Ministério do Equipamento, do Planeamento e da Administração do Território (Ministry for the Equipment, Planning and Administration of the Territory)
Decree-Law
(This is not an official translation of the law)
The basic law on the establishment, management and operation of postal services in national territory, including international services originating in or destined towards national territory - Law 102/99 of 26 July - has put into effect the objectives of Community policy so as to progressively create a single and open postal services market, with a view to the gradual and controlled liberalisation thereof, yet concurrently safeguarding the necessary guarantees vis-à-vis the provision of universal service corresponding to a certain minimum number of high quality services at a price which is accessible to all users, regardless of their geographical location.
It is now important that the provisions of the above basic law be upheld, and the premises of the concession contract to be signed shall duly specify the precise conditions whereunder universal postal service is to be provided.Therefore, as the inherent needs of universal postal service are quite wide-ranging, it is vital that the actual content of the concession regime be defined, so as to clarify and define the set of rights and obligations that the State and the CTT have taken on towards each other, with a view towards the pursuit of the inherent objectives.
In this way, the premises of the public service concession approved in this measure hereby establish a clear, accurate framework for, not only the areas of action which are exclusively incumbent upon the CTT, but also in terms of postal infrastructures and the services that have to be provided by it, as well as the way in which these infrastructures and services are to be managed and provided. The premises also establish the quality and reliability levels of the services to be provided by the CTT, thereby ensuring the users’ rights to access and the use of these services.
An approval of the present premises is thus of paramount importance and significance for ensuring development of the public postal network and of all services provided via this network, thereby seeking to ensure continuity of its national capacity in terms of postal communications, constantly updated and assuring high quality.
Hence:
In the wake of the legal regime established by Law 102/99 of 26 July and under the terms of paragraph c), section 1 of article 198 of the Constitution, the Government does hereby decree as follows, thus being valid as a general law of the Portuguese Republic:
Article 1
The premises for the concession of universal postal service to be signed with CTT - Correios de Portugal, S. A., are hereby approved under the terms set out in the annex to the present diploma and which forms an integral part thereof.
Article 2
The Minister for Equipment, Planning and Territorial Administration is authorised to grant the universal postal service concession contract on behalf of the Government.
ANNEX
Premises for the concession of universal postal service
SECTION I
Definitions
Premise I
Definitions
1 - For the purposes of the provisions of the present premises, the following definitions apply:
a) Licensor - the Portuguese State;
b) Concessionaire - CTT-Correios de Portugal, S. A.;
c) ICP - Instituto das Comunicações de Portugal;
d) Basic law - basic law governing the establishment, management and operation of postal services in national territory, including international services originating in or destined to national territory (Law 102/99 of 26 July);
e) Terminal dues - remuneration owed to the concessionaire for the carriage, processing and distribution of international mail originating in foreign countries;
f) User - any individual or corporate body able to access the services provided by the concessionaire under the concession contract;
g) Case of force majeure - any unforeseeable or unavoidable event whose effects are beyond the control or personal circumstances of the parties, namely natural disasters, acts of war, whether declared or otherwise, subversion, public unrest, economic blockade or fire.
2 - The definitions and classifications set out in article 4 of the basic law apply to the present premises.
SECTION II
Object and scope of the concession
Premise II
Object of the concession
1 - The object of the concession is:
a) The establishment, management and operation of the public postal network;
b) To provide the following reserved services and activities:
1) The postal service for sending correspondence, including direct mail, with or without accelerated delivery, whose price is less than five times the public price for the sending of correspondence of the first weight step in the fastest standard category, as long as it weighs less than 350 g;
2) The postal service for sending registered and insured correspondence, including postal writ of summons and judicial notifications by post, within the same price and weight limits referred to in the previous paragraph;
3) The issue and sale of stamps and other postal products;
4) The issue of postal orders;
5) The placing in public space of post-boxes of whatsoever nature for the collection of postal items;
c) To provide the following non-reserved postal services which are included in the universal service:
1) The postal service for sending correspondence not covered by the price and weight restrictions stipulated in subparagraph 1) of paragraph b), books, catalogues, newspapers and other periodicals weighing up to 2 kg;
2) The service for postal parcels weighing up to 20 kg;
3) The postal service for registered mail not covered by the price and weight restrictions set out in subparagraph 1) of paragraph b);
4) The postal service for sending insured items not covered by the price and weight restrictions set out in subparagraph 1) of paragraph b).
2 - The provisions of subparagraphs 1) and 2) of paragraph b) and of paragraph c) of the previous section encompass national and international postal service.
3 - In addition to the stipulations in section 1, the licensor may, should duly recognised public interest so justify, invest the concessionaire with the duty of operating other postal services under such conditions as are agreed upon between both parties, these being included in an amendment to the concession contract, preceded by the corresponding alteration to the present premises for the concession.
