On the application of certain provisions of the Treaty establishing the Energy Community

Abstract

The article examines the specialities of applying certain provisions of the Treaty establishing the Energy Community. Attention is drawn to the fact that at the current stage, as Ukraine is not a member of the European Court of Justice, EU legal acts should be a direction of the development of the Ukrainian legislation, which will approximate it to its European counterparts. According to the Law of Ukraine «On the Electricity Market», the law enforcement practice of European institutions (the Energy Community and the European Union) is not a source of law in the formal legal sense (similar to the decisions of the European Court of Human Rights), but it must be taken into account by the subjects of power and courts. Attention is drawn to the fact that these decisions should be applied together with the corresponding act of EU legislation when deciding court cases, if the act of EU legislation is subject to application in accordance with the Association Agreement between Ukraine, of the one part, and the European Union, the European Atomic Energy Community and their member states, of the other part. Decisions of the EU Court should be taken into account for understanding the norm of EU law that is implemented (integrated formally or substantively), that is, in law-making activities, as well as for the interpretation of the norm of Ukrainian legislation that is its analogue. The condition for taking into account such decisions by subjects of power in law-making activities, as well as by courts, should be their relevance. The criteria for the relevance of the judicial practice are generally similar in relation to the practice of the European Court of Human Rights and the practice of the EU Court of Justice (first of all, it is the similarity of facts and taking into account the specialties of the national legislation). When resolving disputes, the court must apply the norm of Art. 41 of the Treaty establishing the Energy Community in accordance with the procedure prescribed for the norms of the national legislation in accordance with Art. 19 of the Law of Ukraine «On International Treaties of Ukraine», as well as other norms of the Ukrainian legislation, including the Law «On the Electric Energy Market», the Transmission System Code. Relevant decisions of the Court of Justice of the EU can be used as an additional source for the interpretation of the content of legal norms to be applied by the court. At the same time, according to the rules of procedural law, it cannot currently be claimed that a decision of the Ukrainian court was made with the incorrect application of the rules of substantive law if it does not correspond to the decision of the Court of Justice of the EU.