The 21 December 2020 deadline is approaching for EU Member-States to transpose into national law the European Electronic Communications Code, approved by Directive (EU) 2018/1972 of the European Parliament and of the Council, of 11 December 2018 (hereinafter “EECC”).
In this context, the Portuguese communications regulator (ANACOM) published on 4 August 2020 a draft document aimed at transposing the EECC (the Draft Transposition of the EECC), following a public consultation launched by the Government/ANACOM on 26 November 2019, in which various stakeholders provided their inputs on the matter.
As a general rule, the draft transposition seems to be aligned with the legal framework established by the EECC, notably in some of the most sensitive topics of this new legal landmark (e.g., very high capacity networks, co-investment obligations, rights of use for radio spectrum, among others), although no provisions on fines, penalties or sanctions for infringement were included at this moment.
ANACOM’s proposal, however, specifically regulates matters on the rights of end-users in certain areas related with consumer rights, such as service unavailability, regulation of contractual practices and electronic communication agreements. In this context, ANACOM deliberately incorporated in the draft transposition some provisions arising from previous suggestions presented to the Parliament in February 2019. In this part of the proposal, the draft submitted by ANACOM clearly goes beyond the scope of the EECC.
In practical terms and in with regard to the intended impact on the current legal and regulatory framework, the Draft Transposition of the EECC seeks to create a new legal framework for electronic communications and services and aims at revoking:
(i) Law 5/2004, of 10 February (“Electronic Communications Law”) – this is intended to be replaced, in its entirety, by the new transposition document;
(ii) Decree-Law 56/2010, of 1 June, related to equipment locked to a specific network;
(iii) Law 35/2012, of 23 August, regarding the compensation fund for the electronic communications universal service; and
(iv) Ordinance 791/98, of 22 September, which provides technical rules on the installation and operation of cable networks.
However, certain relevant legal documents are not amended by this draft. For instance, no changes are made to the following acts: (i)Decree-Law 151-A/2000, of 20 July, regarding the licensing of radiocommunication networks and the use of the radio spectrum; (ii)Decree-Law 11/2003, of 18 January, regarding the approval from municipalities concerning the installation and functioning of support infrastructures for radiocommunication stations and respective accessories; and (iii)Decree-Law 123/2009, of 21 May, which defines the legal regime governing the construction, access to and set up of electronic communications networks and infrastructures.
In addition, in terms of the legal structure proposed – generally (and, naturally, with exceptions), the draft document published by ANACOM seems more structurally aligned with the format of the currently applicable Electronic Communications Law than with the current structure of the EECC.
In terms of next steps, the Government created a Working Group under Government’s Decision 303/2020, of 7 January, specifically aimed at creating and proposing a draft EECC transposition document. This Working Group should now build on the draft proposal presented by ANACOM and submit a final proposal by the end of September. However, the current draft published by ANACOM is likely to be the basis of the future transposition document and thus it is very important to consider in detail the regulator’s proposals.
While a public consultation during the last quarter of 2020 seems to be a likely next step (also depending on the type of act to be approved – law or decree-law), no official news has been published in this respect. The next few months should prove interesting for the Portuguese transposition of the EECC. One thing is for sure: there is certainly more to come in this process.