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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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PROPOSED LAW NO. 292 /X/4.

Exhibition of Motives

The ICP-National Communications Authority (ICP-ANACOM) is a legal person

of public law, endowed with administrative and financial autonomy and heritage

itself, created by the Decree-Law No. 188/81 of July 2, as amended by the Decree-Law

n. 283/89 of August 23 and by the Decree-Law No. 309/2001 of December 7,

to compete, specifically, to ensure regulation, supervise and inspect the

communications sector.

In the ICP-ANACOM assignments include, among others, the surveillance of the

compliance with the laws, regulations, standards and technical requirements applicable to the sector of

communications and, in this context, it is incumbent upon you to institute, instruct and decide the processes of

counterordinance of their competence and to apply the respective fines and ancillary sanctions.

Considering that the communications sector, in particular of communications

electronic, is in constant evolution and is of increasing complexity, possessing

specific needs, being convenient to enable a more homogeneous intervention

and célere of the regulatory authority of the sector, it is understood to be relevant to create a regime of

own counter-ordering, which allows for more effective and rational performance at the level of the

prevention and sanction of the multiple typified iliocytes. It is, thus, response to the growing

importance of the communications sector in today's society, by tuteling itself

coherent and articulated the legal goods in presence, taking into account the risks to which the

sector is subject in the topicality.

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The scheme now created is based on the general regime of counter-ordinations, approved by the

Decree-Law No. 433/82 of October 27, as amended by Decrees-Laws No. 356/89, of 17

of October, and paragraph 244/95, of September 14, and by Law No. 109/2001, 24 of

December, but it seeks to allow for simplification and consequent streamlining of

procedures, no offence of the defendants ' guarantees, containing still some solutions

specials seeking to respond to the sector's own general prevention requirements.

In this way, there is a specific regime of attribution of responsibility for

facts practiced in the name or on account of outrain, without the same excludes the

liability of legal persons. It is thus created a rule of attribution of

liability to the holders of the administration and management bodies, as well as to the

responsible for the direction or surveillance of areas of activity of legal persons or

equistops that do not fulfil the duty to terminate the illicit of mere social ordering

very serious that they are practiced in their area of functional intervention. On the other hand,

establishes a regime of liability in solidarity with the payment of the fines between

such natural persons and the legal persons concerned.

The present regime further carries out a clear distinction between counter-ordinations very much

serious, serious and less serious, with reflections on the limits of the fines that are applicable to them,

which vary still depending on whether they are practiced by natural or legal person and, in this

last case, according to its dimension.

It is intended, through the present regime, to establish a current and homogeneous framework for the

sector. In fact, today, the illicit sector of the communications sector is typified in

several diplomas, some of them with the limits of the fines set on outdated values

and inappropriate for the purposes of general prevention pursued, which it is fulfilling to update, and others

establishing great breadth between the minimum and maximum value of the fines, this being

last significantly high. How the sector's counter-ordinations aim to tutelise

heterogeneous legal goods and have an objective gravity and a social impact and

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disparate economic, intended to create a punitive framework with a common logic but

capable of abetting offences with the said diversity, so as to give a response to the tutelage

appropriate of the legal goods in issue. Thus, minimum limits have been established

fines that correspond to an update of those currently listed in the scheme

general of the counter-ordinations and ceilings that correspond to those provided for in the Law of

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

The necessary adaptation of the various legislative acts that typify illicit from the sector to the new

framework-framework will imply the classification of counter-ordinations in accordance with

which it sets out, then fixing itself then, in each of those legislative acts, the limits

minimum and maximum of the fines most appropriate to each type of counter-ordinance, within the

frame now created.

In such a way that there is a clearer distinction of the values of the fines depending on the degree of

guilt, it is further predicted that the minimum and maximum limits of the applicable fines are

always reduced to half in the cases of negligent performance and attempt and set the

assumptions of punishment for reoffending title.

It also sets out a regime concerning the loss of unclaimed objects distinct from the

provided for in the Code of Criminal Procedure, which is characterized by the greatest speed and the

inexistence of any costs for private individuals.

They are still reasons of procedural celerity leading to:

i) Admission of the voluntary payment of the fine in the event of less offences

serious and serious, without subjection to the limits of value set out in Article 50-A

of the general regime of counter-ordinations, approved by the Decree-Law No. 433/82,

of October 27;

ii) Prediction of the rule according to which it is up to the accused to present the witnesses and

experts to indicate in the defence, only may be postponed a single time

respective respondent;

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iii) Possibility of notification by fax and by simple letter, in this latter case

if the registered letter is returned to the sender entity;

iv) Possibility of the practice of procedural acts in informatics support.

