Law
(This is not an official translation of the law)
Approves the Electronic Communications Law, transposing Directives 98/84/EC, 2002/77/EC and (EU) 2018/1972, amending Laws No 41/2004, of 18 August, and 99/2009, of 4 September, as well as Decree-Laws No 151-A/2000, of 20 July, and 24/2014, of 14 February, and repealing Law No 5/2004, of 10 February, and Administrative Rule No 791/98, of 22 September.
The Assembly of the Republic hereby decrees, pursuant to point c) of article 161 of the Constitution, as follows:
Article 1
Subject-matter
1 - This law approves the Electronic Communications Law, transposing to the internal legal system:
a) Directive 98/84/EU of the European Parliament and of the Council, of 20 November 1998, on the legal protection of services based on, or consisting of, conditional access;
b) Commission Directive 2002/77/EU, of 16 September 2002, on competition in the markets for electronic communications networks and services;
c) Directive (EU) 2018/1972 of the European Parliament and of the Council, of 11 December 2018, establishing the European Electronic Communications Code.
2 – This law introduces also:
a) The second amendment to Law No 41/2004, of 18 August, which transposes into national law Directive 2002/58/EU, of the European Parliament and of the Council, of 12 July, concerning the processing of personal data and the protection of privacy in the electronic communications sector, amended by Law No 46/2012, of 29 August;
b) The second amendment to Law No 99/2009, of 4 September, which approves the framework system of administrative offences in the communications sector, as amended by Law No 46/2011, of 24 June;
c) The fifth amendment to Decree-Law No 151-A/2000, of 20 July, which establishes the regime applicable to the licensing of radiocommunications networks and stations, the supervision of the installation of said stations and the use of the radioelectric spectrum, as well as the definition of the principles applicable to radioelectric fees, the protection of exposure to electromagnetic radiation and the sharing of radio infrastructures, as amended by Decree-Laws No 167/2006, of 16 August, and No 264/2009, of 28 September and Laws No 20/2012, of 14 May and 82-B/2014, of 31 December;
d) The fifth amendment to Decree-Law No 24/2014, of 14 February, which transposes Directive 2011/83/EU, of the European Parliament and of the Council, of 25 October 2011, on consumer rights, as amended by Law No 47/2014, of 28 July, and by Decree-Laws No 78/2018, of 15 October, 9/2021, of 29 January, and 109-G/2021, of 10 December.
Article 2
Electronic Communications Law
The Electronic Communications Law is hereby approved in annex hereto, and constitutes an integral part hereof.
Article 3
Amendment to Law No 41/2004, of 18 August
Articles 7 and 10 of Law No 41/2004, of 18 August, are hereby amended to read as follows:
«Article 7
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2 – The recording, processing and making available of location data, including caller location information, to organisations with legal powers to receive or handle emergency communications, for the purpose of responding to such communications, shall be allowed.
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Article 10
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2 - ...
3 – Undertakings referred to in paragraph 1 shall also, on a per-line basis, cancel the elimination of the presentation of the calling line and record and process the location data of a subscriber or user, including the caller location information in the case of paragraph 2 of article 7, in order to make such data available to organisations entitled by law to receive or handle emergency communications for the purpose of responding to such communications.
4 – In the cases referred to in the previous paragraphs, prior information must be mandatorily transmitted to the owner of said data about the transmission thereof, to the subscriber who requested them under paragraph 1 or to organisations with legal competence to receive or handle emergency communications, under paragraph 3.
5 - ...
a) ...
b) In the cases referred to in paragraph 3, by including general contractual clauses in contracts to be concluded between subscribers and undertakings providing electronic communications networks and services or by expressly notifying subscribers in contracts already concluded, allowing such information to be made available to organisations with legal powers to receive or handle emergency communications.
6 - ...»
Article 4
Amendment to Law No 99/2009, of 4 September
Articles 1, 3, 7, 11, 12, 15, 21, 23, 24, 27, 32 and 35 of Law No 99/2009, of 4 September, are hereby amended to read as follows:
«Article 1
[...]
1 - ...
2 - ...
3 – For the purposes of the preceding paragraphs, the matters addressed in the following statutory instruments, or in those that substitute them, are considered to be part of the communications sector:
a) ...
b) ...
c) ...
d) ...
e) (Repealed.)
f) ...
g) (Repealed.)
h) (Repealed.)
i) ...
j) ...
l) ...
m) ...
n) (Repealed.)
o) Decree-Law No 56/2010, of 1 June;
p) Law No 17/2012, of 26 April;
q) Decree-Law No 57/2017, of 9 June, except for provisions amended by Decree-Law No 9/2021, of 29 January.
4 - The provisions of this law shall not apply to the offences set out in Law No 41/2004, of 18 August, Decree-Laws No 7/2004, of 7 January, 156/2005, of 15 September, 134/2009, of 2 June, and 57/2008, of 26 March, Law No 144/2015, of 8 September and Decree-Law No 58/2016, of 29 August, without prejudice to the powers granted therein to ANACOM.
Article 3
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2 - ...
3 - ...
4 – The statutory instruments that establish administrative offences in the communications sector may provide that holders of administrative or management bodies and positions, as well as those responsible for the management or supervision of areas of activity of legal persons in which an administrative offence is committed, incur the fine provided for the acts of such legal persons, especially reduced, when, with clear and serious violation of the duties incumbent upon them, being aware or having reason to be aware of the commission of the infraction, they do not adopt the appropriate measures to avoid it or put an end to it immediately, unless they are subject to a more serious sanction by virtue of another legal provision.
5 – The liability of legal persons shall not exclude the individual liability of their agents.
6 - (Former paragraph 4.)
Article 7
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2 - ...
3 - ...
4 - ...
5 - ...
6 - ...
a) «Micro-enterprise» means an enterprise that employs less than 10 employees, has an annual turnover or annual balance sheet total not exceeding EUR 2 million and which conforms to the criterion of independence whereby 20 % or more of its capital stock or voting rights is not held, directly or indirectly, by a small enterprise or group of small EUR enterprises, a medium-sized enterprise or group of medium-sized enterprises, or a large enterprise or group of large enterprises;
b) «Small enterprise» means an enterprise that employs less than 50 workers, has an annual turnover or annual balance sheet total that does not exceed EUR 10 million and is also one that, fulfilling the economic requirements and the average number of employees provided for in the previous point, has 20% or more of its share capital or voting rights held, directly or indirectly, by a small enterprise or group of small enterprises;
c) «Medium-sized enterprise» means an enterprise that employs less than 250 employees, has an annual turnover not exceeding EUR 50 million or an annual balance-sheet total not exceeding EUR 43 million, and that, fulfilling the economic requirements and average number of employees referred to in points a) or b), has 20% or more of its share capital or voting rights held, directly or indirectly, by a medium-sized enterprise or group of medium-sized enterprises;
d) «Large enterprise» means an enterprise that employs more than 250 employees and has an annual turnover exceeding EUR 50 million or an annual balance-sheet total exceeding EUR 43 million, and that, fulfilling the economic requirements and average number of employees referred to in points a), b) or c), has 20% or more of its share capital or voting rights held, directly or indirectly, by a large enterprise or a group of large enterprises.
7 - ...
8 - ...
9 – For the purpose of paragraphs 6 and 7, the size of the company shall be determined on the basis of the economic data for the year preceding that of the charge, without prejudice to the possibility of new factual elements leading to a change in the initial classification being considered, of the court’s own motion or by indication of the defendant.
10 – Where it is not possible to determine the size of the company, for the purpose of the previous paragraphs, the administrative offence framework established for medium-sized companies shall apply, without prejudice to new elements being considered, under the previous paragraph.
11 - ...
Article 11
[...]
1 – The legal statutory instruments that establish the administrative offences in the communications sector may also provide for the application of the following additional sanctions, whenever the seriousness of the infraction and the fault of the agent so justify:
a) ...
b) ...
c) ...
d) ...
2 - ...
3 - ...
Article 12
[...]
1 – Regardless of the absence of proceedings against the agent or the non-application of a fine, illicit objects, equipment and devices may be declared forfeited to the State, even if they belong to third parties, where:
a) They pose, by their nature or the circumstances of the case, a serious danger to the community or there is a serious risk that they will be used to commit a crime or other administrative offence;
b) They do not conform to the essential requirements concerning electromagnetic compatibility, radio interference, health and safety.
2 – Without prejudice to point a) of the previous article and the previous paragraph, illicit objects, equipment and devices that have been apprehended on a precautionary or provisional basis and which, after having been notified to the interested parties, have not been claimed within 60 days, shall be considered to be lost to the State.
3 - (Former paragraph 2.)
Article 15
[...]
1 – In the case of an administrative offence consisting of a remediable irregularity which has not resulted in significant damage, ANACOM, through employees vested with powers to do so, may warn the offender, indicating the infringement found, the measures recommended to remedy the situation and the deadline for compliance.
2 - ...
3 - ...
4 - (Repealed.)
5 - ...
6 - ...
7 – A decision imposing a warning as provided for in this article shall not constitute a conviction.
Article 21
[...]
1 – Where the seriousness and specific illegality of the offence or the degree of fault so justify, ANACOM may, before formally charging the defendant, notify the defendant of the decision to issue a reprimand or to impose a fine the actual amount of which does not exceed three times the minimum limit of the framework abstractly established for the offence.
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3 - ...
4 - ...
5 – The refusal or silence of the defendant within this period, the request for any additional diligence, the non-compliance with paragraph 2, the non-payment of the fine or the non-acceptance of the reprimand within 20 days after the notification referred to in the previous number shall determine the immediate continuation of the administrative offence proceedings, and the decision referred to in paragraph 1 shall be without effect.
6 – Where the defendant complies with paragraph 2 and pays the fine imposed or accepts the reprimand issued, the decision becomes final as a conviction, and the fact cannot be considered a new administrative offence.
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Article 23
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1 – With regard to light infringements, as well as serious infringements committed with negligence, the defendant may choose to pay the fine voluntarily within the time limit referred to in the previous article.
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Article 24
Inquiries and witness interviews
1 – Inquiries and witness interviews shall be held at ANACOM’s premises or at another location indicated by ANACOM of its own motion.
2 - (Former paragraph 1.)
3 - (Former paragraph 2.)
4 – Where appropriate, inquiries and witness interviews may, on ANACOM’s own initiative or upon request, be held at ANACOM’s premises or at another location indicated by ANACOM, by means of videoconferencing.
5 – Magnetic or audio-visual recordings may be used in inquiries and witness interviews, which shall mention the beginning and end of the inquiry.
6 – Statements, information or clarification obtained by magnetic recording or videoconferencing shall not be reduced to writing, nor shall their transcription be necessary for the purposes of appeal, and a copy of the recordings shall be attached to the file.
7 – Where the measures referred to in this article are carried out in person outside ANACOM’s premises, ANACOM’s employees must carry a credential which states the identification of the employee and the purpose of the measure.
Article 27
[...]
1 - Notifications shall be made through one of the following means:
a) Serviço Público de Notificações Eletrónicas (SPNE - the Public Service for Electronic Notifications) or another electronic notifications service to be provided by ANACOM, which shall approve the way in which notifications are made;
b) Email;
c) Registered letter sent to the home address or registered office of the notifier, to the address provided under article 18 or to the address communicated to ANACOM for that purpose;
d) Fax;
e) Personal notification, pursuant to the Criminal Procedure Code.
2 – Where, for whatever reason, the letter mentioned in paragraph c) of the previous paragraph is returned to the sender, the notification shall be sent again to the same address by means of a simple letter.
3 – In the case provided for in the previous paragraph, the file investigator shall write a note in the proceedings indicating the date of dispatch of the letter and the address to which it was sent, and notification shall be deemed to have been served on the fifth day after the date indicated, with such penalty to be included in the act of notification.
4 – Where the addressee refuses to receive the notification or to sign the acknowledgement of receipt, and where the refusal is duly identified on the envelope or acknowledgement, the notification shall be deemed to have been served.
5 – When the addressee or authorised representative has not subscribed to the SPNE associated to the single digital address, under Decree-Law No 93/2017, of 1 August, and without prejudice to the rules approved by ANACOM under paragraph b) of paragraph 1 of this article and paragraph 1 of article 27-A, notifications may be made by email, when, prior to or during the administrative offence proceeding, the addressee has expressly consented to receive notifications in administrative offence proceedings, indicating for that purpose an email address.
6 – For the purposes of the preceding paragraph, express consent is deemed to be the use of email, in the respective proceedings, by the addressee or authorised representative as a means of contacting ANACOM.
7 – When made by electronic means, notifications shall be deemed to be made on the third day following that on which they are sent, when this is a working day, or otherwise on the first working day thereafter.
8 – Where it is found that the addressee or authorised representative has joined the SPNE, the notification is made through that service, in accordance with Decree-Law No 93/2017, of 1 August.
9 – Notifications made by email shall be deemed to have been made at the moment in which the recipient accesses the specific mail sent to his electronic mailbox and, in the case of absence of access, shall be deemed to have been made on the fifth working day following that on which it was sent, or otherwise on the first working day thereafter, except where it is established that:
a) The addressee communicated the change in the electronic mailbox;
b) It was impossible to communicate the change to the electronic mailbox; or,
c) The electronic communications service prevented the notification from being properly received, in particular by means of a filtering system for which the person concerned is not responsible.
10 - (Former paragraph 5.)
11 - (Former paragraph 6.)
Article 32
Challenging ANACOM’s decisions
1 – Without prejudice to paragraph 3, where a decision issued by ANACOM is challenged in the context of administrative offence proceedings, ANACOM shall forward the records to the Public Prosecutor’s Office, preferably electronically, within 20 working days, being entitled to add allegations, as well as other elements or information it considers relevant to the decision of the case, and also offer means of proof.
2 – Electronic submission of the records exempts the submission of the originals, without prejudice to the duty to exhibit the procedural documents on paper and the originals of the documents contained therein, where such documents exist, whenever the Public Prosecutor’s Office or the judge so determines.
3 – Decisions, orders or other measures adopted by ANACOM in the context of administrative offence proceedings may be challenged before Tribunal da Concorrência, Regulação e Supervisão (the Competition, Regulation and Supervision Court), the appeal being lodged with ANACOM.
4 – An appeal against any decisions issued by ANACOM which, in the context of administrative offence proceedings, determine the imposition of fines or additional penalties or concern the confidentiality of judicial proceedings, shall have suspensive effect.
5 – Appeals against other decisions, orders or other measures, including decisions imposing periodic penalty payments, adopted within the scope of administrative infraction proceedings shall have merely devolutive effect and shall be subject to the rules provided for in this article.
6 – ANACOM, the Public Prosecutor’s Office and the defendants may oppose the court’s decision by order, without a hearing.
7 – In the event of an appeal against a decision issued in administrative offence proceedings, the withdrawal of the prosecution by the Public Prosecutor’s Office depends on ANACOM’s agreement.
8 – ANACOM is entitled to appeal autonomously against any decisions and orders other than those of a mere administrative nature, including those concerning nullities and other preliminary or incidental matters, or the application of precautionary measures, as well as to handle appeals.
9 – The decisions of the Competition, Regulation and Supervision Court which may be appealed, pursuant to the general regime for administrative offences, can be challenged to the Lisbon Court of Appeal.
10 – The Court of Appeal, within the competence provided for in the previous paragraph, gives final decisions, and its judgements shall not be subject to ordinary appeal.
Article 35
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1 - ...
2 – Costs are intended to cover the expenses incurred in the proceedings.
3 – Reimbursement for expenses with notifications and communications, audio-visual media and materials used in the proceedings shall be calculated at the rate of half of 0.5 CU for the first 50 sheets or fraction of the file and one tenth of a CU for each subsequent set of 25 sheets or fraction of the file, without prejudice to the following paragraphs.
4 – The values indicated in the previous number shall be doubled in the case of proceedings relating to administrative offences provided for in the Electronic Communications Law, Law No 17/2012 of 26 April and Decree-Law No 123/2009 of 21 May, for infringement of rules applicable to the construction and extension of suitable infrastructures, access to infrastructures suitable for housing electronic communications networks and the Suitable Infrastructure Information System.
5 – Where copies or certificates of the case file or parts thereof are made available at the request of the defendant, even if in digital format, an amount shall be added to the amounts referred to in the previous numbers, calculated under the terms of the same numbers in accordance with the number of pages made available.
6 – The costs also include the following charges:
a) The payment of experts, translators, interpreters and technical consultants;
b) Payment due to any entity for the cost of technical services, certificates or other elements of information and evidence.
7 – The costs shall be borne by the defendant and all those jointly and severally liable under this law, in case of imposition of a reprimand, a fine or an additional penalty.
8 - (Former paragraph 7.)
9 – The defendant may judicially challenge ANACOM’s decision on costs, and the challenge shall be lodged within 20 working days of notification of the decision to be challenged.
10 – After the expiry of the deadline referred to in the previous paragraph, where the defendant does not challenge the said decision, costs due must be paid within 10 working days.»
Article 5
Amendment to Decree-Law No 151-A/2000, of 20 July
Article 4 of Decree-Law No 151-A/2000, of 20 July, is hereby amended to read as follows:
«Article 4
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2 - ...
3 - ...
4 – In the cases provided for in paragraph 2, license holders shall be compensated, in full or in part, for the special and abnormal charges or damages imposed on them, in accordance with the rules applicable to compensation for sacrifice as provided for in the system of extra-contractual civil liability of the State and other public entities, approved by Law No 67/2007, of 31 December.
5 – It falls to ANACOM to determine the amount of compensation referred to in the previous paragraph, under the general terms and conditions to be defined by the member of the Government in charge of communications.
6 – The expenses arising from said compensation shall be borne by funds from ANACOM’s budget.
7 – Where there is an alteration or substitution of the assignment of frequencies, under the terms of paragraph 2, namely for the allocation of such frequencies following technical harmonisation, ANACOM may determine that the compensation referred to in the previous paragraph be paid by the beneficiary of the new allocation.»
Article 6
Amendment to Decree-Law No 24/2014, of 14 February
Article 30 of Decree-Law No 24/2014, of 14 February, is hereby amended to read as follows:
«Article 30
[...]
1 – ASAE is responsible for monitoring compliance with the provisions of this decree-law and for examining the respective administrative offence proceedings, except where the contracting of electronic communications services, audiotext services, value-added services based on the sending of messages or postal services is involved, in which case ANACOM is responsible for monitoring compliance with the provisions of chapters ii and iv and for examining the respective administrative offence proceedings.
2 – The decision to impose fines and additional penalties falls to the Inspector-General of ASAE or to ANACOM’s Board of Directors, depending on whether matters under the supervision of ASAE or ANACOM are involved.
3 - ...»
Article 7
Addition to Law No 99/2009, of 4 September
Article 27-A is hereby added to Law No 99/2009, of 4 September, as follows:
«Article 27-A
Electronic processing
1 – The processing of administrative offences in the communications sector is carried out electronically in accordance with paragraph 7 of article 5 of the Electronic Communications Law, under terms to be defined by ANACOM, which also approves the manner in which electronic notifications which are not made through the public electronic notification service are to be carried out.
2 – The autographic signature in the administrative process, when exceptionally processed on paper, is dispensed with whenever the procedural acts are carried out electronically with the affixation of a qualified electronic signature, including the Citizen’s Card and the Mobile Digital Key, with the possibility of using the Professional Attributes Certification System, or others included in the European List of Trusted Services, without prejudice to the provisions of article 4 of Law No 37/2014, of 26 June.
3 – The electronic processing of the process must guarantee its integrity, authenticity and inviolability.»
Article 8
References
All references to Law No 5/2004, of 10 February, shall be deemed to be made to the corresponding provisions of the Electronic Communications Law approved in annex hereto.
Article 9
Transitional rule
This law shall apply to all contracts concluded after its entry into force, with the exception of paragraph 5 of article 22, points i) and l) of article 113, paragraphs 6 and 7 of article 120, paragraph 5 of article 122, point h) of paragraph 3 of article 126, articles 129 and 133, subpoint ii) of point b) of article 136 and article 137 of the Electronic Communications Law, approved in annex hereto, which shall apply immediately to all existing contracts.
Article 10
Regulations
1 – Without prejudice to its statutory power to issue regulations whenever deemed indispensable to the pursuit of its functions, it is incumbent upon Autoridade Nacional de Comunicações (ANACOM) to approve the regulations required to implement the Electronic Communications Law approved in annex hereto.
2 – ANACOM’s regulations and acts which, having been adopted under the terms of Law No 5/2004, of 10 February, are not incompatible with the provisions of the Electronic Communications Law approved in annex hereto, shall remain in force until replaced or revoked by ANACOM.
3 – Administrative Rule No 1473-B/2008, of 17 December shall remain in force until revoked by the administrative rule referred to in articles 165 and 166 of the Electronic Communications Law approved in annex hereto.
4 – The technical and security conditions are approved within 90 days of the publication of this law, after consultation with operators and providers of electronic communications services.
Article 11
Repealing provision
The following statutory instruments are hereby repealed:
a) Law No 5/2004, of 10 February;
b) Points e), g), h) and n) of paragraph 3 of article 1 and paragraph 4 of article 15 of Law No 99/2009, of 4 September;
c) Administrative Rule No 791/98, of 22 September;
d) Administrative Rule No 469/2009, of 6 May.
Article 12
Application over time
1 – Companies providing publicly available electronic communications networks and services, with the exception of number-independent interpersonal communications services and transmission services used for the provision of machine-to-machine services, shall ensure compliance with the provisions of paragraphs 4 and 5 of article 136 of the Electronic Communications Law approved in annex hereto within 60 days of the entry into force hereof.
2 – The obligations regarding the content of contracts provided for in paragraphs 6 and 7 of article 120 of the Electronic Communications Law approved in annex hereto shall apply in the case of amendments to contracts already concluded.
3 – Obligations concerning access to emergency services through emergency communications and the availability of caller location information, in accordance with article 67 of the Electronic Communications Law approved in annex hereto, shall be binding as from the moment each means of access to emergency services is opened to the public by the competent national authorities, under terms to be duly coordinated by those authorities and without prejudice to the duty of undertakings subject to those obligations to cooperate with a view to developing and opening each means of access to the public.
4 – ANACOM is required to carry out the first geographic survey, under article 173 of the Electronic Communications Law approved in annex hereto, by 21 December 2023.
Article 13
Entry into force
1 – This law shall enter into force 90 days after its publication.
2 – Notwithstanding the preceding paragraph, article 59, paragraphs 3, 4, 5, 6 and 7 of article 62, article 65, article 177, point q) of paragraph 3 of article 178, article 179, article 180, article 181, article 182 and article 183 of the Electronic Communications Law, approved in annex hereto, shall enter into force on the day following its publication.
Approved on 21 July 2022
The President of the Assembly of the Republic, Augusto Santos Silva.
Promulgated on 10 August 2022.
Let it be published.
The President of the Republic, Marcelo Rebelo de Sousa.
Counter-signed on 11 August 2022.
The Prime-Minister, António Luís Santos da Costa.
ANNEX
(referred to in article 2)
Electronic Communications Law
TITLE I
General Part
Article 1
Subject-matter
This law establishes the legal framework applicable to electronic communications networks and services, associated facilities and services, to the management of the radio frequency spectrum and of numbering resources and certain aspects of terminal equipment, and lays down tasks of the National Regulatory Authority (NRA) and of other competent authorities in these areas.
Article 2
Scope of application
1 - The following are excluded from the scope of application of this law:
a) Information society services, defined in Decree-Law No 30/2020, of 29 June, which do not consist of an electronic communications service;
b) Services providing or exercising editorial control over content transmitted over electronic communications networks and services, including television and radio programme services and audiotext and message-based value-added services;
c) The private networks of the Ministry of National Defence, or under its charge, and of the security and emergency forces and services, which are governed by specific legislation;
d) The Government IT network, managed by the Government’s Centro de Gestão da Rede Informática (the Government IT Network Management Centre), as well as the networks created to pursue the purposes set out in point g) of paragraph 2 of article 2 of Decree-Law No 16/2012, of 26 January.
2 –Provisions of this law shall be without prejudice to:
a) The regime for making available on the market, placing in service and use of radio equipment, approved by Decree-Law No 57/2017, of 9 June;
b) The regime applicable to the construction of infrastructures capable of housing electronic communications networks, to the installation of electronic communications networks and to the construction of telecommunications infrastructures in housing developments, urban settlements, buildings and groups of buildings, provided for in Decree-Law No 123/2009, of 21 May;
c) The regime applicable to the use of the radio frequency spectrum, including the conditions relating to radiocommunications networks and stations, provided for in Decree-Law No 151-A/2000, of 20 July, in all matters not specifically provided for in this law;
d) The legal regime applicable to radio amateurs, provided for in Decree-Law No 53/2009, of 2 March;
e) The legal regime applicable to essential public services, provided for in Law No 23/96, of 26 July;
f) The legal framework applicable to the provision of promotion, information and support services to consumers and users through call centres, approved by Decree-Law No 134/2009, of 2 June;
3 – In the event of conflict between this law and other applicable sector legislation, this law shall prevail, except when another provision results in a more demanding regime for undertakings providing electronic communications networks and services, in which case the more demanding regime shall apply.
4 – The provisions of this law shall be without prejudice to the application of measures adopted at European Union or national level with a view to:
a) Ensure compliance with obligations imposed in respect of services provided using electronic communications networks and services;
b) Pursue general interest objectives, in particular relating to content regulation, audio-visual policy and the protection of personal data and privacy;
c) Preserve security and public order, enabling the investigation, detection and prosecution of criminal acts and ensuring defence.
Article 3
Definitions
1 – For the purposes of this law, the following definitions shall apply:
a) «Access» shall mean the making available of facilities or services to another undertaking, under defined conditions, either on an exclusive or a non-exclusive basis, for the purpose of providing electronic communications services, including where they are used for the provision of services provided for in points a) and b) of article 2, covering the access, inter alia, to:
i) Network elements and associated facilities, which may involve the connection of equipment, by fixed or non-fixed means, including, in particular, the access to the local loop and to facilities and services necessary to provide services over the local loop;
ii) Physical infrastructures including buildings, ducts, towers and masts;
iii) Relevant software systems including operational support systems;
iv) Information systems or databases for pre-ordering, provisioning, ordering, maintaining and repair requests, and billing;
v) Access to number translation or systems offering equivalent functionality;
vi) Fixed and mobile networks, in particular for roaming;
vii) Conditional access systems for digital television services; and
viii) Virtual network services.
b) «Radio spectrum allocation» shall mean the designation of a radio spectrum band for use by one or more types of radio communications services or by the radio astronomy service, where appropriate, under specified conditions;
c) «NRA» shall mean Autoridade Nacional de Comunicações (ANACOM), the statutes of which were approved by Decree-Law No 39/2015, of 16 March (ANACOM Statutes);
d) «Competent authorities or other competent authorities» shall mean the bodies specifically empowered under this Law, other than the NRA;
e) «General authorisation» shall mean the legal framework established by this law of by the NRA regulations ensuring rights for the provision of electronic communications networks or services and laying down sector-specific obligations that may apply to all or to specific types of electronic communications networks and services, in accordance with this law;
f) «Call» shall mean a connection established by means of a publicly available interpersonal communications service allowing two-way voice communication;
g) «Emergency communication» shall mean communication by means of interpersonal communications services between an end-user and the public safety answering point (PSAP) with the goal to request and receive emergency relief from emergency services;
h) «Consumer» shall mean any natural person who uses or requests a publicly available electronic communications service for non-professional purposes;
i) «Enhanced digital television equipment» shall mean set-top boxes intended for connection to television sets or integrated digital television sets, able to receive digital interactive television services;
j) «Terminal equipment» shall mean any product or component which makes communication possible or is designed to be connected directly or indirectly, by any means, to interfaces of public electronic communications networks;
k) «Radio spectrum» shall mean all frequencies associated with electromagnetic waves below 3000 GHz that propagate in space without artificial guide;
l) «Harmonised radio spectrum» shall mean radio spectrum for which harmonised conditions for availability and efficient use are established by technical implementing measures, pursuant to article 4 of Decision No 676/2002/EC of the European Parliament and of the Council, of 7 March 2002, on a regulatory framework for radio spectrum policy in the European Community (Radio Spectrum Decision);
m) «Security incident» shall mean an event having an actual adverse effect on the security of electronic communications networks or services;
n) « Caller location information» shall mean the data processed in a public mobile network, derived from network infrastructure or handsets, indicating the geographic position of an end-user’s mobile terminal equipment, and, in a public fixed network, the data about the physical address of the network termination point (NTP);
o) «Application programming interface (API)» shall mean the software interface between applications, made available by radio, television or distribution operators, and the resources in the enhanced digital television equipment for digital television and radio services;
p) «Harmful interference» shall mean any interference which endangers the functioning of a radio navigation service or of other safety services or which otherwise seriously degrades, obstructs or repeatedly interrupts a radio communications service operating in accordance with the applicable international, European Union or national regulations;
q) «Interconnection» shall mean a specific type of access implemented between operators by means of a physical and logical linking of public electronic communications networks used by the same or different undertakings in order to allow the service users of one undertaking to communicate with users of the same or other undertakings, or to access services provided by another undertaking, where such services are provided by the parties involved or third parties who have access to the network;
r) «Local loop» shall mean the physical path used by electronic communications signals connecting the network termination point at the end-user premises to a distribution frame or equivalent facility in the fixed public electronic communications network;
s) «SMP guidelines» shall mean guidelines published by the Commission for market analysis and the assessment of significant market power;
t) «Transnational markets» shall mean markets identified in accordance with article 76, which cover the European Union or a substantial part thereof, located in more than one Member State;
u) «Micro-enterprise» shall mean the enterprise defined as such in article 2 of the annex to Decree-Law No 372/2007, of 6 November 2007, which constitutes an autonomous enterprise within the meaning of paragraph 1 of article 3 of that annex;
v) «Number» shall mean a numbering resource consisting of a set of decimal digits;
w) «Geographic number» shall mean a number from the National Numbering Plan (NNP) where part of its digit structure contains geographic significance used for routing calls to the physical location of the NTP;
x) «Non-geographic number» shall mean a number from the NNP that is not a geographic number, such as mobile, nomadic, freephone and premium-rate numbers;
y) «Provision of an electronic communications network» shall mean the establishment, operation, control or making available of an electronic communications network;
z) «Operator» shall mean an undertaking providing or authorised to provide a public electronic communications network or an associated facility;
aa) «Non-profit organisation» shall mean a legal body whose owners or members do not make a profit, such as charitable associations or other types of public interest organisations;
bb) «PSAP» shall mean a physical location where an emergency communication is first received under the responsibility of a public authority or a private organisation recognised by the competent authorities;
cc) «Most appropriate PSAP» shall mean a PSAP established by competent authorities to cover emergency communications from a certain area or for emergency communications of a certain type;
dd) «Small enterprise» shall mean the enterprise defined as such in article 2 of the annex to Decree-Law No 372/2007, of 6 November, which constitutes an autonomous enterprise within the meaning of paragraph 1 of article 3 of that annex;
ee) «Loyalty period» shall mean the period during which the end-user undertakes not to terminate a contract or to change the conditions agreed;
ff) «Bundle of services» shall mean an offer which includes at least a publicly available internet access service or publicly available number-based interpersonal communications service and other services or terminal equipment, where the components of such an offer are provided or marketed by the same undertaking as a single offer with a single price and a single invoice, in the framework of the same or a mixed or related contract;
gg) «Small-area wireless access point» shall mean low-power wireless network access equipment of a small size operating within a small range, using licenced radio spectrum or licence-exempt radio spectrum or a combination thereof, which may be used as part of a public electronic communications network, which may be equipped with one or more low visual impact antennae, and which allows wireless access by users of electronic communications networks regardless of the underlying network topology, be it mobile or fixed;
hh) «NTP» shall mean the physical point at which an end-user is provided with access to a public electronic communications network, and which, in the case of networks involving switching or routing, is identified by means of a specific network address, which may be linked to an end-user’s number or name;
ii) «Recommendation on relevant markets» shall mean the Commission Recommendation on relevant product and service markets within the electronic communications sector adopted under article 64 of the European Electronic Communications Code (EECC), adopted by Directive (EU) 2018/1972 of the European Parliament and of the Council, of 11 December 2018;
jj) «Associated facilities» shall mean associated services, physical infrastructures and other facilities or elements associated with an electronic communications network or an electronic communications service which enable or support the provision of services via that network or service, or have the potential to do so, and include buildings or entries to buildings, building wiring, antennae, towers, masts and other supporting constructions, ducts, conduits, poles, manholes and cabinets;
kk) «Numbering resource» shall mean a resource of the NNP or of an international numbering plan, in the context of which the NRA has competence, including administrative and notification powers, and which serves different functions to identify end-users, services or applications, undertakings providing networks or services and networks or network elements;
ll) «Very high capacity network» shall mean an electronic communications network which consists wholly of optical fibre elements at least up to the location of the service distribution point, or an electronic communications network which is capable of delivering, under usual peak-time conditions, similar network performance in terms of available downlink and uplink bandwidth, resilience, error-related parameters, and latency and its variation;
mm) «Electronic communications network» shall mean transmission systems, whether or not based on a permanent infrastructure or centralised administration capacity, and, where applicable, switching or routing equipment and other resources, including network elements which are not active, which permit the conveyance of signals by wire, radio, optical or other electromagnetic means, including satellite networks, fixed circuit- and packet-switched, including internet, and mobile networks, electricity cable systems, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed;
nn) «Radio local area network» shall mean low-power wireless access system, operating within a small range, with a low risk of interference with other such systems deployed in close proximity by other users, using, on a non-exclusive basis, harmonised radio spectrum under the conditions applicable in the framework of the general authorisation;
oo) «Public electronic communications network» shall mean an electronic communications network used wholly or mainly for the provision of publicly available electronic communications services which support the transfer of information between network termination points;
pp) «Security of networks and services» shall mean the ability of electronic communications networks and services to resist, at a given level of confidence, any action that compromises the availability, authenticity, integrity or confidentiality of those networks and services, of stored or transmitted or processed data, or of the related services offered by, or accessible via, those electronic communications networks or services;
qq) «Associated services» shall mean services associated with an electronic communications network or an electronic communications service which enable or support the provision, self-provision or automated-provision of services via that network or service, or have the potential to do so, and include number translation or systems offering equivalent functionality, conditional access systems and electronic programme guides (EPGs), as well as other services such as identity, location and presence service;
rr) «Voice communications service» shall mean a publicly available electronic communications service for originating and receiving, directly or indirectly, national or national and international calls through a number or numbers in a national or international numbering plan;
ss) «Electronic communications service» shall mean a service normally provided for remuneration via electronic communications networks, which encompasses, with the exception of services providing, or exercising editorial control over, content transmitted using electronic communications networks and services, the following types of services:
i) Internet access service, as defined in paragraph 2 of article 2 of Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015;
ii) Interpersonal communications service, as defined in this law; and
iii) Services consisting wholly or mainly in the conveyance of signals such as transmission services used for the provision of machine-to-machine services and for broadcasting;
tt) «Interpersonal communications service» shall mean a service that enables direct interpersonal and interactive exchange of information via electronic communications networks between a finite number of persons, whereby the persons initiating or participating in the communication determine its recipients, except for services which enable interpersonal and interactive communication merely as a minor ancillary feature that is intrinsically linked to another service;
uu) «Number-based interpersonal communications service» shall mean an interpersonal communications service which connects with publicly allocated numbering resources, namely, a number or numbers in the NNP or international numbering plans, or which enables communication with a number or numbers in the NNP or international numbering plans;
vv) «Number-independent interpersonal communications service» shall mean an interpersonal communications service which does not connect with publicly allocated numbering resources, namely, a number or numbers in the NNP or international numbering plans, or which does not enable communication with a number or numbers in the NNP or international numbering plans;
ww) «Integrated chat service» shall mean a real-time multimedia chat service enabling the symmetrical two-way transmission of video, text and voice in real time between end-users located at two or more points;
xx) «Emergency service» shall mean a service, recognised as such by competent authorities, that provides immediate and rapid assistance in situations where there is, in particular, a direct risk to life or limb, to individual or public health or safety, to private or public property, or to the environment, in accordance with the applicable legislation;
yy) «Conditional access system» shall mean any technical measure, authentication system or arrangement whereby access to a protected radio or television broadcasting service in intelligible form is made conditional upon subscription or another form of prior individual authorisation;
zz) «Durable medium» shall mean any instrument that may fall within the definition provided for in point v) of article 3 of Decree-Law No 24/2014, of 14 February;
aaa) «Shared use of radio spectrum» shall mean access by two or more users to the same radio spectrum bands under the general authorisation or under rights of use for radio spectrum, or a combination thereof, in accordance with sharing conditions attached to such rights, including under a sharing arrangement;
bbb) «User» shall mean a natural or legal person using or requesting a publicly available electronic communications service;
ccc) «End-user» shall mean a user not providing public electronic communications networks or publicly available electronic communications services.
2 – For the purposes of the second part of point ll) of the preceding paragraph, network performance may be considered to be similar irrespective of the fact that end-users’ experience varies according to the inherently different characteristics of the medium through which they connect to the NTP.
TITLE II
National regulatory authority and other competent authorities, general objectives and regulatory principles
Article 4
National regulatory authority and other competent authorities
1 – The NRA shall perform the regulatory, supervisory, monitoring and sanctioning functions provided for in this law and the respective statutes.
2 – This law and the statutes of the NRA shall ensure:
a) Independence as a body that is organically, financially and functionally separate from the Government, endowed with adequate technical, financial and human resources to perform its functions, including the active participation in the Body of European Regulators for Electronic Communications (BEREC), established by Regulation (EU) 2018/1971 of the European Parliament and of the Council, of 11 December 2018;
b) Independence as a body that is separate at organisational, financial and functional level from undertakings providing electronic communications networks, equipment or services;
c) The effective separation between the regulatory functions and competences relating to the ownership or management of undertakings in the sector in which the State has ownership or control.
3 – Other competent authorities shall have the adequate technical, financial and human resources to perform the functions entrusted to them under this law.
4 – The NRA and other competent authorities shall exercise their powers in an impartial, objective, transparent, timely, non-discriminatory and proportionate manner.
Article 5
General objectives
1 – The NRA and other competent authorities shall take all reasonable measures to achieve the following general objectives:
a) Promoting connectivity, access to and use of very high capacity networks, including fixed, mobile and wireless for all citizens and undertakings;
b) Promoting competition in the provision of electronic communications networks, electronic communications services, associated facilities and associated services, and efficient infrastructure competition;
c) Contributing to the development of the EU’s internal market;
d) Promoting the interests of citizens, in accordance with this law.
