SUPREME COURT RE-SUPPORTED FAS POSITION ON IMPORT SUBSTITUTION IN THE FRAMEWORK OF ENERGY SERVICE CONTRACTS

Customers must comply with the national regime when carrying out procurement

It should be reminded that in March 2022, the Supreme Court of the Russian Federation refused to satisfy the requirements of PEC LLC for invalidation of the letter* of FAS Russia. In accordance with this document, when purchasing energy-efficient measures, customers must be provided with a national regime for the supplied goods**. These rules give advantages to goods produced on the territory of the Russian Federation or the member states of the Eurasian Economic Union (EAEU).

The applicant did not agree with the court decision and filed a complaint with the Appeal Board of the Supreme Court. The company referred to the fact that no goods are supposed to be delivered under the energy service contract. The customer only needs high-quality services and achieving the necessary savings in energy resources. Thus, lamps and other equipment are only means of ensuring the customer's savings, and not the goods supplied during the provision of purchased services. According to the organization, prohibition of the admission of foreign goods should not apply to energy service contracts.

The Appeal Board of the Supreme Court of the Russian Federation sided with FAS Russia. The court confirmed that incorrect interpretation of the document by the company leads to the leveling of the requirements of the Law on the Contract System***.

FAS Russia notes that in the current economic situation, the creation and maintenance of its own technological sovereignty is one of the priorities both for the state as a whole and for state customers.

* Letter of FAS Russia of September 16, 2020 No. ИА/80326/20 “On the application of legislation on the contract system in terms of procurement for energy efficiency measures”

** Established by Part 3 of Article 14 of Federal Law of April 5, 2013 No. 44-FZ “On the Contract System in the Field of Procurement of Goods, Works, Services for State and Municipal Needs”

*** Federal Law of April 5, 2013 No. 44-FZ “On the Contract System in the Field of Procurement of Goods, Works, Services for State and Municipal Needs”

An energy service contract is a procurement procedure, the subject of which is the performance of actions aimed at power saving and energy efficiency improvement.