Russian-Ukrainian Legal Group, P.A.

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

 

 

Chronicle of Recent Developments in Ukrainian Legislation

 

 

 

NOVEMBER - DECEMBER 2006

 

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Accession to the World Trade Organization

 

Consumer Protection

 

Corporate Registration

 

Customs

 

Intellectual Property

 

Permits System

 

Use of Subsoil, Oil and Gas

 

Taxes

 

 

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 bills intended to harmonize national Ukrainian legislation with standards and principles of the World Trade Organization (“WTO”). All laws required for Ukraine to accede to the WTO have been adopted. As a reminder, some of these laws were adopted as early as mid-2005 (see the August 2005 edition of this Chronicle). In November 2006, the following laws were adopted by Ukraine's Parliament and signed by the President:

 

·        Law of Ukraine No. 317-V "On Amending Article 25 of the Law of Ukraine ‘On the Publishing Industry’" dated 2 November 2006. The Law deletes from the Law on the Publishing Industry the ban on setting-up and operating in Ukraine a "printed output distribution organization" in which foreign investments constitute more than 30% of the charter capital. The Law will take effect five years after Ukraine accedes to the WTO;

  • Law of Ukraine No. 316-V "On Amending Article 8 of the Law of Ukraine ‘On Protecting Rights to Indicate the Origin of Goods’" dated 2 November 2006. Please see item 7 of this Chronicle. The Law took effect on 24 November 2006;
  • Law of Ukraine No. 374-V "On Amending Certain Laws of Ukraine Concerning Fees for Licenses and Excise Duties on the Production of Alcohol, Alcoholic Beverages and Tobacco Products" dated 17 November 2006. Effective 2007, the fees for said licenses have been decreased and the rates of the excise duties have been increased. The Law took effect on 1 January 2007;
  • Law of Ukraine No. 357-V "On Amending the Law of Ukraine ‘On Insurance’" dated 16 November 2006. The Law regulates specific aspects of non-resident insurers’ activity in Ukraine. In particular, it stipulates that non-resident insurers are allowed to insure large risks (sea and air carriage, space rocket launches, etc.) in the territory of Ukraine in cases stipulated by law, after Ukraine accedes to the WTO. The Law will take effect after Ukraine accedes to the WTO;
  • Law of Ukraine No. 356-V "On Amending the Law of Ukraine ‘On the Export Duties on Live Cattle and Rawhide’" dated 16 November 2006. The revised Law establishes the rates of the export duties on live cattle and rawhide. Effective 1 January of the year following Ukraine’s accession to the WTO, such rates will decrease annually until they reach a certain amount. The Law will take effect after Ukraine accedes to the WTO;
  • Law of Ukraine No. 362-V "On Amending Article 9 of the Law of Ukraine ‘On Pharmaceuticals’" dated 16 November 2006. The Law stipulates that for five years after registration of a pharmaceutical in Ukraine, the registration data used in filing the application for State registration cannot be used to file an application for another pharmaceutical, except for in cases when the right to refer to or use such data is obtained in the procedure prescribed by law. It is stipulated that state registration of pharmaceuticals may be rejected if, as a result of such registration, the effective proprietary rights to intellectual property protected by the patent are violated, including in the process of production, use, and sale of pharmaceuticals. The Law took effect on 12 December 2006;
  • Law of Ukraine No. 360-V "On Amending the Law of Ukraine ‘On Foreign Economic Activity’" dated 16 November 2006. The Law defines the legal regimes for goods imported from WTO member states (national treatment and most favored nation status) and specifies the procedures for automatic and non-automatic licensing of foreign economic operations. The list of grounds for introducing the licensing regime includes measures to protect domestic manufacturers in the event of acute fluctuations of the volumes of export-import operations, as well as the liability of subjects of foreign economic activity for violating the licensing regime. Additionally, the Law prohibits the export from Ukraine (import into Ukraine) of exhaustible natural resources and the export of goods in the context of executing the UN Security Council’s resolutions. The Law alters the functions of agencies responsible for state control over foreign economic activity. The Law took effect on 9 December 2006;
