Статья посвящена специальным санкциям, которые применяются Украиной для защиты своих интересов и прав в сфере внешнеэкономической деятельности. Рассматриваются следующие виды таких санкций:
– наложение штрафов;
– применение индивидуального режима лицензирования;
– временное приостановление внешнеэкономической деятельности;
– официальное предупреждение от Минэкономики Украины.
Освещаются вопросы о субъектах ответственности и инстанциях, которые применяют упомянутые санкции и участвуют в их применении, а также о фактических основаниях для применения специальных санкций (правонарушениях) и порядке применения таких санкций. Особенное внимание уделяется порядку снятия специальных санкций. В заключение авторы отмечают недостатки в методах наложения санкций, приводящие к неожиданностям в сфере внешнеэкономической деятельности, как субъектов хозяйствования Украины, так и иностранных субъектов хозяйственной деятельности.
Each country is willing to protect the established legal order in particular in the sphere of foreign trade and obviously has its own toolbox for this purpose. Ukraine is no exception. Ukrainian law stipulates quite strict special sanctions to be applied for violation of different foreign trade regulations. The aim of this article is to throw light on the application of special sanctions in Ukraine.
Legislative framework
Special sanctions are specifically addressed by the On Foreign Economic Activity Act of Ukraine in Article 37 (the Foreign Activity Act) and the Order of the Ministry of Economy of Ukraine of 17 April 2000, No.52 On Adoption of the Regulation on the Rules of Application of Special Sanctions Envisaged by Article 37 of the Act of Ukraine On Foreign Economic Activity to Ukrainian Business Entities Conducting Foreign Economic Activity and Foreign Business Entities (the Order).
Types of special sanctions to be applied
According to the Foreign Activity Act the following special sanctions may be applied:
(i) Penalty;
(ii) Individual licensing regime;
(iii) Temporary suspension of the foreign economic activities;
(iv) Official warning from the Ministry.
It is worth noting that neither the Foreign Activity Act nor any other legislative act sets out precise- ly which type of sanction shall apply in particular situations. At the same time, according to the official database of the Ministry of Economic Development and Trade of Ukraine, as of the end of August 2015 temporary suspension of foreign economic activities against foreign businesses was applied in 115 cases and individual licensing regime — in more than 11,863 cases
Penalty
The Foreign Activity Act defines merely the possibility to impose penalties for violations of foreign trade rules by referring to other legislative acts. For instance, the On Performance of Payments in Foreign Currency Act of Ukraine (the Foreign Currency Act) provides for a penalty in the amount of 0.3% of the outstanding amount per day in case of violation of foreign currency control requirements.
For the sake of information, under the Foreign Currency Act:
(i) the payments in foreign currency shall be credited into the bank accounts of the Ukrainian residents within terms stipulated in the contracts, but not later than within 180 calendar days from the date when the products were cleared for export (which shall be confirmed by the relevant export declaration) and for works, services and intellectual property rights — from the date when the acceptance act (or another document), confirming that works are performed, services are rendered and the intellectual property rights are exported, is signed by the parties. Notably, in practice usually these are acceptance acts signed by both parties;
(ii) if in import transactions advance payments are applied, goods, services, works and intellectual property rights shall be imported into Ukraine within 180 days (i.e. import of goods shall be confirmed by the import declaration, while the import of services, works and intellectual property rights by acceptance acts).
It is crucial to point out that under the Foreign Currency Act the National Bank of Ukraine is entitled to introduce by its resolutions other terms of settlements for a period of up to 6 months. The last Order of the National Bank of Ukraine, No.354 of 3 June 2015 (in force until 3 September 2015 and is likely to be extended), stipulates that instead of the 180-day rule, 90-day rule shall apply. The total amount of the penalty to be paid is limited to the amount outstanding.
The penalty is applied by the tax authorities of Ukraine in all cases when they identify violation of foreign currency control regulations.
Individual licensing regime
Under the Foreign Activity Act, application of the individual license regime envisages that any products (services, works, intellectual property rights) of foreign companies or Ukrainian counterparties are allowed for import into Ukraine/export from Ukraine provided that an individual license for each separate transaction is obtained by the Ukrainian importer/exporter. A separate transaction shall be defined as a set of actions of the Ukrainian company and foreign company, which shall be qualified as one of the types of foreign economic activity under Ukrainian law and relates to one-time completed transfer of goods (performance of works, rendering services, transfer of intellectual property rights) and completed payments. Therefore, it may well be that the same Ukrainian importers/exporters will be bound to obtain several individual licenses under the same contract (if such contract stipulates several supplies). Without individual licenses neither customs clearance nor any settlements shall be carried out.
The types of economic activities which thus may require separate individual licencing, apart from export-import operations, also include international payments, cooperation, establishment of a common enterprise, R&D and educational activity, obtainment of licenses by foreign entities in Ukraine, lease operations.
It goes without saying that obtaining an individual license is a quite burdensome and lengthy process in Ukraine (i.e. obtaining an individual license may take up to 15 working days after submission of all the required documents). For the issuing of an individual license a fee in the amount of 0.2% of the value of the goods, services and works value shall be paid.
Temporary suspension of foreign economic activity
The provisions of the Foreign Activity Act with respect to suspension of foreign economic activity are ambiguous. According to our interpretation of the relevant provisions of the Foreign Activity Act, the suspension of foreign economic activities may be applied in case such activities threaten the national economic security of Ukraine. There are neither official interpretations nor case law clarifying what should be understood by “activities threaten the national economic security of Ukraine”. At the same time, to the best of our knowledge, this type of sanction may be applied for the same violations as the individual licensing regime.
