Civil society fears the newly adopted draft law might harm advocacy efforts for policy changes, in a manner similar to the effects of foreign agent laws. The Draft Law of Ukraine No. 10337 On Integrity in Lobbying was adopted in the second reading on February 23 and signed by the President on March 12. The proposed document aims to regulate all activities related to policy changes, including lobbying, with some exceptions for activities governed by public consultation and appeals regulations.
CSOs warn that vague language could have harmful effects
A year ago, the European Council approved 7 requirements for Ukraine to start negotiations on membership status. Initially, there was no requirement for Ukraine to adopt a Law on Lobbying. At the end of 2023, the European Commission approved a Report on EU Enlargement, listing several laws which would be good for Ukraine to pass, including a Law on Lobbying. While we cannot claim this law was a direct requirement of the European Commission, it is an argument frequently used by the government to justify the law. The original version of the draft law was elaborated by the National Agency on Corruption Prevention and covered both professional lobbying and advocacy. As a result of a civil society campaign, both the EU and the drafters were convinced of the need to focus on lobbying and exclude advocacy from the scope of the draft law.
Still, the Draft Law No. 10337 contains several provisions that would have a negative impact on civil society and harm the activities of the civic sector in Ukraine, including:
- The definitions of lobbying and relevant methods do not provide the legal certainty to distinguish between what is considered to be lobbyists' commercial activities and citizens' participation in the decision-making process.
- The main threat to freedom of association, and access to funding, in addition to public participation is the definition of the term commercial interest. If the CSO's activity has a commercial interest, then this is considered lobbying. Commercial interest is defined as obtaining a benefit from economic activity. Therefore, if youth CSOs participate in a conference on the procedure for conducting a competition for state grants, this is a benefit from economic activity and can be seen as lobbying. Economic activity is a key source of funding for CSOs, and they should be supported to freely engage in any legal economic, business, or commercial activity to support their non-commercial activities.
- The Draft Law envisages registration, reporting procedures, and fines for potential violations of the regulations. Article 3. Scope of the Law lists activities that are not defined as lobbying in accordance with this Law, such as:
- representation of foreign policy interests by bodies of the diplomatic service;
- people's initiative in the all-Ukrainian referendum and initiative in local referendums;
- activities of entities in the field of media and electronic communications;
- activities of political parties and local organizations of political parties,
- activities of associations of local self-government bodies;
- scientific and scientific and technical activity; etc.
Since a significant part of CSOs activities can be perceived as lobbying, there is a fear of sanctions for what can be interpreted as “illegal” lobbying activities, and CSOs can be forced to register as lobbyists. - Excessive concentration of powers in institutions to adopt ethical norms, interpret them, and apply sanctions creates the basis for arbitrary restrictions on CSOs in public policy making. CSOs consider the law as a potential threat to communication between CSOs and authorities, due to overly complex procedures that the Code of Ethics may create. CSOs are subject to the Law on Lobbying for all issues where CSOs interact with the authorities and there is “commercial interest” of these CSOs, and only some types of activities of CSOs and some issues are exempted.
Revisions of the law
The version submitted by the Cabinet of Ministers was afterwards significantly improved by the Parliament:
- the regulation of advocacy activities of CSOs was excluded from the draft law; and
- the number of cases and issues that are not considered lobbying was extended.
However, the main disadvantage of the law remained the same, which is the lack of provisions that will provide incentives and motivation for unofficial lobbyists to register in the Register and carry out their work officially as recognised lobbyists. The law does not present new tools for interaction between lobbyists and authorities. Therefore, the law may not have the desired effect of fighting corruption.
Civil society unified efforts to advocate to amend the law
In partnership with other CSO representatives, the experts from Ukrainian Center for Independent Political Research (UCIPR) prepared amendments regarding the exclusion of CSOs from the scope of this law. Yet, they were only partially taken into account by the government and the Members of Parliament. This has not changed the problematic narrative, which allows authorities to consider any active citizen and CSO as lobbyists, and demand accountability for every meeting, call, press conference and other activities that could be perceived as lobbying. Rather than allowing citizens to control the government, the law thus enables the government to control the citizens and punish them for their activity. Therefore, the current version of the Draft Law still poses certain risks to Ukraine's civil society sector.
Effect on civil society
Civil society experts prepared a statement that the Law on Lobbying should not apply to the exercise and protection of the rights and freedoms guaranteed by the Constitution and laws of Ukraine, and to the activities of non-profit organisations. The statement was supported by more than 260 CSOs. When the Draft Law was adopted in the first reading, the experts published a new joint statement supported by 77 civic organisations.
Moreover, a Draft Law No. 10373 on Administrative Liability for Violating Lobbying Legislation was registered in Parliament on December 25. On February 22, 2024, the Committee on Law Enforcement recommended adopting this Draft Law in general. The Draft Law envisages monetary sanctions for violating lobbying legislation.
Previously, the European Center for Not-for-Profit Law analysed the Draft Laws on Lobbying and provided their observations of possible adverse effects on CSOs. The document was elaborated on a request from ISAR Ednannia.