Ministério da Economia (Minister of Economy)
Decree-Law
(This is not an official translation of the law)
Law No. 67/2013, of 28 August, which approves the framework-law of independent administrative bodies playing a role in the regulation of the economic activity of the private, public, cooperative and social sectors (framework-law of regulatory bodies), determined that statutes of regulatory bodies presently in place were adapted, by decree-law, to provisions of the referred law.
More than 10 years after the approval of the statutes of ICP - Autoridade Nacional de Comunicações (ICP-ANACOM), published in annex to Decree-Law No. 309/2001, of 7 December, it is also appropriate to seize this opportunity to reflect the changes in the legal evolution of the communications sector, which took place mainly due to the development of the European Union legislative framework.
The nature of the now renamed Autoridade Nacional de Comunicações (ANACOM), as an independent administrative body with regulatory functions in the communications sector, is long established, so now it is necessary to adapt its statutes to the requirements laid down in the framework-law of regulatory bodies, ensuring that the independence and effectiveness required from this Authority are maintained, so as not to impair its operation, both as an independent regulatory authority and in its role of providing support to the Government.
In this context, ANACOM’s new statutes, which are now approved, keep in mind its specificity, particularly that it is incumbent on the Authority to pursue the purposes and to carry out the assignments conferred by European Union law on national regulatory authorities in the scope of communications.
The civil-emergency planning issue within the communications sector is also fully integrated into ANACOM’s tasks, in the light of the closure by merger of the Comissão de Planeamento de Emergência das Comunicações (CPEC) - the Emergency Communications Planning Committee -, determined by Decree-Law No. 11/2014, of 22 January.
The self-government bodies of the Autonomous Regions were heard.
The hearing of the Conselho Nacional do Consumo (the National Consumer Council) was promoted.
Therefore,
Pursuant to paragraph 1a) of article 198 of the Constitution, the Government hereby decrees as follows:
Article 1
Subject-matter
This Decree-Law approves the statutes of Autoridade Nacional de Comunicações (the National Communications Authority), in compliance with provisions laid down in the framework-law of regulatory bodies, approved in annex to Law No. 67/2013, of 28 August.
Article 2
Approval of statutes and references
1 - The statutes of Autoridade Nacional de Comunicações (ANACOM), formerly known as ICP - Autoridade Nacional de Comunicações, provided for in this Decree-Law and which are deemed to be an integral part hereof, are hereby approved.
2 - Any references made to ICP - Autoridade Nacional de Comunicações in the law or contract shall be deemed to be made to Autoridade Nacional de Comunicações or ANACOM.
3 - This statutory instrument is deemed to be a sufficient proof of ICP - Autoridade Nacional de Comunicações’ renaming, for all legal purposes, including registry, being incumbent on the relevant services to take all necessary steps to regularize the situation, with exemption from any taxes and duties and by means of a simple notification from the Chair of the Board of Directors.
Article 3
Succession
1 - ANACOM shall fulfil the assignments and powers conferred on the Comissão de Planeamento de Emergência das Comunicações (CPEC) - the Emergency Communications Planning Committee -, pursuant to paragraph 1 of article 34 of Decree-Law No. 11/2014, of 22 January.
2 - For the purpose of the preceding paragraph, ANACOM shall be applied the regime provided for in articles 4 to 8 of Decree-Law No. 73/2012, of 26 March, as well as any provisions to be set out in special legislation.
Article 4
Out-of-court settlement of disputes
1 - It is incumbent on ANACOM to take all necessary steps to conclude cooperation agreements with bodies intended to ensure out-of-court dispute-settlement mechanisms or, in the alternative, to set up bodies intended to settle out-of-court disputes of a specialised nature within the communications sector, in order to promote the settlement of disputes between bodies that are subject to its regulation and consumers and other end-users of electronic and postal communications.
2 - The mechanisms referred to in the preceding paragraph must allow a fair and impartial settlement of disputes, under simple and expeditious procedural terms, tending to be provided free of charge.
3 - It is incumbent on ANACOM to define the logistic, financial, technical and human support to be provided for the purpose of the preceding paragraphs, as well as to disclose the out-of-court dispute-settlement mechanisms concerned and to promote the adherence thereto by bodies subject to its regulation.
Article 5
Transitional provisions
1 - Current mandates of members of the Board of Directors shall not end with the entry into force of this Decree-Law, and shall expire as defined initially, without further renewal.
2 - The statutory audit council in office at the date of entry into force of this statutory instrument shall remain in office until the sole auditor referred to in section II of chapter III of the statutes in annex to this Decree-Law is appointed, the respective mandate expiring on the date the referred appointment takes effect.
3 - For the purpose of the preceding paragraph, the statutory audit council shall be applied, until the effective termination of service, the regime laid down in the statutes of ICP - Autoridade Nacional de Comunicações, published in annex to Decree-Law No. 309/2001, of 7 December, except as regards the remuneration status of the respective members, to which the following paragraph shall apply.
4 - The remuneration status of members of bodies of ANACOM shall be governed by paragraphs 5 and 6 of Law No. 67/2013, of 28 August.
5 - Paragraph 4 of article 19 of the statutes of ANACOM, in annex to this Decree-Law, concerning the salary of members of ANACOM’s Board of Directors, shall be without prejudice to remuneration changes that apply across all public bodies.
6 - ANACOM employees, in the exercise of their functions on the date of entry into force of this Decree-Law, shall maintain their legal and functional situation.
7 - The current model of identity cards, approved by Administrative Rule No. 126/2002, of 9 February, shall remain in force until the publication of the rules of procedure provided for in paragraph 3 of article 44 of the statutes in annex to this Decree-Law.
8 - The entry into force of this Decree-Law shall be without prejudice to the maintenance of ANACOM regulations, insofar as the latter are not contrary thereto.
Article 6
Repealing provision
Without prejudice to paragraph 3 of article 5, Decree-Law No. 309/2001, of 7 December, is hereby repealed, except for articles 3 and 5, the latter in the part that maintains in force paragraph 3 of article 28 of Decree-Law No. 283/89, of 23 August.
Article 7
Entry into force
This statutory instrument shall enter into force on the 1st day of the month following that of its publication.
Checked and approved in the Council of Ministers of 23 December 2014. - Pedro Passos Coelho - Hélder Manuel Gomes dos Reis - António de Magalhães Pires de Lima.
Promulgated on 6 March 2015.
Let it be published.
The President of the Republic, ANÍBAL CAVACO SILVA.
Counter-signed on 11 March 2015.
The Prime Minister, Pedro Passos Coelho.
ANNEX
(referred to in article 2)
STATUTES OF AUTORIDADE NACIONAL DAS COMUNICAÇÕES
CHAPTER I
General provisions
Article 1
Legal nature and mission
1 - Autoridade Nacional de Comunicações (the National Communications Authority), known as ANACOM for short, shall be a legal person governed by public law, with the nature of an independent administrative body, endowed with administrative, financial and management autonomy, as well as with its own assets.
2 - ANACOM shall pursue its mission to regulate the communications sector, including electronic and postal communications, and without prejudice to its nature, to support the Government in the communications field, in accordance with these statutes and the law.
3 - The scope of ANACOM’s action shall cover the entire national territory.
Article 2
Headquarters and delegations
ANACOM shall have its seat in Lisbon, and shall be entitled to establish delegations, agencies or any other form of representation on national territory, where deemed by the Board of Directors to be appropriate in order to carry out the respective assignments.
