Ministério do Equipamento, do Planeamento e da Administração do Território (Ministry for the Equipment, Planning and Administration of the Territory)
Decree-Law
Law no. 91/97, of 1 August, defined the general bases for establishing, managing and exploiting telecommunication networks and the rendering of telecommunication services.
It particularly established the general principles applicable to the interconnection of telecommunication networks and to numbering, leaving the development of these matters for a later date.
Faced with the schedule arising from negotiations at a Community level, the handling of interconnection is intensified in the gradual and progressive liberalisation process of telecommunications in Portugal.
Within a framework of open and competitive markets, the interconnection of the public telecommunication networks arises as the necessary physical and logical support to communication among users of public use telecommunications services and as a guarantee of a universal telecommunications service.
Thus, it is important to regulate this matter in accordance with the applicable Community regime.
In this way, the present document transposes the provisions set out in Directive no. 97/33/CE, of the European Parliament and the Council, of 30 June, related to interconnection in the telecommunications sector with the objective of assuring universal service and inter-operation by means of applying the principles of an open network supply (ORA).
In accordance with the Community framework, private telecommunications, as well as closed user groups are not covered by this regime.
Based upon the consecration of the principle to freely negotiate interconnection agreements between the operators of public telecommunication networks and the providers of telecommunication services for public use, the regime foreseen in this document is counterbalanced by the imposition of a guaranteed interconnection supply, firstly, by means of the basic telecommunications network, and secondly, by the group of operators and or providers with significant market strength.
With regard to this last area, the intervention and control mechanisms attributed to the Instituto das Comunicações de Portugal, as a regulating entity in the sector, shall gain special importance.
As numbering constitutes an essential means for developing competition, namely by allowing non-discriminatory access to services, the general principles regulating the National Numbering Plan are also consecrated.
Thus:
Within the development of the legal regime established by Law no. 91/97, of 1 August, and in terms of sub-section c) of section no. 1 of article 198 of the Constitution, the Government hereby decrees the following:
CHAPTER I
General provisions
Article 1
Object and ambit
1. The present document shall establish the interconnection regime between public telecommunication networks within a framework of open and competitive markets, so as to allow the inter-operation of telecommunication services for public use. It shall also define the general principles applicable to numbering.
2. The interconnection regime established in the present document, shall not be applied to private telecommunication networks, private telecommunication services, nor to private network voice services.
Article 2
Definitions
For the purposes of the present document, the following definitions shall apply:
a. Interconnection: physical and logical connection of telecommunication networks as defined in section no. 9 of article 2 of Law no. 91/97, of 1 August;
b. Interconnection point: network point where the interconnection is supplied;
c. Inter-operation: functioning capacity of a telecommunications service, from one end to the other, between two terminal equipments connected to the same telecommunications network or to different networks;
d. Public telecommunication networks: set of means defined in sub-section a) of section no. 8 of Article 2 of Law no. 91/97, of 1 August;
e. Basic telecommunications network: public network of addressed telecommunications defined in article 12 of Law no. 91/97, of 1 August;
f. Fixed telephone network: commuted public telecommunications network serving as a support for the transfer, between network terminal points in fixed locations, of voice and audio information with a band frequency of 3,1 kHz to support, namely, the fixed telephone service, facsimile communications of the group ni, in accordance with UIT-T recommendations of the «T series», and the data transmission on vocal frequency via modems with a debit of at least 2,400 bit/s, in accordance with the UIT-T recommendations of the «V series»;
g. Mobile telephone network: public telephone network where the terminal points are not fixed;
h. Leased lines: the telecommunication means of a public network which provide the capacity for transparent transmission between terminal points without involving the commuting functions controlled by the user;
i. Users: people, including consumers, or the entities which use or request public use telecommunication services;
j. Number: series of digits which indicate a termination point of a public telecommunications network and which contains the necessary information to direct the call to said termination point;
k. Geographic number: number of the National Numbering Plan in which a part of the structure of its digits corresponds to a geographical location and is used for directing calls to the physical location of the network terminal point of the end user to whom said number has been attributed;
l. Prefix: indicator consisting of one or more digits which allow the selection of different format types for numbers, networks or services;
m. Identification code: digit or set of digits attributed to services, geographical areas or networks, to allow access to these services, geographical areas or networks.
