Ukraine officially received EU candidate status.
First, cheers! You can drink more champagne! Secondly, as the celebration goes beyond, we need to read the European Commission’s Opinion in detail and analyze what ‘homework’ Ukraine should do on its way to full EU membership.
Indeed, the Opinion has pointed out to many tasks. In addition to seven preconditions for launching the membership negotiation procedure laid out at the end of the document, the 30-page Opinion outlines all aspects of the political and economic life of Ukraine, putting directly, or between the lines, the necessary emphasis on problems and shortcomings. Yes, the path to becoming the EU member will be much longer than the fulfillment of the seven criteria set out in the document.
A significant part of the Opinion is devoted to the Verkhovna Rada of Ukraine and the need for its internal reform.
The European Commission wrote: “The use of accelerated procedures for the adoption of legislation, in particular in areas related to EU law, is relatively limited. It is necessary to strengthen the tools for a comprehensive assessment of the impact of draft laws and parliamentary control over the executive branch, including monitoring the implementation of legislation.”
These would seem just two short sentences. Yet, they set right the complex challenges that the modern Ukrainian parliamentarianism is facing.
Let’s start with the first sentence: accelerated procedures, including consideration of acts related to EU law.
The questionnaire sent by the European Commission to Ukraine in April asked, inter alia, the following questions: explain the procedure for the adoption of legislation (including existing accelerated procedures, if any); whether there is a system in the parliament to check the conformity of bills and legislative proposals for compliance with EU law; what is the percentage of laws passed under the accelerated procedure in the last five years.
Why are these issues of interest to the EU?
Each Member State must meet the so-called Copenhagen Criteria, or requirements laid down in June 1993 by the European Council at its meeting in Copenhagen. There are three of these criteria:
Stability of institutions that guarantee democracy; the rule of law; respect for human rights and protection of the rights of minorities;
Efficient market economy; and,
Ability to fulfill the obligations arising from the fact of joining the EU.
Indeed, parliamentary procedures should be democratic and fully ensure that Ukraine fulfills its European integration obligations, in particular, bringing national legislation into line with EU law.
The Verkhovna Rada should provide for such procedures that will ensure prompt (faster than usual consideration of draft bills) and full implementation of the decisions of the EU institutions without unnecessarily dragging out time for excessive political debate.
Such procedures exist both for current EU members and in many states seeking to join the European Union.
For example, in the Polish Sejm, draft laws implementing EU law are considered according to a separate schedule approved by the Marshal of the Sejm (i.e. the head of parliament). This timetable should take into account the established deadlines for the implementation of the EU act.
If the Government introduces a draft law, it shall determine whether the bill falls within the realm of European affairs. If the bill is introduced by MPs, this should be done by the Marshal of the Sejm. Government bills must also be accompanied by draft by-laws to be adopted in pursuance of the law, and a correspondence table. It reflects how the specific norms of the EU act relate to the initiated bill.
An explanatory note shall be attached to each draft law submitted to the Sejm of the Republic of Poland. In particular, it should indicate whether the legislative initiative is in line with EU regulations. The Office of the Sejm (same as the Verkhovna Rada Apparatus) then examines the draft law for compliance with EU law.
In turn, the Chamber of Deputies of the Czech Republic may adopt the bill as a law in its first reading, if it concerns the international obligations of the Republic. Similarly, in Croatia, such bills are considered immediately in the first and second readings, unless there are comments from the Committee on the Constitution, Rules and Political System regarding the inconsistency of the bill with the Constitution or the legal system of the state.
Candidates for EU membership also have similar procedures. Thus, the Parliament of Montenegro considers bills related to integration into the EU under an urgent procedure within 24 hours after its registration. The Parliament sets specific deadlines for the bill drafting by the committees. Should the committee fail to meet the deadline, the draft bill consideration will take place without the conclusion of the committee, or on the oral report of the committee representative.
Even Bosnia and Herzegovina, which is only a potential candidate, has got a special procedure for draft bill consideration relating to European integration. The government of Bosnia and Herzegovina has the right to designate the draft law it has introduced as ‘European integration’. In this case, all terms for such draft law consideration are halved.
Unfortunately, the Verkhovna Rada does not have a similar procedure yet.
There is no planning to develop and adopt parliamentary acts related to approximation to EU law either. Yet, starting from 2020, the Verkhovna Rada adopts an annual plan for its legislative work. Among other initiatives, it contains a number of European integration causes. Nevertheless, these undertakings do not have priority among the huge number of other initiatives: 376 in 2021, 662 in 2022 and 878 in 2020, respectively. Also, the Rules of Procedure do not contain a mandatory requirement to include such bills in the plan.
