Vodafone submits that the Determination of 30 October 2014 disregards the principle of proportionality in all its aspects, since it affects in unfitting or inappropriate terms its legally protected rights or interests and its imposition is likely to cause damages in excess of any benefits achieved, whereas satisfaction of the public interest in question would be easily achieved by the requirement of compliance with the unfulfilled duties.
However, this claim is not accepted, since, as mentioned above, the determination of 30 October 2014 sought precisely and exclusively to correct irregularities detected in the measure adopted by Vodafone as regards the failure to fulfil the notification stipulations of paragraph 6 of article 48 of the LCE, whereas this deliberation is the only way of obtaining such a result and whereas the suspension ordered is solely dependant on compliance with this rule (evidently without prejudice to the restrictions imposed under the determination of 21 October 2014, as from its entry into force)
Moreover, in addition to the fact that the measure precludes the imposition of a mandatory 2nd balance without notice under the required terms, Vodafone does not specify or quantify the damages which, it claims, exceed the interest protected by paragraph 6 of article 48, as caused to the company as a result of the determination of 30 October 2014, as would be essential to demonstrate the disproportionate measure of the ordered urgent measure.
To pursue the public interest it was sought to safeguard - the right of subscribers with prepaid tariff to be given the legally stipulated period of prior notice as to the amendments introduced to these tariffs on 22 October 2014 and as to the right of termination in the event they do accept said amendments, - the ruling laid down by the Determination of 30 October 2014 is the only possible, appropriate, necessary and proportionate means. As Vodafone itself accepts, the imposition does not entail any disproportionate forgoing of Vodafone's legitimate interests versus the interests of consumers and injured third parties that it is sought to protect.
Any other limitation to the measure adopted by Vodafone on 22 October 2014, which does not result from failure to comply with article 48, paragraph 6, of the LCE, will find basis in the rules adopted by ANACOM by determination of 21 October 2014, laid down by Regulation no. 495/2014 of 21 October, published on 03 November 2014.
Under these terms it is concluded that the determination of 30 October 2014 does not violate the principle of proportionality, whereby the arguments advanced to this effect are deemed unfounded.
