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The Business Ombudsman Council provides recommendations to state bodies on the basis of individual cases and in accordance with published systemic reports. Here we have collected information on the implementation status of systemic recommendations only.

Report name
Issued recommendations
Execution status

Systemic report "Business focus on labor-related issues"

To develop a specially designed and web-based information system (desktop application) to support the inspection activity; such a system should enable labor inspectors to register inspection procedures, as well as grant real-time remote access to the relevant information for business, including a possibility to check the status of consideration of requests/applications lodged with the SLS in an accessible and searchable form.

State Labor Service

Not started - new recommendation
To develop and submit for respective approval the procedure for interaction between the SLS, the Labor commissions under local governance, and the SFS, when carrying out the state supervision in the labor relations sphere.

State Fiscal Service of Ukraine
State Labor Service

Not started - new recommendation

To develop and submit for respective approval the procedure for interaction between the SLS, the Labor commissions under local governance, and the National Police of Ukraine, when carrying out the state supervision in the labor relations sphere.

State Labor Service
National Police of Ukraine

Not started - new recommendation
To submit the Criteria’s draft for assessing a risk degree from conducting business activities to the CMU for approval.

Ministry of Social Policy

Not started - new recommendation
To publish information on practical application of the Criteria for assessing a risk degree from conducting business activities on its web-site after approval by the CMU.

State Labor Service

Not started - new recommendation
To provide the territorial bodies with a guidance for compliance within the process of approval of mining operations development plans. Such a guidance should clearly address the following: (i) a maximum time limit for processing of submitted documents; (ii) an exhaustive list of grounds for refusal of approval; (iii) a minimum time limit for correction of weaknesses in the mining operations development plan (if any).

State Labor Service

Not started - new recommendation
To amend Sub-clause 4 of Clause 15 of the Procedure for Issuance of Permits for Carrying Out Hazardous Works and Exploitation (Application) of Hazardous Machines, Mechanisms, Equipment, approved with the Resolution of the CMU No. 1107 dated October 26, 2011. In particular, the relevant amendments should clearly specify that violation of labor safety entails refusal to extend the validity period of that specific permit, requirements of which were breached due to a labor safety accident. Also, to provide the territorial bodies with a clarification letter ensuring correct application of the relevant regulation.

State Labor Service

Not started - new recommendation

To develop a legal framework and an implementation mechanism for the “E-Office” that would meet international standards and the best European practices for the labor-related procedures (in particular, for obtaining of the work permit for foreign specialists).

State Labor Service
State Employment Service

Not started - new recommendation

To prepare draft laws introducing: - a simplified procedure for obtaining the work permit for foreign students and/or the graduates; - an administrative appeal procedure against refusals to issue the work permit; - issuance of the work permit duplicate as well as the one in the electronic form.

State Employment Service

Not started - new recommendation

To enhance an operational capacity of the Main Department of the SMS in Kyiv city (to increase a number of offices and staff members assigned to registration and consideration of incoming applications and other correspondence).

State Migration Service

Not started - new recommendation
To redesign the process of the occupational safety education, amend Model Regulation on the Procedure for Training and Knowledge Assessment on Occupational Safety Issues, approved with the Order of the State Committee of Ukraine on Supervision of Labor Protection No. 15 dated January 26, 2005 and other applicable acts, in particular, to: - grant a right to lecturers of private training centers, who trained employees, to be a part of examination commissions; - provide a detailed procedure with requirements for a request to assign an examination commission, as well as a concrete algorithm of actions, when such a commission does not arrive in time. - to develop and to approve a detailed procedure for assessment of knowledge in the field of occupational safety and health, which would eliminate ambiguities and excessive discretion inherent to the existing process, in particular – regarding allowed examination cards, additional questions, and success threshold.

State Labor Service

Not started - new recommendation
To develop and to implement a confirmation system of competence and quality management of the educational institutions and training centers, which would prevent indecent participants from operating in the market, e.g. introducing a requirement of certifying compliance with recognized international standards.

State Labor Service

Not started - new recommendation
To build capacity on compliance by training its staff regularly to enable it for better promotion and achievement of compliance through (i) working partnerships with businesses, and (ii) conducting training of labor inspectors on subjects related to professional conduct, ethics, behavior, and communication skills. Such training should be public (to the extent possible) to disseminate a uniform understanding of issues as well as released on the SLS web-site or other official public sources.

State Labor Service

Not started - new recommendation
To develop and enforce a performance assessment system for labor inspectors which accounts not only for quantitative results of their activities but, most importantly, for a qualitative part of their performance, in terms of the measurement of the extent to which they have contributed to the improvement of workplaces that they have inspected.

State Labor Service

Not started - new recommendation
To improve an existing practice of issuing practical recommendations for business based on the best compliance practices through disclosure of inspection results from a labor compliance perspective as well as periodical reports of inspectorates addressing specific sectoral compliance issues. Such pieces of advice should contain self-explanatory illustrations of what labor compliance risk, risk factor, or counter-factor it relates to and how such a risk could be mitigated. Information is to be released on a regular basis (not less than quarterly) on the SLS web-site through a single point of reference.

State Labor Service

Not started - new recommendation
To develop and to enforce an electronic database that enables applicants to retrieve information about a status of requests/applications consideration lodged with the SLS as well as to release information from the registers administered by the SLS in an accessible and searchable form.

State Labor Service

Not started - new recommendation
To create a single point for guidance to be regularly developed by the SLS so that business can comply with regulations, which are often of the technical and complex nature, and to ensure that such information reflects the law correctly, is clear and easy to follow and at no cost for the business community.

State Labor Service

Not started - new recommendation
To develop and introduce interactive self-assessment toolkits with a special focus on the micro-enterprises and SMEs, and to ensure that businesses can assess themselves against the inspection criteria. Additionally, to arrange regular educational campaigns to encourage businesses to apply such toolkits and to ensure that they can contribute towards improving compliance via regular feedback forms/ surveys.

State Labor Service

Not started - new recommendation

Systemic report "Main problems faced by business in customs sphere"

To develop a draft law on introducing amendments to the Code of Ukraine on Administrative Offenses of Ukraine by supplementing Chapter 12 of the Code of Ukraine on Administrative Offenses of Ukraine ("Administrative Offenses in the Areas of Trade, Public Catering, Services, Finance and Entrepreneurship") with an article to govern administrative liability of officers (officials) of customs authorities for violation of customs legislation, as well as to grant the power to issue protocols on such violations to the central executive authority tasked to implement the state regulatory policy, the policy on supervision (control) in the field of business activity, licensing and permit system in the field of business activity, as well as deregulation of business activity.

Ministry of Finance
Ministry of Justice

In process

To develop and publish guidelines on procedures for declaring and controlling accuracy of customs value’s determination, including specification of the main stages of interaction between declarant and customs authority, as well as their rights and obligations (following the model employed in the UK Notice 252). Such an interpretation should be posted on the State Fiscal Service of Ukraine website or other official public sources.

Ministry of Finance

In process

To develop and adopt an order, which would enable customs authorities and declarants to exchange documents issued in an electronic form (i.e., certified by declarants’ or authorized representatives’ electronic digital signature) with scanned copies of corresponding originals (if requested by customs authorities or provided by declarants’ on their own initiative) attached thereto.

Ministry of Finance

In process
To prepare governmental draft Law of Ukraine introducing the following amendments to the Customs Code of Ukraine:
1.1. To supplement Paragraph 7 of Article 55 of the Customs Code of Ukraine to ensure that the general rule stating that validity period of guarantees issued by guarantors pursuant to Section X of the Customs Code of Ukraine “…shall not exceed 90 calendar days as of the date of the goods’ release” would not apply to financial guarantees issued in the form of a document.
1.2. To supplement Article 312 of the Customs Code of Ukraine with the provision stating that the validity period of a financial guarantee issued in the form of a document shall not exceed 365 calendar days after release of goods, provided that within 120 calendar days, following adoption of decision on customs value’s adjustment, a declarant would notify customs authority about its disagreement with such a decision.
1.3. To amend Article 314 of the Customs Code of Ukraine in order to harmonize eligibility criteria for parties entitled to grant financial guarantees to secure payment of customs duties with the current European practices (particularly taking into account provisions of Article 27 and Article 28 of the Convention on a Common Transit Procedure EU/EFTA).