Another challenge is the verification of submitted bills for compliance with EU law. In the Parliament, this check is performed by the Committee for Ukraine’s Integration into the European Union. However, the Committee’s conclusions are not binding: the Verkhovna Rada may still consider a draft law failing to comply with EU law, ignoring the need to revise such draft law. Moreover, the Parliament is not even obliged to wait for the Committee’s conclusion and may consider the bill without a professional assessment of the bill’s compliance with EU law.
As for the second reading, the Rules of Procedure do not provide for the verification of bills prepared for the second reading for compliance with EU law. Considering that due to the amendments and proposals of MPs, the text of the draft may change dramatically, there is a real danger to pass a law that grossly contradicts the norms of the European Union.
Checking a legislative initiative for compliance with EU law is also complicated by the fact that even bills designated as ‘European integration’ are not accompanied by a compliance table, or an appendix to collate a specific norm of a draft bill with a respective provision of EU law. As a result, a formally adopted ‘European integration’ law may contradict the legislation of the European Union, or contain provisions that do not relate to Ukraine’s obligations in the field of European integration whatsoever.
Filling out the European Commission’s questionnaire, answering the question “Is there a system of verifying, at Parliament level, the compatibility of new legislation and amendments proposed in parliamentary procedure with the EU acquis?”, Ukraine has described mainly the verification mechanism at the level of the Cabinet of Ministers through the government Office for Coordination of European and Euro-Atlantic integration. The positive experience of the Energy Committee was also described, which, pursuant to Annex XXVII to Chapter 1 of the Association Agreement, is consulting with the European Commission and the Energy Society. However, the experience of one of the 23 committees is not enough to establish systematic work on checking draft acts for compliance with EU law.
Finally, the Law On the National Program for the Adaptation of the Legislation of Ukraine to the Legislation of the European Union, which was adopted back in 2004, is still in force. It was supposed to regulate both draft bill consideration and coordination between the branches of government in relation to European integration. We have to keep in mind that this Law was adopted long before the signing of the Association Agreement. Back in 2016, the European Parliament’s Needs Assessment Mission, chaired by Patrick Cox, recommended to the Verkhovna Rada that it be repealed by adopting a new framework law. Needless to say, once Ukraine has received the status of an EU candidate, the 2004 Law, to put it mildly, does not address real challenges.
Let’s move on to the second sentence of the European Commission's Opinion: “It is necessary to strengthen the tools for a comprehensive assessment of the impact of bills and parliamentary control over the executive, including monitoring the implementation of legislation.”
To understand this remark of the European Commission, it is necessary to think like the European Commission.
What does the legislative process mean for the European bureaucracy? The answer to this question is contained in the Better Regulation Manual prepared by the European Commission in 2021.
According to the Manual, the legislative process is viewed as a policy cycle that consists of four stages: preparation, adoption, implementation (i.e. taking additional measures for the effective application of the law: clarification, training, etc.) and application of the law.
The first stage involves planning and evaluating the impact of a legislative initiative: identifying the problem to be solved, finding the best ways to solve it, determining the desired result, assessing how the proposed legal act will affect social groups and society in general.
The second stage implies that the competent body makes a decision on the draft law adoption based on the expert evaluation and further revision.
During the last two stages, the implementation of the act is monitored and evaluated. During monitoring, the body that adopted the act (in our case, parliament) monitors whether the legislation is really strictly implemented: whether lower-level acts have been issued; whether there are any offenses; whether the necessary training and explanations have been carried out, etc. Evaluation, in turn, answers the question of whether the law has achieved the desired result. And if the answer is “no”, then the reasons for the failure are established.
At each of these stages, consultations are held with stakeholders, that is, representatives of civil society in the respective policy domain. This is done to ensure that, first of all, the law achieves the desired result. Indeed, in a democratic state, every decision should be directed at ensuring the well-being of the population. Secondly, it is necessary to get independent feedback on the proposed bill.
As a result, each act undergoes professional revision. To ensure the draft law preparation in the best possible way, the desired results are to be clearly defined and the law implementation is to be monitored. Professional evaluation shall determine the reasons for failures in the law implementation. Based on this evaluation, changes and additions to the current law are developed, and the cycle repeats again.
Ukraine needs to work on the reform of each of the above stages.
