{"id":23088,"date":"2023-08-09T10:05:22","date_gmt":"2023-08-09T08:05:22","guid":{"rendered":"https:\/\/kmp.ua\/?p=23088"},"modified":"2025-12-17T10:36:20","modified_gmt":"2025-12-17T08:36:20","slug":"the-quota-of-workplaces-for-persons-with-disabilities-should-separate-divisions-of-foreign-legal-entities-comply","status":"publish","type":"post","link":"https:\/\/kmp.ua\/en\/analytics\/exclusive\/the-quota-of-workplaces-for-persons-with-disabilities-should-separate-divisions-of-foreign-legal-entities-comply\/","title":{"rendered":"The quota of workplaces for persons with disabilities: should separate divisions of foreign legal entities comply?"},"content":{"rendered":"<p style=\"text-align: justify;\"><em>Updated as of August 09, 2023<\/em><\/p>\n<p style=\"text-align: justify;\">From October 2022, the way of receiving reports by the Fund for Social Protection of Persons with Disabilities (\u201cFund\u201d) regarding the fulfillment of the quota of workplaces for the employment of persons with disabilities (\u201cquota\u201d) has been changed. Reporting began to be received by the Fund through the State Pension Fund of Ukraine (\u201cPension Fund\u201d), which led to problems primarily for representative offices of foreign legal entities and separate divisions of Ukrainian legal entities.<\/p>\n<p style=\"text-align: justify;\"><strong>Transfer of information by the Pension Fund to the Fund<\/strong><\/p>\n<p style=\"text-align: justify;\">After the changes, the Pension Fund has begun to provide to the Fund information about all <strong>insurers<\/strong> whose data is contained in the State Register of Compulsory State Social Insurance. But the insurer for the purposes of the Unified Social Contribution and the subject to fulfilment of the quota are not identical terms.<\/p>\n<p style=\"text-align: justify;\"><em>For reference<\/em>: according to the Law of Ukraine as for July 08, 2010, &#8220;On the Collection and Accounting of the Unified Social Contribution for Compulsory State Social Insurance&#8221;, the term \u201cinsurers\u201d includes <strong>employers<\/strong> and other persons who, in accordance with this Law, are required to pay the Unified Social Contribution.<\/p>\n<p style=\"text-align: justify;\">According to Article 19 of the Law of Ukraine &#8220;On the Fundamentals of Social Protection of Persons with Disabilities in Ukraine&#8221; (\u201cLaw\u201d), the Pension Fund provides the Fund with information:<\/p>\n<p style=\"text-align: justify;\"><span style=\"font-family: 'courier new', courier, monospace;\">\u201c<strong>On the creation of workplaces and on employment of persons with disabilities<\/strong> <span style=\"background-color: #f5ed05;\">by enterprises, institutions, organizations, and natural persons that hire employees<\/span>;<\/span><\/p>\n<p style=\"text-align: justify;\"><span style=\"font-family: 'courier new', courier, monospace;\"><strong>necessary for calculating the number of workplaces for the employment of persons with disabilities<\/strong> <span style=\"background-color: #f7e40a;\">by enterprises, institutions, organizations, natural persons that hire employees<\/span>, in accordance with the quota established by part one of this Article\u201d.<\/span><\/p>\n<p style=\"text-align: justify;\">In order to fulfill the above quota, there have been adopted the Procedure and Form for the provision by the Pension Fund of Ukraine to the Fund of Social Protection of Persons with Disabilities of information from the register of insured persons of the State Register of Compulsory State Social Insurance, approved by Resolution No. <a href=\"https:\/\/zakon.rada.gov.ua\/laws\/show\/z0457-23\" target=\"_blank\" rel=\"noopener\" class=\"broken_link\">14-2<\/a> of the Pension Fund of Ukraine as of March 10, 2023 (\u201cProcedure No. 14-2\u201d), which actually duplicates the provisions of the Law and also provides for the transfer of information regarding <strong>enterprises, institutions, organizations<\/strong>, and natural persons that hire employees.<\/p>\n<p style=\"text-align: justify;\">Therefore, if the Pension Fund had complied with the provisions of the Law, it would have transferred to the Fund information about enterprises, institutions, organizations, natural persons that hire employees (that is, about the subjects to fulfillment of the quota, as defined by the Law and Procedure No. 14-2).<\/p>\n<p style=\"text-align: justify;\">But instead, the Fund &#8220;automatically&#8221;, having received relevant information from the Pension Fund, without carrying out additional analysis of such information, identifies violators precisely among insurers and sends them calculations of the amounts of administrative and economic penalties.