Ministry of Finance

In process

To introduce amendments to the Procedure for Refund of Advance Payments (Prepayment) and Erroneously and/or Excessively Paid Amounts of Customs Duties, approved by the Order of the Ministry of Finance of Ukraine dated July 18, 2017 No. 643, which would enable a declarant to attach to the application for refund of erroneously and/or excessively paid customs duties amounts a court decision rendering illicit or acknowledging unlawful decision or actions at the part of SFS authorities that led to (resulted in, caused) erroneous and/or excessive payment of customs duties (i.e., as an alternative to enforcement letter issued by a court and/or a court decision authorizing refund of certain amount of customs duties).

Ministry of Finance

In process

To update the Explanation Letter, dated August 4, 2016 № 26593/7/ 99-99-19-01-01-17 or issue a new one or methodical recommendations for the customs to clarify the procedure for enforcing court decisions as well as decisions adopted within the framework of the administrative appeal procedure, approved in declarant’s favor. Due attention should be paid to the need to take into account not only the operative but also the reasoning part of the court decisions on the merits of the dispute. If a court decision were to find decision or action of the customs authority that led to (resulted in, caused) payment of excessive amount of customs duties as being erroneous or false – to state that such a language constitutes sufficient ground to proceed with the refund of overpaid sums of customs duties without initiating an additional judicial procedure.

State Fiscal Service of Ukraine

In process

To ensure creation of a public electronic register of decisions on classification of goods, similar to practice employed in the EU. In the Council’s view, not only decisions adopted by customs authorities during customs clearance should be entered into such a registry, but also those ones adopted by the State Fiscal Service authorities during documentary inspections and (for the sake of comprehensiveness of registry information) court decisions adjudicating correctness of the classification of goods.

Ministry of Finance
State Fiscal Service of Ukraine

In process

To issue Methodological Recommendations to ensure proper consideration by customs authorities of the existing case law on classification according to the relevant Ukrainian Classification of Goods for Foreign Economic Activity codes. Among other things such a document would have to establish that while conducting classification of goods under UCGFEA having the same, identical or similar characteristics, due attention should be paid to practice generated by both domestic courts as well as by the European Court of Justice.

State Fiscal Service of Ukraine

In process

To prepare governmental Draft Law of Ukraine introducing amendments to Chapter 11 "Liability" of Section II “Administering Taxes, Duties, Payments" of the Tax Code of Ukraine and Chapter 67 "General Provisions on Customs Offence and Liability for Them" of Section XVIII “Customs Offence and Liability” of the Customs Code of Ukraine to eliminate the possibility of bringing individuals to liability if assignment of incorrect Ukrainian Classification of Goods for Foreign Economic Activity code resulted from actions conducted in good faith.

Ministry of Finance

In process

To prepare and conduct educational training programs for the personnel of the State Fiscal Service of Ukraine on reasoning decisions on classification of goods by using examples from the practice of the European Court of Justice. Such trainings should be public (to the extent possible) to disseminate a uniform understanding of issues pertaining to classification of goods.

Ministry of Finance
State Fiscal Service of Ukraine

In process

To prepare text of the governmental Draft Law of Ukraine on introducing amendments to Sections XVIII “Customs Offences and Liability" and XIX "Customs Offence Proceedings" of the CCU (or setting forth these sections in the new wording) aimed at ensuring balance, commensurability and fairness of liability for customs infringements, taking into account best practices employed in the EU, in particular, Proposal for a Directive No. 2013/0432/COD (draft). In particular, such Draft Law should provide for/contain:

a)    financial liability for legal entities that infringed customs rules during their business activity, - to be introduced as an alternative to administrative liability of their officials (or with a significant softening of the latter); 

b)    reference to a specific form of guilt (intention or negligence) as a mandatory element of each administrative offence; 

c)    sufficiently specified list of aggravating and attenuating circumstances (including, inter alia, status of Empowered economic operator; level of cooperation with the customs authority demonstrated in course of customs infringement’s investigation, etc.);

d)    lower and upper liability thresholds (in the form of the amounts of fines) for each article to make it possible to vary amount of fines depending on the circumstances of the case; 

e)    amounts of fines for infringing customs rules (which are established depending on the value of goods) to be brought in line with the indicative figures, specified in the Proposal for a Directive No. 2013/0432/COD (draft).

Ministry of Finance
State Fiscal Service of Ukraine

In process

To elaborate and approve Inter-Agency Instruction on interaction of customs and law enforcement authorities. Such a document should, among other things, regulate (1) time limits for customs clearance, including liability (sanctions) for failure to observe such time limits; (2) restrictions with respect to the number of actions aimed at retrieving samples of the declarant’s goods; (3) communication between customs and law enforcement agencies in the course of such interaction.

State Fiscal Service of Ukraine
Ministry of Finance
Ministry of Internal Affairs of Ukraine
State Security Service of Ukraine

In process

To develop and approve the mechanism for implementing the Resolution of the Cabinet of Ministers of Ukraine No. 479 “On Realization of Experimental Project Aimed at Creating Conditions Making It Impossible to Avoid Paying Customs Duties and Fees”, dated June 20, 2018 to ensure compliance with (1) Articles 338 and 558 of the Customs Code of Ukraine; (2) the Resolution of the Cabinet of Ministers of Ukraine No.467, dated May 23, 2012 “On Approval of the Exhaustive List of Grounds, Whose Existence is Required to Carry Out Examination (Re-Examination) of Goods, Commercial Transportation Vehicles by Fiscal Authorities of Ukraine”; as well as (3) the Order of the Ministry of Finance of Ukraine No.1316, dated December 12, 2012 “On Approval of the Procedure of Carrying Out Examination and Re-Examination of Goods, Commercial Transportation Vehicles”.

Ministry of Finance

Recommendation is no longer relevant

In order to (1) place actions substantially similar to search outside the scope of customs examination procedure; and (2) narrow down powers of the law enforcers to demand from customs authorities carrying out such actions, - prepare governmental draft law on introducing amendments to Paragraph 2 Article 325 of the Customs Code of Ukraine to explicitly state that law enforcement authorities are not entitled to demand from persons that are transferring goods, commercial transportation vehicles through customs border of Ukraine carrying out operations, foreseen in paragraph one of this article (i.e., loading, unloading, reloading, fixing damaged packaging, unpacking, packing, re-packing, weighting along with the determination of other substantial characteristics of goods subjected to customs clearance, including taking samples of such goods, replacement of identification signs or marks on such goods or packaging thereto, commercial transportation vehicles as well as replacement of commercial transportation vehicles). Yet, such powers of the fiscal authorities shall remain in the effective wording of this article

Ministry of Finance
Ministry of Justice

Not started

To prepare amendments to the existing Draft Law of Ukraine No.4614 dated 06.05.2016 “On Introducing Amendments to the Customs Code of Ukraine to Ensure Protection of Intellectual Property Rights While Moving Goods Across Customs Border of Ukraine” No.4614 dated 06.05.2016; or to introduce an alternative draft law to ensure implementation in Ukraine of the requirements set forth in (i) Regulation (EC) No 608/2013 of the European Parliament and of the Council regarding customs enforcement of intellectual property rights; as well as (ii) Commission Implementing Regulation (EU) No. 1352/2013 establishing the forms provided for in Regulation (EU) No 608/2013, in particular:1.1.To bring the concept "goods infringing Intellectual Property Rights" in line with EU requirements, including exclusion of goods that are objects of so-called "parallel trade” from the substantial scope of this concept (in accordance with Clauses 3-5 of Article 1 of Regulation No. 608/2013);1.2.To set forth clear procedural terms, unified with European Union requirements, applicable within the procedure for suspending customs clearance of goods suspected of infringing IPR (as stipulated by Articles 3, 7, 9, 11-12, 17-18, 23, 26 of the Regulation No.608/2013);1.3.To improve the regulation of the procedure for destruction of goods, whose customs clearance has been suspended on suspicion of violating IPR, including laying down the "tacit consent” principle for their destruction in the absence of objections from a declarant or owner of goods; establishing a simplified procedure for the destruction of goods containing in small consignments (according to Articles 25 – 26 of Regulation No. 608/2013);1.4.To approve unified IPR protection measures related forms in accordance with European Union standards (as prescribed by Regulation No.1352/2013).

