26 April
Article 14-A is hereby added to Law No. 17/2012, of 26 April, and shall read as follows:
«Article 14-A
Regime of special prices
1 - Special tariffs and associated conditions of postal services that integrate the universal service provision, applied by universal service providers, namely for services for businesses, bulk mailers or consolidators of mail from different users, shall comply with the principles of transparency and non-discrimination, taking account of the avoided costs, as compared to the standard service covering the four operations integrated in the postal service.
2 - The special tariffs and conditions referred to in the preceding paragraph shall be applied equally, regardless of the type of beneficiary, and shall be available to users who post under similar conditions, in particular individual users and small and medium-sized enterprises.
3 - Universal service providers shall notify ICP-ANACOM of special tariffs to be applied for postal services integrating the universal service provision, before the date on which such prices take effect.
4 - In the scope of special tariffs, and after they take effect, ICP-ANACOM may determine their amendment, as well as the amendment or removal of conditions associated to prices, duly substantiated as regards compliance with principles provided for in paragraphs 1 and 2, taking into account the quality of service provided, to the extent necessary to promote effective competition or to protect the interest of users.»
Article 5
Transitional provision
1 - Rules with which the drawing up of the asset inventory allocated to the concession must comply with, provided for in paragraph 4 of base XIV of the bases of the concession of the universal postal service, approved by Decree-Law No. 448/99, of 4 November, as amended by Decree-Laws No. 150/2001, of 7 May, 116/2003, of 12 June, and 112/2006, of 9 of June, and as last amended by this Decree-Law, shall be defined by ICP-ANACOM within 180 days from the conclusion of the amendment to the universal service concession contract provided for in the preceding article.
2 - The concessionaire undertakes to make the communication referred to in paragraph 1 of base XV of the bases of the concession of the universal postal service, approved by Decree-Law No. 448/99, of 4 November, as amended by Decree-Laws No. 150/2001, of 7 May, 116/2003, of 12 June, and 112/2006, of 9 of June, and as last amended by this Decree-Law, by 31 December 2013, and the remaining time-limits provided for in the referred base shall be counted as from that communication.
3 - Until the definition of the development objectives of the postal network and of the minimum services provided under base XV of the bases of the concession of the universal postal service, approved by Decree-Law No. 448/99, of 4 November, as amended by Decree-Laws No. 150/2001, of 7 May, 116/2003, of 12 June, and 112/2006, of 9 of June, and as last amended by this Decree-Law, the concessionaire undertakes to maintain, at the very least, the levels of density of the postal network and service provision offers practised by 31 December 2013.
Article 6
Concession contract
The member of the Government responsible for the communications area shall be entitled, acting in the name and on behalf of the State, to amend the concession contract of the universal postal service, according to the amendment to the respective bases.
Article 7
Repealing provision
1 - Paragraph 2 of article 14 of Law No. 17/2012, of 26 April is hereby repealed.
2 - Paragraph 1 c), d) and f) of base I, bases III and IV, paragraph 3 of base V, paragraphs 2 to 7 of base VI, paragraph 4 f base X, paragraph 3 of base XIII, bases XVI, XVIII and XIX, paragraph 4 of base XX, paragraphs 2 to 6 of base XXIV, paragraph 4 of base XXXV, paragraph 9 of base XXXVIII and base XXXIV of the bases of the concession of the universal postal service, approved by Decree-Law No. 448/99, of 4 November, as amended by Decree-Laws No. 150/2001, of 7 May, 116/2003, of 12 June, and 112/2006, of 9 of June, are hereby repealed.
Article 8
Republication
The bases of the concession of the universal postal service, approved by Decree-Law No. 448/99, of 4 November, as amended by this Decree-Law and with the required material adjustments, are hereby republished in annex hereto, and deemed to be an integral part hereof.
Checked and approved in the Council of Ministers of 3 October 2013. - Paulo Sacadura Cabral Portas - Maria Luís Casanova Morgado Dias de Albuquerque - António de Magalhães Pires de Lima.
Promulgated on 14 November 2013.
Let it be published.
The President of the Republic, ANÍBAL CAVACO SILVA.
Countersigned on 15 November 2013.
The Prime Minister, Pedro Passos Coelho.
