Ministério do Equipamento Social (Ministry of Social Equipment)
Decree-Law
(This is not an official translation of the law)
The Basic law 102/99, of 26 July, defined the general legal conditions governing the establishment, management and operation of postal services in national territory, as well as international services originating or terminating in national territory.
The above law consecrated the fundamental lines of Community and National policy for the postal sector, specifically through transposition of the main norms of Directive 97/67/EC, of the European Parliament and of the Council, of 15 December, whose main objective is the progressive creation of a single, open market for postal services, through the gradual and controlled liberalisation of this market, while maintaining necessary public interest guarantees through the provision of a universal service via a concession system, assigned in Portugal to CTT - Correios de Portugal, S. A., under the terms of the legal conditions approved by Decree-Law 448/99 of 4 November.
It is now necessary to develop the Basic Law, thus implementing the principle of gradual and controlled liberalisation of postal services, transposing the norms of the above mentioned directive.
The present measure thus aims at regulating forms of market access for entities aiming at providing postal services in a competitive regime, as well as the corresponding rights and obligations.
As a result, a system of individual licensing has been instituted applicable to the provision of non-reserved postal services covered by the scope of universal service, and a system of general authorisation for provision of non-reserved postal services that are not included within the scope of universal service. The latter regime is less onerous in terms of eligibility requirements for access to the above mentioned business activity, or the imposition of obligations.Thus: Following the legal regime established by Law 102/99 of 26 July, and under the terms of paragraph c) of section 1 of article 198 of the Constitution, the Government hereby decrees the following:
CHAPTER I
General Provisions
Article 1
Object and scope
This measure establishes the access regime for exercise of the activity of provision of postal services in a competitive market.
Article 2
Definitions and classifications
For the purposes of this measure, the definitions and classifications contained in Law 102/99 of 26 July shall apply.
Article 3
Exercise of business activity
1 - The provision of non-reserved postal services covered in the scope of universal service is subject to an individual licence, hereinafter called licence, under the terms of this measure.
2 - The provision of non-reserved postal services not covered in the scope of the universal service is subject to a general authorisation, hereinafter called authorisation, under the terms of this measure.
3 – The ICP is responsible for publicising on a regularly updated basis, and specifically in digital format on the Internet, all licences and authorisations that have been granted, suspended or revoked.
Article 4
Services subject to a licence
1 - The provision of the following services is subject to a licence:
a) Postal service for sending correspondence, including direct mail, with or without accelerated delivery, whose price is equal to or higher than five times the public price for the sending of correspondence of the first weight step in the fastest standard category, or whose weight is equal to or higher than 350 g and not more than 2 kg;
b) Postal service for sending books, catalogues, newspapers and other periodicals, weighing up to 2kg ;
c) Postal service for sending registered and insured correspondence, including postal writ of summons and judicial notifications, within the same price and weight criteria referred to in paragraph a);
d) Postal parcels service, including those that are registered and insured.
2 - The terms of the previous section cover services provided at both national and international level.
Article 5
Services subject to authorisation
Provision of those postal services not covered by the previous article is subject to authorisation.
Article 6
Participation of third parties in the business activity
1 - Licensed and authorised entities may sign contracts with third parties that are not postal services providers, for the provision of transport and distribution services of postal items.
2 - The terms of the previous section apply without prejudice to the responsibility of entities licensed and authorised under the terms of this measure, to comply with legal and regulatory requirements applicable to the activity, specifically before the ICP and the consumers.
CHAPTER II
Licences
Article 7
Requirements for granting of licences
Entities aiming at obtaining a licence must comply with the following requirements:
a) Be a regularly constituted commercial company, whose object includes the exercise of the activity of provision of postal services;
b) Maintain technical and human resources suitable for fulfilment of the obligations inherent to this activity, specifically in terms of upholding users' rights;
c) Maintain a suitable economic structure, as well as necessary financial resources, in order to guarantee the company’s start-up phase and good management, as verified by a financial and economic study demonstrating that at least 25% of the value of the total planned investment in the proposed activity is covered by shareholders' funds;
d) Maintain a regularly updated accounting system, organised in accordance with the Official Charter of Accounts and capable of delivering the analyses required for the proposed project;
e) Have no outstanding tax, subscriptions, contributions or other payments due to the State or social security authorities, or in the event of such outstanding payments, have agreements signed to regularise this situation under the terms of the law.
Article 8
Granting of licences
1 - For the purposes of granting licences, interested parties shall submit an application to the ICP, including the following elements:
a) Documents and information showing compliance with the requirements specified in article 7;
b) Description of the service proposed, specifically identifying the geographical area of activity, the postal network supporting the service, and the minimum service quality levels by which the service is bound.
