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Saturday, March 17, 2018

Ukraine exposes misconduct penalty to Gazprom

After the illegal increase in transit fees for pumping Russian gas to Europe, Ukraine has exposed the fine Gazprom for 3.4 billion dollars for a monopoly position in the transit market. Gazprom rightly surprised by the lawlessness of the Antimonopoly Committee of Ukraine. The question remains – what are seeking Kiev? The worst scenario is a new gas crisis.

The Antimonopoly Committee of Ukraine (AMCU) recognized Gazprom guilty of abusing a monopoly position in the market of transit. As punishment, the company exhibited a fine 85 billion (3.4 billion dollars), wrote on his page in Facebook the head of the Antimonopoly Committee Yury Terentyev. The decision on penalty was made at the meeting of the Antimonopoly Committee. According to local media, representatives of Gazprom participation in the meeting was not accepted.

“The Kiev leadership has once again decided to present themselves as political clowns on the international legal arena

Recall that Kiev has informed Gazprom about the beginning of consideration of cases on violation of legislation on protection of economic competition in early September. At the end of December 2015, AMC declared Gazprom a monopolist on the market of natural gas transit via the territory of Ukraine. Now the amount of the fine.

The Surprise Of Gazprom

Gazprom considers the statement of Kiev as an attempt to put pressure on the company. Gazprom has expressed extreme surprise that accusation and billing, as the Russian company is not engaged in entrepreneurial activities on the territory of Ukraine. The Gazprom sends Naftogaz of Ukraine” natural gas on the Russian-Ukrainian border for delivery to Ukrainian consumers and for transit through Ukrainian territory, and then gets back on gas transit on the border of Ukraine with the EU and sells its gas to Europeans.

Therefore, any accusations against Gazprom’s alleged violations of the law of Ukraine untenable, the grounds for the AMC initiated investigations do not exist, so it must be stopped, explain in Gazprom. About the same time Gazprom wrote in his appeal to the AMC 14 Jan.

Moreover, the investigation of the Antimonopoly Committee of Ukraine proceeds from the assumption violation by Gazprom transit contract and the need to make changes in it. Currently, however, questions under the transit contract from 2009 between Naftogaz and Gazprom are the subject of arbitration proceedings in arbitration Institute of Stockholm chamber of Commerce. Stockholm arbitration, and not by the AMC, should decide all disputed points of the Treaty.

“The decision of the Antimonopoly Committee of Ukraine (AMCU) could not be viewed in any other capacity, in addition to attempts to exert pressure on Gazprom,” – said the Russian company on Friday. Gazprom will protect their rights and legitimate interests by all available legal point of view, ways, assured the company.

The essence of the claims of Kiev

Terentyev said earlier, what is the essence of the claims of the Antimonopoly Committee of Ukraine to the Russian company. They believe that Gazprom allegedly violates a key condition of the transit contract from 2009, according to which the transit should exceed 100 billion cubic meters of gas per year. However, Gazprom transported through Ukraine less.

For example, in 2011, 92 billion cubic meters in 2014, only 62 billion cubic meters. As a result, earnings from Naftogaz to transit decreased almost two times: from 3 billion to 1.8 billion dollars in the period from 2011 to 2014, complained at the end of December the head of the AMC Terentyev. This was possible, he said, due 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 specified the maximum amount to 110 billion cubic meters, which Gazprom can supply to transit, but no obligation to transfer such amounts not. The principle of “transport-or-pay transit contract no.

As you know, in other gas contract on Russian gas imports is registered in the principle of “take or pay” penalties for failure to comply with it by Naftogaz. Kiev itself this condition is never fulfilled, for which he received from Gazprom accounts and lawsuits.

Who prevented Ukraine and Naftogaz, when they are signed in the 2009 transit contract with Russia, to include the mandatory volume for pumping fuel and penalties for failure to comply with this item? The Ukrainian side decided that it is not necessary. Now what can be the charges?

With respect to claims Terentyev about the lack of another seller of gas on the Ukrainian market, in addition to Russian, then that’s nonsense. To find another gas for transportation via the Ukrainian GTS is not a task for Gazprom, but only the Naftogaz and the Ukrainian authorities. That no one other than Russia, in practice (not words) will not sell or pumping of blue fuel through Ukraine, it is strange to blame Gazprom.