  • Law of Ukraine No. 358-V "On Amending the Law of Ukraine ‘On Banks and Banking’" dated 16 November 2006. The Law grants foreign banks the right to open branches in the territory of Ukraine. It contains an exhaustive list of the conditions under which a foreign bank shall be entitled to open its branch in Ukraine, and describes the procedure for accrediting foreign banks’ branches and representative offices in the territory of Ukraine and the rules for such branches performing banking activity. Certain provisions of this Law took effect on 8 December 2006; the remainder will take effect after Ukraine accedes to the WTO;
  • Law of Ukraine No. 401-V "On Amending the Law of Ukraine ‘On State Support of the Agricultural Sector of Ukraine’" dated 30 November 2006. The Law repeals provisions of the effective Law “On State Support of the Agricultural Sector of Ukraine” concerning the setting of minimum / maximum import prices and the establishing of non-tariff restrictions (quotas) with regard to importing or exporting agricultural goods included on the list of goods subject to state price control. Moreover, the Law cancels the rules for performing export-import operations through the regulatory mechanism for defining the customs value of goods subject to their established maximum or minimum purchase prices. The Law took effect on 16 December 2006;
  • Law of Ukraine No. 402-V "On Amending the Law of Ukraine ‘On Milk and Dairy Products’" dated 30 November 2006. The Law cancels export subsidies granted to producers of dairy products, the quota on output and sale of milk to processing enterprises, the requirements for supplying dairy products to the national material reserve, the minimum purchase prices of milk and dairy raw materials and the limits on retail mark-ups for dairy products. Additionally, the Law specifies the mechanisms for extending state support to the producers of milk and dairy raw materials. The Law will take effect after Ukraine accedes to the WTO;
  • Law of Ukraine No. 335-V "On Amending Article 7 of the Law of Ukraine ‘On Pesticides and Agrochemicals" dated 14 November 2006. The Law states that, for the first 10 years after a company registers a pesticide or agrochemical in Ukraine, no one is permitted to use the information contained in the documents, that describe the rules for safe application of said substances, absent the permission of the company that registered said substances. The Law took effect on 14 December 2006;
  • Law of Ukraine No. 403-V "On Amending the Law of Ukraine ‘On Controlling the Production and Sale of Sugar by the State’" dated 30 November 2006. The Law simplifies the control mechanism in the sphere of production and sale of sugar. The "Â" quota (on delivering sugar under international agreements) and "Ñ" quota (on owners selling sugar exclusively abroad) are cancelled. The Law also repeals the requirement for the mandatory export of sugar produced from imported raw materials. The Law will take effect after Ukraine accedes to the WTO;
  • Law of Ukraine No. 404-V “On Establishing a Tariff Quota on Importing Raw Cane Sugar into Ukraine" dated 30 November 2006. Effective 1 January of the year following the year Ukraine accedes to the WTO, regulations will go into effect establishing an annual tariff quota on raw cane sugar imported into Ukraine. Specifically, the first 260,000 tons imported will enjoy an import duty of 2% of their customs value. The Law will take effect on 1 January of the year following the year Ukraine accedes to the WTO;
  • Law of Ukraine No. 441-V  “On Establishing Export Duty Rates for Ferrous Scrap, Non-Ferrous Scrap and Semi-Finished Products Produced Using Same” dated 13 December 2006. The Law states the export duty rates for alloyed ferrous scrap, non-ferrous scrap and semi-finished products using same and stipulates that after Ukraine accedes to the WTO such rates will decrease every year until they reach a certain amount. The Law will take effect on 1 January of the year following the year Ukraine accedes to the WTO;
  • Law of Ukraine No. 400-V "On Amending the Law of Ukraine ‘On the Export Duty on Iron-and-Steel Waste and Scrap’ dated 30 November 2006. The Law restates Law of Ukraine "On the Export Duty on Iron-and-Steel Waste and Scrap" and will take effect after Ukraine accedes to the WTO. The Law stipulates that the export duty rates on iron-and-steel waste and scrap will decrease every year following Ukraine’s accession to the WTO. After the seventh year following Ukraine’s accession to the WTO, the export duty rates will hold steady at the same rates reached in the seventh year. The Law will take effect after Ukraine accedes to the WTO.