The own and specific needs of the sector still take for new ones to be predicted

procedural means, such as:

i) The warning, applicable to less serious counterordinations consisting of

sanable irregularities from which they have not resulted in significant injuries;

ii) The sumptiest process, of possible application before the formal charge for

less serious or serious counterordinations, for which acceptance is required

express from the defendants and the payment of the applicable fine.

Reasons of the same order further justify:

i) The possibility of full or partial suspension of application of the sanctions;

ii) The extension of the specific regime relating to the challenge of the sanctions currently

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

of February 10, to Decree-Law No. 123/2009 of May 21, inter alia

the competence of the courts of commerce;

iii) The creation of a regime of expense to bear by those who come to be condemned.

It further adapts to the regime of the secrecy of justice provided for in the Code of Criminal Procedure.

Finally, and on the line of what was already defined in the Communications Act

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

compulsory financial penalties for the infringing agents with a view to the cessation of

infringement, where this is legally foreseen.

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:

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CHAPTER I

Counter-ordinations practiced in the communications sector

Article 1.

Object and scope

1-A This Law establishes the regime applicable to the counter-ordinations of the sector of

communications.

2-Constitutive counterordinance of the communications sector, for the purposes of this Law,

all the unlawful and objectionable fact that fulfils a legal type corresponding to the violation

of legal and regulatory provisions relating to the communications sector, for the

what is comine a fine, whose processing and punishment is the competence of the

ICP-ANACOM.

3-For the purposes of the provisions of the preceding paragraphs, they are considered as

integrating the communications sector, specifically, the following diplomas:

a) Decree-Law No 176/88 of May 18;

b) Decree-Law No 179/97 of July 24;

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

d) Decree-Law No 177/99 of May 21;

e) Decree-Law No 47/2000 of March 24;

f) Decree-Law No 151-A/2000 of July 20;

g) Decree-Law No 192/2000 of August 18;

h) Decree-Law No 150/2001 of May 7;

i) Decree-Law No 11/2003 of January 18;

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j) Law No. 5/2004 of February 10;

l) Decree-Law No 53/2009 of March 2;

m) Decree-Law No 123/2009 of May 21;

n) Regulatory Decree No. 8/90 of April 6.

4-The standards set out in this Law shall not apply to the unlawful ones provided for in Law No.

41/2004, of August 18, in the Decree-Law No. 7/2004 of January 7, and in the Decree-

Law No. 156/2005 of September 15, without prejudice to the competence in them attributed to the

ICP-ANACOM.

Article 2.

Application in space

Unless disposed of differently in treaty or international convention, the present law is

applicable to the facts practiced in Portuguese territory, whatever the nationality of the

agent.

Article 3.

Responsibility for counter-ordinations

1-For the practice of the offences referred to in this scheme may be

accountable natural or legal persons, albeit irregularly

constituted, and associations without legal personality.

2-The legal persons referred to in the preceding paragraph shall be responsible for the offences

committed in acts carried out in their name or on their account, by the holders of their

social organs, by the holders of the managerial and managerial positions and by their

workers in the exercise of their duties, as well as for the offences committed

by its mandators and representatives, in acts practiced in its name or by its

account.

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3-A liability of legal persons shall be excluded when the agent acts against

orders or express instructions from that.

4-A The unvalidity and legal ineffectiveness of the acts in which the relationship between the agent is founded

individual and the collective ente do not prevent the provisions of paragraph 2 being applied.

5-The holders of the bodies of administration and management of legal persons and entities

equistops, as well as those responsible for the direction or surveillance of areas of

activity in which some very serious counterordinance is practiced, they incur the

sanction provided for the author, especially attenuated, when, knowing or

you should know the practice of the offence, do not adopt the appropriate measures to

put an end immediately, save if more serious punishment couber by force of another

legal provision.

Article 4.

Punishability of attempt and neglect

The negligence and the attempt are always punishable, being the minimum and maximum limits of the

respective cofine reduced to half.

Article 5.

Solidarity liability

1-If the offender is a legal person or equal entity, they respond by the

payment of the fine, severally with the one, the natural persons referred to in the n.

5 of Article 3, in the cases provided for therein.

