The Supreme Court Panel has approved the lawsuit filed by the plaintiff: the Kosovo Chamber of Commerce (OEK), against the defendant: the Energy Regulatory Office (ZRRE).
The Supreme Court of Kosovo, in an announcement, clarified that it has declared Article 8 of the Guideline for the Liberalization of the Electricity Market, dated January 18, 2017, as illegal and has annulled it.
“It has declared Article 2 of the Guideline for Amendments and Supplements to the Guideline for the Liberalization of the Electricity Market in Kosovo as illegal and annulled it. In light of the arguments presented and the evidence administered in the judicial review, the Supreme Court of Kosovo finds that inconsistencies between the legal provisions and the provisions of sub-legal normative acts have led to the creation of a situation of legal and economic uncertainty for electricity consumers, making it necessary for the court to intervene for a unified interpretation of the norms and to protect the principle of legal certainty and equal treatment in the electricity market. The Supreme Court considered that Kosovo, since 2005, has been a signatory party to the Energy Community Treaty, through which it undertakes the obligation to implement the European Union’s ‘Acquis communautaire’ in the electricity sector, which specifically requires the implementation of the EU Energy Directives and Regulations. For Kosovo, this means that state institutions are obligated to harmonize energy legislation and regulations with the obligations arising from the treaty, which are legally binding for the Contracting Parties. The Court emphasizes that the principle of ‘act consumed’ (actus consumatus) cannot be interpreted in a way that excludes sub-legal acts that continue to produce factual and legal effects from judicial review, as such an interpretation would violate the right to an effective legal remedy, guaranteed by Article 31 of the Constitution of the Republic of Kosovo and Article 13 of the European Convention on Human Rights (ECHR). The Supreme Court of Kosovo considers that the inconsistency of the contested provisions of the ZRRE guidelines, combined with the interpretations of Articles 3 and 37 of the Law No. 05/L-084 on Electricity, in relation to Directive 2009/72/EC, has resulted in an unstable legal situation, where the boundary between consumers entitled to universal service and those required to move to the free market is not clearly and predictably defined,” the statement reads.
The Court interpreted the provisions of the law in favor of protecting consumers and in the spirit of Directive 2009/72/EC, which refers to fulfilling two cumulative criteria, as well as non-fulfillment of obligations for the effective opening of the market. The Court concludes that the contested provisions of the aforementioned guidelines have created legal uncertainty for consumers, and therefore, they are declared illegal and annulled.
