Ukraine continues to come up with increasingly fantastic claims to Russia. Now, Kiev has announced its intention forced to collect from Gazprom a fine for “abuse of a monopoly position in the market”, but also requires to agree on the construction of a pipeline that will be laid over hundreds of kilometers from the Ukrainian territory. How to react to it Gazprom?
The Antimonopoly Committee of Ukraine (AMCU) has made two very strange statements. First, he decided forcibly to recover from Gazprom a fine of $ 3 billion. Second, the AMC decided that Gazprom and its Western partners in the Nord stream – 2 needs to coordinate this project with the Ukrainian Antimonopoly office. Moreover, the AMC proposes them to contact the Committee with this statement. Ukrainian Antimonopoly body refers to the protection of economic competition.
“This is a required part of some program to “action” against the interests of Russia were constantly”
“If concerted actions lead or can lead to prevention, elimination or restriction of competition, in accordance with paragraph 5 of article 10 of the law on protection of economic competition, such concerted actions are prohibited to receive in the prescribed manner a permit from the Antimonopoly Committee of Ukraine”, – the statement says. Otherwise, according to the Ukrainian laws, the creation of such an entity recognizes a concentration of (dominant market position)”.
Before granting permission for concentration or concerted actions of the project participants are required to refrain from any action that could lead to restriction of competition in Ukraine, said in Kiev.
Lawyers and experts of the requirements of Antimonopoly Committee of Ukraine seem to be delusional fantasies. Gazprom will not have to pay an unjustified fine, or ask Kiev to approve the Nord stream – 2″.
The case of the fine
The Antimonopoly Committee of Ukraine has fined the Russian Gazprom in 2015 85,86 billion hryvnia for, as stated, the abuse of dominant market position in gas transit. Gazprom had to pay a fine to 12 April 2016, but did not and is not going to do. The Russian company then had made a valid surprise exhibited relatively fine, as Gazprom carries out business activities in Ukraine, and only passes fuel “Naftogaz of Ukraine” on the Western border of Russia.
Moreover, Gazprom wanted to appeal the decision on the penalty in the Ukrainian court, but the suit was returned without even considering. It only proved once again politicized and the groundlessness of the claims of Kiev.
Their essence, as explained by the head of AMKU Yury Terentyev, is that Gazprom allegedly violates the “key condition” of the transit contract from 2009, according to which the transit should exceed 100 billion cubic meters of gas per year. Gazprom is transportere through Ukraine less. This is made possible, said Ukrainian antimonopolists, thanks to the monopolistic position of Gazprom in the market of transit of gas. “Subject to the availability of competition in this market, Naftogaz would be able to break the contract, which is not actually executed, or to conclude it on favorable terms with another buyer,” – said Ukrainian official.
Claims of Kiev unconvincing and even absurd. First, in the contract there is no obligation to download transit capacity. There is a maximum possible volume of transit of 110 billion cubic meters, because these are the capacity of the Ukrainian pipeline. But in the contract there is no word about the fact that Gazprom is obliged to pump gas in such volumes.
Claims of Kiev to Gazprom about the lack of another seller of gas on the Ukrainian market, except for the Russian, seem even more absurd. Who prevented Ukraine to find another gas to transit through its pipeline? Not to mention the fact that this is clearly not Gazprom, but the Ukrainian authorities. Blame Gazprom that none other but him, in practice (not words) will not sell or pumping of blue fuel through Ukraine, at least strange.
Of course, the Ukrainian court will take the side of Ukraine, and Gazprom even listen to no one will. This means that the Ukrainian court for the purpose of compulsory payment of the fine will impose a lien on the assets of Gazprom in Ukraine and send the petition to other countries to arrest the Russian property there, said the lawyer AB “Business fairway” Anton Senichev.
Kiev can deal with the confiscation of the assets of Gazprom in Ukraine, however their size is small. Tangible oil and gas giant will be the only losing share in a pipe joint-stock company “Gaztranzit” said lawyer Vladimir Postnik. This company is engaged in management and operation of the gas industry objects on the territory of Ukraine, in particular, engaged in their modernization and construction, seeking investors. Gazprom and Naftogaz owns 40.2% of this company, another is 19.6% – the Turkish company “Turusgaz”.
Perhaps the Ukrainian authorities also will try to collect money from its residents-debtors of Gazprom, but their total amount will be very small compared to the size of the fine, says Postanak.
And, of course, Kiev may try to seize the foreign assets of Gazprom, but for that he need to start to obtain a decision in the Stockholm arbitration. The fact that the transit contract specifies that all disputes can be resolved only in Arbitration court of Stockholm chamber of Commerce. The decision of the Ukrainian court abroad no one would be interested.
