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On November 29, 2022 the CabMin adopted Resolution № 1340 "On Amendments to the List of Goods (including medicinal products, medical devices and/or medical equipment) necessary for implementation of measures aimed at prevention, localization and elimination of outbreaks , epidemics and pandemics of acute respiratory disease COVID-19 caused by SARS-CoV-2, operations on import to the customs territory of Ukraine and/or operations on delivery of which in the customs territory of Ukraine will be subjected to customs duties". This Resolution exempts from customs duties and VAT components for manufacture of generators and power generating equipment, water purification equipment and means of satellite communication to the Internet (Starlink) at their importation into the customs territory of Ukraine.
On November 29, 2022 the CabMin adopted its Resolution № 1326 "On Amendments to the Annex to the Resolution of the CabMin as of October 8, 2022 № 1139". It changed the distribution of subventions from the state budget to local budgets (in particular, the regional budgets of Sumy and Kharkiv oblasts) to implement measures to support the territories negatively affected by the armed conflict in the east of Ukraine.
On 29 November 2022, the CabMin adopted Resolution № 1325 "On Amendments to the Procedure for State Control/Monitoring of Compliance with Legislation on Social Support, Social Services and Observance of Children's Rights". This Decision stipulates that a planned inspection which was not carried out within the timeframe defined in the annual plan for the current year, due to the occurrence of force majeure, in particular in case of a state of emergency or martial law in Ukraine or certain localities, then it shall be included in the annual inspection plan for the next calendar year.
In case of force majeure, in particular, the imposition of a state of emergency or martial law in Ukraine or certain localities, for the duration of such circumstances:
- Scheduled inspections shall not be conducted.
- Scheduled inspections that have been started shall be stopped and resumed within 10 working days after the end of such circumstances.
- Unscheduled inspections shall be conducted in the conditions specified in the third paragraph of paragraph 7 of this Procedure to ensure compliance by objects of state control/monitoring with legislative requirements in providing social support, social services and respect for the rights of children.
On 25 November 2022, the CabMin adopted Resolution № 1316 "On Approval of the List of Jobs that do not require a person to have a professional or partial professional qualification".
It is worth to recall that according to Article 4-1 of the Labour Code of Ukraine:
- A professional qualification (full professional qualification) is a recognised or awarded/confirmed by an entity authorised by law and certified by an appropriate document as a standardised set of competences and/or learning outcomes obtained by a person, enabling him/her to perform all labour functions defined by the relevant professional standard;
- partial vocational qualification is a standardised set of competences and/or learning outcomes acquired by a person and certified by a relevant document, which allows him/her to perform a part of the work functions defined in the relevant vocational standard, recognised or awarded/confirmed by a body authorised by law.
The document does not provide for professional or partial professional qualification to perform work for certain categories of employees, such as: cleaner of office premises, cloakroom worker, landscaping worker, janitor, copy clerk, etc.
On 22 November 2022 the CabMin adopted Regulation № 1311 "On the implementation of a pilot project on mutual recognition of electronic trust services between Ukraine and the European Union". It also provides that till the conclusion of an agreement between Ukraine and the European Union on mutual recognition of electronic trust services, as well as agreements with other countries, Ukraine shall recognise:
- foreign qualified electronic trust services as well as the results of such services, including qualified electronic signatures, provided by qualified electronic trust service providers in EU Member States and other Member States of the European Economic Area included in the European Union Trust List - as qualified electronic trust services, according to the Law of Ukraine "On Electronic Trust Services».
- means for the creation of a qualified electronic signature certified by the relevant public or private bodies designated by EU Member States pursuant to Article 30 of Regulation (EU) № 910/2014 of the European Parliament and of the Council (EU) of 23 July 2014 on electronic identification and trust services for electronic domestic transactions and repealing Directive 1999/93/EC, and included in the list of certified means for the creation of a qualified electronic signature conducted by the European Commission – as means of a qualified electronic signature or seal in accordance with the Law of Ukraine "On Electronic Trust Services».
