Establishing the correspondence of circumstances for which neither party is responsible

Establishing the correspondence of circumstances for which neither party is responsible, in cases provided for by the current legislation of Ukraine, may concern various cases of public life and it is not always necessary to obtain a certificate of force majeure circumstances (force majeure circumstances) to resolve the issue. Substantiation of the signs of such circumstances and their consequences is possible by expert opinion. Thus, it was proven by the expert opinion of LLC “NFE” and taken into account in the conclusions of the court of the Dnipropetrovsk District Administrative Court (decision dated 24.12.2024 in case No. 160/20047/21), in particular:

1. The complete lack of access of the Business Entity to 479 railway cars, which is a consequence of force majeure circumstances, namely: a long (from 15.03.2017 to the present) interruption in the operation of transport on the contact line within the Donetsk and Luhansk regions, regulated by the Decision of the National Security and Défense Council of Ukraine dated March 15, 2017 and orders No. Ts-1/2-2/156 dated March 15, 2017, No. Ts-1/2-2/157 dated March 15, 2017 issued by PJSC “Ukrzaliznytsia”, by way of temporary, until the implementation of points 1 and 2 of the Minsk “Complex of Measures” dated February 12, 2015, as well as until the return of the captured enterprises to functioning in accordance with the legislation of Ukraine, the cessation of the movement of goods across the contact line within the Donetsk and Luhansk regions, is a complete loss for the Business Entity 479 railway wagons within the meaning of part three of Article 112 of the Customs Code of Ukraine.
2. There are legal grounds for terminating the temporary import regime of 479 units of railway wagons into the customs territory of Ukraine under the Sublease Agreement, due to the establishment of the fact of the loss of the said 479 units of railway wagons as a result of force majeure within the meaning of Part Three of Article 112 of the Customs Code of Ukraine, namely: a long (from March 15, 2017 to the present) interruption in the operation of transport on the contact line within the Donetsk and Luhansk regions, regulated by the Decision of the National Security and Défense Council of Ukraine of March 15, 2017, by temporarily, until the implementation of paragraphs 1 and 2 of the Minsk “Complex of Measures” of February 12, 2015, as well as until the return of the captured enterprises to operation in accordance with the legislation of Ukraine, the suspension of the movement of goods across the contact line within the Donetsk and Luhansk regions.
3. The determined force majeure within the meaning of part three of Article 112 of the Customs Code of Ukraine is, by its legal nature, an extraordinary and unavoidable external event which, being in a cause-and-effect mechanism, is beyond the will, desires and actions of the parties and objectively makes it impossible to fulfil the obligations of the Business Entity under the Sublease Agreement regarding the possibility of tracking the safety of 479 units of railway wagons, managing them and operating them in the territory located beyond the contact line within the Donetsk and Luhansk regions and not under the control of the state authorities of Ukraine, and upon the expiration of the period of their temporary importation into the customs territory of Ukraine, re-exporting the 479 railway wagons or placing them under another customs regime.
4. The established force majeure under the customs legislation of Ukraine (Part Three of Article 112 of the Customs Code of Ukraine) is a motivated legal basis for terminating the regime of temporary import of 479 units of railway wagons into the customs territory of Ukraine and gives the Business Entity the undoubted right to initiate such termination before the customs authorities, taking into account the terms specified in the electronic declaration, and the customs authority to make a decision to terminate the customs regime of temporary import of 479 units of railway wagons into the customs territory of Ukraine.