Быстрый рост торговли сжиженным природным газом (LNG) в последнее время показывает Украине альтернативный путь обеспечения ее энергетических потребностей и интересов.
В статье рассматриваются юридические вопросы, связанные с реализацией проекта создания LNG терминала в Украине.
The industry of liquefied natural gas (LNG) trading has been growing fast for the last few years. LNG may be a real alternative to conventional methods of natural resources supply as it gives an opportunity to select among suppliers of the gas. Moreover, it may be an effective tool for countries where geography does not allow locating pipelines or their construction will be cost-ineffective. Thus, for instance, island-based Japan became a leader in developing LNG facilities with its more than 25 LNG import terminals.
Understanding national demands in natural gas Ukrainian government declared that the country’s first LNG terminal will be built in the near future. On 8 December 2010 by the Resolution of the Cabinet of Ministers of Ukraine the list of projects in priority areas of social-economic and cultural development (national projects) was approved. The mentioned resolution was actually the beginning of a national project on construction of the sea LNG import terminal. And already on 17 December 2010 State Enterprise the national project LNG-terminal, which should coordinate work on terminal construction at the Black Sea coast of Ukraine till 2014, was established.
According to the feasibility study provided by Socoin the project should be carried out in two stages: offshore and onshore. The offshore stage envisages constructing a pipeline with a jetty where an FSRU (Floating Storage Regasification Unit) will be permanently moored before completion of the onshore stage. Following the words of public officials the FSRU will be assigned by the American company Ex-celerete Energy L.R In turn, the onshore stage includes construction of land-based facilities for unloading conventional LNG vessels and gas storages, pursuant to the feasibility study’s second stage to be completed in 2016.
It is hard to talk about economic reasonability of construction of the LNG terminal in Ukraine but it is interesting to discover whether Ukraine has a proper legal framework for implementation of such types of projects.
Customs issues during implementation of the project
The practice of using FSRUs is common for the LNG industry around the world. In fact, a FSRU is nothing else than a vessel. Thus, the FSRU may be owned by a company which under a special agreement allows another company to operate the FSRU for purposes of gasification of LNG (so-called tolling model) or the FSRU may be simply chartered to the latter company. In any case the FSRU has the status of a ship.
The project envisages that a FSRU to be moored to a jetty interconnected with an appropriate pipeline for a period of completing the onshore stage. In accordance with Article 187(1) of the Customs Code of Ukraine (the Code) means of transport for commercial use (including ships) which are being moved through the customs border of Ukraine are subject to customs control and customs clearance. However, Annex C of the Convention relating to temporary admission as well as Article 189(3) of the Code allow ships to be located in a customs regime of temporary admission without paying state fees and taxes. The Article 108(1) of the Code states that a term of temporary admission must not exceed 3 years from the date when it was set. Considering that in accordance with the project the offshore stage should not be more than 3 years it is unlikely that there will be any customs troubles because the FSRU could be placed in the regime of temporary admission.
As can be seen from the project the model of the offshore stage implies that the LNG will be transported to the FSRU where it will be gasified and then through pipelines delivered to end-users. In other words the whole cycle contains a phase where a liquefied gas will be transshipped from one ship to another. In this regard it is possible to presume two scenarios of how the clearance of gas being imported will be performed. The first relates to the clearance of gas after it was gasified on the FSRU and the second with regard to the clearance of LNG which was transshipped from a tanker to the FSRU. It is important to define which of them must be applied because of different fee rates in each scenario and, as a result, a different price for end-users.
Ukrainian customs legislation contains a regime of processing on the customs territory of Ukraine. According to Article 147 of the Code the regime of a processing on the customs territory envisages that foreign goods be processed on the customs territory of Ukraine without paying appropriate duties but on condition that the resulting goods be re-exported. However, there is an exception from the mentioned rule indicated in Article 156 of the Code that products of processing may be further imported if: (1) the customs body can be assured that final products were processed from imported goods (e.g. the natural gas was gasified from imported LNG); and (2) products after processing cannot be restored in the initial form with economic efficiency. Therefore, there are two questions as to whether it is possible to apply the aforementioned regime for purposes of importing the gas. The first question is whether the gasification is sufficient to be acknowledged as processing in the meaning of national customs law? And the second is: where are limits in determining the economic efficiency for applying the regime?
As to the first question, considering that natural gas and LNG have different codes in the Ukrainian Classification of Commodities of Foreign Economic Activity it looks like the regasifi-cation may be acknowledged as processing. And as to the second question, it may be presumed that a customs body will decide -whether the gasified gas may be efficiently liquefied after being moved through the customs border at its own discretion.