CHAPTER II
Interconnection
SECTION I
General provisions
Article 3
Principle of interconnection freedom
1. The operators of public telecommunication networks and the providers of telecommunication services for public use, hereinafter referred to as network operators and service providers, shall be free to negotiate and celebrate interconnection agreements among themselves, without prejudice to the provisions foreseen in the present document.
2. By obtaining the authorisation of the member of Government responsible for the communications area, special interconnection regimes with third party countries can be agreed upon, without prejudice to the commitments undertaken by the Portuguese State or by the European Union in said matter.
Article 4
General responsibility of the "Instituto das Comunicações de Portugal" in interconnection matters
1. The principles guiding interconnection aim at ensuring, with economic efficiency, the interests of the users.
2. For the purposes of the previous section, the activities of the "Instituto das Comunicações de Portugal" (ICP) must specifically:
a. Guarantee satisfactory communications from one end to the other;
b. Promote the establishment and development of national networks and services, the interconnection of national networks and inter-operation of services, as well as access to these networks and services;
c. Promote the establishment and development of transeuropean networks and services;
d. Guarantee the principles of non-discrimination, including equal access and proportionality;
e. Guarantee the maintenance and development of the universal telecommunications service;
f. Promote a competitive market;
g. Contribute toward the correct and suitable development of a harmonised Portuguese and European telecommunications market;
h. Co-operate with the regulatory entities of the other member States of the European Union.
Article 5
Basic telecommunications network
The interconnection between public telecommunication networks shall be guaranteed by the basic telecommunications network, so as to allow for the interoperation of the telecommunication services for public use.
SECTION II
Essential interconnection obligations
Article 6
Entities with essential obligations
1. Entities with significant market strength shall be obliged to satisfy all reasonable interconnection requests they offer and for which they are duly prepared:
a. Fixed telephone networks and or fixed telephone services;
b. Leased lines;
c. Mobile telephone networks and or mobile telephone services.
2. The entities referred to in the previous section, shall be obliged to make network access available, including access to different points from network terminal points offered to the majority of end users, when asked for by the party requesting interconnection.
3. Except in cases where there is a provision or agreement to the contrary, the property of the communications traffic shall belong to the entity exploiting the public telecommunications network or rendering the telecommunications service for public use where it originates, and the respective re-directing, as well as the delivery point, can be freely negotiated among the parties.
Article 7
Significant market power
1. For the purposes of the previous article, it shall fall upon ICP, following a prior statement by the General Management for Commerce and Competition (Direcção-Geral do Comércio e da Concorrência) (DGCC), to declare and to annually publish a list of the entities which have significant market power, also termed as a significant position on the relevant markets.
2. Without prejudice to the previous section, it shall be presumed that entities having significant market power are those which hold a share higher than 25% of a telecommunications market in the geographical area where they are qualified to operate.
3. For the purposes of that set out in section no. 1, ICP shall be able to determine that:
a. An entity holding a market share lower than 25% does have significant market power;
b. An entity holding a market share higher than 25% does not have significant market power;
4. For the purposes of that set out in sections no. 1 and 3, it shall fall upon ICP to evaluate the market power of a certain entity, taking into account the following criteria:
a. Capacity to influence market conditions;
b. Relation between the volume of sales and the size of the market;
c. Control of the means of access to the end users;
d. Access capacity to financial resources;
e. Experience in matters related to the supply of products and services on the market.
5. Two or more companies acting concertedly in a telecommunications market can be declared as having significant market power, so too can a group of companies, which although legally separate, maintain ties of interdependency or subordination between them.
6. Where there are significant alterations to the legal and de facto conditions which are at the basis of the definition of entities with significant market power, ICP may re-evaluate the classification of an entity with significant market power, within a period less than one year, by publishing a new list.
7. The DGCC statement referred to in section no. 1, must be issued within a 20 day period. If there is no reply within said period, it shall fall upon ICP to make a decision.
Article 8
Essential obligations
1. The following shall constitute the obligations of the entities referred to in section no. 1 of article 6:
a. To respect the principle of non-discrimination for interconnection supply;
b. To make available all the information and necessary specifications for interconnection, upon request, to those requesting interconnection;
c. To respect the confidentiality of the information made available by those requesting interconnection, using said information solely for its purposes.