2 – For the purpose of point c) of the preceding paragraph, the NRA and other competent authorities shall be responsible for removing remaining obstacles to, and facilitating convergent conditions for the investment in, and the provision of, electronic communications networks, electronic communications services, associated facilities and associated services, throughout the European Union, by developing common rules and predictable regulatory approaches, together with the other national regulatory authorities and other relevant authorities of the European Union, by favouring the effective, efficient and coordinated use of radio spectrum, open innovation, the establishment and development of trans-European networks, the provision, availability and interoperability of pan-European services, and end-to-end connectivity.
3 – For the purpose of point d) of paragraph 1, the NRA and other competent authorities shall:
a) Ensure connectivity and the widespread availability and take-up of very high capacity networks, including fixed, mobile and wireless networks, and of electronic communications services, by enabling maximum benefits in terms of choice, price and quality on the basis of effective competition;
b) Maintain the security of networks and services;
c) Ensure a high and common level of protection for end-users through the necessary sector-specific rules;
d) Address the needs of specific social groups, such as affordable prices for end-users with disabilities, elderly end-users and end-users with special social needs, ensuring choice and equivalent access for end-users with disabilities.
4 – Decisions and measures adopted by the NRA and other competent authorities under this Law shall be reasoned, taking into consideration the objectives set out in the preceding paragraphs and following a methodology of regulatory impact assessment.
5 – The NRA and other competent authorities shall contribute, within the scope of their powers, to ensuring the implementation of policies aimed at promoting freedom of expression and information, cultural and linguistic diversity, and media pluralism.
6 – All public bodies and authorities shall, in the pursuit of their respective powers, contribute to the achievement of the general objectives set out in paragraphs 1 to 3.
7 – In carrying out their activities, the NRA and other competent authorities shall use electronic means in order to promote administrative efficiency and transparency and proximity to stakeholders, and shall in particular:
a) Provide interested parties with electronic means of communication and disseminate them in an appropriate manner, so that they may use them to exercise their legally protected rights and interests, namely to make their claims and communications, obtain and provide information, carry out consultations, present allegations, make payments and challenge administrative acts;
b) Use electronic authentication means with Citizen Card and Mobile Digital Key, as well as the electronic identification means issued in other Member States recognised for this purpose, under article 6 of Regulation (EU) No 910/2014 of the European Parliament and of the Council, of 23 July 2014;
c) Adopt the signature of documents using qualified electronic signatures, including the Citizen’s Card and the Mobile Digital Key, with the possibility of using the Professional Attributes Certification System, or others that are on the European List of Trusted Services, without prejudice to article 4 of Law No 37/2014, of 26 June;
d) Waive the requirement for interested parties to submit documents held by any service and body of the Public Administration, where they give their consent to obtain them, using the Public Administration Interoperability Platform, or by resorting to the mechanism provided for in paragraph 2 of article 4-A of Law No 37/2014, of 26 June;
e) Send communications or notifications through the electronic notifications public service associated with the single digital address, including in administrative offence proceedings, whenever it is verified that the notifier has subscribed to it, under Decree-Law No 93/2017, of 1 August;
f) Payment for public services provided by electronic means shall be made through the Public Administration Payment Platform;
g) Provide data, information, documents and other content that, by its nature and under this law, can or should be made available to the public, without prejudice to the simultaneous use of other means, in open formats, which can be machine-readable, to be placed or indexed in the Public Administration Open Data Portal, at www.dados.gov.pt.
Article 6
Regulatory principles
In all regulatory decisions and measures adopted in pursuit of the objectives referred to in paragraphs 1 to 3 of article 5, the NRA and other competent authorities shall comply with the principles of impartiality, objectivity, transparency, timeliness, non-discrimination and proportionality, and shall in particular:
a) Promote regulatory predictability by ensuring a consistent regulatory approach over appropriate review periods and by cooperating with each other, BEREC, the Radio Spectrum Policy Group (RSPG) established by Commission Decision of 11 June 2019, and the European Commission, in accordance with the following article;
b) Ensure that, in similar circumstances, there is no discrimination in the treatment of undertakings providing electronic communications networks and services;
c) Apply the law in a technologically neutral manner, insofar as this is compatible with the achievement of objectives set out in paragraphs 1 to 3 of article 6;
d) Promote efficient investment and innovation in new and enhanced infrastructures, in particular by ensuring that any access obligation takes account of the risk incurred by investing undertakings and by allowing cooperation agreements between them and access seekers to diversify the investment risk, while ensuring that competition in the market and the principle of non-discrimination are preserved;
e) Take into account the variety of conditions prevailing with regard to infrastructure, competition and the specificities of end-users and in particular consumers in different national geographic areas, including local infrastructure run by non-profit organisations;
f) Impose ex-ante regulatory obligations only to the extent necessary to ensure effective and sustainable competition in the interest of end-users, and relax or lift such obligations as soon as that condition is fulfilled.
Article 7
Consolidation of the internal market and regulatory cooperation in the European Union
1 – The NRA and other competent authorities shall cooperate with other national regulatory authorities and competent authorities of other Member States, BEREC, RSPG and the European Commission, in a transparent manner, on all matters provided for in this Law.
2 – The NRA shall, in particular:
a) Support BEREC’s objectives of ensuring the coordinated and consistent implementation of the regulatory framework for electronic communications, taking into account the guidelines, opinions, recommendations, common positions, best practices and methodologies adopted by BEREC;
b) Work with the Commission and BEREC to identify the types of instruments and remedies best suited to address particular types of situations in the market.
3 – For the purpose of the preceding paragraphs, the procedures laid down in articles 71 and 72 shall be followed.
4 – The NRA shall, where appropriate, assist the European Commission in establishing benchmarks and reporting on the effectiveness of measures taken in order to achieve the objectives set out in paragraphs 1 to 3 of article 5.
5 – The NRA shall enter into agreements, as appropriate, with other national regulatory authorities and other competent authorities of other Member States to promote regulatory cooperation.
6 – The NRA and other competent authorities shall take into account the recommendations of the European Commission on the harmonised application of the EECC, with a view to achieving the general objectives set out in article 5, by informing the European Commission, in a reasoned manner, of the concrete reasons for not following a recommendation.
Article 8
Cooperation between national authorities
1 – The NRA and other competent authorities shall consult, exchange information and cooperate with each other and with other public authorities or bodies, including Autoridade da Concorrência (AdC - the Competition Authority) and national consumer authorities, on matters of common interest.
2 – In the cases referred to in articles 42 and 79, the NRA shall request a prior opinion from AdC.
3 – Where, in the framework of the cooperation provided for in the previous paragraphs, the NRA and other competent authorities exchange information among themselves or with other authorities or public entities, all these entities shall ensure the same level of confidentiality and data protection as that ensured by the originating authority, and may use that information in the exercise of their competences.
Article 9
Other cooperation mechanisms
1 – Interested parties may develop, with the guidance of the NRA and other competent authorities, cooperation mechanisms involving consumers, user groups and service providers, to improve the general quality of service provision by, inter alia, developing codes of conduct and operating standards and by monitoring their application.
2 – Public bodies responsible for content matters, if necessary, in coordination with the NRA, may promote cooperation between undertakings providing electronic communications networks or services and the sectors involved in promoting the transmission of lawful content via electronic communications networks and services, in particular with a view to disseminating public interest information to be provided under article 119.
Article 10
Public consultation procedure
1 – Where, in the exercise of powers provided for in this law, the NRA intends to adopt measures having a significant impact on the market, including the restrictions established under article 34 and issues related to end-user and consumer rights in relation to publicly available electronic communications services, it shall give stakeholders, including undertakings providing electronic communications networks or services, end-users, in particular disabled consumers and end-users, and manufacturers, an opportunity to state their views.
2 – For the purpose of the preceding paragraph, the NRA shall publish the draft measure, giving stakeholders the opportunity to comment within a period fixed for that purpose, which, save in duly substantiated exceptional circumstances, may not be less than 30 working days.
3 – The NRA shall adopt and publish procedures governing public consultations.
4 – The NRA provides access to ongoing public consultations through a single information point available on the respective websites, ensuring accessibility of information to end-users with disabilities.
5 – The NRA publishes the results of public consultations on its websites, safeguarding confidential information, in particular business secrets or information on the internal life of the undertakings.
Article 11
Urgent measures
1 – Without prejudice to applicable general law, the NRA may, in exceptional circumstances, adopt immediate measures of a proportional and provisional nature, excluding the procedures provided for in article 10 and article 71, as applicable, where it considers that urgent action is necessary to safeguard competition or to protect the interests of users.
2 – The NRA shall provide for the period of validity of the measure adopted under the preceding paragraph.
3 – In the situations referred to in the previous paragraphs, the NRA shall, without delay, inform the European Commission, the other national regulatory authorities and BEREC of the measures taken and the reasons for them.
4 – Where the NRA decides to turn the provisional measure into a definitive measure or to extend its period of application, the procedure under Article 71 shall apply.
Article 12
Administrative dispute resolution between undertakings
1 – It shall be incumbent on the NRA, at the request of either party, to resolve, by binding decision, any disputes related to the obligations arising from this law, between undertakings subject to them within the national territory, or between them and other undertakings within the national territory under access or interconnection obligations, or between undertakings providing electronic communications networks or services and providers of related facilities, without prejudice to the possibility of judicial review.
2 – The request by any of the parties shall expressly state that it seeks the intervention of the NRA under the preceding paragraph, and shall be accompanied by all the elements and information necessary for the NRA to take a decision.
3 – The intervention of the NRA shall be requested within a maximum period of one year from the date of the beginning of the dispute.
4 – The NRA’s decision, save in duly substantiated exceptional circumstances, shall be issued within a time limit not exceeding 90 working days from the date of the request and notified to the parties concerned with the reasons for the decision, and shall be published, provided that confidential information, in particular business secrets or information concerning the internal affairs of undertakings, is safeguarded.
5 – In the resolution of disputes referred to in this article, the NRA shall decide in accordance with this law and with a view to pursuing the general objectives set out in article 5.
6 – In the course of resolving a dispute, all undertakings providing electronic communications networks and services shall cooperate fully with the NRA, in particular by complying with any request in this regard.
7 – Decisions of the NRA under this article may be challenged in accordance with paragraph 2 of article 15.
8 – Decisions taken under this article shall not be subject to the public consultation procedure provided for in article 10.
Article 13
Refusal of request for dispute resolution
1 – An NRA may refuse a request for dispute resolution under article 12 only where:
a) The fulfilment of obligations arising from this law is not in question;
b) The time-limit provided for in paragraph 3 of article 12 has elapsed;
c) The NRA believes that there are other means, including mediation, more suitable for resolving the dispute in a timely manner, in accordance with the general objectives set out in article 5.
2 – The NRA shall notify the parties, as soon as possible, of the refusal of the request and, in the case set out in point c) of the preceding paragraph, of the most appropriate means for resolving the dispute.
3 – Where, in the case set out in point c) of paragraph 1, the dispute is not resolved and no court action for that purpose has been brought within 90 working days following notification of the parties, the NRA may, at the request of either party, initiate the procedure set out in article 12, and the dispute resolution procedure previously initiated shall be terminated.
4 – The decisions of the NRA under this article shall be subject to appeal under paragraph 2 of article 15.
Article 14
Resolution of cross-border disputes
1 – In the event of a dispute arising in the context of compliance with the obligations set out in this law between undertakings subject to these obligations and established in different Member States and falling under the competence of national regulatory authorities from more than one Member State, either party may refer the dispute to the national regulatory authorities concerned, without prejudice to the possibility of judicial review.
2 – In the case referred to in the preceding paragraph, the NRA shall coordinate its intervention with the other national regulatory authorities involved in order to resolve the dispute in a manner that is consistent and coherent with the general objectives set out in article 5, and its decisions shall comply with the provisions of this law.
3 – The NRA may refuse the request for dispute resolution, in accordance with point c) of paragraph 1 as well as paragraphs 2 and 3 of article 13, which shall apply mutatis mutandis.
4 – Where the dispute submitted to it affects trade between Member States, the NRA shall notify BEREC of the dispute for an opinion.
5 – In the case set out in the previous paragraph, the NRA shall wait four months for BEREC’s opinion before adopting measures to resolve the dispute, without prejudice to the possibility of adopting interim measures that are deemed necessary, in exceptional circumstances, at the request of the parties or on its own initiative, to safeguard competition or protect the interests of end-users, pursuant to article 11.
6 – The NRA’s decision shall take into account the opinion provided by BEREC and be adopted no later than 22 working days after it is issued.
7 – Decisions taken under this article shall not be subject to the public consultation procedure provided for in article 10.
8 – This article shall not apply to disputes relating to radio spectrum coordination covered by article 49.
Article 15
Judicial review
1 – Decisions, orders or other measures adopted by the NRA in the scope of administrative offence proceedings arising from the application of the legal framework for electronic communications may be challenged in accordance with Law No 99/2009, of 4 September, which approves the framework system for administrative offences in the communications sector.
2 – The remaining actions taken by NRA may be challenged in the administrative courts, under the general terms of the law.
3 – Measures adopted by other competent authorities may be challenged under the regime applicable to them.
4 – The NRA and other competent authorities shall keep up-to-date information about appeals against the decisions referred to in paragraph 2, including the number of requests for appeal, the subject matter and duration of the appeal proceedings and the number of decisions imposing interim measures, and shall, upon a reasoned request, make that information available to the European Commission and BEREC.
TITLE III
General authorisation, frequencies, numbers and security
CHAPTER I
General authorisation system
SECTION I
General authorisation
Article 16
Provision of networks and services
1 – All natural or legal persons shall be guaranteed the freedom to provide electronic communications networks and services.
2 – The provision of electronic communications networks and services, whether or not publicly available, shall be subject only to the general authorisation regime, and may not be dependent on any decision or prior act by the NRA, without prejudice to the regime applicable to the use of the radio frequency spectrum and of numbering resources, as well as to the specific conditions set out in article 28.
3 – The general authorisation shall not apply to:
a) The provision of number-independent interpersonal communications services;
b) The provision of access to a public electronic communications network via a local radio communications network, where it is not part of an economic activity or where it is ancillary to an economic activity or a public service which is not dependent on the conveyance of signals on that network, by any undertaking, public authority or end-user.
4 – For the purpose of paragraph 2, offers of electronic communications services in a self-provisioning regime are considered not to be publicly available.
Article 17
Notification requirements
1 – With the exception of offers provided for in paragraph 3 of article 16, undertakings intending to offer public electronic communications networks and publicly available electronic communications services shall submit a prior notification to the NRA of the start of their activity.
2 – The notification referred to in the previous paragraph shall include:
a) The declaration of the intention to start the activity;
b) The undertaking identification details and the address of its website associated with the provision of public electronic communications networks and publicly available electronic communications services;
c) The contacts for communications and notifications, mandatorily including an e-mail address;
d) A short description of the networks or services intended to be provided;
e) An estimated date for starting the activity.
3 – Upon notification, undertakings shall be entitled to start their activity immediately, with the limitations arising from the allocation of rights of use for radio spectrum and numbering resources.
4 – Undertakings providing public electronic communications networks and publicly available electronic communications services shall notify the NRA of any change or cessation of activity, as well as any change in previously provided identification details or contact details.
5 – All notifications provided for in this article shall be made by electronic means, in accordance with the law and without prejudice to access by other means.
6 - It is incumbent on the NRA:
a) To regulate the notification duties provided for in this article;
b) To approve the templates for the notifications provided for in this article, taking into account the guidelines published by BEREC and the regulation provided for in the previous point.
Article 18
Exemption from notification requirements
1 – Without prejudice to other conditions to which the provision of public electronic communications networks and publicly available electronic communications services are subject and the rights of the undertakings providing them, the NRA may, by regulation, exempt such undertakings from complying with the notification requirements set out in article 17 in relation to the provision of a particular type of network or service.
2 – The exemptions to be determined by the NRA under the terms set out in the preceding paragraph shall be objectively justified in relation to the type of network or service in question, and shall also be proportionate, transparent and non-discriminatory.
Article 19
Register of undertakings
1 – The NRA shall maintain and publish on its website a register of undertakings providing public electronic communications networks and publicly available electronic communications services which are subject to the notification requirements set out in article 17.
2 – It shall be incumbent on the NRA, within five working days of the duly submitted notification, to include the undertaking in the register and issue a statement confirming its submission and detailing its rights of access, interconnection and installation of facilities, under the terms of this law.
3 – The NRA shall establish by regulation the rules governing the maintenance of the register.
4 – The NRA shall transmit to BEREC, electronically and in accordance with the terms defined in the scope of cooperation between them, the information on undertakings listed in the register, as soon as they are registered or their registration is modified or cancelled.
SECTION II
Rights
Article 20
Rights
1 – Undertakings providing electronic communications networks or services shall enjoy the following rights:
a) To apply for the establishment of rights of way, under and in accordance with the procedures provided in article 23;
b) To use the radio frequency spectrum for the provision of electronic communications networks and services, without prejudice to articles 36, 38 and 39;
c) To apply for the use of numbering resources, under article 54;
d) To negotiate between themselves agreements on technical and commercial arrangements for access or interconnection, and no restrictions may be placed on them that would hinder negotiations.
2 – Undertakings providing public electronic communications networks or publicly available electronic communications services shall enjoy the following rights:
a) To negotiate interconnection and obtain access or interconnection from other undertakings providing public electronic communications networks and publicly available electronic communications services under the conditions and terms set out in this law;
b) To provide some of the services of the universal service or to cover different areas of the national territory, in accordance with paragraph 3 of article 150, and paragraph 4 of article 151, in compliance with article 161.
Article 21
Amendment of rights and obligations
1 – The rights, conditions and procedures regarding the exercise of the activity, including the rights of use for radio spectrum and numbering resources as well as rights of way, may be amended in objectively justified cases and in accordance with the principle of proportionality, by law, regulation or administrative act, as appropriate.
2 – Amendments to rights of use for radio spectrum or numbering resources provided for in the previous paragraph shall take into account the specific conditions applicable to transferable rights, in accordance with article 42 and paragraph 5 of article 54.
3 – The amending decisions to be adopted under this article shall be subject to the public consultation procedure provided for in article 10.
4 – The cases of minor alterations, in which the substantial nature of the rights of use is not altered, namely by not creating comparative advantages, and which have the consent of the respective titleholders, shall be an exception to the previous paragraph.
Article 22
Restriction and withdrawal of rights of use
1 – Without prejudice to paragraph 5 of article 181 and article 182, the rights of use for radio spectrum and numbering resources shall not be restricted or withdrawn before their expiry date except with the consent of the holder or in justified cases and, where applicable, in accordance with the conditions set out in articles 39 and 56.
2 – In order to ensure the effective and efficient use of numbering resources, radio spectrum or the application of technical implementing measures adopted pursuant to article 4 of the Radio Spectrum Decision, the NRA may restrict or withdraw rights of use on the basis of predetermined and clearly defined procedures, in accordance with the principles of proportionality and non-discrimination.
3 – The restriction or withdrawal of rights of use without the consent of the right holder is subject to the public consultation procedure provided for in article 10.
4 – In the cases provided for in this article, holders of rights of use for radio spectrum and numbering resources shall be compensated, in full or in part, for the special and abnormal charges or damages imposed on them, in accordance with the rules applicable to compensation for sacrifice as provided for in the system of extra-contractual civil liability of the State and other public entities, approved by Law No 67/2007, of 31 December.
5 – It shall fall to ANACOM to determine the amount of compensation referred to in the previous paragraph, calculated under the general terms of the law.
6 – The expenses arising from the compensation referred to in the preceding paragraphs shall be borne by funds from the NRA’s budget.
Article 23
Rights of way
1 – Undertakings providing public electronic communications networks and publicly available electronic communications services shall be guaranteed the right to:
a) Apply, under the terms of the law, for the expropriation and creation of administrative easements required for the installation, protection and conservation of the respective systems, equipment and other resources;
b) Use of the public domain, under equal conditions, for the installation, passage or crossing required for the installation of systems, equipment and other resources.
2 – Undertakings providing non-public electronic communications networks and electronic communications services that are not publicly available shall be guaranteed the right to apply for the use of the public domain for the installation of systems, equipment and other resources.
3 – All bodies with jurisdiction over the public domain shall comply with the legal regime for the construction, access and installation of electronic communications networks and infrastructures and prepare and publish procedures for allocating the rights referred to in the previous paragraphs, which shall be efficient, simple, transparent and adequately publicised, non-discriminatory and swift, and the period between the date of submission of the application and their decision shall not exceed six consecutive months, except in the case of expropriation procedures.
4 – The conditions governing the exercise of the rights referred to in paragraphs 1 and 2 shall comply with the principles of transparency and non-discrimination.
5 – Effective structural separation shall be ensured between the powers to confer or define the conditions for exercising the rights provided for in this article and the powers relating to the ownership or control of the undertakings in the sector in which the public authorities, including local authorities, have ownership or control.
6 – The right allocated for the use of the public domain under this article cannot be restricted or withdrawn before the end of its period of validity, except with the agreement of its holder or in justified cases.
7 – In the cases provided for in the preceding paragraph, holders of rights of use of the public domain shall be compensated, in full or in part, for the special and abnormal charges or damages imposed on them, in accordance with the rules applicable to compensation for sacrifice as provided for in the system of extra-contractual civil liability of the State and other public entities.
Article 24
Collocation and sharing
1 – Where undertakings providing public electronic communications networks and publicly available electronic communications services have exercised a right pursuant to paragraph 1 of article 23, they shall promote among themselves the conclusion of agreements for the collocation and sharing of the network elements and associated facilities installed or to be installed, the terms of which, and any subsequent modifications thereto, shall be notified to the NRA.
2 – Without prejudice to the powers of local authorities and other responsible authorities, the NRA, after a public consultation in accordance with article 10, may determine the collocation and sharing of network elements and associated facilities installed and the sharing of property, including land, buildings, building entrances, poles, masts, antennae, towers, support structures, ducts, conduits, manholes, cabinets or other facilities on the site, irrespective of whether their holders are undertakings providing electronic communications networks or services, for reasons related to the protection of the environment, public health or public security, to meet town and country planning objectives and to protect the urban and rural landscape.
3 – The measures determined under the preceding paragraph shall be objective, proportionate, transparent and non-discriminatory, and shall be limited to those specific areas where collocation or sharing is deemed necessary in order to achieve the objectives set out in the preceding paragraph.
4 – The measures determined under the previous paragraphs may include cost-sharing rules.
5 – In the case of sharing, the NRA may adopt measures restricting the operation of resources to be installed, namely limiting the maximum emission power levels.
Article 25
Deployment and operation of small-area wireless access points
1 – The competent authorities may not make the deployment of small-area wireless access points which comply with the physical and technical characteristics laid down in implementing acts of the European Commission subject to any licensing, authorisation or prior notification.
2 – Without prejudice to the preceding paragraph, the competent authorities may make the deployment of small-area wireless access points in buildings or sites of protected architectural, historical or natural value, or for reasons of public safety, subject to licensing, authorisation or prior notification, in accordance with the applicable legislation.
3 – The provisions of this article shall be without prejudice to the application of the essential requirements provided for in Decree-Law No 57/2017, of 9 June, and the regime applicable to the use of the radio frequency spectrum.
4 – Without prejudice to any commercial arrangements, the deployment of small-area wireless access points shall be subject, where applicable, only to the payment of administrative costs.
Article 26
Infrastructures suitable for housing electronic communications networks
The regime for the construction of infrastructures suitable for housing electronic communications networks and the construction of telecommunications infrastructures in housing developments, urban settlements, groups of buildings and buildings, provided for in Decree-Law No 123/2009, of 21 May, shall apply to:
a) The coordination of works intended for the construction or extension of infrastructures suitable for housing electronic communications networks;
b) The sharing of telecommunications infrastructures in buildings, urban settlements or groups of buildings;
c) The provision of information on infrastructures suitable for housing electronic communications networks, as well as the preparation of registries of such infrastructures, including Sistema de Informação de Infraestruturas Aptas (SIIA - the Information System of Suitable Infrastructures).
SECTION III
Conditions
Article 27
General conditions
1 – Without prejudice to other obligations established by law, undertakings providing electronic communications networks and services may only be subject in their activity to the following conditions:
a) In general, regarding the provision of electronic communications networks and services:
i) Access obligations that do not include the specific conditions set out in the following article;
ii) Transparency obligations on operators of public electronic communications networks providing publicly available electronic communications services to ensure end-to-end connectivity, in line with the general objectives set out in article 5, and, where appropriate and necessary, access by the NRA to information required to verify the accuracy of such disclosure;
iii) Obligations with regard to the processing of personal data and the protection of privacy in the electronic communications sector, in accordance with applicable legislation on these matters;
iv) Measures to ensure compliance with the standards or specifications set out in article 30;
v) Installing at their own expense and making lawful interception systems available to competent national authorities and providing the means to decrypt them when such facilities are offered, in compliance with applicable legislation on the processing of personal data and the protection of privacy in the electronic communications sector;
vi) Conditions of use for communications from public authorities to the general public for warning of imminent threats and for mitigating the consequences of emergencies or of major accidents or disasters, as well as conditions of use during emergencies or major accidents or disasters to ensure communications between emergency services, competent authorities and civil protection actors;
vii) The payment of fees, in accordance with article 167;
viii) Provision of information, namely in compliance with the notification requirements set out in articles 17, 170 and 171;
b) In particular, as regards the provision of electronic communications networks:
i) Network interconnection;
ii) Maintenance of the integrity of public electronic communications networks, namely through conditions that prevent electromagnetic interference between electronic communications networks or services, under the terms of Decree-Law No 31/2017, of 22 March;
iii) Security of public electronic communications networks against unauthorised access, in accordance with legislation applicable to the processing of personal data and the protection of privacy in the electronic communications sector;
iv) Conditions of use of radio spectrum for electronic communications services, as provided for in the radio spectrum regime, including conditions on radio networks and stations;
v) Measures to protect public health against electromagnetic fields caused by electronic communications networks, in accordance with applicable legislation and taking account of Council Recommendation 1999/519/EC of 12 July 1999 on the limitation of exposure of the general public to electromagnetic fields;
vi) «Must carry» obligation, in accordance with article 163;
c) In particular, as regards the provision of electronic communications services:
i) Interoperability of services;
ii) Accessibility by end-users of numbers from the NNP, from universal international freephone numbers and, where technically and economically feasible, from numbering plans of other Member States, and respective conditions, in accordance with this law;
iii) Consumer protection rules specific to the electronic communications sector, including conditions on accessibility for end-users with disabilities, in accordance with chapter i of title v;
iv) Restrictions concerning the transmission of illegal content, in accordance with Decree-Law No 7/2004 of 7 January, and the transmission of harmful content, in accordance with Law No 27/2007 of 30 July 2007, which approves the Law on Television and Audio-Visual Services on Demand.
2 – Without prejudice to the application of obligations provided by law or general conditions, the preceding paragraph shall not apply to:
a) The provision of number-independent interpersonal communications services;
b) The provision of access to a public electronic communications network through a radio local area network, under the conditions set out in point b) of paragraph 3 of article 16;
3 – The NRA shall be entitled to regulate the application of the conditions referred to in paragraph 1 and, for this purpose, may identify the types of network or service to which they apply.
4 – The rules to be defined by the NRA under the previous paragraph shall be objectively justified in relation to the network or service in question, namely as regards its accessibility to the public, and shall be proportionate, transparent and non-discriminatory, safeguarding all accessibility requirements for end-users with disabilities.
Article 28
Specific conditions
The definition of conditions pursuant to article 27 shall not preclude the imposition of specific obligations on undertakings providing electronic communications networks and services in the situations and in accordance with the rules provided for in this law:
a) Regarding access and interconnection, in accordance with articles 81, 84 and 106 to 108;
b) Regarding controls at retail market level, in accordance with article 109;
c) Regarding the universal service, on the respective providers.
Article 29
Accounting separation and financial reports
1 – Undertakings providing public electronic communications networks or publicly available electronic communications services which enjoy special or exclusive rights for the provision of services in other sectors, in the same or another Member State, shall either have a system of separate accounting for the provision of electronic communications networks or services, which shall be independently audited by a body to be designated by the NRA or accepted by the NRA, or set up separate legal bodies for the corresponding activities.
2 – Undertakings whose annual turnover is less than EUR 50 000 000 in activities associated with the provision of electronic communications networks or services in the European Union may be exempted by the NRA from the obligations set out in the previous paragraph.
3 – Undertakings providing public electronic communications networks or publicly available electronic communications services which, in accordance with the specific legislation applicable to them, are not subject to accounting control, shall draw up and submit annually their financial reports to an independent audit and publish them.
Article 30
Standardisation
1 – Without prejudice to standards defined as mandatory at European Union level, the NRA shall, to the extent strictly necessary to ensure interoperability of services, end-to-end connectivity, facilitation of switching between undertakings providing electronic communications networks and services and portability of numbers and identifiers, and to improve freedom of choice for users, encourage the use of non-mandatory technical standards and specifications for the provision of services, technical interfaces or network functions, based on the list drawn up by the European Commission and published in the Official Journal of the European Union in accordance with paragraph 1 of article 39 of the EECC.
2 – Pending publication of the list referred to in the preceding paragraph, the NRA shall encourage the implementation of standards and specifications adopted by the European Committee for Standardisation, the European Committee for Electrotechnical Standardisation and the European Telecommunications Standards Institute.
3 - In the absence of the standards referred to in the preceding paragraph, the NRA shall encourage the implementation of international standards or recommendations adopted by the International Telecommunication Union (ITU), the European Conference of Postal and Telecommunications Administrations, the International Organisation for Standardisation and the International Electrotechnical Commission.
4 – Without prejudice to the standards and specifications referred to in the previous paragraphs, technical specifications may be issued at national level.
5 – The NRA shall promote the publication on its website of the reference to the publication of standards and specifications referred to in the previous paragraphs.
6 – Where international standards exist, competent national authorities shall encourage the European standardisation organisations of which they are members to use them, or the relevant parts of them, as a basis for the standards they develop, except where such international standards or relevant parts would be ineffective.
7 – Any standards or specifications referred to in paragraph 1 shall not prevent access as may be required under this law, where feasible.
CHAPTER II
Radio spectrum
SECTION I
General provisions
Article 31
Public domain
The space through which electromagnetic waves can propagate belongs to the public domain of the State.
Article 32
Management of radio spectrum
1 – The NRA shall ensure the efficient management of the radio spectrum, taking into account article 31, as well as its social, cultural and economic value, namely under the terms and for the purposes of the following paragraphs and of articles 5 and 33.
2 – The NRA shall promote the harmonisation of use of radio spectrum by electronic communications networks and services across the European Union, consistent with the need to ensure effective and efficient use thereof and to pursue the objective of delivering benefits to consumers, such as competition, economies of scale and interoperability of networks and services, in accordance with article 33 and the Radio Spectrum Decision.
3 – For the purposes of the preceding paragraphs, the NRA shall, in particular:
a) Pursue wireless broadband coverage of the national territory and population at high quality and speed, as well as coverage of major national and European transport paths, including trans-European transport network as referred to in Regulation (EU) 1315/2013 of the European Parliament and of the Council, of 11 December 2013;
b) Facilitate the rapid development of new wireless communications technologies and applications, including, where appropriate, in a cross-sectoral approach;
c) Ensure predictability and consistency in the allocation, renewal, amendment, restriction and withdrawal of rights of use for radio spectrum in order to promote long-term investments;
d) Ensure the prevention of cross-border or national harmful interference in accordance with articles 36 and 49 respectively, and taking appropriate pre-emptive and remedial measures to that end;
e) Promote the shared use of radio spectrum, in accordance with competition law;
f) Apply the most appropriate and least onerous system possible in the use of radio spectrum, in accordance with article 36, in such a way as to maximise its flexibility, sharing and efficiency;
g) Apply rules for the allocation, transfer, renewal, modification and withdrawal of rights of use for radio spectrum that are clearly and transparently laid down in order to guarantee regulatory certainty, consistency and predictability;
h) Pursue consistency and predictability regarding the way the use of radio spectrum is authorised in protecting public health, taking into account Council Recommendation 1999/519/EC, of 12 July 1999.
4 – In applying this article, relevant international agreements shall be observed, including the ITU Radio Regulations and other agreements adopted in the framework of the ITU applicable to radio spectrum, such as the agreement reached at the Regional Radiocommunications Conference of 2006, taking public policy considerations into account.
Article 33
Strategic planning and coordination of radio spectrum policy
1 – The NRA shall cooperate with the European Commission and competent authorities for radio spectrum management in other Member States in the strategic planning, coordination and harmonisation of the use of radio spectrum in the European Union, in accordance with policies for the establishment and functioning of the internal market for electronic communications, in particular in the framework of the multiannual spectrum policy programmes adopted by the European Parliament and the Council.
2 – For the purposes of the preceding paragraph, the NRA shall take into consideration, inter alia, the economic, safety, health, public interest, freedom of expression, cultural, scientific, social and technical aspects of European Union policies, as well as the various interests of radio spectrum users, with the aim of optimising the use of this resource and avoiding harmful interference.
3 – The NRA shall promote, in cooperation with the national regulatory or other competent authorities of other Member States and the European Commission, the coordination of radio spectrum policy approaches in the European Union and, where appropriate, harmonised conditions with regard to the availability and efficient use of radio spectrum necessary for the establishment and functioning of the internal market in electronic communications.
4 – The NRA shall cooperate, through the RSPG, with the competent authorities for radio spectrum management in other Member States and with the European Commission, in accordance with paragraph 1, as well as with the European Parliament and the Council on request, in particular by:
a) Developing best practices on radio spectrum related matters, with a view to implementing this law;
b) Facilitating the coordination between competent authorities for radio spectrum management in all Member States with a view to implementing this law and other relevant European Union law and to contributing to the development of the internal market;
c) Coordinating the respective approaches to the allocation and authorisation of use of radio spectrum and publishing reports or opinions on radio spectrum related matters.
Article 34
Technological and service neutrality in radio spectrum management
1 – It shall be incumbent on the NRA, within the scope of its powers to manage the radio spectrum and without prejudice to the restrictions established in this article, to ensure the application of the following principles:
a) Principle of technological neutrality, under which all types of technology used in the provision of electronic communications networks or services may be used in the frequency bands available for electronic communications services and indicated as such in the national frequency allocation table (NFAT);
b) Principle of service neutrality, under which all types of electronic communications services may be provided in the frequency bands available for electronic communications services and indicated as such in the NFAT.
2 – An NRA may set proportionate, transparent and non-discriminatory restrictions to the principle referred to in paragraph a) of the preceding paragraph where this is necessary to:
a) Avoid harmful interference;
b) Protect public health against exposure to electromagnetic fields, taking into account Council Recommendation 1999/519/EC of 12 July 1999;
c) Ensure the technical quality of service;
d) Ensure maximisation of radio spectrum sharing;
e) Safeguard efficient use of the radio spectrum;
f) Ensure fulfilment of a general interest objective defined in accordance with the law.
3 – The NRA may set proportionate, transparent and non-discriminatory restrictions to the principle referred to in point b) of paragraph 1, in particular to fulfil, where necessary, the requirements provided for in the ITU Radio Regulations.
4 – In the context of restrictions on service neutrality, the NRA may adopt measures imposing:
a) That an electronic communications service is provided in a specific frequency band, available for electronic communications services, provided that this is justified by the need to ensure the fulfilment of a specific general interest objective set out in accordance with paragraph 5;
b) The provision of a given electronic communications service in a specific frequency band, excluding any other service, where justified by the need to protect safety of life services or, exceptionally, to meet other general interest objectives provided for by law.
5 – For the purposes of point f) of paragraph 2 and paragraph 4, general interest objectives shall be deemed to include, inter alia, safety of life, the promotion of social, regional or territorial cohesion, the avoidance of inefficient use of radio spectrum, as well as the promotion of cultural and linguistic diversity and media pluralism, for example the provision of radio and television broadcasting services.
6 – The measures and restrictions set out in paragraphs 2 to 4 shall be indicated in the NFAT, and the NRA shall reassess them periodically.
7 – Changes in the use of radio spectrum resulting from the application of this article do not in themselves justify the withdrawal of rights of use for radio spectrum.
Article 35
National Frequency Allocation Table
1 – It shall be incumbent on the NRA to update and publish the NFAT, which shall include:
a) The radio spectrum allocation table, which breaks down, for each frequency band, the radiocommunications services and the radio astronomy service, in accordance with the allocations of the ITU Radio Regulations applicable to Portugal, as well as the specific applicable conditions;
b) The table of frequency bands available in Portugal for the different radiocommunications services or for the radio astronomy service, specifying for each band:
i) The availability for the provision of electronic communications networks and services, including harmonised radio spectrum;
ii) The requirement for rights of use for the radio spectrum, as well as the respective allocation scheme, where applicable;
iii) The measures and restrictions on service and technology neutrality, provided for in paragraphs 2 to 4 of article 34;
c) The table of frequency bands used in Portugal by holders of rights to use the radio spectrum, specifying, for each band:
i) The different radiocommunications services and the radio astronomy service, where applicable, used in that band;
ii) The rights of use allocated to undertakings providing publicly available electronic communications networks or services and their duration, as well as the ineligibility for transfer and lease in accordance with article 42;
d) Other relevant information regarding radio spectrum management.
2 – Uses of the frequency bands may be excluded from publication in the NFAT, in particular for reasons of national security.
SECTION II
Use of radio spectrum for the provision of electronic communications networks or services
Article 36
Use of radio spectrum
1 – The conditions of the general authorisation provided for in article 27 shall apply to the use of the radio spectrum for the provision of electronic communications networks or services, including shared use, and shall not be subject to the allocation of rights of use by the NRA, except where necessary to maximise its efficient use in accordance with demand.
2 – For the purposes of the preceding paragraph, the NRA shall define the most appropriate regime for the use of the radio spectrum, taking into account the following criteria:
a) The need to safeguard the efficient use of radio spectrum;
b) The specific characteristics of the radio spectrum concerned;
c) The need for protection against harmful interference, taking into account the technological solutions for managing such interference;
d) The need to ensure the technical quality of communications or service;
e) The development of reliable conditions for radio spectrum sharing, where appropriate;
f) The achievement of other general interest objectives defined by law.
3 – When defining the regime for the use of harmonised radio spectrum, the NRA shall seek to minimise harmful interference problems, including in cases of shared use, based on a combination of use regimes.
4 – The NRA may, where appropriate, combine different radio spectrum use regimes, considering the likely effects of different combinations and gradual shifts from one regime to another on competition, innovation and market entry.
5 – When, in accordance with this article, the NRA adopts a decision on the regime applicable to the use of radio spectrum for shared use, it shall ensure that the applicable conditions are clearly defined and facilitate efficient use of radio spectrum, competition and innovation.