2 - When the registered office of the entity to be licensed is located outside national territory, the documentation required to check compliance with the requirement specified in paragraph a) of article 7 should be issued and authenticated by the competent authorities in the country of origin.
3 - After presentation of a duly documented application, the ICP is responsible for attributing and issuing licences in a time period that shall not exceed 40 days.
4 - Licences may not be granted in the following situations:
a) When the entity making the application has been previously authorised or licensed to provide postal services and the respective licences or authorisations are suspended or have been revoked under the terms of article 21 or where the accessory sanction specified in article 23 has been applied;
b) When the entity making the application, directly or indirectly, has control of, or a shareholding in, or is owned by, or has shares owned by, an individual person or corporate body under the circumstances specified in paragraph a).
Article 9
Licence elements
The licence shall include the following elements:
a) Identification of the services covered;
b) Geographical area of activity;
c) Deadline for start of activity;
d) Time period and term of licence.
Article 10
Time period and renewal of licences
1 - Licences are granted for a period of 15 years; the ICP may authorise renewals for equal time periods, on request by the licensed entity at least 1 year prior to the end of the respective time period during which the licence is in force.
2 - Decision on the licence renewal request shall be made within a maximum of 30 days after presentation of the respective request.
Article 11
Alteration
1 - Licences may be altered in the following cases:
a) Through the initiative of the ICP, following publication of legal norms that have been approved and result in conditions and requirements that were not foreseen on the date when the licence was granted, in accordance with the principles of proportionality and pursuit of the public interest;
b) Following a duly well-grounded request by the licensed entity subject to approval by the ICP
2 - For the purposes of the terms of paragraph a) of the previous section, the ICP shall notify the entity of the alteration it aims to introduce in the respective licence, granting the entity at least 10 days in which to make a statement.
Article 12
Transmissibility of licences
Licences may be transmitted following prior authorisation from the ICP; the entity to which the licence is transmitted should observe all the requirements specified in article 7 and assume all rights and obligations inherent to the respective licence.
CHAPTER III
Authorisations
Article 13
Requirements for granting of authorisations
1 - The following may be authorised to provide postal services:
a) Individual persons registered as sole traders;
b) Regularly constituted commercial companies, whose corporate aim includes the exercise of the activity of providing postal services;
2 - Entities aiming at obtaining an authorisation shall maintain technical and human resources suitable for fulfilment of the obligations inherent to this activity, specifically in terms of guaranteeing respect for users' rights.
Article 14
Granting of authorisations
1 - For the purposes of obtaining authorisation, interested parties shall present a declaration to ICP, containing the following elements:
a) Documents proving the requirements specified in section 1 of article 13;
b) Description of the service whose activity is proposed, specifically identifying the geographical area of activity, the postal network supporting the service, and the minimum service quality levels by which the service is bound;
c) Elements confirming that the entity maintains the technical and human resources specified in section 2 of article 13;
d) Indication as to whether the entity intends to start providing services immediately after issue of the authorisation, thus constituting declaration of start of business activity, in particular for the purposes of the terms of section 2 of article 19.
2 - Entities to be authorised whose registered office is outside national territory are subject to the terms of section 2 of article 8.
3 - Authorisations may not be granted in the following cases:
a) When the entity making the application has been previously authorised or licensed to provide postal services and the respective licences or authorisations are suspended or have been revoked under the terms of article 21 or where the accessory sanction specified in article 23 has been applied to it;
b) When the entity making the application directly or indirectly has control of, or a shareholding in, or is owned by, or has shares owned by, an individual person or corporate body under the circumstances specified in paragraph a).
4 – The ICP is responsible for issuing the authorisation in a time period that shall not exceed 30 days after presentation of a duly documented declaration under the terms of section 1.
Article 15
Elements of authorisations
1 - The authorisation shall specify:
a) Full identification of the authorised entity, including the domicile or registered office;
b) Indication of the postal network that will support the entity;
c) Geographical area of activity;
d) Identification of the postal services whose provision is not permitted under the terms of the authorisation regime.
2 - ICP is responsible for including in the authorisations any alterations of the respective elements that are communicated to it by the respective holder.
Article 16
Start of business activity by authorised entities
1 - An entity authorised under the terms of this measure shall inform the ICP, with minimum prior notice of 10 days, of services it intends to start providing. Such communication constitutes a declaration of the start of activity, specifically for the purposes of section 2 of article 19.
2 - For the purposes of the previous section, a description of the service shall be presented, that specifically identifies the geographical area of activity, the postal network supporting the service, and the minimum service quality levels to which the service is bound.
3 - Authorised entities shall communicate to the ICP any alterations concerning the provision of services whose description has been presented under the terms of the previous sections and of paragraph d) of section 1 of article 14.
