Presidência do Conselho de Ministros (Presidency of the Council of Ministers)
Decree-Law
(This is not an official translation of the law)
Law No 17/2012, of 26 April, which lays down the legal regime that governs the provision of postal services, in full competition, on the national territory, as well as of international services to or from the national territory, transposed to the internal legal order Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 amending, with regard to the full accomplishment of the internal market of Community postal services, Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service.
More than nine years after the establishment of the legal regime governing the provision of postal services, it is important to reassess whether it still meets present needs. On the one hand, taking into account the structural changes that are taking place in the sector, with a reduction in postal traffic due to the increase in digital communications and the emergence and spread of e-commerce; on the other hand, bearing in mind the need to ensure the continued proximity of the universal postal service, especially in less densely populated areas, in order to promote the objectives of territorial cohesion and development of inland regions.
Moreover, as the universal postal service concession contract, which was extended until 31 December 2021, is coming to an end, it is important to benefit from the experience acquired in recent years while it was in force, as well as from contributions made by main stakeholders in the sector (users, provider, regulators and local authorities) in the public consultation on the provision of the universal postal service (UPS) held in 2019 and the working group set up by the Government to analyse the evolution of the UPS.
To this end, the rules on the model for setting the UPS price formation criteria - which will now be established by multi-year agreement - and on the definition of the quality of service parameters and performance objectives associated with the provision of the UPS are amended, this responsibility being now entrusted to the grantor.
As price formation is concerned, the aim is to reinforce the necessary contractual stability and predictability, as well as to strengthen the dialogue between the relevant entities, while providing the UPS provider with negotiating capacity in the matter. Should it not be possible to reach an agreement within the scope of the agreement, the final decision will be taken by the Government.
The matter of quality indicators and performance objectives is also extremely important, and their definition must aim to promote the quality of the service provided, as well as its adjustment to the needs of users and to the new dynamics of the postal service. In this context, the grantor will undertake the responsibility for setting those parameters and objectives associated with the provision of the UPS.
In both cases - prices and quality of service - the sector regulator, Autoridade Nacional de Comunicações, will remain in charge of monitoring compliance.
It has also been set out that any failure to meet the performance objectives associated with the provision of the UPS may give rise to more diversified compensation mechanisms, namely involving investment obligations on the part of the UPS provider in the provision of this service, for the effective benefit of users.
Finally, the designation of Autoridade Nacional de Comunicações is updated throughout the Decree-Law, as well as the reference to its statutes, approved by Decree-Law No 39/2015, of 16 March.
Autoridade Nacional de Comunicações has been heard.
Therefore:
Pursuant to paragraph 1a) of article 198 of the Constitution, the Government hereby decrees as follows:
Article 1
Subject-matter
This Decree-Law introduces the fourth amendment to Law No 17/2012, of 26 April, as amended by Decree-Law No 160/2013, of 19 November, Law No 16/2014, of 4 April, and Decree-Law No 49/2021, of 14 June, which lays down the legal regime that governs the provision of postal services, in full competition, on the national territory, as well as of international services to or from the national territory, transposing to the national legal system Directive 2008/6/EC of the European Parliament and of the Council, of 20 February 2008.
Article 2
Amendment to Law No 17/2012, of 26 April
Articles 8, 13, 14, 14-A, 17, 43, 47, 49, 57 and 60 of Law No 17/2012 of 26 April, as it stands, are hereby amended to read as follows:
«Article 8.º
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1 – Autoridade Nacional das Comunicações (ANACOM) shall be the authority empowered, under this law and its Statutes, approved by Decree-Law No 39/2015, of 16 March, to perform regulatory, supervisory and enforcement functions in the postal services sector.
2 - ANACOM shall be specifically responsible for:
a) ...
b) ...
c) ...
d) ...
e) Monitoring the universal service provision and, with regard to activities included in the concession contracts referred to in paragraph 6 of article 17, correcting situations, directly or through third parties, resulting from non-compliance with determinations issued by the Authority, with the corresponding costs being borne by the concessionaire, without prejudice to applicable sanctions;
f) ...
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Article 13
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1 – Quality of service parameters and performance objectives associated with the provision of the universal service, namely those relating to routing deadlines, regularity and reliability of services, as well as rules on the respective measurement, monitoring and disclosure, shall be established by order of the member of the Government in charge of the area of communications for a minimum multi-annual period of three years, following a proposal by ANACOM, which shall hear universal postal service providers and consumer organisations, pursuant to article 43.
2 – The quality of service parameters and performance objectives referred to in the previous paragraph shall be compatible with the levels of quality of service set for intra-Community services and other international services and ensure high quality of service levels in line with best practice in the European Union, as well as the relative importance of postal services integrating the universal service.
