To the issue of legal enforcement of provisions of legal acts of the Commission of the EU by national courts of Ukraine

Abstract

The scientific article is devoted to the analysis of actual state of legal enforcement of provisions of legal acts of the Commission of the EU by judicial bodies of Ukraine. It is specified that explicit legal obligation conferred on national Ukrainian judicial and other national state bodies to apply provisions of the EU’s acquis is absent at all. Nevertheless, taking into account provisions of the Association agreement between Ukraine and the EU, an effective adaptation of valid and future Ukrainian legislation in line with requirements of the EU’s acquis is impossible without an active legal enforcement activity of Ukrainian courts. Analysis of the relevant practice of the Constitutional Court of Ukraine and courts of general jurisdiction showed that current legal enforcement level of provisions which are contained in legal acts of the Commission of the EU and Association agreement between Ukraine and the EU is unsatisfied due to the several reasons. The problem of absence of the common approach both on doctrinal and legislative levels regarding the possibility of provisions of the Association agreement between Ukraine and the EU to create direct effect for individuals and legal entities has a negative impact on the legal enforcement level of provisions of legal acts of the Commission of the EU. It is emphasized that one of the main problems of judges of the Constitutional Court of Ukraine and courts of general jurisdiction which causes insufficient legal enforcement level of legal acts of the Commission of the EU and Association agreement between Ukraine and the EU is considered to be the absence of an explicit legal basis that provide judges with an opportunity to freely apply provisions of the EU secondary legislation when legal disputes arise, especially in the event of conflict between provisions of national legislation and valid provisions of the EU secondary legislation. Summarizing, the author believes that it is possible to solve the mentioned-above problems when Verkhovna Rada of Ukraine drafts and enacts legal act that will explicitly specify legal basis and legal mechanisms for courts to apply provisions of the Association Agreement between Ukraine and the EU and the EU secondary legislation.