“Legal nonsense and chaos”

The lawyers with one voice supported the surprise of Gazprom over imposed on him a fine and charges.

“The Kiev leadership has once again decided to present themselves as political clowns on the international legal arena, – said the newspaper LOOK Chairman of the Collegium of advocates “starinsky, Cartago and partners” Eugene, Cartago. – Gazprom is not in the jurisdiction of the Ukrainian Antimonopoly service and, therefore, any Ukrainian claims may be presented only within the framework of inter-state lawsuits in international courts”.

“This requirement moves the Ukraine beyond the boundaries of common sense, legal norms and laws. It all seems like legal nonsense and lawlessness”, – agrees the managing partner of the group of legal and accounting firms “SBP” Kira Gin-Bariseviciute.

Here is not even the question of whether Russia is obliged to pay this fine. In this situation, the lawyers put the question differently: “On what basis does Russia even have to pay this fine?”

“Our country did it, it must be some norm of international law and not just the decision of a handful of members of the Parliament and legally illiterate Ukrainian colleagues. In their reports about penalties to Russia the Ukrainian side does law does not, and the fact that they decided the local Committee is for normal countries is not a reason to part with millions of dollars,” categorical Kira Gin-Bariseviciute.

Charges antitrust authorities of Ukraine against Gazprom are unfounded exactly the same as the recent raising transit fees to Naftogaz unilaterally.

Two days ago, the energy Ministry of Ukraine raised the rate of transit of gas for Gazprom and a half times – to 4,5 dollars for thousand cubic meters on 100 kilometers. Whereas under the current contract transit rate was 2.7 per dollar. “The tariffs for transit is tied to the cost of gas and are regulated clearly by the formula of the agreement. As you can take unilaterally, having formula transit to raise fares in half? With a fright?” says the General Director of the national energy security Fund Konstantin Simonov. Claims and fines, and tariffs – this is absurd, he adds.

“It is clear that Gazprom will not pay these rates and to pay an unjustified fine,” – said Simonov.

What’s next?

The main question remains – what Kyiv wants? “Ukraine is trying to pass off their desire for legal requirements, actually using pirate methods. Already, everyone understands that Ukraine has returned to his favorite method of blackmailing and actions plans for Russia to shift its obligation for payment of the loans and other obligations,” – said the Executive Director of the Consulting Heads Nikita Kulikov.

Cartago, believes that this whole story of antitrust “product for domestic consumption.” “Most likely, thus the Ukrainian authorities are trying to somehow boost their image in the eyes of right-wing nationalists due to the fact that they have under pressure from the international community to take steps to implement the Minsk agreements”, – said the lawyer.

Simon sees three versions of events. “First, it could be an attempt to put pressure on Gazprom with the aim to knock a discount before purchasing. Kiev sees that it’s cold, and trying to formulate a negotiating position: we refrained from claims as you we sell the gas at 212, and at $ 180 per thousand cubic meters”, – says Simonov.

The second way: Ukraine prepares it all in the form of debt and directs claims to court. “Business as usual, but there is a trial. That is, Gazprom pays the old rate prescribed in the contract for the pumped gas, and the Delta between the new and old tariff will be the subject of a new litigation,” says the source.

And finally – the third, the toughest option: Ukraine provoke Gazprom to shut down gas transit to Europe.

“Ukraine starts to take gas from transit volumes on the basis of unpaid transit. They will steal, but will not call it a theft, and as a fee, barter for transit on the basis of the new tariff. They calculate the Delta and in the Delta take gas from the transit pipeline. But this scheme will last, as you know, one or two days. Then Gazprom will cover the gas and everything,” – says CEO of the national energy security Fund.

“This is another gas war. This is the most ugly and disgusting scenario, but it must also be borne in mind. I can’t say yet exactly what of the three options will act in Kiev”, – said Simonov. The third option carries huge risks for Ukraine itself and Europe.

“This creates a threat of shortage of gas during the heating season and reputational risks. Ukraine is now trying to prove that it is a reliable transit country, and then it gives a reason to make a return,” – said Simonov.


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