Approves The Framework Scheme Of Contravention Of The Communications Sector

Original Language Title: Aprova o regime quadro das contra-ordenações do sector das comunicações

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Read the untranslated law here: http://app.parlamento.pt/webutils/docs/doc.pdf?path=6148523063446f764c3246795a5868774d546f334e7a67774c336470626d6c7561574e7059585270646d467a4c316776644756346447397a4c334277624449354d6931594c6d527659773d3d&fich=ppl292-X.doc&Inline=false

DRAFT law No. 292/X/4th explanatory memorandum the ICP – communications national authority (ICP-ANACOM) is a legal person of public law, endowed with administrative and financial autonomy and its own heritage, created by Decree-Law No. 188/81, of July 2, as amended by Decree-Law No. 283/89, of 23 August, and by Decree-Law No. 309/2001 of 7 December , competing him in particular, oversee and inspect the communications sector. The tasks of the ICP-ANACOM include, inter alia, the supervision of compliance with laws, regulations, standards and technical requirements applicable to the communications sector and, in this context, it is to introduce, educate and decide a misdemeanour procedures under their jurisdiction and apply the respective fines and penalties. Whereas the communications sector, in particular for electronic communications, is constantly evolving and growing complexity, with specific needs, being convenient to enable a more homogeneous and rapid intervention of the regulator of the sector, appropriate means create a contravention regime itself, enabling more effective and rational action at the level of prevention and sanction of multiple illicit typed. There is thus a response to the growing significance of the communications sector in today's society, being responsible for themselves in a coherent and articulated the legal goods, having regard to the risks to which the sector is facing at present.

2 the scheme now created is based on the general scheme of the contraventions, approved by Decree-Law No. 433/82 of 27 October, amended by decree-laws No. 356/89 of 17 October, and no. 244/95 of 14 September, and by law No. 109/2001, of December 24, but seeks to allow the simplification and streamlining of procedures, resulting in no offense of the guarantees of the accused , containing some special solutions that seek to meet the requirements of general prevention sector themselves. Thus, there is a special scheme of allocation of responsibility for facts practised in the name or on behalf of another person, without the same delete the liability of legal persons. Creates a rule of attribution of liability to the holders of the administrative and management, as well as those responsible for the management or monitoring of areas of activity of legal persons or similar companies that do not comply with the duty to put an end to illegal social ordering which merely are practiced in your area of functional intervention. On the other hand, establishes a regime of joint and several liability for the payment of fines between such natural and legal persons concerned. This regime shall still a clear distinction between serious offences, serious and less serious, with reflections on the limits of fines applicable to them, which vary depending on are still practiced by a natural or legal person and, in the latter case, according to their size. It is intended, through this scheme, establish a framework for the sector's current and homogeneous. In fact, nowadays, the unlawful communications sector are described in several legal texts, some of them with the boundaries of the fines fixed in outdated and inappropriate values for the purposes of general prevention pursued, update, and others by establishing large amplitude between the minimum and maximum value of the fines, the latter being significantly elevated. As the contravention of the sector seek to protect heterogeneous legal goods and have a gravity lens and a social impact and economic 3 disparate, it was intended to create a punitive framework with a common logic but able to encompass offences with such diversity, in order to meet the appropriate guardianship legal goods concerned. Thus, established minimum limits of fines that correspond to an update of the currently listed in the general scheme of the contravention and ceilings that correspond to those provided for in the law for electronic communications, approved by law No. 5/2004, of 10 February. The necessary adaptation of the various legislative acts that typify the new regime sector unlawful-table will lead to the classification of breaches in accordance with that established, then, in each of these legislative acts, the minimum and maximum limits of fines more appropriate to each type of infraction, within the frame now created. So that there is a clearer distinction of the values of the fines according to the degree of fault, it is expected that the minimum and maximum limits of fines applicable are always reduced to half in cases of negligent behaviour and to try and secure the assumptions of punishment by way of a relapse. Also fixed a scheme relating to the loss of unclaimed objects distinct from that provided for in the code of criminal procedure, which is characterized by more quickly and by the lack of any costs to individuals. There are still reasons to speed proceedings that lead to: i) Admission of voluntary payment of the fine in the case of less serious offences and serious, without subjection to the value limits set out in article 50 of the general scheme of the contraventions, approved by Decree-Law No. 433/82 of 27 October; II) Prediction of the rule that it is for the defendant to present witnesses and experts showing on defense, just being able to be delayed once their inquiry;

