Publications

“Zerkalo Nedeli. Ukraine”  
№46, December 16, 2011

Bek Marianna, Associate,
Oleksiy Volkov, Managing Partner, 
Volkov and Partners Law Firm  

A citizen of the modern information society is an individual whose personal data (PD) is processed automatically. Is it agreed with the constitutional principle of privacy?
 
A day-to-day environment.
You are an individual, participant of such legal relations as, for example labor ones. When getting a job you provide an employer with required private information, or PD, in other words, "the information about an individual who is identified or can be specifically identified." The employer will put it in its personal data database (PDD) of employees, and - congratulations - you've got the status of a subject of personal data (SPD). The employer in this case is the owner of PDD. This means that your personal data gets to be collected, stored, maintained, adapted, modified, renewed, used and distributed, depersonalized and even eliminated! In short, your data is handled through PDD. PD is processed by a person- manager of PDD appointed by the owner.
The owner may process your PD solely on the basis of you voluntary recorded consent (with the scope of data specified) in accordance with the stated purpose. In this case, the objective of data procession is linked to employment...

Bridges
Vol. 26 • February 2011

Iryna Polovets, Tetiana Kheruvimova – Associates with Volkov and Partners

Before the ink could dry on Cabinet of Ministers of Ukraine’s (the CMU) Decree No. 1254, which has established compulsory registration of the  foreign economic contracts with the Agrarian exchange (see “Grain Saga”: new season, old story for details ), as the producers “got a buzz” from another great surprise.

On February 2, 2011, Draft law No.8053 “On Amendments to the Law of Ukraine “On State Support of Agriculture” (regarding specifics of exports subject to state price regulation)” was registered with the Committee on Agrarian Policy and Land Relations of the Verkhovna Rada of Ukraine. This Draft law states that export of commodities subject to state price regulation (including inter alia wheat, corn, barley, sunflower seeds, rape seeds, flour, granulated sugar, dried milk, cattle and poultry meat, butter and sunflower seeds oil) shall be effected only by the agricultural producers within in-house volumes and a state agent in charge of exports subject to state price regulation. The list of exported products subject to state price regulation will be defined by the government annually based on results of monitoring of the agricultural products market. In other words, during sowing period a producer will hardly know whether it can freely sell its products in external markets afterwards.

Pursuant to Draft Law No. 8053 “a state agent for ensuring exportation” is a state enterprise or a business entity with a state share in its statutory fund, which is determined on a competitive basis by the Cabinet of Ministers of Ukraine. However, Draft Law No. 8053 provides for neither a size of the state share nor requirements to private participants in “the state agent”...

INTERFAX-UKRAINE
Kyiv. February 4, 2011

Roman Drozhanskyi, partner with Vokov & Partners

The Law of Ukraine “On Amendments into the Law of Ukraine “On Joint Stock Companies” adopted with inclusion of the President’s propositions does not contain now the main inconsistent provision that drew a wide response after its initial enactment by the Verkhovna Rada, believes Mr. Drozhanskyi. “So, stakeholders owning 95 or more per cent of a joint stock company’s shares will have no right to force other holders to sell their stakes”.
The provision in question disappeared from the final wording of the Law possibly due to foreign investors’ criticism implying that Ukrainian companies’ shares would enjoy low attractiveness in case such provision is introduced. Moreover, it was doubtful whether this provision is consistent with the Constitution of Ukraine saying that the enforceable expropriation of private property shall be in place only as an exception and based on social necessity.
The adopted law simplified the decision-making procedure as regards the execution of a transaction the value of which exceeds 50 per cent of a company’s assets value. Now more than 50 per cent of shareholders, but not over three fourths as before, must vote for such transaction execution.
The law concerned, however, kept in force the provision on requirement for joint stock companies to be admitted for trading at one, at least, stock exchange. This requirement, in the expert’s opinion, is rather cumbersome and contradicts the announced state’s policy on business deregulation.
At the same time, holders of over 25 per cent of shares can no longer block the transaction execution the value of which exceeds 50 per cent of the  total company’s assets, or in fact any (even the most major) transaction of the company. But such shareholders will be able to block some decisions like the introduction of amendments into the charter, changes of the incorporation form, stock placement or change of the authorized capital of the company.

INTERFAX-UKRAINE
Kyiv. February 3, 2011

Andrii Zablotskyi, associate with Volkov and Partners

The Cabinet of Ministers of Ukraine (the CMU) proposed amendments to the procedure of tariff rate quota distribution applied to raw cane sugar import to Ukraine, whereby creating prerequisites for restriction of competition in Ukrainian sugar market, which is unallowable in terms of sugar deficiency in the market.
Although introducing ‘first come, first served’ principle Ukraine fulfils its WTO commitments, the drawback of the document cannot be but mentioned, namely, creating preconditions to limit competition in the market.
In case licence issue depends on the State Reserve Agency’s consent, it may be considered as an action able to restrict competition. Besides, such condition complicates administrative course of the licence issue procedure, which conflicts with the fundamental WTO principles.
Today, we see an explicit tendency towards tighter regulation of the agricultural products market and a sugar sector, in particular. In addition to the aforementioned, changes were also offered into the Law “On State Regulation of Sugar Production and Sale” that envisages the establishment of several commissions – technical, joint commission, and approval commission. However, the aim of their establishment and division of powers are far from being clearly outlined. The only undoubtful and clear point is that they may become another administrative barrier for sugar producers.

INTERFAX-UKRAINE
Kyiv. February 2, 2011

Tatiana Kheruvimova, associate with Volkov and Partners

The anti-dumping duties have been prolonged, notwithstanding the technical delay of the official publication of the Government’s Decree “Оon Prolongation of Anti-dumping Duties”.
Draft Decree of the government of the Russian Federation (RF) “On Protection of Business Interests of Domestic Producers of Certain Types of Steel Pipes" was posted on January 20 at the official web-site of the Ministry of Industry and Trade of the Russian Federation. As the draft reads, the Decree shall be valid from January 31, 2011. Therefore, the Act has come into force on the due date, in case it is signed by head of the government.
Speaking about official publication, one cannot but admit that, subject to provisions of the Order of Head of the RF “On Procedure of Publication and Enforcement of the President’s Acts, Government Act and regulatory acts of the federal executive agencies”, decrees of the Russian Government must be officially published in “Rosiyskaya Gazeta” (Russian Newspaper) within 10 days after signing thereof. Government acts can also be published in other printed editions, as well as publicly read on TV and radio, served with state agencies and authorities, …, enterprises, offices, organizations, communicated through other communication channels”.
Admittedly, the Ministry of Industry and Trade of the Russian Federation assures that the Decree has already been signed and is going to be officially published soon. Thus, the issue on non-compliance to the procedure can be raised only after 10 day term for official publication of the document from the date of signing of the Decree.