How to recognize heating networks as ownerless. Who is the head in this house? How is the problem of abandoned networks solved? We determine the list of objects to be transferred

Those consumers whose electricity supply is carried out using electrical facilities should puzzle themselves with this question. network economy located in municipal property. However, this can also be applied to other electrical grid facilities that are in state (federal, regional) ownership. And it (the question) should definitely be raised at a time that threatens the cessation (or deterioration) of power supply, when the reason for this is explained (no matter who) by the abandonment by municipal organizations (enterprises, institutions) of power grid facilities belonging to them.

This is exactly how the consumer who contacted me explained the reason for the upcoming power outage. legal assistance. He was promised a power cut only because cable line, previously owned by the municipal unitary enterprise and from which electricity is supplied, allegedly became ownerless. It should also be noted that in the description problematic situation, in which that consumer found himself, there were still many dubious circumstances, as absurd as “mismanagement municipal facilities" But in view of the narrow subject matter of the problem being covered and this article, I will leave them (the circumstances) without attention.

Exactly the same reason was given to me by residents of one village, whose electricity supply was provided from a transformer substation and networks owned by municipal property. The electricity company stopped them. Maintenance due to termination of funding by the municipality due to lack of Money V local budget. Since the municipality has lost the opportunity to pay for the maintenance of electrical grid facilities, then (according to the representative of the municipality who explained the situation to residents) the municipality is abandoning these facilities. Having become “ownerless”, these objects can no longer be serviced electric grid company and, therefore, residents should, according to the municipality representative, prepare for a power outage.

Having studied in detail the circumstances of both conflicting, and essentially absurd situations, I gave consumers the only recommendation suitable for them to submit appropriate statements to the prosecutor's office. Main legal basis for such statements is the fundamental impossibility of “transforming” municipal power grid facilities into “ownerless” ones.

What municipal power grid facilities by definition, they cannot become ownerless, as follows from the analysis of Article 236 of the Civil Code of the Russian Federation. In accordance with Part 1 of this article, renounce the ownership right to owned property Only citizens or legal entities can. Consequently, neither municipalities nor subjects are vested with this right Russian Federation, nor the Russian Federation itself.

Municipal organizations (enterprises, institutions), although they are legal entities, but having objects electric grid facilities only on the right economic management(Article 294 of the Civil Code of the Russian Federation), or operational management(Article 296 of the Civil Code of the Russian Federation) are deprived of the right to independently dispose of this property, that is, to abandon it. This right belongs exclusively to the founders of municipal organizations - bodies local government(municipalities).

The absurdity, even the curiosity, of the situation lies in the fact that it is the local government bodies (municipalities) that, according to Article 225 of the Civil Code of the Russian Federation, are entrusted with working with ownerless objects. Therefore, local government bodies will not be able to “abandon” municipal power grid facilities (as well as any other municipal property) only because these bodies would again have to deal with ownerless things.

I will not go into the finer details of the alienation procedure. municipal property(there is a special one for this legislative regulation), since in the situations described above there is not even the appearance of any orderly alienation of municipal electrical grid facilities. In such situations, only one clear conclusion is possible: officials, serving in municipal organizations and declaring the abandonment of municipal electrical grid facilities commit official misconduct. And this is already enough for appropriate appeals to the prosecutor’s office regarding the facts of abuses being committed and for bringing to justice (even criminal) all persons involved in these violations.

HIGH ARBITRATION COURT OF THE RUSSIAN FEDERATION

In the name of the Russian Federation

The operative part of the decision was announced on October 21, 2013
The full text of the decision was made on October 28, 2013

The Supreme Arbitration Court of the Russian Federation composed of presiding judge S.V. Samuylov, judges L.G. Vorontsova, G.G. Kireikova. and when keeping the minutes of the court session by assistant judge Suleymanov M.B. reviewed on 10/21/2013 in the open court hearing open statement joint stock company"Nizhny Novgorod sales company" (Nizhny Novgorod Nizhny Novgorod, TIN 5260148520, OGRN 1055238038316) on invalidating clause 55.1 Guidelines for calculating regulated tariffs and prices for electric (heat) energy in the retail (consumer) market, approved by order of the Federal Tariff Service dated 06.08.2004 N 20-e/2 (hereinafter referred to as the Guidelines).
Representatives of the parties took part in the court hearing:
from the open joint-stock company "Nizhny Novgorod Sales Company" (hereinafter - JSC "NSK") - Kotin V.P. (power of attorney dated December 24, 2012 N 52AA1319253);
from the Federal Tariff Service (hereinafter - FST of Russia): Bednyakov D.I. (power of attorney dated April 17, 2012 N DB/13), Kukushkin I.P. (power of attorney dated April 15, 2013 N 8/13), Stepanenko I.G. (power of attorney dated October 24, 2012 N 12/13);
from an open joint stock company" Russian networks"(hereinafter referred to as Rosseti OJSC) - Malikov A.V. (power of attorney dated 06.08.2013 N 158-13);
from the Ministry of Justice of the Russian Federation (hereinafter - the Ministry of Justice of Russia) - Bashilova V.E. (power of attorney dated December 27, 2012 N 01-289-AK).

