Ministério das Obras Públicas, Transportes e Comunicações (Ministry for Public Works, Transport and Communications)
Decree-Law
(This is not an official translation of the law)
The Regulatory Decree nr. 25/88 of June 17 recognising the advantage to implement, as soon as possible, the ICP - Instituto das Comunicações de Portugal, created under the Decree-Law nr. 188/81 of July 2, sought to precede the effective date of operation with a setting up period of the new body which would not only allow the bringing together of conditions indispensable for the purpose but would also enable, as a priority, the revision of ICP s Articles of Association approved by Decree-Law nr. 70/83 of July 20.
Indeed, the operating conditions and the rules governing the hiring of the Institute staff structures established under that diploma, which, it should be remembered did not produce any effect, are not compatible with the role that ICP is expected to play in the stimulation and within the framework of the deep and very important changes which the sector should have to undergo before 1992.
The review of the Articles of Association has been carried out; the new text was drawn up with the concern of providing the Institute with operating conditions to enable it to competently perform the vast range of functions conferred upon it by Decree-Law nr. 188/81. The adopted solutions follow very closely those prevailing in other institutes, diverging from them, in one or other point, due to the need to take into consideration the fact that ICP inherited the main nucleus of its responsibilities from a public company - CTT - and not, as in the case with most of the other institutes, from the Public Administration itself.
It is, therefore, a matter of making feasible the need to return back to the Administration the functions which should be of its duty, some of these because they are clearly sovereignty functions, others because the new legal telecommunications framework so demands and community guidelines also point in that direction.
The exceptional nature of the present Articles of Association is thus justified by the exceptional nature of the fact that State responsibilities are not performed by the State and represents a step forward in the progressive integration of those roles within the Administration.
The opinions of the government bodies of the Autonomous Regions of Azores and Madeira were taken into consideration.
Hence:
Under the terms of paragraph a) of nr. 1 of article 201 of the Constitution, the Government decrees the following:
CHAPTER I
General provisions
Article 1
Nature
1. The Instituto das Comunicações de Portugal, briefly known as ICP, created by Decree-Law nr. 188/81 of July 2, is a public institute endowed with legal entity, with administrative and financial autonomy and own patrimony. It performs its role under the tutelage of the Minister of Public Works, Transport and Communications.
2. ICP has as its aim the provision of support to the Government in the coordination, supervision and planning of the public use communications sector, as well as the representation of this sector and the management of the radio spectrum.
3. The Institute will henceforth hold only administrative autonomy, the regime of financial autonomy ceasing should, once a period of three years has passed after the entering into force of the present statute, it no longer receive sufficient revenue of its own to cover at least two thirds of its respective expenses.
Article 2
Regime
1. The management of ICP is governed by what is laid down in the present Articles of Association and, subsidiary, by the legal system governing the public companies.
2. The deeds and contracts of ICP are not subject to approval by the Audit Court, however, the submission for appraisal purposes of the annual report is compulsory.
Article 3
Headquarters and delegations
1. ICP headquarters are located in Lisbon.
2. ICP may have delegations, branch offices or any other form of representation within the national territory.
Article 4
Responsibilities
For the pursuance of its responsibilities, the following duties are incumbent upon ICP:
a) Cooperate actively in the definition of communications policy measures in Portugal, namely of:
1. The definition of the sector's legal framework ;
2. The administrative and business organisation of the sector
3. The technological and scientific research and development of the communications field;
4. The coordination activity with other official departments, public or private bodies or entities which are necessary to undertake communications policy measures;
b) Advise the Government for the purpose of carrying out its tutelage responsibilities namely:
1. Submitting the legislative and regulatory bills required for the operation and protection of communications, as well as issuing opinions on legislative and regulatory bills proposed by other bodies or entities;
2. Monitoring the quality and price of the services provided by the public sector communications operators;
3. Monitoring the compliance by the communications operators with what is laid down in the respective articles of association, licenses or concessionaire contracts and as well as the compliance with the applicable legal and regulatory provisions;
c) Co-ordinate, on a national level, all matters concerning the undertaking of legal treaties, conventions and international agreements related with communications as well as the representation of the Portuguese State in equivalent international bodies, whenever nothing to the contrary has been decided;
d) Approve materials and equipment and undertake, in Cooperation with other bodies, the technical standardisation and specification of materials and equipment used in communications, with the exception of those used in private networks, namely those of the armed forces, security forces, civil defence and fire brigade and undertake identical deeds concerning radio communications transmitters and receivers under the terms of Decree-Law nr. 147/87 of March 24;
e) Undertake the management of the radioelectrical spectrum, requiring for this purpose to:
1. Plan the national radioelectrical spectrum within the framework of international agreements;
2. Allocate frequencies;
3. License all means of radioelectrical communication under the terms of Decree-Law nr. 147/87 of March 24;
4. Monitor the conditions of use of the range of licensed activities, as well as to control and monitor any abuse in their use and the radio interferences, levying fines if appropriate;
f) License public sector communications operators, as well as value-added services providers;
g) Prepare the necessary studies for coordination between civil, military and paramilitary communications as well as between public sector communications operators and social communications (media) operators;
h) Undertake any studies necessary for the infrastructures coordination of the various civil telecommunications systems including those of broadcasting.
