DISCRETIONARY POWERS OF THE ENERGY REGULATOR IN UKRAINE

Анотація

The article analyzes the discretionary powers of the National Commission for State Regulation of Energy and Utilities in Ukraine, including in the fi eld of setting tariff s for electricity.In order to achieve the specifi ed goals, the task was set, namely, to investigate the essence of discretionary powers and trace the application of the norms of granting discretionary powers to the Regulator; to study their impact on the functioning of electricity market entities; to determine ways to eliminate shortcomings.The issues discussed in the article are extremely relevant for Ukraine as its energy sector is undergoing a transition from the Soviet model of state control and management to the European (market) one.On the way towards changes and transformations, the position and approaches of the Regulator play a decisive role.Legislation on energy and control of the Regulator's activities is far from perfect and contains many contradictions within its structure.Contradictions and imperfections are also manifested in the activities of the Regulator itself and its approaches to the regulatory process.On the one hand, the Regulator has a very signifi cant and wide range of powers in the energy sector and the ability to infl uence energy market participants regarding the approval of tariff s, investment programs, network development programs, etc., including the possibility of noticeably worsening the position of one participant and considerably improving the position of another through the mechanisms of inspections and approvals, while on the other hand not showing real principles, a professional approach and orientation to eff ective regulation to reduce tariff s for socially important services of natural monopolies.Under martial law, the Regulator increasingly resorts to manual regulation of specifi c processes and procedures, thereby delaying changes and transformations.For example, the issue of electricity theft in our country is within the competence and responsibility area of distribution system operators, which, following current legislation, shall detect the facts of electricity theft, record them, and seek compensation for damages caused by violators.At the same time, under the European approach to settling the issue concerned, the function of the energy distribution company is only to reveal such facts, and everything else is within the jurisdiction of law enforcement agencies.In order to change approaches to dealing with energy issues, the Regulator's standpoint should be more active and professional.Purpose.The purpose of the article is to analyze and identify shortcomings in exercising discretionary powers by the Regulator when making decisions on setting tariff s.Research methods.The following scientifi c methods were used: methods of system analysis and generalization, formal-logical method (to defi ned the concept of discretionary powers), comparative legal method (to compare the legislation of diff erent countries on decision-making on tariff setting by the regulator, statistical method (to analyse statistical information on court decisions), as well as functional-legal method.Results.The research analyses the broad statutory regulation of the Regulator's discretion and the lack of regulatory limits and a legislative mechanism to control the implementation of the Regulator's discretionary powers in tariff setting, evidenced by numerous court cases under which the National Commission for State Regulation of Energy and Public Utilities is the defendant.The research consists of separate parts that are aimed at achieving a common goal: 2. Terminological defi nitions; 3. Regulatory defi nition of the limits of the Regulator's discretion; 4. Powers of the Regulator to set tariff s.Conclusions.As a result of the study, the author has urged to legislate a mechanism for the individual responsibility of the Regulator's members for their decisions.Furthermore, the regulatory decisions of the national energy regulatory authorities have to be made under the principle of sole management or individual responsibility.The principle ensures greater effi ciency in decision-making because it does not require the separate standard organisational procedures that always accompany collegial decision-making.

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