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Corporate governance of SOEs

Kobolyev fails to post bail, SAPO demands tougher one. On 7 March 2023, the Specialised Anti-Corruption Prosecutor’s Office (SAPO) reported that former Naftogaz CEO Andriy Kobolyev did not pay his required bail of UAH 229 million.

As of 7 March 2023, almost UAH 97 million has been paid for Kobolyev’s bail, according to SAPO prosecutors. Per the court decision, the bail must be paid in full to the accounts of the State Treasury Service of Ukraine no later than five days after the court ruling is announced. The final deadline was 6 March, SAPO said.

As a result, the SAPO prosecutor filed a motion requesting the National Anti-Corruption Bureau of Ukraine (NABU) to apply a more stringent preventive measure to the suspect, namely detention with a bail of UAH 365 million. This is the equivalent of $10 million, which Kobolyev received as the first tranche of his allegedly illegal bonus, according to SAPO.

SAPO added that neither Kobolyev’s Ukrainian nor foreign bank accounts have been seized, despite requests to do so from NABU and SAPO.

Kobolyev wrote on his Facebook page that his foreign accounts are currently blocked until the circumstances of the criminal proceedings are clarified. According to Kobolyev, his accounts in Ukraine were arrested at the end of December 2022 for reasons that are still unclear to him.

He added that after he was able to access them, he deposited all the funds from these accounts as part of the bail. This was about UAH 1 million, according to Kobolyev. He also mentioned that he has kept his assets abroad since he was issued a personal UAH 8 billion fine in the past.

On 9 March 2023, the law firm Miller which represents Kobolyev in this litigation reported that the High Anti-Corruption Court (HACC) held a meeting on 10 March, at which the SAPO reiterated its request for Kobolyev’s arrest, with bail of UAH 365 million.

The law firm said that it filed an overview of correspondence between Naftogaz’s corporate secretary (Mariya Sukhan), chair of the supervisory board’s nomination and remuneration committee (Amos Hochstein), the legal advisor (Olena Kuchynska), and others. This correspondence should show that the bonus decisions were made in several steps, Miller added.

The HACC will continue to consider the matter on Monday, 13 March.

In SOE Weekly (Issue 71), we reported that on 19 January 2023, NABU and SAPO notified Kobolyev that he was suspected of misappropriating (illegally awarding himself) over UAH 229 million in 2018.

This payment was part of the bonuses granted to Naftogaz’s 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 relating 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. – SOE Weekly.]

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

In SOE Weekly (Issue 72), we reported that, on 23 January 2023, 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. On 31 January, SAPO challenged HACC’s decision.

In SOE Weekly (Issue 77), we reported that the Appeals Chamber of the HACC partially satisfied the motion of SAPO and NABU, setting bail at UAH 229 million, which Kobolyev had until 6 March to pay.

Chair of MGU’s supervisory board resigns. According to the media, the chair of the supervisory board of the Main Gas Pipelines of Ukraine – Mahistralni Gazoprovody Ukrainy (MGU), Huberte Bettonville, files her resignation notice to the company’s shareholder, the Energy Ministry.

[According to Ukrainian law, such a resignation notice should be filed at least two weeks in advance. If Bettonville filed her resignation notice on 6 March, as media reports appear to suggest, then her resignation should be effective on 20 March or later. – SOE Weekly.]

“Despite my sincere efforts for the sake of the company and the war effort of Ukraine, some of the [supervisory board] members have proven that they will not and cannot apply EU standards and corporate governance principles, and they should be ashamed of themselves. They are the main reason for my resignation,” Bettonville wrote in the reasoning behind her decision. She also stated that she could no longer participate in the decision-making process and create additional value for the company.

Speaking with the intelligence services agency ICIS a day after her resignation, Bettonville said that her efforts to liquidate MGU, appoint a new CEO at the Gas Transmission System Operator of Ukraine (GTSOU), and reduce the GTSOU’s dependence on Russian transit income have been thwarted. She said that she felt frustrated that in 15 months of tenure, the supervisory board could not achieve anything tangible, depending instead on approvals from the government.

