On December 4, 2022, the Law of Ukraine "On Mobilization Training and Mobilization" regarding the reservation of conscripts for the period of mobilization and wartime, aimed at clarifying the grounds for booking conscripts, entered into force. In order to implement the provisions of the Law, on January 27, the Cabinet of Ministers of Ukraine adopted Resolution No. 76 "Some issues of implementation of the provisions of the Law of Ukraine "On Mobilization Training and Mobilization" regarding the reservation of conscripts for the period of mobilization and for wartime", which approved the Procedure for the reservation of conscripts under martial law and the Procedure and criteria for determining enterprises, institutions and organizations that are critically important for the functioning of the economy and ensuring the livelihood of the population in a special period.

Olena Yaliieva, Counsel at Pragma Consulting Group — a partner of the UBA’s GR Committee, has prepared an overview of the main provisions of the Resolution No. 76.

Categories of conscripts that can be reserved according to the Law of Ukraine “On Mobilization Training and Mobilization”

One of the problematic moments faced by conscripts and their employers when it was necessary to reserve them was that, according to the previous version of the Law, only conscripts working in state authorities, other state bodies, local self-government bodies and on enterprises, institutions and organizations that have been assigned mobilization tasks (orders), if it is necessary to ensure the functioning of the specified bodies and the fulfillment of mobilization tasks (orders). Law of Ukraine No. 2732-ІХ dated November, 4, 2022 expanded the list of enterprises, institutions and organizations whose employees can be booked — in addition to those mentioned above, now it also includes enterprises, institutions and organizations that produce goods, perform work and provide services necessary to meet the needs of the Armed Forces of Ukraine, other military formations, and enterprises, in institutions and organizations that are critically important for the functioning of the economy and ensuring the livelihood of the population in a special period (criteria and procedure for determining such enterprises, institutions and organizations determined by the Cabinet of Ministers of Ukraine).

This approach allowed a wider range of enterprises, particularly large businesses, to reserve critically needed employees. However, for the practical implementation of the mentioned provision, the Cabinet of Ministers of Ukraine had to update the procedure for booking conscripts, as well as adopt the criteria and procedure for identifying enterprises, institutions and organizations — and the relevant documents were approved by Resolution No.76 dated January 27, 2023 .

The procedure for determining enterprises, institutions and organizations that are critically important for the functioning of the economy and ensuring the livelihood of the population during the special period

Resolution No. 76 of the Cabinet of Ministers of Ukraine dated January 27, 2023 approved the following criteria for determining enterprises, institutions and organizations that are critical for the functioning of the economy:

• the total amount of taxes and other fees (except customs payments) during the reporting tax year exceeds the equivalent of 1.5 million euros (confirmed by a certificate from the competent authority);
• the amount of receipts in foreign currency, except for credits and loans, for the reporting tax year exceeds the equivalent of 32 million euros;
• the enterprise is of strategic importance for the economy and security of the state in accordance with the list of state-owned objects of strategic importance for the economy and security of the state, approved by Resolution No. 83 of the Cabinet of Ministers of Ukraine dated March 4, 2015;
• the enterprise is important for the national economy or meeting the needs of the territorial community (the criteria are established by the relevant state authorities, regional state administrations, military, military-civilian administrations (if they are formed));
• absence of arrears from the payment of a single contribution to the mandatory state social insurance (confirmed by a certificate from a competent authority or an extract from the information system of the State Tax Service);
• the average salary of insured employees at the enterprise for the last calendar quarter is at least the average salary in the region for the IV quarter of 2021 (according to the State Statistics Service), which is confirmed by a certificate provided by the enterprise;
• the enterprise is a resident of Diia City.

For enterprises operating in the spheres defined by the Procedure (fuel and energy complex; state and communal institutions of education and science, health care, physical culture and sports, social protection, or providing the population with free services necessary to ensure the livelihood of the population on a permanent basis basis; broadcast TV channels involved in the notification system and which mostly broadcast information or information-analytical programs) compliance with at least two of the above criteria is required. For other enterprises, compliance with at least three criteria is required.

