Ruling No. 138/2016 of 22 June

Tribunal Constitucional (Constitutional Court)

Ruling No. 138/2016

(This is not an official translation of the law)

File No. 651/15

The 1st Section of the Constitutional Court hereby finds as follows:

I - Report

1 - The Public Prosecution Office brought a compulsory appeal to the Constitutional Court against the Decision of the Tribunal da Concorrência, Regulação e Supervisão (the Competition, Regulation and Supervision Court) of 2 June 2015, which rejected the application of article 113, paragraph 1 ll) and paragraph 6, of the Electronic Communications Law, approved by Law No. 5/2004, of 10 February (as amended by Decree-Law No. 176/2007, of 8 May, subsequently amended, hereinafter “ECL”), read in conjunction with article 54, paragraph 5 of the same law (in its original version) and with article 26, paragraph 2 c) and paragraph 3, of the Portability Regulation (hereinafter PR), as amended by Regulation No.114/2012, of 13 March, issued by ICP - ANACOM - Autoridade Nacional de Comunicações, on grounds of material unconstitutionality, for violation of articles 29, paragraph 1, and 32, paragraph 10, of the Constitution of the Portuguese Republic (hereinafter “CPR”) (pages 2786, 2787 and 2792).

2 - Notified to claim, the representative of the Public Prosecution Office at this Court submitted allegations, and given that no formal conclusions were presented, the parts which according to that representative embody the essence of its argument are reproduced below:

«[...]

Therefore, the NRA exercises a diversified set of tasks, pursuing various yet complementary targets, such as to promote (and to maintain) competition in the provision of electronic communications networks and services, associated facilities and services, to contribute to the development of the internal market of the European Union and to promote the interests of citizens.

For this purpose, the Authority must ensure that users derive maximum benefit in terms of choice, price and quality, and that there is no distortion or restriction of competition, removing existing obstacles to the provision of electronic communications networks, of associated facilities and services and of electronic communications services at a European level.

In this scope, the NRA must act jointly with supranational entities (the European Commission) and analogous bodies (national regulators of communications of other Member States of the European Union), «in order to ensure the development of a regulatory practice and the consistent application of the common regulatory package framework for electronic communications networks and services».

As such, the NRA does not act on its own, and it is responsible for implementing policies similar to those in other European countries, in order to ensure an internal communications market that is transparent, effective and undistorted, in particular as far as pricing and the imposition of penalties to companies operating therein are concerned.

In other words, where the NRA adopts regulatory behaviours that fall outside the parameters of partner authorities of other countries, it is the internal market that will be affected, with natural consequences in terms of the various conditions of use of the different electronic communications services available to the public, especially the national public.

Consequently, the approach suggested by the contested judge, while evidencing an analytical spirit, from a strictly argumentative point of view, risks leading to particularisms, on penalty issues, with negative consequences for national users.

In particular, this could distort competition among companies that integrate the sector, creating different functioning (and penalty) conditions for those who abide by rules established by national regulatory authorities, and those who fail to do so.

It should be stressed that this case concerns the so-called legal framework for administrative offences, or for breaches, designed as an administrative intervention tool of a penalty nature, in order to ensure that administrative action achieves greater effectiveness.

The Breach Legal Framework is thus a new branch of punitive law, autonomous from Criminal Law, although deeply connected to it.

So much so, that Decree-Law No. 433/82, of 27 October (RGCO), which establishes the legal framework for administrative offences, in its article 32, defines Criminal Law as subsidiary law, and by virtue of article 41, as far as procedural law is concerned, the Criminal Procedure Code is considered to be subsidiary law.

However, the application of criminal procedure as subsidiary law is limited by the safeguard of the breach procedure itself, as results from the 1st part of paragraph 1 of article 41 of RGCO.

Therefore, notwithstanding the close ties that exist, the criminal and breach procedures must not be confused, bearing also in mind the distinctive nature of each framework and respective penalties, deemed to be penalty measures of a non-criminal nature.

The autonomy of this type of penalty, established for breaches, has repercussions at adjective level, and as such there are no grounds why principles that guide criminal procedural law should fully apply to breach procedures.

The different nature of procedures also imposes that special precautions are taken before criminal procedure guarantees are invoked in the scope of breach procedures.

