Weekly analysis for 30 October – 05 November

Progress or Inertia? Key Insights from the EU Enlargement Package on Ukraine

Event

On October 30, 2024, the European Commission published its annual EU Enlargement Package, which includes reports on candidate countries’ progress toward EU membership. This document serves as an effective assessment tool, both tracking countries’ EU integration efforts and providing insights into the EU’s vision for the implementation of essential reforms. This is the second such report for Ukraine, and its content differs somewhat from the previous one, reflecting the natural deepening of relations and interactions within the context of accession negotiations. Importantly, the report demonstrates a heightened understanding of Ukraine’s unique circumstances as a candidate country engaged in accession negotiations amid the realities of a full-scale war.

CPLR’s assessment

Functioning of Democratic Institutions

Parliament

The European Commission notes that despite russia’s aggression against Ukraine, the Parliament continues to exercise its constitutional duties and demonstrates the ability to achieve consensus on decisions crucial for the country. At the same time, the Commission stresses the importance of respecting the rights of the opposition and ensuring the effective implementation of parliamentary diplomacy.

The report positively assesses the adoption of the following laws of Ukraine: “On amending certain legislative acts of Ukraine to clarify provisions on the competitive selection of candidates for the position of a judge of the Constitutional Court of Ukraine”, “On amending certain laws of Ukraine to improve the procedures for reporting and termination of political parties and their structural units”, “On law-making”.

The European Commission also emphasizes the need to improve the following areas, including: the procedure for assessment of draft legislation, particularly concerning the alignment of Ukrainian legislation with the European Union law (EU acquis) and developing guidelines for ex post legislative evaluation; comprehensively updating legislation on political parties, including procedures for holding parties to account for breaches of financing rules; and implementing legislative requirements for public consultations after martial law is lifted.

Additionally, it is necessary to strengthen parliamentary oversight on monitoring the effectiveness of implementation of legislation by executive authorities, enhance cooperation between the executive and legislative powers in the context of Ukraine’s EU integration, and develop a national program for the adoption of the EU acquis.

Elections

In this year’s report, the European Commission reiterated that Ukrainian legislation is capable to ensure democratic elections, stressing the importance of implementing the recommendations of the OSCE/ODIHR missions. Key issues highlighted include: removing restrictions on electoral rights based on intellectual or psychosocial disability and implementing measures to strengthen the secrecy of the ballot.

The current report differs from the previous one by placing greater emphasis on the idea that electoral reform should go beyond merely implementing recommendations and focus also on preparing for elections once martial law is lifted. In this context, the report highlights the commitments made by parliamentary factions to hold the first post-war election, with sufficient notice, once martial law has ended.

At the same time, the document also notes specific steps within the electoral reform, including the registration of draft laws  № 11300 and № 11300-1, which aim to ensure balanced representation of women and men in Parliament and local councils, as well as the preparation of comprehensive amendments for organizing post-war elections, developed in cooperation with the Central Election Commission, international partners, and civil society.

Additionally, the European Commission drew Ukraine’s attention to its Recommendations 2023/2829 of December 12, 2023, regarding inclusive and sustainable electoral processes in the EU. This document is particularly relevant given its focus on strengthening the European character of electoral processes and improving the effectiveness of elections to the European Parliament.

Multi-level governance

The report noted that the multi-level governance remained crucial to the country’s resilience and recovery. The European Commission mentioned that recently adopted laws on transparency in local self-government and on democracy at the local level, – aimed to improve local decision-making (with the note that the second law has yet to be signed by the President). At the same time, the European Commission has expressed the view that tangible measures aimed at exploiting the potential of municipalities should be put back on track, as set out in the Ukraine Plan, in line with the European Charter of Local Self-Government.

The European Commission also paid attention to the functioning of subnational (regional) authorities, including local self-government. It emphasized the need to create a transparent mechanism for financing their recovery, reconstruction and modernization needs, in accordance with the Ukraine Facility requirements. In addition, the Commission pointed out the need to create a formal coordination structure that would guarantee the consistent involvement of local authorities and associations in policy design and implementation.

In this year’s report, the European Commission for the first time drew attention to the issues associated with the establishment of military administrations, noted that with the growing number of local military administrations, Ukraine should clarify, in law, the criteria for setting them up.  Discontinuation of local self-government should be a last resort; alternative security measures should be given preference where the situation allows, especially in the territories away from the frontline

The European Commission noted that in 2024 the fiscal decentralization was maintained, with 64% of personal income tax (PIT) allocated to municipalities, yet PIT from military staff was re-directed to strategic industries. However, it is important to highlight the risk of a decrease in the percentage of PIT revenues allocated to municipal budgets in 2025, from 64% to 60%. This provision is currently included in the draft law “On the State Budget of Ukraine for 2025”. Furthermore, it is necessary to note that the Budget Committee of the Verkhovna Rada in the Budget opinions to the draft state budget for 2025 has proposed the Cabinet of Ministers to address the issue of reducing the percentage allocated to municipal budgets from another portion of the single tax (which is a local tax and should be fully allocated to municipal budgets). Such actions would diminish the financial capacity of municipalities and pose a threat to fiscal decentralization.

