Ministério da Economia (Ministry for the Economy)
Decree-Law
(This is not an official translation of the law)
The services of the information society, which include the specific rules for services provided at a distance, require special attention in terms of their regulation.
This matter, as well as other matters regarding technical norms and regulations, has specific characteristics which are related to the globalisation of markets. Said globalisation implies the need to eliminate or, at least, to reduce the obstacles to the commerce of industrial and agricultural products, including those arising from fishing, as well as the need to ensure free service provision in the domain of the information society within the scope of the community territory.
It is, thus, urgent to transpose Directive no. 98/48/CE, of the European Parliament and Council, of 20 July, to the internal legal order. Said directive alters Directive no. 98/34/CE, of the European Parliament and Council, of 22 June, designated as «European Parliament and Council directive related to information procedure within the domain of the technical norms and regulations and the rules related to the services of the information society».
Directive nr. 98/34/CE codifies the previous ones, as is the case with Directive nr. 83/189/CEE, of the Council, of 28 March.
This last directive established a procedure of prior notification in the area of technical norms and regulations, so as to allow for greater transparency in national initiatives and the free circulation of merchandise and to guarantee the sound functioning of the internal market. It was subsequently altered by Directive no. 88/182/CEE, of the Council, of 22 March, and by Directive no. 94/10/CE, of the European Parliament and Council , of 23 March, and transposed to internal law by Cabinet Resolutions no. 41/90, of 13 October, and no. 95/95, of 3 October.
However, it was the directive which has now been transposed to the internal legal order, Directive no. 98/48/CE, of the European Parliament and Council, of 20 July, which modified Directive no. 98/34/CE, by extending its field of application.
The present diploma foresees that the Portuguese body responsible for normalisation activities - Instituto Português da Qualidade (Portuguese Institute for Quality) - will be obliged to notify the European Commission and the European norm bodies of the remaining member States of the specific rules which are related to technical norms and services provided at a distance and by electronic means, regarding the services of the information society.
Also encompassed by this procedure are the rules regarding access to the exercise of said activity. This is the case with those rules related to establishing providers of these services, especially those regarding the authorisation and licensing regime, even if these are included in regulations with a more general objective.
All the other services and organisms of the Public Administration with competency in said matters must channel all the matters subject to notification via said organism. Furthermore, all the information supplied by the European Commission is also channelled via said organism.
Excluded from the scope of the present diploma are the licences related to telecommunication matters, certain provisions related to exercising television broadcasting activities, as well as exceptional cases where serious and unforeseen situations require urgent measures.
Thus:
Under the terms of paragraph a) of point 1 of article 198 of the Constitution, the Government decrees the following:
Article 1
Objective and scope of application
The present diploma sets out the administrative procedures which the information exchange in the technical norms and regulations area adhere to, as well as the rules related to the services of the information society, transposing to the internal judicial order Directive no. 98/34/CE, of the European Parliament and Council, of 22 June, altered by Directive no. 98/48/CE, of the European Parliament and Council, of 20 July.
