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SURVEY LETTER OF THE SUPREME ECONOMIC COURT OF UKRAINE

of December 30, 2011 No. 01-06/1872

About practice of application by economic courts of the legislation on delivery of electrical energy (on materials of the cases considered in cassation procedure by the Supreme Economic Court of Ukraine)

According to the procedure of information and for accounting in hearing of cases the overview of the disputes over the cases connected using the legislation on delivery of electrical energy solved by economic courts of Ukraine on which judgments are reviewed in cassation procedure by the Supreme Economic Court of Ukraine is sent.

1. The act of ecological, emergency and technological armor of electric utility service of the consumer is not either the transaction, or the act in understanding of Article 12 of the Economic Procedure Code of Ukraine (further - HPK of Ukraine) as does not generate, does not change and does not stop any civil legal relationship.

Regional power appealed to economic court with the claim to the Utility company for recognition invalid the act of ecological, emergency and technological armor of power supply of the consumer invalid.

Proceeedings by local economic court were stopped with reference to Item of 1 part one of article 80 HPK because this dispute is not subject to consideration in economic courts of Ukraine, proceeding from the following.

Methods of protection of the civil laws and interests are determined by Article 16 of the Civil code of Ukraine (further - the Civil Code of Ukraine). By this regulation it is determined that the court can protect the civil law or interest otherwise that established by the agreement or the law.

Article 20 of the Economic code of Ukraine (further - HK of Ukraine) as method of protection of the rights of subjects of managing provides recognition fully or partially invalid acts of public authorities and local government bodies, acts of other subjects contradicting the legislation, infringing the rights and legitimate interests of subjects of managing or consumers.

The appealed act according to Item 1.2 of the Instruction on procedure for creation of the act of ecological, emergency and technological armor of electric utility service of the consumer approved by the Order of the Ministry of Fuel and Energy of Ukraine of 19.01.2004 No. 26 is document of the established form in which general information about the consumer is specified, the list of the current collectors carried to ecological, emergency and technological armor determination of their loading, daily power consumption and time necessary for completion of engineering procedure (production cycle) is considered.

The Supreme Economic Court of Ukraine agreed with the conclusion of local economic court that the act of ecological, emergency and technological armor of electric utility service of the consumer is not the transaction, and has no nature of the act in understanding of article 12 HPK of Ukraine as does not generate, does not change and does not stop any civil legal relationship. Such act is the document fixing sizes of electric power and the minimum level of consumption which are determined by measurements or settlement way, has exclusively technical nature and is constituted for the purpose of prevention of emergence of emergency situations of technogenic and natural nature because of the electric utility service termination (the resolution of the Supreme Economic Court of Ukraine of 13.05.2011 No. 38/161a).

The corresponding legal line items are stated also in resolutions of the Supreme Court of Ukraine of 20.04.2010 No. No. 20/158a, 20/144a, 20/146a.

2. Unauthorized connection to power generation facilities and consumption of electrical energy without metering devices and the conclusion of the agreement is the basis for collection of its cost according to instructions of Articles 1212 and 1213 of Civil Code of Ukraine.

The power supplying organization took a legal action with the recovery suit of cost of the used electrical energy from Society which self-willedally connected current collectors to power network of the claimant. The local economic court refused satisfaction of the claim with reference to absence between agreement parties on delivery of electrical energy and that the defendant is not consumer of electrical energy in understanding of article 1 of the Law of Ukraine "About power industry" (further - the Law on power industry) and Item 1.2 of the Instructions for use electrical energy approved by the Resolution of the National commission on questions of regulation of power industry of Ukraine of 31.07.1996 No. 28 (further - Rules).

The Economic Court of Appeal with which the Supreme Economic Court of Ukraine agreed cancelled resolution of the Trial Court, proceeding from the following.

According to article 27 of the Law on power industry the offense in power industry involves the civil, administrative and criminal liability established by the legislation of Ukraine. According to part two of the specified Article the corresponding offenses is, in particular, theft of electrical energy, unauthorized connection to power generation facilities and energy consumption without metering devices.

During check of observance by the power supplying organization by Society of Rules the fact of connection of current collectors to network without the permission of the power supplying organization and without the conclusion of the delivery agreement of electrical energy was elicited that is violation of Items 1. 3, 5.1, 6.40 Governed.

On this fact the relevant statement signed by Society without notes and clauses is drawn up and also the protocol of the decision of the commission on consideration of acts of violation created according to requirements of Rules, and the Technique of scoping and cost of the electrical energy which is not considered as a result of violation by consumers of instructions for use by the electrical energy approved by the Resolution of the National commission of regulation of power industry of Ukraine of 04.05.2006 No. 562 (further - the Technique) according to which calculation of amounts consumed without the permission of electrical energy is carried out is drawn up and bill which the last paid only partially is made out society.

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