Ministry of Finance
State Fiscal Service of Ukraine

In process

To implement Clauses 15.3 - 15.9 of the European Union Customs Blueprints, - in particular, to create a central IPR unit as a center of operational expertise under the State Fiscal Service of Ukraine.

Ministry of Finance
State Fiscal Service of Ukraine

In process

To ensure existence of effective legal framework on governing mechanism of authorized economic operators, which would be consistent with the relevant European Union legislation, - to ensure prompt adoption of the Draft Law of Ukraine No.7473, whose provisions would, inter alia, foresee:1.1.Grounds for extension (or suspension) of 120-day time period for conducting assessment of compliance with Authorized Economic Operator eligibility criteria to enable requesting from a candidate (and corresponding disclosure) of additional documents and information - for instance, when additional information is required to ensure a comprehensive compliance assessment, whose disclosure requires significant time.1.2.That existence of a pre-trial investigation in a criminal proceeding should not, by itself, constitute a self-sufficient ground for suspending Authorized Economic Operator status (contrary to what was envisaged by the Draft Law of Ukraine No.4777).1.3.That while contemplating revocation of Authorized Economic Operator status due to infringement of customs rules, it is mandatory to ascertain existence of connection between the amount of losses (losses of the State/unpaid taxes resulting from such infringements) and total invoice value of goods that were moved by an entity across customs border of Ukraine during period of time employed by customs administration for conducting such a comparison.

Verkhovna Rada of Ukraine

In process

To adopt a secondary legislative act (in the form of an order), which would establish the possibility and necessity (at least for the first two or three years while Authorized Economic Operator mechanism is being put into operation) to engage foreign specialists to train local personnel and actually conduct audits, required for granting Authorized Economic Operator status.

Ministry of Finance

In process

To ensure openness of data about average time required for release of goods, taking into account methodology contained in the "Time Release Study" document of the World Customs Organization. The relevant data can be regularly published at the official website of the SFS of Ukraine. Along with the publication of this data, an interactive survey of companies should be carried out in terms of such data’s authenticity/acknowledgement.

Ministry of Finance
State Fiscal Service of Ukraine

In process

To introduce a transparent system for evaluating the effectiveness of post-clearance audit of companies; based on which risk criteria for operations and/or enterprises should be continuously updated. The relevant statistics should be disclosed and provided on a regular basis (on quarterly and annual basis), according to the following indicators:i.the number of carried out audits; ii.total amounts of additionally imposed charges with a separate indication of the amount of so-called “agreed obligations”;iii.percentage correlation between the total number of inspections and audits where an additional charge was imposed in the amount exceeding certain indicator (this indicator may be set as a fixed UAH amount or as a percentage of the total amount of operations of the company that became the subject of an audit). The introduction of the relevant indicator will enable systemic assessment of post-clearance audit effectiveness, preventing small amounts from distorting overall figures;iv.percentage of audits (amongst the total number of inspections) where customs declarations were checked without physical examination of goods and/or seeking disclosure of additional documents and/or issuing decisions on classification of goods and/or adjustments of customs value;v.percentage of customs declarations whose clearance involved employing customs control measures in the form of physical inspection of goods and/or request for additional documents, making decisions regarding classification of goods and/or adjustments of customs value;vi.financial indicators demonstrating outcomes of customs control measures in the form of physical inspection of goods and/or request for additional documents, making decisions regarding classification of goods and/or adjustment of the customs value;vii.the number of cases launched for infringing customs rules;viii.the total amount of sanctions imposed to customs rules infringers following consideration of cases on infringement of customs rules;ix.percentage correlation between the total number of cases on customs rules infringement and cases where sanctions were imposed on infringers.

Ministry of Finance
State Fiscal Service of Ukraine

In process

In order to control the declared customs value, ensure functioning of the system of interaction between fiscal authority and a declarant, where all information exchange will be carried out in electronic form. It appears it might be achieved by introducing changes to the respective software of the State Fiscal Service of Ukraine.

Ministry of Finance
State Fiscal Service of Ukraine

In process

To ensure a gradual switch of customs value control from customs clearance to post-clearance audit stage, save when fiscal authority has reasonable doubts (to be justified by the respective criteria) about ability to collect amounts of additionally imposed charges in the future. For instance, use of risk-oriented system based on score-ranking method is advisable vis-à-vis entities incorporated shortly before customs clearance, where managers/owners have changed or have been brought to criminal or administrative liability. It appears that initially such a switch of control could be determined in methodological recommendations (letters) issued by the State Fiscal Service of Ukraine and/or the Ministry of Finance of Ukraine followed by introducing respective amendments to the Customs Code of Ukraine.

Ministry of Finance
State Fiscal Service of Ukraine

In process

To update software employed for communication between the State and declarants. Based on successful examples of other countries – to ensure functioning of a single, up-to-date online system that would maximize automation of relevant iterations, simplify declaring procedures and ensure transparency.

Ministry of Finance
State Fiscal Service of Ukraine

Not started

Systemic report "Control over controllers: status of control bodies reform implementation"

To propose amendments to the Law “On State Supervision (Control)” that would envisage having an exhaustive and mandatory list of control bodies. The amendments should stipulate that in dealing with a body not included on the list, a business entity would have the right not to allow representatives of such body to carry out any inspections.To ensure that any changes in this list would only be possible in the course of the legislative process if corresponding changes are made in the relevant laws on control bodies.

Ministry of Economic Development and Trade
State Regulatory Service

Implemented

To set a clear timetable for control bodies to introduce a risk-oriented approach to the exercise of control, namely:-To develop or to align the criteria for assessing the risk of business activity and determining the frequency of scheduled inspections;-To develop or to align the standard forms of reports to be prepared following scheduled (unscheduled) control measures, which would include comprehensive checklists depending on the risk level.

Cabinet of Ministers of Ukraine

Implemented

To set clear deadlines for the alignment of regulations of the control bodies with the Law of Ukraine "On Basic Principles of the State Supervision (Control) in the Sphere of Economic Activity" and the CMU Resolution No.752 To propose amendments to legislation that would not allow the control bodies that have not implemented the risk-oriented approach to enter the information into the IAS and, accordingly, to conduct inspections;To enhance disciplinary liability for heads of control bodies for non-compliance with the law, in particular the failure to implement the risk-oriented approach;To ensure the development of checklists for each supervisory authority with issues which can be checked during scheduled inspections.

Cabinet of Ministers of Ukraine

In process

To continue monitoring the progress made by the state control bodies in bringing their legal acts in compliance with the Law "On State Supervision (Control)" and the CMU Resolution No.752.

State Regulatory Service

In process
To continue the development of the IAS and to ensure its installation and commissioning in accordance with the current legislation by the end of 2018.

Ministry of Economic Development and Trade
State Regulatory Service

In process
— comments: A technical task for the development of the IAS has already been approved. In the near future, an announcement of the tender is planned to be made.

To propose amendments to applicable laws which would:-define the powers of control body officials to enter data into the IAS;-enhance personal liability of officials for entering false and/or untimely entry of information into the IAS.

Ministry of Economic Development and Trade
State Regulatory Service

Partially implemented

To ensure the population of the IAS with information and its full operation.

State Regulatory Service

Not started

To consider standardization of documents that the SRS issues in cases of violations by control bodies, licensing and permitting authorities.

Ministry of Economic Development and Trade
State Regulatory Service

In process

To prepare amendments to the legislation on the licensing and permit system to eliminate conflicting provisions regarding the liability of officials of such authorities (including heads of control bodies) for failure to execute the SRS orders. In particular, these amendments should focus on eliminating violations in the following areas:-revocation of licenses;- registration of declarations of conformity of material and technical facilities with the law;-deadlines for submission of conclusions and results of examinations, surveys, and other scientific and technical assessments required for the issuance of a permit.

Ministry of Economic Development and Trade
State Regulatory Service

In process

To prepare amendments to the legislation that will enhance personal disciplinary liability of control bodies' officials by expanding the range of subjects authorized to initiate disciplinary proceedings (part 1 of Article 68 of the Law of Ukraine "On Civil Service"), including by giving business entities the right to directly initiate this procedure against officials of control bodies.