Temporary suspension of foreign economic activities envisages that companies are deprived of the right to perform any foreign economic operations in Ukraine, except for payments or supplies in operations where one of the parties supplied goods or transferred payments before application of the sanction. This type of sanction can be applied only for a period of 3 months from the date of the official decision on its imposition. The said period may be extended only by a court. Upon expiry of the stated 3-month period the respective sanctioned companies shall be subject to an individual licensing regime. Notably, according to recent case law, in some cases temporary suspension was prolonged for an indefinite period. That is, until the due fulfilment of payment obligations under the contract.
Official warning from Ministry
The Ministry’s official warning is usually applied when the breach is committed for the first time and/or is a one-time violation, or a minor violation, or the respective entity made a commitment to remedy the breach or its consequences as soon as possible. However, this type of special sanction is applied quite rarely.
To whom special sanctions shall apply
Special sanctions may apply to both Ukrainian business entities which are engaged in foreign economic activity and to foreign business entities. Generally, in case of violation of foreign economic laws special sanctions are applied to the entity which committed such violation and to its counterparty irrespective of the country of incorporation. Notably, according to current legislation, penalties shall apply only to Ukrainian companies.
Breaches which incur special sanctions
Ukrainian legislation does not set out an exhaustive and precise list of possible violations which may serve a ground for imposition of special sanctions. However, under the Foreign Activity Act special sanctions shall apply for violations of Foreign Activity Act or laws associated therewith. The Order is more specific on this issue and stipulates that sanctions may be imposed in case of violation of the rules of currency control, customs, tax or other legislation introducing certain prohibitions, restrictions, rules in the sphere of foreign business activities. In fact, the above reasons for applying sanctions empower the Ministry to impose them for quite a wide list of violations, including ones in the sphere of intellectual property, customs rules, unfair market practices, etc.
Recent practice shows that the most popular and common reason for applying special sanctions in Ukraine is violation of foreign currency control requirements (e.g. violation of the 90-day rule). However, the latest practice by the Ministry demonstrates that in certain cases special sanctions may apply for unexpected violations and strict sanctions may apply even for minor violations. A stark example of such an approach is the Order of the Ministry of 25 November 2014, No.1385 by which temporary suspension of foreign economic activity was applied to 19 foreign companies from the Russian Federation and their Ukrainian counterparties at the request of the Security Service of Ukraine following the results of inspections carried out by the local department of the State Inspection for the Protection of Consumers’ Rights in one supermarket. The reasons for the sanctions were certain violations of Ukrainian labelling requirements committed by foreign entities (e.g. font size, incorrect wording, etc.).
Government bodies responsible for imposing special sanctions
According to the Foreign Activity Act special sanctions are imposed by the central government body responsible for economic policy (currently — the Ministry) upon the judicial decision or upon notification from the authorised bodies. Notably, Ukrainian legislation provides for quite a long list of such authorised bodies, namely:
— tax authorities, control and inspection bodies;
— law enforcement bodies (inter alia, customs authorities, police authorities, the Security Service of Ukraine, public prosecution bodies, etc.);
— bodies of the Antimonopoly Committee of Ukraine;
— National Commission Exercising Public Regulation in the Sphere of Markets of Financial Services;
— the National Bank of Ukraine.
How to discover whether special sanctions are applied?
Ukrainian law does not stipulate any official procedures to notify either foreign companies or Ukrainian companies about application of special sanctions. Usually, the companies discover the said sanctions only after the sanctions have started applying. The only way to find out in advance whether sanctions are applied is to constantly monitor the Ministry’s official data base.
Removal of special sanctions
The Foreign Activity Act stipulates two possible options to remove the special sanctions:
— either upon request of the companies being sanctioned to be submitted to the Ministry after they have eliminated the violations or taken measures to ensure compliance with the relevant requirements of Ukrainian legislation;
— or upon request of the government bodies initiating the sanctions to be sent to the Ministry.
Removal of special sanctions actually takes quite a long time (especially in view of the fact that Ukrainian legislation does not stipulate the precise timeframes to be obeyed by governmental agencies) and usually requires cooperation on the part of both parties to the relevant transaction, which may be practically impossible in the event of conflicts between them.
Moral of the tale
It goes without saying that the mechanism for special sanctions is imperfect and rather burdensome for companies. This implies a range of well-known problems which the companies to which sanctions are applied usually face:
— absence of the mechanism to immediately or in advance notify the companies about special sanctions imposed against them;
— impossibility for companies to participate in the proceedings held prior to application of special sanctions, including to provide any explanations and/or objections regarding the alleged violations;
— valid legislation provides for no detailed regulation of the grounds and competence of the bodies for initiation and imposition of sanctions, and so severe restrictions may be imposed even for minor violations;
— removal of special sanctions is not transparent enough, which often leads to additional expenses and difficulties in the process of such removal, etc.
In order to overcome the above problems, the business environment has already initiated several legislative initiatives to change Article 37 of the Foreign Activity Act. Upon adoption of the relevant drafts, the situation will probably improve. However, as long as existing legislation remains in force, both Ukrainian and foreign companies should analyse precisely whether their activities in Ukraine can potentially result in unexpected application of special sanctions.
Авторы: Anzhela M. Makhinova, Ivan Y. Baranenko
Источник: http://www.ujbl.info/article.php?id=666