In spring 2024, Ukraine adopted a Law On Lobbying. CSOs had warned that some of its vague provisions could endanger their activities, due to an insufficient differentiation between lobbying and citizen participation.
The law has been followed by the Rules of Ethical Conduct for Lobbying Entities, approved by the government on 1 October 2024. The document is one of important steps towards enhancing the transparency and accountability of lobbying activities in Ukraine. The Rules are designed to comply with the requirements of the Law On Lobbying, which is intended to regulate the relationship between lobbyists and government agencies, as well as to ensure control over the influence of private interests on political decision-making.
However, the question arises: Do these Rules meet legal requirements, and can they ensure an adequate level of prevention against corrupt practices? The purpose of this legal analysis is to examine whether the adopted Rules comply with legal requirements and identify their strengths and weaknesses.
The Draft Rules were developed by the National Agency for Corruption Prevention and approved by the Cabinet of Ministers of Ukraine by Article 6 of the Law of Ukraine On Lobbying. The Law was enacted on 14 March 2024 as part of a broader campaign to reform state institutions and introduce effective mechanisms to prevent corruption, and will be in force by January 1, 2025. The Rules were drafted with the involvement of civil society, international experts, and government organisations to create clear and transparent standards for lobbying entities. The adoption of these Rules is an important signal of Ukraine's readiness to implement international standards in the field of lobbying. The Rules were approved after several rounds of discussions and consultations with key stakeholders. They are designed to increase confidence in the lobbying process by creating a legal framework for the activities of actors that influence decision-making in the legislative and executive branches of government.
Key areas of regulation:
- Transparency and accountability of lobbying entities. One of the key aspects of the Law is to ensure transparency and accountability of lobbying entities. According to the adopted Rules, lobbyists are obliged to openly declare their activities, disclose the clients they represent, and regularly report on their actions and expenses related to lobbying activities. This is an important step towards increasing transparency, as it allows the public to access information on who influences political decision-making and for what purpose. However, the Rules currently provide only general requirements. This may lead to shortcomings in monitoring and reduce the level of trust in the system.
- Conflicts of interest and their management. The adopted Rules provide for the obligation of lobbying entities to identify conflicts of interest and avoid situations that may call into question their independence and objectivity. It is important to prevent private interests from influencing government decisions. However, the Rules lack a clear procedure for resolving conflicts of interest, which may create risks for lobbyists and public authorities. Mechanisms to address these issues must be developed and implemented so that lobbying entities can manage them effectively.
- Prohibition of corrupt practices. One of the key principles of the Rules is the prohibition of corrupt practices, such as bribery, giving gifts, or other attempts to influence government decisions by unethical means. The Rules clearly state that lobbying entities are not allowed to use any form of influence that contradicts the principles of integrity. This provision is important in the context of the fight against corruption, which remains a serious problem in Ukraine. The prohibition of corrupt practices in lobbying is a prerequisite for building a fair and transparent system of influence on political processes.
However, the Rules do not sufficiently provide for mechanisms to monitor compliance with ethical standards and the requirements of the Law. The absence of a monitoring system may result in violations going unnoticed or not being properly addressed. The Rules do not contain a clear procedure for resolving conflicts of interest. The absence of such mechanisms may create situations where lobbyists would not be able to adequately resolve conflicts, which may lead to violations of the Law. Further, the Rules do not sufficiently specify the measures of liability for violation of ethical standards. The absence of clearly defined sanctions may reduce the effectiveness of the Rules and their impact on lobbyists' behaviour.
On the positive side:
The Rules provide for an appropriate level of transparency, which contributes to the increase of trust in lobbying entities, and the prohibition of corrupt practices is an important step in ensuring fair lobbying activities that comply with the requirements of the Law.
The adopted Rules are an important step towards a transparent and accountable lobbying system in Ukraine. However, for their effective implementation, it is necessary to:
- Improve the mechanisms of monitoring and control over the implementation of ethical standards;
- Develop and incorporate into the Rules a clear procedure for resolving conflicts of interest, which will allow timely resolution of problematic situations and prevention of violations; and
- Detail the possible liability for violation of ethical standards in case of gross or systematic violations and ensure the launch of the Transparency Register.
This will ensure an appropriate level of accountability and prevent abuse.
These regulations do not pose a threat to CSOs, but it should be noted that ECNL previously analysed the lobbying legislation and provided comments on possible negative consequences for CSOs in Ukraine. While the decree does not affect the civil society environment negatively in itself, there is a concern that it could be misused by certain parties to weaken ethical standards in lobbying. Should this occur, it could pose considerable reputational risks to the sector.