Under martial law, the issue of ensuring the stable functioning of enterprises has become particularly important for Ukraine’s economy. The uninterrupted operation of companies in strategic sectors directly affects the state’s ability to sustain essential public services, maintain the functioning of key sectors of the economy, and meet defense needs.

One of the legal mechanisms designed to ensure the stability of such enterprises is granting them the status of critically important for the functioning of the economy and ensuring the livelihood of the population during a special period. Obtaining this status has practical significance primarily in the context of mobilization measures, as it creates legal grounds for reserving employees who are subject to military service.

At the same time, the status of a critically important enterprise is not granted automatically. It may only be obtained if the company meets the criteria established by the state and successfully completes the prescribed procedure confirming such compliance. This process first requires verifying whether the enterprise meets the relevant criteria defined by legislation. Following this, the company must properly prepare the necessary documentation, conduct an analysis of its economic indicators, and substantiate its importance for the relevant sector of the economy or for a specific territorial community.

In this context, for many companies, including those operating in the IT sector, obtaining the status of a critically important enterprise has become an important element of strategic business planning under the conditions of martial law.

Legal regulation of the status of critically important enterprises

The issue of recognising enterprises as critical to the functioning of the economy and ensuring the livelihoods of the population during a special period is regulated by a number of regulatory acts that define both the criteria for such status and the procedure for reserving employees subject to military service.

The key regulatory act in this area is Resolution № 76 of the Cabinet of Ministers of Ukraine dated 27 January 2023, which approved the Criteria for determining enterprises, institutions and organisations as critical during a special period, as well as the Procedure for reserving employees subject to military service (hereinafter – “Resolution № 76”). This act establishes the basic requirements that enterprises must meet in order to obtain the status of critical importance.

Compliance with the specified criteria is a legal prerequisite for reserving employees during mobilisation and wartime. Recognition of an enterprise as critical is carried out exclusively within the framework of a specified procedure and subject to documentary confirmation of compliance with the established requirements.

In addition to the general criteria set out in Resolution No. 76, additional industry-specific criteria may be established by central executive authorities for individual sectors of the economy. Such criteria are designed to take into account the specific nature of enterprises’ activities in the relevant industries and allow for a more accurate assessment of their importance to the national economy or the livelihoods of the population.

General criteria for determining a business as critical

According to the provisions of Resolution № 76, in order to obtain the status of a critically important enterprise, a business entity must comply with the criteria established by the state. These criteria are aimed at confirming the financial stability of the enterprise, ensuring an adequate level of employee remuneration, and demonstrating its importance for the functioning of the relevant sector of the economy or for a specific territorial community.

Under the established procedure, an enterprise must meet at least three criteria, two of which are mandatory. Compliance with these criteria confirms that the enterprise operates transparently, maintains economic stability, and provides an appropriate level of social guarantees for its employees.

The mandatory criteria include:

• absence of arrears in the payment of taxes and the unified social contribution for compulsory state social insurance;
• an average salary level of employees for the last calendar month that is not less than the minimum wage multiplied by a coefficient of 2.5.

In addition to these mandatory requirements, the enterprise must meet at least one additional criterion, confirming its significant importance for a particular sector of the national economy or for ensuring the livelihood of a specific territorial community. The specification of such criteria is determined by the relevant sectoral executive authorities depending on the field of activity of the enterprise.

Thus, the mechanism for determining enterprises as critically important combines general economic indicators with sector-specific criteria, allowing the state to take into account the specific characteristics of business activities across different sectors of the economy.

Sector-specific criteria: particularities for the IT sector

Given the specific nature of activities carried out by enterprises in the information technology sector, Ukrainian legislation provides separate mechanisms for confirming their importance for the national economy. For IT companies, including residents of the Diia City legal regime, the recognition of an enterprise as critically important may be based both on the general criteria established by Resolution № 76 and on special sector-specific criteria approved by the Ministry of Digital Transformation of Ukraine.