4 iii) Possibility of notification by fax and by simple letter, in the latter case if the registered letter is returned to the sender; IV) Possibility of procedural acts in computer-readable form. Own needs and sector-specific lead still that provide new procedural means, such as: i) the warning, applicable to less serious offences consisting of soluble irregularities of which didn't work out significant injuries; II) the accelerated process of possible application prior to indictment for serious or less serious offences, for which requires the express acceptance of the accused and the payment of the fine applicable. Similar reasons justify yet: i) the possibility of total or partial suspension of application of the sanctions; II) the extension of the specific arrangements concerning the challenge of sanctions currently contained in the electronic communications Law, approved by law No. 5/2004, of 10 February, the Decree-Law No. 123/2009 of May 21, namely the jurisdiction of the courts of Commerce; III) creating a system of costs to be borne by those who will be convicted. Adapting the regime of secrecy of Justice provided for in the code of criminal procedure. Finally, and in line with what was already defined in the electronic communications Law, approved by law No. 5/2004, of 10 February, allowed the imposition of periodic penalty payments to agents offenders, with a view to the cessation of the infringement, where this is legally provided for. So: under d) of paragraph 1 of article 197 of the Constitution, the Government presents to the Assembly of the Republic the following Bill: 5 chapter I administrative offences committed in the communications sector article 1 subject-matter and scope 1-this law lays down the arrangements applicable to contraventions of the communications sector. 2-Constitutes a misdemeanour in the communications sector, for the purposes of this law, all illegal and objectionable that fulfilling a legal type corresponding to the violation of legal and regulatory provisions relating to the communications sector, for which a fine comine, whose processing and punishment is a matter for the ICP-ANACOM. 3-for the purposes of the preceding paragraphs, shall be considered as part of the communications sector, in particular, the following provisions: 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 September 2 d) Decree-Law No. 177/99, of 21 may; e) Decree-Law No. 47/2000, of 24 March; f) Decree-Law No. 151/2000, of 20 July; g) Decree-Law No. 192/2000, of 18 August; h) Decree-Law No. 150/2001, of May 7; I) Decree-Law No. 11/2003, of 18 January;

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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) implementing Decree No. 8/90 of 6 April. 4-The provisions of this Act do not apply to unlawful provided for in law No. 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 competence of them attributed to the ICP-ANACOM. Article 2 Application in space Saved is prepared differently in treaty or International Convention, this law is applicable to the facts charged in Portuguese territory, whatever the nationality of the agent. Article 3 responsibility for breaches 1-for committing infringements referred to in this scheme can be natural or legal persons liable, even if irregularly incorporated, and unincorporated associations. 2-legal persons referred to in the preceding paragraph are responsible for offences committed for acts committed on their behalf or for their account, by the holders of their governing bodies, by the holders of management positions and leadership and its employees in the performance of their duties, as well as for offences committed by their agents and representatives, in acts committed on their behalf or for their account.

7 3-liability of legal persons is excluded when the agent is acting against orders or statements expressed. 4-the invalidity and the ineffectiveness of legal acts in which merges the relationship between the individual and the collective entity agent shall not preclude the application of the provisions of paragraph 2. 5 – recipients of the administrative and management of legal persons and similar entities, as well as those responsible for the management or monitoring of areas of activity in which it is practiced some very serious infraction, incur the penalty provided for the author, especially toned, when, knowing or should know the practice of infringement, not to adopt appropriate measures to put an end immediately unless more severe applicable sanction under another legal provision. Article 4 the Punishable attempt and neglect neglect and the attempt is always punishable, and the minimum and maximum limits of the respective fines reduced to half. Article 5 1-joint and several liability If the offender is a legal person or entity equivalent, are responsible for payment of the fine, jointly and severally with that natural persons referred to in paragraph 5 of article 3, in the cases there referred to. 2-legal persons referred to in paragraph 1 of article 3 respond jointly and severally liable for payment of the fine, costs and other charges that are condemned the individuals referred to in paragraph 5 of the same article.