As was briefly mentioned before, it is important to determine how the gas through the LNG terminal will be imported as natural gas under the regime of a processing in the customs territory of Ukraine or as LNG, because in the first case an operation to import natural gas will be released from customs duties in accordance with s. 197.14 of the Tax Code of Ukraine.
At the moment there is no distinction between LPG and LNG in core oil and gas legislation of Ukraine. Furthermore, Article 215.1 of the Tax Code of Ukraine defines a liquefied gas as excisable goods. So, despite the fact that LPG and LNG have different codes in the Ukrainian Classification of Commodities of Foreign Economic Activity, disputes between customs authorities and importers may arise as to whether the latter are obliged to pay excise duty during the importation of LNG.
As a result, depending on the chosen customs regime, the final price for end-users of imported gas may vary sufficiently. And existing uncertainty relating to determination of the excise duty for LNG makes the whole project of construction of the terminal less efficient unless amendments to current legislation are made.
The status of the LNG terminal under Ukrainian statutory rules
Current legislation of Ukraine does not contain a definition of a sea terminal or an LNG terminal. The only document in force that has such a definition is the Strategy of development of sea ports of Ukraine for the period until 2015. Also, the On Sea Ports of Ukraine Act of Ukraine (the Sea Ports Act) which comes into force on 14 June 2013 defines a sea terminal as a single property complex within a port which consists of technologically interconnected objects of port infrastructure including quays, lifting and transport and other equipment which provide loading and unloading and storage of cargo, safe mooring and serving passengers and ships.
The legal status of a sea terminal is crucially important because goods will be moved through it on the territory of Ukraine. Before enactment of the Sea Ports Act sea terminals outside of existing ports did not have the status of a port and, as a result, it was legally impossible to organize customs and border control on a terminal.
The Sea Ports Act provides that enterprises irrespective of their form of ownership which on the day of the Sea Ports Act coming into force correspond to the definition of a sea terminal to be included in existing sea ports. The LNG terminal will not be operational on 14 June 2013, and so it may not be defined as a sea terminal and that is why will not be included as a sea port automatically.
Article 8 of the Sea Ports Act stipulates that the Cabinet of Ministers of Ukraine sets and changes borders of sea ports. Thus, to make the LNG terminal operational the government should include the territory and waters of the terminal in existing sea ports or it will be impossible to move gas through the terminal.
Relations with investors
At this time the Ukrainian government has still not declared the form of PPP will be used to implement the project and whether it will be PPP at all. Representatives of the State agency on investments and management of national projects and the State Enterprise “The national project LNG-terminal” are talking about a consortium of investors, but there is no mention about such a consortium in current Ukrainian legislation.
According to Article 120 of the Economic Code of Ukraine a consortium is a temporary association acting on the basis of a charter which consolidates enterprises for achievement of a specific general economic purpose (implementation of special-purpose programs, scientific and technical construction projects, etc.) by its participants. The consortium uses funds gained from its participants, centralized resources assigned for an appropriate program, and also funds gained from other sources, pursuant to a procedure defined by its charter. The consortium terminates its activity in case of achievement of the purpose for its establishment.
Article 5 of the On Public Private Partnership Act of Ukraine (the PPP Act) defines an agreement as the main form of providing PPP in Ukraine and sets out that under PPP agreements on concession, joint activity, and others may be concluded but there is no such form of PPP as establishing a consortium of investors. It may be presumed that an agreement on establishing a consortium of investors may relate to other agreements for purposes of the noted clause, but it is unusual to implement such a project based on a presumption.
Moreover, Article 14 of the PPP Act envisages that a selection of a private partner is subject to a contest. There were no such contests hitherto. On these grounds it may be assumed that current approaches of Ukrainian government were outside the scope of the PPP Act and if so, then investors may not rely on warranties envisaged by the mentioned law.
From the aforementioned it is possible to conclude that current national legislation does not correspond to the purposes of implementation of the project on construction of the LNG terminal. If such project is really important for Ukrainian public officials then they should create the appropriate legal framework for implementing the project by amending current legislation or enacting a new profile law. In any way customs rules must be defined clearly with regard to the importing of LNG and its further gasification, there must be possibilities to provide customs and border control on the terminal and the interests of investors must be completely protected. Under current legislation there are too many uncertainties which, as was discovered, concern not only direct investors but also potential consumers of imported LNG.
Автор:
Оleg О. MILCHENKО
Источник:
The Ukrainian Journal of Business Law. – 2013. – № 3. – Р. 34 – 36.