Article 3
Legal framework
1 - Without prejudice to the provisions of the following paragraph, ANACOM shall be governed by European Union law directly applicable to it, by provisions laid down in the framework-law of regulatory bodies, by sector legislation, by these statutes, by rules of procedure and by other applicable legal provisions.
2 - Without prejudice to provisions in these statutes and in legislation that applies specifically to ANACOM’s action, the following statutory instruments shall apply in the alternative, in the scope of the exercise of public authority powers:
a) Código do Procedimento Administrativo (the Administrative Procedure Code) and any other general standards and principles concerning the State’s administrative acts;
b) Administrative litigation provisions, where steps taken in the exercise of public authority functions and contracts of an administrative nature are concerned.
3 - The following schemes shall also apply to ANACOM:
a) The public procurement regime;
b) The State’s civil liability regime;
c) Information duties deriving from the Sistema de Informação da Organização do Estado (SIOE - the Information System for State Organization);
d) The regime of jurisdiction and financial control of the Tribunal de Contas (the Court of Auditors);
e) The State services’ inspection and audit regime.
Article 4
National regulatory authority
It shall be incumbent on ANACOM to achieve the targets and to carry out the assignments conferred by European Union law and national legislation on national regulatory authorities in the scope of communications, including, as applicable, the cooperation with the European Commission and communications regulatory authorities of other Member States of the European Union.
Article 5
Independence
1 - ANACOM shall be independent at organisational, functional and technical levels in the exercise of its functions and shall not be subject to government oversight or authority in connection with this exercise, and members of the Government shall not address any recommendations or directives to its bodies or any employees as regards the Authority’s regulatory action, or priorities to be adopted in the respective pursuit.
2 - ANACOM shall be financially independent, and shall be endowed with the necessary and appropriate financial and human resources in order to be able to perform its duties.
3 - Paragraph 1 shall not prevent ANACOM from supporting the Government in the communications field, under these statutes and the law, and shall be without prejudice to the definition by the Government of guidelines where ANACOM acts on behalf of the State and to the need for prior approval of acts provided for in these statutes.
Article 6
Principle of speciality
1 - ANACOM’s legal capacity covers the commission of all legal acts, the enjoyment of all rights and the compliance with all obligations required to pursue its objectives.
2 - ANACOM shall not engage in any activities or use its powers falling outside the scope of its assignments, or allocate its resources to purposes other than those incumbent upon it.
3 - ANACOM shall not ensure compliance with obligations falling on other legal persons, either public or private, to third parties.
Article 7
Management principles
1- ANACOM shall abide by the following management principles:
a) Exercise of the respective action under high standards of quality;
b) Guarantee of economic efficiency as regards its management and solutions adopted in its action;
c) Management according to duly established and quantified objectives, and regular assessment according to results;
d) Transparency in its action, namely by means of a public discussion of draft documents containing regulatory provisions and of the public disclosure of relevant documents on its action and operation with impact on users and addressees of its action, including on the respective cost for the regulated sector;
e) Respect for the principles of prior fund reservation and expenditure planning underlying the conclusion of commitments and delayed payments by public bodies.
2 - ANACOM’s financial and asset management shall be governed by these statutes, by the framework-law of regulatory bodies and, in the alternative, by the regime applicable to public companies.
3 - ANACOM’s bodies shall ensure the efficient management of its resources, which must be necessary and appropriate to the pursuit of its assignments, and shall adopt or propose organisational solutions and courses of action that are the least burdensome to effectively achieve the public assignments incumbent on it.
4 - ANACOM shall not establish or participate in the establishment of private law profit-oriented bodies, nor shall it acquire any shareholding in such bodies.
CHAPTER II
Assignments and powers
Article 8
Assignments
1 - Under applicable law, the following assignments are entrusted to ANACOM, as the regulatory authority:
a) To promote competition in the provision of networks and services;
b) To guarantee the access to networks, infrastructures, resources and services;
c) To ensure the freedom to provide networks and services;
d) To contribute to the development of the internal market of electronic communications networks and services and of postal services of the European Union;
e) To ensure an effective management of radio spectrum, involving the planning, allocation and monitoring of spectrum resources, and the coordination between civil, military and paramilitary radiocommunications;
f) To approve the National Numbering Plan, namely its guidelines and general principles, as well as to ensure an efficient management of numbering or addressing resources, including the allocation of resources and the definition of conditions for use;
g) To settle administrative disputes between bodies subject to its regulation, namely between providers of electronic communications networks and services and between postal service providers, under applicable law;
h) To protect the rights and interests of consumers and other end users;
i) To ensure the access to the electronic communications and postal universal services, namely through the guarantee of compliance with universal service obligations;
j) To promote the settlement of out-of-court disputes between bodies subject to its regulation and consumers and other end-users, under simple and expeditious procedural terms tending to be provided free of charge, by stimulating and cooperating with existing out-of-court dispute-settlement mechanisms or, on its own initiative or in collaboration with other bodies, by establishing other mechanisms, promoting the adherence thereto by bodies subject to its regulation;
k) To contribute to ensure a high level of protection of personal data and privacy;
l) To guarantee that access to emergency services is maintained;
m) To provide for the maintenance of the integrity and security of public communications networks and of publicly available services, including national and international interconnections;
n) To follow the action of related regulatory bodies and foreign experiences in the field of the regulation of communications and to establish relations with other regulatory bodies, as well as with European Union bodies and other international bodies of relevance for the fulfilment of its mission;
o) To take an active part in the action and decisions of bodies of regulatory authorities, namely the Body of European Regulators for Electronic Communications and the European Regulators Group for Postal Services;
p) To assess the conformity of telecommunications infrastructures, materials and equipment, namely by means of laboratory tests, and to define the necessary requirements for their placing on the market and installation;
q) To promote technical standardisation, in collaboration with other bodies in the communications sector and related areas;
r) To disclose the regulatory framework in force, its assignments and initiatives, as well as rights and obligations of addressees of its action and of users;
s) To collaborate with other public and private bodies in fostering scientific research applied to communications;
t) To guarantee the conduction of studies in the area of communications;
u) To pursue other assignments conferred on this Authority under the law.
2 - It shall also be incumbent on ANACOM in the fulfilment of its assignments:
a) To advise the Assembleia da República (the Portuguese Parliament), at the latter’s request, in the field of communications;
b) To support the Government in the field of communications, at the latter’s request and on its own initiative, including by providing the necessary technical assistance and by producing opinions, studies, information and draft legislation;
c) To participate and, at the request of the Government, to ensure the State’s representation, in articulation with Ministério dos Negócios Estrangeiros (the Ministry of Foreign Affairs), in national and international bodies and forums of relevance to the respective action;
d) To provide technical support to bodies and services in charge of the establishment and management of the integrated emergency communications network;
e) To contribute to the definition and permanent update of civil emergency planning policies within the communications sector;
f) To guarantee the implementation of projects in the scope of the promotion of the access to the digital society, namely that involve the introduction or use of advanced networks and services, the reduction of regional asymmetries and the adoption of measures applicable to citizens with special needs, either directly or in the form of support provided to public or private bodies.
3 - The bodies of the regulatory authority shall not delegate the pursuit of any of its assignments and powers, or grant a concession agreement thereon, to public or private bodies, whether for a specific or unspecific time period, or with or without remuneration, compensation or periodical income payment, without prejudice to the possibility of purchasing services and supporting and instrumental tasks relating to the respective decisions.