8 article 6 Determination of the sanction applicable 1-the determination of the extent of the fine and the decision on the introduction of penalties are made on the basis of the unlawfulness of the fact, the agent's fault, the benefits obtained with the practice of the administrative offense and the demands of prevention, taking into account the natural or legal nature. 2-in determining the unlawfulness of the fact and guilt of legal persons and entities regarded as meets, amongst others, the following circumstances: a) to danger or damage caused; b) To occasional or repeated the offence; c) the existence of acts of concealment intended to impede the discovery of the offence; d) the existence of the agent acts intended to, at its option, repair the damage or prevent the dangers caused by the infringement. 3-in determining the unlawfulness of the fact and guilt of individuals, account shall be taken, in addition to those referred to in paragraph 1, the following circumstances: the) level of responsibility, scope of functions and sphere of action in the legal person concerned; b) intention to obtain, for themselves or for others, an illegitimate benefit or harm; c) Special duty not to commit the offence. 4-in determining the applicable sanction are even taken into account the economic situation and the conduct of the agent.

9 5-attenuation due to the repair of the damage or danger, when carried out by legal person or equated, communicates to all the individual agents, even if they have not personally contributed to them. CHAPTER II of the fines and penalties section I Fines article 7 classification of misdemeanors For determination of the fine applicable and having regard to the importance of the interests violated, the Contraventions are classified in less severe, serious and very serious. Article 8 Amounts of fines 1-every step of the seriousness of the contravention corresponds a fine whose minimum and maximum limits vary according to be practiced by any natural or legal person and, in the latter case, depending on the size of this. 2-The less serious offences are punishable by the following fines: a) If committed by an individual, a fine of at least € 50 and a maximum of € 2 500; b) If practised for microenterprise, minimum fine of £ 100 and a maximum of € 5 000; c) If practiced by small business, minimum fine of € 250 and a maximum of € 10 000; d) If practised by medium-sized enterprise, minimum € 500 fine and maximum of € 20 000;

10 e) If practiced by a large company, minimum fine of € 1000 and a maximum of € 100 000. 3-The serious offences are punishable by the following fines: a) If committed by an individual, a fine of at least € 100 and a maximum of € 7 500; b) If practised for microenterprise, minimum fine of € 200 and a maximum of € 10 000; c) If practiced by small business, minimum fine of € 500 and a maximum of € 25 000; d) If practised by medium-sized enterprise, minimum fine of € 1 000 and € 50 000 maximum; e) If practiced by large company, minimum fine of € 2 500 and a maximum of € 100 0000. 4-The very serious offences are punishable by the following fines: a) If committed by an individual, a fine of at least € 250 and a maximum of € 20 000; b) If practised for microenterprise, minimum fine of € 500 and € 50 000 maximum; c) If practiced by small business, minimum fine of € 1 250 000 and maximum of € 150; d) If practised by medium-sized enterprise, minimum fine of € 2 500 000 and maximum of € 450; e) If practiced by large company, minimum fine of € 5 000 and maximum of € 5 000 000.

