Assembleia da República (Assembly of the Republic)
Law
(This is not an official translation of the law)
Establishes a compensation fund for the electronic communications universal service, provided for in the Electronic Communications Law, for the financing of net costs arising from the provision of the universal service.
The Assembleia da República (Assembly of the Republic) hereby decrees, under article 161 c) of the Constitution, as follows:
CHAPTER I
General Provisions
Article 1
Subject-matter
1 - This law establishes a compensation fund for the electronic communications universal service, provided for in paragraph 2 of article 97 of Law No 5/2004, of 10 February (the Electronic Communications Law), as amended and republished by Law No 51/2011, of 13 September, and sets out the criteria for sharing the net costs of the universal service among undertakings required to contribute thereto.
2 - The compensation fund shall finance net costs arising from the provision of the universal service.
Article 2
General principles
1 - The operation of the compensation fund is embedded in the principles of transparency, non-discrimination, proportionality and minimal market distortion.
2 - The financing of the net costs of the universal service shall be based on its sharing among undertakings providing public communications networks and/or publicly available electronic communications services on national territory.
3 - For the purpose of the preceding paragraph, contributions from undertakings providing public communications networks and/or publicly available electronic communications services on national territory shall be channelled into the compensation fund.
CHAPTER II
Compensation fund
Article 3
Legal nature of the compensation fund
1 - The compensation fund shall be deemed to constitute autonomous property, without legal personality, under the administration of ICP - Autoridade Nacional das Comunicações (ICP - ANACOM), that shall ensure, as managing body, its legal representation.
2 - The compensation fund shall not, under any circumstance, be held liable for the debts of the managing body, nor is the latter liable for claims against the fund.
3- The accounts of the compensation fund shall be autonomous and separate from the accounts of ICP - ANACOM.
4 - ICP - ANACOM, as managing body, shall be responsible for organizing the accounts of the compensation fund in line with standards of the Sistema de Normalização Contabilística (SNC - the Accounting Standards System).
5 - The Report and Accounts of the compensation fund shall be submitted to an opinion prepared by a statutory auditor or an audit firm.
6 - The Report and Accounts, as well as the opinion referred to in the preceding paragraph, shall be published and submitted to the ministry to which ICP - ANACOM reports.
Article 4
Administration of the compensation fund
1 - ICP - ANACOM is charged with performing all acts required for a proper administration of the compensation fund, namely:
a) Managing and ensuring an effective collection of contributions from undertakings providing public communications networks and/or publicly available electronic communications services on national territory;
b) Managing transfers and payments to be made to the universal service provider or providers;
c) Administering the financial resources of the compensation fund;
d) Drawing up and publishing on an annual basis a report with the established cost of the universal service obligations, indicating contributions made to the compensation fund by all undertakings involved.
2 - ICP - ANACOM is entitled to perform at any time all acts required to carry out competences provided for in this law, namely to request and obtain relevant information from undertakings providing public communications networks and/or publicly available electronic communications services, as well as to launch audit actions.
Article 5
Revenues
1 - The following shall constitute revenue assigned to the Fund:
a) Contributions from participating undertakings;
b) The value of the annual remuneration paid to the State as consideration for supplying the universal service related to the provision of a comprehensive telephone directory and directory enquiry service, under the respective contract, where appropriate;
c) Proceeds of contractual fines or penalties applied to the universal service provider or providers, under the contract for provision of the universal service;
d) Income from the administration of the compensation fund, namely income from deposit accounts where the fund’s liquid assets are held;
e) Interest referred to in paragraph 7 of article 11, paragraph 1 of article 13, paragraph 4 of article 19 and paragraph 3 of article 20;
f) Other revenues assigned to the fund by law.
2 - Bodies that, pursuant to point b) of the preceding paragraph, must pay to the State remuneration as consideration for the provision of the referred universal service shall deposit in the compensation fund the value of the remuneration due for the preceding calendar year.
3 - The financial resources of the compensation fund shall be deposited in a specific deposit accounts created for the purpose with the Instituto de Gestão da Tesouraria e do Crédito Público (the Treasury and Public Credit Management Institution), I.P., which shall guarantee that conditions of service provision, namely in terms of remuneration, are equivalent to those of the banking system.
4 - Revenues for the compensation fund shall be assigned to the financing of net costs of the universal service.