Article 37
Allocation of rights of use for radio spectrum
1 – The rights of use for radio frequency spectrum for the provision of electronic communications networks or services shall be allocated by the NRA:
a) On a full accessibility basis, upon request accompanied by information aimed at assessing the allocation of the right of use, under the terms to be defined by the NRA;
b) Through competitive or comparative selection procedures in accordance with the requirements set out in the respective regulations.
2 – Without prejudice to specific criteria and procedures applicable to the allocation of rights of use for radio spectrum for the provision of radio programme services and the distribution of radio and television programme services with a view to pursuing general interest objectives, rights of use shall be allocated through open, objective, transparent, proportionate and non-discriminatory procedures, in accordance with article 32.
3 – Regulations implementing competitive or comparative selection procedures for the allocation of rights of use for radio spectrum shall be drawn up in accordance with objective, transparent, proportionate and non-discriminatory eligibility criteria which shall be established in advance and shall reflect the conditions to be attached to such rights, in accordance with article 39, as well as reserve price values, including minimum bid values and bidding intervals.
4 – It is incumbent upon the member of the Government responsible for the area of communications to approve the regulations of the competitive or comparative selection procedures provided for in the previous paragraph.
5 – It shall be incumbent upon the NRA to take the decision on the allocation of rights of use for radio spectrum and it shall be issued, communicated and made public within the following time limits, without prejudice to international agreements applicable to the use of frequencies or orbital positions:
a) In cases of full accessibility, up to 30 working days;
b) In the case of competitive or comparative selection procedures, within the time necessary to ensure compliance with the criteria set out in paragraph 2, up to a maximum of eight months, without prejudice to the specific timetables laid down in article 45 for the allocation of harmonised spectrum.
6 – When allocating rights of use for radio spectrum, the NRA shall specify the cases in which the rights are not transferable or leasable by the respective holder, in accordance with articles 32 and 42.
Article 38
Limitation of the number of rights of use for radio spectrum
1 – Where the NRA considers limiting the number of rights of use for radio spectrum to be allocated pursuant to point b) of paragraph 1 of article 37, it shall state the reasons for such limitation, considering in particular the need to maximise benefits to users and to facilitate the development of competition.
2 - Without prejudice to other measures which it considers appropriate, the NRA shall:
a) Assess the competitive, technical and economic situation of the market concerned;
b) Approve a duly substantiated decision to limit the number of rights of use to be allocated, defining the respective selection procedure, which may be competitive or comparative;
c) Propose to the Government the conditions to be attached to rights of use for radio spectrum;
d) Initiate the procedure for allocating rights of use, under the terms previously defined.
3 – It shall be incumbent on the NRA to submit the draft decision limiting rights, under the terms of the preceding paragraphs, to the public consultation provided for in article 10, in particular by hearing consumers and users.
4 – Where it concludes that the number of rights of use for radio spectrum should be limited, the NRA shall clearly set out and justify the objectives pursued by its selection procedure and, where possible, quantify them, giving due weight to the need to achieve internal market and national communications policy objectives.
5 – The objectives to be pursued under this article and the preceding article shall, in addition to promoting competition, be limited to:
a) Promoting coverage;
b) Ensuring the required quality of service;
c) Promoting efficient use of radio spectrum, including by taking into account the conditions attached to the rights of use and the level of fees;
d) Promoting innovation and business development.
6 – For the purposes of point b) of paragraph 2, the NRA shall define and justify the proposed selection procedure, including any preliminary phase to access the selection procedure, state the outcome of the assessment of the competitive situation referred to in point a) of paragraph 2, and provide reasons for the possible use and choice of measures pursuant to article 47.
7 – For the purposes of point c) of paragraph 2, the selection criteria for the allocation of rights of use for radio frequencies which are subject to limitation shall be objective, transparent, proportionate and non-discriminatory and take into account the achievement of the objectives and requirements set out in articles 5, 32, 33 and 49.
8 – In the context of selection procedures, the NRA may request from applicants the information required to assess their ability to meet the conditions to be attached to the rights of use, based on the criteria referred to in the previous paragraph.
9 – Where the NRA finds that applicants are not suitably qualified, it shall issue a duly reasoned decision to that effect.
10 – Periodically or upon reasonable request by stakeholders, the NRA shall review the limitation of the number of rights of use and, where it concludes that additional rights can be allocated, it shall publish that decision and initiate the procedure for the allocation of those rights.
11 – The provisions of this article shall be without prejudice to the transfer of rights of use for radio spectrum in accordance with article 42 or measures to be taken as part of coordinated timetables for the allocation of rights of use established in accordance with article 45.
Article 39
Conditions attached to rights of use for radio spectrum
1 – Without prejudice to the powers of the Government under paragraph 4 of article 37, it shall be incumbent on the NRA to define the conditions associated with rights of use for radio spectrum for the provision of electronic communications networks and services, prior to the respective allocation, as well as the criteria for assessing compliance, in particular in the event of transfer or lease of rights, in order to ensure the application of conditions in accordance with article 181.
2 – The conditions to be defined by the NRA under this article shall be proportionate, transparent, non-discriminatory and in accordance with articles 32 and 42, with a view to ensuring the optimal, effective and efficient use of the radio spectrum.
3 – Without prejudice to other obligations deriving from the law, rights of use for radio spectrum may only be subject to the following conditions:
a) Provision of a service or use of a type of technology within the limits of article 33, including, where appropriate, coverage and quality of service requirements;
b) Effective and efficient use of radio spectrum in accordance with this law;
c) Technical and operational conditions necessary for the avoidance of harmful interference and for the protection of public health against electromagnetic fields, taking utmost account of Recommendation 1999/519/EC of 12 July 1999, where such conditions are different from those applicable to the use of spectrum under the general authorisation;
d) Maximum duration, in accordance with article 40, without prejudice to any changes under article 21;
e) Transfer or leasing of rights, in accordance with this law;
f) Payment of fees for rights of use, under article 168;
g) Any commitments which the undertaking obtaining the rights of use has made prior to the rights of use being allocated or renewed, or where applicable, prior to a call for applications for the allocation for rights of use.
h) Obligations to pool or share radio spectrum or allow access to radio spectrum for other users in specific areas or at national level;
i) Obligations under relevant international agreements relating to the use of radio spectrum bands;
j) Obligations specific to an experimental use of radio spectrum bands.
4 – Conditions attached to rights of use for radio frequencies shall contain the level of use required and specify the applicable parameters, including the time limit within which the rights of use shall be exercised by the holder of the rights of use, where appropriate, in particular to avoid spectrum hoarding.
5 – The NRA may, under this law, in particular with a view to ensuring effective and efficient use of radio spectrum or promoting coverage, provide for the following possibilities:
a) Sharing passive or active infrastructure that use radio spectrum or radio spectrum sharing;
b) Commercial roaming access agreements;
c) The joint roll-out of infrastructure supporting or hosting electronic communications networks using radio spectrum.
6 – Without prejudice to applicable competition law rules, radio spectrum sharing is allowed provided that it respects the conditions attached to the rights of use for radio spectrum.
7 – Use of the radio spectrum in breach of the conditions attached to rights of use, including the level of use required and the duration for its exercise, shall entitle the NRA to withdraw the right of use or impose other measures as provided for in articles 181 and 182.
Article 40
Duration of rights of use for radio spectrum
1 – Rights of use for radio spectrum for the provision of electronic communications networks and services shall be allocated for a limited period of time.
2 – The NRA shall determine the duration of the rights of use for radio spectrum for the provision of electronic communications networks and services, in the light of the objectives referred to in paragraph 5 of article 38 and taking into consideration the need to ensure competition, as well as:
a) The effective and efficient use of radio spectrum;
b) The promotion of innovation and efficient investments, including by allowing for an appropriate period for investment amortisation.
3 – The duration of rights of use for radio spectrum allocated for the provision of radio programme services and distribution of television and radio programme services shall be established in accordance with the duration of the respective licences to exercise the activity, in accordance with applicable legislation.
4 – Rights to use harmonised radio spectrum for wireless broadband electronic communications services shall be allocated for a period of at least 15 years.
5 – In order to ensure regulatory predictability for holders of rights of use referred to in the preceding paragraph for a period of at least 20 years in relation to the conditions of investment in the infrastructures dependent on the use of that radio spectrum, in cases where such rights of use are allocated for a shorter period, the NRA shall define and publish prior to their allocation, as part of the conditions established in accordance with article 39 and in compliance with paragraph 7 of article 38, the criteria applicable to the extension of the duration, which aim to ensure:
a) The effective and efficient use of the radio spectrum concerned, as well as the objectives set out in points a) and b) of paragraph 3 of article 32;
b) The fulfilment of general interest objectives related to the guarantee of safety of human life, public order, public security or defence;
c) The absence of competition distortions.
6 – At the latest two years before the expiry of the duration of the right of use for radio spectrum, the NRA shall carry out an objective and forward-looking assessment of the criteria applicable to the extension of the duration, defined under the terms of the previous paragraph, in accordance with point c) of paragraph 3 of article 32.
7 – The duration of rights of use for radio frequencies shall be extended unless:
a) Proceedings for non-compliance with the conditions attached to the right of use are in progress, in accordance with article 181;
b) The NRA concludes, as part of the assessment carried out in accordance with the previous paragraph, that the extension of the duration of the right does not meet the criteria referred to in paragraph 5.
8 – Based on the assessment carried out, the NRA shall decide on the extension of the duration of the respective right of use and notify the respective holder of the right of use for radio frequencies.
9 – The NRA shall submit the decisions set out in paragraphs 5 and 8, which shall be proportionate, transparent, non-discriminatory and duly reasoned, to the public consultation procedure set out in article 10 and to a hearing of the holder of the right of use, for a minimum of 70 working days.
10 – Where the extension of the duration is not granted, in accordance with paragraph 7, the NRA shall apply article 38 for the allocation of rights of use for spectrum in the relevant radio frequency band.
11 – Where justified, the NRA may establish a shorter duration than that provided for in paragraph 4 in order to ensure:
a) The achievement of objectives set out in paragraph 2 of article 32 in limited geographical areas, where access to high-speed networks is severely deficient or absent;
b) Specific short-term projects;
c) Experimental use of radio spectrum;
d) Uses of radio spectrum which, in accordance with article 34, can coexist with wireless broadband services;
e) Alternative use of radio spectrum in accordance with article 46.
12 – The NRA may adjust the duration of rights of use to ensure the simultaneous expiry of the duration of rights in one or several bands.
13 – The provisions of this article shall be without prejudice to the application of articles 21 and 181.
Article 41
Renewal of rights of use for harmonised radio spectrum
1 – Unless otherwise expressly determined in the framework of its powers, the NRA shall assess in a timely manner the need to renew rights of use for radio spectrum for the provision of electronic communications networks and services, on its own initiative or upon request of the holder of the right submitted to the NRA at least 18 months and not earlier than five years before the expiry date.
2 – Prior to renewing rights provided of use for radio spectrum, the NRA shall reassess and define the conditions associated with such rights, which shall be proportionate, transparent and non-discriminatory, pursuant to article 39, without prejudice to the fees applicable for the respective renewal pursuant to article 168.
3 – When deciding on the renewal of rights of use for radio spectrum, the NRA shall take into account:
a) The fulfilment of general objectives under article 5, paragraph 3 of article 32 and paragraph 2 of article 37 as well as public policy objectives under national or European Union law;
b) The need to implement technical measures adopted under article 4 of the Radio Spectrum Decision;
c) The review of the appropriate implementation of conditions attached to the right concerned;
d) The need to promote, or avoid any distortion of, competition in line with article 44;
e) The need to render the use of radio spectrum more efficient in light of technological or market evolution;
f) The need to avoid severe service disruption.
4 – Conditions attached to the renewal of rights of use shall not provide undue advantage to holders of those rights.
5 – The renewal of rights of use for radio spectrum for which the number of rights of use is limited shall be duly justified and shall be subject to an open, transparent and non-discriminatory procedure, in particular by giving stakeholders the opportunity to express their views on the renewal in the framework of a public consultation procedure in accordance with article 10.
6 – When deciding whether to renew or to initiate a new selection procedure for the allocation of rights of use for radio frequencies, in accordance with article 38, the NRA shall take into account the evidence gathered in the consultation carried out in accordance with the preceding paragraph which demonstrates existing demand in the market by undertakings other than holders of rights of use for the radio spectrum in question.
7 – The NRA shall reply to the holder within a maximum of six consecutive months from receipt of the request for renewal of the right of use for radio spectrum.
Article 42
Transfer or lease of rights of use for radio spectrum
1 – Undertakings may transfer or lease to other undertakings the rights of use for radio spectrum for the provision of electronic communications networks and services, except where such rights have been allocated free of charge or for the provision of radio programme services and distribution of television and radio programme services, within the scope of specific procedures, for the fulfilment of general interest objectives and on those grounds the NRA has established that they may not be transferred.
2 – The holder of the right of use for radio spectrum shall submit to the NRA the application for transfer or lease of the right, as well as the conditions and terms for its implementation.
3 – For the purposes of the preceding paragraph, the NRA shall ensure that:
a) Conditions attached to the rights of use remain unchanged;
b) The transfer or lease does not cause distortion of competition, in accordance with article 44;
c) Radio spectrum is used effectively and efficiently;
d) Transfer of rights of use for harmonised radio spectrum complies with harmonised use;
e) Restrictions provided for by law on television and radio are safeguarded.
4 – In accordance with the previous paragraph and without prejudice to article 44, the NRA shall authorise:
a) The transfer, unless there is a clear risk that the new holder is unable to meet the original conditions for the right of use;
b) The lease, where the lessor undertakes to remain liable for meeting the original conditions attached to the rights of use.
5 – The NRA shall also examine, in a timely manner, requests from the notifier or lessor to adapt the conditions attached to rights of use and ensure that those rights or the relevant radio spectrum may to the best extent be partitioned or disaggregated.
6 – The NRA shall make the request referred to in paragraph 2 subject to the least onerous possible procedure and issue an opinion on it within 45 working days.
7 – For the purposes of paragraph 3, the NRA shall request prior opinions from AdC and, with regard to point e) thereof, from Entidade Reguladora para a Comunicação Social (ERC - the Regulatory Authority for the Media), where applicable, which shall be issued within 10 working days of the respective request, which may be extended in complex cases.
8 – Silence on the part of the NRA after the expiry of the period referred to in paragraph 6 shall be deemed not to constitute opposition to the transfer or lease of the rights of use, but shall not exempt the rights-holders from notifying the NRA of the implementation of the transfer or lease.
9 – The transfer or lease of rights of use does not suspend or interrupt the duration of those rights.
10 – The NRA shall make publicly available in a standardised electronic format requests for transfer or lease submitted in accordance with paragraph 2 and relevant information concerning rights of use which are capable of being transferred or leased, as well as transfers or leases effected.
11 – The elements referred to in the preceding paragraph shall be kept by the NRA throughout the duration of the respective rights.
Article 43
Joint authorisation process to allocate rights of use for radio spectrum
1 – Following an expression of market interest, the NRA may cooperate with the competent bodies for radio spectrum management in other Member States and with the RSPG in order to establish common aspects of a process for the allocation of rights of use for radio spectrum and, where applicable, jointly promote the respective selection procedure, and may take into consideration the following aspects:
a) National processes shall be initiated and implemented in accordance with a jointly agreed schedule;
b) The provision, where appropriate, for common conditions and procedures for the selection and allocation of individual rights of use for radio spectrum among the Member States concerned;
c) The provision, where appropriate, for common or comparable conditions attached to the individual rights of use for radio spectrum among the Member States concerned, inter alia allowing users to be allocated similar radio spectrum blocks;
d) The inclusion of other Member States until the joint authorisation procedure is completed.
2 – Where, despite market interest, the NRA and other competent authorities for radio spectrum management in other Member States decide not to act together, the NRA shall inform interested parties by publishing a reasoned decision.
Article 44
Competition
1 – The NRA and other competent authorities shall promote effective competition and avoid distortions of competition in the internal market when deciding to allocate, amend or renew rights of use for radio spectrum for the provision of electronic communications networks and services in accordance with this law.
2 – For the purposes of the preceding paragraph, the NRA may adopt or propose to the competent authority the adoption of appropriate measures, namely:
a) Limiting the amount of radio spectrum bands for which rights of use are allocated, or, in justified circumstances, attaching conditions to such rights of use, such as the provision of wholesale access, national or regional roaming, in certain bands or in certain groups of bands with similar characteristics;
b) Reserving a certain part of a radio spectrum band or group of bands for allocation to new entrants, if appropriate and justified with regard to a specific situation in the national market;
c) Refusing to allocate new rights of use for radio spectrum or to allow new radio spectrum uses in certain bands, or attaching conditions to the allocation of new rights of use for radio spectrum or to the authorisation of new uses of radio spectrum, including transfer or lease, in order to avoid the distortion of competition by any allocation, transfer or accumulation of rights of use;
d) Prohibiting, or imposing conditions on, transfers of rights of use for radio spectrum, not subject to European Union or national merger control, where such transfers are likely to result in significant harm to competition;
e) Determining the amendment of rights of use, under articles 21 and 22, where this is necessary to remedy a distortion of competition by any transfer or accumulation of rights of use for radio spectrum.
3 – For the purposes of the preceding paragraph, the NRA, taking into account the market conditions and the available benchmarks, shall carry out an objective and forward-looking assessment of the conditions of competition in the market and of the need for measures to be adopted in order to maintain or achieve effective competition, as well as the likely effects of those measures on current and future investments by market participants, in particular in network roll-out, and, for this purpose, shall take into account the approach to market analysis provided for in article 73.
4 – Articles 10, 21, 22 and 46 shall apply to the adoption of measures pursuant to paragraph 2.
SECTION III
Harmonised spectrum
Article 45
Coordinated timing of allocations
1 – The NRA shall cooperate with the competent authorities for radio spectrum management in the other Member States with a view to coordinating the use of harmonised radio spectrum for electronic communications networks and services in the European Union, taking into account the different national markets and including the identification of one or, where appropriate, several common dates for authorising the use of that spectrum.
2 – Without prejudice to legislative acts adopted at European Union level, rights of use for harmonised radio spectrum for wireless broadband electronic communications services shall be allocated as soon as possible and no later than 30 months after the adoption of the related technical implementing measure or after the lifting of any decision to allow alternative use on an exceptional basis, in accordance with article 46.
3 – The deadline for a specific band under the previous paragraph may be delayed under the following circumstances:
a) To the extent justified by a restriction to the use of that band based on the general interest objective provided in paragraph 4 of article 34;
b) In the case of unresolved cross-border coordination issues resulting in harmful interference with third countries, provided the NRA has, where appropriate, requested European Union assistance pursuant to paragraph 4 of article 49;
c) To safeguard national security and defence;
d) On force majeure grounds.
4 – The delay provided for in the preceding paragraph shall be reviewed at least every two years.
5 – The 30-month delay provided for in paragraph 2 for a specific band may be further delayed, to the extent necessary, up to 30 months, under the following circumstances:
a) Unresolved cross-border coordination issues resulting in harmful interference in the national territory, provided that the NRA has taken all necessary measures in a timely manner pursuant to paragraph 4 of article 49;
b) The need to ensure, and the complexity of ensuring, the technical migration of existing users of that band.
6 – In the cases set out in paragraphs 3 and 5, the NRA shall inform the competent authorities for radio spectrum management in the other Member States and the European Commission, stating its reasons.
Article 46
Alternative use of harmonised spectrum
1 – In the case of a national or regional lack of market demand for the use of a band in the harmonised radio spectrum, the NRA may allow an alternative use of all or part of that band, including the existing use, by way of exception and in accordance with article 34, provided that:
a) The finding of a lack of market demand for the use of such a band is based on a public consultation in accordance with article 10, including a forward-looking assessment of market demand, or as part of a selection procedure;
b) Such alternative use does not prevent or hinder the availability or the use of such a band in other Member States;
c) Due account is taken of the long-term availability or use of such a band and the economies of scale for equipment resulting from using the harmonised radio spectrum in the European Union.
2 – The NRA shall ensure the reassessment of decisions adopted under the previous paragraph, periodically or following a duly justified request by a potential user of the radio spectrum.
3 – The decisions referred to in the paragraphs above, together with the reasons for those decisions, shall be communicated to the European Commission and to other competent authorities of other Member States.
Article 47
Peer review process
1 – Where the NRA intends to carry out a selection procedure in accordance with article 38 for the allocation of rights of use for harmonised radio spectrum for wireless broadband electronic communications services, it shall inform the RSPG, in accordance with article 10, of any draft measures falling within the scope of that selection procedure and indicate whether and when it intends to convene a peer review forum.
2 – In the context of the peer review forum, convened in accordance with the preceding paragraph, the NRA shall explain to what extent the draft decision ensures:
a) The promotion of the development of the internal market, cross-border provision of services and competition and maximisation of consumer benefits, and the pursuit of objectives set out in articles 4, 31, 35 and 38, the Radio Spectrum Decision and Decision 243/2012/EU of the European Parliament and of the Council of 12 March 2012, establishing a multiannual radio spectrum policy programme;
b) The effective and efficient use of radio spectrum;
c) Stable and predictable investment conditions for existing and prospective radio spectrum users.
3 – The NRA may request the RSPG to adopt a report on how the draft measure achieves the objectives provided in the preceding paragraph, reflecting the views exchanged in the peer review forum.
4 – Following the peer review forum, the NRA may request the RSPG to adopt an opinion on the analysed draft measure.
5 – Where it convenes a peer review forum pursuant to paragraph 1, the NRA may also request that it be reconvened, without being constrained to a limit of only one convocation during the national preparation and consultation process for a single procedure concerning one or several radio spectrum bands.
6 – Where the RSPG adopts the report referred to in paragraph 3, the NRA shall ensure its publication.
Article 48
Allocation of rights of use for spectrum under common selection procedures
1 – Where the use of radio spectrum has been harmonised in the European Union and, in that context, access conditions and procedures have been agreed and undertakings to which the rights of use for radio spectrum are allocated have been selected, in accordance with international agreements and European Union law, the NRA shall allocate rights of use for radio spectrum in accordance with such arrangements.
2 – For the purposes of the preceding paragraph, subject to compliance with any national conditions attached to the use of rights of use for radio frequencies, no further conditions, additional criteria or procedures which would restrict, alter or delay the correct implementation of the allocation of such rights may be imposed under a common selection procedure.
Article 49
Radio spectrum coordination between Member States
1 – It shall be incumbent on the NRA to ensure that there is no harmful cross-border interference which prevents or harms the use of harmonised radio spectrum in the territory of another Member State, in accordance with European Union law.
2 – For the purposes of the preceding paragraph, the NRA shall take into account the obligations arising from international law and relevant international agreements, in particular the ITU Radio Regulations and regional agreements on the subject.
3 – The NRA shall cooperate with the competent authorities for radio spectrum management in other Member States and, where appropriate, through the RSPG, in cross-border coordination of radio spectrum use, in order to:
a) Ensure compliance with paragraph 1;
b) Resolve any problem or dispute in relation to cross-border coordination or cross-border harmful interference between Member States, as well as with third countries, which prevent the use of harmonised radio spectrum in the territory of a Member State.
4 – For the purposes of paragraph 1, the NRA may request the RSPG to take action to resolve any problem or dispute relating to cross-border coordination or harmful cross-border interference.
SECTION IV
Use of wireless network equipment
Article 50
Access to radio local area networks
1 – Access to public electronic communications networks may be provided via radio local area networks.
2 – The use of harmonised radio spectrum for the purposes of the preceding paragraph shall be subject only to conditions applicable under the general authorisation, pursuant to paragraph 1 of article 36.
3 – Undertakings providing public electronic communications networks or publicly available electronic communications services may allow public access to their networks through radio local area networks located at an end-user’s premises, provided that the end-user has given informed consent and the applicable conditions under the general authorisation are met.
4 – In accordance with this law and paragraph 1 of article 3 of Regulation (EU) 2015/2120 of the European Parliament and of the Council, of 25 November 2015, the NRA shall ensure that providers of public electronic communications networks or publicly available electronic communications services do not unilaterally restrict or prevent end-users from:
a) Accessing radio local area networks of their choice provided by third parties;
b) Allowing the access, reciprocally or otherwise, to the networks of such providers by other end-users through radio local area networks, including on the basis of third-party initiatives which aggregate and make publicly accessible the radio local area networks of different end-users.
5 – End-users may allow the access by other end-users, reciprocally or otherwise, to their radio local area networks, including on the basis of third-party initiatives which aggregate and make publicly accessible the radio local area networks of different end-users.
6 – Article 14 of Decree-Law No 7/2004, of 7 January, is applicable to the provision of access to a public electronic communications network through a radio local area network.
7 – Competent authorities shall not unduly restrict the provision to the public of access to radio local area networks:
a) By public sector bodies or in public spaces close to premises occupied by such public sector bodies, when that provision is ancillary to the public services provided on those premises;
b) By initiatives of non-governmental organisations or public sector bodies to aggregate and make reciprocally or more generally accessible the radio local area networks of different end-users, including, where applicable, the radio local area networks to which public access is provided in accordance with the preceding point.
CHAPTER III
Numbering resources
SECTION I
General provisions
Article 51
Numbering resources
1 – The NRA ensures the efficient management of numbering resources and guarantees the availability of adequate numbering resources for the provision of public electronic communications networks and publicly available electronic communications services.
2 - For the purposes of the preceding paragraph, it shall be incumbent on the NRA to:
a) Approve the NNP, including its guidelines and general principles;
b) Manage the NNP in accordance with the principles of transparency, efficiency, equality and non-discrimination;
c) Define the conditions for allocation and use of national numbering resources;
d) Allocate national numbering resources through objective, transparent, proportionate and non-discriminatory procedures;
e) Ensure that the NNP and numbering resource procedures are applied in a manner that guarantees equal treatment of undertakings providing publicly available electronic communications services and undertakings not providing electronic communications networks or services;
f) Publish the NNP and subsequent additions or amendments, subject only to limitations imposed for reasons of national security;
g) Support harmonisation of specific numbers or numbering ranges within the European Union where that promotes both the functioning of the internal market and the development of pan-European services.
3 – The NRA may adopt specific arrangements for using number-based interpersonal communications services in adjacent locations across borders between Member States.
4 – The NRA may also agree with the competent authorities of other Member States to share a common numbering plan for all or specific categories of numbers.
5 – In the context of the application of the preceding paragraphs, the NRA shall inform end-users affected by the mechanisms or arrangements referred to therein.
Article 52
Harmonised numbers for services of social value
1 – It is incumbent on the NRA to ensure that the «116» numbering range of the NNP is reserved and used for the provision of harmonised services of social value under Commission Decision 2007/116/EC of 15 February 2007.
2 – – It is incumbent on the NRA to ensure that end-users have access free of charge to the «116000» number for reporting missing children, and for determining measures to ensure that end-users with disabilities, including nationals of other Member States who are on national territory, have access to services provided under this number, to the extent possible, on an equivalent basis as other end-users, in accordance with the standards and specifications applicable under article 30.
3 – The «116000» number holder shall put in place the resources needed to operate the service provided through the «116000» number.
4 – End-users, including nationals of other Member States who are on the national territory, shall have the right to obtain adequate information on the existence and use of services provided under the «116» range.
Article 53
Access to numbers and services
1 – The prefix «00» shall be used as a harmonised international access code in international communications.
2 – Wherever economically feasible, holders of rights of use for NNP numbers within the national territory shall provide end-users with:
a) Access and use of services using non-geographic numbers within the European Union;
b) Access to all numbers provided in the European Union, regardless of the technology and devices used by undertakings providing electronic communications networks or services, including those in the national numbering plans of Member States and universal international freephone numbers.
3 – Holders of rights of use for numbering resources may not discriminate against other undertakings providing publicly available electronic communications services as regards the numbering resources used to give access to their services.
4 – The previous paragraphs shall not apply where the called end-user has decided for commercial reasons to limit access for calls from specific geographical areas.
5 – Where justified by reasons of fraud or misuse, the NRA, the courts or another body, where unlawful acts regarding which they have power to determine and punish are involved, may order undertakings providing public electronic communications networks or publicly available electronic communications services to block, on a case-by-case basis, access to numbers or services and, in such cases, to withhold the relevant interconnection or other service revenues.
SECTION II
Allocation and use of numbering resources
Article 54
Allocation of rights of use for numbering resources
1 – The use of numbering resources depends on the allocation of rights of use by the NRA.
2 - The allocation of rights of use for numbering resources depends on an application to the NRA, under the terms to be defined by the latter.
3 – Where, following the public consultation procedure set out in article 10, the NRA decides to allocate rights of use for numbering resources of exceptional economic value by means of a competitive or comparative selection procedure, applicants shall comply with the requirements laid down by the NRA in the respective regulation.
4 – Rights of use for numbering resources shall be allocated through open, objective, transparent, proportionate and non-discriminatory procedures.
5 – Rights of use for numbering resources may be transferred under terms and conditions to be defined by the NRA, which shall provide for mechanisms intended to safeguard, in particular, the effective and efficient use of numbering resources and rights of users.
6 – The rights of use for numbering resources may, in duly justified situations, be allocated for a limited period of time, determined according to the service in question, the objective to be pursued and the need to allow for an adequate period for amortisation of the investment.
7 – A decision on the allocation of rights of use for numbering resources shall be taken as soon as possible after the receipt of a complete application.
8 – Without prejudice to the previous paragraph, the decision on the allocation of rights of use shall be taken within:
a) 15 working days, in the case of numbering resources allocated for specific purposes within the NNP;
b) 30 working days, in the case of numbering resources of exceptional economic value allocated through competitive or comparative selection procedure.
9 – The NRA may limit the number of rights of use for numbering resources only where this is necessary to ensure their efficient use.
10 – This article applies to the allocation of rights of use for numbering resources to undertakings that do not provide electronic communications networks or services, as provided for in article 57.
Article 55
Extraterritorial use of numbering resources
1 – The NRA shall ensure the availability of a non-geographic numbering range for the provision of electronic communications services, with the exception of interpersonal communications services, at least within the territory of the European Union, without prejudice to Regulation (EU) 2022/612 of the European Parliament and of the Council, of 6 April 2022, and paragraph 5 of article 53.
2 – When allocating rights of use for numbering resources that include extraterritorial use in the European Union, the NRA shall attach specific conditions to those rights to ensure compliance with relevant consumer protection rules, and rules on the use of numbering resources applicable in the Member States where the numbering resources are used.
3 – For the purposes of the preceding paragraph, the NRA shall ensure that the conditions attached to rights of use for numbering resources which include extraterritorial use, and their application, are as strict as those applied to rights of use for numbering resources which do not allow for such possibility.
4 – On request from an NRA or other competent authority for the management of numbering resources of a Member State in which numbering resources are used, which demonstrates non-compliance with applicable rules relating to consumer protection or to the use of numbering resources in that Member State, the NRA shall apply the conditions referred to in paragraph 2 in accordance with article 181.
5 – In the event of serious infringement, the NRA may withdraw the right of extraterritorial use associated with the numbering resources allocated.
6 – This article shall apply to the provision of specific services for which rights of use for numbering resources have been allocated to undertakings not providing electronic communications networks or services in accordance with article 57.
Article 56
Conditions attached to rights of use for numbering resources
Without prejudice to other obligations arising from the law and the general conditions set out in article 27, the rights of use for numbering resources may only be subject to the following conditions:
a) Designation of service for which the number shall be used and requirements linked to the provision of that service, including pricing principles and applicable price caps to ensure consumer protection in accordance with point d) of paragraph 1 of article 5;
b) Effective and efficient use of numbering resources in accordance with this law;
c) Number portability requirements, in accordance with article 141;
d) Obligation to provide end-users with information on the provision of directory enquiry services and publicly available directories for the purposes of article 145;
e) Maximum duration in accordance with paragraph 6 of article 54, subject to any changes in the NNP;
f) Transfer of rights of use at the initiative of the right holder and the conditions applicable in accordance with this law, including the conditions attached to the rights of use binding on the transferring undertakings;
g) Payment of fees, in accordance with article 168;
h) Any commitments which the holder of the rights of use has made in the course of a competitive or comparative selection procedure;
i) Obligations under relevant international agreements relating to the use of numbers;
j) Obligations relating to the extraterritorial use of numbers within the European Union, to ensure compliance with consumer protection rules and other rules applicable to numbers in Member States other than the Member State that has allocated the right of use for numbering resources.
Article 57
Allocation of numbering resources to undertakings not providing electronic communications networks or services
1 – The NRA may allocate rights of use for numbering resources for the provision of specific services to undertakings not providing electronic communications networks or services, provided that:
a) Adequate numbering resources are made available to satisfy current and foreseeable future demand; and
b) Undertakings demonstrate their ability to manage numbering resources and to comply with requirements set out under article 56.
2 – The NRA may suspend the allocation of rights of use for numbering resources referred to in the preceding paragraph where it is demonstrated that there is a risk of exhaustion of numbering resources.
CHAPTER IV
Security and emergency
SECTION I
Security and emergency
Article 58
Security and emergency
1 – It shall be the State’s responsibility to ensure, in accordance with the law, the adequate coordination of electronic communications networks and services in the event of crisis or war, serious accident or disaster, emergency situation and serious threat to internal security.
2 – It shall be incumbent on the NRA, under the terms of the law, in coordination with the other competent authorities, namely Autoridade Nacional de Emergência e Proteção Civil (the National Emergency and Civil Protection Authority), to:
a) Contribute to the definition and permanent updating of civil emergency planning policies in the communications sector;
b) Cooperate on risk prevention and management and on civil protection emergency planning;
c) Cooperate within the framework of internal security activity;
d) Cooperate in cyberspace security activities.
3 – Undertakings providing electronic communications networks and services have a special duty of cooperation with the NRA in carrying out the tasks set out in the preceding paragraph.
SECTION II
Security of networks and services
Article 59.º
Security of networks and services
1 – Undertakings providing public electronic communications networks or publicly available electronic communications services shall take proportionate technical and organisational measures to appropriately manage the risks to security of networks and services, including encryption where appropriate, in particular to prevent or minimise the impact of security incidents on users and other networks and services.
2 – The measures provided for in the previous paragraph shall ensure a level of security appropriate to the existing risk, taking into account the state of the art and taking into account the relevant information issued by the competent national, European Union or international entities and the national or European risk assessments for the security of networks and services.
3 – The measures provided for in paragraph 1 shall take into account at least all relevant aspects of the following elements:
a) As regards security of networks and facilities, physical and environmental security, security of supply, access control to networks and integrity of networks;
b) As regards handling of security incidents, the management procedures, the security incident detection capability, reporting and notification, public disclosure and any other communication relating to security incidents;
c) As regards business continuity management, service continuity strategy and contingency plans, as well as disaster recovery capabilities;
d) As regards monitoring, auditing and testing, monitoring and logging policies, contingency planning exercises, network and service testing, security assessments and compliance monitoring, on the basis of existing national, European and international standards, specifications or recommendations.
4 – The provisions of this article shall be without prejudice to legislation concerning the processing of personal data and the protection of privacy in the electronic communications sector.
Article 60
Security incidents
1 – Undertakings providing public electronic communications networks or publicly available electronic communications services shall:
a) Notify the NRA and Centro Nacional de Cibersegurança (CNCS - the National Cyber Security Centre), without undue delay, of any security incident with a significant impact on the operation of networks or services;
b) Inform the public, by the most appropriate means, of security incidents where this is considered by the NRA to be in the public interest.
2 – Undertakings providing public electronic communications networks or publicly available electronic communications services shall, in case of a specific and significant threat of a security incident on those networks or services, inform their users potentially affected by the threat, free of charge, of any possible preventive or response measure that users could take and, where appropriate, of the threat itself.
3 – It shall be incumbent on the NRA to:
a) Inform the competent authorities of other Member States and the European Union Agency for Cyber Security (ENISA) of security incidents, whenever it deems it appropriate;
b) Inform the public, by the most appropriate means, of security incidents, where this is considered by the NRA to be in the public interest;
c) Submit annually to the European Commission and ENISA a summary report on the notifications of security incidents carried out pursuant to point a) of paragraph 1 and the measures taken.
4 – Where appropriate, the NRA may inform the competent national authorities of relevant security incidents within the scope of their respective tasks, including judicial and police authorities and Comissão Nacional de Proteção de Dados (CNPD - the National Data Protection Commission).
5 – This article shall be without prejudice to legislation concerning the processing of personal data and the protection of privacy in the electronic communications sector.
Article 61
Implementing measures
1 – For the purposes of article 59, the NRA may approve and impose technical implementing measures on undertakings providing public electronic communications networks or publicly available electronic communications services.
2 – For the purposes of point a) of paragraph 1 of article 60, the NRA shall approve measures defining the circumstances, format and procedures applicable to security incidents notification requirements.
3 – In defining the circumstances under which a security incident has a significant impact, the NRA shall take into account, in particular, the following parameters, where available:
a) The number of users affected by the security incident;
b) The duration of the security incident;
c) The geographical distribution and size of the area or areas affected by the security incident;
d) The extent to which the functioning of the network or service is affected;
e) The extent of the impact on economic and social activities, including access to emergency services.
4 – The implementing measures provided for in paragraphs 1 and 2 shall be in accordance with implementing acts of the European Commission adopted under the procedure provided for in paragraph 5 of article 40 of the EECC and, in their absence, shall be based on existing European and international standards on the matter, as well as take into account technical documents published by ENISA in pursuit of its tasks under the EECC.
5 – The approval of the implementing measures provided for in paragraphs 1 and 2 shall be subject to the prior binding opinion of CNCS, as the national cybersecurity authority and within the scope of its competences provided for in article 7 of Law No 46/2018, of 13 August, which establishes the legal framework for cyberspace security.
6 – The adoption of implementing measures referred to in paragraphs 1 and 2 shall be subject to the public consultation procedure set out in article 10.
Article 62
Additional requirements
1 – In addition to the technical implementing measures provided for in article 61, the NRA, for the purposes of article 59, may set additional, more demanding requirements for undertakings providing public electronic communications networks or publicly available electronic communications services, in particular by determining the following:
a) The designation of a permanent contact point, for the purposes of this chapter;
b) The drawing up of an updated plan containing all the technical and organisational measures adopted;
c) Exercises to evaluate and improve the technical and organisational measures adopted, and participation in joint exercises;
d) The drawing up and submission to the NRA of an annual report under terms to be established, including, in particular, the experience gained from security incidents.