Article 9
Powers
1 - In order to carry out its assignments, ANACOM is endowed with regulatory, supervision, monitoring and sanctioning powers, under applicable law, its role including in particular:
a) To impose specific obligations, in particular on companies declared to have significant market power and to impose obligations on universal service providers;
b) To allocate, amend and revoke rights of use for frequencies and numbers;
c) To issue declarations and certificates on the exercise of the activity, to draw up records of service providers and to keep, update and disclose records of bodies subject to its regulation;
d) To issue, in the scope of infrastructures for telecommunications in housing developments, urban settlements and concentrations of buildings (ITUR) and in buildings (ITED), professional designer and installer certificates, as well as to accredit training providers of designers and installers;
e) To provide information, guidance and support to consumers and other end-users, in cooperation with the Direção-Geral do Consumidor (the Consumer Directorate-General) and with other relevant bodies in the scope of consumer protection, in the promotion of their rights and interests in the area of communications;
f) To implement laws and regulations, as well as European Union acts applicable to the communications sector;
g) To verify compliance with laws, regulations and other acts to which addressees of its action are subject;
h) To verify compliance with any of its own guidelines or determinations, or with any obligation related with the communications sector;
i) To monitor the action of bodies subject to its supervision and the operation of communications markets;
j) To regularly check records of claims and complaints from consumers and other end-users presented to addressees of its action, which shall keep appropriate records thereof;
k) To deal with claims or complaints of consumers and other end-users of which it becomes aware in the exercise of its tasks and, where violation of provisions the compliance with which it is incumbent on it to monitor, to issue recommendations or to determine the adoption of corrective measures;
l) To determine or to promote audits and to undertake inspections and investigations;
m) To request the information deemed to be necessary to the pursuit of its assignments, under the law;
n) To check that addressees of its action meet obligations to which they are subject under the law, regulations, other applicable provisions and determinations issued by the Authority;
o) To monitor the enforcement of contracts concerning universal service or public service obligations, where appropriate;
p) To take all steps required to deal with and sanction infringements of the law and regulations, the implementation or supervision of which it is charged with, as well as offences resulting from the failure to comply with its determinations, including, where appropriate, to adopt precautionary measures, to apply sanctions, namely penalty payments, and to collect fines.
2 - In the exercise of its powers, and without prejudice to other powers provided for in the law, ANACOM shall:
a) Draw up and approve regulations in the cases provided for in the law and which are deemed to be indispensible to the pursuit of its assignments, as well as instructions or other rules of a particular nature concerning interests, obligations or rights of regulated bodies or activities or of users;
b) Issue orders, instructions and determinations and make recommendations;
c) Disclose every six months a statistical framework of complaints from consumers and other end-users received at ANACOM, bodies most called for and results deriving from action taken;
d) Issue technical implementation measures;
e) Disclose information on its action and on the communications sector, including statistical information;
f) Publish studies and reports;
g) Propose and/or approve, where appropriate, codes of conduct and best practice manuals for addressees of its action;
h) To promote public consultations and expressions of interest, namely in the scope of the introduction of new services or technologies, enabling the participation of consumer and other end-user organisations in public consultation and hearing procedures to be carried out in the course of the decision-taking process likely to affect their rights and interests;
i) Issue technical standards incumbent on it to approve;
j) Approve forms deemed to be appropriate to the exercise of its assignments.
Article 10
Regulatory procedure
1 - Regulations issued by ANACOM shall abide by the principles of legality, necessity and clarity, and regulations with external effectiveness shall also comply with the principles of participation and publicity.
2 - Prior to the approval or amendment of regulations with external effectiveness, ANACOM shall, at the same time, report the respective draft to the member of the Government in charge of the area of communications and disclose it in the respective webpage, so as to foster the intervention of the Government, of regulated bodies and other addressees of its action, of user and consumer associations of a general or specific interest in the area of communications, as well as of general users and public.
3 - For the purpose of the preceding paragraph, interested parties shall present their comments and put suggestions forward for a minimum period of 30 working days, except where a shorter period is established, on duly substantiated grounds of urgency.
4 - At the end of the period of public discussion, ANACOM shall draw up a report including the reference to responses received, as well as an overall assessment reflecting its views thereon and substantiating the options taken, which shall be made available at its website along with the responses provided under this article, excluding in a justified fashion any items identified as being confidential.
5 - Without prejudice to the preceding paragraph, the preliminary report of regulations shall substantiate the decisions taken, with a necessary reference to comments or suggestions that were made to drafts in the course of the public discussion period.
6 - ANACOM regulations that include provisions with external effectiveness shall be published in the Official Gazette and immediately made available at its website, without prejudice to their advertisement by other means deemed to be appropriate.
Article 11
Procedure applicable to measures with significant impact on the market
The adoption by ANACOM of measures with significant impact on the market in the scope of electronic communications and postal services shall comply with the regime provided for, respectively, in Law No. 5/2004, of 10 February, and in Law No. 17/2012, of 26 April, as amended by Decree-Law No. 160/2013, of 19 November, and by Law No. 16/2014, of 4 April, as well as other applicable legislation.
Article 12
Monitoring procedure
1 - ANACOM shall carry out inspections and audits on a periodic basis, within the scope of the implementation of plans approved beforehand, and where circumstances suggesting disruptions in the respective sector of activity arise.
2 - For the purpose of the preceding paragraph, ANACOM shall be entitled to mandate its employees, which must carry an identity card, under paragraph 3 of article 44.
3 - ANACOM shall also be entitled to mandate persons or bodies particularly qualified and authorised to carry out or follow up inspections and audits, the respective collaborators being required to carry terms of reference as well as the identity card referred to in the preceding paragraph.
Article 13
Sanctioning procedures
1 - Sanctioning procedures shall comply with the principles of a fair hearing of interested parties, of adversarial proceedings and other principles laid down in the Código do Procedimento Administrativo (the Administrative Procedure Code).
2 - Breach proceedings shall comply with provisions of the framework scheme of breaches within the communications sector, approved by Law no. 99/2009, of 4 September, and with other provisions applicable to breaches within the communications sector and, in the alternative, with provisions of the general breach regime, approved by Decree-Law No. 433/82, of 27 October.
3 - It shall be incumbent on ANACOM to report to the competent authorities the infringements which it becomes aware of in the course of the performance of its duties, and over which it holds no sanctioning powers in the scope of its assignments, as well as to collaborate with such authorities.
Article 14
Cooperation with other bodies
1 - ANACOM shall be entitled to request the cooperation of the competent authorities and services in whatever is required for the proper performance of its duties, the latter being required to provide the necessary cooperation.
2 - ANACOM shall establish forms of cooperation or association with other public or private bodies, either national or international, namely with other regulatory bodies or groups, at European Union or international level, where deemed to be required or convenient for the pursuit of the respective assignments and insofar as this does not imply the delegation or sharing of its regulatory powers.
3 - On matters related to the application of the legal framework for competition in the communications sector, ANACOM and Autoridade da Concorrência (the Competition Authority) shall cooperate and collaborate with each other, with due regard for the respective powers.
Article 15
Obligations to cooperate
1 - Addressees of ANACOM’s action shall provide all cooperation required for the proper performance of its duties, namely by supplying information and documents that are requested by the deadlines, in the form and with the degree of detail set out in the law.
2 - ANACOM shall be entitled to disclose the information obtained, except where this information is covered by the legal regime of confidentiality, where relevant for the regulation of the sector.
3 - ANACOM shall be entitled to disclose the identity of public or private bodies under investigation or sanctioning procedures, as well as the matter investigated, namely where such procedures are set off by a complaint or claim, being also required to disclose the result of such procedures upon the respective completion.
