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Decree No. 03-99
Telecommunications Basic Law

Decree 09-99
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DECREE No. 08-99

ACCESS TO THE ACTIVITY OF PUBLIC TELECOMMUNICATIONS OPERATOR AND PUBLIC-USE TELECOMMUNICATIONS SERVICE SUPPLIER

The decree no. 03-99 defined the broad bases that govern the setting up, management and exploitation of telecommunications networks and the supply of public-use telecommunications services.

That same decree recalls, in a generic way, principles that liberalise the setting up of public telecommunications networks and the supply of public-use telecommunications services, in keeping with latest trends that are currently observed in the sector worldwide.

It is important to develop currently the principles of a Basic Law focusing particularly on market access to firms interested in the supplying of telecommunications services and setting out respective rights and duties.

The liberalisation of the telecommunication sector, being a gradual process, equips itself from now onwards with a regime set out by the current bill, through which the whole set of economic operators are informed of the rules behind the full liberalisation of telecommunications.

The integral development of the Basic Law will require, inter alia, the publication of other norms covered by specific bills, related to questions that should be dealt with in separate, particularly the interdependence of services networks, numbering and universal access, among others.

Under these terms, this bill enacts the setting-up of accession to the activity of public telecommunications networks operator and that of a supplier of public-use telecommunications services, through a reorganisation of current legislation inherent to access to the market of telecommunications services operators.

Thus, in the context of the legal framework set out by the Decree no. 03-99, the Government, under the terms of paragraph f) of no. 1, article 10 of the Political Transition Pact, decrees the following:

CHAPTER 1

GENERAL DISPOSITIONS

Article 1 - Subject

The current bill governs access to the activity of public telecommunications operator and that of a supplier of public-use telecommunications services.

Article 2 - Activities

Activities of public telecommunications operator and of supplier of public-use telecommunications services require a licence or registration under the terms of the current diploma.

Article 3 — Competence

The licensing or registration of operators falls under the responsibility of the Institute of Telecommunications of Guinea-Bissau (ICGB).

Article 4 — Registration and Licensing

  1. The supplying of telecommunications services is subject to registration.

Irrespective of the preceding disposition, a licence is required for:

  1. The supplying of telephone-connection services;

  2. The setting-up and/or provision of public telecommunications networks;

  3. The granting of frequencies for the establishment of a network or for the supply of services.

Article 5 — Regulation of exploitation

It is government’s duty to approve regulations that govern exploitation of networks and services envisaged under this the current bill.

CHAPTER II

REGISTRATIONS

Article 6 — Registration

  1. Individual or collective entities interested in supplying public-use telecommunications services are required to register with ICGB.

  2. The following entities may be registered:

  1. Individual entities registered as single traders;

  2. Commercial firms with formalised legal status, whose social goal covers the ability to supply telecommunications services.

  1. Regarding dispositions under number 1 above, candidates are required to produce a statement accompanied by a certificate issued by the competent entity for commercial registration.

Article 7 — Registration conditions

  1. Firms registered must comply, according to specific cases, with the following conditions:

  1. Protection mechanisms on behalf of users and subscribers;

  2. Supply conditions including non-discriminating price systems;

  3. Financial burden-sharing under universal access costs;

  4. Availability of data on behalf of users and subscribers, with a view to introduce them in a global directory;

  5. Protection of personal data and privacy;

  6. Access to emergency services;

  7. Availability of services to populations with specific needs;

  8. Protection of human dignity and public order;

  9. Communications privacy;

  10. Use of public telecommunications services networks;

  11. Efficient and effective use of numbers granted in accordance with the national numbering plan.

  1. The above-mentioned conditions under number 1 may be altered after publication of norms to be approved, in compliance with demands and conditions not foreseen at the time of registration.

Article 8 — Use of public networks

Entities registered in the context of public-use telecommunications services may utilise public telecommunications networks in order to obtain licences under the terms of the current bill, in conformity with applicable legislation and under conditions specified by the respective licences.

Article 9 — Start of supply of services

  1. Entities registered under the terms of the current bill are required to provide prior information to ICGB on services they intend to launch.

