Some Innovations of the Law of Ukraine "On Public Consultations"

Ukraine continues to develop and implement initiatives aimed at ensuring transparency of influences on the Government, as well as expanding opportunities for citizens to participate in the development of state policy. On June 20, 2024, the Verkhovna Rada of Ukraine adopted another law aimed at achieving this goal – the Law of Ukraine “On Public Consultations” (signed by the President of Ukraine on October 17, 2024. The law (currently awaiting the President's signature) will take effect 12 months after the end or abolition of martial law.. It is especially interesting to consider the innovation in the context of another recently adopted Law  - «On lobbying».

The scope of the Law

The adopted Law of Ukraine "On Public Consultations" regulates the issue of conducting public consultations by the subjects of such consultations on issues of development, formation and implementation of state policy in the relevant field, solving issues of local importance by preparing drafts of program documents, normative legal acts  (hereinafter - draft acts ) to reconcile public and private interests.

The subjects of such consultations are:

• Member of the Parliament of Ukraine, as well as the Committee of the Verkhovna Rada of Ukraine;

• The Cabinet of Ministers of Ukraine, ministries and other central bodies of executive power, local bodies of executive power;

• authority of the Autonomous Republic of Crimea; 

• local self-government body;

• state collegial body that ensures formation and/or implements state policy; 

• National Bank of Ukraine; 

• another state body during its exercise of authority in accordance with the law; 

• an enterprise, institution, organization, self-regulatory organization during the performance of their statutory powers. 

At the same time, the law provides for a number of issues to which the requirements of this Law do not apply (and, accordingly, public consultations are not foreseen), which include:

• public relations related to: appointment of elections and referenda; introducing a local initiative, holding public hearings, general meetings of citizens; the implementation of measures to ensure the defense capability and national security of Ukraine, in particular, in terms of the introduction of martial law and the announcement of mobilization; ensuring the implementation of foreign policy

• social relations arising in accordance with the Budget Code of Ukraine

• preparation of the draft of the act: of individual action, of an  organizational and administrative nature; on the formation or termination of a state authority, advisory and consultative bodies, local self-government bodies; of the Central Election Commission on organizing the preparation and holding of elections and referenda; relating to international agreements; regarding the provision of humanitarian aid to foreign countries in connection with the elimination of the consequences of a natural disaster; in the field of state regulation of financial services markets; containing directives, instructions and technical tasks for the participation of delegations in events of an international nature

• preparation of draft regulatory acts in accordance with the Law of Ukraine "On the principles of state regulatory policy in the sphere of economic activity"

• preparation of draft acts in terms of provisions containing information with limited access in accordance with the requirements of the laws of Ukraine "On Information", "On Access to Public Information".

Forms and features of conducting public consultations 

Article 9 of the Law provides for three possible forms of public consultations, which can be used simultaneously::

• electronic consultations, which are carried out by publishing a consultation document on an online platform for public consultations and/or on the official website of the subject of public consultations on the subject of consultations; 

• targeted consultations, which are carried out by sending interested parties a consultation document, conducting a survey, questionnaire;

• public discussions, which are carried out by holding public events (meetings in the form of round tables, hearings, conferences, focus groups, meetings, Internet, video conferences).

Only electronic consultations are mandatory for all draft acts. Addressed consultations are conducted in addition to electronic consultations at the decision of the subject of public consultations to clarify the position of interested parties regarding the subject of public consultations, in particular in terms of the impact on the interests of such parties. As for public discussions, this form of public consultation is mandatory in cases where the draft act concerns:

• constitutional rights, freedoms and duties of citizens; 

• interests of territorial communities, exercise of powers of local self-government bodies; 

• introduction of the new regulation in a certain sphere of social relations, in connection with which new rights or obligations arise for the interested parties, benefits are granted or restrictions are established for these parties;

• issues of financing, legal status, provision of benefits or establishment of restrictions for public associations, professional unions or their associations, creative unions or their associations, charitable, religious organizations, associations of local self-government bodies, bodies of self-organization of the population, other non-entrepreneurial societies, business entities, their associations, employers' organizations, their associations, self-regulatory organizations;

• determination of strategic goals, priorities and tasks in the relevant sphere of state policy, in solving issues of local importance, in particular, in projects of state and regional programs of economic, social and cultural development, decisions on their implementation; 

• issues affecting the state of the natural environment, ecological, biological, genetic safety.