The legislative initiative impact assessment is carried out rather on a once-in-a-while basis. The Verkhovna Rada’s Rules of Procedure oblige to conduct a mandatory draft bill impact assessment only to assess the bill’s impact on the revenues and expenditures of the State Budget. Such assessment is carried out by the Ministry of Finance.
There is the Law On the Fundamentals of State Regulatory Policy in the Sphere of Economic Activity. However, first of all, it regulates only the analysis of regulatory impact, or impact assessment carried out on acts in the field of economic relations. That is, other areas of legislation, such as social protection and human rights, are left without due attention. Secondly, the Regulations of the Verkhovna Rada do not contain any mention of the obligation to conduct a regulatory impact analysis under the said Law. Therefore, the entity introducing the bill can simply ignore the requirement to conduct such an analysis. And the Parliament will still consider their legislative initiative.
The situation is similar with gender-legal expertise provided for in the Law On Ensuring Equal Rights and Opportunities for Women and Men and anti-discrimination expertise in accordance with the Law On the Fundamentals of Preventing and Combating Discrimination in Ukraine. Although the above Laws contain the requirements to conduct the draft law expert evaluation, yet, the Parliamentary Rules of Procedure just ignore them.
In fairness, it should be noted that at the level of the Cabinet of Ministers, all the above analyzes and examinations are carried out. However, the vast majority of laws in Ukraine are adopted on the proposal of people’s deputies, who are not required to conduct professional preparation of the draft law. So, as of the beginning of this year (January 28, 2022), out of all 2,497 draft laws considered by the Verkhovna Rada of Ukraine, 81.3% (2030) were initiated by people’s deputies, only 12.9% (323) - by the Cabinet of Ministers, another 5.8% (144) – by the President.
The situation is no better with parliamentary oversight to monitor the law application.
The Law On Committees of the Verkhovna Rada of Ukraine provides that committees shall analyze the practice of applying legislative acts in the activities of state authorities. However, this analysis is reduced to checking whether the necessary by-laws have been adopted, without assessing the achievement of the desired results established as the purpose of adopting the law.
Recently, a new practice has appeared in the Parliament: to add the provision to the text of the law as follows: “The Cabinet of Ministers of Ukraine to inform the Verkhovna Rada of Ukraine about the state of implementation of this Law” (see, for example, Law № 2255-IX). However, this approach can hardly be called systematic. Even the Legal Department of the Parliament itself made a comment to this wording, rightly pointing out that this proposal does not define the order, criteria, consequences and procedure for considering the reporting information of the Cabinet.
Parliamentary oversight is also important in the context of European integration. The Verkhovna Rada should have the proper tools to oversee the process of approaching the EU, which is mainly provided by the Government: from checking the quality of the implementation of European integration laws and adopted government acts in the field of European integration, and even to monitoring the actions of the Cabinet of Ministers on the diplomatic front.
A situation remains difficult in the field of public consultations. The Cabinet of Ministers has determined the procedure of consultations with citizens, but there is no similar procedure in place for MPs or parliamentary committees. This situation should be corrected by the draft Law On Public Consultations, which is undergoing revisiting and preparation for the second reading for nearly eighteen months.
Indeed, the Verkhovna Rada has a large scope of work to do:
update the Rules of Procedure to introduce a separate procedure for considering European integration bills; provide for a draft law examination for compliance with EU law and extend this procedure to also cover the draft laws prepared for the second reading; to make conclusions of such examination bindings for all parties involved; introduce clear planning and coordination with the Cabinet of Ministers in the field of legislative work on European integration issues;
staff the structural unit responsible for the above tasks;
following the example of the European Commission and the EU Member States, introduce the draft law impact assessment procedure to allow for the draft law monitoring and evaluation as well as the public consultations procedure as mandatory stages of the legislative process;
introduce effective oversight tools to scrutinize the activities of the Cabinet of Ministers in the field of European integration.
Olha Stefanishyna, Vice Prime Minister for Ukraine’s European and Euro-Atlantic Integration, stated that 30 European integration bills would be submitted to the Parliament by the end of this year. In total, 80 bills of the European integration portfolio have already been registered in the Parliament.
It is obvious that a separate procedure is needed for the prompt consideration of such a large number of legislative initiatives. In turn, the updated Verkhovna Rada’s Rules of Procedure will make it possible to adopt high-quality and truly European laws.
Stanislav Ivasyk, Legal Adviser of the USAID RADA: The Next Generation Program