Authorizes The Government To Legislate On The System Of Open Access To Suitable Housing Infrastructure Of Electronic Communications Networks And To Establish The System Of Judicial Review Of Acts Of The Icp-Anacom Applicable Under The Scheme Of Constru...

Original Language Title: Autoriza o Governo a legislar sobre o regime de acesso aberto às infra-estruturas aptas ao alojamento de redes de comunicações electrónicas e a estabelecer o regime de impugnação dos actos do ICP-ANACOM aplicáveis no âmbito do regime de construção, acesso

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Read the untranslated law here: http://app.parlamento.pt/webutils/docs/doc.pdf?path=6148523063446f764c3246795a5868774d546f334e7a67774c336470626d6c7561574e7059585270646d467a4c316776644756346447397a4c334277624449324e4331594c6d527659773d3d&fich=ppl264-X.doc&Inline=false

PRESIDENCY of the COUNCIL of MINISTERS 1 Proposal of law No. 264/X explanatory memorandum Council of Ministers resolution No. 120/2008, of 30 July, came to define as strategic priority for the Country in the electronic communications sector to promote investment in next-generation networks. One of the main strategic guidelines defined by the Government in this context was the effective and non-discriminatory opening of all the pipelines and other infrastructure of all entities that hold, given that a significant part of the costs related to the development of next-generation networks stems precisely from the construction and installation of this type of infrastructure. In this context, the Government is taking steps to ensure open access for electronic communications companies to a very broad set of infrastructure owned by various entities, including operating in other sectors, are of significant importance pipes networks. This access must be ensured in conditions of transparency, non-discrimination and cost-oriented remuneration conditions, achieving the objectives of competition and efficiency in the development of networks. The consecration of a comprehensive legislative framework applicable to the construction, installation and access to electronic communications networks and infrastructure led the Government to establish rules in areas as diverse as infrastructure installation in lots, housing developments and sets of buildings (INTRUSION PROTECTION), infrastructure in buildings (ITED) and the creation of a centralized information system (SIC) where the record all the information on the registers of infrastructure as well as on procedures and conditions, developed by various entities, taking into account allow, with transparency and in order to be effectively and quickly, the development of electronic communications networks. For the abovementioned legal framework can constitute a powerful aid to the PRESIDENCY of the COUNCIL of MINISTERS 2 development of next-generation networks, a technologically neutral and competitive environment, it is necessary to be accompanied by effective supervisory and sanctioning mechanisms, to ensure that all stakeholders comply with the rules laid down. Finally, it should be noted that the municipalities are called to play, in this turning point of cycle, a very relevant role in the deployment of these networks, which are which will enhance economic and social development of the respective populations. So: under d) of paragraph 1 of article 197 of the Constitution, the Government presents to the Assembly of the Republic the following proposal of law: article 1 subject-matter Is the Government allowed to: a) Establish the system of open access to suitable housing infrastructure of electronic communications networks owned or managed by the electronic communications companies and the entities that hold infrastructure able to accommodate electronic communications networks that are used by those; (b)) Change the system of judicial review of acts of the ICP-ANACOM, as provided for in the law for electronic communications, approved by law No. 5/2004, of 10 February. Article 2 purpose and extent of legislative authorization 1-point (a)) of the preceding article, on open access to infrastructure of electronic communications companies and entities that hold infrastructure able to accommodate electronic communications networks that are used for those, the sense and the extent of legislative authorization are as follows: the) establishment of the obligation of electronic communications companies that PRESIDENCY of the COUNCIL of MINISTERS 3 offer networks or publicly available electronic communications services, and of the entities that hold infrastructure able to accommodate electronic communications networks that are used by those making public the intention of performing works that enable the construction or enlargement of infrastructures able to accommodation of electronic communications networks; b) establishment of possibility of electronic communications companies that offer networks or publicly available electronic communications services participating to the works referred to in the preceding paragraph and, in such cases, bear the share of the investment cost of the project, corresponding to the investment cost differential that your Association will result; c) establishment of obligation to companies that provide electronic communications networks or publicly available electronic communications services, and of the entities that hold infrastructure able to accommodate electronic communications networks that are used by those, ensure to other companies that provide electronic communications networks or services available to the public access to their infrastructure able to accommodate electronic communications networks on equal terms , transparency and non-discrimination and cost-oriented remuneration conditions; d) prediction of the ICP-ANACOM to decide through binding decision and with recourse to the dispute settlement procedure provided for in article 10 of the law for electronic communications, approved by law No. 5/2004, of 10 February, all issues regarding access to infrastructure; and) prediction that the scheme shall be without prejudice to the arrangements applicable to electronic communications networks and services provided for in the law for electronic communications, approved by law No. 5/2004, of 10 February, in particular those provisions which, by virtue of the same, are applicable to the access to ducts, Poles, other facilities and sites held by the concessionaire of the public telecommunications service. 2-point (b)) of the preceding article, concerning the amendment of the system of judicial review of acts of the ICP-ANACOM, as provided for in the electronic communications Law, approved by the Presidency of the COUNCIL of MINISTERS 4

Law No. 5/2004, of 10 February, the sense and the extent of legislative authorization are as follows: a) provide that the decisions of the ICP-ANACOM of applying penalty appeal to the courts, when applied in a case of alleged infringement, and for the administrative courts, in all other cases; b) establish that decisions, orders or other measures taken by ICP-ANACOM on administrative offense proceedings are open to challenge for the courts of Commerce; c) provide that the decisions of the courts of Commerce admission resource, in accordance with the general scheme of the contravention, are open to challenge before the competent court of appeal, which shall decide in last resort; d) Predict that the judgments delivered by the Court of appeal, in accordance with the preceding paragraph, it is not for an ordinary appeal. Article 3 Duration the legislative authorisation conferred by this law has a duration of 90 days from the date of your publication. Article 4 entry into force this law shall enter into force on the day following your publication.

