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Editor’s Note: This is issue 77 of Ukrainian State-Owned Enterprises Weekly, covering events from Feb. 25 – March 3, 2023. The Kyiv Independent is reposting it with permission.

Ukrainian SOE Weekly is an independent weekly digest based on a compilation of the most important news related to state-owned enterprises (SOEs) and state-owned banks in Ukraine. This publication was produced with the financial support of the European Union within the project “Supporting Ukraine in rebuilding and recovery” implemented by the KSE Institute.

The contents of this publication are the sole responsibility of the editorial team of the Ukrainian SOE Weekly and do not necessarily reflect the views of the European Union.

Corporate governance of SOEs

HACC Appeals Chamber sets bail for former Naftogaz CEO Kobolyev at Hr 229 million ($6.2 million). According to the Special Anti-Corruption Prosecutor’s Office (SAPO), the Appeals Chamber of the High Anti-Corruption Court (HACC) partially satisfied the motion of SAPO and the National Anti-Corruption Bureau of Ukraine (NABU).

The Appeals Chamber’s ruling overturns a lower court ruling that the motion to detain former Naftogaz CEO Andriy Kobolyev was unfounded. The Chamber set bail at Hr 229 million ($6.2 million).

According to the information from HACC’s earlier decision, Kobolyev received Hr 267 million ($7.3 million) in bonuses in 2018. Nearly all that amount was the bonus for Naftogaz’s victory over Gazprom in Stockholm’s court of arbitration, Hr 261 million ($7.1 million). The total amount of his 2018 bonuses exceeded the limit set by government regulations by Hr 229 million ($6.2 million), according to NABU.

Kobolyev must abide by the following rules for the next two months:

  • he must appear at every request of the detective, prosecutor, or court;
  • he cannot leave Kyiv without the permission of the detective, prosecutor, or court;
  • he must notify the prosecutor, detective, and court of any change of residence;
  • he must refrain from communicating with other suspects in the case and witnesses;
  • he must hand his travel passport(s) to appropriate authorities.

According to the court’s ruling, Kobolyev must pay the bail within five days of the ruling.

No information is available on what sort of detention Kobolyev faces if he does not pay the bail within this time frame.

Kobolyev wrote on his Facebook page that he was considering his options and had no comment at that time. Later, he added that Hr 229 million ($6.2 million) was much more than he could pay now, considering that his bank accounts were blocked.

In SOE Weekly (Issue 71), we reported that on Jan. 19, NABU and SAPO notified Kobolyev that he was suspected of misappropriating over Hr 229 million ($6.2 million) in 2018.

According to NABU, Kobolyev illegally awarded himself Hr 261 million ($7.1 million), based on the supervisory board’s decision to give him a bonus for extraordinary achievements. This payment was part of the bonuses granted to Naftogaz’s management team in May 2018 for the company’s historic victory against Russia’s Gazprom in Stockholm’s court of arbitration.

It is unclear why NABU and SAPO posed no questions to supervisory board members who took the primary decision on paying this bonus, including members of the board’s nomination and remuneration committee, which should have examined any decisions related to the remuneration of the CEO and provided a recommendation to the supervisory board regarding the approval of such decisions. Under Ukrainian law, supervisory board members of joint-stock companies (as well as CEOs and company officials) are responsible for losses caused by their actions or inaction.

For a more detailed overview of this case, see SOE Weekly’s Issue 71.

In SOE Weekly (Issue 72), we reported that on Jan. 23, HACC refused to grant the NABU detective’s request to detain Kobolyev.

In SOE Weekly (Issue 73), we reported that the judge of the HACC ruled that SAPO’s motion to detain Kobolyev was unfounded.

The judge decided that the prosecution was not able to support the claim that Kobolyev abused his office and deceived Naftogaz’s supervisory board in order to award himself a bonus that was beyond the limitations set by government regulations. In addition, the court saw no risk that Kobolyev would try to flee Ukraine or obstruct the investigation.

The motion was based on SAPO’s suspicion that Kobolyev illegally awarded himself a multi-million bonus in 2018.

Note that this HACC ruling concerns the NABU detectives’ request to detain Kobolyev. It does not concern the merits of the case, i.e., the legality of the decision to award bonuses.

On Jan. 31, SAPO challenged HACC’s decision.

Ukrzaliznytsia CEO Kamyshin announces his resignation. On Feb. 27, Oleksandr Kamyshin, the CEO of Ukraine’s state railway operator Ukrzaliznytsia announced that he was stepping down.

The dismissal of the CEO of Ukrzaliznytsia is effected via a government order. We have not identified any such orders on Kamyshin’s dismissal. According to YouControl, he is still the CEO of Ukrzaliznytsia.

