Investment programs in the field of heat supply. Features of the development of investment programs of organizations of the communal complex

Krasnoyarsk Regional Court (Krasnoyarsk Territory) - Civil

Essence of the dispute: Complaints against decisions and actions (inaction) of institutions, enterprises, organizations, their associations and public associations

KRASNOYARSK REGIONAL COURT

APPEALS DETERMINATION

Judge Khvalko Oh.P. Case No. 33-2657/2015

On March 25, 2015, the Judicial Collegium for Civil Cases of the Krasnoyarsk Regional Court, consisting of:

presiding E.T. Payusova

Judges Makarova Yu.M., Dantseva T.N.

With the participation of the prosecutor Dozortseva E.G.

Under Secretary E.A. Myadzelets

Heard in open court on the report of Judge Makarova Yew.M.

Civil case on the statement of claim of the prosecutor in the interests of an indefinite circle of persons on the recognition as illegal the inactivity of the Open Joint-Stock Company "Yenisei Territorial Generating Company (TGC-13)" on the implementation of measures included in the investment program of the company for the development of facilities used in the field of heat supply for 2007-2012 years within the terms established by the program, imposing the obligation to take actions aimed at the implementation of the investment program,

According to the appeal of JSC "Yenisei Territorial Generating Company (TGC-13)",

On the decision of the Zheleznodorozhny District Court dated, which decided:

"The claims of the prosecutor to recognize as illegal the inaction of JSC "Yenisei Territorial Generating Company (TGC-13)" on the implementation of measures included in the investment program of the company for the development of facilities used in the field of heat supply for 2007-2012 within the time limits established by the program, imposing the obligation to commit actions aimed at the implementation of the investment program, partially satisfy:

To oblige OAO Yenisei Territorial Generating Company (TGK-13) within a period not later than from the date of entry into force of the court decision to carry out the measures approved by the Investment Program for the development of facilities used in the field of heat supply for 2007-2012:

Installation of two additional pumps SE-1250-140 on the supply and pump SE-2500-60 on the return pipelines pumping station No. 1, located on.

Installation of two additional SE-1250-70 pumps (one pump each on the supply and return pipelines) at pumping station No. 10, located on.

Design and construction of a pumping station in the area of ​​the thermal chamber TK P2706 on the return pipeline of the heating network "P27" with a capacity of 2500 t / h

Design and construction of a section of the main heating network from the thermal chamber TK P2713 to the thermal chamber TK 1109, located in the area of ​​the Oktyabrsky state farm, 1500 m long with a diameter of 2 DN 500.

The rest of the claims to the prosecutor - to refuse.

Collect from OAO "Yenisei Territorial Generating Company (TGC-13)" in income local budget state duty in the amount of rubles.

After listening to the speaker, the panel of judges

SET UP:

Acting in the interests of an indefinite circle of persons, he filed a lawsuit (subject to clarifications) against JSC "Yenisei Territorial Generating Company (TGC-13)" to recognize as illegal the inaction on failure to implement measures included in the investment program of the company for the development of facilities used in the field heat supply for 2007-2012 within the time frame established by the program, assigning the responsibility for the implementation of measures.

The requirements are motivated by the fact that according to the results of checking compliance with the legislation on the basics of tariff regulation, the completeness of the implementation of investment programs of organizations of the communal complex, the prosecutor's office of the district revealed violations related to non-fulfillment of the planned activities within the time frame established by the program. In this regard, the prosecutor asks to recognize as unlawful the inaction of OAO Yenisei Territorial Generating Company (TGK-13) on the failure to carry out the following measures: modernization of the section of the main heating network "08" from the thermal chamber TK 0828 to the thermal chamber TK 2001 with a length of 110 m. with an increase diameter from 2Dn 300 to 2Dn 500, scheduled for completion in 2009; installation of two additional pumps SE-1250-140 on the supply and pump SE-2500-60 on the return pipelines of pumping station No. 1, located according to the planned implementation for 2008, 2010-2012; installation of two additional pumps SE-1250-70 (one pump each on the supply and return pipelines) at pumping station No. 10, located at d, planned for 2008, 2010-2011; design and construction of a section of the main heating network from the projected pumping station located between the thermal chamber KSZ-6 and the thermal chamber TK 0629, located on the main heating network "06", to the main heating network "03" in an area 1800 m long with a diameter of 2DN 700, planned for implementation in 2010-2012; design of heating networks in the Metrostroitel microdistrict and construction of a section of heating networks from the control and adjustment point to the first thermal chamber, planned for 2008, 2012; design and construction of a pumping station in the area of ​​the thermal chamber TK P2706 on the return pipeline of the heating network "P27" with a capacity of 2500 t / h, planned for 2008-2011; design and construction of a control and adjustment point in the Metrostroitel microdistrict, planned for 2008, 2011-2012; design and construction of a section of the main heating network from the thermal chamber TK P2713 to the thermal chamber TK 1109, located in the area of ​​​​the Oktyabrsky state farm, 1500 m long. Diameter 2 Du 500.

