Lenders do have right to collect debts from companies of FEC
Kyiv. December 20, 2012
Suspended enforcement proceedings with regard to substantial quantity of court decisions on collection of debts from the companies of the Fuel and Energy Complex (the FEC) have to be recommenced due to the Decision of the Constitutional Court of Ukraine (the CCU); in particular, lenders did received the possibility to collect debts from indebted companies.
This opinion Ihor Martsyn, partner at Volkov and Partners expressed to the “Interfax-Ukraine” information agency, commenting the Decision of the CCU dated December 13. This Decision prescribes that enforcement proceedings connected with collection of indebtedness from the companies of the FEC may be suspended just in case, when such indebtedness resulted from partial energy settlements.
“Therefore, lenders to the companies of the FEC, which cannot be associated with the Law “On Measures Purposed to Ensure Sustainable Work of Companies of the Fuel and Energy Complex”, get a real possibility to collect debts from debtors,” commented on the Decision Ihor Martsyn.
According to him, until recently one could not have been on the safe side in cooperation with the FEC: in case a company of the FEC did not fulfil its responsibilities there is a slim chance of debt to be returned.
“This fact was based on the provision of the Law of Ukraine “On Enforcement Proceedings”, according to which the bailiff could suspend the proceedings, referring to the registration of the debtor in the Register of the companies of the FEC. However, the CCU provided official interpretation of the indicated provision of the Law “On Enforcement Proceedings,” said the lawyer.
In particular, the CCU indicated that enforcement proceedings connected with the indebted company of the FEC could be suspended only in case if the debt-to-be-collected defined in the Law on the FEC, namely, debt for energy, only if the parties to the enforcement proceedings are also parties to settlements under the Law on the FEC.
Additionally, Ihor Martsyn underlined that real enforcement proceeding with regard to the monetary responsibilities of the FEC’s companies, though restarted, and might not be useful in practice, whereas the debt amounts are rather sustainable and accrued during many years (within the standstill period on enforcement of the adopted decisions).
Reportedly, on December 18, the CCU announced a Decision in the case initiated upon request of Volkov and Partners Law Firm filed in favour of the DID Kons Ltd. and with plea for official interpretation of the provisions of the Law “On Enforcement Proceedings” considering their relation to the Constitution of Ukraine, Economic Procedural Code and the Law “On Measures Purposed to Ensure Sustainable Work of Companies of the Fuel and Energy Complex”.
The author of the request asked the CCU to interpret whether or not the possibility of enforcement proceedings suspension governed by the provisions of Laws “On Enforcement Proceedings” and “On Measures Purposed to Ensure Sustainable Work of Companies of the Fuel and Energy Complex” based on the indebtedness nature; in particular, whether or not it resulted from the partial settlements for energy.
The request also includes the plea to interpret whether the record in the register of the companies of the FEC participating in the procedure of debt settlement can be regarded as unconditional basis to stop enforcement proceedings.