As such, as regards the guarantees of defence, principles of criminal law do not apply blindly, but cautiously, to breach procedures, the degree of commitment to those principles varying according to the nature of the procedure.

Such precautions, as regards invoking criminal procedure guarantees in the scope of breach procedures, led to the drafting of paragraph 8 of article 32 of CPR, introduced by the 1989 Constitutional Review, which is currently laid down in paragraph 10 of the same article 32, which provides that “accused persons in proceedings concerning administrative offences or in any proceedings in which sanctions may be imposed are assured the right to be heard and to a defence”.

As such, the constitutional legislator intended solely to ensure, in the scope of breach procedures, the right of accused persons to be heard and to a defence, that is, the accused may not suffer any breach penalty without a prior hearing and without being able to defend himself from charges made against him.

This is precisely what has happened in this case, both in the scope of the administrative procedure and later in the scope of the judicial review.

The contested judge, in a rather reckless way, appears to have found, in the case-law of this Constitutional Court, an appropriate justification for his claims, as regards the portability of telephone numbers (cf. Article 54 of Law No. 5/2004, of 10 February, referred earlier), notwithstanding the fact that, as seen above, paragraph 5 of this provision explicitly determines, without a doubt, that «it is incumbent on the NRA, following the general consultation procedure provided for in article 8, to determine the necessary rules for the implementation of portability».

However, it is doubtful whether constitutional case-law should be deemed as a safe support for this unusual position, given that the action of the National Regulatory Authority is regarded, in such case-law, in an integrated and single perspective, in particular in penalty matters.

[...]

It is deemed, therefore, that both the grounds of Ruling No. 78/13 and of Ruling No. 612/14, mentioned above, respond well enough, and run counter, to the concerns of the contested judge, concerns which led him not to apply provisions under consideration in this appeal.

In this scope, it should be recalled that the National Regulatory Authority sufficiently highlighted, in its Determination of 30 December 2014, mentioned earlier (cf. above paragraph 5 of these allegations), as follows:

“The compensation regime was introduced in the Portability Regulation by Regulation No. 87/2009, of 18 February, which was based on a draft amendment to the Portability Regulation submitted to the regulatory procedure provided for in article 11 of the Statutes of ICP - ANACOM, approved by Decree-Law No. 309/2001, of 7 December, as well as in paragraph 5 of article 54 and paragraph 1 of article 125 of Law No. 5/2004, of 10 February, and to the general consultation procedure laid down in article 8 of this statutory instrument in that scope.

In particular, paragraph 1 of article 4 of Law No. 5/2004, of 10 February establishes that the NRA is charged, in accordance with its assignments, with the regulatory, supervising, monitoring and sanctioning tasks provided for in that law, and paragraph 1 a) of article 5 of the same statutory instrument provides that the promotion of competition in the provision of electronic communications networks, electronic communications services and associated facilities and services is one of the objectives of electronic communications regulation to be pursued by the NRA.

The explanatory memorandum of that draft explained that amendments proposed were intended to stress the responsibility of the RP throughout the whole portability process, being defined the rules of efficiency between providers and also compensation amounts due between them, taking into account standard revenues of providers of the telephone service at a fixed location and amounts already established in other areas, such as LLU and pre-selection, as well as to promote self-regulation and to foster competition.

As explained in the clarification on the compensation regime published by this Authority on 2010.04.16, this regime «sets out to establish a regime which encourages the fulfilment of obligations on providers, avoiding the occurrence and persistence of situations of non-compliance, given that punishing non-compliance through breach proceedings is necessarily a lengthy process», aiming also for «the protection of competition, in particular by seeking to prevent operators from engaging in mutual fraud; and protection of subscribers, seeking to ensure that the speed which it is intended to instil in the processes of portability is not obtained at the expense of a lesser degree of attention to the real will of users».

Accordingly, compensation set out should be regarded, not in the scope of private autonomy, but in the area of protection of public interests (protection of competition and of consumers).

Let us remember that portability is provided for in Law No. 5/2004, of 10 February, according to which this Authority must ensure three regulatory objectives, under paragraph 5 thereof: to promote competition in the provision of electronic communications networks and services, to contribute to the development of the internal market of the European Union and to promote the interests of citizens.

