The new Law 16/2022, of 16 August 2022 (available here, “New Electronic Communications Act”) transposes Directive (EU) no. 2018/1972, of the European Parliament and of the Council, of 11 December (available here, “EECC” or “European Electronic Communications Code”) into national law, repealing the former Electronic Communications Act, i.e., Law 5/2004, of 10 February 2004.

This article aims to provide an overview of the main aspects of the New Electronic Communications Act, including its context, purpose, scope, and application in time, alluding also to some specific matters it regulates.

What is the context of the New Electronic Communications Act?

The EECC, which replaced the so-called “Directive Package” of 2022 on the regulation of the electronic communications sector, seeks to bring the regulatory framework in step with current sector trends and requirements.

The New Electronic Communications Act, which follows the EECC to the letter, addresses concerns such as promotion of investment in very high capacity networks, the geographic expansion of fiber optic networks in Portugal, the reinforcement of end-user rights, among other aspects.

What entities are subject to the New Electronic Communications Act?

Its scope is one of the chief innovations in the New Electronic Communications Act, which stems from the extension of the “electronic communications service” concept.  Internet access service, as defined in Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November, and number-based or number-independent interpersonal communications services (the so-called over-the-top services or OTTs) have joined the “classic” paid signal-sending services provided over electronic communications networks. 

The New Electronic Communications Act further applies to entities not providing any services falling under the above categories but providing electronic communications networks, which were already subject to the Act’s predecessor.

What is the purpose of the New Electronic Communications Act?

The New Electronic Communications Act is a very long and comprehensive piece of legislation establishing rules applicable across the electronic communications sector.   To help you better interpret this document, we have prepared detailed texts on a range of subject-matters, namely: (i) the general authorization framework; (ii) the radio spectrum framework; (iii) the interpersonal communications services framework; (iv) end-user rights and (v) market regulation. We will nevertheless continue to write about other relevant subject-matters and invite you to visit our website from time to time to keep updated.

What is new in the New Electronic Communications Act relative to the previous framework?

The New Electronic Communications Act extensively changed the framework laid out by its predecessor. In addition to the specific novelties related to the matters listed above (and more detailed in the relevant texts), other innovations introduced by the New Electronic Communications Act bear highlighting:

(i)   Social regulation: while the New Electronic Communications Act establishes new and important rules on the universal service, the so-called “social regulation” is presently driven by the Internet social tariff, as approved under Decree-Law 66/2021, of 30 July 2021. This shift in the social regulation’s epicenter bedims the role and contribution of the new universal service rules to achieve the social regulation goals.

(ii)   A “new deal” for the sector’s regulation: the New Electronic Communications Act reinforces ANACOM’s powers regarding several areas, including radio spectrum management. ANACOM now has, for example, powers to promote spectrum sharing (including passive and active infrastructure) and to impose commercial agreements or roaming access obligations to promote mobile network coverage, as well as powers to ensure (apparently, by extension) the simultaneous expiry of assigned rights of use.
On the flip side of the coin, ANACOM also seems to have lost some of its powers in this area. The New Electronic Communications Act provides that all regulations regarding tenders or comparative selection procedures for the allocation of frequency rights of use must be approved by the member of the government in charge of communications. The New Electronic Communications Act, following the EECC very closely, expressly foresees the intervention of other appropriate authorities in sector regulation, including regarding end-user rights.

(iii)  Geographical surveys for network roll-out: the New Electronic Communications Act requires ANACOM to carry out the first geographical survey by 21.12.2023. The survey includes the geographical coverage of existing broadband networks and the forecast of the geographical coverage of new broadband networks for a certain period of time defined by ANACOM, including very high capacity networks. Based on the survey, ANACOM may designate delimited geographical areas where no undertaking offering public electronic communications networks has rolled out or intends to roll out a very high capacity network or upgrade an existing network to download speeds of at least 100 Mbps within the period of time defined by ANACOM, and invite these undertakings to submit expressions of interest in this regard. The identification and development of "white areas", i.e., areas where there is no fixed network coverage with very high capacity is a linked topic: a public tender will be launched in 2022.

