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In Bulgarian by Internet Society - Bulgaria versus subsections 4, 9 and 11 of Title II of Decree RD 09-235/1998 by the head of the Posts and Telecommunications Committee (6 Gourko str., Sofia 1000), published in the State Gazette, issue 154/12. 28. 1998, pursuant to art. 5, subsection 1 of the Supreme Administrative Court Act I. - art. 2, 3, 7, 10, 16, subsec. 3, and art. 17 of the Telecommunications Act; - the "Sector Policy in Telecommunications" adopted with decision N 570/1998 by the Council of Ministers; - art. 34, 39, 40, 41 of the Constitution of the Republic of Bulgaria and art. 10 of the European Convention on Human Rights; II. - the directives and recommendations of the European Union in the field of Internet: Directive 97/13/EC, Recommendation 3/97, as well as the principles of the European Union in the field of telecommunications. III. - art. 84, subsec. 3 of the Constitution of the Republic of Bulgaria. I. 1. The cited decree, published in the State Gazette, issue 154/12. 28. 1998, is issued "Pursuant to art. 39, sec. (2) of the Telecommunications Act (TA) in relation to Decision N 570 of the Council of Ministers adopting a Sector Policy in Telecommunications...". The Decree governs relations of a normative nature thus contradicting the Legislative Acts Act (art. 15, sec. (1)). In addition to the above said, there is also a violation of the provision of art. 16, subsec. 3 and art. 17 TA, namely the procedure for issuance of decrees which includes a public debate and participation on the part of the public in discussions of the Decree. Title II of the Decree refers to an activity subject to general licensing: "4. Internet-providing operators". As a result of such regulation, the general access to Internet in this country will depend on a permission, or lack of permission, by a state authority such as the State Telecommunications Commission. 2. Pursuant to art. 7, sec. (1) and (2) and art. 10 in relation to art. 39, sec. (2) of the Telecommunications Act, published in the State Gazette, issue 93/11. 09. 1998, the Decree is to be in unconditional accordance with the strategy and principles of the Law and the Sector Policy (SP) since the authority that issued it - the Posts and Telecommunications Committee - is bound by those as concerns their practical application (art. 7, sec. (1), art. 10 TA). TA and SP do not refer to strategy and principles concerning the above mentioned activity. As far as such activity is at all mentioned, the commentary of the authors of SP excludes clear rules and principles to determine it, separate elements being discussed in the light of future decisions by the competent European organizations. The lack of a strategy and principles in TA and SP in the context of the above mentioned texts of the law - art. 7 and 10 - leads to the conclusion that in the part of Title II of the Decree which refers to such activity the Decree is illegal, since it violates the law in constituting an act issued with no legal basis - a state policy on the activity in question- and in going beyond its competence as provided for under art. 10. Second, again in relation to the necessity for such administrative act's being in accordance with the provisions of TA and SP, the Decree is also to be considered unfounded, since, in the context of the above mentioned lack of state policy, the authority that issued it is not and may not be able to state the considerations and motives that have lead it to the conclusion that the activity in question is to be placed in Title II, and not in Title I or III. 3. The Decree in its parts discussed herein contradicts the objectives of the law - art. 2, sec. (2), subsec. 1 and of SP - Title II, as far as those provide in details for the objectives of TA. These texts presuppose the conceptual framework the acts of the administration in implementation thereof are to be issued within. In this sense, placing the activity under paragraph 4 and thereto related paragraphs 9 and 11, Title II of the Decree under the influence of the mechanisms of state governance undoubtedly discredits the objectives of the law to create a free market, to liberalize services and to enhance their quality. Indeed, there is need to regulate some services that use Internet. This is so because of the enhanced risk for consumers, such as violating the confidentiallity of communications, or the security of finacial operations. State regulation, however, must be directed at such services in particular, and not at the general provision of access to Internet which is the approach adopted by the decree. 