Europeanization of Ukraine’s Legal System: How the Judicial System Is Preparing to Apply EU Law

On February 28, the EU Project Pravo-Justice together with the Supreme Court, Taras Shevchenko National University of Kyiv, and Yaroslav Mudryi National Law University organized the conference "Europeanization of Ukraine’s Legal System: Status of a Candidate for Joining the European Union and application of Law by Courts” As of today, the fulfillment of Ukraine’s international legal obligations in the field of European integration is one of the priorities in the activities of state authorities, including, the judiciary. Ukraine’s judicial system is preparing to apply EU law and strengthen cooperation with the Court of Justice.

Europeanization of application of law by domestic courts and the role of the Association Agreement in this process, as well as compliance with the principle of judicial independence both in Ukraine and the EU, are of great importance as well. These and other issues were discussed by the participants to the conference.

Remi Duflot, Acting Head of the EU Delegation to Ukraine, noted the stability of the Ukrainian judicial system during the war, despite the austerity regime and budget restrictions.

“Last year, the European Council made a historic decision. Ukraine received the candidate status. This is the realization of the aspirations of Ukrainian society, which values freedom and democratic principles, including the rule of law which is a very important criterion for EU membership. This is why the reform of the judicial branch is among the seven steps that will demonstrate Ukraine's readiness to become part of the EU. We are confident that Ukraine will succeed, despite the fact that implementing reforms during the war is an extremely difficult task,” said Remi Duflot.

Volodymyr Buhrov, Rector of Taras Shevchenko National University of Kyiv, welcomed the participants to the conference and emphasized that the stages of gaining EU membership require not only the intensification of efforts of legislators and civil servants, but also the intensification of law application by judges.

Anatolii Hetman, Rector of Yaroslav Mudryi National Law University, in his turn, added that after the President of Ukraine signed the application for EU membership, meticulous work of bringing Ukraine's legal system in line with EU standards has been launched.

Mykhailo Smokovych, President of the Cassation Administrative Court within the Supreme Court, emphasized that the acquisition of the status of EU candidate for requires Ukraine to make changes.

“Reforming the court network is an integral part of the recovery plan for Ukraine, which shall include merging courts; strengthening trust in the judiciary; introducing electronic court; and improving access to justice. We are always open to cooperation with our European colleagues, and we build on their experience, including in terms of Ukraine’s accession to the EU,” said Mykhailo Smokovich. Anna Adamska-Gallant, Key International Expert for Judiciary of the EU Project Pravo-Justice, reminded that the Project had been supporting Ukraine’s European integration aspirations and relevant changes in the judicial system even before Ukraine obtained the status of a candidate for EU membership.

“Judiciary is the foundation of a State. Therefore, it is important to bring up the role of the judicial system on Ukraine’s path towards EU membership and to take into account the experience of other EU MS, which could be useful on the way,” emphasized Anna Adamska-Gallant.

Adam Lazowski, Professor at the Law School of the University of Westminster, developed on the Europeanization of the national judicial system from the trainer’s perspective.

“Joining the EU is a paradigm shift. Immediately after joining the EU, its legislation becomes part of the legislative framework of a member state. At this point, judges should be ready to apply EU law. It is clear that judges need time and preparation for this,” noted Adam Lazowski.

Olesia Radyshevska, Judge of the Cassation Administrative Court wit of the Supreme Court, spoke about the mechanisms, tools, and consequences of the Europeanization of application of law by courts.

"There is both direct and indirect influence of European law on the judicial practice in Ukraine. For example, the former manifests itself in Article 9 of the Constitution of Ukraine on the recognition of treaties as part of national legislation, Article 6 of the Code of Administrative Proceedings on the application of the rule of law principle, while taking into account the ECtHR case law. An example of indirect influence is reviews of EU case law in the areas regulated by the EU-Ukraine Association Agreement,” said Olesia Radyshevska.

Miroslaw Wyzykowski, retired Judge of the Constitutional Court of Poland, highlighted the lessons of the struggle for the rule of law and against the loss of constitutional democracy.

“Rule of law is one of the EU fundamental values. However, certain negative steps on the part of the state authorities may lead to the erosion and fading of the constitutional system; demoralization and elimination of the constitutional order. This leads to the loss of independence of the judiciary, which is a universal and absolute value”, warned Miroslaw Wyzykovski.

According to Tetiana Komarova, Head of the EU Law Department of the Yaroslav Mudryi National Law University, National Expert of the EU Project Pravo-Justice, judicial independence affects sovereignty, democracy, parliamentarism, and investment climate.

“Therefore, judicial independence is part of the rule of law, which can be attributed to the greatest values of the European Union, envisaged in Article 2 of the Treaty on the EU. If these values are neglected, EU membership may be terminated. Therefore, the rule of law is one of the key political goals that are declared in the Association Agreement,” said Tetiana Komarova.

In turn, Krystyna Kowalik-Banczyk, Judge of the General Court (EU) noted that national judges keep primary role as European judges.

“It is the national courts that effective application of EU law depends on; it is their independence that the functioning of the European system depends on. That is why it is very important that judges of various countries trust each other. After all, European law can only be applied if there is trust. Therefore, national judges are actually European judges who have important duties and corresponding guarantees of protection”, underlined Krystyna Kowalik-Banczyk.

Sigita Rudenaite, Head of the Civil Division of the Supreme Court of Lithuania, shared her experience of a judge from Lithuania as to preparing for membership.

“Being the one who went through the process of training Lithuanian judges for EU membership, I have some advice for Ukrainian colleagues. It is impossible to learn EU legislation in detail in all areas. It is advisable to learn some basic principles, to know the fundamental principles of the European Union and EU law. This should be taught to the court employees”, emphasized Sigita Rudenaite.