Law no. 99/2009, of 4 September

Official Portuguese version published in D.R. number 172 (Serie I) of 4 September 2009

Assembleia da República (Assembly of the Republic)

Law


(This is not an official translation of the law)

Approves the framework scheme of administrative offences within the communications sector

The Assembly of the Republic, pursuant to article 161 c) of the Constitution, hereby decrees as follows:

CHAPTER I

Administrative offences committed within the communications sector

Article 1
Subject-matter and scope

1 - This law governs the scheme applicable to administrative offences committed within the communications sector.

2 - An administrative offence committed within the communications sector, for the purposes hereof, shall be deemed to mean any unlawful and reprehensible act which constitutes the actus reus of an infringement of legal and regulatory provisions within the communications sector, and which is liable to a fine, the processing and application of which are incumbent on ICP-ANACOM.

3 - For the purposes of the preceding paragraphs, the following statutory instruments are deemed to integrate the communications sector:

a) Decree-Law no. 176/88, of 18 May;

b) Decree-Law no. 179/97, of 24 July;

c) Decree-Law no. 272/98, of 2 September;

d) Decree-Law no. 177/99, of 21 May;

e) Decree-Law no. 47/2000, of 24 March;

f) Decree-Law no. 151-A/2000, of 20 July;

g) Decree-Law no. 192/2000, of 18 August;

h) Decree-Law no. 150/2001, of 7 May;

i) Decree-Law no. 11/2003, of 18 January;

j) Law no. 5/2004, of 10 February;

l) Decree-Law no. 53/2009, of 2 March;

m) Decree-Law no. 123/2009, of 21 May;

n) Regulatory Decree no. 8/90, of 6 April.

4 - Provisions herein shall not apply to infringements provided for in Law number 41/2004, of 18 August, in Decree-Law no. 7/2004, of 7 January, and in Decree-Law no. 156/2005, of 15 September, without prejudice to the powers conferred therein to ICP-ANACOM.

Article 2
Territorial field of application

This law applies to facts performed in Portuguese territory, regardless of the nationality of the agent, save as otherwise provided in international treaties or conventions.

Article 3
Liability for administrative offences

1 - Natural or legal persons, even if improperly set up, as well as unincorporated associations, may be liable for infringements referred to herein.

2 - Legal persons referred to in the preceding paragraph shall be liable for infringements committed in acts made in its name or on its behalf by members of the company’s responsible bodies, directors and managers, or by its staff in the performance of their duties, as well as for infringements committed by its agents and representatives, for acts made in its name or on its behalf.

3 - Liability of legal persons shall be precluded where the agent acts against the legal person's explicit orders or instructions.

4 - Invalid or ineffective acts connecting the agent to the legal person shall not prevent the application of article 2 hereof.

Article 4
Liability to prosecution for attempt and negligence

Any infringement in its attempted or negligent form shall be punishable, the maximum and minimum limits of the respective fine being reduced by half.

Article 5
Determination of the applicable penalty

1 - The level of the fine and the application of additional sanctions shall be determined according to the concrete unlawfulness of the act, the fault on the part of the agent, the benefits that result from committing the offence and prevention requirements, as well as to the nature, either natural or legal, of the agent.

2 - As regards the concrete unlawfulness of the act and the fault on the part of legal persons or related entities, the following circumstances, among others, must be taken into consideration:

a) Danger or damage sustained;

b) Occasional or repeated nature of the offence;

c) Existence of concealment actions hindering the discovery of the infringement;

d) Existence of acts committed by the agent, on its own initiative, to repair damages or to counter the danger resulting from the offence;

3 - As regards the concrete unlawfulness of the act and the fault on the part of natural persons, the following circumstances, in addition to those in the preceding paragraph, must be taken into consideration:

a) Intention of obtaining an unlawful advantage for itself or others or of causing damages;

b) Special duty not to commit the offence.

4 - The applicable penalty shall also be determined according to the economic situation and conduct of the agent.

CHAPTER II

Fines and additional sanctions

SECTION I
Fines

Article 6
Classification of offences

For the purpose of determining the applicable fine, and taking into consideration the relevance of prejudiced interests, administrative offences shall be distinguished between minor, serious and very serious.

