Commission Of Inquiry To Parliamentary Government In Relation To The Foundation For Mobile Communications

Original Language Title: Comissão eventual de inquérito parlamentar à actuação do Governo em relação à Fundação para as Comunicações Móveis

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1 PARLIAMENTARY INQUIRY No. 1/XI Commission of parliamentary inquiry to the Government regarding the Foundation for mobile communications to FCM-Foundation for mobile communications, is a private foundation, established by the telecommunications operators TMN-Telecomunicações Móveis Nacionais, S.A., Sonaecom-Personal communications services, S.A., and Vodafone Portugal-Personal Communications, S.A. this Foundation was incorporated on September 11 2008 with regard to recognition of the State, through the Decree No. 28305-A/2008, of 4 November, the Secretary of State of the Presidency of the Council of Ministers. Pursuant to paragraph 1 of article 3 of its statutes, the FCM aims to stimulate the use of new technologies and, in particular the «promotion, development, generalisation and consolidation of communications access, particularly furniture, as well as ensure the wide use of new information and communication technologies, contributing to the economic, social and technological development of Portugal '. These same statutes still provide, in paragraph 2 of your article 3, that the Foundation should fund or subsidise projects defined and promoted by the Portuguese State, as well as fund the access to computers, too, "grant funding or subsidies to any natural or legal persons and develop, promote, finance or subsidise any projects, actions or campaigns". As Dome, the FCM has a General Council, composed of six members, three of whom are appointed by the Government, including your President. Is the General Council, in particular to "define and establish the general policies of the FCM" and "appoint and remove members of the Board of Directors and appoint its President" (see als) and e) of article 8). The top of the FCM Board fits, and arguably, the Government, although a formal entity with private legal nature. As regards the patrimonial element, the biggest uncertainty concerning the financing of the FCM has been the beneficiary, which is dissipated by the respective Report 2008, released only Accounts & a few days ago. 2 in fact, if the statutes of the WCF provide, as the three private operators serves allocation, EUR 24,900,000 capital, on the other, the same institution will received between the end of 2008 and 2009, about 36,500,000 euros of public funds, obtained by ANACOM. The values referred to show that the public funding that the FCM has been receiving determinant for the pursuit of the activity of this entity was supposed to have a private substrate. Indeed, the State has created various initiatives through which was distributed about a million computers to students of Portuguese schools (program and school and e. school). It happens that, instead of being the State to provide, by itself or through the competent public bodies, the computer equipment, the Government understood create a ruse through which this provision is carried out by private operators founders of FCM, which, to that end, and without prejudice to the financing itself, received the State the amount of EUR 47,700,000. The question in this context assumes the greatest gravity is, thus, of the State, through a fictional private entity, created under its auspices and managed by people of your political confidence, be to circumvent the legal provisions, national and community, applicable to public procurement and, thereby, to escape the control of the use of public funds. In fact, the number of distributed computers, does not doubt that the expense inherent in your purchase exceeds the legally defined limits for the exemption of public tender. It should be noted, moreover, that the doubts that the procedures adopted by the Government in this respect, appearing in, too, of the preliminary findings of the report by European Commissioner Charlie McCreevy, the internal market and services folder. If what you just refer always apply to public procurement, in the strict sense, even if you can sustain in respect of mandatory compliance with these legal constraints in the case of financing with public funds. For this understanding competes the own joint communiqué of the Ministry of public works, transport and communications and of the three mobile operators of FCM, serves July 1 2009, when acknowledges that "the legal nature of private-law Foundation does not dispense the application of the public procurement code and, consequently, the public procurement rules, in so far as the FCM is considered to be the contracting authority pursuant to article 2, paragraph 2, point (a)) of that code, since this is subject to management supervision by the Portuguese State, qualifying, for this reason, as a body governed by public law. " 3