Premise III
Scope of the concession
For the purposes of the object of the concession, the concessionaire is invested with all such rights and obligations as are encompassed by the establishment, management and operation of the public postal network and the provision of those services and activities set out in section 1 of premise II in national territory.
Premise IV
Operating regime
1 - The establishment, management and operation of the public postal network and the provision of those reserved services and activities set out in paragraph b), section 1 of premise II are granted on an exclusive basis.
2 - Economic operation on an exclusive basis set out under the terms of section 1 shall remain in force until the licensor has liberalised the activity or part of the activity that is the object of the present concession, namely in accordance with Community law.
3 - In the event of the constraint, restriction or loss of the exclusive rights set out under the terms of section 1, the concessionaire is still obliged to provide the corresponding services and activities in terms of universal service, safeguarding all such obligations as are incumbent upon it under the terms of the concession.
4 - The situation referred to in the previous section in no way jeopardises the maintenance of the right to provide those postal services which are the object of the concession and recognised as having been granted to the concessionaire.
Premise V
Public postal network
1 - The concessionaire is obliged to establish, maintain and develop the public postal network on such a basis as is appropriate to effectively provide universal service, encompassing the set of human and material resources allocated to the provision of universal postal service, namely those to be found in the following operating units:
a) Postal items processing centres;
b) Postal items distribution centres;
c) Post offices.
2 - The following also form part of the public postal network:
a) Real estate whereupon the concession operating units referred to in the previous section are to be found;
b) Other real estate, or parts thereof, where concessionaire services for carrying on those activities concessioned are to be found;
c) The property used for running those activities concessioned;
d) The rights and obligations which are the object of the legal relationships to be found connected with the concession at any time, including labour, loans, contracts, leasing and the rendering of services.
Premise VI
Concession period
1 - The concession contract comes into force on the date whereupon it is signed. It is valid for a period of 30 years.
2 - The contract may be renewed for successive minimum periods of 15 years subject to agreement between the parties, either of whom shall, if they are interested in an extension, give the other party at least 5 years notice prior to the end of the initial contract or any renewals thereof.
3 - Should no agreement have been reached vis-à-vis the renewal of the contract within two years of the date of notification referred to in the previous section, the licensor reserves the right to monitor the concessionaire’s management by means of representatives appointed by it to this effect, in order to ensure that the concession is fully operational. The licensor is further invested with the right to approve the exercise or omission of the following acts by the concessionaire:
a) Investment and respective financing, repayments and revaluations;
b) Acquisition, disposal or any other form of encumbrance on real estate and marketable securities;
c) Technological and qualitative development of the public postal network in order to ensure the service quality indices stipulated in the present premises.
4 - Should the situation foreseen in the previous section occur, the licensor may also, via its representatives, determine that extraordinary investments be made in order to ensure the greater technological and qualitative development of the public postal network, thereby ensuring compliance with those objectives not included under the terms of the present premises.
5 - Any extraordinary investments made under the terms of the previous section shall be subject to compensation corresponding to the differential between the amount of the extraordinary investments made deducted from the repayments, plus an indemnization as is agreed upon between the licensor and the concessionaire.
6 - In the event of any dispute between the licensor and the concessionaire as regards the amount of compensation and of indemnization referred to in the previous section, it is incumbent upon the court of arbitration referred to by premise XXXVIII to set this figure.
7 - Should the licensor’s representatives fail to approve those acts foreseen in section 3, the State shall not assume its obligations thereunder.
Premise VII
Other concessionaire services and activities
1 - Besides the services concessioned, the concessionaire may provide other postal services in Portugal and abroad, as well as exercise any other activities which allow the public postal network to become more profitable, either directly or by forming, or taking up a stake in, companies.
2 - The rendering of services and exercise of activities referred to in the previous section shall not affect the concessionaire’s compliance with its obligations under the concession contract.
