1. The objective contained in article 20 of the tender regulations for granting of UMTS licenses aimed at safeguarding a fundamental principle: in a ruled market, conflict situations or collusion of shareholders' interests cannot take place, being subject to constitute a breach to the free competition rules.
In order to prevent any possibility and since the interests in the companies of the sector is well known, the maximum amount that an entity may hold in two (or more) UMTS operators was limited to 10%. The deadline to the alienation of the relevant interest terminated on the 19th December last year, having been postponed till the 31 of March 2002 by Ministerial Order no. 1428-A/2001, of December 17. It was decided to suspend all OPTEP's shareholding rights till the conclusion of the sale by Order no. 122/2001 (MES), of December 18.
2. On the 25th of March 2002, EDP alienated all its shares held in OPTEP to the company of Luxemburg's law Thorn Finance. OPTEP holds 100% of the shares that represent the share capital of 093X-Telecomunicações Celulares, SA, which holds 25,49% of OPTIMUS - Telecomunicações, SA's share capital.
OPTEP's selling operation includes some additional clauses of significant financial impact, two of which are particularly relevant to the analysis of the obligations that the licensees hold within the scope of the UMTS tender regulations:
a) a repurchase option, during a six-month period and by the same price of the assigned assets,
b) a preemption right, in favour of EDP or an entity appointed by the same, during a three-year period, in any possible alienation of OPTEP to third parties of Thorn Finance.
3. As a result of the information provided by EDP and, mainly, by CMVM regarding the details of said operation, ANACOM cannot conclude that:
a) EDP holds directly or indirectly a shareholding interest in the share capital of Thorn Finance whatsoever;
b) EDP has signed any type of agreement that entitles them to exercise the voting rights in said company or leading to the control of their governing bodies;
c) there is any contractual clause granting EDP the direct or indirect control of the exercise of shareholding rights in OPTEP, in 093X or in OPTIMUS.
4. In this context, and based on the available information, ANACOM deems as follows:
a) the performed operation was made in order to comply with the obligations arising from the UMTS tender;
b) the exercise of repurchasing options or preemption rights, whatever the price, is incompatible with the obligations of the UMTS tender and, should it take place, they can lead to the revocation of the 3rd generation mobile license held by ONI WAY.
5. ANACOM will go on following the development of this case and should any significant change in the assumptions take place, ANACOM may reevaluate it.