In addition, specialized agencies of the UN, foreign diplomatic agencies in Ukraine, representative offices of donor agencies, executors of international technical assistance projects, representatives of international organizations, international and Ukrainian non-governmental organizations that implement humanitarian projects funded by international partners, according to the list approved by the Ministry of Foreign Affairs or the Secretariat of the Cabinet of Ministers of Ukraine are directly defined by the Procedure as critically important enterprises, organizations and institutions.

The definition of an enterprise that is critically important for the functioning of the economy and ensuring the livelihood of the population is carried out by the sectoral bodies of state power, regional state administrations, as well as military/military-civilian administrations (if they are formed). For this, the enterprise must apply to the relevant body with a package of documents confirming compliance with the criteria, on the basis of which such a body makes a decision on whether the enterprise meets the criteria or not, and sends the relevant decision to the bodies responsible for booking conscripts — the Ministry of Economy of Ukraine and General Staff of the Armed Forces of Ukraine (Security Service of Ukraine, Foreign Intelligence Service).

At the same time, the enterprise must confirm the status of a critically important enterprise at least once a year.

The procedure for the reservation of conscripts

The Resolution No.76 of the Cabinet of Ministers of Ukraine dated January 27, 2023 also approved the new Procedure for the reservation of conscripts, among the main novelties of which are:

• approval of the lists of persons proposed for reservation is carried out by the General Staff of the Armed Forces of Ukraine (Security Service of Ukraine, Foreign Intelligence Service), and not by the Ministry of Defense of Ukraine; reservations will continue to be made on the basis of the decision of the Ministry of Economy of Ukraine;
• conscripts are granted a deferral for a period that cannot exceed the term of mobilization — for conscripts working in state authorities, other state bodies, local self-government bodies, in the case when it is necessary to ensure the functioning of the specified bodies, and six months — for others categories of conscripts;
• when forming lists offered for reservation by state bodies, local self-government bodies, enterprises and institutions, the criteria for the reservation of conscripts by state authorities, other state bodies, local self-government bodies and enterprises, institutions and organizations for the period of mobilization and during wartime may be taken into account in accordance with Appendix 6 to the Procedure for the reservation of conscripts by state authorities, other state bodies, local self-government bodies and enterprises for the period of mobilization and during wartime, approved by Resolution No. 45 of the Cabinet of Ministers of Ukraine dated February 4, 2015;
• the number of conscripts subject to reservation cannot be more than 50% of all conscripts (except for enterprises of the fuel and energy complex, specialized agencies of the UN, foreign diplomatic institutions in Ukraine, representative offices of donor institutions, executors of international technical assistance projects, representative offices of international organizations, international and Ukrainian non-governmental organizations that implement humanitarian projects at the expense of international partners, to which the restriction does not apply);
• lists of conscripts proposed for reservation are submitted to the relevant sectoral central body of the executive power or regional state administration (military or military-civilian administration), which checks the completeness of the submitted list, the justification provided for it, compliance with the requirements regarding the number of conscripts , which are subject to booking, and submit it for approval to the General Staff of the Armed Forces (Security Service of Ukraine, Foreign Intelligence Service); after approval, such lists are submitted to the Ministry of Economy;
• in order to issue deferrals for conscripts, the Ministry of Economy sends a decision on the reservation of conscripts to state authorities, other state bodies to which the lists were submitted, as well as to the General Staff of the Armed Forces (Security Service of Ukraine, Foreign Intelligence Service); in the future, the General Staff delivers the information to the Territorial centers of recruitment and social support;
• the document confirming the reservation is an extract from the decision of the Ministry of Economy, certified by the signature (and seal, if available) of the relevant institution;
• bodies, enterprises, organizations and institutions submit a quarterly report on the number of conscripts who are reserved;
• cancellation of the deferral occurs in the event of its expiration, the loss of the status of the enterprise that gave rise to the reservation of co-workers, the liquidation of the enterprise, or the dismissal of the employee.