Ministry of Economy
Decree-Law
(This is not an official translation of the law)
Ministry of Economy
Decree-Law
Decree-Law No. 195/99, of 8 June, which lays down the regime that governs guarantee deposits in contracts for the provision to consumers of essential public services provided for in Law No. 23/96, of 26 July (Essential Public Services Law), prohibits providers from demanding of consumers the payment of a guarantee deposit in order to guarantee compliance with obligations arising from the supply of essential public services, having also established that guarantee deposits provided by consumers should be refunded according to plans to be established by regulatory bodies of sectors concerned.
Notwithstanding the fact the plans for the refund of guarantee deposits provided for in Decree-Law No. 195/99, of 8 June, were drafted, it was found that a very substantial proportion thereof remained in the possession of service providers, on grounds related to difficulties in identifying holders of the right to reimbursement.
In order to enable the return of sums paid by consumers, the legal regime provided for in Decree-Law No. 195/99, of 8 June, was amended by Decree-Law No. 100/2007, of 2 April, which, on the one hand, established new calculation procedures and refund deadlines, on the part of service providers, of values concerning guarantee deposits provided by consumers, and, on the other, allocated to the then Instituto do Consumidor, I. P. (Consumer Institute) currently Direção-Geral do Consumidor (the Consumer Directorate-General) responsibility for the refund of sums claimed by consumers.
Decree-Law No. 100/2007, of 2 April, established a five-year time limit during which consumers were entitled to claim guarantee deposits and to address situations where guarantee deposits had not been claimed, having laid down that sums not reimbursed would revert to a fund, to be managed by the then Instituto do Consumidor, I. P., currently Direção-Geral do Consumidor, which would finance non-judicial means of access to justice by consumers and projects of a national, regional or local scope for promotion of consumer rights.
However, experience gained over these five years has shown that not all consumers are aware of the process for guarantee deposit reimbursement, which at the same time places a considerable administrative burden on the Public Administration.
Considering that the original responsibility for the collection of guarantee deposits lies with service providers, and seeking a quicker and more effective way to return to consumers the charged sums, this statutory instrument introduces the second amendment to the legal system in force, laying down the obligation on service providers to directly inform their clients - consumers - of their right to the refund of sums paid as guarantee deposits, the same obligation being required of municipalities, in the scope of the provision of water services.
This statutory instrument thus extends up to 31 December 2015 the time limit for consumers to apply for the refund of guarantee deposits provided to ensure compliance with obligations resulting from the supply of essential public services. At the same time, service providers are required to make again available to the public the list of consumers to whom the guarantee deposit has not yet been refunded.
On the other hand, and in order to speed up the guarantee deposit refund procedure, service providers are required to issue, where requested by consumers, a statement testifying that the consumer concerned is entitled to the reimbursement of the guarantee deposit.
In this respect, the at present Direção-Geral do Consumidor maintains its responsibility for the refund of guarantee deposits, however it replies only to consumer refund applications that have been validated beforehand by the respective service providers.
Lastly, and in order to contribute to the good functioning of the procedure now put in place, it is provided that regulatory bodies with competences at sector level must monitor and ensure compliance with provisions laid down in this statutory instrument.
The Comissão Nacional de Proteção de Dados (the National Data Protection Commission), the Associação Nacional de Municípios Portugueses (the National Association of Portuguese Municipalities) and the Entidade Reguladora dos Serviços Energéticos (Energy Services Regulatory Body) were heard.
The hearing of the Entidade Reguladora dos Serviços de Águas e Resíduos (the Water Supply and Waste Services Regulatory Body) and of the Conselho Nacional do Consumo (the National Consumer Council) was promoted.
Therefore:
Under point a) of paragraph 1 of article 198 of the Constitution, the Government hereby decrees as follows:
Article 1
Subject-matter
This statutory instrument introduces the second amendment to Decree-Law No. 195/99, of 8 June, as amended by Decree-Law No. 100/2007, of 2 April, extending the deadline for the submission of applications for refund to consumers of the value of certain essential public services guarantee deposits, and laying down for providers of such services additional obligations for provision of information to consumers to whom such guarantee deposits have not been yet refunded.
Article 2
Amendment to Decree-Law No. 195/99, of 8 June
Articles 6, 6-A and 6-C of Decree-Law No. 195/99, of 8 June, as amended by Decree-Law No. 100/2007, of 2 April, are hereby amended to read as follows:
«Article 6
[...]
1 - Guarantee deposits provided by consumers in cash, by cheque or electronic transfer up to the date this statutory instrument takes effect are refunded to consumers or their heirs, after being updated pursuant to paragraph 4.
2 - [Repealed].
3 - [Repealed].
4 - [...].
5 - [Repealed].
6 - [Repealed].
7 - [Repealed].
