GENERALIZATION OF THE SUPREME ECONOMIC COURT OF UKRAINE

of January 1, 2009

About results of studying and generalization of court practice of the decision by economic courts of the disputes connected with protection of the surrounding environment

I. General characteristic of disputes

The relations in the field of the surrounding environment in Ukraine are governed by the Constitution of Ukraine, international agreements of Ukraine, the Civil code of Ukraine, the Law of Ukraine "About protection of the surrounding environment", and also the land, water, forest legislation, the legislation on subsoil, on protection of atmospheric air, on protection and use of plant and animal life and other special legislation.

Damnification to the state owing to non-compliance by the companies, organizations and organizations of requirements of the ecological legislation when implementing economic activity became basic reason of emergence of disputes in this category of legal relationship.

So, according to part 4 of article 68 of the Law of Ukraine "About protection of the surrounding environment" the companies, organizations, the organizations and citizens shall compensate the harm done by them owing to violation of the law about protection of the surrounding environment, according to the procedure and the sizes established by the legislation of Ukraine.

The harm done owing to violation of the law about protection of the surrounding environment is subject to compensation, as a rule, in full without application of regulations of decrease in the amount of collection and irrespective of collection for pollution of the surrounding environment and quality degradation of natural resources.

The analysis of statistics which characterize the specified category of disputes, demonstrates that economic courts generally truly apply legislation regulations which regulate the specified legal relationship.

Claimants in disputes of this category in most cases are bodies which provide realization of state policy in the field of protection of the surrounding environment: The state ecological inspection, Public administration of protection of the surrounding environment, other controlling state bodies, and also the prosecutor for the benefit of the state on behalf of these bodies.

Respectively, business entities who allow offense in the field of protection of the surrounding environment were defendants in the specified disputes.

Matter in issue in most cases is collection of the harm done to the state owing to violation of the law in the field of protection of the surrounding environment.

The extent of damage suffered was determined depending on damnification type according to the established techniques and dachshunds:

- Method of calculation of the sizes of indemnification caused to the state owing to violation of the law about the protection and rational use of water resources approved by the order of the Ministry of protection of the surrounding environment and nuclear safety of Ukraine of 18.05.95 N 37;

- Method of calculation of the sizes of indemnification which are caused to the state as a result of above-standard emissions of pollutants in atmospheric air, the protection of the surrounding environment and nuclear safety of Ukraine approved by the order of the Ministry of 18.05.95 N 38;

- Techniques of determination of the extent of the harm caused by pollution and contamination of land resources through violation of the nature protection legislation, the protection of the surrounding environment and nuclear safety of Ukraine approved by the order of the Ministry of 27.10.97 N 171;

- Dachshunds for calculation of the extent of the harm done by the companies, organizations, the organizations and citizens to green plantings in borders of the cities and other settlements., approved by the resolution of the Cabinet of Ministers of Ukraine of 08.04.99 N 559;

- Dachshunds for calculation of the amount of compensation of the damage caused to natural complexes of the territories and objects of natural and reserved fund by legal entities and physical persons..., N 521, approved by the resolution of the Cabinet of Ministers of Ukraine of 21.04.98 and so forth.

1.1. The right to appeal to the court with recovery suits of harm,

caused by violation of the law about protection of the surrounding environment

As witnesses the carried-out analysis of court practice, by hearing of cases of category of disputes which is generalized, economic courts differently approach the solution of question concerning the right of state bodies to appeal to the court with recovery suits of the harm done by violation of the law about protection of the surrounding environment, considering instructions of article 20 of the Law of Ukraine "About protection of the surrounding environment" according to which the right to appeal to economic court with indemnification claims and the losses caused as a result of violation of the law about protection of the surrounding environment is provided to specially authorized bodies of public administration in the field of protection of the surrounding environment and use of natural resources.

One judgments are based that body which has the right to the address with claims for compensation of the losses and losses caused owing to violation of requirements of the legislation on protection of the surrounding environment is exclusively State ecological inspection, bodies of local self-government cannot act as plaintiffs in such disputes, others - that local government bodies can also declare recovery suits of the harm done by violation of the law about protection of the surrounding environment.

