Russian-Ukrainian Legal Group, P.A.

Kiev, Ukraine; Washington, D.C., USA

 

 

Chronicle of Recent Developments in Ukrainian Legislation

 

 
august 2005

 

Accession to the World Trade Organization

Codes of Ukraine

Banking

Customs

Intellectual Property

International Treaties

Foreign Investment

Regulatory Policy

Subsoil Use

Taxes

Telecommunications

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The “Chronicle of Recent Developments in Ukrainian Legislation” is a monthly summary of the most important legislative developments in Ukraine in the area of business and corporate law, and is prepared, published and distributed by the Russian-Ukrainian Legal Group as a free service to our clients. The Chronicle will be distributed only via e-mail, in English and Russian, by the middle of each month, and will summarize the legislative developments of the previous month. The Chronicle is prepared in an effort to capture news of greatest interest to the widest cross-section of our firm’s clientele, without restating all legislation published and drowning our readers in too much information. Due to the winnowing process necessary when preparing the Chronicle, we cannot and do not guarantee that it contains a comprehensive list of all Ukrainian legislation relevant to your business. Finally, please bear in mind that this summary does not constitute legal advice; it is an informational service only.  Should you wish to receive further information or actual legal advice, please do not hesitate email us at chronicle@rulg.com

 

Accession to the World Trade Organization

 

1)        List of laws aimed at harmonizing domestic Ukrainian legislation with the rules and principles of the World Trade Organization ("WTO"). Early in July 2005, Ukraine's Verkhovna Rada adopted several laws required for Ukraine's accession to the WTO. These include:

 

  • Law of Ukraine No. 2734-IV "On Incorporating Amendments into Certain Legislative Acts of Ukraine (on Ordering the Operations Associated with the Manufacture, Export and Import of Laser-Readable Discs and the Equipment and Raw Materials for Their Manufacture)" dated 6 July 2005. For further details, please see point 7 of this Chronicle. The Law took effect on 2 August 2005;
  • Law of Ukraine No. 2739-IV "On Certain Aspects of Importation of Vehicles into the Customs Territory of Ukraine" dated 6 July 2005. Among other things, the Law prohibits importation into Ukraine of certain types of vehicles that, at the time of importation, were made or have been operated for more than eight years. Also, effective 1 January 2006, wheeled vehicles that are sold or used in Ukraine will be subject to UN/ECE standards. The Law took effect on 28 July 2005;
  • Law of Ukraine No. 2740-IV "On Incorporating Amendments into the Law of Ukraine "On the Development of Ukraine's Automobile Industry" dated 6 July 2005. The Law cancels the provision whereby Ukraine was deemed the country of origin of an automobile (or parts used in its manufacture) if, during its manufacture, the cost of used vehicles and parts from other countries or of unknown origin was less than 50% of the f.o.b. plant price of the automobile manufacturer. The Law took effect on 29 July 2005;
  • Law of Ukraine No. 2773-IV "On Incorporating Amendments into the Law of Ukraine "On the Rates of the Import (Export) Duty Levied on Seeds of Certain Kinds of Oil-Bearing Crops" dated 7 July 2005. The Law stipulates a reduction of the rate of the export duty to be levied on seeds of certain kinds of oil-bearing crops, from 17% to 16%. Effective 1 January 2007, the duty rate will be further reduced by 1% per annum until it reaches 10%. The Law will take effect upon Ukraine's fully acceding to the WTO;
  • Law of Ukraine No. 2774-IV "On Incorporating Amendments into the Law of Ukraine "On Insurance"" dated 7 July 2005. The Law authorizes insurance activity in Ukraine by non-resident insurers acting through permanent representative offices. The Law will take effect five years after Ukraine's accession to the WTO; and
  • Law of Ukraine No. 2775-IV "On Incorporating Amendments in Certain Law of Ukraine" dated 7 July 2005. The Law stipulates a reduction of the rates of import duty to be levied on agricultural goods and foodstuffs. It also exempts bank metals, imported into Ukraine, from the import duty. The Law took effect on 18 August 2005.

 

Codes of Ukraine

 

2)        Administrative Proceedings Code of Ukraine No. 2747-IV dated 6 July 2005.  The Code defines the administrative courts' powers in administrative cases, the procedure for lodging claims with administrative courts and the procedure for holding administrative proceedings. According to the Code, administrative cases are public disputes between individuals or legal entities on one side, and an executive agency, a local self-government body, or an official or an employee thereof, or another authority that carries out administrative responsibilities, on the other. The Code took effect on 1 September 2005.