4. The provision of a general licensing regime for all Internet-providers is a contradiction of the basic right of information provided for under art. 41, sec. (2) of the Constitution of the Republic of Bulgaria. This creates potential for violations of international obligations of the country too. Art. 10 of the European Convention on Human Rights provides that government institutions may only restrict the freedom of information in protection of exhaustively enumerated interests, such as protection of the national security, public order, health, avertion of crimes, etc. Licensing of the general access to Internet, as opposed to licensing individual services, may not be supported by any of the considerations exhaustively provided for under art. 10. Only the regulation of clear and concretely defined risks for consumers in protection of the interests listed under § 2 of art. 10 would constitute an admissible restriction of the freedom of information guaranteed by the Constitution and the Convention. In addition to the above, pursuant to the requirements for the General Licences stated under art. 78 TA the State Telecommunications Commission will have the right of access to the documentation of Internet-providing operators which is a direct violation of art. 34 of the Constitution of the Republic of Bulgaria. The requirement for licensing of a single medium, such as Internet, contradicts art. 40, sec. (1) of the Constitution. The introduction of a permissory regime also indirectly restricts the rights of citizens as provided for under art. 39 of the Constitution. 5. The inclusion of Internet in telecommunications activities which are to be licensed also violates art. 3 TA since Internet in its essence is not a telecommunications activity. As an argument we herein enclose an opinion by d-r V. Kiskinov, professor of legal informatics in the Law school of the Sofia University "St. Clement Ohridski". 6. The Decree in its paragraph 11, Title II creates a potential for requiring licences for each emerging Internet service that will be interpreted as "additional in respect with the main service" under the Decree. II. Regardless of the fact that the directives and recommendations of the European Union are not binding on domestic legislation, we include these in the present claim motion, since they are the basis for the creation of the European Internet legislation, and are also used in the Sector Policy adopted by the Council of Ministers of the Republic of Bulgaria. Directive 97/13/EC of the European Parliament and of the European Union of April 10, 1997 creating a common framework for a common regime and individual licensing in the field of telecommunications services: Internet is not included in the services that licensing and control are recommended for. Recommendation 3/97 (on the basis of Directive 95/46/EC of the European Parliament and the European Union of October 24, 1995) recommends that anonymous consumers be admitted to Internet, as well as anonymous e-mail. The requirement for submission of documents, declarations and reports by Internet-providers provided for under art. 78, subsec. 8 TA which is to be incorporated in the General License contradicts this recommendation. The principles of the European Union in the field of telecommunications published in the official web server of the European Union (http://europa.eu.int/pol/infso/info_en.htm) do not provide for regulation (a general or individual license) of operators providing access to Internet. III. The license fee provided for under art. 116, sec. (3), subsec. 2 TA is in its essence a tax on the turnover of Internet access providing operators. The turnover tax was, however, repealed with the introduction of VAT, and the exact amount of this tax is not expressly stated under TA. The documents enclosed herein make it clear that the license fee planned by the Posts and Telecommunications Committee is in the amount of 2.3% of the turnover of Internet operators. At a profit rate of between 5% and 10% the license fee, the turnover tax actually, becomes also a profit tax in an amount of 23% to 46%. Pursuant to art. 84, subsec. 3 of the Constitution of the Republic of Bulgaria taxes are to be provided for by law. It is inadmissible that a tax that is essentially a turnover tax be determined by a regulation that does not have the rank of a law, such as the General License. We ask that the Supreme Administrative Court, on the basis of art. 12, subsec. 4 and 5 of the Supreme Administrative Court Act, repeal paragraphs 4, 9 and 11 of Title II "Internet access-providing operators" of Decree RD 09-235/98, published in the State Gazette, issue 154/98; that the Supreme Administrative Court, on the basis of art. 15, sec. (1) of the Supreme Administrative Court Act, arrest the implementation of paragraph 4, 9 and 11 of Title II "Internet access-providing operators" of Decree RD 09-235/98, published in the State Gazette, issue 154/98. In addition, we shall present our case in a court hearing. Sofia, January 27, 1999. Sincerely yours: Veni Markovski |