The court found:

OJSC "NSK" appealed to the Supreme Arbitration Court of the Russian Federation with an application to invalidate clause 55.1 of the Methodological Instructions, since it believed that the FTS of Russia exceeded its powers in establishing this norm, and the norm itself does not comply with the normative legal acts, having a large legal force regulating legal relations regarding payment of losses in electrical networks (hereinafter referred to as the electrical networks): Articles 28, 32, 38 of the Federal Law of March 26, 2003 N 35-FZ “On Electric Power Industry” (hereinafter referred to as the Law on Electric Power Industry); Article 157 of the Housing Code of the Russian Federation (hereinafter referred to as the Housing Code); paragraphs 50, 51 of the Rules for non-discriminatory access to transmission services electrical energy and the provision of these services, approved by Decree of the Government of the Russian Federation of December 27, 2004 N 861 (hereinafter referred to as Rules N 861); paragraphs 4, 185, 186, 189, 190 of the Basic Operating Provisions retail markets electrical energy approved by Decree of the Government of the Russian Federation dated 05/04/2012 N 442 (hereinafter referred to as the Basic Provisions).
In addition, according to the applicant, the contested norm violates his rights in entrepreneurial activity as a supplier of last resort and as a consumer.
Paragraph 55.1 of the Methodological Instructions establishes that “if the costs of operating ownerless electric grid facilities (hereinafter referred to as ownerless networks) are not taken into account when setting tariffs, the consumer of electrical energy connected to ownerless networks pays for losses of electrical energy in these networks in proportion to his actual power consumption."
The applicant indicates that the powers of the FTS of Russia to adopt normative legal acts are established by clauses 5.2, 5.2.5 of the Regulations on the Federal Tariff Service, approved by Decree of the Government of the Russian Federation of June 30, 2004 N 332 (hereinafter referred to as the Regulations on the FTS of Russia), and are limited to issues legal regulation which are carried out exclusively by federal constitutional laws, federal laws, regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation. By virtue of paragraph 3 of Article 26 and paragraph 3 of Article 32 of the Electricity Law, the procedure for determining the volume and payment for losses of electrical energy (hereinafter referred to as electricity) is established by the Government of the Russian Federation. At the same time, the FTS of Russia, in paragraph 55.1 of the Methodological Instructions, resolved precisely these issues, that is, it went beyond its competence.
In the statement, NSC OJSC refers to the fact that the Law on Electric Power Industry (clause 4 of Article 28, clause 3 of Article 32, second paragraph of clause 1 of Article 38) defined objects that do not have an owner, the owner of which is unknown, or the ownership of which the owner refused as ownerless network facilities (ownerless networks). The same norms of law, as well as decrees of the Government of the Russian Federation (clauses 50, 51 of Rules No. 861 and clauses 4, 185, 186, 189, 190 of the Basic Provisions) exhaustively define the persons obligated to pay for losses in electrical networks (including ownerless ones) . Electricity consumers are not included in this number. At the same time, paragraph 55.1 of the Methodological Instructions unreasonably expands the circle of persons and imposes on consumers additional responsibilities to pay for energy they do not receive.
JSC NSK believes that paragraph 55.1 of the Methodological Instructions is universal for all consumers. At the same time, ownerless networks can also be connected residential buildings. In this case, electricity consumers and electricity utility providers, among other things, must pay for losses in these networks, which is contrary to Article 157 of the Housing Code.
According to OJSC NSK, the unlawful exemption of network organizations from paying for electricity lost in the networks they operate, and the imposition of this obligation on the electricity consumer, entails losses for the applicant as a supplier of last resort in the form of the cost of lost electricity. At the same time, the guaranteeing supplier cannot in any way compensate for these losses, since it is not related to the power grid facilities and does not have the right to recover the cost of lost ownerless networks electricity from consumers, especially from the population. In addition, OJSC NSK declared a violation of its rights as a consumer of electricity, which, contrary to the provisions of the Law on Electric Power Industry, was assigned by the FTS of Russia additional obligations to pay for electricity losses.
The FTS of Russia, based on paragraph 2 of Article 21, paragraph 3 of Article 26 of the Law on Electric Power Industry, paragraphs 5, 6 of Rules No. 861, paragraph 1 of the Regulations on the FTS of Russia, indicates in the review that the methodology for determining and the procedure for compensating losses in electrical networks (hereinafter - electrical networks) are approved by the Government of the Russian Federation or federal bodies authorized by them executive power. Electricity consumers connected through ownerless power grid facilities pay for electricity transmission services in accordance with guidelines approved by the Federal Tariff Service of Russia.
According to the FTS of Russia, clause 55.1 of the Methodological Instructions does not contradict regulations, having great legal force. Electricity legislation assumes that all costs for the supply of electricity must be paid. Ultimately, the standard losses are paid by electricity consumers as part of the electricity payment, while the actual losses are paid by the network organizations. At the same time, grid organizations are obliged to pay only for the amount of electricity that is lost in the power grid facilities that legally belong to them. Tariff regulation of the activities of network organizations is based on this. Information about such networks is reflected in accounting documents, which makes it possible to reliably determine the volume and cost of standard losses and set a tariff for the services of network organizations. Losses in other ownerless networks must be paid by end consumers.
Position of the FTS of Russia in this issue based on Article 23.1, second paragraph of paragraph 4 of Article 28, paragraph 1 of Article 38 of the Electricity Law, paragraphs 4, 35, 59, 60, 122, 185, 186 of the Basic Provisions, paragraph 51 of Rules No. 861, paragraphs 3, 81 of the Basic Principles of Pricing in region regulated prices(tariffs) in the electric power industry, approved by Decree of the Government of the Russian Federation dated December 29, 2011 N 1178 (hereinafter referred to as the Principles of Pricing).
The FTS of Russia believes that the disputed clause does not apply to the population and equivalent categories of consumers. This conclusion is based on an analysis of paragraph 4 of Article 154 and Article 157 of the Housing Code, the norms of Section VI (clauses 67 - 69) of the Pricing Fundamentals, as well as Sections VI and VIII of the Guidelines.
In addition, according to the Federal Tariff Service of Russia, the contested clause of the Methodological Instructions does not violate the applicant’s rights, since, together with other norms of legislation, it allows the supplier of last resort to receive payment for the entire volume of electricity supplied by it to the retail market. The volume of electricity lost in ownerless networks to which residential buildings are connected, the supplier of last resort has the right to recover from local governments.
