ANISP open letter regarding the legislative project to change ANCOM’s governance

OPEN LETTER

addressed to His Excellency Mr. Klaus Werner Iohannis, President of Romania

CC:

ANCOM – to whom it might concern

European Commission, Directorate-General for Communications, Content and Technology Networks (DG-CONNECT) – Mr Roberto Viola, Director-General

Mr. President of Romania,

ANISP, the oldest and most representative professional association of providers of electronic communications networks and services in Romania, noted with deep dismay the almost successful attempt to hijack the decision-making act within ANCOM – the only autonomous authority for administration and regulation of electronic communications and postal services in our country.

Orchestrated by a group of 6 deputies during the extraordinary parliamentary session in August this year, taking advantage of the fact that most companies operating on the electronic communications market were on vacation, the legislative initiative aiming to change ANCOM’s governance model was approved by the Romanian Parliament in emergency procedure (?!), without conducting any prior public consultation – as required by Law no. 52/2003 on decision-making transparency in public administration.

The draft law thus approved, entitled “legislative proposal for amending and supplementing the Government Emergency Ordinance no. 22/2009 on the establishment of the National Authority for Administration and Regulation in Communications ”, despite the fact that it received a “NEGATIVE Opinion” from the Economic and Social Council (nota bene), was nevertheless sent for promulgation by the Romanian Senate (decision chamber) bearing the number L562/2020.

We would like to emphasize from the very beginning that, through the changes it brings to the management and decision-making system within ANCOM, the above-mentioned bill violates not only the principles and good operating practices of the European Union, but even violates the Community law in the field of electronic communications.

The main changes brought to ANCOM’s governance model, criticized by us, are:

• the 4 members appointed in the Regulatory Committee may be members of political parties [the interdiction from art. 112 paragraph (5) letter e) of the draft law refers only to the president and the two vice-presidents];
• the president and vice-presidents of ANCOM no longer have to be specialists in electronic communications, for the appointment being sufficient only to have “an experience of at least 5 years in the field of communications, in the field of engineering sciences, in the economic, legal or other fields of social sciences” [Art. 112 paragraph (5) letter a) of the draft law];
• all 7 members appointed to the Regulatory Committee (therefore, including the president and vice-presidents of ANCOM) may not have long-term higher education, the phrase “at least 5 years of experience in the field” contained in art. 112 paragraph (5) letter a) of the draft law not explicitly requiring the requirement of university studies completed with a bachelor’s degree, but only “experience in the field”.

However, these legislative proposals to modify the current system of organization and decision-making within ANCOM, are flagrantly contrary to the provisions of Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 on the establishment of a General Framework on Electronic Communications:

“The independence of the national regulatory authorities should be strengthened in order to ensure a more effective application of the regulatory framework and to increase their authority and the predictability of their decisions. To this end, express provision should be made in national law to ensure that, in the exercise of its tasks, a national regulatory authority responsible for ex-ante market regulation or for resolution of disputes between undertakings is protected against external intervention or political pressure liable to jeopardise its independent assessment of matters coming before it. Such outside influence makes a national legislative body unsuited to act as a national regulatory authority under the regulatory framework. For that purpose, rules should be laid down at the outset regarding the grounds for the dismissal of the head of the national regulatory authority in order to remove any reasonable doubt as to the neutrality of that body and its imperviousness to external factors. It is important that national regulatory authorities responsible for ex-ante market regulation should have their own budget allowing them, in particular, to recruit a sufficient number of qualified staff. In order to ensure transparency, this budget should be published annually.” [Recital # 13]

“Without prejudice to the provisions of paragraphs 4 and 5, national regulatory authorities responsible for ex-ante market regulation or for the resolution of disputes between undertakings in accordance with Article 20 or 21 of this Directive shall act independently and shall not seek or take instructions from any other body in relation to the exercise of these tasks assigned to them under national law implementing Community law…” [Pct. 3, letter (b) 3a)].

Last but not least, the legislative proposals in question will make the decision-making mechanisms more difficult and will burden the ANCOM budget, favoring the political class – which will be able to appoint new members in well-paid positions from taxpayers’ money – evident from the speed with which the project was adopted by Parliament, as opposed to the much-needed legislative projects that have been dragging on for years.

Considering all the above, but also the criticisms formulated towards this draft law by the Economic and Social Council in its Negative Opinion no. 7903 of August 27, 2020 (to which we agree without reservations):

• the legislative proposal fails to bring sufficient arguments in favor of the establishment of the new regulatory committee, the attributions established for it being able to be fulfilled by the already existing structures within ANCOM. The argument that ANCOM’s management is aligned in terms of appointment and management to other bodies, namely the Financial Supervision Agency and the National Energy Regulatory Agency, is not accompanied by an objective substantiation that would reveal the need to create the Regulatory Committee of ANCOM;
• the explanatory memorandum does not provide a sound justification for increasing the number of functions, by creating the new committee;
• the salaries of management should be related to the average salary in the economy, and not to the average salary per institution, in order to avoid possible conflicts of interest;
• the abolition of the criterion of non-membership of a political party for ordinary members of the committee, the appointment and removal of the Regulatory Committee by Parliament, may lead to attempts to politicize the committee, as well as undesirable political interference in the committee’s work;
• the elimination of the provisions regarding the mandatory higher education, as well as of the managerial experience for the ANCOM management, is likely to prejudice the quality of the management act,

we kindly ask you, Mr. President of Romania, not to promulgate the draft law L562/2020 and to send it back to the Parliament for reconsideration, as well as in general – to use all the legal means available to the President of Romania (including Constitutional cross-check) to prevent the adoption of such provisions with a negative impact on the electronic communications ecosystem.

Sincerely,

the National Association of Internet Service Providers in Romania