The local self-government body conducts a public discussion of the act, if it:

• refers to the delegation of powers of local self-government bodies; 

• provides for the provision of benefits, advantages or the establishment of restrictions for individual business entities;

• refers to the strategic plan for the development of the territorial community and changes to it;

• refers to the symbolism of the territorial community.

The term of holding public consultations is calculated from the date of publication of the consultation document or receipt by the interested party of the subject of public consultations (in the case of address consultations), and is established by the subject of public consultations. At the same time, such a period cannot be less than 15 days, unless otherwise provided by law or international treaties of Ukraine.

The procedure for holding public consultations is laid down in Articles 7 (general procedure for all subjects) and 8 (particulars of public consultations held by Member of the Parliament of Ukraine). At the same time, the law provides for the peculiarities of holding such consultations by MPs both before and after the registration of the draft law.

Separation from lobbying according to the Law of Ukraine "On Lobbying"

It is worth noting that no later than January 1, 2025, another law aimed at regulating relations between society and authorities will come into force- the Law of Ukraine “On lobbying”. Taking into account that the object of lobbying as well as object of public consultations can be a legal act, it is important to clearly distinguish the cases in which one or another law is applied.

The fundamental difference between the regulation established by the two mentioned laws is the purpose of such regulation. Thus, if the Law of Ukraine "On Public Consultations" is aimed at ensuring the access of a wide range of the public to participate in the formation of state policy and the implementation of local self-government, the purpose of adopting the Law of Ukraine "On Lobbying" was to ensure the transparency of commercial influences on the adoption of state decisions. One of the initiatives voiced as part of the preparation of the draft law on lobbying for the second reading was the exclusion from the concept of lobbying of cases when the initiator of the interaction is a state authority, however, such a proposal was not supported in the final version of the law. Considering this, it is not possible to distinguish between public consultations and lobbying based on the initiator of the inquiery.

The object of public consultations is defined more broadly as "a question that arose at the stage of posing a problem, developing, forming or implementing state policy in the relevant area, implementing local self-government (including at the stage of choosing one of the alternative options for solving the problem, preparing the project of the act) regarding which the subject conducting public consultations invites interested parties to submit their proposals during public consultations".

The range of subjects that can conduct public consultations is wider than the range of the objects of lobbying, as it includes not only state and local self-government bodies, but also enterprises, institutions, organizations, and self-regulatory organizations in the course of exercising their statutory powers.

Clause 15 of the second part of Article 3 of the Law of Ukraine "On Lobbying" provides that there is no participation in lobbying in accordance with the legislation of interested parties in public consultations on draft regulatory acts, except when such participation is engaged by the subject of lobbying in accordance with the agreement on providing lobbying services. That is, in many cases, the key feature for distinguishing between public consultations and lobbying will be the subject used, which participates in interaction with the relevant subject of authority.

In the same way as the subject of public consultations, the subject of lobbying cannot be normative legal acts regarding the announcement of general or partial mobilization, the introduction of martial law in Ukraine or in some of its localities, the declaration of a state of war and the conclusion of peace at the request of the President of Ukraine, the use of the Armed Forces of Ukraine and other military formations formed in accordance with the laws of Ukraine. However, other restrictions apply to lobbying and public consultation.

Regarding restrictions on participation in public consultations, the law does not contain restrictions on participation in public consultations, but it does contain restrictions on the content of proposals received and published within the framework of public consultations. On the other hand, the Law of Ukraine "On Lobbying", on the contrary, does not limit the subjects of lobbying in the content of their proposals, but sets clear requirements for who can be the subject of lobbying.

DISCLAIMER: The general information provided in this Newsletter is not legal advice, cannot be cited as legal authority, and cannot replace the advice of a lawyer who has reviewed the facts of your case. The information provided is intended to be accurate as of the date of publication, but please be aware that laws are constantly changing.