Article 6
Net costs of the universal service
The compensation fund is intended for the financing of net costs of the universal service determined in the scope of tenders referred to in paragraph 3 of article 99 of Law No 5/2004, of 10 February, as amended and republished by Law No 51/2011, of 13 September, that are deemed by ICP - ANACOM to be excessive, according to paragraph 1 b) of article 95 and article 97 of the same law, as well as for the financing of net costs of the universal service referred to in chapter V.
CHAPTER III
Financing of net costs of the universal service
Article 7
Subjective impact
1 - Undertakings providing public communications networks and/or publicly available electronic communications services on national territory that, in the calendar year to which the net costs relate, registered an eligible turnover in the electronic communications sector which gives them a weight equal to or higher than 1% of the sector’s overall eligible turnover, shall be liable to contribute to the compensation fund.
2 - The undertaking or undertakings responsible for the provision of the universal service shall also be included among the range of undertakings liable to contribute to the compensation fund, insofar as they have registered an eligible turnover equal to or higher than that referred in paragraph 1.
3 - For the purposes of this law, shall be deemed to be a single undertaking the set of bodies that, though legally separate companies, constitute, by 31 December of the calendar year to which the net costs relate, an economic unit or have interdependence links between them, arising namely from:
a) A majority shareholding;
b) Holding more than half the voting rights attaching to shares;
c) Power to appoint more than half the members of the administrative board or of the supervisory board;
d) Power to manage the respective business.
Article 8
Eligible turnover
1 - The turnover to be considered for the purpose of this law is the eligible turnover, which corresponds to the value of sales and services provided on national territory, after deducting the values corresponding to:
a) Revenues from activities not related to the provision of electronic communications networks and/or publicly available electronic communications services;
b) Revenues from transactions between bodies that belong to the same undertaking;
c) Sale of terminal equipment.
2 - Revenues from activities developed outside national territory shall not be used in the calculation of the eligible turnover.
3 - The value related to value added tax shall not be used in the calculation of the eligible turnover.
Article 9
Weight of undertakings
1 - The weight of undertakings in the electronic communications sector is calculated according to the following formula:
Pi = (Vi/(sum) Vi)
where:
Pi - weight of the company in the electronic communications sector;
Vi - eligible turnover in the electronic communications sector on national territory for company i in the calendar year concerned;
(sum) Vi - eligible turnover in the electronic communications sector on national territory for all companies providing electronic communications networks and/or publicly available electronic communications services in the calendar year concerned.
2 - In the case of undertakings constituted by more than one body, the sum of the eligible turnover for each of the integrating bodies shall be considered for the purposes hereof.
Article 10
Criteria for sharing net costs
1 - Net costs referred to in article 6 shall be shared every year among undertakings required to contribute to the compensation fund, according to and in proportion with the respective eligible turnover achieved in the calendar year to which the costs relate.
2 - The following values shall be deducted from the amount of net costs of the universal service:
a) The value of the annual remuneration paid to the State as consideration for supplying the universal service related to the provision of a comprehensive telephone directory and directory enquiry service, under the respective contract, where appropriate;
b) Proceeds of contractual fines or penalties applied to the universal service provider or providers, under the contract for provision of the universal service, that are available in the compensation fund at the time the contribution entry procedure starts;
c) Income from the administration of the compensation fund, namely income from deposit accounts where the fund’s liquid assets are held, that are available in the compensation fund at the time the contribution entry procedure starts;
d) Interest referred to in paragraph 7 of article 11 and in paragraph 1 of article 13 that are available in the compensation fund at the time the contribution entry procedure starts;
e) Other revenues assigned to the compensation fund by law that are available in the compensation fund at the time the contribution entry procedure starts.
3 - For the purpose of paragraph 1, the net costs of the universal service shall be shared among all legally autonomous bodies that integrate the same undertaking required to contribute to the compensation fund, in proportion with the respective eligible turnover, even where the weight of some of those undertakings in the electronic communications sector, calculated according to the preceding article, is lower than 1% of the sector’s overall eligible turnover.
Article 11
Entry of contributions
1 - It is incumbent on ICP - ANACOM to identify every year the bodies required to contribute to the compensation fund and to set the relative share of contributions of each body according to the amount of costs to be compensated in the calendar year concerned, indicating, for each body, the precise amount of the respective contribution.
2 - The procedure for the identification of bodies required to contribute to the compensation fund and for the determination of the amount of contributions shall initiate on the third quarter of the calendar year following that to which relate the net costs to be compensated, on the basis of the eligible turnover of the calendar year to which the net costs relate.
