The conditions in the housing and communal services market are changing for the single utility operator of Voronezh

The Arbitration Court of the Voronezh Region sided with the territorial administration of the Federal Antimonopoly Service in a dispute with JSC EPSS Housing and Public Utilities VO, the largest operator of payments for utility services in the region. The arbitration supported the decision of the OFAS commission, which had previously found a violation of antimonopoly legislation in the activities of the Unified Processing Service System for Housing and Communal Services of the Voronezh Region, headed by the deputy of the city duma of the regional center Ruslan Kochetov. The largest management companies of Voronezh became participants in the case, and the FAS commission relied on materials from the FSB. The departments are confident that the operator has entered into “competition-limiting” agreements with utility market participants. Up to 500 million rubles pass through EPSS accounts monthly.

The head of EPSS Housing and Communal Services VO, Ruslan Kochetov, does not accept the arguments of the Federal Antimonopoly Service
Photo: press service of the Voronezh City Duma

Voronezh Arbitration Judge Tatyana Pimenova made a decision on the claim of EPSS Housing and Communal Services VO JSC against the Federal Antimonopoly Service last Friday. The third parties in the case were 16 of the largest companies managing Voronezh housing stock. All of them sought the cancellation of the decision of the OFAS commission in case No. 37-11K dated May 15, 2015 and the orders issued on its basis. They tried to prove that the agreements concluded between them “do not contain direct or indirect restrictions” prohibiting companies from independently accepting payments from consumers for services. Representatives of the Federal Antimonopoly Service insisted that the management company “artificially created obligations” for the housing owners to the EPSS, although the operator is neither the executor of the housing services nor its representative.

According to the decisions of the Federal Antimonopoly Service, the department was prompted to study the relationship between the operator and its partners in the housing and communal services market at the beginning of this year by statements from several individuals and materials from the Federal Security Service. Attentive citizens, in particular, pointed out that their funds for housing and communal services are transferred to a regular EPSS settlement account at the Central Bank of the Savings Bank of the Russian Federation. The Federal Antimonopoly Service opened a case on grounds of violation of paragraph 1 of Part 4 of Art. 11 of the law on the protection of competition (on the conclusion of an agreement that leads to the imposition of unreasonable conditions on the owners for the transfer of money for services provided by a specific management company to the current account of the EPSS), and in May ordered the JSC to terminate the agreements. Disagreeing with this, the operator and its partners turned to arbitration.

The court supported the Federal Antimonopoly Service, recalling that according to the law, “a paying agent is required to use a special bank account when accepting payments.” In addition, the arbitration supported the antimonopoly authorities in concluding that the EPSS and the Criminal Code “arbitrarily established a different procedure for paying fees for housing and communal services, contrary to that established by the Housing Code of the Russian Federation.” This, according to the department, led to a violation of the law on the protection of competition, since the management company, having signed an agreement with the operator, abandoned a number of independent actions in the market. The operator is given a month to appeal the decision to the Nineteenth Arbitration Court of Appeal (located in Voronezh).

According to SPARK-Interfax, JSC EPSS Housing and Communal Services VO was registered in 2013 in Voronezh. Authorized capital - 60 million rubles. As of September 2015, 50% of the company belongs to LLC Information and Computing Center, owned by Vladimir Smolyaninov, 25% to the regional property department, another 25% to the Municipal Unitary Enterprise Information and Computing Center. The company has branches in Borisoglebsky, Kalacheevsky, Ostrogozhsky and Rossoshansky districts of the region. Financial indicators are not disclosed. The joint-stock company, according to its own data, was created to “improve the quality of service to the population in the housing and communal services sector, ensure transparency of payments for utility resources and create a single payment document.”

The FAS and FSB did not officially comment on the arbitration decision. The EPSS considered it “unfounded”: “Neither during the consideration of the FAS case, nor in court, we were able to obtain an explanation of whose rights are limited as a result of the conclusion of agreements between the EPSS and the Criminal Code... A number of our clients have already expressed indignation, so how the entry into force of such a court decision may impose on them additional responsibilities both for the preparation of reporting documentation and for the splitting of payments.” The company assured that if a higher authority renders a verdict in favor of the Federal Antimonopoly Service, they will make changes to their payment documents. “We cannot exclude a rollback to the status of the management company as a provider of public services. As a result, the recipient of the funds will be the management company, which in the future will have to independently distribute the money among resource providers,” added representatives of the operator. According to them, the EPSS has a special account, but so far uses it in about 5% of its transactions: “The vast majority of payment centers in Russia have their own cash desks, through which they accept cash payments from the public. It is in these cases that the law provides for the use of a special account. EPSS does not have its own cash desks and carries out 95% of transactions through organizations such as Sberbank, Russian Post and others. However, neither the OFAS nor the court examined the relevant circumstances.”

The EPSS assured Kommersant that an “analysis of the issued judicial act” is currently underway to prepare an appeal, and it will be filed “no later than December 7.” The company estimated the volume of payments for housing and communal services, which accumulate monthly in the accounts of the Unified Social Insurance Fund, at 450–500 million rubles. Payments come from the owners of approximately 9 million square meters. m of housing (about 60% of the housing stock in Voronezh).

Former deputy of the Voronezh City Duma Fyodor Kovalev does not believe that the EPSU will agree with the position of the OFAS: “Now in the local housing and communal services market everything is very centralized. If you don’t work with EPSS, you won’t be able to stay on it. But I would not say that payment discipline in relation to resource suppliers has increased significantly. Only Gazprom and Quadra, which collect payments for their services independently, do not complain. There is a feeling that the EPSS was created as a version of a “single pocket” from which funds can be obtained not only to pay for housing and communal services.” Mr. Kovalev has no doubt that the single operator will file an appeal only in early December in order to “delay its consideration until the New Year, having the opportunity to collect payments under the current conditions for all holidays.”

Andrey Tsvetkov, Maria Kotova

FAS forces EPSS to pay on a special account