Comment to article 165. Violation of the procedure for the sale of electric energy The Code of the Republic of Kazakhstan on Administrative Offences

Home / Codes / Comment to article 165. Violation of the procedure for the sale of electric energy The Code of the Republic of Kazakhstan on Administrative Offences

1. Sale (sale) of electric energy by an energy-producing organization, with the exception of cases of sale (sale) at spot auctions (no more than ten percent of the volume of electric energy produced by them), on the balancing market and for export, at a tariff exceeding, respectively, the maximum, individual, calculated tariffs of electric energy, -

entails a fine on legal entities in the amount of ten percent of the income (revenue) received as a result of committing an administrative offense.

2. Sale (sale) of electric energy by an energy-producing organization to individuals and legal entities that are not subjects of the wholesale and (or) retail market, with the exception of cases of export of electric energy, -

entails a fine on legal entities in the amount of one hundred percent of the amount of income (revenue) received as a result of committing an administrative offense.

3. Illegal acquisition (purchase) of electric energy by an energy-producing organization from another energy-producing organization -

entails a fine on legal entities in the amount of one hundred percent of the amount of payment for electric energy acquired (purchased) as a result of an administrative offense.

4. Illegal sale (sale) of electric energy by an energy supply organization to another energy supply organization, as well as its illegal acquisition (purchase) from another energy supply organization -

they entail a fine on legal entities in the amount of one hundred percent of the amount of payment for electric energy sold (sold), as well as purchased (purchased) as a result of an administrative offense.

Notes.

1. Income (revenue) received as a result of committing an administrative offense is understood as:

1) according to the first part of this article: the difference between the income (revenue) received by an energy producing organization, with the exception of the cases provided for in this article, and income (revenue) calculated according to the marginal, calculated, individual tariffs of electric energy, respectively.;

2) according to parts two, three and four of this Article: all income (revenue) received as a result of violation of the ban on the sale (sale) of electric energy established by the legislation of the Republic of Kazakhstan on the electric power industry.

2. The income (revenue) should also include the cost of electricity sold, but not paid for by the date of drawing up the protocol on an administrative offense.

The commented article establishes administrative liability for violation by an energy-producing organization of the procedure for the sale (sale) and purchase of electric energy.

The generic object of offenses provided for in Article 165 of the Administrative Code is the procedure established in the legislation of the Republic of Kazakhstan and protected by the state for conducting business in the Republic of Kazakhstan.

The direct object of the offenses provided for in Article 165 of the Administrative Code is the procedure established by the legislation of the Republic of Kazakhstan for the sale (sale) of electric energy by energy-producing organizations in the Republic of Kazakhstan.

The subject of the offense provided for in the commented article is a legal entity - an energy producing organization. An energy producing organization is an organization that produces electric and (or) thermal energy for its own needs and (or) sales. Energy supply, energy transmission organizations and consumers are not subjects of administrative responsibility according to the commented article.

The subjective side of the offense provided for in the commented article, committed by a legal entity-an energy-producing organization, is not subject to determination due to the existence of a legislative requirement to establish guilt as a condition for bringing to administrative responsibility, only in relation to individuals. According to the legislation of the Republic of Kazakhstan on administrative responsibility, legal entities are administratively liable for the mere fact that they have committed an illegal act or omission, for which administrative liability is provided for in the Administrative Code, without taking into account the guilt of the officials of the legal entity who committed this act.

The elements of administrative offences provided for in the commented article are material. To bring to administrative responsibility for their commission, it is necessary to establish the fact that the offender has caused material damage. Accordingly, the calculation of the fine under the commented article depends on the amount of income received by the energy producing organization as a result of committing an administrative offense.

Part 1 of the commented article establishes administrative responsibility for the sale (sale) of electric energy by an energy-producing organization at a tariff exceeding, respectively, the maximum, individual, calculated tariffs of electric energy (except in cases of sale (sale) at spot auctions (no more than ten percent of the volume of electric energy produced by them), balancing the market and for export).

