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We already are wrote on the moratorium on inspections in 2018. For two months from 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 the implementation of measures of state supervision (control) 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 to which the moratorium does not apply. The list of these bodies can be found here. Now we actually have three groups of bodies that are endowed with different scope of inspection rights. Let's understand.
Let us note at once that this article is quite voluminous due to the large number of bodies and regulations that it covers. If you are interested in checking a specific body, just find it among the relevant list in one of the groups and get acquainted with its powers. If you did not find the body you were looking for, then either it is not a "controlling body" or a moratorium applies to its inspections (last group). If you could not figure it out yourself, then leave your question in the comments or contact us for help.
Group 1. Nothing has changed
Most controlling bodies are guided by the Law of Ukraine "On Basic Principles of State Supervision (Control) in the Sphere of Economic Activity" when conducting inspections. 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. These bodies will carry out inspections, audits and other control measures as they have done before - in accordance with "their" individual 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 - operations with foreign currency
Customs GFS
Customs control at the border
State Export Control Service of Ukraine
Export control - control over the import / export of military and dual-use goods
State Audit Office of Ukraine
Compliance with budget legislation
Antimonopoly Committee of Ukraine
Observance of 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:
Ukrtransbezopasnost;
State Archives Inspectorate;
GSChS (firefighters);
Gostruda;
State Medical Service;
State Ecoinspection;
State Consumer Service.
Control of conformity of production to the established requirements.
The list of products subject to control and the competence of each market surveillance authority are defined in the Resolution of the Cabinet of Ministers №1069 of 28.12.2016
We conclude with Group 1 and move on to the bodies authorized by the Government to carry out inspections. The Resolution of the Cabinet of Ministers 101104, which defines the list of bodies that are not covered by the moratorium, contains as many as 24 positions. Among these bodies, for some reason, there are those to whom the moratorium did not apply (Group 1), such as the National Bank or Gosexportkontrol. We have already dealt with these bodies, so let's move on to those who were indeed removed from the moratorium.
Group 2. Removed from the moratorium
In the resolution of the Cabinet of Ministers 101104 there are bodies which are completely removed from action of a moratorium on inspections. This is, for example, the State Geocadastre, which monitors compliance with land legislation in the agro-industrial complex, the use and protection of land of all categories and forms of ownership, compliance with soil fertility requirements.
Also in this Resolution there are also bodies which are removed from action of a moratorium only in a certain part of the powers. Thus, the State Ecoinspection allowed to control only compliance with the requirements of the legislation on environmental and radiation safety.
Let's understand in more detail how the bodies that were removed from the moratorium will conduct inspections in 2018.
Unscheduled inspections:
Let's start with unscheduled inspections, as in the list of bodies that are removed from the moratorium, there are bodies that conduct unscheduled inspections only if there are grounds specified by Law №877, and there are those who are guided by their profile laws.
Therefore, for unscheduled inspections, we will divide group 2 into two subgroups. The only difference between these subgroups is the basis for the unscheduled inspection. For subgroup 2.1 - the grounds for unscheduled inspections are defined by the relevant laws, for subgroup 2.2 - such grounds are the same for all bodies 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:
Subgroup 2.1. their 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, some provisions of the Law №877 apply to these bodies as well. However, the grounds for unscheduled inspections are always determined in accordance with their relevant laws.
Here is a list of these bodies and the relevant profile laws:
Group 2. Removed 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 the issues of state architectural and construction control of village, settlement, city councils
Law of Ukraine "On regulation of urban planning activities"
National Commission for State Regulation of Energy and Utilities
Law of Ukraine "On the National Commission for State Regulation in the Field of Energy and Utilities"
State Aviation Service of Ukraine
Air Code of Ukraine
Licensing authorities:
Ministry of Ecology and Natural Resources of Ukraine (Ministry of Environment)
State Service of Ukraine for Medicines and Drug Control (State Medical Service)
State Service of Ukraine for Labor (Gostruda)
Law of Ukraine "On licensing of economic activities"
Gostruda and executive bodies of city councils of cities of regional value and rural, settlement, city councils of the united territorial communities
Resolution of the Cabinet of Ministers of Ukraine № 295 of April 26, 2017
After February 23, inspections of all these bodies removed the moratorium. That means from February 23rd these regulatory bodies may carry out inspections in the normal manner.
As we have already noted, the grounds for unscheduled inspections for subgroup 2.1 are determined by the relevant laws.
For example, architectural and construction control bodies may conduct unscheduled inspections in the presence of the following grounds:
desire of the enterprise;
within 3 months after the notification of the start of preparatory work, notification of the start of construction work or declaration of readiness of the facility for operation, there was 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 regulations issued as a result of previous inspections;
the requirement of the chief inspector of construction supervision of GASI to conduct an inspection in the presence of the grounds provided by law;
complaint of a natural or legal person about 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 concrete case it is necessary to address in the profile law of that body from subgroup 2.1 which came with check.
Subgroup 2.2. General order
In this subgroup we will include those controlling bodies, which have been removed from the moratorium and will conduct unscheduled inspections in the presence of grounds specified by Law Зако877. For the whole subgroup 2.2 the grounds for the inspection are the same, and are defined by Law №877.
What are these organs?
State Ecological Inspectorate of Ukraine, but only in part control over observance of requirements of the legislation on ecological 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 the sanitary legislation;
control over the safety and individual indicators of food quality;
control over observance of the legislation on protection of the rights of consumers;
state supervision in the areas of plant quarantine and 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 technical) and specialized education);
business entities with a high degree of risk.
Grounds for conducting an unscheduled inspection for subgroup 2.2:
desire of the enterprise;
identification of inaccurate data in mandatory reporting documents, if the company does not specify the data within a month from the date of submission of the document, If the supervisory authority finds an error in such documents, it notifies the company and gives it 10 days to correct it.
verification of instructions / orders issued by the controlling body based on the results of the previous inspection;
non-submission by the enterprise of the obligatory reporting two reporting periods in a row;
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 are related to the activities of the enterprise.
It is important that when conducting an unscheduled inspection the supervisory authorities may check only those circumstances which have become the basis for an unscheduled inspection.
Scheduled inspections (for group 2 as a whole):
Group 2 (bodies that the Cabinet removed from the moratorium 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 and published by the controlling bodies 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 were scheduled for the period from 01.01.2018 to 22.02.2018, this year will no longer take place.
Subgroup inspection plans 2.2 can be found on a single information resource at this address: https://ias.brdo.com.ua. Simply 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 be found at the link below. 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 from subgroup 2.1, we recommend that you go to the websites of the relevant bodies 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 a 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 entitled 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:
But the law provides six grounds for unscheduled inspections:
complaint of an individual (if the consent of such inspection is given by the State Regulatory Service of Ukraine);
desire of the enterprise;
court decisions;
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 the person, 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 must be established by the Cabinet of Ministers of Ukraine;
verification of compliance with the order issued based on the results of the previous inspection.
This list is exhaustive.
Бонус для тех, кто дочитал статью до конца 🙂
Please note that Law №877 (Article 10) provides for the right of an enterprise not to allow inspectors to conduct inspections if the inspection body has not approved and published on its website a unified form of the inspection report, which provides a list of issues to be inspected depending on 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 any of the regulatory authorities, be sure to check whether it has an approved form of inspection report with questions distributed according to the degree of risk.
Sviatoslav Bartosh
partner of Bargen Law Firm
(Number of ratings: 12 average: 5.00 of 5)
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