Law no. 5/2004, of 10 February

Assembleia da República (Assembly of the Republic)

Law

(This is not an official translation of the law)

The Assembly of the Republic, pursuant to point c) of article 161 of the Constitution, hereby decrees, to be effective as general law of the Republic, the following:

TITLE I
General Part
 

Article 1
Subject

The present law establishes the legal regime applicable to electronic communications networks and services and to associated services, and defines the assignments of the national regulatory authority in this field, in respect of the transposition of Directives nos 2002/19/EC, 2002/20/EC, 2002/21/EC and 2002/22/EC, all of the European Parliament and of the Council of 7 March 2002, and of Directive 2002/77/EC of the Council of 16 September.

Article 2
Scope

1 – This law does not apply to the following:

a) Services of the information society, as defined in Decree-Law no 58/2000 of 18 April, which do not wholly or mainly consist of the conveyance of signals over electronic communications networks;

b) Services which provide or which exercise editorial control over content transmitted over electronic communications networks and services, including audio-text services;

c) The private networks of or under the responsibility of the Ministry of National Defence or of the security and emergency forces and services, which networks are governed by specific legislation;

d) The Government computer network managed by the Government Computer Network Management Centre (CEGER), as well as networks created in order to pursue the aims provided for in paragraph 1 of article 1 of Decree-Law no 184/98 of 6 July.

2 – The provisions of this law are without prejudice to:

a) The regime governing the free circulation, placing in the market and putting into service of radio equipment and telecommunications terminal equipment, as well as the regime governing the respective assessment of conformity and marking procedures as approved by Decree-Law no 192/2000 of 18 August;

b) The regime governing the installation of telecommunication infrastructures in buildings as provided for in Decree-Law no 59/2000 of 19 April;

c) The regime applicable to radiocommunications networks and stations as provided for in Decree-Law no 151-A/2000 of 20 July;

d) The regime applicable to the use of the Personal Radio Service – Citizen’s Band (SRP-CB) as provided for in Decree-Law no. 47/2000 of 24 March;

e) The legal regime applicable to radio amateurs.

3 – The provisions of the present law are without prejudice to measures taken at Community or national level to pursue general interest objectives, in particular relating to content regulation and audio-visual policy.

4 - The provisions of the present law are without prejudice to measures taken at Community or national level to pursue public order and security objectives, in particular with regard to the rail sector and the road sector.

Article 3
Definitions

For the purposes of the present law:

a) «Access» means the making available of facilities and/or services, to another undertaking, under defined conditions, on either an exclusive or non-exclusive basis for the purpose of providing electronic communications services. It covers inter alia: access to network elements and associated facilities, which may involve the connection of equipment, by fixed or non-fixed means (in particular this includes access to the local loop and to facilities and services over the local loop); access to physical infrastructure including buildings, ducts and masts; access to relevant software systems; access to number translation or systems offering equivalent functionality; access to fixed and mobile networks, in particular for roaming; access to conditional access systems for digital television services, including interactive platforms; access to virtual network services;

b) «Unbundled access to the local loop» means full unbundled access to the local loop and shared access to the local loop; it does not entail a change in ownership of the local loop;

c) «Shared access to the local loop» means the provision to a beneficiary of access to the local loop or local sub loop of the notified operator, authorising the use of the non -voice band frequency spectrum of the twisted metallic pair; the local loop continues to be used by the notified operator to provide the telephone service to the public;

d) «Full unbundled access to the local loop» means the provision to a beneficiary of access to the local loop or local sub loop of the notified operator authorising the use of the full frequency spectrum of the twisted metallic pair;

e) «Subscriber» means any natural person or legal person who or which is party to a contract with a provider of publicly available electronic communications services for the supply of such services;

f) «General authorisation» means the legal framework established by the present law and by the regulations of the national regulatory entity, 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 the present law;

g) «Consumer» means any natural person who uses or requests a publicly available electronic communications service for non-professional purposes;

h) «Enhanced digital television equipment» means set-top boxes intended for connection to television sets or integrated digital television sets, able to receive digital interactive television services;

i) «Harmful interference» means interference which endangers the functioning of a radionavigation service or of other safety services or which otherwise seriously degrades, obstructs or repeatedly interrupts a radiocommunications service operating in accordance with the applicable Community or national regulations;

j) «Interconnection» means the physical and logical linking of public communications networks used by the same or a different undertaking in order to allow the users of one undertaking to communicate with users of the same or another undertaking, or to access services provided by another undertaking. Services may be provided by the parties involved or other parties who have access to the network. Interconnection is a specific type of access implemented between public network operators;

l) «API (application program interface)» means the software interfaces between applications, made available by broadcasters or service providers, and the resources in the enhanced digital television equipment for digital radio and television services;

m) «Local loop» means the physical circuit connecting the network termination point at the subscriber's premises to the main distribution frame or equivalent facility in the fixed public telephone network;

n) «Transnational markets» means markets identified in paragraph 5 of article 59, covering the Community or a substantial part thereof;

o) «Number» means a series of digits indicating a electronic communication network termination point, comprising the information necessary in order to route calls to that termination point;

p) «Geographic number» means a number from the national numbering plan containing certain digits of geographic significance, used for routing calls to the physical location of the network termination point (NTP);

q) «Non-geographic number» means a number from the national numbering plan that is not a geographic number, including in particular mobile, freephone and premium rate numbers;

r) «Provision of an electronic communications network» means the establishment, operation, control or making available of such a network;

s) «Operator» means an undertaking providing or authorised to provide a public communications network or an associated facility;

t) «Public pay telephone» means a telephone available to the general public, for the use of which the means of payment may include coins and/or credit/debit cards and/or pre-payment cards, including cards for use with dialling codes;

u) «NTP» means the physical point at which a subscriber is provided with access to a public communications network; in the case of networks involving switching or routing, the network termination point is identified by means of a specific network address, which may be linked to a subscriber number or name;

v) «Associated facilities» means those facilities associated with an electronic communications network and/or an electronic communications service which enable and/or support the provision of services via that network and/or service, including conditional access systems and electronic programme guides;

x) «Electronic communications network» means transmission systems and, where applicable, switching or routing equipment and other resources which permit the conveyance of signals by wire, by radio, by optical or by other electromagnetic means, including satellite networks, fixed (circuit- and packet-switched, including Internet) and mobile terrestrial 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;

z) «Public communications network» means an electronic communications network used wholly or mainly for the provision of publicly available electronic communications services;

aa) «Public telephone network» means an electronic communications network which is used to provide publicly available telephone services; it supports the transfer between network termination points of speech communications, and also other forms of communication, such as facsimile and data;

bb) «National regulatory authority (NRA)» means the authority performing regulatory, supervising, monitoring and sanctionary functions in the scope of electronic communications networks and services, as well as associated facilities and services, which is the Instituto de Comunicações de Portugal – Autoridade Nacional de Comunicações (ICP – ANACOM), the Statutes of which were approved by Decree-Law no 309/2001 of 7 December;

cc) «Electronic communications services» means a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks, including telecommunications services and transmission services in networks used for broadcasting, without prejudice to the exclusion referred to in point b) of paragraph 1 of article 2;

dd) «Wide-screen television service» means a television service that consists wholly or partially of programmes produced and edited to be displayed in a full height wide-screen format. The 16:9 format is the reference format for wide-screen television services;

ee) «Publicly available telephone service» means a service available to the public for originating and receiving national and international calls and access to emergency services through a number or numbers in a national or international telephone numbering plan, and in addition may, where relevant, include one or more of the following services: the provision of operator assistance, directory enquiry services, directories, provision of public pay phones, provision of service under special terms, provision of special facilities for customers with disabilities or with special social needs and/or the provision of non-geographic services;

ff) «Universal service» means the minimum set of services, defined in this law, of specified quality which is available to all users regardless of their geographical location and, in the light of specific national conditions, at an affordable price;

gg) «Conditional access system» means any technical measure and/or arrangement whereby access to a protected radio or television broadcasting service in intelligible form is made conditional upon subscription or other form of prior individual authorisation;

hh) «Local sub-loop» means a partial local loop connecting the network termination point at the subscriber's premises to a concentration point or a specified intermediate access point in the fixed public telephone network;

ii) «User» means a legal entity or natural person using or requesting a publicly available electronic communications service;

jj) «End-user» means a user not providing public communications networks or publicly available electronic communications services.

TITLE II
National regulatory authority and regulatory principles

CHAPTER I
General Provisions and regulatory principles
 

Article 4
National regulatory authority

1 – The NRA is charged, in accordance with its assignments, with the functions of regulation, supervision, monitoring and sanctioning provided for in the present law.

2 – The statutes of the NRA ensure:

a) Its independence as an organisational and financial body, functionally separated from the Government, and endowed with the means necessary for the execution of its functions;

b) Its independence as an organisational and financial body, functionally separated from undertakings which provide electronic communications networks and services and equipment;

c) The effective separation of regulatory functions from powers associated with the ownership or control of undertakings of the sector upon which the State retains ownership or control.

Article 5
Regulatory objectives

1 – The objectives of electronic communications regulation to be pursued by the NRA are:

a) To promote competition in the provision of electronic communications networks, electronic communications services and associated facilities and services;

b) To contribute to the development of the internal market of the European Union;

c) To promote the interests of citizens, pursuant to the present law.

2 – In respect of point a) of the preceding paragraph, the NRA is charged with:

a) Ensuring that users, including users with disabilities, derive maximum benefit in terms of choice, price and quality;

b) Ensuring that there is no distortion or restriction of competition in the electronic communications sector;

c) Encouraging efficient infrastructure investment, and promoting innovation;

d) Incentivising the efficient use of radio frequencies and numbering resources and ensuring their effective management.

3 – In respect of point b) of paragraph 1, the NRA is charged with:

a) Removing existing obstacles to the provision of electronic communications networks, of associated facilities and services and of electronic communications services at a European level;

b) Encouraging the establishment and development of trans-European networks, the interoperability of pan-European services and end-to-end connectivity;

c) Ensuring that, in equivalent circumstances, there is no discrimination in the treatment of undertakings providing electronic communications networks and services;

d) To cooperate, in a transparent manner, with the European Commission and regulatory authorities of communications of other Member States of the European Union, in order to ensure the development of a regulatory practice and the consistent application of the common regulatory package framework for electronic communications networks and services.

4 – In respect of point c) of paragraph 1, the NRA is charged with:

a) Ensuring that all citizens have access to the universal service as defined in the present law;

b) Ensuring that consumers enjoy a high level of protection in their relationship with providers of electronic communications services and networks, in particular through the establishment of procedures for the resolution of disputes, which procedures shall be simple and inexpensive and directed by bodies that are independent of the parities in dispute.

c) Contributing to the guarantee of a high level of protection of personal data and privacy;

d) Promoting the provision of clear information, and requiring in particular that tariffs and conditions for using publicly available electronic communications services are transparent;

e) Addressing the needs of specific social groups, in particular users with disabilities;

f) Ensuring that the integrity and security of public communications networks are maintained.

5 – All decisions and measures taken by the NRA shall be reasonable and proportionate to the regulatory objectives established in the present article.

6 – The NRA is charged with adopting all reasonable and proportionate measures which are necessary to ensure that any undertaking is able to provide electronic communications services or to establish, extend or provide electronic communications networks.

7 – The decisions and measures taken by the NRA shall, at all times, have basis in the provisions of the preceding paragraphs.

8 – In the performance of its regulatory remit as specified in this law, and in particular with respect to ensuring effective competition, the NRA shall seek to ensure the technological neutrality of regulation , without prejudice to the adoption of suitable measures for the promotion of specific services, where such measures are necessary for the pursuit of the regulatory objectives stipulated in this article.

9 – The NRA may contribute, within the scope of its remit, to ensuring the implementation of policies aimed at the promotion of cultural and linguistic diversity, as well as pluralism, in particular in respect of the media.

10 – Every public entity and authority shall, within the scope of its respective remit, likewise contribute to achieving the objectives of electronic communications regulation.

Article 6
Consolidating the internal market

1 – The NRA shall, in the exercise of its powers, contribute to the development of the internal market, cooperating with other national regulatory authorities and with the European Commission in a transparent manner, in order to seek agreement on the types of instruments and remedies that are best suited for addressing particular situations in the market.

2 – For the purposes of the preceding paragraph and in the cases provided for in the present law, the specific procedure set out in article 57 shall be followed.

3 – The NRA shall, in the performance of its functions, take into account the recommendations of the European Commission on the harmonised application of the regulatory framework applicable to electronic communications, having regard to the pursuit of the regulatory objectives set forth in article 5. In the event that the NRA decides not to follow such a recommendation, it shall inform the European Commission of this decision and the grounds therefor.

Article 7
Cooperation

1 – The NRA and the competent authorities and services, particularly in the area of consumer protection, shall jointly cooperate, whenever necessary, in matters of common interest.

2 – The NRA and Autoridade da Concorrência (The Competition Authority) shall cooperate with each other in matters related with the application of the legal regime of competition in the electronic communications sector.

3 – In the cases set out in articles 37 and 61, the NRA shall request the prior opinion of Autoridade da Concorrência (The Competition Authority).

4 – Where, within the scope of cooperation as provided for in the preceding paragraphs, the NRA and other competent entities exchange information, particularly in respect of competition matters, the entity in receipt of such information shall ensure the same level of confidentiality as authority from which it was obtained is bound to provide; the NRA and the Competition Authority may use said information in the exercise of their respective powers.

Article 8
General consultation procedure

1 – Where the NRA, in the exercise of the powers set forth in the present law, intends to take measures which have a significant impact on the relevant market, it shall publish the respective draft of said measure and give interested parties the opportunity to comment on it, for which purpose a fixed period, of not less than 20 days, shall be provided.

2 – For the purpose of the preceding paragraph, the NRA shall publish the adopted consultation procedures.

Article 9
Urgent measures

1 – Without prejudice to the provisions of general law, the NRA may, in exceptional circumstances, adopt immediate measures which are proportionate and provisional without following the procedure set out in articles 8 and 57, as applicable, where the NRA considers that, in order to safeguard competition and protect the interests of users, the need to act is urgent.

2 – In the situations referred to in the preceding paragraph, the NRA shall, as soon as possible afterwards, notify the European Commission and other national regulatory authorities of the measures adopted and the reasons therefor.

3 – In the event that the NRA decides to render the provisional measure permanent or extend the period of its application, the provisions of article 57 shall apply.

Article 10
Administrative dispute resolution

1 – The NRA is charged, at the request of either party, with the resolution, by way of a binding decision, of any dispute connected to the obligations arising under this law and between undertakings subject thereto in the national territory, without prejudice to the possibility of appealing to the courts.

2 – The intervention of the NRA shall be requested within a period of one year from the date on which the dispute commenced.

3 – The decision of the NRA shall, except in exceptional circumstances, be issued no later than four months following the date on which the request was made, which decision and grounds therefor shall be notified to the interested parties and, provided that commercial confidentiality is safeguarded, published.

4 – In the resolution of disputes referred to in the present article, the NRA shall make a decision that is in accordance with the provisions of this law and has regard to the pursuit of the objectives of regulation established in article 5.

5 – In the course of a dispute resolution, all undertakings providing electronic communications networks or services shall cooperate fully with the NRA, specifically by complying with any requests made in this scope.

6 – Decisions of the NRA issued pursuant to the present article may be appealed under the terms of paragraph 2 of article 13.

Article 11
Refusal of the dispute resolution request

1 – The NRA may only deny a request to resolve a dispute made pursuant to the preceding article in the following cases:

a) Where the request does not concern compliance with the obligations arising from the present law;

b) Where the period specified in paragraph 2 of the preceding article has expired;

c) Where the NRA deems that other mechanisms, including mediation, exist which are more suitable for the resolution of the dispute in a timely manner, in accordance with the provisions of article 5.

2 – The NRA shall notify the parties without delay in the event that it denies a request, and, in the case set out in point c) of the preceding paragraph, of the most suitable means for the resolution of the dispute.

3 – In the event that, in the case set out in point c) of paragraph 1, the dispute is not resolved within a period of four months following the notification of the parties and court proceeding have not been initiated for the purpose of resolving such dispute, the NRA may, at the request of either party, instigate the procedure set forth in the preceding article, so terminating any previously initiated process of dispute resolution.

4 – Decisions of the NRA issued pursuant to the present article may be appealed under the terms of paragraph 2 of article 13.

