10 November 22 | Lisboa

Law 16/2022 approves the Law on Electronic Communications, transposing Directives 98/84/EC, 2002/77/EC and (EU) 2018/1972, amending Laws 41/2004 and 99/2009 and Decree-Laws 151-A/2000 and 24/2014, and revoking Law 5/2004 and and Decree-order 791/98.

This law establishes the applicable legal framework for electronic communications networks and services, for associated facilities and services, as well as management of the radio frequencies spectrum and numbering resources and for certain aspects of terminal equipment. It also determines the competences of the national regulatory (ARN) and other competent authorities in these areas.  

First, it is important to highlight the broadening of the definition of “electronic communications services” to now include Internet access services and interpersonal communications services, both number-based and number-independent.

This diploma clarifies the general authorisation regime, according to which companies wishing to offer public electronic communications networks and publicly available electronic communications services must give prior notice to the ARN regarding the beginning of their activity. This scheme does not apply to companies which:

      i.         Offer number-independent interpersonal communications services;

    ii.         Offer access services to a public electronic communications network through a local radio network, when it is not part of an economic activity or when it is accessory to an economic activity or a public service that does not depend on the transmission of signals through that network.

Consequently, number-based interpersonal communications services are now subject to this legal scheme, which attests to its important growth in the market.

The new Law on Electronic Communications also considerably strengthens end-users’ rights on three different dimensions: pre-hiring and hiring of services, contract performance and contract termination.

The obligation to adopt and provide the template for the contract summary established on the Commission Implementing Regulation (EU) 2019/2243 is formalised. New provisions on service bundles are also introduced, which grant greater protection to all the services included in the respective bundles.

Additionally, the situations in which consumers may terminate contracts without charges related to the breach of the loyalty period are revised. Therefore, this is possible within the following circumstances:

      i.         Permanent change of the place of residence without the operator being able to ensure service under the same conditions at the new address; 

    ii.         Change of residence outside national territory, which must, however, be unforeseeable; 

   iii.         Unemployment due to non-attributable dismissal or permanent or temporary incapacity for work (over 60 days), which imply a loss of monthly disposable income.

Regarding the radio spectrum regime, the law sets out several changes to ANACOM's powers and responsibilities. ANACOM's role is particularly reinforced in terms of spectrum management, with an obligation to promote effective competition and prevent distortions of competition in the internal market.

A legal scheme to promote the shared use of the radio spectrum and active and passive infrastructures is also introduced, with ANACOM ensuring its maximisation.

The possibility of imposing symmetric obligations is amplified, as well as ANACOM’s power to impose access to civil engineering assets and roaming. The imposition of these regulatory obligations is, however, dependent upon a greater number of requirements. 

Finally, this diploma updates the applicable administrative fines framework and establishes an infringement procedure.

The new Law on Electronic Communications enters into force 90 days after its publication, on 14th November 2022, with some exceptions. Provisions concerning network and services security entered into force on the 17th of August and provisions regarding constraints to the charges required in case of contract termination are only entering into force on 13thJanuary 2023. 

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