They want to punish Ukrainian business in a different way. The Ministry of Economic Development has prepared a draft amendment to the law "On foreign economic activity", proposing to significantly reduce the opportunities for stopping foreign economic activity of enterprises. The corresponding project on mitigation of special sanctions to subjects of foreign economic activity is published on a site of department.
According to experts interviewed by UBR.ua, if adopted, it will greatly facilitate the lives of companies. In particular, it is proposed to abolish the penalty for violation by foreign trade entities of payment terms in the amount of up to 10 thousand. euro and reduce the maximum time for the MEDT to consider materials on the application or lifting of special sanctions.
Cancellation of fines
The current law "On foreign economic activity" (Article 37) provides for three types of penalties: fines, application of individual licensing regime and temporary suspension of the enterprise.
According to lawyers, the fine for trading abroad without a license in the amount of 10% of the transaction cost (Article 16) is almost not applied, and therefore the Ministry of Economic Development and Trade quite rightly proposes to cancel it. The application of other financial sanctions is prescribed in other laws, and therefore such a special sanction as a fine should not appear at all.
In practice, the two most common violations with the sanctions of the Ministry of Economic Development are non-return of foreign exchange earnings to Ukraine within 180 days and accusations of terrorist financing.
“As a rule, non-return of foreign exchange earnings occurs due to oversight of the enterprises themselves. If the counterparty does not pay for the goods or does not deliver them, it is enough to go to court so as not to pay a penalty, "- explained to UBR.ua partner and head of the practice of international arbitration Eterna Law Eugene Blinov.
On the other hand, there are cases when importers fall for foreign fraudsters, who disappear without a trace after paying for the goods, and the Ukrainian company falls under sanctions.
"The court would be glad to accept the lawsuit, but it is unclear who to sue if the address abroad turned out to be fictitious," said Nikolai Larin, project manager of the Association of Exporters and Importers of Foreign Economic Activity, to UBR.ua.
However, such cases are more typical for small companies, and among them no more than 11% of enterprises are engaged in import, 12% in export. Moreover, more than half of the contracts are for the export of services, which from January 3, 2017 are not subject to the rules for the return of revenue (except for transport and insurance services).
However, the smaller the company, the more sensitive the penalty for it: a penalty of 0.3% for each day of delay from the amount of unpaid funds (the cost of undelivered goods). The total amount of the penalty may not exceed the amount of the non-refund.
Large business suffers more often from special sanctions of the Ministry of Economic Development and Trade. After all, in addition to the fine, the company can block all work.
According to Vitaly Mazur, a partner of the law firm SENSUM, the adoption of the bill will not change the situation in terms of imposing fines for non-return of foreign exchange earnings, as they are imposed by the GFS according to the law "On foreign currency settlements" and not the law on foreign trade.
On the other hand, it can simplify the life of foreign trade entities in the application of such sanctions as the temporary cessation of foreign economic activity and the application of an individual licensing regime.
Until now, if there is a threat to national economic security from the tax authorities or law enforcement agencies, the Ministry of Economic Development and Trade may suspend the export / import of the enterprise for a period of three months. After that, companies are transferred to an individual licensing regime. Obtaining a separate license for each foreign trade operation is possible without suspending the operation of the enterprise.
“Recently, cases of blocking the work of companies in order to obtain illegal benefits by the security forces have become more frequent. The worst thing is that companies find out about it ex post facto, for example, when processing the next batch of goods at the border, "- said UBR.ua partner Bargen Svyatoslav Bartosh.
According to the business ombudsman's office, 4,307 companies have been sanctioned in three years. For many of them, it cost a lot of money. For example, the ship came to the port, but could not unload because the company's activities were blocked. You have to pay for the downtime of the vessel and for the disruption of supplies to contractors.
"And there are no limits to the application of such sanctions. As a result, at a turnover of one million enterprises can block activities if one of its foreign partners did not pay in time for the amount of even 2 thousand. euro. The company's losses are not comparable to the size of the violation, "Bartosh explained.
Therefore, lawyers are very positive about the proposal of the Ministry of Economic Development and Trade not to apply special sanctions for debts up to 10 thousand. euro.
In addition, companies will warn in advance about the possible introduction of individual licensing.
“The company is given 45 days to present its objections or eliminate the violation itself, for which it faces individual licensing. That is, the law will provide an opportunity to defend oneself, ”Yevgeny Blinov said.
For some companies, such as logistics, individual licensing can put an end to business. After all, to obtain a license, you need to know the cost of a specific delivery to pay 0.02% of its cost.
"But when sending bulk or liquid cargo, it is impossible to know in advance (when processing documents) exactly how much goods will be sent in one batch, for example, in cars of different capacity," says Svyatoslav Bartosz.
According to him, it is very important that it will be possible to suspend the company's activities only with the submission of the SBU, and the tax authorities will lose this opportunity. Because they are still abusing this right too much, taking advantage of the fact that the Ministry of Economic Development and Trade cannot deny them (at least it is not written about it anywhere).
However, the criteria according to which the SBU will be able to suspend the activities of the enterprise remain vague, and the sanction itself will, as now, be applied without warning.
"The proposed changes still do not have a mechanism to verify the validity of law enforcement evidence regarding funding, such as terrorism. There are cases when transactions with the Russian Federation were treated as cooperation with the enemy. Often law enforcement officers are just trying to make money sitting at the border, ”Nikolai Larin said.
Therefore, it is very important how this good idea will be implemented in practice.