  2. Regarding the disposition described under the preceding number, registered entities are required to produce elements that allow the checking of conditions applicable and mentioned under article 7 namely:

  1. Detailed description of service to be supplied;

  2. Technical project identifying equipment to be utilised

  3. Indication of entity through which the network supports the service;

  1. The start of delivery of services will take place within 30 working days, after reception by ICGB of information mentioned under preceding numbers.

 

CHAPTER III

LICENSING

Section I

LICENCES

Article 10 — Conditions for granting of licences

  1. The ownership of licences allows beneficiaries access according to specific cases, to conditions and modalities, relating to:

  1. Security of network operation and maintenance of its integrity;

  2. Efficient and effective utilisation of frequencies granted;

  3. Compliance with division of the territory and following of conditions inherent to protection of the environment and patrimony and access to public and private domains;

  4. Connection to other networks and services;

  5. Supply of services with adequate quality levels, as well as their constant availability;

  6. Supply of an open network;

  7. Access to respective circuits, posts and other installations in cases foreseen under item 2 of article 16.

  8. Under other conditions covered by article 7;

  9. Regardless of any other conditions arising from publication of norms relative to approval and that relate to unanticipated demands at the time the licence was granted.

  1. Licences are granted for a period of ten (10) years, renewable by the issuing authority, for a period equal to the first, upon request by the beneficiary, produced at least eighteen (18) months before the expiry date of the licence in force.

  2. The licence-renewal decision must be taken within six (6) years from the date the said request has been delivered.

 

Article 11 — Criteria for licence granting

  1. Firms applying for a licence must comply with the following criteria;

  1. Enjoy a status of legalised commercial firm whose social goal encompass the activities of telecommunications services supplier, the establishment, management and exploitation of telecommunications networks;

  2. Possession of the technical capacity indispensable to the accomplishment of specific obligations arising from the licence requested, and availability of qualified staff for the carrying out of envisaged activities;

  3. Adequate economic structure as well as the necessary financial resources, capable of guaranteeing the firm’s sound start and management;

  4. Updated and regularly organised accounting system in accordance with the Official Accounting Plan and adapted to analyses required for the project envisaged relative to the aimed activity.

  5. Proof of non-existence of debts toward the state or social security of any tax, quota or contribution or whatever sum or that a due payment on your part be assured by the entering of agreements that, to this effect have been done pursuant to legislation in force.

  1. For dispositions under paragraph (c) of number 1, the candidate’s economic and financial capacity is deemed as adequate when it reaches, by its own funds, amounts not below 25% of the global investment figure relative to the envisaged activity.

Article 12 — Granting of licences

  1. The granting of licences is subject to compliance by the beneficiary with criteria set out under article 11, without detriment to the disposition below.
  2. The granting of licences covering attribution of frequencies is carried out through competitive bidding whose rules are approved by government.
  3. In order to obtain their respective licences, interested parties are required to deliver their request encompassing the following elements:
  1. Documents that allow verification of criteria mentioned under article 11.
  2. Memorandum to underpin the request.
  3. Detailed description of activity to be carried out including the respective technical project containing characterisation of the technological system, planning of the system’s development and underlying plan for recovery, management and operation of the system and quality levels regarding service to be supplied.
  1. The decision concerning the granting of licences will be taken, at latest, within the timetable below.
  1. Eight (8) months from the bid’s date, if the licence was granted through competitive bidding;
  2. Ninety (90) days from the request’s date of delivery for the remaining cases.

Article 13 — Granting of licence

  1. The granting of licences falls under ICGB Board’s responsibility.

  2. The following elements will be part of the licence:

  1. Conditions required under the terms of article 10;

  2. The geographical zone of activity:

  3. Timetable for start of activities, pursuant to terms of article 19;

  4. The required exploitation regulations;

  5. The licence’s timeframe and terms of reference;

  6. Applicable rates.

Article 14 — Quality, availability and permanence

  1. Licence holders are required to carry out their activities uninterruptedly and follow required adequate quality levels and equality of access to services supplied.

  2. Services provided cannot be suspended without prior notice within a reasonable time period except in cases of force majeure or fortuitous instances.

  3. Suspension of services due to delay by the user only takes place after the latter has been informed of the reason behind the suspension and the exhausting of all tools available to avoid the penalty.