3 - Universal service providers shall:
a) Have in place a system for measuring levels of quality of service actually provided, which shall comply with rules that apply to the measurement of quality levels of the universal service, namely intra-Community services; and
b) Measure the levels of quality of service, at least once a year, through an independent external entity, to which they must provide all information and collaboration required for the purpose of the aforementioned measurement.
4 – The results of the measurement referred to in point b) of the previous paragraph shall be the subject of a report published at least once a year by universal service providers and ANACOM on their respective websites.
5 - ...
6 – The results of audits and of other control mechanisms referred to in the preceding paragraph shall be the subject of a report published at least once a year on ANACOM’s website.
Article 14
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2 - ...
3 – Without prejudice to compliance with the principles set out in paragraph 1, the price formation of services which make up the universal postal service must take into account the sustainability and economic-financial viability of the respective provision, and must also take into consideration, namely, changes in traffic, the real change in relevant costs, the quality of the service provided and the incentive to an efficient provision of the universal service.
4 – The criteria to be observed in the price formation of postal services which make up the universal service shall be established for a period of three years, by agreement to be entered into between universal service providers, ANACOM and Direção-Geral do Consumidor (the Directorate General for the Consumer) (Agreement).
5 – For the purpose of the preceding paragraph, ANACOM shall coordinate the work of the Agreement and shall be responsible for articulating the parties in the context of negotiation, as well as for promoting the hearings referred to in article 43.
6 – Where an agreement is to be entered into, it shall be concluded, signed by the parties and notified to the member of the Government in charge of the area of communications by 30 July of the year prior to that to which criteria are to apply.
7 – If it is impossible, within the time limit established in the previous paragraph, to reach an understanding as regards the Agreement, it shall fall on the member of the Government in charge of the area of communications, within a maximum of 20 days, to define the criteria that shall govern the price formation of postal services that comprise the universal service, to be in force for a period of three years.
8 – Once the price formation criteria have been established, universal service providers must notify ANACOM of prices charged for postal services included in the universal service offer, including any changes thereto, substantiating the proposal with regard to compliance with the principles set out in paragraph 1 and with regard to price formation criteria established under paragraphs 4 or 7, with a minimum of 70 days’ notice prior to the date on which they come into force.
9 – Following the notification referred to in the preceding paragraph, ANACOM shall:
a) Send to the member of the Government in charge of the area of communications and to universal service providers, within at the most 20 days, a report on whether prices submitted comply with principles established in paragraph 1 and price formation criteria established under paragraphs 4 or 7; and
b) Submit to the member of the Government in charge of the area of communications a draft decision on prices.
10 – Without prejudice to paragraphs 9 and 14, ANACOM may request clarifications or additional information from universal service providers, setting a reasonable deadline for this purpose which shall be no less than five days and no more than 10 days.
11 – The request provided for in the previous paragraph shall suspend the counting of deadlines on the date on which universal service providers receive the request for clarifications or for additional elements.
12 – The member of the Government in charge of the area of communications shall decide on the price proposal presented, within 10 days at the most.
13 – Where the member of the Government in charge of the area of communications considers that prices do not comply with the principles established in paragraph 1 or do not meet the price formation criteria established under paragraphs 4 or 7, it shall notify universal service providers so that they may submit a new proposal, with a review of prices, within 10 days at the most.
14 – Where, under the previous paragraph, universal service providers are required to submit a new price proposal, ANACOM shall analyse this new proposal and submit, within 10 days, a new report and draft decision to the member of the Government in charge of the area of communications, who shall decide thereon within 10 days.
15 – Where price formation criteria are not established under paragraphs 4 or 7, universal service providers shall notify the member of the Government in charge of the area of communications of prices they intend to apply, together with a criteria proposal that must be duly substantiated as to its compliance with principles established in paragraph 1, whereby the provisions of paragraphs 9 to 14 shall apply, duly adapted.
16 – Where the member of the Government in charge of the area of communications does not state its position by the end of periods referred to in paragraphs 12 and 14, as appropriate, universal service providers shall be entitled to apply the prices notified.
17 – With regard to postal services which are part of the universal service offer, the member of the Government in charge of the area of communications may, on ANACOM’s proposal and after hearing the other entities which are part of the Agreement:
a) Determine, for duly justified reasons of public interest, that the price of the postal service for items of correspondence weighing less than 50g shall comply with the principle of uniform tariffs, a single price being applied throughout the territory, without prejudice to the right of universal service providers to conclude individual agreements on special prices with users;
b) Impose price control mechanisms, including price caps, as required to promote competition or protect the rights and interests of users;
c) Provide that certain postal services for the use of the blind and partially sighted shall be provided free of charge;
d) Determine the amendment of prices of postal services which are part of the universal service offer, as well as the modification or elimination of conditions associated to prices, based on duly justified grounds of compliance with principles outlined in paragraph 1, taking into account the quality of the service provided, as required to promote competition or protect the rights and interests of users.