The pursue of these objectives entitles the NRA, also, to impose regulatory measures in the scope of market analyses (which may be costly to operators, but which result in breaches where they are infringed), under articles 18, 55 et seq and 113 of the same statutory instrument. And the Authority is entitled do so via administrative measures, let alone via a Regulation published in the Official Gazette.

As such, not only is the Authority entitled to draft rules covered by the Portability Regulation (where compensation is included), by virtue of paragraph 5 of article 54 of that law, but it would always be entitled to do so under article 5 of that law as well as article 11 of its Statutes. [...]

Accordingly, compensation concerned operates as a mechanism for the protection of interests of subscribers and for the correction of the portability procedure.

Portability has a relevant public impact, as it affects a large number of users, and it is necessary to ensure compliance with its implementing rules in favour of the public interest of the protection of interests and rights of consumers and promotion of competition, thus being safeguarded the principles of legal security and certainty. As this is a procedure which involves users, the new provider and the old provider, and given that termination of the “original” contract is presented not to the other party in the contract, as would follow from standard rules, but, under an exceptional rule, to a third party - the new provider -, the rights of the first provider must be scrupulously respected.

As such, the legislator determined, in particular, the compensation to be paid by the RP to the DP in case of undue portability for which the former is exclusively responsible, as well as for failure to submit documentation within the established deadline.»

3. Notified to counter-claim, NOS Comunicações, S. A., the defendant, concluded as follows:

«A. The thema decidendum in this case is whether rules laid down in article 113, paragraph 1 ll) and paragraph 6, and article 54, paragraph 5, of the Electronic Communications Law (ECL), and article 26, paragraph 2 c) and paragraph 3, of the Portability Regulation (PR), the first provision in particular, in the interpretation lying on them the basis for qualifying as breach the default in payment between operators of the compensation provided for in the PR, infringe the Constitution, in particular the provisions laid down in, but not restricted to, articles 29, paragraph 1, and 32, paragraph 10, of the Constitution of the Portuguese Republic (“CPR”).

B. In its appeal statement, the Public Prosecutor at the Constitutional Court merely reproduces and transposes to the case file constitutional case-law allegedly issued on the thema decidendum, failing however to take into consideration the specific outline of the thema, which, strictly speaking, was never assessed by the Constitutional Court, and thus becomes a new subject-matter.

C. By not substantiating why the “default in payment between operators of compensation provided for in the PR” constitutes or is similar to any of the realities typified in article 113, paragraph 1 ll) and paragraph 6 of ECL, the appeal statement of the Assistant Prosecutor strays from the point which is raised here and which requires clarification.

D. Issues dealt with by the Constitutional Court in rulings quoted specifically by the Public Prosecutor either are not of the same nature or do not share the same degree or extent which this issue necessarily raises, which more than justifies an assessment by the Constitutional Court.

E. ANACOM has no legal basis, under the law in force, for punishing as breach the default in payment of compensation between operators.

F. Article 26, paragraph 3, of the PR, suffers from unconstitutionality, which results fundamentally from three main reasons: (a) there is no legal provision granting ANACOM the power to issue a rule intended to establish compensation between the various operators in situations of undue portability or of failure to send documentation on portability files; (b) the qualifying rule, imposed under paragraph 7 of article 112 of the CPR, has not been indicated; and (c) this is a real penalty system, which should have been created solely through a legislative act, not a regulatory provision, ensuring, among other aspects, the rights of hearing and defence provided for in article 32, paragraph 10, of CPR.

(A) ABSENCE OF LEGAL QUALIFICATION

G. ANACOM is entitled to issue regulations (i) where the law specifically provides for this regulatory power, that is, a specific law must exist (not merely the Statutes) granting this power to ANACOM and (ii) where this regulation is required and indispensable for the exercise of its tasks.

H. The first case concerns the so-called implementing or supplementary regulations - in the words of Afonso Queiró, they are “[...] a supplementary edition of legal developing rules in the framework or within the limits of such bases [...]”; the second case concerns the so-called independent regulations.