By rulings dated 08/20/2013 and 09/04/2013, Rosseti OJSC was involved in the case as a third party not declaring independent requirements regarding the subject of the dispute; The Russian Ministry of Justice as an interested party.
At the court hearing, representatives of the parties supported their positions set out in the statement and response to it, respectively. OJSC Rosseti and the Ministry of Justice of Russia supported the arguments of the FTS of Russia in their reviews and at the court hearing.
After listening to the explanations of the representatives of the persons participating in the case and examining the evidence presented, the court comes to the following conclusions.
Controversial legal relations are related to the implementation government regulation prices in the electric power industry, in connection with which, by virtue of paragraph 10 of Article 23.1 of the Electricity Law, Article 29, paragraph 2 (1) of Article 34, paragraph 1 of Article 191 of the Arbitration procedural code Russian Federation, the case was considered by the Supreme Arbitration Court of the Russian Federation.
In the original version, the Guidelines were published in the printed publications "Bulletin of normative acts of federal executive authorities" dated November 1, 2004, N 44, " Russian newspaper" dated 02.11.2004, N 242, dated 30.11.2004, N 265. Subsequently, by order of the FTS of Russia dated 31.07.2007 N 138-e/6, published in printed edition"Rossiyskaya Gazeta" 08/31/2007, N 192 and registered with the Ministry of Justice of Russia on 08/20/2007 (N 10030), the Guidelines are supplemented with clause 55.1.
Legal basis economic relations in the field of electric power industry, powers of authorities state power to regulate these relations, the basic rights and obligations of electric power industry entities when carrying out activities in the electric power industry are established by the Law on Electric Power Industry. This law defines the entities obligated to pay for losses in electric networks (part 3 of paragraph 4 of Article 26, paragraph 3 of Article 32), and the right to establish a methodology for determining and the procedure for compensating for losses of electricity in electric networks is granted either to the Government of the Russian Federation or to someone authorized by it federal body executive power (clause 2 of article 21). At the same time, the procedure for determining losses in electrical networks and the procedure for paying for them are established in the rules of non-discriminatory access to electric energy transmission services (clause 3 of Article 26).
Exercising these powers, the Government of the Russian Federation, in paragraph 51 of Rules No. 861, indicated that network organizations are required to pay the cost of actual losses of electrical energy that occur in their network facilities. In paragraph 52 of Rules No. 861, in addition to network organizations, consumers of electricity transmission services are named. At the same time, consumers, as part of the tariff for electricity transmission services, pay only the regulatory (technological) losses that arise during the transmission of electricity through electrical networks, thereby compensating the network organization for the inevitable transmission costs. Regulatory losses are part of the losses paid by the network organization to electricity suppliers. Thus, established by the Government In the Russian Federation, the procedure for determining losses in electrical networks and paying for these losses corresponds to the Law on Electric Power Industry regarding the circle of persons obligated to pay for losses in electrical networks.
In paragraph 6 of Rules No. 861, the Government of the Russian Federation granted the FTS of Russia the right to determine the procedure for payment for services for the transmission of electricity by consumers of services indirectly connected to power grids, with which the FTS of Russia connects its powers to establish the procedure for determining and paying for losses in power grids. However, determining the procedure for payment for services does not allow the Federal Tariff Service of Russia to change (increase) the circle of persons obligated to pay for losses in electrical networks, determined by the Law on Electric Power Industry and regulations of the Government of the Russian Federation. In addition, the fee for electricity transmission services does not include payment for losses exceeding the standard ones.
Consequently, when adopting the controversial clause of the Methodological Instructions, the FTS of Russia exceeded its powers.
The court evaluates the applicant's arguments about the inconsistency of paragraph 55.1 of the Methodological Instructions with federal laws and regulations of the Government of the Russian Federation based on the following.
General principles of organizing economic relations and fundamentals public policy in the electric power industry are to ensure the uninterrupted and reliable functioning of the electric power industry in order to meet the demand for electricity from consumers providing proper execution its obligations to the subjects of the electric power industry; maintaining a balance of economic interests of electricity suppliers and consumers; ensuring non-discriminatory and stable conditions for business activities in the electricity sector (Article 6 of the Law on Electricity).
Consistently observing these principles, the legislation on the electric power industry obliges electricity suppliers (suppliers of last resort, energy sales and energy supply organizations) to provide consumers with the volumes of electricity they need, network organizations to provide services for the transmission of this electricity, and consumers to pay for the received electricity and services related to the energy supply process . The balance of interests of the parties is achieved by such an organization of mutual settlements in which the electricity supplier receives full payment for the electricity supplied to the retail market, the network organization receives payment for electricity transmission services, and the consumer receives a high-quality energy resource and promptly pays for the amount of electricity actually accepted by him and services related to the energy supply process .
Electricity is transferred to the consumer at the point of delivery, which is located at the border balance sheet power receiving devices or at the point of connection of the power receiving device (electric power facility). This point simultaneously determines the place of fulfillment of obligations both under energy supply contracts (purchase and sale of electricity) and under contracts for the provision of services for its transmission and is used to determine the volume mutual obligations subjects of retail markets by specified agreements(clause 2 of the Basic Provisions, clause 2 of Rules No. 861).
As follows from paragraph 5 of Rules No. 861, when indirectly connecting through ownerless networks to the networks of a network organization, the point of delivery is also located at the point of connection of the power receiving device of the electricity consumer to the ownerless network. An agreement on the provision of electricity transmission services in relation to such a consumer is concluded with a network organization that has a connection to ownerless networks to which the power receiving device of this consumer is directly connected.
