Areas of Concern in Exercising the Reliable Heat Supply Management Powers by Local Self-Government Authorities

The Law On Heat Supply grants local governments the authority to organize reliable heat supply. The problematic aspect of the implementation of this authority is, first of all, the fact that currently there is no uniform approach to the implementation of the authority of local governments to organize reliable heat supply in the legislation and law enforcement practice. The legislator does not specify what actions should be taken by the local government to ensure reliable heat supply. This article suggests to consider, on the basis of examples from court practice, the ways of implementing the local government’s authority to organize reliable heat supply, which are not mentioned in the Law On Heat Supply: the practice of the local government to subsidize heat supply organizations and heat consumers; the practice of the local government to establish legal entities, commercial organizations, which are engaged in activities on heat supply to consumers, and to exercise subsequent control; the practice of withdrawing and granting the status of a unified heat supply organization without observing the procedure established by law with reference to a man-made emergency. The identified problems lead to the conclusion that it is necessary to improve the current regulation. Formalization of the ways of implementation of the local government’s authority to organize reliable heat supply will significantly reduce the use of controversial practices of implementation of this authority by local governments, will make it impossible for law enforcers to interpret Article 6 of the Law On Heat Supply in a broad way, as well as to exclude the interference of the local government in the economic activities of heat supply organizations.

All conclusions drawn by the author in this article are the subjective opinion of the author and do not reflect the official position of her employer.

Keywords

energy law, legal regulation in the heat supply area, promotion of reliability of heat supply, heat supply organizations

Received

14.05.2023

Publication date

12.10.2023

Number of characters

28561

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GOST	Koropets N. Areas of Concern in Exercising the Reliable Heat Supply Management Powers by Local Self-Government Authorities // Energy law forum – 2023. – Issue 3 C. 61-69 [Electronic resource]. URL: https://mlcjournal.ru/S231243500028025-5-1 (circulation date: 19.05.2024). DOI: 10.61525/S231243500027976-1
MLA	Koropets, Nadezhda V "Areas of Concern in Exercising the Reliable Heat Supply Management Powers by Local Self-Government Authorities." Energy law forum 3 (2023):61-69. DOI: 10.61525/S231243500027976-1
APA	Koropets N. (2023). Areas of Concern in Exercising the Reliable Heat Supply Management Powers by Local Self-Government Authorities. Energy law forum (3), pp.61-69 DOI: 10.61525/S231243500027976-1

