Ministérios da Economia e das Cidades, Ordenamento do Território e Ambiente (Ministries of Economy and Cities,Territorial Planning and Environment)
Decree-Law
Decree-Law no. 151-A/2000 of 20 of July has established the legal provisions applicable to the licensing of radiocommunication networks and stations as well as to the supervision of the installation of the mentioned stations and the use of the radio spectrum.
This statutory instrument provides, under article 20, that the installation of radiocommunication stations and respective accessories shall be subject not only to the legal consent of owners of urban or rural buildings but also to the approval procedures required by law, namely those within the competence of the local authorities, the restrictions to that installation being provided under article 21.
Under article 22, it is established that the competent authorities shall be responsible for the setting of reference levels for the purpose of assessment of the exposure to electromagnetic fields emitted by radiocommunication stations.
Having regard to the fact that these reference levels have not been settled hitherto, the Instituto das Comunicações de Portugal – Autoridade Nacional de Comunicações (ICP - ANACOM) has adopted, by determination of 6 April 2001, the reference levels provided in the Council Recommendation n.º 1999/519/EC of 12 July 1999, which have been applied, as a technical parameter, to every radiocommunication station installed subsequently.
However, the procedure as to the approval from the municipality concerning the installation of support infrastructures for radiocommunication stations and respective accessories has not been yet regulated, and likewise have not been stipulated the constraints regarding the protection of the environment, the cultural heritage and the urban and rural landscape, as well as the territorial planning. Moreover, there continues to be no legal standard establishing the reference levels for the purpose of assessment of the exposure to electromagnetic fields (0 Hz to 300 GHz) as well as the respective monitoring and measurement procedures.
In view not only of the eminently transitory and limited nature of the determination of ICP – ANACOM but also of the increasingly pressing need to ensure the security and trust of populations, the Government hereby intends to provide the mechanisms for the setting of reference levels on exposure of the general public to electromagnetic fields (0 Hz to 300 GHz).
ICP – ANACOM is assigned the competence to establish the procedures concerning the monitoring of the intensity levels of the electromagnetic fields.
This statutory instrument wishes to meet the legislative blank regarding the approval from the municipality for the installation and functioning of the support infrastructures for radiocommunication stations, having regard to their atypical and specific nature and to the need to standardize the action of municipalities in this issue, in order to expedite the whole procedure, characteristics which are fundamental for the compliance with obligations relating to the provision of the service by mobile telecommunications operators.
Thus, it is clear that the intervention of the municipality concerning the protection of the environment, the cultural heritage and the urban and rural landscape, as well as the territorial planning, does not conflict with the respect for the imperative need to encourage and support the pursuit and promotion of the information society development, and specially of the public service improved by the telecommunications sector.
ICP – ANACOM, the National Association of Portuguese Municipalities, the organization representative of the environment protection associations and the mobile telecommunications sectors operators were granted a hearing.
Therefore:
Pursuant to paragraph 1a) of article 198 of the Constitution, the Government hereby decrees the following:
Chapter I
General Provisions
Article 1
Scope
The present statutory instrument regulates the approval from the municipality concerning the installation and functioning of support infrastructures for radiocommunication stations and respective accessories adopted in Decree-Law n. º 151-A/2000 of 20 July, and provides mechanisms for the setting of reference levels on exposure of the general public to electromagnetic fields (0 Hz to 300 GHz).
Article 2
Definitions
For the purposes of this statutory instrument:
a) “Support infrastructures for radiocommunication stations and respective accessories” shall mean the set of elements required for the installation and functioning of the radiocommunication equipment;
b) “Temporary support infrastructures for radiocommunication stations” shall mean a specific installation intended for the provision of services in emergency situations or events limited in time;
c) “Best available techniques (BATs) shall mean the most effective and advanced stage in the development of activities and their methods of operation which indicate the practical suitability of particular techniques for providing in principle the basis for emission limit values designed to prevent and generally to reduce emissions and the impact on the environment as a whole:
i. “Techniques” shall mean both the way in which the installation is designed, built, maintained, operated and decommissioned;
ii. “Available techniques” shall mean those developed on a scale which allows implementation in the relevant industrial sector, under economically and technically viable conditions, taking into consideration the costs and advantages, whether or not the techniques are used or produced at national or Community level, as long as they are reasonably accessible to the operator;
iii. “Best” shall mean most effective in achieving a high general level of protection of the environment as a whole;
d) “Radiocommunications operator” shall mean an entity providing an addressed or broadcasting service for public or private use involving the transmission, emission or reception of radio waves for the specific aims of telecommunications;
e) “Radiocommunications” shall mean telecommunications transmitted through the use of radioelectric waves.
