Digital visa-free arrangements with the EU are at risk – the parliament registered a controversial draft law

Ukraine has a real opportunity to get a digital visa-free arrangement with the EU – to join the Single Digital Market of the European Union. In particular, this will allow removing barriers to e-commerce. According to the Prime Minister, integration with the EU market and the use of its instruments will allow Ukraine to receive from 2.5 to 3.5 billion dollars in goods and up to half a billion dollars of benefits in services.

A reform of the electronic communications sector and, above all, the creation of an independent regulator in the sector is key to the integration.

To achieve this goal, the Verkhovna Rada Committee on Digital Transformation submitted draft law #6055 “On the National Commission for State Regulation in the Spheres of Electronic Communications, Radio Frequency Spectrum and Postal Services of Ukraine” to the Verkhovna Rada.

This draft law should set out the principles for establishing an independent regulatory body in the sector. Instead, it contains some provisions that undermine the independence of the regulator and do not comply with the Constitution of Ukraine and the obligations under the Association Agreement with the EU.

Under the draft law, the President of Ukraine shall create an Expert Digitalization Council that has an impact on the appointment and dismissal of regulator’s members. This contradicts Article 106 of the Constitution of Ukraine stating that the President has no powers related to the accountability of a regulatory body. That is, regulator’s members cannot be appointed and dismissed by the Expert Council, which is established by a presidential decree and reports to the President.

Moreover, the Expert Council is empowered to issue a negative opinion on the work of the regulator’s members within one year. At the same time, there are no clear criteria for declaring the work unsatisfactory. That is, regulator’s members may be dismissed subject to the will of the Expert Council. So, there is no way that the regulatory body will be independent and impartial. This threatens Ukraine’s chances to integrate into the EU digital market.

There are some other comments on the draft law. In particular:

  • It provides for the powers of the regulator enabling it to introduce mandatory registration of subscribers (we wroteabout the risks of such mandatory registration earlier).
  • It creates conditions to oblige consumers to verify the legality of purchased mobile phones independently (BRDO experts have already stressed that it would be unacceptable to shift the responsibility for the violation of requirements for the legality of importing mobile equipment by third parties to consumers).

The draft law 6055 needs to be improved. In this regard, the BRDO appealed to the Verkhovna Rada Committee on Digital Transformation, the President of Ukraine, the Ministry of Digital Transformation, the Deputy Prime Minister of European and Euro-Atlantic Integration of Ukraine, and the Verkhovna Rada Committee on Ukraine’s Integration into the European Union. For their part, BRDO experts are ready to actively participate in the drafting work and have already prepared some proposals on the revision of the draft law.