Ministério da Economia (Ministry for the Economy)
Decree-Law
(This is not an official translation of the law)
Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997, on common rules for the development of the internal market of Community postal services and the improvement of quality of service, has implemented a new regulatory framework for the postal sector, ensuring, on the one hand, the existence of a universal service, the reserved area of which is determined, and carrying out, on the other hand, a gradual and controlled liberalisation of the market. To this end, a timetable was established for decision-making on the further opening of the market to competition.
That directive was transposed to the internal legal system by Law no. 102/99 of 26 July, that defined the general stipulations to be complied with as regards the establishment, management and operation of postal services on national territory, as well as international services originating or terminating on national territory. The legal regime thereof was further developed by Decree-Law no. 448/99 of 4 of November, that approves the premises for the concession of the universal postal service, and subsequently by Decree-Law no. 150/2001 of 7 May, that establishes the regime for the access and exercise of the postal services provision activity in a competitive market.
As originally envisaged, the Postal Directive was amended by Directive 2002/39/EC of the European Parliament and of the Council of 10 June 2002, amending Directive 97/67/EC with regard to the further opening to competition of Community postal services. Foreseeing subsequent revisions as to the scope of the Community reserved services, Law no. 102/99 of 26 July provides that such revisions shall take place in the form of a decree-law.
The present statutory instrument thus transposes the provisions of this Directive, revising the scope of services reserved to the provider of the universal service in the framework of the increasing liberalisation of the sector, which shall continue to be built in a step-by-step approach. To this end, two new phases as established: the first, starting from the date of entry into force of the present statutory instrument, and the second, as from 1 January 2006, thereby gradually reducing the range of reserved services.
New standards are also introduced as to the price regime to be complied with by the universal service provider, as well as to the procedure dealing with complaints received by the several universal service providers.
Outside the scope of the transposition of Directive 2002/39/EC, and as far as the universal postal service concessionaire is specifically concerned, this opportunity is taken to introduce two amendments, one concerning the decision powers as to the management of postal establishments, the other regarding the calculation of the compensation in the event of a concession buy-back.
Simultaneously, some adjustments are made to Decree-Law no. 150/2001 of 7 May, in compliance with the observations transmitted by the European Commission as to Directive 97/67/EC, regarding the regime for the access and performance of the postal services provision activity in a competitive market.
Concerning the universal service, it is established that the rules regarding the formation of prices integrating it shall be set up in a convention to be approved between the regulatory entity (ICP – ANACOM) and the concessionaire, thereby no longer taking place the intervention of the Directorate-General for Commerce and Competition in this process of price regulation. In the light of the above, paragraph 2 of article 14 of Law no. 102/99 of 26 July, and paragraphs 2 and 4 of Premise XXIV of the concession premises, approved by Decree-Law no. 448/99 of 4 of November, are thus amended.
Therefore:
Within the scope of the development of the legal regime established by Law no. 102/99 of 26 July and pursuant to points a) and c) of paragraph 1 of article 198 of the Constitution, the Government hereby decree the following:
Article 1
Scope
1 – The present statutory instrument transposes to the internal legal system Directive 2002/39/EC of the European Parliament and of the Council of 10 June 2002, amending Directive 97/67/EC with regard to the further opening to competition of Community postal services, amends the premises for the concession of the universal postal service, approved by Decree-Law no. 448/99 of 4 of November, and amends Decree-Law no. 150/2001 of 7 May that approves the regime for the access and exercise of the postal services provision activity in a competitive market.
2 – The present statutory instrument also amends Law no. 102/99 of 26 July, as to the regime of price formation for postal services comprising the universal service.
Article 2
Amendment to Law no. 102/99 of 26 July
Paragraph 2 of article 14 of Law no. 102/99 of 26 July is hereby amended to read as follows:
«Article 14
Price Regime
1 - …
2 – The rules for price formation for postal services comprising the universal service are subject to a convention to be established between the regulatory entity and the operator.
3 - …»
Article 3
Amendment to the premises for the concession of the universal postal service, approved by Decree-Law no. 448/99 of 4 of November
Premises I, II, VIII, XX, XXIV and XXXV of the premises for the concession of the universal postal service, approved by Decree-Law no. 448/99 of 4 of November are hereby amended to read as follows:
«Premise I
Definitions
1 - …
a) …
b) …
c) Postal regulatory entity or regulator – ICP – ANACOM;
d) …
e) …
f) …
g) ...