Article 12
Resolution of cross-border disputes

1 – In the event of a dispute arising in respect of the obligations resulting from the regulatory framework on electronic communications occurring between undertakings which are subject thereto and established in different Member States, and where such dispute lies within the remit of national regulatory authorities from more than one Member State, any party may refer the dispute to the competent NRA, without prejudice to the possibility of either party bringing an action before the courts.

2 – In the case set forth in the preceding paragraph, the national regulatory authorities concerned shall coordinate their intervention in order to bring about a resolution of the dispute in accordance with the provisions of article 5, while the decisions taken shall conform with the regulatory framework on electronic communications.

3 – National regulatory authorities may jointly decide to deny a request to resolve a dispute, pursuant to point c) of paragraph 1 and to paragraphs 2 and 3 of the preceding article.

Article 13
Judicial review

1 – The decisions, orders or other measures adopted by the NRA in the scope of breach proceedings, resulting from the application of the regulatory framework on electronic communications, may be appealed before the commerce courts.

2 – Other acts performed by the NRA may be appealed before the administrative courts, pursuant to applicable law, with the compulsory intervention of three experts, appointed by each party and the third by the court, in order to assess the merits of the decision which is being appealed.

3 –Appeals against decisions taken by the NRA which, in respect of breach proceedings, determine the application of fines or additional sanctions shall have suspensive effect.

4 –Appeals against decisions to apply mandatory penalty payments, as well as other decisions, orders, and further measures adopted in respect of breach proceedings initiated by the NRA, shall have a mere devolutive effect.

5 – The provisions of the following paragraphs and, secondarily, the general regime of breaches, apply to breach proceedings initiated under the present law.

6 – Where an appeal against a decision made by the NRA is filed, the NRA shall submit the briefs to the Prosecution Office within 20 working days, attaching allegations thereto, where they exist.

7 – Without prejudice to the provisions of article 70 of Decree-Law no 433/82 of 27 October, as amended by Decree-Law no 244/95 of 14 September, the NRA may also attach other items or information deemed relevant to the decision under consideration, and may also provide evidence.

8 – The NRA, the Prosecution Office and the defendants may oppose that the court finds by order, without trial.

9 – In the event of an appeal against a decision taken in respect of breach proceedings, the withdrawal of the accusation by the Prosecution Office shall be subject to the agreement of the NRA.

10 – Where a trial takes place, the court shall decide on the grounds of the evidence presented during the course of the hearing, as well as of evidence gathered during the administrative stage of the breach proceedings.

11 – The NRA is entitled to lodge an appeal autonomously against decisions made in the impugnation proceedings allowing appeal.

12 –Decisions of the commerce courts which allow appeal, pursuant to the general regime of breaches, may be contested before the Court of Appeals, which is the court of last resort.

13 – No further appeals may be made against the judgements of the Lisbon Court of Appeals.

CHAPTER II
Frequencies, numbers and markets
 

Article 14
Radio-electric public domain

The space where radio waves may propagate constitutes a public domain of the State.

Article 15
Frequencies

1 – The NRA is charged with the management of the spectrum which shall be understood as being the set of frequencies associated with radio waves.

2 – The NRA shall, in respect of the management of the spectrum, plan frequencies in accordance with the following criteria:

a) Availability of radio spectrum;

b) Guarantee of conditions of effective competition in the relevant markets;

c) Effective and efficient use of frequencies.

3 – The NRA shall allocate and assign frequencies according to criteria which are objective, transparent, non-discriminatory and proportionate.

4 – The NRA shall promote a harmonised usage of frequencies in the European Union, in order to ensure the effective and efficient use thereof, within the scope 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).

Article 16
National Frequency Allocation Plan

1 – The NRA shall publish, on an annual basis, the National Frequency Allocation Plan (NFAP), which shall include:

a) The frequency bands and number of channels already allocated to undertakings providing publicly available electronic communications networks and services, including the date on which each allocation is to be reviewed;

b) The frequency bands which are reserved and are to be made available in the following year, in respect of electronic communications networks and services, whether publicly available or not, specifying the cases where frequencies usage rights are required and the respective procedure of allocation;

c) The frequencies whose usage rights may be transferred, pursuant to article 37.

2 – The requirements for publication set out in preceding paragraph do not apply to frequencies which are allocated to the Armed Forces and to security forces and services.

Article 17
Numbering

1 – Suitable numbering resources shall be available for all publicly available electronic communications services.

2 – The NRA is charged with:

a) Defining the guidelines and general principles of the National Numbering Plan;

b) Managing the National Numbering Plan according to the principles of transparency, efficiency, equality and non-discrimination, including the establishment of conditions for the allocation and assignment of national numbering resources;

c) Allocating numbering resources according to objective, transparent and non-discriminatory assigning procedures;

d) Publishing the guidelines, general principles and principle components of the National Numbering Plan, as well as all subsequent additions or amendments thereto, allocation and retrieval procedures, which publication shall be subject only to limitations imposed on the grounds of national security;

e) Ensuring that an undertaking which has been allocated a range of numbers does not discriminate against other providers of electronic communications services in respect of the number sequences used to allow access to their services;

f) Supporting the harmonisation of numbering resources within the European Union where such is necessary for facilitating the development of pan European services, and coordinating its position with the other competent bodies of the Union in respect of international organisations and forums in which decisions are taken on issues related to numbering, where such is appropriate in order to ensure full and global interoperability of services;

g) The allocation of numbering resources to electronic communications services which are not publicly available, where this is necessary and without prejudice to the guarantee of availability of numbering resources for publicly available services pursuant to the preceding paragraphs;

h) Entities responsible for the allocation of names and addresses of electronic communications networks and services shall coordinate their positions with the other competent bodies of the European Union in international organisations and forums in which decisions are taken on these issues, where such is appropriate in order to ensure full global interoperability of services.

Article 18
Markets

The NRA is charged, under the terms of the present law, with defining and analysing the relevant markets, identifying undertakings with significant market power and determining suitable measures in respect of undertakings providing electronic communications networks and services.

TITLE III
Provision of electronic communications networks and services
 

CHAPTER I
General provisions
 

Article 19
Provision of networks and services

1 – The freedom to provide electronic communications networks and services is hereby ensured.

2 – Without prejudice to the preceding paragraph, the provision of electronic communications networks and services, whether publicly available or not, shall be subject only to the regime of general authorisation, which regime entails compliance with the rules set forth in the present law and respective regulations, and shall not be dependent on any prior decision or act of the NRA.

3 –The preceding paragraph does not apply in the cases where the use of frequencies and numbers depends on the allocation of individual usage rights, which allocations shall be made by the NRA in accordance with the terms of the present law.

4 – The nature of undertakings providing publicly available electronic communications networks and services shall be of a regularly constituted legal person.

5 – The instalment and functioning of the infrastructure of undertakings providing publicly available electronic communications networks and services shall be subject to the procedure established in articles 35 and 36 of Decree-Law no 555/99 of 16 December, as amended by Decree-Law no 177/2001 of 4 June, duly adapted, with the following exceptions:

a) The instalment and functioning of infrastructure subject to municipal authorisation in accordance with Decree-Law no 11/2003 of 18 January;

b) Public works which are necessary in situations where there is a threat to public health and safety, as well as public works for the repair of malfunctions.

6 – In the cases referred to in point b) of the preceding paragraph, the undertaking shall notify the municipal council on the working day following the execution of works.

7 – Within the period provided for in article 36 of Decree-Law no 555/99 of 16 December, as amended by Decree-Law no 177/2001 of 4 June, the municipal council may determine that the installation and functioning of infrastructure by said undertakings be postponed for a period not exceeding 30 days on grounds of planning and execution of works, which determination shall be made in writing and with due basis.

Article 20
Amendment of rights and obligations

1 – The conditions, rights and procedures applicable to the exercise of the activity, including the rights of use or rights to install facilities, may only be amended in cases of objective justification and in accordance with the principle of proportionality, by means of law, regulation or administrative act, as appropriate.

2 –Amendments adopted pursuant to the preceding paragraph shall be subject to the general consultation procedure set forth in article 8, whereby interested parties, including users and consumers, shall be provided with a period of time that is sufficient to submit their views on the proposed amendments, which period shall be no less than 20 days, except in duly justified exceptional circumstances.

CHAPTER II
General regime of authorisation
 

Article 21
Procedure

1 – Undertakings which intend to provide electronic communications networks and services shall previously submit to the NRA a short description of the network or service they wish to initiate and shall give notice of the date upon which the activity is estimated to commence, submitting also such details as are necessary for their full identification under terms to be defined by the NRA.

2 – Without prejudice to other items required by the NRA pursuant to the final part of the preceding paragraph, undertakings shall provide notification of the respective address which is to be used for notifications and other communications to be carried out by the NRA, and also to provide notification of any alteration to said address within 30 days of such alteration.

3 – Undertakings referred to in paragraph 1 shall obtain proof of said notification, via any legally acknowledged receipt, including postal or electronic.

4 – Following said notification, undertakings may immediately commence activity, subject to the limitations resulting from the allocation of rights to use frequencies and numbers.

5 – The NRA shall, within 5 days of the receipt of said notification, issue a declaration confirming its delivery, which declaration shall describe in detail the rights provided for in the present law in respect of access and interconnection and of instalment of resources, which presentation is intended to facilitate the exercise of such rights.

6 – The provisions of the preceding paragraphs shall be applicable whenever there is any alteration to the elements previously submitted.

7 – Undertakings which cease the provision of electronic communication networks or services shall notify the NRA of such.

Article 22
Rights of undertakings that provide publicly available electronic communications networks and services

Undertakings which provide publicly available electronic communications networks and services enjoy the following rights:

a) To negotiate interconnection with and obtain access or interconnection from other providers of publicly available communications networks and services, under the conditions of and in accordance with the present law;
b) The opportunity to be designated as a provider of certain elements of universal service and/or to cover different parts of the national territory in accordance with the provisions of the present law.

Article 23
Rights of undertakings that provide electronic communications
networks and services not available to the public

No restrictions may be imposed that prevent undertakings or operators from negotiating agreements among themselves in respect of technical and commercial modalities of access and interconnection.

Article 24
Rights of way

1 – Undertakings providing publicly available electronic communications networks and services are ensured:

a) The right to request, pursuant to general law, the expropriation and the constitution of public easements indispensable to the installation, protection and maintenance of the respective systems, equipment and further resources;

b) The right to use the public domain, in conditions of equality, for the implanting, crossing or passing over necessary for the installation of systems, equipment and further resources.

2 – Undertakings providing electronic communications networks and services not available to the public are ensured the right to request the use of the public domain as necessary for the installation of systems, equipment and further resources.

3 – The procedures for granting the rights referred to in the preceding paragraphs shall be transparent, duly published and applied without discrimination and without delay, and the attached conditions to any such rights shall follow the principles of transparency and non-discrimination.

4 – All authorities with jurisdiction over the public domain shall set out and publish transparent, swift and non-discriminatory procedures governing the exercise of the right to use the public domain as ensured under the present law.

5 – There shall be a guarantee that the function responsible for granting or defining the conditions for the exercise of rights provided for in the present article shall have effective structural separation from activities associated with ownership or control of undertakings operating in the sector over which public authorities, including local authorities, retain ownership or control.

6 – The right granted for the use of the public domain under the terms of this article may not be extinguished prior to the expiry of the period for which such right was granted, except where justified and without prejudice to applicable provisions in respect of compensation.

Article 25
Co-location and facility sharing

1 – In the cases referred to in paragraph 1 of the preceding article, undertakings shall promote among themselves the conclusion of agreements aimed at sharing property or facilities, either installed or to be installed, which agreements shall be notified to the NRA.

2 – Where there are no viable alternatives to the installation of new infrastructure due to environmental protection, public health, public security, cultural heritage, country planning and town and country landscapes preservation, without prejudice to the powers of local authorities, the NRA may, following a consultation period of interested parties, determine the sharing of facilities, including ducts, masts and other installations in the property, whether or not the owners thereof are undertakings providing electronic communications networks and services.

3 –Determinations issued pursuant to the preceding paragraph may include rules for apportioning costs.

4 – In the event of sharing, the NRA may adopt measures that place restrictions on the operation of the facilities to be installed, namely a limit on the maximum levels of transmission power.

Article 26
Access to ducts

1 – The concessionaire of the telecommunications public service shall, by agreement, provide undertakings providing publicly available electronic communications networks and services with access to ducts, masts, other installations and property which it owns or manages, for the installation and maintenance of their systems, equipment and other facilities.

2 – The concessionaire of the telecommunications public service may request of undertakings providing publicly available electronic communications networks and services an appropriate remuneration for the use of ducts, masts, other installations and property which it owns or manages, in respect of the installation and maintenance of their systems, equipment and other facilities.

3 – In the absence of an agreement, any party may request the intervention of the NRA, and the NRA shall determine, by means of a substantiated decision, the conditions governing access, namely the price, which shall be cost-orientated.

4 – For the purposes of paragraph 1, the concessionaire shall make available an offer of access to ducts, masts, other installations and property, which offer shall include the conditions of access and usage, in accordance with terms to be established by the NRA.

5 – All entities under the tutelage, supervision or superintendence of bodies of the State, Autonomous Regions or local authorities which pursue administrative functions, whether or not commercial by nature, including public undertakings, majority public-owned undertakings, or concessionaires, shall comply with the principle of non-discrimination in providing access to ducts, masts, other installations and property with they own or manage to undertakings providing publicly available electronic communications networks and services.

6 – The entities referred to in the preceding paragraph may request of undertakings providing publicly available electronic communications networks and services an appropriate remuneration in respect of the use of ducts, masts, other installations and property which they own or manage, for the installation and maintenance of systems, equipment and other facilities necessary to the activity pursued by said undertakings, in compliance, in the case of concessionaires, with the terms established in the respective concession contract.

7 – In the cases set forth in paragraphs 5 and 6, the act or contract by which said access is provided shall be subject to the approval of the body of tutelage, supervision or superintendence, following the prior opinion of the NRA.

Article 27
General conditions

1 – Without prejudice to other conditions provided for in general law, undertakings providing publicly available electronic communications networks and services may be subject in the exercise of their activity to the following conditions:

a) Interoperability of services and interconnection of networks;

b) Obligations of access that do not include the specific conditions set forth in article 28, but which may include, among others, rules in respect of the restrictions of provision;

c) Maintenance of the integrity of the public network, particularly by means of conditions that prevent electromagnetic interference between electronic communications networks and/or services, pursuant to Decree-Law no 74/92 of 29 April and Decree-Law no 98/95 of 17 May, and respective regulatory measures;

d) Conditions of use during major disasters which shall ensure communications between emergency services and authorities and broadcasts to the general public;

e) Security of public networks against unauthorised access according to legislation governing personal data and privacy protection in respect of electronic communications;

f) Environmental and town and country planning requirements, as well as requirements and conditions linked to the granting of access to or use of public or private land and conditions linked to co-location and facility sharing, including, where applicable, any financial or technical guarantees necessary to ensure the proper execution of infrastructure works;

g) Personal data and privacy protection with specific respect to electronic communications, in accordance with legislation governing personal data and privacy protection;

h) Conditions for the use of frequencies, in accordance with Decree-Law no 151-A/2000 of 20 July, where such use is not made subject to the granting of individual rights of use in accordance with article 16;

i) Accessibility of numbers from the national numbering plan to end-users including conditions, in accordance with the present law;

j) Consumer protection rules specific to the electronic communications sector including conditions in accordance with the present law;

l) Measures regarding the limitation of exposure of the general public to electromagnetic fields caused by electronic communications networks in accordance with applicable law;

m) Measures designed to ensure compliance with the standards and/or specifications referred to in article 29;

n) Installation, at the undertaking’s own expense, and provision of systems of legal interception to competent national authorities, as well as the supply of means of decryption or decoding where these facilities are present, in accordance with legislation governing personal data and privacy protection within the scope of electronic communications;

o) “Must carry” obligations in accordance with article 43;

p) Restrictions on the transmission of illegal content, in accordance with legislation that transposes Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000, and on the transmission of harmful content, in accordance with Law no 38-A/98, of 14 July;

q) Financial contributions to the funding of the universal service in accordance with articles 95 to 97;

r) Fees, in accordance with article 105;

s) Information to be provided under the procedure of notification set out in article 21 and for the purposes set forth in article 109.

2 –The NRA shall specify which conditions, among those referred to in the preceding paragraph, shall apply to electronic communications networks and services, for which purpose it may establish categories.

