RECOMMENDATIONS FOR IMPROVING UKRAINE’S LAW ON LOBBYING

The European Commission recommends that the EU Council opens accession negotiations with Ukraine. The talks should formally be launched once Kyiv has satisfied the remaining conditions related to stepping up fight against corruption, adopting a law on lobbying in line with EU standards and strengthening national minority safeguards.

Recommendation 1: The draft Law on the Integrity of Lobbying of Ukraine includes in its remit lobbying in the law-making process, which is narrower than the scope envisaged by international recommendations and most laws on lobbying in other countries. Ukrainian authorities should consider expanding the definition of lobbying and the scope of the draft Law by linking lobbying to the intent to influence rather than actual influence and recognizing a broader scope of public decisions that can be subject to lobbying, for example, the preparation or amendment of any policy program (strategy, action plan, etc.) and the award or withdrawal of a contract, grant, license, contribution, or other benefit. Ukrainian authorities should also consider expanding the dedicated legal framework on lobbying in central governments for top executive functions, considering that lobbying embraces the executive branch as well as the legislative branch.

Recommendation 2: As the international standards on lobbying provided for by the Council of Europe, the European Union and the OECD are a significant source of guidelines on lobbying, the Ukrainian authorities could refer to these standards in the explanatory note to the draft Law on the Integrity of Lobbying. The standards provided for by these recommendations could inspire the authors of the draft laws as these are currently the most relevant principles (soft law) on lobbying at international level .

Recommendation 3: Limit the exemption of subjects of supportive law-making activities, whose main function is scientific and expert support, to instances when they act upon a contractual basis with a subject of law-making activity or upon a direct and specific request for factual information, data or expertise of a subject of law-making activity.

Recommendation 4: Define a comprehensive exemption for occasional activities of an individual citizen on his/her own behalf and in his/her own or non-commercial public interests.

Recommendation 5: Actions using social platforms and networks should be taken into account among different forms of communication techniques which may influence indirectly subjects of law-making activity. These forms of communication should be explicitly mentioned in Article 4 of the draft Law on the Integrity of Lobbying, for example, organizing and using online platforms and online or offline networks. If this recommendation is implemented in the law, take into consideration that the National Agency for the Prevention of Corruption (NAPC) will need to develop and run a dedicated monitoring system for the social networks.

Recommendation 6: Restrictions on sponsorship and donation from clients of subjects of lobbying during electoral campaigns could be considered.

Recommendation 7: Reduce the list of areas where normative legal acts cannot be objects of lobbying to a minimum that clearly pursues a legitimate aim and is necessary in a democratic society. In particular, the legislative process related to acts of ratification of international agreements should be liable to lobbying. Individual actions for individual business purposes should also be considered as a legitimate lobbying activity.

Recommendation 8: The code of conduct setting out the standards of good behavior for the subjects of lobbying should be joined/incorporated to the future Law on the Integrity of Lobbying in Ukraine and adherence to this code by the subjects of lobbying should be a precondition to be registered.

Recommendation 9: The subject of lobbying should be registered only if the legal requirements on the information to be entered into the register have been fulfilled and validated by the NAPC.

Recommendation 10: The one-year “cooling-off” period for former public officials before they can become lobbyists is rather short, Ukrainian authorities should consider setting it at two years, which is a usual period of time in several other countries.

Recommendation 11: Submit to the register information on the amounts of money actually received by a lobbyist for lobbying activities.

Recommendation 12: Consider quarterly, semi-annual or annual reporting of data about the execution of lobbying activities.

Recommendation 13: Clarify the reference in Article 9 (2) to the incompatibility circumstances that must be entered in the register.

Recommendation 14: The register could publish in an annex, case summaries to help subjects of lobbying and guide them in the effective implementation of their reporting obligation. The authorities could consider introducing provisions to ensure that this can be implemented in practice.

Recommendation 15: Consider adding a prohibition of simultaneous lobbying on behalf of several clients with conflicting interests.

Recommendation 16: Proposals presented by subjects of lobbying and the positions of the parliamentary committees regarding the proposals within each stage (reading) of the legislative process could be a part of the legislative footprint.