<\/p>\n<p style=\"text-align: justify;\">The fact that separate divisions of Ukrainian legal entities and representative offices of foreign legal entities did not register with the Fund and did not submit reports on the fulfillment of the quota also played a role. In the past several years, the Fund has applied to certain separate divisions with the requirement to register. This indicates that the Fund has had information about such separate divisions, but has not taken action to apply the sanctions. However, \u201cautomation\u201d has made it possible to determine sanctions without the participation of separate divisions.<\/p>\n<p style=\"text-align: justify;\">As a result, there is the following situation \u2013 this year requirements to pay the penalties have been received by persons which have never received such requirements before, namely:<\/p>\n<ul style=\"text-align: justify;\">\n<li>separate divisions of foreign non-governmental organizations;<\/li>\n<li>separate divisions of foreign business entities;<\/li>\n<li>separate divisions of Ukrainian legal entities.<\/li>\n<\/ul>\n<p style=\"text-align: justify;\">Therefore, first of all, we recommend that all representative offices and separate divisions check the employer&#8217;s cabinet on the electronic services <a href=\"https:\/\/portal.pfu.gov.ua\/\" target=\"_blank\" rel=\"noopener\">web portal<\/a> of the Pension Fund of Ukraine for the availability of the received calculation of administrative and economic sanctions and fines.<\/p>\n<p style=\"text-align: justify;\"><strong>The position of the Fund regarding the subjects to fulfilment of the quota<\/strong><\/p>\n<p style=\"text-align: justify;\">However, in its clarifications as of April 17, 2006 No. <a href=\"https:\/\/zakon.rada.gov.ua\/rada\/show\/v_667317-06#Text\" target=\"_blank\" rel=\"noopener\" class=\"broken_link\">06\u044e-75\/667<\/a> (have already expired), the Fund clearly stated the position that &#8220;representative offices of foreign companies that are not legal entities do not fall under the list of subjects provided by Article 19 of the said Law&#8221;, that is, they are not subject to fulfilment of the quota.<\/p>\n<p style=\"text-align: justify;\">The Fund has changed its position since 2014 but has not tried to apply sanctions. Thus, in letter No. 1\/3-63\/02-01 as of June 20, 2014, the Fund stated the following:<\/p>\n<p style=\"text-align: justify;\"><span style=\"font-family: 'courier new', courier, monospace;\"><strong>\u201cThe term \u2018enterprises, institutions, organizations\u2019<\/strong> used in Article 19 of the Law <strong>covers representative offices of foreign legal entities<\/strong>, which are not legal entities. Therefore, representative offices of foreign legal entities that hire employees &#8211; citizens of Ukraine, but at the same time are not legal entities, if there are grounds provided for in part nine of Article 19 of the Law, shall register at the Fund&#8217;s department, submit a report on the employment of\u00a0<\/span><span style=\"font-family: 'courier new', courier, monospace;\">persons with\u00a0<\/span><span style=\"font-family: 'courier new', courier, monospace;\">disabitities, and comply with the quota for workplaces for the employment of persons with disabilities\u201d.<\/span><\/p>\n<p style=\"text-align: justify;\">Trying to justify such a position, the Fund:<\/p>\n<ul style=\"text-align: justify;\">\n<li>has referred to the changes introduced in the Law in 2011 (although at that time Articles 19-20 were set out in a new version, but the list of subjects to fulfillment of the quota was not changed);<\/li>\n<li>has referred to Part 2 of Article 1 of the Law, which contains the only mention of separate divisions of legal entities and representative offices of foreign legal entities. The quotation of this provision is here below:<\/li>\n<\/ul>\n<p style=\"text-align: justify;\"><span style=\"font-family: 'courier new', courier, monospace;\">&#8220;Central and local bodies of executive power and bodies of local self-government, <strong>enterprises, institutions and organizations <\/strong>(regardless of the type of ownership, organizational and legal form, type of activity, industrial characteristics)<strong>, their branches, departments, representative offices<\/strong> <strong>that keep separate records of the results of financial and economic activity<\/strong>, banks and other financial institutions, <strong>as well as representative offices of foreign legal entities (including international organizations) that hire employees<\/strong> &#8211; citizens of Ukraine, unless otherwise provided for by international treaties of Ukraine, which are binding upon the consent of the Verkhovna Rada of Ukraine <strong>(hereinafter \u201centerprises, institutions and organizations\u201d)<\/strong>, natural persons that hire employees, <span style=\"background-color: #f7ef0a;\">involve representatives of civil society organizations of persons with disabilities to the preparation of decisions concerning the rights and interests of persons with disabilities<\/span>&#8220;<strong>.