Legislation obliges the network organization to transfer electricity to the end consumer to the point of delivery, both independently and through third parties (clause 2 of article 26 of the Electricity Law, clause 8 of Rules No. 861). At the same time, responsibility for the reliability and quality of electricity supply to consumers whose power receiving installations are connected to ownerless networks is assigned by law to the organizations to whose power networks such facilities are connected (clause 1 of Article 38 of the Electricity Law).
In the process of transmitting electricity, part of it is lost in the power grid, and therefore, paragraph 4 of Article 26 and paragraph 3 of Article 32 of the Electricity Law (as well as paragraph 4 of the Basic Provisions) define persons obligated to pay for the amount of electricity losses not taken into account in prices for electrical energy. These include grid organizations and other owners of electric grid facilities, which include in due course power receiving devices or power generation facilities are technologically connected. These persons pay for electricity lost in networks that belong to them by right of ownership or on another legal basis.
In paragraphs 50, 51 of Rules No. 861 it is determined that network organizations are obliged to pay the cost of actual losses of electrical energy that occurred in their network facilities, minus the cost of losses included in electricity prices for wholesale market. The size of these losses is determined as the difference between the volume of electricity entering the power grid and the volume useful vacation(that is, the volumes consumed by power-receiving devices connected to this network, as well as transferred to other network organizations).
From paragraphs 185, 186, 189, 190 of the Basic Provisions it follows that the person obliged to pay for actual losses in networks is the network organization in whose power grid facilities they occurred. At the same time, reporting of network organizations to electricity suppliers and a mechanism are provided for, allowing the latter to redistribute the unaccounted volume of losses among network organizations in such a way that, as a result, suppliers must receive payment for the entire volume of electricity supplied to the retail market.
A network organization may own network facilities on the basis established by federal law (clause 2 of Rules No. 861). These, of course, include the right of ownership and the right to lease electrical networks. In addition, from the explanations of representatives of the Federal Tariff Service of Russia and OJSC Rosseti, it follows that, as legal ownership, in practice, a network organization is allowed to use those ownerless networks that are registered by local government bodies according to the rules of part one of paragraph 3 of Article 225 Civil Code Russian Federation and transferred to the network organization for management. In such cases, state price regulation authorities include the costs of network organizations for the operation of ownerless networks and regulatory losses in them in the tariff for electricity transmission services.
At the same time, the Electricity Law (clause 4 of Article 28) places the burden of maintaining ownerless networks on the organizations that operate them. The law guarantees reimbursement of these costs by taking into account, when setting prices (tariffs) for such organizations, all economic reasonable expenses related to the operation of such facilities. As a rule, the operation of an object is understood as the stage of its functioning at which its quality is realized, maintained and restored. Operation of an electrical grid facility includes its intended use, maintenance, maintenance and repair.
Thus, ownerless networks are part of the electric grid system, through which network organizations provide electricity transmission services and receive appropriate payment. The transmission of electricity by a network organization through ownerless electrical networks is a legal basis for the use of this property.
Due to the above, the legal norms referred to by the FTS of Russia and OJSC Rosseti do not confirm their position.
Standard losses in electric networks are inevitable costs of the electricity transmission process, due to which they are paid by the end consumers of these services to network organizations in the tariff for electricity transmission services.
According to paragraph 3 of Rules No. 861, non-discriminatory access to electric energy transmission services provides for ensuring equal conditions for the provision specified services to their consumers, regardless of the organizational and legal form and legal relations with the person providing these services.
It follows from paragraph 81 of the Pricing Fundamentals that unified boiler tariffs for electricity transmission services are established for end consumers. At the same time, no differentiation of tariffs is provided depending on the length of networks up to specific consumer or persons to territorial networks which the consumer is connected. Expenses for paying regulatory technological losses are taken into account in tariffs for electricity transmission services and are thereby distributed evenly among all electricity consumers.
In turn, network organizations pay electricity suppliers for actual losses in power grids, which also include standard losses. At the same time, the magnitude excess losses depends on economic activity the grid organizations themselves and other owners of power grids.
By complying with these rules, a balance is achieved between the economic interests of electricity suppliers, network organizations and consumers (clause 1 of Article 6 of the Electricity Law).
Neither the Electricity Law nor the regulations of the Government of the Russian Federation require the electricity consumer to pay for losses in ownerless networks. In addition, the consumer (unlike professional network organizations and other network owners) is deprived of the opportunity to effectively control power grid facilities and influence the amount of actual losses, especially if several consumers are connected to an ownerless network.
Essentially, paragraph 55.1 of the Methodological Instructions unlawfully established a legal norm according to which one person, pursuing his economic interest, operates the power grid and receives benefits from it, while the costs of operating the same network are borne by another person.
The application of paragraph 55.1 of the Guidelines means that consumers whose power receiving devices are indirectly connected through ownerless networks pay for standard losses of electricity as part of the boiler tariff on the same basis as other consumers, and in addition, additionally pay for losses in ownerless networks. Thus, the cost of electricity transmission services for these consumers increases and they are placed in a discriminatory position in relation to others.
Imposing on electricity consumers the obligation to pay for excess losses arising in ownerless networks(which is not excluded by clause 55.1 of the Guidelines) entails for the latter an additional burden of paying for electricity that they do not receive. Such legal regulation contradicts both the norms of the legislation on the electric power industry (clauses 28, 28 of the Basic Provisions) and the norms civil legislation(clause 1 of article 539, clause 1 of article 544 of the Civil Code of the Russian Federation), obliging the subscriber (consumer, buyer) to pay for the amount of energy he has accepted.
