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RESOLUTION OF THE SUPREME ECONOMIC COURT OF UKRAINE

of January 19, 2006 No. 2-14/1954-2005

About recognition invalid agreements regarding electrical supply to residential customers

(determination of Trial chamber on economic cases of the Supreme Court of Ukraine of 23.03.2006 it is refused to open production on review)

The Supreme Economic Court of Ukraine as a part of board

the chairman - Ostapenko M. I. judges: Bordenyuk E. M.,

Harchenko V. M. having considered the writ of appeal of the Simferopol state lesookhotnichy farm on the resolution of the Sevastopol Economic Court of Appeal of 16.06.2005 on case on the claim of the Simferopol state lesookhotnichy farm to JSC Krymenergo on behalf of the Simferopol city power network about recognition invalid agreements regarding electrical supply to residential customers ESTABLISHED:

In September, 2004 Simferopol state to lesookhotnichya the economy took a legal action with the invalidation action of the delivery agreement of electrical energy N668 signed with JSC Krymenergo of 01.01.1982 regarding power supply of residential customers, referring to the conclusion of this agreement owing to deception from the supplier, illegality of assignment of obligation on it to provide electrical supply to residential customers and need of the conclusion by the defendant of delivery agreements of the electric power with each residential customer separately.

The letter of N438 of 05.11.2004 the claimant added the claim with requirements about obligations of the defendant to sign with it the delivery agreement of electrical energy without residential customers.

The statement of 10.02.2005 the claimant changed N82 the requirements and asks the agreement N668 to change of 01.01.1982, having excluded from it conditions about power supply of other consumers.

By the decision of economic court of the Autonomous Republic of Crimea of 24.03.2005 satisfaction of the claim it is refused.

By results of reconsideration of the case in appeal procedure the plaintiff's application is left by the resolution of the Sevastopol Economic Court of Appeal of 16.06.2005 without satisfaction, and the decision of economic court of the first instance - without changes.

In the writ of appeal the claimant refers to violation of regulations of substantive and procedural law by courts, the wrong legal treatment of the facts of the case, and asks the judgments made to cancel on case, and to submit the case on new judicial review.

Having heard the judge-speaker, explanations of agents of the parties, and having discussed arguments of the writ of appeal, the judicial board sees no reason for its satisfaction, proceeding from the following.

The relations connected with production, transfer, delivery and electricity use are regulated by the Law of Ukraine "About power industry" and other regulatory legal acts, in particular the Instructions for use electrical energy approved by the resolution NKRE of 31.07.1996 N28.

Rules provide that delivery of electrical energy is performed based on the agreement on delivery of electrical energy which is signed between the consumer and the supplier of electrical energy (item 1. 3) and in case the electrical energy is delivered by the supplier of electrical energy through technological power networks of the main consumer to whose networks electroinstallations of other consumer are attached, then the relations of the last shall be settled by the separate agreement.

Signing 01.01.1982 the contract N668 for delivery of electrical energy to lesookhotnichy economy which part also the settlement located in its territory was, and also having signed to this agreement the act of 06.04.2000 of differentiation of balance sheet accessory of power networks and the equipment, the parties stipulated procedure and conditions of electric utility service of economy which, with the consent of the claimant, included also delivery of electrical energy to the settlement.

The specified determination of balance sheet accessory by the parties is, on the present, and counting of operational responsibility of the claimant for due use of technological power networks and determines delivery conditions to it electrical energy irrespective of the fact how this electric power and therefore without provision by the claimant, behind approval of the supplier of specifications of accession of electroinstallations of physical persons which received part of apartments in private property to technological power supply networks of the claimant of the conclusion with the last of agreements of accession, or determination of other scheme of power supply of the settlement, settlement of matters of argument of power supply of other persons is direct the claimant is used by it, electrical supply is risk of economic activity of the claimant and does not testify to invalidity of the controversial agreement in general, or its separate parts, the conclusion of this agreement owing to deception or violations of precepts of law, which govern the relations in the field of power industry and therefore courts correctly recognized the claimant's arguments in reasons for the requirements groundless, reasonably refused the claim and the bases for cancellation of judgments, from the motives given in the writ of appeal, the judicial board does not see.

Being guided by the Art. of Art. 111-9, 111-11 of HPK of Ukraine, the Supreme Economic Court of Ukraine,

DECIDED:

Leave the writ of appeal without satisfaction, and the decision of economic court of the Autonomous Republic of Crimea of 24.03.2005, the resolution of the Sevastopol Economic Court of Appeal of 16.06.2005 - without changes.

 

Chairman

M. I. Ostapenko

Judges

 

E.M.Bordenyuk

V. M. Harchenko

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