The objective side of the administrative offense provided for in Part 1 of Article 165 of the Administrative Code is the commission by the energy-producing organization of illegal actions resulting in the sale (sale) of electric energy at a tariff exceeding, respectively, the maximum, individual, calculated tariffs of electric energy.

In accordance with paragraph 1) paragraph 3 of Article 12 of the Law of the Republic of Kazakhstan “On Electric Power Industry”, energy-producing organizations (with the exception of energy-producing organizations using renewable energy sources) are required to sell electric energy at tariffs not exceeding, respectively, the marginal tariff for electric energy and the marginal tariff for balancing electricity, except in cases of sale on spotauctions (no more than ten percent of the volume of electric energy generated by them).

The marginal tariff for electric energy, according to clauses 33-1) of Article 1 of the Law of the Republic of Kazakhstan “On Electric Power Industry”, is the maximum value of the selling tariff (price) for a group of energy–producing organizations selling electric energy, approved by the authorized body for a period of seven years, taking into account the costs of producing electric energy, purchasing electricity from the accounting and financial the Center for the support of renewable energy sources and a fixed profit, determined according to the methodology established by the authorized body.

By virtue of the direct indication of this in the commented norm, it is not an offense in accordance with Part 1 of the commented article to sell (sell) electric energy by an energy-producing organization at spot auctions (no more than ten percent of the volume of electric energy produced by them), balancing the market and for export. The concepts of spot trading and balancing market are defined in Article 1 of the Law of the Republic of Kazakhstan “On Electric Power Industry".

For committing an offense under Part 1 of Article 165 of the Administrative Code, an energy-producing organization-a legal entity is punished by a fine in the amount of 10% of the income (revenue) received as a result of committing an administrative offense.

According to subclause 1) of note 1 to the commented article, income (revenue) received as a result of committing an administrative offense is understood to be the difference between income (revenue) received by an energy-producing organization, with the exception of the cases provided for in this article, and income (revenue) calculated according to the marginal, calculated, individual electricity tariffs, respectively. energy;

At the same time, according to note 2 to the commented article, the income (revenue) should include the cost of electricity sold (but not paid for by the date of drawing up the protocol on an administrative offense.

The rate for calculating the fine under Part 1 of the commented article is fixed and is not subject to change by the body imposing it.

An administrative penalty under Part 1 of the commented article is imposed on the offender by the authorized body in the field of natural monopolies or by the court, in the case of a court hearing.

Part 2 of the commented article establishes administrative responsibility for the sale (sale) of electric energy by an energy-producing organization to individuals and legal entities that are not subjects of the wholesale and (or) retail market (except in cases of export of electric energy).

The objective side of the administrative offense provided for in Part 2 of Article 165 of the Administrative Code is the commission by the energy-producing organization of illegal actions resulting in the sale (sale) of electric energy to individuals and legal entities that are not subjects of the wholesale and (or) retail market (except in cases of export of electric energy).

According to the imperative requirement of clauses 1), clauses 3-2 of Article 13 of the Law of the Republic of Kazakhstan "On Electric Power Industry", an energy-producing organization is prohibited from selling (selling) electric energy to individuals or legal entities that are not subjects of the wholesale and (or) retail market, with the exception of exporting electric energy.

Accordingly, a violation by an energy-producing organization of the specified legislative prohibition entails administrative liability for it in accordance with part 2 of the commented article.

For committing an offense under Part 2 of Article 165 of the Administrative Code, an energy-producing organization-a legal entity is punished by a fine in the amount of 100 percent of the amount of income (revenue) received as a result of committing an administrative offense.

According to subclause 2) of note 1 to the commented article, income (revenue) received as a result of committing an administrative offense is understood to be all income (revenue) received as a result of violating the prohibition on the sale of electric energy established by the legislation of the Republic of Kazakhstan on the electric power industry.

