In recent months, the port point "Kiliyya", Ust-Danusky port of Odesa region, chained attention due to a legal dispute between public and private structures. The situation is aggravated by the fact that this dispute, given the importance of the operation of the country's sea and river ports in wartime conditions, directly affects the economic and social situation in the southern region of Ukraine.
As we already are reported in the previous article, there are three port operators working on the territory of the port point "Kiliya": SE "MTP "Ust-Dunaisk", LLC "Kranship" - a group of companies "Transship" and LLC "Grain Terminal Kilia" (LLC "ZTK"). Unfortunately, at the time of the sale of the port by the State Property Fund of Ukraine, proper coordination between the enterprises was not carried out.
The starting price of the lot (60 million hryvnias) increased more than three times during the bidding, so the winner, the Vinnytsia company "Elixir Ukraine", bought the port from the State Property Fund (FSMU) for 201 million hryvnias. In fact, the buyer had to pay almost UAH 250 million, including VAT and 3% Prozorro.
However, due to the fact that the FSMU did not carry out the correct distribution of property before the privatization of the port, and the strategic objects of the port infrastructure, which were not supposed to be auctioned, were included in the privatization list, immediately after the auction the buyer faced great problems and the impossibility of registration of the acquired object object
According to open sources, the property complex of the port is divided between FDMU and LLC "Seaport Danube Kilia" (LLC "MVDC"). At the same time, 94/100 of the shares are on the balance sheet of State Enterprise "MTP "Ust-Dunaisk", and 6/100 are owned by "MPDK" LLC and leased by "ZTK" LLC. It is important to note that this share was purchased at auction in 2007 and its legal personality was twice confirmed by court decisions (the decision of the Kili District Court from 2007 and the decision of the Economic Court of Odesa Region 916/2514/21).
However, the complexity of the situation lies in the fact that the property of LLC "ZTK" was included in the 94/100 share of the complex of port buildings put up for sale by the state, and during the preparation of the port for privatization, it was not excluded from the Register of rights to immovable property.
Naturally, this state of affairs raised serious questions regarding the procedure for privatization and registration of property, in connection with which court cases No. 910/4588/23 are currently being considered in the Commercial Courts of the Odesa Region and the City of Kyiv; 916/102/23; 916/186/23; 910/6314/23 on cancellation of the auction, contract and orders of the FSMU, exclusion of unnecessary objects from the Register, as well as on the distribution of property of co-owners.
Because of the property was "sold" by the Fund undivided and unallocated, mixed with other people's property, the state registrar has no right to re-register it to a new owner, and the issue of transferring the port literally hung in the air.
EXPERT COMMENTS
Hoping to find a fair and quick solution to the situation that takes into account the interests of all participants in the process, EliteExpert interviewed representatives of the parties, one way or another, involved in this conflict.
In particular, the head of the Ust-Dunaisk branch of the state-owned enterprise "Sea Ports Administration of Ukraine" Volodymyr Shvydchenko said that the parties need to agree: «Why is the final stage of document registration not taking place? It is necessary to sit down and sort out those inconsistencies that surfaced during the sale and that were seen by the relevant authorities. The documents were not drawn up, because, probably, there are some inconsistencies with some norms and laws of Ukraine. The AMPU branch "Ust-Dunaisk", for its part, takes an absolutely constructive position in this regard and is ready to take all actions that will help solve this problem».
At the same time acting Oleksandr Popov, director of the State Enterprise "MTP "Ust-Dunaisk", refused to answer media questions and comment on the situation, limiting himself to a standard response to a journalist's request.
Another official interviewed by us, Vyacheslav Chernyavskyi, head of the Kili city community, on the territory of which the port office is located, believes that the root of all problems lies in the fact that the property of the port was not divided earlier. «In this situation, in my opinion, they all need to sit down and negotiate - I mean all port operators or applicants for work in this port. If you can't come to an agreement, then go to court and don't drag this issue out. And I think that the state should be involved in solving this conflict situation».
In turn, the owner of ZTK company Oleksandr Gramma explained to us exactly how his company fights for its property.
«The situation is simple: two co-owners of a property complex have undivided single property. And in order to sell it correctly, the Federal State University had to separate its property into a separate unit. When we saw the mechanism of privatization, we did not agree with it, since our property rights are clearly violated here. In this regard, we have repeatedly appealed to the FSMU, the Ministry of Infrastructure, the State Enterprise "MTP "Ust-Dunaisk" with a request to draw up the privatization package correctly, but all our requests were ignored. We also filed a lawsuit with the Commercial Court of the city of Kyiv.
Secondly, the state real estate register lists the objects of the state's share, which is 94/100 of the port complex. But it contains movable objects belonging to our company - a hangar, a lift and a weighing station. This is the subject of the second legal dispute, in which we are trying to exclude these objects from the register"Oleksandr Gramma noted.
In addition, the lawyers of MPDK LLC note that the owners do not prevent privatization and do not try to disrupt this process, but at the same time they do not want their property taken away from them.
«The practice of the Supreme Court says that if objects are entered in the real estate register that should not be there, and another person is indicated as the owner, then such property is subject to demand. This is exactly what is happening now - the owners are demanding their property.
