Administration of the process of rule-making activity in some countries of the European Union and Ukraine: A comparative analysis

VOLODYMYR ZAVERUKHA^a*, VOLODYMYR ZAROSYLO^a, OLEKSANDR KAPLYA^a, VOLODYMYR GROKHOLSKYI^b, ANATOLIY PODOLYAKA^a

Administration of the process of rule-making activity in some countries of the European Union and Ukraine: A comparative analysis**

Summary: 1. Introduction, 2. Features of the functioning of the Verkhovna Rada of Ukraine as a unicameral parliament, 3. Specifics of rule-making activity in the countries of the European Union, 4. Common and distinctive features in the rule-making activities of Ukraine and the European Union, 5.Conclusions

DOI: 10.26350/18277942_000123

1. Introduction

According to some researchers, since the declaration of independence in Ukraine there have been many changes in both socio-political and economic systems.[1] It is also noted that the independence of Ukraine is a positive factor in the development of democratic tendencies of country in different spheres and in the sphere of rule-making too.[2]^,[3] The rule-making activity of the countries of the European Union (EU), as well as the rule-making activity of any country is influenced by a number of factors. One of the important factors influencing the rule-making activity in a certain state is the structure of the legislative body. In all European countries, and in Ukraine too the main law-making body is the parliament. Parliaments in different countries have different structures, which in turn affects the legislative activity in these countries. The structure distinguishes the following types of parliaments: unicameral; bicameral. Today, unicameral parliaments exist in almost 70 countries (Bulgaria, Greece, Denmark, etc.). Bicameral parliaments are typical of countries such as Germany, Italy, Spain, France, and others.[4]

The structure of the parliament influences the legislative activity, in particular, in the part of the adoption of laws. In the scientific literature there is an opinion that in a unicameral parliament the legislative procedure is not as complicated as in a bicameral parliament.[5] According to V. Shapoval[6], in a bicameral parliament, the law must be passed by both chambers. However, when considering a bill, disagreements often arise, without which the law cannot be passed. There are different procedures for overcoming such differences. An example is the British Parliament, where the House of Lords can reject the House of Commons bill, but a year later it can be re-adopted by the lower house without amendments to the upper house and in the ordinary voting procedure becomes law without any sanction from the upper house.[7]

There are also a few more examples. In Austria, the upper house's objections or reservations to a law passed by the lower house are resolved by the latter by reconsideration under a simplified procedure and adoption by a simple majority. In Poland, Slovenia, the Czech Republic and some other countries, the corresponding differences are overcome by the lower house, but only by a decision taken on the basis of an absolute majority. In Germany and Japan, in case of disagreement between the chambers of parliament, the issue of overcoming them is decided by a joint conciliation commission (committee). If such a commission (committee) is unable to make a decision, or if its decision does not satisfy the lower house, the final decision on the adoption of the law is made by the lower house on the basis of a two-thirds majority of its total membership.[8] Thus, the presence of two chambers in the parliament can cause differences between these chambers, which arise during the implementation of legislative activities and determines the necessary regulations to eliminate these differences. It should also be noted that there are differences in the legal regulation of rule-making activities carried out in unicameral and bicameral parliaments; in particular, the activities of each chamber of bicameral parliaments are regulated by a separate regulation. For example, in Germany, the regulations of the chambers of parliament are adopted in the form of resolutions by each chamber for themselves and do not require the approval of another chamber.[9]

2. Features of the functioning of the Verkhovna Rada of Ukraine as a unicameral parliament

In unicameral parliaments, there is only one regulation that regulates the legislative activity of this parliament. Ukraine has a unicameral parliament – the Verkhovna Rada. The procedure for carrying out legislative activity by the Verkhovna Rada shall be regulated by the law.[10] Law of Ukraine No. 1861-VI “On the Rules of Procedure of the Verkhovna Rada of Ukraine” establish the procedure for preparing and holding sessions of the Verkhovna Rada, its sittings, formation of state bodies, determine the legislative procedure, procedure for consideration of other issues related to its powers, and procedure for exercising control functions of the Verkhovna Rada. Thus, the spheres of activity of the Verkhovna Rada, which are regulated by its regulations, can be divided into three groups:

