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We already are wrote on the moratorium on inspections in 2018. For two months at the beginning of the year, there was a complete ban on scheduled inspections by regulatory authorities, and unscheduled inspections could be carried out only in exceptional cases. This prohibition was contained in the Law of Ukraine "On Temporary Features of State Supervision (Control) Measures in the Sphere of Economic Activity".
But on February 23 the situation changed. It was on this day that Resolution №1104 came into force, by which the Cabinet of Ministers of Ukraine determined the list of bodies that are not covered by the moratorium. The list of these bodies is available here. Now we actually have three groups of organs, which are endowed different scope of rights to conduct inspections. Let's understand.
It should be noted at once that this article is quite voluminous due to the large number of bodies and regulations it covers. If you are interested in checking a specific body, just find it in the appropriate list in one of the groups and read about its powers. If you do not find the body you are looking for, then either it is not a "controlling body" or a moratorium applies to its inspections (the last group). If you could not figure it out yourself, then leave a question in the comments or contact us for help
Group 1. Nothing has changed
Most controlling bodies during inspections are guided by the Law of Ukraine "On Basic Principles of State Supervision (Control) in the Sphere of Economic Activity". Hereinafter we will call it Law №877. It is this law that determines the grounds and procedure for conducting inspections, the rights of regulatory authorities and business entities.
There are bodies to which Law №877 does not apply. We wrote about this in detail here here. These bodies will carry out inspections, audits and other controls as they have done before - in accordance with "their" separate laws.
As these bodies are not covered by Law №877, the moratorium on inspections did not and has nothing to do with them.
Group 1. Nothing has changed | |
Control body | Subject of control |
National Bank of Ukraine | Banking supervision. Currency control - transactions with foreign currency |
SFS customs | Customs control at the border |
State Export Control Service of Ukraine | Export control - control over the import / export of military goods and dual-use goods |
State Audit Office of Ukraine | Compliance with budget legislation |
Antimonopoly Committee of Ukraine | Compliance with the legislation on protection of economic competition |
National Council of Ukraine on Television and Radio Broadcasting | Control in the field of television and radio broadcasting |
Market surveillance authorities:
| Control of conformity of production to the established requirements. The list of products subject to control and the competence of each of the market surveillance authorities are defined in the Resolution of the Cabinet of Ministers №1069 of 28.12.2016 |
At this point, we conclude with Group 1 and will move on to the bodies authorized by the Government to conduct inspections. The Resolution of the Cabinet of Ministers №1104, by which the government determined the list of bodies not covered by the moratorium, contains as many as 24 positions. Among these bodies, for some reason, there are those to which the moratorium did not apply (Group 1), such as the National Bank or the State Export Control. We have already dealt with these bodies, so let's move on to those who were really removed from the moratorium.
Group 2. Removal from the moratorium
The Resolution of the Cabinet of Ministers №1104 contains bodies that have been completely removed from the moratorium on inspections. This is, for example, the State Geocadastre, which controls in the agro-industrial complex compliance with land legislation, use and protection of land of all categories and forms of ownership, compliance with soil fertility requirements.
There are also bodies in this Resolution that have been removed from the moratorium only in a certain part of their powers. Thus, the State Coinspection allowed to control only compliance with the requirements of the legislation on environmental and radiation safety.
Let's take a closer look at how the bodies removed from the moratorium will conduct inspections in 2018.
Unscheduled inspections:
Let's start with unscheduled inspections, because the list of bodies removed from the moratorium includes bodies that conduct unscheduled inspections only on the grounds specified by Law №877, and there are those that are guided by their profile laws.
Therefore, for unscheduled inspections, group 2, we will divide into two subgroups. The only difference between these subgroups is the grounds for conducting an unscheduled inspection. For subgroup 2.1 - the grounds for unscheduled inspections are defined in the relevant laws, for subgroup 2.2 - such grounds are the same for all and are contained in Article 6 of the Law №877. Now in more detail.
Subgroup 2.1. Your orders
There are areas in which inspections are regulated both by Law №877 and by separate “special” laws. Here are a few examples to make it clear who we are talking about. The State Fiscal Service of Ukraine is guided by the Tax Code of Ukraine when conducting tax audits. The State Architectural and Construction Inspectorate and local bodies of architectural and construction control are guided by the Law of Ukraine "On Regulation of Urban Development" during inspections. At the same time, certain provisions of the Law №877 also apply to these bodies, but the grounds for unscheduled inspections are always determined in accordance with the relevant laws.
Here is a list of these bodies and relevant relevant laws:
Group 2. Removal from the moratorium | |
| Subgroup 2.1. Your orders | |
| Controlling body | Profile law |
State Fiscal Service of Ukraine | Tax Code of Ukraine Customs Code of Ukraine |
State Inspectorate for Nuclear Regulation of Ukraine | Law of Ukraine "On the Use of Nuclear Energy and Radiation Safety" |
State Architectural and Construction Inspectorate of Ukraine Department for State Architectural and Construction Control of the City of Kyiv Executive bodies on issues of state architectural and construction control of village, settlement, city councils | Law of Ukraine "On Regulation of Urban Development" |
National Commission for State Regulation of Energy and Utilities | Law of Ukraine "On the National Commission for State Regulation of Energy and Utilities" |
National Commission on Securities and Stock Market | Law of Ukraine "On State Regulation of the Securities Market in Ukraine" Decisions of the NSSMC №161 and №1178 |
State Aviation Service of Ukraine | Air Code of Ukraine |
Licensing authorities:
| Law of Ukraine "On licensing of economic activities" |
State Labor and executive bodies of city councils of cities of regional significance and village, settlement, city councils of united territorial communities | Resolution of the Cabinet of Ministers of Ukraine №295 of April 26, 2017 |
After February 23, inspections of all these bodies were lifted from the moratorium. This means that from 23 February these control bodies may carry out inspections in the normal way.