8 - [Repealed].
9 - [Repealed].
10 - [Repealed].
Article 6-A
[...]
1 - [...]
2 - [...]
3 - Where guarantee deposits have been received by providers of essential public services covered by this Decree-Law, including local authorities supplying such services, that later assigned the operation and management of their systems to current service providers, the former are required to deliver to the latter the amounts of guarantee deposits, as well as the list identifying consumers concerned by such sums.
4 - It is incumbent on providers of essential public services covered by this Decree-Law, including local authorities supplying such services, to inform consumers of the right to refund of the guarantee deposit provided, the deadline and respective applicable procedure, including locations were lists of consumers to whom the guarantee deposit has not been yet refunded are available.
5 - The information referred to in the preceding paragraph is provided by letter or email, in this case to consumers who have subscribed this way of communication, and may also be provided simultaneously with the delivery of the invoice.
6 - Providers of essential public services covered by this Decree-Law, including local authorities supplying such services, must broadly disclose, by the deadline referred to in paragraph 1 of article 6-C, the lists of consumers to whom the guarantee deposit has not been yet refunded, which only refers the full name of the consumer and the number of procurement contract, namely by:
a) Placing a visible sign at their consumer service premises; and
b) Advertising such list at their websites.
7 - Providers of essential public services covered by this Decree-Law, including local authorities supplying such services, must issue, where requested by consumers, a statement testifying that the consumer concerned is entitled to the refund of the respective guarantee deposit, which shall include:
a) The identification of the contract holder;
b) The identification of the service provider;
c) The contract number;
d) The address for supply of the service;
e) The value of the guarantee deposit provided.
Article 6-C
Responsibility of the Direção-Geral do Consumidor
1 - Having requirements set out in the preceding article been met, where the guarantee deposit has failed to be refunded by bodies that guarantee the supply of essential public services, the consumer may claim the respective amount before the Direção-Geral do Consumidor (the Consumer Directorate-General), by 31 December 2015.
2 - The Direção-Geral do Consumidor assesses the guarantee deposit refund application based on the submission by the consumer of the statement referred to in paragraph 7 of article 6-A.»
Article 3
Addition to Decree-Law No. 195/99, of 8 June
Articles 6-D, 6-E and 6-F are hereby added to Decree-Law No. 195/99, of 8 June, as amended by Decree-Law No. 100/2007, of 2 April, and shall read as follows:
«Article 6-D
Breaches
Violation of paragraphs 1 to 7 of article 6-A is deemed to be a breach liable to a fine from €500 to €5 000.
Article 6-E
Examination of files, application and product of fines
1 - It is incumbent on regulatory bodies with competences at sector level to initiate and to examine breach proceedings, and on chairs of the respective management boards to apply fines provided for in the preceding article.
2 - The amount of fines referred to in the preceding article revert at:
a) 60% to the State;
b) 40% to the body initiating and examining the file.
Article 6-F
Protection of personal data
1 - The processing of personal data provided for in this Decree-Law is governed by the legal regime laid down in the Law on Personal Data Protection, approved by Law No. 67/98, of 26 October, namely as regards the obligation to notify the processing of personal data of consumers to whom the guarantee deposit has not been yet refunded, to the Comissão Nacional de Proteção de Dados (the National Data Protection Commission) that falls on providers of essential public services covered by this Decree-Law, including local authorities supplying such services.
2 - The index-linking of consumer lists referred to in paragraph 6 of article 6-A to search engines is not permitted.»
Article 4
Complementary provision
1 - For the purpose of paragraphs 6 and 7 of article 6-A of Decree-Law No. 195/99, of 8 June, as amended by this statutory instrument, the Direção-Geral do Consumidor shall convey to providers of essential public services, including local authorities supplying such services, and also to regulatory bodies of sectors concerned, the lists of consumers to whom guarantee deposits have been refunded by the date of entry into force of this Decree-Law.
2 - The Direção-Geral do Consumidor shall comply with the provision in the preceding paragraph within 10 days from the date of entry into force of this Decree-Law.
3 - Providers of essential public services covered by this Decree-Law, including local authorities supplying such services, shall comply with provisions in paragraphs 4 to 6 of article 6-A of that Decree-Law, as amended by this statutory instrument, within 30 days from the date of entry into force hereof.
Article 5
Repealing provision
Paragraphs 2, 3 and 5 to 10 of article 6 of Decree-Law No. 195/99, of 8 June, as amended by Decree-Law No. 100/2007, of 2 April, are hereby repealed.
Article 6
Republication
1 - Decree-Law No. 195/99, of 8 June, with the current wording, is republished in annex to this Decree-Law, which is deemed to be an integral part hereof.
