Ukraine intends to legalize lobbying. In addition to the fact that the adoption of the relevant law is one of the conditions for our country’s accession to the European Union, the definition of clear rules for lobbying activities should, in theory, contribute to the fight against political corruption.
For the benefit of yourself and the state
President of Ukraine Vladimir Zelensky signed the law “On integrity lobbying” adopted by the Verkhovna Rada. The adoption of this document was one of the obligations that our country assumed in connection with preparations for negotiations on accession to the European Union. Therefore, its adoption brings Ukraine one step closer to integration into the European community.
In addition, there has long been a need to legislatively regulate the issue of who and how can influence the authorities to adopt certain laws. The European Union also made such a recommendation, believing that legislative regulation of lobbying will reduce the influence of oligarchs on state policy and limit political corruption.
Similar laws exist in many countries. The United States of America was the first to come to the conclusion that the activities of lobbyists should be legally regulated. There, the corresponding law was adopted back in 1946. In Germany, lobbying was legalized in 1972. Subsequently, other countries followed the same path.
“Since the beginning of the 21st century, the process of regulating lobbying has gained momentum throughout Europe,” Andrey Podgainy, partner at the Arzinger law firm, tells Apostrophe. — Over the past ten years, relevant laws have been adopted in Ireland, France, Lithuania, the Netherlands, Austria, Poland, Slovenia, and Great Britain. That is, Ukraine, so to speak, is in a trend. And in countries where there is no special regulation, we observe a self-regulatory organization of lobbyists’ activities, that is, activities within the framework of membership in non-profit organizations that determine policy, ethical issues, and the responsibility of lobbyists.”
First of all, the law defines the very concept of lobbying and the scope of its application.
“The adopted law classifies lobbying as activity that is carried out in one’s own commercial interests or the interests of others with the aim of influencing government authorities to adopt or refrain from adopting, amending or repealing laws or regulations,” says Andrei Podgainy. “If at least one of the listed signs is absent, for example, there is no commercial interest, or the influence does not relate to a regulatory act, then such activity will not be considered lobbying.”
That is, according to the law, lobbying is actually one of the types of business. Individuals or enterprises interested in promoting certain legislative decisions can enter into an agreement with a specialized organization, which, for a fee, will take on the associated hassle.
The law distinguishes three main aspects of the lobbying process:
- beneficiaries - persons who order lobbying services for legal acts and intend to receive a certain benefit for themselves if they are adopted; such beneficiaries can be private individuals, legal entities, and even foreign states;
- lobbying subjects - persons or enterprises that lobby in the interests of the beneficiary on a commercial basis, receiving profit for it, in fact, they are called lobbyists;
- objects of lobbying - representatives or government bodies whom lobbyists try to persuade to make the decisions they need.
What is important is what range of issues and which government bodies are allowed to lobby. Legislators in different countries approach this issue differently. Ours decided to limit the subjects of lobbying to a fairly narrow framework.
“Each country has its own specifics in determining the possibilities of influencing the authorities,” explains Andrei Podgainy. — For example, in the USA, lobbyists are actively involved in political activities, including elections. Our law excludes such a possibility; I limit myself only to the commercial—economic, so to speak, interests of the beneficiaries. Also in Ukraine there cannot be lobbying in the interests of religious organizations.”
It should be noted that the law limits not only the range of issues that lobbyists can promote, but also the circle of persons whom they have the right to influence.
“The peculiarity of our law, in comparison with those that operate in many other countries, is that lobbying is limited only to the influence on persons engaged in law-making activities,” Alexander Leshchenko, partner of the law firm Leshchenko, Doroshenko and Partners, told Apostrophe. - In fact, these are only people's deputies. Lobbying decisions of the Cabinet of Ministers, other government bodies or courts is not provided for by law.”
Account for every penny
The state intends to strictly control the activities of lobbyists. All persons - legal entities and individuals - who will be involved in this matter will be entered into a special register, the operator of which will be the National Agency for the Prevention of Corruption (NACP). Lobbyists will be required to submit a report on their own activities to the NAPC every six months, in which they indicate all cases of interaction with objects of lobbying, as well as all funds received from beneficiaries for their services.
At the same time, they will receive certain rights that will ensure that they can do their job of promoting laws. Lobbyists will be able to meet with legislators, provide them with materials proving the feasibility of passing the desired legislative act, attend events dedicated to the topic of lobbying, as well as organize their own events and invite legislators there.
“Lobbyists will also have the right to participate in the work of parliamentary committees and speak at these meetings to present and justify the necessary bills,” says Alexander Leshchenko. “And it is very important that they will even be able to offer ready-made texts of bills. In this regard, changes are being made to the law on the rules of the Verkhovna Rada that will make it possible to indicate lobbyists as authors or co-authors of these acts.”
However, not every person who seeks the adoption of a particular regulatory act is a lobbyist. According to the law, only activities aimed at making a profit are considered lobbying. At the same time, in Ukraine there are quite a lot of different kinds of entities that promote certain legislative initiatives, not counting on making a profit, but only guided by their own political convictions or ideas about the public good. And during the development and adoption of the law, they expressed concerns about whether activists would be classified as lobbyists and whether this would become a means of pressure from the state on civil society.
To remove these warnings, the law provides that lobbying is not considered to be the activities of public organizations, political parties, associations of local governments, the media, scientific institutions and a number of other entities that carry out their activities on a non-profit basis. However, it is difficult to say now how unhindered all these entities will be able to carry out their functions. After all, the activities of domestic law enforcement agencies are quite often unpredictable. Most likely, the state and civil society will still have to work to accurately determine the boundary where public activity ends and lobbying begins.
“The whole question is in the practical application of the law, and it is still difficult to predict how the National Agency for the Prevention of Corruption will apply certain norms in conflicting legal relations,” says Andrei Podgainy. “We must proceed from the fact that Ukraine will need several more years to establish consensus in this area, including by amending the law.”
Come out of the darkness
In light of the adoption of the law on lobbying, the opinion of the lobbyists themselves about it is interesting.
At the same time, the ambiguity of the situation lies in the fact that de jure there are no lobbyists in Ukraine, but of course there are people who de facto perform the corresponding functions. By and large, this is a fairly diverse audience, ranging from regional activists to representatives of the largest financial and industrial groups in Ukraine.
As one of these informal “lobbyists”, who wished to remain anonymous, told Apostrophe, many of his colleagues act under the guise of journalists and representatives of public organizations, since this provides them with access to the corridors of power.
The lack of control over the activities of lobbyists has made it completely opaque. “Whole informal schemes are being built through which issues are resolved from one official to another along the entire vertical,” says the publication’s interlocutor.
According to him, for many, the "shadow" nature of lobbying was very convenient, since it allowed almost anyone to lobby for anything.
“This, by the way, was actively used by Russia, which, through its agents of influence, imposed its agenda on Ukraine,” says our source. “So the adoption of a law on lobbying is, among other things, also a matter of national security.”
The big “fixers” who have created entire monopolies in this business are unlikely to be delighted with the adopted law. “But many, especially small lobbyists who find it difficult to overcome this monopoly, on the contrary, welcome the new legislation,” the interlocutor concluded.
On our own behalf, in the end, we note that in Ukraine there are quite a lot of useful and progressive laws, but very often the problem lies in their enforcement. As for the law on lobbying, it is very important that it does not become an instrument of corruption in the hands of the oligarchs, who were significantly impoverished during the war and who, after its end, will definitely want to restore their fortune and influence on the political life of the country.
