The right to entrepreneurial activity in Ukraine

Volodymyr Machuskyy

The right to carry out business activities is guaranteed by the Constitution of Ukraine (hereinafter the Constitution).  So,  Art. 42 of the Constitution states that everyone shall have the right to entrepreneurial activity that is not prohibited by law.

Considering the fact that constitutional rights are guaranteed and can not be canceled (Art. 22 of the Constitution), it seems possible to assert with a high degree of confidence about the impossibility  of prohibition the constitutional right to business in any Ukrainian legal act because the constitutional norms in Ukraine have the highest legal force.

The constitutional guarantee of the right to entrepreneurial activities is implemented through the provisions of Art. 35 and Art. 50 of the Civil Code of Ukraine – a person who has attained sixteen and wishes to engage in the entrepreneurial activity may be registered as an entrepreneur in case of availability of a written approval from his/her parents (adoptive parents).

Thus, the above provisions of the Constitution and the Civil Code of Ukraine shall guarantee to every natural person with full legal capability the right to conduct business activities.

Also in context of the foreigners’ right to entrepreneurial activity in Ukraine, it is necessary to take into account that foreigners staying in Ukraine on legal grounds shall enjoy the same rights and freedoms and bear the same duties as citizens of Ukraine.

However, analysis of the formula “everyone shall have the right to entrepreneurial activity that is not prohibited by law” gives reason to conclude that the prohibition may relate to  a certain type of business only, or, in other words, to determine the scope of public relations where business activity, as a form of social significant activity is not allowed or restricted.

So, Art. 43 of Commercial Code of Ukraine states that entrepreneurs shall have the right to perform independently without any limitations any such entrepreneurial activity that is not banned by the law. At the same time, there are restrictions on conducting of entrepreneurial activity in the Art. 4 of not acting Law of Ukraine “On Entrepreneurship”.

Hence, in respect of certain categories of individuals, the law may set limitations on the conduct of entrepreneurial activity but the law may not ban the business activity of natural person in whole.

At the same time, for certain categories of natural persons by the law can be set a limitation on the business activities by the law but can not be set a full prohibition of one.

Thus, the provisions of Art. 42 of the Constitution states that the entrepreneurial activity of deputies, officials, and officers of the bodies of State power and local self-government shall be restricted by law. 

Finally, considering the above content of regulations, it seems possible to reach the following conclusions:

1) the right to entrepreneurial activity is a constitutional right of every capable individual in Ukraine;

2) the right to entrepreneurial activity can not be prohibited (this right can only be restricted to persons which defined by law);

3) the foreigners have the right to entrepreneurial activity in Ukraine at the level of citizens of Ukraine;

4) The prohibition may apply to certain types of business, but the prohibition may not apply to the right to entrepreneurship.