<\/strong><\/span><\/p>\n<p style=\"text-align: justify;\">The cited provision does not regulate the fulfilment of the quota but provides for the involvement of representatives of civil society associations of persons with disabilities in certain issues. However, the wording <span style=\"font-family: 'courier new', courier, monospace;\">\u201c<strong>(hereinafter \u201centerprises, institutions and organizations\u201d)<\/strong>\u201d<\/span> was added to the relevant provision, which, according to the Fund, is the term &#8220;enterprises, institutions and organizations&#8221;, covering:<\/p>\n<ul style=\"text-align: justify;\">\n<li>central and local bodies of executive power and bodies of local self-government;<\/li>\n<li>enterprises, institutions and organizations;<\/li>\n<li>their branches, departments, representative offices, which keep separate records of the results of financial and economic activity;<\/li>\n<li>banks and other financial institutions;<\/li>\n<li>as well as representative offices of foreign legal entities (including international organizations) that hire employees \u2013 citizens of Ukraine.<\/li>\n<\/ul>\n<p style=\"text-align: justify;\">Does the given wording of the Law really contain a definition of the term? Have really the terms &#8220;enterprises&#8221;, &#8220;institutions&#8221; and &#8220;organizations&#8221;, which are not defined in the Law, become the terms defined in the Law, and now include a wider meaning than their definitions in the Civil and Economic Codes just because of the phrase in brackets <span style=\"font-family: 'courier new', courier, monospace;\">\u201c(hereinafter \u201centerprises, institutions and organizations\u201d)\u201d<\/span>? At least it is controversial and ambiguous. A more detailed refutation of the Fund&#8217;s position is provided below (in the section available to subscribers).<\/p>\n<p style=\"text-align: justify;\">Therefore, despite the position of the Fund, another subject of power \u2013 the Central Interregional Administration of the State Labor Service in its latest <a href=\"https:\/\/kiev.dsp.gov.ua\/novyny\/normatyv-robochykh-mists-dlia-pratsevlashtuvannia-osib-z-invalidnistiu\/\" target=\"_blank\" rel=\"noopener\" class=\"broken_link\">clarifications<\/a> as of May 09, 2023, supported the approach of businesses and non-governmental organizations and noted that representative offices of foreign companies that are not legal entities do not need to comply with the quota. We would like to remind you that it is exactly this body that carries out checks on the fulfillment of the quota, in accordance with the Procedure for control over the fulfillment of the quota of workplaces designated for the employment of persons with disabilities, approved by the Resolution No. 70 of the Cabinet of Ministers of Ukraine as of January 31, 2007.<\/p>\n<p style=\"text-align: justify;\">In Letter No. <a href=\"http:\/\/parusconsultant.com\/?doc=047A1B65A9&#038;abz=6OLLA\" target=\"_blank\" rel=\"noopener\">1\/6-367<\/a> as of August 14, 2007, the Fund separately provided a clarification regarding the division of responsibilities between the main enterprise and its separate divisions, which is still valid. In this clarification the Fund confirmed that the main enterprise is responsible for fulfillment of the quota and independently decides on the method of its fulfillment:<\/p>\n<p style=\"text-align: justify;\"><span style=\"font-family: 'courier new', courier, monospace;\">\u201cTaking into account the above, the Fund considers that:<\/span><\/p>\n<p style=\"text-align: justify;\"><span style=\"font-family: 'courier new', courier, monospace;\">firstly, <strong>a legal entity (a main enterprise)<\/strong> as a defendant in a court, including for its separate divisions, <strong>independently resolves the issue of fulfilling the<\/strong> 4%<strong> quota<\/strong> for creating workplaces for the employment of disabled persons at the main enterprise, <strong>including its separate divisions<\/strong>, or makes a decision to fulfill an alternative obligation &#8211; the payment of administrative and economic sanctions to the State Budget of Ukraine;<\/span><\/p>\n<p style=\"text-align: justify;\"><span style=\"font-family: 'courier new', courier, monospace;\">secondly, taking into account that the main enterprise (legal entity) can, through the charter (regulations) and power of attorney, directly influence its separate divisions, <strong>the main enterprise<\/strong> <strong>can independently make a decision how to implement the 4% quota: at the expense of the main enterprise, OR at the expense of separate divisions only, OR at the expense of both the main enterprise and its separate divisions<\/strong> proportionally to the employees working<\/span> <span style=\"font-family: 'courier new', courier, monospace;\">for them\u201d.