Bereits 2019 hat das ukrainische Parlament ein einschneidendes Sprachengesetz zum Vorrang der ukrainischen Sprache verabschiedet, dessen bis 2030 gestaffelte Übergangsfristen nach und nach auslaufen. Der nachfolgende Artikel stellt die für das Wirtschaftsleben wesentlichen Änderungen im Arbeitsrecht, IT-Sektor, Dienstleistungsbereich, Verbraucherschutz, Werbesektor und Gesellschaftsrecht vor, die seit 16.7.2022 verbindlich sind. Vor dem Hintergrund des russischen Angriffskriegs sind die teilweise gravierenden rechtlichen Änderungen in der ukrainischen Bevölkerung, auch der mit russischer Muttersprache, weitgehend unwidersprochen akzeptiert worden.
Since its independence in 1991, the Ukrainian state has strived to strengthen the use of the Ukrainian language as an element of national identity. These efforts were intensified after the Euromaidan in 2014, causing occasional resistance domestically and triggering disputes with a neighboring country, Hungary, about rights of the Hungarian minority in Ukraine. After the Russian aggression in February 2022, Ukrainian is increasingly used, even in private communications by Russian native speakers, as an expression of national self-assertion. In the below article, relevant implications of current language legislation.
II. General principles of Ukrainian language legislation
Art. 10 of the Constitution of Ukraine defines Ukrainian as state language and requires the Ukrainian state to ensure the universal development of Ukrainian in all spheres of social life on the whole territory of Ukraine. The Constitutional Court of Ukraine interpreted this provision as rendering Ukrainian mandatory for use and communication (i) by state and municipal authorities (as the language of work, legalacts, documents, etc.), and (ii) in other public spheres of social life to be defined by the law.
At the same time, in line with international obligations, the Constitution guarantees the free development, use and protection of Russian and other national minority languages in Ukraine and obliges the state to facilitate the learning of international communication languages.
Following a number of preceding legal acts, the Law of Ukraine “On Ensuring the functioning of Ukrainian as the official language of the state” No. 2704-VIII dated 25 April 2019, as amended (hereinafter – the “Language Law”) has been passed as the fundamental statutory legal act governing the use of Ukrainian in the country. The Language Law entered force on 16 July 2019, with a number of its provisions taking effect gradually over transitions periods until 2030 in order to give everyone sufficient time for necessary adjustments. The Language Law aims at securing priority for Ukrainian in all spheres of social interaction as well as promoting English and other official languages of the EU. Although not expressly stipulated, gradually ousting Russian as lingua franca is a well-considered side effect of the Language Law. The Constitutional Court reviewed the Language Law but did not find that English and other official languages of the EU are granted any privileged status, or that other languages are discriminated.
The Language Law stipulates that Ukrainian is mandatory for use in the work of state and municipal authorities, state and municipal enterprises, institutions and organizations. Further, it governs the mandatory use of Ukrainian in other public spheres of social life, which include: labor relations; education; science; culture; television and radio broadcasting; printed mass media; bookpublishing industry; software and web-sites; information for general public use; public events; customer services and product information; technical and project documentation; advertising; healthcare; sport; electronic communications and postal services; transportation; documentation of legal entities; names, designations, and trademarks.
The Language Law does not directly apply to private spheres of social life, where the use of languages remains at the discretion of persons participating in a private communication. Basically, everyone is free to use any language of their choosing in private life as well as in social spheres that are not designated as public by the Language Law (e.g., religious services).
Although not primarily targeted by the Language Law, the business / commercial sphere is directly affected by some of its novel provisions covering numerous business relations as spheres defined by the Language Law as public. Therefore, it is essential to know which implications the Language Law has for businesses, including local subsidiaries of foreign companies or multinational corporations, and which obligations it imposes on them. Compliance with the Language Law may require a certain additional investment of administrative and financial resources in order to avoid the risk of liability.
The Language Law was subject to review by the Constitutional Court regarding its constitutionality, and it held that the Law complieswith the Constitution.