1. Legislative sphere – establishing the procedure for adopting legislative acts.

2. Organizational sphere – determination of the procedure for holding sittings of the Verkhovna Rada.

3. Control sphere – regulation of the procedure for exercising control functions of the Verkhovna Rada.

Law of Ukraine No. 116/95-VR “On committees of the Verkhovna Rada of Ukraine”defines the legal status of committees of the Verkhovna Rada of Ukraine, their functions and organizational bases of activity. You can identify the following areas of regulation of this law:

1. Legal – determining the status of committees, establishing a list of principles of committees, defining the rights and responsibilities of committees, etc.

2. Functional – determining the list of functions of committees and establishing the order of their implementation.

3. Organizational – establishing the procedure for carrying out the activities of committees, for example, holding committee meetings, planning the work of committees, etc.

Another important factor influencing rule-making activities in the state is the form of government. For example, the peculiarity of federations is that in states with this form of government, each subject of the federation has its own legislative system.[11] That is, along with the legislation that applies to the entire federation, there is also legislation that applies only to a particular subject of the federation. As Ukraine is a unitary state, there is a single legislative body in Ukraine – the Verkhovna Rada. In addition to these factors, rule-making activities are also influenced by the form of government, the form of political regime, and so on. The above factors affect the implementation of rule-making activities in any state.

3. Specifics of rule-making activity in the countries of the European Union

As for rule-making activities in the European Union, in this case there is a certain dualism. On the one hand, the rule-making activity of the countries of the European Union is regulated by the national legislation of these countries. On the other hand, the European Union is a supranational entity[12], which manifests itself in two aspects:

1. The European Union, as a supranational entity, may set certain requirements for the implementation of rule-making activities in countries that are members of the European Union.

2. The European Union may itself act as a subject of rule-making. That is, in this case, rule-making is carried out directly by the European Union, not by a single state.

A clear example of the European Union's rule-making as a separate entity is the presence of the European Parliament. That is, administrative rule-making activity is carried out not on behalf of an individual state or group of states, but on behalf of the entire European Union. According to researchers, the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community[13] retained traditional legal acts that were introduced first in the European Communities and then in the European Union.[14] The following types of such acts can be distinguished: resolutions, directives, solutions, conclusions, suggestions. The decision in this case has the general application. It shall be binding in its entirety and directly applicable in all Member States. The directive is binding on the result to be achieved for each Member State to which it is addressed, but leaves it to the national authorities to choose the form and means. The decision is binding in full. If the decision identifies those to whom it is addressed, it is binding only on them. Conclusions and suggestions are not binding.[15] It follows from the above that the competence of the national rule-making bodies of the Member States of the European Union is limited to the rule-making bodies of the European Union (for example, the European Parliament).

Also, it should be noted that in some countries of the European Union there is a so-called “delegated lawmaking”, i.e., the transfer of some legislative powers by parliament to other government agencies. For example, in Italy, the parliament may delegate to the government the right to legislate on any issues, except those that the constitution itself refers exclusively to its competence, namely: the adoption of constitutional laws; adoption of laws on approval of the budget and financial report; adoption of laws authorizing the ratification of international treaties. The mechanism of delegation of legislative powers stipulates that the relevant acts of the government become invalid from the moment of their adoption, if they have not been approved by the parliament within 60 days after their official publication. Government acts issued on the basis of delegated powers are called legislative decrees.[16] Thus, delegated lawmaking is the transfer of powers from one state body to another state body for legislative activity. Delegated lawmaking may have certain limitations, including: 1) Regulation exclusively by the Constitution and laws; 2) The list of issues on which law-making is delegated shall be established by law; 3) There is a list of issues on which the delegation of legislative powers is prohibited (for example, powers that can only be exercised by parliament).

4. Common and distinctive features in the rule-making activities of Ukraine and the European Union

The implementation of rule-making activities in Ukraine differs to some extent from the implementation of these activities in the European Union. This is due to a number of factors:

1. As already noted, Ukraine has long been part of the Soviet Union, where the system of values was dominated by the state, in contrast to the countries of the European Union, where the main value – the person. Although the Constitution of Ukraine[17] currently stipulates that the highest social value is the human person, Ukraine's long membership in the Soviet Union has to some extent influenced the development of the legal system and administrative rule-making in Ukraine.