2 – In the light of the relevant information issued by the competent national and European Union entities and the national or European risk assessments for the security of the networks and services referred to in the previous paragraph, the NRA shall determine the following additional requirements:
a) The obligation to use products, services and processes certified under cybersecurity certification schemes, including under Regulation (EU) 2019/881 of the European Parliament and of the Council, of 17 April 2019, on ENISA and cybersecurity certification of information and communication technologies;
b) The fulfilment of specific conditions for the virtualisation of network functions within the scope of the operation and security of networks and services;
c) The fulfilment of specific conditions for, or prohibition of, the outsourcing of operational and security functions for networks and services;
d) The adoption of a strategy to diversify providers within the scope of the operation and security of networks and services;
e) The location of the network operation centre and security operation centre within the national territory or within the territory of a Member State.
3 – The use of equipment in any electronic communications networks may be subject to a security assessment, to be carried out at the initiative of any member of the commission referred to in the following paragraph, justified and based on objective security criteria, on the basis of relevant information issued by national and European Union competent authorities or contained in national or European network security risk assessments.
4 – The security assessment shall be carried out by a Commission for Security Assessment (Commission) constituted within Conselho Superior de Segurança do Ciberespaço (the High Council for Cyberspace Security), which is composed as follows:
a) Autoridade Nacional de Segurança (the National Security Authority), which shall chair;
b) A representative of Autoridade Nacional de Cibersegurança (the National Authority for Cybersecurity);
c) A representative of the NRA;
d) A representative of Sistema de Segurança Interna (the Internal Security System);
e) A representative of Sistema de Informações da República Portuguesa (the Portuguese Republic’s Information System);
f) The Ambassador for Cyber-Diplomacy;
g) One representative of the Directorate-General for Foreign Policy;
h) A representative of the Directorate-General for Defence Policy.
5 – As a result of the security assessment, the Commission may determine the exclusion, restriction on use or termination of use of equipment or services and shall set, where appropriate, a reasonable deadline for compliance.
6 – In the exercise of its powers, the NRA shall enforce the determinations referred to in the preceding paragraph, and shall also supervise compliance therewith, in accordance with article 177.
7 – The Commission may request the entities concerned to provide any information required to carry out the activity provided for in paragraphs 3 to 5, and may carry out inspections where a security assessment is carried out in relation to the deployment of a particular electronic communications network.
8 – The Commission shall adopt rules of procedure which shall lay down the rules of organisation and operation.
Article 63
Audits, inspections and reporting
1 – The NRA shall require undertakings that provide public electronic communications networks or publicly available electronic communications services to have a security audit of their networks and services carried out by a qualified independent entity at their own expense and to send a report to the NRA on the results thereof.
2 - For the purposes of the preceding paragraph:
a) The NRA shall establish the requirements with which the audits provided for in the previous paragraph must comply, particularly as regards their scope, frequency, procedures and reference standards, as well as the requirements applicable to the auditing bodies;
b) Undertakings providing public electronic communications networks or publicly available electronic communications services shall:
i) Submit the approval of the auditing body to the NRA in advance;
ii) Send to the NRA, within a reasonable timeframe, the plan for remedying the non-conformities contained in the audit report.
3 - The NRA or another independent body designated by it may also carry out a security inspection or audit of networks and services, in particular in the event of a security incident.
4 – For the purpose of assessing the security of networks and services, the NRA shall, in accordance with articles 170 and 171, require undertakings providing public electronic communications networks or publicly available electronic communications services to provide all necessary information, including documentation on security policies.
Article 64
Binding instructions and investigation
1 – For the purposes of articles 59 and 60 and as part of the technical implementing measures and additional requirements adopted, the NRA may issue binding instructions to undertakings providing public electronic communications networks or publicly available electronic communications services, including determining what measures are required to terminate a security incident or to prevent a security incident from occurring, if a significant threat has been identified, and setting deadlines for implementation.
2 - It shall be incumbent on the NRA to investigate cases of non-compliance with the provisions and obligations contained in this chapter and their effects on the security of networks and services.
Article 65
Assistance and cooperation
1 – For the purposes of this chapter, the NRA and undertakings providing public electronic communications networks or publicly available electronic communications services shall have the assistance of Equipa de Resposta a Incidentes de Segurança Informática Nacional (the National Computer Security Incident Response Team), within the scope of its powers provided for in article 9 of Law No 46/2018, of 13 August.
2 - The NRA, where appropriate and in accordance with applicable legislation, shall consult and cooperate with the judicial and police authorities, the CNCS, the CNPD and other competent authorities.
SECTION III
Availability of services
Article 66
Availability of services
1 – Undertakings providing voice communications services or an internet access service over public electronic communications networks shall ensure the fullest possible service availability in situations of network breakdown, emergency or force majeure.
2 – Undertakings providing of voice communications services shall take all necessary measures to ensure uninterrupted access to emergency services and uninterrupted transmission of public warnings.
SECTION IV
Emergency communications
Article 67
Emergency communications and the single European emergency number
1 – End-users of publicly available number-based interpersonal communications services that allow calls to be made to a number in a national or international numbering plan, including users of public pay telephones, have the right to access emergency services through emergency communications, free of charge and without having to use any means of payment, by using the single European emergency call number «112» or any other national emergency number specified by the NRA, duly identified in the NNP.
2 - Undertakings providing the services referred to in the previous paragraph shall:
a) Ensure access to emergency services through emergency communications to the most appropriate PSAP;
b) Make caller location information available to the most appropriate PSAP without delay after the emergency communication has been established and throughout its duration, and, where practicable, ensure that the PSAP can retrieve and manage available caller location information.
3 – The establishment and transmission of caller location information is free of charge for the end-user and the PSAP for all emergency calls to the single European emergency number «112» or any other national emergency number.
4 – It is incumbent on the NRA to establish, by regulation and, if necessary, in consultation with BEREC, the criteria for the accuracy and reliability of caller location information to be provided to the most appropriate PSAP.
5 – Undertakings referred to in paragraph 2 shall provide end-users with disabilities with access to emergency services through emergency communications of a level equivalent to that provided to other end-users, in accordance with applicable legislation on accessibility requirements for products and services, and shall follow, wherever possible, the European standards and specifications published in accordance with article 30, without prejudice to the adoption of additional requirements aimed at ensuring access to such services.
6 – Undertakings providing non-publicly available interpersonal communications services, that allow calls from their networks to a number in a national or international numbering plan, shall:
a) Ensure access to emergency services by dialling «112» or any other national emergency number, no other use being allowed;
b) Make available to undertakings referred to in paragraph 2 the location data required for the fulfilment of obligations referred to in that paragraph, in accordance with the accuracy and reliability criteria established by the NRA under paragraph 4 and under the terms to be mandatorily provided for in the contracts concluded between them for the provision of electronic communications networks and services.
7 - The body responsible for handling and processing emergency communications shall:
a) Ensure the appropriate and efficient handling and processing of all emergency communications to the single European emergency number «112» or to any other national emergency number;
b) Take the necessary measures to ensure appropriate dissemination to end-users about the existence and use of the single European emergency number and its accessibility features, including through initiatives specifically targeting persons travelling into the national territory and end-users with disabilities, in accessible formats and addressing different types of disabilities.
SECTION V
Civil Protection Warnings
Article 68
Transmitting civil protection warnings
1 – Undertakings providing mobile number-based interpersonal communications services shall transmit public warnings on imminent or developing emergencies or major accidents or disasters to potentially affected end-users, on terms to be determined by public authorities responsible for public warning, using all available capacity and with the highest priority.
2 – The transmission of warnings to the public is free of charge for end-users and the respective public authorities in charge.
3 – Under terms to be determined by the public authorities referred to in paragraph 1, undertakings providing mobile number-based interpersonal communications services shall send end-users entering the national territory, automatically by SMS without undue delay and free of charge, easily comprehensible information, provided by the said authorities under their sole responsibility, on how to receive warnings to the public.
4 – Notwithstanding paragraph 1, under terms to be determined by public bodies responsible for warnings to the population and provided that the effectiveness of the warning system is equivalent in terms of coverage, capacity and ease of reception, taking into account guidelines issued by BEREC, the NRA may determine that warnings to the population are transmitted by undertakings offering publicly available electronic communications services, with the exception of broadcasting services, via the service or via a mobile application relying on an internet access service.
TITLE IV
Market analysis and regulatory control
CHAPTER I
General provisions
Article 69
General principles
1 – The market analysis and the imposition of specific obligations under the present title shall comply with the principle of full statement of reasons.
2 – When stating the reasons for decisions to impose specific obligations, the NRA shall cumulatively demonstrate that the obligation imposed:
a) Is appropriate to the problem identified, proportionate and justified in the light of the general objectives set out in article 5;
b) Is objectively justifiable with regard to the networks, services or infrastructure concerned;
c) Does not unduly discriminate against any undertaking;
d) Is transparent about its intended purposes.
Article 70
Powers of the national regulatory authority
It shall be incumbent on the NRA, in accordance with the rules laid down in this title:
a) To define the relevant product and geographic markets;
b) To determine whether or not a relevant market presents such characteristics as to justify the imposition of specific obligations;
c) To designate undertakings with significant market power in the relevant markets;
d) To impose, maintain, amend or withdraw obligations on undertakings with significant market power, or independently of such power, including the imposition of technical or operational conditions on the provider or beneficiary of access.
CHAPTER II
Procedure for consolidating the internal market
Article 71
Procedure for consolidating the internal market in the context of market analyses
1 – Where the decisions to be adopted under article 70 are liable to affect trade between Member States, the NRA shall follow, after the public consultation procedure provided for in article 10, if required, has been completed, the following procedure aimed at consolidating the internal market:
a) Publish the reasoned draft decision; and
b) Notify the draft decision simultaneously to the European Commission, BEREC and the national regulatory authorities of the other Member States, indicating information which is confidential, in order to allow them to submit comments by no later than one month if they so wish.
2 – Within the period provided for in point b) of the preceding paragraph, the NRA, if it so wishes, may comment on draft decisions received from national regulatory authorities of another Member State.
3 – The NRA, after analysis of comments received, which shall be taken into account, or in the absence thereof, may adopt the final decision, communicating it to the European Commission and BEREC.
4 – Where any of the conditions referred to in the following paragraph are met, the preceding paragraph shall not apply to draft decisions of the NRA relating to the following matters:
a) Definition of relevant markets other than those indicated in the recommendation on relevant markets;
b) Whether or not an undertaking has significant market power, either individually or jointly with others.
5 – Where a draft decision referred to in the preceding paragraph is concerned, which affects trade between Member States and where the European Commission, within the procedure set out in paragraph 2, has informed the NRA that it considers that the draft decision may create a barrier to the single market or where it has serious doubts as to its compatibility with European Union law, in particular with the general objectives set out in article 5, the NRA shall postpone the adoption of the draft decision for a further two months, which shall not be extended.
6 – Where, within the period referred to in the previous paragraph, the European Commission, having obtained an opinion from BEREC and in accordance with the procedure set out in the EECC, has made a reasoned request to the NRA to withdraw the draft decision, indicating specific proposals for amendments, the NRA shall, within six months from the date of notification of that decision, either:
a) Withdraw the draft decision, communicating such decision to the European Commission and BEREC;
b) Amend the draft decision, resubmitting it to the public consultation procedure, provided for in article 10, and to the internal market consolidation procedure, provided for in this article.
7 – Where the European Commission decides to lift its reservations on the draft decision within the period referred to in paragraph 5, the NRA may adopt the final decision, communicating it to the European Commission and BEREC.
8 – The procedure established in this article may not be applied in cases provided for in recommendations or guidelines of the European Commission establishing the form, content and degree of detail of the notifications, as well as the circumstances in which notifications will not be required and the calculation of the applicable deadlines, adopted under the procedure laid down in article 34 of the EECC.
9 - The NRA may withdraw the draft decision at any stage of the procedure.
Article 72
Procedure for consolidating the internal market in the context of the imposition of specific obligations
1 – Where the draft decision subject to the procedure for consolidating the internal market aims at imposing, maintaining, amending or withdrawing specific obligations on undertakings designated as having significant market power or independently of such power, and the NRA is notified with reasons by the European Commission within the period of one month provided for in paragraph 2 of article 71 that it considers that the draft decision would create a barrier to the internal market or if it has serious doubts as to its compatibility with European Union law, the NRA shall postpone the adoption of the draft decision for a period of three months from the notification of the European Commission.
2 – During the period referred to in the previous paragraph, the European Commission, BEREC and the NRA shall cooperate closely with the objective of identifying the most appropriate and effective measure in the light of the general objectives set out in article 5, taking into account the views of stakeholders who have expressed their views in the public consultation procedure set out in article 10, and the need to ensure the development of consistent regulatory practice.
3 – Where, within six weeks from the beginning of the three month period referred to in paragraph 1, BEREC issues and publishes an opinion on the Commission’s notification indicating that it shares the same doubts as regards the draft decision of the NRA and that the draft decision should be amended or withdrawn, together with specific proposals for amendments, the NRA and BEREC shall cooperate closely to identify the most appropriate and effective course of action, and the NRA may, before the end of the three month period, take either of the following decisions:
a) Amend or withdraw the draft decision, taking into account the notification of the European Commission provided for in paragraph 1 and the opinion and cooperation of BEREC;
b) Maintain the draft decision.
4 – Where the European Commission, within one month after the end of the three month period referred to in paragraph 1, taking into account the opinion of BEREC, if any:
a) Issues a recommendation to the NRA to amend or withdraw the draft decision, including specific proposals to that effect and stating the reasons for its recommendation, in particular where BEREC does not share its serious doubts, or decides to lift its reservations, the NRA shall, within one month of the adoption of that recommendation or decision, communicate the adopted final decision to the European Commission and BEREC together with a reasoned justification where it has not accepted that recommendation; or
b) Requires the NRA, in the case of draft decisions falling within the scope of paragraph 4 of article 96 or paragraph 3 of article 104, to withdraw the draft decision where BEREC shares its serious doubts, accompanying such decision with a detailed and objective analysis of why it considers that the draft measure should not be adopted, as well as specific proposals for amending the draft measure, the NRA shall adopt, mutatis mutandis, the procedure set out in paragraph 6 of article 71.
5 – The one-month period referred to in point a) of the preceding paragraph may be extended where the NRA, prior to the approval of its final decision, submits the amended draft decision to the public consultation procedure set out in article 10.
6 - The NRA may withdraw the draft decision at any stage of the procedure.
CHAPTER III
Market analysis
Article 73
Market definition
1 – It is incumbent on the NRA, in accordance with national circumstances, to define relevant product and service markets within the electronic communications sector, including relevant geographic markets, taking into account, in particular, the level of infrastructure competition in those areas, in accordance with competition law principles.
2 – When defining markets, the NRA shall, depending on national circumstances, take into account:
a) The recommendation on relevant markets;
b) The SMP guidelines;
c) The results of the geographical survey carried out pursuant to article 173, where relevant.
3 – The NRA may define markets that differ from those in the recommendation on relevant markets, and the procedures set out in articles 10 and 71 shall apply.
Article 74
Analysis of the characteristics of the relevant market
1 – It shall be incumbent on the NRA to analyse the relevant markets defined in accordance with article 73, taking into account the SMP guidelines.
2 – As part of the market analysis, it shall fall on the NRA to determine whether a relevant market displays characteristics which may justify the imposition of specific obligations set out in this title.
3 – A market may be considered to justify the imposition of specific obligations where all of the following criteria are met:
a) High and non-transitory structural, legal or regulatory barriers to entry are present;
b) There is a market structure which does not tend towards effective competition within the relevant time horizon, having regard to the state of infrastructure-based competition and other sources of competition behind the barriers to entry;
c) Competition law alone is insufficient to adequately address the identified market failure(s).
4 – Where the NRA analyses a market in the recommendation on relevant markets, it shall assume that the conditions set out in the recommendation are met unless it concludes that one or more of these criteria are not fulfilled in the specific national circumstances.
5 – Where the NRA conducts the analysis of a relevant market, it shall consider developments from a forward-looking perspective in the absence of regulation imposed on the basis of this article in that relevant market, and taking into account all of the following:
a) Market developments affecting the likelihood of the relevant market tending towards effective competition;
b) All relevant competitive constraints, at the wholesale and retail levels, irrespective of whether the sources of such constraints are considered to be electronic communications networks, electronic communications services, or other types of services or applications which are comparable from the perspective of the end-user, and irrespective of whether such constraints are part of the relevant market;
c) Other types of regulation or measures imposed and affecting the relevant market or related retail market or markets throughout the relevant period, including, without limitation, obligations imposed in accordance with articles 24, 26, 81, 82, 83, 103 to 105; and
d) Regulation imposed on other relevant markets on the basis of this article.
6 – Where an NRA finds that a relevant market does not display such characteristics as to justify the imposition of specific obligations in accordance with the procedure set out in the preceding paragraphs or that the conditions set out in paragraph 9 are not fulfilled, it shall:
a) Refrain from imposing or maintaining any specific obligations under article 84;
b) Withdraw the specific obligations previously imposed on undertakings that operate on that relevant market.
7 – For the purposes of point b) of the preceding paragraph, the NRA shall notify the parties affected by the decision to withdraw obligations, giving them an appropriate notice period, defined by taking into account the need to ensure a sustainable transition for the beneficiaries of those obligations and end-users, the choice of the latter, and the need for regulation not to last longer than necessary.
8 – In addition to the notice period set out in the previous paragraph, the NRA may lay down specific conditions and notice periods in relation to existing agreements on access.
9 – Where the NRA concludes that specific obligations are justified in a relevant market, it shall determine which undertakings individually or jointly have significant market power on that relevant market and shall impose appropriate specific obligations under article 84, or maintain or amend such obligations where they already exist, where it considers that the related retail market(s) would not be effectively competitive, from a forward-looking perspective, in the absence of wholesale regulation of that relevant market.
Article 75
Review of market analysis
1 – The NRA shall carry out the analysis of relevant markets and notify the corresponding draft measure in accordance with article 71:
a) Within five years of the approval of the most recent review of the relevant market;
b) Within three years of the approval by the European Commission of the revised recommendation on relevant markets, for markets which the NRA has not previously notified;
c) Where deemed appropriate.
2 – The period provided for in point a) of the preceding paragraph may exceptionally be extended for an additional period of one year, upon submission to the European Commission of a duly justified proposal for extension by the NRA, no later than four months before the expiry of that period, to which the European Commission does not object within one month of submission.
3 – When an NRA considers that it will not be able to complete or does not conclude the analysis of a relevant market within the time limits set out in the previous paragraphs, it shall request the assistance of BEREC so that, within six months of those time limits, the respective analysis and imposition of specific obligations are completed and notified to the European Commission pursuant to article 71.
Article 76
Identification of transnational markets
1 – Where the European Commission, by decision adopted under the EECC, following an analysis of a potential transnational market carried out by BEREC, identifies transnational markets, the NRA and other national regulatory authorities involved shall jointly analyse the market(s) concerned, taking into account the SMP guidelines, and decide on any imposition, maintenance, amendment or withdrawal of specific obligations referred to in article 84 in a concerted fashion.
2 – The NRA, together with one or more other national regulatory authorities, may submit a reasoned and evidence-based request to BEREC to analyse a potential transnational market.
3 – The NRA and other national regulatory authorities involved in the analysis of the transnational market(s) shall jointly notify to the European Commission their draft decisions concerning the analysis of those markets, and any specific obligations under articles 71 and 72.
4 – Where transnational markets are not identified, the NRA and one or more other national regulatory authorities may jointly notify to the European Commission their draft decisions on market analysis and any specific obligations, where they consider that the market conditions in their respective jurisdictions are sufficiently homogeneous.
Article 77
Procedure for the identification of transnational demand
1 – Where an NRA identifies that there is a serious unresolved problem of transnational demand, it may, together with one or more other national regulatory authorities, submit a reasoned and evidence-based request to BEREC to undertake a review of the transnational demand of end-users for products and services supplied within the European Union, in one or more of the markets listed in the Recommendation on relevant markets.
2 – Where, as a result of the analysis referred to in the previous paragraph, BEREC has developed guidelines on common approaches for national regulatory authorities to meet identified cross-border demand, the NRA shall take those guidelines into account when carrying out regulatory tasks within its jurisdiction.
Article 78
Significant market power
1 – For the purposes of this law, and in particular paragraph 9 of article 74, an undertaking shall be deemed to have significant market power if, either individually or jointly with others, it enjoys a position equivalent to dominance, namely a position of economic strength affording it the power to behave to an appreciable extent independently of competitors, customers and ultimately consumers.
2 – When assessing whether two or more undertakings enjoy a joint dominant position on a market, the NRA shall act in accordance with EU law and take into account SMP guidelines.
3 – Where an undertaking has significant market power on a specific market, the NRA may determine that it also has significant market power on a closely related market, where the links between the two markets would allow the undertaking to leverage market power held in the specific market into the closely related market, thereby strengthening its market power.
4 – In the cases provided for in the preceding paragraph, the NRA may apply, in the closely related market, obligations aimed at preventing leverage, in accordance with articles 85 to 88 and 92 to 94.
Article 79
Cooperation with the Competition Authority
Draft decisions of the NRA concerning market analyses and the determination of whether or not significant market power is held are subject to the prior opinion of AdC, which shall be issued within 30 working days of the respective request.
CHAPTER IV
Access and interconnection
SECTION I
General provisions
Article 80
Freedom to negotiate
1 – Undertakings providing electronic communications networks and services may negotiate and agree among themselves on technical and commercial arrangements for access or interconnection, without prejudice to the NRA’s exercise of its powers under this chapter.
2 – In the case of cross-border agreements, the undertaking requesting access or interconnection is not subject to the general authorisation scheme provided for in this law as long as it does not provide electronic communications networks or services within national territory.
Article 81
Powers of the national regulatory authority
1 – In accordance with the general objectives set out in article 5 and in exercising its powers under this chapter, the NRA shall encourage and, where justified, ensure adequate access and interconnection, as well as interoperability of services, with a view to promoting efficiency, sustainable competition, the deployment of very high capacity networks, efficient investment and innovation and providing maximum benefit to end-users.
2 - In exercising the powers provided for in this chapter, the NRA shall:
a) Determine access and interconnection obligations for undertakings providing public electronic communications networks and publicly available electronic communications services;
b) Act on its own initiative when justified, including in agreements already concluded, or, in the absence of an agreement between undertakings, at the request of any of the parties involved under articles 12 and 14, in order to guarantee the general objectives in the context of access and interconnection provided for in article 5, in accordance with this law and, in particular, with the procedures laid down in articles 10 and 71, where applicable.
3 – For the purposes of the preceding paragraph, the obligations imposed shall be objective, proportional, transparent and non-discriminatory, and undertakings shall comply with them in the manner, form and time limit determined by the NRA.
4 – Where obligations for access and interconnection are imposed, the NRA shall ensure that the procedures applicable to obtaining access and interconnection are published by undertakings, and where these are not publicly available, shall provide relevant guidelines, to ensure that small and medium-sized enterprises and/or operators with a reduced geographical coverage benefit from imposed obligations.
5 – Where, in accordance with this article and articles 103 to 105, specific obligations for access and interconnection have been imposed, the NRA shall assess the results of such imposition, within five years from the adoption of the previous measure applied to the same undertakings, and consider whether it would be appropriate to withdraw or modify it in the light of developments, and notify the results of its assessment in accordance with the procedures set out in articles 10, 71 and 72.
6 – When, in the exercise of its powers, the NRA defines the location of network termination points, it shall take into account BEREC guidelines on common approaches to identify the network termination point in different network topologies, if any.
Article 82
Conditions for access and interconnection
1 – The terms and conditions for the provision of access and interconnection by operators shall comply with the obligations imposed in this regard by the NRA, in accordance with the rules laid down in this law.
2 – Operators have a right and, when requested by others in exercising their right under point a) of paragraph 2 of article 20, an obligation to negotiate interconnection with each other for the purpose of providing publicly available electronic communications services, in order to ensure provision and interoperability of services.
Article 83
Confidentiality
1 – Undertakings shall respect the confidentiality of information received, transmitted or stored before, during or after the process of negotiating and concluding access or interconnection agreements, and use it only for the purposes for which it was supplied.
2 –Undertakings shall not pass on the received information to any other party, in particular other departments, subsidiaries or partners, for whom such information could provide a competitive advantage.
3 – The preceding paragraphs shall not affect the exercise of the supervisory and monitoring powers of the NRA, in particular with regard to information required under article 108.
SECTION II
Obligations applicable to undertakings with significant market power
Article 84
Imposition, maintenance, amendment or withdrawal of obligations
1 – It is the responsibility of the NRA, subject to the consultation procedures set out in articles 10 and 71, to determine whether to impose, maintain, amend or withdraw the following obligations regarding access or interconnection on undertakings designated as having significant market power:
a) Transparency obligation in the publication of information, including reference offers, pursuant to articles 85 and 86;
b) Obligation of non-discrimination in the provision of access and interconnection and related information, in accordance with article 87;
c) Obligation of accounting separation for specific activities related to access and/or interconnection under article 88;
d) Obligation to meet reasonable requests for access to and use of infrastructure under article 89;
e) Obligation to meet reasonable requests for access to specific network elements and associated facilities, in accordance with articles 90 and 91;
f) Price control and cost accounting obligations under articles 92 to 94;
g) Obligations relating to the offer of co-investment commitments in new network elements of very high capacity networks under article 97;
h) Obligations of functional separation and voluntary separation of a vertically integrated undertaking under articles 98 and 99;
i) Obligations concerning commitments relating to access conditions and/or co-investment under article 100;
j) Obligations imposed on wholesalers only, pursuant to article 101.
2 – For the purposes of the preceding paragraph, the NRA shall impose obligations:
a) Suitable to the nature of the problem identified as part of the respective market analysis and, where appropriate, taking into account the identification of transnational demand under article 77;
b) Proportional, choosing the least intrusive way of solving the problems identified in the respective market analysis, carrying out a cost-benefit analysis, weighing the different competitive conditions existing in the various geographic areas, taking into account, namely, the results of the geographic survey conducted pursuant to article 173; and
c) Justified in the light of the general objectives set out in article 5.
3 – Obligations under paragraph 1 may only be imposed on undertakings designated as having significant market power, without prejudice to:
a) Obligations that may be imposed on undertakings irrespective of whether or not they hold significant market power, in accordance with articles 80 and 103 to 108;
b) Articles 25, 26 and 29, point g) of paragraph 3 of article 39 and articles 53, 140 and 141, as well as the relevant provisions of Law No 41/2004, of 18 August, which transposes into national law Directive 2002/58/EC of the European Parliament and of the Council, of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector, which contains obligations on undertakings providing publicly available electronic communications networks and services;
c) The need to meet international commitments.
4 – With regard to the need to respect international commitments referred to in point c) of the previous paragraph, the NRA shall notify the European Commission of decisions to impose, modify or withdraw obligations imposed on undertakings, in accordance with the procedure provided for in article 71.
5 – Exceptionally and where appropriate, the NRA may impose on undertakings designated as having significant market power obligations for access and interconnection other than those set out in paragraph 1, subject to prior authorisation by the European Commission, in accordance with the EECC, for which purpose the NRA shall submit a request to the Commission in advance.
6 – The NRA shall monitor market developments and assess the impact of new developments, in particular the conclusion of commercial agreements, including co-investment agreements, which influence the competitive dynamics of the market concerned.
7 – Where the NRA concludes that the new developments are not of such significance as to require a new market analysis, it shall assess, without delay, whether it is necessary to review the obligations imposed on undertakings designated as having significant market power and, if appropriate, amend any decision previously adopted, following the procedures in articles 10 and 71, in particular by removing or imposing new obligations, in order to ensure that the obligations imposed continue to meet the requirements set out in paragraph 2.
Article 85
Obligation of transparency
1 – The obligation of transparency consists of the requirement to publish, in an appropriate form, certain information regarding the undertaking’s provision of access or interconnection, in particular accounting information, prices, technical specifications, network characteristics and their expected evolution, as well as terms and conditions of supply and use, including any conditions changing access to or use of services and applications, in particular regarding migration from legacy infrastructure, in so far as permitted by applicable law or regulation.
2 – For the purposes of the preceding paragraph, the NRA may define the information to be published, as well as the form and manner of its publication.
Article 86
Reference offers
1 - Where an undertaking is subject to non-discrimination obligations, the NRA may order the publication of a reference offer, which shall:
a) Be sufficiently unbundled to ensure that undertakings are not required to pay for facilities which are not necessary for the service requested;
b) Contain a description of the relevant offerings broken down into components according to market needs;
c) Provide a description of the associated terms and conditions, including pricing.
2 – For the purposes of the preceding paragraph, the NRA may determine the minimum elements that must be included in the reference offer, specifying the information to be made available, the level of detail required and the manner of publication.
3 – Without prejudice to the previous paragraph, where obligations are imposed on an undertaking under articles 89 to 91, the NRA shall determine the publication of a reference offer, taking into account BEREC’s guidelines on minimum criteria for a reference offer, ensuring that the main performance indicators are specified, where relevant, as well as the corresponding quality of service levels and the respective penalties to be applied in the event of non-compliance with those levels, and shall monitor and verify compliance therewith.
4 – The NRA may also determine:
a) Changes to published reference offers, at any time and, if necessary, with retroactive effect, in order to give effect to obligations imposed in accordance with article 84;
b) The immediate inclusion of imposed amendments in concluded agreements, provided that they are of a certain and sufficient content.
Article 87
Obligation of non-discrimination
1 – The obligation of non-discrimination as regards access and interconnection ensures in particular that the undertaking subject to it applies equivalent conditions and provides services and information, in equivalent circumstances, to other undertakings offering equivalent services, under the same conditions and of the same quality as those services and information offered to its own departments or to those of its subsidiaries or partners.
2 – For the purposes of the previous paragraph, the NRA may require the undertaking to provide access products and services to all undertakings, including itself, in accordance with the same timescales, terms and conditions, in particular those relating to price and service levels, and by means of the same systems and processes, in order to ensure equivalence of access.
Article 88
Obligation of accounting separation
1 – The obligation of accounting separation in relation to specific activities related to access or interconnection requires, in particular, vertically integrated undertakings to set out their wholesale prices and their internal transfer prices in a transparent manner, with the aim of ensuring compliance with the obligation for non-discrimination or, where necessary, to prevent unfair cross-subsidy.
2 – For the purposes of the preceding paragraph, the NRA may specify the format and accounting methodology to be used.
3 – Undertakings are required to make available to the NRA, upon request, their accounting records, including data on revenues received from third parties, for the purpose of verifying compliance with obligations of transparency and non-discrimination.
4 – The NRA may publish the information made available to it under the preceding paragraph insofar as it contributes to an open and competitive market, while respecting national and European Union law on the safeguarding of confidential information, in particular business secrets or the internal life of undertakings.
Article 89
Access to infrastructure
1 – An NRA may impose an obligation on undertakings to meet reasonable requests for access to and use of infrastructure supporting or housing electronic communications networks, including buildings or entries to buildings, antennae, towers, masts, poles and other supporting structures, ducts, conduits, inspection chambers, manholes, and cabinets, in cases where the NRA, considering the market analysis, concludes that refusal of access, or the setting of unreasonable terms and conditions having an equivalent effect to refusal, would hinder the emergence of a sustainable competitive market and would not be in the end-user’s interest.
2 – The obligation set out in the previous paragraph may be imposed regardless of whether the infrastructure affected by it are part of the relevant market in accordance with the market analysis, provided that its imposition is necessary and proportionate to meet the general objectives set out in article 5, and shall be considered before assessing the need to impose other specific obligations.
3 – The provisions of this article shall be without prejudice to the application of Decree-Law No 123/2009, of 21 May.
Article 90
Obligations of access to, and use of, specific network elements and associated facilities
1 – The NRA may impose obligations on undertakings to meet reasonable requests for access to, and use of, specific network elements and associated facilities, in situations where the denial of access or unreasonable terms and conditions having a similar effect would hinder the emergence of a sustainable competitive market at the retail level, and would not be in the end-user’s interest.
2 - In the exercise of the powers referred to in the preceding paragraph, the NRA may impose the following obligations on undertakings:
a) To give third parties access to, and use of, specific physical network elements and associated facilities, as appropriate, including unbundled access to the local loop;
b) To give third parties access to specific active or virtual network elements and services;
c) Not to withdraw access to facilities already granted;
d) To interconnect networks or network facilities;
e) To provide co-location or other forms of associated facilities sharing;
f) To provide specific services needed to ensure interoperability of end-to-end services to users, or roaming on mobile networks;
g) To grant open access to technical interfaces, protocols or other key technologies that are indispensable for the interoperability of services or virtual network services;
h) To provide specific services on a wholesale basis for resale by third parties;
i) To provide access to operational support systems or similar software systems necessary to ensure fair competition in the provision of services;
j) To provide access to associated services such as identity, location and presence service;
k) To negotiate in good faith with undertakings requesting access.
3 – The imposition of the obligations set out in the preceding paragraph may be accompanied by the NRA’s provision of conditions of fairness, reasonableness and timeliness in the respective fulfilment.
4 – When the NRA considers whether it is appropriate to impose any of the specific obligations set out in paragraphs 1 and 2, and in particular when assessing, in accordance with the principle of proportionality, whether and how such obligations should be imposed, it shall analyse whether there are other forms of wholesale access, in the same or a related wholesale market, which are sufficient to address the problem identified, taking into account the interest of end-users.
5 - In the assessment referred to in the previous paragraph, the NRA shall include:
a) Commercial access offers;
b) Regulated access obligations, under articles 81 and 103 to 105;
c) Other situations of regulated wholesale access or that the NRA considers regulating, under this article.
6 - In deciding whether to impose obligations under paragraph 1, the NRA shall take particular account of the following factors:
a) The technical and economic viability of using or installing competing facilities, in light of the rate of market development, taking into account the nature and type of interconnection or access involved, including the viability of other upstream access products, such as access to infrastructure, namely to ducts and poles;
b) The expected technological evolution affecting network design, deployment and management;
c) The need to ensure technology neutrality enabling the parties to design and manage their own networks;
d) The feasibility of providing the access offered, in relation to the capacity available;
e) The initial investment by the facility owner, taking account of any public investment made and the risks involved in making the investment, with particular regard to investments in, and risk levels associated with, very high capacity networks;
f) The need to safeguard competition in the long term, with particular attention to economically efficient infrastructure-based competition and innovative business models that support sustainable competition, such as those based on co-investment in networks;
g) Any relevant intellectual property rights, where appropriate;
h) The provision of pan-European services.
7 – Where the NRA considers imposing obligations under article 89 or this article, it shall assess whether the imposition of obligations under article 89 alone would be a proportionate means of promoting competition and end-user interests.
Article 91
Technical and operational conditions
1 – Where required to ensure normal operation of the network, when imposing the obligations provided for in article 90, the NRA may lay down technical or operational conditions applicable to the provider or beneficiary of access.
2 – Where the conditions imposed in accordance with the previous paragraph refer to the application of specific technical standards or specifications, they shall comply in terms of standardisation with article 30.
Article 92
Price control and cost accounting obligations
1 – Where a market analysis reveals a lack of effective competition that allows an undertaking to sustain prices at an excessively high level or to apply a price squeeze between retail and wholesale prices for interconnection or access that it charges to its competitors to the detriment of end-users, the NRA may impose obligations on that undertaking relating to cost recovery and price control, including obligations for cost orientation of prices and obligations to adopt cost accounting systems, in the provision of specific types of interconnection or access.
2 - When determining whether price control obligations are appropriate, an NRA shall take into account:
a) The need to promote competition and the long-term interests of end-users related to the deployment and use of new generation networks, in particular very high capacity networks;
b) The investment made by the undertaking, in particular to encourage investment in new generation networks.
3 - Where the NRA considers it appropriate to impose obligations under paragraph 1, it shall:
a) Allow a reasonable rate of return on capital employed, including appropriate labour and construction costs, reflecting all risks inherent in specific investment projects in new access networks;
b) Ensure that cost recovery mechanisms or pricing methodologies are appropriate under the circumstances, taking into account the need to promote efficiency, sustainable competition and the deployment of new very high capacity networks, ultimately maximising end-user benefits.
4 – For the purposes of point b) of the preceding paragraph, the NRA may take into account prices available in comparable competitive markets.
5 – Where the NRA considers it appropriate to impose the obligations in paragraph 1 in relation to access to existing network elements, it shall also take into account the benefits resulting from predictable and stable wholesale prices to ensure efficient market entry and sufficient incentives for all undertakings to deploy new and enhanced networks.
6 – The NRA shall consider not maintaining obligations imposed or not imposing obligations under this article, including setting regulated prices for wholesale access to next-generation networks, where it determines that there is a verifiable retail price pressure resulting from infrastructure competition and/or anchor prices derived from other regulated access products and that any obligations imposed under articles 85 to 91, including in particular any economic replicability test imposed under article 87, ensure effective and non-discriminatory access.
7 – The provision of the previous paragraph shall be without prejudice to the identification by the NRA of other circumstances in which it would not be appropriate to impose regulated prices for certain types of wholesale access, in particular where there is a low population density which reduces the incentive to deploy very high capacity networks.
Article 93
Demonstration of cost-orientation of prices
1 – Undertakings subject to the obligation of cost-orientation of prices shall demonstrate that prices are cost-oriented, including a reasonable rate of return on the investments made.
2 – The NRA may demand that undertakings provide full justification for their prices and, where appropriate, may require them to adjust their prices.
3 – The NRA may use accounting methods independent of those adopted by undertakings for the purpose of calculating the cost of efficient provision of services.
Article 94
Verification of cost accounting systems
1 – It shall be incumbent upon a qualified independent body to carry out an annual audit of the cost accounting system for price control, in order to verify its compliance, and to issue and publish a statement thereon.
2 – It shall be incumbent upon the NRA to make available a description of the cost-accounting systems referred to in the preceding paragraph, showing at least the main categories under which costs are grouped and the rules used for the allocation of costs.
Article 95
Termination prices
1 – Where the European Commission, under the European Union voice call termination rate review procedure, provided for in article 75 of the EECC, decides not to impose a maximum price for voice call termination on mobile networks or a maximum price for voice call termination on fixed networks, or neither, the NRA may analyse the voice call termination markets under article 74 to determine whether the imposition of the price control obligation is required.
