Presidência do Conselho de Ministros (Presidency of the Council of Ministers)
Decree-Law
(This is not an official translation of the law)
Regulation (EU) 2015/2120, of the European Parliament and of the Council, of 25 November 2015 (Regulation 2015/2120), established common rules for equal and non-discriminatory treatment of traffic in the provision of internet access services, amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services.
At the same time, this regulation introduced amendments to Regulation (EU) 531/2012, of the European Parliament and of the Council, of 13 June 2012, on roaming on public mobile communications networks within the Union (the Roaming Regulation), setting up a new retail pricing mechanism for roaming services.
Regulation 2015/2120 has been recently amended by Regulation (EU) 2018/1971, of the European Parliament and of the Council, of 11 December 2018, which establishes the Body of European Regulators for Electronic Communications (BEREC) and the Agency for Support for BEREC (BEREC Office), and repeals Regulation (EC) No 1211/2009 (Regulation 2018/1971), to incorporate measures concerning retail charges for regulated intra-European Union (intra-EU) calls (new article 5-A).
European Union regulations have general application, are binding in their entirety and directly applicable in all Member States, under article 288 of the Treaty on the Functioning of the European Union, and therefore do not require transposition. However, both Regulation 2015/2120 and the Roaming Regulation require Member States to lay down the penalty system applicable to the respective infringements and to take all measures necessary to ensure that they are implemented, whereby penalties provided for must be effective, proportionate and dissuasive.
In brief, article 3 of Regulation 2015/2120 regulates open internet access, article 4 enshrines a principle of transparency in the relationship with end users, both at contractual and pre-contractual level, and article 5 sets out the supervisory powers of National Regulatory Authorities to ensure compliance with the referred articles 3 and 4. In turn, the new article 5-A, added by Regulation 2018/1971, sets out common rules to ensure that consumers are not charged excessive prices for regulated intra-EU communications. On the other hand, the amendment to the Roaming Regulation aimed to establish a new retail pricing regime for regulated Union-wide roaming services in order to abolish retail roaming surcharges without distorting domestic and visited markets.
In compliance with the principle of legality, it is now incumbent on this National Authority to update the national legal order so as to provide for administrative offences corresponding to situations of non-compliance with obligations imposed in Regulation 2015/2120 or determinations issued by the National Communications Authority (ANACOM) pursuant to it, as well as those imposed in the Roaming Regulation, as amended by the abovementioned Regulation 2015/2120.
Bearing in mind ANACOM’s powers in the scope of the application of regulations in question and the fact that the Electronic Communications Law, approved by Law No 5/2004 of 10 February, in its current wording, already sets out the penalty system applicable to infringements of the Roaming Regulation, the respective set of standards must now be amended and completed in order to fill the gap regarding penalties for violation of the abovementioned rules on open internet, regulated intra-EU calls and network roaming. The aim of this Decree-Law, in accordance with the framework regime for administrative offences in the communications sector, approved by Law No 99/2009, of 4 September, in its current wording, is thus to create and update the aforementioned penalty regimes.
The self-government bodies of the Autonomous Regions were heard.
Therefore:
Pursuant to point a) of paragraph 1 of article 198 of the Constitution, the Government hereby decrees as follows:
Article 1
Subject-matter
This decree-law introduces the fourteenth amendment to Law No 5/2004, of 10 February, as amended by Decree-Law No 176/2007, of 8 May, Law No 35/2008, of 28 July, Decree-Laws No 123/2009, of 21 May, and 258/2009, of 25 September, Laws No 46/2011, of 24 June, 51/2011, of 13 September, 10/2013, of 28 January and 42/2013, of 3 July, Decree-Law No 35/2014, of 7 March, Laws No 82-B/2014, of 31 December, 127/2015, of 3 September and 15/2016, of 17 June, and by Decree-Law No 92/2017, of 31 July, which amends the Electronic Communications Law, establishing the penalty system applicable to the violation of rules on open internet access and on regulated intra-EU calls.
Article 2
Amendment to Law No 5/2004, of 10 February
Article 113 of Law No 5/2004, of 10 February, in its current wording, is hereby amended to read as follows:
« Article 113
[...]
1 - ...
2 - ...
3 - ...
4 – The following shall constitute serious administrative offences, under Regulation (EU) 531/2012, of the European Parliament and of the Council, of 13 June 2012, as amended by Regulation (EU) 2015/2120, of the European Parliament and of the Council, of 25 November 2015, and Regulation (EU) 2017/920, of the European Parliament and of the Council, of 17 May 2017:
a) The violation of obligations provided for in paragraph 7 of article 3, paragraphs 1 to 3 of article 4, paragraph 1 of article 5, paragraph 4 of article 6-E, paragraphs 1 to 4 of article 14 and paragraphs 1, 2 and 5 of article 15 of the abovementioned Regulation;
b) The violation of the obligation to provide information provided for in paragraph 4 of article 16 of the abovementioned Regulation.
5 – The following shall constitute very serious administrative offences, within the scope of the Regulation referred to in the preceding paragraph:
a) The violation of obligations under paragraph 7 of article 1, paragraphs 1, 2 and 5 of article 3, article 6-A, paragraph 1 of article 6-B, paragraph 1 of article 6-C, paragraph 5 of article 6-D, paragraphs 1 and 3 of article 6-E, paragraphs 1 and 2 of article 7, paragraphs 1, 2 and 4 of article 9, article 11, paragraphs 1 and 2 of article 12, paragraph 2-A of article 14 and paragraphs 2-A, 3 and 6 of article 15 of the abovementioned Regulation;
b) The violation of determinations issued by the NRA in the exercise of powers conferred by the final part of paragraph 6 of article 3 and paragraphs 5 and 6 of article 16 of the abovementioned Regulation.
6 – The following shall constitute serious administrative offences under Regulation (EU) 2015/2120, of the European Parliament and of the Council, of 25 November 2015, as amended by Regulation (EU) 2018/1971, of the European Parliament and of the Council, of 11 December 2018:
a) The violation of obligations under paragraphs 4 and 5 of article 3 and paragraph 2 of article 4 of the abovementioned Regulation;
b) The violation of the obligation to provide information provided for in paragraph 1 of article 4 and paragraph 2 of article 5 of the abovementioned Regulation.
7 – The following shall constitute very serious administrative offences, within the scope of the Regulation referred to in the preceding paragraph:
a) The violation of obligations under paragraphs 1 to 3 of article 3 and paragraphs 1 to 5 of article 5-A of the abovementioned Regulation;
b) The violation of determinations issued by the NRA in the exercise of powers conferred by paragraph 1 of article 5 and paragraph 6 of article 5-A of the abovementioned Regulation.
8 - (Former paragraph 6.)
9 - (Former paragraph 7.)
10 - (Former paragraph 8.)
11 - (Former paragraph 9.)
12 - (Former paragraph 10.)
13 - (Former paragraph 11.)
14 - (Former paragraph 12.)»
Article 3
Entry into force
This Decree-Law shall enter into force on the day following that of its publication.
Seen and approved by the Council of Ministers on 9 July 2020.- António Luís Santos da Costa - António Mendonça Mendes - Alberto Afonso Souto de Miranda.
Promulgated on 23 July 2020
Let it be published.
The President of the Republic, Marcelo Rebelo de Sousa.
Countersigned on 27 July 2020.
For the Prime Minister, Pedro Gramaxo de Carvalho Siza Vieira, Minister of State, Economy and Digital Transition.
