Ministério das Obras Públicas, Transportes e Comunicações (Ministery for Public Works, Transports and Communications)
Decree-Law
(This is not an official translation of the law)
The efficiency and quality of public institution action require that the opportunities offered by the Information Society be fully exploited, namely in the field of justice and administrative activity, where faster responses, in addition to meeting a general public wish, induce productivity gains.
In the framework of initiatives launched by the current Government, the Technological Plan being particularly important, it is urgent to promote the reinforcement of the rapid pace of the State’s and company action, able to promote the reduction of costs and a greater administrative effectiveness.
In fact, the requirements of the present and the need to accelerate the operation of the Administration and courts impose upon the Government the urge to adopt a set of measures that introduce the electronic communication as the preferred route for communication between public bodies, on the one hand, and between citizens and companies, on the other. A reality that has already been embraced in Europe must be made clear among us: the traditional concept of postal services is undergoing a radical change, as other ways of communication, such as the area of "electronic substitution", complement today the postal services field.
The Community legislation enables the State, even outside price and weight limits which result currently from the law, to decide on the best way to ensure the quality and affordable provision of registered mail services used in the course of judicial or administrative procedures, an area where the general mandatory values the guarantee of which is incumbent upon the State impose strict requirements this legislation safeguards to the strictly necessary extent.
This Decree-Law thus aims to amend the bases of concession of the universal postal service and to provide for the assignment to the concessionaire of a new public service, the electronic mailbox, with a legal value in the field of the communications between the State, including courts, services and bodies of the State's direct, indirect and autonomous administration and independent administrative bodies, on the one hand, and citizens and companies on the other, namely in the field of administrative procedures and judicial procedures, reserving to and imposing on the concessionaire the design, construction, implementation and application of the system so that the targets and patterns of the public service under consideration are ensured.
Although this new public service is mainly about the electronic handling and delivery of communications, it is clear that it is related in complementary and subsidiary terms with the postal item delivery service, given that, in case of failure of the electronic delivery, in specific circumstances, the communication under consideration is immediately forwarded to the postal item delivery service.
The fact that the postal delivery service of items of correspondence of a given weight and price is currently a reserved service confers thus upon the CTT an irreplaceable nature as regards the operation of the new electronic mailbox public service.
The establishment of the electronic mailbox service does not have any financial impact, either present or future, on the State.
The opportunity is also taken to modernise the contents of the bases of concession of the universal postal service, thus enabling, while complying with the interests of the State, with the rights and obligations of the concessionaire, with the economic balance of the contract and with consumer interest, the amendment of the concession contract in order to adjust it to the current postal sector regulatory environment, conferring upon it the degree of flexibility required for the exercise of the concessionaire activity, in an increasingly dynamic and competitive sector which is under a liberalization process, anticipating the full sector liberalization in 2009.
The ICP-Autoridade Nacional de Comunicações (ICP-National Communications Authority) and the Instituto do Consumidor (Consumer Institute) were optionally heard.
The hearing of the Comissão Nacional de Protecção de Dados (National Commission for Data Protection) and of the Conselho Nacional do Consumo (National Consumer Council) was promoted.
Therefore:
Pursuant to point a) of paragraph 1 of article 198 of the Constitution, the Government hereby decrees the following:
Article 1
Subject-Matter
This Decree-Law amends the bases of the concession of the universal postal service, approved by Decree-Law no. 448/99, of 4 November, as amended by Decree-Law no. 116/2003, of 12 June, and establishes the electronic mailbox public service.
Article 2
Regulatory authority
All references to ICP - Instituto das Comunicações de Portugal are deemed to be made to ICP - Autoridade Nacional de Comunicações, hereinafter referred to as ICP-ANACOM.
Article 3
Amendment to Decree-Law no. 448/99, of 4 November
Bases II, IV, V, VI, VII, VIII, XI, XVII, XIX, XX, XXI, XXII, XXIII, XXVII, XXIX, XXXI and XXXVI of the concession of the universal postal service, approved by Decree-Law no. 448/99, of 4 November, as amended by Decree-Law no. 116/2003, of 12 June, are hereby amended to read as follows:
«Base II
[…]
1 - …
a) …
b) …
1) Postal delivery service of items of correspondence, including addressed advertising whether by express delivery or not, the price of which is lower than two and a half times the public tariff for sending first weight step correspondence of the fastest standardised category, provided that the weight thereof does not exceed 50 g;
2) …
3) …
4) …
5) …
c) …
1) …
2) …
3) …
4) …
d) Provision of the non-reserved electronic mailbox public service, enabling adherents of this service to receive, by electronic means or by electronic and physical means, written communications or other communications from services and bodies of the State’s direct, indirect and autonomous administration, as well as from independent administrative bodies and courts, namely including legal summons and notification in the field of administrative procedures and judicial procedures, of any nature, bills, acknowledgments of receipt, postal items and direct mail.