SECTION III
Obligations of the concessionaire
Premise VIII
General obligations of the concessionaire
1 - Under the concession contract the general obligations set out below are incumbent upon the concessionaire:
a) To ensure the provision of those services concessioned throughout national territory, not showing any undue or unwarranted preference or discrimination towards any individual or corporate body requesting such services;
b) To provide those services concessioned, ensuring their interoperability, continuity, availability and quality;
c) To ensure and enforce confidentiality and the inviolability of correspondence, including data protection, subject to such restrictions and exceptions as have been laid down by law;
d) To ensure the protection of privacy as regards all postal services provided;
e) To ensure equality and transparency for all, under equal conditions, as regards access to the use of the services concessioned, provided they comply with requirements and pay the corresponding prices;
f) To publish suitable advertising and regularly supply users with information about the general conditions of access and use of the services rendered, as well as the respective prices and quality levels;
g) To provide and send to the ICP such information and statistical data as are deemed necessary by the latter to monitor those activities which have been concessioned;
h) To allow and facilitate the monitoring of performance of the concession contract by the licensor, under the terms of premise XVII;
i) Not to assign, dispose of or encumber, in any way, those rights invested under the concession, except for those cases foreseen by law or duly authorised;
j) To comply with relevant parts of prevailing national laws and such orders, injunctions, commands and directives and instructions as have been directed to it by the relevant authorities under the terms of the law as well as those stipulations which, under the terms of the concession contract, have been addressed to it by the licensor;
l) To comply with such standards as may come into force in future, even if these standards lead to the lapsing of those provisions which derive from the needs or requirements of public use of any of the services it provides and not foreseen at the time of the concession;
m) To ensure in an apt, appropriate way, the operation of those services which have been concessioned in crisis, emergency or wartime situations;
n) To ensure the existence of user support services, namely by providing suitable information and assistance system and by creating transparent, easy-to-access process which allows the speedy processing of complaints;
o) To adopt measures which ensure a service easily used by users with special needs, adapting the structures where this service is provided so as to ensure easy access thereto.
2 - For the purposes of the provisions of paragraph c) of the previous section, the concessionaire assumes to take all required measures, appropriate and within its reach, to ensure and enforce the inviolability and confidentiality of correspondence, as well as data protection, under the terms of prevailing legislation, though not entailing any responsibility for the concessionaire for actions or omissions which are not attributable to it.
3 - The concessionaire’s employees and other workers are bound not to disclose the content of correspondence or other information of which they become aware of during the course of their duties, except in such cases as are permitted by law.
Premise IX
Specific obligations in the context of the public postal network
1 - The concessionaire has the following obligations as regards the public postal network:
a) To provide, under the terms of the law, those entities qualified to carry out the postal activity with access to the public postal network, under equal conditions and without discrimination;
b) To establish the public postal network and keep it secure and in good working order, seeing to its operationality and proper operation;
c) To develop the public postal network qualitatively and quantitatively, namely by accomplishing those objectives set out in the arrangement referred to in premise XV, thereby ensuring the appropriate level of quality of those services provided on this network;
d) To comply with applicable legislation in terms of the planning of national territory, and the protection of the environment and heritage.
Premise X
Specific obligations in the context of reserved services
1 - The following specific obligations are incumbent upon the concessionaire when providing reserved services pertaining to the sending of correspondence as referred to in subparagraphs 1) and 2), paragraph b), section 1 of premise II:
a) Its collection at least once a day and on every working day from the post-boxes, of whatsoever nature, installed for that purpose in public space or in such concessionaire locations as are suitable for the receipt of the above mentioned postal items, except under exceptional geographical circumstances or conditions acknowledged as such by the ICP;
b) Its distribution at least once a day and on every working day in the domicile of each destinee or, under the terms of the regulations, at appropriate locations, except under exceptional geographical circumstances or conditions acknowledged as such by the ICP.
2 - The concessionaire’s employees who provide the services referred to in subparagraph 2), paragraph b), section 1 of premise II:
a) Are deemed to be employees for the purposes of paragraph c), article 386 of the Criminal Code;
b) Shall observe procedural rules as regards postal writ of summons and judicial notifications by post, namely the provisions of article 236 of the Code of Civil Procedure and article 113 of the Code of Criminal Procedure.
3 - As regards the issue and sale of stamps, referred to in subparagraph 3), paragraph b), section of premise II, the concessionaire has such specific obligations as have been set out in given regulations.
4 - The concessionaire’s specific obligations as regards the issue of postal orders referred to in subparagraph 4), paragraph b), section 1 of premise II, are those which have been set out in the given national and international regulations in this regard.
Premise XI
Specific obligations as regards non-reserved services
The specific obligations set out in section 1 of the previous premise are incumbent upon the concessionaire as regards the provision of those unreserved services forming part of universal service and referred to in paragraph c), section 1 of premise II.
Premise XII
Service quality
The concessionaire undertakes to provide those postal services referred to in subparagraphs 1) and 2), paragraph b) and in paragraph c) of Premise II in accordance with the quality standards and indicators to be set by arrangement under the terms of section 5, article 8 of the basic law.
Premise XIII
Cost accounting
1 - The concessionaire undertakes to set up an annual cost accounting system which allows to determine the revenues and the direct and indirect costs defrayed on each of the reserved services and on each of the non-reserved services making up the universal service.
2 - The cost accounting system shall also allow itemisation of the costs defrayed on the various basic operations making up the postal service as foreseen in section 7, article 4 of the basic law.