 

Banking

 

3)        National Bank of Ukraine ("National Bank") Resolution No. 288 "On Amending the Regulations on the Procedure for Obtaining Foreign Currency Credits and Loans by Residents from Non-Residents and Granting Foreign Currency Loans by Residents to Non-Residents" dated 12 August 2005. The amended Regulations aim to promote international sales of Ukrainian goods by removing the need to secure bank guarantees of loans to non-residents in some cases. The Resolution took effect on 27 August 2005.

 

4)        National Bank Resolution No. 291 "On Introducing Mandatory Reserve Funds under Currency Transactions Associated with Residents' Attraction of Foreign Currency Credits and Loans from Non-Residents" dated 12 August 2005. Residents borrowing funds from non-residents for more than 180 days must reserve 20% of the loan amount and hold it at the NBU. This reserve fund is released to the resident after the loan term expires. The Resolution took effect on 11 September 2005 and remains in effect for six months.

 

Customs

 

5)        Ministry of Justice of Ukraine Conclusion No. 12/44 "On Canceling the Decision Concerning the State Registration of a Regulation" dated 12 August 2005. The Procedure for Keeping Records of Subjects of Foreign-Economic Activity, which required companies involved in exporting/importing goods to register with their local Customs office, has been repealed.

 

6)        State Customs Service of Ukraine Order No. 735 "On Introducing a Single Enterprise Application Form that Must be Presented to Customs Before Customs Clearance of Goods and Vehicles" dated 9 August 2005. The new form aims to reduce the number of documents that must be filed with Customs. It must be submitted before: (1) customs clearance; (2) extending the term for temporary importation (exportation) of goods; (3) simplified customs clearance; (4) releasing goods into free circulation based on a temporary or incomplete declaration; (5) submitting periodic customs declarations. The Order has not been published yet, but will take effect 10 days after being published in an official bulletin.

 

Intellectual Property

 

7)        Law of Ukraine No. 2734-IV "On Incorporating Amendments into Certain Legislative Acts of Ukraine (on Ordering the Operations Associated with the Manufacture, Export and Import of Laser-Readable Discs and the Equipment and Raw Materials for Their Manufacture)" dated 6 July 2005. In addition to the information noted above in point 1, this Law brought Ukrainian laws on laser-readable discs into compliance with WTO requirements. Among other things, it amended the Criminal Code of Ukraine to strengthen liability for the illegal circulation of discs, matrices and equipment and raw materials for their manufacture; amended the Law "On Licensing Certain Types of Economic Activities" to require licenses for the export and import of matrices; and removed the licensing requirement for the export and import of the equipment for laser-reading systems.  The Law took effect on 2 August 2005.

International Treaties

 

8)        Ministry of Justice of Ukraine Letter No. 33-41-278 "On the Validity of the Convention Abolishing the Requirement of Legalization for Foreign Public Documents in Relations between Ukraine and Belgium" dated 12 August 2005. Effective 5 July 2004, the Government of the Kingdom of Belgium withdrew its reservation concerning Ukraine in the Hague Convention's provisions canceling the need to legalize foreign official documents (as we informed in the November 2003 issue of this Chronicle, the Convention became effective for Ukraine on 22 December 2003). Thus, the Convention became effective between Ukraine and Belgium. Today, official documents issued in either Belgium or Ukraine need only be apostilled for the documents to be recognized when presented in Ukraine or Belgium.

 

Foreign Investment

 

9)        National Bank of Ukraine ("National Bank") Resolution No. 280 "On Resolving Issues Concerning Foreign Investment into Ukraine" dated 10 August 2005. This Resolution replaces the notorious anti-investment National Bank Resolution No. 482 (see the October 2004, January 2005, February 2005 and April 2005 issues of this Chronicle, as well as our memorandum "Legislative Alert: NBU Resolution No. 482", for more information on Resolution No. 482). The Resolution says that investments into Ukraine should be made in hard currency. Non-resident investors can invest by directly transferring foreign currency to a resident's checking account from abroad, and need not open the special investment accounts described in the repealed Cabinet of Ministers Resolution No. 482. At the same time the Resolution establishes burdensome and confusing rules requiring “domestication” of most of the operations with Ukrainian corporate rights between non-residents, which will again complicates foreign investment into Ukraine.   The Resolution took effect on 9 September 2005.

