A new procedure for importing, accounting, and distributing humanitarian aid
Photo: Kelly Sikkema, unsplash.com
Prepared by: Alyona Shulima, Partner of Pragma Consulting Group, Ph.D., Olena Yaliieva, Counsel of Pragma Consulting Group
In this issue
- Updated terminology of the Law of Ukraine “On Humanitarian Aid”
- New procedures for the import and registration of humanitarian aid, and reporting on it
- Peculiarities of regulation during the period of martial law introduced by the Decree of the President of Ukraine “On the introduction of martial law in Ukraine” dated February 24, 2022 No. 64/2022
On January 23, 2024, Law of Ukraine No. 3448-ІХ “On Amendments to Certain Laws of Ukraine Regarding the Importing, Accounting, Distributing Humanitarian Aid, Features of Taxation of Relevant Operations and Submission of Reports” entered into force, which establishes new approaches to the definition of humanitarian aid, as well as simplified approaches to its registration and accounting. In our review, we will consider the main novellas that will come into force shortly.
Updated terminology of the Law of Ukraine “On Humanitarian Aid”
The law provides for updating the terminology used in the Law of Ukraine “On Humanitarian Aid”. Among other things, the expansion of legal entities and representative offices of foreign states, international and foreign humanitarian organizations in Ukraine, which can be recipients of humanitarian aid (that is, entities that have the right to receive humanitarian aid for further distribution among persons who need such aid – beneficiary of humanitarian aid). In particular, this list includes: public associations (regardless of their profile of activity, for the implementation of their statutory non-profit activities); non-profit state and communal enterprises, institutions, organizations and local self-government bodies; the central body of the executive power implementing the state policy in the field of civil protection and/or another authorized central body of the executive power (to ensure the civil protection forces subordinated to it); providers of medical and/or rehabilitation services, regardless of the form of ownership, who have concluded an agreement on medical services for the population and health care institutions belonging to the sphere of management of subjects of the security and defense sector.
In addition, the Law made changes to Article 6 in the part of the list of excisable goods that can be humanitarian aid: if earlier the exception for vehicles applied only to those transferred for the implementation of measures to ensure national security and defense, repel and deter armed aggression by Russian Federation in Donetsk and Luhansk regions, the new edition does not provide for such a geographical limitation. It is also clarified that the state bodies that are part of the security and defense sector of Ukraine have the status of the recipient of humanitarian aid, and from the moment of using such vehicles – the status of the beneficiary of humanitarian aid. In addition, the list of the destinations of vehicles intended for the transportation of more than eight people, for which such vehicles can be considered humanitarian aid, is being expanded.
New procedures for the import and registration of humanitarian aid, and reporting on it
The law provides for the introduction of an automated system of registration of humanitarian aid in accordance with the procedure established by the Cabinet of Ministers of Ukraine. At the same time, during the period of martial law introduced by the Decree of the President of Ukraine “On the introduction of martial law in Ukraine” of February 24, 2022 No. 64/2022, the recipient and acquirer (if he is a legal entity) of humanitarian aid is exempted from the obligation to submit monthly reports on the availability and distribution of humanitarian aid until the possibility of submitting reports in electronic form using the automated humanitarian aid registration system.
In addition, during the period of martial law, the Cabinet of Ministers of Ukraine has the right to establish a simplified procedure for recognizing humanitarian aid based on the declarative principle, as well as to expand the list of recipients of humanitarian aid.
The law also clarified the issue of changing the recipient of humanitarian aid, as well as regulated the issue of distribution of aid by the recipient among beneficiaries of humanitarian aid. Thus, in order to change the recipient of humanitarian aid, it remains necessary to obtain written consent from the donor – unless such consent was given by the donor at the time of his proposal to provide humanitarian aid or is stipulated by the deed regarding the implementation of humanitarian aid. The distribution of humanitarian aid between beneficiaries of such aid is carried out by the aid recipient without agreement with the donor – provided that the intended purpose of such aid is preserved. It was also clarified that in case of impossibility to use the items of humanitarian aid for their intended purpose, such items are subject to return to the donor at his expense.
Peculiarities of regulation during the period of martial law introduced by the Decree of the President of Ukraine “On the introduction of martial law in Ukraine” dated February 24, 2022 No. 64/2022
Since the law enters into force almost two years after the start of a full-scale war, it not only introduces the peculiarities of the regulation of legal relationships in the conditions of the current state of war, but also contains a number of transitional provisions aimed at preventing conflicts of legislation regarding the humanitarian aid that has already been imported into Ukraine.
Thus, it is provided that during the period of martial law and within three months after its termination or cancellation, persons who may be recipients of humanitarian aid in accordance with this Law are recognized as such regardless of their inclusion in the Unified Register of Humanitarian Aid Recipients.
Also, during the period of martial law and within 12 months after its end, a special regime is established regarding humanitarian aid for energy needs, in particular, the Cabinet of Ministers of Ukraine establishes the procedure for receiving humanitarian aid to meet energy needs from donors, its storage, distribution, and transfer to beneficiaries.
For the period of measures necessary to ensure the defense of Ukraine, the safety of the population, and the protection of the interests of the state in connection with the military aggression of the Russian Federation against Ukraine, according to the simplified procedure established by the Cabinet of Ministers of Ukraine, vehicles whose ultimate beneficiaries are military personnel are recognized as humanitarian aid, if these vehicles are used for such activities. In addition, environmental regulations are not applied to vehicles considered humanitarian aid during martial law.
In addition, during the period of martial law and for three months after its termination or cancellation, an expanded definition of the term “humanitarian aid” applies, which includes, in addition to goods and services defined by law, also goods (works, services) purchased by charitable organizations, created in accordance with the procedure established by the Law of Ukraine “On Charitable Activities and Charitable Organizations” abroad and declared by them upon import into the customs territory of Ukraine as humanitarian aid, if they were given free of charge to the beneficiaries of humanitarian aid within 90 days from the moment of crossing the border. In this case, the charitable organization has the status of a donor during the acquisition of goods (works, services), and from the moment they are imported into the customs territory of Ukraine – the status of a recipient of humanitarian aid.
It is important to note that the stated changes to Article 15 “Final and Transitional Provisions” of the Law of Ukraine “On Humanitarian Aid” relate exclusively to the period of martial law introduced by the Decree of the President of Ukraine “On the Introduction of Martial Law in Ukraine” dated February 24, 2022 No. 64/2022. At the same time, a number of them, in accordance with paragraph 2 of Section II “Final Provisions” of the Law of Ukraine No. 3448-IX of November 8, 2023, apply to legal relationships that arose during the period of martial law, therefore mentioned in para 2 provisions can be applied to legal relationships that have arisen from February 24, 2022.