In this regard, the court considers that paragraph 55.1 of the Guidelines violates the rights of end consumers and contradicts specified standards Law on the Electricity Industry (including the principle of non-discriminatory conditions for business activities in the electricity sector), Rules No. 861 and the Basic Provisions.
The assertion of the Russian Federal Tariff Service that the contested norm should be applied in cases where the cost of electricity transmission services through ownerless networks was not included in the tariff is unfounded. The initiator of setting the price (tariff) is the person carrying out the regulated activity, who must confirm both the fact of carrying out this activity and the amount of costs necessary for its implementation. In this case, it is allowed to own objects used to carry out regulated activity, not only on the right of ownership, but also on other legal grounds (clause 12, subclauses 8, 13 of clause 17 of the Rules for state regulation (revision, application) of prices (tariffs) in the electric power industry, approved by Decree of the Government of the Russian Federation dated December 29, 2011 N 1178) . Due to its professional activity it is network organizations that have information about the presence of ownerless networks, have organizational and technical capabilities to identify them, determine technical characteristics and the cost of their maintenance.
Thus, network organizations are not deprived of the opportunity to apply to the state price regulation body to exercise the right granted by paragraph 4 of Article 28 of the Electricity Law. The inaction of the network organization should not be the basis for imposing the obligation to pay for losses on the electricity consumer. In addition, network organizations and, as a consequence, government price regulatory authorities can arbitrarily select ownerless networks, including in the tariff the costs of operating some ownerless power networks and not others, which, in combination with paragraph 55.1 of the Methodological Guidelines, leads to discrimination against service consumers.
The arguments of the Federal Tariff Service of Russia that the fate of ownerless networks should initially be determined in the manner prescribed by Article 225 of the Civil Code of the Russian Federation are rejected, since this argument does not confirm the legality of imposing the obligation to pay for losses on electricity consumers. Moreover, even if this order is observed legal grounds There are no provisions to force network organizations to accept ownerless networks into operation.
Grid organizations are obliged to transmit electricity to the end consumer; therefore, they have an economic interest in using ownerless networks and in determining their fate (including through proactive contact with local governments if such a need exists). The legislation not only does not prohibit the use of ownerless property by anyone, but also guarantees the subsequent acquisition of ownership rights to this property (Article 234 of the Civil Code of the Russian Federation). In addition, uncertainty about the owner of electric grid facilities cannot in itself be grounds for recognizing it as ownerless.
The reference by the Russian Federal Tariff Service to laws regulating energy supply with other resources is not an argument confirming the legality of the contested legal norm. Neither the norms of the Federal Law of July 27, 2010 N 190-FZ “On Heat Supply” (clause 4 of Article 8, clause 5 of Article 13, clauses 4, 11 of Article 15), nor the norms of the Federal Law of December 7, 2011 N 416-FZ “On Water Supply and water disposal" (clauses 5, 6 of Article 8, clause 6 of Article 12) do not oblige the consumer of energy resources to pay for losses in ownerless networks.
From paragraph 15 of Article 161 of the Housing Code it follows that according to general rule supplying organization utility resources necessary to provide utilities, is responsible for the supply of specified resources of proper quality to the borders common property in an apartment building and the boundaries of the external networks of engineering and technical support for this building.
In accordance with paragraph 1 of Article 157 of the Housing Code, the amount of payment for utility services is calculated based on the volume of consumed utilities, determined by the readings of metering devices, and in their absence, based on those approved in in the prescribed manner utility consumption standards.
Legal relations to determine the volume of utilities to be paid in residential buildings, are also governed by the Rules binding upon conclusion managing organization or a homeowners association or housing cooperative or other specialized consumer cooperative agreements with resource supply organizations, approved by Decree of the Government of the Russian Federation dated February 14, 2012 N 124 (clauses 18 "a" and 21), Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings approved by Decree of the Government of the Russian Federation dated May 6, 2011 N 354 (clauses 13 and 80).
Systemic interpretation of these legal norms allows us to conclude that providers and consumers of electrical utility services are not required to pay for electricity losses in ownerless networks. Thus, the contested paragraph of the Methodological Instructions contradicts the norms of housing legislation.
Contrary to the opinion of the Federal Tariff Service of Russia, paragraph 55.1 of the Methodological Instructions does not contain exceptions for any consumers of electricity, which gives grounds to conclude that it is applicable to the population and equivalent consumers.
Clause 144 of the Basic Provisions, which was referred to in the response by the FTS of Russia and the Ministry of Justice of Russia, has no relation to the subject of this case.
Statement of JSC "NSK" that the application of the contested norm violates its rights and legitimate interests in the field of energy supply business and does not allow the guaranteeing supplier to receive in full the payment for electricity supplied to the retail market has not been refuted by representatives of the Federal Tariff Service of Russia and OJSC Rosseti.
Legal regulation, established by law on the electric power industry and decrees of the Government of the Russian Federation, with reasonable and conscientious behavior of electricity supply entities should not entail losses for them. In this regard, the argument of the FTS of Russia that the applicant is not deprived of the opportunity to recover from municipalities losses caused by losses of electricity in ownerless networks.
Other arguments of the persons participating in the case are not significant for resolving the dispute on the merits.
Based on the foregoing, the court comes to the conclusion that paragraph 55.1 of the Methodological Instructions contradicts the above-mentioned regulatory legal acts that have greater legal force.
In accordance with paragraph 5 of Article 195 of the Arbitration Procedural Code of the Russian Federation, a normative legal act or its individual provisions, recognized by the arbitration court as invalid, are not subject to application from the moment of entry into force legal force court decisions and must be brought by the body or person that adopted the contested act into compliance with the law or other regulatory legal act, having great legal force.
The applicant's legal expenses for payment state duty in accordance with Article 110 of the Arbitration Procedural Code of the Russian Federation are referred to the FTS of Russia.
Taking into account the above and guided by Articles 167, 170, 176, 194, 195 of the Arbitration Procedural Code of the Russian Federation, the Supreme Arbitration Court of the Russian Federation

