Law no. 15/2016, of 17 June

Official Portuguese version published in D.R. number 115 (Serie I) of 17 June 2016

Assembleia da República (Assembly of the Republic)

Law


(This is not an official translation of the law)

Enhances consumer protection in contracts for the provision of electronic communications services with a binding period (12th amendment to Law No. 5/2004, of 10 February, Electronic Communications Law)

Under point c) of article 161 of the Constitution, the Assembly of the Republic hereby decrees as follows:

Article 1
Subject-matter

This law introduces the 12th amendment to Law No. 5/2004, of 10 February, which establishes the legal regime applicable to electronic communications networks and services and related services, and defines the assignments of the National Regulatory Authority in this field.

Article 2
Amendment to Law No. 5/2004, of 10 February

Articles 3, 7, 47, 47-A, 48, 112, 113 and 116 of Law No. 5/2004, of 10 February, as amended by Decree-Law No. 176/2007, of 8 May, by Law No. 35/2008, of 28 July, by Decree-Laws No. 123/2009, of 21 May, and 258/2009, of 25 September, by Laws No.  46/2011, of 24 June, 51/2011, of 13 September, 10/2013, of 28 January, and 42/2013, of 3 July, by Decree-Law No. 35/2014, of 7 March, and by Laws No. 82-B/2014, of 31 December, and 127/2015, of 3 September, are hereby amended to read as follows:

«Article 3
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For the purpose of this law:

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m) ‘Binding period’ means the time limit within which the consumer undertakes not to terminate a contract or amend agreed conditions;

n) [Former point m).]

o) [Former point n).]

p) [Former point o).]

q) [Former point p).]

r) [Former point q).]

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t) [Former point s).]

u) [Former point t).]

v) [Former point u).]

x) [Former point v).]

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aa) [Former point z).]

bb) [Former point aa).]

cc) [Former point bb).]

dd) [Former point cc).]

ee) [Former point dd).]

ff) [Former point ee).]

gg) [Former point ff).]

hh) [Former point gg).]

ii) [Former point hh).]

jj) [Former point ii).]

ll) [Former point jj).]

mm) [Former point ll).]

nn) [Former point mm).]

oo) [Former point nn).]

Article 7
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5 - The NRA may promote cooperation between undertakings providing electronic communications networks or services and other public bodies involved in the promotion of the transmission of lawful content over electronic communication networks and services, specifically aiming at the disclosure of public interest information to be provided pursuant to paragraphs 4, 6 and 7 of article 47-A.

Article 47
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1 - Undertakings providing public communications networks or publicly available electronic communications services must make available to the public, as well as to any person who expresses its intention to subscribe a contract for provision of services provided by them, adequate, transparent, comparable and up-to-date information on standard terms and conditions in respect of access to, and use of, services provided to end-users and consumers, setting out in detail the applicable prices and any other charges, as well as, where appropriate, those due on termination of a contract.

2 - For the purpose of the preceding paragraph, such undertakings shall publish and ensure that the following information is made available and is easily accessible at their websites and on their services’ points of sale, as defined by the NRA, and that it is also provided in advance to any person that intends to conclude with them a contract for the provision of services:

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b) Publicly available electronic communications services they provide, including, inter alia, the following elements:

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c) Standard tariffs, indicating amounts due for each service provided and the content of each tariff element, covering specifically:

i) Charges for service activation and access, usage and maintenance;

ii) Details of standard discounts applied and special and targeted tariff schemes, any additional charges;

iii) Costs with respect to terminal equipment that is rented or the ownership of which is transferred to the customer;

iv) Charges due on termination of a contract, including the return of equipment, or penalties for early termination on the initiative of subscribers;

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Article 47-A
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c) Any amendment to conditions relating to the restriction of access to or use of services and applications;

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g) The remainder of the duration of the contract, where a binding period exists, as well charges due for early termination on the initiative of subscribers.

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3 - Undertakings referred to in paragraph 1 who establish binding periods with their subscribers shall provide them, when the contract is concluded and whenever this is requested, all information on the remainder of the duration of the contract, as well as the amount due in the event of early termination, through the channels usually used in their regular communication with them.

4 - (Former paragraph 3.)

5 - As regards the contract establishing a binding period, either initial or successive, undertakings referred to in paragraph 1 shall:

a) Preserve the recording of telephone calls, in case the contract is concluded by telephone, during the whole initial or successive term agreed, plus the corresponding limitation and expiry period;

b) Guarantee, through any written means, that the subscriber is properly informed of agreed terms, in case of face-to-face sales.

6 - Information referred in paragraph 4 shall be provided by the competent public authorities in a standardised format, and may cover, specifically, information on legal consequences that may arise from using electronic communications services to commit unlawful acts, disseminate harmful content, including breaches of copyright and related rights, as well as information on the means of protection against risks to personal security, privacy and personal data in the use of electronic communications services.