National Civil Service Agency of Ukraine

Not started

To draft amendments to the current legislation, particularly:-Article 5 of the Law of Ukraine "On the Licensing of Certain Types of Economic Activities" should be amended by introduction of legally binding deadlines for implementation of SRS’s orders based on decisions of Expert Appeal Council.-in Article 1 of the Law of Ukraine "On the Permit System in the Sphere of Economic Activity" a broader definition of the "permitting document" should be added, including declarations;it should also be allowed to issue permits in other than electronic form (i.e. on paper). amend Article 166-10 of the CAO regarding the establishment of liability of heads of control bodies for violations identified by the SRS when conducting control measures.

Ministry of Economic Development and Trade
State Regulatory Service

In process

Systemic report "Combatting raidership: current state and recommendations"

To introduce the system of notification of owners of a legal entity or their representatives (by forwarding messages to e-mail and, as an additional administrative service, SMS-messages) of the receipt by the state registrars of the applications for registration actions in respect of such legal entity and/or its separate subdivision

Ministry of Justice

In process
— comments: Upon the results of the meeting of the Ministry of Justice, State Enterprise "NAIS" and the World Bank, starting from October, 2017, and as of today, the State Enterprise "NAIS" jointly with the representative of the technical cooperation project "Support to reforms in agriculture and land relations in Ukraine" of the World Bank take measures for introduction of this service (without involvement of commercial organizations in the process of rendering specified services) as regards notifying of pending changes with the Unified State Register of Legal Entities, Individual Entrepreneurs and Public Formations (corporate rights). In particular, the concept and task specification of the relevant software are currently being approved.
To introduce amendments to the Procedure for state registration of legal entities, physical persons entrepreneurs and public formations without legal entity status, as approved by the Order of the Ministry of Justice of Ukraine No.359/5, dated 9 February 2016, according to which: (1) the state registrars shall be obliged, when making changes in the USR in respect of ownership of corporate rights, to verify data of the SREMP to ascertain existence of registered encumbrances of such corporate rights; (2) in the presence of any encumbrances prohibiting the transfer of ownership of corporate rights - the respective registration actions shall be rejected on the basis of clause 5 of part one of Article 28 of Law No.755-IV.

Ministry of Justice

Not started
— comments: Is being discussed in the Ministry of Justice.
To prepare and approve the protocol determining the structure and format of the information files to be transferred and accepted through information interaction of information systems of the State Registry of Real Rights Over Immovable Property and the State Land Cadastre according to Clause 10 of the Resolution of the Cabinet of Ministers of Ukraine No.509, dated 12 July 2017. The respective technical protocol, inter alia, shall aim at creating technical opportunities for providing the state cadastral registrars with the information about the registered real rights over immovable property by granting direct access to the State Registry of Real Rights Over Immovable Property and entering data about owners and/or users of the land plot in the data recorded with the State Land Cadastre.

Cabinet of Ministers of Ukraine
Ministry of Justice
State Service of Ukraine for Geodesy, Cartography and Cadastre

Implemented
— comments: Informational interaction became fully operational starting from mid-November, 2017.From the practical standpoint, it means, in particular, that now cadastral registrars are finally technically able to access information on ownership or lease of a particular land plot through direct access to the Register of Rights. In addition, when the state registrar makes certain changes to the Register of Rights, the data of the relevant land plot is being automatically synchronized with the Land Cadastre
To develop a single regulations, which would set forth the procedure for assigning postal addresses to immovable property in the territory of Ukraine and harmonization of the latter with the existing legislative provisions.

Ministry of Regional Development, Construction and Residential Services

In process
— comments: On 20 March 2018, the Council received a letter from the Ministry of Regional Development, Construction and Residential Services dated 02.03.2018. No.7/14-2227, according to which it prepared Draft Law "On Amendments to Certain Laws of Ukraine regarding Improvement of Urban Development" (dated 04.05.2016 No.4585), which governs the issue of assigning postal addresses to construction sites within and outside the settlements. However, by the letter of the Cabinet of Ministers of Ukraine dated 30.12.2017 No.7532/0/2-17, the said draft law No.4585 was withdrawn from VR. At present, suggestions for regulating the issue of determining the procedure for providing an address for a construction site are included in the draft laws "On Introducing Amendments to Certain Legislative Acts of Ukraine on Improving the Investment Climate in Ukraine" (No.6540 dated 06.06.2017) and "On Amendments to Certain Legislative acts of Ukraine in the sphere of urban development" (No.7085 dated 06.09.2017), which are included in the agenda of the seventh session of the VRU of the eighth convocation in accordance with the resolution of the VRU of No.2149-VIII dated 10 March 2017. On 22.03.2018 the draft law "On Amendments to Certain Legislative acts of Ukraine in the sphere of urban development" No.7085 dated 09.06.2017 was adopted in the first reading. At the moment, the draft law is being prepared for second reading.
To strengthen efforts aimed at properly informing both the professional circles and general public about the status and actual scope of authority vested with these commissions; here emphasis shall be placed on procedural breaches that constituted ground for cancellation of registration actions, – such information should be periodically disclosed at least in the aggregated form.

Ministry of Justice

Implemented
— comments: A separate section is available at the Ministry of Justice website, which describes the activity of the State Commission on Complaints Consideration in the Sphere of State Registration; the Ministry's management constantly informs the public via media, as well as placement in social networks. The same work is conducted by the leadership of the main territorial departments of justice in regions and Kyiv city.

To initiate certain amendments to the legislation aimed at preventing breaches of the existing territoriality rules while conducting registration actions.

Ministry of Justice

Partially implemented
To introduce public disclosure of the results of the off sight documentary audits.

Ministry of Justice

Implemented
— comments: Starting from August, 2017, the Ministry of Justice has been publishing the names of registrars and notaries, whose has been stripped of (temporarily or permanently) of access to state registers, indicating (if applicable) the term of such a restrictionSee, in particular:https://minjust.gov.ua/spysok-der-reest-ta-not
To initiate changes in the Unified Registry of Notaries, which would allow for disclosure of information about the notaries whose access to state registries was blocked/cancelled.

Ministry of Justice

In process
— comments: The Deputy Minister of Justice has, on several occasions, confirmed the Ministry's intention to eventually implement such a recommendation.
To elaborate the generalized clarifications for state registrars to minimize occurrence of typical mistakes committed by them while conducting registration actions.

Ministry of Justice

Implemented
— comments: As a result of joint work of the Ministry of Justice of Ukraine and the Notary Chamber of Ukraine, a generalization "Typical mistakes that occur during state registration of the rights to real estate and its encumbrances, as well as state registration of legal entities, individual entrepreneurs and public formations" was developed, which was presented on 06.12.2017 at the joint event of the Ministry and the Notary Chamber of Ukraine.
To prepare an explanation (or introduce amendments to the relevant legislation) to properly specify the conditions (perhaps, depending upon severity of violation), whose occurrence might trigger cancellation of certificate affirming one's right to conduct notarial activity.

Ministry of Justice

In process
— comments: The Ministry of Justice is reportedly cooperating with the Notary Chamber of Ukraine on this matter.
To provide clarification that the provision of the applicants with scan copies of the documents on whose basis the registration actions have been taken should take place in the same manner as the provision of other information from the state registries To speed up work aimed at ensuring technical interaction between the State Registry of Real Rights Over Immovable Property and the Unified State Registry of Court Decisions. To prepare methodological guidelines for the state registrars regarding automatic enforcement of court decisions whose operative parts are ambiguous and/or vogue.

Ministry of Justice

In process
— comments: Is being discussed in the Ministry of Justice.
To introduce amendments to the Procedure for Carrying Out Notarial Actions by the Notaries of Ukraine, approved by the Order of the Ministry of Justice of Ukraine No.296/5, dated 22 February 2012, by supplementing it with a separate section about notarization of images of scanned documents, based on which the registration actions were made, on the PC screen (screenshots).