4 - Whenever an entity has declared that it intends to start activity immediately after the authorisation is issued, under the terms of paragraph d) of section 1 of article 14, it is dispensed from the requirement to comply with the obligations specified in sections 1 and 2 concerning the services covered in that declaration.
CHAPTER IV
Joint Provisions
Article 17
Rights of the licensed and authorised entities
The licensed and authorised entities have the following rights:
a) To pursue the business activity of provision of postal services for which an entity is licensed or authorised;
b) To establish, manage and operate a postal network;
c) To gain access to the public postal network under transparent and non-discriminatory terms, via conditions to be agreed to with the universal postal service concessionaire;
d) To freely set prices for the services provided.
Article 18
Obligations of the licensed and authorised entities
1 - Licensed and authorised entities shall:
a) Comply with the essential requirements;
b) Exercise business activity under the terms and within the limits inherent to the respective licence or authorisation, specifically in terms of minimum service quality levels to which the service is bound;
c) Maintain technical and human resources suitable for fulfilment of the obligations inherent to this activity, specifically in terms of guaranteeing respect for users' rights;
d) Publicise to users, in a suitable and regular manner, up-to-date and precise information on the characteristics of the services provided, specifically in terms of general conditions of access and use of services, prices and service quality levels practised;
e) Guarantee equal user access to the services provided, via payment of the applicable prices;
f) Publicise in a suitable manner and with minimum prior notice of 30 days the total or partial withdrawal of services provided;
g) Announce in a suitable manner and with a minimum prior notice of 10 days the total or partial suspension of services, except in accidental circumstances or cases of force majeure;
h) Ensure that user complaints are handled via simple, inexpensive and transparent procedures that guarantee prompt and well-grounded responses to such complaints;
i) Communicate to the ICP the alterations to any elements contained in the respective licence or authorisation;
j) Supply the ICP with the information needed to inspect and verify inherent obligations and conditions of the licences or authorisations, and also provide information for statistical purposes, as well as access to the respective premises, equipment and documentation;
k) Pay applicable taxes, under the terms of article 19;
l) Comply with applicable legal and regulatory norms.
2 - For the purposes of paragraph a) of the previous section, the following essential conditions apply, under the terms of article 3 of Law 102/99, of 26 July:
a) Inviolability and confidentiality of correspondence, subject to the restrictions and exceptions established by criminal law and other applicable legislation;
b) Security of the postal network;
c) Protection of data, subject to the restrictions and exceptions established by criminal law and other applicable legislation;
d) Confidentiality of information transmitted or stored;
e) Protection of private life;
f) Territorial planning, protection of the environment and heritage.
3 – The specific obligations of licensed entities are as follows:
a) To commence the respective business activity within one year after issue of the licence, on penalty of forfeit, except for reasons of force majeure that are duly justified and accepted as such by the ICP;
b) To make a financial contribution to the compensation fund for the costs of the universal service, under the terms of the applicable legislation;
c) To maintain an accounting system that clearly distinguishes between services provided under the terms of the licence and other services included in the entity's business activity.
Article 19
Fees
1 - The following are subject to payment of a fee:
a) Issue of licences and authorisations;
b) Registered notes in licences and authorisations, in cases of alteration;
c) Substitution of licences and authorisations, on request of the licensed or authorised entities;
d) Renewal of licences.
2 - The licensed and authorised entities are subject to payment of annual fees for the exercise of their business activity.
3 - The fees referred to in the previous sections are set by order of the member of Government responsible for the area of communications, vis-à-vis the costs associated to the corresponding administrative, technical, operational and inspection tasks, and constitutes a source of revenue for the ICP.
CHAPTER V
Inspection and sanctions
Article 20
Inspection
1 -The ICP and the two police forces - Guarda Nacional Republicana and Polícia de Segurança Pública - are responsible for inspection of compliance with the terms of this measure.
2 - The ICP's inspection activity is exercised by ICP staff mandated for this purpose and other officials duly accredited for this purpose by the ICP's board of directors.
3 - ICP staff and the officials specified in the previous section are bound not to disclose information and data representing commercial or industrial secrets that they became aware of during the course of their duties.
Article 21
Non-compliance
1 - When the licensed or authorised entities do not comply with any of the applicable obligations, the ICP is responsible for suspending for up to 2 years, or revoking, either partially or fully, the licensing or authorisating acts, without prejudice to applicable fines.
2 - Prior to suspension or revocation, the ICP must inform the respective entities of the measures needed to correct the situation when such non-compliance can indeed be redressed, setting a time period of at least 10 days for the entity to reply.
