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The liability for unlawful actions may be introduced to environmental inspectors in Ukraine

11/ 05/ 2021
  Tomorrow, May 12, the Verkhovna Rada Committee on Environmental Policy and Nature Management will consider draft law №5414 on strengthening administrative liability for violations of legislation in the field of state environmental control. It will be the third legislative initiative considered in the last six months, the purpose of which is to strengthen the liability for violating environmental legislation. Unlike its predecessors, namely draft laws №4459 and №5204, this document introduces bilateral liability for both business and regulators. For example, in case of unjustified imposition of sanctions on an enterprise, an inspector may receive a fine of UAH 3,400 to 10,200 with deprivation of the right to hold certain positions or engage in certain activities for one year. Business is convinced that the mechanism of bringing inspectors to justice for making unlawful decisions, including cases of unjustified inspections and cancellation of inspection results in court, will encourage the supervisory body to use of analytical approach to the work without excessive interference in business. However, the business community draws attention to some provisions of the document that need to be revised: 1. The draft Law amends the Code of Ukraine on Administrative Violations in connection with the potential adoption of draft Law №3091 on State Environmental Control. Meanwhile, this draft law is currently only being prepared for a second reading. This may create conflicts and gaps in the enforcement of certain rules in the Code of Administrative Violations. We consider it expedient to tie the entry into force of the draft law with the adoption of the Law on State Environmental Control. 2. Establishing liability for preventing inspectors from conducting inspections and/or failing to provide information at the inspectors request is contrary to Law № 877-V “On basic principles of state supervision (control) in the sphere of economic activity, which guarantees businesses such a right in case of violation by the supervisory authority. Such liability should be imposed on the company’s top management only if the relevant requirements of the inspector are legal and based entirely on the requirements of applicable law. 3. It seems contradictory to introduce liability for obstructions and other actions that may hinder inspectors, while the very definition of what actions can be classified as obstacles is not provided in the text of the document. Therefore, to avoid ambiguous interpretation, it is advisable to bring this provision in line with the definition of obstruction provided by Law №877-V. 4. The material liability for violations for civil servants and companies proposed in the document is disproportionate. Administrative liability should depend on the degree of public danger and the nature of the damage caused by the wrongful acts. When establishing liability for officials for the unjustified imposition of a fine, its amount must be taken into account, and accordingly, the amount of financial liability of the official for unlawful actions must depend on this. Thus, the European Business Association supports the concept of draft Law №5414, but considers it premature and in need of revision in terms of harmonization with current legislation.   Be the first to learn about the latest EBA news with our Telegram-channel – EBAUkraine.

Tomorrow, May 12, the Verkhovna Rada Committee on Environmental Policy and Nature Management will consider draft law №5414 on strengthening administrative liability for violations of legislation in the field of state environmental control.

It will be the third legislative initiative considered in the last six months, the purpose of which is to strengthen the liability for violating environmental legislation. Unlike its predecessors, namely draft laws №4459 and №5204, this document introduces bilateral liability for both business and regulators. For example, in case of unjustified imposition of sanctions on an enterprise, an inspector may receive a fine of UAH 3,400 to 10,200 with deprivation of the right to hold certain positions or engage in certain activities for one year.

Business is convinced that the mechanism of bringing inspectors to justice for making unlawful decisions, including cases of unjustified inspections and cancellation of inspection results in court, will encourage the supervisory body to use of analytical approach to the work without excessive interference in business.

However, the business community draws attention to some provisions of the document that need to be revised:

1. The draft Law amends the Code of Ukraine on Administrative Violations in connection with the potential adoption of draft Law №3091 on State Environmental Control. Meanwhile, this draft law is currently only being prepared for a second reading. This may create conflicts and gaps in the enforcement of certain rules in the Code of Administrative Violations. We consider it expedient to tie the entry into force of the draft law with the adoption of the Law on State Environmental Control.

2. Establishing liability for preventing inspectors from conducting inspections and/or failing to provide information at the inspector’s request is contrary to Law № 877-V “On basic principles of state supervision (control) in the sphere of economic activity, which guarantees businesses such a right in case of violation by the supervisory authority. Such liability should be imposed on the company’s top management only if the relevant requirements of the inspector are legal and based entirely on the requirements of applicable law.

3. It seems contradictory to introduce liability for obstructions and other actions that may hinder inspectors, while the very definition of what actions can be classified as obstacles is not provided in the text of the document. Therefore, to avoid ambiguous interpretation, it is advisable to bring this provision in line with the definition of “obstruction” provided by Law №877-V.

4. The material liability for violations for civil servants and companies proposed in the document is disproportionate. Administrative liability should depend on the degree of public danger and the nature of the damage caused by the wrongful acts. When establishing liability for officials for the unjustified imposition of a fine, its amount must be taken into account, and accordingly, the amount of financial liability of the official for unlawful actions must depend on this.

Thus, the European Business Association supports the concept of draft Law №5414, but considers it premature and in need of revision in terms of harmonization with current legislation.

 

Be the first to learn about the latest EBA news with our Telegram-channel EBAUkraine.

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