CHAPTER III
Bodies
Article 16
Bodies
The bodies of ANACOM are:
a) The Board of Directors;
b) The sole auditor .
SECTION I
Board of Directors
Article 17
Function
The Board of Directors shall be the collegiate body accountable for the definition and implementation of ANACOM’s action, as well as for the management of the respective services.
Article 18
Composition and appointment
1 - The Board of Directors shall comprise a Chair and two or four members, and in the latter case, one of such members shall be appointed Vice-Chair.
2 - The members of the Board of Directors shall be appointed by resolution of the Council of Ministers, having heard the relevant commission of the Assembleia da República, at the request of the Government, which shall be accompanied by the opinion of the Comissão de Recrutamento e Seleção da Administração Pública (the Portuguese Agency for the Selection and Recruitment of Senior Administration Officers) on the adequacy of the profile of the candidate with a view to the functions to be performed, including the compliance with applicable rules of incompatibilities and impediments.
3 - Members of the Board of Directors shall be appointed among persons of established reputation, technical competence, skills, professional experience and training that are suitable to the exercise of the respective functions, the respective appointment being incumbent on the member of the Government in charge of the area of communications.
4 - The Assembleia da República, through a competent commission, shall draw up and approve the report concerning the hearing referred to in paragraph 2, and shall notify the Government thereof.
5 - The appointment resolution referred to in paragraph 2, duly substantiated, shall be published in the Official Gazette, together with a note concerning the academic and professional curriculum of appointed individuals.
6 - Where two or more members of the Board of Directors are appointed at the same time, their term of office may not coincide, a difference of at least six months between them being required, where appropriate by introducing a limit in the duration of one or more mandates.
7 - The appointment or proposal for appointment shall not take place between the call for elections for the Assembleia da República or the resignation of the Government and the parliamentary investiture of the newly appointed Government, except where posts under consideration are vacant and the appointment is deemed to be urgent, in which case the appointment or proposal for appointment which has not resulted in an appointment require confirmation by the newly appointed Government.
8 - Whoever is, or was for the last two years, member of governing bodies of companies in the communications sector, or an employee or permanent collaborator holding in such companies a supervisory or management position for the same period of time, shall not be appointed.
9 - The filling of the post of Chair of the Board of Directors shall ensure gender alternation and that of members shall ensure a minimum of 33% representation of each gender.
10 - Members of the Board of Directors shall be appointed for a six-year term, without prejudice to paragraph 6, which shall not be renewable, without prejudice to the following paragraph.
11 - The members of the Board of Directors may fill vacancies in ANACOM’s bodies six years after the expiry of the previous term of office.
Article 19
Status
1 - The members of the Board of Directors are subject to the regime set out in these statutes.
2 - The remuneration of the members of the Board of Director sincludes a monthly salary and, for the purpose of entertainment expenses, a monthly allowance paid twelve times per year, which shall not exceed 40% of the respective monthly salary.
3 - The monthly salary and the monthly allowance paid for entertainment expenses of the members of the Board of Directors shall be determined by the comissão de vencimentos (the remuneration committee).
4 - The determination under the preceding paragraph of the monthly salary and of the monthly allowance paid for entertainment expenses of the members of the Board of Directors shall have no retroactive effects, nor shall such determination be altered in the course of the mandate, in the light of the principle of expectations.
5 - The use of credit cards and other means of payment, vehicles, communications, premiums, supplements and social benefits by members of the Board of Directors shall be subject to the regime laid down in Decree-Law No. 71/2007, of 27 March, as amended by Law No. 64-A/2008, of 31 December, and by Decree-Law No. 8/2012, of 18 January.
6 - Ex officio functions or posts held by members of the Board of Directors in bodies or other structures related to regulatory bodies shall not confer the right to any additional remuneration or any other benefits or advantages.
7 - Members of the Board of Directors shall be applied the general social security regime, except where they are public officials, in which case the regime applicable to their place of origin shall apply.
8 - The members of the Board of Directors shall exercise their functions on an exclusive basis, and shall not, in particular:
a) Be members of bodies that exercise sovereign power, of autonomous regions or of local authorities, nor perform any public or professional functions, except for teaching or research roles, insofar as they are unremunerated;
b) Maintain, either directly or indirectly, any contractual tie or relation, whether paid or unpaid, with companies, groups of companies or any other addressees of ANACOM’s action, or have any holdings or interests therein;
c) Maintain, either directly or indirectly, any contractual tie or relation, whether paid or unpaid, with other bodies the action of which may conflict with its powers and assignments.
9 - The members of the Board of Directors shall be subject to the regime of incompatibilities and impediments that apply to high-ranking public officials, in all matters that have not been specifically regulated in these statutes or in the framework-law of regulatory bodies.
Article 20
Remuneration committee
1 - The comissão de vencimentos (the remuneration committee) shall operate with ANACOM and shall be composed of three members, appointed as follows:
a) One member appointed by the member of the Government in charge of the area of finance;
b) One member appointed by the member of the Government in charge of the area of communications;
c) A third member appointed by ANACOM, preferably a former holder of a mandate in one of its bodies, or in the absence of such an appointment, a co-opted member chosen by members referred in the preceding paragraphs.
2 - In determining the remuneration referred to in the preceding article, the comissão de vencimentos shall meet the following criteria:
a) The dimension, complexity, demanding role and responsibility inherent in duties concerned, and the need for skilled human resources, of recognized standing, for the respective exercise;
b) The impact on the regulated market of the regime of fees or contributions received by ANACOM;
c) Normal market practices within the communications sector;
d) The economic environment, the need for adjustment and for remuneration restraint in the country and the monthly salary of the Prime-Minister as reference value;
e) Other criteria deemed to be appropriate in the light of the specificities of the communications sector, namely the level of technical and regulatory complexity provided for the sector’s activity and its rhythm of development, specially as regards the potential for change and innovation.
3 - The members of the comissão de vencimentos shall not be remunerated nor shall they be entitled to any other advantage or benefit.
4 - The amounts of remuneration shall be determined before the appointment procedure referred to in paragraph 2 of article 18.
Article 21
Duty of transparency
The members of the Board of Directors shall provide all clarifications and information deemed to be required in relation to ANACOM’s action, taking into account the public interest inherent to its mission, without prejudice to article 45.
Article 22
Duty of confidentiality
1 - Without prejudice to the preceding article, members of the Board of Directors shall not make any declarations or comments on ongoing processes or on specific issues related to addressees of ANACOM’s action, save where the protection of personal or institutional honour, or of any other legitimate interest, is concerned.
2 - The duty of confidentiality does not cover the disclosure of the identity of bodies under investigation or sanctioning procedures, as well as the matter investigated, in compliance with paragraph 3 of article 15, declarations on concluded cases and the provision of information intended to protect legitimate rights or interests, namely the access to information.
Article 23
Termination of service
1 - The mandate of members of the Board of Directors shall terminate:
a) On expiry;
b) In the event of the death or permanent mental or physical incapacitation or where its duration is expected to exceed the expiry date of the mandate or of the period for which members were appointed;
c) On a supervening incompatibility;
d) On resignation, through a written declaration presented to the member of the Government in charge of the area of communications;
e) On conviction, by a final judgement, of an intentional crime which tarnishes the good repute required for the exercise of the post;
f) On imprisonment;
g) On dissolution of the Board of Directors or removal of its members under article 24;
h) On the extinction of ANACOM.
2 - Where mandates terminate on expiry and on resignation, the members of the Board of Directors shall exercise their duties until their effective replacement.