The prosecutor also asked to impose on OJSC Yenisei TGC an obligation to carry out the above measures approved by the investment program within a period not later than 1 year from the date of entry into force of the court decision.

The Court upheld the above decision.

In the appeal the representative of JSC «Yenisei Territorial Generating Company (TGC-13) Isaeva T.S. asks to cancel the decision, to stop the proceedings on the case, referring to the fact that the court did not take into account that the plaintiff chose an improper method of protection, which led to misapplication the provisions of Law No. 210 FZ, which was the adoption of an unjust decision. Indicates that the consideration of this application on behalf of the prosecutor resulted in a violation of the provisions of Art. , part 1, art. , Art. , part 1, art. , Art. . The reasoning part of the decision contradicts the operative part of the decision, which, according to the appellant, is contrary to the provisions of Art. - . In addition, it indicates that the decision has been made regarding the rights and obligations of the party not involved in the process represented by the REC.

Having checked the court decision according to the rules of the appeal proceedings, after hearing the prosecutor Dozortseva E.G., who considered the court decision lawful and justified, the representative of JSC "Yenisei Territorial Generating Company (TGC-13)" Isaeva T.S., who supported the arguments of the appeal, the judicial board comes to the next.

By virtue of h.1 Article. the grounds for canceling or changing the decision of the court on appeal are the incorrect determination of the circumstances relevant to the case; failure to prove circumstances established by the court of first instance that are relevant to the case; inconsistency of the conclusions of the court of first instance, set out in the court decision, with the circumstances of the case; violation or misapplication of substantive law or procedural law.

In accordance with Part 2 of Art. based on the results of consideration of the appeal, the court of appeal has the right to cancel or change the decision.

As follows from the materials of the case, the Decree of the Krasnoyarsk City Council of Deputies of May 11, 2007 No. V-84P (as amended by the Decree of the Krasnoyarsk City Council of Deputies of December 22, 2009 No. 8-72P) approved the investment program for the development of objects used in the field of heat supply for 2007-2012.

By the Decree of the Krasnoyarsk City Council of Deputies dated December 22, 2009 No. 8-72P “On Amendments to the Decree of the Krasnoyarsk City Council of Deputies dated May 11, 2007 No. V-84P, the administration issued a resolution dated January 27, 2010 No. 18 on approval for the period 2010- 2012 of the tariff of JSC "Yenisei TGC-13" for connection to the heat supply system in the amount of 5,871 rubles 37 kopecks / Gcal / hour of connected capacity (excluding VAT); tariff for connecting newly created (reconstructed) real estate to the heat supply system in the amount of 5,871 rubles 37 kopecks / Gcal / hour of connected capacity (excluding VAT), based on the absence of the need to implement - investment programs - other organizations of the communal complex, technologically related to JSC " Yenisei TGK-13", in the implementation of the specified investment program.

Resolving the dispute, the court came to the conclusion that the claim was partially satisfied, indicating that since the decision to approve the tariff for OAO Yenisei TGC-13 was adopted by a resolution of the Krasnoyarsk City Council of Deputies based on the amount of expenses laid down in the basis of the investment program, the investment program was not implemented in full (the measures of the program were carried out for the amount of the ruble (including VAT), instead of the approved rubles), the measures, the obligation to perform which was assigned by the court to the defendant, are actually being performed and are in the process of being completed, which is why there are grounds for imposing on OAO Yenisei TGC-13 obligations to carry out the activities provided for by the investment program for 2007-2012, the implementation of which has already begun by the defendant.

The panel of judges cannot agree with the indicated conclusion of the court, since such conclusions do not comply with the current legislation.