3 – The conditions to be defined by the NRA under the terms of the preceding paragraph shall be objectively justified in respect of the network or service under consideration, particularly in respect of its availability to the public, and shall be non-discriminatory, proportionate and transparent.

4 – For the purposes of paragraph 2 of the present article, the compulsory prior opinion of sector regulators shall be sought, in matters within their remit, which opinion shall be issued within a period not exceeding 15 days.

Article 28
Specific conditions

The definition of conditions pursuant to the preceding article is without prejudice to the imposition on undertakings providing electronic communications networks and services of specific obligations in accordance with the rules and in the situations set forth in the present law:

a) In respect of access and interconnection, under the terms of paragraph 1 of article 63 and articles 66, 73, 77 and 78;

b) In respect of other of regulatory controls, under the terms of articles 82 to 85;

c) In respect of universal service, regarding the respective providers;

d) Resulting from the maintenance of obligations, under the terms of article 122.

Article 29
Standardisation

1 – Without prejudice to rules deemed mandatory at the level of the European Union, the NRA, to the extent strictly necessary to ensure interoperability of services and to broaden freedom of choice for users, shall encourage the use of standards and specifications, in order to encourage the harmonised provision of electronic communications networks and services and associated facilities and services; such standards and specifications shall be based on the list drawn up by the European Commission and published in the Official Journal of the European Communities, pursuant to Directive no 2002/21/EC of the European Parliament and of the Council of 7 March 2002.

2 – The NRA shall promote the publication in the Diário da República of the reference to the publication in the Official Journal of the European Communities of the list of standards and specifications regarding the harmonised provision of electronic communications networks and services and associated facilities and services referred to in the final part of the preceding paragraph.

3 – While the list referred to in paragraph 1 has not been published, the NRA shall encourage the implementation of standards and specifications adopted by the European standards organisations.

4 – In the absence of the standards referred to in the preceding paragraph, the NRA shall encourage the implementation of international standards or recommendations which have been adopted by the International Telecommunication Union (ITU), the International Organisation for Standardisation (ISO) or the International Electrotechnical Commission (IEC).

5 – Without prejudice to the standards and specifications referred to in the preceding paragraphs, technical specifications may be implemented at national level.

6 – The competent national authorities shall encourage the European standards organisations to use international standards where such standards exist, or the relevant parts thereof, as a basis for the standards they develop, except where such standards or parts thereof would be ineffective.

CHAPTER III
Rights of use
 

Article 30
Frequency Usage Rights

1 – The use of frequencies shall be subject to the granting of individual rights of use only where this is so provided for in the NFAP, pursuant to point b) of paragraph 1 of article 16.

2 – Frequencies usage rights may be granted to both providers of electronic communication networks or services and to entities that use such networks or services, including providers of radio or television content broadcasting services, under the terms of applicable legislation.

3 – Without prejudice to specific criteria and procedures for the granting of frequency usage rights to providers of radio or television content broadcasting services, such usage rights shall in pursuit of general interest objectives, be granted by means of procedures which are open, transparent and non-discriminatory.

Article 31
Limitation of the number of rights of use for frequencies

1 – The number of usage rights to be granted may only be limited in the event that such limitation is necessary to ensure the efficient use of radio frequencies.

2 – Where the NRA intends to limit the number of usage rights to be granted, it shall, in particular, give due weight to the need to maximise benefits for users and to facilitate the development of competition.

3 – In the cases provided for in the preceding paragraph and without prejudice to other measures deemed appropriate, the NRA shall:

a) Enact the general consultation procedure set forth in article 8, hearing, in particular users and consumers;

b) Publish a decision to limit the granting of usage rights, stating the reasons therefor, establishing at the same time the procedure for allocation, which procedure may consist of competitive or comparative selection, including an auction or competition.

c) Instigate the procedure for the presentation of applications for the usage rights under the terms defined.

4 – Where the granting of frequency usage rights is limited, the procedures and selection criteria shall be objective, transparent, non-discriminatory and proportionate and shall take account of the objectives set forth in article 5.

5 – The NRA shall conduct a review of the limitation of the number of frequency usage rights under the terms of 16, on an annual basis and also at the reasonable request of interested undertakings; where the NRA concludes that further frequency usage rights may be granted, it shall publish such conclusion and instigate the procedures for the applications for such rights, in accordance with the present article.

Article 32
Conditions attached to frequency usage rights

1 – Without prejudice to other conditions resulting from general law and to those set out in paragraph 1 of article 27, frequency usage rights shall only be subject to the following conditions:

a) Designation of service or type of network or technology for which the frequency usage rights have been granted, including, where applicable, the exclusive use of a frequency for the transmission of specific content or specific audiovisual services;

b) Effective and efficient use of frequencies in accordance with article 15, including, where appropriate, requirements of coverage;

c) Technical and operational conditions necessary to ensure that harmful interference is not produced and to limit exposure of the general public to electromagnetic fields, where such conditions are different from those included in point l) of paragraph 1 of article 27;

d) Maximum duration in accordance with Article 36, subject to any changes made to the NFAP;

e) Transfer of rights at the initiative of the right holder and conditions for such transfer in accordance with article 37;

f) Fees, in accordance with Article 105;

g) Possible commitments which the undertaking obtaining the usage right has made in the course of a competitive or comparative selection procedure;

h) Obligations under relevant international agreements relating to the use of frequencies.

2 – The regime set out in paragraphs 2 and 3 of article 27 is applicable to the conditions of frequency usage rights.

Article 33
Rights of use for numbers

1 – The use of numbers shall be dependent on the granting of individual rights of use.

2 – The rights of use for numbers may be granted to providers of electronic communication networks or services or to entities that use such networks or services.

3 – The rights of use for numbers shall be granted by means of procedures which are open, transparent and non-discriminatory.

4 – Without prejudice to the provisions of the preceding paragraph, the NRA may, following the general consultation procedure set out in article 8, decide that rights of use for numbers of exceptional economic value are to be granted through competitive or comparative selection procedures, including by tender or auction, and shall identify them in accordance with point d) of paragraph 2 of article 17.

Article 34
Conditions attached to rights of use for numbers

1 – Without prejudice to other conditions resulting from general law and to those set forth in paragraph 1 of article 27, the rights of use for numbers may be subject to the following conditions:

a) Designation of the service for which the number shall be used, including any requirements linked to the provision of said service;

b) Effective and efficient use of numbers in accordance with point b) of paragraph 2 of article 17;

c) Requirements of number portability in accordance with article 54;

d) Obligations in respect of directory services for the purposes of articles 50 and 89;

e) Transfer of rights at the initiative of the right holder and conditions for such transfer in accordance with article 38;

f) Fees, in accordance with article 105;

g) Any commitments which the undertaking obtaining the usage right has made in the course of a competitive or comparative selection procedure;

h) Obligations arising from applicable international agreements on the use of numbers.

2 – The provisions set out in paragraphs 2 and 3 of article 27 are applicable to the rights of use for numbers.

Article 35
Grant of rights of use

1 – The allocation of usage rights for frequencies and numbers is dependent on a request being submitted to the NRA, which request shall include such items as are necessary to prove the ability of the requestor to comply with the conditions associated with the usage right, which conditions are established in articles 32 and 34, under terms to be defined by the NRA.

2 – The decision on the allocation of usage rights shall be taken, notified and made public within the following periods:

a) within a period not exceeding 15 days in the case of numbers that have been allocated for specific purposes within the National Numbering Plan;

b) within a period not exceeding 30 days in the case of frequencies that have been allocated for specific purposes within the NFAP, without prejudice to any applicable international agreements on the use of radio frequencies or of orbital positions.

3 – Where the granting of rights of use is subject to competitive or comparative selection procedures, the periods set out in the preceding paragraph may be extended as follows:

a) to an additional period of 15 days, in respect of the allocation of numbers,;

b) for as long as is necessary in respect of the allocation of frequencies, to ensure that such procedures are fair, reasonable, open and transparent to all interested parties, but by no more than eight months, without prejudice to any applicable international agreements relating to the use of radio frequencies and satellite coordination.

4 – The Government is charged with the approval of regulations regarding the allocation of frequency usage rights where such regulations involve competitive or comparative selection procedures, and where such allocation involves frequencies which are being made available for the first time within electronic communications, or otherwise where such frequencies are intended to be used for new services,

5 – The NRA is charged with the approval of regulations regarding the allocation of rights of use for frequencies in cases not covered in the preceding paragraph.

6 – In the event that the use of frequencies has been harmonised, that conditions and procedures of access have been agreed, and that selection has been made of the undertakings to which the frequencies shall be assigned, in accordance with international agreements and Community rules, the NRA shall grant the right of use for such radio frequencies in accordance therewith, and provided that all national conditions attached to the right to use such frequencies have been satisfied, in the case of a common selection procedure, no further conditions, additional criteria or procedures which would restrict, alter or delay the correct implementation of the common assignment of such radio frequencies may be imposed.

Article 36
Time limit and renewal of rights of use for frequencies

1 – Frequency usage rights shall be granted for a 15-year period, and in duly substantiated situations they may be granted by the NRA for an extended time limit, to a maximum of 20 years.

2 – The rights of use may be renewed for equal periods of time, upon a request submitted by the right holder to the NRA at the least one year prior to the termination of the period in which the right is in force.

3 – In the case referred to in the preceding paragraph, the NRA may oppose the renewal of the right of use up to three months before the termination of the period in which the right is in force, presenting the grounds therefor; in the event that the NRA does not respond, the request shall be deemed as granted.

Article 37
Transfer of rights of use for frequencies

1 – Where identified as such in the NFAP, frequency usage rights are transferable.

2 – For the purposes of the preceding paragraph, the holders of rights of use shall previously notify the NRA of their intention to transfer such rights, as well as the conditions under which they intend such transfer to be made.

3 – In the event that frequency usage rights are transferred, the NRA is charged with ensuring that:

a) The transfer does not cause a distortion of competition;

b) The frequencies are used effectively and efficiently;

c) The intended use of the frequency is respected where such use has been harmonised through the application of Decision no 676/2002/EC (Radio Spectrum Decision) or other Community measures;

d) The restrictions set forth in the law in respect of radio and television broadcasting are safeguarded.

4 – The NRA shall respond to the notification provided for in paragraph 2 within a period not exceeding 45 days. The NRA may oppose the intended transfer of usage rights and may also impose such conditions as may be necessary to comply with the provisions of the preceding paragraph, which decision shall have due basis.

5 – In the cases provided for in the preceding paragraph, the NRA shall request the prior opinion of the Competition Authority, which opinion shall be issued within a period not exceeding 10 days following the date of such request.

6 – The transfer of rights does not suspend nor interrupt the time limit for which the rights of use have been granted pursuant to this law, without prejudice to the renovation thereof, pursuant to paragraph 2 of article 36.

Article 38
Transfer of rights of use of numbers

The rights of use of numbers may be transferred under terms and conditions to be established by the NRA, which terms and conditions shall provide mechanisms intended to safeguard, in particular, the effective and efficient use of numbers and rights of users.

CHAPTER IV
Operation rules
 

SECTION I
Undertakings providing publicly available networks and services
 

Article 39
Protection of users and subscribers

1 – The following rights are conferred upon users of publicly available networks and services, in addition to others resulting from the law:

a) Equal access to provided networks and services;

b) To be provided, in a timely manner and prior to the conclusion of any contract, with written information in respect of the conditions governing access to and use of the service;

c) To be given a minimum of 15 days notice in the event of the termination of provision.

2 – The following rights are granted to subscribers of publicly available networks and services, in addition to others resulting from the law:

a) To be given notice, of appropriate duration, of the suspension of the service provision, in the event of non-payment of bills;

b) To receive itemised bills, where requested.

3 – The information mentioned in point c) of paragraph 1 shall be likewise notified to the NRA within the same period of time.

4 – Undertakings providing publicly available electronic communications networks and services shall submit the respective subscription contracts to the NRA, who is charged with the approval of such contracts and who shall report on their compliance with the present law, following the prior opinion of the Consumer Institute, to be issued within 20 days.

5 – If, pursuant to the preceding paragraph, the NRA does not present its decision within 90 days, the submitted accession contract is deemed approved.

Article 40
Quality of service

1 – Undertakings which provide publicly available electronic communications services shall publish and provide end-users with information on the quality of their services, which information shall be comparable, clear, complete and up-to-date.

2 – For the purposes of the preceding paragraph, the NRA shall, following the general consultation procedure referred to in article 8, specify, inter alia, the quality of service parameters to be measured and the content, form and manner of information to be published, for which purpose the annex may be followed.

3 – Undertakings shall also provide the NRA with regular and up-to-date information on the quality of their services, in accordance with article 108.

Article 41
Accounting separation

1 – Undertakings providing public 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 provide a separate system of accounting for activities connected to the provision of electronic communications networks and services, which system shall be subject to an independent audit to be carried out by a body appointed by the NRA or accepted by it; otherwise such undertakings shall create different legal entities for the corresponding activities.

2 – Undertakings with an annual turnover which is less than EUR 50 million may be exempted by the NRA from the obligations provided for in the preceding paragraph.

3 –Undertakings providing publicly available electronic communications networks and services which, under the terms of specific legislation applicable to them, are not subject to an accounting control, shall, on an annual basis, draw up the respective financial reports, which reports shall be submitted to an independent audit and published.

Article 42
Structural separation and other measures

1 – Undertakings providing public electronic communications networks shall operate their cable television network through legally independent bodies where:

a) They are controlled by a Member State or enjoy special rights;

b) They have a dominant position in a substantial part of the market in respect of the provision of public electronic communications networks and of publicly available telephone services;

c) They operate a cable television network created with the enjoyment of special or exclusive rights in the same geographic area.

2 – For the purposes of point b) of the preceding paragraph, publicly available telephone services shall mean services provided for the commercial provision of direct transport of real-time speech via the public switched network or networks such that any user can use equipment connected to a network termination point at a fixed location to communicate with another user of equipment connected to another termination point.

3 – Public undertakings which established their networks with the enjoyment of special or exclusive rights which are vertically integrated and which have a dominant position shall be subject to such measures of the NRA as are suitable in order to ensure the principle of non-discrimination.

Article 43
«Must carry» obligations

1 –The NRA shall impose “must carry” obligations upon undertakings providing electronic communications networks used for the distribution of radio or television broadcasts where such networks are used by a significant number of end-users as the principal means of receiving radio and television broadcasts, which obligations shall be to transmit radio and television broadcast channels and services as specified under law by competent authorities.

2 – The obligations set out in the preceding paragraph shall be imposed only where they are necessary to meet clearly defined objectives of general interest and shall be reasonable, proportionate, transparent and subject to periodical review.

3 – The NRA may determine appropriate remuneration in respect of imposed “must carry” obligations, which remuneration shall be applied in a proportionate and transparent manner, while ensuring that, in equivalent circumstances, there is no discrimination in the treatment of undertakings providing electronic communications networks.

Article 44
Non-geographic numbers

1 – Where technically and economically feasible, and without prejudice to the provision of the following paragraph, undertakings holding non-geographic numbers within the national territory shall ensure that end-users from the European Union have access to such numbers.

2 – The provision of the preceding paragraph shall not apply where a called subscriber has, for commercial reasons, chosen to limit the access of calls from specific geographical areas.

3 – The prices applicable to calls for non-geographic numbers may be differentiated according to whether such calls originate from within or from outside the national territory.

Article 45
Barring of audio-text services

1 – Undertakings providing electronic communications networks and services which support the provision of audio-text services shall ensure, as a rule, that access to such services is barred without charge, and such services may only be activated, generally or selectively, following a written request on the part of the respective users.

2 – The preceding paragraph does not apply to televote audio-text services, access to which is granted automatically to the user.

Article 46
Contract prevention mechanisms

1 – Undertakings providing electronic communications networks and services are entitled by this law, directly or through their representative associations, to establish and manage mechanisms that enable the identification of subscribers who have failed to meet their payment obligations in respect of concluded contracts, which mechanisms shall include the establishment of a shared database.

2 – The database management body shall set out the respective conditions of operation, requesting the prior opinion of the NRA, and submit these conditions to the National Commission for Data Protection (NCDP) for approval.