Bettonville said that she felt that some members of the supervisory board had “an agenda” although she did not specify whom she was talking about or what this agenda entailed.

In the past, sources close to GTSOU raised concerns about nepotism and attempts by some of the state representatives on the supervisory board to appoint closely connected people to high-ranking positions, ICIS wrote.

[The supervisory board of MGU board consists of five members, including two state representatives (Viktor Pynzenyk and Tetiana Fedorova) and three independent members (Huberte Bettonville, Jan Chadam, and Iryna Marushko). Bettonville chaired MGU’s board.

Decisions of the supervisory board are made by a simple majority of votes, with the chair having a casting vote in case of tie.

This suggests that Bettonville was dissatisfied with at least one state representative and at least one independent member of the board. – SOE Weekly.]

Bettonville also bemoaned the fact that GTSOU did not have a permanent CEO after the previous CEO, Serhiy Makogon, was dismissed by MGU in September 2022. She also added that she considered Makogon “a good person with strong lobbying abilities”.

[The decision to dismiss Makogon was made by MGU’s supervisory board. Bettonville did not make it clear whether she voted in favour of Makogon’s dismissal in September 2022. – SOE Weekly.]

She said that a new CEO, Dmytro Lyppa, was selected by MGU on 31 December 2022, but he could not take over the position because decisions by the Ministry of Energy and the Cabinet of Ministers were still pending, raising questions about the independence of MGU.

[The sole shareholder of MGU is the Ministry of Energy. MGU is the owner of GTSOU, and MGU’s supervisory board acts as the general meeting of GTSOU. – SOE Weekly.]

Bettonville also noted that the acting CEO of MGU [Oleksandr Lisnichenko – SOE Weekly] left the company and fled the country earlier in February.

Instead, Dmytro Fudashkin took over [apparently, as acting CEO – SOE Weekly]. A source close to GTSOU told ICIS that Fudashkin is a close associate of Viktor Pynzenyk, one of the state representatives on MGU’s supervisory board.

[It is unclear when or how Dmytro Fudashkin was appointed. According to MGU’s website, Oleksandr Lisnichenko is still the acting CEO. According to SMIDA, the acting CEO is Valeriy Nozdrin, who had been appointed as such when MGU was established in 2017. – SOE Weekly.]

Makogon wrote on his Facebook page that this was not the first time that Bettonville was announcing her resignation, which was yet to be confirmed.

In SOE Weekly (Issue 76), we reported that the supervisory board of MGU has yet to appoint a new CEO for GTSOU, more than five months after the dismissal of the previous CEO, Serhiy Makogon, in September 2022.

MGU’s supervisory board announced a competitive CEO selection on 25 November 2022. No further information has been released publicly, including how many candidates applied or when the selection would be completed.

According to Ukraine’s current law, the CEO candidate for GTSOU must be first approved by the Cabinet of Ministers and only then appointed by MGU’s supervisory board.

In SOE Weekly (Issue 67), we reported that the candidate list leaked to the media. According to Ekonomichna Pravda’s (EP) sources, 19 candidates were longlisted by 19 December 2022. The submission deadline was 12 December, suggesting that all applicants were screened, and the longlist was drawn up in less than a week.

In SOE Weekly (Issue 67), we reported that the previous CEO, Makogon, was dismissed by MGU’s supervisory board on 16 September 2022. Makogon was succeeded by acting CEO Paweł Józef Stańczak. Prior to that, Stańczak worked as GTSOU’s Deputy CEO for Development and Transformation.

Makogon criticised the new competitive selection, noting that the longlist included no foreign candidates. He said that the selection procedure was for show, and he had no doubt as to who would be shortlisted. Makogon said that many reputable candidates, who were contacted by the executive search company supporting the selection [Odgers Berndtson – SOE Weekly], flatly refused to apply.

