Weekly analytics for 6 — 12 September

The Dangerous Trend of Exceptions to the Law on Administrative Procedure

Event

On February 17, 2022, the Law “On Administrative Procedure” (hereinafter – LAP) was adopted. The LAP was signed by the Head of State on June 13, 2022 and is scheduled to enter into force on December 15, 2023.

It should be noted that Ukraine remains the only country in Europe (accept the aggressor state) where the law on general administrative procedure does not apply.

However, as the deadline for the LAP’s the entry into force approached, initiatives began to appear from individual bodies aimed at excluding the area of their competence from the LAP’s coverage. Initially, such initiatives appeared at the government level, as part of the MOJ’s development of a comprehensive draft law on bringing the legislation into line with the LAP. However, the relevant drafts by the State Tax Service and the Antimonopoly Committee were rejected by a special expert Working Group of the Secretariat of the CMU and the MOJ.

Additionally, the Resolution of the Prime Minister of June 20, 2023 was issued, addressed to the heads of ministries and other central executive bodies with the provision to stop the practice of preparing draft laws on non-extension of the LAP to certain areas of state administration.

Despite this, two such dangerous initiatives have already been implemented in practice. In particular, the following documents were adopted in July-August:

І. I. Draft Law “On amendments to the Law of Ukraine “On environmental impact assessment” № 8410 of February 1, 2023. It has already been signed by the President of Ukraine and is currently in effect as Law № 3227-IX. It excludes legal relations in the area of environmental impact assessment from the scope of the LAP.

ІІ. Draft Law “On amendments to certain legislative acts of Ukraine on improving the activities of the Antimonopoly Committee of Ukraine” № 5431 of April 27, 2021. At present, the Law has been submitted to the President for signature. It excludes from the LAP’s coverage all legal relations in the area of economic competition protection, including cases of issuance of permits and opinions regarding concerted actions and concentration of economic entities, which previously were covered under this law.

An important fact is that such amendments were initiated by the central executive bodies (CEB) themselves, but were submitted for the second reading through the MPs. Thus, these actions have been done in defiance of the Prime Minister’s prohibition. Moreover, representatives of the CEBs do not hide the fact that they initiated and support these amendments. 

CPLR’s assessment

Such a trend is extremely dangerous for the implementation of the LAP. If such initiatives continue to be successful, the LAP will apply to a very limited range of legal relations and will not achieve the intended results for which this law was adopted. This undermines the regulatory value of the LAP as a law on general administrative procedure for all (different) sectors of public administration.

There are also risks for financial aid to Ukraine from the Western partners, in particular from the EU, because the LAP implementation is also identified as one of the indicators for such financial support.

But the worst is that citizens and businesses in Ukraine will not have proper rights and protection in their relations with the public administration.

In connection with the above, the CPLR proposes:
– To the Parliament of Ukraine: Amend the Law № 3227-IX of July 13, 2023 to repeal the exclusion of environmental impact assessment area from the LAP’s coverage; and, should the President sign the law in the area of competition (draft law № 5431 of April 27, 2021)
– Also reinstate the LAP’s coverage over cases of issuance of permits and opinions regarding concerted actions and concentration of economic subjects. In other words, the key priority at present is to prevent any additional exceptions from the LAP’s coverage, including by repealing the two “new” exceptions as setting a dangerous precedent.
– To the Cabinet of Ministers of Ukraine: Issue additional reminders to ministries and other CEBs that any initiatives to exclude their areas of competence from the LAP’s coverage are unacceptable (with a warning regarding personal political and/or disciplinary responsibility for such attempts).
– To the international partners: Remind the Cabinet of Ministers of Ukraine and the Verkhovna Rada of Ukraine that disrupting the implementation of general administrative procedure is unacceptable.