3 – The established mechanisms shall respect the following conditions, without prejudice to the applicable regime on protection of personal data and privacy:

a) The included data shall be restricted to those items that are absolutely necessary for the identification of non-compliant subscribers;

b) Guarantee of the right to access, rectify and update data by the respective holder;

c) Obligation to include in contracts or to expressly advise subscribers who have already concluded a contract that their data may be entered in the database in the event of non-compliance with contractual obligations, in addition to the obligation of informing subscribers, within 5 days, of the inclusion of their data in the database;

d) Undertakings wishing to gain access to items included shall likewise provide the necessary items in respect of contracts which they have concluded and in respect of which there are sums overdue.

e) All items received shall be used exclusively by those undertakings participating in the established mechanisms, and the full or partial transmission of such items to third parties or the use of such items for purposes other than those which are set out in the preceding paragraph is prohibited;

f) Following the settlement of sums due by a subscriber, all items in respect of such subscriber shall be removed forthwith;

g) The guarantee of the right of subscribers to compensation, pursuant to general law, in the event that their data is unduly included the established mechanisms.

4 – The operating conditions of the database shall ensure compliance with the provisions of the preceding paragraph and shall consist, in particular, of:

a) The minimum overdue amount which shall cause the subscriber to be included in the database, which amount shall not be less than the national minimum wage;

b) Identification of situations of non-compliance which may be entered in the database, possibly making a distinction between categories of subscribers in view the sums overdue;

c) Establishment of a period of delay following which inclusion in the database is permitted;

d) Identification of data which may be included;

e) Maximum period which data may remain in the database.

5 – Undertakings providing electronic communications networks and services may refuse to conclude a contract with a subscriber who has not settled overdue amounts in respect of previously concluded contracts with the same or another undertaking, except where the subscriber concerned has cited breach of contract, or has complained against or appealed the presented bill.

6 – The regime set forth in the preceding paragraph shall not apply to the universal service providers, which providers may not refuse to enter into a contract, without prejudice to their right to demand the provision of guarantees.

SECTION II
Undertakings providing publicly available telephone networks and services
 

Article 47
Obligation to publish information

1 – Undertakings providing publicly available telephone networks and services shall make available to the public, and especially to all consumers, information on applicable prices and on standard terms and conditions, in respect of access to and use of publicly available telephone services, which information shall be transparent and up-to-date.

2 – For the purposes of the preceding paragraph, such undertakings shall publish and provide, the following information in a form defined by the NRA:

a) Identification of the provider;

b) Scope of the publicly available telephone service, in particular the description of the services offered, the indication of what is included in the subscription charge, where this charge exists, and the periodic rental charge, including operator services, directories, directory enquiry services, selective call barring, itemised billing and maintenance;

c) Standard prices which shall cover access and all types of charges in respect of use, maintenance, as well as details of the standard discounts applied and special or specific tariff schemes;

d) Compensation or refund systems, including specific details on the respective schemes, where offered;

e) Types of maintenance service offered;

f) Standard contract conditions, including any minimum contractual period;

g) Mechanisms for the settlement of disputes including those mechanisms developed by the undertaking providing the service.

3 – Undertakings obliged under the terms of paragraph 1 to publish and make available the information referred to in the preceding paragraph, shall communicate such information to the NRA.

Article 48
Contracts

1 – Without prejudice to rules on consumer protection, services providing connection and/or access to the public telephone network shall be subject to a contract that shall compulsorily specify the following:

a) The identity and address of the supplier;

b) Services provided, the levels of service quality offered, and the time necessary for the initial connection;

c) The types of maintenance service offered;

d) Details of prices and tariffs and the means by which up-to-date information on all applicable tariffs and maintenance charges may be obtained;

e) The duration of the contract and the conditions whereby the contract or services may be renewed, suspended or terminated;

f) Any compensation and the refund arrangements which apply if contracted levels of service quality are not met;

g) The method whereby dispute settlement procedures may be instigated in accordance with article 107;

h) Conditions for the provision of itemised bills;

i) Explicit indication of the subscriber’s willingness in respect of the inclusion or not of their respective personal information in a public directory and on its disclosure through the directory enquiry service, whether or not the transfer thereof to third parties is involved, pursuant to legislation on protection of personal data.

2 – The provisions of the preceding paragraph shall also apply to contracts concluded between consumers and undertakings providing electronic communications services other than those providing connection or access to the public telephone network.

3 – Where the undertaking decides to amend the contractual conditions referred to in paragraph 1, it shall give prior notice of not less than one month to subscribers, in appropriate form, and at the same time inform subscribers of their right to withdraw, without penalty, from such contracts, in the event that they do not accept the new conditions, within the time limit set out in the contract.

Article 49
Integrity of the network

1 – Undertakings providing publicly available telephone services at fixed locations shall ensure the integrity of the respective networks.

2 – Undertakings providing public telephone network and publicly available telephone services at fixed locations shall ensure the availability of networks and services in the event of emergency or in cases of force majeure.

3 – Undertakings providing publicly available telephone services shall ensure uninterrupted access to emergency services.

Article 50
Directory enquiry services and operator assistance services

1 – Subscribers to publicly available telephone services have the right to inclusion in the comprehensive publicly available directory referred to in point a) of paragraph 1 of article 89.

2 – End-users provided with a connection to public telephone networks have the right of access to directory enquiry services, in accordance with point c) of paragraph 1 of article 89, and to services with operator assistance.

3 – Regulatory restrictions that prevent end-users in one Member State from directly accessing the directory enquiry services in another Member State may not be imposed.

4 – Undertakings which assign telephone numbers to subscribers shall meet all reasonable requests for the supply of the relevant information on the respective subscribers for the purposes of the provision of publicly available directory enquiry services and directories, in an agreed format and on terms which are fair, objective, cost oriented and non-discriminatory.

5 – The provisions of this article are subject to the rules applicable to the protection of personal data and privacy.

Article 51
Single European emergency call number

1 – End-users of publicly available telephone services, including users of public pay telephones, have the right to access the emergency services free of charge, by using the single European emergency call number - “112”, duly identified as such in the National Numbering Plan.

2 – As far as is technically feasible, undertakings providing publicly available telephone networks and services shall make information on the location of the caller available to authorities handling emergencies, for all calls to the single European emergency call number “112”.

3 – Without prejudice to the preceding paragraphs, the NRA may assign other specific emergency numbers, duly identified as such in the National Numbering Plan.

Article 52
Suspension or termination of services

1 – Undertakings providing publicly available telephone services shall only suspend the provision of services in the event of non-payment of bills, following an appropriate due warning of eight days given to the subscriber.

2 – In the cases provided for in the preceding paragraph, the subscriber is entitled to pay and settle only part of the sums due according to the bill, and any service interruption shall be limited to the service concerned, as far as such limitation is technically feasible, except in cases of fraud or of persistent late or non-payment.

3 – During the period of suspension and up to the termination of service, the subscriber is entitled to make calls that do not incur a charge, such as those made to the single European emergency call number.

4 – The service may be terminated only after an appropriate warning of eight days has been issued to the subscriber.

Article 53
Provision of additional facilities

1 – Undertakings providing publicly available telephone networks and services shall make available to end-users, subject to technical feasibility and economic viability, the following facilities:

a) Multi-frequency dialling – DTMF, ensuring that the public telephone network supports the use of DTMF tones as defined in ETSI ETR 207 for end-to-end signalling throughout the network;

b) Calling-line identification, in accordance with relevant legislation on protection of personal data and privacy, in particular those specifically applicable in respect of electronic communications.

2 – The NRA shall, following the general consultation procedure provided for in article 8, waive the need to comply with the provision of the preceding paragraph, in all or part of the national territory, where the NRA considers that there is sufficient access to the facilities mentioned therein.

Article 54
Number portability

1 – Without prejudice to other forms of portability that may be determined, all subscribers of publicly available telephone services who so request are entitled to retain their number or numbers, in respect of the same service, irrespective of the undertaking providing the service, in the case of geographic numbers, at a specific location, and in the case of the remaining numbers, throughout national territory.

2 – The interconnection prices in respect of the provision of number portability shall follow the principle of cost orientation and direct charges to subscribers, if any, and shall not act as a disincentive for the use of such facilities.

3 – The NRA is charged with ensuring that undertakings provide subscribers with appropriate and transparent information on the prices applicable to portability operations and to calls made to ported numbers.

4 – The NRA shall not impose retail tariffs for the porting of numbers in a manner that would distort competition, such as by setting specific or common retail tariffs.

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

TITLE IV
Market analysis and regulatory control
 

CHAPTER I
Market analysis procedure and imposition of obligations
 

Article 55
Scope and general principles

1 – The present title applies to undertakings providing publicly available networks and services.

2 –Market analysis and the imposition of specific regulatory obligations shall comply with the principles of full reasoning for the application of specific regulatory obligations.

3 – In establishing the grounds for decisions to apply specific regulatory obligations, the NRA shall cumulatively prove that the imposed obligation:

a) Is appropriate to the identified problem, and is proportional and justified in the light of the basic objectives set forth in article 5 of the present law;

b) Is objectively justified in respect of the networks, services or infrastructure to which it refers;

c) Does not result in undue discrimination in respect of any other entity;

d) Is transparent in regard to its purposes.

Article 56
Assignment

The NRA is charged, according to the rules provided for in this article, with:

a) Identifying the relevant markets of products and services, having regard to the recommendation of the European Community issued pursuant to Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002, hereinafter referred to as the recommendation of the European Commission, as well as other relevant markets not mentioned therein;

b) Determining whether or not a relevant market is effectively competitive;

c) Declaring undertakings with significant market power in the relevant markets;

d) Imposing, maintaining, amending or withdrawing obligations in respect of undertakings with or without significant market power, including the imposition of technical and operational conditions on the provider and/or beneficiaries of access.

Article 57
Specific consultation procedure

1 – Where the decisions to be adopted pursuant to the preceding article affect trade between Member States, the NRA, in addition to the general consultation procedure laid down in article 8, shall comply with the following procedure, which has the intention of consolidating the internal market:

a) Make, by suitable means, the substantiated draft decision measure accessible to the European Commission and to the national regulatory authorities of other Member States, indicating any confidential information therein;

b) Notify the European Commission and other national regulatory authorities of the available draft measure and the means by which access to it may be gained.

2 – The European Commission and national regulatory authorities may comment on the draft measure within a period of one month, which period may not be extended, or within the period set out for the general consultation procedure, whichever period is longer.

3 – The NRA may, in the absence of comments received or following the analysis of comments received, which comments shall be taken into account, adopt the draft measure and notify the European Commission thereof.

4 – The final part of the preceding paragraph does not apply to draft measures of the NRA which concern the following issues, where any of the conditions referred to in paragraph 5 apply:

a) The identification of relevant markets that differ from those defined in the recommendation of the European Commission;

b) Decision on whether or not to designate an undertaking as having individual or joint significant market power.

5 – Where a draft measure on the issues referred to in the preceding paragraph is under consideration and where the European Commission, in the scope of the procedure laid down in paragraph 2, has indicated that it considers that the draft measure would create a barrier to the single market or if it has serious doubts as to its compatibility with Community law, in particular with the objectives referred to in article 5, and in the event that the European Commission, within a period of two months which period may not be extended, and according to the procedure provided for in Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002, takes a substantiated decision requiring the NRA to withdraw the draft measure, the NRA shall accordingly withdraw the draft measure and present specific proposals for amending the draft measure.

6 – Where the European Commission does not issue an assessment within the two-month period referred to in the preceding paragraph, the NRA may adopt the decision.

CHAPTER II
Market definition and analysis
 

Article 58
Market definition

1 – The NRA is charged with defining the relevant markets of products and services within the electronic communications sector, including the relevant geographic markets, in accordance with the principles of competition law.

2 – In the course of market definition, the NRA, having regard to national circumstances, shall take due account of the recommendation of the European Community that identifies, in accordance with the principles of competition law, the relevant product and service markets, the characteristics of which may be such as to justify the imposition of specific regulatory obligations and shall also take due account of the “Guidelines for market analysis and assessment of significant market power”, hereinafter referred to as the guidelines.

3 – The NRA may define markets that differ from those mentioned in the recommendation of the European Community, following the procedure referred to in article 57.

4 – The market definition may be reviewed in the event that the recommendation of the European Community is amended or where the NRA deems that there are grounds for such a review.

Article 59
Market analysis

1 – The NRA is charged with carrying out an analysis of the relevant markets defined pursuant to the preceding article, taking account of the guidelines.

2 – Within the scope of market analysis, the NRA shall determine whether or not a relevant market is effectively competitive, for the purposes of imposing, maintaining, amending or suppressing obligations set forth in the present title.

3 – Where the NRA concludes that the market is effectively competitive, it shall not impose any specific regulatory obligation and it shall remove any existing obligations, giving an appropriate period of notice to parties affected by such removal.

4 – Where the NRA determines that a relevant market is not effectively competitive, it shall identify undertakings with significant market power in that market and impose appropriate and specific regulatory obligations, or maintain or amend such obligations where they already exist.

5 – Where the NRA identifies transnational markets, by means of a decision taken pursuant to Directive no 2002/21/EC of the European Parliament and of the Council of 7 March 2002, the NRA shall, jointly with the other national regulatory authorities concerned, conduct an analysis of the market or markets concerned, taking account of the guidelines, in order to formulate a position in respect of on any imposition, maintenance, amendment or withdrawal of obligations provided for in this title.

6 – The analysis of the market shall be reviewed in the event that a new definition of the markets is established or where NRA deems that there are grounds for such a review.

Article 60
Significant market power

1 – For the purposes of the present law, an undertaking shall be deemed to have significant market power if, either individually or jointly with others, it enjoys a position equivalent to dominance, that is to say a position of economic strength affording it the power to behave to an appreciable extent independently of competitors, customers and consumers.

2 – The NRA, when assessing whether two or more undertakings have a joint dominant position in a market, shall act in accordance with Community law and take the guidelines into account.

3 – The NRA may consider that two or more undertakings are in a joint dominant position if, even in the absence of structural or other links between them, they operate in a market whose structure is considered to be conducive to coordinated effects.

4 – Without prejudice to the case law of the Court of Justice on joint dominance, the NRA shall, in its assessment, use criteria based on specific market characteristics, in particular in terms of market concentration and transparency, giving weight, in particular, to the following factors:

a) Fully developed market;

b) Stagnant or moderate growth on the demand side;

c) Low elasticity of demand;

d) Homogeneous product;

e) Similar cost structures;

f) Similar market shares;

g) Lack of technical innovation or fully developed technology;

h) Absence of excess capacity;

i) High barriers to entry;

j) Lack of countervailing buying power;

l) Lack of potential competition;

m) Various kinds of informal or other links between the undertakings concerned;

n) Retaliatory mechanisms;

o) Lack or reduced scope for price competition.

5 – Where an undertaking has significant market power in a specific market, it may also be deemed to have significant market power in an adjacent market, where the links between the two markets are such as to allow the market power held in one market to be leveraged into the other market, thereby strengthening the market power of the undertaking.

Article 61
Cooperation with the Competition Authority

The draft measures of the NRA in respect of the analysis of the market and the determination of whether or not an undertaking holds significant market power are subject to the prior opinion of the Competition Authority, with opinion shall be issued within 30 days of the respective request.

CHAPTER III
Access and interconnection
 

SECTION I
General provisions
 

Article 62
Freedom of negotiation

Undertakings providing electronic communications networks and services are entitled to negotiate and agree between themselves technical and commercial arrangements for access and interconnection, without prejudice to the competence of the NRA provided for in the present chapter.

Article 63
Competence of the national regulatory authority

1 – In exercising the powers set out in the present chapter, the NRA shall, acting in pursuit of the regulatory objectives set out in article 5, encourage and, where appropriate, ensure suitable access and interconnection, as well as interoperability of services, aiming at promoting efficiency and sustainable competition, and at providing maximum benefit to end-users.

2 – The NRA is charged with:

a) Imposing obligations in matters of access and interconnection on undertakings providing electronic communications networks and services;

b) Intervening upon its own initiative whenever justified or, in the absence of an agreement between undertakings, at the request of either of the parties involved pursuant to articles 10 and 12, in order to secure the objectives established in article 5, in accordance with the provisions of the present law.

3 – Operators shall comply with obligations in the form, way and period to be determined by the NRA.

Article 64
Access and interconnection conditions

1 – The terms and conditions of access and interconnection provision shall be consistent with obligations imposed by the NRA in such respect.

2 – Operators shall have a right and, when requested by other undertakings, 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.

3 – Traffic shall remain the property of the undertaking operating the network or providing the service where the traffic is originated, unless otherwise agreed, and the respective conveyance, as well as the delivery point, may be freely negotiated between the parties.

4 – In the case of transnational agreements, the undertaking requesting access or interconnection does need to be covered by the general authorisation laid down in the present law, provided that it does not provide electronic communications networks and services within the national territory.