Earlier, Makogon said that before his dismissal, MGU wanted to establish an executive board [allegedly aiming at diluting Makogon’s powers without dismissing him – SOE Weekly]. However, now that he has been dismissed, MGU no longer requires any executive board and merely wants to appoint a loyal CEO, Makogon claimed.

According to media reports, in June 2022, MGU’s supervisory board formally proposed Serhiy Oleksiyenko and Andriy Khomenko as CEO candidates without a competitive selection, but the Cabinet did not approve either.

Finance Ministry demands a speedier corporate governance reform of GTSOU. According to Ekonomichna Pravda (EP), the Ministry of Finance asked the Ministry of Energy to speed up the corporate governance reform of GTSOU, as it is a prerequisite for Ukraine to receive €18 billion in macro-financial assistance from the European Union (EU) in 2023.

The Ministry of Finance said that this includes the introduction of a single-tier corporate model of GTSOU by transferring the company into direct ownership of the state (represented by the Ministry of Energy), the subsequent liquidation of MGU, and the establishment of an independent supervisory board and an executive board at GTSOU.

In SOE Weekly (Issue 71), we reported that European Pravda revealed the conditions that Ukraine must meet to receive the EU’s macro-financial assistance package. One of these conditions is to launch the corporate restructuring of GTSOU by June 2023.

In SOE Weekly (Issue 67), we reported that on 4 October, the Energy Community Secretariat wrote a letter to Prime Minister Denys Shmyhal and Minister of Energy Herman Galushchenko, urging the government to immediately implement GTSOU’s corporate governance action plan:

• transfer the ownership of GTSOU from MGU to the Ministry of Energy;
• adopt a new charter for GTSOU, creating an independent supervisory board at GTSOU;
• run a competitive selection of supervisory board members for GTSOU;
• have an executive board elected and appointed by GTSOU’s new supervisory board after the latter is established.

[Note that these are precisely the points that the above letter of the Finance Ministry emphasises. – SOE Weekly.]

Two out of three state representatives on PrivatBank’s supervisory board re-appointed. On 3 March 2023, the Cabinet of Ministers re-appointed two state representatives on the supervisory board of PrivatBank for a second term.

Yulia Metzger’s tenure was prolonged as the President’s nominee, and Artem Shevalev’s, as the Cabinet’s nominee.

Metzger was appointed for her first term in July 2019. Shevalev was appointed in May 2019.

[The supervisory board of PrivatBank consists of nine members, including six independent members and three state representatives.

The third state representative, nominated by the Verkhovna Rada, was Serhiy Oleksiyenko. No public information is available on the Rada’s plans to either re-appoint or replace him.

The competitive selection for supervisory board members for three Ukrainian state-owned banks – PrivatBank, Oschadbank, and Ukreximbank – started simultaneously on 11 October 2022, with deadlines of 11 November 2022.

In SOE Weekly (Issue 69), we reported that, on 27 December 2022, the Cabinet of Ministers dismissed almost all independent members of PrivatBank’s supervisory board and replaced them with new ones after a competitive selection.

There have not been no public updates on the selections for Oschadbank or Ukreximbank. – SOE Weekly.]

State-owned banks spent almost half a billion hryvnia on remuneration to supervisory boards and executive boards in 2022. According to Ekonomichna Pravda (EP), 68 members of executive and supervisory boards of four Ukrainian state-owned banks received UAH 477 million in salaries, bonuses, and other remuneration in 2022.

[Apparently, EP uses the following sources of data for its calculations: PrivatBank, Oschadbank, Ukreximbank, and Ukrgasbank. – SOE Weekly.]

According to the remuneration reports of state-owned banks, most of this amount, UAH 301 million, was executive boards’ remuneration. The rest, UAH 176 million, went to supervisory boards, EP wrote.

PrivatBank, Ukraine’s largest bank, paid the most to its top executives and supervisory board members over the past year: over UAH 197.7 million. It spent UAH 116.8 million on the executive board and UAH 80.9 million on the supervisory board.

