On 07 December 2017, the Verkhovna Rada of Ukraine adopted the draft Law of Ukraine "On Amendments to the Law of Ukraine "On National Energy and Utilities Regulation Commission" Regarding Granting Powers to the President of Ukraine to Ensure the Stable Functioning of the National Energy and Utilities Regulation Commission" ("New Draft Law"), which grants the President of Ukraine an authority to appoint new members of the National Energy and Utilities Regulation Commission ("NEURC") for a period up to 3 months, to unblock NEURC’s operations, until new members are elected in an open competition.
Starting from 13 November 2017 there has been no quorum at NEURC meetings, therefore the regulator was unable to pass its decisions. As a result of the lack of a quorum, NEURC failed to pass more than 150 decisions important for the industry, for example, on setting tariffs for electricity generating companies, including renewable energy, a wholesale market price for electricity for 2018, and issuing licenses to new companies etc.
To appoint new members of the NEURC in an open competition, the Nomination Committee was earlier established according to the Law of Ukraine "On National Energy and Utilities Regulation Commission" No. 1540-VIII dated 22 September 2016 ("NEURC Law"). Moreover, it will take several months for the Nomination Committee to select new NEURC members, and it is expected that the new NEURC will start its work not earlier than March 2018.
The New Draft Law is still waiting for the President's signature but is already recognized as such which contradicts the Constitution of Ukraine. Article 106 of the Constitution of Ukraine contains an exhaustive list of powers of the President of Ukraine that are determined only by Constitution of Ukraine and does not include the powers specified by the New Draft Law.
If the NEURC will be appointed solely by the President as per the New Draft Law, the authorities of the NEURC and its further decisions may be appealed in court.
For further information please contact Asters' counsel Yaroslav Petrov and senior associate Marta Halabala.