2-The legal persons referred to in Article 3 (1) respond in solidarity with the

payment of the fine, the costs and other charges in which they are condemned the

natural persons referred to in paragraph 5 of the same article.

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Article 6.

Determination of the applicable penalty

1-A The determination of the measure of the fine and the decision on the application of sanctions

ancillary are made in the function of the concrete ilicitude of the fact, of the fault of the agent, of the

benefits obtained with the practice of counterordinance and prevention requirements,

taking further account of the natural or collective nature of the agent.

2-In the determination of the concrete ilicitude of the fact and fault of the legal persons and

equated entities will meet, among others, the following circumstances:

a) To the danger or the damage caused;

b) To the occasional or repeated nature of the offence;

c) To the existence of acts of concealment aimed at hindering the discovery of the

infringement;

d) To the existence of acts of the agent intended for, on his or her initiative, to repair the damage

or obviate the dangers caused by the offence.

3-In the determination of the concrete ilicitude of the fact and fault of the natural persons,

serves, in addition to those referred to in the preceding paragraph, to the following circumstances:

a) Level of responsibility, scope of functions and sphere of action in the person

collective in question;

b) Intention to obtain, for you or for others, an illegitimate benefit or cause

damage;

c) Special duty to not commit the offence.

4-In the determination of the applicable sanction are still taken into account

economic and the conduct of the agent.

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5-A mitigation arising from the repair of the damage or the reduction of danger, when

performed by legal person or equiped, communicates to all agents

individual, even though they have not personally contributed to them.

CHAPTER II

Of the fines and ancillary sanctions

SECTION I

Fines

Article 7.

Classification of counter-ordinations

For determination of the applicable fine and taking into account the relevance of the interests

violated, the counter-ordinations rank in less serious, serious and very serious.

Article 8.

Amounts of the fines

1-A each level of gravity of the counter-ordinations corresponds to a fine whose

minimum and maximum limits vary depending on whether they are practiced per natural person or

collective and, in the latter case, depending on the size of this.

2-The least serious counterordinations are punishable by the following fines:

a) If practiced by natural person, minimum fine of € 50 and maximum of € 2500;

b) If practiced by microenterprise, minimum cofine of € 100 and maximum of € 5000;

c) If practiced by small company, minimum fine of € 250 and maximum of € 10000;

d) If practiced by average company, minimum fine of € 500 and maximum of € 20000;

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e) If practiced by large company, minimum cofine of € 1000 and maximum of

€ 100000.

3-The serious counterordinations are punishable by the following fines:

a) If practiced by natural person, minimum fine of € 100 and maximum of € 7500;

b) If practiced by microenterprise, minimum cofine of € 200 and maximum of

€ 10000;

c) If practiced by small business, minimum cofine of € 500 and maximum of

€ 25000;

d) If practiced by average company, minimum fine of € 1000 and maximum of

€ 50000;

e) If practiced by large company, minimum cofine of € 2500 and maximum of

€ 100 to 0000.

4-Very serious counterordinations are punishable by the following fines:

a) If practiced by natural person, minimum cofine of € 250 and maximum of

€ 20000;

b) If practiced by microenterprise, minimum cofine of € 500 and maximum of

€ 50000;

c) If practiced by small business, minimum cofine of € 1250 and maximum of

€ 150000;

d) If practiced by average company, minimum fine of € 2500 and maximum of

€ 450000;

e) If practiced by large company, minimum cofine of € 5000 and maximum of

€ 5000000.

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5-Legislative acts that typify ilocytes framing within the framework of this Law

can establish counterordinational moldings, within each of the types of

counterordinance provided for in the previous figures, with higher minimum limits and

maximum limits lower than that provided for, taking into account the legal goods in attendance.

6-For the purposes of this article it is understood by:

a) "Microenterprise", to which to employ less than 10 employees;

b) "Small company", to which it employs less than 50 employees, has a volume

of annual business that does not exceed 7 million or an annual total balance sheet

which does not exceed EUR 5 million and which complies with the criterion of independence,

according to which 20% or more of your social capital or your voting rights do not

are held, directly or indirectly, by a large company or set of

medium enterprises;

c) "Average company", to which it employs less than 250 employees, has a volume of

annual business that does not exceed 40 million or an annual total balance sheet that

does not exceed EUR 27 million and that complies with the criterion of independence, referred to

in the preceding paragraph;

d) "Great company", to which to employ more than 250 workers and have a volume

of annual business exceeding 40 million or an annual total balance sheet that

exceeds 27 million euros.