3 - It is incumbent upon the ICP to approve the methodology to be used in setting up and using the system referred to by the previous sections.
Premise XIV
Concessionaire's inventory
1 - The concessionaire undertakes to draft and keep up-to-date an inventory of assets allocated to the concession. This shall distinguish between the property referred to in paragraphs a), b) and c), section 1 of premise V and the other property allocated to the concession, in accordance with rules to be defined by the ICP, having first heard the concessionaire’s opinion.
2 - The inventory referred to in the previous section shall be approved by the ICP on an annual basis.
3 - In the event of non-approval, the inventory process shall be submitted to the court of arbitration, which shall make a decision in this regard.
4 - Without prejudice to such other penalties as are applicable in the event of a failure to comply with the stipulations of section 1, the licensor reserves the right to carry out the inventorying of property assigned to the concession, with the concessionaire bearing the corresponding costs.
Premise XV
Development objectives of the public postal network and minimum services provided
1 -The following shall be defined by way of an arrangement to be made between the ICP and the concessionaire:
a) Development objectives of the public postal network;
b) Objectives as regards the minimum services provided, technical characteristics and advanced resources.
2 - The objectives referred to in the previous section are set for each year of validity of the arrangement.
3 - The arrangement referred to by the present premise is signed for a minimum period of three years which may be automatically extended for equal periods, coming into force as from its date of ratification by the licensor and forming an integral part of the concession contract.
4 - In the event of the cessation of the validity of the arrangement and until a new arrangement has been signed, the concessionaire is obliged to ensure no less than those objectives established above, should no agreement have been reached and by the initiative of either party, without prejudice to incumb upon the court of arbitration, foreseen in premise XXXVIII, to set new objectives as referred to by section 1.
Premise XVI
Development plan
1 - In order to allow the supervisor body to verify smooth adaptation between the developments of the public postal network and of the services and levels of technological development and quality set out under the terms of the previous premise, as well as any subsequent alterations made, the concessionaire undertakes to draw up a development plan for the following three years by the 3rd quarter of each calendar year. This plan shall set out the objectives to pursue in terms of network expansion, as well as those services which are the object of the concession.
2 - The development plan referred to in the previous section shall consider the following objectives for each year:
a) As regards the public postal network, the introduction of new technologies into its operation, management and maintenance, quantifying the associated consequences;
b) As regards those services which are the object of the concession:
i) Introduction of new service facilities and enhancement of the quality of the services provided;
ii) Progress made in terms of access to the services by citizens with special needs.
3 - The objectives mentioned in the previous section shall be itemised per geographical area, so as to display the appropriate harmonisation of supply in national territory.
4 - The development plan shall contain the quantification and valuation of those investments required to put it into effect, distinguishing between investments aimed at the expansion of the public postal network and investments to replace that network.
Premise XVII
Supervision of the concession
1 - It is incumbent upon the Minister of Finance to supervise the concession so far as financial matters are concerned, and upon the Minister for Equipment, Planning and Territorial Administration for all other matters.
2 - For the purposes of the provisions of the previous section, the concessionaire shall provide the ICP with all such co-operation as it has been requested to provide, undertaking to afford access to its facilities, equipment of whatsoever nature and all documentation and files, to provide any information and to make available any elements requested of it, namely statistics and management records used, affording such clarifications in respect of all those documents as it is requested.
3 - At the request of the ICP and in the presence of the concessionaire’s representatives, inspections may be carried out to allow the verification of the operating and safety conditions and state of repair of the public postal network and other assets allocated to the concession, as well as the quality levels achieved in the various services which are the object of the concession.
4 - Any ICP stipulations issued in respect of its supervisory powers shall be applied within the time period set to this end. They shall legally bind the concessionaire, without prejudice to an appeal to the court of arbitration foreseen in premise XXXVIII.
5 - The ICP and its agents are obliged to keep any information gathered in the strictest confidence, namely personal and commercial information within the remit of the supervisory measures carried out, and can not use this information nor disclose it for purposes other than those of supervision itself or some other purpose deemed relevant under the law.
6 - Should the concessionaire have failed to comply with the stipulations laid down by the ICP within the remit of its supervisory powers, it is incumbent upon the latter to correct the situation, either directly or via a third party, the attendant costs being borne by the concessionaire.
Premise XVIII
Rent to the State
1 - For the establishment, management and operation of the public postal network and the provision of those services concessioned thereby, the concessionaire is obliged to pay the State, on an annual basis and by way of rental, a sum corresponding to 1 % of the gross revenue from running the services which are the object of the concession and provided on an exclusive basis.
2 - Any negative operating margins deriving from compliance with universal service provision obligations shall be deducted from the annual rent, such margins being determined in accordance with the stipulations of premise XIX.
