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Legal Nature Of Selection Of Res Projects And Application Of Anti Monopoly Laws To The Procedure Of Res Projects
 
PIIS231243500022187-3-1
DOI10.18572/2410-4390-2018-4-85-91
Publication type Article
Status Published
Authors
Yana A. Rybkina 
Occupation: Lawyer of the Legal Expert Examination Division of the Legal Department
Affiliation: Trading System Administrator of Wholesale Electricity Market, Joint-Stock Company
Address: Russian Federation, Moscow
Journal nameEnergy law forum
EditionIssue 4
Pages85-91
Abstract

States, companies and ordinary people all over the world currently pay more and more attention to development of use of renewable energy sources. This approach is justified by concern for the future generation and the environment. In the Russian Federation, there is great potential for electricity generation using renewable energy sources. In this article, the author will provide an overview of the mechanism for stimulation of use of renewable energy sources on the wholesale electricity and capacity market in Russia. In particular, the author will tell about the procedure for competitive selection of investment projects for construction (reconstruction, modernization) of generating facilities operating on the basis of renewable energy sources (hereinafter referred to as the selection of RES projects), which is determined in the Rules of the Wholesale Electricity and Capacity Market approved by Resolution of the Government of the Russian Federation No. 1172 dated December 27, 2010. We will attempt to study the legal nature of the selection of RES projects using current judicial practice. We will also analyze application of the rules of anti-monopoly laws to the procedure for selection RES projects.

Keywordsenergy law, renewable energy sources, selection of RES projects, Rules of the Wholesale Electricity and Capacity Market
Received03.11.2018
Publication date21.12.2018
Number of characters23976
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1 In the field of electric power industry, more and more attention is currently paid to development of generation on the basis of use of renewable energy sources (hereinafter also referred to as the RES).
2 In accordance with the definition given in Article 3 of Federal Law No. 35-ФЗ dated March 26, 2003, On the Electric Power Industry, [1] the renewable energy sources include solar energy, wind energy, water energy, tidal energy, wave energy of water bodies, including ponds, rivers, seas, and oceans, geothermal energy using natural underground heat carriers, low-potential thermal energy of earth, air, and water using special heat carriers, biomass, including plants specially grown for energy, including trees, as well as production and consumption waste, except for waste generated upon use of hydrocarbon material and fuel, biogas, gas emitted from production and consumption waste at landfills for such waste, and gas generated in coal mines.
3 The policy for development of generation facilities operating on the basis of use of the RES is established at the legislative level.
4 Such an approach is definitely justified and determined both by concern for the environment and for the future of new generations.
5 In this article, we will focus on encouragement by the state of development of “alternative” generation, we will give a brief overview of the procedure for competitive selection of investment projects for construction (reconstruction, modernization) of generating facilities operating on the basis of use of renewable energy sources (hereinafter referred to as selection of RES projects or the SRP), and analyze the legal nature of the selection of RES projects and application of anti-monopoly laws upon the SRP using judicial practice.
6 We should start with the fact that the body that forms the main lines of activity in the field of stimulation of generation and consumption of electricity produced using the RES is the Government of the Russian Federation (hereinafter referred to as the Russian Government).
7 On January 8, 2009, Order of the Russian Government No. 1-p approved the Main Areas of the State Policy in the Field of Improvement of Energy Efficiency of the Electric Power Industry Based on the Use of Renewable Energy Sources for the Period up to 2024 (hereinafter referred to as the Main Lines). [2]
8 In accordance with the Main Lines, it is planned to gradually increase the volume of generation and consumption of electricity produced by generating facilities operating on the RES. According to this document, by 2024, this volume should be 4.5 percent in the total volume of electricity generation and consumption in the Russian Federation.
9 To achieve these goals, the Russian Government specified a number of support measures in the Main Lines. These measures include without limitation attraction of extrabudgetary funds for construction and modernization of the generating facilities operating on the basis of RES, and establishment of the obligation to acquire a certain amount of electrical energy produced by the generating facilities using RES for the wholesale market entities.
10 And, according to the author, the selection of RES projects also pertains to the measures of state support for development of the generating facilities operating on the basis of use of the RES. The procedure for selection is specified in the Rules of the Wholesale Electricity and Capacity Market approved by Resolution of the Russian Government No. 1172 dated December 27, 2010 (hereinafter referred to as the Wholesale Market Rules). [3]
11 The goal of the procedure for selection of RES projects is to identify the most economically sound projects, for which agreements for supply of capacity of qualified generating facilities operating on the basis of use of renewable energy sources (hereinafter referred to as the ASC RES) will be concluded.
12 The RES projects are selected by the Commercial Operator (hereinafter also referred to as TSA, JSC) in accordance with the requirements of the Wholesale Market Rules and the Agreement on Accession to the Wholesale Market Trading System (hereinafter referred to as the AOA).
13 The SRP is held annually for each type of the generating facilities, power plants operating on the basis of photovoltaic conversion of solar energy, power plants operating on the wind energy, power plants with an installed capacity of less than 25 MW operating on the basis of water flow energy, and power plants operating on the production and consumption waste.
14 For the purpose of selection of RES projects, in accordance with clause 202 of the Wholesale Market Rules, the Commercial Operator shall publish information on basic limit amount of capital expenses for construction of 1 kW of installed capacity of the generating facility, the planned volume of capacity required for delivery, localization targets, requirements to the content of applications for participation in the selection of projects as well as the methods of their submission for participation in the selection of projects and the term for their submission, and other information that must be published upon preparation of the selection of projects in accordance with the AOA (hereinafter referred to as the information required for the selection of RES projects) on the official website.

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1. Federal Law No. 35-FZ dated March 26, 2003 On the Electric Power Industry // Collection of Laws of the Russian Federation, 2003, № 13, Article 1177.
2. Order of the Government of the Russian Federation No. 1-r dated January 8, 2009 On the Main Lines of the State Policy in the Field of Improvement of Energy Efficiency of the Electric Power Industry Based on the Use of Renewable Energy Sources for the Period up to 2024 // Collection of Laws of the Russian Federation. 2009, № 4, Article 515.
3. Resolution of the Government of the Russian Federation No. 1172 dated December 27, 2010 On Approval of the Rules of the Wholesale Electricity and Capacity Market and On Amendments to Certain Acts of the Government of the Russian Federation on the Procedure of Operation of the Wholesale Electricity and Capacity Market // Collection of Laws of the Russian Federation. 2011. № 14, Article 1916.
4. Resolution of the Ninth Arbitration Court of Appeal No. 09AP-23131/2018 dated June 21, 2018 // http://kad.arbitr.ru/. 
5. Scientific and Practical Comments on the Federal Law On the Protection of Competition (Article by Article) / K.N. Aleshin, I.Yu. Artemyev, E.A. Bolshakov et al ; Editor-in-Chief I.Yu. Artemyev. 2nd edition, revised and updated. Moscow : Statut, 2016. 1024 p.

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