In 2022, Ukreximbank paid its executive board members almost UAH 78 million. Besides the base pay, this amount includes UAH 34 million in bonuses and UAH 12.8 million in “other payments in cash”. As the bank explained in its report, the executives donated their February 2022 bonuses to support the Armed Forces of Ukraine, EP added.

Ukreximbank spent a total of UAH 42.5 million on the supervisory board. The report notes that the board’s March remuneration was also given to the Armed Forces of Ukraine.

Oschadbank spent UAH 49.1 million on its executive board in 2022. These payments included salaries, compensation, and insurance premiums. The bank also paid UAH 46.2 million in remuneration and compensation to the supervisory board members.

Ukrgasbank spent a total of UAH 64 million on its executive and supervisory boards. The executive board members received UAH 57.3 million in salaries, compensation for martial law expenses, and additional benefits (including those from the trade union). Another UAH 6.7 million went to the supervisory board members.

According to EP, these were the state-owned banks’ average monthly pay-outs in 2022:

[Notably, the average executive board member’s remuneration at Ukreximbank was almost the same as that at PrivatBank. Ukreximbank is much smaller and posted heavy losses in 2022. – SOE Weekly.]

Note that in November 2021, SOE Weekly team members Oleksandr Lysenko, Andriy Boytsun, and Dmytro Yablonovskyi analysed the remuneration disclosure requirements for state-owned enterprises and banks, their enforcement, and the disclosed figures in an article titled “State-owned companies required to disclose salaries of board members and executives: How much they make and why not everyone reports”.

These were the estimated average monthly salaries at state-owned banks for the year 2021:

In SOE Weekly (Issue 51), we noted that these calculations were indicative and had to be treated with caution. In particular, reporting formats varied from one SOE to another: Some reported on remuneration accrued in October, while others, on the remuneration paid in October. In the latter case, this could be the remuneration for September, October, or the entire third quarter.

At the end of 2020, the NBU mandated that banks should disclose information on the remuneration paid to executive and supervisory board members.

SBU serves suspicion notice to former Antonov executives in the case of destruction of the Mriya aircraft. On 10 March 2023, the Security Service of Ukraine (SBU) reported that it had served a notice of suspicion to former Antonov CEO Serhiy Bychkov of obstructing the Armed Forces of Ukraine.

According to the SBU, on the eve of Russia’s full-scale invasion, the Antonov officials did not allow the Ukrainian army to enter the territory of the Hostomel airport to prepare for its defence.

Such criminal actions led to the temporary capture of the strategically important airfield and surrounding settlements, and the destruction of the AN-225 Mriya aircraft, the SBU added.

In January-February 2022, officials explicitly forbade the Ukrainian military to build defensive fortifications at the airport. To do so, they ordered to block the access of the National Guard to the territory of the airport, the SBU said.

The acting deputy СEO and the deputy CEO for aviation security were also notified of the suspicion. According to media reports, these are Mykhailo Kharchenko and Oleksandr Netiosov.

According to the Prosecutor General’s Office (PGO), two suspects have been detained, and PGO considered putting the third suspect (former deputy CEO) on the wanted list. If found guilty, they face up to 15 years in prison.

SOE updates

Energy sector

Ukrenergo endures another Russian missile and drone attack on its energy facilities. On 9 March 2023, Ukrenergo reported that Russia launched another missile and drone attack on Ukraine’s energy infrastructure. This was Russia’s 15th attack in its series of mass attacks, Ukrenergo added.

The attack started during the night of 9 March 2023 and continued until the morning. According to Ukrenergo, the attack caused damage to the energy infrastructure. Therefore, electricity supply had to be restricted in Zhytomyr, Kharkiv, and Odesa oblasts. To mitigate the risks, certain restrictions were proactively imposed in all regions. The power system is being repaired and the electricity supply is gradually being restored.

According to the Ministry of Energy, as of 6:30 a.m. on 9 March, shelling of energy facilities was recorded in Kyiv, Mykolaiv, Kharkiv, Zaporizhzhia, Odesa, Dnipro, and Zhytomyr oblasts.