3 - Amounts relating to exemptions and reductions vis-à-vis the services concessioned, and resulting from the regulatory provisions applicable and laid down as such in the arrangement referred to by premise XXIV, may also be deducted from the annual rent, as may any other amounts which the State owes the concessionaire.
4 - Rent shall be paid in the month subsequent to the approval of the accounts pertaining to the previous calendar year.
5 - The percentage of the amount of rent to be delivered to the ICP in return for those costs connected with the concession supervision and control shall be determined by joint ruling of the Minister of Finance and of the Government member responsible for the communications area.
Premise XIX
Determination and compensation for universal service costs
1 - Any unreasonable economic and financial costs arising from compliance with obligations to provide universal service foreseen under the terms of paragraphs b) and c) of premise II shall be compensated in the event of approval alternatively or cumulatively in the following ways:
a) By way of the compensation fund foreseen under the terms of premise XXVI;
b) By deducting the respective amount from the rental to be paid by the concessionaire to the State;
c) By way of the prevailing tariff systems.
2 - For the purposes of the provisions of the previous section, the concessionaire shall, in addition to and concurrently with the submission of the development plan referred to in premise XVI, show the costs defrayed on providing universal service and submit them to the approval of a committee made up of ICP and concessionaire representatives, which shall be required to form an opinion within 30 days.
3 - In the event of approval, the concessionaire shall adapt its accounting system for proper monitoring and showing of the income and the costs associated with universal service provision.
4 - Should approval not be granted, namely failure to reach agreement between the committee and the concessionaire, the ICP shall promote a consultation of the postal service providers existing on the market with a view to choosing a provider that, while satisfying the same level and degree of obligations of universal service, can provide conditions which are economically more advantageous for the licensor.
5 - In those cases referred to in the previous section, the body taking on the obligation to provide universal service shall be compensated for the costs defrayed on such provision, under the terms of section 1.
6 - Should there not be any other alternative service providers who, under the terms of section 4, ensure the provision of the service, or whilst the exclusive agreements set out in premise IV are in force, it is incumbent upon the court of arbitration to come to a decision on the inspections of unreasonable economic and financial costs, in the event of non-approval by the committee under the terms of section 2.
Premise XX
Decisions subject to authorisation
1 - The concessionaire may not, without the express authorisation of the licensor, make any corporate decision which directly or indirectly has as its purpose, or which may lead to one of the situations set out below:
a) Alteration of corporate purpose;
b) Transformation, merger, split or dissolution of company;
c) Reduction in share capital;
d) Total or partial, temporary or permanent suspension or cessation of any of the services concessioned or which it is obliged to provide under the terms of the present premises;
e) Disposal of interests in companies formed to provide the services concessioned.
2 - The following are incumbent upon the concessionaire, subject to prior approval by the ICP:
a) The creation and closure of postal establishments;
b) The alteration of the working hours of postal establishments, bearing in mind service needs and levels of demand.
3 - It is incumbent upon the concessionaire to totally or partially suspend or cease on a permanent or temporary basis those services not covered by the concession, having first heard the opinion of the ICP.
Premise XXI
Sub-concession
1 - Subject to prior approval by the licensor, the concessionaire is permitted to sub-concession all or part of the operation of any of those services which are the object of the present concession.
2 - In those cases where sub-concession has been authorised, the concessionaire maintains its rights and is still directly and personally subject to the obligations deriving from the concession contract.
Premise XXII
Participation of third parties in the activity
1 - The object of the concession shall always be pursued by the concessionaire directly and personally. The adoption of any legal instruments empowering third parties to take part in concession activities require the prior authorisation of the licensor.
2 - Contracts foreseeing the provision of the following types of services are exempted from the provisions of the previous section:
a) Postal items transport and distribution services;
b) Post office services and the sale of postage stamps;
c) Other third party services which are complementary to the operation which is the object of the concession.
3 - In the event of authorisation as referred to by section 1, the concessionaire maintains its rights and is still directly and personally subject to the obligations deriving from the present premises.
4 - The provisions of the previous sections in no way jeopardise the validity of the contracts and other legal instruments in force on the date when the concession contracts comes into effect.
SECTION IV
Concessionaire's rights
Premise XXIII
Concessionaire's rights
Under the concession contract the concessionaire is expressly invested with the following rights:
a) To operate the concession under the terms of the present premises;
b) To charge the prices of the services it provides;
c) To carry out such works as are necessary to set up, upkeep and maintain the public postal network, in accordance with the law and under the terms of the provisions of the legal regulations on urban development and building, dispensing with the need for municipal licensing;
d) To request of the Government member responsible for the communications area expropriations by dint of public utility, to request the formation of administrative rights of way, to set up protection areas and to access land and public and private buildings, whenever this proves necessary for the operation of the services concessioned and in accordance with prevailing legislation.