By virtue of paragraphs 2, 7 h.1 Article. 14 of the Law on Tariffs (as amended by Federal Laws No. 281-FZ dated December 25, 2008, No. 289-FZ dated December 30, 2012), to which the prosecutor refers in statement of claim, violation by the organization of the communal complex of the approved production program, identified by the results of monitoring the implementation of this program, a change in the investment program of the organization of the communal complex, is the basis for early revision by the regulatory authorities of tariffs for the services of organizations of the communal complex. Accordingly, the law does not establish that the consequence of non-execution of the investment program is the imposition on the organization of the obligation to fulfill the activities of the program.

In addition, according to Art. 4 of Federal Law No. 191-FZ of July 27, 2010, starting from January 1, 2011, Federal Law No. 210-FZ “On the Basics of Tariff Regulation of Public Utilities Organizations” does not establish pricing principles for organizations providing heat supply, but extends its impact on organizations providing disposal (burial) of solid household waste.

The current legislation that establishes the basis for regulating the tariffs of organizations providing heat supply and determines the principles and methods for regulating tariffs for the services of these organizations (in particular, Federal Law No. 190-FZ of July 27, 2010 "On Heat Supply") also does not provide as a liability for non-fulfillment of the investment program, imposing on the heat supply organization the obligation to fulfill the measures of the investment program.

So, in accordance with Part 8 of Article 23.1 of the Federal Law of July 27, 2010 No. 190-FZ “On Heat Supply”, if an organization carrying out regulated activities in the field of heat supply has not reached the approved planned values ​​​​of the reliability indicators of heat supply facilities, the tariffs of such an organization, set for the next financial year, are subject to reduction in accordance with the pricing principles in the field of heat supply, approved by the Government Russian Federation, based on the degree of fulfillment of the obligations of such an organization to create and (or) reconstruct the object of the concession agreement, the implementation of the investment program.

Thus, since it follows from the actual materials of the case that the measures for the development of facilities used in the field of heat supply for 2007-2012 were carried out by JSC "Yenisei TGC-13", however, the deadlines were not met for objective reasons, taking into account the fact that that the current legislation does not establish coercion to the execution of approved measures as a consequence of non-execution of the investment program measures, the judicial panel concludes that the defendant’s failure to fully comply with the measures preliminarily determined by the investment program plan is not grounds for imposing the obligation on the defendant to fulfill activities of the investment program.

The imposition on the defendant of the measures indicated by the court, in fact, is an interference in the operational and economic activities of the enterprise. meanwhile, in accordance with the provisions of h.2 Article. Federal Law "On the Prosecutor's Office" the prosecution authorities should not replace other state bodies and officials who exercise control over the observance of human and civil rights and freedoms, should not interfere in the operational and economic activities of organizations.

In addition, the plaintiff did not indicate how the defendant's inaction indicated in the claim violates the rights, freedoms and legitimate interests of an indefinite number of persons, the case file does not provide evidence confirming the violation of the rights, freedoms and legitimate interests of an indefinite number of persons.

In view of the foregoing, the decision of the court of first instance cannot be recognized as lawful and justified, the arguments of the appeal of JSC “Yenisei TGC-13” deserve attention, the court decision is subject to cancellation, with the resolution of the issue on the merits by issuing a new decision to refuse to satisfy the requirements stated by the prosecutor.

Guided by Art. , judicial board

DETERMINED:

The decision of the Zheleznodorozhny District Court is canceled.

Satisfying the claims of the prosecutor in the interests of an indefinite circle of persons to recognize as illegal the inaction of the Open Joint Stock Company "Yenisei Territorial Generating Company (TGC-13)" in the implementation of measures included in the investment program of the company for the development of facilities used in the field of heat supply for 2007-2012 years within the terms established by the program, imposing the obligation to take actions aimed at the implementation of the investment program, to refuse in full.

presiding

Court:

Answer:

Hello! The approval of investment programs in the field of heat supply is carried out in accordance with the Rules for the harmonization and approval of investment programs of organizations engaged in regulated activities in the field of heat supply, approved by Decree of the Government of the Russian Federation No. 410 dated May 05, 2014 (hereinafter referred to as the Rules for the harmonization of investment programs in the field of heat supply).