11 5-legislative acts which define suitable within the scope of this illegal law can establish contra-ordenacionais frames, within each of the types of administrative offense referred to in the preceding paragraphs, with upper and lower limits below the maximum residue limits laid down, taking into account the legal goods in presence. 6-for the purposes of this article: (a)) ' micro-enterprise ', which employ less than 10 employees; b) «small business», which employ less than 50 workers have an annual turnover not exceeding EUR 7 million or an annual balance sheet total not exceeding EUR 5 million and that meets the criteria of independence, according to which 20% or more of its capital or voting rights are not held directly or indirectly, by a large company or set of medium-sized enterprises; c) ' company ' means the Average that employ less than 250 employees, an annual turnover not exceeding EUR 40 million or an annual balance sheet total not exceeding EUR 27 million and that meets the criterion of independence referred to in the preceding sub-paragraph; d) ' big company ', which employ more than 250 workers and has an annual turnover exceeding EUR 40 million or an annual balance sheet total exceeding EUR 27 million. 7-the threshold of the criterion of independence as defined in paragraph b) of the preceding paragraph may be exceeded in the following cases: a) If the company is owned by public investment corporations, venture capital companies or institutional investors, provided that they do not engage in, individually or jointly, any control over the company;

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b) If the capital find dispersed so that it is not possible to determine who holds and if the enterprise declares that it can legitimately presume that 25% or more of its capital or voting rights are not held, directly or indirectly, by a large company or set of medium-sized enterprises. 8-for the purposes of application of paragraph 6, it is the average number of workers at the service of the company in the year before the charges. 9-for the purposes of paragraphs 6 and 7, the size of the company is determined on the basis of the elements known at the time of the indictment, without prejudice to be considered ex officio or by indication of the defendant, new elements that lead to amendment of the initial classification. 10-in case it is not possible to determine the size of the company for the purposes of the preceding paragraphs, applies the frame for offences provided for medium-sized companies, without prejudice to be considered by the accused's statement new elements that lead to amendment of that classification. 11-for the purposes set out in the preceding paragraphs, shall be considered: a) the micro-enterprises, legal persons governed by private law which are not in the shape of societies, as well as the parishes; b) small businesses, municipalities and other legal persons governed by public law which do not constitute undertakings are not covered by the preceding paragraph. Article 9 fulfilment of omitted obligations 1-where the alleged infringement consists in the omission of a duty, the payment of the fine and the execution of penalties does not relieve the offender compliance, if this is still possible.

13 2-in the cases referred to in the preceding paragraph, the offender may be subject to injunctive relief of duty concerned, under pain of a penalty payment. 3-for the purposes of the preceding paragraph shall be deemed to impose penalty payment to the payment of a pecuniary amount for each day of default that beyond the period laid down for compliance with the obligation. 4-the penalty is 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, and may your daily amount oscillate between € 2,000 and € 100 000. 5-The amounts fixed may be variables for each day of default towards growing and may not exceed the maximum amount of € 3 000 000 and a maximum of 30 days. Article 10 Recidivism 1-is punished as a repeat offender who commit an offence after having been convicted, by a final decision or final, for another infringement of the same type, if between the two infringements do not have expiry than the first. 2-In case of recidivism, the minimum and maximum limits of the fine are high in a third of their value, and the amount of the fine in particular applied is less than the value of the fine imposed for the previous offence, except if the minimum and maximum limits of the fine applicable for the previous offence are superior to that.

14 3-In case of recidivism, the maximum duration of the accessory sanction provided for in paragraph 1 (b)), c) and (d)) of paragraph 1 of article 12 are high for the double. Article 11 Registration 1-for the purposes of the previous article, the ICP-ANACOM should organise a register of agents convicted for any offence, which must bear all the sanctions imposed in cases of alleged infringement. 2-Are still recorded the warnings made pursuant to article 16 3 records conducted by ICP-ANACOM may be integrated and processed in computer applications, in accordance with the limits of the law on protection of personal data. SECTION II additional sanctions article 12 sanctions 1-where the seriousness of the offence and the guilt of the appropriate agent, can the ICP-ANACOM, beyond the application of the offences that there is place, proceed to the application of the following penalties: a) Loss to the State of objects, equipment and illicit devices, including the product of the benefit obtained by the infringer through the practice of administrative offense; b) Prohibition of the exercise of their activity to a maximum of two years; c) Deprivation of the right to participate in competitions or arrematações up to a maximum of two years;