2 - …
Premise II
Object of the concession
1 - …
a) …
b) …
1) Postal services in respect of correspondence items, including direct mail, whether by accelerated delivery or not, the price of which is less than three times the public charge for an item of correspondence in the first weight step of the fastest standard category, provided the items weigh less than 100 grams;
2) …
3) …
4) …
5) …
c) …
1) …
2) …
3) …
4) …
2 - …
3 – As from 1 January 2006, the price and weight limits referred to in subpoint 1) of point b) of paragraph 1 shall be, respectively, of two-and-a-half times the public tariff for an item of correspondence in the first weight step of the fastest standard category and of 50 grams, also applicable to services referred to in subpoint 2) of point b) and in subpoints 1), 3) and 4) of point c) of paragraph 1.
4 – (Former paragraph 3.)
Premise VIII
General obligations upon the concessionaire
1 - …
a) …
b) …
c) …
d) …
e) …
f) …
g) …
h) …
i) …
j) …
l) …
m) …
n) To ensure the existence of user support services, namely by making available an appropriate information and assistance system and by drawing up transparent and easily accessible procedures for dealing with users' complaints, particularly in cases involving loss, theft, damage or non-compliance with service quality standards, establishing, where necessary, a system of reimbursement and compensation, including procedures for determining where responsibility lies in cases where more than one operator is involved;
o) …
2 - …
3 - …
Premise XX
Decisions subject to authorisation
1 - …
2 – It is incumbent upon the concessionaire:
a) ...
b) ...
3 – It is incumbent upon the concessionaire to notify the regulator of the decisions taken regarding the issues referred to in the preceding paragraph, and in case of decisions involving the closure or reduction of the opening hours of stations, the notification shall be made at the least two months prior to the date in which the decision shall take effect. In consequence, the regulator may prevent that decision from taking effect, provided that notice is given to the concessionaire.
4 – For the purposes of the preceding paragraph, the notice given to the concessionaire shall be accompanied by the corresponding reasons, namely regarding service needs, demand levels and the fulfilment of communication needs of the population and of economic activities.
Premise XXIV
Price system
1 - …
a) ...
b) ...
c) ...
d) ...
e) Prohibition of cross-subsidization to non-reserved services that integrate the universal service out of revenues from reserved services, except to the extent to which it is shown to be strictly necessary to fulfil specific universal service obligations imposed in the non- reserved area.
2 – Special tariffs applied by the universal service provider, for example for services for businesses, bulk mailers or consolidators of mail from different customers, shall:
a) Comply with the principles of transparency and non-discrimination, which also apply to the conditions associated to the special tariffs;
b) Take account of the avoided costs, as compared to the standard service covering the complete range of features offered for the reception, handling, transport, and delivery of individual postal items;
c) Apply equally, together with the associated conditions, both as between different third parties and as between third parties and providers supplying equivalent services;
d) Be also available to private customers who post under similar conditions.
3 – The rules for price formation of each of the services comprising the universal service shall be established in a convention to be approved in compliance with the principles listed in the preceding paragraphs, and which shall remain in force, unless otherwise provided for by the parties, for a three-year period, between ICP-ANACOM and the concessionaire.
4 – (Former paragraph 3.)
5 - In the event of any restriction, limitation to or loss of exclusive agreements, the prices already set up shall remain in force up to the approval of an agreement to be established between ICP – ANACOM and the concessionaire, comprising the rules for the formation of new prices, in compliance with the provisions of the preceding paragraphs.
6 - (Former paragraph 5.)
Premise XXXV
Concession buy-back
1 - ...
2 - ...
3 - Where the buy-back takes place, the concessionaire is entitled to a compensation corresponding to the value of the assets that, at the date of the buy-back, are engaged in the concession, as long as they are included in the respective development plan of the public postal network borne by the concessionaire, written down for the respective depreciation and re-assessment.
4 – In addition to the compensation provided for in the preceding paragraph, the concessionaire is entitled to an extraordinary compensation corresponding to the number of years that lack for the end of the concession, multiplied by the average of the net results of the five years prior to the buy-back notification.»