I. The approval of the PR by ANACOM took place, as explicitly results from the preamble of such Regulation, “[...] pursuant to the provisions of point a) of article 9 of ANACOM’s Statutes, approved by Decree-Law No. 309/2001, of 7 December, paragraph 5 of article 54, and paragraph 1 of article 125, both of Law No. 5/2004 of 10 February [...]”, and consists of an implementing or supplementary regulation.
J. Implementing or supplementary regulations are subject to constitutional limits, namely, (i) the principle of the supremacy of the rule of law, provided for in CPR, according to which subject-matters governed by it may only be regulated through a legislative act; (ii) the principle of the precedence of the law, laid down explicitly in article 112, paragraph 7, of CPR [...], from which the requirement of the priority of the law relatively to the regulatory activity and the duty of regulations to quote the respective qualifying legal standard derive; and (iii) principles ruling the activity of the Public Administration, especially those resulting from article 266, paragraph 2, of CPR.

K. The PR largely exceeds the limits provided for in CPR and in the law as regards the approval of implementing or supplementary regulations.

L. The PR mentions three provisions as far as qualifying standards are concerned - article 9 of ICP - ANACOM’s Statutes, article 54, paragraph 5, of ECL, and article 125, paragraph 1, also of ECL - and seeks to determine the rules required for the implementation of portability.

M. At the time the PR was approved, it was clear and unambiguous that ECL provided for the possibility of approval of implementing or supplementary regulations focusing on the determination of rules required for the implementation of portability, but no more.

N. ANACOM, supported on a (previous) legal standard that merely qualified it to “determine the necessary rules for the implementation of portability”, approved a set of regulatory provisions that introduced a mechanism of compensation between operators, in situations of undue portability and failure to send documentation on portability files within the established deadline.

O. Not only does ANACOM fail to indicate how, and why, such mechanism is required “for the implementation of portability”, but it substantiates this mechanism on the grounds that “sanctioning non-compliance through breach proceedings is necessarily a lengthy process”.

P. ECL, in particular paragraph 7 of article 54 thereof, was amended only in September 2011, by virtue of Law No. 51/2011, of 13 September, enabling ANACOM to define compensation mechanisms; that is, a legal standard qualifying ANACOM to define via regulation a compensation regime for operators was provided for only in September 2011.

Q. Even this new provision in article 54, paragraph 7, of ECL - which is not at issue here - does not authorize the conclusion that compensation referred is not only that in favour of subscribers, but also between operators.
R. Article 26 of PR is unconstitutional, given that it was drafted by ANACOM without the necessary legal qualification for the establishment of a mechanism of compensation between operators, entailing the violation of the principle of the precedence of the law.

S. Rules on the implementation of portability cover all appropriate procedures and processes (at technical, computer-related and administrative levels) required to make portability operational, but not the provision of compensation between operators in case of undue portability or of failure to observe deadlines for the submission of documentation between companies.

T. Neither undue portability nor the failure to submit documentation on time are a necessary requirement or criterion for the implementation of portability, and the absence of regulation on these matters does not restrict or endanger such implementation.

U. As the PR consists of a regulation implementing ECL provisions, aiming as such to complement and fully develop the respective legal regime, a strict compliance with applicable Constitutional provisions imposes and requires the existence of a legal qualification that legitimizes its approval.

(B) FAILURE TO INDICATE A QUALIFYING RULE

V. None of the qualifying rules on which the approval of the PR was based confers on ANACOM the competence to lay down payment for compensation between operators, and, probably for this reason, the PR does not invoke any legal qualification for this purpose, which in itself is a violation of the principle of precedence of the law (article 112, paragraph 7, of CPR).

W. Under the guise of a “regime of compensation” between operators, ANACOM established a genuine penalty system, entailing a clear violation of the principle of the supremacy of the rule of law: these compensations are nothing else than a concealed provision for penalties for non-compliance with provisions laid down in PR, while operators are denied the exercise of rights granted to accused parties in breach procedures, not even the rights to hearing and defense established in article 32, paragraph 10, of CPR.

X. The right provided for in the referred article 32, paragraph 10, of CPR, has the nature of a personal right, freedom and guarantee, being an issue subject to the legislative competence of the Assembly of the Republic, cf. article 165, paragraph 1b) of CPR.

Y. This means that ANACOM, by establishing a regime for compensation between operators, regulated an issue for which, in fact, it holds no power or competence, violating the principle of supremacy of the rule of law, adding to a regime which violated the general breach regime (RGCO).