- electronic signatures created in states that ensure adequate protection of personal data, the list of which is provided in the Annex to the Resolution of the CabMin dated 16 August 2022 № 910 "Some issues regarding personal data transfer outside of Ukraine through the Unified State Web Portal of Electronic Services” in order to enable citizens of Ukraine, who have left the territory of Ukraine, to use electronic display of information contained in the documents, transmission of electronic copies of the relevant documents and receipt of public services outside of Ukraine at the request of such citizen - as analogues of the handwritten signatures on the documents.
On 22 November 2022 the CabMin adopted Resolution № 1306 "On Repeal of Certain Resolutions of the CabMin Regarding Part-time Work of Employees of State Enterprises, Institutions and Organizations". In particular, it nullifies the Government Resolution № 245 of 3 April 1993 "On Part-time Work of Employees at State Enterprises, Institutions and Organizations" which, according to the decisions of the Supreme Court (in particular the decision of April 05, 2021 № 335/10626/18), was applied to employees of communal enterprises, institutions and organizations.
On 22 November 2022 the CabMin issued decree № 1047-r "On Abolition of the Order of the Ministry of Labour of Ukraine, the Ministry of Justice of Ukraine, the Ministry of Finance of Ukraine as of 28 June 1993 № 43 "On Approval of the Regulation on Terms of Part-time Work of Employees of State Enterprises, Institutions and Organizations". Thus the decree approving the Regulation containing special provisions aimed at regulating part-time work conditions for communal enterprises, institutions and organisations (in particular pursuant to the Supreme Court's judgment of 05 April 2021 № 335/10626/18) was repealed.
The Ministry of Education and Science has approved a model qualifications upgrading programme for teaching staff to implement the professional standard "manager (director) of a pre-school" (Order № 1068 of 29 November 2022) and a model qualifications upgrading programme for teaching staff to implement the professional standard "pre-school educator" (Order №1067 of 29 November 2022).
On 23 November 2022, the MinRegion submitted for public discussion a draft Resolution of the CabMin "Some Issues of Implementation of the Law "On Guaranteeing Rights to Immovable Property to be Built in the Future".
Comments and suggestions will be accepted until December 08, 2022, by e-mail: PlashchenkoEM@minregion.gov.ua. Consultations regarding the subject matter of the discussion are available at (044) 284-0-524. Responsible persons from the MinRegion: Plashchenko Eugene, Ripper Vitaly.
The Ministry of Health has published its clarification on how persons with disabilities can recover lost documents from the Medical-Social-Expertise Commission.
The Pension Fund of Ukraine has published its clarification on whether it is possible to refuse to assign a pension at the age of 60 and assign it later, and how will the postponement affect for pension.
The Social Insurance Fund of Ukraine has published its explanations of what the amount of sickness benefits depends on and how to receive benefits with an electronic sickness certificate.
The Supreme Court in Case № 600/2150/21-а resolved a dispute in which a decision of the Executive Committee of the City Council was appealed because of its refusal to transfer a garden house to a residential house in a gardening community due to inconsistency with the city master plan and the presence of complex geological conditions. In dismissing the claims, the courts of the first and appellate instances were guided by the fact that the land plot where the garden house due to the plaintiff is located is in a restricted-use recreational area that is intended to house dachas and collective gardens. The courts also considered that the horticultural community's territory was located on an erosion-sloping right slope of the river valley with an overall relief slope of up to 13%, and, therefore, the land plot was an area unfavourable for construction due to landslides. Since the garden house had no engineering protection, it was deemed inadequate to meet the requirements of the building regulations.
In its Decision of October 26, 2022, in Case № 600/2150/21-а, the Supreme Court formulated a legal position according to which the legislation gives an exhaustive list of reasons to refuse transformation of a country or garden cottage into a category of residential house. A prerequisite for conversion of such houses into dwellings is their compliance with the construction standards that are imposed on residential houses. Since engineering and technical requirements for arrangement of residential buildings considering relief features and other engineering and geological conditions are an integral part of state construction standards, therefore, non-compliance of a country or garden house with these requirements is a ground for a decision of an authority to refuse conversion of such buildings into dwellings.
