Europe fines Portugal €2.8 million

Lisbon: The Court of Justice of the European Union (CJEU) has ordered Portugal to pay a fixed amount of 2.8 million euros for failing to transpose the directive on the European Electronic Communications Code (ECEC) into national legislation in a timely manner.

Taking into account the gravity – the European Electronic Communications Code is the main legislative act in the field of electronic communications – and the duration of the non-compliance [601 days], as well as Portugal’s ability to pay, the Court of Justice considers that “effective prevention of future repetition of similar infringements and which undermines the full effectiveness of Union law is likely to require the imposition of the payment of a fixed sum in the amount of 2.8 million euros”.

It was in April 2022 that the European Commission filed this case against Portugal at the CJEU, for not having completed the process to come into force on December 21, 2020. The Government had advanced with a proposed law in 2021, but the discussion in specialty was interrupted by the State Budget failure. It was only on July 21, 2022 that the national Parliament approved the diploma, which came into force in August of that year.

The CECE “adapts the regulatory framework that governs the European telecommunications sector to new challenges” and “modernizes EU telecommunications rules, to the benefit of consumers and industry, stimulating competition, encouraging investments, strengthening the internal market and consumer rights“, explains the CJEU, noting that it is “absolutely essential to create a European gigabit society and ensure the full participation of all EU citizens in the digital economy and society”.

The code came into force in December 2018, with Member States given two years to apply its rules. With the transposition deadline ending on December 21, 2020, the Commission initiated several infringement procedures in February 2021 and in September of that year sent reasoned opinions to several Member States, including Portugal.

On April 6, 2022, given that some of the Member States still did not comply with the obligations to communicate national transposition measures that were incumbent upon them under the Code, the Commission decided to submit the cases to the Court of Justice for consideration. After several advances and setbacks with European justice, the Court of Justice ended up declaring Portugal’s non-compliance and payment of the amount of 2.8 million euros.

On the other hand, the Court of Justice ruled in favor of Portugal regarding the date of cessation of non-compliance (October 25, 2022), and took into account “the period of duration of the non-compliance may have resulted, in part, from the exceptional circumstances related to the Covid-19 pandemic”, taking into account that Portugal “maintained that these circumstances, unpredictable and beyond its control, delayed the legislative process necessary to transpose the directive and, consequently, prolonged the duration of this non-compliance”.

At the time the European Commission took action against Portugal, nine other Member States were also in an irregular situation and were also the target of proceedings. And the CJEU has also now declared the non-compliance of four more Member States: it ordered Ireland to pay 4.5 million euros, Poland to pay 4 million euros, Latvia to pay 300 thousand euros and Slovenia payment of 800 thousand euros.