<\/span><\/p>\n<p style=\"text-align: justify;\"><strong>Judicial practice<\/strong><\/p>\n<p style=\"text-align: justify;\">We would like to note that in case of non-payment of administrative and economic sanctions for non-compliance with the quota, the Fund has the right to file a lawsuit demanding the collection of sanctions and fines. Analyzing the court practice for 2023, there is currently a tendency for the Fund to file such lawsuits against separate divisions and representative offices. For example, the Kyiv District Administrative Court already has about 15 lawsuits filed by the Kyiv City Department of the Fund for Social Protection of Persons with Disabilities for the collection of administrative and economic sanctions and fines against separate divisions of foreign companies (in particular, cases No. <a href=\"https:\/\/reyestr.court.gov.ua\/Review\/111780791\" target=\"_blank\" rel=\"noopener\">320\/20400\/23<\/a>, No. <a href=\"https:\/\/reyestr.court.gov.ua\/Review\/111913788\" target=\"_blank\" rel=\"noopener\">320\/21644 \/23<\/a>, No. <a href=\"https:\/\/reyestr.court.gov.ua\/Review\/111687441\" target=\"_blank\" rel=\"noopener\">320\/20437\/23<\/a>, No. <a href=\"https:\/\/reyestr.court.gov.ua\/Review\/111687441\" target=\"_blank\" rel=\"noopener\">320\/11956\/23<\/a>). It is exactly the Kyiv City Department of the Fund which is actively developing such a practice. However, there are also cases of filing lawsuits against representative offices of foreign companies in Poltava (case No. <a href=\"https:\/\/reyestr.court.gov.ua\/Review\/111688586\" target=\"_blank\" rel=\"noopener\">440\/7995\/23<\/a>), Dnipropetrovsk (case No. <a href=\"https:\/\/reyestr.court.gov.ua\/Review\/112119326\" target=\"_blank\" rel=\"noopener\">160\/15833\/23<\/a>), and Zaporizhzhya regions (case No. <a href=\"https:\/\/reyestr.court.gov.ua\/Review\/111943652\" target=\"_blank\" rel=\"noopener\">280\/4675\/23<\/a>). In the State Register of Court Decisions, we found only one case of filing a lawsuit against a separate division of a Ukrainian legal entity in the Poltava region (case No. <a href=\"https:\/\/reyestr.court.gov.ua\/Review\/111781947\" target=\"_blank\" rel=\"noopener\">440\/8392\/23<\/a>). However, we assume that such lawsuits are simply addressed to the main enterprise and in fact the problem is more massive than it appears from the State Register of Court Decisions.<\/p>\n<p style=\"text-align: justify;\">This indicates the beginning of the formation of judicial practice regarding the filing by the Fund of lawsuits for the collection of administrative and economic sanctions, taking into account changes in the legislation. As we have noted above, the list of subjects under Article 19 of the Law has not changed, only the mechanism for receiving information about the fulfillment of the quota has changed. However, such a small change in the legislation has led to a problem of cardinal importance. Automatically obtaining information and identifying violators will lead to the fact that the courts will be flooded with ill-founded lawsuits, while businesses and non-governmental organizations will be forced to spend resources defending their position.<\/p>\n<p style=\"text-align: justify;\">The legal position that will be formed by judicial practice, including at the level of the Supreme Court, will be decisive (the Fund&#8217;s position will either be supported or refuted), and therefore this issue requires monitoring.<\/p>\n<p style=\"text-align: justify;\"><strong>Penalties as pressure to pay sanctions voluntarily<\/strong><\/p>\n<p style=\"text-align: justify;\">Violation of the terms for payment of administrative and economic sanctions (non-payment by April 15) leads to the imposition of a penalty calculated based on 120% of the annual discount rate of the National Bank of Ukraine effective at the time of payment, calculated on the full amount of the arrears for the full term.<\/p>\n<p style=\"text-align: justify;\">As for today, it is 30% per year (discount rate of 25% * 120% per annum). In other words, during a year of litigation, the amount of sanctions will increase by 30%, that puts some pressure on representative offices, for which the sanctions are already outside the funding budget. Such a situation leads to the fact that the management decides to pay the sanctions, although the grounds for their imposition are rather doubtful. As a confirmation, the State Register of Court Decisions already contains decisions to withdraw claims due to the payment of sanctions. Everyone makes the decision that they consider more appropriate in specific circumstances, but it should be remembered that the payment of sanctions forms the relevant practice and weakens the position of other representative offices and separate divisions that disagree with the Fund and dispute against the sanctions in a court.<\/p>\n<p style=\"text-align: justify;\">The grounds for appeal against the sanctions imposed by the Fund are described in more detail below.