Article 2
Definitions
For application purposes of the present diploma, the following definitions shall apply:
a) «Product» any goods of an industrial or agricultural origin, including those arising from fishing;
b) «Service» any provision of an activity at a distance, by electronic means and upon the individual request of its receiver, generally upon remuneration, where the following definitions shall apply for this purpose:
i. «At a distance» service provided without both parties being simultaneously present;
ii. «By electronic means» service sent from the origin and received at its destination by electronic means for processing and storing data transmitted in its entirety, sent and received by cable, radio, optical means or other electromagnetic means;
iii. «Upon the individual request of its receiver» service supplied by data transmission upon individual request;
c) «Technical specification» the discrimination included in a document in which the following are defined:
i. The characteristics demanded from a product, such as levels of quality, ownership of use, safety, dimensions, including the prescriptions which are applicable to it with regards to the sales denomination, terminology, symbols, testing and respective methods, packaging, marking and labelling, as well as the conformity evaluation procedures;
ii. The production methods and processes related to agricultural products, under the terms of point 1 of article 32 of the Treaty instituted by the European Communities;
iii. The production methods and processes related to products destined for human and animal consumption;
iv. The methods and processes related to medicines defined in article 3 of Decree-Law no. 72/91, of 8 February;
v. The production methods and processes related to other products that exhibit the same characteristics as those mentioned in the previous paragraph;
d) «Another requirement» any requisite that, not constituting a technical specification, is imposed on a product for reasons of protection, namely of consumers and the environment, and that focuses on its life cycle after being placed on the market, including the conditions for its respective use, recycling, reuse or elimination, whenever these conditions may significantly influence the composition or nature of the product or its commercialisation;
e) «Norm» the technical specification approved by a recognised organism exercising the normalisation activity for repeated or continuous application, compliance with which is not obligatory, and which belongs to one of the following categories:
i. International norm - norm adopted by an international normalisation organisation and placed at the public's disposal;
ii. European norm - norm adopted by a European normalisation organisation and placed at the public's disposal;
iii. National norm - norm adopted by an national normalisation organisation and placed at the public's disposal;
f) «Norm project» the document with the text of technical specifications which one foresees will be adopted with regard to a certain issue, in accordance with the national normalisation procedures, such as that resulting from preparatory work disseminated for comment or public inquiry;
g) «Technical rule» the technical specification or other requisite, rule or requirement related to services, including the internal regulatory provisions which are applicable to them and compliance with which is obligatory, de jure or de facto, for commercialising, using, rendering services or establishing a service operator, encompassing namely:
i. The legal and regulatory provisions which remit to technical specifications, other requirements or rules related to services or for professional or good practice codes;
ii. The voluntary agreements where a public entity is the contracting party and which aim at, within a general interest perspective, observing technical specifications, other requisites or rules related to services, with the exception of the book of specifications for public contracts;
iii. The technical specifications, other requisites or rules regarding services related to measures of a fiscal or financial nature which affect the consumption of products or services and which are aimed at guaranteeing compliance with the technical specifications mentioned, other requisites or rules related to services, with the exception of those specifications related to national social security regimes;
h) «Technical rule project» the text of a technical specification, of another requisite or of a rule related to services, including internal regulatory provisions, elaborated with the objective of it being adopted as a technical rule and found in a preparatory phase which still allows for substantial alterations;
i) «Service related rule» any requisite of a general nature specifically related to access to activities included in the services referred to in paragraph b) of the present article, to their exercising, as well as to any provision related to the service itself or related to the respective providers and receivers, taking into account that:
i. A rule specifically has in mind the services of the information society whenever its motivation and text of what is articulated have as their specific objective, in their totality or in some provisions, the detailed and circumscribed regulation of these services;
ii. A rule does not take into account the services of the information society if it only refers to these services in an implicit or incidental manner.
Article 3
Competent notifying organism
It shall fall upon the Portuguese Institute for Quality, hereinafter designated as «notifying organism», to manage the information related to the norms and technical rules that the present diploma refers to.
Article 4
Attributions of the regulatory organisms
1. Services that aim at elaborating technical rules related to products or rules related to services defined in article 2 of the present diploma must, via the notifying organism:
a) Immediately inform the European Commission of any technical rule project;
b) Simultaneously transmit the text of the base legislative and regulatory provisions, when knowledge thereof is necessary to evaluate the range of the technical rule project, except where it has been presented by prior notification;
c) Under the conditions mentioned in the previous paragraph, make known any significant changes in technical rules to the project which modify the scope of the application, reduce the application schedule initially foreseen or add specifications and other requirements, thus making them more stringent;
d) Make known, if this is the case, a summary or references of the relevant data of a technical rule project which is specially aimed at limiting the commercialisation or use of a substance, a preparation or chemical product, namely for reasons of public health, consumers or environment protection;
e) Make known also, if this is the case, a summary or references of the relevant data related to the substance, preparation or the product in question and the data related to known and available alternative products as this information becomes accessible, as well as the foreseeable effects of this measure on public health and consumer and environment protection, by carrying out, whenever necessary, a risk analysis in accordance with the general risk evaluation principles of chemical products referred to in point 4 of article 10 of Regulation (CEE) no. 793/93, of the Council, of 23 March, when one is dealing with an existing substance referred to in article 7 of Decree-Law no. 82/95, of 22 April, or with a new substance;
f) Immediately inform the European Commission of the definitive text of any technical rule, without prejudice to that set out in point 2 of article 6;
g) Consider, upon the final elaboration of a technical rule, the observations made by the Commission or by other State members about the respective project.
