The Monitoring Committee of the Parliamentary Assembly of the Council of Europe requested that the Venice Commission of the Council of Europe adopt on 20th March an opinion on the reform passed by the Georgian Parliament in July to amend the national Law on Electronic Communications.
The new Article 46 No. 1 is based on the Venice Commission opinion and was drafted jointly with the Directorate General of Human Rights & Rule of Law of the Council of Europe. The new Article 46 No. 1 “significantly changed” regulatory powers, empowering GNCC to appoint a Special Manager to Electronic Communication Providers in Georgia to remedy illegal acts conducted by operators alleged to have violated competition law. 1.
“While the Venice Commission recognizes the legitimate goal of not putting internet access at risk for end users, current solution chosen by legislators in Articles 46 No. The opinion states that Articles 1 and 11 of Law on Electronic Communications have “far-reaching consequences for the rights to property, media freedom and fair trials”.
The special manager is appointed by the GNCC in accordance with Article 46 No. According to the opinion, 1 has “extraordinary powers”, similar to those of a court appointed administrator in a financial institution or bank or a liquidator appointed by a court in relation with a distressed company.
The Venice Commission was “unaware of” such powers in the hands a regulatory authority for communications in a European context. The powers are so “vast and over-reaching”, that the only limit seems to be the alienation from the shareholding. This leaves the shareholders with no voice in the decision-making processes or structures within the company.
Article 11 “lacks clarity” in terms of enforcing the legal acts under Article 46 No. It concludes that Article 11 “lacks clarification”, causing serious uncertainty and concerns regarding the recourse to judicial reviews.
In response to these and other criticisms, the Venice Commission developed special recommendations. It invites the legislators to “re-examine the two amendments in a full and thorough manner” according to these recommendations.
Article 46 No. 1:
* Conduct a Regulatory Impact Analysis (RIA) and consult with all stakeholders.
* Correct Article 46 No. 1. Seeking a comprehensive solution that is in line with Article 1 protocol 1 and Article 10 ECHR.
* Define the scope of Article 46, No. Introduce legal definitions of “economic interests of the country“, critical infrastructures and security interests.
Article 46 No. 1: Clarify that the provision does not apply to broadcasting operations of electronic communications operators. Article 46 No. 1: Clarify that this provision does not apply to broadcasting operations by electronic communications operators.
Article 11:
* Reverse the amendment to Article 11 to return to the general principle of administrative procedure law that appeals are suspensive for decisions taken by GNCC under Art 46 no. 1.
* Clearly state who has the right to appeal a decision of appointment made under Article 46 No.1 and extend the deadline for lodging an appeal. On the basis of equality of arms, explicitly provide that the person/s entitled for the appeal will have free access to all information and documents required for the appeal.
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