The level of administrative litigation rose in 2011, compared to the previous year.
In addition to intervening in 13 new judicial procedures that were brought in 2011 (in which ICP-ANACOM was cited), ICP-ANACOM also monitored 39 cases carried over from previous years that remain ongoing - litigation therefore remains at relevant levels.
Graph 61. Administrative litigation procedures - 2011
Source: ICP-ANACOM.
The 14 cases initiated in 2011 comprise four special administrative actions, two common administrative actions, two cases of pre-contractual litigation, three subpoena procedures and two protective orders:
- special administrative action brought by PTC and by TMN challenging ICP-ANACOM determination of 30.07.2010, which decided on the intervention request presented by MobiZAPP - Comunicações Eletrónicas, S.A. (formerly Radiomóvel) seeking to obtain access or interconnection of its network, as used in the provision of the mobile trunking service, with the networks of PTC, Optimus (formerly Sonaecom), TMN and Vodafone. ICP-ANACOM submitted its response in 2011. The case is pending;
- special administrative action brought by PTC and by PT Prime, seeking partial annulment of ICP-ANACOM determination of 28 September 2010, "Final decision on the definition of the product markets and geographic markets, assessment of SMP and the imposition, maintenance, alteration or suppression of regulatory obligations on the retail market and on the wholesale markets of terminating and trunk segments of leased lines". ICP-ANACOM submitted its response in 2011. The case is pending;
- special administrative claim procedure related to administrative actions brought by PT Comunicações, seeking annulment of ICP-ANACOM determination of 9 June 2011, approving the "decision on the concept of unfair burden" and the "decision on the methodology to be used in calculating the net cost of universal service" (later amended following a complaint presented by plaintiff on 29 August 2011). A response is to be submitted in 2012. The case remains pending;
- special administrative procedure related to administrative acts, brought by Vodafone Portugal and seeking: (i) annulment of the decision of 18 August 2011 (ratified by determination of 29 August 2011) on the complaint submitted by the plaintiff and annulment of the new decision on the methodology to be used in calculating the CLSU, (ii) a ruling against ICP-ANACOM as regards the identification of which companies are currently authorized to operate electronic communications networks in Portugal; and (iii) a ruling against the regulator as regards the provision of information on the impact of the amendment introduced by that determination. A response is to be submitted in 2012. The case remains pending;
- common administrative action brought by Optimus seeking compensation for damages that the plaintiff claims to have suffered due to errors for which it holds ICP-ANACOM liable, regarding the approval and notification of determination of 2 July 2008 (establishment of maximum termination prices on the networks of Optimus, TMN and Vodafone, to apply from 15 July 2008). ICP-ANACOM responded in 2011 - the case remains pending;
- common administrative action brought by ONITELECOM comprising various applications: (i) a ruling against ICP-ANACOM as regards the recognition of a credit of the plaintiff and recognition of compensation paid by the plaintiff, (ii) a ruling against ICP-ANACOM as regards payment of the difference between the value of the credit and the amount of compensation referred to in the preceding paragraph; and (iii) alternatively, a declaration of the effectiveness of ICP-ANACOM determination of 2 July 2008, as regards the period 15.07.2011 to 07.08.2011. ICP-ANACOM submitted its response in 2011 - the case remains pending;
- pre-contractual litigation procedure brought by Ambisig - Ambiente e Sistemas de Informação Geográfica seeking annulment of ICP-ANACOM determination of 21.07.2011, which gave approval to the final report of the procedure panel and decided to award the contract to a third party in the case, Capgemini, and a ruling against ICP-ANACOM Management ordering issue of a determination excluding Capgemini's proposal and awarding the contract to the plaintiff, within seven days. The response was submitted in 2011. The case is pending;
- pre-contractual litigation procedure brought by Ambisig - Ambiente e Sistemas de Informação Geográfica, challenging the determination of 20.10.2011, seeking that the regulator be ordered to issue a decision overturning selection of the proposal by the third party in the case, Capgemini, and simultaneously, a decision to award in favour of the proposal submitted by the plaintiff, or, otherwise, that: (i) the public procurement procedure be annulled; (ii) that the defendant be ordered to issue a new contracting decision, with pre-contractual procedure restricted by prior qualification; and (iii) approval of a new procedure schedule that considers, among the minimum requisites of technical capacity, possession by candidates of certificates in respect of standards: ISO/IEC20000:2005, ISO/IEC27001:2005, ISO9011:2008 and ISO14001:2004). ICP-ANACOM's response was submitted in 2011 - the case is pending;
- protective order regarding a contract formulation procedure brought by Ambisig - Ambiente e Sistemas de Informação Geográfica seeking suspension: (i) of the procedure concluding the contract to provide services for the implementation and management of a centralise information system; and (ii) of the effectiveness of ICP-ANACOM determination of 20.10.2011. ICP-ANACOM submitted its opposition in 2011. The case remains pending;
- protective order of suspension of validity of the administrative act proposed by NFM - Global and Rádio NFM, presented against ERC, in which ICP-ANACOM was cited following an application subsequently entered by the applicants. ICP-ANACOM submitted its opposition, claiming passive illegitimacy;
- subpoena procedure as regards provision of information, process consultation and issue of documentation brought by PT Comunicações, seeking an order that ICP-ANACOM issue a simple and complete copy of a document of the administrative procedure by which the draft decision was issued concerning the concept of unfair burden and the methodology to be used for calculating the net costs of providing the US of telecommunications. ICP-ANACOM submitted its response in 2011; a ruling in the case was issued in the same year, whereby the defendant was ordered to provide the information sought. The regulator entered a court appeal of the ruling, which has not yet been decided;
- subpoena procedure as regards provision of information, process consultation or issuance of certificates brought by TVI - Televisão Independente, seeking access and consultation of the proposal presented by PTC to the national tender for the allocation of a right of use of frequencies, on a national basis, for the digital terrestrial television broadcasting service (associated with Multiplexer A), including information in respect of the respective economic/financial plan. ICP-ANACOM submitted its response; the case was decided with a ruling unfavourable to the applicant issued in 2011. TVI filed an appeal, which has not yet been decided; and
- subpoena process regarding the provision of information, process consultation or issuance of certificates brought by Ambisig - Ambiente e Sistemas de Informação Geográfica seeking an order against ICP-ANACOM to: (i) provide certified information indicating the status of the public tender procedure and what steps or actions were taken subsequent to the preliminary report; and (ii) provide the applicant with a certificate, by simple photocopy, of the supporting documentation of all acts and steps undertaken in respect of the procedure in question, subsequent to notification of the preliminary report, including any submissions of other tenderers pursuant to the prior hearing. ICP-ANACOM submitted its response in 2011. By ruling issued in the same year, it was declared without need to adjudicate and ICP-ANACOM ordered to pay costs. The regulator appealed part of the court's ruling, which came to be decided by judgment in 2011 (where it was decided not to recognise the appeal).
