How to draft the laws in the EU accession process: to enter the EU timely or not?
Ukraine will have to incorporate approximately 170,000 pages of EU laws, regulations, and directives into its national framework in a very short time. This is a task that has the potential to overwhelm legislative processes and Verkhovna Rada might be the biggest bottleneck in the accession process, particularly because Ukraine needs to transpose not only the directives but also the regulations, which in the EU enter into force bypassing the national parliaments. This is not only because of the complicated and lengthy procedure of adopting the primary laws but also because of post-Soviet tradition in legal technique, where laws are often very detailed. An additional reason is a mistrust of the Members of the Parliament towards the Government and judiciary system to prescribe more details in the secondary legislation or interpretation.
The difference in legal drafting techniques between post-Soviet countries and some EU Member States (where laws are more general, with details left to secondary legislation) reflects legal traditions and approaches to governance. This difference can be attributed to the legal systems and legislative traditions of these regions, and it is often discussed in terms of legal formalism versus legal pragmatism, civil law versus common law traditions, or codification versus delegation.
Post-Soviet countries typically follow a civil law tradition, inherited from the Soviet legal system, which itself was influenced by the German and French civil law systems. In this tradition, laws are often drafted in a highly detailed and prescriptive manner. Post-Soviet detailed laws reflect a formalistic approach, while the general framework approach reflects a pragmatic, flexible style nowadays used also in some civil law countries (e.g.Germany). The EU acquis with the needed transposition of directives and direct enforcement of regulations is pushing the Member States to align the legal technique with common law tradition, at least in the areas where the directives exist. Areas, where no acquis exist (tax law, administrative law, etc.) in the countries with civil law tradition, remain precisely prescribed in the primary legislation. Laws usually transpose one or a few directives together. Ukraine, which on top of directives has to transpose thousands of regulations, has a bad practice of transposing one directive by several primary laws. The Renewables Directive No 1, for example, was transposed by three laws and No 2 only partially transposed into 2 laws (the Green Transformation Law and the Law on Alternative Fuels). More need to be still adopted.
Post-Soviet legal technique characteristics:
Codification: Laws are comprehensive and attempt to cover every possible scenario within the text of the primary legislation.
Formalism: There is a strong emphasis on strict adherence to the letter of the law, with less discretion left to judges or administrative bodies.
Centralized Control: Detailed laws reflect a historical preference for centralized control and predictability, minimizing the need for interpretation or delegation.
Contrary to the civil law traditional technique is the one in countries with common law traditions, practiced nowadays even in the countries where civil law tradition was born. In common law legal technique, the drafting of the primary law has a more flexible approach. Laws are drafted in a general framework style, with details filled in by secondary legislation (regulations, decrees, or statutory instruments).
Common law legal technique characteristics:
Framework Legislation: Primary laws set out broad principles and objectives, while secondary legislation provides specific rules and procedures.
Delegation of Authority: This approach allows for greater flexibility and adaptability, as the executive or regulatory bodies can update rules without requiring new primary legislation.
Judicial Discretion: Common law systems, in particular, rely heavily on judicial interpretation to fill in gaps and adapt the law to new circumstances.
While the EU promotes a more flexible, principles-based approach to legislation, some Member States—particularly those with a civil law tradition and a post-Soviet legacy (Poland, Hungary, Bulgaria, Romania)—still use detailed, prescriptive drafting techniques. However, even in these countries, the influence of EU law has led to some convergence toward more flexible approaches in areas covered by the acquis.
The Ukrainian post-Soviet primary laws have predictability and clarity but they are inflexible and have difficulty in adapting to new circumstances, potential for overly complex and rigid systems, and need a lengthy procedure for the adoption. Just to mention two gloomy illustrations. First, feed-in tariffs for renewable electricity generation were for years designed in the primary law. There is no other country on the globe having feed-in tariffs fixed in the law. Lack of political will prolonged unrealistically high tariffs for ever cheaper solar panels and wind turbines to the extent of millions of euros of unpaid debt to investors. Second, thank god cheaper example was a law transposing some provisions of the REMIT regulation. The Members of the Parliament registered 2 different draft laws. The relevant parliamentary committee discussed the draft law(s) in 4 meetings. Verkhovna Rada discussed the draft law in 4 meetings. The whole process lasted from 01 April 2021 till 10 June 2023 when the law was adopted. The law envisaged 4 secondary legal acts, which took a further 18 months to draft and adopt. All this was done in the EU by one move.
The first law drafted in the common law tradition adopted in Ukraine was the Law of Ukraine No. 329-VIII; On the Natural Gas Market; (adopted on 9 April 2015). It was drafted by the Energy Community Secretariat and mainly copied the provisions of the Directive 2009/73/EC. I remember it was strongly opposed by the Ministry of Justice which is responsible for monitoring the consistency of legislative drafting and compliance with the legal framework. Only strong pressure of the IMF conditionality to adopt that particular draft law helped to make its way to Verkhovna Rada and through it. It was a test that it is possible in Ukraine as well.
Another, almost anecdotal example was a transposition of EU gas Network Codes, which Gazprom put as a condition to prolong the gas transport deal in 2019. Regulator – NEURC with a short one-page decision (no. 2586) on 29 November 2019 transposed all five gas Network Codes at once. Implementation was indeed limping for years after that but if there is a will there is a way. Ukraine will have to change its legal technique of drafting the laws. Otherwise, it risks catching the expected entry year 2030 only several years later.
Janez Kopač