3 - On completion of the procedure set out in the preceding paragraph, ICP - ANACOM shall draw up a list with the following information:
a) Bodies required to contribute to the compensation fund;
b) Eligible turnover for calculation of contributions due to the compensation fund;
c) Value of contributions of each body, increased with compensatory interest due pursuant to paragraph 7, if any;
d) Value of the compensation to be paid to the universal service provider or providers;
e) Any justified corrections and adjustments, namely in accordance with data collected as regards the effectively achieved eligible turnover, where appropriate.
4 - The list referred to in the preceding article shall be submitted to a prior hearing, under the Administrative Procedure Code.
5 - The final decision on the entry of contributions to the compensation fund shall be notified to the bodies indicated in the list provided for in paragraph 3 and must bear the liquidation value of the respective contribution, as well as the bank account into which the contribution is to be made.
6 - ICP - ANACOM shall publish the final decision provided for in the preceding paragraph in its website.
7 - Where the entry or liquidation of contributions are delayed or defective due to the fault of undertakings required to contribute to the compensation fund, compensatory interest shall be due on the established contribution value, in accordance with general tax law, approved by Decree-Law No 398/98, of 17 December.
Article 12
Payment of contributions
1 - Bodies required to contribute to the compensation fund shall pay the respective contribution within 20 days after the decision provided for in paragraph 5 of the preceding article is notified.
2 - ICP - ANACOM may authorize the universal service provider or providers not to pay the respective contribution where the value of the compensation to which they are entitled exceeds the value of the contribution which they are required to pay, and in this case the amount of the compensation to be transferred to the universal service provider or providers shall be deducted of the value of the respective contributions.
3 - ICP - ANACOM may also authorize the universal service provider or providers to pay the respective contribution deducted of the value to which they are entitled, where the value of such compensation is lower than the value of the contribution which they are required to pay.
4 - At the request of the interested parties, the time-limit provided for in paragraph 1 may be extended by ICP - ANACOM, by way of exception and in duly substantiated cases, for a period not exceeding 10 working days.
Article 13
Non-compliance with the obligation to pay
1 - Without prejudice to penalty mechanisms provided for in Law No 5/2004, of 10 February, as amended and republished by Law No 51/2011, of 13 September, interest on account of late payment shall be due in accordance with general tax law for failure to pay contributions within the time-limits established in article 12, to be settled when the contribution is paid.
2 - Default in voluntary payment of contributions due to the compensation fund implies the issue of a debt certificate which shall be enforceable in a tax execution procedure, being incumbent on the managing body to promote the respective enforced payment in accordance with the Administrative and Judicial Tax Procedure Code.
3 - Before issuing the certificate referred to in the preceding article, ICP - ANACOM shall send a warning letter to the non-compliant body by registered post with acknowledgement of receipt.
4 - The value of contributions due to the compensation fund that is not paid by means of the enforced payment proceedings provided for in paragraph 2 shall be apportioned among other bodes required to contribute to the fund, in the proportion of the respective turnover figures, in compliance with paragraphs 5 to 7 of article 11 and article 12, duly adapted.
5 - In addition to procedures provided for in the preceding paragraphs, ICP - ANACOM shall determine the immediate suspension of the activity of the non-compliant body.
Article 14
Transfers to universal service providers
1 - The transfer to the universal service provider or providers of the amount of the compensation for the net costs of the universal service shall take place within 15 months from the end of the calendar year to which the costs relate, without prejudice to a possible delay resulting from late payment of contributions.
2 - The delay in the payment of contributions referred to in the preceding paragraph shall be without prejudice to the payment to the universal service provider or providers, within the time-limit set out therein, of the amount of compensation available in the compensation fund.
3 - In the situation referred to in the preceding paragraph, where more than one universal service provider exists, the payment of the amount of compensation available in the compensation fund shall be distributed among the various universal service providers in proportion to the values that are due to them.
4 - The values deposited in the compensation fund after the time-limit referred to in paragraph 1 shall be transferred to the universal service provider or providers within 10 working days from their receipt.
5 - Where the transfer of the amount of compensation to the universal service provider or providers does not take place within the time-limits provided for in paragraph 1, due to non-payment of contributions within the time-limits set out in article 12, the interest on account of late payment referred to in paragraph 1 of article 13 that is effectively received shall be paid to the universal service provider or providers.