 
Consumer Protection

 

2)        State Committee of Ukraine for Technical Control and Consumer Policy Order No. 331 "On Approving the Procedure for Conducing Inspections of Subjects of Economic Activity in the Sphere of Trade and Services, Including the Restaurant Business, the Quality of Goods, Compliance with the Mandatory Requirements for Safety of Goods and Observance of the Rules of Trade and Services Rendering" dated 25 October 2006. The Procedure defines the mechanism for maintaining state control in the sphere of consumer protection. Control will be effected by means of performing inspections according to a special working plan prepared by the agencies responsible for consumer protection. Unscheduled inspections will be conducted by officials exclusively on the basis of consumers' applications (complaints) concerning enterprises’ violations of the law. The Order took effect on 2 December 2006.

 

Corporate Registration

 

3)        Law of Ukraine No. 489-V "On the State Budget of Ukraine for 2007" dated 19 December 2006 ("Law on the 2007 State Budget"). Effective 1 January 2007, Ukraine's minimum salary has been set at 400 UAH. Therefore, the legislated minimum amount of charter capital for limited liability companies (no less than 100 minimum salaries) amounts to 40,000 UAH. Moreover, effective 1 July 2007, the minimum salary will increase to 420 UAH, and effective 1 December 2007, to 450 UAH. The Law took effect on 1 January 2007.

 

Customs

 

4)        Cabinet of Ministers of Ukraine Resolution No. 1654 "On Approving the Procedure for Issuing À.Ò.À. Books (Carnets)" dated 29 November 2006. The Procedure has been approved in connection with Ukraine’s accession in April 2004 to the Convention on Temporary Admission adopted on 26 June 1990 in Istanbul ("Convention"). As we previously informed in the April 2004 edition of this Chronicle, an À.Ò.À. book (carnet) is a document used for the temporary importation of goods, except for transport vehicles. The use of the book facilitates the procedure of temporary importation. The Chamber of Commerce and Industry will issue these books in the territory of Ukraine on the basis of applications from Ukrainian-resident individuals and legal entities. Together with the application, it is also necessary to file certain documents, the list and requirements for the execution of which will be defined by the Chamber of Commerce and Industry. The term of a book’s validity cannot exceed one year. The Resolution took effect on 22 December 2006.

 

5)        Cabinet of Ministers of Ukraine Resolution No. 1766 "On Approving the Procedure for Declaring the Customs Value of Goods Moved through the Customs Territory of Ukraine and Submission of Data to Prove this Value” dated 20 December 2006. A new Procedure defining the conditions of and mechanism for declaring the customs value of goods moved through the customs territory of Ukraine and submission of a declarant’s data proving this value has been approved. The 2003 Procedure, about which we informed in the August 2003 edition of the Chronicle, will terminate after the new Procedure takes effect. The Resolution has not yet been published, but will take effect 30 days after its official publication.

 

Intellectual Property

 

6)        Law of Ukraine No. 311-V "On Amending the Law of Ukraine ‘On Protecting Rights to Plant Varieties’" dated 2 November 2006. The concepts expressed in the Law “On Protecting Rights to Plant Varieties” has been amended. In particular, such concepts as “patent” and “variety’s author” have been reinterpreted; the concept of an “owner of proprietary intellectual property's right to spread a variety” is defined, etc. The Law specifies the sphere of its application and defines holders of intellectual property rights to a plant variety. It also introduces essential amendments to the procedure for acquiring, terminating and invalidating intellectual property rights to a plant variety. The Law took effect on 29 November 2006.

 

7)        Law of Ukraine No. 316-V "On Amending Article 8 of the Law of Ukraine ‘On Protecting Rights to Indicate the Origin of Goods’" dated 2 November 2006. According to the amendments, legal protection will not be granted for a qualified indication of goods’ origin related to a geographical place in a foreign state, if such right is not protected in this state. The Law took effect on 24 November 2006.