<\/p>\n<p style=\"text-align: justify;\"><strong>Potential innovations<\/strong><\/p>\n<p style=\"text-align: justify;\">Currently, the Verkhovna Rada is working on the Draft Law of Ukraine <a href=\"https:\/\/itd.rada.gov.ua\/billInfo\/Bills\/Card\/40853\" target=\"_blank\" rel=\"noopener\">\u2116 5344-\u0434<\/a> &#8220;On Amendments to Certain Laws of Ukraine on Ensuring the Rights of Persons with Disabilities to Employment&#8221;, which has been adopted as a basis and is being prepared for the second reading.<\/p>\n<p style=\"text-align: justify;\">Its purpose is to change the approach to the system of encouraging employers to hire people with disabilities. However, little changes in the context of non-compliance with the quota, as instead of paying administrative and economic sanctions once a year, it is proposed to pay a monthly contribution, which does not fundamentally change the \u201cemploy people with disabilities or pay a fine\u201d approach.<\/p>\n<p style=\"text-align: justify;\">At the same time, <strong>the draft law proposes to slightly change the wording regarding the list of subjects to fulfillment of the quota for the employment of persons with disabilities.<\/strong><\/p>\n<p style=\"text-align: justify;\">Thus, the draft law sets out the rule on the quota in the following wording:<\/p>\n<p style=\"text-align: justify;\"><span style=\"font-family: 'courier new', courier, monospace;\">\u201cArticle 18-2. <strong>EMPLOYERS <\/strong>with an average number of 8 or more employees for the month for which the contribution is paid (hereinafter \u201ccontribution payers\u201d) are obliged to pay a monthly contribution to support the employment of persons with disabilities (hereinafter \u201ccontribution\u201d)\u201d.<\/span><\/p>\n<p style=\"text-align: justify;\">These innovations will stipulate that <strong>the employers are the subjects to<\/strong> <strong>fulfilment of the quota but not enterprises, institutions, organizations<\/strong>, or natural persons that hire employees (as currently provided by the Law)<strong>.<\/strong><\/p>\n<p style=\"text-align: justify;\">At the same time, the draft law contains a definition of &#8220;employer&#8221; for the purposes of this law, namely: <span style=\"font-family: 'courier new', courier, monospace;\">\u201can employer is a <span style=\"background-color: #f2f207;\">legal entity<\/span>, regardless of its organizational and legal form, form of ownership and subordination, and an individual entrepreneur that hire employees under the terms of an employment agreement (contract), service contract or other terms provided for by law, except for civil law contracts\u201d<\/span>.<\/p>\n<p style=\"text-align: justify;\">Separate divisions of foreign non-governmental organizations, foreign business entities, and Ukrainian legal entities are not legal entities, and therefore should not be recognized as subjects to fulfillment of the quota. At the same time, we cannot exclude the interpretation that a foreign legal entity is a legal entity-employer that operates in Ukraine through a representative office located in Ukraine. This approach can also be based on the fact that currently non-residents must be registered with the tax authorities, and a representative office, through its actions, generates legal consequences for a non-resident. We have been already acquainted with cases where the Fund brings a claim against a non-resident through a representative office. The risk of such an interpretation is further increased by the fact that the draft law contains a specific and only exception to the rule regarding which employer is not a subject of the quota:<\/p>\n<p style=\"text-align: justify;\"><span style=\"font-family: 'courier new', courier, monospace;\">\u201cThe requirements for the quota of workplaces determined in accordance with Article 18-2 of this Law <strong>do not apply to diplomatic missions and consular offices<\/strong> of foreign states\u201d<\/span>.<\/p>\n<p style=\"text-align: justify;\">As one can see, this exception does not include separate divisions of non-residents, so we do not exclude that the Fund will continue to take the position that the obligation to fulfill the quota applies to: (i) a separate division of a non-resident OR (ii) a non-resident that is a legal entity (acting through a representative office in Ukraine). In other words, one way or another, the risks that the quota shall be fulfilled increase.<\/p>\n<p style=\"text-align: justify;\">In view of this, we consider that non-governmental organizations that have a clearly defined funding budget bear an additional financial burden that is not foreseen in their budgets. Therefore, in order to avoid difficulties in the future, it is necessary to engage in the process of introducing appropriate changes to the draft law. For example, you can lobby for the approach that is currently applied to state (budget) organizations \u2013 they are obliged to comply with the quota but are not subject to sanctions.