2. For the purposes of that set out in sub-section a) of the previous section, the entities referred to in article 6 must, namely, offer the conditions and information which they apply to their own services, subsidiaries and associates to those requesting interconnection who have similar services and who are in similar conditions.
3. Except in cases where ICP decides to the contrary, the information referred to in sub-section b) of section no. 1 must include the alterations the execution of which has been planned for the following six months.
4. For the purposes of that set out in sub-section c) of section no. 1, the entities referred to in article 6 must not transmit the information to their own services, subsidiaries or associates, where knowledge of said information will constitute a competitive advantage for these.
5. The provisions set out in sub-sections a) and e) of section no. 1 shall also be applicable to the entities which establish and or provide mobile telephone networks and or render mobile telephone services, when these have significant strength on the home market in matters regarding interconnection.
Article 9
Specific obligations
1. The following shall constitute the specific obligations of the entities referred to in sub-sections a) and b) of section no. 1 of article 6:
a. To respect the principles of transparency and guidance for costs when establishing interconnection prices;
b. To establish and publicise, in a detailed manner, the various components of the interconnection prices covered;
c. To elaborate interconnection reference proposals in terms of article 10;
d. To have separate accounting, on the one hand, for the interconnection activity, and on the other hand, for the other activities. The former must include the interconnection services rendered to the entity itself and the services rendered to other entities;
e. To have an analytical accounting system for the interconnection activity in terms of article 15; f. To inform ICP, for the purposes of article 15, of the analytical accounting system adopted, by means of a highly detailed and documented report;
g. To make available to those requesting interconnection and to the consumer associations within the national ambit and generic interest or specific interest within the telecommunication services ambit, the description of the analytical accounting system adopted, including the principal categories for cost grouping and the rules for cost imputation, upon request.
2. For the purposes of that set out in sub-section a) of the previous section, it shall fall upon the entity offering interconnection to show that the interconnection prices are calculated on real service costs, including a reasonable remuneration rate of the capital invested.
3. ICP may ask the entity offering interconnection to justify the interconnection prices it practises, and when deemed suitable, ICP may determine the adjustment of said prices to the costs, based on the analytical accounting information.
4. For the purposes of that set out in sub-section d) of section no. 1, the interconnection accountancy must identify all the costs and profits related to this activity, including the discrimination of the structural costs and those associated to the fixed assets. It must also identify in detail the bases for the calculations carried out and the affectation methods used in obtaining that information.
5. The provisions set out in sub-sections a) and e) of section no. 1 shall also be applicable to the entities which establish and or provide mobile telephone networks and or render mobile telephone services, when these have significant strength on the home market in matters regarding interconnection.
Article 10
Interconnection reference proposals
1. The interconnection reference proposals referred to in the previous article must include, namely, the following elements:
a. Description of the interconnections to be supplied, according to components, in accordance with market needs;
b. Description of the terms and conditions of the interconnection offer, including prices;
c. Description of the differentiated costs.
2. For the purposes of that set out in the previous section, it shall fall upon ICP to determine and publish the minimum elements of which the interconnection reference proposals must consist.
3. The interconnection reference proposals of every network operator and or service provider can establish different interconnection conditions for different entity categories, when said differences can be objectively justified based on the following criteria:
a. Type of interconnection supplied;
b. Relevant licensing conditions.
4. It shall fall upon ICP to guarantee that the different conditions established in every interconnection reference proposal in terms of the previous section, shall not give rise to distortions in competitiveness, and above all that the entities in question apply suitable interconnection prices, terms and conditions when supplying interconnection to their own services or to their subsidiaries or associates.
SECTION III
Special interconnection obligations
Article 11
Entities with special obligations
1. The following entities shall be obliged to negotiate interconnection agreements among themselves, when requested and if they are duly qualified for those purposes:
a. Those which offer commuted, fixed or mobile public telecommunication networks, and or telecommunication services for public use, and which in so doing control the means of access to one or various network terminal points, identified by one or various unique numbers of the national numbering plan;
b. Those which offer rented circuits connected to the installations of the end users;
c. Those which offer international telecommunication circuits between the European Union and third party countries and that for this purpose are entitled to exclusive or special rights;
d. Those which render telecommunication services and which under the applicable exploiting regime have interconnection rights and obligations.