Notably, according to SMIDA, the CEO of Ukrzaliznytsia is Yevhen Kravtsov, who was dismissed in 2020, suggesting that the company has not reported this information to the stock market regulator as required.

Kamyshin said he would head up Ukrzaliznytsia’s European integration office in Europe, per his joint decision with Oleksandr Kubrakov, Minister for Communities, Territories, Infrastructure Development, and Restoration of Ukraine.

It is unclear whether Kamyshin referred to an existing European office of Ukrzaliznytsia or one that would yet be established.

Kamyshin did not say who would replace him.

According to Ukrzaliznytsia’s charter, CEO appointment and dismissal should be decided by the General Shareholders Meeting (the Cabinet of Ministers in the case of Ukrzaliznytsia) on a proposal of the supervisory board. It is unclear whether the supervisory board was involved in this decision.

In a Facebook post, Ukrzaliznytsia’s supervisory board member Serhiy Leshchenko stated that the resignation of Kamyshin was a personal decision, and that despite the board’s desire to influence that decision, they were not able to do so.

According to Forbes Ukraine, Kubrakov asked Kamyshin to resign two weeks before he announced it. The President’s Office was surprised, but the president approved the dismissal, Forbes wrote.

Apparently, Forbes is referring to an informal approval, since formally, the president has no powers with respect to the appointment or dismissal of the CEO of Ukrzaliznytsia.

Forbes spoke to nearly a dozen politicians and officials involved with Ukrzaliznytsia, inside the President’s Office and Kubrakov’s ministry. So far, no one knows for sure what exactly made Kubrakov demand Kamyshin’s dismissal. The media reported possible reasons ranging from pending NABU charges against Kamyshin to Kubrakov eliminating rivals.

Yevhen Lyashchenko, a member of Ukrzaliznytsia’s executive board, will serve as the temporary CEO. This was first communicated by Orest Logunov, another member of the company’s executive board, in comments under his Facebook post.

In normal corporate practice, a new CEO would be formally announced by the company via official channels, such as the company’s website and media releases.

According to Forbes sources in Ukrzaliznytsia, “Kubrakov believes that Lyashchenko will do a better job than Kamyshin.” According to the media, Kamyshin proposed four candidates for succession, and Kubrakov immediately chose Lyashchenko, who was responsible for personnel and financial issues.

On March 3, President Volodymyr Zelensky appointed Kamyshin as his advisor.

In SOE Weekly (Issue 39), we reported that the acting CEO of Ukrzaliznytsia, Ivan Yuryk, filed his resignation in August 2021. After that, the Cabinet of Ministers appointed Kamyshin as acting CEO.

In SOE Weekly (Issue 49), we reported that in October 2021, Kamyshin was re-appointed as CEO until Dec. 31, 2021.

On March 24, 2022, Kamyshin reported that based on the supervisory board’s proposal, the Cabinet appointed the executive board of Ukrzaliznytsia on a permanent basis. Board members were approved for three years, and Kamyshin, for four years.

In SOE Weekly (Issue 68), we reported that after Russia’s full-scale invasion on Feb. 24, 2022,, the Ukrainian government effectively gave Ukrzaliznytsia new tasks, including:

  • Free evacuation of millions of Ukrainian citizens caught in war zones (the company evacuated 3.7 million passengers from active war zones);
  • Delivery of critical supplies and equipment to war zones;
  • Transport of Ukrposhta’s parcels by train, as private logistics companies were not prepared to provide services when this was dangerous or unprofitable – Ukrzaliznytsia and Ukrposhta took on the responsibility to deliver these services;
  • Purchase of petroleum products from abroad for the needs of the state after the Cabinet granted Ukrzaliznytsia the right to do so.

In their 2021 article “Beheaded PrivatBank: What threatens a bank without a CEO and how to appoint one,” two members of the SOE Weekly team, Andriy Boytsun and Dmytro Yablonovskyi, named the following important aspects to be considered when replacing the CEO of a state-owned company or bank:

  • Uncertainty during the period when there is no permanent CEO creates uncertainty regarding SOE’s future performance and can impact the stability of its operations.
  • Succession planning is important for reducing uncertainty: it implies that if something happens to the current CEO at any point of time, there is a plan or pre-selected competent successor(s).
  • A major role of the supervisory board is to develop a succession plan for the CEO and other key executives and maintain proactive communication to ensure stakeholders’ confidence.

HACC sentences Dykhne, former acting CEO of Boryspil, to five years in prison for abuse of power. On March 1, the High Anti-Corruption Court (HACC) sentenced Yevheniy Dykhne, the former acting CEO of the Boryspil International Airport, to five years in prison. He was found guilty of abuse of office which caused more than Hr 15.7 million ($430,000) in damage.

In addition to his five-year sentence, Dykhne is forbidden from holding positions related to organizational, management, administrative, or economic functions for a term of three years. He must also pay a fine of Hr 8,500 ($233).