Article 7
Amount of fines

1 - To each degree of seriousness of offences corresponds a fine, the maximum and minimum limits of which vary according to whether offences were committed by natural or legal persons, and in this case, to the dimension of the latter.

2 - Minor offences shall be are punishable by the following fines:

a) If committed by a natural person, minimum fine of (Euro) 50 and maximum fine of (Euro) 2500;

b) If committed by a micro enterprise, minimum fine of (Euro) 100 and maximum fine of (Euro) 5000;

c) If committed by a small enterprise, minimum fine of (Euro) 250 and maximum fine of (Euro) 10 000;

d) If committed by a medium-sized enterprise, minimum fine of (Euro) 500 and maximum fine of (Euro) 20 000;

e) If committed by a large enterprise, minimum fine of (Euro) 1000 and maximum fine of (Euro) 100 000.

3 - Serious offences shall be are punishable by the following fines:

a) If committed by a natural person, minimum fine of EUR 100 and maximum fine of EUR 7500;

b) If committed by a micro enterprise, minimum fine of EUR 200 and maximum fine of EUR 10 000;

c) If committed by a small enterprise, minimum fine of EUR 500 and maximum fine of EUR 25 000;

d) If committed by a medium-sized enterprise, minimum fine of EUR 1000 and maximum fine of EUR 50 000;

e) If committed by a large enterprise, minimum fine of EUR 2500 and maximum fine of EUR 1 000 000.

4 - Very serious offences shall be are punishable by the following fines:

a) If committed by a natural person, minimum fine of (Euro) 250 and maximum fine of (Euro) 20 000;

b) If committed by a micro enterprise, minimum fine of (Euro) 500 and maximum fine of (Euro) 50 000;

c) If committed by a small enterprise, minimum fine of (Euro) 1250 and maximum fine of (Euro) 150 000;

d) If committed by a medium-sized enterprise, minimum fine of (Euro) 2500 and maximum fine of (Euro) 450 000;

e) If committed by a large enterprise, minimum fine of (Euro) 5000 and maximum fine of (Euro) 5 000 000.

5 - Legislative acts that define infringements within the meaning hereof may determine penalty bands for each of the types of offences provided for in the preceding paragraphs, with higher minimum limits and lower maximum limits that those laid down, taking into consideration the legal interests at stake.

6 – For the purposes hereof, the following definitions shall apply:

a) ''Microenterprise'' shall mean an enterprise which has fewer than 10 employees;

b) ''Small enterprise'' shall mean an enterprise which has fewer than 50 employees, an annual turnover not exceeding EUR 7 million or an annual balance-sheet total not exceeding EUR 5 million and that conforms to the criterion of independence, according to which 20% or more of the capital or the voting rights are not owned, directly or indirectly, by a large enterprise, or jointly by several medium-size enterprises;

c) ''Medium-sized enterprise'' shall mean an enterprise which has fewer than 250 employees, an annual turnover not exceeding EUR 40 million, or an annual balance-sheet total not exceeding EUR 27 million and that conforms to the criterion of independence, as referred to in the preceding point;

d) ''Large enterprise'' shall mean an enterprise which has more than 250 employees, an annual turnover that exceeds EUR 40 million, or an annual balance-sheet total that exceeds EUR 27 million.

7 - The threshold of the criterion of independence may be exceeded in the following cases:

a) If the enterprise is held by public investment corporations, venture capital companies or institutional investors, provided no control is exercised either individually or jointly;

b) If the capital is spread in such a way that it is not possible to determine by whom it is held and if the enterprise declares that it can legitimately presume that 20 % or more of the capital or of the voting rights are not owned, directly or indirectly, by a large enterprise, or jointly by several medium-size enterprises.

8 - For the purposes of paragraph 6, the average number of employees working for the enterprise in the year preceding that of the accusation shall be considered.

9 - For the purposes of paragraphs 6 and 7, the size of the enterprise shall be defined on the basis of elements known by the date of the accusation, without prejudice to the possibility of new factual elements being considered, on the initiative of the court or of the defendant, leading to the alteration of the initial classification.