Your actions in case of an unmotivated refusal to agree on an investment program in the field of heat supply should be as follows:

1. Before appealing against the actions, in your opinion, of the “unmotivated” refusal of the executive authority of a constituent entity of the Russian Federation to approve an investment program in the field of heat supply, we strongly recommend that you familiarize yourself with the Rules for Approving Investment Programs in the Field of Heat Supply and make sure that on your part, as a regulated the organization complied with all the conditions and terms for the development and submission for approval of the draft investment program. In particular, the following requirements must be met:

- about compliance activities of the investment program operating in the municipality heat supply scheme;

O observance of the form submission of an investment program in the field of heat supply in accordance with the Order of the Ministry of Construction of Russia dated August 13, 2014 N 459 / pr “On approval of the recommended form of the investment program of an organization engaged in regulated activities in the field of heat supply, and guidelines for its completion";

About the direction in the composition supporting documents for in the field of heat supply- estimates as a justification for the cost of activities, energy saving programs and increases energy efficiency heat supply organization, a report on the implementation of the investment program for the previous period (if any).

2. If there are no violations on your part, if there is a refusal to approve the draft investment program without giving reasons, in accordance with clause 22 section III of the Rules for Approval of Investment Programs in the Sphere of Heat Supply Your party has the right to demand from the executive authority of the subject of the Russian Federation an official conclusion on the return of the investment program for revision, indicating the sections (points) of the investment program that require revision.

At the same time, the refusal to approve the draft investment program in the field of heat supply must be justified, measures for the development of heat supply systems contained in the heat supply scheme that are not provided by the investment program, or a list of values ​​​​of reliability and energy efficiency indicators that cannot be achieved.

In addition, the grounds for refusing to approve an investment program in the field of heat supply by the executive authority of a constituent entity of the Russian Federation and sending it for revision are:

a) the unavailability of the tariffs of the regulated organization for consumers (except in cases where the refusal due to the unavailability of tariffs will lead to the inability of the concessionaire to fulfill its obligations for the construction, reconstruction and modernization of system facilities district heating in accordance with the concession agreement);

b) the excess of the costs of implementing the measures of the investment program over the costs of implementing these measures, determined according to the aggregated estimated standards for facilities non-production purpose and engineering infrastructure, approved by the federal executive body responsible for the development of state policy and regulatory support in the field of construction and housing and communal services;

c) the excess of the amount of expenses for the implementation of measures included in the approved investment program and the costs incurred for the implementation of activities included in the investment programs of the regulated organization, approved from the moment the concession agreement was concluded, over the maximum amount of expenses for the creation and (or) reconstruction of the concession object agreements that are supposed to be carried out by the concessionaire and the grantor in accordance with the concession agreement.

The investment program is developed by the regulated organization on the basis of the requirements of Decree of the Government of the Russian Federation dated May 5, 2014 No. 410 “On the procedure for agreeing and approving investment programs of organizations engaged in regulated activities in the field of heat supply, as well as requirements for the composition and content of such programs (with the exception of such programs approved in accordance with the legislation of the Russian Federation on the electric power industry)" .

Coordination and approval of investment programs in the field of heat supply is carried out in the following order:
1. The regulated organization submits the investment program for approval to the Ministry of the Fuel and Energy Complex, Housing and Communal Services of the Arkhangelsk Region (hereinafter referred to as the Ministry) by March 15 of the year preceding the start of its implementation.
2. If the investment program complies with the Rules of Decree of the Government of the Russian Federation No. 410 dated May 5, 2014, the Ministry, within 3 working days from the date of receipt of the investment program from the regulated organization, sends it for approval to the local governments of settlements, urban districts, on the territory of which the regulated the organization operates in the field of heat supply. If the investment program does not meet the requirements of the Rules, the Ministry, within 7 days from the date of receipt of the investment program, decides on its return for revision. The regulated entity submits the finalized investment program within 15 working days from the date of receipt of the ministry's comments.
3. The local self-government body considers the investment program within 30 days from the date of its receipt from the ministry and notifies it of the approval (refusal of approval) of the investment program within 3 days from the date of the relevant decision. In the event that the local self-government body did not notify the Ministry of decision, the investment program is considered agreed.
4. The Ministry, within 20 days from the date of receipt from the local self-government body of a decision on the approval of the investment program, considers the investment program and, based on the results of the consideration, makes a decision to approve the investment program or to refuse to approve the investment program and the need to refine it.
5. The investment program must be approved no later than October 30 of the year preceding the commencement of the investment program.
6. Control over the implementation of investment programs is carried out by the Ministry of the Fuel and Energy Complex and Housing and Communal Services of the Arkhangelsk Region together with the Agency for Tariffs and Prices of the Arkhangelsk Region.