12/2015. Pozhodzhuk P. V.

Transcription

1 Pozhodzhuk P. V. LEGAL NATURE OF ENERGY SERVICE AGREEMENT The article deals with the problematic issues and theoretical approaches to the determination of the legal nature of an energy service contract. On the basis of the study displayed a place design «Energy Agreement» and characterized his subject. The author suggests that the design of an energy service contract may be only in the form of a mixed agreement, given the performance of works that are the result of materializovy and services that are consumed in the course of its provision. Attention is drawn to the fact that energy service agreement has the sole objective of which is, at its core, but because it combines elements of the legal contract and the service contract. Key words: energy service agreement, contract, service agreement, a mixed contract, named treaty nepoimenovany contract. Formulation of the problem. Enhancing international energy cooperation and European integration of Ukraine results in the transformation processes in the areas of her life. One of the Association Agreement between Ukraine, on the one hand, and the European Union, the European Atomic Energy Community and their Member States. On the other hand, there is agreement on the continuation and intensification of existing energy cooperation to enhance energy security, competitiveness and stability, which is necessary to promote economic growth and progress towards market integration, including through a gradual convergence in the energy sector participation in regional initiatives on energy cooperation. Mutual cooperation includes, among others, such areas as promoting energy efficiency and energy saving, including through policy on energy efficiency and structure of law and legal framework to achieve significant progress with EU standards, including effective generation, production, transportation, distribution and use of energy, through the operation of market mechanisms and energy efficiency in the application equipment, and lighting in buildings [13]. Analysis of recent research and publications. Among the works of local and foreign scientists who outlined some of the conventional regulation merit of T. Bodnar, M. I. Bragin, A.I. Vasil'chenko, V. V. Vitryanskoho, A. B. Hrynyaka, I. A. Dikovskoyi, A. Joffe, S.V. Kozlyyevoyi, A.A. Krasavchykova, N.S. Kuznetsova, V.V. Lutsya, D.I. Meyer, N. Fedorchenko and others. However, given the fundamental research scientists overlooked is the contract supply of electricity to household consumers and protect the rights specified by individual contract. Setting objectives. The article is an analysis of the legal nature and characteristics of new designs for national legislation' energy service contract». The main material research. At the level of the EU Directive 2006/32 / EC of the European Parliament and of the Council of 5 April 2006 «on the effectiveness of the end-use of energy and energy services, as well as repealing Council Directive 93/76 / EEC» provides such a

2 legal structure as «energy service contract» (literally: «contracting energy efficiency»), which refers to a contractual arrangement between the beneficiary and the supplier (of course, energy service company) on measures to improve energy efficiency, where investment in this measure are made according to the agreed in the contract of improving energy efficiency [3]. In turn, at the national level 9 April 2015 adopted the Law of Ukraine «On the introduction of new investment opportunities, guaranteeing the rights and interests of businesses to large-scale modernization of energy» (hereinafter the Law «On ESCO») [11] which establishes the legal and economic principles of Energoservice to improve the energy efficiency of state and municipal property. This law was introduced on the legal level, the concept of «Energoservice» and the term «energy service contract» that reflects the new type of contract and specifies the legal basis of its existence. It should be noted that the legislator were made significant efforts to promote the rational use of energy by consumers, reducing energy dependence, and as a result, there have been a significant step towards Ukraine's energy security and increase the investment attractiveness of the sector. Given that such a construction contract as «Energy Service Contract» is new to the national legislation, it is necessary to reasonably detailed study and analysis. Law «On ESCO «under the category of «Energy Service Contract» understands the contract, the subject of which is the implementation Energoservice performer Energoservice, payment is made at the expense achieved as a result of Energoservice consumption reduction and/or costs of energy resources and / or of utility services compared with consumption (expenditure) in the absence of such measures [11]. The term «Energoservice» said Law understands the complex technical and organizational energy saving ( energy efficient ) and other measures aimed at reducing customer Energoservice consumption and / or costs of energy resources and / or housing services compared to consumption (expenditure) by the absence of such measures. An analysis of the treaty criteria for predicting whether a prediction legislation ( and not poimenovani poimenovani contracts). According to the principle of freedom of contract the parties are free to contract, contractor selection and determination of the contract to meet the requirements of the Civil Code of Ukraine (hereinafter the Civil Code of Ukraine), other acts of civil legislation, business traditions, the requirements of reasonableness and fairness. Such freedom of contract can receive its expression in the conclusion of treaties that expressly provided the Central Committee of Ukraine and other acts of civil law poimenovani contracts. However dispositive civil law allows the parties in accordance with Part. 1, Art. 6. CC Ukraine sign a contract that is not provided for acts of civil law, but meets the general principles of civil law nepoimenovanyy contract. So poimenovani treaties is directly determined by the Central Committee of Ukraine and / or acts of civil legislation and nepoimenovani a contract that is not legally prescribed. D.I. Meyer in his time pointed out that based on the legal certainty of contracts are divided into independent and captive; independent is specified in legislation and identified it; captive all the others. However, the authors noted that it would be better but call first contracts registered, and some nameless for captive agreements can only be called such, do not exist by themselves, but are only a supplement to other treaties or that do not constitute separate types of contract, and fit the concept of other independent contracts. But either of the other signs do not reflect the (Russian predstavljajut insert our R.P. ) called captive agreements, which are only mentioned in the legislation and are not defined. Therefore, the better it seems to call them

