1. **Subject matter of the dispute:** The “supplier of last resort” (SE “Ukrinterenergo”) filed a lawsuit requesting that the actions of system operators, consisting in assigning volumes of consumed electricity to the supplier after the expiration of the 90-day supply period, be declared unlawful and that the operators be ordered to adjust commercial metering data.
2. **Court arguments:**
– The Supreme Court emphasized that after the expiration of the special Ministry of Energy Order No. 148, which was in effect during martial law, the general 90-day limitation on electricity supply by the “supplier of last resort” was restored.
– The Court found the conclusion of the lower courts that the notification of termination of supply had to be carried out exclusively through the DATAHUB system to be erroneous, as current legislation contains no such imperative requirement.
– It was established that the special provision for the “supplier of last resort” is sub-paragraph 8 of clause 9.6.3 of the Retail Electricity Market Rules (PRREE), which provides for written notification of the system operator 20 days in advance, which the plaintiff fulfilled in a proper manner.
– The Court emphasized that after the expiration of 90 days, the consumer’s power supply must be terminated by the system operator, and if this does not occur, the consumption volumes must be attributed to the system operator’s losses, rather than to the supplier’s balancing group.
– The Supreme Court also rejected the position of the lower courts regarding the ineffectiveness of the chosen method of protection, noting that a separate lawsuit for the adjustment of commercial metering data is an appropriate tool for eliminating the root cause of financial charges.
– Importantly, the Court took into account its own case law in similar disputes, in particular, the ruling in case No. 910/5447/25, which confirms the legitimacy of the plaintiff’s claims regarding data adjustment.
– The courts of lower instances did not properly examine the evidence regarding each metering point and did not evaluate the actions of each of the defendants, which served as the grounds for overturning their decisions.
3. **Court ruling:** The Supreme Court granted the cassation appeal, overturned the decisions of the courts of first and appellate instances, and remanded the case for a new trial to the Commercial Court of the city of Kyiv.
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In this decision, the Court effectively departs from its previous position established in other Supreme Court rulings (and lower court decisions relying thereon) regarding the ineffectiveness of disputes concerning the adjustment of commercial metering data when parallel debt collection cases exist, and regarding the mandatory use of the DATAHUB system exclusively for notification of termination of supply.