7 - Information referred to in paragraphs 4 and 6 shall be the sole responsibility of the public authority requesting its dissemination and shall be limited to the space defined by undertakings required to undertake such dissemination, who shall not hinder or prevent a clear perception of information on conditions for the provision of electronic communications services.

Article 48
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b) Services provided, respective levels of minimum quality, namely the time for the initial connection, as well as levels for other parameters of quality of service that are defined pursuant to article 40;

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d) Information as to whether or not access to emergency services and to caller location information is provided, and information on any limitations on the provision of emergency services under article 51;

e) Types of customer support and maintenance services provided, as well as their contact information;

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i) Where appropriate, existence of the right of free termination of the contract, respective expiry date and procedure to exercise such right, under Decree-Law No. 24/2014, of 14 February;

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2 - Information on the duration of contracts, including the respective renewal and termination conditions, shall be clear, comprehensible, provided in a durable medium and include the following indications:

a) Any binding period, the existence of which depends on the granting of any advantage to the consumer, duly identified and quantified, associated to the subsidization of terminal equipment, the installation and activation of the service or other promotional conditions;

b) Any charges related to portability of numbers and other identifiers;

c) Any charges due on early termination of the contract during the binding period, on the initiative of the subscriber, in order to recover costs associated to the subsidization of terminal equipment, the installation and activation of the service or other promotional conditions.

3 - Where the contract referred to in paragraph 1 is concluded by telephone or via a long-distance communication medium, the service provider or its representative shall provide the consumer, prior to the conclusion of the contract, all information referred to in paragraphs 1 and 2, failure to include which will make contracts null and void, and the consumer shall be bound only after having signed a contractual proposal or having sent its written consent to the supplier of goods or service provider, except where the first telephone contact is made by the consumer.

4 - Undertakings providing electronic communications networks and services shall not oppose to the termination of contracts on the initiative of subscribers, on the grounds of the existence of a binding period, or require any charges for breach of a binding period, where they do not hold any evidence of the consumer’s expression of will,  referred to in the preceding paragraph.
5 - The total duration of a binding period in contracts for the provision of electronic communication services concluded with consumers shall not exceed 24 months, without prejudice to the following paragraph.

6 - Exceptionally, additional binding periods may be established, up to 24 months, insofar as, cumulatively:

a) Contractual amendments involve the update of equipment or technological infrastructure;

b) An explicit consent is provided by the consumer.

7 - Any durable medium, including telephone recording, related to the conclusion, amendment or termination of the electronic communication contract shall be preserved by undertakings for the period of time provided for in point a) of paragraph 5 of article 47-A, and shall be made available to the NRA or the subscriber where requested by either of them.

8 - Undertakings providing publicly available electronic communications services shall offer all users the possibility of concluding contracts without binding periods of any kind, as well as contracts with binding periods of 6 and 12 months, for each benefit granted to the user, disclosing:

a) In the same media where offers with binding periods are advertised, in a clearly legible way, offers without any binding period;

b) In an easily accessible form to consumers, where a binding period exists, the cost/benefit relationship associated to the various commercial offers, so as to allow the comparison of the same offer with different binding periods, where they exist.

9 - The NRA may request undertakings, under article 108, to demonstrate the value conferred to the advantage accounting for the binding period that is identified and quantified under point a) of paragraph 2.

10 - Without prejudice to the existence of initial or subsequent binding periods, under this law, undertakings shall not impose disproportionate contractual conditions or procedures for contract termination that are excessively burdensome and that act as a disincentive against changing service provider, being incumbent on the NRA to supervise such conditions and procedures.

11 - In the course of the binding period, charges required from the subscriber, resulting from the termination of contract on its own initiative, shall not exceed costs borne by the provider with the installation of the operation, and no amount shall be charged for compensation purposes.

12 - Charges imposed for the early termination of contract with a binding period, on the initiative of the subscriber, shall be proportionate to the advantage that was conferred and as such identified and quantified in the contract concluded, and shall not automatically correspond, as a consequence, to the sum of the value of instalments falling due on the date of termination.

13 - For the purpose of the preceding paragraph, where terminal equipment is subsidized, charges shall be calculated according to the applicable law, and in other situations, they shall not exceed the value of the advantage conferred that is yet to be recovered, in proportion to the established contract duration, by the company providing the service, on the date when the early termination takes effect.

14 - At the end of the binding period, and in the absence of an agreement on a new binding period under the following paragraph, the value due as consideration for the provision of services shall not exceed standard prices applied on that date, covering only charges for access, use and maintenance.

15 - In the course or on expiry of the binding period, a new binding period shall not be established except where the subscriber validly expresses its will, under paragraph 3, to enter into a contract for the subsidized provision of new terminal equipment or with duly identified and quantified promotional conditions, which in no case shall include advantages the costs of which have already been recovered in the course of the preceding binding period.

