The 4th of May 2016 the sixteenth Arbitration Appeal Court canceled oversight to the JSC “Dagestan Energy Supply Company”. The company is a guaranteeing supplier of energy on the territory of Dagestan and the one organization in republic, which is a partner of wholesale electrical energy market.
According words of partner of National Law Company “Mitra” Soslan Kairov, who represented the interests of company in this dispute: “In the district we already have practice on the question of commencement bankruptcy proceedings to organization, which carries out economic activities in non-competitive conditions. So, in one case, a court of cassation instance noted, that in implementation of a bankruptcy procedure the arbitration courts should avoid haste and formality, to note social-economic consequences of organization bankruptcy, to investigate carefully opportunities of debtor to answer the creditors` claims in fully, but also taking into account debtors` claims to contractors”.
We note that legislation about bankruptcy in Germany, France, Belgium, the Netherlands, UK, Italy and USA (besides railway organizations) doesn`t provide certain procedures of bankruptcy to subjects of the natural monopolies. That’s why including in Russia by legislator a good measure of bankruptcy to such category of debtors, adoption of federal law № 122-FL 24/06/1999 and next paragraphing in law about bankruptcy had certain goals.
According opinion of V. Vitryanskiy – certain regulation on the legislation level for specialties of bankruptcy of natural monopolies` subjects, is defined them by certain position among other representatives of property relations: subjects of natural monopoly work in such parts of product market without completion of good producers, and in this context they are irreplaceable. Applying to them “common measure” of bankruptcy together with other partners of property relations, but also in part of criterions and act of insolvency, can come of catastrophic consequences for Russian economic generally.
So, for implementation of a certain bankruptcy procedure to subject of natural monopoly is of importance not absolute having nets and providing services of power delivery, but also condition of goods market, where in case of implementation of certain bankruptcy procedure to important person on the goods market, will be provided a principle of primacy of public interests over private.
Agreeably, securing principle of primacy of public interests over certain creditor in conditions inconsistency of guaranteeing supplier was chosen as a main strategy in this case by our partner.
“Admission social-economic import services of power delivery of network organizations and power supply activity by important on the market guaranteeing supplier in fact make equal these subjects of electrical energy industry in case of appearance of characteristics disability in need of safeguards for the rights of ultimate consumers - securing principle of primacy of public interests over certain creditor”, says Soslan Kairov.
The foregoing allows drawing conclusion, that dominant position on the market, having social-economic aspect in the work of guaranteeing supplier, and also need securing principle of primacy of public interests over private, there are enough facts for applying to it the certain bankruptcy procedure. Such approach is in the picture in judicial practice (decision Arbitration court of Tiva Republic from 06/12/2013 on case №А69-2973/2013 and from 17/10/2014 on case №А69-1946/2014, decisions of Arbitration court North-Caucasus District from 16/12/2014 №F08-8742/2014 on case №А18-232/2014, from 29/01/2015 on case №А77-1351/2009).