3 anonymous, and others registered, just as in Roman law there is distribution agreements for contractus nominati and contractus innominati [ 8, p. 500]. Correct reasoning is Dikovskoyi I.A., which notes that the definition of a model regulation nepoimenovanoho agreement depends on what is this nepoimenovanist, ie whether the contract is nepoimenovanym view poimenovanoho type, whether it is a type of contract nepoimenovanyy [4, p. 264]. Thus, the question arises whether the legislator provides contract design, which consists of two types poimenovanyh contracts can be considered poimenovanym contract? In private law doctrine was felt that since there is a mixed agreement, which contains elements of various contracts, then it can be included as a provision poimenovanyh and nepoimenovanyh contracts. Given this, and most contracts can be mixed as poimenovanymy and not poimenovanymy [6, p. 317]. It should be noted that it is possible to recognize poimenovanymy mixed agreements, but it will only display the name of the design contract that does not reflect the new type of contract, and is enshrined in legislation only for ease of use. Some authors suggest that in law enforcement is extremely important to distinguish the novelty of the design and content of the inherent nepoymenovanym treaties and superficial original name of the contract. This is a problem due to the fact that most of the contracts with new, original titles (investment contracts, etc.) are mixed in reality and not nepoimenovanymy contracts. This situation often occurs in contractual practice where the parties are not critical, mechanically reproducing economic concepts (investment, business project, etc.), replacing them wording of the contract based on civil law structures. As a result of concrete actions for the implementation of such agreements is a collection of several traditional performance of contracts ( sale, contract, loan, partnership, etc.). In these cases, the design of mixed contract allows qualify these contractual relations, without prejudice to the interests of the parties, but preserving the effectiveness of civil law regulation [ 10]. It should agree with the above reasoning, because the name of the contract, fixed legislator does not always reflect it as a new type of contract, and can combine existing types for ease of use, but to achieve the goal could be to conclude two different agreements. Speaking of energy service contract should pay attention hectares that lawmakers «de jure» affirmed works and services in one contract and provided such design items. In this context it is important to understand whether to include the specified contractual agreements poimenovanyh design or not? Some authors indicated that called mixed agreement which creates obligations that are part of two or more regulated common law contractual relationship. For example, a contract in which one party agrees to transfer the ownership of the thing, and another perform a risk to his work, is a mixed agreement: it combines obligation regulated by the law applicable to the sale and to the contract. Similarly mixed agreement is a contract in which one party agrees to provide the use of living space and, in addition, to provide certain services and provide food (Treaty of holiday homes, motels, etc.). In the first example duties regulated by law in respect of different standard contracts set a mixed agreement partly on one side, partly on the other; in the second case it is a combination of commitments on one side [10, p. 102]. Thus, the reasoning expressed that mixed contract may cross combination of elements of various agreements the two sides of the contract or the parallel combination of elements of various contracts by one party. This combination was only possible if combined elements of contractual types or kinds of different contractual types. In turn A.A. Krasavchykov said that is a mixed agreement, which implies an obligation that has featured two or more types, or within the same type attributes of two or