10 - In case it is not possible to determine the size of the enterprise for the purpose of the application of the preceding paragraphs, the penalty band provided for medium-size enterprises shall be applied, without prejudice to the possibility of new factual elements being considered, on the initiative of the defendant, leading to the alteration of that classification.

11 - For the purposes of the preceding paragraphs:

a) Private legal persons which are not companies, as well as parishes, shall be regarded as microenterprises;

b) Municipalities and other public legal persons which are not companies and which are not covered by the preceding point, shall be regarded as small enterprises.

Article 8
Discharging the unfulfilled duty

1 - Where the offence consists in the failure to fulfil a duty, the payment of the fine and the performance of additional penalties shall not exempt the offender from discharging that duty, if still possible.

2 - In the situation referred to in the preceding paragraph, the offender may be subject to an injunction providing for the discharge of the duty under consideration, on pain of a penalty payment.

3 - For the purposes of the preceding paragraph, penalty payment shall be deemed to mean the imposition on the agent of an order to pay money per day of delay in complying with the obligation.

4 - The penalty payment shall be set based on criteria of reasonableness and proportionality, in the light of the offender's turnover in the preceding calendar year and the injurious impact on the market and users of the failure to fulfil the duty, subject to a daily amount between EUR 2000 and EUR 100 000.

5 - Amounts set may increase per day of delay, subject to an upper limit of EUR 3 000 000 and for a maximum period of 30 days.

Article 9
Recurrence

1 - Whoever commits an infringement after having been convicted, by definitive decision or judgment that acquired the force of res judicata, of an offence of the same type, shall be punished for the repeated infringement, where the legal limitation period of the first infringement has not expired.

2 - In a situation of recurrence, the minimum and maximum limits of the fine shall be increased by one third of the respective value, and the amount of this fine shall not be lower than that applied for the former infraction, save where the minimum and maximum limits of the fine applied for the previous offence are higher than those for the repeated one.

3 - In a situation of recurrence, the maximum limits of the duration of the additional sanction provided for in paragraph 1 a), b) and c) of article 11 shall be doubled.

Article 10
Register

1 - For the purposes of the preceding article, ICP-ANACOM shall organize a register of all agents convicted, regardless of the offence, including all sanctions applied in administrative offence proceedings.

2 - All warnings given pursuant to article 15 shall also be registered.

3 - Records entered by ICP-ANACOM may be integrated and handled in software applications, under the law and in compliance with limits legally established in the scope of protection of personal data.

SECTION II
Additional penalties

Article 11
Additional penalties

1 - Where justified by the seriousness of the infringement and the fault on the part of the agent, ICP-ANACOM is entitled to apply, in addition to the appropriate fines, the following additional penalties:

a) Forfeit to the State of illegal objects, equipment and devices, including the proceeds of offences obtained by the infringer;

b) Prohibition to exercise the respective activity, up to a maximum of two years;

c) Deprivation of the right to participate in public tenders or auctions, up to a maximum of two years;

d) Suspension of authorizations, licenses or other permits up to a maximum of two years.

2 - Additional penalties provided for in points b), c) and d) of the preceding paragraph shall only apply where a serious or very serious infringement has been committed.

3 - Failure to observe an additional penalty constitutes a crime of qualified disobedience.

Article 12
Forfeit to the State

1 - Without prejudice to point a) of the preceding article, illegal objects, equipment and devices which have been seized as an interim and provisional measure, and have not been claimed within 60 days after notification to interested parties, shall be deemed to be forfeited to the State.

2 - Illegal objects, equipment and devices forfeited to the State shall revert to ICP-ANACOM, which shall dispose of them in any manner deemed appropriate.

CHAPTER III

Proceedings

SECTION I
Competence

Article 13
Enforcement

1 - Without prejudice to powers granted by law to other bodies, it is incumbent on ICP-ANACOM to enforce rules on the communications sector, through its enforcement agents or representatives duly accredited by the Management Board.

2 - In the performance of its duties, ICP-ANACOM shall be supported by police authorities and other authorities or public services whose collaboration is requested.