2. For a long time, non-aligned status was enshrined in the legislation of Ukraine, i.e., the process of European integration of Ukraine began not so long ago.

As for the implementation of rule-making activities in Ukraine, it can be highlighted the following features: 1) Legislative activity is carried out exclusively by parliament; 2) The main legal act that regulates public relations is the law; 3) Of great importance in rule-making activities is codification, i.e., the publication of codes; 4) There is no judicial precedent as a source of law (courts in Ukraine do not carry out rule-making activities, they carry out only law enforcement and interpretive activities, i.e., courts in Ukraine do not create rules of law, but only apply them and interpret rules of law); 5) Parliament may not delegate legislative powers. Since, as already mentioned, a special place in the regulation of public relations in Ukraine belongs to the law, it is necessary to separately characterize the activities of the Verkhovna Rada of Ukraine not only as a legislative body. Legislative activity is only one of many aspects of the Verkhovna Rada's activity. First, the Verkhovna Rada, in addition to laws, also adopts bylaws – resolutions. Secondly, the functions of the Verkhovna Rada are not limited to the adoption of laws. These features are also to some extent characteristic of other state bodies that carry out rule-making activities (for example, the Cabinet of Ministers of Ukraine). However, their activities are carried out only on the basis of laws adopted by the Verkhovna Rada of Ukraine. Analyzing the activities of rule-making bodies in Ukraine, it can be identified the following groups of their activities:

1. Rule-making – direct implementation of rule-making activities.

2. Organizational – the implementation of actions necessary for the implementation of rule-making activities (for example, the organization of meetings).

3. Control – exercising control over the implementation of adopted regulations.

It should also be noted that in Ukraine and the European Union there are certain common features regarding the administrative and legal regulation of rule-making activities. For example, Art. 92 of the Constitution of Ukraine[18] contains a list of public relations, which are governed exclusively by law. A similar list is also contained in Art. 34 of the Constitution of France[19], which states that the law establishes rules regarding: 1) civil rights and fundamental guarantees provided to citizens for the enjoyment of public liberties; freedom, pluralism and independence of the media; obligations of citizens regarding their personal and property rights exercised in connection with the needs of national defense; 2) citizenship, legal capacity of individuals; family and marriage relations, inheritance and gifts; 3) determination of crimes and misdemeanors (torts) and penalties provided for them; criminal proceedings; amnesty; creation of new courts and the status of judges; 4) sources, rates and conditions of taxation; the order of money issue. Thus, for the countries of the European Union (as observed in the example of France) as well as for Ukraine it is characterized by the consolidation at the constitutional level of public relations, which are governed exclusively by law.

5. Conclusions

Therefore, the following conclusions can be drawn:

1. Legislative activity in general and legislative activity in particular, the countries of the European Union is characterized by a dualism of legislative powers, which arises between the national legislatures of the states and the legislatures of the European Union.

2. The rule-making activity in the countries of the European Union, as in any other country, is influenced by a number of factors, from which it can be distinguished such factors as the structure of the legislature, the form of government, the presence of delegated legislation, etc.

3. The countries of the European Union are characterized by the presence of delegated lawmaking, i.e., the transfer of powers relating to legislative activities from one state body (e.g. – parliament) to another state body (e.g. – government).

4. Normative activity in Ukraine in certain aspects differs from normative activity in the countries of the European Union. These differences are due to a number of factors. In particular, Ukraine has long been part of the Soviet Union, where there was a system of values that differed from the values of the European Union; also, in Ukraine for a long time there was a course for non-aligned status.

5. Legislative activity in Ukraine is characterized by the presence of certain features, in particular, the implementation of legislative activity exclusively by parliament; the dominant position of the law in the system of sources of law; great importance of codification of legislation; lack of judicial precedent as a source of law; impossibility to delegate legislative functions by the parliament.

6. Ukraine and the countries of the European Union have certain common features in the field of legislative activity (for example, the Constitution specifies a list of public relations, which can be regulated only by law).