2. ICP can, case by case and temporarily, accept limitations to the obligation in the previous section, based on the existence of technically and commercially viable alternatives to the requested interconnection and on the unsuitability of the interconnection requested in relation to the means available to satisfy said request.
3. When the entities referred to in section no. 1 do not reach an agreement, they can submit the issue to ICP, upon whom it shall be incumbent to proffer a substantiated decision, in terms of article 18.
SECTION IV
Competency of the Instituto das Comunicações de Portugal
Article 12
Publication of the interconnection reference proposals
It shall fall upon ICP to ensure the publication of the interconnection reference proposals referred to in article 10.
Article 13
Alterations to the interconnection reference proposals
1. ICP may determine alterations to the interconnection reference proposals, provided these are well founded.
2. Whenever an entity alters its published interconnection reference proposal, ICP may, in case of disagreement, determine the corrections it deems necessary, with retroactive effects as from the date of the introduction of the alteration.
Article 14
Interconnection conditions
1. It shall fall upon ICP to define and publish the general conditions and those prior to the negotiation of the interconnection agreements, which are obligatory.
2. With regard to interconnection among the entities referred to in article 11, the prior conditions may encompass the following matters:
a. The resolution of legal disputes;
b. Publication requisites and access to the interconnection agreements;
c. Requisites related to the offer of equitable access and portability of the numbers, when applicable;
d. Requisites related to the offer of shared resources, including co-installation;
e. Requisites related to the guarantee of maintaining the essential requisites;
f. Requisites related to the attribution and use of numbering resources, including access to directory services, emergency services and Pan-European numbers;
g. Requisites related to maintaining service quality at both ends;
h. Determining the differentiated interconnection charges which represent a contribution toward the net cost of the universal service obligations, when applicable.
3. ICP may determine, case by case, the application of the prior conditions foreseen in the previous number to the entities referred to in section no. 1 of article 6.
4. It shall fall upon ICP to encourage or, when justified, determine, case by case, the inclusion of the following matters in the interconnection agreements to be celebrated among the entities referred to in article 11:
a. Descriptions of the interconnections to be offered;
b. Payment conditions, including invoicing processes;
c. Localisation of the interconnection points;
d. Interconnection technical norms;
e. Inter-operational testing;
f. Measures aimed at fulfilling the essential requisites;
g. Literary property rights;
h. Definition and limitation of responsibility and indemnities;
i. Definition of interconnection charges and their development over time;
j. Resolution process of legal disputes among the parties prior to requesting ICP intervention;
k. Duration and re-negotiation of agreements;
l. Processes applicable in the case of proposals to alter network offers or the services of one of the parties;
m. Obtaining equitable access;
n. Offer of shared resources;
o. Access to additional, supplementary and advanced services;
p. Management of communications traffic and or the network;
q. Maintenance and quality of interconnection services;
r. Confidentiality of the unpublished parts of the agreements;
s. Staff training.
5. ICP may determine, case by case, the inclusion of matters foreseen in the previous section in the interconnection agreements to be celebrated among the entities referred to in section no. 1 of article 6.
Article 15
Analytical accounting system
1. It shall fall upon ICP to determine and publish the minimum elements which must be included in the analytical accounting system referred to in sub-section e) of section no. 1 of article 9, namely:
a. The cost model, including the calculation base;
b. The identification of all the individual cost components constituting, as a whole, the interconnection price, including the remuneration of the capital invested;
c. The method of calculating the remuneration rate of the capital invested;
d. The objects of cost;
e. The principles of cost affectation, capital invested and profits relevant to the objects of cost, namely with regard to common and joint costs;
f. The accounting conventions used in cost handling.
2. ICP, or the independent entity appointed by ICP, shall be responsible for verifying that the analytical accounting systems adopted by the entities referred to in article 6 are in accordance with that set out in the previous section.
3. It shall fall upon ICP to publish annually a declaration attesting to the conformity of the analytical accounting systems adopted by the entities referred to in article 6.
Article 16
Intervention of the "Instituto das Comunicações de Portugal" in the negotiations for interconnection agreements
1. Taking into account the objectives and
guiding principles referred to in article 4, ICP can, at any given moment, of its own initiative, and must, upon request by any of the parties, intervene in the negotiations for interconnection agreements, determining:
a. The inclusion of certain matters in the interconnection agreement;
b. The establishment of specific conditions which must be observed by one or more of the parties taking part in the interconnection agreement;
c. The conclusion of the negotiations for the interconnection agreements within a 30 day period, except where there is a decision to the contrary by ICP.