2 - …
3 - (Former paragraph 4).
Base IV
[…]
1 - …
2 - The exclusive economic operation set out in the preceding paragraph shall remain in force as long as the concession grantor does not liberalize all the activity under the present concession, namely in compliance with Community law.
3 - Where exclusive rights are restricted, limited or lost, the concessionaire remains under the obligation to provide, in a universal service regime, the services referred to in article 6 of Law no. 102/99, of 26 July, ensuring all obligations under the provisions of the concession.
4 - …
Base V
[…]
1 - The concessionaire undertakes to establish, maintain and develop the public postal network to effectively suit the provision of the universal service, which comprises the set of human and material resources allocated to the provision of universal postal service, namely those to be found in the following operating units:
a) …
b) …
c) …
2 - The provision of the preceding paragraph is without prejudice to the transfer, replacement or encumbrance of real estate that integrates the public postal network, except for goods that are part of the public or private domain of the State, provided that this does not affect the provision of concessionary services.
3 - The concessionaire must provide ICP-ANACOM with substantiated information on determinations taken on the matters referred to in the preceding paragraph.
Base VI
[…]
1 - The concession contract comes into force on the date whereupon it is signed and is valid for a 30-year period, expiring on 1 September 2030.
2 - …
3 - …
4 - …
5 - …
6 - …
7 - …
Base VII
[…]
1 - …
2 - The provision of services and the pursue of activities referred to in the preceding paragraph shall not affect the compliance on the part of the concessionaire with its obligations under the concession contract, and where appropriate, such services and activities shall be governed by the respective qualifying documents and other applicable regulations.
Base VIII
[…]
1 - …
a) …
b) …
c) …
d) ...
e) ...
f) ...
g) To make available and submit to ICP-ANACOM such information and statistical data deemed necessary by the latter to monitor the activities pursued in the scope of the concession;
h) …
i) [Former point j).]
j) [Former point l).]
l) [Former point m).]
m) [Former point l).]
n) [Former point o).]
2 - …
3 - …
Base XI
[…]
1 - The specific obligations set out in paragraph 1 of the preceding base shall be incumbent upon the concessionaire as regards the provision of non-reserved services that integrate the universal service, referred to in point c) of paragraph 1 of base II.
2 - The specific obligations upon the concessionaire as regards the provision of the electronic mailbox referred to in point d) of paragraph 1 of base II, resulting from special legal requirements, shall be laid down by dedicated legislation.
Base XVII
[…]
1 - It is incumbent upon the Minister for Finance to monitor the concession as far as financial matters are concerned, and upon the Minister for Public Works, Transport and Communications as regards all other matters.
2 - …
3 - …
4 - Any determinations issued by ICP-ANACOM in respect of its monitoring powers shall be applied within the deadline set out for this purpose, and shall legally bind the concessionaire, without prejudice to an appeal to the court of arbitration as provided for in base XXXVIII.
5 - …
6 - …
Base XIX
[…]
1 - …
2 - For the purposes of the preceding paragraph, the concessionaire, in addition to and concurrently with the submission of the development plan referred to in base XVI, shall show the costs defrayed on providing the universal service and submit them to the approval of a commission including ICP-ANACOM and concessionaire representatives, which must deliver an opinion within a 30-day deadline.
3 - …
Base XX
[…]
1 - ...
2 - The authorisation referred to in the preceding paragraph shall be deemed to be tacitly granted where it is not rejected within 30 days from the date the application is submitted.
3 - (Former paragraph 2).
a) …
b) …
4 - The concessionaire must provide ICP-ANACOM with information concerning determinations taken on the matters referred in the preceding paragraph, and where determinations on the closure or reduction in working time of stations are under consideration, such determinations shall be justified, namely as far as service needs, demand levels and the fulfilment of communication needs of the population and of economic activities are concerned.
Base XXI
[…]
1 - …
2 - The authorisation of the concession grantor shall be deemed to be tacitly granted where it is not rejected within 60 days from the date the application is submitted.
3 - (Former paragraph 2).
Base XXII
[…]
1 - Without prejudice to the preceding base, the concessionaire is hereby authorised to subcontract third parties to perform tasks and or provide services that constitute or that relate to obligations undertaken by the concessionaire under the concession contract.
2 - Pursuant to the preceding paragraph, the concessionaire may, namely, subcontract the following services:
a) Postal items transport and distribution services;
b) Post office services and the sale of stamps;
c) Other third party services which complement or support the operation of the concession.
3 - In the event of an intervention of third parties in the concession activities, the concessionaire maintains its rights and remains directly and personally subject to the obligations resulting herefrom.
Base XXIII
[…]
1 - The concession contract represents sufficient basis for the provision of all concessionary services.
2 - (Former body of the article).
a) …
b) …
c) …
d) …
Base XXVII
[...]