7-The threshold of the criterion of independence set out in paragraph b) from the previous number can

be exceeded in the following cases:

a) If the company is owned by public investment companies, companies

of venture capital or institutional investors, provided that the latter do not

to exercise, either individually or jointly, any control over the company;

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b) If the capital finds itself dispersed in a way that it is not possible to determine

who holds it and if the company declarates that it can legitimately assume that 25%

or more of your social capital or your voting rights are not held, direct

or indirectly, by a large company or set of medium-sized companies.

8-For the purpose of application of paragraph 6, the average number of workers shall be considered

service of the company in the year before that of the prosecution.

9-For the purpose of application of paragraphs 6 and 7, the size of the company is ascertained on the basis of

in the elements known at the date of prosecution, without prejudice to being able to be

considered, officiously or by indication of the defendants, new de facto elements

leading to the change in the initial classification.

10-In the event that it is not possible to determine the size of the company for the purpose of

application of the previous numbers, applies to forecasted counterordinate frame

for medium-sized enterprises, without prejudice to be considered by indication of the

has argued new de facto elements leading to the amendment of that classification.

11-For the effects provided for in the preceding paragraphs, they consider themselves to be equated:

a) Micro-enterprises, legal persons under private law who do not review the

form of societies, as well as freguesias;

b) To small businesses, municipalities and the remaining legal persons of law

public that do not constitute undertakings nor are covered by the

previous.

Article 9.

Fulfillment of the omitted duty

1-Whenever the counterordinance consisted of the omission of a duty, the payment of the

cofine and the execution of ancillary sanctions does not waiver the offender of his / her

compliance, if this is still possible.

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2-In the cases referred to in the preceding paragraph, the offender may be subject to the injunction of

to comply with the duty in question, under penalty of applying for a financial penalty

compulsory.

3-For the purposes of the provisions of the preceding paragraph, pecuniary penalty shall be deemed to be

compulsory the imposition of the agent of payment of a pecuniary amount for each

day of failure to check in addition to the deadline for compliance

of the obligation.

4-A compulsory pecuniary penalty is fixed second criteria of reasonableness and

proportionality, meeting the trade volume of the infringer carried out in the year

previous civil and the negative impact caused on the market and users by the

default, and may its daily amount oscillate between € 2000 and € 100000.

5-The amounts set out may be variable for each day of default in the sense

growing, and may not exceed the maximum amount of € 3000000 and a period

maximum of 30 days.

Article 10.

Reoffending

1-It is punished as recidivist who to commit an offence after it has been

doomed, by final decision or carried forward on trial, for another offence of the

same type, if between the two offences has not elapsed a period higher than that of the

prescription of the first.

2-In the event of a recidivism, the minimum and maximum limits of the fine are high in a

third of the respective value, not the amount of the cofine concretely applied

be lower than the value of the fine imposed by the previous offence, except if the limits

minimum and maximum fine of the fine applicable by the practice of the previous offence are

superior to those.

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3-In the event of recidivism, the maximum limits of duration of the ancillary sanction

in the points b) , c) and (d) of Art. 12 (1) are high for double.

Article 11.

Registration

1-For the purposes of the provisions of the previous article, the ICP-ANACOM shall arrange a

registration of agents convicted of the practice of any offence, of which they must

record all sanctions applied in counterordinance processes.

2-The warnings made in accordance with Article 16 are still recorded.

3-The records made by ICP-ANACOM can be integrated and dealt with in

computer applications, in the terms and with the limits of the law on data protection

personal.

SECTION II

Ancillary sanctions

Article 12.

Ancillary sanctions

1-Whenever the seriousness of the offence and the fault of the agent justifies it, it may the ICP-

ANACOM, in addition to the application of the counter-ordinances to which there is place, to proceed to

application of the following ancillary sanctions:

a) Loss in favour of the State of illicit objects, equipment and devices,

including the product of the benefit obtained by the offender through the practice of the

counter-ordering;

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

c) Deprivation of the right to participate in contests or pitching to the fullest

of two years;

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d) Suspension of authorizations, licences or other assignments of rights to

to the maximum of two years.

2-The ancillary sanctions provided for in points b) , c) and d) of the previous number are only

applicable if the counterordinate practiced is serious or very serious.

3-Whoever disrespecting ancillary sanction that has been applied to him is punished for the crime of

qualified disobedience.

Article 13.