2. The specific conditions referred to in sub-section b) of the previous section can include, namely:
a. Conditions aimed at guaranteeing an effective competitiveness;
b. Technical conditions;
c. Prices;
d. Conditions of supply and use;
e. Conditions related to conformity with applicable norms;
f. Conditions related to conformity with the essential requisites;
g. Maintenance of service quality at both ends.
3. When the entities do not celebrate the interconnection agreement within the period established in sub-section c) of section no. 1, it shall fall upon ICP to proffer a substantiated decision, in terms of article 18.
Article 17
Alterations to the interconnection agreements
1. ICP can, exceptionally and following a statement by DGCC, determine the introduction of alterations in celebrated interconnection agreements so as to guarantee:
a. An effective competitiveness;
b. The inter-operation of services for the end users.
2. The DGCC statement referred to in the previous section must be issued within a 20 day period. If this period lapses and there is no reply, it shall fall upon ICP to make a decision.
Article 18
Resolution of legal disputes
1. It shall fall upon ICP, upon request by the parties, to resolve any legal disputes between the operators of public telecommunication networks and service providers arising within the ambit of the present document.
2. ICP intervention can be requested within a maximum 60 day period, as from the date of knowledge of the fact which gave rise to the legal dispute.
3. The decision by ICP shall be proffered within a maximum six month period, as from the formulation of the request, taking into account, namely, the following criteria:
a. The interests of the end users;
b. Public interest;
c. The regulatory obligations or restrictions imposed upon any of the parties;
d. The interest to stimulate innovative market offers and to offer users a vast range of telecommunications services at a national and Community level;
e. The existence of technically and commercially viable alternatives to the interconnection requested;
f. The interest to ensure identical access conditions;
g. The need to maintain the integrity of public telecommunication networks and the inter-operation of services;
h. The nature of the request in light of the resources available to satisfy it;
i. The relative market positions of the parties;
j. The promotion of competitiveness;
k. The need to preserve a universal telecommunications service.
4. The decision by ICP must be duly substantiated and it must establish a period for its execution.
5. In terms of the general law, recourse to the courts of law can be a part of ICP decisions.
6. Law no. 31/86, of 29 August, shall be applied to everything which is not expressly foreseen in the present article.
Article 19
Imposition of interconnection
In the pursuit of public interest, ICP can determine the interconnection between public network operators and or providers of public use telecommunication services, and establish the respective conditions, taking into account the principle of proportionality and the legally protected rights of said operators and the users.
Article 20
Resolution of legal disputes among entities of different member of the European Union
1. It shall fall upon ICP to proffer a substantiated decision, in terms of article 18, in the case of an interconnection complaint lodged by an entity, duly qualified to exercise its activity in another member State, against a network operator and or service provider qualified in Portugal, without prejudice to the other recourses foreseen in the national laws of both countries.
2. In the case of an interconnection complaint by a network operator and or service provider qualified in Portugal against an entity duly qualified to exercise its activity in another member State, the former can, without prejudice to the other recourses foreseen in the national laws of both countries, have recourse to the regulatory authority of the telecommunications sector of the other member State in question for the resolution of the legal dispute, inasmuch as it is the entity which conceded the authorisation to the organisation against which the complaint is lodged.
3. In the case of a reciprocal interconnection legal dispute between an entity duly qualified to exercise its activity in another member State and a network operator and or service provider qualified in Portugal, either of the parties can have recourse to ICP, upon whom it shall be incumbent to co-ordinate efforts together with the regulatory authority of the telecommunications sector of the other member State in question, with the aim of resolving the legal dispute within a six month period, as from the date on which the request is presented, taking into account the principles referred to in section no. 2 of article 4, and the national laws applicable to interconnection.
Article 21
Publication of information and access to information
1. It shall fall upon ICP to publish or assure the publication of the information referred to in section no. 1 of article 7, section no. 2 of article 10, article 12, section no. 1 of article 14, sections no. 1 and 3 of article 15, section no. 1 of article 23, section no. 3 of article 28, and article 30.
2. For the purposes of the previous section, ICP shall publish as a notice in the 3rd series of the "Diário da República" (Government Gazette) the form and manner in which the information is to be published.