The rate for calculating the fine under Part 2 of the commented article is fixed and is not subject to change by the body imposing it.

An administrative penalty under Part 2 of the commented article is imposed on the offender by the authorized body in the field of natural monopolies or by the court, in the case of a court hearing.

Part 3 of the commented article establishes administrative liability for the illegal acquisition (purchase) of electric energy by an energy-producing organization from another energy-producing organization.

The objective side of the administrative offense provided for in Part 3 of Article 165 of the Administrative Code is the commission by an energy-producing organization of illegal actions resulting in the illegal acquisition (purchase) of electric energy from another energy-producing organization.

According to the imperative requirement of paragraphs 2) paragraphs 3-2 of Article 13 of the Law of the Republic of Kazakhstan "On Electric Power Industry", an energy-producing organization is prohibited from acquiring (purchasing) electric energy from another energy-producing organization. The exception is cases of emergency capacity depletion in the amount determined based on the daily schedule of electric energy production, and (or) the purchase of electric energy in the amount of own needs.

Accordingly, a violation by an energy-producing organization of the specified legislative prohibition entails administrative liability for the offender in accordance with Part 3 of the commented article.

For committing an offense under Part 3 of Article 165 of the Administrative Code, an energy-producing organization, a legal entity, is subject to a fine of 100 percent of the amount of payment for electric energy purchased as a result of an administrative offense.

The rate for calculating the fine under Part 3 of the commented article is fixed and is not subject to change by the body imposing it.

An administrative penalty under Part 3 of the commented article is imposed on the offender by the authorized body in the field of natural monopolies or by the court, in the case of a court hearing.

Part 4 of the commented article establishes administrative liability for the illegal sale (sale) of electric energy by an energy supply organization to another energy supply organization, as well as its illegal acquisition (purchase) from another energy supply organization.

The objective side of the administrative offense provided for in Part 4 of Article 165 of the Administrative Code is the commission by an energy-producing organization of illegal actions resulting in the illegal sale (sale) of electric energy to another energy supply organization or in the illegal acquisition (purchase) of electric energy from another energy-producing organization.

In its second part, the objective side of the administrative offense provided for in Part 4 of the commented article reproduces in full the entire composition of the administrative offense provided for in Part 3 of the commented article (illegal acquisition (purchase) of electric energy).

In this regard, Part 4 of the commented article should be applied in cases where the actions of the offender involve only the illegal sale of electric energy to another energy-producing organization, or both illegal sale and illegal acquisition of electric energy take place simultaneously. At the same time, the application of part 4 of the commented article in the second case excludes the simultaneous application of Part 3 of the commented article to the offender.

According to the imperative requirement of clauses 3-2 of Article 13 of the Law of the Republic of Kazakhstan "On Electric Power Industry", an energy-producing organization is prohibited from selling (selling) electric energy to another energy supply organization, as well as its acquisition (purchase) from another energy supply organization.

For committing an offense under Part 4 of Article 165 of the Administrative Code, an energy-producing organization-a legal entity is punished by a fine in the amount of 100 percent of the amount of payment for electric energy sold (sold), as well as acquired (purchased) as a result of an administrative offense.

The rate for calculating the fine under Part 4 of the commented article is fixed and is not subject to change by the body imposing it.

An administrative penalty under Part 4 of the commented article is imposed on the offender by the authorized body in the field of natural monopolies or by the court, in case the case is considered in court at the request of the offender.

Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:

Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);

Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;

Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);

Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);

Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;

Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;

Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;

Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);

Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);

Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;

Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;

Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);

Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;

Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;

Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);

Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;

Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.

Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).

Date of amendment of the act: 01.01.2020 Date of adoption of the act: 01.01.2020 Place of acceptance: 100050000000 Authority that adopted the act: 103001000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 5 Status of the act: new Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act: COMM / CODE Legal force: 1900 Language of the Act: rus

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