Status of a critically important enterprises under new regulation: what is changing for business?
The Cabinet of Ministers of Ukraine has made further changes to the Criteria and Procedure for Determining Enterprises, Institutions and Organizations That Are Critically Important for the Functioning of the Economy, Ensuring the Vitality of the Population and the Needs of the Armed Forces and Other Military Formations in a Special Period, approved by Resolution No. 76 of January 27, 2023 (hereinafter referred to as the Criteria and Procedure).
The main innovation is the creation of the Coordination Center for Organizing the Reservation of Conscripts for the Period of Mobilization and Martial Law (hereinafter referred to as the Coordination Center) and the approval of the Regulations on it. It will participate in the formation of criticality criteria and consideration of applications from enterprises that want to receive the appropriate status.
What role will the Coordination Center play?
One of the tasks of the Coordination Center will be to participate in the development and revision of sectoral and regional criticality criteria. From now on, central executive bodies and other authorized bodies must preliminarily coordinate such criteria with the Coordination Center. The results of the coordination will be formalized in a corresponding letter of coordination.
In addition, the Coordination Center will join the consideration of applications from enterprises for obtaining the status of critical importance. This applies to both enterprises that apply for the status of critical importance for the functioning of the economy and ensuring the vital activity of the population, and enterprises that are critical to the needs of the Armed Forces and other military formations.
How will the procedure for obtaining the status of critical importance change?
Previously, the authorized body had to consider the application of the enterprise within 10 working days. Now an additional stage is being introduced - receiving proposals and recommendations from the Coordination Center.
The procedure provides for the following terms:
1. Up to 7 working days - the authorized body considers the enterprise's documents, checks its compliance with the established criteria and applies to the Coordination Center.
2. Within one calendar month - the Coordination Center provides its recommendations and proposals.
3. Within 3 working days from the date of receipt of the recommendations - the authorized body makes a decision to determine the enterprise as critically important or sends a letter of refusal with justification.
Thus, consideration of the application will now consist of several stages and will last longer than before the amendments.
At the same time, the Coordination Center will not make a final decision on granting the enterprise the status of critically important. This authority remains with the relevant authorized body, which must take into account the proposals and recommendations of the Coordination Center.
What will happen to the current statuses of critically important enterprises?
Central executive bodies, other state bodies and regional military administrations must, within 10 days from the date of entry into force of the resolution, review the sectoral and regional criteria and coordinate them with the Coordination Center, taking into account the new requirements. The deadline established by the resolution expires on November 6, 2026.
After reviewing the criteria, the authorized bodies should analyze whether enterprises that were previously granted the status of critical importance meet them.
Particular attention should be paid to cases where an enterprise received the status based on criteria that will be excluded as a result of the review. In such cases, decisions on determining enterprises as critical importance are subject to cancellation.
What does this mean for enterprises?
If an enterprise already has the status of critical importance. Immediately after the amendments enter into force, it is not necessary to resubmit documents. The previously adopted decision remains valid until the end of its validity period, unless there are grounds for early cancellation (such grounds may be identified during the verification of the enterprise for compliance with the new industry and regional criteria). After the expiration of the validity period of the decision on criticality, in order to continue the status of a critical enterprise, it will be necessary to resubmit documents in accordance with the current requirements.
If the enterprise is only planning to obtain the status of critical importance. The enterprise submits documents to the relevant authorized body, which checks compliance with the established criteria and applies to the Coordination Center for proposals and recommendations. After receiving them, the authorized body adopts a final decision or issues a reasoned refusal.
Other changes provided for by the resolution
In addition, the amendments clarify the exceptions to the requirement of no tax debt, in particular, they provide for the possibility of not applying this requirement in cases of delay in budget financing, if such delay is documented.
The approaches to assessing the significance of the activities of enterprises for the economy and defense capability of the state have also been revised and the conditions for determining enterprises in the humanitarian and emergency rescue sectors as critically important have been specified.
Thus, the new rules strengthen the role of the Coordination Center and introduce an additional stage of consideration of applications for granting the status critical. For companies, this means that the procedure becomes longer, and compliance with the current criteria becomes even more important.
Need help checking whether a company meets the critical criteria or preparing documents to obtain such status? The Rasons Legal team will help you understand the current requirements, assess the possibility of obtaining the status of a critical enterprise, and prepare the necessary documents.