Ministry of Justice

In process
— comments: The process of developing amendments to the relevant regulatory acts in conjunction with introduction of the "electronic notary" is underway.
To develop and approve the Methodological Guidelines for Prosecutors in accordance with clause 9 of part 1 of Article 9 of the Law of Ukraine "On Prosecution", in order to ensure more uniform application of legislative acts of Ukraine when conducting the prosecutorial activities in the procedural management over the investigation of "raidership" crimes. Given that, in accordance with the applicable Criminal Procedural Code of Ukraine, the prosecutors, in the exercise of the procedural management, are empowered with procedural management over the progress of the pre-trial investigation, the Council believes that such Methodological Guidelines should help the prosecutors effectively coordinate the work of investigators in the investigation of intricate "raidership" schemes.

Prosecutor General’s Office of Ukraine

In process
— comments: As reported by the Deputy Prosecutor's General some time ago at the Meeting Of the Inter-Governmental Working Group aimed at Combatting Raidership, chaired by First Deputy Prime Minister of Ukraine.
To ensure generalization of the existing practice of the investigation of "raidership" crimes, on which basis develop and approve the Methodological Guidelines on the investigation of the most typical cases of raidership in accordance with the Instruction on the organization of the activities of the pre-trial investigation bodies of the Ministry of Internal Affairs of Ukraine, jointly with the Ministry of Justice of Ukraine, the National Police of Ukraine, the representatives of the judicial authorities and law enforcement self-governance bodies, specialized non-governmental organizations, as well as with participation of the Council.

The Main Investigation Department of the National Police

Not started
To include in the Draft Law No.6232 provisions which would: -Introduce amendments to the Administrative Procedural Code of Ukraine providing that the subject matter of the claims in the administrative proceedings cannot be demand to cancel or revoke the registration entries in the state registries, if enforcement of decision taken in such a case would directly result in the emergence, modification or termination of real rights or encumbrances.

Verkhovna Rada of Ukraine
Administration of the President of Ukraine

Implemented
— comments: In accordance with p. 3 of Art. 19 of the Code of Administrative Adjudication of Ukraine dated 07.01.2018, administrative courts do not consider claims that derive from claims in a private-law dispute and are filed therewith, if this dispute is subject to consideration other than as provided hereunder, and is being considered by the relevant court.
To include in the Draft Law No.6232 provisions which would:-Introduce amendments to the Civil Procedure Code of Ukraine and the Commercial Procedure Code of Ukraine, which would foresee that property owner, when applying to the court for the protection of his/her property right, can unite in a single claim several related claims due to be considered under the rules of different types of litigation, provided that a separate consideration of such claims by the courts of different jurisdictions would deprive him/her of efficient legal protection envisaged in Article 13 of the European Convention on Human Rights and Fundamental Freedoms.

Verkhovna Rada of Ukraine
Administration of the President of Ukraine

Implemented
— comments: According to para. 13 of Art. 20 of the Commercial Procedural Code of Ukraine, commercial courts shall consider cases in disputes arising in connection with the conduct of economic activity, in particular, claims for the registration of property and property rights, other registration actions, invalidation of acts violating rights to property (property rights), if such claims derive from a dispute regarding such property or property rights or a dispute deriving from corporate relations, if this dispute is subject to consideration in the commercial court and submitted thereto for consideration along with such claims;According to p. 12 of Art. 30 of the Commercial Procedural Code of Ukraine (exclusive jurisdiction), claims for registration of property and property rights and other registration actions, if consideration of such claims falls within the jurisdiction of the commercial court, are considered by the commercial court determined by the rules of jurisdiction of the dispute, the derivatives whereof such laims are.The Civil Procedural Code of Ukraine Para. 2 of p. 1 of Art. 19 of the Civil Procedural Code of Ukraine states that courts shall, in accordance with the procedure of civil proceedings, also consider claims for the registration of property and property rights and other registration actions, if such claims derive from a dispute regarding such property or property rights, if this dispute is subject to consideration in the local general court and referred thereto for consideration with such claims.According to p.8 of Art. 30 of the Civil Procedural Code of Ukraine (exclusive jurisdiction), the claims for registration of property and property rights, other registration actions are considered by a court determined according to the rules of jurisdiction of the dispute, the derivatives whereof such claims are.
To speed up work aimed at ensuring technical interaction between the State Registry of Real Rights Over Immovable Property and the Unified State Registry of Court Decisions.

State Judicial Administration

In process
— comments: Coordination of consultations between two technical administrators are still ongoing.
To prepare methodological guidelines for the state registrars regarding automatic enforcement of court decisions whose operative parts are ambiguous and/or vague.

Ministry of Justice

Not started
To develop unified practical guidelines and methodologies to help the companies build and improve the reliable compliance systems. The Council emphasizes that such guidelines could be useful for businesses, if they cover the issues of best practices in the area of corporate governance; ensure a balanced allocation of authorities among managerial bodies of the company; propose optimal approaches to the development of internal policies/regulations (document signing/ initialization procedures, reporting policies, risk management, key performance indicators, etc.); disclose the essence of the procedures that determine the nature of violation associated with conflicts of interest as well as the mechanisms of ongoing control to detect violations, etc. Appropriate attention to those issues will help mitigate raidership risks.

National Agency on Corruption Prevention

Implemented
— comments: The Decision of the NACP dated 22.09.2017 No.734 approved the Methodical recommendations for the preparation and implementation of anti-corruption programs of legal entities.
To complete the implementation of the measures envisaged in the State Program for Implementation of the National AntiCorruption Policy for 2015-2017 in terms of addressing corruption in private sector. To ensure a sustainable effect, particular measures should also be reflected when developing the National Anti-Corruption Policy for subsequent years by the National Corruption Prevention Agency.

National Agency on Corruption Prevention

Implemented
— comments: According to the NACP's response to the Council's request (letter dated 19.03.2018 No.20-23/10304/18), the relevant measures have already been implemented.
To strengthen the training capacity of the National Corruption Prevention Agency and the Ministry of Justice of Ukraine to raise awareness of companies about the international standards and their implementation by the private sector.

National Agency on Corruption Prevention

In process
— comments: The NACP Development Strategy for 2017-2020 and plans for its implementation, approved by the NACP decision dated 22.06.2017 No.234, provides for the annual studies on implementation of the assessment of corruption risks in the activities of legal entities. Thus, the NACP informs about carrying out 6 trainings for authorized persons responsible for implementation of anti-corruption programs of the state enterprises, which belong to the sphere of management of the relevant ministries.
To encourage the development of the network of partnership relations with business circles and non-for-profit organizations for collective counteraction of raidership risks. For example, in May 2017 the Council, with the support of the European Bank for Reconstruction and Development (EBRD) and the OECD, presented the Ukrainian Network of Integrity and Compliance.

Ministry of Justice
National Agency on Corruption Prevention

In process
— comments: Although according to Art. 11 of the Law of Ukraine "On Preventing Corruption", the counteraction to the risks of raidership does not fall under the authority of the NACP, as far as 2018 is concerned, the NACP, in conjunction with the "Transparency and Integrity of the Public Sector" project of the United Nations Development Program has scheduled 5 roundtables to discuss the issues that were raised by representatives of business community during implementation of the anti-corruption programs.

Systemic report "Challenges for government and business in dealing with local government"

To finish drafting regulations governing the decentralization of government powers in all branches and spheres providing administrative and social services, and clearly identify the functions of local executive bodies and LGAs at all levels in terms of providing such services.

Ministry of Regional Development, Construction and Residential Services

In process
— comments: A number of laws have been adopted , the provisions of which regulates the issue of delegating powers from executive to local authorities, in particular, powers in the field of architectural and construction supervision (control) and improvement of urban planning legislation; provision of an administrative service for issuance of permits and provision of administrative services through the ASCs (Administrative Services Centers).

To draft and institute state quality standards and norms for administrative, social and other public services in the relevant spheres.

Ministry of Regional Development, Construction and Residential Services

Partially implemented

To continue setting up ASCs. To improve the quality and level of administrative services being provided, the Regional Development Ministry should, in coordination with other CEBs, ensure that consultative, expert, methodological and other support is provided to unified territorial communities so that they can set up and organize operations to provide administrative services in these centers.