4 more families [12, p. 448]. Part of maintaining this position, it is worth noting that, in our opinion, the obligation that has featured two or more families within the same type of contract can not be considered a mixed agreement. In this context, noteworthy considerations A. Joffe, who said if contracted mediate two or more different types of relationships and combines conditions objectively necessary for the formation of different types of commitments, it becomes a mixed agreement [5, p. 38]. Thus, we conclude that in order to sign a contract subject to a mixed, requires the presence of a variety of elements of civil contracts, that the object and / or essential terms of the contract. Given that we have studied the agreement contains elements of different types of contracts, namely the contract award and contract for services, the contract can be attributed to the mixed agreement. However, RA Lidovets notes that the result of the mixed contract formed a single undertaking (in the broad sense), which aims to achieve a common goal, because the parties, combining various conditions of civil contracts, associated exercise their rights and duties under one of these agreements, the implementation of rights and duties under another contract [7, p. 8]. Thus, energy can be attributed to the agreement itself, forming a single commitment, although containing different types of contracts, so it is a mixed nepoimenovanym contract, which includes two types poimenovanyh contracts. By carrying out analysis and determining location of energy service contract in private law, it is appropriate to consider the subject of this contractual obligation. Thus, the Law «On ESCO» of the contract defines the implementation of complex technical and organizational energy saving (energy efficient) and other measures aimed at reducing customer Energoservice consumption and / or costs of energy resources and / or housing services compared to consumption ( costs) in the absence of such measures. It follows that investigated the subject of the contract legislator combines elements of the contract award and contract for services. The terms of the contract may include conditions that include activities related to the implementation, acceptance of works that consist in setting technical re-equipment of the building (eg replacement of wiring, equipping every apartment separate gauges, etc.), improving the general characteristics of the building (such as insulation, ventilation, window replacement, etc.). However, the terms of service agreement include conditions that include activities by conducting energy audits, ongoing monitoring, test the effectiveness of the measures and so on. Thus, the study contract contains elements of two different types of contracts. A.I Vasilchyenko speculation that lawmakers to energy treaty focuses not so much on achieving a certain result (energy saving), but on the process that can achieve the result indicated by the redistribution of financial risks, because in modern Russian conditions it is important to provide sub the objects, which have a small budget, the ability to upgrade with minimal cost. Consequently, the author concludes that energy service contract is a contract by which one party (the executor) on the instructions of the other party (the customer) undertakes to provide services ESCOs, that carry out activities aimed at establishing and maintaining energy saving mode for about site of the customer, and the customer agrees to pay for these services [1, p ]. In turn, under the subject of the treaty researcher understands the provision of services of Energy and Energy contract relates to the type of service contracts [1, p. 61]. Perhaps the doctrine of private law could be pohodysya with such energy service contract agreements to provide services, but in private law doctrine of Ukraine is not appropriate to attribute the said agreement only to one particular type of contract. If we assign the contract to the Energy contract type of service we znivelyuyemo provisions inherent in the contract and to energy contained in the contract.

