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The Second Amendment To Law No. 5/2004, Of 10 February (Electronic Communications Law), Establishing The Sanctions Regime Applicable To Infringements Of The Regulation (Ec) No 717/2007 Of The European Parliament And Of The Council Of 27 June, Report

Original Language Title: Procede à segunda alteração à Lei n.º 5/2004, de 10 de Fevereiro (Lei das Comunicações Electrónicas), estabelecendo o regime sancionatório aplicável às infracções ao Regulamento (CE) n.º 717/2007, do Parlamento Europeu e do Conselho, de 27 de Junho, relat

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Exhibition of Motives

It has been published, in the Official Journal of the European Communities, the Regulation (EC)

n 717/2007, of the European Parliament and of the Council of June 27, 2007 on the

itinerancy in the public mobile telephone networks of the Community and amending the Directive

n. 2002 /21/CE, of the European Parliament and of the Council of March 7 on a

common regulatory framework for electronic communications networks and services

(Framework Directive).

In order to allow the adoption of the scheme created in the face of the community framework in

vigour, the regulation in question has adopted a paragraph 5 to Article 1 of the Framework Directive, in the

terms of which the said Directive and the specific Directives-Directives No. 2002 /19/CE,

2002 /20/CE and No 2002 /22/CE all of the European Parliament and of the Council of 7 of

March-do not undermine any specific measures approved for the purposes of

regulation of international itinerancy in public mobile telephone networks of the


Regulation (EC) No 717/2007 is therefore a special regime in the face of

constant of the directives.

Community regulations have a general character, are compulsory in all of their

elements and directly applicable in all Member States (Article 249 of the

Treaty establishing the European Community). Do not lack by that of an act of


In the national plan the said directives-n. ºs 2002 /19/CE, 2002 /20/CE, 2002 /21/CE and

2002 /22/CE-and Directive No 2002 /77/CE of the Commission of September 16,

they are transposed by Law No. 5/2004 of February 10 (LCE), which establishes the

legal regime applicable to electronic communications networks and services and resources and

related services and defines the competencies of the national regulatory authority in this


In this context, the scheme laid down by Regulation (EC) No 717/2007 should, as well,

be understood as special in relation to the framework defined in LCE.

Without prejudice to the foregoing, in the present case, Art. 9 of the Regulation determines

that " the Member States define the sanctions regime applicable to the infringements of this Regulation and


take all necessary measures to ensure the respective application " .

Thus, aiming at its application in the national territory, it is now up to the

principle of legality, endow the prevailing legal planning of the sanctionatory regime

applicable to possible situations of non-compliance with the obligations imposed in the Regulation.

The penalties to be provided for must be effective, proportionate and dissuasive.

It is with that purpose that this proposed law is presented, as it has understood the

Government should the sanctionatory regime to institute be consistent with the LCE constant.

Relemble, still, that at that headquarters, it understood the Assembly of the Republic to raise the amount

maximum fines applicable by ICP-ANACOM in the framework of proceedings

counter-ordinance instituted by default of obligations imposed under the

legal regime applicable to electronic communications.

Similarly, in consistency with the statutory scheme in the LCE, it understands the Government to be of

provide for in this proposed law the possibility of the application of financial penalties

compulsory for cases of non-compliance with ICP-ANACOM decisions rendered in the

exercise of the powers that Regulation (EC) No 717/2007 assigns to it.

On the other hand, given the relationship of this matter with the one that constitutes the object of the

LCE, and notwithstanding the specialty relationship between both regimes, understood the

Government to introduce the article in the LCE itself, thus avoiding the legislative dispersion.


Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the

Assembly of the Republic the following proposal for a law:

Article 1.

Addition to Law No. 5/2004 of February 10

It is added to Law No 5/2004 of February 10, Article 121-A with the following wording:

" Article 121-A. para.

International itinerary in the public mobile telephone networks of the Community

1-Within the framework of Regulation (EC) No 717/2007 of the European Parliament and

of the Council of June 27, 2007 on the itinerancy in the networks

public mobile telephone calls from the Community, and amending the Directive


n. 2002 /21/CE, of the European Parliament and of the Council of March 7,

on a common regulatory framework for networks and services of

electronic communications, constitute counter-ordinations:

a) The violation of the obligations arising from paragraphs 1 and 2 of Article 3 of the

Article 4 and Article 6 of the said Regulation;

b) The violation of the obligation to inform it provided for in Article 7 (4) of the

said Regulation;

c) The violation of determinations issued by the Regulatory Authority

National (ARN) in the use of the powers conferred by the n. ºs 5 and 6 of the

Article 7 of the said Regulation.

2-The counter-ordinations provided for in the preceding paragraph are punishable by

coima from 5000 a to € 5000000.

3-Whenever the counterordinance results from the omission of the fulfillment of a

legal duty provided for in Regulation (EC) No 717/2007 of Parliament

European and Council, of June 27, 2007, or of an order

emanating from the NRA issued pursuant to paragraphs 5 and 6 of Article 7 of the

referred to as Regulation, the application of the sanctions or their compliance shall not

dispensing the offender from the performance of duty or order, if this

is still possible.

4-It shall apply to the penalties provided for in this Article the scheme

counter-ordinance provided for in Article 113 (4) and (5) in paragraphs 1 a to 4

of Article 115 and in Article 116 and 117 of this Law. "

Article 2.

Entry into force

This Law shall come into force on the day following that of its publication

Seen and approved in Council of Ministers of March 20, 2008

The Prime Minister

The Minister of the Presidency

The Minister of Parliamentary Affairs