Historical context of new law
In 2014, the EU and Ukraine signed the Association Agreement (hereinafter – the AA) which entered into force in September 2017.
Under the AA Ukraine has to ensure approximation of its existing laws and future legislation with the EU principles and rules applicable to electronic communications.
In particular, provisions of the following acts must be adopted:
- the Framework Directive (2002/21/EC), as amended by the Better Regulation Directive (2009/140);
- the Authorization Directive (2002/20/EC), as amended by the Better Regulation Directive (2009/140);
- the Access Directive (2002/19/EC), as amended by the Better Regulation Directive (2009/140); and
- the Universal Service Directive (2002/22/EC), as amended by the Citizens’ Rights Directive (2009/136).
Given the adoption of the European Electronic Communications Code (hereinafter – the EECC),approximation of Ukrainian laws to the provisions of the above acts must be carried out under the framework of EECC.
Adoption of new law
On September 30, 2020, the Ukrainian Parliament adopted Law “On Electronic Communications”. The Law aims to implement provisions of EU laws specified in the AA and replace current Law “On Telecommunications” and Law `On Radio Spectrum` and to implement the provisions of EU-Ukraine Association Agreement. The new law lays down the ground work for a comprehensive reform in Ukrainian telecommunications sector.
In particular, the Law of Ukraine `On Electronic Communications`:
- lays down provisions for strengthening the independence and administrative capacity of the national regulator in the field of electronic communications ;
- establishes general authorization principle by setting out an comprehensive list of requirements for market participants;
- introduces notification principle as a prerequisite for carrying out activity in electronic communications, leaving the licensing regime only for the use of limited resources (such as radio spectrum and numbers);
- provides for measures to ensure free competition in the sphere of provision electronic communication services; in particular, introduces ex ante regulation of providers with significant market power);
- establishes the electronic procedure for interaction with the national regulator through `electronic regulatory platform`;
- introduces consultations with market participants on all issues affecting their interests;
- improves control (supervision) in the field of electronic communications in order to reduce potential pressure on businesses;
- sets out the list of `universal` services which includes Internet access and voice electronic communication services at a fixed location;
- establishes new requirements forquality and terms of provision electronic communication services (for example, in addition to the declared maximum speed operators must indicate in their tariff plans the `average` and `minimum` Internet speeds );
- defines guidelines for pricing some types of electronic communication services (for example, universal services, etc.).
Inter alia, the Law introduces the concept of technology neutrality of the radio spectrum and provides transparent mechanism for calculating rents for the use of radio frequencies. In contrast to the existing law, the new law allows spectrum sharing and assignment or sale of `extra` frequencies to another operator.
The Law increases protection for consumers of electronic communication services. In particular, it aims to reduce spam by introducing obligatory prior consent of subscribers to receive information and the right of a subscriber to opt out of such receipt later. In addition, the Law provides for a possibility of out-of-court settlement of disputes between subscribers and operators, and significantly increases fines for violating the rights of subscribers.
Overall, the Law intends to significantly improve the quality of telecommunication services and their accessibility to subscribers, promote competition, implement the state strategy for digitalization of the country and bring Ukraine closer to European standards in the field of electronic communications.
The Law will enter into force on 1 January 2022. The Government should update some bylaws during the transitory one-year period.