2 – Where the NRA finds, as part of the market analyses referred to in the preceding paragraph, that it is appropriate to impose cost-oriented termination prices in a relevant market, it shall observe the following principles, criteria and parameters:
a) Prices shall be based on the recovery of costs incurred by an efficient operator;
b) The relevant incremental costs of the wholesale voice termination service shall be determined by the difference between the total long-run costs of an operator providing its full range of services and the total long-run costs of that operator not providing a wholesale voice termination service to third parties;
c) Only those traffic-related costs which would be avoided in the absence of a wholesale voice termination service being provided shall be allocated to the relevant incremental cost of the wholesale voice termination service;
d) Costs related to additional network capacity shall be included only to the extent that they are driven by the need to increase capacity for the purpose of carrying additional wholesale voice termination traffic;
e) Radio spectrum fees shall be excluded from the relevant incremental cost of the wholesale mobile voice termination service;
f) Only wholesale commercial costs which are directly related to the provision of the wholesale voice termination service to third parties shall be included;
g) All fixed network operators shall be considered to provide voice termination services at the same unit costs as the efficient operator, regardless of the size of the undertaking;
h) For mobile network operators, the minimum efficient scale shall be set at a market share not below 20%;
i) The relevant approach for asset depreciation shall be economic depreciation; and
j) The technology choice of the modelled networks shall be forward looking, based on an IP core network, taking into account the various technologies likely to be used over the period of validity of the maximum rate, and, in the case of fixed networks, calls shall be considered to be exclusively packet switched.
3 – For the purposes of point a) of the preceding paragraph, the evaluation of efficient costs shall be based on current cost values; the cost methodology to calculate efficient costs shall be based on a bottom-up modelling approach using long-run incremental traffic-related costs of providing the wholesale voice termination service to third parties.
4 – The NRA shall be responsible for supervising and ensuring compliance by providers of voice call termination services with the voice termination rates set at European Union level.
5 – Without prejudice to other applicable sanction mechanisms, where the NRA finds that an undertaking is not respecting the voice call termination rates set by the European Commission in accordance with article 75 of the EECC, it may, at any time, require the undertaking to correct the prices it charges to other undertakings, following the procedure set out in article 181.
6 – The NRA shall submit an annual report to the European Commission and BEREC on the implementation of the scheme provided for in this article.
Article 96
Regulation of new very high capacity network elements
1 – An undertaking designated as having significant market power on one or more relevant markets may propose commitments to the NRA, in accordance with the procedure laid down in article 100, to open to co-investment on the part of other undertakings the deployment of a new very high capacity network that consists of fibre-optic elements up to end-users’ premises or to the base station, in particular by offering co-ownership or long-term risk-sharing, through co-financing or purchase agreements giving rise to specific structural rights in favour of other undertakings providing electronic communications networks or services.
2 – In assessing the commitments referred to in the preceding paragraph, the NRA shall verify, in particular, whether the proposed co-investment, cumulatively:
a) Is open to any undertaking providing electronic communications networks or services at any time over the entire lifetime of the network;
b) Allows other co-investors which are undertakings providing electronic communications networks or services, to compete effectively and sustainably in the long term in downstream markets in which the undertaking designated as having significant market power is active, under conditions including:
i) Fair, reasonable, transparent and non-discriminatory circumstances allowing access to full capacity of the network to the extent that it is subject to co-investment;
ii) Flexibility in terms of the value and timing of participation of each co-investor;
iii) The possibility to increase this participation in the future;
iv) The allocation of reciprocal rights by co-investors after the deployment of the co-invested infrastructure;
c) Is made public at least six months before the start of the deployment of the new network, and this period may be extended based on national circumstances, or in a timely manner if the undertaking presents the characteristics listed in paragraph 1 of article 100;
d) Ensures that access seekers not participating in the co-investment can benefit from the outset from the same conditions, quality, speed and end-user reach, as were available before the deployment of the new network elements, accompanied by an adaptation mechanism over time, confirmed by the NRA, that adjusts to developments in related retail markets and maintains incentives to participate in the co-investment;
e) Meets at least the criteria set out in the following article and is made in good faith.
3 – The mechanism provided for in point d) of the preceding paragraph shall ensure that access seekers have access to the very high capacity elements of the network at a time, and on the basis of transparent and non-discriminatory terms, which reflect appropriately the degrees of risk incurred by the respective co-investors at different stages of the deployment and take into account the competitive situation in retail markets.
4 – Where the NRA, taking into account the results of the market test conducted in accordance with paragraphs 4 to 8 of article 100, concludes that the co-investment commitment offered complies with the conditions set out in the preceding paragraphs of this article, it shall make that commitment binding, pursuant to article 100, and shall not impose any additional obligations as regards the elements of the new very high capacity network that are subject to the commitment, if at least one potential co-investor has entered into a co-investment agreement with the undertaking designated as having significant market power.
5 – The preceding paragraph shall be without prejudice to the regulatory treatment, on the part of the NRA, of situations that do not comply with the conditions set out in paragraphs 2 and 3, taking into account the results of the market test conducted in accordance with paragraphs 4 to 8 of article 100, insofar as they have an impact on competition and are taken into account for the purposes of articles 74 and 84.
6 – The NRA may, in duly justified circumstances, derogate from the scheme set out in paragraph 4 and impose, maintain or amend specific obligations, in accordance with articles 84 to 94, as regards new very high capacity networks, in order to address significant competition problems on specific markets, where it establishes that, given the specific characteristics of these markets, those competition problems would not otherwise be addressed.
7 – The NRA shall monitor compliance with the conditions set out in paragraphs 2 and 3 and may require undertakings designated as having significant market power to submit an annual compliance statement.
8 – This article shall be without prejudice to the power of the NRA to take decisions pursuant to article 11 in the event of a dispute arising between undertakings in connection with a co-investment agreement considered by it to comply with the conditions set out in paragraphs 2 and 3.
Article 97
Criteria for assessing co-investment offers
1 – When assessing a co-investment offer pursuant to article 96, the NRA shall verify whether such offer:
a) Is open to any undertaking over the lifetime of the network built under a co-investment offer on a non-discriminatory basis, the undertaking designated as having significant market power being entitled to include in the offer reasonable conditions regarding the financial capacity of any potential co-investor, namely, that it:
i) Demonstrates its ability to deliver phased payments on the basis of which the deployment is planned;
ii) Accepts a strategic plan on the basis of which medium-term deployment plans are prepared;
b) Is transparent, and for this purpose:
i) The offer shall be available and easily identified on the website of the undertaking designated as having significant market power;
ii) The offer shall be made available without undue delay to any potential co-investor that has expressed an interest, with full detailed terms, including the legal form of the co-investment agreement and, when relevant, the heads of term of the governance rules of the co-investment vehicle;
iii) The process, like the road map for the establishment and development of the co-investment project, shall be set in advance, and shall be clearly explained in writing to any potential co-investor, and all significant milestones shall be clearly communicated to all undertakings without any discrimination;
c) Includes terms to potential co-investors which favour sustainable competition in the long term, in particular:
i) The terms and conditions for participation in the co-investment agreement shall be fair, reasonable and non-discriminatory, according to the time at which co-investors join, including in terms of the financial consideration required for the acquisition of specific rights, the protection granted to co-investors by virtue of such specific rights during both the building phase and during the exploitation phase, for example by allocating indefeasible rights of use for the lifetime of the co-invested network, and the conditions for joining and potentially cancelling the co-investment agreement;
ii) The offer shall allow flexibility in terms of the value and timing of the commitment provided by each co-investor, for example by means of an agreed and potentially increasing percentage of the total end-user lines in a given area, to which co-investors have the possibility to commit gradually and which is set at a unit level, enabling smaller co-investors with limited resources to enter the co-investment at a reasonably minimum scale and to gradually increase their participation while ensuring adequate levels of initial commitment;
iii) The determination of the financial consideration to be provided by each co-investor shall reflect the fact that early investors accept greater risks and engage capital sooner;
iv) A premium increasing over time shall be considered to be justified for commitments made at later stages and for new co-investors entering the co-investment agreement after the commencement of the project, to reflect diminishing risks and to counteract any incentive to withhold capital in the earlier stages;
v) The co-investment agreement shall allow the allocation of acquired rights by co-investors to other co-investors, or to third parties willing to enter into the co-investment agreement, subject to the transferee undertaking being obliged to fulfil all original obligations of the transferor under the co-investment agreement;
vi) Co-investors shall grant each other reciprocal rights of access, on fair and reasonable terms, to the co-invested infrastructure for the purposes of providing services downstream, including to end-users, in accordance with conditions which are to be made transparent in the co-investment offer and subsequent agreement, in particular where co-investors are individually and separately responsible for the deployment of specific parts of the network;
vii) Where a co-investment vehicle is created, it shall provide access to the network to all co-investors, whether directly or indirectly, on the basis of an equivalence of inputs and in accordance with fair and reasonable terms and conditions, including financial conditions that reflect the different levels of risk accepted by the individual co-investors;
d) Ensures a sustainable investment likely to meet future needs, by deploying new network elements that contribute significantly to the deployment of very high capacity networks.
2 – For the purposes of subpoint i) of point c) of the preceding paragraph, the application of non-discriminatory conditions does not imply that all potential co-investors are offered exactly the same conditions, including financial ones, but that any differences between the conditions offered are justified on the basis of the same predictable, objective, transparent and non-discriminatory criteria, such as the number of end-users covered by the network on which the commitment is based.
3 – The NRA may take into account the application of additional criteria to the extent that they are necessary to ensure accessibility for potential co-investors, depending on specific local conditions and market structure.
Article 98
Functional separation
1 – Where the NRA concludes that obligations imposed under articles 85 to 94 have failed to achieve effective competition in retail markets and that there are persisting competition problems or relevant market failures identified in relation to the wholesale provision of certain access product markets, it may impose an obligation on vertically integrated undertakings, on an exceptional basis, in accordance with paragraph 5 of article 84, to place activities related to the wholesale provision of relevant access products in a business entity operating independently.
2 – The business entity operating independently referred to in the preceding paragraph shall supply access products and services to all undertakings, including to other business entities within the parent undertaking, on the same timescales, terms and conditions, including those relating to price and service levels, and by means of the same systems and processes.
3 – Where the NRA intends to impose an obligation of functional separation, it shall submit a request to the Commission that includes:
a) Evidence justifying the conclusions of the NRA as referred to in paragraph 1;
b) A reasoned assessment concluding that there is no or little prospect of effective and sustainable infrastructure-based competition within a reasonable time-frame;
c) An analysis of the expected impact on the NRA, on the undertaking, in particular on the workforce of the separated undertaking, and on the electronic communications sector as a whole, and on incentives to invest therein, in particular with regard to the need to ensure social and territorial cohesion, and on other stakeholders including, in particular, the expected impact on competition and any potential resulting effects on consumers;
d) An analysis of the reasons justifying that this obligation would be the most efficient means to enforce remedies aimed at addressing the competition problems or the markets failures identified.
4 – Together with the request referred to in the previous paragraph, the NRA shall submit to the European Commission the draft decision it intends to adopt, which shall include the following elements:
a) The precise nature and level of separation, specifying in particular the legal status of the operationally independent business entity;
b) An identification of the assets of the separate business entity, and the products or services to be supplied by that entity;
c) The governance arrangements to ensure the independence of the staff employed by the separate business entity, and the corresponding incentive structure;
d) Rules for ensuring compliance with obligations;
e) Rules for ensuring transparency of operational procedures, in particular towards other stakeholders;
f) A monitoring programme to ensure compliance with the measure to be imposed, including the publication of an annual report.
5 – Following the European Commission’s decision referred to in paragraph 5 of article 84, the NRA shall conduct a coordinated analysis of the different markets related to the access network in accordance with the procedure set out in article 74, on the basis of which it shall impose, maintain, amend or withdraw obligations, in accordance with the procedures set out in articles 10 and 71.
6 – For the purposes of the previous paragraph, an undertaking on which functional separation is imposed may be subject to any of the obligations provided for in articles 85 to 94 in any specific market where it has been designated as having significant market power in accordance with article 73, or any other obligations authorised by the European Commission in accordance with the decision referred to in paragraph 5 of article 84.
Article 99
Voluntary functional separation
1 – Vertically integrated undertakings which have been designated as having significant market power in one or several relevant markets in accordance with article 74 shall inform the NRA at least three months before any intended transfer of their local access network assets or a substantial part thereof to a separate legal entity under different ownership, or establishment of a separate business entity in order to provide all retail providers, including its own retail divisions, with fully equivalent access products.
2 –Undertakings referred to in the preceding paragraph shall also inform the NRA of any change of the notified intent, as well as the final outcome of the process of separation.
3 – Undertakings referred to in the preceding paragraphs may also offer commitments regarding access conditions that are to apply to their network during an implementation period after the proposed form of separation is implemented, with a view to ensuring effective and non-discriminatory access by third parties.
4 – Commitments referred to in the preceding paragraph shall include sufficient details, including in terms of timing of implementation and duration, in order to allow the NRA to conduct its tasks in accordance with paragraph 6.
5 – Commitments referred to in the preceding paragraphs may extend beyond the maximum period for market reviews set out in article 75.
6 – The NRA shall assess the effect of the intended transaction, together with the commitments offered, where applicable, on specific obligations imposed under this law.
7 – For the purposes of the preceding paragraph, the NRA shall analyse the various markets related to the access network, in accordance with the procedure set out in article 74, considering the commitments proposed by the undertaking, bearing in mind the general objectives set out in article 5, and shall conduct the public consultation procedure set out in article 10, paying particular attention to third parties directly affected by the intended transaction.
8 - Based on the assessment carried out under the preceding paragraph, the NRA may:
a) Impose, maintain, amend or withdraw obligations, in accordance with articles 10 and 71, applying, as appropriate, article 100;
b) Make the proposed commitments binding in whole or in part, for the whole period for which they are offered, in derogation from the regime laid down in article 75.
9 – Without prejudice to article 100, a separate entity which has been designated as having significant market power on any relevant market in accordance with article 74 may be subject, where appropriate, to any of the obligations provided for in articles 85 to 94, or any other obligations authorised by the European Commission pursuant to the decision referred to in paragraph 5 of article 84, where the commitments offered are insufficient to meet the general objectives set out in article 4.
10 – The NRA shall be responsible for supervising the implementation of commitments offered by undertakings, which it has made binding pursuant to point b) of paragraph 8 of this article, and for deciding whether to extend them when the period for which they were initially offered expires.
Article 100
Commitments procedure
1 – Undertakings designated as having with significant market power may propose to the NRA to offer commitments on access conditions, co-investment, or both, to be applied to their networks, concerning in particular:
a) Cooperative arrangements relevant to the assessment of appropriate and proportionate obligations pursuant to article 84;
b) Co-investment in very high capacity networks pursuant to article 96; or
c) Effective and non-discriminatory access by third parties pursuant to article 99, both during an implementation period of voluntary separation by a vertically integrated undertaking and after the proposed form of separation is implemented.
2 – The proposal for commitments shall be sufficiently detailed, in particular with regard to the timetable and scope of its application, as well as its duration, to allow the NRA to carry out its assessment under the terms of this article.
3 – The time limit provided for in the previous paragraph may extend beyond the time limits for carrying out the market analysis provided for in the article 74.
4 – The NRA shall carry out a market test, focusing in particular on the conditions offered, with a view to assessing the commitments offered in accordance with paragraphs 1 and 2, except where the commitments clearly fail to meet one or more of the relevant applicable conditions or criteria.
5 – In relation to the commitments proposed under this article, the NRA, in assessing the obligations under article 84, shall take particular account of the:
a) Evidence regarding the fair and reasonable character of the commitments offered;
b) The openness of the commitments to all market participants;
c) The timely availability of access under fair, reasonable and non-discriminatory conditions, including to very high capacity networks, before the launch of related retail services; and
d) The overall adequacy of the commitments offered to enable sustainable competition on downstream markets and to facilitate cooperative deployment and take-up of very high capacity networks in the interest of end-users.
6 – For the purposes of the assessment referred to in the preceding paragraphs, the NRA shall conduct a public consultation under article 10, in the context of which interested parties may comment on the conformity of commitments with conditions set out in articles 84, 96 and 99, as applicable, and may propose amendments.
7 – Taking into account the contributions received in the framework of the public consultation provided for in the preceding paragraph, the NRA shall notify the undertaking designated as having significant market power:
a) Its preliminary conclusions as to whether the commitments offered comply with the objectives, criteria and procedures set out in this article and, as applicable, in articles 84, 96 or 99;
b) The conditions under which it may consider making the commitments binding.
8 – Following the notification provided for in the preceding paragraph, the undertaking may revise its proposal for commitments to bring it into conformity with the preliminary conclusions of the NRA, the criteria set out in this article and articles 84, 96 or 99, as the case may be.
9 – Without prejudice to paragraph 4 of article 95, the NRA may adopt a decision making commitments binding in whole or in part.
10 – By way of derogation from article 74, the NRA may make some or all commitments binding for a specific period, which may be the entire period for which they are offered.
11 – When the decision referred to in the preceding paragraph concerns co-investment commitments made binding under the terms of paragraph 4 of article 95, the NRA shall make them binding for a minimum period of seven years.
12 – Without prejudice to article 96, this article shall be without prejudice to the application of the market analysis procedure laid down in article 74 or to the imposition of obligations under article 84.
13 – Where the NRA decides that the proposed commitments are binding, it shall assess, in accordance with article 84, the consequences of that decision for market development and the appropriateness of any specific obligation which it has imposed or which, in the absence of such commitments, it would consider imposing under that article or articles 85 to 94.
14 – In the situations referred to in the previous paragraph, the NRA, when notifying the draft measure in question, pursuant to article 84 and in accordance with article 71, shall accompany the notified draft measure with the commitments decision.
15 - It shall be incumbent on the NRA to:
a) Monitor, supervise and ensure compliance with commitments it has made binding under this article;
b) Consider the extension of the period for which they have been made binding when the initial period expires;
c) Consider the reassessment of obligations imposed under paragraphs 6 and 7 of article 84.
16 – Without prejudice to the administrative procedure for failure to fulfil an obligation under article 181, where applicable, the NRA may reassess the obligations imposed under paragraphs 6 and 7 of article 84.
Article 101
Wholesale-only undertakings
1 – Where the NRA designates an undertaking not present on any retail markets for electronic communications services as having significant market power on one or more wholesale markets under article 74, it shall verify that the undertaking has the following characteristics:
a) All undertakings and business units within the undertaking, all undertakings that are controlled but not necessarily wholly owned by the same ultimate owner, and any shareholder capable of exercising control over the undertaking, only have activities, current and planned for the future, in wholesale markets for electronic communications services and therefore do not have activities in any retail market for electronic communications services provided to end-users in the European Union;
b) The undertaking is not bound to deal with a single and separate undertaking operating downstream that is active in any retail market for electronic communications services provided to end-users, because of an exclusive agreement, or an agreement that is equivalent to an exclusive agreement.
2 – Where the NRA concludes that the wholesale-only undertaking designated as having significant market power satisfies the conditions set out in the previous paragraph and the market analysis carried out, including a prospective assessment of the likely behaviour of that undertaking, so justifies, it may only impose obligations:
a) Provided for in articles 87, 90 and 91; or
b) On fair, equitable and reasonable pricing.
3 - It shall be incumbent on the NRA to review the obligations imposed under this article where:
a) At any time, it concludes that the undertaking to which the obligations apply no longer fulfils the conditions laid down in paragraph 1, in which case it shall, as appropriate, apply articles 74 to 94;
b) On the basis of an analysis of the terms and conditions offered by the undertaking to its downstream customers, it concludes that competition problems have arisen or may arise to the detriment of end-users, in which case it shall impose one or more of the obligations under articles 85, 86, 88, 89 or 92 to 94 or amend the obligations imposed pursuant to the preceding paragraph.
4 – Undertakings shall inform the NRA without undue delay of any change relevant to the application of points a) and b) of paragraph 1.
5 – The procedures provided for in articles 10, 70 and 71 shall apply to the imposition of obligations and to their review under this article.
Article 102
Migration from legacy infrastructure
1 – Undertakings which have been designated as having significant market power in one or several relevant markets shall notify the NRA in advance and in a timely manner when they plan to decommission or replace with a new infrastructure parts of the network, including legacy infrastructure necessary to operate a copper network, which are subject to obligations pursuant to articles 84 to 100.
2 – The NRA shall ensure that the decommissioning or replacement process includes a transparent timetable and conditions, including an appropriate notice period for transition and migration, and establishes the availability of alternative products of at least comparable quality providing access to the upgraded network infrastructure, if necessary to safeguard competition and the rights of end-users.
3 – In compliance with procedures provided for in articles 10, 71 and 72, the NRA may withdraw obligations imposed on infrastructures which are proposed for decommissioning or replacement, after having ascertained that the access provider:
a) Has established the appropriate conditions for migration, under the preceding paragraph, including making available an alternative access product of at least comparable quality as was available using the legacy infrastructure, enabling access seekers to reach the same end-users;
b) Has complied with the conditions and process notified to the NRA in accordance with this article.
4 – The scheme provided for in this article shall be without prejudice to the availability of regulated products imposed by the NRA, on the upgraded network infrastructure, in accordance with the procedures set out in articles 74 and 84.
SECTION III
Obligations applying to undertakings regardless of whether they have significant market power
Article 103
Imposition of access and interconnection obligations
1 – It shall be incumbent on the NRA to impose obligations of access and interconnection on any undertaking, whether or not it has significant market power, as follows:
a) On undertakings subject to the general authorisation system and controlling access to end-users to the extent necessary to ensure end-to-end connectivity, including, where justified, an obligation to interconnect their networks where they are not already interconnected;
b) On undertakings subject to the general authorisation system and controlling access to end-users, where justified and to the extent necessary to ensure interoperability of their services;
c) On operators, to the extent required to ensure accessibility for end-users to digital television and radio programme services and related complementary services specified by law by the competent authorities, to provide access to APIs and EPGs on fair, reasonable, transparent and non-discriminatory terms;
d) On undertakings providing number-independent interpersonal communications services, that achieve a significant level of coverage and user uptake, to make their services interoperable, in justified cases where end-to-end connectivity between end-users is at risk due to a lack of interoperability between interpersonal communications services and to the extent necessary to ensure end-to-end connectivity between end-users.
2 – Obligations provided for in point d) of the preceding paragraph shall only be imposed:
a) To the extent necessary to ensure interoperability of interpersonal communications services and may include proportionate obligations on providers of those services to publish and allow the use, modification and redistribution of relevant information by the authorities and other providers, or to use and implement standards or specifications listed in article 30 or of any other relevant European or international standards; and
b) Where the Commission, after consulting BEREC and taking utmost account of its opinion, has found an appreciable threat to end-to-end connectivity between end-users throughout the European Union or in at least three Member States and has adopted implementing measures specifying the nature and scope of any obligations that may be imposed, under paragraph 2 of article 61 of the EECC.
Article 104
Obligation to grant access to wiring and cables up to the first distribution point
1 – Without prejudice to obligations arising from Decree-Law No 123/2009 of 21 May, the NRA may, upon reasonable request, impose on operators or owners of wiring and cables and associated facilities, where they are not operators, the obligation to grant access to wiring and cables and associated facilities inside buildings or up to the first distribution point, where that point is located outside the building, where justified on the grounds that replication of such network elements would be economically inefficient or physically impracticable.
2 – The access conditions imposed may include specific rules on access to those network elements and associated facilities and services, transparency and non-discrimination, and on the sharing of access costs, which shall be adjusted where appropriate to take account of risk factors.
3 – Where the NRA concludes, having regard, where applicable, to the obligations resulting from any market analysis, that obligations imposed in accordance with the preceding paragraphs do not sufficiently address high and non-transitory economic or physical barriers to replication which underlie an existing or emerging market situation significantly limiting competitive outcomes for end-users, it may extend the imposition of such access obligations, on fair, reasonable and transparent conditions, beyond the first distribution point, to a point that it determines to be the closest to end-users, capable of hosting a sufficient number of end-user connections to be commercially viable for efficient access seekers.
4 – For the purposes of the previous paragraphs, the NRA shall take into account the guidelines issued by BEREC pursuant to paragraph 3 of article 61 of the EECC.
5 – The NRA, in the scope of paragraph 3, may impose active or virtual access obligations, where justified on technical or economic grounds.
6 – The NRA shall not impose obligations provided for in paragraph 3 where it that concludes that:
a) Operators have the characteristics listed in article 101 and make available, to any undertaking, viable and similar alternative means of reaching end-users by providing access to a very high capacity network, on fair, reasonable, transparent and non-discriminatory conditions; or
b) The imposition of obligations would compromise the economic or financial viability of a new network deployment, in particular by small local projects.
7 – The NRA may extend the exemption provided for in point a) of the preceding paragraph to other operators providing access to very high capacity network on fair, reasonable, transparent and non-discriminatory terms.
8 – Notwithstanding point a) of paragraph 6, the NRA may impose obligations on operators that meet the criteria set out in that provision where the network concerned is publicly funded.
Article 105
Localised roaming obligations
1 – Without prejudice to obligations arising from article 103 and the regime for access to infrastructure suitable for housing electronic communications networks, set out in Decree-Law No 123/2009 of 21 May, the NRA, where access to and sharing of passive infrastructure is not sufficient in itself to ensure the availability, in a given location, of services that depend on the use of the radio frequency spectrum, may impose obligations to share active infrastructure or the obligation to conclude access agreements for localised roaming purposes.
2 – The imposition by the NRA of obligations under the preceding paragraph may only occur when the following conditions are met:
a) Where such obligations are directly required for the local provision of services which depend on the use of the radio spectrum;
b) Provided that no viable alternative similar means of access to end-users are made available to any undertaking on fair, equitable and reasonable terms;
c) Where the possibility of its imposition has been clearly provided for at the time of allocation of rights of use for frequencies; and
d) Where justified on the grounds that, in the area subject to such obligations, the market-driven deployment of infrastructure for the provision of networks or services which rely on the use of radio spectrum is subject to insurmountable economic or physical obstacles and therefore access to networks or services by end-users is severely deficient or absent.
3 - In exercising the powers provided for in this article, the NRA shall take into account:
a) The need to maximise connectivity throughout the European Union, along major transport paths and in specific territorial areas, and to the possibility to significantly increase choice and higher quality of service for end-users;
b) The efficient use of radio spectrum;
c) The technical feasibility of sharing and associated conditions;
d) The state of infrastructure-based as well as service-based competition;
e) Technological innovation;
f) The overriding need to support the incentive of the host to roll out the infrastructure in the first place.
4 – In the event of dispute resolution in the scope of the scheme provided for in this article, the NRA may, in particular, impose on the beneficiary of the sharing or access obligation, the obligation to share radio spectrum with the infrastructure host in the relevant area.
Article 106
Conditional access
All undertakings providing conditional access services which, irrespective of the means of transmission, provide access to digital television and radio programme services, and upon which television and radio operators depend to reach any group of potential viewers or listeners, shall:
a) Offer to all television and radio broadcasters, on fair, reasonable, transparent and non-discriminatory terms compatible with European Union law, technical services enabling digital television and radio programme services to be received by viewers or listeners who are duly authorised by means of decoders managed by conditional access service providers and, in particular, comply with European Union competition law;
b) Keep separate financial accounts regarding their activity as conditional access providers.
Article 107
Industrial property rights
1 – Without prejudice to other applicable law, holders of industrial property rights to conditional access systems and products shall, when licensing consumer equipment manufacturers, do so on fair, reasonable, transparent and non-discriminatory terms.
2 – The licensing referred to in the previous paragraph, in which technical and commercial factors are also considered, shall not be subject to conditions that prohibit, inhibit or discourage the inclusion in the same product of:
a) A common interface allowing connection with conditional access systems other than that of the industrial property right-holder; or
b) Means specific to another conditional access system, provided that the licensee complies with the relevant and reasonable conditions ensuring, as far as he is concerned, the security of transactions of conditional access system operators.
Article 108
Amendment or withdrawal of conditional access obligations
1 – The NRA may carry out a market analysis under the terms of this law with a view to deciding whether the obligations of conditional access provided for in the previous articles should be amended or withdrawn.
2 – Where, as a result of the market analysis, the NRA finds that one or more undertakings do not have significant market power in the relevant market, it may determine, after following the procedures set out in articles 10 and 71, the amendment or withdrawal of conditional access obligations with respect to those undertakings, provided that they do not adversely affect:
a) Accessibility for end-users to radio and television broadcasts and services specified in article 163; and
b) The prospects for effective competition in the markets for retail digital television and radio broadcasting services and for conditional access systems and other associated facilities.
3 – The NRA shall inform in advance any stakeholders who are affected by the amendment or withdrawal of obligations.
4 – The provisions of this article shall be without prejudice to the ability to impose obligations in relation to the presentational aspect of EPGs and similar listing and navigation facilities under the law.
CHAPTER V
Regulatory control in retail markets
Article 109
Controls in retail markets
1 – It shall be incumbent on the NRA to impose on undertakings designated as having significant market power in a given retail market, previously defined and analysed in accordance with article 74, appropriate specific obligations where, cumulatively:
a) It finds that there is no effective competition in this retail market;
b) It considers that imposing the obligations under articles 85 to 94 on related wholesale markets would not result in the achievement of the general regulatory objectives set out in article 5.
2 – The specific obligations referred to in the previous paragraph shall take into account the nature of the problem identified, be proportionate and justified in relation to the general objectives set out in article 5 and may include, inter alia, a requirement that the undertakings identified:
a) Do not charge excessive prices;
b) Do not inhibit market entry or restrict competition by setting predatory prices;
c) Do not show undue preference to specific end-users;
d) Do not unreasonably bundle services.
3 – With specific regard to the prices charged by such undertakings, and in order to protect the interests of end-users and to promote effective competition, the NRA may apply appropriate retail price caps, individual price controls, or measures orienting prices towards costs or prices on comparable markets.
4 – Undertakings subject to price regulation under this article or other relevant retail market control shall implement cost accounting systems adequate to enforce the measures imposed.
5 – The NRA, or another independent entity designated by it, shall carry out an annual audit of the cost accounting system for the purpose of price control, in order to verify its conformity, and shall issue and publish a statement thereof.
TITLE V
User rights, universal service and additional mandatory services
CHAPTER I
End-user rights
SECTION I
General provisions
Article 110
Scope of application of this chapter
1 – With the exception of articles 110 and 111, this chapter shall not apply to micro-enterprises providing number-independent interpersonal communications services unless they also provide other electronic communications services.
2 – The micro-enterprises referred to in the previous paragraph shall inform end-users who intend to enter into a contract with them, prior to the conclusion of the contract, of the exemption from which they benefit under that paragraph, in a clear and prominent manner and on a durable medium.
Article 111
Non-discrimination
Undertakings providing electronic communications networks or services may not apply different requirements or general conditions for access to, or use of, networks or services to end-users on grounds of their nationality, place of residence or place of establishment, except where different treatment is objectively justified, inter alia on the basis of differences in costs and risks.
Article 112
Fundamental rights safeguard
1 – Any measures regarding end-users’ access to, or use of, services and applications through electronic communications networks shall respect the Charter of Fundamental Rights of the European Union, constitutional rights and the general principles of European Union law.
2 – Any measure regarding end-users’ access to, or use of, services and applications through electronic communications networks liable to limit the exercise of the rights or freedoms recognised by the Constitution and by the Charter of Fundamental Rights of the European Union may only be implemented if it is provided for by law and respects the essence of those rights and freedoms, is proportionate and genuinely seeks to achieve general interest objectives recognised by the Constitution and by European Union law or the need to protect the rights and freedoms of others in accordance with paragraph 1 of article 52 of the Charter and general principles of European Union law, including the right to an effective remedy and to a fair trial.
3 – The measures referred to in the previous paragraphs may only be taken with due respect for the principle of presumption of innocence and the right to privacy.
4 – A prior, fair, equitable and impartial procedure shall be guaranteed, including the right of stakeholders to be heard, subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in accordance with the Constitution and the Charter of Fundamental Rights of the European Union.
Article 113
Protection of end-users
1 – Under the terms of this law and depending on the electronic communications services concerned, end-users shall have the following rights:
a) To have equal access to networks and services offered, in accordance with article 111;
b) To have written information about the terms and conditions of access and use of services, in accordance with article 116;
c) To be informed, at least 15 days in advance, of the termination of a given electronic communications service;
d) To have information about the quality of services, in accordance with article 117;
e) To have access to at least one independent comparison tool free of charge, in accordance with article 118;
f) To have access to information of public interest, in accordance with article 119;
g) To receive monthly non-itemised invoices free of charge or, upon request, itemised invoices in accordance with article 122;
h) To have written information on the invoice for the first monthly fee, detailing all the installation costs;
i) To have written information in all monthly invoices, in highlighted form, about the end of the period of loyalty, if any;
j) To have the possibility to selectively block communications, in accordance with article 124;
k) Not to pay for goods or services from third parties, except when previously authorized to do so, in accordance with article 125;
l) To obtain an immediate and proportional reduction in the value of the monthly fee contracted in the event of suspension of services for a period equal to or greater than 24 consecutive hours, without prejudice to compensation for damages caused under the general terms of law;
m) To receive, in a timely manner, all information related to the database of end-users who have not fulfilled their payment obligations, in accordance with article 126;
n) To access contracted services continuously, without interruption or undue suspension, including receiving timely information, in writing, about the suspension of the service provision and the cancellation of the contract, in accordance with articles 127 and 128;
o) To cancel the contract, in accordance with article 138;
p) To unlock terminal equipment, in accordance with article 139;
q) To switch the undertaking that provides Internet access services, in accordance with article 140;
r) To enjoy number portability, in accordance with article 141;
s) To use complaint handling procedures, in accordance with article 143;
t) To have available, whenever the NRA so determines, the additional facilities provided for in paragraphs a) to c) and f) of paragraph 1 of article 146;
u) To have telephone code information available, in accordance with article 53;
v) To access emergency services, in accordance with article 67.
2 – Consumers, as well as, where applicable, micro-enterprises, small enterprises or non-profit organisations, shall enjoy the following rights, under the terms of this law, depending on the electronic communications services in question:
a) To conclude contracts with the specifications and in compliance with the procedures determined in articles 120 and 131 to 133;
b) To access control mechanisms for the use of Internet access services or publicly available interpersonal communications services billed on the basis of time or consumption volumes, in accordance with article 123;
c) To terminate the contract, in accordance with article 136;
d) To cancel the contract without costs in case of any significant continued or frequently recurring discrepancy between the actual performance of services service and the performance indicated in the contract, in accordance with article 130;
e) To seek extrajudicial dispute settlement mechanisms, in accordance with article 144;
f) To have available, whenever the NRA so determines, the additional facilities provided for in paragraphs d) to g) of paragraph 1 of article 146.
Article 114
Bundles of services
1 – Where a bundle of services or a bundle of services and terminal equipment offered to the consumer includes at least an internet access service or a publicly available number-based interpersonal communications service, paragraph 1 of article 116, paragraph 6 of article 120, articles 129 to 138 and article 140 shall apply to all elements of the bundle, including mutatis mutandis those elements not otherwise covered by those provisions.
2 – Where the consumer has, under national or European Union law, a right to cancel any element of the bundle, as referred to in the preceding paragraph, before the end of the loyalty period because of a breach of contract by the undertaking offering the services or the seller, or a failure to supply, that right shall apply to all elements of the bundle.
3 - The subscription to additional services or terminal equipment provided or distributed by the same provider of internet access services or of publicly available number-based interpersonal communications services shall not extend the original duration of the contract to which such services or terminal equipment are added, unless the consumer expressly agrees to such an extension when subscribing to the additional services or terminal equipment.
4 – Paragraphs 1 and 3 shall also apply to end-users that are micro-enterprises, small enterprises, or non-profit organisations, unless such enterprises or organisations have explicitly agreed to waive all or parts of those provisions.
Article 115
Equivalent access and choice for end-users with disabilities
1 – It shall be incumbent on the NRA, after consulting end-users with disabilities, directly or through their representative associations, to specify requirements to be imposed on undertakings providing publicly available electronic communications services to ensure that end-users with disabilities:
a) Have access to electronic communications services, including the related contractual information provided pursuant to article 120 and 123, equivalent to that enjoyed by the majority of end-users; and
b) Benefit from the choice of undertakings and services available to the majority of end-users.
2 – In specifying the requirements referred to in the previous paragraph, the NRA shall ensure compliance with the applicable standards or specifications established in accordance with article 30.
SECTION II
Transparency and information obligations
Article 116
Transparency and publication of information
1 – The NRA shall ensure that, where undertakings providing publicly available internet access services or publicly available interpersonal communications services make the provision of such services subject to terms and conditions, the information referred to in annex I to this law, of which it forms an integral part, is published in a clear, comprehensive, up-to-date and machine-readable form and in a format accessible to end-users with disabilities in accordance with the European Union law harmonising accessibility requirements for products and services by all such undertakings or by the NRA itself, in coordination, where appropriate, with other relevant authorities.
2 – It is incumbent on the NRA to decide what relevant information is to be published by undertakings offering internet access services or publicly available interpersonal communications services and also what information is to be published by the NRA itself, where applicable, so that all end-users can choose the services to be contracted in a duly informed manner, and may, where appropriate, promote self- or co-regulatory measures prior to the imposition of any obligations.
3 – The NRA may specify additional requirements concerning the form of publication of the information referred to in paragraph 1.
4 – The information referred to in paragraph 1 shall also be provided to the NRA at its request prior to its publication.
Article 117
Quality of service related to internet access services and publicly available interpersonal communications services
1 – The NRA, in coordination with other competent authorities, may require providers of internet access services and of publicly available interpersonal communications services to publish comprehensive, comparable, reliable, user-friendly and up-to-date information on:
a) The quality of their services, for end-users, to the extent that they control at least some elements of the network either directly or by virtue of a service level agreement to that effect;
b) The measures taken to ensure end-users with disabilities have access at an equivalent level to that available to other end-users.
2 – The NRA may also require providers of publicly available interpersonal communication services to inform consumers if the quality of the services they provide depends on any external factors, such as control of signal transmission or network connectivity.
3 – Undertakings offering Internet access services or publicly available interpersonal communications services shall also provide the information referred to in the previous paragraphs to the NRA, whenever the latter so requests, prior to the respective publication.
4 – Measures to ensure quality of internet access service shall comply with Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015.
5 – For the purposes of paragraph 1, the NRA, in coordination with other competent authorities, shall specify the quality of service parameters to be measured, the measurement methods to be applied and the content, form and manner of information to be published, including possible quality certification mechanisms, taking into account BEREC guidelines.
6 – Where applicable, the parameters, definitions and measurement methods set out in annex ii to this law, of which it forms an integral part, shall be used.
Article 118
Comparability of offers
1 – The NRA shall ensure, in coordination, where relevant, with other competent authorities, that end-users have access free of charge to at least one independent comparison tool which enables them to compare and evaluate different internet access services and publicly available number-based interpersonal communications services, and, where applicable, publicly available number-independent interpersonal communications services, with regard to:
a) Prices of services provided against recurring or consumption-based direct monetary payments; and
b) The quality of service performance, where minimum quality of service is offered or the undertaking is required to publish such information pursuant to article 117.
