Why the Law of Ukraine “On Lobbying” Needs Immediate Amendments and Adaptation to EU Legislation

Lobbying as a separate industry in Ukraine began to develop as part of Ukraine’s European integration commitments with the adoption of the Law on Lobbying. Before that, it was almost an underground activity in a gray area of the legal field.

In the context of European integration, the regulation of the lobbying process was mainly viewed through the prism of combating the illegal influence of oligarchs, and after the adoption of the relevant law, the EU lost interest in it.

At the same time, it should be noted that the law does not fully comply with the practice applied in the EU due to the exclusion from the scope of the law of a large and rather influential category of persons – civil society organizations.

In this article, I will analyze why this happened and how the situation can be remedied.

Different approaches to the same activity

The main difference between lobbies in Ukraine and the EU is the very definition of lobbying.

According to the inter-institutional agreement between the European Parliament, the Council of the EU and the European Commission of May 20, 2021, lobbying is defined as activities aimed at influencing the creation or implementation of policy or legislation or the decision-making processes of the signatory institutions or other institutions, bodies, offices and agencies of the Union.

At the same time, according to Ukrainian law, lobbying is defined as an activity carried out with the aim of influencing the object of lobbying in the commercial interests of the beneficiary.

Thus, lobbying in the European Union covers the goal of achieving any interests, not just commercial ones. In other words, at the EU level, any form of influence, such as lobbying, advocacy or representation of interests, is subject to the same rules, regardless of the purpose and interests, and this approach has been adopted by all three main EU institutions: The European Parliament, the European Commission and the Council of the EU.

In Ukraine, contrary to the European Union’s approach, this area is narrowed, and the law only covers activities that are exclusively related to commercial interests.

How did this happen?

If we follow the progress of the draft law and the position of the European Commission, initially in the report on enlargement_ it only emphasized the importance of ensuring that “lobbying rules do not impede or restrict the legitimate activities of civil society, nor impose an excessive administrative burden on it.”

This approach was reflected in the draft law that was adopted in the first reading. In particular, the adopted document provided for the regulation of “lobbying” in commercial interests and “advocacy” in public interests.

However, before the second reading, civil society demanded that NGOs that advocate for social change be removed from the scope of the law, as it allegedly created conditions for “restricting the activities of public associations.“

It is noteworthy that such an appeal was signed even by organizations that are registered in a similar EU register and whose activities are not restricted in any way due to their presence in the register, including this one: DEJURE Foundation, OPORA Civic Network, Center for Environmental Initiatives “Ecodia”, and others.

Has lobbying become transparent?

Despite the attempt to bring lobbying out of the shadows, due to the insufficient quality of the law, this activity is not fully regulated and contains gaps.

In its two expert reviews of the draft law, the Verkhovna Rada Committee on European Integration emphasized that the draft law “does not ensure compliance with the principle of legal certainty”, in particular because it is unclear “in accordance with what procedure and under what law advocacy activities will be regulated”. The shortcomings identified in the conclusions of the European Integration Committee have not been addressed, leaving the law with two problems.

First, in practice, it is extremely difficult to distinguish between public and private interests. There is nothing to prevent the interests of a particular industry or company from being promoted under the guise of public interest.

For example, the media recently discussed how certain representatives of civil society have been carrying out activities aimed at, as many believe, promoting the interests of certain arms manufacturers. At the same time, such activities can also be considered to be aimed at protecting the public interest, as society is also interested in a strong defense sector.

This raises the question of whether these representatives of NGOs violated the law, since criticism or support of one company directly affects the commercial interests of another.

Secondly, such uncertainty creates a favorable space for financial and corruption abuses.

For example, a non-governmental organization may, under the guise of public interest, lobby in the interests of specific individuals without being accountable for it. Money can be received unofficially or in the form of charitable contributions, avoiding disclosure and taxation.

The European approach helps to avoid such situations and possible abuse by both non-profit organizations and government officials, as it promotes transparency in the process of making government decisions and laws, and allows us to trace who exactly shapes the Union’s policy that meets the interests of the whole society.

Ukraine’s approach, as we can see, not only leaves a large number of organizations that influence lawmakers in crucial “non-commercial” areas, such as anti-corruption, judicial reform, law enforcement, security and defense, etc., outside of any public control, but also simply does not comply with the practice of lobbying in the EU, which covers all areas, regardless of the presence of a commercial component.

What is the position of experts in the EU?

(AALEP) The Association of Certified Public Policy Advocates in its recommendations for improving Ukrainian lobbying legislation, among other things, emphasized the need to expand the application of the concept of lobbying to any policy.

The Council of Europe’s Committee against Corruption (GRECO) also recommended establishing “rules for the interaction of members of parliament with lobbying entities and other third parties trying to influence the legislative process.”

Thus, an interesting situation has arisen where leading experts and practitioners from the EU and Council of Europe member states point to the need to regulate any activity related to influencing the legislative process, but at the request of civil society organizations, these recommendations were actually rejected, which in practice already creates problematic situations with the interpretation of the law and opens up opportunities for abuse.

Of course, one can ask whether civil society representatives really cared about fulfilling European integration obligations or acted in their own interests to simplify their activities, not wanting to make them transparent. However, the answer to this question will not solve the above problems.

The problems of applying the Law on Lobbying can only be solved by amending it. To do so, it is necessary to approach the issue comprehensively, not selectively, to evaluate the recommendations of EU practitioners and to project how these recommendations would work in Ukraine. Such an approach will help avoid fragmentation, uncertainty, and possible abuse in Ukrainian policy-making.

This approach will be the most acceptable and effective for Ukraine’s early accession to the European Union.

Andriy Levkovets
Expert on European integration