On Extraterritoriality and the Gazprom case

In September 2012 the European Commission opened a formal investigation of Gazprom’s business practices in the EU. The Gazprom investigation raises a number of questions. One of them is the issue of jurisdiction—whether EU competition law applies to Gazprom, a foreign company. A day after the opening of the proceeding, in a press note and alongside other issues, Gazprom raised the question of jurisdiction, noting that it complies with laws of the countries in which it operates and that is it ‘registered outside the jurisdiction of the EU’. This statement, possibly, prompted some commentators to consider the applicability of EU law in this case.
In a piece in the ECLR, entitled ‘Iron Curtain at the border: Gazprom and the Russian blocking order to prevent the extraterritoriality of EU competition law’, Sean Morris offered his views on some of the aspects of the Gazprom case, including the issue of jurisdiction. Morris discussed also the blocking Order issued by the Russian President in response to the European Commission’s investigation, and its possible effects in the Gazprom case.
This article seeks to add a few important and relevant issues of law relating to extraterritoriality and the reach of EU law generally and in particular— in the context of the Gazprom investigation and in the light of the Morris article. This piece also sheds some light on the considerations which might have informed Russia’s hastily enactment of the Blocking Order.

Commission v. Gazprom: The antitrust clash of the decade? CEPS Policy Brief No. 285, 31 October 2012

This new CEPS Policy Brief boldly asserts that the antitrust case launched by DG Competition against Gazprom on September 4th will turn out to be the landmark antitrust case of this decade, in much the same way that Microsoft v. Commission was the defining antitrust lawsuit of the last decade. The paper argues that, for a host of political and economic reasons, this case is likely to be hard fought by both sides to a final prohibition decision and then onwards into the EU courts. In the process, the European gas market and the powers of DG Competition in the energy field are likely to be transformed.

Entscheid des EuGH in Gazprom OAO - West Tankers distinguised. Zum Verhältnis des Systems von Brüssel und Lugano zur Internationalen Schiedsgerichtsbarkeit

Im Mai 2015 hat sich der EuGH in der Rs. C-536/13 (Gazprom OAO) erneut zur vieldiskutierten Frage geäussert, wie Gerichtsstandsverordnung Brüssel I (inzwischen revidierte EG-Verordnung Nr. 44/2001, EuGVVO; Parallelverordnung zum geltenden Lugano-Übereinkommen 2007, LugÜ) und Schiedsgerichtsbarkeit voneinander abzugrenzen sind. Ein schwedischer Schiedsentscheid hatte den Kläger eines Litauer Gerichtsverfahrens dazu verurteilt, seine Klage zu beschränken. Nach EuGH ist dies kein Verstoss gegen das Brüsseler Gerichtsstandssystem und beeinträchtigt dessen praktische Wirksamkeit nicht. Das EuGH-Urteil West Tankers aus dem Jahr 2009 hatte die Abgrenzung zwischen EuGVVO und Schiedsgerichtsbarkeit problematisch verwischt. Der vorliegende EuGH-Entscheid präzisiert und korrigiert. Er zieht die Grenzen des Anwendungsbereichs der EuGVVO resp. des LugÜ scharf. Die Prüfung, ob eine gültige Schiedsvereinbarung dem staatlichen Gerichtsverfahren entgegensteht, steht deutlich ausserhalb deren Anwendungsbereich. Vor diesem Hintergrund stellt der EuGH klar, dass die EuGVVO Anerkennung und Vollstreckung eines Schiedsspruchs in einem EU-Mitgliedstaat, der in einem anderen EU-Mitgliedstaat erlassen worden ist, nicht berührt, sondern alleine dem New Yorker Schiedsübereinkommen von 1958 unterfällt. Diese Präzisierung kommt auch dem internationalen Schiedsplatz Schweiz zugut, der damit keine negativen Interferenzen aus dem Lugano-Bereich mehr zu befürchten hat.

