The company appealed to the court with a lawsuit, in which it asked to declare illegal and cancel the resolution of the National Commission, which carries out state regulation in the fields of energy and communal services dated March 14, 2018 No. 307 in part. In addition, the plaintiff submitted an application for securing the claim, in which he requested to suspend the effect of the specified part of the resolution against him until the court's decision in this case enters into force.
Satisfying the application for securing the claim, the courts of previous instances proceeded from the fact that the plaintiff is a participant in the electricity market and the failure to take the measures declared by him to secure the claim will lead to the termination of his economic activity, the main type of which is the resale of electricity, and to the bankruptcy of this enterprise. Therefore, in the case of non-application of the claim enforcement measures declared by the claimant, effective protection of his rights and their restoration, if the claim is satisfied, may be impossible or significantly complicated.
Based on the results of the consideration of the case, the Supreme Court, as part of the panel of judges of the Administrative Court of Cassation, annulled the decision of the courts of previous instances and adopted a new decision – on the refusal to grant the application for taking measures to ensure the administrative claim.
The court noted that the institution of securing an administrative claim is a mechanism designed to guarantee, in strict accordance with the law and in the presence of unconditional factual grounds, the implementation of a future court decision and/or effective protection of the plaintiff, which is impossible without immediate court intervention.
Security measures should be taken only within the limits of the claims, adequate and proportionate to the claims.
The court noted that the court decision to secure the claim is an exceptional extraordinary measure, which is not fully consistent with some of those specified in Part 2 of Art. 129 of the Constitution of Ukraine by the basic principles (principles) of the judiciary, such as the equality of all participants in the judicial process before the law and the court; competitiveness of the parties and freedom in providing their evidence to the court and in proving their persuasiveness before the court; transparency of the court process and its complete recording by technical means. At the same time, such a court decision becomes mandatory for execution until its appellate review.
Securing a claim by suspending the effect of a normative legal act must fully comply with the provisions of Part 1 of Art. 6 of the Basic Law of Ukraine, which establish that state power in Ukraine is exercised on the basis of its division into legislative, executive and judicial.
Resolution of the Supreme Court dated January 11, 2022 in case No. 640/18852/21 (administrative proceeding No. K/9901/43515/21) – http://reyestr.court.gov.ua/Review/102493469 .