The Grand Chamber of the Supreme Court (hereinafter - the GCSC) considered a dispute in which it examined possible grounds for recovery of unpaid wages in favour of an employee from a defendant-employer (whose production facilities are located on the territory of the ATO). The defendant insisted that it had been forced to terminate the employees' employment because the company had been taken over by unidentified armed men in March 2017. This was confirmed by a scientific legal opinion of the Ukrainian Chamber of Commerce and Industry. The defendant considered such events to be force majeure circumstances, because of which, in its view, it should be relieved of its obligation to pay the dismissed employees' wages on the day of their dismissal.
GCSC in its Decision from 26 October 2022 in Case № 905/857/19 stressed that the labour law does not provide such a basis for exemption of the employer from paying the employee's wages as a force majeure. Also, it was pointed out that since the payment of an employee's wages is an employer's obligation, Article 10 of the Act of Ukraine "On temporary measures for the period of antiterrorist operation" cannot be applied to the legal relations regarding the payment of wages.
Thus, in paragraph 74 of this Decision the GCSC departed from the opinion of the Joint Chamber of the Court of Cassation of the Supreme Court reflected in its Decision of 10 October 2019 in Case № 243/2071/18, according to which wages are a liability within the meaning of Article 617 of the Civil Code of Ukraine, from which an employer may be dismissed as a result of accident or force majeure.
The Supreme Court in Case № 640/16767/21 resolved a dispute in which the first deputy head of the Kyiv City Prosecutor's Office appealed against a decision of the lower courts because of their refusal to open proceedings in his lawsuit in the interests of the State. The first and appeal courts motivated their decisions by the fact that the prosecutor should be considered an alternative subject of recourse and substitute for a competent authority that is able and willing to defend the interests of the State. The Supreme Court, composed of a panel of judges of the Administrative Court of Cassation, upheld the prosecutor's appeal in cassation.
The Supreme Court in its Decision of 17 November 2022 in Case № 640/16767/21 formulated a legal position according to which the interests of the State must first be protected by the relevant subjects of power and not by the prosecutor. At the same time, to ensure that the interests of the State are not left unprotected, the prosecutor performs a subsidiary role, replacing in court proceedings the relevant subject of power who, contrary to the requirements of the law, does not protect or does so inappropriately. The grounds for the prosecutor to represent the interests of the state must exist at the time of the application to the court. The prosecutor must provide the court with evidence showing that the relevant public authority (other subject of power) does not protect the interests of the state or does so improperly. Such evidence may include, inter alia, the prosecutor's appeals to the relevant authority to protect the interests of the state, the responses thereto and other written evidence relevant to the case.
The Supreme Court also stressed that it was sufficient for the prosecutor to comply with the procedure provided for in Article 23 of the Law on the Prosecutor's Office. If the competent authority has not independently brought an action in the interests of the state within a reasonable time after receiving the notification, this is a sufficient argument to confirm its failure to act. If the prosecutor knows the reasons for such inaction, he or she must state them in the grounds for the representation contained in the complaint, but if it is impossible to ascertain such reasons from the response of the competent authority to the prosecutor's application or no such response has been received at all, that is no reason to consider the prosecutor's application unfounded.
On 21 November, the MinReintegration issued a clarification on how to register a new-born baby if its parents are registered in the temporarily occupied territory.
On November 21, the Ministry of Development of Hromadas and Territories of Ukraine submitted for public discussion a draft Resolution of the government "On Approval of the Procedure and Conditions of Subventions from the State Budget to Local Budgets in 2022 for Compensation of Differences in Tariffs for Heat Energy, Heat Supply Services and Hot Water Supply under the Law of Ukraine "On Specifics of Regulation of Relations in the Natural Gas Market and in Heat Supply during Martial Law and Subsequent Restoration". The draft act determines the mechanism for granting in 2022 a subvention from the state budget to local budgets for compensation of the debt for difference in tariffs for heat energy, heat energy supply services and hot water supply services to economic entities in the sphere of heat supply.
Comments and proposals are accepted until December 05, by e-mail: mastiuhinaok@minregion.gov.ua. For consultations on the subject which has been submitted for discussion, please call (044) 590-47-28, 095-286-14-14. Responsible persons are: Natalia Kravchenko, Oksana Mastiuhina.