In particular, one of the criteria provided by Resolution № 76 is the enterprise’s Diia City resident status, in accordance with Part 3 of Article 5 of the Law of Ukraine “On Stimulating the Development of the Digital Economy in Ukraine” dated 15 July 2021 № 1667-IX (hereinafter — “Law № 1667-IX”). When submitting an application for recognition as a critically important enterprise, the company must provide documents confirming its compliance with the requirements established by legislation for Diia City residents.

A company holding Diia City resident status must attach to its application supporting documents confirming compliance with the requirements set out in paragraph 1 of Part 2 of Article 13 of Law № 1667-IX. In addition, certified copies of agreements and primary accounting documents confirming the company’s receipt of income must be submitted and duly certified by the company’s head.

Such income must be received based on the results of three full months following the month in which the company obtained Diia City resident status. It may include revenue from the sale of products (goods, works, services), royalties (provided such amounts are not already included in sales revenue), as well as grants or investments. The total amount of such income must be no less than the equivalent of EUR 20,000, calculated according to the official exchange rate of the hryvnia to the euro established by the National Bank of Ukraine as of 1 January of the relevant calendar year.

At the same time, it is important to take into account the sector-specific criteria established by the Order of the Ministry of Digital Transformation of Ukraine dated 5 December 2024 № 182. This regulatory act introduces several grounds for determining enterprises as having significant importance for the digital economy sector. Among them is the criterion of conducting activities in the IT industry, provided that the enterprise carries out types of activities defined in Part 4 of Article 5 of Law № 1667-IX.

To apply this criterion, the enterprise must meet certain indicators, particularly regarding salary levels and the number of personnel. In particular, the average salary of insured persons — employees of the enterprise — for the last calendar quarter must be at least the equivalent of EUR 1,200, while the average number of such employees must be no fewer than nine persons.

At the same time, it is important to note that Order № 182 operates with the category of “insured persons — employees”, meaning individuals who are employed by the company under labor contracts. Accordingly, gig specialists engaged under gig contracts within the Diia City regime are not taken into account when determining the minimum number of personnel. This feature may create practical limitations for startups and companies that rely on flexible employment models.

Procedure for obtaining the status of a critically important enterprise

The procedure for obtaining the status of a critically important enterprise is governed by Resolution № 76. This procedure involves confirming that the enterprise meets the established criteria and submitting a relevant application to the competent public authority.

The recognition of an enterprise as critically important is carried out by the state authority responsible for the relevant sector of the economy. In particular, such decisions may be adopted by central executive authorities, as well as by regional, Kyiv, or Sevastopol city state administrations (or military administrations where such have been established). In cases where an enterprise is significant for meeting the needs of the security and defense sector, the status of critically important may also be confirmed by the authorities responsible for the leadership of the Armed Forces of Ukraine, other military formations, the Security Service of Ukraine, or the Ministry for Strategic Industries of Ukraine.

In practice, the procedure for obtaining such status generally consists of several consecutive stages. First, the enterprise conducts an internal assessment of its activities to determine whether it meets the established criteria. This includes an analysis of financial indicators, the level of the average salary, the absence of tax arrears, and the identification of sector-specific criteria that may apply to the particular enterprise.

The next stage involves the preparation of documents confirming the enterprise’s compliance with the established requirements. Such documents typically include certificates confirming the absence of tax liabilities, information on the average salary level of employees, tax reporting documents, and other supporting materials.

After the documentation has been prepared, the enterprise submits an application to the competent public authority, together with the supporting documents. Based on the review of the submitted materials and verification of compliance with the established criteria, the authority adopts a decision either to recognize the enterprise as critically important or to refuse granting such status.

A positive decision constitutes the official confirmation of the enterprise’s status as critically important and creates the legal grounds for reserving employees liable for military service in accordance with the requirements of applicable legislation. At the same time, in practice, the success of this procedure largely depends on the proper preparation of documentation and a thorough preliminary assessment of the enterprise’s compliance with the established criteria.

