The necessity to adopt the law on lobbying is mentioned in the Ukraine 2023 Report by the European Commission and the measures needed to implement the State Anti-Corruption Program. However, the draft law “On Fair Lobbying and Advocacy in Ukraine” (hereinafter—draft law) and the accompanying draft of amendments to the Code of Ukraine on Administrative Offenses (hereinafter—the Code of Administrative Offenses), which were developed by the National Agency for Corruption Prevention (hereinafter—NACP), are problematic for such reasons:

  1. Non-inclusive process of development. Civil society and the expert environment were given only three days to familiarize themselves with the provisions of the project, and no more than two weeks to develop proposals. Such frank haste does not promote proper interaction and trust, and the process of development and discussion itself becomes purely formal—it cannot be called inclusive. At the same time, the report of the European Commission regarding Ukraine stipulates that in order to strengthen mutual trust and reach a consensus on the best approach to the legal regulation of lobbying, it is necessary to continue an open discussion with the involvement of all stakeholders, primarily representatives of civil society.
  2. Non-compliance with international standards. Recommendation of the Committee of Ministers to member States on the legal regulation of lobbying activities in the context of public decision making (22 March 2017, №CM/Rec(2017)2) emphasizes that legal regulation of lobbying should not, in any form or manner whatsoever, infringe the democratic right of individuals to express their opinions and petition public officials, bodies and institutions, whether individually or collectively; campaign for political change and change in legislation, policy or practice within the framework of legitimate political activities, individually or collectively. 

PACE Committee on Economic Affairs and Development prepared the Report “Lobbying in a democratic society (European Code of conduct on lobbying)” (Doc. 11937, 5 June 2009). One of its six principles provides that lobbying should be very clearly defined, differentiating between lobbying as professionally compensated activity and the activities of the organisations of civil society. 

The Report of the European Commission also states that it is important that regulatory acts on lobbying do not hinder the legitimate activities of civil society and do not impose a disproportionate administrative burden on such organizations.

  1. Restrictions on freedom of expression, freedom of association and the right to participate in the management of state affairs. If the provisions of the draft law are interpreted systematically, then advocacy covers an extremely wide sphere of social relations. Its subject can be recognized as any active citizen seeking social and political changes, a scientist who, preparing research, proposes changes to legislation, or a public association that advocates for the improvement of legal regulation in a certain area. Accordingly, the draft law imposes burdensome requirements on advocacy subjects, particularly inclusion in a special register, submission of regular changes to it, and reporting on each subject of advocacy (although NGOs already submit an annual tax report with all necessary financial information). This can significantly narrow the competition of views, nihilize a significant part of civil society and lead to the collapse of participatory democracy in the country. In addition, the liability provided for advocacy subjects in addition to the above is a measure not determined by a legitimate goal, and its application disproportionately limits freedom of expression, freedom of association, and the right to participate in the management of state affairs.
  2. Violation of legal certainty requirements. The draft law provides for a joint register of lobbyists and advocacy subjects (Articles 8, 9), the same methods of influence (Article 4), exclusions from the scope of the law (Article 3), restrictions (Article 5), reports on financial indicators (Part 5 of Article 15), and the controlling entity (Article 16). Moreover, the draft amendments to the Code of Administrative Offenses establish the same sanctions (Articles 172-9-3, 172-9-4) for them. All this can lead to the perception of registered advocacy entities as lobbyists by citizens of Ukraine and its foreign partners. 

Some provisions of the draft law are internally contradictory or insufficiently defined. For example, advocacy methods are defined as actions that are taken with the aim of influencing the object of influence during the development and/or adoption (issuance) or cancellation of a normative legal act. At the same time, it is not clear how to set such an aim. In a broad interpretation, this will lead to the fact that all national and foreign conferences, forums, round tables, student scientific circles, dissertation defences, etc. could become methods of advocation.

  1. Lack of incentives for deshadowing of lobbying subjects in Ukraine. In addition to the burden of registration procedures, regular reporting, and the possibility of imposing sanctions, the draft law does not provide adequate incentives for the deshadowing of lobbying activities. The rights listed in Article 12 of the draft law are abstract, refer to other legislation and do not offer significant new opportunities. This can have the opposite effect, e.g. the demotivation of lobbying subjects to register.
  2. Recommendations. To develop effective legal regulation in the sphere of lobbying, it is necessary to do the following: 
  • create the parliamentary working group involving representatives of the expert environment and the European Commission;
  • before registering the draft law developed by the working group, it must be agreed with the stakeholders.