3 - The terms of the previous section do not apply to situations of continual non-compliance of obligations by the licensed or authorised entities.
4 - Compliance with the measures imposed by the ICP for correction of the situation must be assured within a maximum of 30 days, unless another time period has been specified.
5 - In the event of the entity not complying with the measures set by ICP within the established deadline, then the licence or authorisation is suspended or revoked.
6 - Whenever the entities comply with the measures needed to regularise the situation, during the suspension period of the licence or authorisation, the ICP is responsible for lifting the suspension within a maximum of 10 days.
Article 22
Countermanding measures and fines
1 - Without prejudice to other applicable sanctions, the following constitute countermanding measures:
a) Provision of postal services without a suitable licence or authorisation, in breach of sections 1 and 2 of article 3;
b) Transmission of licences without prior authorisation from ICP, in breach of article 12;
c) Start of business activity by authorised entities, in breach of section 1 of article 16;
d) Non-compliance by the authorised entities with the communication obligation specified in section 3 of article 16;
e) Breach of the obligations referred to in section 1 and paragraphs b) and c) of section 3 of article 18;
f) Non-payment of outstanding fees, in breach of sections 1 and 2 of article 19;
g) Non-compliance by the universal postal service concessionaire with the information obligation specified in section 2 of article 26.
2 - The countermanding measures specified in this measure are subject to fines from PTE 50,000 to PTE 750,000 and from PTE 100,000 to PTE 9,000,000, according to whether they are practised by individual persons or corporate bodies, respectively.
3 - The countermanding measures specified in the present diploma may be punishable on the basis of intent and negligence.
Article 23
Accessory sanctions
The following constitute countermanding measures subject to an accessory sanction of suspension of licences or authorisations:
a) Exercise of the business activity by licensed or authorised entities that fails to respect the limits inherent to the respective licence or authorisation, in breach of paragraph b) of section 1 of article 18; b) Non-payment of outstanding fees, in breach of sections 1 and 2 of article 19.
Article 24
Processing and application of fines and accessory sanctions
1 - The chairman of the ICP's board of directors is responsible for applying fines and accessory sanctions specified in this measure.
2 – The ICP's board of directors is responsible for bringing legal action in the event of countermanding measures, while the ICP's services are responsible for filing the respective legal proceedings.
3 - Of the total amount of fines, 60% reverts to the State and 40% to the ICP.
4 – The ICP may suitably publicise penalties for countermanding measures, as well as accessory sanctions applied under the terms of this measure.
CHAPTER VI
Interim and final provisions
Article 25
Resolution of litigation
1 – The ICP is responsible, on request of the parties involved, to resolve any litigation arising between the universal postal service concessionaire and other postal service providers concerning access to the public postal network.
2 – The ICP's intervention may be requested by any party within a maximum of 60 days after knowledge of the circumstance giving rise to litigation.
3 – The ICP's decision should be provided within a maximum of 60 days after formulation of the request.
4 - The grounds for the ICP's decision shall be duly identified and a deadline will be set for the decision to be executed.
5 - ICP's decisions, provided in the scope of the litigation resolution process, may be appealed against via the law courts, under the terms of general law.
6 - All matters that are not explicitly specified in this article are subject to the terms of Law 31/86 of 29 August.
Article 26
The concessionaire
1 - The universal postal service concessionaire is able to operate postal services that are not reserved and not covered in the scope of the universal service, without the need for an additional licence or authorisation, subject to the regulatory framework established in this measure.
2 - The universal postal service concessionaire shall inform the ICP of the services it will provide under the terms of the previous section within 90 days after publication of this measure.
3 - Section 3 of premise XX of Decree-Law 448/99 of 4 November is hereby revoked.
Article 27
Concentration of companies
Decisions to be provided under the terms of applicable legislation on concentration operations by licensed or authorised companies are, under the terms of this measure, subject to a prior opinion from the ICP.
Article 28
Transition regime
Entities providing any of the services specified in articles 4 or 5, on the date this measure comes into effect, must, within 30 days after that date, and as a condition for continued pursuit of its activity, request the respective licence or authorisation from the ICP.
Article 29
Counting of time periods
The counting of time periods contained in this measure is subject to the rules established in article 72 of the Code of Administrative Procedure.
Article 30
Entry into force
This measure shall enter into force 90 days after the date of its publication.
Seen and approved in Council of Ministers of March 21, 2001. - António Manuel de Oliveira Guterres - Henrique Nuno Pires Severiano Teixeira - Eduardo Luís Barreto Ferro Rodrigues.
Promulgated on 18 April 2001.
Let this be published. President of the Republic, Jorge Sampaio.
Countersigned on 26 April 2001.
Acting Prime Minister, Jaime José Matos da Gama.