So, on case on the claim of the Vinnytsia interdistrict nature protection prosecutor for the benefit of the state on behalf of Stepashsky village council to JSC Vinnitsaoblenergo about indemnification, caused by unauthorized use of the parcel of land, the claim without consideration is left by economic court of Vinnytsia region proceeding, in particular, from the following.

According to part 3 of Article 2 of the Economic Procedure Code of Ukraine the prosecutor who appeals to economic court for the benefit of the state in the action for declaration independently determines in what violation of interests of the state consists, and proves need of their protection, and also specifies the body authorized by the state to perform the corresponding functions in the disputable relations.

According to Item 2 of substantive provisions of the Solution of the Constitutional Court of Ukraine of 08.04.99 of N 3-rp/99 it is necessary to understand public authority or local government body to which the law confers powers of executive body and which actually is claimant on case and the party in process as the concept "the body authorized by the state to perform the corresponding functions in the disputable relations".

The prosecutor as the claimant specifies Stepashsky village council which is not body of the state executive authority in disputable legal relationship.

Besides, according to Item 1 of substantive provisions of the Solution of the Constitutional Court of Ukraine of 08.04.99 of N 3-rp/99 prosecutors and their deputies submit to economic court claims for the benefit of the state, but not for the benefit of the companies, organizations and the organizations irrespective of their subordination and pattern of ownership.

Being guided by article 140 of the Constitution of Ukraine according to which local self-government is the right territorial obshchinyzhitel of the village or voluntary consolidation in agricultural community of residents of several villages, the settlement and city - independently to resolve issues of local value within the Constitution and the laws of Ukraine, local self-government is performed by territorial community according to the procedure, established by the law as it is direct, and through local government bodies: village, settlement, city councils and their executive bodies; article 143 of the Constitution of Ukraine; Articles 5, of 11, 29 Laws of Ukraine "About local self-government", the court noted that management of utility property is within the competence of local self-government. The Stepashsky village council in disputable legal relationship does not perform power of body of the state executive authority in this connection the prosecutor incorrectly determines the body authorized by the state to perform the corresponding functions in the disputable relations.

The specified judgment in cassation procedure was not appealed.

Such legal line item is not supported by the Supreme Economic Court of Ukraine in case of dispute decision in the claim of the deputy prosecutor of Donetsk region for the benefit of the state on behalf of Konstantinivsky city council to the State regional utility company "Donetskoblvodokanal" about collection for benefit of the local budget of Konstantinivsky city council of the harm done by violation of the nature protection legislation.

So, the economic court of Donetsk region satisfies claims of the deputy prosecutor of Donetsk region in view of the fact that the defendant performs special water use without availability of the corresponding permission, than requirements of Articles 44, 49 Water codes of Ukraine, and also article 40 of the Law of Ukraine "About protection of the surrounding environment" are violated that was confirmed by the inspection statement of accomplishment of the water preserving legislation.

The decision of economic court is cancelled by the resolution of the Donetsk Economic Court of Appeal, is refused to the deputy prosecutor of Donetsk region the claim.

The Supreme Economic Court of Ukraine, repealing the resolution of the Donetsk Economic Court of Appeal and upholding the decision of local economic court, in particular, noted that the Economic Court of Appeal came to wrong conclusion that body which has the right to the address with claims for compensation of the losses and losses caused owing to violation of requirements of the legislation on protection of the surrounding environment is only the State ecological inspection. The conclusion of Economic Court of Appeal is based on the Item "z" of part 1 of article 20 of the Law of Ukraine "About protection of the surrounding environment" and the subitem 9 of Item 5 of the Regulations on the State ecological inspection in areas, the cities of Kiev and Sevastopol approved by the order of Ministry for Protection of the Environment and Natural Resources of Ukraine of 19.12.2006 of N 548, which provide the right of Inspection to submit claims for compensation of losses and the loss caused owing to violation of requirements of the legislation on protection of the surrounding environment.

The Supreme Economic Court of Ukraine noted that such line item does not answer provisions of the current legislation, and drew the attention of Economic Court of Appeal, in particular, to the following.

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