In the law on environmental control, private and public interests need to be balanced, UBTA
The current version of the draft Law of Ukraine "On State Environmental Control" №3091 cannot be supported. The reason is that its norms monopolize control functions in the hands of one state body and grant it excessively broad rights to interfere in the activities of economic entities. This is stated in the published official position of UBTA, as reported by the Association's press service.
"For its part, the analytical department of UBTA conducted an extensive analysis of draft law № 3091. The authors of the study, after consulting with members - business representatives of the Association, concluded that this document needs to be revised due to significant conflicts in a number of its provisions. Based on the results of studying the provisions of draft law № 3091, on May 11, 2021, UBTA formulated and sent a letter to Oleg Bondarenko, the Head of the Committee on Environmental Policy and Nature Management of the Verkhovna Rada of Ukraine. This letter contains a complete list of problematic areas of the draft law and conclusions regarding the consequences of their implementation," the Association noted.
The official position of the Association states that the model of legal regulation of control measures proposed in the Draft violates the general legal principle of proportionality, aimed at ensuring a reasonable balance of private and public interests in legal regulation. According to it, the goals of rights restrictions must be substantial, and the means of achieving them must be justified and minimally burdensome for those whose rights are restricted.
It is noted that environmental control is excluded from the scope of the Law of Ukraine "On the Basic Principles of State Supervision (Control) in the Sphere of Economic Activity", which is a basic act in this area and was adopted to create a single coordinated legal framework that will regulate the procedure for conducting control measures of economic entities.
A separate block of issues was considered concerning the legal uncertainty of the law's scope, conflicts of interest regarding local law enforcement control, and the emergence of corruption risks. The excessively broad powers of the proposed control and regulatory body create grounds for a large number of unfounded unscheduled inspections and provide for the possibility of conducting a control measure without the head or authorized person of the economic entity. This, according to UBTA members, creates significant pressure on businesses.
"The draft law unties the hands of individual natural persons and public organizations and allows them to request unfounded unscheduled inspections of any enterprise. According to the Draft, it is sufficient to report violations of environmental legislation for this purpose. To combat this phenomenon, the draft law must specify the form of appeals, their content, and the grounds for such cases," the Association noted.
The organization also noted that the document contains a conflict of interest due to the establishment by Article 12 of state environmental control measures regarding local self-government bodies (LSGBs) with environmental control powers. This leads to LSGBs controlling themselves.
Analysts emphasize that control itself is also difficult to implement due to insufficient justification of the grounds. For example, in the Project, "data from the state environmental monitoring system" acts as such, which is actually absent and has not been sufficiently funded in recent years.
Regarding the responsibility of business entities, attention is drawn to the lack of proportionality between the established amount of the fine for not allowing an inspector to conduct a control measure - 300 minimum wages (UAH 1.8 million) and the amounts of other fines for actually committed violations of environmental legislation - from 30 to 60 minimum wages (UAH 180 - 360 thousand)," the material states.
The Association is convinced that the development and discussion of this Project significantly differs from the civilized procedures used worldwide and established by the international community. This process took place without taking into account the comments of all interested parties, including business and relevant associations.
UBTA, expressing the position of its members - representatives of Ukrainian business, believes that without bringing this Draft Law into compliance with the Law of Ukraine "On the Basic Principles of State Supervision (Control) in the Sphere of Economic Activity", and also without taking into account the expressed comments, its adoption cannot be supported)," the Association emphasized.