Supreme Court Sets Requirements to Individual Acts
CMS, Kyiv, Ukraine,
Apr 16, Fri, 2020
A recent Supreme Court judgement provides guidance for assessing the lawfulness of individual acts by state authorities, which is expected to be closely followed by Ukrainian administrative courts.
On 5 March 2020, Ukraine’s Supreme Court issued a resolution in case No. 640/467/19 (the “Resolution”) where it expressed the view that an individual act by a state authority should be well-grounded and motivated, i.e. provide explicit reasons for the state authority’s decision and clear recommendations how to remedy any proven violations.
In this case, the State Audit Service of Ukraine (the defendant) established alleged incompliance by a state enterprise (the plaintiff) with the requirements of the Law of Ukraine “On Public Procurement”, i.e. the allegedly groundless use of the negotiated procurement procedure, during a tender and called the plaintiff to remedy this breach.
The state enterprise challenged this decision in the Ukrainian administrative courts. The Supreme Court eventually supported the claim, found the decision of the State Audit Service of Ukraine unlawful, and overturned it. While doing so, the Supreme Court specifically concluded that the challenged decision was unlawful as it did not contain: (i) substantiation by the State Audit Service of its conclusion on the plaintiff’s breach; or (ii) an indication of specific measures the plaintiff would take to remedy the breach.