The board of judges of the Administrative Cassation Court within the Supreme Court satisfied the cassation appeal of NPC Ukrenergo and the NEURC in the case of the Nikopol Ferroalloy Plant on the cancellation of tariffs for transmission and dispatching in the second half of 2019 (approved by NEURC Resolutions Nos. 954 and 955 dated 7 June 2019 and No. 1411 dated 12 July 2019). The Court adopted the decision on Monday, 14 December 2020.
In particular, the board of judges concluded that the court of first instance considered the case concerning the lawsuit by the Nikopol Ferroalloy Plant with a gross violation of mandatory requirements of the procedural law.
Specifically, the court of first instance, contrary to the rules of the Code of Administrative Procedure of Ukraine, considered the case under a simplified procedure. Whereas, per Articles 12, 257, 264 of the Code of Administrative Procedure of Ukraine, cases in dispute concerning appeals against normative legal acts, such as the NEURC resolutions on approval of tariffs for transmission and dispatching, shall be considered exclusively according to the general claim procedure. While a simplified procedure can only be used in cases of minor complexity and cases for which a prompt resolution is a priority.
The Court stated that “the consideration of the case by way of a simplified claim procedure made it impossible to establish all the facts on the case and provide a proper assessment therein, in particular, with regard to the procedure of the NEURC reviewing, discussing and adopting of resolutions in dispute, as well as the justification of the tariff established for electricity transmission services”. Therefore, the board of judges of the Administrative Cassation Court returned the case for reconsideration to the Kyiv District Administrative Court.
In this regard, Ukrenergo draws attention of market participants that in view of the decision made by the board of judges of the Administrative Cassation Court within the Supreme Court on 14 December 2020 on Case No. 640/12695/19 there are currently no grounds for the refund of payments for transmission and dispatching services under NEURC Resolutions Nos. 954, 955 dated 7 June 2019 and No. 1411 dated 12 July 2019, or for the recalculation of such payments.
Ukrenergo urges all market participants to fulfill in good faith their obligations of payment for the services provided by Ukrenergo for electricity transmission and dispatching (operational and technological) control and welcomes all stakeholders to join in finding and discussing all possible solutions that will remove a negative impact on the financial standing of the system operator and therefore prevent any further complications in the operation of the electricity market.
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