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The reasons why State Environmental Investment Agency disagrees with the court decision, which ordered to publish international greenhouse gas emissions trading agreements...
Sunday, 17 November 2013 20:54

23160 State Environmental Investment Agency (SEIA - the respondent, the appellant) appealed the decision of the District Administrative Court of Kyiv from 11.10.2012, which partially satisfied the claims of the Expert Advisory Center "Legal Analytics" (the EACLA, the plaintiff). Thus, the court of the first instance obliged the respondent to send greenhouse gas emissions (Assigned amount units (AAUs)) trading agreements, signed with Japan and Spain in 2009, for registration to the Ministry of Justice of Ukraine. Thus, the appeal proceeding was opened on the case.

Reasons for filing an appeal by the SEIA:

- Not denying the fact that the AAUs trading agreements must be registered in the Ministry of Justice of Ukraine and properly published, appellant disagrees with the decision of the court of the first instance, stating that it is not responsible for passing international agreements for registration to the Ministry of Justice, as this is a duty of the Ministry of Foreign Affairs of Ukraine.

- Also the SEIA indicates that the court erroneously did not apply to this legal disputes 1) Resolution of the Cabinet of Ministers of Ukraine № 392 of 17.04.2008 "On ensuring compliance with international obligations of Ukraine under the UN Framework Convention on Climate Change and the Kyoto Protocol" (Resolution No 392 ), which, according to the appellant’s opinion, establishes a separate order of concluding AAUs trading agreements; and 2) Regulation on the Unified State Register of legal acts, approved by Cabinet of Ministers Decree № 376 from 23.04.2001 (Regulation No 376), which envisages that the Ministry of Foreign Affairs has a duty to pass international agreements for the registration to the Ministry of Justice of Ukraine. However, as pointed out by the appellant, the court only applied the Resolution No 422 of 17.06.1994 "On Approval of Regulation on conclusion, execution and denunciation of international interagency treaties of Ukraine" (Resolution No 422), which requires the defendant to pass international agreements to the Ministry of Justice for their registration. And this is not correct, according to the SEIA, as this Regulation shall not apply to these relationships because of established separate order of international AAUs trading agreements concluding by the Resolution of Cabinet of Ministers No 392.

The EACLA believes, that such arguments of appellant are groundless because of the following:

1. Despite the fact that the SEIA indicates that the Resolution № 392 defines a separate procedure for the conclusion of interagency agreements by the SEIA, it should be noted that this applies to the fulfillment by Ukraine of its obligations under the UN Framework Convention on Climate Change and the Kyoto Protocol , defining only authority, empowered to conclude agreements on AAUs trading and the order for their conclusion on the basis of the Cabinet of Ministers of Ukraine decision, agreed with the Ministry of economy and the Ministry of Finance (Paragraph 2 of the Decree No 392). This Cabinet of Ministers Regulation does not apply to the registration and publication of international treaties, so Resolution No 422 should be applied to these relationships, as it establishes the procedure for registration of international agreements, in particular paragraph 10, which envisages that interagency agreements should be passed for registration to the Ministry of Justice by the authorities, that concluded the agreements. Regardless of whether agreements were concluded in special order, or not, this does not exempt entities authorized to perform the assigned duties to meet the requirements of registration of international treaties of Ukraine. Given the fact that the Regulation No 392 does not define specific order of publication of signed by the State Environmental Investment Agency contracts, there are no grounds for not applying the relevant provisions of the applicable law, including the Regulation No 422. Thus, the Regulation № 392, which establishes procedures for fulfillment of international obligations of Ukraine under the UN Framework Convention on Climate Change, does not change the established order of publication and registration of international agreements of Ukraine, regulated by the current legislation of Ukraine. Therefore, the court couldn’t not to apply Regulation No 422, given that it is the only document regulating the registration of international intergovernmental agreements.

2. With regard to Regulation No 376 of 23.04.2001, which holds the duty of еру Ministry of Foreign Affairs of filing the international agreements for registration to the Ministry of Justice, it should be noted that this provision is general and applies to the registering of international treaties in general. A Resolution No 422 has a special character and concerns the issue of registration of interagency treaties, so this resolution contains the specification for international agreements, concluded not by the Ministry of Foreign affairs, but by the central executive authorities, and the last are entrusted with the duty of filing the international interagency agreements for registration in the case of the conclusion of international agreements by them. Thus, there is feasibility to apply special rules to relationships on the registration of international agreements, signed not by the Ministry of Foreign Affairs but by the governmental bodies, which is the SEIA. Additionally it should be noted that the conclusion of agreements on AAUs trading is carried without involving the Ministry of Foreign Affairs, and such decisions are made on the basis of the Cabinet of ministers and in consultation with the Ministry of Economy and Ministry of Finance. Thus, the Ministry of Foreign Affairs does not approve AAUs trading contracts. Due to establishment of a separate procedure for AAUs trading agreements concluding, which does not imply approval of such agreements by the Ministry of Foreign Affairs, we believe that the application of Resolution No 422, which places the burden of submitting AAUs trading agreements for registration by the authorities, that concluded them, instead of the Ministry of Foreign Affairs, is reasonable, logical and legitimate in resolving this legal dispute.

In view of the above, the EACLA asked Kyiv Administrative Court of Appeal not to change the decision of the District Administrative Court of Kyiv of 11.10.2012.