Article 65
Confidentiality

1 – Undertakings shall respect the confidentiality of information received, transmitted or stored, before, during or after the process of negotiating and making agreement in respect of access or interconnection, and shall use that information solely for the purpose for which it was supplied.

2 – The received information shall not be passed on to any other party, in particular other departments, subsidiaries or partners, for whom such information could constitute a competitive advantage.

3 – The provision of the preceding paragraphs does not prejudice the exercise of the supervisory and monitoring powers of the NRA, particularly in respect of information requested pursuant to article 108.

SECTION II
Obligations applicable to undertakings with significant market power
 

Article 66
Imposition, maintenance, amendment or withdrawal of obligations

1 – The NRA is charged with determining the imposition, maintenance, amendment or withdrawal of the following obligations, in respect of access or interconnection applicable to undertakings designated as having significant market power:

a) Obligation of transparency in relation to the publication of information, including reference offers, pursuant to articles 67 to 69;

b) Obligation of non-discrimination, in relation to the provision of access and interconnection and the respective provision of information, pursuant to article 70;

c) Obligation for accounting separation in respect of specific activities related to access and interconnection, pursuant to article 71;

d) Obligation to respond to reasonable requests for access, pursuant to article 72;

e) Obligation of price control and cost accounting, pursuant to article 74 to 76;

2 – For the purposes of the preceding paragraph, the NRA shall impose the appropriate obligations, having regard to the nature of the problem identified, which obligations shall be proportionate and justified according to the objectives set out in article 5.

3 – The obligations set out in paragraph 1 shall not be imposed on undertakings which have not been designated as having significant market power, except in the cases laid down in the present law or where such imposition is necessary to comply with international commitments.

4 – In exceptional circumstances and where appropriate, the NRA may impose obligations other than those set out in paragraph 1 on operators with significant market power, subject to the prior authorisation of the European Commission, pursuant to Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002, for which a draft measure shall be previously submitted to the European Commission.

Article 67
Obligation of transparency

1 – The obligation of transparency consists of the requirement to publish appropriate information in respect of the provision of access and interconnection by an operator, including accounting information, technical specifications, network characteristics and terms and conditions for supply and use, including prices.

2 – For the purposes of the preceding paragraph, the NRA is charged with specifying the information to be published, and the form and manner of its publication.

Article 68
Reference offer

1 – The NRA may, on a case by case basis, determine, in particular to operators which have obligations of non-discrimination, that access or interconnection reference offers be published, which offers 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) Give a description of the relevant offerings broken down into components according to market needs;

c) Give a description of the associated terms and conditions, including prices.

2 – For the purposes of the preceding paragraph, the NRA may determine the components which as a minimum shall be included in the reference offers, specifying the precise information to be made available, the level of detail required and the manner of publication.

3 – The NRA may further determine:

a) Changes to published reference offers, at any time and where necessary with retroactive effect, to give effect to obligations imposed under the provision of article 66;

b) The immediate inclusion of the imposed changes in the agreements concluded, provided that such changes have specific and sufficient content.

Article 69
Reference offer for access to the local loop (ROALL)

1 – Where an operator is subject to the obligation to offer unbundled access to the local loop, it shall publish the respective reference offer for access to the local loop (ROALL) including as a minimum the following list of components, without prejudice to the provision of paragraph 2 of the preceding paragraph:

a) Conditions for unbundled access to the local loop;

b) Co-location;

c) Information systems;

d) Supply conditions.

2 – For the purposes of point a) of paragraph 1, the following items shall be specified:

a) Network components to which access is offered, covering in particular access to local loops and access to non-voice band frequency spectrum of a local loop, in the case of shared access to the local loop;

b) Information concerning the location of physical access sites, the availability of which may be restricted to interested parties, in order to avoid public security concerns, as well as availability of local loops in specific parts of the access network;

c) Technical conditions related to access and use of local loops, including the technical characteristics of the twisted metallic pair in the local loop;

d) Ordering and provisioning procedures and usage restrictions.

3 – For the purposes of point b) of paragraph 1, the following items shall be specified:

a) Information on the notified operator's relevant sites, the availability of which may be restricted to interested parties, in order to avoid public security concerns;

b) Co-location options at the sites indicated in the preceding point, including physical co-location and, as appropriate, distant co-location and virtual co-location;

c) Equipment characteristics, including restrictions, if any, on equipment that may be installed under the regime of co-location;

d) Security issues, including measures put in place by notified operators to ensure the security of their locations;

e) Access conditions for staff of competing operators;

f) Safety standards;

g) Rules for the allocation of co-location space where this is limited;

h) Conditions whereby beneficiaries may visit the locations at which physical co-location is available, or sites where co-location has been refused on grounds of lack of capacity.

4 – For the purposes of point c) of paragraph 1, the conditions governing access to the notified operator's operational support systems, information systems or databases for pre-ordering, provisioning, ordering, maintenance and repair requests and billing shall be specified.

5 – For the purposes of point d) of paragraph 1, the following items shall be specified:

a) Time needed to respond to requests for supply of services and facilities; service level agreements, fault resolution, procedures to return to a normal level of service and quality of service parameters;

b) Standard contract terms, including, where appropriate, compensation provided for failure to meet the time limit applicable for replying to requests;

c) Prices or pricing formulae for each feature, function and facility provided for.

Article 70
Obligation of non-discrimination

The imposition of the obligation of non-discrimination consists particularly of the requirement for an undertaking to apply equivalent conditions in equivalent circumstances to other undertakings providing equivalent services and to provide services and information to third parties under the same conditions and with the same quality as the services and information provided to its own departments or to those of its subsidiaries or partners.

Article 71
Obligation of accounting separation

1 – The imposition of the obligation for accounting separation in relation to specified activities related to access and interconnection consists, particularly, of the requirement that operators, and especially those that are vertically integrated, present their wholesale and internal transfer prices in a form that has transparency in order to ensure, inter alia, compliance with the obligation of non-discrimination where applicable or, where necessary, to prevent unfair cross-subsidy.

2 – For the purposes of the provision of the preceding paragraph, the NRA may specify the format and accounting methodology to be used.

3 – Operators shall make available to the NRA, upon request, their accounting records, including data on revenues received from third parties, in order that compliance with obligations of transparency and non-discrimination may be verified.

4 – The NRA may publish the information made available pursuant to the preceding paragraph, to the extent that is necessary to contribute to an open and competitive market, while respecting the commercial of confidentiality such information.

Article 72
Obligations of access to, and use of, specific network facilities

1 – The NRA may impose obligations on operators to respond to reasonable requests for access to and use of specific network components and associated facilities, particularly in situations where the denial of access or the setting of unreasonable conditions would hinder the emergence of a sustainable competitive market at the retail level or harm the interests of end-users.

2 – In exercising the competence provided for in the preceding paragraph, the NRA may, in particular, impose the following obligations on operators:

a) To give third parties access to specified network components and/or facilities, including unbundled access to the local loop;

b) Not to withdraw access to facilities where access has been already granted;

c) To interconnect networks or network facilities;

d) To provide co-location or other forms of facility sharing, including duct, building or mast sharing;

e) To provide specified services needed to ensure interoperability of end-to-end services to users, including facilities for intelligent network services or roaming on mobile networks;

f) To grant open access to technical interfaces, protocols or other key technologies that are indispensable for the interoperability of services or virtual network services;

g) To provide specified services on a wholesale basis for resale by third parties;

h) To provide access to operational support systems or similar software systems necessary to ensure fair competition in the provision of services;

i) To negotiate in good faith with undertakings requesting access.

3 – The NRA may attach conditions in respect of fairness, reasonableness and timeliness to the imposition of obligations provided for in the preceding paragraph.

4 – In considering whether or not to impose the obligations set forth in the preceding paragraphs, the NRA shall take special account of the following factors, particularly when assessing whether such obligations would be proportionate to the regulatory objectives set out in article 5:

a) The technical and economic viability of using or installing competing facilities, in the light of the rate of market development and taking into account the nature and type of interconnection and access involved;

b) The feasibility of providing the proposed access, in relation to the available capacity;

c) The initial investment by the facility owner, taking into account the risks involved in making such investment;

d) The need to safeguard competition over the long term;

e) Any relevant intellectual property rights, where appropriate;

f) The provision of pan-European services.

Article 73
Technical and operational conditions

1 – Where necessary and to ensure the normal functioning of the network, the NRA may, when imposing the obligations provided for in paragraphs 1 and 2 of the preceding article, impose technical or operational conditions on the provider and/or beneficiaries of access.

2 – The conditions imposed pursuant to the preceding paragraph shall be objective, transparent, proportionate and non-discriminatory, and where they refer to the application of technical rules or specifications, shall comply with rules on standardization, in accordance with the terms of article 29.

Article 74
Obligation of price control and cost accounting

1 – Where a market analysis indicates that, as a result of a lack of effective competition, the operator concerned might sustain prices at an excessively high level or apply a price squeeze to the detriment of end-users, the NRA may impose obligations in respect of cost recovery and price controls, including obligations for cost orientation of prices and obligations concerning cost accounting systems for the provision of specific types of access or interconnection.

2 – In imposing the obligations referred to in the preceding paragraph, the NRA shall:

a) Take into account the investment made by the operator and allow said operator a reasonable rate of return on the capital invested, taking the risks involved into account;

b) Ensure that any mandatory cost recovery mechanism or pricing methodology promotes efficiency and sustainable competition and maximises benefits for consumers; further account may also be taken of prices available in comparable competitive markets.

Article 75
Demonstration of cost orientation

1 – Operators subject to the obligation of cost orientation of prices shall demonstrate that charges are based on costs, including a reasonable rate of return on the investments made.

2 – The NRA may require an operator to provide full justification for its prices, and may, where appropriate, require such prices to be adjusted.

3 – The NRA may use cost accounting methods independent of those used by the undertaking, for the purpose of calculating the cost of efficient provision of services.

Article 76
Verification of the cost accounting system

1 –The NRA, or another independent body appointed by the NRA, shall, in order to ensure compliance, undertake an annual audit of the cost accounting system intended to allow the control of prices, and shall, in addition, issue and publish the respective statement.

2 – Operators upon whom the NRA imposes the obligation of implementing cost accounting systems shall make public the respective description, showing at least the main categories under which costs are grouped and the rules used for the allocation of costs.

SECTION III
Obligations applicable to all undertakings
 

Article 77
Imposition of access and interconnection obligations

1 – The NRA is charged with imposing obligations of access and interconnection on any undertaking, as far as such obligations may be necessary, regardless of whether or not it holds significant market power, under the following terms:

a) On undertakings that control access to end-users, in particular those that operate cable networks, including, in justified cases, the obligation to interconnect their networks;

b) To provide access to APIs (application program interfaces) and EPGs (electronic programme guides), on fair, reasonable and non-discriminatory terms, in order to ensure that digital radio and television broadcasting services as specified by the competent authorities under the law are accessible to end-users.

2 – When imposing the obligations provided for in the preceding paragraph, the NRA may establish technical or operational conditions pursuant to article 73.

3 – Obligations imposed in accordance with the preceding paragraphs shall be objective, transparent, proportionate and non-discriminatory.

Article 78
Provision of conditional access

1 – All operators of conditional access services which, irrespective of the means of transmission, provide access services to digital television and radio services, whereby broadcasters depend on such services in order to reach any group of potential viewers or listeners, shall:

a) Offer technical services to all broadcasters, on a fair, reasonable and non-discriminatory basis compatible with Community competition law, enabling the digitally-transmitted services of broadcasters to be received by viewers or listeners duly authorised by means of decoders administered by the service operators, and comply with Community competition law;

b) Keep separate financial accounts regarding their activity as conditional access providers.

2 – Having regard to the provision of point a) of the preceding paragraph, the conditions of provision, including prices, disclosed by broadcasters of digital television shall specify whether or not material related to conditional access is supplied.

3 – Operators referred to in paragraph 1 shall notify the NRA of the technical procedures adopted to ensure the interoperability of the different conditional access systems, within five days from the implementation thereof.

4 – For the purposes of the preceding paragraph the NRA is charged with publishing the reference to the applicable technical specifications, through a notice in Series III of the Diário da República and in a digital format on the Internet.

Article 79
Transfer of control

1 – Operators providing conditional access services shall adopt systems with suitable technical capability for a cost-effective transfer of control, to be agreed with the support network operators.

2 – The transfer referred to in the preceding paragraph shall allow the full control by network operators, at local or regional level, of services using such conditional access systems.

Article 80
Industrial property rights

1 – Without prejudice to applicable legislation, holders of industrial property rights in respect of conditional access products and systems are to ensure that licences to manufacturers of consumer equipment are granted on fair, reasonable and non-discriminatory terms.

2 – The granting of licences referred to in the preceding paragraph, which shall also take into account technical and commercial factors, shall not be subject to conditions prohibiting, deterring or discouraging the inclusion in the same product of:

a) A common interface allowing connection with other conditional access systems than that of the holder of the industrial property right;

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 81
Amendment or removal of conditional access obligations

1 – The NRA may carry out a market analysis under the terms set out in the present law, in order to decide whether or not to amend or remove the conditional access obligations provided for in articles 78 to 80.

2 – Where, as a result of the market analysis, the NRA finds that one or more operators do not have significant market power, it may determine the amendment or removal of the conditional access obligations with respect to those operators, provided that there is no adverse effect on:

a) Accessibility for end-users to radio and television broadcasts and to broadcasting channels and services specified in accordance with article 43;

b) The prospects for effective competition in the markets for retail digital television and radio broadcasting services and conditional access systems and other associated facilities.

3 – The NRA shall give an appropriate period of notice to parties affected by such amendment or removal of obligations.

4 – The provisions of this article are without prejudice to the possibility of imposing obligations in respect of the presentation of electronic programme guides and similar listing and navigation facilities, under the law.

CHAPTER IV
Control on retail markets
 

Article 82
Minimum set of leased lines

1 –The NRA shall impose obligations on undertakings with significant market power regarding the provision of the minimum set of leased lines, defined in article 29, as well as the conditions for such provision set out in the following article, with reference to the full minimum set or specific components thereof, in all or part of the national territory.

2 – The NRA is charged with:

a) Defining appropriate objectives for the established conditions of supply, where it considers that the achieved performance for the provision of the minimum set of leased lines does not meet the needs of users;

b) Authorising the amendment of conditions governing provision in a specific case, where, faced with a particular request, an undertaking has grounds for considering the provision of a leased line in the minimum set under its published tariffs and supply conditions to be unreasonable.

Article 83
Conditions for the provision of leased lines

1 – The provision of the minimum set of leased lines by undertakings identified as having significant market power shall follows the basic principles of non-discrimination, cost orientation and transparency.

2 – The principle of non-discrimination makes mandatory the application of similar conditions in similar circumstances to organisations providing similar services, and where applicable, the provision of leased lines to others under the same conditions and of the same quality as they provide to their own services, or to those of their subsidiaries or partners.

3 – For the purposes of the principle of cost-orientation, undertakings shall draw up and implement a suitable cost accounting system.

4 – The principle of transparency makes disclosure of the following information on the minimum set of leased lines mandatory:

a) Technical characteristics, including the physical and electrical characteristics as well as the detailed technical and performance specifications which apply at the network termination point;

b) Tariffs, including the initial connection charges, the periodic rental charges and other charges; where tariffs are differentiated, this must be indicated;

c) Supply conditions, including, in particular and obligatorily, information concerning the ordering procedure, the typical delivery period, the contractual period, the typical repair time, and refund procedure, where such exists.

5 – For the purposes of point c) of the preceding paragraph:

a) Typical delivery period means the period elapsing from the date when the user makes a firm request to lease a line until the time at which 95 % of all leased lines of the same type have been put through to the customers, which period shall be established on the basis of the actual delivery periods of leased lines during a recent period of reasonable duration, and which calculation may does not include cases where late delivery periods were requested by users;

b) Contractual period means the period which is in general laid down in the contract and the minimum contractual period which the user is obliged to accept;

c) Typical repair time means the period elapsing from the time when a failure message is relayed to the responsible unit within the undertaking up to the moment at which 80 % of all leased lines of the same type have been re-established and, where appropriate, at which users have been notified of their return to operation; where different classes of quality of repair are offered for the same type of leased lines, the different typical repair times shall be indicated.

6 – The NRA shall keep available, with a suitable level of detail, information on the cost accounting systems applied by undertakings and shall submit this information to the European Commission on request.