5 In this context, is specious reasoning AB Hrynyaka, which states that a contract should be distinguished from service contracts governed by Ch. 63 Civil Code of Ukraine. When it comes to activities in the form of «work» that consumers are interested in the end result of this activity, which takes the form of a materialized, that is, an object of civil rights as «results of operations». When it comes to services as object of civil rights, it is taken into consideration not the result, which is consumed in carrying out the activities and actions that led to it [2, p ]. In turn, A. Joffe noted that the commitment to execute one of the contractors assigned to achieve some tangible results. If it is not achieved, the obligation is considered fulfilled, even obliged person and did everything necessary to achieve it. We can not accept a contract executed if the completed work accident die to transfer to the customer, despite the fact that the contractor did everything possible to complete it. The obligation to provide services to each counterparty instructs otherwise the case should not connected with the creation of tangible results, and achieving the various other effects. Therefore, if the assigned work is properly considered that the contractor fulfills a commitment made, at least the expected effect and did not come [5, p. 489]. Conclusions. Thus, if we take as a basis the distinction specified, it can be concluded that the design of energy service contract may be only in the form of mixed agreement, and given the performance, the result of which has materialized and services that are consumed in the process of providing it. In passing, it should be noted that one of the essential conditions of the energy service contract is a condition on the order of transfer to the customer of property that has been established (set) it for energy service contract, that is the end of the contract, and, consequently, the materialized result, will be used to continue maintaining the level of energy that was in the contract. Given that energy service contract has one goal, which is at its core, it combines elements of the legal contract agreement and contract for services. References 1. Vasylchenko A. Y. Эnerhoservysnыi dohovor : dyssertatsyia... kandydata yurydycheskykh nauk : / A. Y. Vasylchenko. Sankt-Peterburh, s. 2. Hryniak A. B. Osoblyvosti rozmezhuvannia dohovoriv pidriadu ta dohovoriv pro nadannia posluh [Tekst] / A. B. Hryniak // Pidpryiemnytstvo, hospodarstvo i pravo S Dyrektyva 2006/32/IeS yevropeiskoho parlamentu i rady vid 5 kvitnia 2006 roku pro efektyvnist kintsevoho vykorystannia enerhii ta enerhetychni posluhy, a takozh pro skasuvannia Dyrektyvy Rady 93/76/IeES // [Elektronnyi resurs]. Rezhym dostupu : 4. Dikovska I. A. Poimenovani ta nepoimenovani dohovory u pravi okremykh krain / I. A. Dikovska // Pryvatne pravo S // [Elektronnyi resurs]. Rezhym dostupu : 64.exe?C21COM=2&I21DBN=UJRN&P21DBN=UJRN&IMAGE_FILE_DOWNLOAD =1&Image_file_name=PDF/prpr_2013_1_27.pdf. 5. 5Yoffe O. S. Obiazatelstvennoe pravo / O. S. Yoffe. M. : «Iuryd. lyt.», s. 6. Kozlyieva Z. U. Katehoriia «nepoimenovani dohovory» u tsyvilnomu pravi Ukrainy / Z. U. Kozlyieva // Aktualni problemy pryvatnoho prava : materialy mizhnar. nauk.-prakt. konf., prysviach. 93-i richnytsi z dnia narodzh. V. P. Maslova, Kharkiv, 27 liut r. Kharkiv, S

6 7. Lidovets R. A. Zmishani dohovory v tsyvilnomu pravi Ukrainy : avtoref. dys. na zdobuttia nauk. stupenia kand. yuryd. nauk : / Lvivskyi natsionalnyi un-t im. Ivana Franka / R. A. Lidovets. L., s. 8. Meier D. Y. Russkoe hrazhdanskoe pravo (v 2 ch.) / D. Y. Meier // Po yspravlennomu y dopolnennomu 8-mu yzd., Yzd. 2-e, yspr. M. : Statut, s. 9. Novytskyi Y. B. Lunts L. A. Obshchee uchenye ob obiazatelstvakh / Y. B. Novytskyi, L. A. Lunts. M. : Yur. lyt., s. 10. Ohorodov D. V. Smeshannыe dohovorы v chastnom prave: otdelnыe voprosы teoryy y praktyky / D. V. Ohorodov, M. Iu. Chelыshev [Elektronnyi resurs]. Rezhym dostupu: Pro zaprovadzhennia novykh investytsiinykh mozhlyvostei, harantuvannia prav ta zakonnykh interesiv sub iektiv pidpryiemnytskoi diialnosti dlia provedennia masshtabnoi enerhomodernizatsii: Zakon Ukrainy vid VIII [Elektronnyi resurs]. Rezhym dostupu : Sovetskoe hrazhdanskoe pravo : v 2 t. Tom 1 / Krasavchykov O. A. M. : Vyssh. shk., s. 13. Uhoda pro asotsiatsiiu mizh Ukrainoiu, z odniiei storony, ta Yevropeiskym Soiuzom, Yevropeiskym spivtovarystvom z atomnoi enerhii i yikhnimy derzhavamy-chlenamy, z inshoi storony vid // Ratyfikovano Zakonom Ukrainy «Pro ratyfikatsiiu Uhody pro asotsiatsiiu mizh Ukrainoiu, z odniiei storony, ta Yevropeiskym Soiuzom, Yevropeiskym spivtovarystvom z atomnoi enerhii i yikhnimy derzhavamy-chlenamy, z inshoi storony» vid VII // [Elektronnyi resurs]. Rezhym dostupu :