Article 3
Support infrastructures for radiocommunication stations
The support infrastructures for radiocommunication stations to be installed shall use the best available techniques (BATs) appropriate to the specific nature of the places of installation, having regard to their typology and equipment features, in order to minimize the visual and environmental impact.
Chapter II
Municipality approval
Article 4
Installation of support infrastructures for radiocommunication stations
The installation of support infrastructures for radiocommunication stations and respective accessories is subject to an approval from the municipality, with the exception of:
a) the ones which aim at the installation of stations of personal radio service, citizen's band and amateur service;
b) the ones which aim at the installation of stations for the reception of radio and television broadcasting services, including satellite reception;
c) of the ones which aim at the installation of terminal stations for the access, on the part of the user, to services provided through the system of radio fixed service;
d) temporary support infrastructures for radiocommunication stations.
Article 5
Approval procedure
1 - The application for the approval to the installation of support infrastructures for radiocommunication stations and respective accessories may be submitted in a request addressed to the president of the municipal council, the following particulars being required for the appraisal of the process:
a) Personal identification of the applicant;
b) Identification of the license issued by ICP – ANACOM, where it exists, pursuant to Decree-Law n. º 151-A of 20 July;
c) a document describing the manner in which the installation will be carried out (setting out the adopted constraining criteria, the materials employed, as well as building and fixing methods) along with drawings (location drawing at a scale of 1:25000, implantation drawing at scale of 1:200 or 1:500, and elevation drawing at scale of 1:100);
d) a guarantee instrument issued by the technical team responsible for the installation, at civil level and at electrical systems level;
e) declaration issued by the operator ensuring compliance of the installation with the applicable radiation reference levels, according to national or international standards in force;
f) Copy of the document including the express permission provided by the landowners for the purposes of installation of support infrastructures for radiocommunication stations and respective accessories;
2 – Regarding the installation of stations in buildings, in addition to the elements referred to in paragraph 1 a) to e), the following particulars should be attached further:
a) a justifying study of the structural stability of the building, having regard to the fixing of the support infrastructures for the radiocommunication stations of the building;
b) Copy of the document including the express permission provided by the owner or joint owners of the building, pursuant to applicable law, for the purposes of the installation.
3 - The application for the approval mentioned in paragraph 1 may be also submitted by companies engaged in the activity of installation and functioning of support infrastructures for radiocommunication stations.
4 - In the situation referred to in the preceding paragraph, a document certifying the installation request made by the operator to the respective company shall also be submitted.
Article 6
Procedure
1 – The president of the municipal council shall issue an order of preliminary rejection of the application within eight days from the date of the submission thereof, where the particulars referred to in the preceding article have not been attached.
2 - It is incumbent upon the president of the municipal council to promote, within 10 days from the date of the submission of the application, the consultation of the entities that, under the law, should deliver their opinion, authorization or approval as to the installation.
3 - The applicant may previously request the opinions, authorizations or approvals, as required by the law, of the competent entities referred to in the preceding paragraph, submitting for this purpose the documents mentioned in article 5, paragraph 1c).
4 - On expiry of the period referred to in paragraph 2, the interested party may request a document certifying the promotion of the due consultations, which shall be issued by the municipal council within two days.
5 - Where the certificate is negative, the interested party may promote directly the consultations that have not taken place, the entities to be consulted being listed in the certificate.
6 - The opinions, authorizations or approvals of the entities consulted shall be received by the president of the municipal council or by the applicant, as the case may be, within ten days from the date of reception of the consultation request;
7 - The agreement as to the application of the entities consulted is presumed to exist where the respective opinions, authorizations or approvals are not received within the period established in the preceding paragraph.
8 - The president of the municipal council shall make a decision regarding the application within 30 days of receiving the application.
9 – The act granting the application substantiates the approval to the installation of support infrastructures for radiocommunication stations and respective accessories.
10 – The provision of the preceding paragraph does not exempt the applicants from paying the installation administrative taxes required in the terms and amounts to be set in a municipal regulation, in compliance with the criteria defined under the law.
Article 7
Refusal of application
The application for the approval shall be refused where:
a) The provision of article 21 of Decree-Law n. º 151-A/2000, of 20 July is not complied with;
b) The installation of support infrastructures for radiocommunication stations violates restrictions provided in the municipal plan of territorial planning or in the special plan of territorial planning, preventive measures, priority urban development area, priority construction area, administrative use, public utility restriction or any other legal or regulatory standards applicable;
c) Justified on objective and reasoned grounds concerning the protection of the environment, the cultural heritage and the urban and rural landscape.
Article 8
Implicit approval
If no communication is received from the president of the municipal council on expiry of the period provided for in paragraph 8 of article 6 of this statutory instrument, the applicant may begin the installation of support infrastructures for the radiocommunication stations, having previously handed a request for the issue of a payment slip of the due taxes.