Ministry of Regional Development, Construction and Residential Services

Implemented
— comments: As of 7 March 2018, 746 ASCs were created. Within the framework of the "U-LEAD with Europe" program, support is provided for creation and improvement of up to 600 ASCs by the end of 2020, including information and communication infrastructure creation.

To organize professional development programs for officials in LGAs, local council deputies, and civil servants at LEBs to improve personnel quality for the decentralization process and the future functioning of local executive bodies and LGAs so that they can properly exercise their new powers; engage relevant state institutions, associations of local governments and civil society institutions in this process.

Ministry of Regional Development, Construction and Residential Services

Implemented
— comments: The Ministry of Regional Development, Construction and Residential Services with the assistance of foreign partners (DESPRO, GIZ, UNDP, Dialog, U-LEAD, etc.), is carrying out measures to provide methodological and practical assistance to local authorities. Methodological recommendations have been developed; training seminars, lecture courses, exchange of positive experience take place regularly.Methodological support on prevention of corruption is carried out for civil servants and local authorities by the National Agency of Ukraine on Civil Service together with the National Academy of Public Administration under the President of Ukraine. About 70 000 employees are training each year.
To establish a constitutional basis for regulating the devolution of power and simultaneously instituting state oversight of LGA decisions while continuing to work on amending the Constitution as necessary, via Draft Law No.2217а dated 1 July 2015 "On amendments to the Constitution of Ukraine (regarding decentralization of power)".

Ministry of Regional Development, Construction and Residential Services
Verkhovna Rada of Ukraine

In process
— comments: Status as of 10 December 2015 Committee's submission for review was presented. Pending review.
To adopt laws that remove legal gaps and foster voluntary unification of territorial communities (No.4772 dated 3 June 2016, and No.5520 dated 9 December 2016).

Verkhovna Rada of Ukraine

Implemented
— comments: 1) The Law “On Amendments to Certain Legislative Acts of Ukraine (regarding Voluntary Joining of Territorial Communities)” has been adopted on 9 February 2017 (Draft Law No.4772).2) The Law “On Amendments to Certain Legislative Acts of Ukraine regarding Peculiarities of the Voluntary Joining of Territorial Communities Located on the Territories of the Adjoining Areas” has been adopted on 14 March 2017 (Draft Law No. 5520).

To adopt the Draft Law No.2489 "On serving in local government agencies" dated March 30, 2015, which defines the principles, legal and organizational basis for serving in local government agencies, regulates the status of LGA employees, and ensures comprehensive reforms of serving in LGAs, keeping in mind the staffing needs for decentralization.

Verkhovna Rada of Ukraine

Recommendation is no longer relevant
To institute drafting transparent competitive procedures for selecting personnel to staff LGAs and the executive bodies of local governments, and formulating the necessary qualification requirements.

Ministry of Regional Development, Construction and Residential Services

Not started
— comments: As of today, the outdated procedure for conducting a competition for filling vacancies of civil servants listed in the CMU Resolution No.169 dated 15 February 2002, is being followed.
To monitor and evaluate the work of local state administrations and their officials to ensure impartial oversight and greater effectiveness in public administration, in line with the new Law of Ukraine "On the civil service."

Ministry of Regional Development, Construction and Residential Services

In process
— comments: Monitoring and assessment of the of local state administrations and their officials activities is stipulated in the Draft Law "On Service in Local Self-Government Authorities" No.2489.The CMU Resolution No.987 dated 21 December 2011 "On Annual Reports of Heads of Oblast, Kyiv and Sevastopol City State Administrations" obliges the Heads of Oblast, Kyiv and Sevastopol City State Administrations to submit reports annually (by February 1) on exercising the assigned powers by the relevant state administrations as well as on the development status of the respective territory according to the established form.
To join forces with all-Ukrainian associations of LGAs to draft a law establishing the procedure for the further functioning or elimination of county councils in counties whose boundaries coincide completely with those of territorial communities.

Ministry of Regional Development, Construction and Residential Services
Regional State Administrations
All-Ukrainian associations of LGAs

In process
— comments: Draft Law No.6636 dated 22 June 2017 "On the Procedure for Creation, Liquidation of Districts, Creation and Modification of Their Borders" is pending review. The Draft Law will solve duplication of powers problem
To support the Bill "On prefects," which give prefects the power to rescind any acts by local government agencies that violate the Constitution or Laws of Ukraine and simultaneously appeal to a court.

Ministry of Regional Development, Construction and Residential Services
Verkhovna Rada of Ukraine

In process
— comments: The Institute of Prefects will appear upon adoption of amendments to the Constitution of Ukraine (on decentralization) and, accordingly, after liquidation of the local state administrations.The Draft Law contains provisions according to which the prefect may rescind acts of a local self-government authority in whole or in part.
To recommend the Ministry of Justice draw up Guidelines to approve standard statutes for territorial communities and sample provisions on elders.

Ministry of Justice

Not started
— comments: The Ministry of Justice informed that it was not empowered to develop methodological recommendations on the approval of the Standard statute of the territorial community and Sample Provisions on elders. Currently, there is a Standard Territorial Community Statute and Sample Provisions, developed under the USAID DIALOGUE Project, which is being implemented by Association of Ukrainian Cities.

To provide a mechanism for taking individuals working at local government agencies to court, for instance, by amending the Criminal Code and the Code on Administrative Violations to increase the liability of government personnel at the local level.

Ministry of Regional Development, Construction and Residential Services

In process
To join forces with all-Ukrainian associations of LGAs and similar organizations to provide LGAs and LEBs with guidelines for actually carrying out the process of unifying communities, with particular attention to the procedure for transferring contractual commitments.

Ministry of Regional Development, Construction and Residential Services
All-Ukrainian associations of LGAs

Implemented
— comments: The methodical recommendations were developed and newly elected united territorial communities were provided with the necessary informational materials.
The CEBs that were managing educational, cultural, research and medical institutions and organizations, should be required, in the process of transferring such properties to UTCs:To prepare a list of current liabilities related to assets on their balance and inform the unified territorial community about all such liabilities;To notify enterprises with whom service and other contracts have been made on behalf of such CEBs and institutions about their transfer to UTC ownership.

Cabinet of Ministers of Ukraine

In process
— comments: The Ministry of Regional Development, Construction and Residential Services conducted an analysis of the of educational, cultural, social protection, physical education and sports establishments functioning in the United Territorial Community for the development of common approaches to creating typical models of a single educational, cultural, physical culture, sports and social environment in different types of basic level administrative and territorial units
To regulate the issue of transferring the responsibilities and functions of the State Environmental Protection Administration in the procedure provided for in CMU Resolution No.1074 "On approving a Procedure for taking steps related to setting up, reorganizing or liquidating ministries and other central executive bodies," dated 20 October 2011.

Ministry of Finance
Ministry of Economic Development and Trade
Ministry of Justice
Ministry of Environment and Natural Resources

Not started
— comments: In the case of executive authorities liquidation, including territorial ones, their rights and obligations in accordance with the CMU Resolution No.1074 dated 10 October 2011, shall be transferred to another executive authority.

To draft amendments to the Law of Ukraine "On protecting the atmosphere" to ensure that a list and document requirements for commercial entities seeking a stationary plant emissions permit are established in a special law.

Ministry of Justice
Ministry of Environment and Natural Resources
State Regulatory Service

In process
— comments: The Ministry of Ecology and Natural Resources informed that the recommendation was taken into account by the MEDT. The Draft Law is aimed at improving procedures for issuing permits and establishing basic requirements in respective laws regulating issuance of permits, determined by the Laws of Ukraine "On Administrative Services" and "On Permit System in the Sphere of Economic Activities".

To draft amendments to Arts. 53-5 of the Code of Administrative Violations to increase the liability of government officials in proportion to the severity of their breaches, such as ignoring deadlines, both for approving land development documentation and for reviewing applications for permits to draw up land development plans.

Ministry of Justice
Ministry of Agricultural Policy and Food
State Regulatory Service

In process
To amend the Procedure for the transfer or lending of community-owned municipal land into use or ownership, approved by Kyiv City Council Decision No.63/9120 on 28 February 2013, so that it:- includes clear timeframes for LGAs to make a decision to agree or refuse to lease a plot of land;- provides timeframes within which LGAs must make a decision to accept or reject an application to extend a land lease agreement;- provides clear rules for LGAs and lessees to act in drawing up a land lease agreement or extending an existing lease, and timeframes for these actions.