recognize clause 55.1 of the Guidelines for calculating regulated tariffs and prices for electric (heat) energy in the retail (consumer) market, approved by order of the Federal Tariff Service dated 06.08.2004 N 20-e/2, which does not comply with regulatory legal acts that have a large legal basis strength: Federal law dated March 26, 2003 N 35-FZ “On Electric Power Industry”; Housing Code Russian Federation; Rules for non-discriminatory access to electric energy transmission services and the provision of these services, approved by resolution Government of the Russian Federation dated December 27, 2004 N 861; Basic provisions for the functioning of retail electricity markets, approved by Decree of the Government of the Russian Federation dated May 4, 2012 N 442.
To recover from the Federal Tariff Service in favor of the open joint-stock company "Nizhny Novgorod Sales Company" court expenses in the amount of 2000 rubles.
The decision may be reviewed by way of supervision by the Supreme Arbitration Court of the Russian Federation upon an application submitted within three months from the date of its entry into legal force.

Presiding Judge
S.V.SAMUILOV

Judge
L.G.VORONTSOVA

Judge
G.G.KIREIKOVA

In accordance with paragraph 1 of Art. 225 of the Civil Code, ownerless is a thing that does not have an owner or the owner of which is unknown, or, unless otherwise provided by law, the owner of which has renounced the right of ownership. In Russia there are a lot of unaccounted for and simply abandoned electrical networks. They work at the limit of their capabilities, and there is no one to repair and maintain these substations. Unattended networks are a source of accidents, one of the reasons for the decline in the quality of power supply and serious losses of electricity. According to experts, to solve the problem it will be necessary comprehensive actions both at the federal and regional levels.

