Previously, we have already considered the issue of inspections by the State Production and Consumer Service during the period of martial law in the article Inspections of regulatory bodies in 2024. IN in this article, we will take a closer look at the actual judicial practice.
Or possible pscheduled inspections during martial law?
The State Production and Consumer Service conducted an unscheduled inspection at a public catering establishment. The reason was a citizen's complaint about the inadequate quality of food products. According to the results of the inspection, a resolution was issued and a fine was imposed on the entrepreneur for not allowing the inspection to be carried out.
Thus, the entrepreneur, addressing the court, claimed that currently, under the conditions of martial law, the bodies of the State Production and Consumer Service are prohibited from conducting scheduled and unscheduled inspections.
Thus, the appellate court confirmed that the Ministry of Agrarian Policy and Food of Ukraine dated 03.01.2023 No. 5 approved the List of reasons for carrying out unplanned measures of state control over compliance with the legislation on food products, feed, by-products of animal origin, health and welfare of animals for the period martial law Accordingly, if there are grounds specified in this List, the State Production and Consumer Service may conduct an unscheduled inspection.
The court drew attention to the fact that, according to the specified List, among the grounds is, in particular, an appeal by an individual about a violation that caused damage to his rights, life or health.
Since it was such an application that became the basis for the inspection, the court made a conclusion about the legality of the inspection by the territorial body of the State Production and Consumer Service.
Also, the court, refuting the entrepreneur's statement, reminded that unscheduled inspections are carried out without warning the market operator on the basis of a referral for inspection.
Yes, we wrote about all the grounds for conducting unscheduled inspections by the State Production and Consumer Service in the article Inspections of regulatory bodies in 2024.
Link to the court decision: https://reyestr.court.gov.ua/Review/118333336
The market operator's elimination of violations discovered during the inspection indicates their recognition by him
The State Production and Consumer Service conducted an unscheduled inspection of the enterprise. The inspectors discovered a number of significant violations that posed a threat to the life and health of consumers and employees. Fines were imposed on the company.
The enterprise appealed to the body of the State Production and Consumer Service with a request to carry out an inspection in connection with the execution of the issued order. According to the results of the conducted inspection, it was established that the previously detected violations were completely eliminated.
The company also decided to appeal the decision on the imposition of fines in court.
However, both the trial court and the appellate court concluded that the enterprise, having eliminated the violation of the requirements of the legislation on the safety of food products, actually agreed with the legality of the contested resolutions on the imposition of fines.
Also, the courts took into account, not in favor of the market operator, the fact that for each of the detected violations during the inspection, the company did not deny the fact of their existence, as well as the fact that during the court proceedings, no objections or evidence were provided to refute the facts of the established violations.
Under the established circumstances, the courts reached a conclusion on the legality of the contested resolutions on the imposition of fines.
Link to the court decision: https://reyestr.court.gov.ua/Review/118117305
On obstructing the activities of officials of the State Production and Consumer Service
According to the results of the inspection carried out by the territorial body of the State Production and Consumer Service, a fine was imposed on the market operator for obstructing the legal activities of officials of the State Production and Consumer Service.
At the same time, the officials were admitted to the inspection, which is evidenced, in particular, by the video recording. The inspectors indicate that the representatives of the market operator obstructed the legal activities of the officials, namely, the activities of the lawyers were aimed at delaying the inspection process and ensuring that the inspectors had as little time as possible to check the issues. In particular, the episode of the lawyer's clarification of the legality of the video recording is mentioned.
In this regard, the court noted that the representatives of the capacity operator during the event had the right to ask the inspectors questions related to the inspection procedure, to provide comments and explanations in order to protect the rights and legitimate interests of the principal from possible abuses and violations by the inspectors.
It was also established from the video recording of the inspection that before the inspectors answered the specified questions, one of the representatives of the restaurant tried to turn away the video camera pointed at him with his hand and accidentally touched the inspector.
The court came to the conclusion that no evidence was provided that such touching caused damage to the examiner's health or property, therefore the panel of judges had no reason to believe that such actions were aimed at causing damage to the examiner's health or property, as well as obstructing activities of the auditor. After explanations to the representative of the market operator regarding the propriety of the video camera and the legal substantiation of the reasons for the use of video recording, the specified issue was exhausted, and the event continued and was completed by drawing up the relevant administrative acts.
The court came to the conclusion that the State Production and Consumer Service did not prove with proper and admissible evidence the fact of obstructing the legal activities of the officials of the territorial body of the competent authority.
The court concluded that there are no grounds for bringing the market operator to justice, given that the legislation does not contain a clear definition of what actions or inactions are classified as "other obstruction of the activities of an official of a competent body", and the actions of the representatives of the market operator did not have any consequences in the form of not being admitted to the inspection or not completing the inspection due to the fault of the market operator.
Also, when considering this case, the court of first instance recalled the legal position of the Supreme Court in the resolutions on cases No. 2a/2570/6273/2011 dated 01.23.2018 and No. 820/1685/17 dated 06.04.2020 that in the event that admission to the inspection took place, in the future the subject of consideration in court should be only the essence of the detected violations. In the event that the economic entity does not use the right to deny access to the inspection, such violations of the inspection procedure cannot be recognized as grounds for annulment of the decision of the state supervisory body, adopted as a result of the measures taken.
Link to the court decision: https://reyestr.court.gov.ua/Review/116550056
Therefore, the proposed cases give an understanding that the courts:
- recognize the possibility and legality of unscheduled inspections by the State Production and Consumer Service under martial law conditions, if they take place on the grounds specified in the special orders of the relevant ministries;
- take into account that if the enterprise has eliminated the violations indicated in the inspection report, then it has actually agreed to the existence of such violations;
- consider the issue of obstruction of the activity of inspectors by the enterprise, depending on the specific circumstances, but take into account whether this had an effect on the denial of the inspection or the failure to complete the inspection;
- claim that if admission to the inspection has taken place, the substance of the detected violations should be the subject of further court proceedings, and not procedural violations in the part that existed before the admission.
Therefore, we recommend that you consider this practice in the course of your interaction with the controlling body.