Abstract:Today, the implementation of rule-making activities plays a very important role in the functioning of any state. After all, there is no state in which legal norms are not created in order to regulate certain social or legal relations. However, the implementation of rule-making activities in each state has certain features that are determined by certain factors. The question of comparing these factors is of great theoretical and practical importance. Also, in connection with the active European integration of Ukraine, a theoretical analysis of rule-making in the countries of the European Union is very important in order to borrow the positive aspects of this activity. In addition, it should be borne in mind that Ukraine has long been part of the Soviet Union, where the main value was the state, not the people, in contrast to the European Union and the rule-making process was aimed to preserve it. In connection with the active European integration of Ukraine, a theoretical analysis of rule-making in general, and law-making in particular, in the European Union is very important. The above requires a detailed study of the factors influencing the implementation of rule-making in the European Union and Ukraine, as well as their comparison.

Keywords: legislative procedure; delegated lawmaking; control functions; government; rules

*Email: zarosylov@gmail.com

^aInterregional Academy of Personnel Management, Ukraine

^bOdessa State University of Internal Affairs, Ukraine

** Il contributo è stato sottoposto a double blind peer review.

[1]https://www.abacademies.org/articles/administrative-and-legal-support-for-functioning-of-the-agroindustrial-complex-of-ukraine-9463.html. (Accessed 15.10.2022)

[2] A. KISLYI – B. STETSIUK – I. KOVALENKO, Comparative Analysis of Foreign and National Experience of Ukraine in Administration of Value Added Tax, In: Baltic Journal of Economic Studies 4 (2) (2018), pp. 301-308.

[3] O. M. YAROSHENKO – A. M. SLIUSAR – O. H. SEREDA – V. O. ZAKRYNYTSKA, Legal relation: The issues of delineation (on the basis of the civil law of Ukraine), In: Asia Life Sciences (2) (2019), pp. 719-734.

[4]B. V. KALYNOVSKYY – O. YA. LAPKA – N. YA. LAPKA – T. O. PIKULYA – L. A. IVERSHENKO – L. M. KOZODOY – K. V. TARASENKO, State Law of Foreign Countries (in Schemes), Kyiv, 2012.

[5] I. TETARCHUK – T. DYAKIV, Constitutional Law of Foreign Countries, Kyiv, 2020.

[6] V. SHAPOVAL, Constitutional Law of Foreign Countries, Kyiv, 2008.

[7] YU. V. KOVBASIUK – S. V. ZAGORODNIK, The System of Public Administration of the United Kingdom of Great Britain and Northern Ireland: Experience for Ukraine, Kyiv, 2011.

[8] V. TATSIY – S. SEROHINA, Bicameralism: European Tendencies and Perspectives for Ukraine, In: Baltic Journal of European Studies 8 (1) (2018), pp. 101-122.

[9] V. RIYAKA, Constitutional Law of Foreign Countries, Kyiv, 2006.

[10]https://zakon.rada.gov.ua/laws/show/116/95-%E2%F0#Text. (Accessed 14.10.2022)

[11]S. KOTALEYCHUK, Theory of State and Law, Kyiv, 2009.

[12]https://cutt.ly/YbiotLm (Accessed 13.10.2022)

[13]https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12007L%2FTXT. (Accessed 13.10.2022)

[14] O. PISTRAKEVYCH, Features of the Legislative Process in the European Union, In: Effectiveness of Public Administration 39 (2014), pp. 85-92.

[15] R.PETROV – O. SERDYUK,Ukraine: The quest for democratization between Europe and Russia, In: International Actors, Democratization and the Rule of Law: Anchoring Democracy? (2008), pp. 189-223.

[16] P. HRYMALYUK, Delegated Lawmaking in Foreign Countries, In: Journal of Kyiv University of Law 3 (2010), pp. 39-43.

[17]https://zakon.rada.gov.ua/laws/show/254к/96-вр#Text. (Accessed 20.10.2022)

[18] Ibidem.

[19]https://www.conseil-constitutionnel.fr/sites/default/files/as/root/bank_mm/constitution/constitution.pdf. (Accessed 20.10.2022)