Goals of Further Development of Legal Regulation in Heat Supply and Protection of Rights of Players in the Heat Energy Market in the Constitutional Court of the Russian Federation

 
PIIS231243500022064-8-1
DOI10.18572/2410-4396-2019-2-83-90
Publication type Article
Status Published
Authors
Occupation: Head of the Department of Energy Law
Affiliation: Kutafin Moscow State Law University (MSAL)
Address: Russian Federation, Moscow
Journal nameEnergy law forum
EditionIssue 2
Pages83-90
Abstract

A certain legal base that regulates public relations in the heat power industry has currently been formed. However, representatives of legislative authorities, government agencies, and the expert community note that it is advisable to improve the regulatory framework in heat supply and, above all, legal regulation of accident-free operation of heat supply and network facilities. Legal analysis of provisions of the current laws in the field of heat supply, debating points arising upon consideration of draft laws, and court practice indicate presence of inaccuracies, gaps, and contradictions that need to be addressed, and great work needs to be done to this end. The need to work to improve legal regulation in heat supply is also confirmed by the Decree of the Constitutional Court of the Russian Federation. In 2018, two Decrees of the Constitutional Court of the Russian Federation were adopted (No. 30-П dated July 10, 2018, and No. 46-П dated December 28, 2018). According to them, the following provisions were found not to comply with the Constitution of the Russian Federation: Part 1, Article 157 of the Housing Code of the Russian Federation, the third paragraph, clause 42 of Regulation 354, and the second paragraph, clause 40 of Regulation 354.

Considering significant number of lawsuits in the field of heat supply, it seems very important to work on timely analysis of court practice and a more mobile response to cases when gaps in legal regulation are identified in order to prepare necessary addenda and amendments to existing regulatory legal acts to ensure a balance of interests of players in the heat energy market without waiting for the next acknowledgement of certain provisions of the laws in the heat supply industry non-complying with the Constitution of the Russian Federation.

 

Keywordsenergy law, legal regulation in heat supply, energy market players, procedure for payment for public heating service, Constitutional Court of the Russian Federation
Received18.03.2019
Publication date01.06.2019
Number of characters30398
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1

Legal regulation of public relations in heat supply involves various sources of energy law, including the Constitution of the Russian Federation, the Civil Code, the Housing Code of the Russian Federation, the Code of Administrative Offenses of the Russian Federation, Federal Law dated July 27, 2010 No. 190-ФЗ On Heat Supply, subordinate regulatory legal acts, etc. The key part in legal regulation of public relations in heat supply is played by Federal Law dated July 27, 2019 No. 190-ФЗ On Heat Supply (hereinafter referred to as the Federal Law on Heat Supply). Pursuant to the Federal Law On Heat Supply, within the powers provided for by the legislator, the Government of the Russian Federation approved, among other things: the requirements to heat supply schemes and the procedure for their development and approval; the rules for organization of heat supply in the Russian Federation; theFundamentalsofPricingin Heat Supply; theRulesforPrice(Tariff)RegulationinHeat Supply; theRulesforConnection(Technological Connection)toHeatSupplySystems, includingtheRules of Non-Discriminatory Access toServices forConnection (Technological Connection)toHeatSupplySystems; theRules ofNon-DiscriminatoryAccesstoServicesfor TransferofHeatEnergy,HeatCarrier, the Rules for Consideration (Settlement) of Disputes and Disagreements Related to Establishment and/or Use of Prices (Tariffs).