Article 14
Application

1 - It is incumbent on the Management Board of ICP-ANACOM to apply admonitions, fines and additional penalties, as well as to close administrative offence proceedings.

2 - Powers provided for in the preceding paragraph may be delegated and also sub-delegated.

SECTION II
Processing

Article 15
Warning

1 - Where a less serious infringement is at stake, consisting of a remediable deficiency which caused no significant damage, ICP- ANACOM is entitled to warn the offender, through staff invested with powers for the purpose, indicating the infringement committed, the recommended measures to remedy the situation and the deadline for compliance.

2 - ICP-ANACOM shall promptly notify or deliver the warning to the infringer so that the deficiency may be remedied, informing that failure to comply with recommended measures determines the opening of administrative offence proceedings and influences the determination of the level of penalty.

3 - Where compliance with the rule may be evidenced by means of documents, the infringer shall submit such documents to ICP- ANACOM, within the deadline the Authority sets out.

4 - Where the infringement does not fall within the preceding paragraph, ICP-ANACOM may order the infringer to communicate under oath, within the set out deadline, that all measures required to comply with the rule were taken.

5 - Proceedings shall be closed after the deficiency has been remedied.

6 - Failure to observe recommended measures shall be weighted by ICP-ANACOM or by the court, in case of a challenge in court, namely for the purpose of deciding whether a faulty conduct has taken place.

Article 16
Records of evidence, offence reports and diligence reports

1 - Without prejudice to the possibility provided for in the preceding article, any of the bodies referred to in article 13 shall draw up a record of evidence where it finds or observes, personally and directly, even if not immediately or using the means referred in paragraph 2 of article 17, that an administrative offence in the scope of the communications sector has been committed.

2 - As regards administrative offences which have not been personally observed, any of the bodies referred to in article 13 shall draw up an offence report attaching any evidence available to it, and whenever possible indicating witnesses, up to three per each fact.

3 - Any of the bodies referred to in article 13 shall draw up a diligence report when collecting evidence in the performance of its duties.

Article 17
Evidentiary value of records of evidence and diligence reports

1 - Records of evidence and diligence reports drawn up in the scope of monitoring actions shall be relied on as regards facts witnessed by their authors, insofar as the veracity of their contents is not called into question, for duly justified reasons.

2 - The preceding paragraph applies to evidence registered and identified by means of screened or calibrated devices or instruments, in compliance with international standards, by accredited laboratories, or certified by bodies empowered for the purpose.

Article 18
Elements of records of evidence, offence reports and diligence reports

1 - Records of evidence and offence reports referred to in article 16 shall include the following elements:

a) Facts which constitute the infringement;

b) Date, time, place and circumstances under which the infringement was committed;

c) All elements that may be checked as regards the identification and address of infringers;

d) Name, category and signature of the author of the record of evidence or offence report;

e) Signature of the offender, in case of a record of evidence;

f) Identification and address of witnesses, in case of an offence report;

g) Signature of the agent who drew it up, through a brand, digital signature or other duly authorized means of reproduction.

2 - For the purposes of point c) of the preceding paragraph, the offender shall be warned that the supplied address will be used for notification purposes and for this purpose it must communicate to ICP-ANACOM any change of address.

3 - Where the infringement has been committed by a legal person or equivalent entity, the identification, address and workplace of the respective members of the company's responsible bodies, managers, directors and other legal representatives shall be identified whenever possible.

4 - The preceding paragraphs shall apply to diligence reports where appropriate.

SECTION III
Procedure

Article 19
Responsibility for investigation

1 - The investigation of administrative offence proceedings shall be incumbent on ICP-ANACOM, which may request, where appropriate, the collaboration of police authorities, as well as that of other authorities or public services.

Article 20
Investigation secrecy

1 - Provided none of the exceptions in this regime applies, administrative offence proceedings shall be public, and provisions of criminal proceedings governing investigation secrecy, duly adapted, shall apply thereto.

2 - The administrative authority is entitled to make administrative offence proceedings subject to the investigation secrecy regime, on its own initiative or at the request of the defendant or of the injured party, where this is necessary for the interest of the investigation, or where it deems that the publicity will harm the rights of the parties or of procedural participants.