Answered our questions regarding the consolidation of electric grid assets in the area of ​​presence of IDGC of Urals, OJSC Head of the Public Relations Department of IDGC of the Urals Dmitry Tyukhtin.

– The “patchwork” of the network is a problem for the entire distribution network complex of the country; what measures are being taken to create a single network space in IDGC of the Urals?

– The company has developed a long-term target program to create a unified network space. It is designed until 2015. It should be clearly understood that the consolidation of the grid complex is not just a desire of IDGC of Urals to increase its share of presence in the utility market. This is a task that currently is an acute challenge for all distribution network companies that decide strategically important question to improve the reliability of the country's network complex.

And the existing “patchwork” in low-voltage networks is the main negative factor influencing her.

In total, there are more than 2 thousand territorial network organizations (TGOs) operating in Russian regions. There is no such number of small TSOs anywhere in practice. developed countries. It is logical to assume that the consolidation of electric grid assets at the level of financially stable and socially responsible owners makes it possible to increase the reliability and controllability of distribution networks, minimize operating costs, and more clearly formulate plans for the development of the electric grid infrastructure.

Currently, in the area of ​​responsibility of IDGC of the Urals, there are 297 territorial grid organizations (TGOs) that own distribution networks low voltage class, of which only 30 are large.

– How does the existing diversity of owners, as well as the presence of abandoned energy facilities, affect reliable and high-quality power supply to consumers?

– Each power grid facility must find an effective owner. It's logical. No one benefits from network fragmentation. First of all, it is convenient for the consumer when he can present all his claims to one organization, and not look for who owns that small “patch” of the network due to which the lights periodically go out. The authorities are also necessary one-stop center responsibility – a company you can contact for reliable and high-quality energy supply to the territory. A company that can quickly transfer mobile teams, all-terrain vehicles, “light towers”, diesel generators and mobile substations to areas de-energized by the elements. A company that has the necessary technical, financial resource and, without waiting for the allocation of money, will begin large-scale work to restore power supply.

– What can be said about the integrity of TSO?

– Here you need to evaluate the level of organization of operation of the network complex that is their property, how much money is invested in reliability, whether qualified personnel. By the way, the staff is a separate topic of conversation. Eat vivid examples, when IDGC of the Urals leases networks that were previously operated by TSO, along with the staff, so that people do not lose their jobs. Before starting work, company specialists conduct a knowledge test key rules occupational safety and network operation for these people. Their level leaves much to be desired.

Monopolization of the network complex in the hands of reliable owners – necessary process. But it is in the hands of reliable, socially responsible owners.

During 2011, IDGC of Urals significantly increased its presence in the utility electric power market. In 2011, five new lease agreements for electrical grid property were concluded with municipalities and various departments. In total, thirty lease agreements with a service volume of more than 34 thousand conventional units were concluded on the territory of IDGC of the Urals, OJSC. During 2011, about 3.3 thousand conventional units of the electric grid were acquired under twenty-two contracts. Again, if you operate physical quantities– this is more than 850 kilometers of power lines and transformer substations with an installed capacity of more than 124 thousand kVA.

Also, along with the network complex owned by IDGC of the Urals, and networks of other owners in Sverdlovsk, Chelyabinsk regions And Perm region There are from 2 to 5 thousand conventional units of ownerless electric grid facilities. IN physical expression it's about 1000 kilometers electrical networks.

– Is it possible to take these “orphan kilometers” onto the company’s balance sheet?

– Under the current legislation, the capabilities of IDGC of Urals, OJSC to accept ownerless objects are limited. It is difficult to accept ownerless networks on the company’s balance sheet, since acquiring rights to ownerless property without the participation of municipal authorities is impossible. To solve this problem, the municipality must first accept ownerless objects on its balance sheet, and then sell or lease them.

In a relationship of this property There is a strict acquisition procedure established by the Civil Code of the Russian Federation: ownerless real estate is accepted for registration by the body carrying out state registration of rights, upon application from the local government body in whose territory it is located. This body, which carries out the registration of ownerless immovable objects, is federal Service state registration, cadastre and cartography. After a year has passed from the date of filing the application, the municipality has the right to go to court with a demand for recognition of the right of municipal ownership of this property if its owner does not show up. After this right will be registered, the local government body will be able to sell the property through an auction or competition for the right to conclude a lease agreement.

In 2011, 230 million rubles were allocated to consolidate power grid assets. The main problem of acquiring electrical grid property is that currently municipalities do not have formalized properly property rights, and the budgets do not include funds for state registration of rights. As municipalities are ready to sell or lease electric grid facilities necessary funds IDGC of Urals OJSC will be used to purchase them.

The implementation of the strategy to create a unified electrical grid space in the area of ​​responsibility of IDGC of the Urals is carried out mainly through the conclusion of lease agreements and acquisition of ownership electrical grid complexes, as well as the acceptance into operation of ownerless electrical grid facilities located on the territory of municipalities.

Today we will talk about the distribution of duties and responsibilities for maintaining such networks.