Kyiv City State Administration

Implemented
— comments: Kyiv City State Administration adopted the Decision No.241/2463 dated 20 April 2017 "On Approval of the Procedure for Acquiring Rights to Land from Communal Property Lands in Kyiv", which, in particular, substantially simplified the procedure for provision of land plots for use, as well as established time frames and a clear actions algorithm of the lessor and the lessee.

To develop recommended guidelines for local government agencies regarding: compliance of land lease-related regulations adopted by local councils with Ukrainian law; the inclusion of clear rules for clear rules for the LGA and individuals interested in leasing a land plot or extending an existing lease to act, including clear timeframes for LGAs to make decisions to offer or not offer a land plot for lease, a list of required documents, publicly accessible texts of related regulations, and so on.

Ministry of Regional Development, Construction and Residential Services
Ministry of Agricultural Policy and Food
State Regulatory Service

Implemented
To prepare guidelines for damages to landowners and users to be determined by commissions set up by local state administrations and the executive committees of local councils and those of oblast-level cities.

Ministry of Environment and Natural Resources
Ministry of Agricultural Policy and Food

Not started
To ensure the adoption of changes to CMU Resolution No.284 dated 19 April 1993, to establish: a clear and thorough list of circumstances for compensating damages to land owners and users; a regulated procedure for reviewing requests to establish the extent of damages; timeframes for reviewing requests to establish damages and making the necessary decision.

Ministry of Justice
Ministry of Environment and Natural Resources
Ministry of Agricultural Policy and Food
State Regulatory Service

Not started

Systemic report "Challenges and problems in the sphere of competition protection and oversight"

To make sure that the AMCU’s e that annual plans, prepared by the AMCU, clearly specify (i) the main priority areas of the AMCU’s activities for the forthcoming year; and, where relevant, (ii) markets that will be subjected to comprehensive studies. 

Antimonopoly Committee of Ukraine

Implemented
— comments: Please see, in particular, the AMCU’s Annual Report for 2017 (approved by the AMCU’s Regulation dated 28 February 2018 No.5—рп). Furthermore, at the official AMCU’s website is indicated the Action plan on drafting regulatory acts for current year.
To adopt legislative amendments aimed at unleashing the AMCU's existing institutional capacity.

Antimonopoly Committee of Ukraine

In process
— comments: The relevant Draft Law No.6724 dated 14 July 2017 "On amending certain laws on protection of economic competition" has been adopted in the 1-st hearing on 9 November 2017.
The AMCU's advocacy activities has to be broadened by (i) strengthening cooperation with other government bodies; and (ii) improving existing practice of issuing practical recommendations based on the prior market studies performed by the AMCU.

Antimonopoly Committee of Ukraine

In process
— comments: The AMCU continues work aimed at improving cooperation with the state authorities, in particular by signing memorandums and holding public events (conferences).
To develop a roadmap aimed at implementing the NCDP Concept for 2014-2024 by the ministries and other state bodies.

Antimonopoly Committee of Ukraine

In process
— comments: Currently the AMCU is elaborating an Action plan focused on implementation of the National Concept on Competition Development in Ukraine for 2014-2024. The relevant draft shall be prepared and submitted to the CMU until the end of 2018.
To accelerate working relations between the AMCU and the state authorities (with the focus on sectoral regulators) by expanding the practice of entering into respective cooperation agreements/memorandums on competition-related issues.

Antimonopoly Committee of Ukraine

In process
— comments: The AMCU has signed memoranda on cooperation with the National Commission, which carries out state regulation in the fields of energy and utilities, the Ministry of Agricultural Policy and Food as well as with the State Service of Ukraine for food safety and consumer protection.
In order to facilitate effective exercise of powers vested with the AMCU in connection with anti-trust clearance of privatization transactions, ensure that not only the AMCU itself but also other authorities should play active role in eliminating some of the existing impediments. Hence, the Council recommends as follows:a) To specify the exact scope of duties to be borne by each institution involved into privatisation process (for instance, the SPF, sectoral regulators, etc.).b) To introduce transparent procedure for the exchange of information between the AMCU and the relevant bodies (including the SPF, the regulators managing the state enterprise, bidders, etc.) for the purpose of the AMCU’s transaction clearance. If such an approach were to be employed (for instance, between the AMCU and the SPF), this would help addressing allegation of the business that the SPF might provide inaccurate or incomplete information about the potential target.

Antimonopoly Committee of Ukraine
Verkhovna Rada of Ukraine
State Property Fund of Ukraine

In process
— comments: On 18 January 2018 the VRU adopted the Law of Ukraine No.7066 "On privatization of state and municipal property (the Law No.7066"), which entered into force on 7 March 2018 and which, among other things, further specifies the powers of state authorities in the field of privatization.

To amend the Procedure of Notifying the AMCU for Prior Approval of Concentration of Undertakings to ensure that consideration of consent on concerted actions due to execution of non-competition agreement is conducted on the basis of simplified procedure, provided that receipt of concentration consent is already carried out on the basis of simplified procedure.

Antimonopoly Committee of Ukraine
Verkhovna Rada of Ukraine

In process
— comments: Currently, the AMCU is elaborating the draft law on amending the Law of Ukraine “On protection of economic competition” in respect of procedure for obtaining the prior approvals of concentrations.

To amend Article 52, para. 2, part 2 of the Competition Protection Law to ensure clear identification of parties liable for failure to notify about concentration.

Antimonopoly Committee of Ukraine
Verkhovna Rada of Ukraine

In process
— comments: Currently, the AMCU is elaborating the draft law on amending the Law of Ukraine “On protection of economic competition” in respect of procedure for obtaining the prior approvals of concentrations.
To set clear deadlines for consideration (investigation) of cases on abuse of monopolistic (dominant) market position by introducing respective amendments into Chapter VII of the Competition Protection Law and/or Chapter VII of the Rules of Consideration of Applications and Cases on Violation of Legislation on Economic Competition, approved by the Resolution of the AMCU No.5, dated 19 April 1994 (hereinafter - the "Rules of Consideration of Applications on Violation of Competition Legislation").

Verkhovna Rada of Ukraine

In process
— comments: The relevant Draft Law "On amending certain laws of Ukraine to ensure adherence with the principles of procedural justice and increasing the efficiency of proceedings in cases of violations of the legislation on the protection of economic competition" No.6746 dated 17 July 2017 has been adopted in the 1-st hearing on 9 November 2017.
To expressly provide that if an applicant were to withdraw its' application in a case on abuse of monopolistic (dominant) position, this shall not constitute the substantial ground for the AMCU to exercise its' procedural discretion to terminate consideration of a case. Hence, the respective amendments are proposed to be introduced to the Rules of Consideration of Applications on Violation of Competition Legislation. In the Council's view, it should allow minimizing the risk of possible pressure inflicted on an applicant by an undertakings occupying monopolistic (dominant) market position in whose relation the respective case has been launched.

Antimonopoly Committee of Ukraine

Not started
— comments: Currently the AMCU does not uphold the BOC's recommendation.
To adjust the AMCU's internal decision making procedure to ensure that when rendering an initial decision on its' merits falls under the authority of the AMCU's Board of Commissioners, the adoption of such a decision shall require majority of the AMCU's composition established by law (i.e., 5 persons), save for the Commissioner who investigated the case. The latter, nonetheless, should remain to be involved into decision making process by being entitled to present results of investigation during the respective procedural hearing.

Antimonopoly Committee of Ukraine

In process
— comments: The recommendation is reflected in the Draft Law No.6746 (amendments to the Article 48 of the Law of Ukraine "On protection of economic competition").
The AMCU, prior to the adoption of the Methodology for calculating the amount of fines, to carry out monitoring of application of the existing Recommended Explanations and regularly (at least once per quarter) publicize information about its' practical application.

Antimonopoly Committee of Ukraine

In process
To adopt the Draft Law No.2431 in so far as it envisages existence of the Methodology for calculating amount of fines as binding legislative act.

