Harmonisation of EU and Ukrainian legislation: a few key facts that you(th) should know

Author: Oleksandra Verheles, Ukrainian YEA

The harmonisation of law is a procedure by which Ukraine implements the EU acquis (the body of common rights and obligations that is binding on all the EU member states) into its own legal system. This is a complex task that requires careful planning, skills, knowledge, finance, and the diligent drafting of regulations. 

Initially, the obligation to approximate national legislation was set out mainly by the Association Agreement signed by Ukraine and the European Union in 2014, with the requirement for an extensive harmonisation of laws, norms and regulations in various trade-related sectors as part of the Deep and Comprehensive Free Trade Area (DCFTA). Since Ukraine has received candidate status in 2022 – there is now an obligation to gradually implement the entire body of EU law across 35 policy areas, ranging from areas like the free movement of persons and goods, to external relations, the environment and consumer protection.

The European Union is a unique international organisation (in legalese it’s called sui generis or a unique legal phenomenon), that is usually considered as a political and economical entity with its own system of law. Ukrainian authorities, while approximating national legislation to the EU acquis, have to take into account the origin, goals and objectives of each particular EU legal act, as a necessary prerequisite for understanding the significance of its specific provisions.

What does the EU acquis include?

EU law has many sources. These include the Treaty on European Union, the Treaty on the Functioning of the European Union and the Euratom Treaty, other international treaties concluded by the EU with third countries and international organisations (for instance, the Association Agreement with Ukraine is also a source of EU acquis), secondary law, soft law (of a more recommendational than binding nature), general principles of EU law, and the case law of the Court of Justice of the European Union.

However, the majority of legislation adopted at the EU level is the secondary law. It includes regulations, directives, and decisions.

The judgments of the Court of Justice of the European Union (not to be mistaken with the European Court of Human Rights, which is a court of the Council of Europe) are of great importance as a source of EU law. The Court’s judgments are not only binding on the parties of the particular case. Although officially they do not have the status of precedents, de facto they do, and national courts of EU member states follow them.

The multilingual nature of EU law

The peculiarity of the EU legal system is its multilingualism. There are 24 official languages of the EU, thus all legal acts, as well as judgments of the Court of Justice of the European Union, are published in all official languages and they are equally authentic. This officially means that there should be no differences between different legal acts or court decisions. Unfortunately, this is not always the case, and there are several reasons for this.

1. Legalese (the legal language used by lawyers) is different due to the peculiarities of the national legal systems. French and German legislators are traditionally known for their precision in drafting legal acts, but this may not be the same for other EU member states.

2. EU law sometimes uses terms that are not known in all legal systems of EU Member States.

3. EU acquis, like national legislation, is often the result of a political compromise reached at the last stage of the legislative process. Unfortunately, this often leads to lower standards of lawmaking. It means the use of ambiguous terms, the misuse of preambles to regulations and directives, or the adoption of non-binding provisions. In the end, this can lead to differences between different language versions of approved legal acts.

4. Some inconsistencies may arise due to ordinary human errors made both at the stage of drafting the text of the act and at the stage of its translation.

All the mentioned reasons influence the process of legal harmonisation, as well as the translation of the EU acquis into the Ukrainian language. Although it is easier to use only one language version of an EU regulation or directive, a comparative analysis of the EU legal act delivered in different languages is highly recommended, at least in the English, French and German versions.

How the EU acquis is implemented in Ukraine

Under the Association Agreement, there were some harmonisation deadlines for each EU legal act mentioned. The deadlines set out in the Agreement served as a guideline for Ukrainian authorities in terms of implementation of the relevant EU acquis.

But the approximation of Ukrainian legislation is no longer limited to the implementation of EU legal acts explicitly mentioned in the Agreement or other documents adopted on its basis. Firstly, approximation is also required by, for instance, the Energy Community Treaty, which aims at the development of the entire energy sector in line with EU standards. Secondly, we now need to implement the entire EU acquis in Ukraine due to candidacy status.

Ukrainian legislative technique

Draft legal acts that approximate domestic legislation to the EU acquis should be developed in accordance with national rules for drafting legal acts in terms of structure, wording, and adoption.

Direct copying is generally not recommended, as this can lead to the adoption of national legislation that will not be effective de facto. However, as a result of Ukraine obtaining EU candidate status, direct copying may be allowed, if it’s necessary, appropriate and if such a legal act will have the effect of achieving faster and better assimilation into the EU legal order.

One of the most important procedural challenges in legislative approximation is the verification of compliance, for example, whether a Ukrainian legal act is in line with EU regulations or directives. This is a laborious task that needs to be performed at all stages of lawmaking. The best option is to conduct the first gap assessment at the planning stage of legislative harmonisation.

When conducting compliance checks, authorities need to keep in mind that there should be so-called dynamic harmonisation. The reason is that EU legislation, like any other legal system, is evolving quite rapidly, with hundreds of new legislative acts being adopted in the EU every year.

The golden rule

Drafters of legal acts in Ukraine following the rule that a properly drafted legal act that should be in compliance with EU law always have to answer (at least partially) the following questions:

Who – to whom is the legal act addressed (which group of individuals/legal entities or institutions, etc.)?

What – what should or can the addressee of the legal act do?

When – the addressee must (or may) do something?

How – the addressee should/is authorised to act?

Conclusion

Ukraine’s rapid legislative harmonisation with EU law is something that all countries planning to become EU members are obliged to do. However, the harmonisation with the EU acquis in Ukraine is not only done due to the obligations put on our state.

For instance, the Ukrainian courts have started actively using the case law of the Court of Justice of the European Union as a source of argumentation in their own decisions, even though there is no such direct obligation. The Supreme Court (the highest court of general jurisdiction in Ukraine) has started to publish a periodical review of the Court of Justice of the European Union decisions.

The activism and the will of national authorities and especially the public sector, which lobby for relevant changes, is a major driving force too.

This should be kept in mind by all the relevant stakeholders and by other states that wish to become part of the EU in the future.