(iv) Wireless access points of reduced areas: the roll-out and operation of wireless access points of reduced areas (which comply with the physical and technical characteristics set out in implementing acts of the European Commission) will be exempt from any licensing, authorization, or prior communication to ANACOM, except when rolled out in buildings or locations with protected architectural, historic, or natural value, or for reasons of public safety.

Other than repealing the former Electronic Communications Act, did the transposition of the European Electronic Communications Code amend any acts?

Yes. In addition to the New Electronic Communications Act, the transposition of the EECC entailed several legislative changes, namely: (i) Law 41/2004, of 18 August 2004 (electronic communications sector privacy act); (ii) Law 99/2009, of 4 September 2009 (framework law for administrative offences in the electronic communications sector); (iii) Decree-Law 151-A/2000, of 20 July 200 (framework law for radio communication networks and stations); (iv) Decree-Law 42/2009, of 20 July 2009 (framework law for electronic communications); and (iv) Decree-Law 24/2014, of 14 February 2014 (framework for distance and off-premises contracts).

Will the New Electronic Communications Act have any impact on ANACOM acts and regulations issued under the predecessor framework?

ANACOM maintains its authority to approve the regulations necessary to implement the new act under the New Electronic Communications Act. Any ANACOM acts and regulations adopted under the previous Electronic Communications Act will remain in force until they are replaced or repealed, so long as they do not clash with the New Electronic Communications Act.

It should be particularly highlighted that ANACOM is tasked with regulating the duty of prior communication and with approving, taking into account the guidelines published by the ORECE (document BoR (19) 259, published on 6 December 2019), the templates appropriate for such communications. Until then the templates approved under ANACOM’s Regulation 6/2018, of 5 January 2018, remain in force.

When does the New Electronic Communications Act enter into force?

Not all rules of the New Electronic Communications Act will become effective at the same time. As a rule, the provisions of the New Electronic Communications Act will become effective within 90 days from publication (i.e., on 14 November 2022).  But there are exceptions to this rule, notably:

(i) Rules on limitations on charges required in the event of contract termination, which will become effective 60 days after the New Electronic Communications Act comes into force (i.e., on 13 January 2023);

(ii) Rules on emergency communications and the single European emergency number, which will become effective upon the opening to the public of each means of access to emergency services by the relevant national authorities; or

(iii) Rules on network and service security, including additional requirements and a scheme of assistance and cooperation with the Equipa de Resposta a Incidentes de Segurança Informática Nacional [National Computer Security Incident Response Team], which became effective the day after their publication (i.e., on 17 August 2022).

The New Communications Act is not clear as to when some other things will become effective, such as the system to provide a contract summary. This is a matter that requires special attention.

We also note that the application of the New Electronic Communications Act to contracts with end-users pre-dating its entry into force is not straightforward. We will be addressing this question in greater detail in our text on end-user rights.

Key takeaways

The New Electronic Communications Act transposes the European Electronic Communications Code into national law (the transposition has been pending since late 2020). Replacing an almost 20-year old act (Law 5/2004, of 10 February 2004), the New Electronic Communications Act, despite not changing the structural pillars of the sector's regulation (which continue to be roughly based on the same legal concepts and frameworks), brings remarkable innovations that warrant close attention.

It is worth noting the increase in the categories of services subject to its rules, such as Internet access services and number-based and number-independent interpersonal communications services.

The rules of the New Electronic Communications Act come into effect at different times, which adds complexity to the issue. While most rules become effective on 14 November 2022, some rules have already entered into force on 17 August, and there are still others that will become effective from 13 January 2023.

Finally, it should also be noted that the transposition of the European Electronic Communications Code also brought about the amendment of several other pieces of legislation of interest to the sector, including a substantial overhaul of the framework for liability for the commission of administrative offenses.