III. Implications on relevant business spheres
1. Employment relations
Under the Language Law, no one can be forced to use any language other than Ukrainian while being at work and performing labor duties. The practical significance of this provision can arise, in particular, in companies (such as Ukrainian subsidiaries of foreign entities) with foreign management or employees who do not have sufficient command of Ukrainian in order to communicate effectively, or where a language other than Ukrainian is defined as a working language.
Local employees can request that work-related communication and instructions (tasks) issued to them be exclusively in Ukrainian and refuse to follow instructions in another language. Such refusal cannot result in any negative consequences for them. Therefore, affected companies might find it necessary to make respective adjustments, such as engaging translators or arranging for language courses for foreign colleagues. In practice, implications are rather low in businesses (such as the IT sector) where all or most employees speak a language of international communication, such as English.
The Language Law provides for two exceptions where other languages can and must be used in the labor-related context:
Serving customers (consumers) and other clients who are foreign citizens or stateless persons.
Creation of legal, technical, informational, advertising and other messages and documents (both orally and in writing) whose recipients are foreign citizens, stateless persons, foreign legal entities, authorities of foreign countries and international organizations.
Consequently, in the above cases it is justified that the employer demands / insists that employees use a language that a foreign customer (client, recipient) understands. For the purpose of the above exceptions, knowledge of a foreign language can also be made a mandatory condition of employment.
Finally, all employment agreements in Ukraine must be executed in Ukrainian. However, the parties to an employment agreement can translate it into any other language and use such translation alongside the Ukrainian original (e. g., as a bilingual document) – this is common practice in most Ukrainian subsidiaries of foreign legal entities.
The Language Law takes an extremely liberal approach to software that is distributed in Ukraine as a separate product. In most cases, the user interface of such software may be either in Ukrainian or in English, or in any other official language of the EU, or may use any combination of such languages. However, a Ukrainian version of the user interface is mandatory if the software in question is intended for use by state or municipal authorities, as well as by state or municipal enterprises, institutions and organizations, including state and municipal educational institutions.
In contrast, if software is installed in goods that are distributed in Ukraine, i. e., is one of their components, the user interface of such software must always have a Ukrainian version. It can also have versions in any other language provided that the volume and content of information in the Ukrainian-language version are no less than those in other languages. Failure to comply with these user interface requirements (as to the availability of a Ukrainian version and its volume / content) is considered as distributing goods of improper quality (defective products) and is likely to trigger the manufacturer’s / distributor’s liability under Ukrainian consumer protection legislation. Because of this explicit reference to liability under consumer protection legislation, most scholars tend to opine that the requirement of a Ukrainian user interface applies only to consumer goods but not to those distributed for business use.
The Language Ombudsman issued an explanation specifically with respect to software installed in motor vehicles: if vehicles were produced and imported to Ukraine prior to July 16, 2022 (the day when the relevant transition period under the Language Law expired) , the requirement that installed software have a Ukrainian version does not apply. Presumably, the same approach should apply to other goods with installed software.
An exception is provided for specialized (technical, medical, etc.) and professional equipment and software for such equipment that does not qualify as consumer goods as well as special-purpose software intended for use in the IT industry only. If the user interface of such software is in English, no Ukrainian version is required.
3. Websites and mobile apps
An important novel provision of the Language Law, which started to apply on 16 July 2022, is the requirement that the internet presence (including web-sites and social media accounts) of certain business entities must be in Ukrainian (for the purpose of simplicity, we will further use the term “websites”). Subject to this requirement are business entities that distribute (sell) goods and services in Ukraine and are registered in Ukraine. Since both mentioned criteria apply simultaneously, only Ukrainian business subjects (i.e., incorporated and having their registered seat in Ukraine) are covered by the rule. It also appears that the rule is relevant both in the B&B and B&C contexts as there are no indications to the contrary.
Website versions in other languages are also permitted, but only in addition to the Ukrainian version. Importantly, the volume and content of information provided in Ukrainian must not be less than those in other languages, whereas the Ukrainian website version shall download by default for users in Ukraine.
