SOME ASPECTS OF THE LEGAL QUALIFICATION OF BALANCING RELATIONS OF THE GAS TRANSPORTATION SYSTEM

Abstract

The article covers topical aspects on the management of relations arising in connection with the performance by the operator of the gas transportation system of Ukraine of the balancing function when implementing the activities of transportation of natural gas by the gas transportation system. It is argued that economic activity of transportation of natural gas by the gas transportation system is regulated by Section 32 of the Economic Code of Ukraine (EC). The activity of transportation of natural gas is covered by the definition of cargo transportation (Article 360 of EC) because under the contract for natural gas transportation in the pipelines the transposition of industrial and technology production is carried out. Accordingly, relations arising out of the contract for natural gas transportation are covered not only by Civil Code of Ukraine (CC), Laws of Ukraine "On transportation", "On pipeline transportation", "On the natural gas market" and other legislative acts, but also by the norms of the EC, in particular, in terms of legal regulation of cargo transportation and contracts for cargo transportation. In general, the system of relations on the natural gas market can be presented as a body of contracts of different types concluded by the participants of the natural gas market. Rights and obligations of the participants of the natural gas market as parties to relevant contracts are defined directly by the Law "On the natural gas market", as well as by the Gas Transportation Systems Code (GTSC) and by the Model Contract for Natural Gas Transportation, approved by the decision of the National Energy and Utilities Regulatory Commission (NEURC), other subordinate legislation. In its essence, the GTSC is an act of co-regulation of economic activity of the natural gas market by two participants: by NEURC as a regulatory authority in energy and utility and by an economic entity — an operator of the gas transportation system. Accordingly, it is hierarchi cally subordinated to acts of the higher normative level (EC and CC), special laws that regulate relations in the sphere of natural gas transportation, and cannot contradict them. This requirement of hierarchy is manifested, among other things, in the fact that subordinate legislation cannot change mandatory norms of acts of higher legal force, including legal constructions of sale and purchase contract and service contract. In this regard, it is argued that balancing of the gas transportation system and settling of imbalances of customers of gas transportation services shall not be considered as an object of legal relations on the provision of services within the meaning of general norms of Section 63 of CC on services.