Article 9
Preliminary hearing
1 – Where the draft decision aims at the rejection of the approval application, a preliminary hearing must take place, with a view to establishing the conditions towards minimizing the visual and environmental impact which may lead to the approval of the application.
2 – Where the probable purport of the decision is therejection of the application for the approval to the installation of support infrastructures for radiocommunication stations in existing buildings, the president of the municipal council, in a preliminary hearing, shall determine an alternative location, within a radius of 75m.
3 – Where a new location is not found pursuant to paragraph 2, the president of the municipal council shall approve the application, save where this would run counter to the negative reply to the application of the binding opinions, authorizations or approvals, issued by the competent entities.
Article 10
Limited approval
1 - In those cases where projects of public or private utility are expected to be carried out in the location pointed out by the applicant for the installation of his support infrastructure, the president of the municipal council may grant a limited approval, valid up to the carrying out of the projects.
2 – Once the date for the carrying out of the projects has been defined, it is incumbent upon the municipal council to notify the approval holder to fully remove the station concerned, within no fewer than sixty days.
Chapter III
Electromagnetic radiations
Article 11
Reference levels for the purpose of assessment of the exposure to electromagnetic fields
1 - Radiocommunication stations are bound to comply with the reference levels for the purpose of assessment of the exposure to electromagnetic fields, to be settled by joint order of the Minister of State and for National Defence, the Minister Assistant to the Prime Minister, the Minister for the Economy, the Minister for Science and Higher Education, the Minister for Health and the Minister for Towns, Territorial Planning and Environment.
2 – It is incumbent upon ICP – ANACOM to establish, in accordance with their own rules and within 60 days from the entry into force of this statutory instrument, the monitoring and measurement procedures of the intensity levels of the electromagnetic fields coming from radiocommunication stations, after hearing the Ministries for National Defence, for the Economy, for Science and Higher Education, for Health and for Towns, Territorial Planning and Environment.
3 - The framework of basic restrictions and reference levels, as well as the measurement procedures referred to in the preceding paragraph, are applicable to all radiocommunication stations, including the ones engaged in military purposes, functioning in frequency bands the management of which is at the relevant time delegated by ICP – ANACOM to the Ministry for National Defence, and the ones covered by specific legislation.
4 - ICP – ANACOM may adopt, according to the elements mentioned in paragraph 1 of this article, constraining measures for the installation and functioning of radiocommunication stations.
Article 12
Monitoring and measurement plans
1 – The entities qualified to install and use radiocommunication stations engaged in the provision of addressed or broadcasting telecommunication services for public use shall present to ICP – ANACOM, up to November each year, a monitoring and measurement plan of the intensity levels of the electromagnetic fields coming from radiocommunication stations, namely in locations accessible to the population, requesting the approval thereof.
2 – The plans referred to in the preceding paragraph shall be drawn up according to the methodology appropriate to each service, to be determined by the rules of ICP – ANACOM, after hearing the Environment Institute (EI) and the competent entity of the Ministry for Health, pursuant to paragraph 2 of article 11.
3 - Within 30 days of submission of the plans, ICP – ANACOM shall either grant an approval or determine that amendments should be made, an approval being presumed where the decision of ICP – ANACOM is not made known within the period established in the preceding paragraph.
4 – The results of the monitoring accomplished pursuant to this article, by the entities referred to in paragraph 1, shall be presented every three months to ICP – ANACOM, to the competent entities of the Ministry for Health and to the municipal councils of the places of installation of the stations comprised by the monitoring.
Chapter IV
Control and sanctionary measures
Article 13
Control
1 – It is incumbent upon the municipal councils to control the compliance with the provisions of chapter II of this statutory instrument, regarding the installation of support infrastructures for radiocommunication stations and respective accessories.
2 – It is incumbent upon ICP – ANACOM to control the compliance with the provisions of chapter III of this statutory instrument, through its control agents or professional representatives duly accredited by the respective board of administration.
3 – The control of the compliance with the provision of paragraph 1 of article 11 by the radiocommunication stations mentioned in paragraph 3 of article 11 of this statutory instrument is incumbent upon the entities responsible for the management of the respective frequency bands or the respective licensing.
4 – The measurements accomplished by ICP – ANACOM and further entities with control responsibilities pursuant to this statutory instrument, when duly registered and accredited, shall constitute evidence elements to determine the use conditions of the radioelectric spectrum by radiocommunications networks and stations.
5 – Without prejudice to breach proceedings before the courts of law, the competent entities for the control of radiocommunications stations may order the immediate preventive suspension of their use and functioning where they do not comply with the reference levels established pursuant to paragraph 1 of article 11.
