Legrant has succeeded in canceling a decree of the State Environmental Inspectorate on a fine for not allowing inspectionNovember 4, 2019 · News
The Primorsky District Court of Odessa, in a Legrant’s suit in the interests of a port operator of the Odessa seaport, declared unlawful and canceled the decision of the State Environmental Inspectorate on imposing a fine for denying access for an inspection.
The Legrant’s client, operating a complex for the storage and transshipment of bulk cargo, did not allow employees of the State Environmental Inspectorate to conduct a routine inspection of the enterprise due to the failure of the latter to present a unified form of an act that would meet the requirements of the law.
In turn, the inspection officials issued an order imposing an administrative penalty on the company’s director for "failure to comply with the lawful orders of officials of bodies exercising state control in the field of environmental protection."
In order to protect the rights of the client, the legal company Legrant went to the court. The trial ended with the closure of the case on an administrative offense due to the absence of the event and the body of the offense.
The court took into account Legrant's arguments that at the time of arrival for the inspection, the State Environmental Inspectorate had had no unified form of an act that would meet the requirements of the law. The obligation of the State Environmental Inspectorate to approve this form of an act is fixed by the Resolution of the Cabinet of Ministers of Ukraine No. 342 dated 05/10/2019 (Decree No. 342).
The court agreed with the arguments of Legrant lawyers and confirmed that the failure of the State Environmental Inspectorate to timely approve the unified form of the act in accordance with the new requirements of Decree No. 342 deprived it of the opportunity to conduct inspections.
At the same time, the court rejected the position of the Inspectorate regarding the legality of using the form of the act, approved by order of the Ministry of Ecology and Natural Resources of Ukraine No. 303 of 08/09/2017.
Despite the fact that this order was valid, it did not meet the requirements of regulatory legal acts of higher legal force.
Referring to the practice of the European Court of Human Rights, the court emphasized the special importance of the principle of “good governance”, which stipulates that when it comes to issues of common interest, public authorities must act in a timely, appropriate and most consistent manner. In particular, governmental bodies that do not implement or do not comply with their own procedures should not be able to benefit from their unlawful actions or to avoid fulfilling their duties.
The court also agreed with Legrant's arguments regarding the procedural violations committed by the inspectors. In particular, the court noted that the compilation of a protocol and the issuance of a decision were two different stages of administrative proceedings, therefore they could not coincide in time.