On 17 November 2022 by the decision of the Constitutional Court of Ukraine № 9-р(II)/2022 on the case of constitutional complaint of a private joint stock company Odesteplokommunenergo the provision of article 37 of the law "On state registration of rights to immovable property", according to which the Ministry of Justice of Ukraine could annul the decisions of state registrars, which could contain errors, was declared unconstitutional.
The challenged precept of Article 37 of the law was declared unconstitutional because it empowered the Ministry of Justice of Ukraine to deprive a person of ownership rights by cancelling state registration based on mistakes made by a state registrar, thus violating Article 41(4) of the Constitution of Ukraine, according to which the right of ownership cannot be violated.
On November 16, the Verkhovna Rada adopted law № 2739-IX "On Approval of the Decree of the President of Ukraine "On Extension of the Term of General Mobilization". This law approved Presidential Decree №758/2022 of November 7, 2022, and extended the period of general mobilization from November 21 by 90 days.
On November 16, 2022, the Verkhovna Rada adopted the law "On Approval of the Decree of the President of Ukraine "On Extension of Martial Law in Ukraine" № 2738-IX. This law approved Presidential Decree №757/2022 of November 7, 2022, and extended martial law in Ukraine from November 21 for a period of next 90 days.
On November 16, 2022, the Verkhovna Rada adopted the law "On Amendments to the law of Ukraine "On Charitable Activity and Charitable Organizations" to improve the procedure for including philanthropic individuals in the Register of Volunteers of the Anti-Terrorist Operation and/or measures to ensure national security and defense, repulse and deterrence of armed hostility of the russian federation" (Registration № 8076). Thus, the registration of volunteers has been simplified as much as possible and they can now be legalized through the ‘Diia’ App.
On November 16, 2022, the Verkhovna Rada adopted the law "On Amendments to Certain Legislative Acts of Ukraine on Counteracting Violation of Rights in the Workplace" (registration № 5748). Its aim is to protect participants of labour relationships from various forms of mobbing (harassment), i.e. from actions by the employer or individual employees which are aimed at damaging the employee's dignity and honour, professional (business) reputation in the form of psychological and/or economic pressure, in particular by using electronic communications, creating a tense, hostile, offensive atmosphere towards them, among other things, which makes the individual underestimate their professional competence.
On November 16, 2022, the Parliament of Ukraine adopted the law "On Amendments to Para 165.1.54 of Article 165 of the Tax Code of Ukraine on the exemption from taxation of certain types of charitable aid collected by volunteers" (registration № 7492). It was adopted to expand the possible areas of expenditure of persons included in the "Register of Volunteers of the Anti-Terrorist Operation and/or implementation of measures to ensure national security and defense, repulse and deter armed aggression of the russian federation" and to apply the tax exemption to them.
On November 16, 2022 the Verkhovna Rada adopted the law "On Amendments to Article 166-11 of the Code of Administrative Offences due to Changes in the Procedure for Providing Information about the Ultimate Beneficial Owner of a Legal Entity to the State Registrar" (registration № 6321). This law aims to ensure the consistency of the legal regulation of relations arising from the bringing of persons to administrative liability in case of non-disclosure by legal entities of information on their ultimate beneficial owners required for financial monitoring, in accordance with the requirements of the laws "On Prevention and Counteraction to Legalization (Laundering) of Proceeds of Crime, Financing of Terrorism and Financing Weapons of Mass Destruction Proliferation" and "On State Registration of Legal Entities, Individual Entrepreneurs and Public Formations".
On 16 November 2022 the Parliament of Ukraine adopted the law "On Amendments to the Law of Ukraine "On Ensuring the Rights and Freedoms of Citizens and the Legal Regime in the Temporarily Occupied Territories of Ukraine" regarding certain issues of determining the legal status of the temporarily occupied territories of Ukraine during martial law" (registration № 8088). This law gives the CabMin the power to determine the borders of temporarily occupied territories during martial law, which will create prerequisites for the proper implementation of the law "On ensuring the rights and freedoms of citizens and the legal regime in the temporarily occupied territory of Ukraine" in the territories temporarily occupied by the aggressor after February 24, 2022.