2 - For republication purposes, the present tense is adopted in the wording of all provisions and references to «by the Instituto do Consumidor, I. P.», «joint administrative rule», «of the Instituto do Consumidor, I. P.» and «the Instituto Regulador de Água e Resíduos is considered», should be read as, respectively, «by the Direção-Geral do Consumidor», «administrative rule», «of the Direção-Geral do Consumidor» and «the Entidade Reguladora dos Serviços de Águas e Resíduos is considered».
Article 7
Entry into force and effect
1 - This statutory instrument shall enter into force on the 10th day following its publication.
2 - The provision in paragraph 1 of article 6-C of Decree-Law No. 195/99, of 8 June, as amended by this statutory instrument, shall take effect as from expiry of the deadline provided for therein, as amended by Decree-Law No. 100/2007, of 2 April.
Checked and approved in the Council of Ministers of 3 November 2014. – Pedro Passos Coelho - António de Magalhães Pires de Lima - Jorge Manuel Lopes Moreira da Silva.
Promulgated on 29 December 2014.
Let it be published.
The President of the Republic, ANÍBAL CAVACO SILVA.
Counter-signed on 31 December 2014.
The Prime Minister, Pedro Passos Coelho.
ANNEX
(referred to in article 6)
Republication of Decree-Law No. 195/99, of 8 June
Article 1
Scope
1 - The present statutory instrument is applicable to contracts for the supply of essential public services mentioned in paragraph 2 of article 1 of Law No. 23/96, of 26 July, to which consumers defined as such in paragraph 1 of article 2 of Law No. 24/96, of 31 July, are parties, irrespective of the provider and of the way how the respective service is supplied.
2 - The demand for the provision of a guarantee deposit, in whatever form or denomination, to ensure compliance with the obligations arising from the supply of essential public services mentioned in the previous paragraph is prohibited.
3 - Provisions laid down in the preceding paragraphs apply to local authorities.
Article 2
Guarantee deposit in case of non-compliance
1 - Providers of essential public services mentioned in article 1 may only require the provision of a guarantee deposit in order to restore the service supply, following disruption resulting from breach of a contractual obligation on the part of the consumer.
2 - The guarantee deposit may be paid in cash, by cheque, electronic transfer or via a bank guarantee or insurance bond.
3 - The amount and method of calculation of guarantee deposits are established by regulatory bodies of the various essential public services or, in the absence thereof, by public bodies responsible for the supervision or control of the respective sectors of activity.
4 - The provision of a guarantee deposits is not required where, further to payment of the defaulted debt, the consumer opts to pay for services by bank transfer.
5 - Where a guarantee deposit has been provided under paragraph 1, and the consumer subsequently opts to pay for services by bank transfer, the guarantee deposit is refunded under article 4.
Article 3
Use of the guarantee deposit
1 - The provider must use the guarantee deposit to meet the amounts owed by the consumer.
2 - Once the guarantee deposit has been used, the provider may require its reconstitution or increase within at least 10 working days, in writing, in accordance with provisions laid down in paragraph 3 of article 2.
3 - The use of the guarantee deposit under provisions above prevents the provider from exercising its right to disrupt the supply, even where the amount of the guarantee deposit fails to settle the debt in full.
4 - The disruption of supply may take place under paragraph 2 of article 2 of Law No. 23/96, of 26 July, where the consumer fails to reconstitute or increase the guarantee deposit after being demanded to do so, pursuant to paragraph 2.
Article 4
Refund of the guarantee deposit
1 - Upon termination of the contract, on any of the grounds established by law or contract, the guarantee deposit shall be refunded to the consumer, after deduction of any outstanding amounts.
2 - The refunded amount is updated in relation to the date of its last alteration, based on the annual consumer price index published by the Instituto Nacional de Estatística (the National Statistics Institute).
Article 5
Validity of the guarantee deposit
The guarantee deposit provided under this statutory instrument is considered valid up to the expiry or termination of the supply contract, irrespective of the body providing the service concerned by that date, even where it may be another body besides the original contractor, the consumer being entitled to require refund of the guarantee deposit therefrom.
Article 6
Previous guarantee deposits
1 - Guarantee deposits provided by consumers in cash, by cheque or electronic transfer up to the date this statutory instrument takes effect are refunded to consumers or their heirs, after being updated pursuant to paragraph 4.
2 - [Repealed].
3 - [Repealed].
4 - For the purpose of paragraph 1, the update of guarantee deposits to be refunded concerns only the period subsequent to 1 January 1999.
5 - [Repealed].
6 - [Repealed].
7 - [Repealed].
8 - [Repealed].
9 - [Repealed].
10 - [Repealed].
Article 6-A
Special duties of service providers
1 - Providers of services covered by this Decree-Law have a special duty to collaborate, namely allowing the access to and consultation of accounting records for the purpose of the identification of consumers to whom the guarantee deposit has not been yet refunded.