Z. The imposition of a “compensation regime” between private parties entails also a violation of the right to free private economic initiative (article 61, paragraph 1 of CPR), given that operators are required to pay certain amounts to other operators where no effective harm or prejudice has occurred such as, for that reason, to be safeguarded; being a personal right, freedom and guarantee, ANACOM was not entitled to limit or restrict the exercise of such right, the legislator, and not the regulatory authority, being charged with such task - in the exact words of CPR -, thus article 18, paragraph 2, of CPR has been violated.

AA. As the a quo Court concluded, there is no legal basis for the alleged breach liability on the part of NOS, as regards the violation of article 26, paragraph 2c) and paragraph 3 of the PR.
BB. Subscribers, and not operators, are the recipients of the protection conferred by the PR: “The RP is responsible for the entire number portability process and shall manage this process in defence of the subscriber’s interest”.

CC. The issue under consideration merely concerns the obligation on an operator to pay another a certain and pre-determined amount, in case of delays in sending documentation associated to the portability process within the established deadline in the PR or of undue portability.

DD. The combined reading of article 113, paragraph 1 ll) and paragraph 6, and article 54, paragraph 5, of the ECL, and of article 26, paragraph 2 c) and paragraph 3, of the Portability Regulation, does not enable us to envisage, or even to glimpse, how the legal interest intended to be protected includes the default in payment between operators of a certain amount; concluding otherwise implies that the rule under consideration is regarded as a “blank penalty rule”.

EE. The default in payment of compensation between operators provided for in the PR does not bring about the violation of rights of subscribers of telephone services in the scope of the portability of their telephone number or numbers: the payment of such compensation is irrelevant to the effectiveness of such right and is related to portability issues (internal issues between operators, so to speak) other than the portability of the number of the subscriber.

FF. Compensation between operators is not required to ensure and speed up the technical process for transport or portability of numbers, and is not mentioned in the legal provision which supposedly punishes default in payment as a breach.

GG. What is at issue here is not the typification of the first situation (concerning subscribers) as administrative offence, rather the second (concerning operators).

HH. Subscribers are the subject of fair and appropriate protection offered by PR, and where their interests are called into question, they must be compensated by operators - maxime via the obligation imposing on operators the payment of compensation to subscribers.

II. While we accept that “the penalty system itself, defined by the NRA, in the scope of electronic communications, had already been found by this Constitutional Court to comply with the Constitution, as regards several aspects of the same system”, it is imperative to stress that the Constitutional Court has not ruled, to date, on this specific issue of the breach regime provided for in ECL and PR.

JJ. None of the rulings under consideration address the matter at issue in this case file, nor has the Constitutional Court - we reiterate - ever assessed the thema decidendum, and constitutional case-law quoted on the PR undoubtedly supports the decision taken by the a quo court as regards the scope of protection conferred by this statutory instrument.

KK. It is not possible to claim - and the Assistant Prosecutor not even attempts to do so - that invoking article 113, paragraph 1 ll) and paragraph 2 of ECL (as amended by Decree-Law No. 176/2007, of 8 May), as provisions typifying as breach the default in payment between operators of compensation provided for in PR, would not compromise the certainty and determinability requirements.

LL. Where these requirements do not arise for the Breach Framework in the same terms as for Criminal Law, on the basis of articles 29, paragraph 1 and 32, paragraph 7, of CPR - which we contest -, they cannot fail to result from the principles of legal certainty and legitimate expectations, laid down in article 2 of CPR, deriving from the concept of democratic rule of law.

MM. Even where the source of typification of the breach is not taken into consideration - thus admitting that it could be defined in an concatenated way between law and regulation - an unarguable point remains: wherever it is set out, law or regulation, the breach must be defined, and prior to the punishment of the conduct it aims to prohibit or impose.

NN. Article 113, paragraph 1 ll) and paragraph 2 of ECL (as amended by Decree-Law No. 176/2007, of 8 May), on its own, or read in conjunction with other provisions of ECL or PR (namely article 54 of the former and article 26 of the latter), does not include the fundamental definition as breach of the default in payment of compensation between operators.

OO. A clear material unconstitutionality exists, for violation of articles 29, paragraph 1, and 32, paragraph 10, of CPR, of article 113, paragraph 1 ll) and paragraph 6, of ECL, read in conjunction with article 54, paragraph 5 of the same law (in its original version) and with article 26, paragraph 2 c) and paragraph 3, of Regulation No. 58/2005, of 18 August, approved by ANACOM, in the Authority’s interpretation of lying on them the basis for qualifying as breach the default in payment between operators of the compensation provided for in the PR in situations of undue portability or of failure to send notification.