Premise XXIV
Price system
1 - When setting the prices of each of the postal services which make up universal service, the following principles shall apply:
a) Accessibility of prices in order to allow the provision of services which are accessible to the majority of users;
b) Cost-orientation for providing the services, duly showed by a cost accounting system;
c) Transparency and non-discrimination of its application, ensuring that all users in equal circumstances are treated in the same way;
d) Uniform application of prevailing tariff system for those services which are the object of the concession.
2 - Price-setting rules for each of the services which will make up universal service are set out in an arrangement abiding by the principles listed in the previous section, intended to remain in force, unless otherwise provided for by the parties thereunto, for 3-year periods. This arrangement shall be signed between the licensor, represented by the ICP, the General Directorate for Trade and Competition and the concessionaire.
3 - As regards the price-setting referred to in the previous section, the concessionaire undertakes to submit a plan which results in the adaptation of its financial structure to the principles referred to in section 1.
4 - In the event of any restriction, limitation to or loss of exclusive agreements, the prices already in place shall remain in force until the arrangement containing price-setting rules between the licensor, represented by the ICP, the General Directorate for Trade and Competition and the concessionaire has been signed, in accordance with the rules set out in the previous sections.
5 - In the absence of the arrangement referred to in the previous section, the parties may submit that price-setting to the court of arbitration envisaged in premise XXXVIII.
Premise XXV
Terminal dues
1 - Terminal dues shall be transparent and non-discriminatory. They shall be set in line with the costs defrayed by the concessionaire by dint of the transport, processing and distribution of incoming international post and related with the quality of the service provided.
2 - The terminal dues referred to in the previous section are set in accordance with the criteria and rules defined or agreed upon by the concessionaire at the various stages of negotiation, and duly notifying the ICP thereof.
Premise XXVI
Compensation fund for providing universal service
1 - Any unreasonable economic and financial costs deriving from the provision of universal service, when approved by the ICP, may be compensated for by way of a compensation fund for the provision of universal service, to which the concessionaire and other postal service providers offering services in the non-reserved area but in the scope of universal service shall contribute, under such terms as have been laid down by special legislation.
2 - For the purposes of the previous section, the concessionaire shall, within the context of the cost accounting system it is obliged to provide under the terms of premise XIII, demonstrate the costs defrayed on providing universal service and the costs to be borne by the compensation fund.
SECTION V
Breach of contract
Premise XXVII
Contractual fines
1 - Without prejudice to the breaches which may give rise to sequestration or rescission of concession under the terms of premises XXIX and XXXIV, any breach by the concessionaire of its concession obligations, of the stipulations of the licensor issued under the terms of the law or of the concession contract, shall entail the application of contractual fines for a sum varying between a minimum of 0.001% and a maximum of 0.5% of the annual volume of revenue deriving from the operation of the concession carried out in the previous calendar year, depending on the seriousness of the infringements committed and of the resulting damages, as well as the blameworthiness of the concessionaire.
2 - The fines referred to in the previous section are applied by way of a ruling by the Government member responsible for the communications area, upon a proposal by the ICP, being communicated to the concessionaire in writing and taking effect regardless of any other formality.
3 - 60% of any fines applied under the terms of the present premise revert to the State and 40% to the ICP.
4 - The payment of any fines applied under the terms of the present premise in no way exempt the concessionaire from its civil liability for losses and damages resulting from the infringement.
Premise XXVIII
Extra contractual liability
The concessionaire shall be liable under the terms of general law for any losses caused, whether intentional or otherwise or where there is risk or blame involved, to third parties during the course of those activities which constitute the object of the concession. The licensor shall not assume any type of liability in this regard.
Premise XXIX
Sequestration
1 - In the event of a serious breach by the concessionaire of its obligations under the concession contract, the licensor may, by way of sequestration, take upon itself the carrying on of those activities and the operation of those services which are the object of the concession.
2 - Sequestration may take place should any of the following situations occur:
a) Cessation or total or partial interruption of the continuity of those activities and the operation of those services which are the object of the concession;
b) Serious shortcomings in the smooth continuity of those activities and the operation of those services which are the object of the concession, as well as situations involving the lack of security of people and of property;
c) Shortcomings in the general state of public postal network facilities and equipment which compromise the continuity and/or quality of the provision of those services which are the object of the concession.
3 - Upon the occurrence of sequestration, the concessionaire shall bear any costs resulting from the maintenance of services and any extraordinary expenses required to resume normal operation.
