Notwithstanding the fact that, as PTC refers, under the Código das Sociedades Comerciais (the Portuguese Companies Act), the rights and obligations of the acquired company (MEO) are transferred under exactly the same terms to the acquiring company (PTC) with the final registration of the merger in the commercial register, it is equally true that the legislator did not waive nor did it provide for derogation from legal rules the opposability or full effectiveness of which is dependent on certain formalities, as regards certain transfer acts.
This position taken by ICP-ANACOM is public and PTC was fully aware of it, as it was specifically established in the scope of the procedure for transfer of rights of use for numbers resulting from the merger by acquisition of PT Prime into PTC, the final decision1 of which stressed as follows:
«It is also clarified that, as referred above, PT PRIME does not hold any right of use for frequencies. If it did, the respective transfer would be subject to the procedure laid down in article 34 of ECL, namely the requirement for holders of rights of use for frequencies to previously communicate their intention to this Authority. This means, in this specific case, that PT PRIME would be subject to comply with the obligation to communicate its intention to ICP-ANACOM before the merger operation took place, given that such operation would involve the transfer of its rights of use.
Analysing this specific request, it is concluded that the merger by acquisition that involved the overall transfer of PT PRIME’s assets to PTC, and in the scope of which obligations that fell on PT PRIME were fully transferred to the acquiring company - PTC -, entails, as such, the transfer of rights of use for numbers, which must be assessed by this Authority under article 38 of ECL.»
Furthermore, as highlighted in the prior hearing report concerning this decision2, the transfer of assets in the scope of a process of merger by acquisition is not merely a question of the entry in the register, although this step is endowed with constitutive effectiveness, given that it involves a process of negotiation and approval promoted by interested parties, that in the electronic communications sector may be the holders of rights of use for frequencies, of rights of use for numbers and of radio licenses, as is the case of MEO.
In this context, although PTC and MEO failed to specifically mention the applicable legal framework and to explicitly present the required request for authorization, ICP-ANACOM took the view that the communication submitted should be integrated and analysed under the provisions laid down in the Electronic Communications Law and of Decree-Law No. 151-A/2000, of 20 July, having thus been launched the appropriate procedure for the exercise of its powers in these matters, in the light of the deadlines provided for under the law - a position which was conveyed to PTC and MEO by fax dated 23 December 2014.
As such, as regards RUF ICP-ANACOM No. 02/2012, the procedure laid down was followed, that is:
- Under paragraph 5 a) of the article 34 of the Electronic Communications Law, MEO’s intention to transfer to PTC its rights to use frequencies for the provision of terrestrial electronic communications services was published at this Authority’s website [at MEO requests transfer of rights of use frequencieshttps://www.anacom.pt/render.jsp?contentId=1343951]; and
- Pursuant to article 34, paragraph 7, of ECL, ICP-ANACOM sought AdC’s opinion.
Notes
1 Available at ''Transfer of rights of use of numbering resources to PT Comunicaçõeshttps://www.anacom.pt/render.jsp?contentId=1247252''.
2 Vide in this regards the prior hearing report on the transfer to PT Comunicações of rights of use for numbers held by PT Prime, available at ''Relatório da audiência préviahttps://www.anacom.pt/render.jsp?categoryId=363175''.
