Norm regarding the calculation of the amount of arbitrarily consumed electricity conforms to the Constitution
The Constitutional Court recognised that the norm laying down the right of the electricity system operator to recalculate the amount of electricity in the event of a violation of the conditions for electricity consumption conforms to the Constitution. The Court emphasised that the recalculation method ensures compliance with the principle of individualisation and such economic equivalence as can be secured in the particular circumstances in order to avoid unjustified infringement of the rights of the system operator and other users of the electricity system.
The contested norm was in force until 9 November 2023. It stipulated that a system operator which has established the interference by an electricity user with the operation of a commercial meter or a connection to pre-accounting circuits is entitled to recalculate the amount of electricity for the time period up to one year from the maximum connection capacity of the connection within a 24-hour period irrespective of the previous inspection history. The case was initiated before the Constitutional Court on the basis of the application submitted by the Rīga City Court. The applicant considers that the Cabinet of Ministers (hereinafter – the Cabinet), by the contested norm, has violated the authorisation laid down by the Electricity Market Law; moreover, the established method for calculating the amount of electricity consumed without metering infringes the right to own property of the user of the electricity system, and it is also unfair and disproportionate.
The Constitutional Court pointed out that the authorisation granted to the Cabinet included the right to detail the rights and obligations of the electricity market participants in the entire process of electricity trade and supply, as well as in settlements for the received services, including to establish legal consequences arising in the event of non-compliance with these rights and obligations. Therefore, the fact that the contested norm provides for a special regulation for the calculation of the amount of arbitrarily consumed electricity and system services, unlike the general regulation for the calculation of damages laid down by civil law, does not mean that the Cabinet has violated the limits of the authorisation granted thereto by the legislator.
The Constitutional Court concluded that the contested norm was applicable only to such cases where no relevant contract had been concluded between the user of the electricity system and the system operator, but the user had deliberately interfered with the operation of a commercial meter or had established a connection to pre-accounting circuits in order to use electricity without paying for the service and not covering other related costs. Hence, the contested norm contains only one of the recalculation methods provided for in the Regulations Regarding the Trade and Use of Electricity which, in addition, is applicable in individual cases.
The Court emphasised that where the system operator has information that the user has unlawfully consumed electricity for a time period lasting less than one year, the system operator has the possibility and, at the same time, the obligation to make a calculation for a shorter time period. Moreover, the criterion contained in the contested norm, which provides for the right of the system operator to carry out a recalculation for a time period of up to one year, allows the law enforcer to take into account the individual circumstances of each violation and decide on the fairest and most proportionate payment for the unlawfully consumed electricity. The Constitutional Court concluded that, by carrying out the recalculation provided for in the contested norm, compliance with the principle of individualisation and such economic equivalence as can be secured in the particular circumstances were ensured to the extent possible in order to avoid unjustified infringement of the rights of the system operator and other users of the electricity system, and also to prevent unjust enrichment on the part of the violator from the unlawful activity.
In view of the above, the Constitutional Court concluded that the method provided for in the contested norm for determining the amount of consumed electricity in the event of the violation of the conditions for electricity consumption was proportionate. Thus, the public benefit resulting from the fact that the violator of the conditions for electricity consumption has the obligation to pay the system operator for the unlawfully consumed electricity in accordance with the recalculation method contained in the contested norm outweighs the adverse consequences which the user of the electricity system suffers as a result of the restriction of the fundamental rights thereof. Consequently, the Constitutional Court recognised that Paragraph 113 of Cabinet Regulation No. 50 of 21 January 2014, Regulations Regarding the Trade and Use of Electricity, conforms to Article 64 and the first three sentences of Article 105 of the Constitution, as well as Section 32, Paragraph five of the Electricity Market Law.
Linked case: 2024-03-03