Author: Uliana Luchkevych, lawyer at F&P
The import of goods containing refrigerants requires strict compliance with customs and environmental legislation. Failure to comply with these requirements may result in the drafting of customs violation protocols, the imposition of fines, and the detention of cargo at customs. This article examines the requirements for the importation of refrigerants, the relevant legislative norms, the legal consequences of violations, as well as the successful experience of FEDORYSHYN&PARTNERS in closing cases related to the importation of goods with refrigerants.
According to the Law of Ukraine dated December 12, 2019, No. 376-IX “On the Regulation of Economic Activities Related to Ozone-Depleting Substances and Fluorinated Greenhouse Gases” – fluorinated greenhouse gases are any substances listed in Appendix 2 to this Law, which exist independently or in mixtures, primary, recovered, regenerated, or processed for recycling, or their isomers, and have a global warming potential above zero.
Annually, the Cabinet of Ministers of Ukraine approves a list of goods whose export and import are subject to licensing in the following year, which includes refrigerants—fluorinated greenhouse gases used for cooling in a range of equipment such as air conditioners, refrigerators, machines, etc.
Thus, if the imported product contains refrigerants, it is subject to special control, and its importation is possible only with the appropriate license. Import licenses are issued by the Ministry of Economy of Ukraine based on the relevant application from the recipient of the product.
In practice, our client faced a situation where the supplier did not inform them about the presence of refrigerants in the goods, and the latter were discovered by the customs authority during the customs clearance of the goods. Based on this, the customs authority drew up a protocol on customs violations under Article 472 of the Customs Code of Ukraine and temporarily seized the goods worth over 10 million UAH.
According to Article 472 of the Customs Code of Ukraine, failure to declare information about refrigerants in the customs declaration or their importation without a license may be considered as non-declaration of goods, which entails:
- • a fine of 100% of the value of the goods with the possibility of their confiscation;
- detention of the cargo by customs authorities until all circumstances are clarified.
Judicial practice shows that in cases where the declarant and importer acted in good faith but were not informed about the presence of refrigerants in the product (for example, due to a manufacturer’s error), there are legal grounds for closing the case and returning the product to the importer.
Our lawyers managed to prove the absence of intent in the actions of the declarant, specifically the fact that the declarant acted in good faith, relying on accompanying documents that did not contain information about the presence of refrigerants. Based on our own experience in defending similar cases, we proposed a model to prove the declarant’s ignorance about the presence of refrigerants, which became the basis for closing the case.
In particular, the court took into account the following arguments:
- absence of intent in the actions of the declarant;
- absence of actual concealment of information;
- prompt appeal by the importer for obtaining a license after the detection of the presence of refrigerants;
- The manufacturer’s error for not disclosing the presence of refrigerants in the documentation.
Contact the lawyers at FEDORYSHYN&PARTNERS, who have positive experience in cases involving the import of goods with refrigerants, to protect your interests with customs authorities and in court.
FEDORYSHYN&PARTNERS are ready to provide legal assistance to businesses in matters of customs clearance and appealing decisions of customs authorities. If your company has encountered a similar problem, we are ready to provide effective protection. It seems like you haven’t provided any text to translate. Please share the text you’d like translated, and I’ll be happy to help!
