We are living in a digital age, where large and important parts of the interaction between citizens, businesses and the government take place on the internet. Technological developments are happening at an increasingly faster pace and they are inherently unpredictable. In order to offer the best service to its citizens, when drafting new or revised regulation any State should therefore be technology-neutral, and regulators should focus on the intention of the law rather than on a superintended subject-matter of the law, be it a company or a multinational corporation. In other words, if the intention of the law is to secure access to information for the enforcement bodies, the shareholders, or the citizens in general, it is the access to information that needs to be made statutory, not necessarily the medium on which the information is stored or the channel by which it is accessed.
Technological neutrality is a widely accepted but little discussed regulation principle in the European Union framework for electronic communication services. European Commission representatives consistently refer to the principle with pride. However, given how little systematic attention has been devoted to the principle’s interpretation, there is reason to suspect that within certain EU member states technological neutrality is in danger of degenerating into an empty formula evoked to support inconsistent political statements. As the European Union put it, technology neutrality is the freedom of individuals and organisations to choose the most appropriate and suitable technology for their needs, without discriminatory conditions,
Slovenia is a case in point. The adoption of the law on electronic communications, which must be readily embraced to finally transfer the European directive on electronic communications into the Slovenian legal order, has been ongoing for a long time. The competent parliamentary committee recently accepted the proposal for a new law on electronic communications, including as many as 73 amendments proposed by coalition parties. Key amendments address the topics of independence of the national regulator AKOS (Agencija za komunikacijska omrežja in storitve), several improvements on consumer rights, as well as network security.
The topic is a much-debated, politically controversial issue. The previous, right-wing coalition government, lead by Janez Janša, planned to follow US policy toward the Chinese companies, labeling them as a high-risk vendors, therefore limiting from participation in future deliveries of equipment for the 5G network. In contrast, the current liberal-oriented Slovenian government has taken a more neutral approach to the matter, showing a pragmatic approach. The current executive power in Ljubljana has amended the draft law on electronic communications. In cooperation with the opposition, the leading coalition completed the second phase of the Parliamentary process to make the relevant amendments. The result is that the new law focuses on regulating and, where necessary, limiting the specific equipment rather than on regulating or limiting the overall activity of the whole company, should the law requirements not be met. In other words, the legislators softened the stance taken from the previous government and adopted the approach known as “technology neutrality”. It must be noted that this stance is not unusual, given that a similar approach has already been implemented in Germany, Austria and Finland, to mention a few.
While the draft law has to be ratified by the National Assembly in the following weeks, and most likely by the end of the month it will land in the parliament, the position of the executive power was confirmed by the Governmental office for communication (UKOM). In a written statement for the Slovene national daily Dnevnik, UKOM stated that in terms of its position towards Huawei and its interests in the supply of telecommunications equipment in the establishment of a 5G network on the EU territory, the Slovene government clarified “that all suppliers must and will be guaranteed a level-playing field. Moreover, the government does not have any pre-fabricated position towards any actual or potential provider of telecommunications equipment”.
The draft law has therefore been amended on security requirements for operators providing networks to critical infrastructure managers. In other words, there is no pre-arranged discrimination or limitation towards a labeling vendor. Should there be any, the architecture of the law envisages a mechanism whereby any limitation or restriction would be equipment-specific rather than company-driven. The new security requirements refer to the prohibition of the use of certain equipment that could threaten national security, but no longer to certain high-risk suppliers. Morever, some changes were introduced also to the provisions that the European Commission and its Legislative Legal Service highlighted as controversial, such as the reasons for the dismissal of the head of Akos.