2 – The comparison tool referred to in the preceding paragraph 2 shall:
a) Be operationally independent from the providers of such services, thereby ensuring that those providers are given equal treatment in search results;
b) Clearly disclose the owners and operators of the comparison tool;
c) Set out clear and objective criteria on which the comparison is to be based;
d) Use plain and unambiguous language;
e) Provide accurate and up-to-date information and state the time of the last update;
f) Be open to any provider of internet access services or publicly available interpersonal communications services making available the relevant information, and include a broad range of offers covering a significant part of the market and, where the information presented is not a complete overview of the market, a clear statement to that effect, before displaying results;
g) Provide an effective procedure to report incorrect information;
h) Include the possibility of comparing prices and quality of service provision between consumer offers, under terms to be defined by the NRA.
3 – The comparison tools that comply with the requirements set out in the previous paragraph shall be certified by the competent authorities, in coordination, where appropriate, with the NRA, at the request of the entity providing the tool.
4 – Information published by undertakings offering internet access services or publicly available interpersonal communications services under article 116 may be used by third parties free of charge and in open data formats to provide independent comparison tools.
Article 119
Disclosure of information of public interest
1 – Without prejudice to information published in accordance with article 116, the NRA may require undertakings providing Internet access services or publicly available number-based interpersonal communications services, where appropriate, to disseminate free-of-charge information of public interest to existing and new end-users by the means they normally use to communicate with those end-users.
2 – The information of public interest referred to in the previous paragraph shall be provided to undertakings by the public entities responsible for them, in a standardised format to be defined by the NRA, and shall include, in particular:
a) The most common uses of internet access services and publicly available number-based interpersonal communications services to engage in unlawful activities or to disseminate harmful content, in particular where it may prejudice respect for the rights and freedoms of others, including infringements of data protection rights, copyright and related rights, and their legal consequences; and
b) The means of protection against risks to personal security, privacy and personal data when using internet access services and publicly available number-based interpersonal communications services.
Article 120
Information requirements for contracts
1 – Undertakings offering publicly available electronic communications services, with the exception of transmission services used for the provision of machine-to-machine services, shall, prior to the conclusion of a contract, make available to the consumer the information referred to in article 4 of Decree-Law No 24/2014, of 14 February, and article 8 of Law No 24/96, of 31 July, depending on whether or not distance and off-premises contracts are involved.
2 – Undertakings providing publicly available electronic communications services, with the exception of transmission services used for the provision of machine-to-machine services, shall also make available to the consumer at the same time, in a clear and comprehensible manner, on a durable medium, or, where a durable medium is not feasible, in an easy-to-download document made available by the undertaking, the information listed in annex iii to this law, of which it forms an integral part, insofar as it applies to the services that they offer.
3 – The preceding paragraphs shall not lead to a duplication of information in pre-contractual or contractual documents, and the relevant information made available in compliance with this law, namely the more prescriptive and detailed information requirements, shall be deemed to meet the corresponding requirements provided for in the statutory instruments referred to in paragraph 1.
4 – The undertaking shall expressly draw the consumer’s attention to the availability of the downloadable document referred to in paragraph 2 and the importance of downloading it for the purposes of documentation, future reference and unchanged reproduction.
5 – The information shall, upon request, be provided in an accessible format for end-users with disabilities in accordance with European Union law harmonising accessibility requirements for products and services.
6 – Undertakings providing publicly available electronic communications services, except for transmission services used for the provision of machine-to-machine services, shall provide consumers, on a durable medium, with a concise and easily legible summary of the contract, which shall identify the main elements of the information requirements set out in accordance with paragraphs 1 and 2 and include at least:
a) The name, address and contact information of the undertaking and, if different, the contact information for any complaints;
b) The main characteristics of each service provided;
c) Activation prices, including the setup fee for the electronic communications service and for any recurring or consumption-related charges, where the service is provided for direct monetary payment;
d) The duration of the contract and the conditions for its renewal and cessation;
e) The extent to which the products and services are designed for end-users with disabilities;
f) With respect to internet access services, a summary of the information required pursuant to points d) and e) of paragraph 1 of article 4 of Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015.
7 – To fulfil the provisions of the previous paragraph, undertakings shall use the contract summary template approved by Commission Implementing Regulation (EU) 2019/2243 of 17 December 2019.
8 – Undertakings subject to obligations under paragraph 1 to 5 shall duly complete the contract summary template referred to in the preceding paragraph with the required information and provide it free of charge to consumers, prior to the conclusion of the contract, including distance contracts.
9 – Where, for objective technical reasons, it is impossible to provide the contract summary at that moment, it shall be provided without undue delay thereafter, and the contract shall become effective when the consumer has confirmed his or her agreement after reception of the contract summary.
10 – The information referred to in paragraphs 1, 2 and 6 shall become an integral part of the contract and shall not be altered unless the parties expressly agree otherwise.
11 – The information referred to in paragraphs 1, 2 and 6 shall also be transmitted to end-users who are micro-enterprises, small enterprises or non-profit organisations, unless such enterprises or organisations explicitly waive all or part of these provisions.
12 – Undertakings providing electronic communications networks and/or services are prohibited from opposing the termination of contracts at the initiative of subscribers on the grounds of the existence of a period of loyalty or demanding any charges for non-fulfilment of a loyalty period where they are not in possession of proof of the consumer’s manifestation of will, as referred to in paragraph 9.
Article 121
Contractual practices and contracts
1 – Undertakings offering publicly available electronic communications services, with the exception of transmission services used for the provision of machine-to-machine services, shall deposit with the NRA and Direção-Geral do Consumidor (the Directorate-General for the Consumer) a copy of contracts involving, even partially, the subscription of general contractual clauses that they use for the provision of these services.
2 – The deposit referred to in the previous paragraph shall be made by electronic means within two business days from the date on which the use of the subscription contract begins and, whenever it is intended to replace a contract previously used, it shall indicate which template the deposited contract is intended to replace.
3 – The NRA shall determine, following the procedure set out in article 181, the immediate cessation of practices and contracts in use by undertakings offering publicly available electronic communications services, other than transmission services used for the provision of machine-to-machine services, or their adaptation, where it finds:
a) Its non-compliance with the rules laid down in the legislation whose application it supervises or with any determination made within the scope of its powers;
b) The clear lack of proportionality of the practices and contracts in relation to the supply available at the time of the conclusion, renewal or amendment of contracts, in particular with regard to their duration.
SECTION III
Billing, usage control and contracting prevention mechanisms
Article 122
Billing
1 – Publicly available electronic communications services, with the exception of number-independent interpersonal communications services and transmission services used for the provision of machine-to-machine services, shall be billed on a monthly basis, and bills shall include the following elements:
a) Breakdown of services provided and corresponding prices;
b) Remaining duration of the loyalty period and indication of the value associated with early termination of the contract at the end-user’s initiative;
c) Information on the existence of the social tariff for supplying broadband Internet access services and its application to consumers on low incomes or with special social needs, where applicable;
2 – Monthly bills are sent to the end-user free of charge, on paper or electronically, depending on the means chosen by him.
3 – End-users may opt for a detailed monthly bill, which shall reflect the services provided in as much detail as possible, without prejudice to the legal provisions regarding the processing of personal data and the protection of privacy in the electronic communications sector.
4 – The detailed bills referred to in the previous paragraph shall include an explicit reference to the identity of the undertaking and the duration of services charged for a value-added number, except where the end-user has requested that this information not be mentioned.
5 – Detailed bills shall not mention calls provided free of charge, including calls to helplines.
6 – Without prejudice to legislation concerning the processing of personal data and the protection of privacy in the electronic communications sector, the NRA may define the minimum level of detail and information that, free of charge, undertakings must provide to end-users who request detailed billing.
7 – Where appropriate, end-users may be offered, free of charge or at reasonable prices, levels of detail higher than those set by the NRA.
Article 123
Usage control mechanisms
1 – Where internet access services or publicly available interpersonal communications services are billed on the basis of either time or volume consumption, their providers shall offer consumers the facility to monitor and control the usage of each of those services, allowing access to timely information on the level of consumption of services included in a tariff plan.
2 – The competent authorities, in coordination, where appropriate, with the NRA, may set limits on consumption, whether financial or in terms of volume, to be included by undertakings offering the services referred to in the previous paragraph in the conditions of the respective tariffs.
3 – Undertakings shall notify consumers before any consumption threshold predefined in accordance with the previous paragraph is reached, where applicable, and included in their tariff plans, as well as when a service included in their tariff plans has been fully consumed.
4 – Obligations set out in the previous paragraphs also apply to end-users who are micro- enterprises, small enterprises or non-profit organisations, unless such enterprises or organisations explicitly waive all or part of these provisions.
Article 124
Selective communications barring
1 – Undertakings offering number-based interpersonal communications services supporting the provision of audiotext services shall ensure, as a general rule, that access to such services is barred free of charge and that it can be activated, either generally or selectively, only upon request made by end-users in writing or on another durable medium available to them.
2 – Undertakings offering number-based interpersonal communications services supporting the provision of message-based value added services, including SMS or MMS, shall ensure the barring, free of charge, of access to services:
a) Involving the sending of more than one message or messages on a periodic or continuous basis; or
b) With erotic or sexual content.
3 – Access to the services referred to in the previous paragraph can only be activated, generically or selectively, following a request made by the end-user in writing or through another durable medium at his disposal.
4 – At the request of end-users, undertakings providing number-based interpersonal communications services supporting the provision of message-based value added services shall, free of charge, bar communications to such services within 24 hours of the end-user’s request in writing or on another durable medium available and easily usable to that end-user, and shall not impose on that end-user any charges for the provision of those services for which barring has been requested after that period.
5 – Where the NRA considers it appropriate, it may require undertakings that provide number-based interpersonal communications services to ensure, at the request of end-users, selective barring of outgoing calls or premium SMS or MMS or other similar types of applications of defined types or to defined types of numbers free of charge.
6 – The NRA may establish the elements required to prove legitimacy to request the barring or unblocking of the services referred to in the previous paragraphs.
7 – When determined by competent authorities on grounds of fraud or misuse, undertakings providing number-based interpersonal communications services shall block, on a case-by-case basis, access to and retain the revenues derived from interconnection with certain numbers or services.
Article 125
Charging for goods or services from third parties
1 – Without prejudice to the legal framework for payment services and electronic money, undertakings offering internet access services or interpersonal communications services based on publicly available numbers may only require end-users to pay for goods or services which are not electronic communications services and are not part of the offer the end-user has contracted for, where the end-user has expressly and specifically authorised in advance payment for each such goods or services by means of a declaration on any durable medium.
2 – The declaration referred to in the previous paragraph shall be kept by undertakings for the duration of the contract, plus the limitation period for the administrative offence proceeding for breach of the obligation established in the preceding paragraph.
3 – Undertakings offering Internet access services or publicly available interpersonal communications services shall be responsible for proving that the end-user has authorised payment for the goods or services of third parties which have been charged to him in accordance with paragraph 1, failing which they shall not be entitled to require the payment or, if payment has already been made, shall be required to refund the amount charged.
4 – In the event of conflict between this article and those of the legal framework for payment services and electronic money, the latter shall prevail.
Article 126
Contracting prevention mechanisms
1 – Undertakings providing publicly available electronic communications services, with the exception of number-independent interpersonal communications services and transmission services used for the provision of machine-to-machine services, may, directly or through their representative associations, put in place and manage mechanisms to identify end-users who have not fulfilled their payment obligations concerning contracts concluded, in particular by establishing a shared database.
2 – The database management body shall prepare the respective operating conditions, requesting the NRA’s prior opinion, and submit them to the CNPD for approval.
3 – The mechanisms put in place shall respect the following conditions, without prejudice to the regime applicable to the processing of personal data and the protection of privacy:
a) The data to be included shall be limited to items absolutely essential for identifying non-compliant end-users;
b) Guarantee of the right of access, rectification and updating of data by the respective holder;
c) Obligation to provide information in contracts on the possibility of entering the end-user’s data in the database in the event of non-compliance with contractual obligations, explaining the amount of the debt as from which such an entry is made and the mechanisms that may be used to prevent it;
d) Guarantee that, prior to the inclusion of end-users’ data in the database, they are notified to remedy the breach of contract, regularise their unpaid balance or demonstrate its non-existence or unenforceability within a period of no less than five working days;
e) Obligation to inform end-users within five days that their data have been included in the database;
f) Undertakings wishing to have access to the information made available shall also provide the necessary information on the contracts they have concluded where sums are outstanding;
g) All information received shall be used exclusively by the undertakings participating in the mechanisms established, and its total or partial transmission to third parties is forbidden, as is its use for purposes other than those established in the previous paragraph;
h) Immediate removal of all elements relating to the end-user after payment of the debts in question, the demonstration of their non-enforceability, namely due to their prescription or when their value is lower than that provided for in point a) of paragraph 4;
i) Non-inclusion of data regarding end-users who have provided proof of the non-existence or unenforceability of the debt or while the undertaking providing the service is analysing the arguments presented to challenge the existence of the outstanding balance or during the fulfilment of an agreement aimed at its payment, or data regarding end-users who have invoked the exception of non-compliance with the contract or who have complained or challenged the billing presented;
j) Guarantee of the right of the end-user to compensation, in accordance with general law, in the event of improper inclusion of his details in the mechanisms put in place.
4 – The conditions of operation of the database shall guarantee the provisions set forth in the previous paragraph and shall contain, namely, the following:
a) Minimum amount of unpaid credit for the end-user to be included in the database, which cannot be less than 20% of the guaranteed minimum monthly salary;
b) Identification of the situations of non-compliance that may be registered in the database, with a possible distinction between categories of end-users according to the amount owed;
c) Establishment of a delay period after which integration into the database is allowed;
d) Identification of data which may be included;
e) Maximum period for data to remain in the base.
5 – Undertakings providing publicly available electronic communications services, with the exception of number-independent interpersonal communications services and transmission services used for the provision of machine-to-machine services, may refuse to conclude a contract with an end-user who has outstanding amounts relating to previous contracts with the same or another undertaking, unless the end-user demonstrates that he has raised an exception for non-performance of the contract or has complained about or challenged the billing presented.
6 – The regime provided for in the previous paragraph shall not apply to undertakings that offer the universal service, which may not refuse to contract within the scope of the universal service without prejudice to the right to demand the provision of guarantees.
SECTION IV
Breach of contract
Article 127
Suspension and extinction of the service provided to non-consumer end-users
1 – Undertakings providing internet access services or publicly available number-based interpersonal communications services may only suspend the provision of their services to end-users who are not consumers after adequate notice to the end-user has been given, except in the case of unforeseeable circumstances or force majeure.
2 – In case of failure to pay bills, the suspension may only occur after a written warning to the end-user, with a minimum of 20 days’ notice, justifying the reason for the suspension and informing the end-user of the means available to him/her to avoid it.
3 – In the cases referred to in the previous paragraph, the end-user shall have the option to pay and receive discharge for part of the amounts on the bill, and the suspension shall be limited to the service in question, whenever technically possible, except in situations of fraud or systematically late or defaulting payment.
4 – During the suspension period and until extinction of the service, the end-user shall be guaranteed access to emergency services through emergency communications and the corresponding availability of information on caller location, under the terms laid down in article 67, as well as access to any other communications that do not imply payment.
5 – The service may only be extinguished for failure to pay bills where the debt is due and after eight days’ notice is given to the end-user.
Article 128
Suspension and extinction of the service provided to consumers
1 – Where the provision of services to consumers is concerned, undertakings offering Internet access services or publicly available number-based interpersonal communications services shall, in the event of failure to pay the bill for the supply of electronic communications services, give the consumer a period of notice of 30 days in which to pay, failing which the service will be suspended and the contract automatically cancelled, in accordance with paragraphs 3 and 7 respectively.
2 – The notice referred to in the previous paragraph shall be communicated in writing to the consumer within 10 days of the due date of the bill, and shall specifically state the consequence of the failure to pay, namely suspension of the service and automatic cancellation of the contract, and shall inform the consumer of the means at his disposal to avoid such consequences.
3 – Undertakings providing Internet access services or publicly available number-based interpersonal communications services shall, within 10 days of the expiry of the additional period referred to in paragraph 1, suspend the service for a period of 30 days where, on expiry of that period, the consumer has not made payment or has not entered into a written agreement with the undertaking to settle the outstanding debt.
4 – The suspension of service shall not take place in situations where the bill values are subject to a written complaint to the undertaking, based on the non-existence or unenforceability of the debt, as well as in cases where the consumer has made payment or has concluded any written payment agreement with the undertaking in order to settle the amounts owed, provided that any of these facts occur before the date on which the suspension is due to begin.
5 – Paragraphs 3 and 4 of article 127 shall also apply to the suspension of services provided to consumers.
6 – The consumer may end the suspension by paying the outstanding amounts or concluding a written payment agreement with the undertaking providing Internet access services or publicly available number-based interpersonal communications services, in which case the latter shall restore the service immediately or, where that is not technically possible, within five working days from the date of payment or conclusion of the payment agreement, as applicable.
7 – At the end of the 30-day suspension period, without the consumer having paid in full the amounts due or without a written payment agreement, the contract is considered automatically cancelled and the provision of electronic communications services shall cease immediately.
8 – Failure to pay any of the instalments agreed in the payment agreement shall imply compulsory cancellation of the contract, upon written notice to the consumer in accordance with paragraph 5 of article 127.
9 – The cancellation provided for in paragraphs 7 and 8 shall be without prejudice to the collection of charges for the cancellation of the contract during the period of loyalty, under the terms and within the limits of paragraph 4 of article 136.
10 – The consumer cannot be billed or charged for services contracted during the period in which they are suspended under paragraph 3.
11 – Failure by an undertaking providing Internet access services or publicly available number-based interpersonal communications services to comply with this article, in particular by continuing to provide the service in breach of paragraph 3 or by issuing bills after the time when the provision of the service was or should have been suspended or the service provision contract was or should have been cancelled, shall result in the consumer not being required to pay the consideration for the service provision and being liable to pay the procedural costs incurred in the recovery of the claim.
12 – The previous paragraph shall not apply to the issue of bills after the suspension of the service provision that refer to services effectively provided prior to the suspension or to compensation legally established in the case of early cancellation of the contract.
13 – Suspension of service for reasons other than failure to pay bills shall be preceded by appropriate notice to the consumer, except in the case of unforeseeable circumstances or force majeure.
Article 129
Unavailability of the service
1 – Where, for reasons beyond the control of the end-user, any of the publicly available electronic communications services, with the exception of number-independent interpersonal communications services and transmission services used for the provision of machine-to-machine services, which have been contracted by the end-user, remains unavailable for a period longer than 24 hours, consecutive or accumulated during the billing period, the undertaking offering the services shall, regardless of the end-user’s request to that effect, credit an amount equivalent to the price which would have been payable by the end-user for the provision of the service during the period when it remained unavailable.
2 – The 24-hour period referred to in the previous paragraph shall start to run from the moment the unavailability situation becomes known to the undertaking or is communicated by the end-user.
3 – The undertaking providing electronic communications services covered by paragraph 1 shall refund to the end-user any costs incurred by him/her as a result of participation in the unavailability of the service for which the end-user is not responsible.
4 – The deduction or refund to which the end-user is entitled, pursuant to paragraphs 1 and 3, shall be made by credit in the next bill issued by the undertaking or by credit to the end-user’s balance, in the case of pre-paid services, or, where the contractual relationship between the parties has ended without such credit having been processed, by reimbursement by any direct means, namely bank transfer or cheque, within 30 days of the cessation of the contract.
5 – The unavailability of the services referred to in paragraph 1 which, after reported to the undertaking, lasts longer than 15 days, gives the end-user the right to cancel the contract free of charge.
Article 130
Failure to meet service performance levels
Any significant continued or frequently recurring discrepancy between the actual performance of an electronic communications service, other than an internet access service or a number-independent interpersonal communications service, and the performance indicated in the contract shall be considered to be a basis for triggering the remedies available to the consumer in accordance with national law, including the right to cancel the contract free of cost.
SECTION V
Duration, amendment and cessation of contracts
Article 131
Duration of contracts
1 – Without prejudice to the following paragraphs, all undertakings providing publicly available electronic communications services, with the exception of number-independent interpersonal communications services and transmission services used for the provision of machine-to-machine services, shall make available services without associated loyalty.
2 – Undertakings providing publicly available electronic communications services with 6, 12 and 24-month loyalty contracts, for each benefit granted to the user, shall publicise in a manner easily accessible to consumers the cost-benefit ratio associated with the different commercial offers.
3 – Contracts concluded between consumers and undertakings providing publicly available electronic communications services, with the exception of number-independent interpersonal communications services and transmission services used for the provision of machine-to-machine services, shall not provide for a customer loyalty period exceeding 24 months.
4 – Loyalty periods can only be established by granting compensation to consumers, duly identified and quantified in the contract, associated with the subsidising of terminal equipment, installation of the service, when applicable, activation of the service or other promotional conditions.
5 – The limit provided for in paragraph 3 shall not apply to the duration of an instalment contract concluded with the consumer on an autonomous basis and intended exclusively for payment by instalments for the installation of a physical connection, in particular to very high capacity networks.
6 – Contracts referred to in the previous paragraph shall not cover equipment such as mobile devices, routers or modems and shall not prevent consumers from exercising their rights under this article.
7 – The previous paragraphs also apply to end-users who are micro-enterprises, small enterprises or non-profit organisations, unless such enterprises or organisations explicitly waive the protection granted by those provisions.
Article 132
Automatic prolongation of contracts
1 – Where a contract with a loyalty period for the provision of electronic communications services, with the exception of number-independent interpersonal communications services and transmission services used for the provision of machine-to-machine services, provides for automatic prolongation, after such prolongation, end-users have the right to terminate the contract at any time, with a maximum of one month’s notice, without incurring any charges except the charges for receiving the service during the notice period.
2 – Before the contract is automatically prolonged, undertakings shall inform end-users, in a prominent and timely manner and on a durable medium, of the end of the loyalty period, the means by which to terminate the contract, and the best prices available for their services.
3 – Undertakings shall provide end-users with best tariff information at least annually.
Article 133
Amendments concerning the contract holder
1 – Undertakings offering publicly available electronic communications services, with the exception of number-independent interpersonal communications services and transmission services used for the provision of machine-to-machine services, shall not require the consumer holding the contract to pay any charges related to the non-fulfilment of the loyalty period in the following situations:
a) Change of the consumer’s permanent place of residence, where the undertaking is unable to provide the contracted service or an equivalent service, particularly in terms of characteristics and price, at the new address;
b) Unexpected change to a third country of the permanent residence of the consumer holding the contract;
c) Unemployment of the consumer holding the contract, due to dismissal on the employer’s initiative through no fault of the employee, resulting in a loss of the consumer’s available monthly income;
d) Permanent or temporary incapacity for work lasting more than 60 days of the consumer, particularly in the event of illness, resulting in a loss of the consumer’s available monthly income.
2 – The right of cancellation provided for in the previous paragraph shall be exercised by the consumer by means of written communication, including by e-mail, to the undertaking providing the services, with a minimum notice period of 30 days, presenting the following evidence:
a) For the purposes of paragraph a) of the previous paragraph, documentation proving the new place of residence;
b) For the purposes of point b) of the previous paragraph, a certificate of residence in a third country or a copy of an employment or service contract in that country which proves the need for the consumer holding the contract to reside there;
c) For the purposes of paragraph c) of the previous paragraph, a statement proving the unemployment situation of the consumer holding the contract, obtained from the respective employment centre or a statement of unemployment status issued by Segurança Social (the Social Security).
3 – For the purposes of points c) and d) of paragraph 1, the break in income corresponds to a decrease in income equal to or greater than 20% and is calculated by comparing the sum of the consumer’s income in the month in which the cause of the change in income occurs with the income earned in the previous month.
4 – Under the terms of the previous paragraph, the following are considered relevant for the purpose of calculating the loss of income:
a) In the case of income from dependent work, the respective gross monthly amount;
b) In the case of self-employment income, the gross monthly turnover;
c) In the case of pension income, the respective gross monthly amount;
d) The monthly value of social benefits received on a regular basis;
e) The values of other income received on a regular or periodic basis.
5 – The loss of the monthly available income referred to in paragraphs c) and d) of paragraph 1 shall be proven by any documents that allow the verification of these facts, namely by:
a) Statement from the consumer’s employer;
b) Statement from the employment centre or parish council of the place of permanent residence of the consumer;
c) Bank document proving the consumer’s financial situation.
6 – The provisions of paragraph 1 shall not affect the right of the undertaking to charge for services provided during the period of notice referred to in the previous paragraph.
7 – Point a) of paragraph 1 and point a) of paragraph 2 shall also apply to end-users who are micro-enterprises, small enterprises or non-profit organisations, unless such undertakings or organisations explicitly waive the protection granted by those provisions.
Article 134
Change of circumstances
Articles 132 and 133 shall be without prejudice to the application of the regimes of cancellation and modification of the contract due to a change of circumstances provided for in the Civil Code.
Article 135
Amendment of contractual conditions by the undertaking offering services
1 – End-users have the right to cancel their contracts without incurring any costs, other than those related to the use of the service up to the date of cancellation, following notice of changes in the contractual conditions referred to in paragraph 6 of article 120 and proposed by the undertaking providing publicly available electronic communications services, with the exception of number-independent interpersonal communications services, except where changes:
a) Are proposed exclusively for the benefit of the end-user;
b) Have no adverse effect on the end-user, including those of a purely administrative nature or related to the address of the provider; or
c) Result directly from the application of a national or European Union legislative act or an act or regulation of the NRA.
2 – It shall be incumbent on the undertaking to demonstrate that each of the changes to the contract proposed under the previous paragraph is carried out exclusively for the benefit of the end-user or of a purely administrative nature with no negative effects for the end-user.
3 – Undertakings shall give end-users at least one month’s notice, in a clear and comprehensible manner and on a durable medium, of any modification in the contractual conditions, informing them, in the same notice, and where applicable, of their right to cancel the contract, free of charge, where they do not accept the new conditions.
4 – The NRA may specify the terms on which undertakings are to give the notice referred to in the preceding paragraph.
5 – The right to contractual cancellation provided for in paragraph 1 may be exercised within thirty days of the notice referred to in the preceding paragraph.
6 – As regards transmission services used for the provision of machine-to-machine services, the right referred to in paragraph 1 shall benefit only end-users who are consumers, micro-enterprises, small enterprises or non-profit organisations.
Article 136
Termination of the contract at the consumer’s initiative
1 – Conditions and procedures for contract termination for the provision of publicly available electronic communications services, except for number-independent interpersonal communications services and transmission services used for the provision of machine-to-machine services, shall not create a disincentive for the consumer to switch from the undertaking providing such services.
2 – The means made available and the requirements imposed on consumers by undertakings offering the services referred to in the previous paragraph for the termination of contracts may not be more demanding than the means made available and the requirements imposed for contracting, namely in terms of ease of use, costs and necessary documentation, nor may a new presentation of documentation already held by the undertaking be required.
3 – Throughout the duration of the loyalty period, charges to the consumer arising from termination of the contract on his own initiative may not include any charge for damages or compensation.
4 – The charges for early cessation of a contract with a loyalty period at the consumer’s initiative may not exceed the lower of the following values:
a) The benefit conferred on the consumer, identified as such and quantified in the contract concluded, in proportion to the remaining duration of the loyalty period;
b) A percentage of the monthly instalments due:
i) In the case of an initial period of loyalty, 50% of the value of the remaining monthly payments if the cessation occurs during the first year of the contract period, and 30% of the value of the remaining monthly payments if the cessation occurs during the second year of the contract period;
ii) In the case of a subsequent loyalty period with no change in the local loop installed, 30% of the remaining monthly payments;
iii) In the case of a subsequent period of loyalty with change of the local loop installed, the limits set out in point i).
5 – Where terminal equipment is subsidised, charges shall be calculated in accordance with article 139.
6 – Any durable medium, including telephone recordings, associated with the termination of contracts for the provision of publicly available electronic communications services, except for number-independent interpersonal communications services and transmission services used for the provision of machine-to-machine services, shall be retained by undertakings for the duration of the limitation and expiry period of obligations under the contract and handed over to the NRA or to the consumer on an appropriate durable medium at the request of either.
7 – The previous paragraphs also apply to end-users who are micro-enterprises, small enterprises or non-profit organisations, unless such enterprises or organisations explicitly waive the protection granted by those provisions.
Article 137
Suspension and expiry of contracts
1 – Without prejudice to other extraordinary changes in the circumstances which led to the conclusion of the contract by the consumer, the contract shall be suspended, notably in the following situations:
a) Loss of the place where services are provided;
b) Change of residence out of the national territory;
c) Absence from the residence due to serving a prison sentence;
d) Absence from the residence due to incapacity, long term illness or dependence on care provided or to be provided by a third person;
e) Unemployment or sick leave.
2 - The suspension shall continue for as long as the reason for the suspension lasts.
3 – The suspension originated by the reasons referred to in point d) of the previous paragraph shall be carried out through communication by the contract holder himself or by the person representing him, accompanied by a document proving the situation invoked.
4 – Where a contract is suspended under the terms of paragraph 1 of this article for more than 180 days, it shall expire at the request of the contract holder or, in the case of point d) of paragraph 1 of this article, of the person representing him/her.
5 – The suspension or expiry of the contract referred to in paragraphs 1 and 3 shall not entail any charges for the contract-holder, including charges related to early cessation of the contract.
Article 138
Cancellation of contracts at the initiative of the end-user
1 – Where, in accordance with this law or other national or European Union laws or regulations, an end-user has the right to cancel a contract for the provision of publicly available electronic communications services, with the exception of number-independent interpersonal communications services, before the end of the loyalty period, he may not be required to pay any charges related to the early cessation of the contract, except in cases where he/she wishes to retain subsidised terminal equipment.
2 – Where the end-user chooses to keep the terminal equipment associated with the contract at the moment of its conclusion, any compensation due shall not exceed the limits laid down in paragraphs 2 and 3 of article 139, in which case any restriction on the use of the terminal equipment on other networks shall be lifted free of charge by the undertaking at the latest at the time of the respective payment.
3 – As regards transmission services used for the provision of machine-to-machine services, the right referred to in paragraph 1 shall benefit only end-users who are consumers, micro-enterprises, small enterprises or non-profit organisations.
4 – Paragraph 6 of article 136 shall apply to the cancellation of contracts at the initiative of the end-user.
5 – The consumer may exercise the contract cessation rights provided for in article 137 and in this article through the electronic platform created for this purpose, managed by Direção-Geral do Consumidor (DGC - the Directorate General for the Consumer).
6 – The functionalities of the platform to which the electronic communications operators are subject to under the terms of the previous paragraph shall be approved by an administrative rule of the Government member responsible for the area of consumer protection.
Article 139
Unlocking terminal equipment
1 - It shall be forbidden to charge for any consideration for the provision of the unlocking service for equipment referred to in article 138, at the end of the contractual loyalty period.
2 – During the loyalty period, for the cancellation of the contract and for the unlocking of the equipment, it shall be forbidden to charge any sum in excess of:
a) 100 % of the value of the equipment at the date of its acquisition or possession, without any discount, rebate or subsidy, during the first six months of that period, less the amount already paid by the user, as well as any credit the consumer may have with the mobile communications operator;
b) 80% of the value of the equipment at the time of its acquisition or possession, without any discount, rebate or subsidy, after the first six months of that period, less the amount already paid by the user, as well as any credit the consumer may have with the mobile communications operator;
c) 50% of the value of the equipment at the date of its acquisition or possession, without any discount, rebate or subsidy, in the last year of the period of loyalty, less the amount already paid by the user, as well as any credit the consumer may have with the mobile communications operator.
3 – If the end-user chooses to keep the associated terminal equipment when the contract is concluded, any compensation due may not exceed the limit of its pro rata temporis value as provided for in the previous paragraph, agreed at the time of the conclusion of the contract, or the remaining part of the service tariff until the end of the contract, whichever is the lower.
4 – When the contract does not provide for any loyalty period, the calculation of the maximum value of the consideration to be paid by the consumer for the unlocking of terminal equipment, where this is requested before 24 months have elapsed since the conclusion of the contract or its modification, depending on the moment in which the acquisition of equipment locked to the undertaking’s network has been associated with the contract, shall be made in accordance with paragraph 2, with reference to the maximum duration of the legally admitted loyalty period.
5 – The obligation to unlock the terminal equipment shall lie with the undertaking providing electronic communications services which has locked it, and this operation shall be carried out within 24 hours of the moment in which the consumer requested it or of the moment of payment of the consideration referred to in paragraph 2, where this is due.
6 - The previous paragraphs also apply to end-users who are micro-enterprises, small enterprises or non-profit organisations, unless such enterprises or organisations explicitly waive the protection granted by those provisions.
SECTION VI
Switching between service providers and number portability
Article 140
Switching between providers of internet access services
1 – In the case of switching between providers of internet access services, the providers concerned shall provide the end-user with adequate information before and during the switching process and ensure continuity of the internet access service, unless technically not feasible.
2 – The new undertaking shall lead the switching process and both the new and former undertakings shall cooperate in good faith.
3 – Undertakings shall not delay or abuse the switching processes, nor shall they switch the end-user’s service without the his/her explicit consent.
4 – The new undertaking shall ensure that the activation of the service takes place as soon as possible, on the date and within the period expressly agreed upon with the end-user.
5 – The former undertaking shall continue to provide its services under the same conditions until the new undertaking activates its services.
6 – The interruption of services during the switching process shall not exceed one working day.
7 – Operators whose access networks or facilities are used by either the former undertaking or the new undertaking, or both, shall ensure that there is no disruption of services that would delay the switching process.
8 – The end-user’s contract with the former undertaking automatically ceases upon successful completion of the switching process.
9 – In the case of pre-paid services, the former undertaking will, upon request, refund the end-user any remaining credit.
10 – The refund referred to in the previous paragraph may only be subject to the payment of charges if provided for in the contract, and such charges shall be proportionate and commensurate with the actual costs incurred by the former provider in offering the refund.
11 – The NRA may promote over-the-air provisioning, where technically feasible, to facilitate switching of providers of electronic communications networks or services by end-users, in particular providers and end-users of machine-to-machine services.
Article 141
Number portability
1 – Without prejudice to other forms of portability that may be determined, all end-users with numbers included in the NNP shall be guaranteed the right, on request, to retain their numbers, within the same service, regardless of the undertaking offering services:
a) In the case of geographic numbers, at a specific location;
b) In the case of non-geographic numbers, throughout the national territory.
2 – The new undertaking shall handle the number portability process, and the new and former undertaking shall cooperate in good faith.
3 – Undertakings shall not delay or abuse the porting process, or port numbers without the express consent of end-users who are holders of contracts associated with those numbers.
4 – The porting and subsequent activation of numbers shall take place on the date expressly agreed between the end-user and the new undertaking, within the shortest possible time frame and no later than one working day from that date.
5 – In the event of failure of the porting process, the former undertaking will reactivate numbers and associated services, providing them under the same terms and conditions until the numbers and services are activated by the new undertaking.
6 – In any case, the interruption of service during the porting process shall not exceed one working day.
7 – In case of contract cessation, the end-user shall retain the right to port a number from the NNP to another undertaking for a minimum of one month after the date of cessation, unless that right is renounced by the end-user.
8 – The end-users’ contracts with the former undertaking shall be cease automatically after the numbers have been activated in the new undertaking.
9 – Operators whose access networks or facilities are used by either the former undertaking or the new undertaking, or both, shall ensure that there is no loss of service that would delay the porting process.
10 – Where numbers allocated to pre-paid services are ported, the former undertaking will, upon request, refund the end-user any remaining credit in respect of the ported number.
11 – The refund referred to in the previous paragraph may have a charge for the end-user, if provided for in the contract, and it shall be proportionate and commensurate with the actual costs incurred by the undertaking offering the refund.
12 – Wholesale charges related to the provision of number portability shall be cost-oriented, with no direct charges to end-users.
Article 142
Tasks of the national regulatory authority
1 - It shall be incumbent on the NRA to adopt appropriate measures to ensure that:
a) The switching process runs efficiently and smoothly for end-users;
b) End-users are duly informed and protected during the switching the undertaking providing Internet access and portability services;
c) The switching is not carried out and numbers are not ported to another undertaking without the end-users’ consent.
2 – The NRA shall ensure that undertakings providing electronic communications services make available to end-users adequate and transparent information on applicable prices for calls and messages to and from ported numbers.
3 - The NRA shall be responsible for establishing:
a) The procedures for switching undertakings providing Internet access services and number portability, taking into account national provisions on contracts, technical feasibility and the need to maintain continuity of service to the end-users, including, where technically feasible, a requirement for the porting to be completed through over-the-air provisioning, unless an end-user requests otherwise, under paragraph 11 of article 140;
b) Rules on the compensation due by undertakings providing internet access services and required to ensure number portability, to ensure that such compensation is paid in an easy and timely manner to end-users, in the case of the failure of a provider to comply with obligations laid down in article 140 and 141, as well as in the case of non-compliance with scheduled interventions at end-users’ premises.
4 – The NRA shall ensure that end-users are appropriately informed about the compensation rights referred to in the preceding paragraph.
SECTION VII
Complaints and dispute resolution
Article 143
Complaints from end-users
1 – Undertakings providing publicly available electronic communications services, with the exception of number-independent interpersonal communications services and transmission services used for the provision of machine-to-machine services, shall implement appropriate procedures for the rapid and harmonised handling of complaints submitted to them by end-users.
2 - The NRA may define requirements to be observed in the procedures referred to in the preceding paragraph.
3 – The NRA shall order undertakings to examine situations resulting from the analysis of complaints or claims brought to its attention in the exercise of its functions and which may indicate non-compliance with the provisions which it is its duty to supervise, considered individually or jointly, and may order the adoption of corrective measures in cases where non-compliance with those provisions is involved.
4 – The NRA shall publish an annual report on its website with information on the volume of complaints and requests it receives, identifying the providers and services concerned and, within each service, the matters that are the subject of complaint.
Article 144
Out-of-court dispute resolution
1 – Without prejudice to recourse to the courts and to the bodies responsible for protecting and promoting consumer rights, end-users may submit disputes with undertakings that offer electronic communications networks and services to legally constituted out-of-court dispute resolution mechanisms, including, in the case of consumers, the alternative dispute resolution bodies on the list drawn up by the DGC, pursuant to article 17 of Law No 144/2015, of 8 September.
2 – The NRA shall be responsible for promoting the development of simple, transparent, cost-effective for different types of end-users, non-discriminatory and specialised mechanisms in the electronic communications sector for the prompt, fair and impartial resolution of domestic and cross-border disputes in contractual matters between undertakings providing electronic communications networks and services and end-users.
3 – For the purposes of the preceding paragraph and without prejudice to the exercise of its powers under Law No 144/2015, of 8 September, the NRA may establish cooperation agreements or participate in the establishment of bodies responsible for ensuring the aforementioned mechanisms.
