18.2. Decisions taken in respect of breach proceedings

Of the total cases pending in 2012, 343 were decided. In 238 cases, ICP-ANACOM saw fit to apply fines, penalties or declared forfeiture of equipment. In 45 cases, given the reduced gravity of the offence and of the culpability of the offender, admonitions were applied. In 60 cases the accused were acquitted.

Graph 53. Cases decided in 2012

Source: ICP-ANACOM.

Notable decisions include:

• A fine of 6,666,500 euros, applied to Optimus in respect of a breach of ICP-ANACOM determinations of 17 December 2004 and 26 October 2005, which set a maximum average revenue of 0.90 cents per minute for call termination prices on the FTS networks of operators not belonging to Grupo PT. This decision was appealed to the Tribunal da Concorrência, Regulação e Supervisão (Court of Competition, Regulation and Supervision).
   
• On the same basis, but considering that the deviation found was much smaller, a fine of 25 thousand euros was likewise applied to ONI; this fine has been paid by the accused.
   
• A fine of 50 thousand euros applied to PTC for failure to comply with performance targets applicable to the US. By decision of Tribunal da Concorrência, Regulação e Supervisão (Court of Competition, Regulation and Supervision), the fine was reduced to 40 thousand euros.
   
• The first decision for breach of the regime governing complaint books, in which a fine of 7 thousand euros was imposed, was subject to appeal to the Tribunal da Concorrência, Regulação e Supervisão (Court of Competition, Regulation and Supervision).
   
• 8 decisions for failures to respond to electronic portability requests or time-outs, in which fines were applied amounting to 146 thousand euros in total; three of these decisions were appealed.
   
• 4 further fines of 147 thousand euros, in respect of offences relating to portability, two of which have been appealed.

In addition to the fine applied to Optimus of 6,666,500 euros, the remaining fines correspond to a total of 976 997 euros, with total fines in 2012 amounting to 7,643,497 euros; as a result of judicial decisions already issued in respect of appeals, this figure has been reduced by 42,800 euros.

In the matter of fines, an increasing number of cases are being referred to the Ministério Público (Public Prosecutor) for the purposes of execution (10 in 2011 increasing to 60 in 2012).

Pursuant to Law no. 99/2009 of 4 September, costs were applied in decisions involving the application of a fine and/or additional sanction; these costs have amounted to 41,841.66 euros. Only 41% of this amount has been settled.

The following table summarises data in relation to fines and costs applied in 2012.

Source: ICP-ANACOM.

During the year, 59 appeals were filed against decisions made in 2012, which represents a very significant increase compared to the 20 appeals filed in 2011. In addition, rulings were issued in respect of 44 appeals (largely carried forward from previous years), in which 7 administrative decisions were fully maintained, while fines were reduced in 15 cases and revoked in 15 others. 7 cases were declared extinguished by the effect of prescription or for other reasons.