ANNEX
(Referred to in article 8)
Republication of the bases of the concession of the universal postal service
SECTION I
Definitions
Base I
Definitions
1 - For the purposes of the present bases, the following definitions shall apply:
a) Grantor, the Portuguese State;
b) Concessionaire, CTT - Correios de Portugal, S.A.;
c) [Repealed.]
d) [Repealed.]
e) Terminal dues, remuneration owed to the concessionaire for the transport, handling and distribution of international mail from foreign countries;
f) [Repealed.]
g) Case of force majeure - any unforeseeable or unavoidable event, the effects of which occur regardless of the will or personal circumstances of the parties, namely natural disasters, acts of war, whether declared or otherwise, subversion, public disturbance, economic blockade or fire.
h) Postal establishments, locations where concessionary postal services are provided and where other services and products supplied by the concessionaire and by third parties may be purchased, namely post stations and post offices;
i) Post stations, concessionary establishments where concessioned postal services are provided and where other services and products may be supplied by the concessionaire and by third parties, according to the concessionary’s objectives;
j) Post offices, establishments of public or private bodies where, in parallel with other activities, concessioned postal services are provided, within the framework of a contract or other legal instrument concluded with the concessionaire.
2 - The definitions and classifications set out in Law No. 17/2012, of 26 April, apply hereto.
SECTION II
Purpose and scope of the concession
Base II
Purpose and scope of the concession
1 - This concession is aimed at:
a) The provision of the universal postal service under the terms and with the scope defined in articles 10 to 12 of Law No. 17/2012, of 26 April, including the registered mail service used in court or administrative proceedings;
b) The issue and sale of stamps, stamped post-cards and other stamped items bearing the word “Portugal”;
c) The sitting of letter boxes on the public highway intended for the deposit of postal items;
d) The provision of the electronic mailbox public service, provided for in Resolution of the Council of Ministers No. 50/2006, and defined in article 4 of Decree-Law No. 112/2006, of 9 June, which enables subscribers to this service to receive, by electronic means or by electronic and physical means, written or other communications from services and bodies of the State’s direct, indirect and autonomous administration, as well as from independent administrative bodies and from courts, namely including legal summons and notifications in the field of administrative procedures and judicial procedures, of any nature, invoices, acknowledgments of receipt, postal items and direct mail;
e) The provision of special payment order services that allows the transfer of funds, by electronic and physical means, of a national and international scope, known as postal order service;
2 - The registered mail service used in court or administrative proceedings referred to in point a) of the preceding paragraph, as well as services and activities referred in points b), c) and e) of the same paragraph, shall be exclusively provided by the concessionaire.
3 - The concession integrates the maintenance, development and operation of the set of human and material resources required for the provision of the universal postal service and other services and activities integrated within the purpose of the concession, which consist in the postal network allocated to the concession.
4 - In addition to the provision in paragraph 1, the grantor, on grounds of public interest, may charge the concessionaire with the operation of other services under conditions to be agreed upon between both parties, which must be added to the concession contract, preceded by the corresponding amendment to the present bases of concession.
Base III
[Repealed.]
Base IV
[Repealed.]
Base V
Postal network allocated to the concession
1 - The concessionaire undertakes to allocate to the concession the set of human and material resources required for the provision of the universal postal service and other services and activities integrated within the purpose of the concession, namely including those in the its operating units.
2 - The provision in the preceding paragraph shall be without prejudice to the possibility of sale, replacement or encumbrance of assets that integrate the postal network allocated to the concession, excluding those which are part of the State’s public or private domain, insofar as this does not affect the provision of concessionary services.
3 - [Repealed.]
Base VI
Concession period
1 - The concession contract shall be valid until 31 December 2020.
2 - [Repealed.]
3 - [Repealed.]
4 - [Repealed.]
5 - [Repealed.]
6 - [Repealed.]
7 - [Repealed.]
Base VII
Other concessionaire services and activities
1 - In addition to concessionary services, the concessionaire is entitled to provide, both in Portugal and abroad, other postal services, under paragraph 8 of article 57 of Law No. 17/2012, of 26 April, as well as to pursue any other activities which allow the improvement of the public postal network’s profitability, either directly or by creating or participating in companies or other legal forms of cooperation between undertakings.
2 - Activities referred to in the preceding paragraph comprise the provision of services of public or general interest, according to conditions to be agreed with the State, and may also include the provision of banking services.