2. The interested services may, by means of the notifying organism, direct at any State member that has presented a technical rule project, observations and comments deemed pertinent in relation to matters capable of hindering commercial exchanges.
3. One may expressly request that the notification be confidential, by means of a duly substantiated request, without it being possible for Public Administration services, by adopting the necessary precautions to consult and inspect said notification by means of single or collective persons.
Article 5
Deadlines for approving technical rule projects
1. No technical rule project may be approved before a 3-month period has lapsed as from the date of its reception by the Commission.
2. The deadline referred to in the previous point becomes 4, 6, 12 or 18 months, under the following conditions:
a) 4 months:
i. When the technical rule project adopts the form of a voluntary agreement where a public entity is a contracting party and aims at, within a perspective of general interest, compliance with technical specifications and other requirements, with the exception of the book of specifications for public contracts;
ii. When one is in the presence of a rule project to be adopted related to the services defined in article 2;
b) 6 months, in the case of adopting a technical rule project not related to services, if, within a 3-month period as from the date of its reception by the Commission, said Commission or another State member issues a substantiated opinion, in the sense that the measure foreseen contains aspects which may possibly be contrary to the free-circulation of merchandise;
c) 12 months:
i. In the case of adopting a technical rules project, excluding those related to services, as from the date of its reception by the Commission, if, within a 3-month period, said Commission intends to propose or adopt a directive, a regulation or a decision on the matter, under the terms of article 249 of the Treaty instituted by the European Communities;
ii. When the Commission verifies, within 3 months following the date of reception, that the technical rule project regards matters encompassed by a proposal for a directive, a regulation or a decision presented to the Council under the terms of article 249 of the Treaty instituting the European Communities;
d) 18 months, if the Council adopts a common stance throughout the period referred to in the previous paragraph, without prejudice to that set out in point 4 of the present article.
3. The period referred to in paragraph a) of the previous point begins as from the date the Commission receives the project if, in the three subsequent months, said institution or another member State issues a circumstantiated opinion in accordance with which the measure foreseen may possibly create obstacles to the free circulation of services or freedom of establishment.
4. The obligations referred to in paragraphs b) and c) of point 2 shall cease once the Commission informs the member States that it renounces to propose or adopt a binding community act or that it withdraws its project or proposal, and also when, in this area, the Council adopts a binding community act.
Article 6
Exceptions
1. That set out in article 4 and 5 of the present diploma shall not be applicable to the legislative and regulatory provisions or to voluntary agreements which, with regards to technical specifications, pursue the following ends:
a) To comply with binding community acts the effect of which is to adopt technical specifications or rules related to services;
b) To observe commitments resulting from an international agreement, the effect of which is to adopt technical specifications or rules related to services and which are common to the entire Community;
c) To invoke the safeguarding clauses foreseen in binding community acts;
d) To apply the regime foreseen in Decree-Law no. 311/95, of 20 November, related to the general product safety;
e) To only execute the decision of the Justice Tribunal of the European Communities;
f) To alter only one technical rule upon acceptance of paragraph g) of article 2 of the present, in accordance with a Commission request, with a view to eliminating obstacles to commercial exchanges.
2. The provisions of article 4 shall also not be applicable upon the mere total transposition of an international or European norm. In this case, it shall suffice to make the appropriate information on said norm available to the Commission
3. The information referred to in the previous point must be accompanied by a notification including its justification, except where the latter can be clearly deduced from the project.
4. The provisions of paragraphs b) and c) of point 2 of article 5 shall not be applied to the voluntary agreements referred to in sub-paragraph ii) of paragraph g) of article 2.
