Right holders welcome the Government’s approval of a strategically important document for Ukraine, namely the approval on March 4, 2023 by the Decision of the Cabinet of Ministers of Ukraine of the State Anti-Corruption Program for 2023-2025 (the Program) aimed at implementing the Anti-Corruption Strategy for 2021-2025.
The Program includes more than 1,700 measures to be taken in 15 priority areas to reduce the level of corruption and ensure integrity. In particular, the areas to be covered include judiciary, defense, law enforcement, state regulation of the economy, customs and taxation, urban planning and land management, corporate management of state enterprises, education, health care, social protection, etc. Also, the priorities include ensuring the inevitability of responsibility for corruption and improving the effectiveness of the anti-corruption system.
With an aim to improve the effectiveness of the corruption preventing and combating system and to ensure formation and implementation of the state anti-corruption policy, in section 2.3.1, the Programacknowledges the existence of such a problem as “insufficient transparency and efficiency of the work of customs authorities, excessive amount of discretionary powers of customs officials. The problems of effective, transparent and predictable functioning of customs authorities, its digitalization and automation, as well as the presence of corruption-inducing factors in the Ukrainian customs legislation received widespread attention throughout the scientific as well as expert (professional) and practical communities. Taking into consideration the main publications in this area, we need to acknowledge that the performance of the State Customs Service is not as effective as it potentially could be. Therefore, there is a need to improve the performance with due account for the principles on which the Anti-corruption Strategy for 2021-2025 is based.
Such improvement should take place considering the need to solve, in particular, the problems of “2. A large number of IPR infringements during the importation of goods. 3. Insufficient digitization and automation of the activity of customs authorities.”
In order to solve these problems, among the Measures for the implementation of the State Anti-Corruption Program for 2023-2025, the following step is envisaged in 2/Annex 2 to the Program, namely:
“126.96.36.199.1. Development of a draft law on introducing amendments to the Customs Code of Ukraine, according to which:
1) it is determined that a right holder’s conclusion is sufficient to confirm the infringement of intellectual property rights and to draw up a protocol on violation of customs rules related to the movement of goods across the customs border of Ukraine with infringement of intellectual property rights;
2) application of measures to assist in the protection of intellectual property rights is extended to cases of revealing goods suspected of infringing intellectual property rights and moved with avoidance of customs control, with concealment from customs control, by way of undeclared transportation, etc.;
3) administrative responsibility for the movement of goods across the customs border of Ukraine with infringement of intellectual property rights is strengthened;
4) a right holder is included in the list of persons taking part in the customs offense proceedings under the Art. 476 of the Customs Code of Ukraine”.
According to the Program, the implementation of these measures is entrusted to the Ministry of Finance and the State Customs Service, which must develop a draft law on introducing the respective legislative amendments within the period from March to June 2023 and publish it on the website for public discussion. Public discussion of the draft law is planned for July-August and its adoption is scheduled for November 2023.
The next step set forth in the 2/Annex 2 to the Program should be “188.8.131.52.5. Developing the draft Order of the Ministry of Finance on amendments to the Procedure for applying measures to assist in protection of intellectual property rights and the interaction of customs authorities with right holders, declarants and other interested parties, approved by the Order of the Ministry of Finance dated June 9, 2020 No. 281, and the Procedure for registration in the customs register of objects of intellectual property rights, which are protected under the law, approved by the Order of the Ministry of Finance dated May 30, 2012 No. 648, – as amended by the Order of the Ministry of Finance dated June 9, 2020 No. 282, according to which:
1) the specified legal acts are brought into line with the amendments to the Customs Code of Ukraine specified in subsection 184.108.40.206.1;
2) the customs authority is given the right to consult with a right holder during the customs inspection of the goods;
3) addressing the systematicity of cases in which right holders, confirming the customs authority’s conclusion that the goods are suspected of infringing intellectual property rights, refuse (do not intend) to apply to such goods the measures to assist in the protection of intellectual property rights or other actions, provided by law, is introduced;
4) an exclusively electronic form of information exchange between customs authorities and rights holders (submission of applications to the customs register of IPR objects, application of measures to assist in the protection of IP rights) is introduced “.
Public discussion of the draft order, ensuring its revision (if necessary), approval and submission for state registration are planned to be carried out within 3-5 months from the date of adoption of the draft law on amendments to the Customs Code of Ukraine.
Furthermore, from March 2023 until February 2025, the State Customs Service should finalize “development and putting into operation of new software and information complexes aimed, in particular, at:
1) ensuring the possibility of tracking the entire chain of actions related to the application of measures to assist in the protection of intellectual property rights, both on the part of customs authorities and on the part of right holders;
2) facilitation of interaction between customs authorities and rights holders through the transition to information exchange in electronic form;
3) the application of standardized approaches to recording all actions and decisions related to the application of measures to assist in the protection of intellectual property rights, expanding the list of information that accumulates in the relevant software and information complexes, with the aim of expanding opportunities for analysis, reporting, and improving risk management systems;
4) creation of additional sources of information to be used by customs authorities in the course of taking measures to assist in the protection of intellectual property rights;
5) implementation of intelligent systems for analyzing the performance of customs authorities in the sphere of assisting in protection of intellectual property rights and further improvement of business processes.”
One of the key elements of the Program is a system of indicators that will allow real-time monitoring and assessment of progress in achieving strategic results envisaged in the Anti-Corruption Strategy.
Planned activities must be carried out in accordance with clear deadlines, have specific performers, and deliver expected results with the use of financial resources necessary for their implementation.
You can review the draft Program at the link: https://cutt.ly/08TLgmA
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