Legrant proved illegality of port operator’s charge for alleged incompliance of technological chartJune 19, 2018 · News
Legrant was asked for a legal advice by one of the biggest Odessa port operators due to bringing to administrative liability the employer of the company under the Art 59-1 para 2 of the Code of Ukraine on Administrative Offences for transshipment of cargo under the technological chart, which allegedly was not agreed with the State Ecological Inspection.
Abovementioned administrative norm provides liability for transshipment of cargo, which can lead to pollution of the territorial sea and internal waters, without permissions of the State controlling authorities in the sphere of environmental protection, if such permissions are provided by the Laws of Ukraine.
In view of ecoinspectors, the form of the permission in this case was the technological chart, which allegedly was not approved by the State Ecological Inspection. Having analyzed the situation, Legrant lawyers submitted to the court a claim to admit illegality and to reverse the decision on administrative liability.
The court agreed with arguments of Legrant and fully granted the claim on the basis of the following: According to the Art 1 of the Law of Ukraine On permitting system in the sphere of economic activity; the permitting document shall mean permission, compliance, another document, which permitting authority is obliged to issue to the economic entity in the case of his entitlement to carry particular actions in economic activity or without which the economic entity cannot perform certain actions.
In the meantime, the comprehensive range of permitting documents, which can be requested from economic entities, is established in the Law of Ukraine On the list of permitting documents in the sphere of economic activity. Therefore, the necessity of getting the permitting documents appears exceptionally after including them into the List, with the exceptions of issuance of permitting documents in the spheres of export control, state regulation of the financial service markets, the protection of National Security Information, the economic competition protection and usage of nuclear energy. At the same time, technological chart is not a document which permits' to carry out activities in the mentioned spheres, therefore such matters shall be regulated under the Law of Ukraine On a list of permitting documents in the sphere of economic activity. The list does not comprise a technological chart, and the Law does not say that compliance, as a type of permitting documents, is compulsory. Accordingly, the court found illegality of the request of the State Ecological Inspection to get a compliance of technological chart and impossibility of administrative liability under the Art 59-1 para 2 of the Code of Ukraine on Administrative Offence for incompliance of technological chart. The case was supported by the Legrant Senior lawyer Liudmila Sizonenko under the general supervision of the Managing partner Tatyana Titarenko