4 - As soon as the reasons behind sequestration cease to exist and the licensor sees fit, the concessionaire shall be notified to resume the normal operation of those activities and services which are the object of the concession, within the time period stipulated to this end.
5 - Should the concessionaire not wish or be unable to resume the concession or, having done so, should there still be serious shortcomings in the operation of those activities and services which are the object of the concession, the licensor may determine the rescission of the contract forthwith.
Premise XXX
Force majeure
1 - Should cases of force majeure occur during the term of validity of the concession contract which prevent compliance with obligations by either party or which require the suspension of those services which have been concessioned, the corresponding obligations or the contract shall be suspended totally or partially for the period corresponding to that of the duration of the case of force majeure, or the contract shall be revised by mutual agreement should this be justified.
2 - Any party intending to invoke a case of force majeure shall notify the other party as soon as it becomes aware thereof, stating its impact on contract performance.
3 - Without prejudice to the possibility of the agreement foreseen in section 1, should a case of force majeure occur, the concessionaire shall always provide for the operation and continuity of the postal services, taking such measures as prove necessary and appropriate to this purpose, namely in terms of planning, prevention of operation and human resources.
Premise XXXI
War or crisis situation
1 - Without prejudice to the provisions of paragraph j), section 1 of premise VIII and of the previous premise, in the event of war or crisis situation the licensor reserves the right, by way of the Government member responsible for communications, to manage and operate those services which are the object of the concession.
2 - During the period referred to in the previous section, the concession period stipulated under the contract with regard to the object of the concession shall be suspended.
SECTION VI
Modification and termination of contract
Premise XXXII
Modification of contract
1 - In the event that during the term of validity of the concession contract, circumstances occur which, by dint of their importance and effects, are to be regarded as an irregular alteration of circumstances under the terms of article 437 of the Civil Code, the parties undertake to revise the contract in accordance with the principles of good faith and fairness.
2 - Should the parties fail to reach an agreement as regards the alteration of the contract foreseen in the previous section within a time period not exceeding 90 days as from the notification of either party to another of the alteration of circumstances, there shall be an appeal to the court of arbitration foreseen in Premise XXXVIII.
Premise XXXIII
Cessation of the concession
The concession shall terminate upon mutual agreement in this regard between the licensor and the concessionaire owing to rescission, redemption or after the respective term has elapsed.
Premise XXXIV
Rescission of the concession
1 - The licensor may rescind the concession, without prejudice to the provisions of section 2, in the event of a serious, ongoing and irredeemable breach of the concessionaire’s obligations, namely should any of the following occur:
a) Deviation from the object of the concession;
b) Breach of legislation applicable to the activity object of the concession or of any of the clauses of the respective contract;
c) Dissolution of concessionaire;
d) Unfounded, repeated opposition to inspection and a repeated, unwarranted failure to comply with the legitimate stipulations of the licensor and of the ICP;
e) Refusal to carry out the proper upkeep and repair of the facilities and equipment which make up the public postal network;
f) Refusal or impossibility by the concessionaire to resume the concession operation under the terms of section 5 of Premise XXIX, or, should it have done so, should the situation which led to sequestration remain;
g) Intentional failure to comply with legal or arbitration decisions.
2 - Should any of the cases of non-compliance occur, which under the terms of section 1 constitutes sufficient grounds for rescission of the concession, the licensor shall notify the concessionaire to comply with its obligations in full within the term set for this purpose, or correct and remedy the consequences of its acts, except in the case of an irredeemable breach.
3 - Should the concessionaire fail to see to the correction or remedy of the consequences of its failure to comply under the terms stipulated by the licensor, the latter may rescind concession by sending the concessionaire a notification to this effect.
4 - Rescission is incumbent upon the Government member responsible for communications and shall take effect upon notification of the concessionaire, regardless of any other formality.
5 - In the event of rescission, the totality of all property and rights assigned permanently and necessarily to the concession reverts to the State, without any compensation and without prejudice to the civil liability incumbent upon the concessionaire and such sanctions as are foreseen under the law or under the concession contract.
Premise XXXV
Redemption of the concession
1 - The licensor may redeem the concession whenever the public interest so justifies, giving the concessionaire at least 1 year’s notice in this regard, after at least 15 years have elapsed since the commencement of the respective time period.
2 - Once a year has elapsed since the notification of redemption, the licensor shall assume all the rights and obligations taken on by the concessionaire prior to the date of notification, with a view to ensuring pursuit of the activities of the establishment, management and operation of the public postal network and the provision of those services concessioned, and also those which have been taken on by the concessionaire after that date, provided that they have been previously authorised by the licensor, in which case the provisions of section 3 of premise VI shall apply, making any adaptations as prove necessary.
