To the attention of business entities that concluded foreign economic contracts (agreements) with non-residents of the Republic of Poland and/or carry out product export and import, transportation of which is carried out across the Polish-Ukrainian border

Press service of the State Tax Service of Ukraine, published 01 November 2024 at 14:03 Chapter: News

Part 1 Article 13 of the Law of Ukraine № 2473-VIII as of 21.06.2018 "On currency and currency operations" (hereinafter – Law № 2473) stipulates that the National Bank of Ukraine (hereinafter – NBU) has a right to set the maximum settlement terms for product export and import, as well as exceptions and (or) peculiarities of the introduction of this protection measure for certain products and (or) sectors of the economy.  

Part 2 Article 13 of the Law № 2473 stipulates that in case that the NBU establishes settlement deadline for operations of residents on the product export, funds are credited to the accounts of residents in banks of Ukraine within terms specified in the contracts, but not later than in term and amount established by the National Bank of Ukraine. 

In case that the NBU sets settlement deadline for operations of residents on the product import, their delivery must be carried out within the terms specified in the contracts, but not later than settlement deadline established by the NBU from the day of advance payment (prepayment) (Part 3 Article 13 of the Law № 2473).

Part 6 Article 13 of the Law № 2473 defines that in case that fulfillment of the contract provided for in Parts 2 or 3 of this Article is suspended due to occurrence of the force majeure circumstances, the course of settlement period established according to Part 1 of this Article, and accrual of penalties according to Part 5 of this Article, is stopped for the entire period of the force majeure circumstances and is renewed from the day following the end of such circumstances.    

Confirmation of occurrence and termination of the force majeure circumstances is a relevant certificate from the authorized organization (authority) of the country of the party’s location to the foreign economic contract (agreement) or of the third country according to the terms of this contract (agreement).  

At the same time, the fact of existence of the force majeure circumstances does not exempt from responsibility for non-fulfillment of obligations stipulated in the contract terms, as well as obligations stipulated by legislative and other regulatory legal acts.

According to the current legislation of Ukraine, certificate issued by the Chamber of Commerce and Industry of Ukraine or regional Chamber of Commerce and Industry authorized by it is a document confirming occurrence of the force majeure circumstances.

Business entity that violates obligations under the contract (agreement) or obligations stipulated by legislative and other regulatory acts has a right to appeal to the competent authority (Chamber of Commerce and Industry) of the country where the circumstance arose (blockade, strike and other restrictions) to obtain a corresponding document confirming the force majeure circumstances and their duration.

Polish-Ukrainian Chamber of Commerce forms and issues documents according to requirements of legislation of the Republic of Poland, which regulates content and form of the document. In the Republic of Poland, certification of force majeure circumstances is carried out by providing a conclusion – Confirmation of the force majeure circumstances (Potwierdzenia fors-mażoru).

Along with this, confirmation of the Polish-Ukrainian Chamber of Commerce is not a reason to stop settlement deadline established according to Part 1 Article 13 of the Law № 2473, and charging of penalties according to Part 5 Article 13 of the Law № 2473.

State Tax Service of Ukraine emphasizes that if a resident of Ukraine experiences the force majeure circumstances that are extraordinary and unavoidable, making it impossible for resident to comply with the settlement deadlines for product export and import established by the NBU, such resident should contact the Chamber of Commerce and Industry of Ukraine or the authorized regional Chamber of Commerce and Industry with application for certification of such circumstances.

Herewith, the Chamber of Commerce and Industry, in case of receiving application from a resident of Ukraine who violates obligation to comply with settlement deadlines due to the force majeure on the territory of the Republic of Poland, to establish a cause-and-effect relationship between the circumstances/event and the impossibility of fulfilling their specific obligations must take into account confirmation of the competent authority (Chamber of Commerce and Industry), in particular, the Polish Chamber of Commerce and Industry and/or the Polish-Ukrainian Chamber of Commerce.

Therefore, the force majeure is not automatic basis for exemption from fulfillment of obligations and suspension of the maximum settlements terms and accrual of penalties, according to Part 5 Article 13 of the Law № 2473, the party of contract must confirm not only the fact of occurrence of the force majeure circumstances and their impact on fulfillment/impossibility of fulfillment of contract/agreement obligations.

In addition, certificate issued by the Chamber of Commerce and Industry of Ukraine may confirm occurrence of the force majeure circumstances and contain conclusion regarding the impact of this event on the ability of resident or non-resident to fulfill specific obligations, but the controlling authority has a right to take into account such certificate only if there are grounds to believe that non-fulfillment of obligations arose precisely under such circumstances as stated in the certificate.