3. Upon the request of the interested parties, and at no extra charge, it shall fall upon ICP to make available the decisions, determinations and information referred to in section no. 2 of article 11, section no. 2 of article 18, article 19, article 20, and section no. 2 of article 23.
4. For the purposes of the previous section, ICP shall publish as a notice in the 3rd series of the Diário da República (Government Gazette) the times and places where said information will be available.
SECTION V
Common provisions
Article 22
Common obligations
The following shall constitute obligations of the network operators and or service providers:
a. To provide ICP, upon request, with financial information and information related to communication traffic, with the required degree of detail and within the required period of time;
b. Elaborate and publish annual reports;
c. To inform ICP within a 10 day period of the terms of established interconnection agreements;
d. To practise reasonable interconnection prices when supplying portability of numbers and or pre-selection of long-distance operator.
Article 23
Availability of information
1. Upon indication of the operator, ICP shall be able to publish the financial information made available under the terms of sub-section a) of the previous article, inasmuch as it contributes toward an open and competitive market and respects the commercial confidentiality of said information.
2. Upon request of the interested parties, it shall fall upon ICP to make available the interconnection agreements celebrated by the entities referred to in article 6, with the exception of the elements related to the commercial strategies of the parties involved.
3. For the purposes of that set out in the previous section, it shall fall upon ICP, after indication of the parties involved, to determine which are the confidential elements of the interconnection agreements, always guaranteeing access to the elements related to interconnection prices, terms and conditions, and possible contributions to the universal service.
Article 24
Confidentiality
Network operators and or service providers who are interconnected must respect the confidentiality of the information transmitted or stored.
Article 25
Separation of accounts
1. Entities which offer public telecommunication networks and or render public use telecommunication services, and which benefit from special or exclusive rights in other sectors apart from those of telecommunications, even if in another member State of the European Union, must have separate accounting for the telecommunication activity or must render autonomous legally distinct entities for the corresponding activities.
2. For the purposes of that set out in the previous section, separate accounting must identify all the cost and revenue factors, with the base of the respective calculation and the methods of detailed attribution used, in relation to the telecommunication activities, including a discrimination of the costs associated to the fixed and structural assets.
Article 26
Essential requisites
1. The interconnection between public telecommunication networks and or public use telecommunication services must respect the following essential requisites:
a. Security of network functioning, namely in emergency situations, casualty or in case of extreme importance;
b. Maintenance of network integrity;
c. Inter-operation of services, including conditions aimed at guaranteeing satisfactory quality up until the interconnection point, so as to ensure service quality at both ends;
d. Data protection, including the protection of personal data, the confidential age of the information transmitted or stored and the protection of private life;
e. Protection of the environment and of the patrimony, as well as conformity with the plans for land classification;
f. Effective and efficient use of the frequencies attributed, as well as the need to avoid harmful interference between radio-communication systems and other spatial or land technical systems.
2. For the purposes of sub-section a) of the previous section, unforeseeable and insurmountable events which occur independently of personal will or circumstances shall be considered as emergency situations or an act of God, namely: extreme weather conditions, earthquakes, floods, thunderstorms or fires, when these determine the impossibility of totally or partially guaranteeing the interconnection supply.
3. The need to maintain the essential requisites referred to in sub-sections a) and b) of section no. 1, shall not constitute grounds for refusing the negotiation of an interconnection agreement.
4. It shall fall upon ICP to guarantee that the interconnection conditions related to the conformity with the essential requisites referred to in sub-sections a) and b) of section no. 1 shall obey the principles of proportionality and non-discrimination, as well as the previously determined objective criteria.
Article 27
Technical norms
1. Network operators and or service providers must offer technical interconnection interfaces conforming to the obligatory interconnection norms at a European Union level, when these exist.
2. Network operators and or service providers must favour the use of technical interconnection interfaces conforming to the following norms or specifications:
a. Norms referred to in the Official Journal of the European Communities as suitable for the purposes of interconnection, when these exist;
b. Norms adopted by the European Telecommunication Standardisation Institute (ETSI) or by the European Standardisation Committee/European Electro-technical Standardisation Committee (CEN/Cenelec), when the accorded norms foreseen in the previous sub-section do not exist.
c. International norms or recommendations adopted by the International Telecommunications Union (VIT), the International Standardisation Organisation (ISO) or the International Electro-technical Commission (CEI), when the norms foreseen in the previous sub-sections do not exist.
d. National technical specifications, when the norms foreseen in the previous sub-sections do not exist.