Loss in favour of the State

1-Without prejudice to the provisions of the paragraph a) of the previous article, consider themselves to be lost to

state for the State the illegal objects, equipment and devices that have been

cautionary or provisionally apprehended and that, after notification to those concerned, not

have been claimed within 60 days.

2-Unlawful objects, equipment and devices lost in favour of the State revert

for the ICP-ANACOM, which gives them the fate that they judge by appropriate.

CHAPTER III

From the process

SECTION I

Competence

Article 14.

Surveillance

1-Without prejudice to the powers conferred by law to other entities, the audit of the

compliance with the standards relating to the communications sector is the competence of the

ICP-ANACOM, through its supervisory officers or mandators

duly accredited by its board of directors.

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2-In the exercise of its duties, the ICP-ANACOM is coadjured by the authorities

police officers and other authorities or public services whose collaboration requests.

Article 15.

Application

1-A application of the fines and ancillary sanctions, as well as the filing of the

counter-ordering processes, are the competence of the board of directors of the

ICP-ANACOM.

2-The powers provided for in the preceding paragraphs may be delegated, with

possibility of subdelegation.

SECTION II

Processing

Article 16.

Warning

1-When it deals with less serious counterordinance that consists in wrongdoing

sanitable and from which it has no significant injury result, the ICP-ANACOM may

warn the offender, with the indication of the infringement verified, of the measures

recommended to repair the situation and the deadline for your compliance.

2-The ICP-ANACOM notifies or immediately delivers the warning to the offender for

that the irregularity is sane, warning him that non-compliance with the measures

recommended determines the initiation of counterordinance process and influi the

determination of the measure of the fine.

3-If compliance with the standard to which it respects the offence is comprobable by

documents, the agent must submit to the ICP-ANACOM those documents, in the

deadline set by this.

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4-In the case of infringement not covered by the provisions of the preceding paragraph, the ICP-

ANACOM may order the offender who, within the time limit set, to communicate to him

under commitment of honour that has taken the necessary steps to comply with the standard.

5-Sanada the irregularity, the process is shelved.

6-The disrespect of the recommended measures is weighted by the ICP-ANACOM or by the

court, in the event of judicial challenge, specifically for the purpose of verification

of the existence of doleful conduct.

Article 17.

News autos, stakes and due diligence autos

1-Without prejudice to the possibility established in the preceding article, any of the entities

referred to in Article 14 raises self of news when it checks or proves, personal

and directly, even if by non-immediate form or using the means referred to in the

Article 18 (2), any counter-ordinance within the field of the communications sector

electronic.

2-Regarding the offences of a counterordinational nature whose verification no

has been proven personally, any of the entities referred to in Article 14.

elabora educated participation with the evidence that it possesses, to which

it shall be accompanied, where possible, from the indication of witnesses, at most

of three for each fact.

3-Any of the entities referred to in Article 14 shall be doing due diligence autos when,

in the exercise of their duties, proceed to the collection of evidence.

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Article 18.

Probatory value of the news and diligence auto

1-The auctions of news and due diligence carried out in the scope of supervisory actions do

faith about the facts witnessed by the autuants, while the veracity of their

content is not substantitably called into question.

2-The provisions of the preceding paragraph shall apply to the evidence registered and

identified by means of tracked or calibrated apparatus or instruments, of

agreement with international standards, by accredited laboratories, or certificates by

entities with competence for the purpose.

Article 19.

Elements of the news self, the auto of diligence and participation

1-The news autos and the shareholdings referred to in Article 17 shall contain the

following elements:

a) The facts that constitute the infringement;

b) The day, the time, the place and the circumstances in which the offence was committed;

c) All the elements that can be ascertained about the identification and

residence of the offenders;

d) The name, category and signature of the autuant or participant;

e) The signature of the autuado, when it deals with news autos;

f) When dealing with participation, the identification and residence of witnesses;

g) The signature of the agent who raised it, which can be carried out by chancela,

digitized signature or other duly authorized means of reproduction.

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2-For the purposes of the provisions of the c) of the previous number, the autuado must be cautioned

that the address provided is worth for notification purposes, and must communicate to the

ICP-ANACOM, for this purpose, any change of residence.

3-When the person responsible for the offence is a legal person or entity equating

must indicate, where possible, the identification, residence and place of work

of the respective trustees, managers, directors and other legal representatives.

4-The provisions of the preceding paragraphs shall apply, with the necessary adaptations, to the

autos of diligence.