15 d) Suspension of permits, licences or other rights or provisions of securities up to a maximum of two years. 2-The penalties provided for in paragraph 1 (b)), c) and (d)) of the preceding paragraph shall apply only if the offense committed is serious or very serious. 3-Who disrespect accessory sanction that has been imposed is punished for the crime of qualified disobedience. Article 13 Loss to the State 1-Without prejudice to the provisions of subparagraph (a)) of the preceding article, shall be deemed to be lost to the State articles, equipment and illicit devices that have been provisionally or seized and that interim, after notification to the interested parties, have not been claimed within 60 days. 2-objects, equipment and illicit devices lost in favour of the State revert to the ICP-ANACOM, which gives them the fate that judge for appropriate. Chapter III of section I process Jurisdiction article 14 Supervision 1-without prejudice to the powers assigned by law to other entities, the oversight of compliance with the rules for the communications sector is the responsibility of the ICP-ANACOM, through its supervisory agents or representatives duly accredited by the Board of Directors.

16 2-in the performance of their duties, the ICP-ANACOM is assisted by the police and other authorities or public services whose collaboration request. Article 15 1 Application-the application of fines and penalties, as well as the archiving of a misdemeanour procedures, fall within the competence of the Board of Directors of the ICP-ANACOM. 2-the powers provided for in the preceding paragraphs can be delegated, with possibility of sub-delegation. SECTION II Processing article 16 Warning 1-in the case of less serious infraction which consists of irregularity rectifiable and which didn't work out significant injury, the ICP-ANACOM may warn the offender, with the indication of the infringement observed, recommended measures to fix the situation and the time limit for compliance. 2-ICP-ANACOM notifies or delivery immediately the warning to the offender for the irregularity is remedied, warning that the failure of the measures recommended determines the prosecution of administrative offense and affects the determination of the extent of the fine. 3-If the compliance with the standard in relation to infringement is proven by documents, the agent shall present to the ICP-ANACOM these documents within the period laid down for this.

17 4-in the case of an offence not covered by the preceding paragraph, the ICP-ANACOM may order the offender that, within the prescribed period, to notify it under rules of engagement that has taken the necessary measures to meet the standard. 5-Sanada the irregularity, the case is filed. 6-failure to follow the recommended measures is considered by ICP-ANACOM or by the Court, in cases of judicial review, in particular for the purpose of verifying the existence of wilful misconduct. Article 17 the news, interests and the stage 1-Without prejudice to the possibility laid down in the preceding article, any of the entities referred to in article 14 raises auto news when check or check, personally and directly, even for non-immediate or using the means referred to in paragraph 2 of article 18, any administrative offense under the electronic communications sector. 2-with regard to the offences of administrative nature whose verification has not been proven in person, any of the entities referred to in article 14 shall establish participation instructed with the evidence in its possession, which must be accompanied, wherever possible, the witnesses, a maximum of three per each fact. 3-Any of the entities referred to in article 14 must cultivate the stage when, in the exercise of its functions, the taking of evidence.



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Article 18 the probative value auto news and stage 1-the record of news and due diligence in the context of plowed supervision shall be authentic facts presented by autuantes, while the veracity of their contents is not inform. 2-the provisions of the preceding paragraph shall apply to the evidence recorded and identified by apparatus or instruments traced or calibrated in accordance with international standards by accredited laboratories, or certificates for entities with competence for this purpose. Article 19 elements of auto news, auto of diligence and participation 1-the record of news and the shares referred to in article 17 shall contain the following elements: a) the facts which constitute the offence; (b)) the day, time, place and circumstances in which the offence was committed; c) all elements that can be determined about the identity and residence of the offenders; d) the name, class and signature of the autuante or participant; e) the signature of the booked for the news; f) in the case of participation, identification and residence of the witness; g) the signature of the agent who raised, which can be performed by seal, scanned signature or other means of reproduction authorized.