Article 84
Selection and pre-selection

1 – Undertakings declared as having significant market power for the provision of connection to and use of the public telephone network at a fixed location shall provide their subscribers with access to the services of any provider of publicly available telephone services with which said undertakings are interconnected:

a) On a call-by-call basis by dialling a selection code of the undertaking;

b) By means of pre-selection, with a facility to override any pre-selected choice on a call-by-call basis by dialling the selection code of the undertaking.

2 – The NRA shall assess and decide on user requirements for the inclusion of facilities provided for in the preceding paragraph on other networks or in other ways, in accordance with the market analysis procedure set out in article 59 and under the terms of article 72.

3 – The NRA shall ensure that pricing for access and interconnection related to the provision of the facilities in paragraph 1 complies with the principle of cost orientation and that direct charges to subscribers, if any, do not act as a disincentive for the use of these facilities.

4 – The NRA shall, following the general consultation procedure provided for in article 8, in determining the rules necessary for the performance of selection and pre-selection.

Article 85
Other controls

1 – The NRA shall impose appropriate regulatory obligations on undertakings identified as having significant market power in a given retail market, previously defined and analysed pursuant to the present law, where cumulatively:

a) It determines a lack of effective competition in that retail market;

b) It concludes that the imposition of obligations laid down in chapter III of the present title or in article 84 would not result in the achievement of the regulatory objectives set out in article 5.

2 – The regulatory obligations imposed under the preceding paragraph shall be based on the nature of the problem identified and be proportionate and justified in respect of the objectives laid set out article 5, and may require in particular that the identified undertakings:

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 reference to prices practised by such undertakings and in order to protect end-user interests while at the same time promoting effective competition, the NRA may apply appropriate price cap measures, measures to control individual tariffs, or measures to orient tariffs towards costs or prices in comparable markets.

4 – Without prejudice to articles 93 and 94, the NRA shall not apply retail control mechanisms under this article to geographical or user markets where it is satisfied that there is effective competition.

5 – Undertakings subject to price regulation pursuant to this article or subject to other relevant retail controls shall implement analytical accounting systems which are appropriate for the application of the imposed measures.

6 – The NRA, or an independent body which it has appointed, shall undertake an annual audit of the cost accounting system supporting price controls, in order to verify the compliance thereof, and shall issue and publish the respective statement.

7 – The NRA shall, upon request, submit information to the European Commission in respect of the retail controls applied and, where appropriate, in respect of the cost accounting systems employed.

TITLE V
Universal service and additional mandatory services
 

CHAPTER I
Universal Service
 

SECTION I
Scope of the universal service
 

Article 86
Concept

1 – The universal service consists of a minimum set of services, as defined in the present law, of specified quality which is available to all users regardless of their geographical location and at an affordable price.

2 – The scope of the universal service shall evolve in line with advances in technology, market developments and changes in user demand, which scope shall be modified where justified by such evolution.

3 – It is incumbent upon the Government or the NRA, in the pursuit of their respective assignments:

a) To determine the most efficient and appropriate solutions for ensuring the implementation of the universal service, whilst respecting the principles of objectivity, transparency, non-discrimination and proportionality;

b) To minimise market distortions, in particular the provision of services made at prices or under other terms and conditions which depart from normal commercial conditions, whilst safeguarding the public interest.

Article 87
Scope of the universal service

1 – The provision of a minimum set of services made available in the scope of the universal service shall include:

a) Connection at a fixed location to the public telephone network and access to publicly available telephone services at a fixed location;

b) Provision of a comprehensive directory and of a comprehensive telephone directory enquiry service;
c) Adequate provision of public pay telephones.

Article 88
Network connection and access to telephone services at a fixed location

1 – The providers of the universal service shall meet all reasonable requests for connection to the public telephone network at a fixed location and for access to publicly available telephone services at a fixed location.

2 – The connection and access referred to in the preceding paragraph shall allow end-users to make and receive local, national and international telephone calls, facsimile communications and data communications, at data rates that are sufficient to permit functional Internet access, taking into account prevailing technologies used by the majority of subscribers and technological feasibility.

Article 89
Directory and enquiry services

1 – The following universal service obligations shall be comprised in the scope of directory and enquiry services:

a) To draw up, publish and make available to end-users a comprehensive directory, which shall be printed and/or electronic and which comprises all subscribers of publicly available telephone services, without prejudice to provisions on protection of personal data and privacy;

b) To update and make available every year the directory referred to in the preceding point;

c) To provide end-users with an enquiry service, through a short number, involving the disclosure of data in the directory referred to in point a);

d) To apply the principle of non-discrimination to the treatment and presentation of information that has been provided, including information submitted by other undertakings.

2 – For the purpose of the preceding paragraph, undertakings providing publicly available telephone services shall agree with the providers of the universal service on the format and conditions for the provision of relevant information on the respective subscribers, on terms which are fair, objective, cost oriented and non-discriminatory.

3 – In the absence of an agreement and in the event of non-compliance with the terms agreed or with the obligation established in the preceding paragraph, the NRA may demand that undertakings providing publicly available telephones services submit the information referred to in the preceding paragraph, determining, where necessary, the format and conditions for the provision thereof, in order to render it available to the providers of the universal service, aiming at complying with the obligations laid down in points a) and c) of paragraph 1.

4 – The NRA is hereby empowered to create and manage, directly or through an appointed independent body, a database comprising the information received pursuant to the preceding paragraph, approving for this purpose the respective functioning conditions, following the prior opinion of the NCDP.

5 – The NRA shall approve and disclose the form of directories referred to in the present article and the conditions by which such directories are to be made available to end-users.

Article 90
Public pay telephones

1 – The NRA shall define, following consultation under the terms of article 8, the obligations applicable to the providers of universal service in respect of the provision of public pay telephones, in order to ensure that the reasonable needs of populations, including users with disabilities, are met.

2 – The obligations defined by the NRA shall take into account the possible availability of facilities or comparable services and take account of the needs of end-users in terms of geographical dispersion, population density and quality of services, including in particular the determination of different means of payment.

3 - Public pay telephones of universal service providers shall allow:

a) Access, without charge, to the various emergency systems, using the single European emergency number “112” and other emergency and assistance numbers defined in the National Numbering Plan, without the need to use coins, cards or any other means of payment;

b) Access to the comprehensive directory enquiry services under the terms defined in point c) of paragraph 1 of article 89.

4 – Pre-payment telephone cards for access to publicly available telephone services by means of public pay telephones operated by universal service providers shall be of one type only, so that the use thereof shall be viable on any public pay telephone operated by such providers.

5 – Universal service providers shall comply with the technical rules of access to urban buildings, in accordance with the specific legislation, in order to ensure that end-users with disabilities have access to the service.

Article 91
Specific measures for disabled users

1 – Universal service providers shall make available specific provisions in order to ensure that end-users with disabilities enjoy access that is equivalent to that enjoyed by other end-users, to publicly available telephone services, including access to emergency services, directory enquiry services and directories.

2 – The specific provisions may, in particular, consist of:

a) The provision of telephones and/or public text telephones or equivalent measures for people who are deaf or who have speech-impairment ;

b) The provision of services such as directory enquiry services or equivalent measures free of charge for blind or visually impaired people;

c) The provision of itemised bills in alternative formats upon the request of a blind or visually impaired person.

3 – It is incumbent upon the NRA, following the general consultation procedure laid down in article 8, to define the terms and conditions by which such provisions are to be made available.

4 – The NRA may take specific measures to ensure that end-users with disabilities may also benefit from the choice of service providers which is available to the majority of end-users.

Article 92
Quality of service

1 – Universal service providers shall make available to end-users as well as to the NRA, appropriate and up-to-date information on their performance in the provision of the universal service, based on quality service parameters, definitions and measurement methods established in the annex.

2 – The NRA may specify, in particular, additional rules in respect of quality of service in order to assess the performance of universal service providers as regards the provision of services to end-users and consumers with disabilities, where relevant parameters have been defined.

3 – Information on the performance of the universal service providers as regards the parameters referred to in the preceding paragraph shall be made available to end-users and likewise to the NRA.

4 – The NRA may further specify the content, form and manner in respect of which the information referred to in the preceding paragraphs shall be provided, in order to ensure that end-users and consumers have access to clear, comprehensive and comparable information.

5 – Without prejudice to the provision of the preceding paragraphs, the NRA, following the general consultation procedure laid down in article 8, may set performance objectives applicable to the different obligations of the universal service.

6 – The NRA may order independent audits or mechanisms by which the performance of the universal service providers may be verified, which shall be at the expense of such providers and which shall have the aim of ensuring the accuracy and comparability of the data made available by providers.

SECTION II
Prices
 

Article 93
Price regime

1 – The NRA shall take all necessary steps to ensure that affordability of access to universal service is guaranteed, having regard in particular to national consumer prices and national income.

2 – For the purposes of the preceding paragraph, the NRA shall assess and decide on the most suitable means by which affordable access may be guaranteed, whereby it may determine:

a) The availability of tariff options or packages which are different from those provided under normal commercial conditions, in particular to ensure that consumers on low incomes or with special social needs are not prevented from accessing or using the publicly available telephone service;

b) The imposition of price caps and the application of common tariffs, including geographical averaging of prices, throughout the territory;

c) Other similar schemes.

3 – Where any of the measures referred to in the preceding paragraph have been imposed, the NRA shall ensure that the implemented conditions are fully transparent and are published and that such conditions are applied in accordance with the principle of non-discrimination.

4 – The NRA may require that specific conditions practised by universal service providers be modified or withdrawn at any time.

5 – Without prejudice to the provisions of the preceding paragraphs, other measures may be implemented, as an alternative or cumulatively, in order to support consumers identified as having low incomes or special social needs.

Article 94
Control of expenditure

1 – In order to allow subscribers to verify and control the charges incurred in using the public telephone network at a fixed location and related publicly available telephone services, the universal service providers shall make available the following minimum set of facilities and mechanisms:

a) Itemised billing;

b) Selective and free of charge barring of outgoing calls of defined types or to defined types of numbers, upon the request of the subscriber, without prejudice to the provision of article 45;

c) Pre-payment systems for access to the public telephone network and use of publicly available telephone services;

d) Phased payment of fees for the connection to the public telephone network;

e) Measures applicable to the non-payment of telephone bills, pursuant to article 52.

2 – For the purposes of point a) of the preceding paragraph, the following minimum level of detail shall be ensured, without charge and without prejudice to legislation applicable in matters of protection of personal data and privacy:

a) Initial price of the connection to the telephone service, where applicable;

b) Subscription price, where applicable;

c) Price of use, identifying the different traffic categories, indicating each call and the respective charge;

d) Periodical equipment rental prices, where applicable;

e) Price for the installation of additional material and equipment requested subsequent to the commencement of service provision;

f) Subscriber’s debts;

g) Compensation resulting from reimbursement.

3 – Universal service providers may offer, at the request of the subscriber, additional levels of detail, at reasonable tariffs or at no charge, and shall not include calls that are free of charge to the calling subscriber, including calls to helplines.

4 – For the purposes of point b) of article 1, the NRA, having heard the universal service providers, shall define the types of calls which are may be barred.

5 – The NRA shall waive the application of paragraph 1 where it is satisfied that the interests protected through the availability of facilities and mechanisms provided therein are duly safeguarded.

6 – Where universal service providers offer facilities and services additional to those referred to in article 87 or in point a) of paragraph 2 of article 93, they shall establish terms and conditions whereby the subscriber is not obliged to pay for facilities or services which are not necessary for the service requested.

SECTION III
Financing of the universal service
 

Article 95
Compensation for net cost burden

1 – Where the NRA considers that the provision of universal service may represent an unfair burden on the respective providers, it shall 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 obligation, taking into account any market benefit which accrues to the providers;

b) Making use of the net costs of providing universal service identified by a designation mechanism in accordance with the provisions of the present law.

2 – The NRA shall define the concept of “unfair burden”, as well as the terms governing its determination, namely the periodicity of assessments and criteria to be employed.

Article 96
Calculation of the net cost

1 – Where the calculation of the net cost is to be undertaken, pursuant to point a) of the preceding article, the following assumptions shall apply:

a) All means to ensure appropriate incentives, so that providers comply with universal service obligations in a cost efficient manner shall be considered;

b) The cost of universal service obligations is to be calculated as the difference between the net cost, for an organization, of operating with the universal service obligations and of operating without the universal service obligations, whether the network is fully developed or is still undergoing development and expansion. Due attention is to be given to correctly assessing the costs that providers would have chosen to avoid had there been no universal service obligation;

c) The calculation of net cost should take into account the benefits, including intangible benefits, obtained by the universal service operators;

d) The calculation of the net cost of specific aspects of universal service obligations is to be made separately and so as to avoid the duplication of any direct or indirect benefits and costs;

e) The net cost of universal service obligations is to be calculated as the sum of the net costs arising from the specific components of universal service obligations.

2 – The calculation is to be based upon the costs attributable to:

a) Components of the identified services which are unavoidably provided at a loss or provided according to conditions of cost which fall outside normal commercial standards, which components may include access to emergency telephone services, provision of certain public pay telephones or the provision of certain services or equipment for people with disabilities;

b) Specific end-users or groups of end-users which can only be served at a loss or according to conditions of cost which fall outside normal commercial standards, as a result of the cost of providing the specified network and service, the revenue generated and any geographical averaging of prices imposed by the NRA.

3 – For the purpose of the provision of point b), this category is deemed to include end-users or groups of end-users which would not be served by a commercial operator which did not have an obligation to provide universal service.

4 – The universal service providers shall make available all accounts and other relevant information in order to provide a basis for the calculation referred to in the present article, which accounts and information shall be audited by the NRA or a body independent of the interested parties and subsequently approved by the NRA.

5 – The NRA shall make publicly available the results of the cost calculation and the conclusions of the audit referred to in the present article.

Article 97
Financing

1 – Where the NRA verifies that the universal service has net costs and finds such costs to be unfair, it is incumbent upon the Government, upon request of the respective providers, to provide appropriate compensation by means of one or both of the following mechanisms:

a) Compensation from public funds;

b) Sharing the net cost with other undertakings providing publicly available electronic communications networks and services on national territory.

2 – Where the mechanism provided for in point b) of the preceding paragraph is applied, a compensation fund shall be established, to which fund undertakings providing publicly available electronic communications networks and services shall make contributions. Said fund shall be administered by the NRA or an independent body appointed by the Government and under the supervision of the NRA.

3 – The criteria for sharing the universal service net cost between such undertakings as are obliged to contribute shall be defined by the Government, in accordance with the principles of transparency, minimal market distortion, non-discrimination and proportionality.

4 – For the purposes of the preceding paragraph, the entity managing the fund shall:

a) Collect the respective contributions, using a transparent and neutral means for collection in order that the double imposition of contributions may be avoided;

b) Oversee the transfer of sums and payments due to universal service providers;

c) Disaggregate and separately identify for each undertaking the charges related to the sharing of the cost of universal service obligations.

5 – The Government may choose not to require contributions for the compensation fund from undertakings whose national turnover does not exceed a set limit, which limit is to be established.

6 – The NRA shall ensure that the criteria for cost sharing and the constitutive elements of the mechanism employed are publicly available.

Article 98
Report

Without prejudice to confidential matters, where the universal service presents net costs, the NRA shall draw up and publish an annual report setting out the calculated cost of universal service obligations, indicating the contributions made to the compensation fund by all the undertakings involved, and identifying any market benefits which may have accrued to the universal service providers, in the event that a compensation fund has been establish and is in effective operation.

SECTION IV
Designation of universal service providers
 

Article 99
Universal service providers

1 – The universal service may be provided by more than one undertaking, differentiated by the provisions included or by geographical area, without prejudice to provision throughout national territory.

2 – The process for designating providers shall be efficient, objective, transparent and non-discriminatory, ensuring that no undertaking is excluded a priori from being designated.

3 – It is incumbent upon the Government, by resolution of the Council of Ministers, to designate the undertaking or undertakings responsible for the provision of the universal service following a tender, the regulation of which shall be approved by administrative regulation of the members of the Government with responsibility for areas of finance and electronic communications.

4 – The terms of said tender shall ensure that the universal service is provided in a cost-effective manner, and may be used as a means of determining the net cost of the universal service obligation in accordance with point b) of article 95.

5 – The terms of the tender shall also set out provisions for the maintenance of obligations, in the event of demerger, merger or assignment of the provider’s contractual position.

CHAPTER II
Additional mandatory services
 

Article 100
Additional mandatory services

The Government may decide to make additional services, apart from services within the universal service obligations, publicly available, which services shall not be compensated by means of the respective cost sharing mechanism by undertakings providing electronic communications networks and services.