3 - In the event of redemption, the concessionaire shall be entitled to compensation equal to the value of the property which is assigned to the concession on the date of redemption, provided that they have been included in the respective development plan for the public postal network supported by the concessionaire, less the repayments and respective revaluations and less 1/15 for each year which has elapsed since the commencement of the concession period.
4 - In addition to the compensation foreseen in the previous section, the concessionaire is entitled to extraordinary compensation corresponding to the number of years left before the end of the concession period multiplied by the average value of the net results calculated in the five years prior to the notification of redemption.
Premise XXXVI
Reversion of property and rights upon cessation of the concession
1 - Upon cessation of the concession, the totality of all property and rights assigned permanently and necessarily to the concession on that date reverts free-of-charge and automatically to the licensor under the terms of premise V, with the concessionaire undertaking to submit them in smooth, safe working order, without prejudice to the normal wear and tear resulting from their use, and free of any encumbrances or costs. Under no circumstances and on whatsoever grounds may the concessionaire invoke a lien.
2 - Should the reversion of property and rights to the licensor not proceed under the conditions foreseen in the previous section, the concessionaire shall compensate the licensor, being the compensation calculated under the terms of the law.
3 - Upon cessation of the concession, the licensor shall proceed with an inspection of the property assigned to the concession, in which a representative of the concessionaire shall take part. This inspection is intended to verify the state of repair and maintenance of that property, drawing up a report of the inspection carried out.
SECTION VII
Settlement of disputes
Premise XXXVII
Conflict settlement process
1 - Any conflicts arising between the parties as regards the application, interpretation or filling of loopholes in the concession contract shall be settled by voluntary arbitration under the terms of Law 31/86 of 29 August.
2 - The submission of any matter to the conflict settlement process in no way releases the concessionaire from its obligation to punctually comply with the provisions of the present premises and of the stipulations of the licensor whereof it is notified, including such stipulations as have been issued after the date of that submission, nor does it permit any interruption in the carrying on of those activities which are the object of the concession which shall continue to be processed under the terms in force upon the date of submission of the conflict, until a final decision has been obtained in the conflict settlement process vis-à-vis the matter concerned.
Premise XXXVIII
Court of arbitration
1 - Either party may submit the litigation to a court of arbitration made up of three members, one being appointed by each of the parties and the third being chosen by mutual agreement of the arbitrators designated by the parties.
2 - Any party deciding to submit a certain conflict to the court of arbitration under the terms of the previous section shall submit its reasons for doing so, designating forthwith the arbitrator to be designated by it in the request for the formation of a court of arbitration which it addresses to the other party by registered letter with acknowledgement of receipt. Within 20 working days of receipt of the registered letter, the other party shall designate the arbitrator to be chosen by it and present its defence.
3 - The arbitrators designated under the terms of the previous section shall appoint the third court arbitrator within 10 working days of the designation of an arbitrator by the party against whom the action has been brought.
4 - Should no agreement be reached as regards the designation of the third arbitrator, the choice shall be made by the president of the Lisbon Magistrates Court at the request of either party.
5 - The court of arbitration shall be deemed to have been formed on the date whereupon the third arbitrator accepts his appointment and notifies both parties of his acceptance.
6 - The court of arbitration may be aided by such technical experts as it is thought appropriate to designate, though it shall always seek advice from people or bodies with suitable legal training in Portuguese law.
7 - The court of arbitration shall pass sentence in accordance with the law. No appeal may be made against its decision, without prejudice to the provisions of the law in respect of the annulment of arbitration decisions.
8 - The decisions of the court of arbitration shall be given within no more than six months after the date of formation of the court stipulated under the terms of section 5, shall outline the final decision of the conflict settlement procedure and shall determine the legal costs and the proportion to be paid by each party.
9 - Any omission shall meet the provisions set out in the law applicable to voluntary arbitration.
SECTION VIII
Transition provisions
Premise XXXIX
Inventory of assets
Within two years of the date whereupon the contract is signed the concessionaire shall be obliged to submit an inventory to the ICP listing the property assigned to the concession under the terms of Premise XIV.
Premise XL
Relations with third parties
The signing of the concession contract in no way compromises the validity of all rights and obligations deriving from contracts which have already been signed or which are to be signed between the concessionaire and other foreign bodies or postal administrations.
Seen and approved at the Council of Ministers of 16 September 1999. - António Manuel de Oliveira Guterres - António Luciano Pacheco de Sousa Franco - João Cardona Gomes Cravinho - Joaquim Augusto Nunes de Pina Moura - José Sócrates Carvalho Pinto de Sousa.
Enacted on 19 October 1999.
Let this document be duly published.
The President of the Republic, Jorge Sampaio.
Countersigned on 21 October 1999.
The Prime Minister, António Manuel de Oliveira Guterres.