2 Moreover, relations with regard to heat supply and provision of relevant utilities are governed by the Regulation on Provision of Utilities to the Owners and the Users of Premises in Apartment Buildings and Residential Buildings approved by Decree of the Government of the Russian Federation dated May 6, 2011 No. 354 (hereinafter referred to as Regulation 354).
3 Work on further development of legal regulation in heat supply is performed in accordance with Order of the Government of the Russian Federation dated November 29, 2017, No. 2655p, which approved a plan of priority measures (“road map”) for implementation of the target model of the heat energy market aimed at implementing Federal Law dated July 29, 2017 No. 279-ФЗ On Amendments to the Federal Law On Heat Supply and Certain Legislative Acts of the Russian Federation on Improvement of the System of Relations in Heat Supply.
4 Therefore, a certain legal base that regulates public relations in the heat power industry has currently been formed. However, representatives of legislative authorities, government agencies, and the expert community note that it is advisable to improve the regulatory framework in heat supply and, above all, legal support for accident-free operation of heat supply and network facilities [1].
5 Legal analysis of provisions of the current laws in heat supply, debating points arising upon consideration of draft laws, and the court practice indicate presence of inaccuracies, gaps, and contradictions that need to be addressed, and great work needs to be done to this end.
6 Draft law No. 388059-7 On Amendments to the Federal Law On Heat Supply (in terms of establishing the criteria and the procedure for referring the owners of heat networks to heat supplying organizations) [2] is under consideration in the State Duma. The draft law proposes to grant to the Government of the Russian Federation the authority to establish criteria for referring the owners of heat networks to heat supplying organizations. The explanatory note to the draft law states that there is no clear legal content on the notion of the heat supplying organization, while the heat supplying organizations fully function at the expense of tariffs. Therefore, a situation arises when a significant number of “formal” heat supplying organizations that do not have specialized equipment for prompt mitigation of possible emergencies in heat networks on their balance are formed. In the official opinion, the Government of the Russian Federation supports this draft law subject to certain comments. The following is mentioned among the comments: the draft law does not contain rules defining the status of the owners of sections of heat supply networks, the owners of small networks, it does not determine their legal status and procedure for interaction with the heat supplying organizations with regard to purchase of sections of heat supply network and relevant land plots belonging to the owners of small networks. The State Duma’s Committee on Energy also supported the draft law with comments, which relate, among other things, to the fact that the draft law does not cover not only the legal status of small heat supplying organizations, but also the heat supplying organizations that own heat points, that is, generating heat energy.
7 The relevance of the introduced draft law as well as the submitted comments and recommendations for its revision is beyond doubt. It should be noted here that the Federal Law on Heat Supply does not currently contain definitions of the notions of the small or minor heat supplying organization as well as the organizations that own heat points or the procedure for interaction of these heat supplying entities with each other and other parties to public relations in heat supply. It does not contain the definition of the notion of “small-scale” networks, the division of heat networks depending on their size either.

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1. https://minenergo.gov.ru/node/14457

2. https://sozd.duma.gov.ru/bill/388059-7

3. http://sozd.duma.gov.ru/bill/651016-7

4. Ruling of the Constitutional Court of the Russian Federation dated February 28, 2017, No. 361-О On Refusal to Accept for Consideration the Complaint of Association for Assistance to Housing Self-Management Perm Standard about Violation of Constitutional Rights and Freedoms by Clause 20, Article 2 of the Federal Law On Heat Supply // http://doc.ksrf. ru/decision/KSRFDecision265529.pdf

5. Ruling of the Constitutional Court of the Russian Federation dated May 29, 2018 No. 1223-О On Refusal to Accept for Consideration the Complaint of Federal State Autonomous Educational Institution of Higher Education Far-East Federal University about Violation of Constitutional Rights and Freedoms by Part 1, Article 11 of the Federal Law On Heat Supply // http://doc.ksrf.ru/decision/KSRFDecision338037.pdf

6. Ruling of the Constitutional Court of the Russian Federation dated December 19, 2017, No. 2970-О On Refusal to Accept for Consideration the Complaint of National Denis A. Plekhanov about Violation of His Constitutional Rights by Part 15, Article 14 of the Federal Law On Heat Supply and Part 3, Article 36 of the Housing Code of the Russian Federation // http://doc.ksrf.ru/decision/KSRFDecision310136.pdf

7. Ruling of the Constitutional Court of the Russian Federation dated October 26, 2017, No. 2406-О On Refusal to Accept for Consideration the Complaint of Municipality of the Urban District – Barnaul, the Altai Territory about Violation of Its Constitutional Rights and Freedoms by Part 6, Article 17 of the Federal Law On Heat Supply // http://doc.ksrf.ru/de- cision/KSRFDecision300867.pdf

8. Ruling of the Constitutional Court of the Russian Federation dated January 29, 2015, No. 136-О On Refusal to Accept for Consideration the Complaint of Open Joint-Stock Company Generating Company about Violation of the Constitutional Rights and Freedoms by Provisions of Clause 29, Article 2 and Article 22 of the Federal Law On Heat Supply, and Part 2, Article 289 of the Arbitration Procedure Code of the Russian Federation // http://doc.ksrf.ru/decision/KSRFDeci- sion187547.pdf

9. Decree of the Constitutional Court of the Russian Federation dated December 20, 2018, No. 46-П http://doc.ksrf.ru/ decision/KSRFDecision370832.pdf

10. Decree of the Constitutional Court of the Russian Federation dated July 10, 2018, No. 30-П

11. https://sozd.duma.gov.ru/bill/567690-7

12. https://sozd.duma.gov.ru/bill/620233-7

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