Analysis of the Opinion Published by the Venice Commission: Legal Instrument of the Special Manager Violates the Requirements of the Convention

News | Rule of Law and Human Rights | Media, Internet and Innovations | Pressing Issues | Analysis 24 March 2021

On March 22nd 2021 the Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe published their joint opinion on the recent amendments to the Law of Georgia on Electronic Communications concerning the appointment of a special manager. Namely, the Venice Commission assessed article 461of the law, which grants the Georgian National Communications Commission (GNCC) the power to appoint special/ad hoc managers at the communications service providers.

 

In its opinion, the Venice Commission is highly critical of the recent amendments in Georgian legislation. It should be highlighted that this level of criticism is rarely reflected in the opinions of the Commission. All aspects linked with the special manager, starting with his/her appointment ending with appeal procedures, are evaluated negatively. According to the Venice Commission, the powers of the special manager stand close to those of liquidators. Moreover, the Commission highlights that it is not informed of any similar powers being granted to the communications’ commissions throughout Europe.

 

According to the opinion of the Commission, grating such excessive powers to the special manager violates the right to property. In this regards, the Commission stressed that the notion of the special manager (as it is established by the current legislation) failed to meet almost all of the requirements dwelling from the proportionality principle.  Namely, the notion of the special manager fails to achive the goal it was created for and does not use the least restrictive measures in its operations. Moreover, the prerequisites of appointing a special manager are vague and his/her powers overly broad.

 

Together with the property right, the Commission also expressed concerns regarding the freedom of expression and the media. The appointment of a special manager at a communications’ company that also has a broadcasting license, grants the government the power to intervene in the freedom of media and editorial policy and thus poses the risk of having a chilling effect.  

 

According to the Venice Commission, additional measures are necessary to ensure the protection of the right to a fair trial. Namely, the Commission refers to the risks of lengthy court hearings and notes that appealing the decision on the appointment of a special manager should have an automatic suspensive effect. 

 

The Venice Commission further stressed that no regulatory impact assessment (RIA) was prepared for the amendments. The amendments were adopted in an accelerated manner, the need of which was not justified by the government. The Commission referred to the importance of transparency in legislative activities and emphasized the necessity of involving all relevant stakeholders in the process.

 

The Commission found the risk of violating all the rights associated with the activates of a special manager. Thus it emphasized that the notion of the special manager in the given capacity violates the right to property and creates the risk of unnecessary interference in the freedom of expression and the media, as well as in the right to a fair trial.

 

It should be noted that since the initiation of the amendments IDFI has been regularly stressing the incompatibility of the special manager’s powers with the competencies of GNCC. Assessing the risks to public order and/or economic interests of the country fall outside of the mandate of GNCC. Regardless of the above-mentioned neither GNCC nor the Parliament of Georgia took the concerns into consideration.  The delegation of the Venice Commission held a meeting with the CSO representatives in Georgia, including IDFI. Unlike the Parliament of Georgia, the Commission took most of our concens into consideration.

 

The opinion of the Venice Commission once again stresses that the adoption of the amendments in an accelerated manner was problematic. Moreover, the opinion emphasizes that the notion of the special manager threatens the fundamental principles of the rule of law and democracy.

 

-       We call on the Parliament of Georgia to revise the amendments to the Law of Georgia on Electronic Communications in a timely manner and in accordance with the recommendations of the Venice Commission. The process should be transparent and all relevant stakeholders should have the possibility of participating in the discussion.

 

-       We call on GNCC to refrain from using the mechanism of the special manager until relevant amendments are introduced in the legislation.

Other Publications on This Issue