Funded by the European Union Session 9 Legal

Funded by the European Union Session 9 Legal drafting I Structure of legal acts and design of general provisions of a public law Implemented by a Consortium led by GFA Consulting Group Gmb. H 1

Funded by the European Union Improvement of quality of public laws – first part 1. Brief recommendations on “Structure of laws” n Divisions of Laws (Articles, Parts, Chapters, Sections) and Articles (Sub-/ Paragraphs) 2. Advice on design of general (initial) provisions of a public law n Preamble, Table of Content, purpose, objective, scope of application, definitions, principles 3. Advice on main and final provisions of a public law n Ø Substance of a law, competence norms, sanctions, transitional and repeal provisions, implementation requirements, annexes… Taking into account provisions of the “Guidelines on legislative drafting and complying with the rule-making requirements” of November 2000 Implemented by a Consortium led by GFA Consulting Group Gmb. H 2

Funded by the European Union n Structure (divisions) of legal acts Divisions of Laws Articles (Arabic numerals) n Advisable: Chapters (if Law has more than 20 articles) or parts or sections or even books (for codes or laws of complexity with large number of chapters) n Recommendation: Use headings for Articles to make them reader-friendly n n Divisions of Articles (Sub-/ Paragraphs), advices: Paragraphs (preferably no more than 9 -10 for readability) n Laws should be structured according to numbers 1. , 2. , 3. , sub-numbers (1), (2), (3) or letters a, b, c. and in addition at least indents / points to improve readability and make it easier citable! n Still, in Ukraine, very many laws have either no numbers for paragraphs / sentences or at least no indents! Ø 2014 guide: “you can structure the text with lists or variants (using items/ sub -items)” n Implemented by a Consortium led by GFA Consulting Group Gmb. H 3

Funded by the European Union Legal structure of Laws n Title: contains subject matter (short and concise descriptive name), its number and date of adoption Table of content: advisable to incorporate, listing all chapters and sub-chapters and preferably also the headings of all provisions if law has more than about 20 -30 Articles n Preamble: Optional. In EU Member States no common practice as it has no legal effect ( but see recitals in EU legislation which are important for understanding of legal act) Text of a potential preamble should rather become “purpose clause” within a law n Implemented by a Consortium led by GFA Consulting Group Gmb. H 4

Funded by the European Union General provisions n Very important general clauses which are relevant for the understanding and application of the entire law: n Purpose clause – legal purpose, has no normative content n Objective(s) clause – goal from substantive point of view n Scope of application – delimits the field of action of the law n Definitions – very important to secure uniform application of law! n Use of principles – do not overestimate their use – no binding / direct normative effect Implemented by a Consortium led by GFA Consulting Group Gmb. H 5

Funded by the European Union Example – clauses on “objective” and “purpose” n Draft Public procurement law of Ukraine “This Law aims to ensure efficient and transparent procurement, create a competitive environment in the field of public procurement, prevent corrupt practices in this field, and develop fair competition. ” (preamble) n Corresponding EU Directive text: This Directive establishes rules on the procedures for procurement by contracting authorities with respect to public contracts as well as design contests, whose value is estimated to be not less than the thresholds laid down in Article 4. --n Law of Ukraine on the natural gas market This Law defines legal fundamentals of the functioning of the natural gas market in Ukraine founded on principles of free competition, due protection of consumers and security of supply […] (parts of preamble) Implemented by a Consortium led by GFA Consulting Group Gmb. H 6

Funded by the European Union Example – clauses on “objective” and “purpose” n Combined purpose and objective clause Draft Technical Regulation restricting the Use of Certain Hazardous Substances in Electrical and Electronic Equipment (10 March 2017, No. 139): “This Technical Regulation lays down requirements on the restriction of the use of hazardous substances in electrical and electronic equipment with a view to ensuring the protection of human health and environment, including the environmentally sound recovery and disposal of waste electrical and electronic equipment. (clause No. 1, the clause is similar to EU Directive) Implemented by a Consortium led by GFA Consulting Group Gmb. H 7

Funded by the European Union Scope of application n Define accurately the material / territorial scope of the law in para. 1 n Determine limitations on the application of the law (if possible make reference to paragraph 1) “except for” … n Example: Article 2 draft Railway Law 1. This Law shall apply to the relations related to the operation of rail transport of public use and connecting tracks. 2. This Law shall not apply to technological rail transport, i. e. railway tracks and vehicles, other property located on the territory of enterprises and intended for transportation for production purposes within the territory of such enterprises of raw materials, equipment, means, products and productions wastes without going to the tracks of public use and connecting tracks What do you think? Implemented by a Consortium led by GFA Consulting Group Gmb. H 8

Funded by the European Union Definition provisions I n Definitions…. n specify the meaning of important terms used in the text of the law which are not self-explanatory n are useful not only where the word or phrase may have several uncertain meanings, but also where they may have a number of different meanings n should be defined only for the law in question (or legal reference to definition in other, sub-oridiated legislation) n should not go beyond of what is reasonably necessary to be defined n should be as precise and concise as possible n shall define only those terms that later appear in the law – and not just once, so that they are really necessary Implemented by a Consortium led by GFA Consulting Group Gmb. H 9

Funded by the European Union Definition provisions II n Definitions…. n could refer to a term used in another law by means of reference “as defined in law X” (rather than repeating it) n should not contain the same term for which the definition is constructed n can be drafted by using the phrase “X” shall mean or just by “X” –. . . n may be listed in the alphabetic order of the Ukrainian language (Law on Natural Gas Market has some 47 definitions but how are they sorted? ) Implemented by a Consortium led by GFA Consulting Group Gmb. H 10

Funded by the European Union n Definition examples From draft Railway Law: n 'rules of rail transport service of citizens' means general terms of rail transport servicing of citizens n 'carriage of passengers and/or goods by rail transport' means carriage of passengers and/or goods by rail transport from the departure point to the point of destination according to the concluded agreement n 'subsystem' means a structural or functional part of the rail transport (railway infrastructure, rolling stock, rail transport management, etc. ). What do you think of these definitions? Implemented by a Consortium led by GFA Consulting Group Gmb. H 11

Funded by the European Union Use of principles – what are they good for? n Principles… serve the policy, law and decision maker as background for determining policies, laws and decisions n are often used in the EU for the interpretation of norms (esp. by European Court of Justice and other courts) n Any other practical relevance? n ------- Extract from Article 2 Natural Gas Market Law “Decisions (measures) of authorities adopted in pursuance of the rules of the present Law shall comply with the principles of proportionality, transparency, and non-discrimination. ” (principles are also explained) What do you think? Why are the principles quoted here? Implemented by a Consortium led by GFA Consulting Group Gmb. H 12