Although the behaviour described in the preceding point does not constitute an offence, it is nonetheless objectionable, given that, under the applicable legal system, explicitly stated by this Authority by fax submitted to PTC and MEO on 23 December 2014, these companies knew (and could not be unaware) of competences to be exercised by this Authority before the transfer of rights of use for frequencies and of radio licenses took effect, ICP-ANACOM being ultimately entitled to oppose the intended transfer, for duly justified reasons, or to impose the conditions deemed to be necessary (article 34, paragraph 6, of the Electronic Communications Law and article 14, paragraph 6, of Decree-Law No. 151-A/2000, of 20 July), as well as to take the steps involved in the transfer of such rights, namely to promote the hearing of the Competition Authority (article 34, paragraph 7, of ECL).
As such, bearing in mind, as referred earlier, that license ICP-ANACOM No. 02/2012, granting rights of use for frequencies for the provision of terrestrial electronic communications services establishes:
- As regards rights of use for frequencies allocated before the multiband auction, that MEO is required to notify ICP-ANACOM in advance of its intention to transfer its rights of use for frequencies, as well as of conditions for doing so, under article 34 of the Electronic Communications Law and provisions in force at any given time in the NFAP (clause 12 of the RUF).
- As regards rights of use for frequencies in the 800 MHz, 1800 MHz and 2.6 GHz bands, allocated subsequently to the multiband auction, such rights may only be transferred, in compliance with article 34 of the Electronic Communications Law, following a two-year period from the date of commencement of commercial operation of services, on the basis of an effective use of frequencies assigned, except for demonstrated good cause, acknowledged as such by ICP-ANACOM. For this purpose MEO is required to notify ICP-ANACOM of its intention to transfer its rights of use for frequencies, as well as the conditions to do so, under article 34 of the Electronic Communications Law and provisions in force at any given time in the NFAP.
It was incumbent on ICP-ANACOM to check whether the time condition established as a rule for the transfer of rights of use for frequencies in the 800 MHz, 1800 MHz and 2.6 GHz bands, allocated subsequently to the multiband auction, had been met.
According to data available at this Authority, MEO (at the time called TMN), notified on 15 March 2012 that it had commenced operating 4 G services using the 2.6 GHz frequency band on 13 March 2012.
On 27 April 2013, this same company informed ICP-ANACOM that it intended to start operating services in the 800 MHz on 30 April 2012.
As far as the 1800 MHz band is concerned, it must be recalled that further to the multiband auction and under article 31 of the respective Regulation (Regulation No. 560-A/2011, of 19 October), a specific allocation procedure was launched, which involved the redistribution of spectrum in this band through an agreement reached among the three mobile network operators, which was approved by determination of ICP-ANACOM of 9 March 2012. As such, under the agreed and approved terms, mobile operators made the redistribution of frequencies effective, having this Authority issued MEO (at the time still called TMN) the respective radio license on 1 August 2012, date as from which this company started providing services in the spectrum assigned in the 1800 MHz band.
This clearly shows that MEO was entitled to request the transfer of these rights of use for frequencies, having complied with the time condition set out in license ICP-ANACOM No. 02/2012.
Notwithstanding, and given that on 29 December 2012, MEO’s merger by acquisition into PTC was registered - a fact that, under article 112 of the Código das Sociedades Comerciais, has constitutive effect, whereupon the acquired company (MEO) is extinguished and the whole of its rights and obligations are transferred to the acquiring company (PTC, now known as MEO - Serviços de Comunicações e Multimédia, S.A.) - it is important to check whether conditions must be imposed in the scope of this operation, under the applicable legal regime.
As such, taking into account that the merger by acquisition of MEO into PTC (i) involved the transfer of rights of use for frequencies between companies of the same economic group, (ii) has an exclusively internal impact on the PT Group, (iii) is not likely to provoke competition distortions on the market, namely due to the accumulation of rights of use, having AdC concluded that the claim of the PT Group is not likely to give rise to distortions of competition, specially as regards the creation of significant barriers to effective competition in the national market or in a substantial part thereof, and (iv) is without prejudice to the effective and efficient use of frequencies;
ICP-ANACOM takes the view that the imposition of conditions to ensure compliance with paragraph 5 of article 34 of the Electronic Communications Law and with paragraph 6 of Decree-Law No. 151-A/2000, of 20 July, is not required. There is only need for amendment of license ICP-ANACOM No. 02/2012, granting rights of use for frequencies for the provision of terrestrial electronic communications services, so as to include the legal person identification number and new address of the acquiring company’s headquarters.
Lastly, and bearing in mind that elements in the procedure lead to a decision in favour of interested parties, and which meets their request, it is also deemed that the prior hearing of the at present MEO may be waived, under paragraph 2 b) of article 103 of the Administrative Procedure Code.
