Publication date: 09.07.2024
Legal regulation of concessions in Ukraine
Introduction.
A concession is a form of public-private partnership that allows attracting private investment in infrastructure development, public services and management of state assets. The legal regulation of concessions in Ukraine is aimed at creating favorable conditions for interaction between the state and the private sector, ensuring transparency and efficiency of concession projects. In this article, we will analyze the main principles, regulations and bodies that regulate concessions in Ukraine, as well as the rights and obligations of concessionaires and concessionaires.
Basic principles of legal regulation of concessions
The legal regulation of concessions in Ukraine is based on several basic principles that ensure the efficiency and stability of concession relations:
Theprinciple of transparency. All stages of concession projects, including the preparation, conclusion and execution of concession agreements, should be transparent and open to the public and regulatory authorities.
Theprinciple of competition. The concessionaire is selected on a competitive basis, which ensures equal conditions for all participants and facilitates the selection of the most effective projects.
Theprinciple of mutual benefit. Concession relations should ensure mutual benefit for the state and the private partner, promote economic development and improve the quality of public services.
Theprinciple of responsibility. The concessionaire and the concessionaire are responsible for fulfilling their obligations in accordance with the terms of the concession agreement and the law.
Key regulations
The legal regulation of concessions in Ukraine is based on a number of regulations, among which the key ones are
TheLaw of Ukraine "On Concessions". This law defines the legal, economic and organizational framework for the concession of state and municipal property, and establishes the procedure for concluding, executing and terminating concession agreements.
TheCivil Code of Ukraine. The Civil Code contains general provisions on contractual relations, including concession agreements, defines the rights and obligations of the parties, and the procedure for concluding, performing and terminating the agreement.
The CommercialCode of Ukraine. The Commercial Code defines the legal framework for conducting business activities, including concessions, and establishes rules for doing business and protecting the rights of entrepreneurs.
TheLaw of Ukraine "On Public Procurement". The Law regulates the conduct of tenders for concession agreements, establishes procedures and requirements for tenderers.
International agreements. Ukraine is a party to a number of international agreements governing public-private partnerships, including the European Convention for the Protection of Human Rights and Fundamental Freedoms and others.
State regulatory authorities
The main state authorities responsible for regulating and supervising concessions in Ukraine are:
TheMinistry for Development of Economy, Trade and Agriculture of Ukraine. The Ministry is responsible for formulating and implementing the state policy in the field of concessions, developing regulations and coordinating the activities of other state bodies in this area.
TheState Property Fund of Ukraine. The Fund manages state property, grants concessions for state-owned objects, holds tenders and concludes concession agreements.
TheAntimonopoly Committee of Ukraine (AMCU). The AMCU monitors compliance with legislation on the protection of economic competition, including competition issues in concession relations.
Rights and obligations of concessionaires and concessionaires
Concession relations are based on a concession agreement, which defines the rights and obligations of concessionaires and concessionaires. The main rights and obligations of the parties include:
Concessionaire's rights
Theright to use the concession object. The concessionaire has the right to use the concession object in accordance with the terms of the agreement and the law.
Theright to receive income. The concessionaire has the right to receive income from the operation of the concession object, including the right to charge for services or goods provided using the concession object.
Theright to protect interests. The concessionaire has the right to protect its interests in case of violation by the concessor of the terms of the agreement or legal norms.
Concessionaire's obligations
The obligation toinvest. The concessionaire is obliged to invest in the development, modernization and maintenance of the concession object in accordance with the terms of the agreement.
Obligation to complywith standards. The concessionaire is obliged to comply with the established quality and safety standards in the operation of the concession object.
The obligation to submitreports. The concessionaire is obliged to provide the concessor with reports on its activities, including financial reports, reports on the fulfillment of investment obligations and other documents.
Rights of the concessionaire
Theright to control. The concessor has the right to control the concessionaire's activities in order to ensure compliance with the terms of the concession agreement and the law.
The right toreceive payment. The concessionaire has the right to receive payment for the concession of state or municipal property in accordance with the terms of the agreement.
The right toprotect interests. The concessionaire has the right to protect its interests in case of violation of the terms of the agreement or legal norms by the concessionaire.
Concessor's obligations
The obligation toensure the terms of the concession. The concessor is obliged to provide the concessionaire with the conditions for the concession activity, including the provision of the necessary permits, licenses and other documentation.
The obligation toprovide support. The concessor is obliged to provide the concessionaire with the necessary support, including consulting, assistance in resolving administrative issues and other services.
The obligation to comply with theterms of the agreement. The concessionaire is obliged to comply with the terms of the concession agreement and ensure the fulfillment of obligations to the concessionaire.
The procedure for concluding a concession agreement
The procedure for entering into a concession agreement in Ukraine includes several main stages:
Preparation of the concession project. The concessionaire develops a concession draft that contains all the necessary conditions and requirements for a concession agreement, including a feasibility study, investment plan and other important documents.
Announcement of the tender. The concessor announces a tender for the concession agreement, publishes information about the tender in the media and on official websites.
Conducting the tender. The tender is held in accordance with the established procedures, including accepting applications from participants, evaluating their proposals, conducting negotiations and determining the winner.
Conclusion of thecontract. After determining the winner of the tender, the concessionaire enters into a concession agreement with the winner, which is subject to mandatory state registration.
Execution of the agreement. The parties proceed to fulfill the terms of the concession agreement in accordance with the established terms and obligations.
Protection of rights in concession relations
The protection of rights in concession relations is carried out through various legal mechanisms that ensure the proper implementation of concession legislation. The main ways to protect rights include:
Administrative protection. It is carried out by applying to public authorities, in particular to the Ministry for Development of Economy, Trade and Agriculture of Ukraine or the Antimonopoly Committee of Ukraine.
Civil remedies. This includes filing lawsuits for recognition of rights, compensation for damages, recovery of compensation for violation of rights in concession relations, cessation of infringing actions, and other claims.
Criminal defense. Certain types of violations of rights in concession relations, including fraud or misuse of concession objects, are subject to criminal liability.
Administrative sanctions. Administrative fines and other sanctions may be imposed for violations of rights in concession relations in accordance with Ukrainian law.
International aspects of concessions
Concession projects may be international in nature, and many Ukrainian companies use concession models to cooperate with foreign partners. The main international aspects of concessions include:
International agreements. Ukraine is a party to a number of international treaties governing public-private partnerships and concessions, including the European Convention for the Protection of Human Rights and Fundamental Freedoms and others.
International cooperation. Ukrainian companies may enter into concession agreements with foreign partners and use international standards and best practices in the field of concessions.
International dispute resolution. International concession disputes may be resolved through international arbitration or the judicial authorities of the countries that are parties to the dispute.
Conclusion.
The legal regulation of concessions in Ukraine is an important tool for protecting the rights and interests of participants in concession relations, stimulating infrastructure development and providing public services. It includes the regulatory framework, activities of state regulatory and supervisory authorities, rights and obligations of concessionaires and concessionaires, as well as mechanisms for protecting rights in concession relations. Effective legal regulation contributes to the development of the economy, raising the level of respect for intellectual property and ensuring a stable legal environment in Ukraine.
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