It turns out that, without prejudice to the statement which you have just said, the Government, over the past few months, now has relied on the condition of private foundation of FCM-when it comes to justify the obligation not to tender the acquisitions carried out – now has declared that the State manages the FCM – to prove that public funds are not delivered to private management. This duplicitous arguments only accentuates the doubts about the transparency of this process, found in the Portuguese society. In fact, purchasers of computers Magellan may be private operators, but the acquisition of such equipment is necessarily made one company – the JP Sá Couto-, indicated by the State, which defined the technical characteristics of the computers, which are coincident with those of the manufactured by the same company. In addition, barely understands that a Foundation governed by private law is, in fact, effectively controlled by the Government, in particular with regard to its Board, management and operation. Who assumes the Government when, in paragraph 5 of a communiqué of the Ministry of public works, transport and communications, of 24 June 2009, stated that "the Portuguese State is responsible for the management of the Foundation, designating, by the General Council, all members of the Board of Directors, providing facilities for your operation and assigning resources for fulfilment of the obligations assumed by the State social action in the program and school." In this context, in the last parliamentary term the PSD parliamentary group has not failed to exercise its prerogatives in the supervision of the Government concerning the case of the Foundation for mobile communications, in spite of the difficulties created by the previous Socialist majority then. It should be noted, moreover, that the former Minister of public works, transport and communications has said in Parliament, the July 7 2009, that, by the end of this month, would be published the accounts of FCM, and such only happened four months after the promised. Indeed, the report 2008, FCM Accounts &-Foundation for mobile communications, has just been released on the website of this entity at the end of last November, the document referred to allowed to put an end to the doubts raised about the justification for the existence of that entity and about your own mode of operation. Therefore, one can not a valid reason, from the point of view of respect for the principles of legality and administrative transparency, for which the State has created a formally private entity but under your effective management, in order to develop an activity that would fulfill State also continue. Furthermore, remain to explain the real reasons that were at the origin of the acquisition by JP Sá Couto, company, of hundreds of thousands of computers, 4 instead of having to call for tenders, the procedure required under the laws of competition. This option of the conditional form is particularly incomprehensible Executive aware of the fact that the Ministry of education announced on November 23, 2009, that the continuation of the program of acquisition of new laptops will be made through international tenders and direct no longer. Indeed, in the face of this recent choice for tendering, as explaining that the previous Government has determined the direct acquisition of more than a million computers, a particular and specific company? Still with regard to the report of the 2008 FCM Accounts &, the same presents us with a synthetic balance, how about omitting relevant information for the accurate assessment of its activity, including with the purchase of laptop computers. The information provided by the report even data that raises particular perplexing, as is the case of which the title merely illustrative, if they enhance:  the opaque item ' Other expenses ', refers to 321,000 euros the same represents 53.7% among registered costs;  ' Cost with Internet» amounts to 130,000 euros;  the rubric «Consultants» reaches the amount of EUR 83000;  account balance ' providers ' notes ' supplies with 211,500 euro Web Site development», 106,000 euros ' supplies with events», 63000 euro ' lawyers ' and other supplies, for a total of EUR 437,500;  absence of detailed reference to suppliers;  Are mentioned but not explained advances operators amounting to EUR 6,500,000;  the FCM has three administrators (with 72000 euros total wages in the period worked) and three other employees, referring to the existence of the feature ' consultants '. These figures are all the more incomprehensible since the FCM work in the year 2008 only four months. Without prejudice to the deepening doubts about the existence and functioning of the FCM, is also by clarifying what is your connection with the information society Fund (FSI), created in June 2007 – are umbilically linked – as well as how the trade-offs for the allowances to the 3rd generation cell phones, and that would serve also to finance projects of government responsibility , are being managed and accounted for. 5

And in this respect cannot ignore the amount initially estimated at around EUR 1,300,000,000 which came to be referred to as contrast within the UMTS licenses, associated with the ISPS, especially due to the fact that it is known that the FCM succeeds the FSI, sharing some of their responsible and punctually installations. It turns out that, to date was the Assembly of the Republic clarified on how public funds involved are being managed by this or any other entity in connection with the assignment of computers, free of charge or subsidized, nor on the full compliance with national and European legislation, particularly as regards competition. The doubts that have raised above have been exacerbated not only by the lack or irrelevance of the information provided by the Government and by the FCM, the report & 2008 Accounts is no exception, but also by successive and contradictory statements from government officials. In this scenario, the Parliamentary Group of the PSD took even the initiative, on 8 July, submit this matter to the attention of the Court of Auditors, requesting this sovereign Organ conducting an audit that allows monitoring of how they've been managed public funds involved in these initiatives, your legality, as well as the discharge of responsibilities that will fit in the case of violation of legal regulations. It is therefore important that the Assembly of the Republic to exercise fully its responsibilities in the field of monitoring government policy, as well as assume the role fits in the defense of the principles of pursuit of the public interest and transparency.

Thus, the PSD parliamentary group comes to your Excellency, the President of the Assembly of the Republic, pursuant to subparagraph (a)) of paragraph 2 of article 2 of law No. 5/93, from March 1, republished after your second amendment introduced by law No. 15/2007, of 3 April, the establishment of a Commission of parliamentary inquiry to assess the actions of the Government in relation to the Foundation for mobile communications and the background for the information society, in accordance with the subject and the following foundations explained. The Parliamentary Inquiry Commission aims in particular to: 1. Assess how managed public funds have been allocated to the FCM-Foundation for mobile communications, and the background for the information society, including the funds resulting from compensation by the licenses granted to the 3rd generation cell phones; 2. Identify all persons, public or private, natural or legal persons, that have been, directly or indirectly, in any capacity, financed or having received payment of the FCM; 6 3. Identify the entities, integrated or outside the Ministry of public works, transport and communications, which has been tracking and monitoring of acts done by the FCM or by the Fund for the information society, as well as its monitoring and budgetary control and the destination given to information collected; 4. Verify compliance with all the applicable legal provisions, national and community, including hiring, by the FCM or under the projects defined and promoted by the Portuguese State and for her, directly or indirectly, managed, financed, supported or monitored; 5. Meet the justification presented by the Portuguese Government to the European Commission, on suspicion of infringement of Community law of competition, within the framework of the procedures for acquisition of computers Magellan by direct agreement; 6. Whether the choice of the legal nature of the FCM was determined or not by the objective of avoiding the obligation to observe public tender and consultation procedures prior to the award of the acquisition of hardware and software; 7. check the existence of a monopoly in the production and supply of computers Magellan by JP Sá Couto company and, if so, to establish the foundation thereof; 8. Assess to what extent the procedures followed by the Portuguese State were of full transparency with regard to the FCM, in particular within the framework of the program and school and the initiative and. nursery school; 9. Confirm that the obligations undertaken by the Government to the private operators, through intervention in WCF, have been or are being complied with.

São Bento Palace, 7 December 2009 members of the PSD Parliamentary Group