3 - The provision of services and pursue of activities referred to in the preceding paragraphs shall not affect compliance by the concessionaire with its obligations under the concession contract, and where appropriate, shall be governed by the respective qualifying documents and other legislation and regulations that apply to services and activities concerned.
SECTION III
Obligations of the concessionaire
Base VIII
General obligations of the concessionaire
1 - Under the concession contract, the concessionaire shall be bound to comply with the following general obligations:
a) To ensure the provision of concessionary services across national territory;
b) To provide concessionary services, ensuring their interoperability, continuity, availability and quality;
c) To guarantee and enforce secrecy and inviolability of postal items, as well as data protection, subject to any restrictions and exceptions laid down by law;
d) To ensure the protection of privacy as regards all postal services provided;
e) To guarantee a level playing field for all persons as regards an equal and transparent access to and use of concessionary services, upon fulfilment with requirements and payment of corresponding prices, and any undue or unjustified preference or discrimination shall not be demonstrated towards any natural or legal person requesting such services;
f) To publish in an appropriate form, namely in its website, and to regularly supply users with information on general conditions of access to and use of services provided, as well as on respective prices and levels of quality;
g) To make available and to submit to ICP-ANACOM all information and statistical data deemed by the Regulatory Authority to be necessary for the monitoring of activities pursued in the scope of the concession, including those requested under article 45 of Law No. 17/2012, of 26 April;
h) To allow and facilitate the supervision by the grantor of the concession contract performance, pursuant to base XVII;
i) To comply with national laws in force, where appropriate, and with orders, injunctions, commands, directives and instructions addressed to it under the law by relevant authorities, as well as with determinations that, under the concession contract, are addressed to it by the grantor or by ICP-ANACOM;
j) To comply with standards that come into force in the future, even where such standards prescribe arrangements which arise from public use needs or requirements of any of the services provided and not foreseen when the concession was granted;
k) To ensure in an apt and appropriate way, the operation of concessionary services in situations of crisis, emergency or wartime;
l) To ensure the provision of user support services, namely by making available a suitable information, support and complaint handling system, under article 41 of Law No. 17/2012, of 26 April;
m) To adopt measures which ensure the ease of use by users with special needs, namely by adapting the structures where this service is provided so as to ensure an easy access thereto, under the law;
n) To comply with obligations required by the provision of the universal postal service arising from the international binding of the Portuguese State.
2 - For the purposes of points c) and d) of the previous paragraph, the concessionaire undertakes to take all necessary and appropriate measures within its power to ensure and enforce the inviolability and secrecy of postal items, as well as the protection of personal data and of privacy, under existing legislation, and it shall not be liable for any actions or omissions for which it is not responsible.
3 - The concessionaire’s employees and other workers are required not to disclose the contents of postal items or other information they become aware of in the course of their duties, except where lawfully permissible.
Base IX
Specific obligations in the scope of the postal network
1 - The concessionaire shall comply with the following obligations as regards the postal network allocated to the concession:
a) To establish the postal network and to guarantee its good working order, safety and preservation, as well as to look after its functionality and proper operation;
b) To develop the postal network in both qualitative and quantitative terms, so as to ensure the appropriate levels of quality of services provided on the network, namely meeting the objectives set out under base XV;
c) To comply with applicable legislation in the scope of regional planning and the environment and heritage protection.
2 - In addition to the preceding paragraph, the concessionaire shall also comply with the following obligations:
a) To ensure to other postal service providers the access, under transparent and non-discriminatory conditions, to the universal network, pursuant to article 38 of Law No. 17/2012, of 26 April;
b) To make available to other postal service providers the access to elements of its postal infrastructure or to services it provides, under article 39 of Law No. 17/2012, of 26 April.
Base X
Specific obligations in the context of concessionary services
1 - The following specific obligations are incumbent upon the concessionaire when providing postal item delivery services included in the scope of the universal postal service, referred to in paragraph 1 a) of base II:
a) Collection of postal items at least once a day, and on every working day, from points of access to the universal service network, except under exceptional circumstances or geographical conditions previously defined by ICP-ANACOM;
b) Distribution of postal items at least once a day, and on every working day, to the address of each addressee, except under exceptional circumstances or geographical conditions previously defined by ICP-ANACOM or, in cases and conditions previously defined by ICP-ANACOM, at appropriate locations.