PP. Even where a different view is taken on the above conclusion, such interpretation is at least unconstitutional for violation of the principles of legal certainty and legitimate expectations, laid down in article 2 of CPR, and ultimately, of the concept of democratic rule of law (article 2 and 3, paragraph 2, of CPR).»

An assessment and a ruling are now required from this court.

II - Statement of reasons

4 - Let us start by transcribing the provisions under consideration:

«Article 113, paragraph 1 ll), of ECL 2004

1 - Without prejudice to other applicable sanctions, the following irregularities shall be deemed as breaches:

ll) The violation of the rights of subscribers to portability, provided for in paragraph 1 of article 54 and non-compliance with obligations established pursuant to paragraphs 2, 3 and 5 of article 54;»
Article 113, paragraph 6, of ECL 2007

«6 - [Former paragraph 5.]»

In its prior version (ECL 2004)

«An attempt and negligence regarding breaches provided for in this law shall be punishable.»

Article 54, paragraph 5, of ECL 2004

«5 – The NRA is charged with determining the rules necessary for the implementation of portability, following the general consultation procedure provided for in article 8.»

Article 26, paragraph 2 c) and paragraph 3, of PR 2012

2 - In such situations as referred to in paragraph 1, the RP:

[...]

c) Shall pay compensation to the DP [donor or holder provider] amounting to 100 euros for each number unduly ported, where for reasons solely attributable to the RP, to a maximum of 5,000 euros per portability order executed in respect of portability of DDI ranges [ranges of 10, 100, or 1,000 contiguous numbers, starting with a number ending in 0, 00, and 000, respectively, identifying PABX extensions. DDI ranges of a PABX may be either contiguous or non-contiguous];

[...]

3 - Where the documents referred to in paragraph 3 of article 10 are not sent, the RP shall pay the DP compensation amounting to 100 euros per number, to a maximum of 5,000 euros per executed portability order in respect of portability of DDI ranges.»

These rules are transcribed because they are referred both in the contested decision and in the appeal lodged by the Public Prosecution Office. However, it seems to this court that the rules which are really called into question are only those in point ll) of paragraph 1 of article 113 of ECL and paragraph 5 of article 54 of PR.

5 - The facts giving rise to this appeal concern the so-called portability of telephone numbers.

In proceedings before the Competition, Regulation and Supervision Court, the defendant, NOS Comunicações, S. A., contested the decision issued by ICP - ANACOM - Autoridade Nacional de Telecomunicações, which found it guilty for intentionally committing a breach, for violation of portability rules (pages 2716-2717).

The punished behaviour consisted in the default in payment of compensation due to the donor or holder provider, by the defendant, as recipient provider, for having failed to fulfil its obligation to submit to the former, within the established legal time-limit, the documents required to process the portability requests.

The decision of that court, which is now contested, acquitted the defendant in the part which is stressed below:

«5 - To acquit NOS Comunicações, S. A., from the practise of an intentional breach, provided for and punished under article 113, paragraph 1 ll) and paragraph 6, of Law No. 5/2004, of 10 February (as amended by Decree-Law No. 176/2007, of 8 May), in conjunction with article 54, paragraph 5 of Law No. 5/2004, of 10 February (in its original version) and with article 26, paragraph 2 c) and paragraph 3, of Regulation No. 58/2005, of 18 August (Portability Regulation), given that when interpreted in conjunction to result a breach, a blank penalty rule arises, infringing articles 29, paragraph 1, and 32, 10, both of the Constitution of the Portuguese Republic, and for this reason their application is rejected on grounds of unconstitutionality.»

6 - This Court has had the opportunity to assess issues concerning portability of telephone numbers, in Rulings No. 78/2013 and 612/2014. We select therefrom the parts deemed to be fundamental.
It follows from Ruling No. 78/2013 that:

«[...] the obligation to provide information and to submit documentation to the regulatory authority represents a condition for an effective safeguard of the need to regulate, monitor and oversee the economic activity, in a field where cooperation between economic actors is fundamental for the exercise of such tasks of an exceptional public relevance.»;

«Given that it is required to ensure an effective compliance with this obligation, typical of a conforming Administration, punishing the failure to observe it as a breach is considered to be, as alternative to criminal legislation, an appropriate and proportional restrictive means to meet such requirement.»;

«In the business world, a patrimonial penalty is the one best able to compel the various players to meet public rules that regulate the economic activity.»