CHAPTER II
Bodies
Article 5
Bodies
ICP has the following bodies - a board of directors, a statutory audit committee and the advisory council.
SECTION I
Board of Directors
Article 6
Composition and regime
1. The board of directors comprises a chairman and two or four members.
2. The members of the board of directors are appointed by a Cabinet resolution based upon a proposal of the minister responsible for the tutelage.
3. The members of the board of directors are subject to the statute of public sector manager and their compensation and benefits are identical to those of the members of the management bodies of public companies belonging to Group A.
Article 7
Areas of competence
1 - The board of directors is endowed with the following responsibilities;
a) To define and monitor the general guidelines and management policies of ICP;
b) To submit the multiyearly financial and activities plans, budget and annual activities report and the accounts of ICP for approval by Ministers of Finance and of tutelage;
c) To approve the internal regulations necessary for the organisation and operation of ICP;
d) To submit an internal regulations containing the norms applicable to ICP staff for approval by the Minister of tutelage;
e) To represent ICP in law or in out of court settlements;
f) To appoint nominees and nominate ICP representatives in other bodies;
g) To submit for approval by Ministers of Finance and tutelage ICP's holdings in the capital of companies as well as its association with third parties;
h) To receive revenue and to authorise expenditures;
i) To manage ICP's patrimony, being empowered to acquire, sell or encumber saleable assets or real estate and to accept donations, inheritances or legacies;
j) To carry out all deeds necessary for fulfilling the responsibilities bestowed upon ICP.
2. The board of directors may delegate part of its responsibilities to any of its members.
Article 8
Operation
The board of directors holds one ordinary meeting every week and extraordinary meetings whenever so convoked by the Chairman either upon his own initiative or at the request of two members.
Article 9
Chairman
1. The chairman of ICP has the following responsibilities:
a) To co-ordinate the activity of the board of directors, and other bodies and services belonging to ICP;
b) To convoke and preside over the board of directors and conduct its meetings;
c) To represent ICP, except for those cases in which the law or its articles of association require another form of representation;
d) To assure ICP's relationship with the Government.
2. The chairman of the board of directors may delegate the exercising of part of its responsibilities to any of its other members.
3. The chairman is considered to be responsible for the undertaking of deeds whose nature and urgency cannot wait for an ordinary or extraordinary meeting of the competent body.
4. The deeds undertaken by the chairman under the terms of the conditions of the preceding number should be subjected to ratification at the first meeting of the competent body for its undertaking.
5. The chairman, or his legal substitute, may veto decisions which he considers to be against to the law, to the Articles of Association or to State interest, with the resulting suspension of the putting into effect of the decision until the minister of tutelage has taken a decision.
6 - In the absences or hindrances of the chairman, he shall be replaced by the oldest member of the board.
Article 10
Legal binding
1. ICP is legally bound by the signature of two board members.
2. Without prejudice for what is laid down in the preceding number, the Institute may also become legally bound by the signature of nominees within the restricted ambit of powers which have been entrusted to them.
SECTION II
Statutory Audit Committee
Article 11
Organisation
1. The statutory audit committee consists of a chairman and two members, one of these members is chartered accountant and all three of them will be appointed by the Minister of Finance.
2. The members of the statutory audit committee have the right to identical remuneration as the one established for the members of the public companies belonging to Group A.
Article 12
Responsibilities
The statutory audit committee is responsible for the following:
a) The periodic examination of the financial and economic worth of ICP and verification of compliance with the norms regulating its activity.
b) The issue of a statement on the acquisition, encumbering and sale of ICP's real estate;
c) The issue of a statement on the budget and annual report of ICP;
d) The issue of a statement on any matter submitted to it by the ICP bodies;
e) Inform the competent bodies of any infringements that are detected.
Article 13
Operation
The statutory audit committee will holds one ordinary meeting every month and holds extraordinary meetings whenever so convoked by the Chairman either upon his own initiative or at the request of any of its other members.
SECTION III
Advisory Council
Article 14
Composition
1. The composition of the advisory board is as follows:
a) A representative of the Minister for National Defence;
b) A representative of the Minister of the Planning and Territorial Administration;
c) A representative of the Minister of Internal Affairs;~
d) A representative of the Minister of Energy and Industry;
e) A representative of the Minister of Public Works, Transport and Communications;
f) A representative of the Minister responsible for the media;
g) A representative from each of the Autonomous Regions of the Azores and Madeira;
h) The chairman of ICP board of directors;
i) A representative of each public sector communications operator;
j) A representative of the users of communications services, to be appointed by the general council of the National Institute for the Consumer Defence.