2 - Distributors of postal items in the scope of legal summons and notification services by post, provided for in paragraph 1 a) of base II:
a) Are deemed to be employees for the purposes of paragraph 1 d) of article 386 of the Criminal Code;
b) Shall observe procedural rules as regards legal summons and notification by post, namely the provisions of article 228 and 246 of the Civil Procedure Code and article 113 of the Criminal Procedure Code.
3 - The specific obligations for the concessionaire in the scope of the issue and sale of stamps, stamped post-cards and other stamped items, of the electronic mailbox public service and of the postal order service referred to in points b), d) and e) of paragraph 1 of base II, shall be governed by specific national regulations, and by international regulations in the case of the postal order service.
4 - [Repealed.]
Base XI
[Repealed.]
Base XII
Quality of service
1 - The concessionaire undertakes to provide the services that integrate the universal service according to the parameters of quality of service and performance objectives set out by ICP-ANACOM under paragraph 1 of article 13 of Law No. 17/2012, of 26 April.
2 - Without prejudice to applicable penalties, in case of failure to comply with performance objectives set out under paragraph 1 of article 13 of Law No. 17/2012, of 26 April, ICP-ANACOM shall apply mechanisms to compensate users of the universal service, pursuant to article 47 of Law No. 17/2012, of 26 April.
Base XIII
Cost accounting
1 - The concessionaire undertakes to be provided with a cost accounting system, under articles 15 and 16 of Law No. 17/2012, of 26 April.
2 - The cost accounting system referred in the preceding paragraph shall also allow the separation of accounts between each of the concessionary services and products, and articles 15 and 16 of Law No. 17/2012, of 26 April, shall apply, duly adapted.
3 - [Repealed.]
Base XIV
Concessionaire's inventory
1 - The concessionaire undertakes to draft and to maintain an up-to-date inventory of real estate and movable property allocated to the concession, the purchase value of which exceeds the amount defined by ICP-ANACOM under rules referred to in paragraph 4.
2 - The inventory referred to in the previous paragraph shall also include the goods referred to in paragraph 8.
3 - The inventory must make a clear distinction between goods allocated to the provision of the universal service and other goods allocated to the concession.
4 - Without prejudice to paragraph 8, it shall be incumbent on ICP-ANACOM, having heard the concessionaire, to define the rules on the asset inventory allocated to the concession referred to in paragraph 1.
5 - ICP-ANACOM shall assess whether the inventory complies with the rules defined and shall decide on an annual basis whether to approve it.
6 - In case the inventory fails to be approved, the inventory process shall be submitted to an arbitral court, for a decision.
7 - Without prejudice to other applicable penalties, in the event of failure to comply with paragraph 1 or with rules defined under paragraph 4, or where the inventory is not approved, under the preceding paragraph, the grantor reserves the right to carry out the inventory of property allocated to the concession, with the concessionaire bearing the corresponding costs.
8 - The State’s private and public property allocated to the concession shall be governed by standards that apply specifically, namely the legal regime of the real estate management of the public domain of the State, Autonomous Regions and local authorities and the legal regime of the real estate management of the private domain of the State and public institutes, provided for in the law, specifically as regards inventories.
Base XV
Objectives concerning the development of the postal
network and minimum services provided
1 - It shall be incumbent on the concessionaire to communicate to ICP-ANACOM:
a) Development objectives for postal establishments and other points of access to the postal network allocated to the concession;
b) Objectives as regards the minimum services provided, including rules on minimum operating periods of postal establishments.
2 - The objectives and rules referred to in the preceding paragraph shall be set for three-year periods, and may be reviewed prior to the expiry of each period, where required by the exceptional circumstances of the case.
3 - For the purposes of paragraph 1, the concessionaire shall take specifically account of the following factors:
a) Distribution of the population on national territory;
b) Distance between access points;
c) Urban or rural nature of areas covered;
d) Traffic and demand evolution.
4 - The communication referred to in paragraph 1 must be substantiated on the basis of factors indicated in the preceding paragraph.
5 - Where ICP-ANACOM considers that objectives and rules presented by the concessionaire fail to meet the needs of users, it shall notify the concessionaire, stating its reasons, within 60 days from the communication referred to in the preceding paragraph, so that the latter reviews such objectives and rules within 30 working days.
6 - Where, after the review referred to in the preceding paragraph, ICP-ANACOM considers that objectives and rules presented by the concessionaire still fail to meet the needs of users, the Authority shall issue a determination, having heard users and the concessionaire, within 60 working days, setting out the referred objectives and rules, based on factors indicated in paragraph 3.