Article 14-A
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2 - ...
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4 – In the context of special prices, and following their entry into force, the member of the Government in charge of the area of communications may, on ANACOM’s proposal, determine the amendment of such prices, as well as the modification or elimination of conditions associated to prices, based on duly justified grounds of compliance with the principles outlined in paragraphs 1 and 2, taking into account the quality of the service provided, as required to promote competition or protect the rights and interests of users.
Article 17
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1 – The provision of the universal service may be ensured through the following mechanisms:
a) ...
b) ...
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4 - ...
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6 - ...
Article 43
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The definition by the member of the Government in charge of the area of communications of quality of service parameters and performance objectives, as well as of rules for the price formation of postal services that comprise the universal service, in accordance with articles 13 and 14, shall be preceded a hearing of consumer organisations by ANACOM.
Article 47
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1 – Where performance objectives associated with the provision of the universal service, established under article 13, fail to be met, the member of the Government in charge of the area of communications, following a proposal from ANACOM, shall, in accordance with the principles of proportionality, adequacy, non-discrimination and transparency, apply compensation mechanisms for users of the universal service.
2 – Compensation mechanisms referred to in the previous number may consist, namely, in determining the review of prices or investment obligations of universal service providers, within the scope of the provision of this service, and shall be specified in contracts referred to in paragraph 6 of article 17.
Article 49
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1 - ...
a) ...
b) ...
c) ...
d) ...
e) ...
f) ...
g) Violation of principles and criteria governing the price formation of postal services that integrate the universal service, pursuant to paragraphs 1 and 4 or 7 of article 14;
h) Violation of the notification obligation established under paragraph 8 of article 14;
i) Non-compliance with obligations set out under paragraph 17 of article 14;
j) ...
k) ...
l) ...
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o) ...
p) ...
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r) ...
s) ...
t) ...
u) ...
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y) ...
z) ...
aa) ...
bb) ...
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dd) Failure by the concessionaire to observe the final part of paragraph 8;
ee) ...
ff) ...
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9 – Where the offence results from the failure to comply with a legal duly or with an order issued by the member of the Government in charge of the area of communications or by ANACOM, the application of the penalty or its enforcement shall not exempt the offender from complying with the duty or order, where this is still possible.
10 - ...
11 - ...
Article 57
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1 - (Repealed.)
2 - (Repealed.)
3 – The member of the Government in charge of the area of communications may, through the universal postal service concession contract, assign to the respective concessionaire the exclusive provision of reserved activities and services referred to in point b) of paragraph 2 of article 3.
4 - (Repealed.)
5 - (Repealed.)
6 - (Repealed.)
7 - (Repealed.)
8 – The universal postal service concessionaire shall be entitled to provide postal services that are not covered by the object of the concession, exempt from procedures set out in articles 27 and 34, and shall inform ANACOM, prior to the respective start, whenever it begins to provide one of these services.
9 - (Repealed.)
10 - (Repealed.)
Article 60
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Rules laid down in article 87 of the Code of Administrative Procedure shall apply to the counting of periods provided for herein.»
Article 3
Transitional regime
1 – In 2022, the prices to be defined in the concession contract shall be in force, pursuant to the Council of Ministers Resolution No 144/2021, of 3 November, which shall foster an efficient provision and ensure the sustainability and economic-financial viability of the provision of the universal postal service.
2 – Until the member of the Government in charge of the area of communications establishes the quality of service parameters and performance objectives associated with the provision of universal service, under article 13 of Law No 17/2012 of 26 April, as amended by this decree-law, the decision of Autoridade Nacional de Comunicações of 29 April 2021, on quality of service parameters and performance objectives associated with the provision of the universal service remains in force on a transitional basis, without prejudice to the prerogative of the member of the Government in charge of the area of communications, under paragraph 2 of article 47 of the referred law.
Article 4
Legal references
All references made to «ICP-ANACOM» in Law No 17/2012, of 26 April, as amended, are deemed to be made to «ANACOM», in accordance with the Statutes of Autoridade Nacional de Comunicações approved by Decree-Law No 39/2015, of 16 March.
Article 5
Repealing provision
Paragraphs 1, 2, 4, 5, 6, 7, 9 and 10 of article 57 of Law No 17/2012 of 26 April, as amended, are hereby repealed.
Article 6
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 23 December 2021. - António Luís Santos da Costa - Miguel Jorge de Campos Cruz - Pedro Nuno de Oliveira Santos.
Promulgated on 5 February 2022.
Let it be published.
The President of the Republic, Marcelo Rebelo de Sousa.
Countersigned on 5 February 2022.
The Prime Minister, António Luís Santos da Costa.