As we have already mentioned, the grounds for unscheduled inspections for subgroup 2.1 are defined in the relevant laws.
For example, architectural and construction control bodies may conduct unscheduled inspections on the following grounds:
the desire of the enterprise;
within 3 months after the submission of the notice of commencement of preparatory works, notice of commencement of construction works or declaration of readiness of the facility for operation, there is a need to verify the accuracy of the data in these documents;
the fact of unauthorized construction was revealed;
it is necessary to check the implementation of the instructions issued as a result of previous inspections;
the requirement of the chief inspector of construction supervision of DABI to conduct an inspection if there are grounds provided by law;
complaint of a natural or legal person against violation of town-planning legislation;
the requirement of law enforcement agencies to conduct an inspection.
For other bodies in subgroup 2.1, the grounds for unscheduled inspections will be partially different. Therefore, in each case, you need to refer to the relevant law of the body from subgroup 2.1, which came with the inspection.
Subgroup 2.2. General order
In this subgroup we include those regulatory authorities, which are removed from the moratorium and will conduct unscheduled inspections in the presence of the bases which are defined by the Law №877. For subgroup 2.2, the grounds for the inspection are the same and are defined in Law №877.
What are these organs?
State Ecological Inspectorate of Ukraine, but only in part control over compliance with the requirements of the legislation on environmental and radiation safety.
State Service of Ukraine for Medicines and Drug Control.
State Service for Special Communications and Information Protection of Ukraine.
State Service of Geology and Subsoil of Ukraine.
State Service of Ukraine for Geodesy, Cartography and Cadastre.
State Service of Ukraine for Labor.
State Service of Ukraine for Food Safety and Consumer Protection, but only in terms of implementation:
• veterinary and sanitary control;
• control over observance of sanitary legislation;
• control over the safety and certain indicators of food quality;
• control over observance of the legislation on consumer protection;
• state supervision in the areas of quarantine and plant protection.
State Service of Ukraine for Emergencies (firefighters), but only in terms of control over the following objects:
• objects of the social sphere (institutions of rehabilitation and recreation of children; boarding schools; institutions of preschool, general secondary, professional (vocational) and specialized education);
• business entities with a high degree of risk.
Grounds for unscheduled inspection for subgroup 2.2:
the desire of the enterprise;
detection of inaccurate data in the documents of mandatory reporting, if the company has not clarified the data within a month from the date of submission of the document. If the controlling body finds an error in such documents, it notifies the company and gives it 10 days to correct it;
verification of instructions / instructions issued by the controlling body based on the results of the previous inspection;
failure of the enterprise to submit mandatory reporting for two consecutive reporting periods;
instructions of the Prime Minister of Ukraine on inspection of enterprises in the relevant field;
accident, death of the victim as a result of an accident or occupational disease, which were related to the activities of the enterprise.
It is important that during an unscheduled inspection the controlling bodies may check only those circumstances which have become the basis for conducting an unscheduled inspection.
Scheduled inspections (for group 2 in general):
Group 2 (bodies removed from the moratorium by the Cabinet after February 23) may conduct routine inspections as usual.
Such scheduled inspections can only be carried out in accordance with annual plans. These plans are approved by the regulatory authorities and published on their websites by December 1.
In the future, changes to the approved inspection plans can be made only to correct technical errors. That is why all scheduled inspections, which fell on the period from 01.01.2018 to 23.02.2018, will not take place this year.
Inspection plans of subgroup 2.2 can be found on the only information resource at this address: https://ias.brdo.com.ua. Just enter the company code and check if it is included in the plan.
With bodies from subgroup 2.1 a little harder. Some of them have combined their plans and can also be found at the link provided. However, there are some bodies (such as the SFS) that have posted inspection plans only on their website. Therefore, if your company may fall into the interests of the bodies of subgroup 2.1, we recommend that you go to the websites of the relevant authorities and check whether you are in the plan of inspections of this body for 2018.
Group 3. Under the moratorium
All other inspections remain under the moratorium until the end of 2018. It is possible that the Cabinet of Ministers will amend its resolution within a year and add to the list of bodies that have the right to conduct inspections. We will report about it in addition.
What does a moratorium mean for these bodies?
Scheduled inspections:
The law prohibits such bodies in 2018 from conducting scheduled inspections of all enterprises and individual entrepreneurs.
Unscheduled inspections:
Instead, the law provides six grounds for conducting unscheduled inspections:
complaint of an individual (if the consent of such inspection is given by the State Regulatory Service of Ukraine);
the desire of the enterprise;
judgment;
accident, death of the victim as a result of an accident (if it is connected with the activity of the enterprise);
an event that has a significant negative impact on people, the environment and the security of the state. So far no one knows what these events are, because the criteria for determining the negative impact should be set by the Cabinet of Ministers of Ukraine;
verification of compliance with the order issued as a result of the previous inspection.
This list is exhaustive.
Bonus for those who have read the article to the end 🙂
Please note that Law №877 (Article 10) provides for the right of an enterprise not to allow inspectors to conduct inspections unless the inspection body has approved and published on its website a uniform form of inspection report, which provides a list of issues to be inspected. , depending on the degree of risk.
The State Regulatory Service of Ukraine also drew attention to this in its letter №332 / 0 / 20-18 dated January 17, 2018.
So far, not all bodies have developed and approved such forms of inspection reports. Therefore, if you are included in the inspection plan of one of the controlling bodies, be sure to check whether it has an approved form of the inspection report with questions distributed according to the degree of risk.
Sviatoslav Bartosh
partner of Bargen Law Firm
The original article is published in the publication Debit-Credit
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