<\/p>\n<p style=\"text-align: justify;\"><strong>Substantiation of the illegality of the Fund&#8217;s requirements in case of a claim against a separate division or representative office of a non-resident<\/strong><\/p>\n<p style=\"text-align: justify;\"><em>Terms of calculation of sanctions<\/em><\/p>\n<p style=\"text-align: justify;\">Pursuant to the new Law, the subjects that failed to comply with the quota should be identified and the calculation of administrative and economic sanctions should be sent to them by March 10. Instead, on March 10, 2023, the Pension Fund only approved the relevant acts regulating these issues:<\/p>\n<ul style=\"text-align: justify;\">\n<li>the Procedure and Form for providing information from the Register of Insured Persons of the State Register of Compulsory State Social Insurance by the Pension Fund of Ukraine to the Fund for Social Protection of Persons with Disabilities, approved by the Resolution of the Pension Fund of Ukraine <a href=\"https:\/\/zakon.rada.gov.ua\/laws\/show\/z0457-23#Text\" target=\"_blank\" rel=\"noopener\" class=\"broken_link\">\u2116. 14-2<\/a> as of March 10, 2023, which entered into force on <strong>March 2023<\/strong>;<\/li>\n<li>Procedure for sending the calculation of the amounts of administrative and economic sanctions payable in connection with the failure to comply with the quota of workplaces for the employment of persons with disabilities for the previous year, approved by Resolution of the Pension Fund of Ukraine <a href=\"https:\/\/zakon.rada.gov.ua\/laws\/show\/z0456-23#Text\" target=\"_blank\" rel=\"noopener\" class=\"broken_link\">\u2116 14-1<\/a> as of March 10, 2023, which entered into force on <strong>March 2023.<\/strong><\/li>\n<\/ul>\n<p style=\"text-align: justify;\">The absence of the necessary regulatory framework in 2023 made it impossible for the Fund to identify violators and send them the calculation of penalties, and therefore in some cases, the subjects to fulfilment of the quota were physically unable to pay administrative and economic sanctions on time, by April 15.<\/p>\n<p style=\"text-align: justify;\"><!--more--><\/p>\n<p style=\"text-align: justify;\">Here, the question arises as to what consequences will occur due to such a forced delay in the payment of administrative and economic sanctions? For example, if a company received a calculation on April 15 and failed to fulfill its obligation to pay on the same day, will it be charged a penalty from April 16 until the day of actual payment? Or, if the calculation was received after April 15, does this mean that the company may not comply with the Fund&#8217;s request in general, as it was made in violation of the law?<\/p>\n<p style=\"text-align: justify;\">Thus, Article 19 of the Law clearly states that the Fund must identify violators by March 10 each year and send them a calculation of the amounts of administrative and economic sanctions to be paid in connection with the failure to comply with the quota. In view of this provision, it is possible to take the approach that the Fund, as a subject to the authority, does not have the power to determine the calculation beyond this date, and such a determination is an abuse of power. Thus, the rule provides:<\/p>\n<p style=\"text-align: justify;\"><span style=\"font-family: 'courier new', courier, monospace;\">\u201cThe Fund for Social Protection of Persons with Disabilities annually <strong>by March 10<\/strong>, automatically, using data from the State Register of Compulsory State Social Insurance and the Centralized Disability Data Bank, <strong>identifies enterprises<\/strong>, institutions, organizations and natural persons that hire employees, including enterprises and organizations belonging to civil society organizations for persons with disabilities, <strong>which in the previous year failed to fulfill the quota of workplaces, <\/strong>defined by part one of this Article, and <strong>sends them a calculation of the amounts of administrative and economic sanctions to be paid<\/strong> due to failure to comply with the quota of workplaces for the employment of persons with disabilities for the previous year, calculated in accordance with Article 20 of this Law&#8221;.<\/span><\/p>\n<p style=\"text-align: justify;\">The provision was amended in October 2022, that is why, in our opinion, it takes priority over the provision of Article 20 of the Law (last amended in 2012), which provides that the enterprise calculates the amount of sanctions independently.