SECTION VIII
Directory enquiry services and additional facilities
Article 145
Directory enquiry services
1 – Undertakings providing number-based interpersonal communications services which allocate numbers from a numbering plan shall meet all reasonable requests to provide relevant information required for the purposes of the provision of publicly available directory enquiry services and directories in an agreed format on terms which are fair, reasonable, transparent, objective, cost-oriented and non-discriminatory.
2 – The NRA may impose obligations and conditions on undertakings that control access to end-users for the provision of directory enquiry services in accordance with articles 81 and 103, and such obligations and conditions shall be objective, equitable, transparent and non-discriminatory.
3 – End-users have the right to directly access directory enquiry services in another Member State, by voice call or SMS, in accordance with article 53.
4 – The provisions of this article shall be without prejudice to the application of the relevant rules regarding the processing of personal data and the protection of privacy in the electronic communications sector, in particular article 13 of Law No 41/2004, of 18 August.
Article 146
Provision of additional facilities
1 – Without prejudice to article 155, the NRA may require, taking into account good practice and standards adopted by national, European Union or international organisations that apply to the electronic communications sector, that all undertakings providing Internet access services or publicly available number-based interpersonal communications services make available free of charge to end-users or, in the case of points e), f) and h), to consumers all or part of the following additional facilities:
a) Calling-line identification, allowing the calling party’s number to be presented to the called party prior to the communication being established, subject to technical feasibility and without prejudice to the applicable legal rules on the processing of personal data and the protection of privacy in the electronic communications sector;
b) E-mail forwarding or access to e-mails after cessation of the contract with the undertaking providing an internet access service, provided that this is technically feasible;
c) Minimum level of detail to be made available to end-users requesting itemised bills, as referred to in article 121, without prejudice to the applicable legal rules on the processing of personal data and the protection of privacy in the electronic communications sector, in such a way that end-users may verify and control charges for Internet access services or number-based interpersonal communications services, adequately monitor their usage and expenditure and exert a reasonable degree of control over their bills, without prejudice to the possibility that end-users may be offered, at reasonable prices or free of charge, additional levels of detail;
d) Pre-payment systems for the use of Internet access services or number-based interpersonal communications services;
e) Phased payment of connection prices that allow consumers to pay for connection to the public electronic communications network on the basis of payments phased over time;
f) Tariff advice service, whereby end-users may request information regarding lower or better alternative prices;
g) Service for controlling the costs of Internet access services or number-based interpersonal communications, including free alerts to consumers showing abnormal or excessive consumption patterns.
2 – For the purposes of point a) of the previous paragraph, undertakings shall make available, to the extent technically feasible, data and signals facilitating the offering of calling line identification and the sender of messages across national boundaries.
3 – The identification of the calling line or of the sender of a message which is provided as an additional facility associated with a number-based interpersonal communication shall:
a) Be valid so as to uniquely identify the originator of the communication or, in the case of a message, its sender;
b) Be transmitted without alterations other than those provided for in international standards.
4 – Without prejudice to the powers of the NRA, undertakings providing the services referred to in paragraph 1 and operators shall take appropriate measures to ensure the integrity of the network and the reliability of the identification presented, in order to prevent the number or facility associated with the identification of the calling line or of the sender of a message from being invalid or otherwise unavailable to the called party, if applicable.
5 – Without prejudice to paragraph 1, operators shall make available, in so far as technically feasible, facilities to enable the provision of multi-frequency dialling, ensuring that the public communications network or publicly available telephone services supports the use of tones for end-to-end signalling across the network and, if possible, across national boundaries.
6 – The service referred to in point c) of paragraph 1 shall, on request and free of charge, enable end-users who terminate their contract with the undertaking providing an internet access service:
a) To access the e-mails they received at the e-mail address(es) based on the former undertaking’s commercial name or trademark for such period as the NRA considers necessary and proportionate; or
b) To transfer e-mails sent to such address or addresses during that period to a new e-mail address specified by the end-user.
CHAPTER II
Universal service
SECTION I
Scope and subject matter
Article 147
Notion
1 – Universal service shall be deemed to mean the minimum set of services provided for in this chapter that shall be available to all consumers within the national territory, at an affordable price, in the light of specific national conditions, where a risk of social exclusion arising from the lack of such access prevents citizens from full social and economic participation in society.
2 – The notion of universal service shall evolve in order to keep pace with advances in technology, market developments and changes in user demand.
3 - The Government and ARN shall be responsible, in the pursuit of their respective tasks, for:
a) Adopting the most efficient and appropriate solutions to ensure the achievement of universal service with respect for the principles of objectivity, transparency, non-discrimination, proportionality and technological neutrality; and
b) Minimising market distortions, in particular the provision of services at prices or subject to terms and conditions which depart from normal commercial conditions, without prejudice to the safeguard of public interests.
Article 148
Scope
1 – The universal service shall ensure the availability, at an affordable price and specified quality, of:
a) An adequate broadband internet access service at a fixed location;
b) Voice communication services, including the underlying connection, at a fixed location;
c) Specific measures for consumers with disabilities, to ensure equivalent access to services which, within the scope of universal service, are available to other users.
2 – The affordability of all or some of the services referred to in the previous paragraph, provided at a non-fixed location, may be included within the scope of universal service, where it is concluded that this is necessary to ensure the full social and economic participation of consumers in society.
3 - At the request of eligible consumers, the connection referred to in paragraphs 1 and 2 may be limited to the support of voice communication services only.
4 – The Government may extend the scope of application of this article and of articles 150 and 151 to end-users who are micro-enterprises, small and medium-sized enterprises and non-profit organisations, provided that they meet the relevant conditions.
Article 149
Broadband Internet
1 – It shall be incumbent on the Government to define the minimum bandwidth of the internet access service provided for in point a) of paragraph 1 of article 148, taking into account the specific circumstances of the national market, the minimum bandwidth used by the majority of consumers in the national territory and BEREC’s report on best practices.
2 – The bandwidth of the Internet access service set out in the previous paragraph shall be capable of supporting the use of the following minimum set of services:
a) E-mail;
b) Search engines enabling search and finding of all type of information;
c) Basic training and education online tools;
d) Online newspapers or news;
e) Buying or ordering goods or services online;
f) Job searching and job searching tools;
g) Professional networking;
h) Internet banking;
i) eGovernment service use;
j) Social media and instant messaging;
k) Calls and video calls of a standard quality.
3 – The Government may expand the minimum set referred to in the previous paragraph where it finds this necessary to ensure the full social and economic participation in society of the beneficiaries of the universal service.
SECTION II
Availability of universal service
Article 150
Availability of universal service
1 – Where, taking into account the evidence established by means of the geographical survey referred to in article 173, if available, as well as any other additional elements of appreciation collected, it appears that the availability of the services referred to in points a) and b) of paragraph 1 of article 148 cannot be ensured under normal commercial circumstances or by other potential instruments of public policy within the national territory or in different parts of it, the Government may impose appropriate universal service obligations to meet all reasonable requests by end-users for access to such services in the relevant parts of its territory.
2 – The Government shall determine the most efficient and appropriate approach to ensure the availability at a fixed location of adequate broadband internet access service, within the meaning of article 149, and of voice communications service, while respecting the public interest, the principles of objectivity, transparency, non-discrimination and proportionality, and seeking to minimise market distortion, in particular the provision of services at prices or under terms or conditions that depart from normal commercial conditions.
3 – In the decision referred to in the previous paragraph, and in particular when deciding to impose obligations to ensure end-users the availability at a fixed location of an adequate broadband internet access service, within the meaning of article 149, and of a voice communication service, the Government may, in accordance with article 161, designate one or more undertakings to guarantee such availability throughout the national territory, as well as designate different undertakings, or sets of undertakings, to provide an adequate broadband internet access service and voice communication services at a fixed location or to cover different parts of the national territory.
SECTION III
Affordability of the universal service
Article 151
Provision of universal service at an affordable price
1 - The NRA, in coordination with other competent authorities, shall monitor the evolution and level of retail prices charged in the market for the services identified in paragraph 1 of article 148, taking into account, in particular, national prices and the income of national consumers.
2 – Where the evidence gathered under the terms of the preceding paragraph shows that, in the light of national conditions, the prices charged on the market do not allow consumers on low incomes or with special social needs to have access to the services provided for in paragraph 1 of article 148, the Government shall, on its own initiative or at the proposal of the NRA, adopt the necessary measures to ensure that such consumers have affordable access to broadband internet and voice communication services at least at a fixed location.
3 - For the purposes of the preceding paragraph, the Government may:
a) Ensure that support is provided to such consumers for communication purposes; or
b) Require providers of such services to offer to those consumers tariff options or packages for services provided for in article 148, with basic features, different from those provided under normal commercial conditions, or which apply common tariffs, including geographic averaging, throughout the territory.
4 – Where it is demonstrated that imposing the obligations under paragraph 3 on all providers of services listed in that paragraph would impose an unfair administrative or financial burden on the State or on such providers, the Government may exceptionally decide to impose the obligation to offer such tariff options or packages only on undertakings designated in accordance with article 161.
5 – In the cases provided for in the previous paragraph, article 150 shall apply with the necessary adaptations to such designation.
6 - Universal service providers shall ensure, at an affordable price:
a) Appropriate measures to ensure that voice communications services and adequate broadband internet access service are not disconnected without justification; and
b) That the end-user can retain the number he/she has been assigned for access to the voice communication service for an adequate period of time.
7 – In order to minimise financial risks, such as non-payment of bills, providers may condition the conclusion of the contract to a pre-payment on the basis of affordable pre-paid individual units, provided that this does not constitute a barrier to access to the minimum set of connectivity services by eligible consumers.
8 – Whenever more than one undertaking is designated to provide universal service, it shall be ensured that beneficiaries of the services are able to choose the undertaking offering tariff options that meet their needs, unless such a choice is not possible or would create an unfair additional organisational or financial burden.
9 – The definition of the notion of «unfair administrative or financial burden» provided for in this article, as well as the terms on which providers may condition the conclusion of the contract on a prepayment based on prepaid affordable individual units, in accordance with paragraph 7, shall be the responsibility of the NRA, following the public consultation procedure provided for in article 10.
Article 152
Conditions for provision
1 – Undertakings which, pursuant to the obligations set out in article 151, make available tariff options or packages other than those offered under normal commercial conditions shall, prior to the date on which they start to be made available, keep the NRA and other competent authorities informed of all the conditions and characteristics of such offers, as well as the terms under which their disclosure is ensured.
2 – It shall be incumbent on the NRA to verify compliance of the offers referred to in the previous paragraph with the established service obligations, namely affordability, transparency, non-discrimination and adequate publication.
3 - It shall be incumbent on the NRA, in coordination with other competent entities, to determine the alteration or withdrawal of offers made available in compliance with universal service obligations, whenever they do not meet the established requirements.
4 – Where universal service providers offer additional facilities and services beyond the defined universal service obligations, they shall set terms and conditions in such a way that end-users are not required to pay for facilities or services which are not necessary for the requested service.
Article 153
Support for the acquisition of services
1 – In the situations provided for in paragraph 3 of article 151, it shall be the Government’s responsibility, after consulting the NRA, to define the amounts, conditions of eligibility and the manner of granting support to consumers on low incomes or with special social needs for the acquisition of services referred to in article 148, as well as the duties of information to which the entities responsible for granting the support and the undertakings which provide the corresponding services are subject.
2 - The support for the acquisition of services shall cease as soon as the conditions for granting it cease to exist.
Article 154
Specific measures for citizens with disabilities
1 - It shall be incumbent on the Government to adopt the specific measures referred to in point c) of paragraph 1 of article 148.
2 – The NRA shall be responsible for assessing the conditions under which access to universal service is provided to disabled consumers in the national territory and for proposing to the Government the measures it considers appropriate to ensure equivalent access to universal service for users referred to in the preceding paragraph and the profile of users who may benefit from it.
3 – For the purposes of the preceding paragraph, the NRA may propose to the Government, among other specific measures, the availability, free of charge or at affordable prices, of related terminal equipment, as well as:
a) Integrated conversation services and relay services;
b) Microphone amplifier equipment, in order to increase the sound volume in the earpiece, for hearing-impaired people;
c) Call alerting device, which is a device that activates a visual signal when terminal equipment receives a call;
d) Simple bill in Braille;
e) Line with fixed destination, allowing calls to be automatically established to a certain destination defined by the customer;
f) Possibility to call up to a predefined number of free calls to the directory enquiry services;
g) Customer support lines in Portuguese Sign Language, whenever justified.
Article 155
Control of expenses
1 – In order to enable end-users to check and monitor their charges for the use of services under paragraph 1 of article 148, providers shall make available the following minimum set of facilities and services:
a) Itemised billing;
b) Selective barring, free of charge, for outgoing calls of defined types or to defined types of numbers and premium SMS or MMS or other message-based value added services or applications;
c) Pre-payment systems for access to the public electronic communications network and use of voice communications services, or internet access services;
d) Connection to the public electronic communications network on the basis of payments phased over time;
e) Measures that apply to the failure to pay bills;
f) Tariff advice service allowing end-users to obtain information on alternative lower or better tariffs;
g) Cost control for voice communications services or internet access services, including free-of-charge alerts to consumers in the case of abnormal or excessive consumption patterns compared to the respective average usual consumption values;
h) Service to disable billing by third party undertakings using the billing of the provider of an internet access service or a publicly available interpersonal communications service, made available in the fulfilment of universal service obligations, to charge for their products or services.
2 – For the purposes of point a) of the previous paragraph, and without prejudice to legislation regarding the processing of personal data and the protection of privacy in the electronic communications sector, end-users shall be guaranteed the following minimum level of detail, free of charge, where applicable:
a) Initial price for connection to the public electronic communications network and for the provision of services over that network;
b) Subscription price;
c) User charges, identifying the different categories of traffic, indicating each communication and the respective cost;
d) Cost of communications to value-added numbers, indicating explicitly, for each one, the identity of the undertaking, the duration of services charged, unless the end-user has requested this information to be omitted;
e) Price of installation of material and accessory equipment requested after the start of the service provision;
f) Periodic price of equipment rental;
g) End-user debits;
h) Compensation arising from refunds.
3 – Universal service providers may, at the request of the end-user, offer bills with additional levels of detail compared to those referred to in the previous paragraph at reasonable tariffs or at no charge, and, in any event, calls which are free of charge to calling end-users, including calls to helplines, shall not be required to be identified in the calling end-user’s itemised bill.
4 – Itemised bills on the usage of internet access shall indicate only the time, duration and amount of consumption during a usage session but not indicate the websites or internet end-points connected to during such a usage session.
5 – For the purposes of point b) of paragraph 1, the NRA shall define the types of calls or communications that may be barred.
6 – An NRA shall have the power to waive the application of paragraph 1 in all or part of the territory where it finds that the resources provided for therein are widely available.
Article 156
Quality of service
1 – Universal service providers shall be required to make available to end-users, as well as to the NRA, adequate and up-to-date information concerning their performance in the provision of universal service, based on the quality of service parameters, definitions and measurement methods to be established by the latter, following the consultation procedure referred to in article 10.
2 – In particular, the NRA may specify additional quality of service standards to assess the performance of universal service providers in the provision of services, where relevant parameters have been defined.
3 – Information on the performance of universal service providers with respect to the parameters referred to in the preceding paragraph shall also be made available to end-users and the NRA.
4 – An NRA may further specify the content, form and manner in which the information referred to in the paragraphs above is to be made available, in order to ensure that consumers and other end-users have access to clear, comprehensive and comparable information.
5 – Without prejudice to the preceding paragraphs, the NRA may, following the public consultation procedure set out in article 10, set performance targets for the various universal service obligations.
6 – The NRA may determine independent audits or other mechanisms to verify the performance achieved by universal service providers, at the latter’s expense, in order to ensure the accuracy and comparability of the data made available by providers.
SECTION IV
Financing the universal service
Article 157
Compensation for providing the universal service
1 – Where the NRA considers that the provision of an adequate broadband internet access service or voice communications service as set out in articles 150 or 151 may place an unfair burden on providers of those services seeking compensation, the NRA shall calculate the net costs of such provision.
2 – Compensation for universal service provision depends on a request made by the respective provider to the member of the Government responsible for the area of communications.
3 – The NRA shall define the deadlines and information that must accompany the request referred to in the preceding paragraph.
4 – Following receipt of the request for compensation, it shall be the responsibility of the NRA, whenever it considers, in accordance with paragraph 1, that the provision of universal service may constitute an unfair burden on the respective provider, to calculate the net costs of the universal service obligations in accordance with one of the following procedures:
a) Calculating the net cost of the universal service obligations, taking into account any market benefit which accrues to providers;
b) Making use of the net costs of providing universal service identified by a designation mechanism provided for in this law.
5 – It shall be incumbent on the NRA, after the public consultation procedure set out in article 10, to define the concept of «unfair burden».
Article 158
Calculation of the net cost
1 – Where the net cost is to be calculated in accordance with paragraph a) of paragraph 4 of article 157, the following assumptions shall apply:
a) All means shall be examined to ensure appropriate incentives for designated and non-designated undertakings to provide universal service obligations cost efficiently;
b) The cost of universal service obligations is calculated as the difference between the net costs to an organisation of operating with the universal service obligations and operating without such obligations, as well as a proper assessment of the costs that any undertaking would have chosen to avoid had there been no universal service obligation;
c) Benefits, including non-material benefits, obtained by universal service providers shall be taken into account;
d) The calculation of the net cost of specific aspects of universal service obligations shall be made separately and in order to avoid the double counting of any direct or indirect benefits and costs;
e) The net cost of universal service obligations is calculated as the sum of the net costs of the specific components of universal service obligations.
2 – The calculation is to be based upon the costs attributable to:
a) Elements of the identified services which can only be provided at a loss or provided under cost conditions falling outside normal commercial standards, and may include service elements such as access to emergency services or the provision of certain services or equipment for end-users with disabilities;
b) Specific end-users or groups of end-users who, taking into account the cost of providing the specified network and service, the revenue generated and any geographical averaging of prices imposed by the NRA, can only be served at a loss or under cost conditions falling outside normal commercial standards.
3 – For the purposes of paragraph b) of the preceding paragraph, this category shall include end-users or groups of end-users that would not be served by a commercial provider which did not have an obligation to provide universal service.
4 – In cases where the net cost is to be calculated in accordance with point a) of paragraph 4 of article 157, the NRA shall, following the public consultation procedure set out in article 10, approve the methodology for calculating the net cost of universal service obligations.
5 – Universal service providers shall make available all accounts and information relevant for the calculation referred to in this article, which shall be audited by the NRA or another entity independent of the parties concerned and subsequently approved by the NRA.
6 – The NRA shall keep available the results of the calculations and the audit referred to in this article.
Article 159
Financing mechanisms
1 – Once the net costs of the universal service obligations have been calculated and the NRA concludes that the respective provider is subject to an unfair burden, the Government shall provide appropriate compensation through one or both of the following mechanisms:
a) Compensation from public funds;
b) Cost sharing by undertakings offering electronic communications networks and services in the national territory.
2 – Whenever the mechanism provided for in point b) of the preceding paragraph is to be applied, a compensation fund shall be established and managed by the NRA or by another independent body designated by the Government, in the latter case under the supervision of the NRA, to which undertakings offering electronic communications networks and services in the national territory shall contribute.
3 – The criteria for allocating the net cost of the universal service among the undertakings required to contribute are defined by the Government, respecting the principles of transparency, minimum market distortion, non-discrimination and proportionality.
4 - For the purposes of the preceding paragraph, the body which manages the fund shall:
a) Receive their contributions, using a transparent and neutral means for collection, in order to avoid double imposition of contributions;
b) Oversee the transfer or payments of sums due to universal service providers;
c) Break down and identify separately for each undertaking the burden with respect to the sharing of the cost of universal service obligations.
5 – The law may exempt from contribution to the compensation fund undertakings which do not reach a certain turnover, for which purpose it shall fix a minimum threshold.
6 – The NRA shall ensure that the cost allocation criteria and the elements of the methodology to be used are publicly available.
Article 160
Report
Without prejudice to confidential matters, where it is established that there are net costs of universal service for which compensation is requested by the respective provider under paragraphs 1 and 2 of article 157, the NRA shall draw up and publish annually a report containing the calculated cost of universal service obligations, indicating the contributions made to the compensation fund by all undertakings involved and identifying any market benefits which may have accrued to the universal service providers, where a compensation fund has been established and is effectively in operation.
SECTION V
Designation of universal service providers
Article 161
Designation procedures
1 – In the cases provided for in paragraph 3 of article 150 and in paragraph 4 of article 151, it shall be incumbent upon the Government to designate the undertakings that must ensure universal service obligations, in accordance with this article.
2 – The selection of undertakings concerned referred to in the previous paragraph shall be made through an effective, objective, transparent, proportionate and non-discriminatory procedure that ensures, from the outset, that all undertakings may be selected.
3 – The terms of the selection procedure shall ensure that universal service is provided in a cost-effective manner and may be used as a means of determining the net cost of universal service obligations in accordance with point b) of paragraph 4 of article 157.
4 – The terms of the procedure referred to in the previous paragraphs shall also provide for the universal service obligations to be maintained in the event of a division, merger or assignment of the contractual position of the provider.
5 – The transfer of all or a substantial part of local access network assets by universal service providers to a separate legal entity belonging to a different owner shall be mandatorily communicated to the NRA at least 90 working days before the date set for its implementation.
6 – With the notification provided for in the preceding paragraph, universal service providers shall provide the NRA with the identification of the beneficiary or beneficiaries of the transfer, the contractual terms and conditions to which the assignment is subject, an indication of how they propose to ensure compliance with their universal service obligations, and any additional information that may be requested by the NRA under the terms of article 170 for assessment of the notified transaction.
7 – The NRA shall be responsible for assessing the effects of the transfer referred to in the previous paragraphs, and may, where justified and without prejudice to the powers of the Government, impose, alter or withdraw obligations.
CHAPTER III
Additional mandatory services
Article 162
Additional mandatory services
The Government may decide to make available to the public, in the Portuguese territory, services additional to those included in universal service obligations, but in that case no compensation mechanism involving specific undertakings may be imposed.
TITLE VI
«Must carry» obligations, equipment and illicit devices
Article 163
«Must carry» obligations
1 – The NRA may impose, on undertakings providing electronic communications networks used for the distribution of television and radio programme services to the public, «must carry» obligations for specific programme services and related complementary services as specified by the ERC under the law, where a significant number of end-users of such networks and services use them as their principal means to receive radio and television broadcasts.
2 – The preceding paragraph shall apply to accessibility services to enable appropriate access for end-users with disabilities and to programme-related data transmission services supporting connected television services and EPGs.
3 – The obligations under the previous paragraphs may only be imposed where they are necessary to meet clearly defined general interest objectives and shall be proportionate and transparent.
4 – The obligations provided for in the previous paragraphs shall be reviewed every five years as from the last review, through specification by the ERC of the services referred to in paragraph 1 which must be subject to the «must carry» obligation by undertakings providing electronic communications networks and services.
5 – The NRA may determine appropriate remuneration as compensation for the «must carry» obligations imposed, which shall be applied in a proportionate and transparent manner, and shall ensure that, in similar circumstances, there is no discrimination in the treatment of undertakings providing electronic communications networks and services.
6 – The provisions of this article shall be without prejudice to the regime established by Law No 33/2016, which extends the offer of programme services on digital terrestrial television, ensuring the appropriate technical conditions and price control.
Article 164
Interoperability of consumer digital television equipment
1 – Consumer equipment intended for the reception of digital television signals, capable of descrambling digital television signals, placed in the market for sale or rent or otherwise made available, shall possess the capability to:
a) Allow the descrambling of such signals in accordance with a common European scrambling algorithm as administered by a recognised European standardisation organisation;
b) Display signals that have been transmitted in the clear, provided that, in the event that such equipment is rented, the renter complies with the relevant contract.
2 – Digital television sets with a screen of visible diagonal larger than 30 cm which is put on the market for sale or rent shall be fitted with at least one open interface socket, standardised by a recognised European standardisation organisation, permitting simple connection of peripherals, and able to pass all relevant elements of a digital television signal, including information relating to interactive and conditionally accessed services.
3 – Digital television service providers shall, where appropriate, promote the interoperability of the digital television equipment they supply to their end-users, so that it can be re-used with other digital television service providers where technically possible.
4 – Without prejudice to the regime for the reception and selective collection of waste electrical and electronic equipment, provided for in Decree-Law No 152-D/2017, of 11 December, after cessation of the contract, end-users may return digital television equipment to the respective digital television service provider, by means of a simple procedure free of charge, unless the latter demonstrates that the equipment in question is fully interoperable with digital television services offered by other service providers.
5 – Digital television equipment which is in conformity with harmonised standards the references of which have been published in the Official Journal of the European Union or parts thereof shall be presumed to be in conformity with the interoperability requirement set out in the preceding paragraph and covered by those standards or parts thereof.
6 – The NRA shall publish the references of standards mentioned in paragraphs 2 and 5 on its website.
Article 165
Interoperability for car radio receivers
1 – Any car radio receiver integrated in a new vehicle of category M which is made available on the market for sale or rent as from the entry into force of this law shall comprise a receiver capable of receiving and reproducing at least radio services provided via digital terrestrial radio broadcasting.
2 – Receivers which are in accordance with harmonised standards the references of which have been published in the Official Journal of the European Union or with parts thereof shall be considered to comply with that requirement covered by those standards or parts thereof.
3 - The provisions of this article shall be without prejudice to the sale of vehicles in stock which are placed on the market for sale or lease after the entry into force of this law.
Article 166
Illicit devices
1 - The following activities shall be prohibited:
a) The manufacture, import, distribution, sale, rental or possession for commercial purposes of illicit devices;
b) The installation, maintenance or replacement for commercial purposes of an illicit device;
c) The use of commercial communications to promote illicit devices;
d) Acquisition, use, ownership or mere possession, in any manner, of illicit devices for the private purposes of the acquirer, user, owner or possessor, as well as a third party.
2 - For the purposes of the preceding paragraph, the following definitions shall apply:
a) «Illicit device» shall mean any equipment or software designed or adapted to give access to a protected service in an intelligible form without the authorisation of the service provider;
b) «Conditional access device» shall mean any equipment or software designed or adapted to give access to a protected service in an intelligible form;
c) «Protected service» shall mean any television, radio broadcasting or information society service provided for remuneration and on the basis of conditional access, or the provision of conditional access to such services considered as a service in its own right.
3 – The actions provided for in point a) of paragraph 1 constitute a crime punishable by a prison sentence of up to three years or a fine, if a more serious penalty is not applicable.
4 - Attempt shall be punishable.
5 - Criminal proceedings depend on complaint.
TITLE VII
Fees, supervision and monitoring
CHAPTER I
Fees
Article 167
Annual fee
1 – Undertakings providing electronic communications networks and services covered by the general authorisation scheme shall be subject to an annual fee.
2 – The fee referred to in the previous paragraph shall be determined on the basis of the administrative costs incurred in the management, control and enforcement of the general authorisation scheme and of rights of use and of the specific conditions referred to in article 28, which may include costs for international cooperation, harmonisation and standardisation, market analysis, monitoring compliance and other market control, as well as regulatory work involving preparation and enforcement of secondary legislation and administrative decisions, such as decisions on access and interconnection.
3 – The amount or aliquot, periodicity and, where applicable, total or partial exemptions and reductions, the periods of validity and the maximum and minimum limits for collection of the fee referred to in the preceding paragraph shall be established, after consultation with the NRA, by order of the members of the Government responsible for the areas of finance and electronic communications, and shall constitute the NRA’s own revenue.
4 – The fee referred to in paragraph 1 shall be imposed in an objective, proportionate and transparent manner, so as to minimise additional administrative costs and related charges.
5 – The tax may be waived for undertakings with a turnover below a certain threshold, whose activities do not reach a minimum market share, or with a very limited territorial scope.
6 – The NRA shall publish an annual report of its administrative costs referred to in paragraph 2 and the total amount resulting from the collection of the fee referred to in paragraph 1 so as to make appropriate adjustments for the difference between the total amount of the fees and the administrative costs.
Article 168
Fees due for the use of radio spectrum and numbering resources
1 - The following shall be subject to the payment of fees:
a) The allocation and renewal of rights of use for radio spectrum, as well as the use of radio spectrum;
b) The allocation, including the reservation, and renewal of rights of use for numbering resources, and the use of numbering resources.
2 – The amount or aliquot, periodicity and, where applicable, total or partial exemptions and reductions, the periods of validity and the maximum and minimum limits for collection of the fee referred to in the preceding paragraph shall be established, after consultation with the NRA, by order of the members of the Government responsible for the areas of finance and electronic communications, and shall constitute the NRA’s own revenue.
3 – The fees referred to in paragraph 1 shall reflect the need to ensure the optimal use of radio spectrum and numbering resources and shall be objectively justified, proportionate, transparent and non-discriminatory and take into account the general objectives set out in article 5.
4 – With regard to rights of use for radio spectrum, applicable fees shall be set at a level which ensures efficient allocation, renewal and use of radio spectrum, inter alia by:
a) Setting reserve prices as a minimum amount by having regard to the value of those rights in their possible alternative uses;
b) Taking into account costs entailed by conditions attached to those rights;
c) Applying, to the extent possible, payment arrangements linked to the actual availability for use of the radio spectrum.
5 – For the purposes of the preceding paragraph, the amount of fees shall take into account the values defined by the NRA for reserve prices, the assessment of the additional costs of the conditions associated with the rights of use and the effective availability of the radio spectrum.
Article 169
Fees for rights of way
1 – Fees for rights of way shall reflect the need to ensure the optimal use of resources and shall be objectively justified, proportionate, transparent and non-discriminatory, and shall take into account the general objectives in article 5.
2 – The rights and charges related to the deployment, passage and crossing of public and private municipal domains by systems, equipment and other resources of undertakings offering public electronic communications networks and publicly accessible electronic communications services at a fixed location may give rise to the establishment of a municipal fee for rights of way (TMDP) and remuneration for the use of infrastructures capable of housing electronic communications networks that belong to the public or private domain of local authorities, as provided for in Decree-Law No 123/2009, of 21 May.
3 - TMDP is governed by the following principles:
a) It is determined by applying a percentage to the total monthly billing issued by undertakings that offer publicly available electronic communications networks and services, at a fixed location, to all end customers in the corresponding municipality;
b) The percentage referred to in the previous point shall be approved annually by each municipality by the end of December of the previous year and shall not exceed 0.25%.
4 – In municipalities where the collection of TMDP is approved under the previous paragraph, it shall be paid by undertakings that offer publicly available electronic communications networks and services at a fixed location.
5 – The State and the Autonomous Regions shall not charge undertakings that provide public electronic communications networks and publicly available electronic communications services fees or any other charges for the deployment, passage or crossing of the public and private domains of the State and the autonomous regions, on the surface or underground, for systems, equipment and other physical resources required for their activity.
6 – It shall be incumbent on the NRA to approve the regulation defining the rules and procedures to be adopted by undertakings offering public electronic communications networks and publicly available electronic communications services, at a fixed location, for the calculation, settlement and delivery of the TMDP to municipalities.
CHAPTER II
Supervision and monitoring
Article 170
Provision of information by undertakings
1 – Undertakings providing electronic communications networks, services, associated facilities or associated services and other entities subject to obligations under this law shall provide all the information required, including financial information, to enable the NRA, other competent authorities and BEREC to exercise their powers under national and EU law.
2 – Undertakings providing electronic communications networks and services, associated facilities or associated services shall, if requested by the NRA or, if necessary for the fulfilment of their tasks, by other competent authorities, provide information on:
a) Future network or service developments that may have an impact on the wholesale services they make available to their competitors;
b) Information on electronic communications networks and associated facilities, which is disaggregated at local level and sufficiently detailed to enable the geographical survey and designation of areas in accordance with articles 173 and 174.
3 – Where the information obtained in accordance with the paragraphs above is insufficient to enable the NRA, other competent authorities and BEREC to carry out their tasks under national and European Union law, such information may be obtained from other relevant entities operating in the electronic communications sector or in closely related sectors, including the content provision sector.
4 – For the purposes of the previous paragraph, where this is necessary to ensure that BEREC carries out its functions, the NRA may collect the necessary data and other information from market participants.
5 – Undertakings with significant market power on wholesale markets shall also provide the NRA with information on accounting data on the retail markets associated with those wholesale markets.
6 – Other competent authorities may, for the performance of their duties under this law, request access to the information available in the SIIA.
7 – Requests for information shall comply with the principles of suitability to the purpose of the request and proportionality and shall be duly substantiated.
8 – The information requested shall be provided truthfully, objectively and in full within the time limit, in the form and to the level of detail required, and the circumstances and frequency in which it is to be sent may be established.
9 – For the purposes of the preceding paragraphs, undertakings and bodies subject to the obligation to provide information under the terms of this law shall identify, in a concrete and justified manner, the information that they consider to be confidential and shall attach, if justified, a non-confidential copy of the documents containing such information.
10 – Failure to specify or substantiate the confidentiality of the information identified as such under the terms set out in the preceding paragraph shall be equivalent to not identifying such information as confidential, without prejudice to the NRA’s powers in this area.
Article 171
Provision of specific information
1 – Without prejudice to article 170 and the information and reporting obligations under national law, the NRA and other competent authorities may request undertakings to provide information with regard to the general authorisation, the rights of use or the specific obligations referred to in articles 81, 84 and 106 to 109, which is proportionate and objectively justified in particular for the purposes of:
a) Verifying, on a systematic or case-by-case basis, compliance with:
i) The obligation to pay the administrative fees that have been determined in accordance with article 167;
ii) The obligation to use radio spectrum efficiently;
iii) The obligation to pay fees related to rights of use that have been determined in accordance with article 168;
iv) The obligation to use numbering resources efficiently;
v) Any of the specific obligations set out in articles 81, 84 and 106 to 109;
b) Verifying, on a case-by-case basis, compliance with conditions attached to the general authorisation for the provision of electronic communications networks and services, except for number-independent interpersonal communications services, to rights of use for radio spectrum or to rights of use for numbering resources, where a complaint has been received, where the NRA has other reasons to believe that a condition has not been complied with or where the NRA decides to investigate on its own initiative;
c) Carrying out procedures for and the assessment of requests for allocating rights of use;
d) Publishing comparative overviews of quality and price of services for the benefit of consumers;
e) Collating clearly defined statistics, reports or studies;
f) Carrying out market analyses for the purposes of this law, including data on the downstream or retail markets associated with or related to the markets which are the subject of the market analysis;
g) Safeguarding the efficient use and ensuring the effective management of radio spectrum and of numbering resources;
h) Evaluating future network or service developments that could have an impact on wholesale services made available to competitors, on territorial coverage, on connectivity available to end-users or on the designation of areas pursuant to article 173;
i) Conducting geographical surveys;
j) Responding to reasoned requests for information by BEREC.
2 – The information referred to in points a), b), and d) to j) of the preceding paragraph shall not be required prior to, or as a condition for, market access.
3 – The information requested under paragraph 1, where it concerns rights of use for radio spectrum, shall refer in particular to the effective and efficient use of radio spectrum, to compliance with coverage and quality of service obligations attached to the rights of use for radio spectrum and their verification.
4 – When requesting the information referred to in paragraph 1, the NRA and other competent authorities shall inform undertakings of the specific purpose for which this information is to be used.
5 – The NRA or other competent authorities shall not duplicate requests of information already made by BEREC, pursuant to article 40 of Regulation (EU) 2018/1971 of the European Parliament and of the Council of 11 December 2018, where BEREC has made the information received available to them.
Article 172
Provision of information by the NRA and other competent authorities
1 – The NRA and other competent authorities shall provide the European Commission with the necessary information to carry out the tasks conferred on it by the Treaty on the Functioning of the European Union (TFEU).
2 – The information referred to in the previous paragraph shall be provided to the European Commission upon reasoned request, commensurate with the performance of tasks conferred upon it by TFEU.
3 – Where the NRA and other competent authorities provide the European Commission with information previously provided to them by undertakings upon request, they shall inform the undertakings which provided the information of this fact.
4 – The NRA and other competent authorities may request the European Commission, on an explicit and reasoned request, not to make the information provided available to authorities of other Member States.
5 – The NRA and other competent authorities shall, upon reasoned request, provide BEREC, other national or other Member States’ competent authorities and other Member States’ regulatory authorities with the information necessary for them to carry out their tasks under national or European Union law.
6 – For the purposes of the review, control and supervision of electronic communications, the NRA shall share information in a timely manner with the European Commission, BEREC, and other competent authorities concerned.
7 – Where the NRA or other competent authority considers information collected under paragraphs 1 to 5 of article 171, in particular information collected through a geographical survey, to be confidential in accordance with national or European Union law, it shall inform the European Commission, BEREC and any other competent authorities concerned so that they can ensure such confidentiality.
8 – Without prejudice to compliance with national and European Union law on the safeguarding of confidential information, in particular business secrets or information on the internal life of undertakings, and the protection of personal data, the NRA shall publish such information as would contribute to an open and competitive market.
9 – For the purposes of the previous paragraph, the NRA and other competent authorities shall publish the conditions for public access to such information, including the procedures for obtaining such access.
Article 173
Geographical survey of networks deployment
1 – It shall be incumbent on the NRA to carry out a geographical survey of the reach of electronic communications networks capable of delivering broadband.
2 - The geographical survey shall include:
a) The current geographic reach of broadband networks;
b) A forecast, for a period determined by the NRA, of the reach of new broadband networks, including very high capacity networks.
3 – The geographical survey shall include, to the extent required, information of relevance for the performance of the tasks of the NRA and other competent authorities as provided by law, for the purposes of:
a) The definition of coverage obligations to be attached to rights of use for frequencies, pursuant to article 39, and definition of the relevant markets, pursuant to article 73;
b) The allocation of public funds for the deployment of electronic communications networks and the drafting of national broadband plans;
c) The setting of universal service availability obligations under article 150;
d) Other tasks set out in the law.
4 – The forecast referred to in point b) of paragraph 2 shall include information on the plans of any undertaking providing public electronic communications networks to deploy broadband networks, including very high capacity networks, or to upgrade existing broadband networks to download speeds of at least 100 Mbps, to the extent that such information is available and can be provided with reasonable effort.
5 – For the purposes of the previous paragraphs, undertakings which provide public electronic communications networks shall provide the information requested of them under the terms to be defined by the NRA, within the period of time and in the manner and to the level of detail required, including as regards territorial granularity and information on quality of service and respective parameters.
6 – When preparing and carrying out the geographical survey, the NRA shall take into account the guidelines published by BEREC, under the terms laid down in article 22 of the EECC.