Article 14
Breaches
1 – Without prejudice to the civil, criminal or disciplinary responsibility, the following breaches shall be punishable:
a) the installation and functioning of the support infrastructures for radiocommunication stations and respective accessories without approval from the municipality;
b) the installation and functioning of the support infrastructures for radiocommunication stations and respective accessories in disregard of the conditions of the municipal approval;
c) False declarations on the part of operators in their declarations of responsibility;
d) Pursuit of the installation and functioning of the support infrastructures for radiocommunication stations and respective accessories, the embargo of which had been legally imposed;
e) Non compliance with the reference levels and constraining measures, in violation respectively of paragraphs 1 and 4 or article 11;
f) failure to submit the monitoring plans, non compliance with the order of ICP – ANACOM to make amendments and failure to submit the monitoring results, in violation respectively of paragraphs 1, 3 and 4 of article 12;
g) Violation of the provision of paragraph 1 of article 15.
2 – The breaches mentioned in paragraphs 1 a), b), e) and g) of this article are liable to a graduated fine from (euro) 498,80 up to (euro) 3740,98 or (euro) 44891,81, whether they have been committed by a natural or legal person, respectively.
3 – The breaches mentioned in paragraph 1c), d) and f) are liable to a graduted fine from (euro) 500 up to (euro) 2000 or (euro) 20000, whether they have been committed by a natural or legal person, respectively.
4 – The attempt and negligence shall be punishable.
5 – It is incumbent upon the president of the municipal council to order the opening of breach proceedings before the courts of law, in the cases provided under paragraph 1 a), b), c), d) of this article, with the possibility of delegation to any of its members.
6 - It is incumbent upon the board of administration of ICP - ANACOM to order the opening of breach proceedings before the courts of law, in the cases provided under paragraph 1 e) and f) of this article, the investigation of the case being incumbent upon the respective services, or upon the entities that, pursuant to paragraph 3 of article 13, are responsible for the control of the compliance with the provision of paragraph 1 of article 11, for the purposes of paragraph 1 e) of this article.
7 – The application of fines and accessory sancions mentioned in paragraph 1 e) and f) of this article is incumbent upon the president of the board of administration of ICP – ANACOM or upon the entities that, pursuant to paragraph 3 of article 13, are responsible for the control of the compliance with the provision of paragraph 1 of article 11, for the purposes of paragraph 1 e) of this article.
8 – The proceeds from the application of fines relating to paragraphs 1 a), b), c), d) and g) of this article shall be returned to the budget of the municipality, including where thefines are collected in the course of legal proceedings.
9 – The amount of the fines mentioned in paragraphs 1 e) and f) of this article shall return at 60% to the State, and at 40% to the entity competent to order the opening of breach proceedings before the courts of law and to apply fines and accessory sanctions.
10 – The penalty for breaches as well as the accessory sanctions applied pursuant to this statutory instrument may be properly publicized by the competent entities for the application thereof.
Chapter V
Transitory and final rules
Article 15
Transitory provision
1 – This statutory instrument applies to installed support infrastructures for radiocommunication stations without a favorable municipal determination or decision, the operators having to request the respective approval from the municipality within 180 days from the date of entry into force.
2 – For the purposes of the provision of the preceding paragraph, the operators have to submit to the president of the municipal council a single process that includes a list presenting the identification and location of all support infrastructures for radiocommunication stations installed in the respective municipality, together with the documents referred to in paragraphs 1a), b) e) and f) and paragraph 2 b) of article 5 of this statutory instrument.
3 – The president of the municipal council may solicit additional documents, referred to in article 5 of this statutory instrument.
4 - The president of the municipal council shall render a final dicision within one year from the submission of the process, in compliance with the applicable rules of this statutory instrument.
5 - Where the draft decision aims at the rejection of the claim, the provisions of article 9 shall apply to all support infrastructures for radiocommunication stations.
6 – The non approval referred to in the preceding paragraph shall only be supported on the following grounds:
a) Binding opinions, authorizations or approvals, issued by the competent entities, aiming at a non approval;
b) Violation of restrictions relating to the installation of support infrastructures for radiocommunication stations and provided in a municipal plan of territorial planning, a special plan of territorial planning, preventive measures, a priority urban development area, a priority construction area, an administrative use, a public utility restriction or any other legal or regulatory standards applicable;
c) intolerable and disproportionate aggression to the environment, the cultural heritage and the urban and rural landscape;
d) Violation of the reference levels determined pursuant to paragraph 1 of article 11.
Checked and approved in the Council of Ministers of 12 November 2002. – José Manuel Durão Barroso – Paulo Sacadura Cabral Portas – José Luís Fazenda Arnaut Duarte – Carlos Manuel Tavares da Silva – Pedro Lynce de Faria – Luís Filipe Pereira – Isaltino Afonso de Morais.
Promulgated on 8 January 2003.
Let it be published.
The President of the Republic, JORGE SAMPAIO.
Counter-signedon 9 January 2003.
The Prime Minister, José Manuel Durão Barroso.