<\/p>\n<p style=\"text-align: justify;\"><span style=\"font-family: 'courier new', courier, monospace;\">&#8220;Administrative and economic sanctions <strong>shall be calculated<\/strong> and paid by enterprises, institutions, organizations, &#8230;, <strong>independently<\/strong> by April 15 of the year following the year in which the violation of the quota established by part one of Article 19 of this Law occurred. At the same time, the time limits set forth in Article 250 of the Economic Code of Ukraine do not apply to legal relations on the collection of administrative and economic sanctions provided for by this Law&#8221;.<\/span><\/p>\n<p style=\"text-align: justify;\">Please note that we already have information about cases when the calculation of administrative and economic sanctions has appeared in the employer&#8217;s electronic cabinet &#8220;retroactively&#8221;. In other words, in certain cases, businesses and non-governmental organizations will also need to prove that the calculations of administrative and economic sanctions have been sent late. One of the options for defense may be to request information from the Pension Fund on the date of receipt of the calculation from the Fund and the date of its sending to the employer&#8217;s cabinet through the electronic services web portal. In the case of a dispute, such information can be verified with the hosting provider that maintains the relevant server.<\/p>\n<p style=\"text-align: justify;\"><em>The term (&#8220;enterprises, institutions and organizations&#8221;) is not defined in the Law<\/em><\/p>\n<p style=\"text-align: justify;\">The terms &#8220;enterprises&#8221;, &#8220;institutions&#8221;, &#8220;organizations&#8221; are not defined in the Law, and therefore shall be used in the meaning given in the Economic Code and the Civil Code. According to the definitions provided in these codes, enterprises, institutions, organizations are legal entities.<\/p>\n<p style=\"text-align: justify;\">Shorter forms of terms used in regulatory acts to simplify the perception of their content cannot change the essence of the term or replace the term for which the shorter form is introduced. Therefore, the term &#8220;enterprises&#8221; being used as a shorter form in the text of the Law cannot change its definition and begin to cover a separate division that is not a legal entity.<\/p>\n<p style=\"text-align: justify;\">The list in Part 2 of Article 1 of the Law ends with the phrase <span style=\"font-family: 'courier new', courier, monospace;\">&#8220;(hereinafter \u201centerprises, institutions and organizations\u201d)&#8221;<\/span>. Neither of these terms includes a representative office of a foreign legal entity, a government agency, or a separate division. Therefore, further on in the text of the Law, including for the purposes of Articles 19, 20 of the Law, &#8220;enterprises, institutions and organizations&#8221; means exactly the enterprises, institutions, organizations and in no case should it mean central and local authorities, or representative offices of foreign companies, or separate divisions.<\/p>\n<p style=\"text-align: justify;\">The established practice (more than 10 years) of the application of the Law by state bodies, which are authorized to check the fulfillment of the quota and apply sanctions in the event of non-compliance, confirms that the provisions of the Law have been perceived by them in such a way that the obligation to fulfill the quota has extended precisely to enterprises, institutions and organizations. No claims have been made to the representative offices of foreign companies regarding the employment of persons with disabilities until 2023. According to the practice of the ECHR, which is mandatory for application in Ukraine in matters of ensuring the rule of law, the law is not just a properly established written legal provision, but also its actual content, taking into account the established practice of its application.<\/p>\n<p style=\"text-align: justify;\">The method of shortening the list used in the Law is an example of a poor-quality text that does not correspond to the constant practice of shortening long terms in other laws and, as a result, is not a rule of law, as it does not meet the quality criteria of the law.<\/p>\n<p style=\"text-align: justify;\">The lack of grounds to extend the obligation provided for in Articles 19 and 20 of the Law to separate divisions, due to the absence of a provision of the Law that would impose such an obligation on separate divisions, also follows from the principles of legal certainty, clarity and quality of the law, which are components of the rule of law that according to clause 1 part 3 of Article 2 of the Code of Administrative Procedure of Ukraine, is one of the basic principles of administrative proceedings.<\/p>\n<p style=\"text-align: justify;\">There are also questions regarding the term &#8220;representative office of a foreign legal entity&#8221;. The term is not defined in the Law. And in other laws it is defined in a way that makes it impossible to include representative offices of foreign legal entities into the list.