7 - Where ICP-ANACOM deems, further to the communication from the concessionaire referred to in paragraph 1 or to the reviewed proposal mentioned in the preceding paragraph, that objectives and rules presented by the concessionaire are suitable to meet the needs of users, it shall issue a decision approving the referred objectives, having heard users, within 50 working days.
8 - The establishment of objectives concerning the development of the postal network and minimum services provided shall take into due account the principles laid down in Law No. 17/2012, of 26 April, namely those set out in paragraph 2 a) and b) thereof, so as to ensure the existence, availability, accessibility and quality of the universal service provision, as well as the economic and financial sustainability and viability of the universal service provision.
Base XVI
[Repealed.]
Base XVII
Supervision of the concession
1 - The supervision of the concession, including the monitoring of the postal network allocated to the concession, shall be incumbent on the member of the Government responsible for the finance area, as far as financial matters are concerned, and as regards all other matters, on the member of the Government responsible for the communications area, assisted by ICP-ANACOM, and individually on ICP-ANACOM, in the scope of its assignments.
2 - For the purpose of the preceding paragraph, the concessionaire shall provide to the member of the Government responsible for the finance area or body indicated for this purpose by the latter, to the member of the Government responsible for the communications area and to ICP-ANACOM, all required co-operation, undertaking to provide access to its facilities, equipment of whatsoever nature and all documentation and files, to provide any requested information and elements, namely statistics and management records that are used, affording in respect of such documents all required clarifications, and within the required time-limits, form and degree of detail.
3 - At the request of ICP-ANACOM and in the presence of the concessionaire’s representatives, inspections may be carried out to allow the verification of the operating and safety conditions and state of repair of the postal network allocated to the concession, as well as the quality levels provided in the various services included in the concession.
4 - ICP-ANACOM’s determinations that are issued in the scope of its supervisory powers shall be applied within the time period established for this purpose and shall bind the concessionaire, without prejudice to the possibility to resort to the dispute settlement procedure provided for in base XXXVII.
5 - ICP-ANACOM and its officials must keep secret any information collected, namely those of a commercial nature, in the scope of supervisory measures carried out, and shall not use nor disclose such information for other purposes than the supervisory measure itself or some other purpose deemed relevant under the law.
6 - Where the concessionaire fails to comply with the determinations issued by ICP-ANACOM in the scope of its supervisory powers, the Authority shall be entitled to rectify the situation, either directly or through third parugh third parties, the corresponding costs being borne by the concessionaire, without prejudice to the applicable penalties.
Base XVIII
[Repealed.]
Base XIX
[Repealed.]
Base XX
Decisions subject to authorisation
1 - The concessionaire shall not, without the authorisation of the grantor, make any corporate decision directly or indirectly aimed or leading to one of the following situations:
a) Alteration of corporate purpose;
b) Transformation, merger, split or dissolution of the company;
c) Reduction in share capital;
d) Total or partial, temporary or permanent suspension or termination of any of the services included in the concession or which the concessionaire must provide under the present bases;
e) Sale of financial participation in companies set up to provide concessionary services.
2 - The authorisation referred to in the preceding paragraph shall be deemed to be tacitly granted where it is not rejected within 30 days from the date the application is submitted.
3 - It shall be incumbent upon the concessionaire, according to the objectives concerning the development of the postal network and minimum services provided set out under base XV:
a) To establish and close postal establishments;
b) To change the working hours of postal establishments, taking into account service needs and levels of demand.
4 - [Repealed.]
Base XXI
Sub-concession
1 - Subject to the grantor’s prior approval, the concessionaire shall be allowed to provide for the sub-concession of all or part of the operation of any service included in the concession.
2 - The grantor’s authorisation shall be deemed to be tacitly granted where it is not rejected within 60 days from the date the application is submitted.
3 - Where the sub-concession is authorised, the concessionaire shall maintain its rights and shall remain directly and personally subject to obligations arising from the concession contract.
Base XXII
Participation of third parties in the activity
1 - Without prejudice to the preceding base, the concessionaire is hereby authorised to subcontract third parties to perform tasks and or provide services that constitute or that relate to obligations undertaken by the concessionaire under the concession contract.