3 - After leaving office, the members of the Board of Directors shall not establish, for a two-year period, any contractual tie or relation with companies, groups of companies or any other addressees of ANACOM’s action.
4 - In the course of the period established in the preceding paragraph, the regulatory body shall continue to pay ex-members of the Board of Directors half their monthly salary, a compensation which ceases where such ex-members take on another remunerated function or activity, and for as long as this activity is performed.
5 - The compensation provided for in the preceding paragraph shall not be provided where members of the Board of Directors are entitled to a retirement or old-age pension, and opt for the latter.
6 - The compensation provided for in paragraph 4 shall not be provided where the mandate of the member of the Board of Directors terminates for any reason other than the expiry thereof.
7 - In case of non-compliance with paragraph 3, the member of the Board of Directors shall be required to return the sum of net remuneration amounts earned in the course of the period in office, as well as the full amount of net compensations received under paragraph 4, the update coefficient resulting from the corresponding annual average rates of change of the consumer price index determined by the Instituto Nacional de Estatística, I. P. (the National Statistical Institute) being applied.
Article 24
Dissolution of the Board of Directors or removal of its members
1 - The dissolution of the Board of Directors or the removal of any of its members shall only take place following the issue of a resolution of the Council of Ministers based on a justifiable reason.
2 - For the purpose of the preceding paragraph, a justifiable reason shall be deemed to exist where a serious fault, individual or collective liability, is found to exist further to an investigation undertaken by a body independent of the Government, preceding the hearing of the competent parliamentary commission, namely in case of:
a) Serious and repeated breach of legal provisions or of these statutes, namely the failure to comply with transparency and information obligations related to the regulatory authority’s action, as well as with ANACOM’s regulations and guidelines;
b) Non-compliance with the duty to exercise functions under paragraph 8 of article 19 or the serious and repeated violation of the duty provided for in article 22;
c) Substantial and unjustified failure to comply with ANACOM’s activities plan or budget.
3 - In case a post is vacant for one of the reasons provided for in this article or in article 23, the vacancy shall be filled within at the most 45 days.
Article 25
Independence of members
The members of the Board of Directors shall be independent in the exercise of their functions, and shall not be subject to any specific instructions or guidelines.
Article 26
Powers
1 - In the scope of guidance and management, the Board of Directors shall be entitled:
a) To define ANACOM’s general guidance and to lead the respective action;
b) To approve regulations and make determinations as required for the performance of its functions, under the law;
c) To draw up and approve opinions;
d) To draw up the action report and the multiannual activities plan, ensuring that it is implemented;
e) To define and approve ANACOM’s internal organisation and operation;
f) To appoint ANACOM representatives in and out of court, with the power to appoint substitutes, and to appoint ANACOM representatives in other bodies;
g) To monitor and to evaluate on a regular basis the action developed, namely by making the various services accountable for the efficient use of means available and for results achieved;
h) To draw up the social report, under applicable law;
i) To exercise powers of management, administration and discipline of the staff;
j) To perform staff-related acts as provided for under the law, these statutes and rules of procedure;
k) To approve, having heard the body in charge of the coordination of the national archives service, ANACOM’s archival regulation, which specifically includes document classification, evaluation, selection, delivery, deletion and media replacement;
l) To advise the Assembleia da República under these statutes and to provide information and clarifications on the respective action, under article 49;
m) To support the Government, particularly by providing technical assistance and producing opinions, studies, information and draft legislation;
n) To ensure ANACOM’s representation and, at the request of the Government, the representation of the State, in articulation with Ministério dos Negócios Estrangeiros, in national and international bodies and forums of relevance to the respective action, without prejudice to articles 27 and 31;
o) To appoint a secretary who shall be responsible for certifying acts and determinations;
p) To perform any other management acts resulting from the application of the law and statutes and required for the smooth operation of services;
q) To perform all other acts necessary for carrying out the tasks imposed on ANACOM for which no other body is responsible.
2 - In the scope of the financial and asset management, the Board of Directors shall be entitled:
a) To collect and manage revenues and to authorize expenditure as required for its operation;
b) To set the amount of monitoring charges to be borne by bodies liable for irregularities, in situations provided for in applicable sector legislation;
c) To manage ANACOM’s assets, by purchasing, selling or encumbering movable and immovable property, accepting donations, inheritances or legacies to the benefit of inventory, under these statutes;
d) To draw up the annual budget and to ensure the respective implementation;
e) To draw up the management report and accounts;
f) To submit ANACOM’s multiannual activities plan, budget and report and accounts to the approval of the members of the Government in charge of the areas of finance and of communications;
g) To determine the establishment or closure of delegations, agencies or other forms of representation of ANACOM;
h) To guarantee the necessary conditions for the exercise of the financial and asset monitoring by legally competent bodies, under these statutes;
i) To perform any other powers set out in these statutes.
3 - Without prejudice to paragraph 1 f), the Board of Directors is entitled at all times to opt for the support and representation in court by the Ministério Público (Public Prosecution Office), which in this case shall be responsible for protecting ANACOM’s interests.
Article 27
Delegation of assignments and powers
1 - The Board of Directors shall be entitled to delegate its assignments to one or more of its members, the possibility of sub-delegation included, establishing in each case the respective limits and conditions.
2 - Without prejudice to the inclusion of other powers, the allocation of a portfolio shall imply the delegation of the powers required to guide and monitor the respective services and to practise the day-to-day management acts of organisational units involved.
3 - Members of the Board of Directors shall be entitled to delegate specific powers to one or more of its employees, and to authorize them to sub-delegate such powers, establishing the respective limits and conditions.
4 - Determinations involving the delegation of powers shall be published in Series II of the Official Gazette.
Article 28
Operation
1 - The Board of Directors shall hold regular meetings once a week and special meetings where convened by the Chair, on his/her own initiative or at the request of any of the other members.
2 - The determinations of the Board of Directors shall be valid only where the majority of its members is present.
3 - The determinations of the Board of Directors shall be taken by majority vote of the members present at the respective meetings, and the Chair, or whoever replaces him/her and holds a voting right, shall have a casting vote.
4 - The meetings of the Board of Directors may take place through telematic means, and members of the board who use this resource shall be deemed to be present, insofar as ANACOM guarantees the authenticity of declarations and the security of communications, recording its contents and respective participants.
5 - Meetings held regularly at a pre-established location, date and time, as well as meetings scheduled by determination taken on the previous meeting, with the presence or awareness of all members convened, location, date and time having been indicated, shall be deemed to be regularly convened.
6 - Abstentions shall not be allowed, but explanations of vote shall be permitted.
7 - Minutes shall be drawn up for each meeting of the Board of Directors, which shall be signed by all members present, and members who do not agree with the contents of determinations taken shall be entitled to enter in such minutes the respective explanations of vote.
8 - The Board of Directors may be assisted according to organizational areas, and assistants shall be responsible, among other tasks, to convene meetings and to draw up the respective minutes.
Article 29
Chair
1 - It shall be incumbent on the Chair of the Board of Directors:
a) To convene and Chair the Board of Directors, to set the agenda and lead its meetings, as well as to guarantee compliance with the respective determinations;
b) To coordinate the action of the Board of Directors;
c) To guarantee the relations of ANACOM with the Assembleia da República, the Government, other authorities, services and public bodies;
d) To request opinions from the sole auditor ;
e) To exercise the powers delegated by the Board of Directors;
f) To exercise other powers laid down in these statutes.
