Tomorrow, on 1 November 2018, at 14:45 o’clock, Kyiv Commercial Court will consider the petition filed by the Ministry of Energy and Coal Industry of Ukraine (hereinafter referred to as the “Ministry”) on the cancellation of measures to secure the claim filed by Ukrenergo, appealing against the decision of the Commission for reorganisation (transformation) of SE NPC Ukrenergo (hereinafter referred to as the “Commission”).
It is worth noting that on 18 October 2018, the Commission failed to approve the act of valuation of Ukrenergo’s property on the basis of the package of documents provided by the company allegedly because of its significant drawbacks and deviations. 31 October 2018 was defined as a new valuation date, the fact of which actually means the re-launch of the company’s corporatisation process. Moreover, the Commission decided to transfer the powers to manage SE NPC Ukrenergo to the Commission’s Chair Mykhailo Blyzniuk “for the purpose of qualitative accomplishment of the process of reorganisation (transformation) of this enterprise”.
According to the experts of Koretskyi Institute of State and Law of the National Academy of Sciences of Ukraine, this decision of the Commission is unlawful since it is entrusted with executing the powers of organisational support of the process exclusively. The Commission is not authorised to manage the enterprise.
Ukrenergo applied to Kyiv Commercial Court and filed a claim against the Ministry of Energy and Coal Industry of Ukraine on the invalidation and cancellation of the decision of the Commission as unlawful, as well as filed a petition for securing the claim until the issue of a court decision.
As specified in Article 117 of the Civil Procedure Code of Ukraine, measures to secure an administrative claim may be applied upon a court decision or a claimant’s petition if there is a clear danger of causing damage to the rights, freedoms and interests of the claimant, or if substantial effort and expenses will be required to restore them, or if there are obvious signs of the unlawfulness of a decision, action or inaction of the subject of authority.
In turn, on 26 October, at its regular meeting, the Commission confirmed its decision regarding the re-launch of the process of property valuation and transfer of managerial functions. On 29 October, the Ministry applied to a court and filed a petition for cancelling the preventive actions. Tomorrow, right before the first meeting of the Supervisory Board of Ukrenergo, approved by the Government at the beginning of October, the Commercial Court will consider this petition, although the consideration of the claim filed by Ukrenergo regarding the legality of the Commission’s actions is to take place on 22 November.
It should be noted that today, the measures to secure the claim enable Ukrenergo to operate in the normal mode and guarantee the fulfilment of investment obligations in relations with the European creditors. Ukrenergo’s partners are the world’s leading financial institutions (EBRD, EIB, IBRD, KfW, etc.) and operators of the European electricity market. Any instability or non-fulfilment of obligations in relations with the European investment community can become a significant barrier to an electricity reform in accordance with the Energy Strategy of Ukraine and will negatively affect the reputation of the energy sector and the state as a whole. This will negatively affect not only the investment reputation of the company but the country as a whole.
Ukrenergo hopes for a maximum objective and impartial court decision regarding the cancellation of the preventive measures with respect to its claim against the Ministry of Energy and Coal industry.