Verkhovna Rada of Ukraine

In process
— comments: The Draft Law “On amending the laws on protection of economic competition regarding determination by the AMCU’s bodies of the amount of fines for violation the legislation on the protection of economic competition” No.2431 dated 19 March 2015 has been forwarded for the repeated second hearing.On 16 June 2016, the table with revisions has been prepared.
To amend the Competition Protection Law to enable judicial challenge of the amount of fine imposed by the AMCU body, subject to existence of the Methodology for calculating the amount of fine for breach of competition laws, adopted in the form of legislative act, whose application is mandatory for both the AMCU and the bodies of judicial power.

Verkhovna Rada of Ukraine

In process
— comments: The Draft Law “On amending the laws on protection of economic competition regarding determination by the AMCU’s bodies of the amount of fines for violation the legislation on the protection of economic competition” No.2431 dated 19 March 2015 has been forwarded for the repeated second hearing.On 16 June 2016, the table with revisions has been prepared.
To implement the practice of periodic aggregation and publication of the main substantial content of individual recommendations issued by the AMCU in the form of non-binding informational letters.

Antimonopoly Committee of Ukraine

Implemented
— comments: Currently, the AMCU publishes the content of individual recommendations, issued to the business entities.For instance, the AMCU publishes the Generalized Explanations in the sphere of state aid, completed following examination of the most common questions in respect of the Law of Ukraine “On State Aid to Undertakings”.
To introduce electronic database that would enable applicants to retrieve general information about the current status of consideration of requests/applications lodged with the AMCU, which is not confidential in nature.

Antimonopoly Committee of Ukraine

In process
— comments: Although the AMCU has generally supported the BOC"s recommendation, it emphasized the need to allocate additional funding in order to implement the recommendation.
To amend Article 40 of the Competition Protection Law in order to:a) set maximum time limits for (i) responding with further explanations and/or clarifications requested by the AMCU; and (ii) lodging objections by the parties that disagree with the AMCU’s interim procedural decisions in cases on mergers/ concerted actions;b) establish specific/maximum time limits for the AMCU’s consideration of requests on access to the case materials lodged by the parties;c) expressly enable interested parties to lodge requests with the AMCU to seek initiation of hearing on concentrations/concerted actions, with such requests being subject to the AMCU’s mandatory consideration and provision of grounded answer within reasonable time limits.

Antimonopoly Committee of Ukraine
Verkhovna Rada of Ukraine

Not started
— comments: The AMCU will consider the possibility for implementation the aforesaid recommendation during preparation of the next set of amendments to legislation.
To reduce fines for parties other than the first one to file, thus making the existing leniency regime more inclusive.

Verkhovna Rada of Ukraine

In process
— comments: The relevant Draft Law "On amending certain laws of Ukraine to ensure adherence with the principles of procedural justice and increasing the efficiency of proceedings in cases of violations of the legislation on the protection of economic competition" No.6746 dated 17 July 2017 has been adopted in the 1-st hearing on 9 November 2017.
To amend Article 18, para 10 of the Law of Ukraine "On Public Procurements" to enable complaining bidder or any other participant of the appeal procedure to submit additional documents related to the merits of the complaint.

Antimonopoly Committee of Ukraine
Verkhovna Rada of Ukraine

In process
— comments: The relevant amendments to the clause 10 of the Article 18 of the Law of Ukraine "On Public Procurements" is currently being drafted by the AMCU. It is planned that the MEDT would submit the foregoing draft with VRU in 2018.
Whereas public procurement procedures and non-judicial appeal procedure are documented in electronic form, - to ensure admissibility of evidence lodged with the Ukrainian courts in the form of electronic documents by either:a) amending Article 79, para 1 of the Administrative Procedural Code of Ukraine and relevant regulations governing circulation of electronic documents accordingly; or byb) amending Article 12, para 3 of the Law of Ukraine “On Public Procurements” along with relevant provisions of the Administrative Procedural Code of Ukraine on evidences, to provide administrative courts with the right to access electronic procurement system.

Verkhovna Rada of Ukraine

Implemented
— comments: The clause 9 of the Article 79 of the Administrative Procedural Code of Ukraine recognizes admissibility of evidence submitted in electronic form.
To continue enhancing awareness amongst state and municipal authorities and business about the substance of the forthcoming legal framework on state aid and the general implications stemming therefrom.

Antimonopoly Committee of Ukraine

Implemented
— comments: In August 2017, the separate Department on State Aid was formed at the AMCU. The Department in particular, provides explanations on the implementation of state aid legislation to the undertakings. Furthermore, the AMCU permanently conducts the relevant public events (220 events in 2017).In addition, due to the numerous letters from central and local government agencies, on 5 October 2017, the AMCU issued an explanation on the implementation of the state aid legislation No.35-pp/dd, which provides answers to the most common issues regarding the implementation of legislation in the field of state aid.
To maintain active dialogue with both providers and beneficiaries of state aid to discuss existing and contemplated policy choices in the field.

Antimonopoly Committee of Ukraine

Implemented
— comments: With the enactment in full of the Law of Ukraine "On State Aid to Undertakings", the AMCU with the support of the EU International Technical Assistance Project in August 2017 prepared and implemented the Information and Analytical System "Register" (electronic platform). The "State Aid Portal" was created to collect information on current and new state aid, it contains a register of state aid, a register of decisions, a register of cases, etc. Using the portal, it is convenient to provide information on state aid.
To ensure that pending secondary legislation is both available and adequate from both procedural and substantial standpoint. In particular, to ensure compliance with Article 6 of the State Aid Law, the CMU shall adopt:a) Resolutions on provision of state aid in specific areas (i.e., regional development; support of small and medium business development; employees’ professional development; reorganization and restructuring of undertakings; development of certain branches of economy, etc.).

Cabinet of Ministers of Ukraine
Antimonopoly Committee of Ukraine

Implemented
— comments: Nowadays, the Cabinet of Ministers of Ukraine has approved the majority of the Criteria for the admissibility of state aid:1) Criteria for assessment the admissibility of state aid to business entities for the training of employees (Resolution of the CMU dated 11 January 2018 No.11);2) Criteria for assessment the admissibility of state aid to business entities for the employment of certain categories of employees (Resolution of the CMU dated 31 January 2018 No.33); 3) Criteria for assessment the admissibility of state aid for restoring solvency and restructuring of business entities (Resolution of the CMU dated 31 January 2018 No.36);4) Criteria for assessment the admissibility of state aid to business entities to ensure the development of regions and support of medium and small businesses (Resolution of the CMU dated 7 February 2018); 5) Criteria for assessment the admissibility of state aid to business entities for carrying out scientific research, technical development and innovation activities (Resolution of the CMU dated 2 June 2018).Currently, the Criteria for the admissibility of state aid for the protection of the environment and for supporting coal industry are being drafted.
Methodology for calculating amount of state aid.

Cabinet of Ministers of Ukraine
Antimonopoly Committee of Ukraine

In process
— comments: The draft document is currently being approved with the Energy Community, as requested by the Electricity Market Law.
Procedure for illicit state aid's recovery.

Cabinet of Ministers of Ukraine
Antimonopoly Committee of Ukraine

Implemented
— comments: The CMU Resolution No.468 dated 4 July 2017.
To improve both scope and quality of information due to be received from aid providers the AMCU is recommended to intensify its' advocacy activities aimed at clarifying existing procedure for notifying AMCU about state aid, including, inter alia, by disseminating respective reporting templates.

Antimonopoly Committee of Ukraine

Implemented
— comments: Due to the numerous letters from central and local government agencies, on 5 October 2017, the AMCU issued an explanation on the implementation of the state aid legislation No.35-pp/dd, which provides answers to the most common issues regarding the implementation of legislation in the field of state aid.
To promptly start inventory of state aid Measures subject to availability of the relevant and properly tested material base (hardware and software).

Antimonopoly Committee of Ukraine

Implemented
— comments: With the enactment in full of the Law of Ukraine "On State Aid to Undertakings", the AMCU with the support of the EU International Technical Assistance Project in August 2017 prepared and implemented the Information and Analytical System "Register" (electronic platform). The "State Aid Portal" was created to collect information on current and new state aid, it contains a register of state aid, a register of decisions, a register of cases, etc. Using the portal, it is convenient to provide information on state aid.