CHAPTER IV
Control
Article 15
Information duties
1 - Undertakings providing public communications networks and/or publicly available electronic communications services, on national territory, shall send to ICP - ANACOM, by 30 June every year, a statement on the preceding calendar year, signed by a person entitled to enter into legally binding commitments, acknowledged as such, with the turnover value and other information required to calculate the eligible turnover, as defined in article 8.
2 - For the purpose of the preceding paragraph, where the tax year does not correspond to the calendar year, undertakings must indicate the values they deem to correspond to the calendar year, substantiating their position.
3 - Failure to comply with information duties referred to in the preceding paragraphs shall be deemed to constitute an infringement of the information obligation provided for in article 108 of Law No 5/2004, of 10 February, as amended and republished by Law No 51/2011, of 13 September, sanctioned as a breach pursuant to paragraph 2 mm) of article 113 of that law.
4 - In case of termination of activity, undertakings must submit to ICP - ANACOM the statement referred to in paragraph 1 within 15 days from the date of termination.
5 - Where the situation referred to in the preceding paragraph leads to the dissolution and liquidation of undertakings, the rules of the Code of Commercial Companies shall apply to contributions due to the compensation fund, namely those concerning the enforceability of claims and debts of the company, liquidation of liabilities and liability of shareholders.
Article 16
Audits
1 - ICP - ANACOM is entitled to launch audit actions aimed at:
a) Collecting the elements required to calculate the eligible turnover provided for in article 8;
b) Checking the correctness and accuracy of the various elements that have an impact on the determination of the amount of net costs and/or contributions due to the compensation fund.
2 - Audits shall be carried out in compliance with general tax law provisions that concern tax procedure, general provisions of the Administrative and Judicial Tax Procedure Code, approved by Decree-Law No 433/99, of 26 October, and rules of the Supplementary Regime of Tax Inspection Procedure, approved by Decree-Law No 413/98, of 31 December, duly adapted in the light of specificities of the contribution regime established herein and of the organisational structure of ICP - ANACOM.
3 - For the purpose of the preceding paragraphs, ICP - ANACOM is entitled to use its own services or to engage external consultants with special skills and qualifications, namely statutory auditors or audit firms.
4 - Persons or bodies involved in inspection actions shall be duly accredited by ICP - ANACOM.
CHAPTER V
Compensation of net costs in the period preceding the designation by tender of the universal service provider
Article 17
Financing of net costs in the period preceding the designation by tender
1 - The compensation fund established herein shall also be called to compensate net costs of the universal service incurred until the provider or providers designated pursuant to paragraph 3 of article 99 of Law No 5/2004, of 10 February, as amended and republished by Law No 51/2011, of 13 September, begin to provide the universal service, where cumulatively:
a) Evidence exists of net costs, further to an audit, that are deemed to be excessive by ICP - ANACOM, according to paragraph 1 a) and paragraph 2 of article 95 and articles 96 and 97 of Law No 5/2004, of 10 February, as amended and republished by Law No 51/2011, of 13 September;
b) The universal service provider requests of the Government compensation of costs referred to in the preceding point.
2 - The amount of net costs to be compensated in the period preceding the designation by tender corresponds to that to be approved by ICP - ANACOM, in accordance with point a) of the preceding paragraph.
3 - For the purpose of the audit referred to in point a) of paragraph 1, the universal service provider must submit to ICP - ANACOM, by the end of October every calendar year, in case it has not already done so, the preliminary calculation of net costs of the universal service for the preceding calendar year, as well as elements to support such calculation, in a fully transparent and auditable manner, and in the terms established by ICP - ANACOM.
4 - The universal service provider must request of the Government the compensation of net costs of the universal service that are approved further to the audit within at least five days from notification of the final decision of approval by ICP - ANACOM of the value of the referred costs.
5 - Compliance with obligations referred to in the preceding paragraphs, within the time-limits established therein, shall be deemed to be a requirement for the financing of net costs of the universal service incurred in the period preceding the designation by tender.
6 - The provision in paragraph 3, on the time-limit to submit to ICP - ANACOM the preliminary calculation of net costs of the universal service, shall not apply to years before 2011.
Article 18
Extraordinary contribution
1 - Undertakings providing public communications networks and/or publicly available electronic communications services on national territory shall be required to make an extraordinary contribution to the compensation fund, relatively to each of the years 2013, 2014 and 2015, exclusively intended for the financing of net costs referred to in the preceding article that are approved by ICP - ANACOM in those years.
2 - The preceding paragraph shall not apply to undertakings that, in each of the years referred therein, register an eligible turnover in the electronic communications sector that is lower than 1% of the sector’s overall eligible turnover.