A separate requirement regarding the availability of a Ukrainian-language website version is also provided for foreign (i.e., incorporated abroad) business entities that distribute (sell) goods in Ukraine (apparently, regardless of the setting: B&C and B&B). However, it only applies if such a foreign business entity has either a subsidiary or a branch, or a representative office in Ukraine. Hence, non-resident entities without any registered business presence (e.g., selling goods directly to Ukrainian consumers and other buyers) in Ukraine are not covered.
The scope of the language requirement applicable to foreign vendors is reduced compared to Ukrainian entities: Ukrainian-language website versions of foreign vendors must contain information whose scope and content are sufficient for reasonable navigation and disclosure of the website owner’s business purpose. However, the Ukrainian version of the website shall download by default for users in Ukraine.
The Language Law also explicitly requires that the user interface of mobile apps of business entities (both Ukrainian and foreign, regardless of any business presence in Ukraine) that distribute (sell) goods and services in Ukraine must have a Ukrainian version.
4. Customer services, product information
The general rule of the Language Law stipulates that customers in Ukraine shall be served in Ukrainian. I. e., by default, Ukrainian is mandatory for communication / interaction with customers in all possible B&C settings (retail trade, services, restaurants, e-commerce, etc.); in particular, information about goods, works, and services shall be provided to customers in Ukrainian. That, for example, a waiter is always obliged to greet and address even regular customers in Ukrainian was widely discussed in the Ukrainian public, because the Constitutional Court noted that the provision of information to a customer, without their consent, in a language other than Ukrainian, is a violation of such customer’s rights and contrary to the Constitution of Ukraine.
The above requirement means that businesses (manufacturers, service providers, retail sellers) shall ensure that their employees who interact with customers have a sufficient command of Ukrainian and that all relevant product and service-related information and documentation (user manuals, price tags, labels, restaurant menus, etc.) be in Ukrainian (translated into Ukrainian). The content of such information and manner of its provision is defined by consumer protection legislation.
At the same time, the Language Law permits to dub (provide) product and services-related information in other languages. However, this can only be done alongside information (user manuals, price tags, labels, etc.) in Ukrainian, but not instead of it. Importantly, the scope of information in Ukrainian may not be less than the mandatory scope of information in accordance with consumer protection legislation. In addition, information in Ukrainian can contain separate words, abbreviations, shortenings and signs in English, Latin or Greek.
The Language Law provides for one important exception: after a client explicitly requests so, they can be served in any other language acceptable for the parties; i. e., in this situation, a language other than Ukrainian can be used for communication / interaction. Notably, the exception stipulates a possibility, not an obligation of a business entity concerned, and makes it dependent on its representatives’ ability tocommunicate in the requested language.
Another exception applies to certain medicines purchased by the Ministry of Health Protection of Ukraine pursuant to public procurement legislation, in which case product-related documentation / instructions can provided in the original language.
5. Technical and project documentation
The Language Law takes a lenient approach towards the language of technical and project documentation produced under an agreement with a foreign citizen, stateless person or a foreign legal entity. Basically, the parties to such an agreement can, at their discretion, choose that the documentation be produced in any language agreed by them, and Ukrainian is not mandatory in this case.
At the same time, if a party to an agreement for the production of technical and project documentation is a state or municipal authority, a state or municipal enterprise, institution or organization (either as a producer / contractor or recipient / customer), no choice of language is permitted and Ukrainian is mandatory for such documentation.
The Language Law makes Ukrainian mandatory for any form of advertising, including print media, television, and radio. Exceptions are provided for print mass media published in an official language of the EU, foreign television and radio broadcasting organizations as well as domestic television and radio broadcasting organizations that broadcast their programs in an official language of the EU. Such printed media and broadcasting organizations are permitted to provide advertising in an official EU language.
In addition, it should be noted that a special law on national minorities and indigenous people shall define modalities for the use of their languages in advertising. So far, no such law has been passed.
7. Documents of legal entities
Legal entities registered in Ukraine are obliged to use Ukrainian in written correspondence with state and municipal authorities, state and municipal enterprises, institutions and organizations. Differently, private law legal entities are free to choose any language of communication among themselves; the use of Ukrainian is not mandatory.