 

Article 15 — Pricing systems

  1. Authorities in charge of the granting of licences are required to communicate and diffuse on a regular and detailed basis, the different price components in force, providing users with an invoice to duly justify proposed figures.

  2. The timetable relating to the right to demand payment for the price of services supplied is six (6) months after their delivery.

  3. Regarding number 2, payment is not demanded until presentation of each invoice.

Article 16 — Installation of infrastructure

  1. Holders of licences for the establishment and supply of public telecommunications networks are covered by:

  1. The right to demand, under the terms of the basic law, expropriation and constitution of administrative services indispensable to the installation, protection and conservation of respective infrastructures;

  2. Right of access to the public domain, under conditions of equality, installation and conservation of respective infrastructures.

  1. Every time that, for reasons linked to protection of environment, the cultural heritage, the division of the territory, protection of urban and rural landscape, the installation of new infrastructures is not allowed, it is then guaranteed to circuits, posts as well as other installations already existing, pursuant to numbering terms and conditions to be agreed between the parties.

  2. When firms involved do not reach an agreement, they may submit the problem to ICGB, which has the role to intervene each time that numbering conditions are a subject of discussion focusing on cost criteria.

  3. The holding of licences granted under the current bill, more specifically the installation of public telecommunications networks, does not dispense licence holders the right to hold other licences foreseen under the law, namely those relative to competence of local authorities.

Article 17 — Expiry of licence

Licences expire when the following cases occur:

  1. Upon ICGB decision, in the aftermath of publication of norms approved subsequently and that relate to demands and conditions unforeseen by law at the time the licence was granted, in accordance with principles relating to public interest and proportionality;
  2. Upon request by the firm holding the licence, duly justified and addressed to ICGB.

Article 18 —Non-transmissibility of licences

Licences granted under the terms of the current status are exclusively personal and cannot be transfered to third parties.

Article 19 — Start of activities

Licence holders will start their activities within a reasonable timespan set out in the licence and not exceeding eighteen (18) months from the issuing date, except when duly justified force majeure reasons, acceptable by ICGB, occur.

Section II

RADIO-ELECTRICAL FREQUENCIES

Article 20 — Frequency planning

The planning of radio-electrical frequencies falls under the ICGB’s responsibility and must comply with the following criteria:

  1. Availability of spectrum
  2. Guarantee of fair competition conditions in markets
  3. Efficient and effective use of frequencies.

 

Article 21 — Efficient and effective use of frequencies

  1. Frequencies attributed should be utilised in an efficient and effective way pursuant to conditions established within the concession.

  2. The non-accomplishment of dispositions under number 1 opens the way to the possibility of total or partial revoking of the frequency granted without detriment to sanctions foreseen in case of non-accomplishment of the licence.

  3. For cases foreseen under number 2, the disposition mentioned under numbers 2 to 5 of article 26, with relevant adaptations, remain applicable.

CHAPTER IV

DISPOSITIONS COMMON TO REGISTERED ENTITIES

AND LICENCE HOLDERS

Article 22 — Rights and obligations

1. Registered firms and licence holders have the following rights:

  1. Carrying out of activities under the terms described by the respective licence;

  2. Connection to public telecommunications networks or public-use telecommunications services through the basic telecommunications network or through operator networks with a significant market share;

  3. Set freely prices for services supplied.

2. Registered firms and licence holders have the following duties:

  1. Compliance with conditions and limits inherent to registration or that are integral part of the licence;

  2. Compliance with legal dispositions applicable to recommendations;

  3. Compliance with applicable exploitation regulations;

  4. Use of equipment duly approved by competent institutions;

  5. Allow control of equipment, supply information necessary to control of obligations and conditions arising from registration or licence and make available information meant for statistical purposes, facilitating access to installations an documentation respectively;

  6. Carry out necessary corrections, aiming at the regular operation of installation and an adequate execution of activities.