As a result of the attack, the last transmission line connecting the occupied Zaporizhzhia NPP and the Ukrainian energy system was disconnected, creating a risk of nuclear contamination, the Ministry added. The plant was operating on diesel generators. Ukrenergo later reported that the power supply to Zaporizhzhia NPP was restored.

[After every Russian mass missile attack on Ukraine’s vital infrastructure, emergency outages often last for days due to the ongoing repair works. During such outages, people in Ukraine are left without electricity, heating, water supply, or access to mobile phone networks. – SOE Weekly.]

In SOE Weekly (Issue 74), we reported on the previous wave of Russia’s missile and drone attacks on 10 February 2023.

In SOE Weekly (Issue 72), we reported on the 26 January wave of Russia’s missile and drone attacks. According to Ukrenergo’s CEO Volodymyr Kudrytskyi, at that time, just like before, Russia did not achieve its goal of causing a collapse in the Ukrainian power system.

Privatisation

SPFU raises UAH 1 billion from privatisation since the beginning of 2023. On 7 March 2023, the State Property Fund of Ukraine (SPFU) reported that it has held 81 privatisation auctions, with a total of 468 auction participants, raising UAH 1 billion since the beginning of 2023.

In SOE Weekly (Issue 75), we reported that on 16 February 2023, MP Roksolana Pidlasa (Sluha Narodu faction), Chair of the State Budget Committee, wrote on her Facebook page that since the beginning of 2023, the state budget received UAH 645 million from privatisation at that time.

In SOE Weekly (Issue 68), we reported that from 19 August 2022 to the end of 2022, Prozorro.Sale conducted 220 privatisation auctions. As a result, the state and local budgets were expected to receive UAH 1.5 billion.

SPFU fails to sell the Bilhorod-Dnistrovskyi seaport on its first attempt, starting price to be halved. On 3 March 2023, the scheduled auction for the privatisation of the Bilhorod-Dnistrovskyi trade seaport did not take place.

A new auction has been registered in the Prozorro.Sale system, due to take place on 13 March.

The starting price has been halved – from UAH 187.6 million to UAH 93.8 million.

According to Oleksandr Slavskyi, head of the regional office of the SPFU in Odesa and Mykolaiv regions, the first auction failed because no one registered for the auction. According to him, one reason is that after the Russian invasion, Bilhorod-Dnistrovskyi has been blocked from the sea and thus has been used for transhipment only.

A second reason is the total cost [to the prospective winner – SOE Weekly]. Slavskyi explained that 20% VAT plus UAH 100 million in debt repayment should factor into the port’s price. “In any case, different businesses were interested, so we are waiting for the second auction,” he added.

In SOE Weekly (Issue 74), we reported that the SPFU announced a privatisation auction for the Bilhorod-Dnistrovskyi trade seaport. This would be the second sale of a seaport since the independence of Ukraine.

In SOE Weekly (Issue 71), we reported that on 17 January 2023, the SPFU sold the Ust-Dunaisk trade seaport for UAH 201 million, a more than threefold increase from the starting price (UAH 60 million). This was the first sale of a seaport in the history of independent Ukraine.

[Note that, unlike Bilhorod-Dnistrovskyi, the Ust-Dunaisk seaport is operational. – SOE Weekly.]

Interest groups have tried to block the deal, challenging the sale via filing a statement with the National Anti-Corruption Bureau of Ukraine (NABU) and sending letters to Prime Minister Denys Shmyhal, speaker of the Verkhovna Rada Ruslan Stefanchuk, and head of the SPFU Rustem Umerov.

Procurement notices – powered by Prozorro

Together with Prozorro, we selected procurement notices announced by top 15 Ukrainian SOEs and four state-owned banks from 2 to 9 March with an expected value of more than UAH 1,000,000. Note that the State Food and Grain Corporation has not used Prozorro since 2017; PrivatBank, since 2018; and Automobile Roads of Ukraine, since 2021.