Reservation of employees liable for military service and ultimate beneficial owners of critically important enterprises

Obtaining the status of a critically important enterprise has direct practical significance in the context of mobilization measures, as it creates legal grounds for the reservation of persons liable for military service. This mechanism is intended to ensure the uninterrupted operation of enterprises whose functioning is important for the state’s economy, the livelihood of the population, or the fulfillment of tasks within the security and defense sector.

The legal framework governing reservation is established by the Law of Ukraine “On Mobilization Preparation and Mobilization” dated 21 October 1993 № 3543-XII (hereinafter — “Law № 3543-XII”). In particular, pursuant to subparagraph 3 of part one of Article 25 of this Law, reservation applies to persons liable for military service who work at enterprises, institutions, and organizations that are critically important for meeting the needs of the Armed Forces of Ukraine, other military formations, or for ensuring the functioning of the economy and the livelihood of the population during a special period.

The procedure for reserving persons liable for military service is determined by Resolution of the Cabinet of Ministers of Ukraine № 76. According to this procedure, enterprises that have obtained the status of critically important are entitled to submit proposals for the reservation of their employees who are registered for military service. At the same time, the legislation establishes a quantitative limitation: as a general rule, no more than 50 percent of the employees liable for military service at the enterprise may be reserved. However, if the activities of the enterprise are of particular importance for the functioning of the economy or for meeting the needs of the security and defense sector, the competent authority may approve the reservation of a larger number of employees, provided that appropriate justification is presented.

The reservation procedure involves the submission by the enterprise of lists of employees liable for military service to the competent public authority, including through the Diia portal. In the event of a positive decision, the relevant employees are granted a deferment from military service during mobilization for a specified period.

Particular attention within this mechanism should also be given to the possibility of reserving ultimate beneficial owners of enterprises. Clarifications on this matter were provided by the Ministry of Economy of Ukraine in its letter dated 18 July 2024 № 2704-20/51455-03. According to this position, ultimate beneficial owners who are liable for military service may be subject to reservation if the enterprise has been recognized as critically important, even if such persons are not formally employed by the enterprise.

The reservation procedure approved by Resolution № 76 further provides that ultimate beneficial owners of critically important enterprises may be reserved regardless of their military rank, age, or military occupational specialty. In particular, paragraph 5 of the Procedure provides for the reservation of beneficial owners of enterprises that are critically important for meeting the needs of the Armed Forces of Ukraine or other military formations, while paragraph 9 provides for the reservation of beneficial owners of enterprises recognized as critically important for the functioning of the economy and ensuring the livelihood of the population, as well as banks and other institutions whose activities are regulated by the National Bank of Ukraine.

At the same time, the Procedure does not establish a separate reservation process specifically for such persons. Therefore, in practice, the general reservation procedure provided by Resolution № 76 is applied. An essential precondition for the application of this mechanism is the existence of a decision by a competent public authority recognizing the enterprise as critically important. Such a decision may be adopted by a central executive authority responsible for the relevant sector of the economy or for the activities of the Armed Forces of Ukraine, other military formations, the Security Service of Ukraine, or the Ministry for Strategic Industries of Ukraine, as well as by the relevant regional or city state (or military) administration.

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Manimama Law Firm provides comprehensive legal support to businesses on regulatory compliance, interaction with public authorities, and the obtaining of special legal statuses предусмотренных законодательством. We assist companies in the process of obtaining the status of a critically important enterprise, including conducting a legal assessment of compliance with the established criteria, preparing the necessary documentation package, and providing legal support in communication with the competent authorities.

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The information provided in this article is intended for general informational purposes only and should not be considered as individual legal advice. For legal assistance tailored to specific circumstances, it is recommended to seek professional legal counsel.