Law on Administrative Procedure: New Transparent Rules for Proper Administration

The Law of Ukraine "On Administrative Procedure" (hereinafter – LAP) entered into force on December 15, 2023. Before its adoption, Ukraine remained virtually the only country in Europe that did not have such an act. Therefore, it became not only an important step towards building a modern administrative system, but also a critical element in the process of harmonising national legislation with the EU acquis.

However, its implementation will require a lot of time and considerable effort. Some state authorities are already trying to get out of the LAP’s scope of application. Thus, what is the revolutionary nature of the law and how does it change the interaction of citizens and businesses with the state?

The philosophy behind the LAP is that no negative decision in respect of a individual (such as withholding benefits; refusing to issue a permit or a license; imposing a fine or other burden) shall be done without the participation of such a individual. They have the right to know about the case; they have the right to take an active part in it: to be heard, to provide evidence, etc. Therefore, situations where an individual may see their type of pension unilaterally revised for the worse or see themselves excluded from the register of a single tax payers, etc. – without involving them and even without informing them about the decision – should remain in the past.

Moreover, the right to participate applies not only to the direct addressees of the decision, but also to all “interested persons” who may be affected by such a decision, for example, in land and construction cases.

The LAP imposes on executive authorities and local self-government bodies (administrative bodies) additional duties, according to which they should be proactive for a proper resolution of the case: motivate their negative decisions; specify in detail the appellate procedure; properly inform an individual about the decision.

At the same time, it provides additional tools to administrative bodies so that they are effective and could also protect the public interest. The law obliges the body, among others, to independently collect the necessary documents and information; to carry out internal agreements; to hold hearings, if necessary, to organise effective commissions for the consideration of complaints; to ensure the enforcement of the decisions made, to correct their mistakes without waiting for complaints and lawsuits, etc.

Thus, the law establishes general rules for all sectors of public administration – from social and passport-related to land and construction-related ones, etc. This is where its key value lies with. Therefore, after its successful implementation, citizens and businesses will need less understanding of all the intricacies of hundreds of laws and instructions.

For example, according to the law “On Administrative Procedure”, the body cannot refuse to register an application or return it without consideration for formal reasons (due to the use of an incorrect blank sheet or the lack of a certain document or errors in data, etc.). Instead, it should facilitate a positive resolution of the case, if there are legal grounds for this; in particular, by way of indicating which shortcomings should be eliminated.

It is worth noting that the universal procedural rules apply to every case starting from the calculation of terms and representation, submission and registration of the application up to the execution of a decision, notifying the individual concerned, and administrative appeal, etc. It does not matter whether it comes to the registration of civil status or the issuance of a permit in the field of nuclear regulation.

On October 10, 2024, the Verkhovna Rada amended 196 legislative acts with the aim of aligning them with the law “On Administrative Procedure”. This has become an important stage on the way to the LAP implementation – harmonisation of legislation and unification of procedures.

However, there are also negative examples when individual bodies try to get the entire areas out of scope of the LAP, such as tax relations, as a result of the adoption of the law dated June 18, 2024.No. 3813-IX. It only reconfirms the fact that it is the Tax Service which is mostly in need of the LAP. In particular, the tax appeal mechanism, which businesses complain about, needs to be changed. In the case of LAP implementation and including representatives of business associations, academia, and public experts in the commissions for consideration of complaints, we may obtain greater impartiality of the body and, as a result, a smaller number of negative decisions.

It should be noted that the aforementioned changes were adopted despite the findings presented in the Report of the European Commission within the framework of the EU Enlargement Package, published in November 2023. It warned Ukraine against new exemptions from the LAP and pointed directly to the tax sphere. However, the legislator decided otherwise, which may negatively affect the course of negotiations on Ukraine’s membership in the EU.

In addition to the tax sphere, there are other “problematic” areas, in particular, the one related to land (law/draft law No. 11150). There is a position of the Ministry of Internal Affairs and the National Police regarding the (non-)application of the LAP. Therefore, it is extremely important to preserve the integrity of the LAP. After all, each new exemption reduces the regulatory significance of the LAP and distances Ukraine from compliance with the “European standard” – respecting Article 41 on the right to proper administration of the EU Charter on Fundamental Rights.

It is important to continue taking measures to facilitate better understanding and application of the LAP by public authorities. In order for the implementation of the Law to be successful, the administrative courts shall steer public administration in the right direction. In a broader perspective, civil society, business and every citizen shall know and be ready to defend their rights. After all, the LAP equalises the position of an individual in their relations with the state, where a fair procedure leads to fair decisions.

The text was first published in the permanent blog of the EU Project Pravo-Justice at LB.ua.