Ministério da Economia
(This is not an official translation of the law)
By judgement of 7 October 2010, the Court of Justice of the European Union (ECJ) ruled that the Portuguese State had failed to fulfil certain obligations under Directive 2002/22/EChttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:108:0051:0077:EN:PDF of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive), as amended by Directive no. 2009/136/EChttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:337:0011:0036:EN:PDF , of the European Parliament and of the Council of 25 November 2009.
The court ruling stems from a failure to correctly transpose the provisions of European Union law governing the designation of provider(s) of the universal service of electronic communication into national law; these provisions stipulate, specifically, that the providers in question are to be selected by means of a procedure that is open and transparent.
In particular, the ECJ held that Law no. 5/2004 of 10 February (Electronic Communications Law) does not guarantee full application of the Universal Service Directive, insofar as, under the terms of said Law, the bases of the public telecommunications service concession, as approved by Decree-Law no. 31/2003 of 17 February, remain in force. Under the terms of the concession bases, the universal service is granted under concession to PT Comunicações, S.A. until 2025.
Furthermore, under the Memorandum of Understanding on Specific Economic Policy Conditionality, concluded between the Portuguese State and the European Commission, the European Central Bank and the International Monetary Fund (Memorandum of Understanding), it was agreed that the Portuguese State shall undertake designation of the provider(s) of the universal service by means of an efficient, objective, transparent and non-discriminatory mechanism, and likewise, undertake to exclude the universal service from the scope of the concession contract concluded with PT Comunicações, S.A..
In order to fully comply with its obligations under the European and national legal frameworks, with the ECJ judgement and with the commitments undertaken in the Memorandum of Understanding, the Portuguese State launched appropriate procedures to select the providers of the service of connection to a public communications network at a fixed location and provision of a telephone service through that connection ("tender 1"), adequate provision of public pay-telephones ("tender 2"), and provision of a comprehensive telephone directory and directory enquiry service ("tender 3").
Meanwhile, Resolution of the Council of Ministers no. 66-A/2013 of 18 October approved the terms of an agreement, to be concluded between the State and PT Comunicações, S. A., to revoke the public telecommunications service concession contract. The same Resolution also approved the award to Optimus Comunicações, S.A., and to ZON TV Cabo Portugal, S.A., pursuant to tender 1, and the award to PT Comunicações, S.A., pursuant to tender 2.
In accordance with the provisions of tender 1, Optimus Comunicações, S.A., and ZON TV Cabo Portugal, S.A., are required to commence provision of the awarded services no later than 1 June 2014, until which time, the public telecommunications service concession, insofar as it applies to this component, is to remain in force temporarily, thereby ensuring the universal service's continuity.
Provision of the service of providing a comprehensive telephone directory and directory enquiry service was awarded to PT Comunicações, S. A., under Resolution of the Council of Ministers no. 70-B/2013 of 8 November.
The Portuguese State and PT Comunicações, S. A., have already concluded the agreement to revoke the public service telecommunications concession contract.
Accordingly, and as determined by Resolution of the Council of Ministers no. 66-A/2013 of 18 October, the present Decree-Law repeals Decree-Law no. 31/2003 of 17 February, repeals paragraphs 2 and 3 of article 12 of Law no. 91/97 of 1 August, as amended by Law no. 29/2002 of 6 December, and furthermore, in line with the ECJ judgment, repeals article 124 of the Lei das Comunicações Eletrónicas (Electronic Communications Law), thereby adapting the prevailing legal regime to the new regime governing provision of the universal service of electronic communications.
ICP-Autoridade Nacional de Comunicações was granted a hearing.
Pursuant to point a) of paragraph 1 of article 198 of the Constitution, the Government makes the following decree:
The present Decree-Law revokes Decree-Law no. 31/2003 of 17 February, which amends and replaces the bases of the public telecommunications service concession.
The following are repealed:
a) Paragraphs 2 and 3 of article 12 of Law no. 91/97 of 1 August, as amended by Law no. 29/2002 of 6 December and by Law no. 5/2004 of 10 February;
b) Article 124 of Law no. 5/2004 of 10 February;
c) Decree-Law no. 31/2003 of 17 February.
Entry into force
The present law enters into force on 1 June 2014.
Seen and approved by the Council of Ministers of 20 February 2014. - Pedro Passos Coelho - António de Magalhães Pires de Lima.
Promulgated on 4 March 2014.
Let it be published.
The President of the Republic, Aníbal Cavaco Silva.
Ratified on 5 March 2014.
The Prime Minister, Pedro Passos Coelho.