Главная Учебники - Разные НАК „НАФТОГАЗ УКРАЇНИ“. Річний звіт англійською (2018 рік)
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37 36 2018 MARKET AND REFORMS ANNUAL REPORT 2018 UNBUNDLING In February 2018 awards in transit case against Gazprom were rendered by the Arbitration Institute of the Stockholm Chamber of Commerce. Arbitration rul- ings provided more clarity with regard to feasible unbundling options. Stockholm tribunal unfortunately rejected Naf- togaz’s request to review the contract in respect of the transfer of rights and ob- ligations to the designated TSO without Gazprom's consent. Given that Gazprom does not agree this transfer of rights until the transit contract expiration on 1 January 2020, Naftogaz should main- tain control over GTS, including core and enabling functions. With this being said, the Company has always been a strong supporter of the OU model, which has been consensus “Plan A” for unbundling. As a result of these arbitration awards, due implementation of OU model is not possible at least until the termination of the current transit contract by 2020. In 2018, international legal advisers EY analyzed unbundling options, available for Ukraine given existing limitations as to the transfer of assets, personnel and resources from Naftogaz to an independent TSO. The analysis confirmed that implementing each of the models, allowed by the Gas Market Law, e.i., OU and Independent System Operator (ISO), would require changes to the laws of Ukraine. In turn, OU model, that presumes possibility of private ownership of the gas transmission system, would require changes, which seem unrealistic over the next year. The idea of “quasi-ownership” based on rudimentary concept commercial use of gas transmission infrastructure is largely advertised as compliant ownership unbundling. Such “quasi-ownership” is incompatible with an OU model, as TSO cannot exercise ownership rights duly, i.a. pledge the assets would be forbidden. Another arbitration proceeding between Gazprom and Naftogaz, initiated in 2018, is a critically important limitation to be considered while implementing the unbundling model. This case is based on Naftogaz claim against Gazprom to revise the transit tariff in 2018-2019. Such revision is also connected with potential compensation of nearly USD 12 billion impairment charges by Gazprom, if no Russian transit beyond 2019. Naftogaz is the only entity, which has legal grounds to claim this compensation being the only transit contract holder through Ukraine. In order to demonstrate eligibility for the impairment charges Naftogaz needs to continue to be entitled to receiving economic benefits from the GTS in the future. In the above context, ISO model is the one that allows protecting Naftogaz and Ukraine’s interests and claim respective damages from Gazprom. The overall negative effect of implementation of unbundling structuring under the OU model as set out in the CMU Resolution #484 of 05.06.2019 may result in direct losses and lost profits of about USD 18 billion for the company (and by extension, the state budget). Any other model can potentially put Ukraine in a situation similar to 2011, when Russia launched Nord Stream and moved significant gas flows from Ukraine without any compensation. It would also give the Ukrainian side an effective bargaining power in post-2019 transit contract negotiations. It should be noted that the company has always advocated the ownership unbundling model, which was unanimously adopted as Plan A for TSO unbundling. However, the current arbitration proceedings against Gazprom, complicated political situation in 2019 and required amendments to the legal framework make the proper implementation of OU model Naftogaz, as a vertically integrated company, has a sole responsibility for correct implementation of unbundling according to the current Ukrainian law. With this being said, Naftogaz fulfills a number of very important functions. The CMU imposed a responsibility on Naftogaz to ensure (i) security of natural gas supply to consumers in Ukraine and (ii) uninterrupted natural gas transit to EU countries. This responsibility rests with Naftogaz until 1 January 2020. For the unbundling process, this means that any GTS functions, assets, and technical and human resources cannot be transferred outside Naftogaz’s control till 1 January 2020. Naftogaz is even more interested in clean unbundling, which is essentially ensuring non-discriminatory access to the GTS, and sustainable and efficient future TSO. That is why Naftogaz heavily engages its executive and supervisory boards, international stakeholders and reputable independent consultants to deliver on unbundling commitments. In 2018 Naftogaz proposed unbundling roadmap and unbundling structure, which envisages creation TSO as a new separate company, initially within Naftogaz group on a preparation stage and legally unbundled in future with engagement of GTS partner. The roadmap was presented to the government in January 2019. Incompliant or belated unbundling can become the formal reason for Gazprom to scuttle post 2019 transit contract conclusion. Naftogaz role and proposed unbundling structuring Stage 1. Separation of storage activity (SSO) from the transmission system (TSO). The unbundled TSO should not engage in storage activities for a number of reasons, in particular, in order to release the unbundled TSO from legacy problems regarding the disputable stock of gas, avoid cross-subsidizing storage business and increase investment attractiveness. In 2018, Naftogaz completed the first stage. The Branch SSO was established as a separate branch of UTG and transferred there all storage-related assets, revenue- generating contracts, processes and 1800 employees. Separation was also accomplished for operational gas metering, ERP systems, internal policies and regulations within UTG. The unbundling action plan pursued by Naftogaz covers three stages: Allow a similar right based on operational control to the Law On pledge in order to enable pledging the GTS ISO OU Following the government’s decision to implement ISO Allow concession (foreseen in CMU Unbundling Plan #496) To make some amendments and adopt the Changes needed regardless of the selected model: to the laws and CMU rules on the Cabinet of Ministers and on central executive bodies in order to ensure Allow privatization of the GTS to the Law On privatization Amendments to the laws are required under both models UTG* New TSO New TSO International partner UTG transfers 100% of shares in the New TSO to MGU * UTG may be the company authorized to manage the GTS if UTG’s independence in accordance with the 3EP is properly ensured. Otherwise, a separate new company (GTS Co) would need to be used for this purpose. CMU Ministry MGU Legal and functional independence Control 100% 100% 51% 49% 100% 100% Proposed unbundling structuring Use of the GTS Delegation of the exercise of the owner’s rights over the GTS USD 18 billion now highly unlikely. Naftogaz therefore had to consider alternatives that would comply the Third Energy Package. |