TITLE VI
Digital television and conditional access
 

Article 101
Wide-screen television service

Undertakings which establish public electronic communications networks for the distribution of digital television services shall ensure that such networks are capable of distributing wide-screen television services and programmes, while network operators which receive and redistribute wide-screen television services or programmes shall maintain the same format.

Article 102
Interoperability of digital interactive television services

1 – In order to promote the free flow of information, media pluralism and cultural diversity:

a) Providers of digital interactive television services for distribution to the public on digital interactive television platforms, regardless of the transmission mode, shall favour the use of an open API;

b) Providers of all enhanced digital television equipment deployed for the reception of digital interactive television services on interactive digital television platforms shall encourage compliance with an open API in accordance with the minimum requirements of the relevant standards or specifications.

2 – For the purposes of the preceding paragraph, entities shall comply with rules of standardization according to the provisions of article 29 and notify the NRA of the technical solutions adopted.

3 – Without prejudice to the imposition of compulsory access pursuant to point b) of paragraph 1 of article 77, the proprietors of APIs shall cooperate with providers of digital interactive television services, in order to make available on fair, reasonable and non-discriminatory terms, and against appropriate remuneration, all such information as is necessary to enable the latter to provide the respective services supported by the API in a fully functional form.

Article 103
Interoperability of consumer digital television equipment

1 – The consumer equipment intended for the reception of digital television signals, capable of descrambling such signals, for sale or rent or otherwise made available, shall possess the capability:

a) To allow the descrambling of such signals according to the common European scrambling algorithm as administered by a recognised European standards organisation;

b) To display signals that have been transmitted in clear provided that, in the event that such equipment is rented, the rentee is in compliance with the relevant rental agreement.

2 – Analogue television sets with an integral screen of visible diagonal greater than 42 cm which are put on the market for sale or rent are to be fitted with at least one open interface socket, as standardised by a recognised European standards organisation, permitting simple connection of peripherals, especially additional decoders and digital receivers.

3 – Digital television sets with an integral screen of visible diagonal greater than 30 cm which are put on the market for sale or rent are to be fitted with at least one open interface socket permitting simple connection of peripherals, and shall be able to pass all the components of a digital television signal, including the audio and video streams, information relating to interactive and conditionally accessed services and application program interface information as well as copy protection information.

4 – The open interface socket referred to in the preceding paragraph shall either be standardised or conform to a standard adopted by a recognised European standards organisation, or alternatively conform to a specification used by the industry.

5 – It is incumbent upon the NRA to publish, through notice in Series III of the Diário da República, references to the rules mentioned in paragraphs 2 and 4.

Article 104
Illicit devices

1 – The following activities are hereby 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 illicit devices;

c) The use of commercial communications to promote illicit devices.

2 – For the purposes of the preceding paragraph:

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 that is supplied for remuneration and on the basis of conditional access, or where the provision of conditional access to the referred services is considered as a service in its own right.

3 – The actions set out in point a) of paragraph 1 are crimes punishable with up to three years imprisonment or, where a more serious penalty is not applicable, with a penalty fine.

4 – The attempt shall be punishable.

5 – Criminal proceedings depend upon a complaint.

TITLE VII
Fees, supervision and monitoring
 

CHAPTER I
Fees
 

Article 105
Fees

1 – Fees may be imposed on:

a) Declarations supporting rights issued by the NRA pursuant to paragraph 5 of article 21;

b) The exercise of the activity of electronic communications networks and services provider, on an annual basis;

c) The assignment of frequency usage rights;

d) The assignment of rights of use for numbers and the reservation thereof;

e) The use of numbers;

f) The use of frequencies.

2 – The amounts of fees referred to in points a) to e) of the preceding paragraph shall be established by order of the member of the Government responsible for the area of electronic communications and shall constitute revenue for the NRA.

3 – The use of frequencies, whether or not comprising a right of use, is subject to the fees set out in Decree-Law no 151-A/2000 of 20 July.

4 – The amounts of fees referred to in points a) to d) of paragraph 1 shall be determined with regard to the administrative costs incurred in the management, control and enforcement of the general authorisation scheme and of rights of use and of specific obligations as referred to in article 28, which may include costs for international cooperation, harmonisation and standardisation, market analysis, monitoring of compliance and other market control, as well as regulatory work involving the preparation and enforcement of secondary legislation and administrative decisions, such as decisions on access and interconnection; such fees shall be imposed upon undertakings in an objective, transparent and proportionate manner which minimises additional administrative costs and associated charges.

5 – The NRA shall publish an annual report of its administrative costs and of the total sum resulting from the collection of charges referred to in points a) to d) of paragraph 1, in order to perform the appropriate adjustments in respect of the difference between the total sum of the charges and the administrative costs.

6 – The fees referred to in points e) and f) of paragraph 1 shall reflect the need to ensure the optimal use of frequencies and numbers , shall be objectively justified, transparent, non-discriminatory and proportionate in relation to their intended purpose and shall take the regulatory objectives set forth in article 5 into account.

Article 106
Fees for rights of way

1 – The fees for rights of way shall reflect the need to ensure the optimal use of resources and shall be objectively justified, transparent, non-discriminatory and proportionate in relation to their intended purpose taking into account the regulatory objectives set forth in article 5.

2 – The rights and charges as regards the implanting, crossing or passing over of systems, equipments and further resources of undertakings providing publicly available electronic communications networks and services, at a fixed location, of a public or private municipal domain, may give rise to the establishment of a municipal fee for rights of way (MFRW), which shall comply with the following principles:

a) The MFRW shall be determined on the basis of the application of a percentage on each bill issued by undertakings providing publicly available electronic communications networks and services, at a fixed location, to all final clients of the corresponding municipality;

b) The percentage mentioned in the preceding paragraph shall be approved annually by each municipality prior to the end of December of the year preceding that of its enforcement, and shall not exceed 0.25%.

3 – In municipalities where the MFRW is collected, undertakings providing publicly available electronic communications networks and services, at a fixed location, shall explicitly include the amount due in the bills of end-clients of publicly available electronic communications at fixed locations.

4 – The State and the Autonomous Regions shall not collect fees or other charges from undertakings providing publicly available electronic communications networks and services for the implanting, crossing or passing over of systems, equipments and further physical resources necessary to their activity, at the surface or underground of the private or public domain of the State and of the Autonomous Regions.

CHAPTER II
Supervision and monitoring
 

Article 107
Out-of-court dispute resolution

1 – Without prejudice to the resort to courts and to entities responsible for the protection and promotion of consumer rights, namely the Consumer Institute, end-users may submit disputes with undertakings providing electronic communications networks and services to the legally constituted arbitration and mediation mechanisms.

2 – It is incumbent upon the NRA to encourage the development of mechanisms for out-of-court resolution of disputes which may arise between undertakings providing electronic communications networks and services and end-users.

3 – For the purposes of the preceding paragraph, the NRA may cooperate in the creation of the referred mechanisms or establish agreements with entities which have previously carried out the implementation of such mechanisms, and in particular set out a system whereby the NRA, within the scope of its supervision and monitoring powers, receives regular reports in respect of consumer complaints submitted to such mechanisms.

Article 108
Provision of information

1 – Entities subject to obligations pursuant to the present law shall submit to the NRA all information, including financial information, in respect of their activity, in order that the NRA may pursue all assignments provided for in the law.

2 – For the purposes of the preceding paragraph, entities shall identity, in a substantiated manner, the information deemed confidential and shall attach, where appropriate, a non-confidential copy of documents comprising such information.

3 – The requests for information made by the NRA shall comply with the principles of proportionality, shall be appropriate to their intended aims and shall be duly substantiated.

4 – The requested information shall be submitted within the time limits, and in the form and to the level of detail required by the NRA, which may establish the situations and periodicity governing the submission of such information.

5 – In the event that the NRA provides the European Commission, at its request, with information obtained pursuant to the preceding paragraphs, the NRA shall inform the undertakings concerned of such provision, and it may submit an explicit and substantiated request to the European Commission not to make the information provided available to other regulatory authorities.

6 – The information submitted the NRA pursuant to this article may be made available to the regulatory authorities of other Member States, as a result of a substantiated request, where necessary to allow the concerned authorities to fulfil their respective responsibilities under Community law.

7 – Without prejudice to the provision of the final part of paragraph 4, the European Commission and the national regulatory authorities of other Member States shall ensure the confidentiality of information submitted by the NRA where such information has been identified as such in accordance with applicable legislation.

Article 109
Purposes of the information request

1 – The NRA may request information in particular for the following purposes:

a) Procedure and assessment of applications for the assignment of rights of use;

b) Market analysis;

c) Verification, on a case-by-case basis, of compliance with the conditions established in articles 27, 32 and 34, whether following a complaint or upon its own initiative;

d) Systematic or case-by-case verification of compliance with the conditions established in articles 28, 97 and 105;

e) Publication of comparable reports on quality and pricing of services for the benefit of consumers;

f) Clearly defined statistical purposes.

2 – The information referred to in points b) to f) of the preceding paragraph shall not be requested prior to or as a condition of the exercise of the activity.

Article 110
Non-compliance

1 – Without prejudice to other applicable sanctionary measures, where the NRA verifies that an undertaking does not comply with one or more of the conditions established in articles 27, 28, 32 and 34, it shall notify the undertaking of such findings and give the undertaking an opportunity to state its views or remedy any breaches within a period of one month following notification.

2 – The NRA may set a longer or shorter period, in the latter case upon the agreement of the undertaking or in the event of repeated breaches.

3 – If the undertaking concerned does not remedy the breaches within the period referred to in the preceding paragraphs, the NRA shall take appropriate and proportionate measures aimed at ensuring compliance with the conditions referred to in paragraph 1 of the present article.

4 – The imposed measures and the grounds therefor shall be communicated by the NRA to the undertaking concerned within 5 days of their approval, and a reasonable period shall be stipulated for the undertaking to comply with the measure.

5 – In cases of serious and repeated breaches of the conditions referred to in articles 27, 28, 32 and 34 and in the event that the NRA deems that, in a particular case, the procedures set forth in paragraphs 1 and 3 are not appropriate for remedying the situation or in the event that the measures referred to in paragraph 3 and 4 are not complied with, the NRA may determine the suspension of the activity or the suspension, up to a maximum period of two years, full revocation or partial revocation of the respective usage rights.

Article 111
Interim measures

1 – Where the NRA has evidence of any breach of the conditions referred to in articles 27, 28, 32 and 34 which represents an immediate and serious threat to public order, public security or public health or which may create serious economic or operational problems for other providers or users of electronic communications networks or services, it may take urgent interim measures to remedy the situation in advance of reaching a final decision, setting the period during which the measures shall be in force.

2 – In the cases provided for in the preceding paragraph, the NRA shall thereafter give the undertaking concerned an opportunity to state its view and to propose any remedies.

3 – The provisions of the preceding paragraphs are without prejudice to the regime of interim measures set out in the Code of Administrative Procedure.

Article 112
Monitoring

The NRA is charged with monitoring compliance with the provisions of this law and respective regulations, through its monitoring agents or representatives duly qualified by the Board of Directors, without prejudice to the competences conferred upon other entities, including the Inspectorate General of Economic Activities (IGEA), the Directorate General of Customs (DGC), the National Commission for Data Protection (NCDP), the Consumer Institute and competent authorities in competition matters.

Article 113
Breaches and fines

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

a) Non-compliance with the decision of the NRA taken in the course of the dispute resolution, in violation of paragraph 1 of article 10 and paragraph 2 of article 12;

b) Failure to cooperate with the NRA, in violation of paragraph 5 of article 10;

c) Non-compliance with obligations laid down in paragraphs 1, 2 and 6 of article 21;

d) Violation of the terms of article 23;

e) Non-compliance with the obligation to notify agreements, set out in paragraph 1 of article 25;

f) Non-compliance with the sharing determination referred to in paragraph 2, as well as failure to comply with obligations laid down in paragraphs 3 and 4, all of article 25;

g) Non-compliance with obligations provided for in paragraphs 1, 3 and 4 of article 26;

h) Non-compliance with any of the conditions set forth in paragraphs 1 and 2 of article 27, except for the provisions of point r) of paragraph 1 of the same article;

i) Non-compliance with any of the specific obligations provided for in article 28;

j) Non-compliance with mandatory rules and specifications, in violation of paragraphs 1 and 5 of article 29;

l) The use of frequencies without having obtained the respective right of use, where required, or non compliance with any of its terms, in violation of paragraph 1 of article 30;

m) Non-compliance with any of the conditions defined pursuant to paragraphs 1 and 2 of article 32, except for that in point f) of paragraph 1 of the same article;

n) The use of numbers without having obtained the respective right of use, or non compliance with any of its terms, in violation of paragraph 1 of article 33;

o) Non-compliance with any of the conditions set out in paragraphs 1 and 2 of article 34, except for that in point f) of paragraph 1 of the same article;

p) The transfer of rights of use for frequencies without notification, in violation of paragraph 2 of article 37, as well as the transfer of such rights in violation of paragraph 4 of the same article;

q) The transfer of rights of use for numbers, in violation of the terms and conditions defined by the NRA, provided for in article 38;

r) The violation of rights of users and subscribers, in breach of paragraphs 1 and 2 of article 39;

s) Non-compliance with the obligation set out in paragraph 3 of article 39;

t) The use of accession contracts without prior approval, in violation of paragraph 4 of article 39;

u) The violation of the obligation defined pursuant to paragraphs 1 and 2 of article 40;

v) Non-compliance with the obligations provided for in paragraphs 1 and 3 of article 41;

x) Non-compliance with measures provided for in paragraphs 1 and 3 of article 42;

z) Non-compliance with the “must carry” obligations provided for in paragraph 1 and in the terms of paragraph 3 of article 43;

aa) Non-compliance with the barring obligation, in violation of paragraph 1 of article 45;

bb) Refusal to enter into a contract, in violation of paragraph 5 or 6 of article 46;

cc) Non-compliance with conditions provided for in paragraphs 3 or 4 of article 46;

dd) Non-compliance with information obligation provided for in paragraphs 1, 2 and 3 of article 47;

ee) Non-compliance with obligations laid down in paragraphs 1, 2 and 3 of article 48;

ff) Non-compliance with obligations laid down in paragraphs 1, 2 and 3 of article 49;

gg) The violation of the obligation provide for in paragraph 4 of article 50;

hh) The violation of rights of users referred to in paragraph 1 and the violation of the obligation provided for in paragraph 2 of article 51;

ii) The suspension or termination of services in violation of paragraphs 1, 2, 3 and 4 of article 52;

jj) Non-compliance with the obligation provided for in paragraph 1 of article 53;

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

mm) Non-compliance with obligations in the terms provided for in paragraph 3 of article 63;

nn) Non-compliance with obligations provided for in paragraphs 1 and 2 of article 64;

oo) Violation of confidentiality obligations provided for in paragraphs 1 and 2 of article 65;

pp) Non-compliance with any of the obligations provided for in paragraphs 1, 3 and 4 of article 66;

qq) Non-compliance with the conditions imposed pursuant to paragraph 1 of article 73;

rr) Opposition to the pursuance of the audit, in violation of paragraph 1 of article 76;

ss) Violation of obligations imposed under paragraphs 1 and 2 of article 77;

tt) Non-compliance with obligations provided for in paragraphs 1, 2 and 3 of article 78;

uu) Non-compliance with the obligation provided for in paragraph 1 of article 79;

vv) Non-compliance with the conditions provided for in paragraphs 1 and 2 of article 80;

xx) Non-compliance with obligations imposed under paragraph 4 of article 81;

zz) Violation of obligations imposed pursuant to paragraph 1 and point a) of paragraph 2, as well as the amendment of provision conditions in violation of point b) of paragraph 2, all of article 82;

aaa) Disrespect of principles provided for in paragraph 1, in violation of any of the terms set out in paragraphs 2 to 5 of article 83;

bbb) Non-compliance with obligations provided for in paragraphs 1, 3 and 4 of article 84;

ccc) Non-compliance with obligations provided for in paragraphs 1, 3 and 5 of article 85;

ddd) Opposition to the pursuance of the audit, in violation of paragraph 6 of article 85;

eee) Violation of obligations provided for in paragraphs 1 and 2 of article 88;

fff) Violation of obligations and conditions provided for in paragraphs 1 to 3 and pursuant to paragraph 5 of article 89;

ggg) Non-compliance with obligations provided for in paragraphs 1, 3 and 4 of article 90;

hhh) Non-compliance with obligations provided for in paragraphs 1, 3 and 4 of article 91;

iii) Non-compliance with obligations provided for in paragraphs 1 to 5 of article 92;

jjj) Opposition to the pursuance of the audit, in violation of paragraph 6 of article 92;

lll) Non-compliance with the determinations provided for in paragraphs 2 and 4 and obligations provided in paragraph 3 of article 93;

mmm) Non-compliance with obligations provided for in paragraphs 1 to 6 of article 94;

nnn) Non-compliance with the contribution obligation in violation of paragraph 2 of article 97;

ooo) Violation of obligations provided for in article 101;

ppp) Non-compliance with obligations provided for in paragraphs 1, 2 and 3 of article 102;

qqq) Violation of obligations provided for in paragraphs 1 to 4 of article 103;

rrr) Pursue of activities provided for in points b) and c) of paragraph 1 of article 104;

sss) Violation of obligations to provide information pursuant to paragraphs 1 and 3 of article 108;

ttt) Disrespect for decisions ordering interim measures on the terms of paragraph 1 of article 111;

uuu) Non-compliance with the obligation provided for in paragraph 2 of article 121;

vvv) Non-compliance with legitimate orders or commands of the NRA regularly notified to its addressees.

