Constitutional Court

KI103/23, Applicant: The Energy Regulatory Office of the Republic of Kosovo, Constitutional review of Judgment [Arj. no. 116/2022] of 9 March 2023 of the Supreme Court of the Republic of Kosovo

Keywords: individual referral, ERO, electricity bills  

The Constitutional Court of the Republic of Kosovo has decided on the referral in case KI103/23, with the applicant The Energy Regulatory Office of the Republic of Kosovo, pertaining to constitutional review of the Judgment [Arj.nr.116/2022] of 9 March 2023 of the Court Supreme Court of the Republic of Kosovo, submitted to the Court pursuant to paragraph 7 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution of the Republic of Kosovo.

The Court, unanimously, held that: (i) the referral is admissible; and (ii) Judgment [Arj.nr.116/2022] of 9 March 2023 of the Supreme Court, is not contrary to paragraph 1 of Article 31 [Right to Fair and Impartial Trial] of the Constitution of the Republic of Kosovo and paragraph 1 of Article 6 (Right to a fair trial) of the European Convention on Human Rights.

The circumstances of the concrete case concern the lawsuit of the Ombudsperson (i) for the annulment of the Decision of 6 February 2012 of the Energy Regulatory Office “on the reduction of electricity distribution losses” as unlawful ; as well as (ii) on the request for compensation of damage to consumers who have been billed for electricity consumption in the four (4) northern municipalities of the Republic of Kosovo. The Ombudsperson alleged before the regular courts, among other things, that (i) the billing of electricity consumed in the four (4) northern municipalities of the Republic of Kosovo to other consumers who live in other municipalities of the Republic of Kosovo, constitutes a violation of Law no. 05/L-084 on the Energy Regulatory and Law no. 05/L-085 on Electricity; and (ii) this billing practice constitutes a violation of the right to property as guaranteed by Article 46 [Protection of Property] of the Constitution and a violation of the right to equality before the law as guaranteed by Article 24 [Equality before the Law] of the Constitution.

After assessing the allegations of the Ombudsperson, the Basic Court annulled  the aforementioned Decision of the Energy Regulatory Office as unlawful and ordered the return of the amount billed, respectively the compensation of the damage to consumers who were billed for the consumption of electricity in the four (4) northern municipalities of the Republic of Kosovo for the period 6 February 2012 to 20 October 2017, in the amount of forty million eight hundred and fifty five thousand four hundred and eighty euros (40,855,480.00 EUR). The finding of the Basic Court was upheld by the Court of Appeals and the Supreme Court. According to the regular courts, in essence and among others, despite the fact that the Energy Regulatory Office has the competence with respect to the treatment of regulatory parameters and the billing of the cost of lost electricity in the transmission and distribution system, billing the losses caused in the four (4) northern municipalities of the Republic of Kosovo to other consumers of the Republic of Kosovo, had resulted in unequal treatment of citizens, contrary to the provisions of Article 55 [Limitations on Fundamental Rights and Freedoms] of the Constitution and Law no. 05/L -021 on the Protection from Discrimination, because there was no legitimate aim and there was no proportionality between the means employed and the aim pursued.

The applicant, namely the Energy Regulatory Office, before the Court challenged the decision-making of the regular courts, claiming that the decisions were rendered in violation of the rights guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to fair trial) of the European Convention on Human Rights, as a result of (i) manifestly erroneous application of the law; and (ii) the lack of reasoning of the court decision.

In assessing the allegations of the applicant, namely the Energy Regulatory Office, the Court first elaborated the general principles of its case-law and that of the European Court of Human Rights, regarding (i) the manifestly erroneous interpretation of the law; and (ii) the right to a reasoned judicial decision, as guaranteed by Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction to Article 6 (Right to fair trial) of the European Convention on Human Rights, and then (ii) applied the same to the circumstances of the present case. According to the clarifications given in the Judgment, the regular courts had taken into account and evaluated the essential allegations of the applicant and by referring to the constitutional provisions and the provisions of the applicable laws, including (i) Articles 4 (Consumer rights) and 12 ( Invoice) of Law no. 04/L-121 on Consumer Protection, which guarantee the basic rights of the consumer, including the right to protect the consumer’s economic interests and the right to protect property, and (ii) Article 194 (General rule) of Law no. 04/L-077 on Obligational Relationships in terms of unjust enrichment and the obligation of the applicant to make compensation for the damage to consumers who have been billed for the consumption of electricity in the four (4) municipalities of the Republic of Kosovo, during the period from 6 February 2012 to 20 October 2017, they determined that such billing practice is not authorized by law and amounts to unequal treatment of the citizens of the four (4) municipalities vis-à-vis the citizens in the rest of the Republic of Kosovo.

In the following, as it pertains to the connection of the allegation of the Energy Regulatory Office with the findings of the Court in its Judgment KO93/21, with the applicant Blerta Deliu-Kodra and 12 other deputies, the Judgment clarifies that that case differs substantively from the circumstances of the case at hand, among others, because in case KO93/21, the Court had reviewed the constitutionality of the Recommendations [No. 08-R-01] of 6 May 2021 of the Assembly of the Republic of Kosovo, according to which (i) KOSTT had been authorized to cover electricity deviations in the four (4) municipalities of the Republic of Kosovo, using revenues from its own budget, funds which would be compensated “by dividends or any other possible mechanism“; and (ii) the Government of Kosovo was obliged, within a period of six (6) months, to ensure the entire process of including in the billing system, according to the rules and laws in force, in cooperation with the responsible parties, for consumer billing in the four ( 4) the relevant municipalities with electricity. According to the clarifications given in Judgment KO93/21, the Court had held that the contested act of the Assembly was not in contradiction with the relevant provisions of the Constitution, among others, because the difference in the treatment of electricity consumers on the basis of residence, (i) pursued the legitimate aim of implementing the Connection Agreement with ENTSO-E, namely the European Network of Transmission System Operators for Electricity; and (ii) was of temporary nature. Taking into account the legal provisions, the legitimate aim and the temporary nature of the contested act of the Assembly, including the obligation of the Government to address the issues pertaining to the relevant billing system, the Court had assessed that contested act was proportional to the aim pursued.

Consequently, the Court, in applying the elaborated criteria and principles with respect to a reasoned judicial decision, and in particular based on the interpretation given through the judgments of the regular courts contested before the Court, found that the same have addressed and responded to all essential allegations of the applicant raised through its response to the lawsuit and the appeal, respectively, as well as the through request for an extraordinary reconsideration of the court decision, and held that the challenged judgment of the Supreme Court is not in contradiction with the respective provisions of the Constitution of the Republic of Kosovo.