19 2-for the purposes of subparagraph (c)) of the preceding paragraph, the booked must be warned that the address provided is worth for the purposes of notification and shall communicate to ICP-ANACOM, to this effect, any change of residence. 3-When the liable for the infringement is a legal person or entity equivalent must indicate, where possible, the identity, residence and workplace of their administrators, managers, directors and other legal representatives. 4-the preceding paragraphs shall apply, mutatis mutandis, to the proceedings of due diligence. SECTION III Processing article 20 instruction instructor Entity of the alleged infringement procedures is the responsibility of the services of the ICP-ANACOM, which may request, where necessary, the cooperation of police authorities, as well as other authorities or public services. Article 21 secrecy of Justice 1-subject to the exceptions provided for in this regime, the process of ordering is public, and shall be applicable, mutatis mutandis, the rules of criminal procedure governing the matter of secret justice. 2-the administrative authority may, ex officio or at the request of the accused or of the offended, exposing the alleged infringement process the regime of secrecy of Justice, when the interests of the investigation warrant or when understand that advertising is without prejudice to the rights of those subjects or participants.

20 3-in the case of the process have been subject to secret of Justice, in accordance with the provisions of the preceding paragraph, the Board of Directors of ICP-ANACOM may, ex officio or upon request of the defendant or of the offended, determine your withdrawal at any stage of the process. 4-the decisions to impose or indefiram entry for the secret process of justice are likely to challenge, for the Court, in accordance with article 33 5-Subject the process to the security grading of Justice, this remains until the final decision, except for the purposes of access on the part of the defendant, in which stands just to the notification of the indictment to be addressed. Article 22 Process accelerated 1-in the case of less serious infringement or serious, can the ICP-ANACOM, before formally accuse the defendant, communicate the decision to issue a warning or to apply a fine whose concrete measure does not exceed three times the minimum threshold of abstract frame provided for the offence. 2-Can also be given to the accused to take the legally required behavior, within the time limit that is fixed for this purpose. 3-the decision referred to in paragraph 1 is written and contains the identification of the accused, the summary description of the facts complained of, the legal provisions violated, specifically sanction applied and, where appropriate, the determination referred to in the preceding paragraph. 4-the accused is notified of the decision and informed that it has the right to refuse, within five days, and the result referred to in the following paragraphs.

21 5-refusal or the silence of the accused within that period, the application of any diligence complement, non-compliance with the provisions of paragraph 2 or the non-payment of the fine within 10 days after the notification referred to in paragraph 1 shall determine the immediate continuation of the process of administrative offense, getting off the decision referred to in paragraph 1. 6-Having the defendant granted the fulfilment of the provisions of paragraph 2 and to the payment of the fine has been applied, the decision becomes final, as judgment and the fact that return to be enjoyed as a misdemeanour. 7-decisions in the process accelerated, are indisputable. Article 23 Processing of common process the charge is notified to the offender, deadline set between 10 and 20 working days, submit written answers, and in either case, add the evidentiary documents available, call witnesses, up to a maximum of three for each infringement, and require the necessary evidence that it considers necessary. Article 24 voluntary payment of the fine 1-for the less serious offences and serious, as well as very serious infringements committed with negligence, the defendant may proceed to the voluntary payment of the fine within the time limit referred to in the previous article. 2-the fine is settled by the minimum value, and should take into account the increase in the form of recurrence, as referred to in article 10 3-the defendant may still proceed with the voluntary payment of the fine in later time provided for in paragraph 1, until the final decision of the case, and then also required to the payment of costs that there is place.

22 4-If the offender act with disrespect of the measures recommended in the auto warning, the fine is settled by the minimum value of the degree that matches the offence committed intentionally. 5-Being possible the regularization of the situation of infringement, the voluntary payment of the fine depends on this. 6-the voluntary payment of the fine determines a dismissal unless the administrative offense accessory sanction applies, in which case proceeds in respect of the application of the same. 7-the lawsuit filed, in accordance with the provisions of the preceding paragraph, is reopened if presented within legal defense. 8-for the purposes of paragraph 1 of article 10, the voluntary payment of the fine is equivalent to conviction. Article 25 1-Witnesses witnesses and experts appointed by the defendant on defense should he be presented on the date, time and place appointed for holding the inquiry stage. 2-exceptions to the provisions of the preceding paragraph the experts of establishments, laboratories or official services, as well as authority agents, although listed by the defendant must be notified by ICP-ANACOM. 3-in the steps of inquiry referred to in paragraph 1 is it possible to use magnetofónica or audiovisual recording, in which mention should be made of the beginning and end of the inquiry. 4-witnesses can be heard, at their request and when appropriate, by videoconference, delegations of ICP-ANACOM, and the record of the inquiry the auto start and end of the recording of each statement.