An important comment of the European Commission is that in order to stabilize the local fiscal base, Ukraine should make progress on ensuring a fair distribution of PIT to municipalities where taxpayers actually reside. Furthermore, there is a need to upgrade real estate registries to ensure efficient collection of taxes and fees at the local level. 

Civil society

As in the previous year, the European Commission noted that CSOs in Ukraine continue to operate in a broadly enabling environment and remain a key element in Ukrainian democracy.  

However, reports of pressure on activists and CSOs remain a major concern and require a swift response from the authorities.

Despite the war, CSOs are active, although bureaucratic difficulties in practice sometimes impede their registration and activities, and current anti-money laundering rules may hamper CSOs’ access to banking services. 

The European Commission also positively assessed the adoption of the Law of Ukraine “On Public Consultations”  № 3841-ІХ, requiring extensive and mandatory consultations by state and local self-government authorities in decision-making before adopting legislation. However, the Law will not enter into force until 12 months after the end of martial law. The European Commission noted that the adopted version of the law does not provide for mandatory public consultation on draft legislation submitted by MPs, which constitute the vast majority of those registered in the Parliament. This approach significantly reduces the scope of its application. More information on this matter is available here. 

Public administration reform

Strategic framework for public administration 

The European Commission notes that Ukraine has ensured that the strategic framework for public administration reform has been properly defined, however its implementation should be more effective.  The European Commission positively assessed the consistent progress in administrative service delivery, including their digitalization, and recent steps in civil servants’ remuneration system. At the same time, areas such as public service and human resource management, and in the digitalization of internal business processes within public administration, require more attention.

The institutional framework for implementing the reform remains unchanged. The Secretariat of the Cabinet of Ministers (SCMU) played the formal leadership role. At the same time, the European Commission draws attention to the need to strengthen interagency collaboration in terms of digitalization of the civil service, and the role of the Coordination Council in implementing public administration reform, in particular with a more results-oriented approach. The financial sustainability of the reform remains a challenge.

Policy development and coordination

The European Commission notes the insufficient capacity for ensuring evidence-based policy making. The quality of supporting documents, such as proper impact analysis and financial-economic justifications, needs to be improved. This is particularly relevant for the draft laws submitted by MPs, the share of which remains excessively high.  The monitoring of the implementation of policies has also been affected by the war and is not carried out on a systematic basis. 

Public service and human resources management 

The European Commission has highlighted two urgent issues that need to be addressed: the lack of competitive recruitment and selection to the civil service (resulting in non-transparent direct appointments that undermine professionalism, independence from political influence, and stability of the civil service) and high turnover staff rates (resignations). 

At the same time, the European Commission has noted progress in implementing a job classification system with the introduction of an “interim” salary reform. However, this was achieved through specific amendments in the Final Provisions of the Law of Ukraine “On the State Budget of Ukraine for 2024” (limiting incentive bonuses), rather than through the adoption of a specialized law (draft law № 8222 of November 23, 2022, which has not yet been considered in the second reading).

Another issue identified is that the salary system remains based on the concept of “levels of jurisdiction” of institutions, which are divided into three groups with five different basic salary levels without transparent criteria for this division (violating the principle of equal pay for equal work).

Accountability

The European Commission notes that public administration in Ukraine should be made more accountable. No significant redesign of the organizational architecture of public administration occurred. A clearer division of powers is needed between the ministry leadership, in particular the deputy ministers and the state secretary. Currently, the situation remains that deputy ministers manage and coordinate policy areas in the ministries rather than the civil service senior management selected on a competitive basis.

Administrative procedure

The European Commission notes that the Law “On Administrative Procedure” (LAP), which entered into force in December 2023, has unified administrative procedures to further align them with EU practice and to strengthen the right to good administration. It also positively assessed the law adopted in October 2024, which aims to align and harmonize around 200 laws with the LAP and bring existing exemptions back into its scope. 

At the same time, the European Commission indicated that further harmonization is still needed as regards the Tax Code, land relations sector and digital procedures. The report also pointed to the need to adopt a new law on citizen appeals.

Administrative services

In the area of administrative service delivery, the European Commission noted steady progress, driven in particular by the progressive uptake of new digital services. Offline provision of services continued via a large network of local administrative service centers (ASCs)

It is crucial to note the European Commission’s recommendation to further increase the capacity for administrative service provision by adopting the proposed draft law on administrative fees (presumably referring to draft law No. 4380, which was introduced in Parliament four years ago and has been pending for over 15 months since receiving a recommendation from the relevant parliamentary committee).

