the Moscow Arbitration court completely reversed the decision of the court of first instance and the decision of the appeal in the case of the cost of transshipment of the terminal Varandey (belongs to “LUKOIL”). The case was referred for retrial, according to the card case on the court’s website.
In December 2018, the Federal Antimonopoly service (FAS) initiated administrative proceedings against “LUKOIL”. “Rosneft” complained to the FAS that the rates for handling at the terminal “Varandey”, owned by “LUKOIL”, is not economically justified, and the “LUKOIL” enjoys a dominant position. Through the terminal Varandei both companies supply all the oil fields to them. Trebs and Titov (oil production in 2017 of 1.9 million tonnes). Deposits owned by the company “Bashneft-Polyus” in which “Rosneft” of 74.9%, while LUKOIL – 25,1%. “LUKOIL” shared plan for 2019 that through the terminal Varandei will be handled 7.5 million tonnes of oil, of which just over 1 million tonnes – the raw material from the deposits of Trebs and Titov.
In March, the Federal Antimonopoly service decided in favor of “Rosneft”. According to court records, the FAS came to the conclusion that the Varandey terminal has established and maintained monopolistically high price of crude oil from 2015 until 27 March 2019, which violated paragraph 1 part 1 article 10 of the Law on protection of competition. FAS ordered the company twenty days to set an economically justified price of crude oil not exceeding the amount of necessary costs and average profit.
“LUKOIL” appealed this decision. In August, the Moscow Arbitration court recognized the FAS ‘ decision invalid. But the Ninth arbitration appeal court reversed this decision, finding lawful decision FAS.
In October, the FAS turned on the terminal in the registry of subjects of natural monopolies and introduced it to government regulation. In December, the terminal has tried to challenge this decision. The trial is scheduled for January 27. Non Thursday, January 9, the Moscow Arbitration court refused to impose interim measures in this case.
“This is nonsense, when exclusive authority regulates the activity of the private company it contracts with another organization that we have connected to our infrastructure, commented business co-owner and President of “LUKOIL” Vagit Alekperov in an interview to “Kommersant”, in December. – We do not occupy a monopoly position in the Komi Republic, where there is infrastructure to deliver the oil to any point and not only through Varandey, but also through a system of pipelines to the Baltic and in the Eastern direction. Although, of course, Varandey terminal – the shortest and best direction”.
Vagit Alekperov forbade the heirs to split the share in LUKOIL Businessman controls 24.8% of the company’s shares worth more than 800 billion rubles in Business
Vagit Alekperov said that if the court will side with the FAS, the company is unlikely to be able to review the established service rate. “LUKOIL” has proposed a more flexible approach to rate depended on the number of transshipped oil, he said, “But if you produce 200 000 t complex, which has 11 million tons, of course, rates can be high. Especially Varandey is not just a terminal, and process unit for the preparation, storage and shipment of oil with a large infrastructure. There are ice class tankers, and icebreakers that need to keep these tankers year-round, including in ice conditions. It is therefore very difficult to consider tariff, which part of it is handling, and maintenance.” Production at the oilfields Trebs and Titov does not depend on the decision of the court, concluded Alekperov.
the Appeal could cancel the previous decision if the lower court did not take into account all the circumstances of the case, the lawyer explains the legal service “Emulex” Marina Filippova. Eliminating the violations, the court of first instance may re – come to the original conclusions and to make the same decision, she said: “the Parties are entitled to appeal and cassation procedure”.
a Dispute in court takes place behind closed doors, so the motives of the judgement we can only guess, says partner of law company “Rustam Kurmaev and partners” Dmitry Gorbunov. The main reason for cancellation of the decision, in his opinion, at the Varandey terminal has no analogues due to its location and technical complexity, besides “Rosneft” and “LUKOIL” no one uses them. Therefore, to establish how the cost of handling meets the market price, if not impossible, extremely difficult, says Gorbunov: “the reconsideration of the court would have to evaluate the arguments of the parties and to make a difficult decision, whether or not the “Varandey” for “Rosneft” uncontested”. It is as difficult to define, he says, overstated the cost of services at the terminal. Whatever the new solution, it is likely to be challenged, predicts Gorbunov, and terminate the dispute can non-judicial compromise between the parties and the settlement agreement.
For Rosneft revision of the agreement is vitally important, because the cost of handling is subtracted from the value passed to a trader of raw materials, Gorbunov said: “But given the complexity of the terminal and the conditions in which it operates, handling it of oil at the average rates may be simply unprofitable, it should pay off”.
to Talk about the outcome of the proceedings before, says the representative of the FAS: “the assessment of the judicial act it is possible to give after making a court decision in full”.
Vedomosti expect comments of “LUKOIL” and “Rosneft”.