23 5-the testimony, information or clarifications collected by recording or video conferencing are not reduced to writing or transcription is necessary for the purposes of appeal and shall be attached to the copy of the recording process. Article 26 Adjournment of inquiry of witnesses 1-cross-examination of witnesses and experts can only be delayed once, if the 1st is considered justified. 2-it is considered justified the lack motivated by fact not attributable to wrongful which renders them unable to attend in the procedural act. 3-the impossibility of attendance must be communicated with five days in advance, if predictable, until the third day after the day appointed for the Act, if unpredictable, consisting of communication the respective reason and predictable duration of the impediment, no justification for the lack. 4-the evidence of the impossibility of attendance shall be submitted with the notification referred to in the preceding paragraph. Article 27 absentia the no show of the accused to be heard on the day designated shall not prevent the process of administrative offense follow their terms, unless the lack has been considered justified in accordance with the previous article, in which case the regime established therein.



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Article 28 1 Notifications-notifications shall be carried out by registered letter to the address given under article 19 or, failing that, to address that has been communicated to that effect to the ICP-ANACOM. 2-If, for any reason, the letters provided for in the preceding paragraph are returned to the sender, the notifications are resent to the address referred to in the preceding paragraph by simple letter. 3-in the case referred to in the preceding paragraph, shall be drawn up by the instructor a quota in the process with an indication of the date of dispatch of the letter and the address to which it was sent, considering the notification made on the fifth day after the date indicated, making provision to be entered in the Act of notification. 4-notifications can also be made via fax. 5-Can still resort to personal service, under the conditions laid down in the code of criminal procedure. 6-when you check the existence of several offences committed by the same agent may be a single notification. Article 29 Working Party procedural Form 1-procedural acts may be charged in computer-readable form with placing of qualified electronic signature. 2-The procedural acts and documents signed in accordance with the preceding paragraph shall replace and dispense to any effects the autograph signature in the paper-based process.

25 3-for the purposes set out in the preceding paragraphs may be used only the qualified electronic signature in accordance with the legal requirements and regulations required by the electronic certification system of the State. Article 30 measures 1-When is appropriate and necessary for the preservation of evidence or for the safeguarding of legally protected goods in applicable legal regimes, the ICP-ANACOM may determine, fixing the period of validity, one or more of the following measures: a) preventive suspension of some or certain activities or functions performed by the defendant; b) Subjecting the exercise of functions or activities to certain conditions required for this exercise, in particular the fulfilment of duties of information. 2-the measures provided for in the preceding paragraph shall have a maximum term of one year. 3-the determination referred to in paragraph 1 exists, as appropriate: a) until the expiry of the deadline set for their duration; b) until its repeal by ICP – ANACOM or by judicial decision; c) until the beginning of the completion of the additional sanctions applied in accordance with point (b)) of paragraph 1 of article 12 4-When is determined the total suspension of activities or functions performed by the defendant and this will be condemned, in the same process, in accessory sanction consisting of interdiction or inhibition of the exercise of the same activities or functions , discounted fare in the accessory sanction duration of preventive suspension.