2 - Pursuant to the preceding paragraph, the concessionaire is specifically entitled to sub-contract:
a) Any of the operations that integrate the postal service activity, defined as such in article 4 of Law No. 17/2012, of 26 April;
b) Post office services and the sale of stamps;
c) Other third party services which complement or support the operation of the concession;
3 - Where third parties take part in concession activities, the concessionaire shall maintain its rights and remain directly and personally subject to the obligations resulting herefrom.
SECTION IV
Rights of the concessionaire
Base XXIII
Rights of the concessionaire
1 - The concession contract represents sufficient basis for the provision of all concessionary services.
2 - Under the concession contract, the concessionaire shall expressly hold the following rights:
a) To operate the concession under the terms hereof;
b) To charge the prices of services provided;
c) To carry out, under the law and according to the urban building and development legal regime, exempted from prior control, any works required to sit letter boxes on the public highway intended for the deposit of postal items;
d) To request from the member of the Government responsible for the communications area compulsory purchases in the public interest, to request the constitution of administrative easements, to set up protection areas and to access land and public buildings, where this is required to ensure the operation of concessionary services, while respecting legislation in force.
Base XXIV
Universal service pricing system
1 - The concessionaire shall define the prices of services that integrate the universal service according to articles 14 and 14-A of Law No. 17/2012, of 26 April.
2 - [Repealed.].
3 - [Repealed.].
4 - [Repealed.].
5 - [Repealed.].
6 - [Repealed.].
Base XXV
Terminal dues
1 - Terminal dues shall be transparent and non-discriminatory, and shall be defined according to costs incurred by the concessionaire with the transport, handling and distribution of incoming international post and related with the quality of service provided.
2 - Agreements on terminal dues concluded by the concessionaire shall comply with principles referred to in the preceding paragraph.
3 - The concessionaire must notify ICP-ANACOM of agreements mentioned in the preceding paragraph within 30 days of their conclusion.
Base XXVI
Universal service compensation and funding
1 - The concessionaire is entitled to a compensation for the net cost of the universal service pursuant to articles 18 and 19 of Law No. 17/2012, of 26 April.
2 - Having been found the existence of a net cost of the universal service that is deemed by ICP-ANACOM to be an unfair financial burden, it shall be compensated via the compensation fund provided for in articles 20 to 22 of Law No. 17/2012, of 26 April.
SECTION V
Breach of contract
Base XXVII
Contractual fines
1 - Without prejudice to breaches which may give rise to sequestration or termination of the concession under bases XXIX and XXXIV, failure by the concessionaire to comply with obligations arising under the concession, with determinations issued by the grantor under the law or the concession contract, or with ICP-ANACOM’s determinations issued pursuant to paragraph 4 of base XVII, shall entail the application of contractual fines of an amount up to 565 000 (Euro), which shall be updated every year by the index of consumer prices, according to the seriousness of infringements committed and injuries resulting therefrom, as well as to the degree of fault of the concessionaire.
2 - The application of fines shall be preceded of the hearing of the concessionaire pursuant to article 100 of the Code of Administrative Procedure.
3 - Fines referred to in paragraph 1 shall be applied by order of the member of the Government responsible for the communications area, on ICP-ANACOM’s proposal, they shall be notified in writing to the concessionaire, and become operational irrespective of any other formality.
4 - The amount of fines applied under the present base shall revert at 60% to the State and at 40% to ICP-ANACOM.
5 - The payment of fines applied under the present base shall not relieve the concessionaire from civil liability for losses and damages resulting from the infringement.
Base XXVIII
Non-contractual liability
Under provisions of general law, the concessionaire shall be liable for any damages caused to third parties, in the pursue of activities within the scope of the concession, for the fault or the risk involved, the grantor taking in this regard no responsibility.
Base XXIX
Seizure
1 - In case of a serious breach by the concessionaire of its obligations under the concession contract, the grantor shall be entitled, through seizure, to take charge of activities and the operation of services included in the concession.
2 - Seizure may specifically take place should any of the following situations occur:
a) Termination or total or partial interruption of activities and of the operation of services included in the concession;
b) Serious shortcomings in the normal pursue of activities and the operation of services included in the concession, as well as situations of insecurity of people and property;
c) Shortcomings in the general state of facilities and equipment of the postal network allocated to the concession which compromise the continuity and or quality of the provision of services included in the concession.
