Key Benefits:
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PROPOSED LAW NO. 190 /X
Exhibition of Motives
It has been published, in the Official Journal of the European Communities, the Regulation (EC)
n 717/2007, of the European Parliament and of the Council of June 27, 2007 on the
itinerancy in the public mobile telephone networks of the Community and amending the Directive
n. 2002 /21/CE, of the European Parliament and of the Council of March 7 on a
common regulatory framework for electronic communications networks and services
(Framework Directive).
In order to allow the adoption of the scheme created in the face of the community framework in
vigour, the regulation in question has adopted a paragraph 5 to Article 1 of the Framework Directive, in the
terms of which the said Directive and the specific Directives-Directives No. 2002 /19/CE,
2002 /20/CE and No 2002 /22/CE all of the European Parliament and of the Council of 7 of
March-do not undermine any specific measures approved for the purposes of
regulation of international itinerancy in public mobile telephone networks of the
Community.
Regulation (EC) No 717/2007 is therefore a special regime in the face of
constant of the directives.
Community regulations have a general character, are compulsory in all of their
elements and directly applicable in all Member States (Article 249 of the
Treaty establishing the European Community). Do not lack by that of an act of
transposition.
In the national plan the said directives-n. ºs 2002 /19/CE, 2002 /20/CE, 2002 /21/CE and
2002 /22/CE-and Directive No 2002 /77/CE of the Commission of September 16,
they are transposed by Law No. 5/2004 of February 10 (LCE), which establishes the
legal regime applicable to electronic communications networks and services and resources and
related services and defines the competencies of the national regulatory authority in this
domain.
In this context, the scheme laid down by Regulation (EC) No 717/2007 should, as well,
be understood as special in relation to the framework defined in LCE.
Without prejudice to the foregoing, in the present case, Art. 9 of the Regulation determines
that " the Member States define the sanctions regime applicable to the infringements of this Regulation and
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take all necessary measures to ensure the respective application " .
Thus, aiming at its application in the national territory, it is now up to the
principle of legality, endow the prevailing legal planning of the sanctionatory regime
applicable to possible situations of non-compliance with the obligations imposed in the Regulation.
The penalties to be provided for must be effective, proportionate and dissuasive.
It is with that purpose that this proposed law is presented, as it has understood the
Government should the sanctionatory regime to institute be consistent with the LCE constant.
Relemble, still, that at that headquarters, it understood the Assembly of the Republic to raise the amount
maximum fines applicable by ICP-ANACOM in the framework of proceedings
counter-ordinance instituted by default of obligations imposed under the
legal regime applicable to electronic communications.
Similarly, in consistency with the statutory scheme in the LCE, it understands the Government to be of
provide for in this proposed law the possibility of the application of financial penalties
compulsory for cases of non-compliance with ICP-ANACOM decisions rendered in the
exercise of the powers that Regulation (EC) No 717/2007 assigns to it.
On the other hand, given the relationship of this matter with the one that constitutes the object of the
LCE, and notwithstanding the specialty relationship between both regimes, understood the
Government to introduce the article in the LCE itself, thus avoiding the legislative dispersion.
Thus:
Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the
Assembly of the Republic the following proposal for a law:
Article 1.
Addition to Law No. 5/2004 of February 10
It is added to Law No 5/2004 of February 10, Article 121-A with the following wording:
" Article 121-A. para.
International itinerary in the public mobile telephone networks of the Community
1-Within the framework of Regulation (EC) No 717/2007 of the European Parliament and
of the Council of June 27, 2007 on the itinerancy in the networks
public mobile telephone calls from the Community, and amending the Directive
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n. 2002 /21/CE, of the European Parliament and of the Council of March 7,
on a common regulatory framework for networks and services of
electronic communications, constitute counter-ordinations:
a) The violation of the obligations arising from paragraphs 1 and 2 of Article 3 of the
Article 4 and Article 6 of the said Regulation;
b) The violation of the obligation to inform it provided for in Article 7 (4) of the
said Regulation;
c) The violation of determinations issued by the Regulatory Authority
National (ARN) in the use of the powers conferred by the n. ºs 5 and 6 of the
Article 7 of the said Regulation.
2-The counter-ordinations provided for in the preceding paragraph are punishable by
coima from 5000 a to € 5000000.
3-Whenever the counterordinance results from the omission of the fulfillment of a
legal duty provided for in Regulation (EC) No 717/2007 of Parliament
European and Council, of June 27, 2007, or of an order
emanating from the NRA issued pursuant to paragraphs 5 and 6 of Article 7 of the
referred to as Regulation, the application of the sanctions or their compliance shall not
dispensing the offender from the performance of duty or order, if this
is still possible.
4-It shall apply to the penalties provided for in this Article the scheme
counter-ordinance provided for in Article 113 (4) and (5) in paragraphs 1 a to 4
of Article 115 and in Article 116 and 117 of this Law. "
Article 2.
Entry into force
This Law shall come into force on the day following that of its publication
Seen and approved in Council of Ministers of March 20, 2008
The Prime Minister
The Minister of the Presidency
The Minister of Parliamentary Affairs