2. The advisory council will be chaired by the representative of the minister of communications tutelage .
3. The remaining members of the board of directors and of the Statutory may attend the advisory council meetings and may take parin the proceedings without right to vote.
4. Travelling expenses and allowances due to the displacement of the advisory council living outside the meeting place will be borne by ICP's budget.
Article 15
Responsibilities
It is incumbent upon the advisory council to issue statements, namely, over:
a) The action guidelines, the annual activity plan and the budget of ICP;
b) The ICP annual report;
c) The setting up of the amounts to be paid by the public sector communications operators which form part of ICP's revenue;
d) The coordination between civil, military and paramilitary communications, as well as of those between the operators of public sector communications operators and the media operators;
e) Any matter submitted by the board of directors for appraisal.
Article 16
Operation
1. The advisory council holds ordinary meetings convoked by its chairman , twice a year, for the special purpose of what is laid down to paragraphs a), b) and c) of the preceding article, and will hold extraordinary meetings upon the chairman's initiative or at the request of, at least, a third of its members or of the chairman of ICP board of directors.
2. The meetings will be convoked by the chairman with a minimum advance notice of ten days, with the convocation in question stating the day, time, place and provisional agenda of the meeting.
3. Minutes, to be undersigned by all members present, will be drawn up on the meetings of the advisory council.
SECTION IV
Common provisions
Article 17
Mandates
1. The mandate of the members of the ICP bodies are for three years and are renewable, with members continuing to exercise their roles until their effective replacement or until the declaration of the termination of their functions.
2. ICP bodies are considered to be constituted for all intents and purposes provided that the majority of their members has been appointed.
Article 18
Decisions
1. In order for the decisions taken by ICP bodies to be valid the presence of the majority of their respective members in office at the meetings is indispensable.
2. Decisions are to be taken by a majority vote with the chairman, or whoever replaces him having the casting vote.
3. Voting by proxy is not permitted.
4. Decisions taken during a meeting shall be drawn up in the respective minutes which shall be undersigned by all those present and shall be the sole evidence of the taken decisions.
Article 19
Convocations
1. The ICP bodies meet at summons of its respective chairman, addressed to each one of its members, without prejudice of what is laid down to the following number.
2. Meetings periodically held at a prearranged place, day and time, and also meetings which have been decided at a previous meeting, in the presence of or with the knowledge of all the members of the convoked body with the indication of the place, day and are considered as having been validly convoked.
CHAPTER III
Finance and patrimony management
Article 20
Applicable norms
The patrimony and finance management of ICP, including the organisation of their accounting is governed by norms applicable to public companies.
Article 21
Patrimony
ICP's patrimony is constituted by the universality of assets, rights and obligations acquired or contracted by it in the pursuance of its responsibilities by those conferred upon them by law.
Article 22
Revenue
1. The following is considered to be ICP's revenue:
a) Fees and other revenue charged within the scope of the radioelectrical spectrum management;
b) Fees and other revenue charged within the scope of licensing and fiscal control of operators and communications services provisions;
c) The product of the levying of fines;
d) Fees and other revenue arising from the type approval of material and equipment;
e) Any other revenue, income or amounts arising from its activity or which by law or contract may belong are allocated to it, as well as donations, subsidies or other forms of financial support;
f) The product of the alienation of own assets and of the constitution of rights over them;
g) The set out amounts to be paid by the public telecommunications operators.
2. The amounts to be paid by the public telecommunications operators shall be set out on an annual basis as a consequence of the budget proposal presented by the board of directors, after the advisory council opinion, to the Minister of tutelage who shall approve them by the issue of an executive order.
3. The proposed amount of the payments should ensure the fully cover the difference between the volume of revenue foreseen in paragraphs a) to f) of nr. 1 and the total expenditure, being divided amongst the public telecommunications operators in proportion to their overall volume of revenue in the year immediately preceding the year in which the budget proposal is drawn up.
4. The revenue arising from the payments of the operators shall be paid in advance by quarterly instalments at the beginning of each period.
5. ICP may not contract loans without a previous clearance of authorisation given jointly by the Minister of Finances and Minister of Public Works, Transport and Communications.
Article 23
Expenditures
The following is considered to be ICP expenditure:
a) The costs resulting from the respective operation and exercising of the responsibilities and powers bestowed upon them;
b) The costs of acquisition, maintenance and preservation of the assets, equipment or services which have to be used;
c) Costs of studies and research in the field of communications, either directly or in the form of support to other sector entities.