The probability that the Stockholm arbitration court decides in favor of Kiev, is extremely small, according to Postanu.
First, the arbitration for several years considering the claims of Naftogaz to Gazprom, but none of them has not been satisfied. For this reason, the Ukrainian side is trying to levy a fine on the Russian company to bypass the agreement between Naftogaz and Gazprom: not through the chamber of Commerce of Stockholm and in the framework of the national judicial system, explains a lawyer. “Revealing another fact: on August 18 the Ukrainian side declared that will submit to the Stockholm arbitration a Supplement to the claim against Gazprom on gas transit. But they do not include the requirement of payment of a fine for violation of antitrust laws. Thus, the management of Naftogaz and the official Kyiv demonstrate that they understand the failure of the claims of the Antimonopoly service from the point of view of international law,” says Postanak.
“The situation with the forced recovery of the debt of Ukraine is legitimate only in the minds of the Ukrainian courts, the Ukrainian authorities and Naftogaz”. Someone with passion trying to catch pokemon, and the Ukrainian government came up with another game. But sane people in Gazprom the debt do not recognize, as it simply has no basis in reality”, – says the managing partner of the group of legal and accounting firms “SBP” Kira Gin-Bariseviciute.
In her opinion, to arrest the Russian assets of the Ukrainian authorities still will not come. “Notice that the court decision itself almost took place without the participation of Gazprom, and was taken by Ukrainian courts in the interests of Ukraine. In this situation it looks very not perfect, so go to the active actions of the authorities of the neighboring country will not be” – says Gin-Bariseviciute. In addition, Russia has much more opportunities to respond to such illegal selection of Russian property. “Ukraine’s debt to Russia is much higher, and it is based on the contracts that were actually concluded and executed,” recalls the lawyer. Not to mention the fact that the Ukrainian assets on Russian territory much more.
“In my opinion, these new attacks in Ukraine to Gazprom is not an attempt to recover billions – it is rather a mandatory part of a program that provides for “action” against the interests of Russia was conducted constantly” – sums up the expert.
The case of Nord stream – 2″
In fact, the second claim of the Antimonopoly authority of Ukraine to Gazprom and its partners in the Nord stream – 2″ did not dare to build a pipeline without the consent of the Ukrainian authority from the same series.
“This is a continuation of attempts to depoliticising project. It is obvious that Kiev has no legal reason to require approval for the construction of “Nord stream – 2″ with the competition authority of Ukraine. This is another attempt at self-promotion on the background of the story as did the poles,” – said zamgendirektora of the national energy security Fund Alexei Grivach.
The Polish regulator has decided not to approve the establishment of Gazprom and five Western companies – Engie, OMV, Shell, Uniper and Wintershall joint venture to Finance the construction of the Nord stream – 2″. Bids were submitted in two antitrust agencies – German and Polish. The Germans approved very quickly, the poles pulled more than six months and eventually killed the agreement.
Soon Gazprom and its partners on the project “Nord stream – 2” has decided to withdraw all served in Poland, a notification, thinking that would not create a joint venture. “All the Complainants believe the project “Northern stream – 2 is important for the European energy system, and each of the applicants will search for opportunities of contribution to the project,” they said.
Gazprom and its European partners decided that the poles contact will be more expensive. Even if it succeeds to prove them wrong, then it will take too much time and money that is better spent directly on actual construction of the pipeline.
“The Polish regulator has hackneyed a permit and forced companies to look for new packaging options for the construction of the Nord stream-2″, to not have to seek permission from politically engaged regulator,” – said Grivach. Gazprom and its partners will find some other way to Finance a project which will require coordination with the poles.
It would seem that Poland, like Ukraine – is irrelevant to the “Nord stream – 2, so why Gazprom and Western partners ever filed this claim to the Polish regulator? However, the difference there is. “Some of the shareholders of “Nord stream – 2″ decided just in case to get approval from the Polish regulator, because they have a business in Poland. But Poland took it and brought this story to the political level,” – explains Grivach.
Ukraine is not at all irrelevant to the “Nord stream-2”. “The difference with Poland is that the business of Gazprom shareholders there is no connection with Ukraine, respectively, nor any restriction of competition, the creation of this JV does not, on the contrary, competition increases due to the new route,” explains the source.
The opponents of Nord stream – 2″ the main weapon – the politicization of the project, so they are, puts Grivach. Of course, no one serve in the Ukrainian competition authority filings for approval of the “Northern project-2” will not.