SECTION III

Tramway

Article 20.

Instructor entity

The instruction of the counterordinance processes competes with the services of ICP-ANACOM,

which may request, when necessary, the collaboration of the police authorities, as well as

of other authorities or public services.

Article 21.

Secret of justice

1-Ressalvades the exceptions provided for in this scheme, the procedure for against-

ordering is public, sening it applicable, with due adaptations, the precepts of the

criminal case that regulates the matter of the secret of justice.

2-A The administrative authority may, officiously or at the request of the accused or the

offended, subjecting the process of counterordinance to the regime of the secret of justice,

when the interests of the investigation warrant it or when it understands that the

advertising damages the rights of those subjects or procedural participants .

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3-In the event that the case has been subject to secret of justice, in the terms of the number

previous, the Board of Directors of ICP-ANACOM may, officiously or

upon application by the accused or the offending, determine its survey,

at any stage of the process.

4-The decisions that enact or dismist the subjection of the process the secret of justice are

liable to challenge, to the court, in the terms provided for in Article 33.

5-Subject the process to the regime of secrecy of justice, this one keeps up to the final decision,

except for the purpose of access by the accused, where it remains only until the

notification of the charge that is directed to it.

Article 22.

Sumarest process

1-When it deals with less serious or serious infringement, it may the ICP-ANACOM, before

formally charge the accused, notify him of the decision to proclaim an admonishing

or to apply to you a fine whose concrete measure does not exceed the triple of the limit

minimum of the abstractly anticipated frame for the offence.

2-Can, still, be determined to the defendants who adopt the behavior legally

required, within the time limit for the effect to be fixed.

3-A The decision provided for in paragraph 1 is written and contains the identification of the accused, the description

summary of the imputed facts, the mention of the violated legal provisions, the penalty

concretely applied and, where appropriate, the determination provided for in the number

previous.

4-The accused is notified of the decision and informed that he / she assists him the right to refuse,

within five days, and of the predicted consequence in the following numbers.

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5-A The refusal or silence of the accused within this period, the application of any due diligence

supplemental, non-compliance with the provisions of paragraph 2 or the non-payment of the fine

within 10 days after the notification referred to in the preceding paragraph determines the

immediate continuation of the counterordinance process, running out of effect a

decision referred to in paragraph 1.

6-Having the defendants proceeded to comply with the provisions of paragraph 2 and payment of the

cofine that has been applied to it, the decision becomes final, as a decision

condensation, and may not the fact again be appreciated as counter-ordinance.

7-The decisions rendered in summary proceedings are irrecurrable.

Article 23.

Tramping of the common process

The charge is notified to the offender to, within a period of time to be set between 10 and 20 working days,

submit written response, owing in any case, to join the documents

probats of which it possesses, to arrogate witnesses, up to the maximum of three for each

infringement, and apply for the evidence that it deems necessary.

Article 24.

Voluntary payment of the fine

1-Relatively to less serious and serious offences, as well as to very much offences

serious practiced with negligence, the accused can proceed to voluntary payment

of the fine within the period referred to in the previous article.

2-A fine shall be settled by the minimum value, and shall take into account the aggravation of the title

of recidivism, in the terms provided for in Article 10.

3-The accused may still proceed to the voluntary payment of the fine at the moment

subsequent to that provided for in paragraph 1, up to the final decision of the procedure, sensing it then required

likewise the payment of the costs to which there is place.

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4-If the offender acts with disrespect of the recommended measures in the auto de

warning, the fine is settled by the minimum value of the grade that corresponds to the

offence practiced with dolo.

5-Being possible to regularise the infringement situation, the voluntary payment of the

coima depends on this regularization.

6-The voluntary payment of the fine determines the filing of the case, save if the

counter-ordinance for applicable ancillary sanction, in which case it proceeds relatively

to the application of the same.

7-The filed suit, in the terms of the preceding paragraph, is reopened if it is presented

defense on the legal deadline.

8-For the purposes of Art. 10 (1), the voluntary payment of the fine amounts to

conviction.

Article 25.

Witnesses

1-The witnesses and experts indicated by the defendants in the defence must for it be

presented at the date, time and place indicated for the achievement of the inquire due diligence.

2-Except for the provisions of the previous number of the experts of the establishments,

official laboratories or services, as well as the agents of authority, albeit

arched by the accused, who must be notified by the ICP-ANACOM.

