Confiscation of energy scales – Kommersant

The Prosecutor General’s Office, continuing the trend towards the deprivatization of energy companies, wants to confiscate the shares of the large generating company Sibeko from Andrey Melnichenko’s structures. According to the Prosecutor General’s Office, the purchase of this asset in 2018 from ex-Minister Mikhail Abyzov for 32 billion rubles. was a violation of corruption laws. Lawyers call the lawsuit unprecedented, noting a number of weaknesses in the plaintiff’s argument, as well as the possible expiration of the limitation period.

On August 17, the prosecutor’s office filed a lawsuit with the Sverdlovsky District Court of Krasnoyarsk, in which it asked to recover in favor of the state 3.9 billion shares of the Siberian Energy Company (Sibeko), registered with Kuzbassenergo. The company is owned by SGK, the energy asset of Russia’s largest coal producer, SUEK. SUEK is owned by billionaire Andrey Melnichenko, who also owns the fertilizer manufacturer Eurochem. The defendants in the case are the Khakass Service and Repair Company (KhSRK), Kuzbassenergo and Andrey Melnichenko. A preliminary meeting is scheduled for September 7th.

Sibeko with a revenue of 38.3 billion rubles. in 2022 own thermal power plants with an installed capacity of about 3 GW in the Novosibirsk Region and Altai Territory. This is about 17% of the installed capacity of SGC.

As follows from the materials of the lawsuit (copies published on the Sovetbezrynka Telegram channel; Kommersant sources close to the Prosecutor General’s Office confirmed the essence of the lawsuit), in 2018 Kuzbassenergo and KhSRK controlled by Andrei Melnichenko bought Sibeko shares from Mikhail Abyzov’s structures by 25.9 billion and 5.9 billion rubles. respectively. Former Minister of the Open Government, Mikhail Abyzov, was detained in 2019 on charges of major fraud and legalization of illegally obtained funds. “Andrey Melnichenko, realizing and understanding that the implementation of entrepreneurial activities by Federal Minister Mikhail Abyzov, his discussion of the conditions for the sale of shares, control of their sale and, as a result, his enrichment are activities prohibited by anti-corruption legislation and give rise to an act of corruption, from participating in the planned shadow transaction does not refused,” the lawsuit says. Thus, the Prosecutor General’s Office believes that Kuzbassenergo and KhSRK violated the provisions of Part 1, Clause 3 and Clause 5 of Part 2 of Art. 13.3 of Law 273, because their management did not take measures to prevent corruption, including ensuring the honest work of organizations.

Since the beginning of the year, this is the third such lawsuit filed by the Prosecutor General’s Office. In the two previous cases, the state withdrew 16% of Komi Energy Retail Company JSC (part of T Plus) and 81.66% of TGC-2 shares.

According to ProLegals partner Elena Kravtsova, this is an almost unprecedented lawsuit, if you look at it from the perspective of existing judicial practice and previously used methods of protection. She notes that so far it lacks substantiation both from the point of view of law and in terms of evidence. The lawsuit is due to the already issued court decision on the recovery of property obtained by corruption from Mikhail Abyzov. “The lawsuit could have the right to exist if there is evidence that Mr. Melnichenko helped Mikhail Abyzov hide property from recovery in favor of the state. However, the disputed transactions were made in 2018, while claims against Mikhail Abyzov from the state appeared much later,” notes Ms. Kravtsova. In her opinion, bad faith and intent to misbehave on the part of the defendant still need to be proven. At the same time, the transaction was completed five years ago, and the plaintiff’s argument that there is no limitation period for such disputes is not obvious.

Partner at Timofeev, Gusev & Partners law firm Anton Gusev agrees that in order to apply the provisions of Article 169 of the Civil Code of the Russian Federation, it is necessary to prove that before the conclusion of the transaction, the parties understood its unlawful nature. At this stage, it is not clear what materials of the criminal case will prove Mr. Melnichenko’s awareness of the corrupt nature of the transaction. It is also not clear how the plaintiff will prove that Mr. Melnichenko or Abyzov really informed the authorized bodies of the companies about the illegal nature of the transaction. “It is of great concern that in a number of cases the provisions of the legislation on the right of legal entities to acquire rights and obligations at their own will are rejected. When it is beneficial, state authorities make a statement about the actual ownership of the business by a specific individual, as well as that the entire management carried out his will, that is, was nominal, ”says the lawyer. He points out that the Prosecutor General’s Office makes allegations about the corrupt activities of Mikhail Abyzov on the basis of the materials of the criminal case, but it is not clear how Andrey Melnichenko and the management of his companies, who did not have access to the materials of the criminal case, should have been aware of this.

Olga Mordyushenko, Nikolai Sergeev