3. ICP shall publish as a notice in the 3rd series of the Diário da República, the references, published in the Official Journal of the European Communities, of the norms mentioned in section no. 1 and in sub-section a) of section no. 2, as well as the references of the norms mentioned in sub-sections b) and c) of the previous section.
4. It shall fall upon ICP to establish the national technical specifications referred to in sub-section d) of section no. 2, as well as to promote their publication by means of a notice in the 3rd series of the Diário da República.
CHAPTER III
Numbering
Article 28
National Numbering Plan
1. The guidelines and general principles of the National Numbering Plan shall be approved by the member of Government responsible for the communications area.
2. It shall fall upon ICP to:
a. Manage the National Numbering Plan according to the principles of transparency, equity and efficiency;
b. Define the prefixes and identification codes of telecommunication services or others, as well as the respective conditions of use;
c. Attribute identification codes and series of numbers to the entities duly qualified for the purpose in a non-discriminatory, objective and transparent manner;
d. Guarantee that the attribution processes of individual numbers and or series of numbers shall be transparent, equitable and efficient, and that the attribution shall be carried out in an objective, transparent and non-discriminatory manner, so as to provide a loyal and equitable treatment to all the entities duly qualified to render public use telecommunication services.
3. For the purposes of sub-section c) of the previous section, ICP shall be able to determine special conditions, which it must publish, for the use of certain prefixes or abbreviated codes, namely when these are aimed at:
a. Services of general public interest;
b. Assuring equitable access.
Article 29
Effective and efficient use of numbers
1. The identification codes and series of numbers attributed by ICP must be effectively and efficiently used according to the conditions set out in the attribution act and which determine their practice.
2. The non-fulfilment of that which is set out in the previous section shall determine the possibility to totally or partially revoke the attribution act of the identification codes and series of numbers.
Article 30
Publication of the National Numbering Plan
It shall fall upon ICP to publish the principal elements of the National Numbering Plan, as well as the subsequent additions or alterations, under the sole reserve of the limitations imposed for reasons of national security.
Article 31
Portability of numbers
1. The National Numbering Plan must guarantee the portability of numbers at a date to be set by despatch of the member of Government responsible for the communications area.
2. The date to be set under the terms of the previous section cannot exceed 1 January 2002.
Article 32
Pre-selection of long-distance operator
1. The operators of fixed telephone networks and or providers of fixed telephone services shall be obliged to offer their end users, including those who use the Digital Network with Integrated Services (RDIS), access to the commuted national and international services of any network operator and or service provider connected to them.
2. Upon ICP decision, the obligation foreseen in the previous section can be applied to the operators of mobile telephone networks and or providers of mobile telephone services solely with regard to access to commuted international services.
3. For the purposes of section no. 1, said entities must make available, as from the date to be set by ICP, the functionality allowing the end users to choose the services of one of the operators and or providers interconnected by means of a pre-selection, with a call by call cancellation possibility by dialling a short prefix.
4. The date to be set in terms of the previous section cannot exceed 1 January 2002.
CHAPTER IV
Interconnection and contribution toward the universal service
Article 33
Contribution toward the universal service
1. The entities with universal service obligations, namely the grantee of the public telecommunications service, must be compensated for the negative margins inherent to rendering the universal service, when these exist.
2. For the purposes of that set out in the previous section, one must establish a mechanism for the distribution of the negative margins inherent to rendering the universal service, to which operators of public telecommunications networks and providers of telecommunication services involving the vocal telephony service must contribute.
3. The manner in which to contribute toward the negative margins inherent to rendering the universal service shall be a specific document object, in accordance with that foreseen in Law no. 91/97, of 1 August.
4. It shall fall upon the entities with universal service obligations, and in particular the grantee of the public telecommunications service to show the negative margins associated to rendering the universal service and submit these for ICP approval.
CHAPTER V
Inspection and penalties
Article 34
Inspection
1. It shall fall upon ICP to inspect the fulfilment of that set out in the present document by means of its employees mandated for this purpose or other agents duly accredited by the ICP Board of Directors.