Recommendation 17: The rights of the subjects of lobbying to enter public premises should be clarified in accordance with Article 1 of the draft Law on the Integrity of Lobbying in Ukraine.

Recommendation 18: Oblige all subjects of law-making activity to record and publish details of persons who participated in the development of draft normative legal acts, proposals presented by subjects of lobbying, and pertinent analytical materials submitted by subjects of lobbying

Recommendation 19: Increase fines for violations in the area of lobbying, especially for lobbying without registration, envisage a prohibition for a person to be registered as a lobbyist for at least a year if they have been found guilty of lobbying without registration, and define offences associated with non-compliance with other obligations of subjects of lobbying.

Recommendation 20: Mandating the NAPC to impose fines/sanctions and removal of entities from the register, if needed, seems to be justified for effectiveness reasons. Should this suggestion be in line with the aim of the legislator, consideration should be given to empowering the NAPC to impose sanctions in regard to violations of the lobbying regulations. However, this may be introduced only in a systemic manner as a matter of policy decision of the authorities (also in regard to any other administrative violations falling within the mandate of the NAPC).

Recommendation 21: Criminal sanctions could be considered at a later stage and applied in case of non[1]registration (in this case the NAPC would refer the case to the justice). As regards monetary sanctions, these could be imposed by the NAPC in case this falls within the aim of the legislator

Recommendation 22: The scope of application of Article 172-9-3 and the possibility to impose sanctions under the Code on Administrative Offences to both natural and legal persons which have infringed the legal rules on lobbying, should be clarified.

Recommendation 23: The sanctions applying to representatives of subjects of law-making connected to lobbying activities liable to corruption-related offences could be recalled in the Law of Ukraine on Prevention of Corruption. As the representatives of subjects of law-making take final decisions in drafting and adopting normative legal acts, the sanctions should be higher compared to those which apply to the subjects of lobbying. They should be liable to the sanctions for corruption-related offences according to the Law of Ukraine on Prevention of Corruption if there is evidence of corruption

RECOMMENDATIONS TO AMEND THE DRAFT LAWS ON LOBBYING IN UKRAINE

The national stakeholders in Ukraine are advised to consider the following aspects:

1) The transparency, integrity and fairness in the public decision-making process are essential for the public interest and the competition of businesses.

2) Members of the Parliament, other public officials and lobbyists share responsibility to apply the principles of transparency, integrity and fairness, in order to maintain confidence in public decisions.

3) A legal framework to enhance transparency in lobbying activities in the law-making process ensures a greater degree of accountability and trust in political decisions.

4) Having regard to the Recommendation of the Council of the Organization for Economic Co-operation and Development (OECD) on Principles for Transparency and Integrity in Lobbying, adopted the 18 February 2010.

5) Having regard to the Recommendation of the Committee of Ministers to member States of the Council of Europe on the legal regulation of lobbying activities in the context of public decision-making, adopted by the Committee of Ministers on 22 March 2017.

6) Having regard to the Interinstitutional Agreement of 20 May 2021 between the European Parliament, the Council of the European Union and the European Commission on a mandatory transparency register.

The Ukrainian authorities should consider the following recommendations in order to improve the current draft legislative framework on the integrity of lobbying:

1) Ukrainian authorities should consider expanding the definition of lobbying and the scope of the draft Law by linking lobbying to the intent to influence rather than actual influence and recognizing a broader scope of public decisions that can be subject to lobbying, for example, the preparation or amendment of any policy program (strategy, action plan, etc.) and the award or withdrawal of a contract, grant, license, contribution, or other benefit. Ukrainian authorities should also consider expanding the dedicated legal framework on lobbying in central governments for top executive functions, considering that lobbying embraces the executive branch as well as the legislative branch.

2) As the international standards on lobbying provided for by the Council of Europe, the European Union and the OECD are a significant source of guidelines on lobbying, the Ukrainian authorities could refer to these standards in the explanatory note to the draft Law on the Integrity of Lobbying. The standards provided for by these recommendations could inspire the authors of the draft laws as these are currently the most relevant principles (soft law) on lobbying at international level.

3) Limit the exemption of subjects of supportive law-making activities, whose main function is scientific and expert support, to instances when they act upon a contractual basis with a subject of law-making activity or upon a direct and specific request for factual information, data or expertise of a subject of law-making activity.