2 - Where no Vice-Chair has been appointed, the Chair of the Board of Directors shall appoint the member of the Board of Directors who shall replace him/her in the event of absence or impediment, and in case no such appointment is made, the Chair shall be replaced by the most senior member, or, in the event of equal seniority, by the eldest member.
3 - On the basis of duly justified reasons related to urgency, the Chair of the Board of Directors or whoever replaces him/her in the event of absence or impediment shall be entitled to perform any act for which the Board of Directors is empowered, which, notwithstanding, must be subsequently ratified on the next regular meeting of the board.
4 - The Chair of the Board of Directors shall be entitled to delegate or sub-delegate the exercise of part of its assignments on any of the other board members.
5 - Without prejudice to paragraph 4 of article 14 of the Administrative Procedure Code, the Chair or whoever replaces him/her, shall be entitled to veto the determinations of the Board of Directors that he/she deems not to respect the law, these statutes or the public interest, the veto being the subject-matter of a substantiated explanation of vote and entered in board minutes.
6 - In the cases provided for in the preceding paragraph, determinations shall only be approved following new decision-making procedure, including the hearing of bodies deemed by the Chair, or whoever replaces him/her, to be convenient.
Article 30
Liability of members
1 - Members of the Board of Directors shall be severally liable for acts performed in the exercise of their functions.
2 - Members who were present in the meeting where the determination was taken and voted against it, in a statement recorded in the respective minutes, as well as absent members that declared their disagreement in writing, which must be also recorded in the minutes, shall be exempt from liability.
Article 31
Representation and commitment
1 - ANACOM shall be represented in court or in the performance of legal acts, specifically, by the Chair of the Board of Directors, by two of its members or by representatives especially appointed by the latter for the purpose.
2 - ANACOM shall be committed by the signature of:
a) The Chair of the Board of Directors or of any two members, where the board does not deliberate otherwise;
b) Whoever is qualified for the purpose of, pursuant to and in the scope of the respective mandate.
3 - The provision of the preceding paragraph on the signature requirement shall be without prejudice to other means of commitment provided for, in particular, in procedures applicable to national and international bodies and forums which ANACOM is a part of.
4 - Day-to-day matters may be signed by any member of the Board of Directors or by ANACOM employees on whom such power has been explicitly conferred.
SECTION II
Sole Auditor
Article 32
Function
The sole Auditor is the body in charge of monitoring the legality, the regularity and the sound financial and asset management of ANACOM and of advising the Board of Directors in such areas.
Article 33
Appointment, mandate and status
1 - Without prejudice to the following paragraph, the Sole Auditor shall be appointed by order of members of the Government responsible for the areas of finance and communications, for a non renewable four-year term.
2 - The Sole Auditor may fill a vacancy in ANACOM’s bodies four years after the expiry of the previous term of office.
3 - The Sole Auditor shall be designated among auditors registered with the Comissão do Mercado de Valores Mobiliários (the Portuguese Securities Market Commission), or where this is not deemed to be appropriate, among statutory auditors or audit firms that are members of the respective Ordem dos Revisores Oficiais de Contas (the Institute of Statutory Auditors) by order of members of the Government in charge of the areas of finance and communications.
4 - The Sole Auditor shall have an alternate, which shall also be an auditor registered with the Comissão do Mercado de Valores Mobiliários, or where this is not deemed to be appropriate, a statutory auditor or an audit firm that are members of the respective Ordem dos Revisores Oficiais de Contas.
5 - In the case of the termination of the mandate, the Sole Auditor shall remain in office until its effective replacement or issue of the term of office order by members of the Government in charge of the areas of finance and communications.
6 - The Sole Auditor shall be entitled to a monthly salary paid twelve times per year, amounting to 1/4 of the monthly salary set for the Chair of the Board of Directors.
7 - The Sole Auditor shall not:
a) Maintain, either directly or indirectly, any contractual tie or relation, whether paid or unpaid, with companies, groups of companies or any other addressees of ANACOM’s action, or have any holdings or interests therein;
b) Maintain, either directly or indirectly, any contractual tie or relation, whether paid or unpaid, with other bodies the action of which may conflict with its powers and assignments;
c) Maintain any contractual tie with the State.
Article 34
Powers
1 - The Sole Auditor shall be entitled:
a) To monitor and check regularly compliance with applicable laws and regulations, the implementation of the budget, and ANACOM’s economic, financial, asset and accounting situation;
b) To give an opinion on the management report and accounts, including legal certification of accounts;
c) To give an opinion on the purchase, encumbrance, rent and sale of immovable property;
d) To give an opinion on the budget, its revisions and changes, as well as on the activities plan in the perspective of its budget coverage;
e) To give an opinion on the acceptance of donations, inheritances or legacies;
f) To give an opinion on obtaining loans, where ANACOM is qualified to do so;
g) To maintain the Board of Directors informed on the results of checks and examinations it undertakes;
h) To draw up reports of its monitoring action, including an overall annual report;
i) To propose that external audits are carried out, where deemed to be necessary or convenient;
j) To give an opinion on any other subject put forward to it by the Board of Directors, by the Tribunal de Contas (the Court of Auditors) or by other public bodies in charge of the inspection and audit of State services;
k) To report to relevant bodies any irregularities identified.
2 - Opinions referred to in the preceding paragraph shall be provided within 30 days from the reception of related documents, except in cases of duly substantiated extreme urgency by the member or body requesting such opinion.
3 - In order to exercise its competences, the Sole Auditor shall be entitled:
a) To obtain from the Board of Directors all information and clarifications deemed to be necessary;
b) To have free access to ANACOM services and documentation, to request the presence of persons in charge and to ask for the necessary clarifications;
c) To promote meetings with the Board of Directors to analyse matters within the scope of its powers, where appropriate;
d) To take or propose any measures deemed to be indispensable.
CHAPTER IV
Financial and asset management
Article 35
General provisions
1 - ANACOM shall be endowed with autonomy as regards its financial and asset management, which results in powers entrusted to the Board of Directors to draw up the multiannual plan, the annual budget and to ensure the respective implementation, to manage assets, to collect and manage revenues, as well as to authorize the expenditure required for its operation.
2 - ANACOM’s accounting and budget shall be kept according to the Sistema de Normalização Contabilística (the national accounting system).
3 - ANACOM shall not be applied public accounting rules nor the regime of autonomous funds and services, namely standards on the authorisation of expenditure, on the carryover and use of net income and on fund blocking, without prejudice to paragraph 5 hereof and to paragraph 5 of article 49.
4 - ANACOM’s net income shall be carried over to the next year, and may be used, in particular, to the benefit of consumers or of the regulated sector, except where such income results from the use of public goods, in which case it shall revert to the State, in accordance with arrangements to be established by administrative rule of the members of the Government in charge of the areas of finance and communications.
5 - Funds resulting from the use of public goods shall be applied the budget and financial regime of autonomous funds and services, namely in the scope of the authorisation of expenditure, the carryover and use of net income and fund blocking.
6 - ANACOM shall be applied the State Treasury’s regime, in particular the principle and standards of treasury unity.
7 - Accountability shall be mainly governed by the Lei de Organização e Processo do Tribunal de Contas (the Court of Auditors Organisation and Procedure Law) and the respective regulatory provisions.
Article 36
Assets
1 - ANACOM’s assets are made up of the totality of goods, rights and obligations acquired or incurred in the exercise of its assignments as well as those conferred on it by law.
2 - ANACOM shall draw up and update the inventory of its real estate assets on an annual basis.