 

8)        Law of Ukraine No. 359-V "On Amending the Customs Code of Ukraine (Concerning Assistance in Protection of Intellectual Property Rights During Goods’ Movement through the Customs Territory of Ukraine)" dated 16 November 2006. The Law grants customs bodies the right to suspend the customs clearance of goods on their own initiative in the event of discovering the movement through the Ukrainian customs territory of goods, for which an application for protecting intellectual property rights has not been presented, if there are reasonable grounds to suspect the violation of intellectual property rights. Herewith the Law introduces an innovation: a person holding a proprietary right to an object of intellectual property rights, in compliance with Ukrainian legislation, shall reimburse the customs bodies or owners of temporary storage warehouses for the costs connected with storage of goods, with respect to which a decision to suspend the customs clearance was adopted, and for any damage caused by such suspension. The Law also describes the sanctions that may be imposed on citizens who move goods through the customs territory of Ukraine in violation of intellectual property rights. Finally, the Law describes how assistance may be rendered in protecting the rights of persons holding proprietary rights to an object of intellectual property in compliance with Ukrainian law. The Law will take effect on 10 February 2007.

 

Permits System

 

9)        State Committee of Ukraine for Regulatory Policy and Entrepreneurship Order No. 101 "On Approving the Form and Technical Description of a Reference from the Register of Permit Documents" dated 9 November 2006. References from the register of permit documents will be issued in accordance with the form approved by the Order on the basis of any individual’s or legal entity’s request. The Order took effect on 1 January 2007.

 

Use of Subsoil, Oil and Gas

 

10)      Law on the 2007 State Budget. In addition to the information provided in item 3, above, the Law suspends for 2007 a number of regulations contained in normative documents (60 regulations in all), among which several relate to the use of subsoil. For instance, as has happened in previous years, the Subsoil Code of Ukraine's regulations concerning deduction of funds for exploration performed at the expense of the state budget for the development of mineral resources base has been suspended. The regulation stipulating that the amount of the duty for the issuance of special permits to use certain subsoil plots shall be defined by the Cabinet of Ministers of Ukraine on the basis of costs entailed by the examination of applications, materials and grounds to use subsoil, organizational and other expenses related to the issuance of special permits has been suspended once again. The Law also suspends the regulations contained in the Law of Ukraine “On the State Geological Service of Ukraine”, in particular with respect to the conditions for granting special permits to use subsoil. The issuance of estimated tax bills for gaseous hydrocarbons to be imported into Ukraine has also been suspended. The Law took effect on 1 January 2007.

 

11)      Law of Ukraine No. 398-V "On Amending Certain Legal Acts of Ukraine Concerning Taxes" dated 30 November 2006. The Law defines the basic norms of payment for using subsoil to extract minerals. Previously, such norms had been defined in laws on the State Budget. Except for certain provisions, the Law took effect on 1 January 2007.

 

Taxes

 

12)      Law on the 2007 State Budget. In addition to the information provided in items 3 and 10 above, the Law states that in the event of a taxpayer’s change of legal address, after the taxpayer's re-registration, all taxes and duties shall continue to be paid at the place of previous registration until the expiration of the then-current budget period.  The Law also increases the amount of duty for mandatory state pension insurance from 31.8% up to 33.2%, which duty employers must pay directly to the budget. The Law took effect on 1 January 2007.

 

13)      Cabinet of Ministers of Ukraine Ordinance No. 565-r "On Measures Aimed at Reducing the Tax Debt" dated 15 November 2006. The Cabinet of Ministers obliged state enterprises to reduce their overdue debt to the State budget. The measures aimed at reducing the tax debt stipulate, in particular, developing a bill on canceling the moratorium on the compulsory sale of property of state enterprises and economic societies when the State’s share in their charter capital constitutes at least 25%. The Ordinance took effect on 15 November 2006.