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Proposed Law No. 264 /X

Exhibition of Motives

The Resolution of the Council of Ministers No. 120/2008 of July 30, came to define how

strategic priority for the Country in the electronic communications sector the promotion of the

investment in new-generation networks.

One of the main strategic guidelines set out by the Government in this was the

effective and non-discriminatory opening of all ducts and other infrastructure of

all entities that detain them, taking into account that a significant part of the costs

relative to the development of new-generation networks stems precisely from construction

and installation of this type of infrastructure. In this context, the Government finds itself to be taking

measures to ensure open access by the communications companies

electronic to a very broad set of infrastructures held by various

entities that, including operating in other sectors, are the holder of networks of

conducts of expressive importance. This access must be guaranteed under conditions of

transparency, non-discrimination and by means of remunerative conditions oriented towards the

costs, thus if achieving the objectives of competition and efficiency in development

of the networks.

The consecration of a comprehensive legislative framework applicable to construction, access

and installation of electronic communications networks and infrastructures has led the Government to

to establish rules in areas as diverse as the installation of infrastructure in

loadings, urbanisations and building sets (ITUR), of infrastructure in buildings

(ITED) and still to the creation of a centralised information system (SIC) from which it is conscrit

all information relating to infrastructure cadasters as well as on procedures

and applicable conditions, developed by the most diverse entities, taking into account

allow, with transparency and in such a way that it is intended to be effective and speedy, the

development of electronic communication networks.

For the above-mentioned legal framework to be substantiated in a powerful aid to the

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development of new-generation networks, in a technologically neutral environment and

competition, it becomes necessary that it be accompanied by effective mechanisms of

supervision and sanctioning, which guarantee to all parties concerned compliance

of the established rules.

Finally, it should be taken into account that municipalities are called upon to play, in this

moment of cycle turning, a very important role in the implantation of these networks, the

which are potentiators of the economic and social development of the respective

populations.

Thus:

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.

Subject

Is the Government authorized to:

a) Establish the open access regime to the infrastructure apt to the accommodation of

electronic communication networks held or managed by the companies of

electronic communications and by the entities holding infrastructure apt to the

accommodation of electronic communication networks that are used by those;

b) Amend the regime of impugning the acts of the ICP-ANACOM, provided for in the Law of the

Electronic Communications, approved by Law No 5/2004 of February 10.

Article 2.

Sense and extent of legislative authorization

1-As for the a) of the previous article, relating to the open access regime to the infra-

structures of electronic communications companies and entities that detain

infrastructure suitable for the accommodation of electronic communication networks that are

used by those, the meaning and extent of the legislative authorization are as follows:

a) Establishment of the obligation of electronic communications companies that

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offer electronic communication networks or services accessible to the public, and

of the entities holding infrastructure capable of the accommodation of networks of

electronic communications that are used by those making public a

intention of the realization of works that will make it viable for the construction or extension of

infrastructure suitable for the accommodation of electronic communication networks;

b) Establishment of the possibility of electronic communications companies that

offer electronic communication networks or services accessible to the public if

associate with the works referred to in the preceding paragraph, in which case they shall bear the

share of the cost of investment of the labor, corresponding to the differential of

investment costs that your membership comes to originate;

c) Establishment of the obligation of electronic communications companies that

offer electronic communication networks or services accessible to the public, and

of the entities holding infrastructure capable of the accommodation of networks of

electronic communications that are used by those, ensure to the rest

electronic communications companies that offer accessible networks or services

to the public access to the respective infrastructure apt to the accommodation of networks of

electronic communications in conditions of equality, transparency and not

discrimination and upon cost-oriented, remunerative conditions;

d) Prediction of the competence of ICP-ANACOM to decide, through decision

binding and with recourse to the dispute settlement procedure provided for in the article

10. of the Electronic Communications Act, passed by Law No. 5/2004, of 10 of

February, all questions regarding access to the infrastructure concerned;

e) Prediction that this scheme is without prejudice to the regime applicable to the networks and services of

electronic communications provided for in the Electronic Communications Act,

approved by Law No. 5/2004 of February 10, in particular the provisions

which, by virtue of it, are applicable to access to ducts, poles, other

facilities and sites held by the dealership of the public service of

telecommunications.

2-As for the b) of the previous article, concerning the amendment of the scheme for the imputation of the

acts of the ICP-ANACOM provided for in the Electronic Communications Act, approved by the

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Law No. 5/2004, of February 10, the meaning and extent of the legislative authorization are

the following:

a) Establish that of the ICP-ANACOM decisions to apply for sanctions

compulsory pecuniary money is up to the courts of commerce, when

practiced in the framework of a counterordinance process, and for the courts

administrative, in the remaining cases;

b) Establish that the decisions, dispatches or other measures adopted by the

ICP-ANACOM in the framework of counter-ordering processes are challenging for

the courts of commerce;

c) Establish that the decisions of the trade courts admitting appeal, in the

terms set out in the general regime of counter-ordinations, are challenging together with the

court of the competent relationship, which decides in the final instance;

d) To provide that of the judgments delivered by the court of the relationship under the terms of paragraph

previous, it is not up to ordinary resource.

Article 3.

Duration

The legislative authorization conferred by this Law shall have the duration of 90 days from the

date of its publication.

Article 4.