Chapter 23: Judiciary and fundamental rights

Judicial System

Compared to the previous year, Ukraine’s alignment with EU standards in this area has remained unchanged. The European Commission noted that Ukraine has some level of preparation regarding the functioning of its judicial system (2 out of 5 points). At the same time, the pace of alignment has slowed: while the Commission recognized good progress in 2023 (3 out of 5 points), only some progress was noted in 2024.

Noting partial implementation of the recommendations included in 2023 report, the Commission outlined the following priority actions for the coming year: (1) continue to fill judicial vacancies; (2) set up a new court to hear administrative cases involving national state agencies; (3) continue the qualification evaluation of judges; (4) consider the disciplinary cases against judges with the involvement of the Disciplinary Inspectors Service (which is still being established – ed. CPLR) based on the priority criteria for disciplinary complaints; (5) improve the procedure for verifying judges’ declarations of integrity; (6) adopt and implement a roadmap to modernize IT in the judiciary, as well as further digitizing enforcement proceedings; (7) take effective measures to address corruption risks in the Supreme Court; (8) ensure the uniformity of court practice within all court levels.

The Commission drew special attention to the need to adopt a new strategy for judicial reform, approve the Unified indicators for evaluating the integrity and professional ethics of judges (judicial candidates), strengthen the institutional capacity of the High Council of Justice, the High Qualification Commission of Judges of Ukraine and the Public Integrity Council to effectively and timely perform their tasks, as well as take other measures to effectively improve the independence, impartiality and accountability of the judiciary and restore public trust in it.

Fight against corruption

The European Commission notes positive trends in the area of corruption prevention and the increasing dynamics in the fight against high-level corruption. Overall, the work of specialized anti-corruption institutions, as well as the High Anti-Corruption Court, has been positively assessed. They demonstrate a sufficient level of independence and effectiveness, capable of combating systemic corruption. European experts also highlighted Ukraine’s progress in restoring the declaration for public servants and adopting the framework Law “On Lobbying”.

Among the shortcomings, the European Commission highlighted the following: anti-corruption bodies require prompt and independent forensic examinations; the statute of limitations for criminal liability for corruption offenses should be extended; and the institution of plea bargains with investigators should be improved. The latter requirement can be considered fulfilled: on the same day the European Commission’s report was published, the President of Ukraine signed a law expanding the possibilities for agreements between prosecutors and defendants/suspects in cases involving corruption and corruption-related criminal offenses.

The European Commission expressed concern about the pace of implementation of the State Anti-Corruption Program for 2023-2025 (SAP). The program’s implementation timelines should be more strictly adhered to, and appropriate penalties for continued non-compliance with the SAP must be introduced. At the same time, it was recommended to begin the assessment of the current 2021-2025 State Anti-Corruption Strategy’s effectiveness early and to conduct an inclusive preparatory process for the subsequent strategy and implementation program for 2026-2030. The system for compliance and corruption risk management in public authorities, particularly those involved in procurement processes and market surveillance, also requires further development.

Prosecutor’s Office

The European Commission emphasized the importance of ensuring the procedural independence of prosecutors, particularly by strengthening the prosecutorial community through the establishment of prosecutorial self-governance. The Council of Prosecutors should function on a permanent basis, with financial and organizational independence from the Office of the Prosecutor General and be more involved in personnel decisions. Notably, the recommendation to transfer complaints regarding the decisions of the QDCP to the Council of Prosecutors was unexpected. Regarding the QDCP, the Commission recommended transforming it into a prosecutorial self-governance body (currently, only 5 out of 11 members are prosecutors) and improving the approach to disciplinary procedures.

It is also important to introduce a system of random allocation of cases among prosecutors; complete the attestation of prosecutors; introduce competitive selection for leadership positions; and ensure more transparent, objective and meritocratic, and less prone to politicization selection and dismissal procedures of the Prosecutor General, etc. Most of these recommendations are already being implemented, as they are also outlined in national documents such as the Comprehensive Strategic Plan for the Law Enforcement Reform for 2023-2027 and its Action Plan; the Ukraine Facility Plan; and sectoral strategies.

Overall, the European Commission’s recommendations have become more specific and comprehensive, introducing new requirements for ongoing processes, such as the pilot evaluation system for prosecutors and the e-case management system for pre-trial criminal investigations SMEREKA.

Chapter 24: Justice, freedom and security

This section “Justice, Freedom and Security” is extensive in scope, covering various aspects such as: the institutional capacity of law enforcement agencies to counter criminal offenses in the areas of cybercrime, drug crime, organized crime, illegal arms trafficking, money laundering, etc. This also includes the issues of migration, asylum, and border control. Cooperation with European law enforcement agencies, information exchange, Europol, European Public Prosecutor’s Office. Finally, it encompasses legal assistance and cooperation in both criminal and civil proceedings. 