3 - ANACOM’s assets shall alone serve to cover the Authority’s debts; notwithstanding, after the execution of all its assets, creditors shall be entitled to take action against the State to satisfy their claims.
4 - ANACOM shall be governed by the legal regimes of public real estate, of the State’s movable property and of the State’s vehicle fleet, as regards goods which have been, or are to be, assigned to it by the State, where appropriate, and by private law as regards any other goods.
Article 37
Fees and contributions
1 - Under the law, ANACOM shall charge fees to companies and other bodies subject to its regulatory powers, as well as to companies and other addressees of its action and services.
2 - Taxable persons, the basis of taxation, the amount or aliquot part, the frequency and, where appropriate, total or partial exemptions and reductions, the duration of validity and maximum and minimum limits of collection of fees referred to in the preceding paragraph shall be set, after the hearing of ANACOM, by administrative rule of the members of the Government in charge of the areas of finance and communications.
3 - ANACOM shall lay down, by regulation, the methods and deadlines for assessment and collection of fees.
4 - The enforced collection of fees for which the requirement to pay has been established by law shall follow the tax execution procedure, governed by the Código do Procedimento e de Processo Tributário (the Code of Tax Procedure and Proceedings), and sums owed to ANACOM being deemed to be equivalent to sums owed to the State.
5 - The enforced recovery of debts provided for in the preceding paragraph may be promoted by the Autoridade Tributária e Aduaneira (the Tax and Customs Authority), in accordance with a protocol to be concluded for this purpose between this service and ANACOM.
6 - For the purpose of paragraph 4, the debt certificate issued by ANACOM’s competent services shall be enforceable, pursuant to and for the purpose of the Código do Procedimento e de Processo Tributário.
Article 38
Revenues
1 - The following income shall be deemed to be ANACOM’s own revenues:
a) Fees and other revenues charged in the scope of the management of radio spectrum and of the national numbering plan, under sector legislation;
b) Fees and other revenues charged in the scope of the issue of activity statements, the issue of activity certificates and the registration of providers, as well as of the monitoring of addressees of its action, under sector legislation;
c) Other fees charged to addressees of ANACOM’s action, under sector legislation;
d) Fees charged for the issue of professional qualifications and for the certification of training providers, in the scope of infrastructures for telecommunications in housing developments, urban settlements and concentrations of buildings (ITUR) and in buildings (ITED);
e) Proceeds of contractual fines, in compliance with provisions laid down in contracts for the provision of a public service or universal service, where appropriate, as well as of fines imposed under applicable rules on sanctions;
f) Revenues from the provision of services, namely by its laboratories;
g) Revenues from the issue of certificates and reproduction of documents irrespective of the media, and well as from expenses with the respective delivery;
h) Any other revenues, income or amounts resulting from its action or which, under the law or contract, accrue to it or are allocated to it, as well as any donations, subsidies or other forms of financial support;
i) Proceeds of the disposal of its own goods and of the establishment of rights thereon;
j) Interest from financial investments.
2 - ANACOM shall not take out loans, save in exceptional circumstances explicitly provided for in the law on budgetary principles or with the prior authorization of the members of the Government in charge of the areas of finance and communications.
Article 39
Expenditure
1 - All costs incurred in the context of assignments and powers placed upon ANACOM, which result from its action and from the purchase of tangible and intangible assets, shall constitute ANACOM expenditure.
2 - Contributions legally required from ANACOM in the scope of the financing scheme of the Autoridade da Concorrência shall also constitute expenditure of ANACOM.
Article 40
System of performance indicators
1 - It shall be incumbent on ANACOM to adopt and use a system of performance indicators that reflects activities carried out and results obtained.
2 - The system provided for in the preceding paragraph shall comprise efficiency, effectiveness and quality indicators.
3 - It shall be incumbent on the Sole Auditor to assess the quality of systems of performance indicators, as well as to evaluate, on an annual basis, results obtained by ANACOM according to available means, reporting to the members of the Government in charge of the areas of finance and communications the conclusions reached.
CHAPTER V
Services and staff
Article 41
Services
ANACOM shall be provided with administrative and technical services, organised and approved by the Board of Directors, as deemed to be required and appropriate to the pursue of its assignments.
Article 42
Staff scheme
1 - ANACOM’s staff shall be subject to the legal individual employment scheme as well as to the general social security scheme.
2 - ANACOM is entitled to be a party in collective labour agreements.
3 - The recruitment of workers shall follow a tender-like procedure which, in any event, shall abide by the following principles:
a) Advertisement of the job vacancy at ANACOM’s website and at the public employment pool;
b) Equal conditions and opportunities for all candidates;
c) Application of objective and detailed methods and criteria for assessment and selection;
d) Reasoned decision.
4 - The adoption of the legal individual employment scheme shall be without prejudice to requirements and limitations resulting from the pursuit of public interest, namely those concerning accumulations and incompatibilities in accordance with the following article.
5 - Standards on working discipline, performance and merit evaluation, code of ethics and conduct, career system, remuneration status and staff-related social protection system shall be laid down by regulation of ANACOM.
6 - Matters referred to in the preceding paragraph may be covered by collective labour agreements.
7 - ANACOM shall guarantee the continuous and specialized training of its employees and holders of senior management positions or similar positions, so that their action is recognised and accepted in the performance of their tasks and that, in this regard, applicable national and international obligations are complied with.
Article 43
Incompatibilities and impediments
1 - ANACOM’s staff shall not:
a) Maintain, either directly or indirectly, any contractual tie or relation, whether paid or unpaid, with companies, groups of companies or any other addressees of ANACOM’s action, or have any holdings or interests therein;
b) Maintain, either directly or indirectly, any contractual tie or relation, whether paid or unpaid, with other bodies the action of which may conflict with its powers and assignments.
2 - The preceding paragraph shall apply to all service providers for which a conflict of interests may exist, namely in the scope of the provision of services in the legal, economic or financial areas, being incumbent on the Board of Directors to assess and prevent the possibility of conflict.
3 - Employees shall not provide to third parties, directly or through an intermediary, under an autonomous or employed regime, any services in the scope of the research, preparation or financing of projects, proposals or applications which are to be submitted to their assessment or decision, or of organisational units under their direct influence.
4 - Employees shall not personally and unduly benefit from acts or take part in contracts in whose conclusion procedure are involved organisational units under their direct influence.
5 - In the event of termination of duties, and for a two-year period, holders of senior management positions or similar positions at ANACOM shall not establish any contractual tie or relation with companies, groups of companies or any other addressees of ANACOM’s action.
6 - In case of non-compliance with the preceding paragraph, the holders of senior management positions or similar positions at ANACOM shall be required to return the sum of net remuneration amounts earned up to a maximum of 3 years, the update coefficient resulting from the corresponding annual average rates of change of the consumer price index determined by the Instituto Nacional de Estatística, I. P. being applied.
7 - The provision in paragraph 5 shall not cover situations of termination of duties due to expiry of a fixed term contract, or of a service commission, where the person concerned returns to the place of origin, or on the initiative of ANACOM.