A feigned liberalisation: Russia is restricting Gazprom's monopoly on exports. OSW Commentary No. 121, 26.11.2013

An act restricting Gazprom’s monopoly in Russian gas exports came into effect on 1 December 2013. Previously Gazprom had had a legal guarantee to its monopoly position. The changes are an effect of consultations between various ministries that had been conducted for many months and were affected by lobbying from Novatek and Rosneft (Gazprom’s competitors on the domestic gas market); they need not, though, be seen as system changes. The ‘liberalisation’ they appear to bring in is feigned. Proof of this are found for example in both the limited material scope of the new law (it concerns only exports of liquefied natural gas, LNG) and the small number of the beneficiaries of the new regulations (the new solutions will be beneficial for Novatek and Rosneft). Contrary to initial announcements, the right to export LNG has not been restricted to South-Eastern Asian markets, which means that Russian liquefied natural gas is also likely to be sold to Europe in the coming years. Although these changes have been motivated above all by the individual interests of Gazprom’s competitors, they are also to a certain extent a response to the processes taking place on regional gas markets. They may, therefore, turn out to be beneficial for the state (increasing Russia’s share on the global LNG market and attracting foreign investors to gas extraction projects being implemented in Russia). The new regulations are probably the first step down the long road to breaking Gazprom’s monopoly in gas exports via the pipeline system.

Gazprom's expansion in the EU - co-operation or domination? OSW Report, April 2008

The energy sector, especially with regard to natural gas trade, is one of the key areas of co-operation between the EU and Russia. However, the character of this co-operation has given rise to increasing doubts both in Brussels and among the EU member states. The questions have emerged whether this co-operation does not make the EU excessively dependent on Russian energy supplies, and whether Gazprom's presence in the EU will not allow Moscow to interfere in the proces of devising the EU energy policy. This report is intended to present the factual base and data necessary to provide accurate answers to the foregoing questions. The first part of the report presents the scope and character of Gazprom's economic presence in the EU member states. The second part shows the presence of the EU investors in Russia. The data presented has been provided by the International Energy Agency, European Commission, the Central Bank of Russia and the Russian Federal State Statistics Service. Some of the data is the result of calculations made by the Centre for Eastern Studies' experts who were basing on the data provided by energy companies, the specialist press and news agencies.

Gazprom's expansion in the EU: co-operation or domination? OSW Report, October 2009

The energy sector, especially with regard to the gas trade, is one of the key areas of co-operation between the EU and Russia. However, the form this co-operation has taken has been giving rise to some concern, both in Brussels and in the EU member states. Questions arise as to whether the EU has not become excessively dependent on Russia for energy, and whether the presence of the Russian gas monopoly in the EU does not enable Russian interference with the development of EU energy policy. The objective of this series of OSW reports (for the previous edition,see Gazprom’s expansion in the EU: co-operation or domination? April 2008 – pdf 1.2 MB) is to provide facts which will permit an accurat answer to these questions to be formulated.

The eastern ‘partnership’ of gas. Gazprom and CNPC strike a deal on gas supplies to China. OSW COMMENTARY No. 139, 2014-06-16

The CEOs of Gazprom and China’s CNPC signed a contract concerning Russian gas supplies to China on 21 May 2014 in Shanghai. The contract had been under negotiation for many years and was signed in the presence of the two countries’ presidents. Under this 30-year deal, ultimately 38 billion m3 of natural gas will be exported annually from eastern Siberian fields (Chayandinskoye and Kovyktinskoye) via the Power of Siberia pipeline planned for construction in 2015–2019. The lengthy negotiation process (initial talks regarding this issue began back in the 1990s), the circumstances surrounding the signing of the contract (it was signed only on the second day of Vladimir Putin’s visit to Shanghai, and the Russian president’s personal engagement in the final phase of the talks turned out to be a key element) and information concerning the provisions of the contract (the clause determining the contract price has not been revealed) all indicate that the terms of the compromise are more favourable for China than for Russia. This contract is at present important to Russia mainly for political reasons (it will use the future diversification of gas export routes as an instrument in negotiations with the EU). However, the impact of this instrument seems to be limited since supplies cannot be redirected from Europe to Asia. It is unclear whether the contract will bring the anticipated long-term economic benefits to Gazprom. The gas price is likely to remain at a level of between US$350 and US$390 per 1000 m3. Given the high costs of gas field operation and production and transport infrastructure development, this may mean that supplies will be carried out at the margin of profitability. The Shanghai contract does not conclude the negotiation process since a legally binding agreement on gas pipeline construction has not been signed and not all of the financial aspects of the project have been agreed upon as yet (such as the issue of possible Chinese prepayments for gas supplies).