As for the allocation of shares, it is possible only in two ways - either by a court decision or by a notarized contract. The fund was supposed to allocate shares and distribute property", - stressed the lawyer of "MPDK" LLC Oleksiy Zgoda.
In response to an official request by ElitExpert, the regional branch of the Federal State University for Odesa and Mykolaiv regions did not admit the fault of the Fund's employees in the negligent preparation of the port for sale, stating that the privatization process was completely open and transparent, ignoring information about several lawsuits against the Federal State University. "The list of property belonging to the state and included in the object of privatization, confirmed by multiple court decisions", the Foundation noted.
The reason for the fact that the new owner still has not acquired ownership of the object was cited there as the fact that "the buyer must obtain the permission of the Antimonopoly Committee of Ukraine to acquire ownership of shares (parts) in the amount exceeding 50% of the votes in the highest management body of the relevant object (concentration permit). And due to the direct instruction of Article 26 of the Law of Ukraine "On Privatization", the ownership of the object is transferred to the buyer only after AMCU grants such permission.
In its turn, the Antimonopoly Committee of Ukraine noted in a comment to ElitExpert that in May 2023, consideration of this case began, it is currently ongoing, and no decision has yet been adopted by the Committee.
THE NEGOTIATION PROCESS IS ON
In recent days, the situation has begun to move from a standstill. The Antimonopoly Committee, which is currently considering the permit for the concentration, organized a meeting of all interested parties - with the participation of representatives of the State Property Fund, the buyer company, SE "AMPU" and port operators. A little later, a similar meeting was held by the FSMU branch in the Odesa and Mykolaiv regions at the initiative of ZTK LLC.
According to Oleksandr Gramma, the head of ZTK, his company's position remains unchanged and simple - while not opposing privatization as such, the port operator does not want it to be carried out at his expense: "If the parties have a constructive desire to resolve this issue, then we offer a simple and legal way out of the situation: first, divide the shares in the port property complex in kind, and only after that, sign the act of acceptance and transfer with the buyer. In this case, all interested parties will notarially settle all disputed points in the shortest possible time, and the problem will be solved forever. The buyer will receive exactly what he paid for and will not take someone else's property."
This position of the company was supported by the Antimonopoly Committee. However, in the process of negotiations, it became clear that even with the formal agreement of officials of the State Property Fund for division, there is a different understanding of how this property should be divided. In the Fund, they are inclined to the principle - "it's up to you, God, what's wrong with us." However, let's remind that in 2007 the company bought objects from the state, not shares. Today, LLC "ZTK" has the primary right to specific objects of the property complex (in particular, capital buildings on the territory of the port - the building of the Ust-Danuy marine station, office premises, etc.). Currently, according to the Register, they are jointly owned by FDMU and LLC "MPDK" ("ZTK"), and can become sole property only after the property is divided. That is why the correct interpretation of the concept of "property" is so important in this situation.
In addition, the issue of fair competition was raised at the meeting of the Antimonopoly Committee. All port operators working at the port point - SE "MTP Ust-Dunaisk", "ZTK" and "Kranship" - are competitors and should have equal opportunities to work without oppression of their rights, regardless of who is the owner of one or the other facility on the territory of the port. Therefore, for example, an unacceptable situation when "Ust-Dunaisk MTP", duplicating the functions of AMPU, also starts issuing passes to the territory of the post office to other operators. This and other similar issues related to competition are critical to the operation of the port in general, as they violate antitrust regulations, which can lead to the refusal of a concentration. One gets the impression that the state-owned enterprise "MTP Ust-Dunaisk" is deliberately provoking the situation so that there are more questions before the auction and bidding, which definitely does not contribute to the completion of privatization.
At the second meeting organized by the Odesa branch of the FSMU, the companies agreed that the buyer of the Ust-Dunaisk port property complex, Elixir-Ukraine LLC, will provide its vision of a pre-trial solution to the situation in response to a well-founded claim by ZTK LLC.
Such an end to the dispute would be optimal for everyone, but the public position of the winner of the auction - "the privatization took place transparently and publicly in accordance with the current legislation of Ukraine", - unfortunately, makes us doubt his desire to solve the problem constructively.
Most likely, "Elixir-Ukraine" does not intend to wait for the notarial division of the property, but expects to take the port complex into use right now, with all the disputed points. And only then, having become the full owner of his part of the port, start dealing with the property of ZTK. However, partners from ZTK may doubt Elixir's honesty and integrity, and therefore, they are unlikely to allow their rights to be violated on the promise to deal with it "later".
The possibility of accepting the object "clean", with clearly allocated shares and without legal disputes, for some reason is not a priority for the company that won the auction.
While conducting a journalistic investigation, we found out that some interested persons, who are not related to the property complex of the port, are working to delay the privatization procedure through legal and industrial chaos, which also generates new and new court cases. And because the privatization procedure lasts longer, individuals will profit from it longer. (And about that EliteExpert will tell in the following materials).
If our assumptions are correct, the privatization of the property of the Ust-Danube port can finally be locked in a pile of court cases and criminal proceedings. Which, of course, is unprofitable neither for port operators, nor for the buyer, nor even more so for the state.
Olena Ovchinnikova, Oleksandr Shorokhov
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