2 - Service providers must inform the respective regulatory bodies of the number of guarantee deposit refund procedures that were concluded, the total amount refunded, as well as of non-concluded procedures and respective amounts, explaining the background to this fact.
3 - Where guarantee deposits have been received by providers of essential public services covered by this Decree-Law, including local authorities supplying such services, that later assigned the operation and management of their systems to current service providers, the former are required to deliver to the latter the amounts of guarantee deposits, as well as the list identifying consumers concerned by such sums.
4 - It is incumbent on providers of essential public services covered by this Decree-Law, including local authorities supplying such services, to inform consumers of the right to refund of the guarantee deposit provided, the deadline and respective applicable procedure, including locations were lists of consumers to whom the guarantee deposit has not been yet refunded are available.
5 - The information referred to in the preceding paragraph is provided by letter or email, in this case to consumers who have subscribed this way of communication, and may also be provided simultaneously with the delivery of the invoice.
6 - Providers of essential public services covered by this Decree-Law, including local authorities supplying such services, must broadly disclose, by the deadline referred to in paragraph 1 of article 6-C, the lists of consumers to whom the guarantee deposit has not been yet refunded, which only refers the full name of the consumer and the number of procurement contract, namely by:
a) Placing a visible sign at their consumer service premises; and
b) Advertising such list at their websites.
7 - Providers of essential public services covered by this Decree-Law, including local authorities supplying such services, must issue, where requested by consumers, a statement testifying that the consumer concerned is entitled to the refund of the respective guarantee deposit, which shall include:
a) The identification of the contract holder;
b) The identification of the service provider;
c) The contract number;
d) The address for supply of the service;
e) The value of the guarantee deposit provided.
Article 6-B
Use made of guarantee deposits non refunded
1 - Amounts of guarantee deposits that have not been claimed in compliance with the deadlines and terms established, and which have not been refunded to customers, under article 6, revert to a fund to be managed by the Direção-Geral do Consumidor (the Consumer Directorate-General), intended to finance non-judicial means of access to justice by consumers and projects of a national, regional or local scope for promotion of consumer rights, to be established by administrative rule of ministers responsible for finance and consumer protection.
2 - It is incumbent on the regulatory body of the respective services to establish the procedure so that within two months from the deadline set out in paragraph 8 of article 6, the provider deposits in a current account of the Direção-Geral do Consumidor amounts concerning guarantee deposits that have not been claimed.
3 - For the purpose of the preceding paragraph, the Entidade Reguladora dos Serviços de Águas e Resíduos (the Water Supply and Waste Services Regulatory Body) is considered to be the regulatory body for the water supply service, irrespective of the regime under which it is provided and the body providing it.
4 - The management of the fund referred to in paragraph 1 of this article is supported by an advisory body consisting of representatives of operators that intervene in the demand for guarantee deposits and of consumer associations, the overall composition of which, municipalities included, is defined by administrative rule of the minister responsible for consumer protection.
Article 6-C
Responsibility of the Direção-Geral do Consumidor
1 - Having requirements set out in the preceding article been met, where the guarantee deposit has failed to be refunded by bodies that guarantee the supply of essential public services, the consumer may claim the respective amount before the Direção-Geral do Consumidor (the Consumer Directorate-General), by 31 December 2015.
2 - The Direção-Geral do Consumidor assesses the guarantee deposit refund application based on the submission by the consumer of the statement referred to in paragraph 7 of article 6-A.
Article 6-D
Breaches
Violation of paragraphs 1 to 7 of article 6-A is deemed to be a breach liable to a fine from €500 to €5 000.
Article 6-E
Examination of files, application and product of fines
1 - It is incumbent on regulatory bodies with competences at sector level to initiate and to examine breach proceedings, and on chairs of the respective management boards to apply fines provided for in the preceding article.
2 - The amount of fines referred to in the preceding article revert at:
a) 60% to the State;
b) 40% to the body initiating and examining the file.
Article 6-F
Protection of personal data
1 - The processing of personal data provided for in this Decree-Law is governed by the legal regime laid down in the Law on Personal Data Protection, approved by Law No. 67/98, of 26 October, namely as regards the obligation to notify the processing of personal data of consumers to whom the guarantee deposit has not been yet refunded to the Comissão Nacional de Proteção de Dados (the National Data Protection Commission) that falls on providers of essential public services covered by this Decree-Law, including local authorities supplying such services.
2 - The index-linking of consumer lists referred to in paragraph 6 of article 6-A to search engines is not permitted.
Article 7
Entry into force and final provisions
1 - This statutory instrument enters into force 90 days after its publication.
2 - Within 60 days from entry into force hereof, bodies referred to in paragraph 3 of article 2 must comply with that provision and with paragraph 11 of article 6.