<\/p>\n<p style=\"text-align: justify;\"><em>Procedural status of a separate division in court<\/em><\/p>\n<p style=\"text-align: justify;\">A separate division of a foreign legal entity cannot be a defendant in a lawsuit filed by a public authority. Thus, according to Part 2 of Article 26 of the Code of Administrative Procedure of Ukraine: <span style=\"font-family: 'courier new', courier, monospace;\">\u00abClaims against <strong>legal entities<\/strong> shall be filed in court at their location according to the Unified State Register of Legal Entities, Individual Entrepreneurs and Public Organizations, unless otherwise provided by this Code\u00bb<\/span>.<\/p>\n<p style=\"text-align: justify;\">The Code of Administrative Procedure of Ukraine does not provide for territorial jurisdiction over claims brought by a public authority against a separate division. Foreign legal entities are not registered in the Unified State Register of Legal Entities, Individual Entrepreneurs and Public Organizations, and therefore cannot be defendants in such cases.<\/p>\n<p style=\"text-align: justify;\">There are other additional arguments that confirm that the Fund&#8217;s claim to the separate division of a foreign legal entity in Ukraine does not comply with the requirements of the Code of Administrative Procedure of Ukraine.<\/p>\n<p style=\"text-align: justify;\"><strong><em>The<\/em><\/strong><strong><em>\u00a0<\/em><\/strong><strong><em>above commentary<\/em><\/strong><strong>\u00a0<\/strong><strong><em>presents the general statement for information purposes only and as such may not be practically used in specific cases without professional advice.<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"<p>\u0421\u0442\u0430\u0442\u0442\u044f \u043e\u043d\u043e\u0432\u043b\u0435\u043d\u0430 \u0441\u0442\u0430\u043d\u043e\u043c \u043d\u0430 09.08.2023 \u0440. \u0417 \u0436\u043e\u0432\u0442\u043d\u044f 2022 \u0440\u043e\u043a\u0443 \u0431\u0443\u043b\u043e \u0437\u043c\u0456\u043d\u0435\u043d\u043e \u0441\u043f\u043e\u0441\u0456\u0431 \u043e\u0442\u0440\u0438\u043c\u0430\u043d\u043d\u044f \u0424\u043e\u043d\u0434\u043e\u043c \u0441\u043e\u0446\u0456\u0430\u043b\u044c\u043d\u043e\u0433\u043e \u0437\u0430\u0445\u0438\u0441\u0442\u0443 \u043e\u0441\u0456\u0431 \u0437 \u0456\u043d\u0432\u0430\u043b\u0456\u0434\u043d\u0456\u0441\u0442\u044e (\u0434\u0430\u043b\u0456 \u2013 \u0424\u043e\u043d\u0434) \u0437\u0432\u0456\u0442\u043d\u043e\u0441\u0442\u0456 \u0449\u043e\u0434\u043e \u0432\u0438\u043a\u043e\u043d\u0430\u043d\u043d\u044f \u043d\u043e\u0440\u043c\u0430\u0442\u0438\u0432\u0443 \u0440\u043e\u0431\u043e\u0447\u0438\u0445 \u043c\u0456\u0441\u0446\u044c \u0434\u043b\u044f \u043f\u0440\u0430\u0446\u0435\u0432\u043b\u0430\u0448\u0442\u0443\u0432\u0430\u043d\u043d\u044f \u043e\u0441\u0456\u0431 \u0437 \u0456\u043d\u0432\u0430\u043b\u0456\u0434\u043d\u0456\u0441\u0442\u044e (\u0434\u0430\u043b\u0456 \u2013 \u043d\u043e\u0440\u043c\u0430\u0442\u0438\u0432). \u0417\u0432\u0456\u0442\u043d\u0456\u0441\u0442\u044c \u043f\u043e\u0447\u0430\u043b\u0430 \u043e\u0442\u0440\u0438\u043c\u0443\u0432\u0430\u0442\u0438\u0441\u044c \u0424\u043e\u043d\u0434\u043e\u043c \u0447\u0435\u0440\u0435\u0437 \u041f\u0435\u043d\u0441\u0456\u0439\u043d\u0438\u0439 \u0444\u043e\u043d\u0434, \u0449\u043e \u043f\u0440\u0438\u0437\u0432\u0435\u043b\u043e \u0434\u043e \u0441\u0442\u0432\u043e\u0440\u0435\u043d\u043d\u044f \u043f\u0440\u043e\u0431\u043b\u0435\u043c, \u043d\u0430\u0441\u0430\u043c\u043f\u0435\u0440\u0435\u0434 \u0434\u043b\u044f \u043f\u0440\u0435\u0434\u0441\u0442\u0430\u0432\u043d\u0438\u0446\u0442\u0432 \u0456\u043d\u043e\u0437\u0435\u043c\u043d\u0438\u0445 \u044e\u0440\u0438\u0434\u0438\u0447\u043d\u0438\u0445 \u043e\u0441\u0456\u0431 [&hellip;]<\/p>\n","protected":false},"author":16069,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11],"tags":[98],"class_list":["post-23088","post","type-post","status-publish","format-standard","hentry","category-exclusive","tag-trudovi-pytannya"],"_links":{"self":[{"href":"https:\/\/kmp.ua\/en\/wp-json\/wp\/v2\/posts\/23088"}],"collection":[{"href":"https:\/\/kmp.ua\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/kmp.ua\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/kmp.ua\/en\/wp-json\/wp\/v2\/users\/16069"}],"replies":[{"embeddable":true,"href":"https:\/\/kmp.ua\/en\/wp-json\/wp\/v2\/comments?post=23088"}],"version-history":[{"count":28,"href":"https:\/\/kmp.ua\/en\/wp-json\/wp\/v2\/posts\/23088\/revisions"}],"predecessor-version":[{"id":26282,"href":"https:\/\/kmp.ua\/en\/wp-json\/wp\/v2\/posts\/23088\/revisions\/26282"}],"wp:attachment":[{"href":"https:\/\/kmp.ua\/en\/wp-json\/wp\/v2\/media?parent=23088"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/kmp.ua\/en\/wp-json\/wp\/v2\/categories?post=23088"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/kmp.ua\/en\/wp-json\/wp\/v2\/tags?post=23088"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}