On November 1, 2023 the Second Senate of the Constitutional Court of Ukraine at the plenary session delivered the Decision in the case upon the constitutional complaint of Nataliia Trihub regarding the constitutionality of Article 44.2.2 of the Law of Ukraine “On State Market Supervision and Control of Non-Food Products” No. 2735– VI dated December 2, 2010 (hereinafter referred to as “the Law”).
On the basis of the contested provision of the Law, a fine in the fixed amount of three thousand non-taxable minimum incomes of citizens, i.e. 51,000 hryvnias shall be imposed on a person who for the first time committed an offence involving the introduction of goods (products) into circulation or who, according to the Law, is considered to have introduced into circulation goods (products) that do not meet the established requirements (except for the cases specified in Articles 28, 29.3 of the Law).
The Applicant believes that “the amount of liability defined in Article 44.2.2 of the Law is non-alternative and does not depend on the nature of the committed illegal act, the form of guilt, the characteristics of the person guilty of committing the offence, the possibility of compensation for the damage caused, the presence of circumstances mitigating or aggravating the liability, etc.”, therefore, the application of the “disputed provision does not ensure a fair balance between the requirements of the public interest and the protection of the property rights of a person”, which does not correspond to Articles 41.1, 61.2 of the Constitution of Ukraine, imposing a fine of 51,000 hryvnias on her “is the intervention of the state in the right of property guaranteed by the Fundamental Law of Ukraine”.
In its decision, the Constitutional Court of Ukraine concludes that effective and efficient protection of consumer rights is one of the ways for the state to fulfil its main constitutional duty – to affirm and ensure human rights and freedoms.
Measures to prevent violations of legislation on the quality and safety of goods, products, all types of work and services must be deterrent. The sanction that can be applied to a business entity as a measure of legal liability for violation of consumer rights, in particular regarding the quality and safety of goods, products, all types of work and services, must be effective and efficient in terms of stimulating business entities to comply requirements of legislation regulating the quality and safety of goods, products, all types of work and services.
The Constitutional Court of Ukraine notes that the establishment of absolutely defined and/or non-alternative sanctions in the law should be reasonably combined with the granting to the subject authorised by law of bringing a person to legal liability variability in choosing a sanction for the violator, which would make it possible to observe in this way the principles of proportionality and individualisation of legal liability. The principles of proportionality and individualisation of legal liability in the case of bringing a person to legal liability can be ensured, in particular, by establishing in the law different types of sanctions for committing the same offence or fines of different sizes that can be imposed on violators of the same protective norm.
The disputed provision of the Law, which defines a non-alternative sanction, which, moreover, has the characteristics of being absolutely determined, does not provide for the subject of imposing an administrative penalty the opportunity to take into account the fact that the hypothesis of Article 44.2.2 of the Law covers a large and diverse number of manifestations of objective and subjective side of this offence, and therefore contradicts Articles 8.1, 61.2 of the Constitution of Ukraine.
The Constitutional Court of Ukraine states that the specified provision of the Law does not establish conditions for achieving a fair balance during law enforcement between the requirements of the public interest in ensuring a high level of consumer rights protection and the protection of a person's property rights, since this provision imposes an individual and excessive burden on a person, and therefore is a ground for excessive state interference in property rights, as a result of which it contradicts Articles 41.1, 41.4 of the Fundamental Law of Ukraine.
In view of the above, the Constitutional Court of Ukraine declared an individual provision of Article 44.2.2 of the Law of Ukraine “On State Market Supervision and Control of Non-Food Products” No. 2735-VI dated December 2, 2010 as amended, namely: “in the amount of three thousand tax-free minimum incomes of citizens” as such that does not correspond to the Constitution of Ukraine. A provision of the Law declared unconstitutional shall be ineffective six months after delivering this Decision by the Constitutional Court of Ukraine.
The judge-rapporteur in this case is Oleh Pervomaiskyi.