The head of the airport’s rental relations service, Olesia Levochko, was sentenced to four years in prison. She also got a three-year ban on holding the above positions and a Hr 8,500 ($233) fine.

According to SAPO, between 2014 and 2019, Dykhne and Levochko leased out Boryspil’s property to private companies at below-market prices. The property belonged to the Ministry of Infrastructure, fulfilling the ownership function for the airport, and it was only the State Property Fund of Ukraine (SPFU) who had the right to lease it out via a competitive procedure. Despite this, Dykhne and Levochko unlawfully rented the airport’s space out to entrepreneurs at reduced prices, which resulted in losses of more than Hr 15.7 million ($430,000), SAPO added.

The court verdict may be challenged in the appeal court within 30 days. The Miller law firm, which represents Dykhne, said that there would be an appeal.

According to Miller, in 2016, Dykhne signed lease agreements with the airport’s potential tenants while the SPFU was conducting a tender. The SPFU was a slow-moving manager who did not meet deadlines, and the tenders for the contracts dragged out for about two years, Miller added.

In other words, the lawyers refer to opportunity costs – that is, how much revenue the SOE would have forgone during the two-year period if the property remained idle. If the lease revenues for the two-year period exceed the estimated damages, then the net effect of the CEO’s decision would be positive for the state as the owner.

This means that for two years, airport passengers would not receive services because the airport’s facilities (such as shops and restaurants) would not operate, and the airport itself would have to pay the operating costs of unleased space, without receiving any rental income, Miller claimed.

According to Miller, all previous Boryspil CEOs have signed similar agreements since 2011 (about 150 of them were signed), “because the problem did not arise yesterday, and its solution was not invented by Dykhne.”

It is unclear from publicly available information if Boryspil management used competitive procedures for renting out the property. It is also unclear how SAPO or HACC computed the value of the damages.

Dykhne was the Boryspil International Airport’s acting CEO in 2014-2017.

Energy

Naftogaz wants to dump regional gas companies’ debts of Hr 17 billion ($465 billion) on GTSOU. On March 1, Naftogaz CEO Oleksiy Chernyshov reported that Naftogaz’s subsidiary, Gas Distribution Networks of Ukraine LLC, would not take over the debts that the recently seized regional gas companies owe to the Gas Transmission System Operator of Ukraine (GTSOU).

According to Chernyshov, this issue should be resolved at the legislative level as part of settlements – apparently, between regional gas companies, Naftogaz, and GTSOU.

“There are issues of settlements that need to take place – actually, this debt must be written off – but settlements must take place. There must be an appropriate transparent verification of these debts, this is the role of the National Energy and Utilities Regulatory Commission (NEURC) and (a matter of) working with regional gas companies,” Chernyshov added.

In SOE Weekly (Issue 71), we reported that Naftogaz changed the management of regional gas distribution companies Kharkivgaz and Dniprogaz on Jan. 16. Both were part of fugitive oligarch Dmytro Firtash’s Regional Gas Company (RGC) Group and were seized in criminal proceedings earlier.

In SOE Weekly (Issue 76), we reported that, on Feb. 17, the Cabinet approved the transfer of shares in another several gas distribution companies to Chornomornaftogaz, a Naftogaz subsidiary, to prevent the risk of an emergency in the energy sector.

In September, Naftogaz established a new subsidiary named Gas Distribution Networks of Ukraine LLC, to consolidate the regional gas distribution companies.

The Ekonomichna Pravda media outlet wrote earlier that, besides the transfer of shares of the gas distribution companies to the Naftogaz group, their gas networks are being transferred to Gas Distribution Networks of Ukraine, also part of the Naftogaz group (or such transfers are planned). At the same time, the debts of the gas distribution companies are not transferred along with their networks. According to the Ekonomichna Pravda, Naftogaz is doing this in order to clear itself of these companies’ debt and impose that debt on the GTSOU.

The Ekonomichna Pravda reported earlier that GTSOU management warned that a nationalization based on the model chosen by Naftogaz puts the GTSOU in jeopardy of losing Hr 17 billion ($465 million) and going bankrupt.

Naftogaz estimates its net losses in 2022 at Hr 40 billion ($1 billion). On March 1, Naftogaz’s CEO Oleksiy Chernyshov reported that Naftogaz expects to post a loss of Hr 40 billion ($1 billion) in 2022, according to preliminary results.

Chernyshov blamed significant receivables that arose due to the state’s use of Naftogaz’s working capital to meet the needs of energy consumers.

Chernyshov said that the underlying receivables of the company have three components: the difference in tariffs (Hr 36 billion, or $985 million), the debt of regional gas suppliers and gas distribution companies (Hr 76 billion, or $2 billion), and public service obligations (PSOs) for 2022-2023 (Hr 158 billion, or $4.3 billion).