Article 174
Designation of geographical areas without very high capacity networks
1 – On the basis of the geographical survey, including the forecast referred to in point b) of paragraph 2 of article 173, the NRA may designate areas with clear territorial boundaries where no undertaking providing public electronic communications networks has deployed or is planning to deploy a very high capacity network or significantly upgrade or extend its network to a performance of at least 100 Mbps download speeds.
2 – The NRA shall make available on its website information on the geographical areas designated under the terms of the preceding paragraph.
3 – By reference to a geographical area designated in accordance with paragraph 1, the NRA may invite undertakings providing public electronic communications networks to express their interest in deploying very high capacity networks in those areas or in upgrading an existing network to download speeds of at least 100 Mbps within the period of time defined by the NRA, in accordance with point b) of paragraph 2 of article 173.
4 – Where the invitation referred to in the previous paragraph results in an undertaking expressing an interest, the NRA may make a further invitation so that other undertakings providing public electronic communications networks express their interest in deploying very high capacity networks or upgrading an existing network to download speeds of at least 100 Mbps in designated geographical areas.
5 – For the purposes of paragraphs 3 and 4, the NRA shall specify the information to be made available by undertakings in their expressions of interest, so as to ensure a level of detail no less than that set out in paragraphs 4 and 5 of article 173 for the purpose of producing forecasts.
6 – On the basis of the information collected in the geographical survey carried out pursuant to article 173, the NRA, where it makes the invitation referred to in paragraph 4, shall inform undertakings which have expressed an interest as to whether the designated area is covered, or is likely to be covered, by a next-generation access network that does not offer download speeds of at least 100 Mbps.
7 – Procedures adopted by the NRA under paragraphs 3 to 6 shall be efficient, objective, transparent, proportionate and non-discriminatory and shall not exclude in advance any undertaking providing public electronic communications networks.
Article 175
Use of the results of the geographical survey
1 – The NRA and other competent authorities shall take into account the results of the geographical survey and designation of geographical areas without very high capacity network coverage for the purposes of carrying out their tasks, including those referred to in paragraph 3 of article 173.
2 – Without prejudice to the preceding paragraph, the NRA may use, in whole or in part, the information gathered in the context of the geographical survey, in the exercise of the powers conferred on it by this law.
Article 176
Provision of information from the geographical survey
1 – The NRA shall make the results of the geographical survey carried out pursuant to article 173 available to other competent authorities, provided that those authorities ensure the same level of protection of confidentiality as that afforded by the NRA to confidential information, in particular information involving business secrets or the internal affairs of undertakings.
2 - The results of the geographical survey shall be made available to BEREC and to the European Commission under the same conditions, upon their request.
3 – Where it makes information available under the terms of the preceding paragraphs, the NRA shall inform the undertakings which provided the information thereof.
4 – The NRA shall make information concerning the results of the geographical survey carried out available on its website or on a platform so that they can be re-used, while safeguarding confidential information, in particular business secrets or the internal life of undertakings.
5 – The NRA is also responsible for providing end-users with an information disclosure platform that enables them to determine the availability of broadband in different geographical areas to a level of detail that is useful in supporting their choice of the undertaking that provides them with electronic communications networks and services.
Article 177
Monitoring
1 – The NRA shall be responsible for monitoring compliance with this law and the respective regulations, through its monitoring agents or authorised representatives duly authorised by the Board of directors, without prejudice to the powers conferred on other entities, namely Autoridade de Segurança Alimentar e Económica (the Food and Economic Safety Authority), Autoridade Tributária e Aduaneira (the Tax and Customs Authority), CNPD, DGC and AdC.
2 - The bodies to which the NRA's activity is directed shall provide all the collaboration requested by the latter for the full performance of its monitoring functions, namely:
a) Submitting to and cooperating with the monitoring procedures set out in articles 12 and 44 of ANACOM’s Statutes;
b) Keeping adequate records of complaints from consumers and other end-users for a period of three years and making them available to the NRA whenever requested, under the terms of point j) of paragraph 1 of article 9 of ANACOM’s statutes.
Article 178
Administrative offences and fines
1 – Without prejudice to other applicable sanctions, the following shall be deemed to be minor administrative offences:
a) The failure to comply with the reporting obligations set out in paragraph 1 of article 24;
b) The failure to comply with mandatory standards and specifications provided for in paragraphs 1 and 4 of article 30;
c) The failure to comply with any of the conditions set out in paragraphs 1 and 2 of article 107.
2 – Without prejudice to other applicable sanctions, the following shall be deemed to be serious administrative offences:
a) The failure to cooperate with the NRA in violation of paragraph 6 of article 12;
b) The failure to comply with the obligations set out in paragraphs 1, 2 and 4 of article 17 and in paragraph 6 of article 17;
c) The failure to comply with the obligations provided for in paragraphs 1 and 2 of article 18;
d) The failure to comply with the obligations provided for in paragraph 3 of article 19;
e) The imposition of trading restrictions in violation of point d) of paragraph 1 of article 20;
f) The failure to comply with the obligation to notify the NRA in paragraph 1, failure to comply with the determination in paragraph 2, and failure to comply with the measures set out in paragraphs 4 and 5, all of article 24;
g) The failure to comply with any of the conditions set out in subpoints i) to vi) and viii) of point a), subpoints ii) to vi) of point b), subpoints ii) to iv) of c) of paragraph 1, and paragraph 3 of article 27;
h) The failure to comply with any of the specific conditions set out in article 28;
i) The violation of the rights of users provided for in paragraphs 2 and 4 and failure to comply with the obligation provided for in paragraph 3 of article 52;
j) The failure to comply with the obligations set out in paragraphs 1 and 3, violation of users’ rights set out in paragraph 2 and failure to comply with the NRA’s determination set out in paragraph 5, all of article 53;
k) The transfer of rights of use for numbers in violation of the terms and conditions set by the NRA under paragraph 5 of article 54;
l) The violation of conditions set out in paragraphs 2, 4 and 6 of article 55;
m) The failure to comply with any of the conditions set out in article 56, with the exception of paragraph g) of that article;
n) The opposition or the obstruction of the audit referred to in paragraph 1 of article 94;
o) The failure to comply with the obligation to provide information provided for in paragraph 2 of article 110;
p) The violation of any end-user rights provided for in paragraph 1 of article 113 and violation of any rights of consumers, micro-enterprises, small enterprises or non-profit organizations provided for in paragraph 2 of that article;
q) The violation of obligations and rights of the consumer laid down in paragraphs 1 to 4 of article 114;
r) The failure to comply with any of the obligations set out in paragraphs 1 to 3 of article 116 and the failure to provide information requested by the NRA under paragraph 4 of that article;
s) The failure to comply with any of the obligations set out in paragraphs 1 to 3 and 5 of article 117;
t) The failure to comply with any of the obligations set out in paragraphs 1 and 2 of article 119;
u) The violation of any of the obligations provided for in paragraphs 1, 2, and 4 to 12 of article 120;
v) The violation of any of the obligations and requirements set out in paragraphs 1 and 2 of article 121;
w) The violation of any of the obligations set out in paragraphs 1 to 4 of article 122 and failure to comply with a determination of the NRA under paragraph 6 of that article;
x) The violation of any of the obligations in paragraphs 1, 3 and 4 of article 123 and failure to comply with the limits set by the NRA under paragraph 2 of that article;
y) The violation of any of the barring obligations in paragraphs 1 to 4 and 7 of article 124 and failure to comply with determinations of the NRA under paragraphs 5 and 6 of that article;
z) The violation of the obligation under article 125;
aa) The refusal to contract in violation of paragraph 5 of article 126;
bb) The violation of rules regarding the suspension or extinction of the service set out in paragraphs 1 to 5 of article 127, including the failure to suspend the service for non-payment of bills in cases where such suspension is to occur, the issuing of bills after the moment in which the service was or is to be suspended or the service provision contract was or is to be cancelled, and the failure to restore the service, under the terms set out therein;
cc) The violation of rules regarding the suspension or extinction of the service set out in paragraphs 1 to 13 of article 128, including the failure to suspend the service for non-payment of bills in cases where such suspension is to occur, the issuing of bills after the moment in which the service was or is to be suspended or the service provision contract was or is to be cancelled, and the failure to restore the service, under the terms set out therein;
dd) The refusal to cancel the contract at no cost to the consumer under article 130;
ee) The violation of any of the obligations laid down in paragraphs 1, 2, 4 and 5 of article 131;
ff) The violation of the right to terminate the contract under paragraph 1 of article 132 and failure to comply with the obligations laid down in paragraphs 2 and 3 of that article;
gg) The violation of the obligations laid down in paragraphs 1 and 4 of article 133;
hh) The violation of the end-user right provided for in paragraphs 1 and 5 of article 135, violation of the obligation provided for in paragraph 3 and failure to comply with the terms set by the NRA under paragraph 4 of that article;
ii) The violation of any of the obligations set out in paragraphs 2, 4, 6 and 7 of article 136 and failure to comply with the procedure defined by the NRA under paragraph 3 of that article;
jj) The violation of any of the obligations set out in paragraphs 1 and 2 of article 138;
kk) The violation of any of the obligations set out in paragraphs 2 and 3 of article 139;
ll) The violation of any of the obligations set out in paragraphs 1 and 3 to 10 of article 140;
mm) The violation of end-user rights provided for in paragraphs 1 and 7 of article 141 and of any of the obligations provided for in paragraphs 3 to 6 and 8 to 12 of the same article;
nn) The failure to comply with obligations laid down by the NRA under paragraphs 1 to 4 of article 142;
oo) The violation of any of the obligations set out in paragraphs 1 and 3 of article 143 and the failure to comply with the requirements set out by the NRA under paragraph 2 of that article;
pp) The failure to comply with the obligations and conditions imposed by the NRA under paragraph 2 of article 145 and the violation of the end-users’ right provided for in paragraph 3 of the same article;
qq) The violation of obligations under paragraphs 1 and 2 to 6 of article 146;
rr) The violation of any of the obligations set out in paragraphs 1, 2 and 4 of article 155 and the failure to comply with the NRA’s decision under paragraph 5 of that article;
ss) The violation of the obligation provided for in paragraph 1 of article 156, the failure to comply with any of the obligations provided for in paragraphs 2 to 4 and the opposition or creation of obstacles to the audit provided for in paragraph 6 of the same article;
tt) The failure to comply with any of the obligations provided for in paragraphs 1 to 3 of article 164 and the violation of end-users’ right provided for in paragraph 4 of the same article;
uu) The practice of activities provided for in point d) of paragraph 1 of article 166;
vv) The failure to comply with the rules and procedures defined by the NRA under paragraph 6 of article 169 in relation to the conduct of TMDP audits and the provision of information arising therefrom to the NRA;
3 - Without prejudice to other applicable sanctions, the following shall be deemed to be very serious administrative offences:
a) The failure to comply with NRA decisions taken in dispute resolution procedures referred to in paragraph 1 of article 12 and paragraph 2 of article 130;
b) The failure to comply with any of the conditions set out in subpoint i) of paragraph b), subpoint i) of point c) of paragraph 1 and in paragraph 3 of article 27;
c) The failure to comply with any of the obligations set out in paragraphs 1 and 3 of article 29;
d) The use of radio spectrum for the provision of electronic communications networks or services, including shared use, in violation of paragraph 1, and failure to comply with obligations under paragraph 5 of article 36;
e) The use of frequencies without obtaining the respective right of use, when required, or in breach of its terms, in violation of paragraph 1 of article 37;
f) The failure to comply with any of the conditions set out in paragraphs 1 and 3 to 6 of article 39, with the exception of that set out in point f) of paragraph 3 of the same article;
g) The failure to comply with any of the conditions set out in paragraph 2 of article 41;
h) The transfer or lease of rights of use for radio spectrum without prior application to the NRA, in violation of paragraph 2, the failure to notify the NRA of the completion of the transfer or lease of such rights in violation of paragraph 8, the transfer or lease of such rights in violation of paragraphs 1 and 6, as well as the transfer or lease of such rights before expiry of the period provided for in paragraph 7, all of article 42;
i) The failure to comply with any of the conditions provided for or any of the measures adopted under paragraph 2 of article 44;
j) The access to public electronic communications networks via radio local area networks located at an end-user’s premises without the end-user’s informed consent in violation of paragraph 3 and unilateral restriction or prevention of end-users in violation of paragraph 4 of article 50;
k) The use of numbering resources without obtaining the respective right of use, or in disagreement with its terms, in violation of paragraphs 1 and 10 of article 54;
l) The failure to cooperate with the NRA in violation of paragraph 3 of article 58;
m) The failure to comply with any of the obligations set out in article 59;
n) The failure to comply with obligations set out in paragraphs 1 and 2 of article 60;
o) The failure to comply with obligations set out in paragraphs 1 and 2 of article 61;
p) The failure to comply with the additional requirements set out in paragraphs 1 and 2 of article 62;
q) The failure to comply with determinations imposed by the Commission or to oppose or obstruct the security assessment provided for in paragraphs 5 and 7 of article 62 respectively;
r) The failure to comply with any of the obligations set out in paragraphs 1, 2 and 4 of article 63;
s) The opposition or the obstruction of the audit provided for in paragraph 3 of article 63;
t) The failure to comply with the binding instructions provided for in paragraph 1 of article 64;
u) The failure to comply with obligations set out in paragraphs 1 and 2 of article 66;
v) The violation of users’ rights and undertakings’ obligations provided for in paragraphs 1 to 3, 5 and 6 of article 67 and of the criteria and obligations provided for in paragraph 4 of the same article;
w) The failure to comply with any of the obligations set out in paragraphs 1, 2 and 3 of article 68;
x) The failure to comply with the notice periods and conditions set out in paragraphs 7 and 8 of article 74;
y) The failure to comply with the obligations laid down in paragraphs 3 and 4 of article 81;
z) The failure to comply with the obligations imposed by the NRA under paragraph 1 of article 82 and the breach of the obligation set out in paragraph 2 of that article;
aa) The violation of confidentiality obligations provided for in paragraphs 1 and 2 of article 83;
bb) The failure to comply with any of the obligations set out in paragraphs 1, 3, 5 and 7 of article 84;
cc) The failure to make available to the NRA the elements provided for in paragraph 3 of article 88;
dd) The failure to comply with any of the conditions set out in paragraph 1 of article 91;
ee) The failure to comply with obligations set out in paragraphs 1, 2 and 5 of article 95;
ff) The failure to comply with the obligation to inform the NRA in advance and in good time as set out in paragraph 2 of article 99;
gg) The violation of obligations provided for in paragraphs 1 and 2 of article 102;
hh) The violation of any of the obligations provided for in paragraph 1 of article 103;
ii) The violation of any of the obligations and conditions set out in paragraphs 1 to 3 and 8 of article 104;
jj) The violation of any of the obligations under paragraphs 1 and 4 of article 105;
kk) The violation of any of the obligations under article 106;
ll) The violation of the obligation provided for in paragraph 2 of article 108;
mm) The violation of any of the obligations provided for in paragraphs 1, 3 and 4 of article 109 and the opposition or obstruction of the audit provided for in paragraph 5 of the same article;
nn) The failure to comply with the non-discrimination obligation laid down in article 111;
oo) The failure to comply with any of the requirements set out in paragraph 1 of article 115;
pp) The violation of the obligation provided for in paragraph 5 of article 120;
qq) The failure to comply with the determination of the NRA under paragraph 3 of article 121;
rr) The failure to comply with the conditions laid down in paragraphs 3 and 4 of article 126 and the refusal to contract in violation of paragraph 6 of the same article;
ss) The violation of the obligation laid down in paragraph 1 of article 145;
tt) The failure to comply with obligations set out in paragraph 6 of article 151;
uu) The violation of any of the obligations set out in paragraphs 1 and 4 of article 152 and the failure to comply with any determination of the NRA under paragraph 3 of that article;
vv) The violation of obligations under articles 153 and 154;
ww) The failure to meet performance targets set out in paragraph 5 of article 156;
xx) The failure to make available the accounts and information referred to in paragraph 5 of article 158 and the opposition or obstruction of the audit referred to in the same paragraph 5;
yy) The failure to comply with the obligation to contribute in violation of paragraph 2 of article 159;
zz) The violation of any of the obligations set out in paragraphs 5 and 6 of article 159 and the failure to comply with any determination of the NRA under paragraph 7 of that article;
aaa) The failure to comply with the «must carry» obligation provided for in paragraph 1 of article 163, under paragraph 5 of the same article;
bbb) The performance of activities provided for in points b) and c) of paragraph 1 of article 166;
ccc) The violation of paragraphs 1, 2, 5 and 8 of article 170;
ddd) The failure to provide the information requested by the NRA under paragraph 1 of article 171;
eee) The failure to provide the information requested in the terms defined by the NRA under paragraph 5 of article 173;
fff) The failure to make available appropriate, true, correct and complete information specified by the NRA under paragraph 5 of article 174;
ggg) The violation of any of the obligations provided for in paragraph 2 of article 177;
hhh) The failure to comply with decisions ordering interim measures under paragraphs 1 and 3 of article 182;
iii) The failure to comply with legitimate orders or warrants of the NRA which have been duly communicated to the addressees thereof.
4 – The violation of obligations under paragraph 7 of article 3, paragraphs 3 to 5 of article 8, paragraphs 1, 2, 4 and 6 of article 13 and paragraphs 1, 2, 6 and 7 of article 14 of Regulation (EU) 2022/612 of the European Parliament and of the Council, of 6 April 2022, on roaming on public mobile communications networks within the Union, shall be deemed to be a serious offence.
5 – The following shall be deemed to be very serious administrative offences under the regulation referred to in the previous paragraph:
a) The violation of obligations under paragraphs 1, 2 and 5 of article 3, paragraphs 1 and 2 of article 4, paragraph 1 of article 5, paragraph 1 of article 6, paragraph 4 of article 7, paragraphs 1 and 2 of article 8, paragraphs 1 and 2 of article 9, paragraphs 1, 2 and 4 of article 10, paragraphs 1 and 2 of article 11, article 12, paragraph 3 of article 13, paragraphs 3, 4 and 8 of article 14 and article 15 of the referred regulation;
b) The violation of determinations issued by the NRA in the exercise of the powers conferred by the final part of paragraph 6 of article 3 and by paragraphs 6 and 7 of article 17 of the referred regulation;
c) The violation of the information obligation provided for in paragraph 4 of article 17 of the referred regulation.
6 – The following shall be deemed to be 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 set out in paragraphs 4 and 5 of article 3 and in paragraph 2 of article 4 of the referred regulation;
b) The violation of information obligations provided for in paragraph 1 of article 4 of the referred regulation;
7 – The following shall be deemed to be 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 referred 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 referred regulation;
c) The violation of the information obligation provided for in paragraph 2 of article 5 of the referred regulation.
8 – It shall be an administrative offence for undertakings providing publicly available electronic communications networks and services to adopt usual or standard behaviour, as well as to issue guidelines, recommendations or instructions to employees, agents or business partners, the application of which may lead to the violation of legal rules or determinations issued by the NRA.
9 – The administrative offence referred to in the previous paragraph shall be deemed to be very serious whenever its practice results or is likely to result in a serious or very serious offence, being serious in all other cases.
10 – Minor administrative offences shall be punishable by the following fines:
a) If committed by a natural person, between EUR 100 and EUR 2500;
b) If committed by a micro-enterprise, between EUR 200 and EUR 5000;
c) If committed by a small enterprise, between EUR 500 and EUR 10 000;
d) If committed by a medium-sized enterprise, between EUR 1000 and EUR 20 000;
e) If committed by a large enterprise, between EUR 2000 and EUR 100 000.
11 – Serious administrative offences shall be punishable by the following fines:
a) If committed by a natural person, between EUR 250 and EUR 7500;
b) If committed by a micro-enterprise, between EUR 1000 and EUR 10 000;
c) If committed by a small enterprise, between EUR 2000 and EUR 25 000;
d) If committed by a medium-sized enterprise, between EUR 4000 and EUR 50 000;
e) If committed by a large enterprise, between EUR 10 000 and EUR 1 000 000.
12 – Very serious administrative offences shall be punishable by the following fines:
a) If committed by a natural person, between EUR 750 and EUR 20 000;
b) If committed by a micro-enterprise, between EUR 2000 and EUR 50 000;
c) If committed by a small enterprise, between EUR 6000 and EUR 150 000;
d) If committed by a medium-sized enterprise, between EUR 10 000 and EUR 450 000;
e) If committed by a large enterprise, between EUR 20 000 and EUR 5 000 000.
13 – For the purposes of paragraphs 8 to 12, the size of offending undertakings shall be determined in accordance with the framework system for administrative offences in the communications sector, approved by Law No 99/2009, of 4 September.
14 – Where the administrative offence results from failure to comply with a legal duty or order issued by the NRA, the imposition of sanctions or their enforcement shall not exempt the offender from complying with the duty or order, if such compliance is still possible.
15 – In the cases referred to in the preceding paragraph, the offender may be subject to an order by the NRA to comply with the duty or order in question, failure to comply with which within the prescribed period may result in the imposition of a penalty payment under article 181.
16 – The administrative offences provided for in this law shall be punishable by negligence.
Article 179
Additional penalties
1 – In addition to the fines set out in article 178, the following additional penalties may also be applied, whenever justified by the seriousness of the offence and the fault of the offender:
a) Forfeiture to the State of illicit objects, equipment and devices, in the cases of the offences provided for in points tt) and uu) of paragraph 2 and ccc) of paragraph 3 of article 178;
b) Prohibition to exercise the respective activity up to a maximum of two years, in the cases of the offences provided for in points g) of paragraph 2 and a), b), d), e), h), k), t) and bbb) of paragraph 3 of article 178;
c) Loss of the right to participate in competitive or comparative selection procedures promoted under this law up to a maximum of two years, in the cases of the offences provided for in paragraphs e), f) and bbb) of paragraph 3 of article 178;
2 – Where the forfeiture of illicit objects, equipment or devices is declared in favour of the State, under the terms of point a) of the previous paragraph, the respective owner or holder shall be required to deliver them to the NRA within 30 working days from the date of notification of the decision determining the forfeiture.
Article 180
Proceedings and application
1 – The opening of administrative offence proceedings shall be incumbent on the Board of Directors of the NRA, and their examination shall be conducted by the respective departments.
2 – The application of warnings and of fines and additional penalties provided for in this law, as well as the closing of administrative offence proceedings, shall be incumbent on the Board of Directors of the NRA.
3 - The competences provided for in the preceding paragraphs may be delegated.
4 – 60 % of the fines shall revert to the State and 40 % to the NRA.
5 – Failure to comply with the conditions set out in paragraphs 3 and 4 of article 126 shall be an exception to the preceding paragraphs, and CNPD shall be responsible for opening and examining the administrative offence proceedings, as well as applying the respective fines, 40% of which shall revert to CNPD.
Article 181
Administrative offence procedure
1 – Without prejudice to other applicable sanction mechanisms, where the NRA finds that an undertaking does not comply with one or more of the conditions of the general authorisation, of the rights of use for radio spectrum or of the rights of use for numbering resources, or with any of the specific obligations provided for in articles 82, 84 and 104 to 108, it shall notify the undertaking of that fact and give it the opportunity to state its views within a period of not less than 10 working days.
2 – Following the hearing under the preceding paragraph, the NRA may:
a) Require the undertaking to end the non-compliance immediately or within a reasonable time limit set by the NRA for that purpose;
b) Take any measures deemed to be proportional to ensure compliance with the applicable conditions.
3 – For the purposes of the preceding paragraph, the NRA may:
a) Apply periodic penalty payments, as provided for in this law;
b) Issue orders to cease or postpone the provision of services or packages of services, the supply of which is likely to cause significant harm to competition, which shall remain in force until the obligations in respect of access imposed under article 74 are complied with.
4 – The measures imposed and the reasons on which they are based shall be communicated by the NRA to the undertaking concerned within two working days of their approval.
5 – In cases of serious or repeated failure to comply with the conditions of the general authorisation, the rights of use for radio spectrum or the rights of use for numbering resources, as well as with obligations referred to in articles 39, 82, 84 and 104 to 108, where the measures imposed under paragraphs 2 to 4 have failed to achieve the desired result, the NRA may order the suspension of the undertaking’s activity, the suspension, for a maximum of two years, or the revocation, in whole or in part, of the respective rights of use.
Article 182
Interim measures
1 – Without prejudice to article 181, where the NRA has evidence of non-compliance with the conditions of the general authorisation, the rights of use for radio spectrum or the rights of use for numbering resources, as well as the obligations referred to in articles 39, 82, 84, 104 to 108, which poses an immediate and serious threat to public policy, public security or public health or would create serious economic or operational problems for other undertakings providing electronic communications networks and services or users of such networks or services or other users of the radio spectrum, the NRA may take urgent interim measures to remedy the situation before taking a final decision, setting a time limit for their duration which may not exceed 66 working days.
2 – In the cases referred to in the previous paragraph, the NRA shall give the undertaking concerned, after adopting the measures, the opportunity to state its views and propose possible solutions.
3 – After the hearing provided for in the preceding paragraph, the NRA may confirm the interim measures, the duration of which may be extended for a further 66 working days, where the final decision has not been taken.
4 – The preceding paragraphs shall be without prejudice to the application of the interim measures regime provided for in the Administrative Procedure Code.
Article 183
Periodic penalty payments
1 – Without prejudice to other applicable sanctions, in the event of failure to comply with NRA decisions imposing administrative sanctions or ordering, in the exercise of its powers under law, the adoption of conduct or certain measures by undertakings providing electronic communications networks and services, the NRA may, where justified, impose a periodic penalty payment.
2 – The periodic penalty payment consists of imposing on the undertaking providing electronic communications networks or services a penalty payment for each day of delay exceeding the time limit set for compliance with the obligation.
3 – The sanction referred to in the preceding paragraphs shall be set in accordance with criteria of reasonableness and proportionality, taking into account the turnover of the offender in the preceding calendar year and the negative impact caused to the market and users by failure to comply, and may vary between EUR 2000 and EUR 100 000 per day.
4 – The amounts set in accordance with paragraphs 2 and 3 may be increased for each day of non-compliance and may not exceed a maximum amount of EUR 3 000 000 and a maximum period of 30 consecutive days.
CHAPTER III
Provision of information by the national regulatory authority
Article 184
Publication of information
1 – The NRA shall make information available and keep it up to date, in particular on its website and ensuring its accessibility to users with disabilities, on at least the following matters:
a) Application of this legal framework;
b) Procedures governing public consultations adopted by the NRA for the purposes of article 10;
c) On-going consultations and their outcome, reports or conclusions, with the exception of confidential information, in particular business secrets or internal life of undertakings, for the purposes of article 10;
d) Rights, conditions, procedures, fees and decisions concerning general authorisations, rights of use and rights of way;
e) Statistical information;
f) Transfer of rights of use, for the purposes of article 42 and paragraph 5 of article 54;
g) Register of undertakings providing electronic communications networks and services, for the purposes of article 19;
h) Obligations imposed on undertakings under title iv, identifying their markets, safeguarding confidential information, including business secrets or information on the internal life of undertakings;
i) Information on rights within the scope of the universal service, including those provided for in article 155;
j) Result of the calculation of the universal service net cost and of the audit carried out in accordance with article 158;
k) Report on universal service costs in accordance with article 160;
l) Available mechanisms for out-of-court dispute resolution under article 144;
m) Information concerning the results of the geographical survey, in accordance with article 176;
n) The tasks incumbent on the NRA and other competent authorities;
o) List of standards referred to in article 30.
2 – The NRA shall publish a notice in the Official Gazette specifying how and where the information made available under the preceding paragraph is published and whenever there are changes to the content of such notice.
3 – For the purposes of point c) of paragraph 1, where the information relates to different areas of Public Administration, the NRA shall make all reasonable efforts to publish on its website an overview of that information in a user-friendly manner, including an indication of the bodies competent in those matters, with a view to facilitating applications for rights to install facilities.
4 – The NRA shall make available on its website a list of undertakings offering publicly available electronic communications services that provide accessibility conditions and practices in accordance with the requirements defined by the NRA under article 115, in order to meet the needs of users with disabilities.
Article 185
Publication of use test data
1 – To the extent that it can contribute to achieving the objectives set out in article 5, the NRA may make available information concerning use tests of electronic communications services, including internet access service, carried out voluntarily by end-users, in circumstances determined by them, namely through NRA platforms.
2 – The information referred to in the previous paragraph may cover different quality of service parameters or practices with an impact on the quality of service, including the results of the tests registered and their breakdown by undertaking offering electronic communications networks and services, type of service, type of equipment used and location of accesses subject to testing, among others.
3 – The information provided for in the previous paragraphs shall be made available in compliance with the legal framework applicable to the protection of privacy and personal data.
Article 186
Reporting to the European Commission
The NRA shall report to the European Commission on the following:
a) The notices referred to in paragraph 2 of article 184, at the time of their publication;
b) Identification of undertakings designated as having significant market power, as well as specific obligations imposed on them and amendments thereto;
c) Identification of undertakings providing universal service and obligations imposed on them;
d) Identification of the NRA and other competent authorities, to which tasks have been assigned under this Law, their respective responsibilities and any changes thereto;
e) Any information requested by the European Commission for the purpose of the regular review of the implementation of the EECC.
TITLE VIII
Final provisions
Article 187
Counting of time-limits
1 – Without prejudice to Law No 99/2009, of 4 September, the rules of article 87 of the Administrative Procedure Code shall apply to the counting of administrative time limits provided for in this law.
2 – The time limits provided for in articles 14, 45 and chapter ii of title iv shall be counted according to the rules established by the European Commission in the recommendations or guidelines adopted pursuant to the EECC.
Article 188
Maintenance of rights and obligations
1 – Undertakings shall maintain the rights of use for radio spectrum and numbering resources allocated before the entry into force of this law until the expiry of the period stated in the respective allocation title, where such period exists.
2 – The provisions of article 41 shall be without prejudice to the renewal clauses applicable to rights of use for radio frequencies in force on the date on which this law enters into force.
3 – All obligations undertaken by undertakings within the scope of selection procedures carried out prior to the entry into force of this law shall also continue to apply, and therefore the relevant parts of the respective regulations shall remain in force.
4 – Without prejudice to article 163, legislative or administrative measures which require undertakings, when allocating access or interconnection, to offer different terms and conditions to different undertakings for equivalent services, or which impose obligations that are not related to the access or interconnection services actually provided, in this case without prejudice to the conditions set out in articles 27, 39 and 56, shall not be maintained.
Article 189
Maintaining the register
1 – On the date on which this law comes into force, the entries in the register provided for in paragraph 1 of article 21-A of Law No 5/2004, of 10 February 2004, will be transferred, with the necessary adjustments, to the register provided for in article 19.
2 – On the date on which this law comes into force, all entries in the register provided for in paragraph 1 of article 21-A of Law No 5/2004, of 10 February 2004 concerning undertakings that do not fall within the scope of the register provided for in article 19 shall be cancelled.
3 – The communication templates approved under the terms of Law No 5/2004, of 10 February, and ANACOM Regulation No 6/2018, of 5 January, shall remain in force until replaced by the NRA, in accordance with point b) of paragraph 6 of article 17.
4 – The NRA shall submit to BEREC, electronically and in accordance with the terms laid down in the EECC, information on all undertakings that offer electronic communications networks and services entered in the register.
ANNEX I
(referred to in paragraph 1 of article 116)
Information to be published
Pursuant to article 116, undertakings providing publicly available internet access services or publicly available interpersonal communications services shall ensure that up-to-date information on at least the following elements is published on their websites in a prominent place easily accessible to end-users:
1 - Contact details of the undertaking.
2 - Description of the services provided.
2.1 - Scope of the services provided and the main characteristics of each service, including any minimum levels of quality of service, where offered, and any restrictions imposed by the provider on the use of terminal equipment supplied.
2.2 – Prices of the services provided, including information on communications volumes (such as restrictions of data usage, numbers of voice minutes, numbers of messages) of specific tariff plans and the applicable prices for additional communication units, numbers or services subject to particular tariff conditions, charges for access and maintenance, all types of usage charges, special and targeted tariff schemes and any additional charges, as well as costs with respect to terminal equipment.
2.3 - After-sales, maintenance and customer assistance services provided and their contact details.
2.4 – Standard contract conditions, including duration of the loyalty period, charges due on early termination of the contract, rights related to the termination of contracts relating to bundled offers or elements thereof, and procedures and direct charges related to the portability of numbers and other identifiers, where appropriate.
2.5 – If the undertaking is a provider of number-based interpersonal communications services, information on access to emergency services and caller location, or any limitation on the latter. If the undertaking is a provider of number-independent interpersonal communications services, information on the degree to which access to emergency services may be supported or not.
2.6 – Details of products and services, including any functions, practices, policies and procedures and alterations in the operation of the service specifically designed for end-users with disabilities, in accordance with applicable rules on accessibility requirements for products and services.
3 - Dispute resolution mechanisms, including those developed by the undertaking.
ANNEX II
(referred to in paragraph 6 of article 117)
Quality of service parameters, definitions and measurement methods
For providers of access to a public electronic communications network:
For providers of interpersonal communications services who exert control over at least some elements of the network or have a service level agreement to that effect with undertakings providing access to the network:
Version number of ETSI EG 202 057-1 is 1.3.1 (July 2008).
For providers of internet access services:
Note 1 - Parameters shall allow for performance to be analysed at a regional level [namely, no less than level 2 in the Nomenclature of Territorial Units for Statistics (NUTS) established by Eurostat].
Note 2 – The NRA may decide not to require up-to-date information concerning the performance for those two parameters to be kept if evidence is available to show that performance in those two areas is satisfactory.
ANNEX III
(referred to in paragraph 2 of article 120)
Information requirements to be provided
A – Information requirements for providers of publicly available electronic communications services, except for transmission services used for the provision of machine-to-machine services
Undertakings providing publicly available electronic communications services, except for transmission services used for the provision of machine-to-machine services shall provide the following information:
1) As part of the main characteristics of each service provided:
i) the minimum quality levels of services, including the time for activation of services and the time for fault repair, as well as other minimum quality levels to the extent that they are provided and, for services other than internet access services, the specific guaranteed quality parameters;
ii) the right of end-users to compensation in case of failure to meet the contractually agreed deadline for activation of services or for repairing faults, as well as failure to show up on agreed dates.
Where no minimum levels of quality of service are provided, a statement to this effect shall be made.
The NRA may establish rules for automatic compensation of end-users, including minimum limits, following the public consultation procedure set out in article 10 of this law.
2) As part of the information on price, where and to the extent applicable, the respective activation prices, including installation of the electronic communications service and for any recurring or consumption-related charges.
3) As part of the information on the duration of the contract and the conditions for renewal and termination of the contract, including possible termination fees, to the extent that such conditions apply:
i) any minimum use or loyalty period required to benefit from promotional terms;
ii) any charges related to switching and compensation and refund arrangements for delay or abuse of switching, as well as information about the respective procedures;
iii) information on the right of consumers using pre-paid services to a refund, upon request, of any remaining credit in the event of switching, as set out in paragraphs 9 and 10 of article 138 of this law;
iv) any fees due on early termination of the contract, including information on unlocking the terminal equipment and any cost recovery with respect to terminal equipment;
4) any compensation and refund arrangements, including, where applicable, explicit reference to rights of consumers, which apply if contracted levels of quality of service are not met or if the provider responds inadequately to a security incident, threat or vulnerability.
5) Indication of the possibility of registering the end-user’s data in the database provided for in article 126 of this law, where appropriate.
6) the type of action that might be taken by the provider in reaction to security incidents or threats or vulnerabilities.
B – Information requirements for providers of internet access services and publicly available interpersonal communications services
I – In addition to the requirements set out in Part A, providers of internet access services and publicly available interpersonal communications services shall provide the following information:
1) As part of the main characteristics of each service provided:
i) any minimum levels of quality of service to the extent that these are provided, and taking account of the BEREC guidelines, regarding:
For internet access services: at least, latency, jitter, packet loss;
For publicly available interpersonal communications services, where they exert control over at least some elements of the network or have a service level agreement to that effect with undertakings providing access to the network: at least the time for the initial connection, failure probability, call signalling delays in accordance with annex ii; and
ii) Without prejudice to the right of end-users to use terminal equipment of their choice in accordance with paragraph 1 of article 3 of Regulation (EU) 2015/2120, of the European Parliament and of the Council of 25 November 2015, any conditions, including fees, imposed by the provider on the use of terminal equipment supplied.
2) As part of the information on price, where and to the extent applicable, the respective activation prices, including installation, where appropriate, of the electronic communications service and for any recurring or consumption-related charges:
i) details of specific tariff plan or plans under the contract and, for each such tariff plan the types of services offered, including where applicable, the volumes of communications (such as Mb, minutes, messages) included per billing period, and the price for additional communication units;
ii) in the case of tariff plan or plans with a pre-set volume of communications, the possibility for consumers to defer any unused volume from the preceding billing period to the following billing period, where this option is included in the contract;
iii) facilities to safeguard bill transparency and monitor the level of consumption;
iv) Price information regarding any numbers or services subject to particular tariff conditions;
v) The price of the individual elements of bundles including both services and terminal equipment to the extent they are marketed separately;
vi) Details and conditions, including fees, of any after-sales service, maintenance, and customer assistance; and
vii) The means by which up-to-date information on all applicable tariffs and maintenance charges may be obtained.
3) As part of the information on the duration of the contract and the conditions for renewal and termination of the contract, an indication of the duration of the loyalty period, the identification and quantification of the consideration associated with the establishment of this period, the procedure and means available for communicating termination of the contract and, in the case of bundled services, where appropriate, the conditions of termination of the bundle or of elements thereof.
4) Without prejudice to article 13 of Regulation (EU) 2016/679 of the European Parliament and of the Council, of 27 April 2016, information on what personal data is to be provided before the performance of the service or collected in the context of the provision of the service.
5) Information on products and services designed for end-users with disabilities and how such information can be obtained.
6) The means of initiating procedures for the resolution of disputes, including national and cross-border disputes, provided for in article 144 of this law.
II – In addition to the requirements set out in Part A and under Point I, companies providing internet access services and publicly available interpersonal communications services shall also provide the following information:
1) Any constraints on access to emergency services or caller location information due to a lack of technical feasibility insofar as the service allows end-users to originate calls to a number in a national or international numbering plan.
2) The end-user’s right to determine whether to include his or her personal data in a directory, and the types of data concerned, pursuant to article 13 of Law No 41/2004, of 18 August.
III – In addition to the requirements set out in Part A and under Point I, companies providing internet access services shall also provide the information required pursuant to paragraph 1 of article 4 of Regulation (EU) 2015/2120, of the European Parliament and of the Council of 25 November 2015.