Kyiv's gas strategy: closer cooperation with Gazprom or a genuine diversification. OSW Commentary No. 110, 2013-07-16

In recent months Kyiv has been intensifying its efforts to diversify Ukraine’s gas supply routes with a view to reducing the country’s dependence on imports from Russia. One of the steps which Kyiv has taken has been to make the unprecedented decision to start importing gas from its Western neighbours. In November 2012, Ukraine’s state-owned Naftogaz began importing gas through Poland under a two-month contract with RWE (the imports continued into 2013 under a separate deal), while in the spring of 2013 Ukraine started importing gas from Hungary. Kyiv is also currently looking into the possibility of purchasing gas from Slovakia. Furthermore, since 2010 the Ukrainian government has been working on the construction of an LNG terminal near Odesa. The authorities have declared that this will allow Ukraine to import up to 5 billion m3 of LNG a year by 2015. The government has also taken measures to increase domestic production, including from non-traditional sources, and it plans to replace gas-based with coal-based technologies in local power stations. Finally, in January 2013, the government signed a 50-year production sharing agreement with Shell. This paves the way for the development of Ukraine’s shale gas deposits.

Gazprom's position on the Russian gas market weakening. OSW Commentary No. 70, 2012-02-23

As the difficulties Gazprom has faced in recent years on the European market have multiplied1, so more and more symptoms have appeared which may suggest that the company’s dominant position is deteriorating. The decision made by the Russian government in June 2011 to double the tax Gazprom has to pay on the extraction of gas, which was later approved by parliament, was the first time in many years when the company’s fiscal privileges were withdrawn. The process of Gazprom’s assets being taken over by private companies and business partners from within Vladimir Putin’s closest circle is underway. More and more frequently attempts are being made to challenge the company’s monopoly in areas of key importance for the functioning of the entire gas sector, such as Gazprom’s exclusive right to dispose of the Russian gas transportation system and its exports monopoly. Competition from independent gas producers on the domestic market is growing, and Gazprom is gradually being pushed out of some of that market’s most profitable segments (industrial clients). The emerging tendencies in the Russian gas sector derive from a number of factors – from the situation on the European gas market, through difficulties hampering the development of the sector in Russia itself, to the private interests of the current ruling class and its business partners. The plans for a structural reform of the monopoly (including isolating gas transportation system from Gazprom), presented since 2000 by the Ministry for Economic Development and since 2003 by the Russian Association of Industrialists and Entrepreneurs (RSPP), suggest a direction for the changes necessary to stimulate the sector’s development and improve the efficiency of Gazprom itself. However, the monopolist’s current business model gives the government full control over this strategic enterprise, which is a core of Putin’s concept for developing Russia as a global energy power. Despite Putin’s recent statement that he “does not rule out privatising Gazprom in the future” (made at a meeting with political scientists in Moscow on 6 February this year), any structural reform of Gazprom (and consequently, a weakening of the state’s control over it) seems unlikely in the foreseeable future. Still, the developments on the domestic market – growing pressure from other gas companies (oil corporations and independent producers) and changes on the European market2 – may result in the weakening of Gazprom’s monopoly privileges and a gradual deterioration of its special status within Russia.