 

10)      National Bank of Ukraine No. 281 "On Approving the Regulations of the National Bank of Ukraine" dated 10 August 2005. The Resolution approves the rules for selling/buying foreign currency, including on Ukraine's Inter-Bank Currency Market and international currency markets. The rules are retroactive to the extent that their application would mitigate or cancel liability for any market participant. The Resolution also approves the Rules for Holding a Trading Session and Carrying Out Certain Operations Associated with the purchase and sale of foreign currency and bank metals, which stipulate the procedure of authorized banks' participation in tenders. The Resolution took effect on 9 September 2005.

 

Regulatory Policy

 

11)      Cabinet of Ministers Resolution No. 753 "On Liquidating Certain Commissions, Councils and Work Groups Created Pursuant to Acts of the Cabinet of Ministers of Ukraine and Nullifying Certain Acts of the Cabinet of Ministers of Ukraine" dated 18 August 2005. This Resolution repealed 109 Cabinet of Ministers resolutions and eliminated the state agencies those resolutions had created, thus greatly streamlining Ukrainian government. For instance, it eliminates the Commission Dealing With Timely and Full Payment of Taxes, which had supervised the observance of tax legislation by businesses, and the Inter-Departmental Commission Identifying the Winners of Tenders for Permits to Use Oil-and-Gas-Bearing Subsoil. We can provide a full list of the resolutions repealed upon request. Resolution No. 753 took effect on 18 August 2005.

 

12)      Cabinet of Ministers Resolution No. 788 "On Nullifying Certain Resolutions of the Cabinet of Ministers of Ukraine" dated 20 August 2005. Resolution No. 788 repealed 51 Cabinet of Ministers resolutions regulating business, and is best viewed as cutting red tape, including the Procedure for Indirectly Calculating Tax Obligations, whereby entrepreneurs could be prosecuted for tax evasion and improper calculation of taxes owed. We can provide a full list of the resolutions repealed upon request. The Resolution took effect on 20 August 2005.

 

Subsoil Use

 

13)      Cabinet of Ministers Resolution No. 827 "On Approving the Procedure in 2005 for Granting Special Permits (Licenses) to Use Subsoil" dated 30 August 2005. The Ministry for Protection of the Natural Environment of Ukraine ("MPNE") issues subsoil use permits to the winners of relevant auctions (please also see paragraph 14, below). A separate permit is issued for each type of subsoil use. In the cases stipulated by the Procedure, a single permit can authorize the commercial development of several mineral deposits located close together. This Resolution is only valid in 2005. It has not been published yet, and will take effect once published in an official bulletin.

 

14)      Cabinet of Ministers Resolution No. 828 "On Approving the Procedure in 2005 for Holding Auctions for Special Permits (Licenses) to Use Subsoil" dated 30 August 2005. The new Procedure is only valid in 2005, and replaces the former Procedure (see the May 2004 issue of this Chronicle). MPNE has replaced the State Committee of Ukraine for Natural Resources as the auction organizer. As before, MPNE will place auction notices in the "Uriadovy Courier" newspaper. Notices will also be posted on the official MPNE website. An application with supporting documents must be filed in order to participate in an auction. The Resolution also describes how auction winners will be determined, and how, when, and the consequences of, an auction being cancelled. The Resolution took effect on 7 September 2005.

 

Taxes

 

15)      State Tax Administration of Ukraine Order No. 327 "On Approving the Procedure for Formalizing the Results of 'No Visit' Documentary, 'Visit' Scheduled and Unscheduled Audits of the Observance of Tax, Currency and Other Legislation" dated 10 August 2005. The Order describes a new type of "no visit" audit, also known as a documentary audit. Previously, all audits were conducted by visiting taxpayers at their premises. The documentary audit is a simplified procedure and should impose less of a burden on taxpayers. The Order took effect on 5 September 2005.

 

Telecommunications

 

16)      Cabinet of Ministers Resolution No. 720 "On Approving the Rules for Rendering and Receiving Telecommunication Services" dated 9 August 2005. In general, the Rules regulate relations between telecom operators, providers and consumers. Among their more interesting provisions, the Rules introduce a definition of "spam" and prohibit ordering, organizing and sending spam. They also prohibit various forms of identity theft in telecommunications, as well as various forms of "hacking" and other types of technological attacks over the Internet. The Resolution has not been published yet, and will take effect once published in an official bulletin.