1 - Without prejudice to the breaches which may give rise to the seizure or termination of concession under bases XXIX and XXXIV, the non-compliance on the part of the concessionaire with obligations arising from the concession or from determinations issued by the concession grantor under the terms of the law or of the concession contract, shall entail the application of contractual fines of an amount not exceeding (euro) 500000, to be updated every year according to the consumer price index, depending on the seriousness of the infringements committed and of the resulting damages, as well as the level of fault of the concessionaire.
2 - The application of fines shall be preceded of the hearing of the concessionaire pursuant to article 100 of the Code of Administrative Procedure.
3 - The fines referred to in the paragraph 1 shall apply by order of the member of the Government responsible for the communications area, upon a proposal made by ICP-ANACOM, and shall be notified to the concessionaire in writing, taking effect regardless of any other formality.
4 - Fines applied under this article shall revert to the State at 60% and to ICP-ANACOM at 40%.
5 - (Former paragraph 4).
Base XXIX
[…]
1 - …
2 - …
3 - Where a situation that may give rise to the concession seizure occurs under the terms provided for in the preceding paragraphs, the provisions of paragraphs 2 and 3 of base XXXIV, on the procedure for remedy of breaches, shall apply, duly adapted.
4 - (Former paragraph 3).
5 - (Former paragraph 4).
6 - (Former paragraph 5).
Base XXXI
[…]
1 - Without prejudice to point i), paragraph 1 of base VIII and to the preceding base, in the event of a war or crisis situation, the concession grantor reserves the right, through the member of the Government responsible for communications, to manage and operate the services comprised by the concession.
2 - …
Base XXXVI
Reversion of goods and rights on expiry of the concession
1 - Upon expiry of the concession, all goods and rights of the public and private domain of the State shall revert free of charge and automatically to the concession grantor. The concessionaire shall undertake to submit them in a perfect state of operating conditions, conservation and security, without prejudice to the normal wearing down resulting from their use, and free of any burdens or obligations, the concessionaire not being entitled, under any circumstances, to invoke the right to retention.
2 - In case the reversion of goods to the concession grantor is not carried out under the conditions provided for in the preceding paragraph, the concessionaire shall duly compensate the concession grantor, the compensation being calculated under the terms of the law.
3 - Following the expiry of the concession, the concession grantor shall promote an inspection of goods referred to in paragraph 1, in which a representative of the concessionaire shall take part, and which is intended to verify the state of conservation or maintenance of such goods, the respective report being drawn up thereafter. »
Article 4
Definition of the electronic mailbox public service
1 - The electronic mailbox public service is the service that enables adherents of this service to receive, by electronic means or by electronic and physical means, written communications or other communications from services and bodies of the State’s direct, indirect and autonomous administration, as well as from independent administrative bodies and courts, namely including legal summons and notification in the field of administrative procedures and judicial procedures, of any nature, bills, acknowledgments of receipt, postal items and direct mail.
2 - Both consignors and the respective customers may voluntarily join the electronic mailbox public service.
3 - For the purposes hereof, any natural person or legal entity may join the electronic mailbox public service.
4 - Each adherent may hold one electronic mailbox only, regardless of the service provider, for the purposes of the electronic reception of written communications or other communications from entities referred to in paragraph 1, however the same mailbox may be used for the reception of written communications or other communications from other entities.
5 - As regards procedures concerning the management of the public service that corresponds to the use of the electronic mailbox, the concessionaire is under a special obligation to comply with the duty of mail inviolability and secrecy, pursuant to article 3 of Law no. 102/99, of 26 July, and must not convey any personal data, namely those related to the electronic postal address of each customer, where the consent thereto has not been provided by the latter.
Article 5
Subsidiary legislation
1 - Law no. 102/99 of 26 July, and other complementary legislation shall apply to whatever has not been provided for herein.
2 - The application hereof is without prejudice to legal provisions on electronic signature, electronic commerce and protection of personal data.
Article 6
Concession contract
The Minister for Public Works, Transport and Communications is hereby authorized to conclude, on behalf of the State, the amendment of the concession contract of the universal postal service, according to the amendment to the respective bases.
Article 7
Entry into force
This Decree-Law enters into force on the day following that of its publication.
Checked and approved in the Council of Ministers of 13 June 2006. - José Sócrates Carvalho Pinto de Sousa - António Luís Santos Costa - Diogo Pinto de Freitas do Amaral - Fernando Teixeira dos Santos - Manuel Pedro Cunha da Silva Pereira - José Manuel Vieira Conde Rodrigues - António José de Castro Guerra - Mário Lino Soares Correia.
Promulgated on 25 May 2006.
Let it be published.
The President of the Republic, Aníbal Cavaco Silva.
Counter-signed on 25 May 2006.
The Prime Minister, José Sócrates Carvalho Pinto de Sousa.
