Greetings. As a lawyer with many years of experience, I have analyzed the court decision you provided. Here is a detailed analysis:
1. **Subject of the dispute:** Recovery of over 17 million UAH from an electricity producer (PE “Natsprod”) in favor of JSC “Guaranteed Buyer” as overpaid funds for electricity which, according to updated metering data, the defendant did not actually supply to the energy system of Ukraine due to operation in non-synchronous mode in the occupied territory.
2. **Court’s arguments:**
* The court established that the defendant’s generation facilities were located in the temporarily occupied territory and operated non-synchronously with the Integrated Power System (IPS) of Ukraine, which is confirmed by data from system operators and the Regulator.
* **Legal position:** The Supreme Court, composed of the Joint Chamber of the Commercial Court of Cassation, departed from its own previous position (set forth in case No. 910/19641/23), acknowledging that commercial metering data can and should be adjusted to “zero” values if reliable information is obtained regarding the absence of actual electricity supply.
* The court emphasized that NEURC protocol No. 48-p and letters from distribution system operators are sufficient evidence for adjusting volumes, even in the absence of a direct provision in the contract, as this aligns with the principles of the electricity market’s functioning.
* The doctrine of prohibition of inconsistent conduct (*venire contra factum proprium*) was applied, as the defendant had previously agreed to similar adjustments, and its sudden refusal to sign the acts was deemed bad faith.
* The court underscored that certified commercial metering data are not immutable and are subject to refinement upon the discovery of discrepancies with actual indicators.
* The appellant’s arguments regarding the impossibility of such an adjustment were rejected as inconsistent with the current legal position of the Supreme Court.
3. **Court decision:** The Supreme Court dismissed the cassation appeal of PE “Natsprod” and upheld the decisions of the lower courts regarding the recovery of funds.