3 - For the purpose of this article, shall be deemed to be a single undertaking the set of bodies that, though legally separate companies, constitute, by 31 December of each of the years referred to in the preceding paragraphs, an economic unit or have interdependence links between them, arising namely from:
a) A majority shareholding;
b) Holding more than half the voting rights attaching to shares;
c) Power to appoint more than half the members of the administrative board or of the supervisory board;
d) Power to manage the respective business.
4 - To the extraordinary contribution referred to in paragraph 1 shall apply paragraph 2 of article 7, article 9 and paragraph 3 of article 10, duly adapted.
5 - The extraordinary contribution referred to in paragraph 1 corresponds to 3% of each body’s annual eligible turnover, within the limits laid down in the following paragraphs.
6 - The amount of the extraordinary contribution to be charged to each body shall never exceed the value it would be required to pay as a result of the sharing of net costs referred to in paragraph 2 of article 17 among bodies required to contribute, in the proportion of the respective eligible turnover.
7 - From the amount of net costs to be considered for the purpose of setting the value of contributions shall be deducted:
a) Interest referred to in paragraph 4 of the following article;
b) Other revenues that under the law are assigned to the financing of net costs to be compensated in the period preceding the designation by tender and that are available in the compensation fund at the time the contribution entry procedure starts.
Article 19
Entry of the extraordinary contribution
1 - It is incumbent on ICP - ANACOM to identify the bodies required to contribute to the compensation fund, for the financing of net costs to be compensated in the period preceding the designation by tender, and to set the precise amount of the respective extraordinary contribution.
2 - The procedure referred to in the preceding paragraph shall initiate in the month of July of the year following that of the approval by ICP - ANACOM of net costs to be compensated.
3 - Paragraphs 3 to 6 of article 11 shall apply to the contribution entry procedure.
4 - Where the entry or liquidation of the extraordinary contribution are delayed or defective due to the fault of undertakings required to contribute, compensatory interest shall be also due on the established contribution value, in accordance with general tax law.
Article 20
Payment of the extraordinary contribution
1 - The payment of contributions for the period preceding the designation by tender shall be governed by articles 12 and 13, duly adapted, without prejudice the following paragraphs.
2 - Bodies required to contribute may request ICP - ANACOM to pay due contributions in annual instalments, up to five days before the deadline for payment of the respective contributions.
3 - To each annual instalment referred to in the preceding paragraph shall be added interest on capital outstanding, settled annually by ICP - ANACOM at the rate provided for in paragraph 1 of article 559 of the Civil Code.
4 - Instalments referred to in paragraph 2 shall be paid within at least five years, and the value of each instalment shall not be lower than one fifth of the overall value of the contribution due by each body.
5 - To guarantee the payment of instalments, bodies required to contribute must provide a bank guarantee or a bond insurance equal in value to the debt amount, which shall be partially released according to the payment of instalments concerned.
6 - The failure to pay any of the instalments shall result in all subsequent payments becoming immediately due.
7 - In is incumbent on ICP - ANACOM to approve the terms of the bank guarantee or bond insurance provided for in paragraph 5.
Article 21
Transfers to the universal service provider
1 - The transfer to the universal service provider of the amount of the compensation for the net costs of the universal service shall take place within 15 months from the end of the calendar year in which the net costs to be compensated are approved, without prejudice to a possible delay resulting from late payment of contributions, as well as to the following paragraphs.
2 - Where bodies required to contribute opt for the payment in instalments referred to in paragraph 2 of the preceding article, the amount of each instalment paid after payment of the first instalment shall be transferred to the universal service provider within 10 working days from its receipt in the compensation fund.
3 - The amounts to be transferred to the universal service provider pursuant to the preceding paragraphs, where appropriate, shall bear interest provided for in paragraph 1 of article 13 and in paragraph 3 of the preceding article.
4 - Paragraphs 2 and 4 of article 14 shall apply, duly adapted, to transfers to the universal service provider.
Article 22
Information duties and audits
Articles 15 and 16 shall apply to the regime provided for in this chapter.
Article 23
Entry into force
This law shall enter into force on the day following that of its publication.
Approved on 25 July 2012.
The President of the Assembly of the Republic, Maria da Assunção A. Esteves.
Promulgated on 13 August 2012.
Let it be published.
The President of the Republic, Aníbal Cavaco Silva.
Countersigned on 16 August 2012.
The Prime Minister, Pedro Passos Coelho.