Thermal utility network

Gas supply networks

Since currently current legislation standards for keeping ownerless animals have not been established gas supply engineering networks, then, taking into account the obligation of the RSO to supply gas of proper quality, it is possible to apply the position according to which the maintenance of such engineering networks is carried out by persons operating ownerless facilities for the purposes of entrepreneurial activity.

Arbitrage practice

The fact that the problem of ownerless utility networks is always relevant is evidenced by abundant judicial practice.

A prosecutor's audit related to the issue of mismanagement of utility networks revealed violations of the requirements of legislation in the housing and communal services sector in the activities of the local government body: it did not take measures to register the heating network as a ownerless object real estate. Therefore, the court decided to impose on the local government body the obligation to determine the distribution network and apply to the registration authority to register the ownerless utility network (Appeal ruling of the Astrakhan Regional Court dated September 2, 2015 in case No. 33-3064/2015).

The court received a claim from the HOA for recognition illegal inaction city ​​administration, which refused to recognize the right of municipal ownership to an ownerless thermal utility network. The HOA argued that, since this utility network is located beyond the border of intra-house networks and outside land plot occupied by an apartment building, then it cannot be considered common property. The court did not satisfy the request, since the pipeline networks are in the possession and use of the HOA and are not considered ownerless property (Resolution of the Arbitration Court of the Volga-Vyatka District dated April 26, 2016 N F01-1295/2016 in case N A43-7539/2015).

RSO demanded through the court that the local government body register the ownerless thermal engineering network. RSO believed that transit sections of utility networks that run in the basements of residential buildings are ownerless property, therefore the local government body is obliged to take them into account. The court satisfied RSO's demand, since the disputed sections of the pipelines, together with engineering networks were not transmitted to state register There is no information about rights to the disputed sections of pipelines. That is why the court considered the disputed sections of pipelines ownerless (Resolution of the Arbitration Court of the Ural District dated January 25, 2016 N F09-10599/15 in case N A50-5612/2015).

If you have any questions, you can always contact us for advice. We also help management companies comply 731 RF PP on the Information Disclosure Standard(filling out the portal Housing and communal services reform, website of the Criminal Code, information stands) and Federal Law No. 209 ().

Today before Russian regions The issue of ownerless electrical networks is acute. This is very serious problem both for consumers and for network companies to which these networks are connected.

In accordance with paragraph 1 of Art. 225 of the Civil Code, ownerless is a thing that does not have an owner or the owner of which is unknown, or, unless otherwise provided by law, the owner of which has renounced the right of ownership. In Russia there are a lot of unaccounted for and simply abandoned electrical networks. They work at the limit of their capabilities, and there is no one to repair and maintain these substations. Unattended networks are a source of accidents, one of the reasons for the decline in the quality of power supply and serious losses of electricity. According to experts, to solve the problem, comprehensive actions will be required at both the federal and regional levels.

In Yakutia, a practice has developed according to which power facilities of the network complex (power lines, substations) built in different years the most different owners, turn into “drawn ones”. Vector to refuse non-core species activities that took place in our country in the new millennium forced business and many departmental structures to simply abandon them without supervision. The result is accelerated wear, dilapidation and emergency condition of these power facilities, which entails a decrease in the reliability of power supply and outages.

In 1991, owners were assigned to all electrical network facilities. At the same time, some of these objects were not properly registered and subsequently turned out to be ownerless.

There are still ownerless people today. There are often cases when developer enterprises do not properly formalize the transfer of electrical grid facilities along with the commissioned facility capital construction, although networks are included in its price and must also be transferred to the customer.

There is also a deliberate abandonment of property. Especially when networks fall into disrepair due to the fact that they were not serviced or repaired in a timely manner. To restore operability, reconstruction is sometimes required, comparable in cost to the construction of a new power supply complex.

Responsibility for the proper operation of electrical grid facilities rests entirely with the law on the owners, regardless of the degree of formalization of rights to the property.

An energy company cannot easily accept on its balance sheet everything that is not good for negligent owners. According to the rules, the object must be in operation, in working condition. And the owners of this property, as a rule, do not have the funds to bring it back to normal. Especially when we're talking about about municipal property.

The law clearly defines the procedure for transferring objects without an owner. The local government body, when identifying a potential ownerless property, is obliged to check for the presence of owners. For the object to receive official status ownerless, it is necessary to go through the procedure for registration with Rosreestr and only after that the possibility of transferring it into operation to a guaranteeing supplier or network organization is considered.

Accounting, timely competent maintenance of even the most low-power electrical grid facilities, this means a stable, reliable power supply, and no costs associated with its interruptions. And, first of all, the safety of the population, our children. Cases of electrical injuries, unfortunately, are constantly being recorded. And a significant part is on abandoned objects for which no one is responsible. On the vast territory of our republic with its seasonal transport scheme, inaccessible settlements in almost every area, you can’t rely on chance. It is necessary to clearly define the area of ​​responsibility. And carry it from start to finish. In law.

Since September 2016, in accordance with Order No. 1194r dated July 18, 2016 “On identifying the operating organization of ownerless real estate in the territory of the urban district “city of Yakutsk”, LLC “Servisenergosbyt+” has assumed obligations for emergency cover of ownerless real estate, consisting of 73 properties.