5. That set out in article 5 of the present diploma shall also not be applicable to:
a) The legislative and regulatory provisions aimed at manufacture prohibition, inasmuch as these do not hinder the free circulation of products;
b) Technical specifications or other requisites, as well as rules, related to the services referred to in paragraph b) of article 2 of the present diploma.
Article 7
Emergency Proceeding
1. That set out in article 5 shall not be applicable where, for urgent reasons arising from a grave and unforeseen situation involving the protection of the health of humans and animals, the preservation of plants, public safety and order, namely the protection of minors, it shall be necessary to draw up, as quickly as possible, technical rules to be adopted and applied immediately.
2. That set out in article 5 of the present diploma shall also not be applicable where, for urgent reasons arising from a grave situation involving the protection of the security and integrity of the financial system, namely the protection of the depositors, investors or persons insured, it becomes necessary to immediately adopt and apply rules related to financial services.
3. The information to be communicated referred to in paragraph a) of point 1 of article 4 must include the motives justifying the urgency of the measures in question.
Article 8
Services not encompassed
The services which are not encompassed by the present diploma are those indicated in annex I of the present diploma, of which it is an integral part.
Article 9
Reference to the directives
The adoption of technical rules by national Portuguese legislation must refer to Directive no. 98/34/CE, of the European Parliament and the Council, of 22 June, together with the alterations introduced by Directive no. 98/48/CE, of the European Parliament and the Council, of 20 July.
Article 10.
Revoking norm
Cabinet Resolution no. 95/95, of 3 October, is hereby revoked.
Article 11.
Coming into effect
The present diploma shall come into effect on the day subsequent to its publication.
ANNEX I
(referred to in article 8)
List of services not encompassed by the present diploma
1. The present diploma shall not be applicable to:
a) Sound broadcasting services;
b) The television broadcasting services referred to in paragraph a) of article 1 of Directive no. 89/552/CEE, of the Council, of 3 October;
c) Rules related to issues which are subject to community regulations regarding the telecommunication services defined Directive no. 90/387/CEE, of the Council, of 28 June;
d) Rules related to issues which are subject to community regulations regarding financial services;
e) Rules declared by or for the markets which are regulated upon acceptance of Directive no. 93/22/CE, of the Council, of 10 May, other markets or bodies which carry out compensation or settlement operations of those markets, without prejudice to that set out in paragraph;
f) of article 4 of the present diploma.
2. The present diploma shall also not be applicable to services rendered in the physical presence of the provider or receiver, even when service provision implies the use of electronic devices:
a) Exams or treatments in a doctor's consulting room by means of electronic equipment, but in the physical presence of the patient;
b) Consultation of an electronic catalogue in a commercial establishment in the physical presence of the client;
c) Reservation of a notification ticket in a computer network at a travel agency in the physical presence of the client;
d) Availability of electronic games in a games room in the physical presence of the user.
3. Services not supplied via electronic means shall also be excluded:
a) Services of a material content, even when these imply the use of electronic devices:
i. Automatic distribution of notes and tickets, such as bank notes and train tickets;
ii. Access to road networks, parking areas, etc., upon payment, even if there are electronic devices at the entrance or exit to control access and/or guarantee the correct payment;
b) Off-line services: distribution of CD-ROM or software on diskettes;
c) Services not supplied by means of electronic systems for storing and processing data:
i. Voice telephony services;
ii.Tele-copy and telex services;
iii. Television tele-text;
iv. Services provided by voice telephony or tele-copy;
v. Consulting a doctor by telephone or by tele-copy;
vi. Consulting a lawyer by telephone or by tele-copy;
vii. Direct marketing by telephone or by tele-copy.
Seen and approved in Cabinet on 2 March 2000. - Jaime José Matos da Gama - Joaquim Augusto Nunes Pina Moura - Joaquim Augusto Nunes Pina Moura.
Enacted on 31 March 2000.
Let it be published.
The President of the Portuguese Republic, Jorge Sampaio.
Countersigned on 6 April 2000.
The Prime Minister, António Manuel de Oliveira Guterres.
Statement of Rectification no. 6-C/2000, of 31 of May