3 - Where proceedings are made subject to investigation secrecy, pursuant to the preceding paragraph, the Management Board of ICP-ANACOM is entitled to determine its waiver, on its own initiative or on application by the defendant or the injured party, at any stage of the proceedings.

4 - Decisions on the investigation secrecy may be challenged in court, pursuant to article 32.

5 - Where proceedings are made subject to investigation secrecy, the regime shall remain in force until a final decision is issued, except for the purpose of access thereto by the defendant, in which case it remains in force until the defendant is notified of the accusation.

Article 21
Simplified procedure

1 - Where a minor or serious infringement is at stake, ICP-ANACOM, prior to formally accusing the defendant, may notify the latter of the decision to issue a warning or apply thereto a fine the specific level of which does not exceed three times the minimum limit of the penalty band provided in abstract for the infringement.

2 - The defendant may also be ordered to adopt the behaviour legally required, within a deadline established for the purpose.

3 - The decision in paragraph 1 shall be in written form and include the identification of the defendant, a summary description of facts alleged, indication of legal provisions which have been breached, the penalty applied in concrete and, where appropriate, the determination provided for in the preceding paragraph.

4 - The defendant shall be notified of the decision and informed that it is entitled to reject it, within a five-day time limit, and also of the consequence provided for in the following paragraphs.

5 - The rejection or silence of the defendant within the time limit, the application for any additional step, the failure to comply with paragraph 2 or to pay the fine within 10 days from the notification referred to in the preceding paragraph, shall determine the prompt continuation of administrative offence proceedings, the decision referred to in paragraph 1 being null and void.

6 - Where the defendant complies with paragraph 2 and pays the fine applied, the decision shall become definitive and shall be deemed as a conviction, and the fact shall not be re-examined as an offence.

7 - Appeals may not be lodged against decisions issued in the scope of a simplified procedure.

8 - Legal costs shall not be due in the scope of a simplified procedure.

Article 22
Ordinary procedure

The offender shall be notified of the accusation so that, within a time limit between 10 to 20 working days, it may reply in writing, attach the available evidentiary documents, propose witnesses, up to three per each infringement, and request the measures of inquiry deemed to be necessary.

Article 23
Voluntary payment of fine

1 - Where minor or serious infringements are at stake, as well as very serious infringements committed with negligence, the defendant is entitled to voluntarily pay the fine within the deadline referred to in the preceding article.

2 - The fine shall be settled by its minimum value, taking into account the augmentation of the penalty in case of recurrence, according to article 9.

3 - The defendant is also entitled to voluntarily pay the fine after the deadline referred to in paragraph 1 has expired, until a final decision on the proceedings has been reached, however the payment of due legal costs shall also be required.

4 - Where the infringer disrespects measures recommended in the warning record, the fine shall be settled by the minimum value of the degree corresponding to the offence committed intentionally.

5 - Where the situation of the infringement may still be corrected, the voluntary payment of the fine depends on this settlement.

6 - The voluntary payment of the fine closes proceedings, except where an additional penalty may still be applied to the offence, in which case proceedings continue relatively to the application of such penalty.

7 - Proceedings which are closed pursuant to the preceding paragraph shall be reopened where defence is raised within the legal deadline for the purpose.

8 - For the purposes of paragraph 1 of article 9, the voluntary payment of the fine shall be deemed as a conviction.

Article 24
Witnesses

1 - Witnesses and experts indicated by the defendant for defence purposes must be presented on the date, time and place established for the hearing of witnesses.

2 - Experts from official establishments, laboratories or services, as well as police officers, are excluded from the provision in the preceding paragraph, even if they have been proposed by the defendant, and shall be notified by ICP-ANACOM.

3 - A cassette or video recorder may be used during the hearing of witnesses referred to in paragraph 1, being mentioned the start and end of the hearing.

4 - Witnesses may be heard, at their request and where justified, through videoconference in ICP–ANACOM's delegations, and the hearing record shall include the start and end of each testimony's recording.

5 - Testimonies, information or clarifications collected per recording or videoconference shall not be put in writing nor shall they be transcribed for appeal purposes, a copy of recordings being attached to the proceedings file.