CHAPTER IV
Personnel
Article 24
Statute of Personnel
1. ICP's personnel is subjected to the Legal System of the Individual Working Contract whose definition of its working conditions is laid down in an internal regulations, approved by the Minister of communications tutelage and Minister of Finances and taking into account the imperative norms set out in this System.
2. ICP's workers performing monitoring functions, when carrying out them, are compared to the police force agents and enjoy the following privileges:
a) They are entitled to identify, for later action, all individuals who infringe regulations whose observance they should comply with;
b) They may request assistance from administrative and judicial authorities whenever deemed necessary for the carrying out of their responsibilities;
c) They are entitled to use weapons for self-defence, for the protection of objects belonging to the services, and of the premises and values under their safeguard when duly authorised to do so.
Article 25
Social security
ICP workers are covered by the general Social Security system, without prejudice to what is laid down in nr. 2 of article 28.
Article 26
Mobility
ICP may requisition, under the terms of the general law, personnel belonging to other staff structures of public and private companies or bound to the civil service.
CHAPTER V
Final and transitory provisions
Article 27
Implementation of ICP
1. ICP will take over its full responsibilities within a period of six months as of the publication date of the present diploma.
2. The transfer to ICP of the functions conferred upon it by the present and by other diplomas, but which are at present time being exercised by other entities, will be carried out by an executive order of the Minister of tutelage who shall establish the dates, the phasing and other relevant aspects of the transfer.
3. Until the ICP staff vacancies have been filled, the responsibilities transferred to ICP will be performed by workers requisitioned from the public company CTT - Correios e Telecommunicações de Portugal (Portuguese Post and Communications).
Article 28
Integration of CTT workers
1. The board of directors will invite workers of the Portuguese Post and Communications who are working in the Institute under the terms of a requisition regime to become ICP staff members after the approval of the regulations stipulated in nr. 1 of article 24 and when considered convenient.
2. Workers covered by the preceding number who, after an invitation to become part of the ICP staff structure, accept it within a period of fifteen days, will be entitled to the following rights, acquired in that public company:
a) Seniority;
b) Diuturnities;
c) Remuneration;
d) Weekly working duration;
e) Maintenance of the retirement and survival pension schemes;
f) Special privileges of a social nature in force in the date of integration.
3. ICP shall bear the costs arising from paragraph e) of the preceding number under a regime identical to the one in force at Portuguese Post and Communications and this public company shall hand over to ICP on the date of integration, the due amounts corresponding to the period prior to integration in the ICP staff structure.
Article 29
Transfer of assets
1. The assets used and required for the exercising of responsibilities entrusted to CTT Directorate of Radioelectrical Services which are henceforth to be exercised by ICP, are to be integrated into Institute's patrimony on the date of the responsibilities transfer.
2. The compensation payable to CTT due to the transfer of the patrimony referred to in the preceding number as well as the conditions of its payment shall be determined by a joint executive order of the Minister of Finance and the Minister of tutelage.
Article 30
Determination of payments of the public sector operators
For the present economic year, the payments to be made by the public sector operators referred to in paragraph g) of nr. 1, article 22 will be set out by an executive order of the Minister of tutelage upon a proposal of the board of directors.
Article 31
State equivalence
For the exercising of its responsibilities, ICP will assume the rights and obligations conferred upon the State in those applicable legal and regulatory provisions, namely concerning:
a) The coercive collection of duties, other service charges and other receivables;
b) The protection of its premises and personnel;
c) The use of its services by the public, the monitoring and definition of respective infringements and the levying of the appropriate fines;
d) Radioelectrical monitoring and official notifications, the levying of penalties and other resultant deeds;
e) Extra contractual civil responsibility.
Article 32
Transitional provisions
1 - The deadline established in nr. 1 of article 33 of Regulatory Decree nr. 70/83 of July 20, which was change by the wording introduced by Regulatory Decree nr. 25/88 of June 17 which was later extended by Regulatory decree nr. 4/89 of February 1 has been extended until September 30, 1989.
2. The stipulated in the preceding number will take effect as of March 7, 1989.
Article 33
Legislation revoked
Regulatory Decrees nrs. 70/83 of July 20 and 25/88 of June 17 are hereby revoked as of September 30.
Seen and approved at the Cabinet at meeting of April 13, 1989 - Aníbal António Cavaco Silva - Vasco Joaquim Rocha Vieira - Lino Dias Miguel - Eurico Silva Teixeira de Melo - Miguel José Ribeiro Cadilhe - Luís Francisco Valente de Oliveira - José António da Silveira Godinho - Luís Fernando Mira Amaral - João Maria Leitão de Oliveira Martins.
Enacted in July 26, 1989.
Let this be published.
The President of the Republic, MÁRIO SOARES.
Countersigned on August 8, 1989. By the Prime Minister, Eurico Silva Teixeira de Melo.
