The Supreme Court determined the specifics of calculating electricity consumption for consumers whose facilities are located in the territories where hostilities are taking place or in the temporarily occupied territories

The volumes of electricity consumption at consumer facilities in the territories where hostilities are taking place or in the temporarily occupied territories should be determined on the basis of the data (indicators) of their average daily consumption, not the average monthly consumption in the same period of the previous year, using the consumption growth/decline coefficient calculated for the relevant period of electricity consumption.

Failure of the electricity supplier to apply the coefficient of growth/decline in electricity consumption when calculating the electricity consumption during the period of martial law will result in incorrect calculation of the cost of the electricity actually consumed and, therefore, regardless of the reasons for the failure to calculate the relevant coefficient, cannot be a sufficient basis for imposing on the consumer the obligation to pay for the supplied electricity only on the basis of its average daily consumption in the same period of the previous year.

This was stated by the Commercial Cassation Court of the Supreme Court.

In this case, an electric utility filed a lawsuit against an LLC located in the temporarily occupied territory to recover debts for active power supplied in February, April, and May 2022.

The court of first instance and the court of appeal partially granted the claim, concluding that the calculation of the debt for the disputed period should be based on the electricity consumption data for February, April and May 2021, and the cost of the consumed kWh should be taken from the plaintiff's bills issued in February, April and May 2022.

The Commercial Cassation Court of the Supreme Court stated that in order for the supplier to correctly determine the amount of electricity consumed by any category of consumers in the areas where hostilities are taking place or in the temporarily occupied areas, it is necessary to apply the coefficient of growth/decline in consumption calculated for the relevant period of electricity consumption and the area of licensed activity of the system operator that distributes electricity to the respective consumer.

Thus, the distribution system operator is authorized to calculate the coefficient of growth/decline in electricity consumption as a ratio of the volume of electricity supply to consumers in the billing month to the volume of electricity supply to consumers in the same billing month of the previous year in the relevant node / district / region of the distribution system operator's electricity networks, and the operator must make the said calculation based on the available actual data as of the first day of the month following the billing month.

At the same time, the volume of electricity consumption at the facilities of such consumers should be determined using the appropriate coefficient based on their average daily consumption, not on the average monthly consumption in the same period of the previous year, which may be objectively caused by the instability of electricity supply during the reporting period due to blackout or disconnection of consumers' electrical installations due to damage or destruction of energy infrastructure facilities as a result of hostilities during martial law.

At the same time, the provisions of subparagraphs 1, 2 of paragraph 9 of the Regulation on the specifics of electricity supply to consumers and settlements between participants in the retail electricity market during martial law in Ukraine, approved by Order of the Ministry of Energy of Ukraine No. 148 of April 13, 2022, unlike paragraph 8.6.11 of the Code of Commercial Metering of Electricity, approved by Resolution of the National Commission for State Regulation of Energy and Public Utilities No. 311 of March 14, 2018, require the electricity supplier to apply the coefficient of growth/decline in electricity consumption to all categories of consumers, not just individual household consumers.

The Supreme Court found that the court of first instance made its own calculation of the LLC's debt based on the average monthly electricity consumption for February, April, and May 2021, rather than the average daily consumption data for the specified period, and failed to apply the consumption growth/decline coefficient without reason. The court of appeal, while generally agreeing with the said calculation of the first instance court, prematurely concluded that the growth/decline coefficient of electricity consumption was not applicable to the LLC, which is not an individual household consumer.

In view of this, the Commercial Cassation Court of the Supreme Court overturned the contested decisions and sent the case for a new trial to the court of first instance.

The Resolution of the Commercial Cassation Court of the Supreme Court of February 20, 2024 in case No. 905/644/22 - https://reyestr.court.gov.ua/Review/117202796.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.