Article 25
Postponement of hearing of witnesses

1 - The hearing of experts and witnesses may only be postponed once, where non-appearance at the first scheduled hearing is deemed to be justified.

2 - Non-appearance is deemed to be justified where it is due to a fact for which the absentee is not responsible, which prevents him/her from appearing at the hearing.

3 - The inability to appear shall be notified five days in advance, if it is foreseeable, and otherwise up to the 3rd day following the scheduled date for the act, stating the reason for not appearing as well as the foreseeable duration of the impediment, on pain of failure to justify the absence.

4 - Evidence of the inability to appear shall be submitted with the communications referred to in the preceding paragraph.

Article 26
Absence of the defendant

Non-appearance at a scheduled hearing on the part of the defendant shall not prevent the administrative offence proceedings from continuing, except where the absence is deemed justified pursuant to the preceding article, in which case the regime provided for therein shall apply.

Article 27
Notifications

1 - Notifications shall be sent by registered letter to the address supplied pursuant to article 18 or, in the absence thereof, to the address communicated for that purpose to ICP-ANACOM.

2 - Where, for any reason, letters provided for in the preceding paragraph are returned to the sender, notifications shall be resent to the address referred to in the preceding paragraph by ordinary mail.

3 - In the case provided for in the preceding paragraph, the investigator shall mention in the proceedings file the date on which the letter was sent and the address where it was sent to, being considered that the notification was made on the 5th day after the indicated date, fact which shall be stated on the notification act.

4 - Notifications may also be sent by fax.

5 - Personal notifications are also accepted, according to the Criminal Procedure Code.

6 - Where an infringer is found to have committed several offences, a single notification may be sent.

Article 28
Form of procedural acts

1 - Procedural acts may be presented in computer-readable form and bear a qualified electronic signature.

2 - Procedural acts and documents signed pursuant to the preceding paragraph shall replace and dispense with a hand-written signature, for all purposes, in the paper-based file.

3 - For the purposes of the preceding paragraphs, only a qualified electronic signature which complies with legal and regulatory requirements of the ''Sistema de Certificação Electrónica do Estado'' (State Electronic Certification System) is accepted.

Article 29
Interim measures

1 - Where appropriate and necessary for the preservation of evidence or safeguard of interests recognised by law in applicable legal regimes, ICP-ANACOM is empowered to determine, setting out the respective period of validity, one of the following measures:

a) Precautionary suspension of any of the activities or functions performed by the defendant;

b) Placing specific conditions on the performance of activities or functions, such as compliance with information duties.

2 - Measures provided for in the preceding paragraph shall not exceed a period of one year.

3 - The determination referred to in paragraph 1 shall run, as appropriate, until:

a) The end of the period laid down;

b) ANACOM's or the court’s decision to repeal it;

c) A final decision is issued not including the application of additional penalties provided for in paragraph 1 b) and d) of article 11;

d) Compliance with additional penalties applied pursuant to paragraph 1 b) and d) of article 11.

4 - Where the full suspension of activities or functions performed by the defendant is determined, and in the scope of the same proceedings he/she is convicted of an additional penalty that consists of the prohibition or disqualification from performing those activities or functions, the duration of the additional penalty be reduced by the full length in time of the precautionary suspension.

5 - The determination ordering the precautionary suspension may be published by ICP-ANACOM, where appropriate and necessary for the proper sector regulation.

Article 30
Precautionary seizure

1 - ICP-ANACOM is empowered to determine, pursuant to the regime of breaches and respective procedure, approved by Decree-Law number 433/82, of 27 October, the precautionary seizure of the following specific goods and documents:

a) Equipment;

b) Licences, certificates, authorizations approvals, permits, replacement documents and other similar documents.

2 - Where equipment is seized, its owner or his/her representative may be appointed as trustee, with the obligation not to use the seized goods, on pain of crime of qualified disobedience.

SECTION IV
Penalties

Article 31
Penalty suspension

1 - ICP-ANACOM is entitled to suspend the application of penalties where, on the basis of the conduct of the agent, previous or subsequent to the infringement, and the circumstances of the latter, it concludes that simple reproach of the act and threat of sanction achieve in an appropriate and sufficient manner the objectives of the penalty.

