Effect given to the recommendations of the committee and the Governing Body - Report No 336, March 2005

Case No 2038 (Ukraine) - Complaint date: 26-FEB-99 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 121. The Committee last examined this case at its June 2004 meeting when it noted the contradiction between the newly amended section 16 of the Law on Trade Unions, according to which "a trade union acquires the rights of a legal person from the moment of the approval of its statute" and section 3 of the Law of Ukraine on the State Registration of Legal Persons and Physical Persons/Entrepreneurs of 15 May 2003, according to which, "the associations of citizens (including trade unions), for which special conditions for state registration have been established under the Act, shall obtain the status of legal person only after their state registration, to be conducted in accordance with the order established by the present Act", as well as section 87 of the Civil Code of 16 January 2003, which provided that an organization acquires its rights of legal personality from the moment of its registration. The Committee requested the Government to provide clarification in this respect [see 334th Report, paras. 79-81].
2. 122. In its communication of 27 August 2004, the Government states that a trade union or an association of trade unions acquires the right of legal personality from the moment of the adoption of its statute (regulations). The primary organizations of the trade union, acting on the basis of its statute, shall also acquire the right of legal personality. The Government indicates that the Law of Ukraine on the State Registration of Legal Persons and Physical Persons/Entrepreneurs has entered into force on 1 July 2004. In accordance with article 4 of this Law, the state registration of legal and physical persons/entrepreneurs shall testify to the fact of the establishment or termination of the activities of a legal person, of the acquisition of a status of an entrepreneur by a physical person or loss of such a status, as well as of the application of other registration procedures, provided for by this Law, by way of making relevant entries into the Unified State Register. Parts 2 and 3 of article 3 of this Law provide that the distinctive features of the state registration of the associations of citizens, including trade unions, could be established by legislation. In accordance with paragraph 3 of the Final Provisions of the Law, the laws and normative and legal instruments, adopted prior to the enactment of this Law, shall be effective only in respect of those provisions thereof, which do not contradict it.
3. 123. The Government further states that in accordance with part 4 of article 87 of the Civil Code of Ukraine, a legal person shall be deemed established from the date of its state registration. It admits that part 3 of article 3 of the Law of Ukraine on the State Registration of Legal Persons and Physical Persons/Entrepreneurs and part 4 of article 87 of the Civil Code of Ukraine are not in conformity with article 16 of the Law of Ukraine on the Trade Unions.
4. 124. The Government informs that the People's Deputies of Ukraine, Mr. Volynets, Mr. Derkach and Mr. Ekhanurov submitted to the Supreme Rada of Ukraine a draft Law on Introducing Amendments to the Civil Code of Ukraine. It is proposed in article 2 of the draft Law to add in part 4 to article 87 the following sentence: "trade unions shall acquire a status of a legal person from the moment of the approval of their statutes (regulations)".
5. 125. The Government further informs that with a view of implementing the Final Provisions of the Law of Ukraine on the State Registration of Legal Persons and Physical Persons/Entrepreneurs and the instructions of the Cabinet of Ministers of Ukraine of 12 June 2003, No. 35948, the State Committee on Entrepreneurship has developed and submitted to the Government, by its letter of 12 May 2004, a draft Law of Ukraine on Introducing Amendments to Certain Laws of Ukraine with a view of bringing these Laws into conformity with the Law of Ukraine on the Trade Unions. Pending the adoption of the aforesaid Law by the Supreme Rada of Ukraine, the State Committee on Entrepreneurship has sent, by its letter of 12 July 2004, to its territorial offices an explanatory note in respect of including in the Unified State Register of the Legal Persons and Physical Persons/Entrepreneurs the data about their registration.
6. 126. The Committee notes the information provided by the Government. It hopes that the relevant legislation, which would bring the Law of Ukraine on the State Registration of Legal Persons and Physical Persons/Entrepreneurs and the Civil Code into conformity with the Law of Ukraine on the Trade Union, would be soon adopted. It requests the Government to keep it informed of any developments in this respect.