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1	According to Federal Law No. 190-FZ On Heat Supply dated July 27, 2010, [1] (hereinafter referred to as the Law On Heat Supply), the authority of local governments includes the organization of reliable heat supply to consumers in the territories of settlements and urban districts. The relevance of studying the issues of legal regulation of local governments’ authority in heat supply is determined by the fact that currently there are no unified approaches to the implementation of local governments’ authority to organize reliable heat supply [2].
2	The Law does not have a strictly defined conceptual framework and does not specify measures for the implementation of the authority to organize reliable heat supply, which leads to controversial situations in law enforcement practice.
3	Issues of legal support of effective public administration in heat supply are the subject of a number of scientific studies [3]. However, the issue of implementation of local governments’ authority to organize reliable heat supply has not yet been paid sufficient attention to.
4	In accordance with Article 14 of Federal Law No. 131-FZ On the General Principles of Organization of Local Government in the Russian Federation dated October 6, 2003 [4] (hereinafter referred to as Law No. 131-FZ) [4], the issues of local significance of urban and rural settlements include the organization within the boundaries of the settlement of electric power, heat, gas and water supply to the population, wastewater disposal, fuel supply to the population within the limits of authority established by the laws of the Russian Federation.
5	Article 6 of the Law On Heat Supply defines the authority of local governments in heat supply and contains an open list of powers. The powers listed in this article can be conditionally divided into the following groups: (1) organization of promotion of reliable heat supply to consumers; (2) coordination of interaction between heat supply organizations and consumers; (3) exercise of authority in price (tariff) regulation in heat supply; (4) organizational powers: preparation for the heating season, shutdown for maintenance and decommissioning of heat sources and heat networks, approval of heat supply schemes, granting the status of a unified heat supply organization; approval of investment programs.
6	The Law On Heat Supply does not provide a separate list of responsibilities of local governments; the responsibilities are distributed in the text of the Law and mostly correspond to the powers formalized in Article 6 of the Law On Heat Supply.
7	Clause 17 of Article 2 of the Law On Heat Supply provides the legal definition of the concept of “reliability of heat supply”, which means a characteristic of the state of the heat supply system that ensures the quality and safety of heat supply.
8	Reliability of heat supply is the responsibility of the heat supply organization. Based on subclauses 7 and 8 of clause 5 of Article 20 of the Law On Heat Supply, the heat supply organization shall ensure accident-free operation of heat supply facilities; ensure reliable heat supply to consumers [5]. The obligation to ensure reliable heat supply is imposed on the heat supply organization by the heat supply contract concluded with the consumer. According to subclause 6 of Part 8 of Article 15 of the Law On Heat Supply, the obligation of the heat supply organization to ensure the reliability of heat supply in accordance with the requirements of technical regulations and the rules of the heat supply organization approved by the Government of the Russian Federation, as well as the corresponding obligations of the heat consumer constitute an essential condition of the heat supply contract. The quality parameters of heat supply to be provided by the heat supply organization are strictly regulated [6] and due to the freedom of contract, the parties may additionally agree on higher quality standards. Failure to comply with the obligation to ensure the reliability of heat supply entails civil and administrative liability for the heat supply organization. Based on the above, it can be said that “promoting the reliability of heat supply” is a clear legal category and the legislator pays attention to regulating it. It should also be noted that the heat supply contract is a binding and non-gratuitous contract, therefore, heat supply organizations provide heat supply to consumers as part of commercial activities.
9	At the same time, the courts see a public interest in promoting the reliability of heat supply, because the violation of heat supply leads to the violation of public interests of a municipality and the public at large - the population of the municipality, which includes socially unprotected categories of citizens who have the right to receive quality and timely services in the form of heat supply, as well as socially significant facilities, which, if disconnected from housing and communal services, will cause irreversible consequences [7].
10	It is the responsibility of the state represented by authorized public bodies, in particular, local governments, to promote the public interest. It seems that in order to protect the public interest, the legislator has granted local governments the authority to organize reliable heat supply. It is obvious that organizing reliable heat supply and promoting the reliability of heat supply are not identical and local governments cannot and should not replace heat supply organizations. Let us turn to the semantics of the word “organization” in an attempt to understand the legislator’s intention. An organization is a set of measures or actions aimed at obtaining optimal conditions for achieving any result, promoting maximum efficiency, productivity, quality of services provided and usually accompanied by reducing the cost of means to achieve this goal [8].

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1. Federal Law No. 190-FZ On Heat Supply dated July 27, 2010// Collection of Laws of the Russian Federation. 2010, No. 31, Art. 4159.

2. Report on the Results of the Expert and Analytical Activities “Analysis of Factors Influencing the Increase of Expenditure Obligations of the Budgets of the Constituent Entities of the Russian Federation and Municipalities Arising in the Performance of Certain Powers in the Joint Jurisdiction of the Russian Federation and the Constituent Entities of the Russian Federation, Powers in the Jurisdiction of the Constituent Entities of the Russian Federation and Powers in Local Issues in the Field of Heat Supply in 2020-2021”. URL: https://ach.gov.ru.

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4. Federal Law No. 131-FZ On the General Principles of Organization of Local Government in the Russian Federation dated October 6, 2003 // Collection of Laws of the Russian Federation. 2003, No. 40, Art. 3822.

5. Resolution of the Volgo-Vyatsky District Commercial Court No. Ф01-1515/2017 of May 19, 2017, in case No. A29-1426/2016 // https://ras.arbitr.ru/.

6. Resolution of the Government of the Russian Federation No. 808 “On the Organization of Heat Supply in the Russian Federation and on Amendments to Certain Acts of the Government of the Russian Federation” dated August 8, 2012 // Collection of Laws of the Russian Federation. 2012, No. 34, Art. 4734.

7. Ruling of the Judicial Board for Economic Disputes of the Supreme Court of the Russian Federation No. 301-ЭС18-24404 of October 6, 2020, in case No. A31-8392/2017 // https://ras.arbitr.ru/.

8. Big Russian Encyclopedic Dictionary (BRES) – New Universal Reference Edition. – Moscow: AST-Astrel. – 2005.

9. Zenkov A.P., Novichenko O.V., Volokhova L.N. On the Problems of Local Government and the Role of the Representative Body at the Current Stage on the Example of the City of Chita Urban District // State Power and Local Government. 2010. No. 12.

10. Federal Law No. 162-FZ On Standardization in the Russian Federation of June 29, 2015 // Collection of Laws of the Russian Federation, July 6, 2015, No. 27, Art. 3953.

11. Mutaliyeva L.S., Menshikov A.V., Illo D.A. Competence of Emergencies and Fire Prevention Commissions // Administrative Law and Procedure. 2022. No. 8. P. 67-70.