16 - Where the undertaking decides on its own initiative to amend any of the contractual conditions referred to in paragraph 1, it shall give subscribers a written prior notice of the draft amendment of not less than one month, in appropriate form, and at the same time it shall inform subscribers of their right to withdraw, without penalty, from such contracts where new conditions are not accepted, within the time limit set out in the contract, save where amendments are proposed exclusively and objectively in favour of subscribers.

17 - The NRA is entitled to specify the terms under which undertakings make the communication provided for in the preceding paragraph, as well as the form and medium used to disseminate information referred to in paragraph 2. 

18 - (Former paragraph 8.)

19 - (Former paragraph 9.)

20 - The NRA shall determine, in accordance with the procedure laid down in article 110, that undertakings providing public communications networks or publicly available electronic communications services immediately cease or adapt practises and contracts used, where it verifies:

a) Their incompatibility with legal rules the enforcement of which is incumbent on the NRA or with any determination issued in the scope of its powers;

b) The clear disproportionate nature of practises and contracts compared to services provided at the time of the conclusion, renewal or amendment of contracts, namely as far as the respective terms are concerned.

Article 112
Supervisory functions and obligation to cooperate

1 - (Former body of the article.)

2 - Undertakings concerned by the activity of the NRA shall lend the latter their full cooperation for the proper implementation of its functions, in particular:

a) Accepting and collaborating with monitoring procedures, provided for in articles 12 and 44 of ANACOM’s Statutes, approved by Decree-Law No. 39/2015, of 16 March;

b) To preserve, for a period of three years, appropriate records of complaints and claims by consumers and final users, making them available to the NRA where requested, according to point j) of paragraph 1 of article 9 of ANACOM’s Statutes.

Article 113
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r) Failure to comply with any of the obligations provided for in paragraphs 1 and 2 of article 47;

s) Violation of the communications duty provided for in paragraph 3 of article 47;

t) [Former point s).]

u) Failure to comply with determinations issued by the NRA under paragraphs 1 and 2 of article 47-A;

v) Violation of the obligations to provide information provided for in paragraphs 3, 4 and 7 of article 47-A;

x) Violation of any of the obligations and requirements provided for in paragraphs 1 to 8, 10 to 16, 18 and 19 of article 48;

z) Violation of any determination issued under paragraph 17 of article 48;

aa) [Former point v).]

bb) [Former point x).]

cc) [Former point z).]

dd) [Former point aa).]

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ff) [Former point cc).]

gg) [Former point dd).]

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pp) [Former point mm).]

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q) Failure to comply with determinations issued by the NRA under paragraph 20 of article 48;

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ccc) Violation of obligations provided for in paragraph 2 of article 112.

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6 - The adoption by undertakings providing publicly available electronic communications networks and/or services of usual or standard behaviour, as well as the issue of guidelines, recommendations or instructions to staff, agents or business partners, the application of which is likely to lead to the violation of legal rules or determinations issued by the NRA, shall be deemed to be an administrative offence, and shall be considered to be very serious where a very serious or serious infringement results from such acts, and serious in all other cases.

7 - (Former paragraph 6.)

8 - (Former paragraph 7.)

9 - (Former paragraph 8.)

10 - (Former paragraph 9.)

11 - (Former paragraph 10.)

12 - (Former paragraph 11.)

Article 116
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1 - Without prejudice to other applicable penalties, in case of failure to comply with decisions issued by the NRA imposing administrative penalties or, in the exercise of legally assigned powers, ordering undertakings providing electronic communications networks and services to adopt steps or measures, the NRA is entitled to impose a compulsory penalty payment, where appropriate, namely in cases provided for in points a) and g) of paragraph 1, points d), e), jj) and nn) of paragraph 2, points a), b), c), d), h), i), m), n), q), s), bb), cc), ff), hh), ii), jj), ll), mm), oo), qq) ss), tt), aaa), bbb) and ccc) of paragraph 3 and point b) of paragraphs 4 and 5, all of article 113.

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Article 3
Entry into force and transitional regime

1 - This law shall enter into force thirty days after its publication.

2 - Obligations on the content of contracts laid down in article 48 of Law No. 5/2004, of 10 February, by virtue of amendments introduced by this law, shall apply where contracts concluded are amended.

3 - Undertakings providing publicly available electronic communications networks and services shall ensure compliance with paragraphs 2, 4, 7, 8, 9, 12 and 13 of article 48 of Law No. 5/2004, of 10 February, as well as with new obligations resulting from article 47, as now amended, within 60 days from the date of publication of this law.

4 - The prohibition established in paragraph 4 of article 48 of Law No. 5/2004, of 10 February, as now amended, shall be immediately applicable on the date of entry into force of this law, in all cases where the binding agreement of subscribers required a written form.

Approved on 22 April 2016.

The President of the Assembly of the Republic, Eduardo Ferro Rodrigues

Promulgated on 7 June 2016.

Let it be published.

The President of the Republic, Marcelo Rebelo de Sousa.

Counter-signed on 9 June 2016.

The Prime Minister, António Luís Santos da Costa.