Legal status os standardization in Ukraine. GOSTs and technical standards

Ukrainian legislation sets a great many of state standards, technical regulations and other rules which set requirements regarding the quality of goods and services, processes and ways of their production.

It is often hard to tell which of them are compulsory to comply with and which aren’t. In particular it is important when we talk about the state standards which can be either compulsory or not. Only systematic analysis of the legislation if force allows to understand the situations in which it is compulsory to comply with the state standards and what consequences can be caused by failure to comply with them.

The Law of Ukraine “On standardization” defines standards as regulatory documents which set rules, general principles and characteristics that are related to certain activities or their results. They may set requirements regarding terminology, package, marking and/or label that are used with a certain type of product, process or service.

When examining hierarchy or regulatory documents that set requirements regarding quality of products, ways and processes of their production one can see that standards are lower in position than technical regulations. While technical regulations are represented by laws or acts of the Cabinet of Ministers of Ukraine and must be complied with at all times, standards are often compulsory too but not always.

Section 2 of Article 15 of the Commercial Code of Ukraine provides that standards and their compulsory provisions must be followed by:

• Business entities (if standards are referred to by technical regulations);
• Parties of contract under which products are developed, manufactured or distributed if the contract includes references to any standards;
• Manufacturer or distributor (if he made a declaration about compliance of his products with some standards or included information about these standards on products’ marking).

After reading provisions of the Article one may get an impression that if neither technical regulations nor a contract require compliance with the standards then they are non-compulsory. Such impression can be enhanced by Section 2 of Article 11 of the Law of Ukraine “On standardization” which says that standards are to be complied with on voluntary basis except cases when these standards are required to be complied with by technical regulations.

But such impression is deceptive since one does not take into account the Decree of the Cabinet of Ministers of Ukraine “On standardization and certification” which has a legal force of a law. This document provides that both state and industry standards may include both compulsory and optional requirements. Compulsory requirements of the standards include in particular requirements regarding their safety for consumer’s life, health and property; requirements regarding safety precautions and hygiene; metrological regulations, rules and requirements; regulations which ensure technical unity of development, production and operation.

At the same time Section 3 of Article 5 of the Decree of the Cabinet of Ministers of Ukraine provides that compulsory requirements of the state standards are subject to unconditional fulfillment by all enterprises, establishments and organizations as well as sole traders which fall under their effect. Article 6 of the Decree of the Cabinet of Ministers of Ukraine provides that compulsory requirements of industry standards are subject to unconditional fulfillment by enterprises, establishments and organizations which are managed by a body that approved them. Optional requirements of the state standards are subject to unconditional fulfillment in cases defined by Section 2 of Article 15 of the Commercial Code of Ukraine.

Thus, manufacturers and distributors of goods (including importers) are able to deviate from fulfillment of requirements set by state standards only when they are optional due to provisions of a law, technical regulation and/or contract and have never been referred to on markings or in declaration of compliance.

But even when deciding to deviate from fulfillment of optional requirements of standards one should keep in mind the general consequences of distribution of goods which do not comply with the requirements of standards. Section 5 of Article 268 of the Commercial Code of Ukraine provides that when a party distributes goods the quality of which is lower than it is required by the standard a buyer can refuse to accept and pay for goods or request return of paid money if the goods have been paid for.

Besides, the Law of Ukraine “On consumer protection” provides that any inconsistency of products with the requirements of regulatory documents (standards also belong to this category) is considered to be a defect. Consumers are entitled to compensation for pecuniary and non-pecuniary damages that were caused by defects of products. Also they have a number of other rights such as free elimination of defects, termination of contract and return of paid money (if the defects are significant), etc. Thus, based on the abovementioned definition of term “defect” one can see that the consumers can fulfill the mentioned rights in any case when products are not in compliance with set standards (including optional ones).

Also one should keep in mind the administrative liability that is born by officials of an enterprise for violations in the field of standardization. The liability is set by provisions of the Code of Administrative offences of Ukraine. In particular articles of Chapter 13 of the Code of Administrative Offences of Ukraine provide administrative liability for production or sale of goods which do not comply with standards; for conduction of works and provision of services to consumers if these works and services do not meet the standards. Liability may be born in a number of other cases. Even though commitment of the majority of these offences results in relatively insignificant fines (17 to 1700 UAH) the state authorities (the State Inspection of Ukraine for Consumer Rights Protection, the State Administration of Ukraine on Medicinal Products, the State Service of Mining Supervision and Industrial Safety of Ukraine) may apply other means of administrative influence. In particular they may include prohibition to manufacture or import goods, prohibition or limitation to provide goods on the market, removal or withdrawal of goods from the market if such goods are recognized as dangerous.

In general, one can conclude that business entities should follow the requirements that are set by the state and industry standards. One can deviate from following these requirements only in case when such requirements are not compulsory and such deviation will not result in worse quality of products or appearance of any other defects. Ideally, manufacturers and distributors of goods and services should set even higher standards than those which are provided by the state or industry regulatory documents.

The material was written by legal experts of law firm “Pravova Dopomoga”.