4) Define a comprehensive exemption for occasional activities of an individual citizen on his/her own behalf and in his/her own or non-commercial public interests.

5) Actions using social platforms and networks should be taken into account among different forms of communication techniques which may influence indirectly subjects of law-making activity. These forms of communication should be explicitly mentioned in Article 4 of the draft Law on the Integrity of Lobbying, for example, organizing and using online platforms and online or offline networks. If this recommendation is implemented in the law, take into consideration that the NAPC will need to develop and run a dedicated monitoring system for the social networks.

6) Restrictions on sponsorship and donation from clients of subjects of lobbying during electoral campaigns could be considered.

7) Reduce the list of areas where normative legal acts cannot be objects of lobbying to a minimum that clearly pursues a legitimate aim and is necessary in a democratic society. In particular, the legislative process related to acts of ratification of international agreements should be liable to lobbying. Individual actions for individual business purposes should also be considered as a legitimate lobbying activity.

8) The code of conduct setting out the standards of good behavior for the subjects of lobbying should be joined/incorporated to the future Law on the Integrity of Lobbying in Ukraine and adherence to this code by the subjects of lobbying should be a precondition to be registered.

9) The subject of lobbying should be registered only if the legal requirements on the information to be entered into the register have been fulfilled and validated by the NAPC.

10) The one-year “cooling-off” period for former public officials before they can become lobbyists is rather short, Ukrainian authorities should consider setting it at two years, which is a usual period of time in several other countries.

11) Submit to the register information on the amounts of money actually received by a lobbyist for lobbying activities.

12) Consider quarterly, semi-annual or annual reporting of data about the execution of lobbying activities.

13) Clarify the reference in Article 9 (2) to the incompatibility circumstances that must be entered in the register.

14) The register could publish in an annex, case summaries to help subjects of lobbying and guide them in the effective implementation of their reporting obligation. The authorities could consider introducing provisions to ensure that this can be implemented in practice.

15) Prohibit simultaneous lobbying on behalf of several clients with conflicting interests.

16) Proposals presented by subjects of lobbying and the positions of the parliamentary committees regarding the proposals within each stage (reading) of the legislative process could be a part of the legislative footprint.

17) The rights of the subjects of lobbying to enter public premises should be clarified in accordance with Article 1 of the draft Law on the Integrity of Lobbying in Ukraine.

18) Oblige all subjects of law-making activity to record and publish details of persons who participated in the development of draft normative legal acts, proposals presented by subjects of lobbying, and pertinent analytical materials submitted by subjects of lobbying.

19) Increase fines for violations in the area of lobbying, especially for lobbying without registration, envisage a prohibition for a person to be registered as a lobbyist for at least a year if they have been found guilty of lobbying without registration, and define offences associated with non-compliance with other obligations of subjects of lobbying.

20) Mandating the NAPC to impose fines/sanctions and removal of entities from the register, if needed, seems to be justified for effectiveness reasons. Should this suggestion be in line with the aim of the legislator, consideration should be given to empowering the NAPC to impose sanctions in regard to violations of the lobbying regulations. However, this may be introduced only in a systemic manner as a matter of policy decision of the authorities (also in regard to any other administrative violations falling within the mandate of the NAPC).

21) Criminal sanctions could be considered at a later stage and applied in case of non registration (in this case the NAPC would refer the case to the justice). As regards monetary sanctions, these could be imposed by the NAPC in case this falls within the aim of the legislator.

22) The scope of application of Article 172-9-3 and the possibility to impose sanctions under the Code on Administrative Offences to both natural and legal persons which have infringed the legal rules on lobbying, should be clarified.

23) The sanctions applying to representatives of subjects of law-making connected to lobbying activities liable to corruption-related offences could be recalled in the Law of Ukraine on Prevention of Corruption. As the representatives of subjects of law making take final decisions in drafting and adopting normative legal acts, the sanctions should be higher compared to those which apply to the subjects of lobbying. They should be liable to the sanctions for corruption-related offences according to the Law of Ukraine on Prevention of Corruption if there is evidence of corruption