On its turn, Ruling No. 612/2014 clarifies:

«[...] the provision in paragraph 32, paragraph 10, of the Fundamental Law, does not confer on the defendant in breach proceedings the right to have reassessed by a higher court the decision on the facts rendered therein, as claimed by the appealing party [...]»;

b) «[...] the Constitution does not reproach the isolated fact that the punishing law refers part of its provision to a lower normative source (in this case, the Portability Regulation), typifying as a breach the failure to meet obligations established in the mentioned regulatory instrument. [...] And it does not seem to us that adopting such a reference technique compromises the certainty and determinability requirements by which the typification of breaches, in the light of the principles of legal security and protection of legitimate expectations (article 2 of the Constitution), must also fundamentally abide (see in the same sense, among others, Rulings No. 41/2004 and 466/2012).»

c) - [...] While it is true that the decision reassessed by the Court of First Instance represents an administrative act and not a jurisdictional act [...], this already constitutes the exercise of the right to judicial protection conferred by the Constitution to the subject of administration (and fine) concerned (article 268, paragraph 4), and, as we have seen, it does not follow from it any additional guarantee for the defendant to have a higher court reassessing the judicial decision that, reviewing the judgement made by the administrative authority, deems facts underlying the application of the fine to be proved. The guarantee of a second tier of judicial authority laid down in article 32, paragraph 1, of the Constitution, which constitutional law has acknowledged to the defendant in criminal proceedings, in core issues as convictions and decisions affecting its freedom, does not apply to this specific penalty regime, on the grounds, mentioned above, that make it a legal framework considerably different from criminal law.»

7 - Simply by reading these parts of the two rulings, it can be seen that the Constitutional Court, in the light of parameters invoked, has already ruled that regulatory provisions that punish the violation of rules on the portability of telephone numbers here at stake with the imposition of fines are deemed not to be unconstitutional.

However, the contested decision assesses an aspect which was not addressed in those rulings, and for this reason it deserves a specific weighing. The relevant part of the reasoning for that decision is set out below:

«As such, if we follow the arguments laid down in the mentioned constitutional case-law, the obligations listed in the Portability Regulation are those strictly required to ensure and speed up the technical process for transport or portability of numbers to which companies operating in the telecommunications sector are explicitly bound by virtue of the provision in paragraph 1 of article mentioned article 54 of the same statutory instrument, aiming at the protection of the right of subscribers to portability.

However, we find that the obligation for payment of compensation between operators (the reasoning could be different in the scope of compensation to subscribers) falls outside the scope of the above-mentioned legal provision for protection of the right of subscribers to portability, given that such protection is achieved with or without compensation between operators, taking into account that the donor provider may only reject the request in situations explicitly provided for in the law (cf. article 13 of the Portability Regulation), which does not include the possibility of rejection in case the recipient provider fails to pay compensation provided for.

As such, we cannot agree with the argument alleged by ICP - ANACOM - Autoridade Nacional de Comunicações, that compensation under consideration in the files operates as a mechanism for the protection of interests of subscribers and for correction of the portability process.

It is clear that the provision establishing compensation between operators has a scope of public protection, which may not be confused with any mechanism for compensation of private autonomy and availability, however it may not be inferred that its violation may be charged to be a breach.

Not even a merely indirect and residual consumer interest seems to result from the punishment as breach of the default in payment of compensation, given that its application is completely unconnected with the development and operation of the electronic portability request.

Unless we are mistaken, it may not be accepted that the words “to determine the necessary rules for the implementation of portability” include the qualification as breach of the default in payment of pecuniary amounts between operators.

In other words, while the legal interest protected by the provision laid down in article 113, paragraph 1 ll) of Law No. 5/2004, of 10 February, seems to be obvious, the legal interest underlying a supposed breach for default in payment of compensation between telecommunication operators is quite obscure.»

8 - As referred above, the issue that requires analysis - given that it was not covered by any prior decision by this Court - concerns whether it is possible, under the law, to qualify as breach the failure to comply with the duty of operators to pay compensation in certain cases of non-compliance with portability obligations.