On November 16, 2022, the Verkhovna Rada adopted a Resolution № 2740-IX "On the appeal of the Verkhovna Rada of Ukraine to the parliaments of the world to recognize the Holodomor of 1932-1933 as the genocide of the Ukrainian people”. The parliament seeks to draw world attention to the tragedy of the Ukrainian people and notes that there are historical parallels between the Holodomor genocide of 1932-1933 and the current genocide of Ukrainians which the russian federation is trying to carry out while the current military aggression.
On 16 November 2022, the Verkhovna Rada adopted Resolutions № 2777-IX and № 2778-IX on the exercise of powers by the heads of military administrations of settlements in Kharkiv and Kherson oblasts provided for in part two of Article 10 of the law "On the legal regime of martial law". These resolutions stipulate that during martial law in Ukraine and 30 days after its termination or cancellation:
1) The heads of these military administrations (the list of which is specified in the resolutions)
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In addition to the powers attributed to them by the law "On the legal regime of martial law", exercise the powers of the respective village, settlement, and city councils, their executive committees, and the respective village, settlement, and city heads.
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Approve the temporary structure of executive bodies of the respective village, settlement, and city councils (employees, whose positions are not included in the temporary staff schedule, shall be declared idle or transferred to an equivalent or lower position).
2) apparatuses of the respective councils and their executive committees, other executive bodies (considering the para 1 of part two of Article 10 of the law "On the Legal Regime of Martial Law"), communal enterprises, institutions, and organizations of respective municipalities are subordinated to heads of respective military administrations.
On 16 November 2022, the Verkhovna Rada adopted a Resolution № 2779-IX "On renaming the town of Novograd-Volynsky of Novograd-Volynsky rayon of Zhytomyr oblast". This town was renamed to Zviagel. Also, Parliament renamed the relevant rayon by the resolution № 2780-IX Now it is Zvyagel.
On November 16, 2022, the Verkhovna Rada adopted the draft law "On Service in Local Self-Government" (registration № 6504 as of 05.01.2022) at the first reading and instructed the Committee on the Organization of State Power, Local self-Government, Regional Development and Urban Planning to consider it in a shortened procedure for the second reading.
On 15 November 2022, the CabMin adopted Resolution № 1289 "On Amendments to the Regulations on the Pension Fund of Ukraine". It expanded the powers of the Pension Fund. It will now be responsible not only for the implementation of state policy on pensions, housing subsidies, and benefits for housing and communal services, the purchase of solid and liquid heating oil and liquefied gas but also for the obligatory state social insurance against temporary disability and obligatory state social insurance against accidents at work and occupational illness caused by the loss of ability to work.
On November 15, 2022, the CabMin adopted Resolution № 1286 "On Implementation of the Pilot Project for Creation, Implementation and Functioning of a Unified Digital Integrated Information and Analytical System for Infrastructure Rehabilitation Management". This Resolution initiated the implementation of the abovementioned pilot project for two years for the functioning of the information and communication system designed to automate the planning of funding for the restoration and/or reconstruction of transport infrastructure, as well as monitoring the process of restoration and/or reconstruction of transport infrastructure (design, public procurement, construction, reconstruction, major or ongoing repairs, other construction and reconstruction works). This Resolution also approved the "Procedure for implementation of a pilot project to create, implement and ensure the functioning of a unified digital integrated information and analytical system for managing the process of infrastructure rehabilitation".
On November 15, 2022, the CabMin adopted Resolution № 1281 "On social and legal protection of persons and members of their families in respect of whom the fact of deprivation of personal liberty as a result of armed aggression against Ukraine has been found". This Resolution approved:
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Regulations on the Commission for Establishing the Fact of Personal Deprivation of Liberty as a Result of Armed Aggression against Ukraine.
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Procedure for Assignment and Payment of Assistance to Persons and Their Family Members, in respect of whom the fact of Personal Deprivation of Liberty as a Result of Armed Aggression against Ukraine has been established.
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Procedure for Creation, Maintenance, Access to Information of the Unified Register of Persons, in respect of whom the fact of Personal Deprivation of Liberty as a Result of Armed Aggression against Ukraine has been established.