Article 4
Amendment to Decree-Law no. 150/2001 of 7 May
Articles 4, 7, 9, 13, 14, 15, 18 and 22 of Decree-Law no. 150/2001 of 7 May are hereby amended to read as follows:
«Article 4
Services subject to license
1 - ...
a) Postal services in respect of correspondence items, including direct mail, whether by accelerated delivery or not, the price of which is at least three times the public charge for an item of correspondence in the first weight step of the fastest standard category, or the weight of which is at least 100 grams and less than 2 kilograms;
b) ...
c) ...
d) ...
2 - ...
3 - As from 1 January 2006, the price and weight limits referred to in point a) of paragraph 1 shall be, respectively, of two-and-a-half times the public tariff for an item of correspondence in the first weight step of the fastest standard category and of 50 grams, also applicable to services referred to in point c) of paragraph 1.
Article 7
Requirements for license granting
Entities aiming for a license must comply with the following requirements:
a) ...
b) To be provided with technical and human resources for the compliance with the essential requirements provided for in paragraph 2 of article 18;
c) [Former point d).]
d) [Former point e).]
Article 9
License elements
...
a) ...
b) ...
c) ...
d) ...
e) The identification of postal services the provision of which is not permitted pursuant to the license regime.
Article 13
Requirements for the granting of authorization
1 - ...
2 - Entities aiming for an authorization must be provided with technical and human resources for the compliance with the essential requirements provided for in paragraph 2 of article 18.
Article 14
Granting of authorization
1 – Entities aiming at providing services subject to authorization shall submit a declaration to ICP-ANACOM, accompanied with the following particulars:
a) Supporting document of the requirements referred to in article 13;
b) Description of the service to be provided, namely identifying the geographical area of action, the postal network of support and the quality levels of the services to be provided;
c) Indication of the date set for the commencement of the activity.
2 - ...
3 - ...
4 – Upon the submission of the declaration, duly accompanied with the particulars required pursuant to paragraph 1 hereof, entities may start operating promptly, being incumbent upon ICP – ANACOM the issue of the authorization, within at the most 10 days following that submission.
Article 15
Authorization elements
1 - ...
2 – Authorized entities shall notify ICP – ANACOM of any changes regarding the elements referred to in points a) and c) of the preceding paragraph.
3 – (Former paragraph 2.)
Article 18
Obligations upon licensed and authorized entities
1 - ...
a) ...
b) To perform the activity according to and within the limits inherent in the respective qualifying title;
c) To be provided with technical and human resources for the compliance with the essential requirements;
d) ...
e) [Former point f).]
f) [Former point g).]
g) To ensure that transparent, simple and inexpensive procedures are drawn up for dealing with users' complaints, by providing a reasoned and timely reply thereto, particularly in cases involving loss, theft, damage or non-compliance with service quality standards, establishing, where necessary, a system of reimbursement and compensation, including procedures for determining where responsibility lies in cases where more than one operator is involved;
h) [Former point i).]
i) [Former point j).]
j) [Former point k).]
l) ...
2 - ...
3 - ...
Article 22
Breaches and fines
1 - ...
a) ...
b) ...
c) Non compliance by authorized entities with the notification duty provided for in paragraph 2 of article 15;
d) [Former point e).]
e) [Former point f).]
f) [Former point g).]
2 - ...
3 - ...»
Article 5
Regulations
It is incumbent upon ICP – ANACOM, pursuant to the respective Bylaws, to issue the regulations deemed necessary for the application of the regime provided for in the premises for the concession of the universal postal service, approved by Decree-Law no. 448/99 of 4 of November, and in Decree-Law no. 150/2001 of 7 May.
Article 6
Repeal
Article 16 of Decree-Law no. 150/2001 of 7 May is hereby repealed.
Article 7
Concession contract
The Minister for the Economy is hereby granted authorization, on behalf of and acting for the State, to amend the concession contract for the universal postal service, in accordance with the modifications made to the premises thereof.
Checked and approved in the Council of Ministers of 10 April 2003. – José Manuel Durão Barroso – António Manuel de Mendonça Martins da Cruz – Maria Celeste Ferreira Lopes Cardona – Carlos Manuel Tavares da Silva.
Promulgated on 26 May 2003.
Let it be published.
The President of the Republic, Jorge Sampaio.
Counter-signed on 28 May 2003.
The Prime Minister, José Manuel Durão Barroso.