Ukrainian is also mandatory for statutory documents and corporate decisions of legal entities registered in Ukraine, as well as for their statistical, tax and other reporting submitted to state or municipal authorities. Nevertheless, the Language Law does not prohibit translating statutory and other corporate decisions and documents in other languages and executing them as bilingual or even multilingual documents, where only the Ukrainian version is considered mandatory and authentic. This practice is common among Ukrainian subsidiaries of foreign legal entities.
Notwithstanding the above, any natural person has the right to address oral or written petitions in Ukrainian to any and all legal entities registered in Ukraine, in which case a response shall be given in Ukrainian, too. If a petition is executed in a language other than Ukrainian, it remains in the discretion of a legal entity-recipient to consider it and provide a response or to refuse its consideration.
Trademarks are used in a form in which they are protected, i. e., if they are registered in a foreign language, their translation into Ukrainian is not required. However, a trademark holder can also register, alongside an original trademark, its variants translated or transliterated into Ukrainian.
IV. Enforcement and liability
The Language Law instituted the position of a State Language Protection Commissioner (the “Language Ombudsman”) tasked with control of compliance and enforcement of the Language Law. Among the statutory powers of the Language Ombudsman is conducting language compliance audits, in particular, of businesses; considering complaints filed by individuals and legal entities; issuing instructions and imposing measures of liability for non-compliance.
Any person can complain to the Language Ombudsman, in particular, about a failure of a legal entity, its officer or employee to provide information about goods, works or services in Ukrainian. Complaints regarding compliance with the Language Law can also be submitted directly to court.
Importantly, failure to comply by businesses with the Language Law requirements to provide customer services and information about goods, works and services in Ukrainian, as stipulated by Art. 30 of the Language Law, triggers financial liability of a business entity concerned. For the first detected violation, the Language Ombudsman issues an official warning and instruction to remove the violation. If the business subject breaches the Language Law again within a year after the first breach, a fine of UAH 5,100 to 6,800 will be imposed.
In addition to the financial liability of business entities outlined above, individuals, such as corporate officers, employees of businesses, as well as other natural persons are subject to administrative liability for violations of the Language Law in the form of a fine of UAH 3,400 to 5,100. A repeated violation within a year triggers an increased fine of UAH 8,500 – 11,900.
According to the data published on the official website of the Language Ombudsman, 3,574 complaints regarding breaches of the Language Law were filed in 2021. Most of them concerned availability of consumer-related information in Ukrainian on businesses’ websites (1.044) as well as failure to provide customer services and product information in Ukrainian (858). Only 10 complaints related to employment relations.
As stated in the Language Ombudsman’s report for 202148, most large internet stores timely adapted their websites by providing information in Ukrainian and most retail businesses swiftly and positively reacted to complaints and Ombudsman’s recommendations regarding the use of Ukrainian for customer servicing, without escalating the situation to formal audit procedures and liability measures. According to the same report, only in 42 cases of formal language audits did the Ombudsman establish violations of the customer services / product information provisions by businesses and issued 35 warnings, after which the violations were removed within 30 days. At the same time, the report does not contain information on any financial sanctions imposed.
As the Language Law is relatively new, no substantial court practice of its application relevant for the business sphere is yet available.
With the enactment of the Language Law and expiration of most transitional periods set thereby, the priority of the use of Ukrainian in many areas of social life, in particular, in the business sphere, has been significantly strengthened. Despite significant administrative implications for businesses caused by the Language Law, the large majority of them have accepted its requirements by switching to Ukrainian.
What is most remarkable is that in the context of the full-scale Russian aggression against Ukraine launched in 2022, Ukrainian has become one of the most significant integrating and consolidating factors for Ukrainians, even many of those with Russian as native language. Many ordinary citizens have commenced to view Ukrainian as a real symbol of national identity and patriotism, with the official language replacing Russian and becoming a more widespread means of communication even in private spheres of social life.
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