2 – The breaches provided for in this law are punishable with a fine from € 500 to € 3740 and from € 5000 to € 5000000, whether they respect natural or legal persons, respectively.

3 – Where the breach results from failure to comply with a legal duty or an order of the NRA, the application of sanctions or the compliance therewith does not exempt the offender from complying with the duty or order, where such compliance remains possible.

4 – In the cases referred to in the preceding paragraph, the NRA may subject the offender to the injunction of complying with the duty or order in consideration, and in the event that the offender fails to comply with said injunction within the set time limit, the NRA may determine the application of a compulsory penalty payment under the terms of article 116.

5 – An attempt and negligence regarding breaches provided for in this law shall be punishable.

Article 114
Additional sanctions

In addition to the fines set out in the preceding article, the following additional sanctions may also be applied, where such is justified by the seriousness of the infringement and the culpability of the offender:

a) Loss in favour of the State of objects, equipment and illicit devices, in the event of breaches provided for in points qqq) and rrr) of paragraph 1 of the preceding article;

b) Prohibition from the exercise of the respective activity for up to two years, for breaches provided for in points a), h), l), n), p), x) and z) of paragraph 1 of the preceding article;

c) Forfeiture of the right to participate in tenders or auctions promoted under the scope of the present law for up to two years, for breaches provided for in points l), p), x) and z) of the preceding article.

Article 115
Procedure and application

1 – The application of fines and additional sanctions provided for in the present law, as well as the decisions not to initiate breach proceedings, are incumbent upon the Board of Directors of the NRA.

2 – The Board of Directors of the NRA shall initiate breach proceedings, the examination thereof being incumbent upon the respective services.

3 – The assignments provided for in the preceding paragraphs may be delegated.

4 – The amount of the fines shall revert to the State at 60% and to the NRA at 40%.

5 – The objects declared lost in favour of the State pursuant to point a) of article 114 shall revert to the NRA.

6 –The provision of the preceding paragraphs does not apply to non-compliance with the conditions of paragraphs 3 and 4 of article 46, where the initiation and examination of the respective breach proceedings shall be incumbent upon the NCDP, as shall be the application of the respective fines, the amount of which reverts to that entity at 40%.

Article 116
Compulsory penalty payments

1 – Without prejudice to other applicable sanctions, in case of non-compliance with decisions of the NRA that impose administrative sanctions or that order, in the exercise of legally assigned powers, the adoption of certain behaviours or measures by undertakings providing electronic communications networks and services, the NRA may impose, where justified, a compulsory penalty payment, namely in cases set forth in points a), e), f), g), p), v), x), z), gg), mm), pp), rr), ss), tt), zz), aaa), ccc), fff), hhh), lll), nnn), sss), ttt) and vvv) of paragraph 1 of article 113.

2 – The compulsory penalty payment shall consist of the imposition on the undertaking providing electronic communications networks and services of the payment of a pecuniary amount for each day of non-compliance beyond the deadline set for such compliance.

3 – The sanction referred to in the preceding paragraphs shall be determined according to criteria of reasonability and proportionality, having regard to the turnover of the offender in the preceding civil year, and with regard to the negative impact of the non-compliance on the market and on users, the daily amount of which sanction shall range from € 10000 to €100000.

4 – The amounts established pursuant to the preceding paragraph may vary for each day of non-compliance, in an increasing trend, and shall not exceed the maximum amount of € 3000000 or the maximum period of 30 days.

5 – The amount of the applied sanction shall revert to the State at 60% and to the NRA at 40%.

6 – Entities concerned shall be entitled to appeal against measures of the NRA pursued under this article to the commerce courts, pursuant to paragraphs 2 and 3 of article 13.

Article 117
Notifications

In the course of breach proceedings, where the notified person is not found or refuses to receive the notification performed under general terms, such notification shall be performed though the publication of an advertisements in two consecutive issues of one of the newspaper with a high print-run in the location where the notified person was last resident or with the highest print-run throughout national territory.

Article 118
Official report

1 – The official reports prepared within the scope of monitoring actions, on the basis of the compliance with the provisions of this law, shall be relied on as regards facts witnessed by the authors of the reports, except where there is convincing evidence to the contrary.

2 – The provision of the preceding paragraph applies to evidence obtained through devices or instruments approved according to the legal and regulatory terms.

3 – The official report shall comprise the address of the person concerned, whose attention shall be drawn to the fact that the address supplied shall be used for notification purposes.

4 – Where a legal person or a society is responsible for the breach, the identification, residence and working place of the respective managers, administrators or directors shall be indicated, where possible.

Article 119
Loss in favour of the State

1 – Seized objects that are not claimed within 60 days, following notification to interested parties ordering the delivery thereof, shall be deemed lost in favour of State.

2 – Objects lost in favour of the State shall revert to the NRA, which shall dispose of said objects as appropriate.

CHAPTER III
Availability of information by the NRA
 

Article 120
Publication of information

1 – It is incumbent upon the NRA to make available and update information that contributes to an open and competitive market, in particular information on the following matters:

a) Application of the present regulatory framework;

b) Consultation procedures in course under the terms of articles 8 and 57, as well as the result of concluded procedures, except for confidential information;

c) Rights, conditions, procedures, fees and decisions on general authorisations and rights of use;

d) Transfer of rights of use;

e) Registration of undertakings providing electronic communications networks and services;

f) Obligations imposed on undertakings pursuant to chapters III and IV of title IV, identifying the respective markets, safeguarding confidential information or information constituting a business secret;

g) Information on rights within the scope of the universal service, including those provided for in article 94, and conditions governing the provision of all publicly available services, thereby allowing consumers to assess available alternatives, in particular by means of interactive guides;

h) A report on the costs of the universal service, pursuant to article 98;

i) The results of the net cost calculation and of the audit carried out under the terms of article 96;

j) Arbitration and mediation mechanisms, pursuant to paragraph 1 of article 107.

2 – The information referred to in the preceding paragraph shall be made available, in particular in digital form over the Internet, at the headquarters of the NRA and at all delegations thereof, as well as in its official publication, as appropriate and according to the nature of the matter.

3 – For the purpose of point c) of paragraph 1, where the information refers to different sectors of the Public Administration, the NRA shall make all reasonable efforts to make a complete picture of such information available to the user, especially with a view to facilitating the presentation of requests for rights to install resources, where such is possible without incurring disproportionate costs.

4 – The NRA shall transmit to the European Commission:

a) A copy of all published information mentioned in point f) of paragraph 1;

b) The notification of those undertakings deemed as having significant market power and the respective alterations which may take place;

c) All information requested by the European Commission, having regard to the regular review of the application of electronic communications directives.

TITLE VIII
Final and transitory provisions
 

Article 121
Regularization of entitlements

1 – It is incumbent upon the NRA to make all the necessary amendments and adjustments to registers and licenses issued pursuant to Decree-Law no 381-A/97 of 30 December, to authorisations issued pursuant to Decree-Law no 241/97 of 18 September, as well as to declaration procedures provided for in Decree-Law no 290-C/99 of 30 July, for which the corresponding fee shall be waived.

2 – For the purpose of the preceding paragraph, all undertakings concerned shall supply the NRA with the necessary information and documents as requested.

3 – All obligations comprised in the bases for the concession of the telecommunications public service approved by Decree-Law no 31/2003 of 17 February shall remain in force, except where a more demanding regime results from the application of this law, in which case the regime resulting from the application of this law shall be in force.

4 – Undertakings shall maintain the rights of use for numbering resources and frequencies assigned prior to the publication of the present law, up to the end of the period established in the respective title of assignment, where such period exists.

5 – All obligations undertaken by undertakings licensed in tenders prior to the publication of the present law shall also remain applicable, and thus the respective tender instruments also remain in force, as regards the relevant part thereof.

6 – Where the process of entitlement regularization referred to in paragraph 1 results in a reduction of rights or an extension of obligations, the NRA may extend the validity of those rights and obligations until the 25th of April 2004, provided that the rights of other undertakings are not affected, which decision shall be notified to the European Commission.

Article 122
Maintenance of obligations

1 – Following the publication of the present law, the NRA shall immediately define and analyse the markets, declare which undertakings have significant market power and determine the imposition, maintenance, amendment or termination of obligations, pursuant to the present law.

2 – Until the NRA has provided the determination referred to in the preceding paragraph, the following obligations shall remain in force:

a) Those regarding the provision of leased lines comprised in article 23 of the Regulation for the Operation of Telecommunications Public Networks, approved by Decree-Law no 290-A/99 of 30 July, as amended by Decree-Law no 249/2001 of 21 September, as well as in articles 24, 26, 27 and 28 of the same statutory instrument;

b) Those regarding prices of the access and use of fixed telephone networks and fixed telephone service, comprised in article 34 of the Regulation for the Operation of Fixed Telephone Service, approved by Decree-Law no 474/99 of 8 November;

c) Those regarding the selection and pre-selection comprised in article 32 of Decree-Law no 415/98 of 31 December;

d) Those regarding sharing, comprised in article 17 of Decree-Law no 381-A/97 of 30 December, and in article 8 of the Regulation for the Operation of Telecommunications Public Networks, approved by Decree-Law no 290-A/99 of 30 July;

e) Those regarding network access, comprised in paragraph 2 of article 6 of Decree-Law no 415/98 of 31 December, and in article 33 of the Regulation for the Operation of Fixed Telephone Service, approved by Decree-Law no 474/99 of 8 November;

f) Those regarding interconnection, comprised in or resulting from the application of paragraph 1 of article 6 and of articles 8, 9, 10, 11, 12, 13, 15, 21, 22, 23 and 25 of Decree-Law no 415/98 of 31 December;

g) Those regarding unbundled access to the local loop, comprised in Regulation EC no 2887/2000 of the European Parliament and of the Council of 18 December.

3 – Without prejudice to the provision of article 43, legislative or administrative measures that force operators, when granting access or interconnection, to provide different conditions to different undertakings for equivalent services and or that impose obligations that are nor related with the access and interconnection services effectively provided, in this case without prejudice to the conditions set out in articles 27, 32 and 34, shall not be maintained.

Article 123
Transitory rules

1 – Until such time as the Code of Administrative Courts Procedure enters in force, the regime of litigious impugnation currently in force shall apply, without prejudice to the competence of commerce courts.

2 – Municipalities shall approve the percentage to be applied for the year 2004, as set out in point b) of paragraph 2 of article 106, within 90 days from the publication of the present law.

3 – The NRA shall publish, within a period not exceeding 60 days following the publication of the present law, a regulation defining the procedure to be adopted by undertakings providing publicly available electronic communications networks and services at a fixed location, as regards the monthly collection and delivery, to municipalities, of revenues which result from the application of the MFRW.

Article 124
Concessionaire

1 – The regime in the present law shall apply to the concessionaire of the telecommunications public service, under the terms of paragraph 3 of article 21.

2 – The convention of universal service prices, concluded pursuant to Decree-Law no 458/99 of 5 November, shall remain in force until the implementation of the regime provided for in article 93 and at the latest until 31 December 2003.

3 – In the event the regime provided for in article 93 is not implemented by 31 December 2003, the rules for price setting comprised in the convention shall remain in force up to the said implementation.

Article 125
Regulations

1 – It is incumbent upon the NRA to publish the regulations necessary for the application of the present law, namely those concerning matters referred to in paragraph 1 of article 21, paragraph 2 of article 27, paragraph 2 of article 32, paragraph 2 of article 34, paragraph 1 of article 35, paragraph 2 of article 40, paragraph 5 of article 54, paragraph 4 of article 84, paragraphs 2 and 4 of article 92 and paragraph 4 of article 108, without prejudice to the statutory powers of the NRA to issue regulations where necessary for the exercise of its assignments.

2 – Without prejudice to the preceding paragraph, all measures and determinations adopted by the NRA pursuant to legislation repealed by the present law shall remain in force.

Article 126
Calculation of time limits

The rules comprised in article 72 of the Code of Administrative Procedure shall apply to the calculation of time limits provided for in the present law.

Article 127
Repealing provision

1 – The following statutory instruments are hereby repealed:

a) Law no 91/97 of 1 August, as amended by article 1 of Law no 29/2002 of 6 December, except for paragraphs 2 and 3 of article 12;

b) Decree-Law no 230/96 of 29 November;

c) Decree-Law no 241/97 of 18 September;

d) Decree-Law no 381-A/97 of 30 December;

e) Decree-Law no 415/98 of 31 December;

f) Decree-Law no 290-A/99 of 30 July, with the amendments introduced by Decree-Law no 249/2001 of 21 September;

g) Decree-Law no 290-B/99 of 30 July;

h) Decree-Law no 290-C/99 of 30 July;

i) Decree-Law no 458/99 of 5 November;

j) Decree-Law no 474/99 of 8 November, with the amendments introduced by Law no 95/2001 of 20 August;

l) Decree-Law no 287/2001 of 8 November;

m) Decree-Law no 133/2002 of 14 May.

2 – The telephone service shall be excluded from the scope of application of Law no 23/96 of 26 July and of Decree-Law no 195/99 of 8 June.

3 – The concessionaire of the telecommunications public service shall be excluded from the scope of application of point e) of paragraph 1 of article 7 of Decree-Law no 555/99 of 16 December, as amended by Decree-Law no 177/2001 of 4 June.

4 – Administrative Rule no 791/98 of 22 September, approved pursuant to Decree-Law no 241/97 of 18 September, shall remain in force.

Article 128
Entry into force

1 – The present law shall enter into force on the day following that of its publication.

2 – The MFRW, provided for in article 106, shall enter into force 90 days after the publication of the present law.

Approved on 11 December 2003.

The President of the Assembly of the Republic, João Bosco Mota Amaral

Promulgated on 28 January 2004.

Let it be published.

The President of the Republic, JORGE SAMPAIO.

Counter-signed on 29 January 2004.

The Prime Minister, José Manuel Durão Barroso.

ANNEX

Service quality parameters

 Parameters regarding time of supply and service quality, definitions and methods provided for in articles 40 and 92

Parameter 1	Definition	Measurement method
Supply time for initial network connection	ETSI EG 201 769-1	ETSI EG 201 769-1
Fault rate per access line	ETSI EG 201 769-1	ETSI EG 201 769-1
Unsuccessful calls 2	ETSI EG 201 769-1	ETSI EG 201 769-1
Call set-up time 2https://www.anacom.pt/render.jsp?contentId=55130	ETSI EG 201 769-1	ETSI EG 201 769-1
Response time for operator services	ETSI EG 201 769-1	ETSI EG 201 769-1
Response time for directory enquiry services	ETSI EG 201 769-1	ETSI EG 201 769-1
Rate of coin and card operated public pay-telephones in working order	ETSI EG 201 769-1	ETSI EG 201 769-1
Bill correctness complaints	ETSI EG 201 769-1	ETSI EG 201 769-1

Notes

 
¹ Parameters must allow performance to be assessed at regional level [that is, not below level 2 of the Nomenclature of Territorial Units (NUTS) established by Eurostat].
² Member States may decide not to require the maintenance of up-to-date information on the performance of these two parameters, in case there are data to establish that performance in this scope is satisfactory.

N.B. - The ETSI EG 201 769-1 version number is 1.1.1 (April 2000).

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