As the defendant sees it:

«CC. The issue under consideration merely concerns the obligation on an operator to pay another a certain and pre-determined amount, in case of delays in sending documentation associated to the portability process within the established deadline in the PR or of undue portability.

[...]

In the opinion of the representative of the Public Prosecution Office at this Court:

«[...] compensation set out should be regarded, not in the scope of private autonomy, but in the area of protection of public interests (protection of competition and of consumers).»

9 - It is beyond doubt to this Court that the interests underlying provisions imposing the duty on operators to pay compensation for infringement of portability rules is a public interest - and in fact a relevant public interest.

The term “portability” concerns, in the context of telecommunications, the right to switch one’s fixed or mobile telephone operator, while maintaining the same number. Being a “switching right”, it is a mere strand of the consumer’s freedom to choose a different supplier of any service provided under a competitive system.

In a small market, with a restrictive number of operators who compete among themselves, sometimes in a very aggressive way, to ensure the consumer’s freedom of choice is absolutely essential. Hence the rules, both legal and regulatory, focusing on guaranteeing this freedom, preventing and suppressing all ways to limit it, thus promoting an interest which no one disputes to be public. In this context, it is clear that the establishment of breaches is a common and indispensable tool.

According to the position adopted in the contested decision, non-compliance with the duty to pay established compensation, regardless of whether it is qualified as public, only legitimizes the establishment of breaches where compensation concerned is due to consumers/subscribers. However, default in payment of compensation due between operators could not be established to be a breach given that, in the words of the defendant, the payment of such compensation «is irrelevant to the effectiveness of such right» [meaning the subscriber’s right to portability].

10 - The Court cannot accept this position.

The portability process is, using the Italian nomenclature, a true process, not just a procedure. It entails, not only a mere succession of acts and formalities, but a genuine conflict of interests between operators: the interest of the donor or holder provider, who will do anything to engage a new customer, and the interest of the recipient provider, who will endeavour not to lose such customer.

The law considered - and well, as this is the only way to protect and foster competition - that the recipient provider should be imposed the duty to facilitate competition, acting to some extent against its own interests (aware however that the provision will work to its benefit in a future reverse situation). The imposition on this operator of the duty to send all the documentation required to enable the switch of operator to the donor or holder provider (this is what portability implies) - duty which the defendant failed several times to observe, for this reason having been convicted in the appealed decision - is only effective where a disadvantageous economic consequence derives for the defaulting operator from failure to comply therewith. Hence the mechanism of compensation between operators.

It is not at all irrelevant for the rights of consumers whether operators pay compensation due to other operators or not. Where they fail to do so, recipient providers are likely to fail to comply with duties imposed by portability without facing disadvantageous consequences. This means that compliance with such compensation is an indispensable tool to guarantee portability, which is, an mentioned earlier, a benefit for consumers. How could it be irrelevant to them?

Therefore, this Court finds no sufficient reason for the restriction introduced in the contested decision, which excludes the application of the breach regime, as contrary to the Fundamental Law, where the duty for payment of compensation between operators is not observed.

As far as remaining matters are concerned, there seems to be no reason to alter this Court’s case-law, mentioned above.

III - Decision

All in all, the Constitutional Court hereby decides:

a) To declare not to be unconstitutional the rule arising from the interpretation of article 113, paragraph 1 ll) and paragraph 6, of the Electronic Communications Law, approved by Law No. 5/2004, of 10 February (as amended by Decree-Law No. 176/2007, of 8 May, subsequently amended), read in conjunction with article 54, paragraph 5 of the same law (in its original version) and with article 26, paragraph 2 c) and paragraph 3, of the Portability Regulation, as amended by Regulation No.114/2012, of 13 March, of ICP - ANACOM- Autoridade Nacional de Comunicações, so that breaches to be established under the regulation issued by the Regulatory Authority may lead to the imposition of a fine as penalty for the failure to comply with the obligation on operators to pay compensation due for infringement of provisions on portability of telephone numbers; and, consequently,

b) To order the amendment of the contested decision in accordance with the above ruling.

No costs are ordered.

Lisbon, 8 March 2016. - João Pedro Caupers - Maria Lúcia Amaral - Teles Pereira - Maria de Fátima Mata-Mouros - Joaquim de Sousa Ribeiro.