3-In the respondents ' representations referred to in paragraph 1, the use of recording shall be possible

magnetofonic or audiovisual, in which mention should be made of the beginning and end of the

survey respondent.

4-Witnesses can be heard, at their request and when justifying, by

videoconferencing, in the ICP-ANACOM delegations, owing to the auto de

Inquire the beginning and term of the recording of each statement.

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5-The affidavits, information or clarifications collected by recording or

videoconferencing are not reduced in writing nor is it necessary for your transcript to

resource effects, and should be put together to the copying process of the recordings.

Article 26.

Postponement of the respondent of witnesses

1-A survey respondents and experts can only be postponed once, if the lack to

first marking is considered justified.

2-It is considered justified the lack motivated by fact not attributable to the indebted that the

prevents from appearing in the procedural act.

3-A The impossibility of turnout should be communicated with five days of

in advance, if it is foreseeable, and up to the third day after the day designated for the

practice of the act, if it is unpredictable, by constying the communication the indication of the

respective reason and the foreseeable duration of the impediment, under penalty of no

justification of the lack.

4-The proof elements of the impossibility of turnout should be

presented with the communication referred to in the preceding paragraph.

Article 27.

Absence of the accused

The lack of comparisons of the accused to be heard on the designated day shall not preclude the

counter-ordering process follow your terms, save if the lack has been considered

justified under the previous article, in which case the regime in it is applicable

established.

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Article 28.

Notifications

1-The notifications take place by registered letter to the address provided in the terms

of Art. 19 or, failing that, to address that has been communicated to that

effect to ICP-ANACOM.

2-If, for any reason, the letters provided for in the preceding paragraph are returned to the

sender entity, the notifications are resent to the address to which the

previous number through simple letter.

3-In the case provided for in the preceding paragraph, it is washed by the instructor a quota in the process

with the indication of the date of dispatch of the letter and of the domicile for which it was sent,

considering the notification made in the 5. day after the date indicated, comination

which must appear in the act of notification.

4-notifications can also be carried out via fax.

5-May still make use of the personal notification, pursuant to the terms set out in the Code of

Criminal Procedure.

6-When there is a check on the existence of several offences committed by the same agent

may carry out a single notification.

Article 29.

Form of procedural acts

1-Procedural acts may be practiced in informatics support with affixed

qualified electronic signature.

2-Procedural acts and documents signed in the terms of the preceding paragraph

replace and waive for any effects the signature autographs in the process in

paper support.

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3-For the effects provided for in the preceding paragraphs only the signature may be used

qualified electronics in accordance with the required legal and regulatory requirements

by the State Electronic Certification Scheme.

Article 30.

Precautionary measures

1-When it proves appropriate and necessary for the preservation of the proof or for the

safeguarding of the legally tuteled goods in the applicable legal regimes, the ICP-

ANACOM may determine by setting the respective term of the

following measures:

a) Preventive suspension of some or some activities or functions exerted by the

argued;

b) Subjection of the exercise of functions or activities to certain conditions,

necessary for such exercise, in particular the performance of duties of

information.

2-The measures provided for in the preceding paragraph shall have a maximum period of one year.

3-A determination referred to in paragraph 1 vigora, depending on the cases:

a) Until the expiry of the deadline set for its duration;

b) Until its revocation by the ICP-ANACOM or by judicial decision;

c) Until the commencement of compliance with the ancillary sanctions applied under the terms of

point ( b) of Article 12 (1)

4-When a total suspension of activities or duties is determined

by the accused and this one comes to be sentenced, in the same process, in ancillary sanction

which consist in interdiction or inhibition of the exercise of the same activities or

functions, it is discounted by whole in the fulfilment of the ancillary sanction the time of

duration of the preventive suspension.

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5-A The determination of preventive suspension can be published by ICP-ANACOM,

when this proves to be appropriate and necessary for the good regulation of the sector.

Article 31.

Cautionary apprehension

1-The ICP-ANACOM may determine, pursuant to the general scheme of the

counter-ordinations, approved by the Decree-Law No. 433/82 of October 27, the

provisional seizure, in particular, of the following goods and documents:

a) Equipment;

b) Licenses, certificates, authorizations, approvals, permissions, replacement guides and

other similar documents.

2-In the case of cautionary seizure of equipment, can its owner or who the

represent to be designated faithful depositary, with the obligation not to use the goods

cautiously apprehended, under penalty of felony of qualified disobedience.

SECTION IV

Sanctions

Article 32.

