What happened?

The Ministry of Transport, Posts and Telecommunications (the “Ministry”) has approved Ministerial Order No. 4/2020, dated December 3rd, which approves the Regulation on inspections, sanctions and enforcement actions of the Telecommunication Regulatory Body (“ORTEL”) (the “Regulation”).

The objective of the Regulation is to establish the framework and procedure for performing inspections, imposing sanctions and enforcement measures by ORTEL.

What are the Consequences?

• The Regulation applies to procedures in which inspection, sanction, collection of fees, royalties and other charges are carried out in the proper form and under claims of overdue and unpaid debts.
• ORTEL may apply sanctions or fees to all operators and agents that carry out activities classified as telecommunications and users of electronic communication, their infrastructures, goods and systems, to the radioelectric spectrum and other related issues.
• Failure to pay, or late payment of, rates or fees that the operators or agents are obliged to pay will result in the imposition of an interest for late payment in accordance with the Tax Law (10% per month).
• In addition to overseing its own files, ORTEL is competent to oversee the State’s files associated with debt collection.
• Any inspection by ORTEL requires the authorization of its Technical Director or from the Department promoting the inspection.
• Inspections can start on ORTEL´s own initiative (ex officio) or at the request of an interested party.
• The operators and suppliers of the sector are obliged to collaborate in the inspection, failing which, they would incur a serious penalty.
• ORTEL is empowered to adopt emergency precautionary and/or provisional measures to guarantee the viability of the inspections.
• The decisions adopted by ORTEL are administrative decisions and must be justified, as well as accommodate the corresponding formalities. However, they have the peculiarity of being considered “Proposals”, which require the approval or confirmation of the Ministry.
• To avoid arbitrariness, the inspection should be carried out in accordance with the provisions of the Administrative Procedure Law and this Regulation.
• ORTEL is empowered to adopt whatever measures are necessary to ensure strict compliance with the provisions adopted in the Regulation.
• The Regulation enters into force on December 4th, 2020.

What should my company do?

Internal Notification

Notify pertinent personnel about the Regulation.

Preparation for Inspections

Ensure your personnel is prepared for any inspections by having a clear internal procedure.

Compliance with the Rules

Ensure your company continues to comply with all telecommunications related laws and regulations applicable to its operations.

Monitoring

Continue monitoring any subsequent modifications and changes to the applicable laws and regulations.

Tailored Support

Seek independent legal advice to better understand the applicability of the Regulation.

ABOUT THE AUTHOR
Abraham Abia Biteo Roka is the Managing Director at Clarence and widely recognised as one of the leading energy lawyers in Equatorial Guinea, often speaking at events around the world. Abraham is particularly renowned for his ability to create and implement country and sector specific standards, policies and procedures.

ABOUT CLARENCE
Clarence offers its clients the freedom to operate in Africa. Thanks to our diverse resources, we understand Africa better than most firms. We assist clients to identify, assess and effectively minimise operational legal and regulatory risks. We develop creative and efficient solutions to operational challenges, so our clients can focus on growth and revenue. Our approach is to bridge the gap between external and in-house counsels. Our areas of practice include Energy and Natural Resources, Real Estate, Construction, Joint Ventures, Corporate and Commercial, Risk Management & Compliance, Litigation and Dispute Resolution, Government Relations, Customs and Taxation, Employment and Immigration, Aviation and Telecommunications. For enquiries, please contact us at info@clarenceabogados.com