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 26, 2009

The Prime Minister

The Minister of the Presidency

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The Minister of Parliamentary Affairs

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With the aim of giving implementation to the strategic guidelines established by the Resolution

of the Council of Ministers n. 120/2008 of July 30 for development and

promotion of investment in new-generation networks, the Decree-Law No. ___/2009, of ___,

came to establish a set of obligations applicable to the State, to the autonomous regions, to the

local authorities, public companies, dealerships and, generically, the entities that

hold infrastructure that is integrated into public domain, with the aim of

guarantee access, by electronic communications companies, to the infrastructure apt to the

accommodation of electronic communication networks.

The desirable harnessing of synergies, the principle of efficiency and the optimization of the

resources justifies that, in the plan of access, the obligations set out in the Decree-Law

n ___/2009, of ___, do not stay circumscribed to the entities of the public area above

referenced.

It is in this context that the Act No. ___/2009, of ___, came to authorize the Government to legislate on

a set of subjects that will allow to extend to the communications companies

electronic and the entities that hold infrastructure apt to the accommodation of networks of

electronic communications that are used by the companies of the sector in the exercise of the

its activity, the access obligations conferred on the entities of the public area.

Thus:

In the use of the legislative authorization granted by the Article ___ of the ___ Act, of ___, the

Government decrees, under the terms of paragraph b) of Article 198 (1) of the Constitution, the

next:

Article 1.

Subject

The present decree-law:

a) Establishes an open access regime to the infrastructure apt to the accommodation of

electronic communication networks held or managed by the companies of

electronic communications and by the entities holding infrastructure apt to the

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accommodation of electronic communication networks that are used by those,

determining the application to these entities of the arrangements provided for in the Decree-Law

n. ___/2009, of ___;

b) Amends the scheme for the impugning of the acts of the ICP-ANACOM, provided for in the Act on

Electronic Communications, approved by Law No 5/2004 of February 10.

Article 2.

Scope

1-The rules laid down in Chapters II and III Decree-Law No ___/2009, of ___, directed at

entities referred to in Article 2 of the same decree-law, apply, with the necessary

adaptations, electronic communications companies, as well as entities that

hold infrastructure apt to the accommodation of electronic communications networks which

are used by those, save the provisions of paragraph 3.

2-The provisions of this decree-law shall be without prejudice to the regime applicable to networks and services

of electronic communications provided for in the Electronic Communications Act, approved

by Law No. 5/2004 of February 10, in particular the provisions that, by virtue of the

same, are applicable for access to ducts, poles, other facilities and places held by the

dealership of the public telecommunications service.

3-The dealership of the public telecommunications service does not apply for the scheme of

access to ducts, poles, other facilities and locations held by the planned dealership

in Chapter III of the Decree-Law No. ___/2009, of ___, continuing the one to be governed by the

Electronic Communications Act, adopted by Law No. 5/2004 of February 10.

Article 3.

Amendment to the Electronic Communications Act, adopted by Law No. 5/2004, of 10 of

February

Articles 13 and 116 of the Electronic Communications Act, passed by the Law

n ° 5/2004 of February 10, shall be replaced by the following:

" Article 13.

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[...]

1. Decisions, dispatches or other measures adopted by the NRA in the framework

of counterordinance processes arising from the application of the scheme

legal of electronic communications, are challenging together with the courts

of trade.

2. The remaining acts practiced by the NRA are challenging to the courts

administrative, under the applicable law, with intervention

compulsory of three experts, designated by each party and the third

by the court, for appreciation of the merit of the contested decision.

3. The challenge of the decisions rendered by the NRA which, in the context of

counterordinance processes, determine the application of fines or

ancillary sanctions, have suspensive effect.

4. The imputation of the other decisions, dispatches or other measures, including

the decisions to implement compulsory financial penalties, adopted in the

scope of counter-ordering processes instituted by the NRA, have effect

merely devolutive.

5. [...].

6. [...].

7. [...].

8. [...].

9. [...].

10. [...].

11. [...].

12. The decisions of the trade courts admitting appeal, on the terms

provided for in the general regime of counter-ordinations, are challenging together with the

court of the competent relationship.

13. The court of the relationship, within the scope of the competence provided for in the number

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previous, decides in the last instance, not to be of ordinary appeal of the

its rulings.

Article 116.

[...]

1. [...].

2. [...].

3. The penalty to which the preceding paragraphs are referred is set by second criteria

of reasonableness and proportionality, meeting the turnover of the

infractor carried out in the previous calendar year and the negative impact caused in the

market and in users by default, and may their amount

journal oscilar between € 2,000 and € 100,000.

4. [...].

5. [...].

6. Of the acts of the NRA practiced under this Article shall be appeased

for the trade courts, when practiced in the framework of a

counter-ordering process, and for administrative tribunals, in the

remaining cases. "

Article 4.

Transitional provisions

Within 30 days of the date of the publication of this decree-law, the companies of

electronic communications must comply with the provisions of Article 96 (2) of the

Decree-Law n. ___/___ of ___.

Article 6.

Entry into force

This decree-law shall come into force on the day following that of its publication.

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Seen and approved in Council of Ministers of

The Prime Minister

The Minister of Justice

The Minister of the Environment, Territory Planning and Regional Development

The Minister of Economy and Innovation

The Minister of Public Works, Transport and Communications