DECISION OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of May 31, 2013 No. AKPI13-394

On behalf of the Russian Federation

The Supreme Court of the Russian Federation in structure:

judge of the Supreme Court of the Russian Federation Petrova T. A.,

in case of the secretary To.,

with participation of the prosecutor Masalova L. F., having considered in proceeding in open court civil case according to the statement Z. about recognition to partially invalid the owners and users of rooms in apartment houses and apartment houses approved by the order of the Government of the Russian Federation of May 6, 2011 No. 354, Item 5 of appendix No. 1 to Rules of provision of utilities

established:

the order of the Government of the Russian Federation of May 6, 2011 No. 354 approves Rules of provision of utilities to owners and users of rooms in apartment houses and apartment houses (further - Rules).

Quality requirements of utilities, admissible departures from these requirements and the admissible duration of breaks of provision of utilities, and also conditions and procedure for change of the amount of payment for utilities by provision of utilities of inadequate quality and (or) with the breaks exceeding the established duration are given in appendix No. 1 to these Rules.

The Item 5 of appendix No. 1 to Rules orders ensuring compliance of temperature of hot water in water analysis point to requirements of the legislation of the Russian Federation about technical regulation (sanitary and epidemiologic rules and regulations the SanPiN 2.1.4.2496-09 the "Hygienic requirements to safety of hot water supply" approved by the resolution of the Chief state health officer of the Russian Federation of April 7, 2009 No. 20 (further - the SanPiN 2.1.4.2496-09); provides acceptable deviation of temperature of hot water in water analysis point from temperature of hot water in point of water analysis of the Russian Federation conforming to requirements of the legislation on technical regulation: at night (from 0:00 till 5:00 o'clock) - no more than on 5 °C; in the afternoon (from 5:00 till 0:00 o'clock) - no more than on 3 °C; determines that for each 3 °C of departure from acceptable deviations of temperature of hot water the amount of payment for utility for settlement period in which there was the specified departure decreases on 0,1 of percent of the amount of payment determined for such settlement period according to appendix No. 2 to Rules in each hour of departure from acceptable deviations totally during the settlement period taking into account provisions of the Section IX of Rules. In each hour of supply of hot water which temperature in point of analysis is below 40 °C totally during the settlement period payment of the consumed water is made on rate for cold water. The given Item contains footnote <2> according to which before determination of temperature of hot water in point of water analysis the discharge of water within no more than 3 minutes is made.

H. appealed to the Supreme Court of the Russian Federation with the statement for recognition invalid Item 5 of appendix No. 1 to Rules in that measure in which this regulation allows to reduce temperature of hot water in hot water supply in places of water analysis below 60 °C from established the SanPiN 2.1.4.2496-09 and by that allows danger of pollution of hot water infectious activators of virus and bacterial origin which can breed at temperature below 60 °C. The applicant considers that the regulation in the challenged part contradicts articles 19 and 39 of the Federal Law of March 30, 1999 No. 52-FZ "About sanitary and epidemiologic wellbeing of the population", considerably increases risk of infection and violates the right to health protection.

The Ministry of Regional Development of the Russian Federation (further - the Ministry of Regional Development of the Russian Federation), authorized to represent the interests of the Government of the Russian Federation - the interested person on case, in written objections specified the statement that it installs application No. 1 only conditions of change of the amount of payment for utilities by provision of utilities of inadequate quality and (or) with the breaks exceeding the established duration.

The regulation challenged in part determines cases and procedure for decrease in payment for provision of utility of inadequate quality and does not allow variations of temperature of hot water in water analysis point from requirements of the legislation of the Russian Federation about technical regulation, in particular the SanPiN 2.1.4.2496-09.

H., informed properly on time and the place of jurisdiction, in judicial session was not, asked to consider case in its absence.

Having listened to explanations of the representative of the Ministry of Regional Development of the Russian Federation of R., having estimated the regulatory legal act challenged in part on its compliance to the Federal Law and other regulatory legal acts having big legal force, having heard the conclusion of the prosecutor of the Prosecutor General's Office of the Russian Federation Masalova L. F., believing the statement subject to satisfaction, the Supreme Court of the Russian Federation considers that requirements of the applicant are subject to satisfaction.

The government of the Russian Federation, realizing requirements of part 1 of article 157 of the Housing code of the Russian Federation, claimed challenged regarding the Rule. The regulatory legal act is published in the Russian Federation Code, 2011, No. 22, and in "The Russian newspaper", on June 1, 2011.

Part 3 of article 1 of the Federal Law of December 7, 2011 "About water supply and water disposal" orders No. 416-FZ that quality requirements and safety of the water pumped with use of centralized and not centralized systems of hot water supply, cold water supply, including open systems of heat supply (hot water supply) are established by the legislation of the Russian Federation in the field of ensuring sanitary and epidemiologic wellbeing of the population and the legislation on technical regulation (further also - the established requirements).

According to Item 10 of article 2 of the called Federal Law quality and safety of water (further - quality of water) - set of the indicators characterizing physical, chemical, bacteriological, organoleptic and other properties of water, including its temperature.

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