  7. Guarantee, under equal terms, access to services provided relative to payment of prices set.

Article 23 — Separation of accounts

Firms that are active in the field of public telecommunications networks and/or public-use telecommunications services must have a separate accounting system for telecommunications activities or create entities with their own legal status for corresponding activities when they:

  1. Exploit an activity under an exclusivity regime for other sectors other than telecommunications;

  2. Are backed by the operator of public telecommunications services;

  3. Hold a significant market share.

Article 24 — Taxes

  1. Taxes are levied upon the following activities:

  1. Registration and granting of licences;

  2. Additional procès verbal related to registration and licences, when they expire;

  3. Replacement of registration, in case of loss.

  4. Renewal of licences.

  1. Activities under the current bill by registered firm and licence holders remains subject to payment of an annual tax.

  2. The amounts of the above-mentioned taxes under the preceding numbers are set by decision of the Executive member in charge of telecommunications, bearing in mind costs associated to administrative tasks, operational techniques and corresponding control, and tey constitute ICGB revenues.

CHAPTER V

SURVEILLANCE AND EXEMPTIONS

Article 25 — Surveillance

  1. It is ICGB´s duty to control the accomplishment of dispositions under the current bill through its staff mandated to that effect or through duly credited representatives ICGB Board.

  2. The staff and representatives mentioned under number 1 are forbidden to divulge information and data to which they had access during the discharge of their duties and that constitute commercial or industrial secret.

Article 26 — Non-accomplishment of conditions

  1. When registered firms or licence holders do not comply with any of the applicable conditions, it is ICGB’s duty to suspend, up to a maximum of two (2) years, or revoke totally or partially, the registration or licence granted, without detriment to applicable conditions.

  2. Before announcement of any step relating to suspension or revoking, ICGB should, provide prior notice of any steps to be taken with a view to redress the situation. If the step is likely to lead to reparation, then a timetable not inferior to 10 working days will be set so that ICGB may make its view known.

  3. Excluding disposition under number 2, recurring situations of non-accomplishment of licence-granting, or registration conditions on the part of registered firms or licence holders.

  4. Measures imposed by ICGB to redress the situation must be implemented within thirty (30) days.

  5. Non-accomplishment by the firm by the deadline of the set of measures imposed by ICGB entails cancellation or revoking of the registration or of the licence.

  6. Even during the licence’s suspension timeframe firms must comply with measures needed to redress the situation. It is ICGB’s duty to lift the suspension within ten (10) working days, except in cases when control involves high technical capacity.

  7. When there is interference between a public telecommunications network, it is ICGB’s responsibility to take necessary steps, other than the right to information and subsequent consultation with the licence-holding firm.

Article 27 — Transgressions and amendments

  1. Beside other applicable sanctions, transgression occurs when the following situations arise:

  1. Non-accomplishment on the part of registered firms of applicable conditions foreseen under article 7;

  2. Start of supply of services by registered firms in breach of article 9;

  3. Non-accomplishment by registered firms of applicable conditions foreseen under number 1 of article 10 and in accordance with respective licences, under the terms of number 2 of article 13;

  4. Start of activities by registered firms in breach of article 19;

  5. Breach of obligations foreseen under number 2 of article 26;

  6. Non-payment of taxes foreseen under number 1 of article.

  1. Transgressions foreseen under the current bill are punished by a fine set at CFA500,000-2,000,000 and CFA3,000,000-15,000,000, depending on whether they have been committed by a singular or a collective entity, respectively.

  2. Other than transgressions covered by the current bill, those relating to attempt and negligence are punishable by law.

 

 

Article 28 — Setting of fines

  1. The application of fines foreseen by law falls under the responsibility of the chairman of ICGB Board.

  2. The preparation of a lawsuit falls under ICGB´s responsibility.

  3. Amounts recovered through fines are shared between the state, which keeps 60% and ICGB, which keeps the remaining 40%.

CHAPTERS VI

DIVERSE AND TRANSITORY DISPOSITIONS

Article 29 — Keeping and exploitation of telecommunications

installations and networks in case of emergence

When public order, state security and national defence justify it, installations and public and private telecommunications networks may be kept and exploited by the state, without any compensation to their respective owners.

Article 30 — Revoking

  1. Legal dispositions contrary to the current bill are revoked.

  2. Dispositions of the public-telecommunications service contract with Guiné-Telecom under an exclusivity regime, namely its article 4, are derogated.

 

The current bill enters in force immediately.

Approved in Council of Ministers, 18 August 1999

Francisco José Fadul

Prime Minister

Eng. Carlos Schwarz Silva

Minister of Social Equipment

Promulgated on 25 August 1999

To publish

The President of the Republic

Malam Bacai Sanhá