Seen and approved by the Council of Ministers of 26 March 2009 the Prime Minister the Minister of PRESIDENCY of the COUNCIL of MINISTERS Presidency 5 Parliamentary Affairs Minister PRESIDENCY of the COUNCIL of MINISTERS 6 in order to implement the strategic guidelines laid down by the Council of Ministers Resolution No. 120/2008, of 30 July, for the development and promotion of investment in new generation networks Decree-Law No. ___/___ of 2009, came to establish a set of obligations applicable to the State, the autonomous regions, local authorities, public companies, dealers and, generally, the entities that hold infrastructure to integrate in the public domain, in order to ensure access to, electronic communications companies, infrastructure able to accommodate electronic communications networks. The desirable use of synergies, the principle of efficiency and optimization of the resources justify in terms of access, the obligations laid down in Decree-Law No. ___/___, 2009, aren't confined to the entities of the public area above referenced. It is in this context that the law No. ___/2009, of ___, authorizing the Government to legislate came about a set of subjects that will extend electronic communications companies and the entities that hold infrastructure able to accommodate electronic communications networks that are used by the companies of the sector in the exercise of your activity, access obligations assigned to entities of the public area. So: the use of legislative authorization granted by Article ___ of law No. ___, ___, the Government decrees, pursuant to subparagraph (b)) of paragraph 1 of article 198 of the Constitution, as follows: Article 1 subject-matter this Decree-Law: a) establishes a system of open access to suitable housing infrastructure of electronic communications networks owned or managed by the electronic communications companies and the entities that hold infrastructure suited to the PRESIDENCY of the COUNCIL of MINISTERS 7 of accommodation electronic communications that are used by those, determining the application to these entities from the arrangements laid down in Decree-Law No. ___/___, 2009; b) changes the system of judicial review of acts of the ICP-ANACOM, as provided for in the law for electronic communications, approved by law No. 5/2004, of 10 February. Article 2 Scope 1-the rules laid down in chapters II and III of Decree-Law No. ___/___, 2009, addressed to entities referred to in article 2 of the same decree-law, shall apply mutatis mutandis to electronic communications companies, as well as the entities that hold infrastructure able to accommodate electronic communications networks that are used by those, except as provided in paragraph 3. 2-the provisions of this decree-law shall be without prejudice to the arrangements applicable to electronic communications networks and services provided for in the law for electronic communications, approved by law No. 5/2004, of 10 February, in particular those provisions which, by virtue of the same, are applicable to the access to ducts, Poles, other facilities and sites held by the concessionaire of the public telecommunications service. 3-the concessionaire of the public telecommunications service does not apply the regime of access to ducts, Poles, other facilities and sites owned by the dealership provided for in chapter III of Decree-Law No. ___/___, 2009, continuing that to be governed by the electronic communications Law, approved by law No. 5/2004 of 10 February.

Article 3 amendment to the electronic communications Law, approved by law No. 5/2004, of 10 February articles 13 and 116 of the law for electronic communications, approved by law No. 5/2004, of 10 February, are replaced by the following: ' article 13 8 PRESIDENCY of the COUNCIL of MINISTERS [...] 1. decisions, orders or other measures taken by the NRAS in the context of a misdemeanour procedures arising from the application of the legal framework for electronic communications, are challengeable trade courts. 2. The remaining acts performed by RNA are open to challenge before the administrative courts, in accordance with the applicable legislation, with mandatory intervention of three experts, designated by each of the parties and the third by the Court for consideration of the merits of the contested decision. 3. The challenge of the judgments given by the NRA that a misdemeanour procedures, entail the imposition of fines or penalties, have suspensory effect. 4. The challenge of other decisions, orders or other measures, including implementing decisions of periodic penalty payments, adopted in the framework of a misdemeanour proceedings initiated by the NRA, have merely devolutive effect. 5. […]. 6. […]. 7. […]. 8. […]. 9. […]. 10. [...]. 11. [...]. 12. decisions of the courts of Commerce admission resource, in accordance with the general scheme of the contravention, are open to challenge before the Court of appeal. 13. The Court of appeal, within the competence provided for in the PRESIDENCY of the COUNCIL of MINISTERS number 9

earlier, ultimately, not being an ordinary appeal of its judgments. Article 116 [...] 1. […]. 2. […]. 3. The penalties referred to in the preceding paragraphs shall be fixed according to criteria of reasonableness and proportionality, taking account of the turnover of the offender performed in the previous calendar year and the negative impact caused on the market and on users by default, your daily amount may fluctuate between € 2,000 and € 100,000. 4. […]. 5. […].

6. the RNA acts committed under this article appeal to the courts, when applied in a case of alleged infringement, and for the administrative courts, in other cases. ' Article 4 transitional provisions within a period of 30 days from the date of publication of this decree-law, the electronic communications companies must comply with the provisions of paragraph 2 of article 96 of Decree-Law No. _ _ _/_ _ _ _ _ _. Article 6 entry into force this law shall enter into force on the day following your publication.

PRESIDENCY of the COUNCIL of MINISTERS 10 Seen and approved by the Council of Ministers of the Prime Minister, the Minister of Justice, the Minister of the environment, regional planning and Regional development, the Minister of economy and Innovation the Minister of public works, transport and communications