It is not clear from the interview why the difference in tariffs is treated as a receivable. Also, it is not clear how the debts of regional gas distribution companies would be collected if many of them would be written off, as Chernyshov suggested – see item immediately above.

Chernyshov would not disclose Naftogaz’s exact revenue, which is estimated at hundreds of billions of hryvnias, he added.

The company posted Hr 57 billion ($1.6 billion) in losses in the first half of 2022.

In SOE Weekly (Issue 68), we reported that in 2022, the government ordered Naftogaz to sell gas at a discount to multiple types of consumers, including households, heating companies, certain thermal power plants, non-household consumers from the defence sector, and regional gas distribution companies. Most of the PSOs are linked to the duration of martial law.

As we reported in Issue 67, the Cabinet added another PSO: Naftogaz also had to supply gas to electricity producers well below the market price.

In its 2021 annual report, Naftogaz estimated that indirect gas subsidies to consumers in 2022 would increase to Hr 842 billion ($23 billion) – an astonishing 19% of Ukraine’s nominal GDP. According to the report, the net profit in 2021 was Hr 12 billion ($328 million), and the net loss in 2020 was Hr 19 billion ($520 million).

Ukrtransgaz passes preliminary certification under European rules. On March 1, the National Energy and Utilities Regulatory Commission (NEURC) made a preliminary decision to certify Ukrtransgaz as a gas storage operator under European rules.

NEURC has to notify the Energy Community Secretariat of its decision within the next five business days. The publication of NEURC’s final decision on certification in accordance with European standards would be possible within a month after the Energy Community Secretariat’s opinion is received.

In SOE Weekly (Issue 73), we reported that on Jan. 27, Ukrtransgaz stated that it was ready to be certified as a gas storage operator under European rules and submitted a certification request to NEURC.

In SOE Weekly (Issue 66), we reported that the Verkhovna Rada passed draft law No. 8158 on Dec. 13, which laid the groundwork for Ukrtransgaz’s certification as a gas storage operator compliant with EU regulations. The certification is necessary to allow the EU countries’ strategic gas reserves to be stored in Ukrainian underground gas storage facilities, Ukrtransgaz explained.

Infrastructure

NABU demands Hr 20 million ($547,000) bail for former Infrastructure Minister Pyvovarsky for alleged abuse of power. On Feb. 27, Pyvovarsky wrote on his Facebook page that the National Anti-Corruption Bureau of Ukraine (NABU) asked the court to set his bail at Hr 20 million ($547,000). He has been charged with abuse of power for allowing private companies to charge harbour dues at Pivdenny seaport.

NABU claims that when the ministry – not Pyvovarsky personally – prepared the order on the distribution of the harbour dues, it lobbied the interests of one of the owners of private berths (TIS), Pyvovarsky said.

Pyvovarsky claimed that NABU accused him of speaking at a Cabinet meeting and signing a document that had been previously approved by appropriate ministries, secured a favorable vote in the Cabinet, and certified by the Ministry of Justice.

Pyvovarsky emphasised that he fully disagreed with the charges and the motion to set bail. The motion will be considered on March 6 at a High Anti-Corruption Court (HACC) hearing, he added.

In SOE Weekly (Issue 76), we reported that on Feb. 22, NABU and SAPO charged Pyvovarsky with abuse of power, which allegedly caused more than $30 million in damage in 2015. Pyvovarsky served as the Minister of Infrastructure in the Arseniy Yatsenyuk government from December 2014 to April 2016.

His First Deputy, Volodymyr Shulmeister, who had been the First Deputy Minister of Infrastructure and chaired the Ministry’s Tariff Council, was also charged in absentia.

Confiscation of the aggressor state’s assets, nationalization, and asset seizure

Confiscated assets of sanctioned Shelkov transferred to the SPFU. On Feb. 24, the Cabinet of Ministers transferred the assets of sanctioned Russian oligarch Mikhail Shelkov to the State Property Fund of Ukraine.

These are the assets that the High Anti-Corruption Court (HACC) seized in February. The most significant asset on the list is Demurinsky Mining and Processing Plant.

According to the First Vice Prime Minister and Minister of Economy, Yulia Svyrydenko, Shelkov’s assets would be privatized or leased.

In SOE Weekly (Issue 75), we reported that on Feb. 15, the Security Service of Ukraine (SBU) exposed attempts by sanctioned Russian oligarchs Sergei Chemezov and Mikhail Shelkov to prevent the nationalization of assets that both men formerly owned in Ukraine.

In SOE Weekly (Issue 74), we reported that on Feb. 3, the HACC satisfied an appeal by the Ministry of Justice and confiscated the Demurinsky Mining and Processing Plant formerly owned by Shelkov.

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