2 - The suspension may be subject to compliance with specific obligations, namely those deemed to be necessary to correct any illegal situations.

3 - The time of suspension shall be set between two and five years, starting from the date on which expires the deadline to challenge the conviction in court.

4 - The suspension does not cover costs.

5 - Upon expiry of the period of suspension, where the defendant has not committed any administrative offence in the communications sector and has not infringed the imposed obligations, the conviction shall be deemed null and void; otherwise the applied penalties shall be enforced.

Article 32
Challenge of penalties

1 - Without prejudice to the following paragraph, where a decision taken by ICP-ANACOM in the scope of administrative offence proceedings is challenged in court, the Authority shall refer the case to the Public Prosecution Office, pursuant to the regime of breaches and respective procedure, approved by Decree-Law number 433/82, of 27 October, within 20 working days.

2 - Decisions, orders or other measures adopted by ICP-ANACOM in the scope of administrative offence proceedings resulting from the application of the Electronic Communications Law, approved by Law number 5/2004, of 10 February, and of Decree-Law number 123/2009, of 21 May, may be brought before the commerce courts, pursuant to paragraphs 1 to 5 and 13 of article 13 of the Electronic Communications Law, approved by Law number 5/2004, of 10 February.

3 - Actions brought against any decisions issued by ICP–ANACOM that, in the scope of administrative offence proceedings, determine the application of fines or of additional sanctions, or concern investigation secrecy, shall have suspensive effect.

4 - Actions brought against any other decisions, orders or other measures, including decisions to apply penalty payments, adopted in the scope of administrative offence proceedings initiated by ICP–ANACOM, shall have a merely devolutive effect.

CHAPTER IV
Final Provisions

Article 33
Use of the revenues from fines

Revenues from fines and penalty payments shall revert to the State at 60% and to ICP-ANACOM at 40%.

Article 34
Update of fines

Minimum and maximum amounts of fines referred to in article 7 shall be updated every three years, starting in January 2012, on the basis of a rate of increase of the consumer price index, excluding housing, for Mainland Portugal, published by the Instituto Nacional de Estatística (National Statistics Institute), in the three previous years.

Article 35
Costs

1 - ANACOM's decisions on the proceedings shall establish the amount of costs.

2 - Costs shall be borne by the defendant and other persons jointly responsible, where a fine or additional penalty is applied.

3 - Costs are aimed to cover expenses of proceedings, namely with notifications and communications, audio-visual means and copies or certificates of the proceedings file.

4 - Reimbursement for expenses referred to in the preceding paragraph shall be calculated on the basis of 0.5 UC for the first 50 sheets or part of the file, and 1/10 UC per subsequent set of 25 sheets or part of the file, without prejudice to the following paragraph.

5 - In the case of proceedings on administrative offences provided for in the Electronic Communications Law, approved by Law number 5/2004, of 10 February, and in Decree-Law number 123/2009, of 21 May, values indicated in the preceding paragraph shall be doubled.

6 - Where copies or certificates of the file or of parts thereof are submitted to the defendant at the latter’s request, to the value referred in the preceding paragraph shall be added an amount calculated pursuant thereto.

7 - Costs revert to ICP-ANACOM.

Article 36
Subsidiary rules

To administrative offences provided for herein, in all matters which have not been expressly prescribed, shall apply the provisions of the regime of breaches and respective procedure, approved by Decree-Law number 433/82, of 27 October.

Article 37
Taking of effects

Provisions herein on fines and respective values shall only apply as from the entry into force of the legal act that amends the laws in force, classifies the defined administrative offences and adapts values of fines according to paragraphs 1 to 5 of article 7 hereof.

Article 38
Entry into force

This law shall enter into force 30 days following its publication.

Approved in 23 July 2009.
The President of the Assembly of the Republic, Jaime Gama.
Promulgated on 26 August 2009.
Let it be published.

The President of the Republic, ANÍBAL CAVACO SILVA.
Counter-signed on 26 August 2009.
The Prime Minister, José Sócrates Carvalho Pinto de Sousa.