Suspension of the sanction

1-The ICP-ANACOM may suspend the application of the sanctions if, attending to the conduct of the

agent, prior to or subsequent to the practice of the offence, and the circumstances of these, conclude

that the simple censorship of the fact and the threat of the sanction carry out in an appropriate manner and

enough the purposes of the punishment.

2-A suspension may be conditional on the fulfilment of certain obligations,

specifically those deemed necessary for the regularization of illegal situations.

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3-The time of suspension is set between two and five years, counting its beginning to

from the date on which the time limit of the judicial challenge of the decision is exhausted

condensation.

4-A suspension does not cover costs.

5-Elapsed the time of suspension without the accused having practiced any against-

ordering within the scope of the communications sector and without having breached the

obligations that have been imposed on it, stands the conviction without effect, proceeding,

otherwise, the implementation of the sanctions applied.

Article 33.

Challenge of sanctions

1-Without prejudice to the following number, impugned decision delivered by the ICP-ANACOM

within the framework of a counterordinance process, the one referred the respective autos to the

Prosecutor's Office, pursuant to the general scheme of the counter-ordinations, approved by the

Decree-Law No 433/82 of October 27, within 20 working days.

2-The decisions, dispatches or other measures adopted by the ICP-ANACOM in the framework

of counterordinance processes arising from the application of the Communications Act

Electronic, approved by Law No. 5/2004 of February 10, and of the Decree-Law No.

123/2009, of May 21, are challenging for the courts of commerce, in the terms

of paragraphs 1 and 5 a to 13 of Article 13 of the Electronic Communications Act, approved by the

Law No. 5/2004 of February 10.

3-A The challenge of any decisions rendered by the ICP-ANACOM that, in the framework

of counterordinance processes, determine the application of fines or sanctions

accessory or respect to the secret of justice have suspensive effect.

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4-A The challenge of the other decisions, dispatches or other measures, including the decisions

of the application of compulsory financial penalties, adopted in the framework of proceedings

of counter-ordinance instituted by the ICP-ANACOM have effect merely

bounty.

CHAPTER IV

Final provisions

Article 34.

Allocation of the product of the fines

The product of the fines and periodic penalty payments applied reverses in the

percentage of 60% for the State and 40% for the ICP-ANACOM.

Article 35.

Update of fines

The minimum and maximum amounts of the fines referred to in Article 8 are updated

triennially and commensurate in January 2012, based on the percentage increase of the

consumer price index (CPI), without housing, for Continental Portugal,

published by the National Institute of Statistics in the three preceding years.

Article 36.

Costs

1-The decisions of the ICP-ANACOM on the matter of the procedure shall fix the amount

of the expense.

2-The costs are borne by the accused and co-responsible under the present law,

in the event of the application of a fine or an ancillary sanction.

3-The expense is intended to cover the expenses incurred in the process, specifically

with notifications and communications, audio-visual means and copies or certificates of the

process.

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4-The reimbursement for the expenses referred to in the preceding paragraph shall be calculated on the grounds of

half of 0.5 UC in the first 50 sheets or fraction of the processed and a tenth

of UC by each subsequent set of 25 sheets or fraction of the processed, without

injury to the provisions of the following number.

5-In the case of proceedings relating to counter-ordinations provided for in the Law of

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

Decree-Law No. 123/2009 of May 21, the values stated in the preceding paragraph

are increased to double.

6-Should copies or certificates of the proceedings be made or parts of this at the request of the

argued, add to the value referred to in the preceding paragraph an amount calculated in the

terms predicted in the same number.

7-The expense reverses to the ICP-ANACOM.

Article 37.

Subsidiary law

To the counter-ordinances provided for in this Law, in everything as on it if you do not find

expressly regulated, shall be subsidally applicable to the provisions of the general scheme of the

counter-ordinances and their respective process, approved by the Decree-Law No. 433/82, 27 of

October.

Article 38.

Production of effects

The precepts of this Law referring to the fines and their respective values shall only apply to

from the entry into force of legislative act which, by changing the current legislation, proceed to the

classification of the counter-ordinations there typified and the respective adaptation of the values of the

fines in accordance with the provisions of Article 8 (1 a) to 5 of this Law.

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Article 39.

Entry into force

This Law shall come into force 30 days after the date of its publication.

Seen and approved in Council of Ministers of May 21, 2009

The Prime Minister

The Minister of the Presidency

The Minister of Parliamentary Affairs