Antitrust on the ‘G string’: What’s behind the Commission’s investigations of Google and Gazprom? CEPS Commentary, 15 June 2015

The past few weeks have marked a shift of gear in EU antitrust enforcement. First, the new European Commissioner for Competition Margarethe Vestager announced on April 15th that the Commission had sent a Statement of Objections to Google, arguing that the giant IT company abused its dominant position in the “general Internet search” market and also in the market for mobile operating systems, apps and services. Exactly one week later, she also sent a Statement of Objections to Gazprom for having created artificial barriers to trade between certain EU countries, preventing gas flows and competition across national borders and charging unfair prices in five Central and Eastern European countries. It is indeed hard to recall any other time in which two investigations of this size – both potentially leading to billions of euros of fines – have been launched almost simultaneously.

Energy polarization and popular representation: Evidence from the Russian Duma

In this article we introduce the term “energy polarization” to explain the politics of energy market reform in the Russian Duma. Our model tests the impact of regional energy production, party cohesion and ideology, and electoral mandate on the energy policy decisions of the Duma deputies (oil, gas, and electricity bills and resolution proposals) between 1994 and 2003. We find a strong divide between Single-Member District (SMD) and Proportional Representation (PR) deputies High statistical significance of gas production is demonstrated throughout the three Duma terms and shows Gazprom's key position in the post-Soviet Russian economy. Oil production is variably significant in the two first Dumas, when the main legislative debates on oil privatization occur. There is no constant left–right continuum, which is consistent with the deputies' proclaimed party ideology. The pro- and anti-reform poles observed in our Poole-based single dimensional scale are not necessarily connected with liberal and state-oriented regulatory policies, respectively. Party switching is a solid indicator of Russia's polarized legislative dynamics when it comes to energy sector reform.

"Kirjailijoiden tapaus" Venäjällä vuonna 1997

In the autumn of 1997, Russian government was faced with media pressure when owners of the TV channels ORT and NTV joined forces against it. This study is based on media sources from October 1997 to December 1997. It shows clearly how the enormous power of the media was able to dictate what happened in Russia. In the mid-1990s Russians started to talk about political technology, which became a commonly used term by professionals, journalists, politicians and intelligence services. As a result of this action, two leading reformers in the government, Anatoliy Chubais and Boris Nemtsov, were dismissed from their highly influential posts as finance and energy ministers respectively, but retained their power as first deputy prime ministers. According to the correspondents, the real reason was to resolve a conflict within the parliament, which had demanded the dismissal of Mr. Chubais. This demand was presented after Chubais had accepted $90,000 as a reward for co-writing a book on privatization. Chubais was considered to be Russia’s “business card” towards the west – the"Authors’ case" (Delo avtorov) was only solved after President Boris Yeltsin took part in the public debate. According to the research, the media owned by powerful businessmen Boris Berezovsky and Vladimir Gusinski, was able to use its own security services to expose sensitive material (Russian term ‘kompromat’), if necessary, concerning any given person. The so-called Authors’ case can be considered as a part of the battle and the tip of the iceberg in arrangements designed to organize the funding of the Russian presidential election campaign in 2000. The reason why this particular incident was so widely covered on television was because several programs aimed to reveal to the public "hidden bribes" that, as they claimed, government officials had received. The political aspect, however, was quite mild, when the concrete issues of possible dismissals of Ministers were debated in the Parliament. Everything was dealt with as a “family matter” inside Kremlin. Yeltsin's "family" consisted of practically anybody from oligarch Berezovsky to Chubais, the father of Russia's privatization policy. Methods of critical history implementation analysis has been used in this research in determining the use of the source material. Literature and interviews have also provided a good base for the study. The study proves that any literature dealing with the subject has not paid enough attention to how the dismissal of Alexander Kazakov, deputy of President’s administration, was linked directly with Gazprom, the state gas monopoly. Kazakov had to leave Gazprom and lose his position as Chubais' ally when the influential ORT television company was deteriorated.