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On the basis of the analyses already carried out by the State Department for Legal Approximation, the Review on the Progress Achieved in Approximation of Ukrainian legislation to the acquis communautaire ( Ogljad) was prepared. SDLA experts, scientists and experts from the executive government took part in the preparation of this publication. The UEPLAC believes that review was carried out on a very professional manner.
An updated review is now being prepared which will take into account the developments of 2006. UEPLAC is expected to take part in updating the document.
Each sphere analysed in the Review is divided into sections with a similar descriptive structure. Each section begins with a list of the acquis communautaire acts and legal acts of Ukraine. Chapter “ A” defines the degree of incorporation of acquis communautaire norms into Ukrainian national legislation. Chapter “ B” defines the central executive bodies responsible for approximation of the Ukrainian legislation to that of the EU. The analysis of the degree of approximation of the Ukrainian legislation to the acquis communautaire is presented in Chapter “ C”. Chapter “ D” contains the analysis of the present state of approximation (problems and achievements) as well as perspectives.
Legal review was undertaken in two major fields: Chapter A concentrated on the level of incorporation of the acquis communitaire into Ukrainian national legislation while Chapter C covers the level of adaptation of national law to the acquis. This approach may be beneficial in the event that several pieces of national legislation are used to implement various provisions of a single piece of EU legislation. Certain candidate countries use double concordance tables because of this trend. Existing Member States apply simpler concordance formats as directed by the Secretariat-General of the European Commission.
The review is based on a method of comparing the positive provisions consolidated in binding secondary legal acts of the EU and Ukrainian legal acts. The Review does not contain a comprehensive analysis of inconsistencies or ways to eliminate them. This approach was taken on the grounds of expediency. In the process of legal adaptation, special account should be taken of the economic, social and political effects of possible implementation of approximated legislation in Ukraine. Thus, the main objective of the Review is to provide the basis for future action in the field of adaptation and possibilities for prioritisation in the future.
It should be noted that one of the main components of effective approximation of legislation is ensuring the independent administrative ability to implement this adapted legislation. The creation of an effective and efficient judicial system is also key. These requirements regard all priority spheres of approximation.
As previously stated, legal approximation is a process which goes beyond the exercise of drafting a law. Even the European Commission has noted that the most important aspect of legal approximation is the effective implementation of approximated legislation. Exactly this approach was applied in the White Paper on the Preparation of the Associated Countries of Central And Eastern Europe for Integration into the Internal Market of the Union * , in which important sections were dedicated to the organisational and administrative context in which the legislation must operate.
Progress monitoring reports, prepared by the SDLA, focus solely on legal measures. This trend may be explained by the need to improve the method of disseminating information amongst the executive branches of government.
Despite the highly qualified line institution staff involved in the process of legal approximation, as noted by the SDLA, some normative acts adopted by the administrative bodies escape the scrutiny of the SDLA even where their purpose is to implement laws which fall within the scope of the mandatory compliance assessment by the SDLA.
The use of concordance tables (or correlation tables) is made mandatory by the Temporary Rules of Procedure of CMU and, to the best of our knowledge, is being applied.
According to the SDLA, the changes to the Provisional Rules of Procedure of the Cabinet of Ministers of Ukraine foresee the implementation of an effective mechanism of review of draft acts in light of their conformity with the acquis communautaire.
So, according to the Provisional Rules of Procedure of the Cabinet of Ministers of Ukraine, the main drafter while elaborating a draft legal act that is a subject to examination with consideration of the acquis communautaire, shall:
- define the sphere of legal regulation to which a draft legal act belongs;
- determine the acquis sources, regulating legal relations in the relevant sphere;
- determine provisions of the acquis communautaire to be considered in the draft legal act;
- ensure consideration of appropriate acquis provisions in the draft legal act;
- In case of non consideration of the appropriate acquis communautaire provisions provide the grounds for such un-incorporation and provide for a time frame of its validity.
The elaborated draft legal act, accompanied by a reference letter on its compliance with the acquis communautaire, shall be submitted by the main drafter to the Ministry of Justice for expert examination . This compliance letter is to bedrawn up in accordance with the model given in Annex 11 to the Provisional Rules of Procedure. The Ministry of Justice prepares an expert opinion as to the compliance of the draft legal act with the acquis communautaire inaccordance with the model set out in Annex 12 to the Provisional Rules of Procedure.
Where the expert opinion delivered by the Ministry of Justice attests to the nonconformity of the draft legal act with the acquis communautaire, the latter shall be submitted for consideration to a meeting of the Cabinet of Ministers of Ukraine provided its prior examination by the Vice-Prime-Minister who has in his/her competence the sphere of European integration. With a view to regulate this process of examination an appropriate Order was adopted in the Ministry of Justice.
According to this Order, draft laws (or other legal acts falling within the priority spheres of legal approximation of Ukrainian legislation, defined in Chapter V of the Programme) are submitted to both the Ministry of Justice and the State Department for Legal Approximation for expert examination as to their conformity with the acquis communautaire.
Furthermore, the heads of structural units of the Ministry of Justice bear personal responsibility for determining whether a draft acts belongs to a priority sphere of legislation approximation and must return a draft legal act to the main drafter if:
- the submitted information on belonging to the priority spheres of legislation approximation appeared to be inaccurate;
- the main drafter failed to attach the reference letter on the draft legal act’s conformity with the acquis communautaire;
- The main drafter did not observe the criteria of the Cabinet of Ministers’ Provisional Rules of Procedure as to the form and content of the reference letter on conformity with the acquis communautaire.
In light of these provisions, expert reports are carried out on proposed Ukrainian laws which, in the opinion of the Verkhovna Rada Committee on European Integration Issues, affect integration issues, in accordance with the regulations of the National Program on Legislation Approximation of Draft Legal Acts of Ukraine.
According to the data provided in the most recent SDLA report (Dopovid), as of 1 November 2006, the Ministry of Justice has given 236 expert opinions as to compatibility of draft laws and other normative and legal acts of Ukraine to acquis communautaire. These draft acts were submitted to the Ministry of Justice by the Verkhovna Rada Committee on European Integration Issues as well as central executive bodies.
Among 192 opinions issued on the draft laws delivered by the central organs of the executive power:
159 opinions stated that the draft law conformed to the acquis communautaire;
27 opinions found that although the draft did not contradict the acquis communautaire, recommendations were provided for further improvement; and
6 conclusions as to the non-conformity of draft acts to acquis communautaire and corresponding recommendations;
Among 44 expert opinions on the drafts delivered by the Committee on the European Integration Issues:
23 opinions stated the conformity of drafts with the acquis communautaire;
13 opinions determined that the draft did not contradict the acquis, but provided recommendations on further improvement; and
8 opinions attesting to the non-conformity of drafts to the acquis communautaire and corresponding recommendations.
The 2006 Plan of Measures stipulates the implementation of 68 measures, which include the elaboration of 11 draft laws and the drafting of 18 laws, 5 pieces of secondary legislation, 33 departmental acts, and 1 national strategy in the Parliament.
As of today, of the above-mentioned measures only 11 can be considered practically implemented, namely: 2 laws of Ukraine:
- Law №227- V on customs procedures harmonization, of 5 October 2006;
- Law № 57-V on international truck transit, of 1 August 2006;
- 2 resolutions of the Cabinet of Ministers of Ukraine:
- Resolution №206 regarding Kyoto protocol, of 22 February 2006;
- Resolution №554 regarding Montreal protocol, of 21 April 2006.
- 6 departmental normative legal acts.
COM(95) 163 final of 10 May 1995.
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