3 - Where a situation that may give rise to seizure occurs under the terms provided for in the preceding paragraphs, the provisions of paragraphs 2 and 3 of base XXXIV, on the procedure for remedy of breaches, shall apply, duly adapted.
4 - After the seizure takes place, the concessionaire shall bear any costs resulting from the maintenance of services as well as any extraordinary expenses required to resume normal operation.
5 - As soon as the reasons for seizure cease to exist and where deemed by the grantor to be appropriate, the concessionaire shall be notified to resume the normal operation of those activities and services included in the concession, within the time period laid down for the purpose.
6 - Where the concessionaire does not wish or is unable to resume the concession or, having done so, should there still be serious shortcomings in the operation of activities and services included in the concession, the grantor is entitled to determine the immediate termination of the contract.
Base XXX
Force majeure
1 - Where cases of force majeure occur while the concession contract is in force which prevent compliance with obligations by either party or which require the suspension of concessionary services, the corresponding obligations or the contract shall be suspended in full or in part for the period corresponding to that of the duration of the case of force majeure, or the contract shall be revised by mutual agreement, where appropriate.
2 - The party that intends to invoke a case of force majeure shall notify the other party as soon as it becomes aware thereof, stating its impact on contract performance.
3 - Without prejudice to the possibility of the agreement provided for in paragraph 1, should a case of force majeure occur, the concessionaire shall always provide for the operation and continuity of postal services, taking any measures deemed to be necessary and appropriate for this purpose, namely in terms of planning, prevention of operation and human resources.
Base XXXI
War or crisis situation
1 - Without prejudice to point k) of paragraph 1 of base VIII and to the preceding base, in the event of war or crisis, the grantor reserves the right, through the member of the Government responsible for the communications area, to manage and operate services included in the concession.
2 - During the period referred to in the preceding paragraph, the concession period laid down under the contract shall be suspended with regard to the purpose of the concession.
SECTION VI
Modification and cancellation of contract
Base XXXII
Modification of contract
1 - Where, while the concession contract is in force, circumstances occur which, due to their importance and effects, should be considered as an irregular alteration of circumstances under article 437 of the Civil Code, the parties undertake to revise the contract in accordance with the principles of good faith and fairness.
2 - Where parties fail to reach an agreement as regards the alteration of the contract provided for in the preceding paragraph within a time period not exceeding 90 days as from the notification on the alteration of circumstances from either party to the other, recourse is had to the arbitral court provided for in base XXXVIII.
Base XXXIII
Cancellation of the concession
The concession shall be cancelled upon mutual agreement in this regard between the grantor and the concessionaire, on the grounds of termination, redemption or expiry.
Base XXXIV
Termination of the concession
1 - The grantor may terminate the concession, without prejudice to paragraph 2, in case of a serious, continuous and irredeemable breach of the concessionaire’s obligations, namely should any of the following facts occur:
a) Failure to comply with obligations assumed by the concessionaire under the concession contract;
b) Infringement of legislation applicable to the concessionary activity;
c) Dissolution of the concessionaire;
d) Unfounded and repeated opposition to inspection and repeated and unjustified disobedience to legitimate determinations issued by the grantor and ICP-ANACOM;
e) Refusal to properly maintain and repair facilities and equipment that integrate the postal network allocated to the concession;
f) Refusal or impossibility by the concessionaire to resume the concession operation under paragraph 5 of base XXIX, or, having done so, situations which led to the seizure remain;
g) Intentional failure to comply with final judgments and arbitration awards.
2 - Where any of the cases of non-compliance which under the preceding paragraph are grounds for termination of the concession, occur, the grantor shall notify the concessionaire to comply with its obligations in full within the period set for this purpose, and to rectify or remedy the consequences of its acts, except in the case of an irredeemable infringement.
3 - Where the concessionaire fails to undertake the rectification or remedy of the consequences of its infringement under the terms determined by the grantor, the latter is entitled to terminate the concession, by means of a notification to the concessionaire.
4 - The termination shall be incumbent upon the member of the Government responsible for the communications area and shall take effect upon notification of the concessionaire, regardless of any other formality.
5 - In case of termination, all property and rights assigned permanently and necessarily to the concession shall revert to the State, without any compensation and without prejudice to the civil liability incurred by the concessionaire and to penalties provided for under the law or under the concession contract.