Article 44
Monitoring functions
1 - ANACOM employees with a mandate to carry out monitoring tasks, when acting within the scope of their functions, shall be regarded as law enforcement authorities and shall enjoy, specifically, the following prerogatives:
a) To be granted access to any premises, land, equipment, infrastructures, means of transport and services of bodies subject to the inspection and control of ANACOM and whoever cooperates with them;
b) To examine the books and other records related to companies and other addressees of ANACOM’s action, and whoever cooperates with them, irrespective of the medium on which they are stored;
c) To request documents for analysis, as well as equipment and material for conducting tests;
d) To obtain, in any form, copies of or extracts from inspected documents;
e) To ask any legal representative, employee or collaborator of companies and other addressees of ANACOM’s action, and whoever cooperates with them, for explanations on facts or documents relating to the subject-matter and purpose of the inspection and to record the answers;
f) To identify, for the purpose of subsequent action, bodies or persons that infringe the law and regulations the compliance with which must be observed and which are subject to ANACOM’s monitoring action;
g) To request the collaboration of the competent police and administrative authorities where deemed to be necessary to the performance of their functions.
2 - ANACOM shall not be required to notify addressees of inspections to be conducted.
3 - ANACOM employees and persons or bodies qualified and duly accredited performing the functions referred to in paragraph 1 and paragraph 3 of article 12, shall hold identity cards, the model and conditions of issue of which are determined by rules of procedure to be approved by ANACOM.
4 - Identity cards referred in the preceding paragraph shall bear an explicit reference to “Livre Trânsito” (free access), so as to facilitate the investigation and the performance of all necessary steps to remove harmful interference, as defined at international level, in electronic communications networks, namely those related to life-support or the maintenance of physical safety of persons and property.
Article 45
Secrecy and diligence
1 - Members of ANACOM’s bodies, respective representatives, employees, as well as persons and public or private bodies providing any services, either on a permanent or occasional basis, and respective collaborators, shall be covered by the duty of professional secrecy, under penal law and these statutes, with regard to facts which come to their knowledge in the performance of their duties or provision of the referred services and, whatever the purpose, shall not disclose nor use the knowledge of such facts, for their own profit or for a third party, directly or through an intermediary.
2 - Without prejudice to the preceding paragraph, the duty of professional secrecy shall apply even where persons subject to it, under the preceding paragraph, cease its collaboration with ANACOM or in any way leave the service thereof.
3 - Without prejudice to the resulting civil or criminal liability, the violation of the secrecy provided for in this article, by employees of ANACOM, shall make the infringer liable to the corresponding labour disciplinary powers, and where a person or body bound to ANACOM by a contract for the provision of services is concerned, the Board of Directors shall be entitled to dissolve the contract immediately, with no compensation for the other party.
4 - Persons or bodies referred to in paragraph 1 shall also be subject to the duty of due diligence regarding any matter entrusted to them.
5 - For the purpose of the guarantee of security of classified information at national level and at the level of international bodies of which Portugal is a member, persons or bodies referred to in paragraph 1 shall be accredited with the security classification mark and degree required by the respective functional contents, according to the classified information they work with or need to be aware of for the performance of their duties.
Article 46
Mobility
1 - ANACOM shall be entitled to request the collaboration of employees of the State’s direct, indirect and autonomous administration, of independent administrative bodies and of other public bodies, to perform duties at its premises, by using legally applicable means available in terms of mobility.
2 - The appointment of ANACOM employees in the opposite situation to that provided for in the preceding paragraph shall require the authorization from the Board of Directors.
3 - ANACOM employees, as well as employees referred in paragraph 1, may be seconded to provide services in institutions of the European Union or in foreign and international bodies with assignments in the area of communications, for which the authorisation from the Board of Directors shall be required.
CHAPTER VI
Transparency, prior approval, liability and judicial control
Article 47
Preparation of the multiannual plan
1 - In the scope of the preparation of the multiannual activities plan, ANACOM shall submit to public consultation, on an annual basis, the main strategic guidelines for the three-year period.
2 - For the purpose of the preceding paragraph, the main strategic guidelines for the three-year period shall be made available at ANACOM’s website, the consultation lasting for at least twenty working days.
3 - On expiry of the period provided for the consultation, ANACOM shall draw up the respective report and make it available at its website, together with contributions received.
Article 48
Prior approval
1 - ANACOM’s budget, multiannual activities plan and annual accounts and reports require the prior approval of the members of the government in charge of the areas of finance and communications, which shall be provided within 60 days from the reception of the referred documents.
2 - The approval provided for in the preceding paragraph shall only be refused by means of a decision based on illegality or detriment to ANACOM’s assignments or to the public interest, safeguarded the independence of this Authority in the exercise of its regulatory powers.
3 - In the event of the expiry of the period provided for in paragraph 1 without an explicit decision, the respective documents shall be deemed to be tacitly approved.
4 - The following steps shall also require the prior approval of the members of the government in charge of the areas of finance and communications, under penalty of legal ineffectiveness:
a) The acceptance of donations, inheritances or legacies;
b) The purchase and sale of immovable property, under the law.
Article 49
Provision of information
1 - In the first quarter of each year of operation, ANACOM shall present its multiannual activities plan and development programme to the relevant parliamentary commission of the Assembleia da República.
2 - The member of the Government in charge of the area of communications may request from ANACOM information on the implementation of its multiannual activities plan and budget.
3 - ANACOM shall submit to the Assembleia da República and to the Government, on an annual basis, its action report.
4 - The members of the Board of Directors shall come before the relevant parliamentary commission, when so requested, to provide information or clarifications on their operation.
5 - Without prejudice to annual obligations laid down in the law that approves the State Budget, ANACOM shall observe article 67 of the Budget Framework-Law, approved by Law No. 91/2001, of 20 August.
Article 50
Legal liability
1 - The members of bodies of ANACOM, and its employees and agents shall be held liable at civil, criminal, disciplinary and financial levels for acts and omissions performed in the exercise of their functions, under the Constitution and other applicable legislation.
2 - Financial liability shall be made effective by the Tribunal de Contas (the Court of Auditors), under the respective legislation.
3 - ANACOM may guarantee the coverage of professional risks associated to the exercise of functions of members of its bodies, employees and holders of senior management positions or similar positions.
4 - Where, under paragraph 1, legal action is taken by third parties against members of bodies of ANACOM and its employees, the latter shall be entitled to legal advice provided by ANACOM, without prejudice to this Authority’s general right of recourse.
Article 51
Judicial control
1 - The administrative action of ANACOM’s bodies and officials shall be subject to administrative jurisdiction, under applicable legislation.
2 - Sanctions for administrative breaches may be appealed against before the Tribunal de Concorrência, Regulação e Supervisão (the Court of Competition, Regulation and Supervision).
3 - Decisions taken in the scope of dispute-settlement procedures shall be open to review by the courts, under the law.
Article 52
Website
1 - ANACOM shall be provided with a website, where all relevant data shall be made available, namely:
a) European Union acts and national legislation that specifically apply to it, including the framework-law of regulatory bodies, as well as the statutory establishment instrument, statutes and rules of procedure;
b) The composition of its bodies, including the respective biographical data and the value of the components of the applied remuneration status;
c) Multiannual plans, action reports and social report;
d) Budgets and reports and accounts;
e) Information on its regulatory and sanctioning action, namely issued regulations and determinations;
f) Statistical information on the sector and for operation support purposes;
g) The list of posts, without personal identification, and respective remuneration status and career system.
2 - The website shall disclose models and forms for the electronic submission of applications, aimed at the satisfaction of the respective requests and at obtaining online information, as legally acceptable.
3 - For the purpose of the preceding paragraph, ANACOM’s website shall provide:
a) Clear and accessible information to any interested party on documents required to submit the corresponding applications, as well as supporting documents, and conditions for obtaining the legal effects desired with the application;
b) Electronic means of payment of fees due, where appropriate;
c) Full information on the legal discipline of administrative procedures that may be followed through the website;
d) Information on the court and out-of-court dispute-settlement means.
