Fines for Akhmetov's DTEK have been waived.
On June 21, 2022, the Kyiv Commercial Court upheld the claim of DTEK Dniproenergo against the Antimonopoly Committee of Ukraine (AMCU) in case No. 910/12446/21 and overturned the fine of UAH 125,5 million, which was imposed on the plaintiff by the defendant's decision No. 236-r on April 29, 2021, writes Ukrrudprom.
In addition, on June 21, 2022, this court upheld the claim of DTEK Trading LLC against the AMCU (in case No. 910/12456/21) and overturned the fine of UAH 163,4 million, which was imposed on the plaintiff by the already mentioned defendant's decision No. 236-r dated April 29, 2021.
The AMCU reported that at the same time it fined DTEK Zakhidenergo 172,9 million UAH, DTEK Vostokenergo 91,1 million UAH, Centrenergo 205,8 million UAH, Gosuglesnab 2,3 million UAH, and Cherkasy Khimvolokno 14,4 million UAH.
The Kyiv Commercial Court concluded that the contested AMCU decision "does not contain evidence indicating the absence of objective reasons for similar actions to set coal prices," including those taken by the two aforementioned plaintiffs, who are part of Rinat Akhmetov's DTEK energy holding.
Thus, in relation to DTEK Trading, the court indicated that the company's actions "had neither an actual nor a potential impact on restricting competition in the electricity market, since the plaintiff's price for thermal coal was formed taking into account the current state regulation through support for the coal industry, the planned and actual volume of budgetary allocations to coal mining enterprises, as well as state regulation of the projected wholesale price of electricity, which significantly limited the plaintiff's discretion to independently set the price of coal and coal products, and made it impossible for the plaintiff to carry out coordinated actions with other sellers and buyers of thermal coal.
As a reminder, the Antimonopoly Committee previously stated that thermal coal market participants, on the recommendation of the Ministry of Energy, raised prices in 2016-2019.
As stated, during the committee's investigation, it was established that the Ministry recommended that state-owned enterprises raise the maximum price for one coal product for thermal power plants and combined heat and power plants to a level. This is confirmed by the minutes of meetings to determine the maximum coal price. Representatives of private companies—suppliers and consumers of thermal coal—were also present at the meetings.
The business entities participating in the meetings supplied over 80% of all thermal coal for thermal power plants (TPPs) and combined heat and power plants (CHPs). Also present at these meetings were electricity producers (TPPs and CHPs), which consume over 95% of all thermal coal used in this industry.
After some time, the defendants indicated in their agreements prices for thermal coal supplies similar to those determined at Ministry meetings. This situation lasted for approximately three years.
The Antimonopoly Committee of Ukraine noted that the Ministry of Energy and Coal Industry did not have the authority to recommend price caps. After all, thermal coal sales in Ukraine must be conducted under market conditions.
Therefore, the Committee adopted a decision recognizing the Ministry's violation, which consisted of creating conditions for participants in the energy coal market to commit anti-competitive concerted actions.
The AMCU noted that, in the aforementioned initial investigation, involving individual market participants, it was found, in particular, that price changes among coal suppliers—DTEK Trading LLC and Gosuglesnab—corresponded to changes in the maximum price. However, there were no objective reasons for the simultaneous and uniform price changes in the thermal coal market.
An analysis of the average weighted base prices also shows that in the period from August 2016 to June 2019, DTEK Dniproenergo JSC, DTEK Zapadenergo JSC, DTEK Vostokenergo LLC, Cherkasy Khimvolokno PJSC, and Centrenergo PJSC purchased thermal coal at base prices similar to the maximum prices determined at meetings at the Ministry of Energy and Coal Industry.
According to the AMCU's assessments, the correlation coefficients demonstrate a clear link between the defendants' price trajectories and the prices recommended by the Ministry. The dynamics of the base prices of coal purchased by these companies also correspond to the dynamics of the maximum prices set by the Ministry of Energy and Coal Industry.
According to the Committee's findings, this indicates similar actions, which constitute a violation under Part 3 of Article 6 of the Law of Ukraine "On the Protection of Economic Competition." "During the case review, the Committee analyzed the cost of coal production, its prices in accordance with exchange quotations, exchange rate fluctuations, and the tax burden. The correlation between these factors and the prices determined at meetings at the Ministry of Energy and Coal Industry refutes the existence of objective reasons for such similar actions," the AMCU statement stated.
Subscribe to our channels in Telegram, Facebook, Twitter, VC — Only new faces from the section CRYPT!