STATEMENT OF UKRAINIAN CIVIL SOCIETY ORGANIZATIONS ON DRAFT LAWS ON LOBBYING

Currently, four draft laws are under consideration by the Specialized Parliamentary Committee on Legal Policy. They are aimed at establishing legislative regulation of lobbying activities in Ukraine: Draft Laws No. 3059, 3059-1, 3059-2, 3059-3. 

Approaches proposed in these draft laws might limit the rights of citizens and public associations, challenge exercising and protecting their rights and freedoms and satisfying their civil, economic, social, cultural and other interests, as well as the right to participate in the decision-making of national and local government bodies, guaranteed by Arts. 5 and 36 of the Constitution of Ukraine, Art. 21 of the Law of Ukraine “On Public Associations”, other laws of Ukraine, as well as by provisions of international Conventions ratified by Ukraine (including Art. 25 of the International Covenant on Civil and Political Rights).

The systemic deficiency of these draft laws is the intention to extend the regulation of lobbying to the legally guaranteed activities of public associations and citizens aimed at realizing their rights and interests through participation in the public policymaking.

The abovementioned draft laws do not contain a clear definition of lobbying as a commercial activity, which implies to business entities providing services for the fulfilment of interests of a customer in the decisions of the authorities or legislative acts being adopted. In our opinion, only activities that meet this definition of lobbying can be subject to any legislative regulation.

Among the most controversial provisions of these draft laws, which restrict the rights of citizens and civil society organizations to pursue their interests through participation in the public policymaking, are the following:

1. Lack of differentiation between lobbying and citizen participation in public policymaking. The Draft Laws No. 3059, 3059-1, 3059-3 do not distinguish between lobbying activities and activities of citizens and public associations aimed at fulfilling their interests through participation in the public policymaking. This provides a basis for the extension of lobbying requirements to them in terms of registration, reporting, registration fees and the imposition of significant penalties, which are additionally imposed by the draft laws. This limits the right to participate in the realization of one’s interests and the public policymaking.
2. Introduction of additional reporting for public associations. In accordance with the provisions of the Draft Laws No. 3059 and № 3059-1, public associations carrying out their activities in accordance with the Law of Ukraine on Public Associations and will be recognized by the supervisory body as lobbyists, will have to provide additional detailed information on their activities.
3. Unreasonable restrictions on carrying out lobbying activities. Draft Law No. 3059-1, by extending the definition of lobbying to the activities of public associations in the sphere of interaction with authorities enshrined in the Law of Ukraine on Public Associations, prohibits non-profit organizations, their founders or members (participants) from engaging in such activities (subpara. 8 para. 2 Art. 6). 
4. Additional regulations for public associations. Although Draft Law No. 3059-2 stipulates that its provisions shall not apply to public associations, civil and professional groups, which are entitled to participate in shaping State policy under other laws, it provides for amendments to the Law of Ukraine on Public Associations, and determines that, in order to fulfil its objective(s), a public association is entitled to carry out advocacy activities. However, Draft Law No. 3059-2 obliges public associations to amend their statutes in order to exercise their right to participate in the public policymaking, which is already guaranteed by the laws in force.
5. Incorrect classification of civil participation. Although Draft Law No. 3059-2 distinguishes between lobbying and advocacy activities, it classifies as lobbying those activities, which are guaranteed for citizens and public associations by other laws, such as participation in the drafting of legal acts; preparation of informational and analytical materials and results of sociological and other studies; participation, upon prior notification, in meetings of elected bodies or their committees (art. 6). Thus, most of the advocacy campaigns carried out by civil society organizations may be qualified as lobbying activities.
6. Imposing penalties and possibility of imposing fines on a public association by decision of regulator. All four registered draft laws provide for high penalties for non-compliance with their respective provisions in case the responsible public authority decides that a public association is subjected to the law but does not comply with its requirements. This can be used to pressure civil society organizations.

Legislation on lobbying activities is in force only in the six EU member States (Ireland, Austria, France, Poland, Slovenia and Lithuania). Most of these laws consider lobbying to be a professional activity and distinguish it from legally guaranteed instruments for the participation of citizens and civil society organizations in shaping public policy.

Legislative regulation of lobbying can help reduce the risk of corruption in the process of drafting and adopting laws and regulations. However, we want to emphasize that the priority and the main challenges in overcoming corruption in Ukraine are the implementation of reforms aimed at establishing an efficient and effective justice and law enforcement systems, as well as strengthening of the institutional sustainability of anti-corruption authorities.

The idea of legal regulation of lobbying activities in Ukraine requires a thorough study of international experience and a preliminary inclusive dialogue on the principles and legal mechanisms of such regulation among all the parties concerned.

In view of the threats posed by these draft laws and potential restriction of human rights and freedoms, the possibilities of citizens and public associations to participate in the public policy-making and civil society development, we call upon the Members of the Parliament of Ukraine to reject the Draft Laws No. 3059, 3059-1, 3059 2, 3059-3 on Lobbying in Ukraine.

Signed (the list is being updated): 

1. The Initiative Center for Promotion of Activities and Development of Public Undertakings «Ednannia» 
2. Ukrainian Centre for Independent Political Research 
3. Centre for Democracy and Rule of Law 
4. Human Rights Centre ZMINA 
5. Women’s Anticorruption Movement 
6. Khmelnytsky Reform Council 
7. All-Ukrainian public organization “ Association for the Promotion of PublicSelf-Organization” 
8. International Charitable Foundation “Caritas Ukraine”
9. Charity Foundation Stabilization Support Services in Ukraine 
10. Centre for Territorial Communities Development (Kharkiv) 
11. Dobrochyn Centre, Chernihiv 
12. Chernihiv Human Rights Centre 
13. Khmilnytsk District Civil Society Organisation PRAVO 
14. Ukrainian National Home Association in Chirnivtsi Association 
15. Detector Media 
16. Public Association “Fostering Rural Development”
17. Public Health Alliance 
18. Odessa Institute for Social Technology 
19. Future Development Agency 
20. International Foundation Renaissance 
21. Public Holding “Influence Group” 
22. "Spilno HUB" 
23. Reanimation Package of Reforms Coalition 
24. Pokrovsk Human Rights Organisation “Shield”