A key recommendation is to continue advancing the implementation of the measures set out in the Comprehensive Strategic Plan for the Reform of Law Enforcement Agencies for 2023-2027, along with its Action Plan.

The European Commission also stresses the importance of implementing transparent, merit-based recruitment and selection procedures for managerial positions in central and regional offices of the National Police and the State Bureau of Investigation, with meaningful involvement of independent experts. Furthermore, it calls for strengthening anti-corruption initiatives and enhancing disciplinary accountability procedures within these institutions.

Conclusion

The European Commission’s second report on Ukraine under the Enlargement Package provides a more detailed analysis of the reforms in Ukraine and an assessment of the actual progress made over the past year. While the lack of progress in certain areas presents a challenge, it is also expected, given that the first report covered the broader context of Ukraine’s European integration since 2014. It is essential for Ukraine to continue advancing reforms, as the updated EU enlargement methodology includes measures to address any regression. Future reports, particularly those following the screening of the fundamental cluster, are expected to provide significantly more detailed assessments, as will all the subsequent reports on Ukraine.

Wood and Firewood: Some Flaws in the Implementation of EU Law

Event

On October 10, the Law “On amendments to the Criminal Code of Ukraine and the Code of Ukraine on Administrative Offenses regarding the improvement of responsibility for offenses in the area of forestry and combating illegal timber trafficking” was adopted. On October 15, it was sent to the President for signature.

The Law:

1) clarifies the title and certain provisions of Article 245 of the Criminal Code of Ukraine (CC) “Destruction or damage to flora by dangerous means”. In particular, it defines a qualified elements of destruction or damage to forests, green plantings, stubble, meadows, pastures, etc., by dangerous means if these actions occur on lands within protected natural reserve territories or objects, or cause mass animal deaths or other severe consequences, or are committed under martial law or the state of emergency. It also clarifies the concept of significant harm and mass animal deaths.

2) amends Article 246 of the Criminal Code “Illegal felling, damage, or destruction of trees or shrubs” including establishing criminal responsibility for illegal felling of any trees or shrubs, and strengthens penalties for felling, damage, or destruction of trees or shrubs in parks or squares.

3) supplements the Criminal Code with the new Article 246-1, which establishes liability for the transportation, storage, or sale of trees, shrubs, or timber in significant amounts without documents proving their legal origin, or with forged documents. In this case the “significant amount” refers to timber exceeding UAH 30,280, and a “large amount” (an aggravating circumstance) refers to timber exceeding UAH 90,840.

4) supplements the Code of Administrative Offenses (CAO) with the new Article 65-2, which establishes liability for the transportation, storage, or sale of trees, shrubs, or timber without documents proving their legal origin, or with forged documents.

CPLR’s assessment 

In the explanatory note to the draft Law (№ 9665 of September 1, 2023), the authors refer to the Regulation of the European Parliament and Council “On laying down the obligations of operators who place timber and timber products on the market” of October 20, 2010, № 995/2010. This regulation establishes export requirements for timber and defines the obligations for operators placing timber and timber products on the market. It specifically concerns the timber market, not household use. Article 3 of Directive (EU) 2024/1203 of the European Parliament and Council of April 11, 2024, on the protection of the environment through criminal law, outlines a broad range of activities that member states must criminalize. However, it does not cover the illegal transportation, storage, or sale of trees, shrubs, or timber, nor violations of Regulation № 995/2010.

A recent journalistic investigation regarding timber prices indicates that based on the provisions of the Code on Administrative Offenses and the Criminal Code, hundreds of thousands of rural and small-town residents could potentially face administrative and criminal liability for actions like purchasing firewood for winter, cutting down trees on their private property, or collecting firewood in the forest for storage. This approach contradicts the principle of legal predictability and legal certainty. Furthermore, the law effectively equates timber and shrubs with items prohibited from circulation, such as narcotics or psychotropic substances.

The current Article 246 of the Criminal Code addresses illegal logging, as well as the unauthorized transportation, storage, or sale of trees and shrubs within forests and forest plantations. To ensure clarity, it seems essential to specify the origin of trees and shrubs in Article 246, particularly noting forests, protective areas, and other designated forest plantations. In Articles 246 and 246-1 of the Criminal Code, it would also be advisable to significantly raise the thresholds that define “significant” and “large” quantities. Additionally, Article 246-1 should exclude provisions that criminalize the transportation and storage of timber, focusing liability solely on its sale, potentially limited to high-value species (as outlined in Article 201-1 of the Criminal Code).

Overall, the adoption of this law appears rushed; it lacks alignment with Ukraine’s international obligations and does not adequately consider the social and economic realities facing the population.