2. The employees and agents referred to in the previous section shall be obliged not to divulge any of the information or data of which they have knowledge while exercising their functions and which constitute commercial or industrial secrecy.
3. The employees and agents who violate the obligation to commercial or industrial secrecy foreseen in the previous section, shall be liable for disciplinary responsibility, civil or criminal, according to the case, in terms of the applicable legislation.
Article 35
Non-fulfilment
The non-fulfilment of any of the obligations foreseen in the present document by network operators and or service providers shall constitute violation of the interconnection condition foreseen in sub-section h) of section no. 1 of article 11 of Decree-Law no. 381-A/97, of 30 December, to which the regime set out in article 32 of said decree-law shall be applicable.
Article 36
Contraventions and fines
1.Without prejudice to other applicable penalties, the following shall constitute contraventions:
a. The violation of the obligation to ensure interconnection in terms of article 5;
b. The violation of the obligations foreseen in sections no. 1 and 2 of article 6;
c. The violation of the obligations foreseen in sub-sections a) and c) of section no. 1 of article 8;
d. The violation of the obligation foreseen in sub-section b) of section no. 1 of article 8;
e. The violation of the obligations foreseen in sub-sections a), b), c), d), e), f) and g) of sections no. 1 and no. 5 of article 9;
f. The non-fulfilment of the request and or determination by ICP in violation of section no. 3 of article 9;
g. The violation of the obligations foreseen in section no. 1 of article 11;
h. The non-observance of the alterations or corrections to the interconnection proposals determined by ICP, in violation of that set out in article 13;
i. The non-observance of the prior conditions foreseen in sections no. 2 and 3 of article 14;
j. The celebration of the interconnection agreement in violation of sections no. 4 and 5 of article 14;
k. The non-fulfilment of the determination by ICP in violation of section no. 1 of article 16;
l. The non-fulfilment of the decisions by ICP in violation of section no. 3 of article 16, section no. 2 of article 18 or sections no. 1 and 3 of article 20;
m. The non-observance of the alterations determined by ICP in interconnection agreements already celebrated, in violation of article 17;
n. The non-fulfilment of the ICP interconnection determination, in violation of article 19;
o. The violation of the obligations foreseen in article 22;
p. The violation of the obligation foreseen in article 24;
q. The violation of the obligation for separate accounts foreseen in article 25;
r. The non-conformity with the essential requisites foreseen in section no. 1 of article 26, as well as the refusal to negotiate in violation of section no. 3 of article 26;
s. The non-observance of technical norms and specifications foreseen in section no. 1 of article 27;
t. The violation of the obligations foreseen in sections no. 1 and 2 of article 32.
2. The contraventions foreseen in sub-sections d), i), j), l), n), p), s) and t) of the previous section shall be punishable by a fine of PTE 100,000 to PTE 5,000,000.
3. The contraventions foreseen in sub-sections a), b), c), e), f), g), h), m), o), q), r) and u), of section no. 1 shall be punishable by a fine of PTE 500,000 to PTE 9,000,000.
4. In the contraventions foreseen in the present document, assault and negligence shall be punishable.
Article 37
Processing and application of fines
1. The President of the ICP Board of Directors shall be competent to apply the fines foreseen in the present document.
2. ICP shall be competent for the inception and proceedings of the contravention process.
3. Of the amount of the fines, 60% shall revert to the State and 40% to ICP.
CHAPTER VI
Transitory and final provisions
Article 38
Direct international interconnection
1. The installation and supply of transmission means for the direct international interconnection of mobile telecommunication network operators to mobile and fixed networks shall be prohibited to any entity up until 1 January 1999.
2. The international interconnection referred to in the previous section shall be guaranteed by the company granting the basic telecommunications network.
Article 39
Counting of deadlines
The rules comprising article 72 of the Administrative Procedure Code shall be applied to the counting of deadlines foreseen in the present document.
Seen and approved by the Cabinet on 5 November 1998. - António Manuel de Oliveira Guterres - António Luciano Pacheco de Sousa Franco - João Cardona Gomes Cravinho - José Eduardo Vera Cruz Jardim - Joaquim Augusto Nunes de Pina Moura.
Enacted on 14 December 1998.
Let it be published.
The President of the Republic, Jorge Sampaio.
Countersigned on 16 December 1998.
The Prime Minister, António Manuel de Oliveira Guterres.
