Recipient protection: the right to complain to the Agency
In the field of e-commerce, a recipient of the service — the person who uses a service supplied by electronic means — is given a dedicated state protection channel: an application to the Agency, the Georgian Competition and Consumer Protection Agency. The grounds for applying are named precisely in the law: they cover a service provider's failure to perform obligations established by the e-commerce legislation and breaches of the law's requirements — in other words, situations where the supplier of an electronic service does not perform, or violates, the duties it owes toward the recipient. One further point matters: applying to the Agency does not deprive the recipient of the right to apply to a court or to arbitration, nor of the possibility of resolving the dispute through mediation. The administrative route, the courts, arbitration and mediation do not exclude one another — the recipient chooses how to protect his or her interest.
The Agency's powers in the field of recipient protection
The Agency protects, on the territory of Georgia, the rights and legitimate interests of recipients of the service as defined by the law; it prevents violations of their rights, promotes the restoration of violated rights, detects facts of violations and responds to them with the appropriate means envisaged by law. To exercise the powers conferred on it by Georgian legislation, the Agency:
- studies the fact of a suspected violation of a recipient's right that has caused, or may cause, a violation of the right of a group of recipients of the service;
- for the purposes of studying the case, requests information from the applicant and/or the service provider — including confidential information — that it needs to exercise this power;
- where case-related information is not provided, applies to the court with a motion asking that the service provider be required to submit the relevant information;
- summons a party or an interested person to receive explanations;
- where necessary, holds a consultative meeting with a representative of a state agency, an expert and/or another person;
- develops recommendations on measures to improve the protection of recipients' rights in Georgia;
- where a violation is established, sets the provider a reasonable period for restoring the violated right and/or demands that the action deemed a violation, or an action prohibited by law, be discontinued within a specified period;
- where its decision is not performed, or is performed improperly, within the period it set itself, imposes a fine on the provider;
- appoints an expert examination where necessary;
- monitors the performance of its decision;
- records and analyses statistical data on facts of violations of recipients' rights;
- carries out activities to raise public awareness of matters related to recipients' rights;
- cooperates, on recipient-protection issues, with state and local authorities, international organisations and civil-society representatives.
Among these powers the right to obtain information stands out: when studying a case the Agency may request even confidential information, and if it is withheld it may go to court. For a provider, withholding information is therefore not merely a question of good faith — a state instrument stands behind the Agency's request.
Opening the study of a case and the applicable deadlines
The study of a case begins on the grounds defined by law. An applicant — the person who applies to the Agency — has the right to submit to the Agency a statement concerning a suspected violation of a recipient's right. Within 10 working days from the submission of the statement the Agency notifies the applicant of one of the following: its reaction to the statement, the opening of the study of the case, or the absence of the grounds envisaged by law. This deadline matters for applicants: you are not left without an answer, and it is measured in working days within roughly two calendar weeks. The detailed deadlines and procedure for studying a case are governed by the corresponding provisions of the law, so for exact information about the time remaining at any specific stage you should turn to the Agency itself.
The Agency's decision and its demands
As a result of studying the case, the Agency adopts a decision confirming or denying a violation of the right of a group of recipients of the service. Note the wording: the subject of the decision is precisely the violation of a group of recipients' right — a violation affecting a circle of recipients, not only one specific person. Where a violation is confirmed, the Agency, by its own decision, sets the service provider a period and requires the performance of one or both of the following conditions: restoration of the violated right, and/or discontinuation of the action prohibited by law. The Agency also monitors the performance of its decision — adopting the decision does not close the case: the Agency checks whether the provider has complied with what was demanded. If the decision is not performed within the period set, or is performed improperly, the provider faces a fine.
The fine: the cap, repeat violations and payment
A fine is imposed on the service provider where the Agency's decision is not performed, or is performed improperly, within the period determined by the Agency itself. The amount of the fine may not exceed 2 per cent of the provider's annual turnover in the previous financial year. A special rule exists for newly founded providers: where, due to the date of foundation, the annual turnover for the previous financial year cannot be calculated, the amount of the fine is determined on the basis of the turnover computed for the period from foundation to the imposition of the fine. In determining the amount, the nature, severity and duration of the violation must be taken into account — the same formal framework therefore yields different amounts for different violations.
Repetition is regulated separately: where the violation is repeated within 12 months, the provider is liable to a fine equal to double the amount of the fine imposed. The imposition of a fine does not release the provider from the obligation to perform the Agency's decision — paying the fine does not substitute for complying with the required condition. The fine must be paid within 1 month from its imposition; it is paid into the state budget of Georgia, and in case of non-payment it is immediately referred for enforcement under the procedure established by Georgian legislation.
Appeal and the deadline for applying
The Agency's decision may be appealed to a court within 1 month from the moment it is communicated, under the procedure established by Georgian legislation. An appeal does not deprive the Agency of the right to exercise its powers, including the right to impose the corresponding fine on the service provider. As for the deadline for applying in the first place: an application to the Agency concerning a breach of the law's requirements may be made within no more than 2 years from the commission of the violation. The running of this period is suspended by the Agency's opening of the study of the case — once the case is being examined, time no longer counts against the applicant. A practical note: if your right was violated while using an electronic service, do not postpone the application — after the 2-year period expires the Agency route closes, and when appealing a decision the 1-month deadline must be observed strictly.