Base XXXV
Redemption of the concession
1 - The grantor is entitled to redeem the concession whenever the public interest so justifies, giving the concessionaire at least one year’s notice in this regard, after at least 15 years have elapsed since the commencement of the respective time period.
2 - On expiry of a one-year-period from the notification of redemption, the grantor shall assume all rights and obligations taken on by the concessionaire prior to the date of notification, in order to ensure the continuation of activities and the provision of concessionary services, and also those which have been taken on by the concessionaire further to that date, insofar as they have been previously authorised by the grantor.
3 - In case of redemption, the concessionaire shall be entitled to a compensation of an amount that corresponds to the number of years that remain to the term of the concession, multiplied by the average value of Earnings before Interest, Taxes, Depreciation and Amortization (EBITDA) resulting from concessionary service provision activities, achieved in the five years preceding the redemption notification.
4 - [Repealed.]
Base XXXVI
Reversion of goods and rights on expiry of the concession
1 - Without prejudice to paragraph 5 of base XXXIV, in case of cancellation of the concession, for any of the reasons provided for in the law, all goods of the public and private domain of the State shall revert free-of-charge and automatically to the grantor; the concessionaire undertakes to return them in perfect conditions of operation, preservation and safety, without prejudice to the normal wear and tear resulting from their use and free of any foreseeable liabilities, and shall not invoke, on any grounds, a withholding right.
2 - In case the reversion of goods to the grantor is not carried out under the conditions provided for in the preceding paragraph, the concessionaire shall duly compensate the grantor, the compensation being calculated under the terms of the law.
3 - Following the expiry of the concession, the grantor shall promote an inspection of goods referred to in paragraph 1, in which a representative of the concessionaire shall take part, and which is intended to verify the state of preservation or maintenance of such goods, the respective report being drawn up thereafter.
SECTION VII
Settlement of disputes
Base XXXVII
Dispute settlement procedure
1 - Any disputes arising between the parties as regards the application, interpretation or incorporation of gaps of the concession contract shall be settled by an arbitral tribunal, in accordance with the following base.
2 - The submission of any matter to the dispute settlement process shall not release the concessionaire from the timely compliance with the provisions of the present bases and determinations issued by the grantor or by ICP-ANACOM and notified to it in this scope, including those that have been issued after the date of such submission, nor shall it allow any interruption in the pursue of activities included in the concession, which shall be carried out in accordance with the terms in force on the date of submission of the matter, until a final decision is given in the respective dispute settlement procedure.
Base XXXVIII
Arbitral court
1 - Either party may submit the dispute to an arbitral court made up of three members, one being appointed by each of the parties and the third being chosen by mutual agreement of the arbitrators appointed by the parties.
2 - The party that decides to submit a dispute to an arbitral court under the preceding paragraph shall present its reasons for doing so, and immediately choose its own arbitrator in the application for the set up of an arbitral court, which must be addressed to the other party by means of a registered letter with acknowledgement of receipt, and the latter, within 20 working days of receipt of the registered letter, shall choose its own arbitrator and arrange for his defence.
3 - The arbitrators chosen under the preceding paragraph shall appoint the third court arbitrator within 10 working days from the appointment of the arbitrator chosen by the defendant.
4 - Where no agreement is reached as regards the appointment of the third arbitrator, the choice shall be made by the President of the Lisbon Court of Appeal, at the request of either party.
5 - The arbitral court shall be deemed to have been set up on the date whereupon the third arbitrator accepts his appointment and notifies both parties of his acceptance.
6 - The arbitral court may be assisted by technical experts appointed as deemed appropriate, and in all cases it shall be advised by people or bodies with suitable legal training in Portuguese law.
7 - The arbitral court shall judge in accordance with existing law and no further appeal lies to any other court, without prejudice to legal provisions as regards the annulment of the arbitral decision.
8 - The decisions of the arbitral court shall be given within at the most six months from the date on which the court was set up, as determined under paragraph 5, representing the final decisions of the dispute settlement procedure and shall include the establishment of legal costs and the proportion to be paid by each party.
9 - [Repealed.]
SECTION VIII
Transitional provisions
Base XXXIX
[Repealed.]
Base XL
Relations with third parties
The conclusion of the concession contract shall be without prejudice to the validity of all rights and obligations arising from contracts already concluded or to be concluded between the concessionaire and other postal administrations or bodies.
