Ukraine’s Supreme Court rules that certain shortcomings of inspection documents cannot serve as grounds for invalidating decisions by the DABI

22/ 07/ 2020

In its resolution dated 20 May 2020, case No. 809/1031/16, Ukraine’s Supreme Court clarified that certain shortcomings in decisions issued by the State Inspection of Architecture and Construction (the “DABI”) cannot in themselves serve as grounds for the invalidation of the DABI’s decisions. In this case, a construction developer challenged the DABI’s decision to impose a fine on the developer due to a breach of construction rules discovered in an inspection of the construction site conducted by officials from the DABI. As grounds for the challenge, the developer referred to the fact that the extension of the term for inspection conducted by the DABI was not formalised as a separate decision by the DABI’s chief officer. Instead, the extension of the inspection term was formalised as an amendment to an earlier order authorising the inspection. However, the Supreme Court decided that the manner in which the term for inspection was extended, although not fully appropriate, did not qualify as sufficient grounds to invalidate the DABI’s decision to impose fine. This case highlights that claims seeking the invalidation of decisions of the DABI must be analysed carefully in terms of their prospects of success. Insignificant shortcomings in DABI’s decisions that do not affect the substance of breaches discovered by DABI might not always be treated as grounds for the invalidation of such decisions. Contacts Olexander Martinenko Partner, Head of Commercial, Regulatory and Disputes, CMS Cameron McKenna Nabarro Olswang Olga Shenk Counsel, Commercial, Regulatory and Disputes, CMS Cameron McKenna Nabarro Olswang Vladyslav Kurylko Associate, Commercial, Regulatory and Disputes, CMS Cameron McKenna Nabarro Olswang

In this case, a construction developer challenged the DABI’s decision to impose a fine on the developer due to a breach of construction rules discovered in an inspection of the construction site conducted by officials from the DABI.

As grounds for the challenge, the developer referred to the fact that the extension of the term for inspection conducted by the DABI was not formalised as a separate decision by the DABI’s chief officer. Instead, the extension of the inspection term was formalised as an amendment to an earlier order authorising the inspection.

However, the Supreme Court decided that the manner in which the term for inspection was extended, although not fully appropriate, did not qualify as sufficient grounds to invalidate the DABI’s decision to impose fine.

This case highlights that claims seeking the invalidation of decisions of the DABI must be analysed carefully in terms of their prospects of success. Insignificant shortcomings in DABI’s decisions that do not affect the substance of breaches discovered by DABI might not always be treated as grounds for the invalidation of such decisions.

Contacts

Olexander Martinenko

Partner, Head of Commercial, Regulatory and Disputes, CMS Cameron McKenna Nabarro Olswang

Olga Shenk

Counsel, Commercial, Regulatory and Disputes, CMS Cameron McKenna Nabarro Olswang

Vladyslav Kurylko

Associate, Commercial, Regulatory and Disputes, CMS Cameron McKenna Nabarro Olswang