26 5-the determination of preventive suspension can be published by ICP-ANACOM, when appropriate and necessary for the proper regulation of the sector. Precautionary Seizure article 31 1-ICP-ANACOM may determine, in accordance with the general scheme of the contraventions, approved by Decree-Law No. 433/82 of 27 October, the provisional seizure, in particular, of the following goods and documents: a) equipment; b) licenses, certificates, authorizations, approvals, permits, guides and other similar documents. 2-in the case of precautionary seizure of equipment, can the owner or who represent be designated fiduciary, with the obligation not to use the assets seized provisionally, under penalty of crime of qualified disobedience. SECTION IV article 32 Sanctions suspension of sanction 1-ICP-ANACOM may suspend the application of sanctions, taking into account the conduct of the staff member before or after the practice of the offence, and the circumstances of these, conclude that the mere fact that censorship and the threat of sanction perform adequately and the purposes of punishment. 2-the suspension may be conditional on the fulfilment of certain obligations, in particular those considered necessary for the regularization of illegal situations.

27 3-suspension time is fixed between two and five years, counting his start from the date on which the term of judicial review of the judgment. 4-the suspension does not cover the expense. 5-suspension timing elapses without the defendant have practiced any counter ordering within the communications sector and without having violated the obligations have been imposed, is condemnation without effect, and, in the opposite case, the implementation of the sanctions imposed. Article 33 Dispute sanctions 1-without prejudice to the number following the contested decision, by ICP-ANACOM in a case of alleged infringement, that refers the case back to prosecutors, thereof in accordance with the general scheme of the contraventions, approved by Decree-Law No. 433/82 of 27 October, within 20 working days. 2-decisions, orders or other measures taken by ICP-ANACOM on administrative offense proceedings arising from the application of the law for electronic communications, approved by law No. 5/2004, of 10 February, and of Decree-Law No. 123/2009 of May 21, are open to challenge for the courts, in accordance with paragraphs 1 and 5 to 13 of article 13 of the law for electronic communications , approved by law No. 5/2004, of 10 February. 3-the challenge of any decisions made by ICP-ANACOM, within the framework of a misdemeanour procedures, entail the imposition of fines or penalties or to respect the secrecy of Justice have suspensive effect.



28 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 ICP-ANACOM have merely devolutive effect. CHAPTER IV final provisions article 34 Assignment of the proceeds of fines the proceeds of fines and periodic penalty payments imposed reverts on percentage of 60% for the State and 40% to the ICP-ANACOM. Article 35 penalties update minimum and maximum amounts of the fines referred to in article 8 shall be updated every three years and beginning in January 2012, based on the percentage of increase in the consumer price index (CPI), without housing, for Continental Portugal, published by the National Institute of statistics, in the three previous years. Article 36 1 Expense-ICP-ANACOM's decisions on the subject of the proceedings shall fix the amount of costs. 2-the costs are borne by the defendant and the responsibility under this law, in case of application of a fine or an accessory sanction. 3-the costs are intended to cover the expenditure incurred in the process, in particular with notifications and communications, audiovisual and copies or extracts of the process.

29 4-reimbursement for the expenditure referred to in the preceding paragraph shall be calculated at the rate of half of UC in the first 0.5 50 sheets or fraction of processed and a tenth of UC for each subsequent set of 25 sheets or fraction of processed, without prejudice to the next paragraph. 5-in the case of proceedings relating to administrative offences provided for in the law for electronic communications, approved by law No. 5/2004, of 10 February, and in Decree-Law No. 123/2009 of 21 may, the values indicated in the preceding paragraph are increased to the double. 6-if they are given copies or extracts of the process or parts of this at the request of the defendant, in addition to the amount referred to in the preceding paragraph an amount calculated in accordance with that paragraph. 7-the costs accrue to the ICP-ANACOM. Article 37 supplementary law To administrative offences provided for in this law, in all her if not expressly regulated, are in the alternative the provisions of the general regime of the contravention and its process, approved by Decree-Law No. 433/82 of 27 October. Article 38 effect the precepts of this law concerning penalties and their values shall apply from the entry into force of legislative act, changing the current law, classification of offences there and adapt the typed values of the fines in accordance with the provisions of paragraphs 1 to 5 of article 8 of this law.

30 article 39 entry into force this law shall enter into force 30 days after the date of its publication.

Seen and approved by the Council of Ministers of 21 May 2009 the Prime Minister the Minister of Parliamentary Affairs Minister Presidency