On 15 November 2022 the CabMin adopted Resolution № 1279 "On Approval of the Procedure and Conditions for Granting Subventions from the State Budget to Local Budgets for Rehabilitation of Critical Infrastructure Facilities under the Joint Project with the International Bank for Reconstruction and Development "Urban Infrastructure Development Project - 2". The source of the subvention is the loan funds attracted by Ukraine from the International Bank for Reconstruction and Development in accordance with the Loan Agreement between Ukraine and this Bank of 26 May 2014 No. 8391-UA. The subvention administrators/recipients for local budgets (final beneficiaries) are enterprises, institutions and organisations of communal form of ownership determined by a decision of the respective local council or military administration (in case of its formation) on such budget according. Subvention recipients are determined according to the criteria stipulated by CabMins’ Resolution № 228 of February 28,2002 "On Approval of the Procedure for Drafting, Reviewing, Approving and Main Requirements for Estimates of Budgetary Institutions".
The conditions for granting a subvention are:
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belonging to a municipal form of ownership of object, on financing of which the subvention is directed.
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direction of the subvention on creation, increase or updating of fixed assets of municipal property.
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ability of further maintenance from local budgets of fixed assets of municipal property, which acquisition is financed by the subvention.
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prohibition of purchase or privatization of land, buildings, premises at the expense of the subvention.
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prevention any double financing of the same costs including from funds provided by the International Bank for Reconstruction and Development, other donors, state or local budgets.
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prevention the subvention from being used to cover penalties accrued for breach of contracts.
On 15 November 2022, the CabMin adopted an Order № 1024-r "On Approval of the Action Plan for the Establishment of a Single Emergency Call System for the Population via the Single Emergency Call Number 112".
On 14 November, the Ministry of Reintegration of the Temporarily Occupied Territories of Ukraine (hereinafter - the MinReintegration) issued a clarification on whether an internally displaced person can receive financial aid for a new-born child. According to the Minreintegration, if a displaced person has moved after February 24, 2022, from a settlement under military (combat) actions, occupation, encirclement, and has received a certificate of an internally displaced person, then not only he/she, but even his/her new-born baby has the right to receive such a status. Based on this certificate he/she can apply for a financial aid for child.
On November 14, the Ministry of Development of Hromadas and Territories of Ukraine submitted for public discussion the draft Resolution of the government "On Approval of the List of Expenses and/or Losses Incurred as a Result of Military Operations and to Prevent Humanitarian Crisis Situations, as well as the Procedure and Conditions for Their Calculation and Approval". The draft resolution aims to determine the list of costs and/or losses of heat supply enterprises incurred as a result of military actions to be compensated from the state budget funds, as well as the mechanism of their calculation, consideration and approval.
Comments and suggestions will be accepted until November, 29 at BondarchukYaA@minregion.gov.ua. Consultations on the issue submitted for discussion are available at (044) 284-06-69. Responsible persons are: Kravchenko Natalia, Bondarchuk Yaroslava.
The State Tax Service of Ukraine has published information letter № 7/2022 regarding peculiarities of income taxation of operations on provision of charitable, including humanitarian, aid during martial law related to the need to ensure the defense of the state.
On 11 November 2022 Resolution of the Cabinet of Ministers of Ukraine № 1261 "On Amendments to para 3 of the special features of public procurement of goods, works and services for customers, provided by the Law of Ukraine "On Public Procurement", during the legal regime of martial law in Ukraine and within 90 days from its termination or cancellation" was adopted. This regulation introduced an exemption from the application of paragraph 6-1 of Section X "Final and Transitional Provisions" of the Law of Ukraine "On Public Procurement" in the case of procurement of goods (including medicines, medical devices and/or medical equipment) included in the list of goods necessary for activities aimed at preventing the emergence and spread, localization and elimination of outbreaks, epidemics and pandemics of acute respiratory disease COVID-19, import operations of which to the customs territory of Ukraine and/or post operations on the customs territory of Ukraine are exempt from value-added tax and exempt from import duty payment, approved by the Resolution of the Government dated March 20, 2020, № 224.
