Cadogan Energy Solutions Share Discussion Threads

[shortcpx] 06/3/2021 22:06

Important level of backlog and ability to create synergies - Proger, in addition to boasting a backlog amounting to 272 million euros and a pipeline of 140 million euros as of 11/30/2019 (of which 110.5 million already awarded), is assuming a strategic role in the face of the Covid-19 (coronavirus) emergency through the realization of orders mainly related to the expansion of health facilities as well as to the supply of medical devices such as lung ventilators and face masks. The organizational capacity and the investment in strategic shareholdings have allowed the Company to benefit from specific synergies, fundamental for the acquisition of these contracts and which will already have positive effects on the 2020 results, estimated at around 19 million euros in terms of Value of Production (VdP) and a contribution margin of € 4.4 million. Maintaining adequate levels of margins - the 2019 results relating to Proger could show a contraction of the VdP of up to 20% compared to the estimated budget of 103.5 million euros. Despite this, the application of the "back to back" principle, envisaged in the contracts with suppliers (which involves the simultaneous reduction of the related costs and revenues), has allowed Proger to maintain adequate levels of EBITDA margin adj (including bad debt ) in a range between 9.5% and 10.0%. The deviations from the budget are attributable to the delayed activation of some orders (mainly the Libyan one) in addition to those impacted by the Covid-19 emergency, for a total of approximately 47 million euros. As regards foreign legal entities, revenues amounted to around 39.4 million euros (around 20 million in 2018), with an EBITDA of 2.4 million euros (2.2 million euros in 2018). The Agency believes that the estimates made by the Management are reliable, which foresee the achievement of an aggregate turnover of approximately 178 million euros by 2020

[thordon] 06/3/2021 12:56

RATING COMMUNICATION

Cerved Rating Agency on 23/04/2019 awarded the A3.1 rating to Proger S.p.A.
Proger SpA (Proger or Company) is mainly active as an engineering company for the construction and management of infrastructure works, Oil & Gas and construction at national and international level. The reference shareholders are Sgambati Umberto and Lombardi Marco, President and both AD of the Company, through Proger Ignegneria Srl (72% of Proger SpA) and Proger Managers & Partners (54.99% of Proger Ingegneria Srl). The Company has also been owned since 2015 by Simest Spa, with a 27% stake. In March 2019, the Company and its parent company Proger Ingegneria Srl concluded a paid share capital increase of 13.4 million euros, carried out through convertible financing granted by Cadogan Petroleum Holdings BV,a Ukrainian companylisted on the London Stock Exchange, to Proger Managers & Partners. In return for the exercise of the right of conversion, Cadogan will hold 33% of the capital of Proger Ingegneria Srl.
Fattori di rating (Key rating factors)
• Business model and market positioning Proger operates in four lines of business: Multidisciplinary Engineering (M.E.), Infrastructure & Real Estate (approximately 58.1% of the Value of Production, VdP, 2018), Oil & Gas (about 38%) and Security (1.4%) and Special Projects – Green Energy (2.4%). The Company develops its activity mainly abroad (67.7% of the VdP, in 2018), with a strong contribution from Saudi Arabia and Egypt, and in Italy (32.3% of the VdP), both through internal workforce and through subcontractors, according to the needs and types of orders acquired. The Company also operates with some local legal entities that are not currently consolidated in the results of Proger Spa, but whose financial statements are revised. It is the leading italian no-captive company in the sector and among the top 100 internationally (81st in 2018), benefiting from consolidated relationships with international players such as Eni and Leonardo, and national players, such as Terna, BNL and Anas. The Company is also a leader in the design of hospitals, with a consolidated track record on the national scene.
• Key financial results
The pre-final stand alone results show a VdP of 104.2 million euros, down on 2017 (-5.4% YoY), mainly due to a lower contribution from division M. E. (-27.8 million, -23% YoY), despite the growth of b.u. Oil & Gas (+11.2 million, + 12.2% YoY) and b.l. Infrastructure (+7.4 million, +7.4% YoY). EBITDA adj. increased to 9.9 million (9.2 million in 2017), thanks to b.l. Infrastructure(+3.5 million) which compensates for the reduction of the other b.u. (-0.7 million Oil&Gas and -0.9 million M. E.). The EBITDA margin, similarly, grew to 9.4% (8.3% in 2017), due to the different mix of b.u., the largest contribution of which derives from the B.L. Infrastructure and M. E., characterized by a greater margin. EBIT is suffering the same trend as EBITDA (7.9 million in 2018 vs 7.3 million in 2017, +7.1% YoY), compared with constant depreciation and amortization (1.9 million in 2018). Peg financial management for higher foreignexchange losses(0.4 million in 2018 vs 0.2 in 2017) and financial charges (1.7 vs 1.5 million) due to increased entrustments, with ebit coverage interest at 4.72x. Net profit is expected to be 4.1 million, in line with 2017 (4.0 million). From a financial point of view, the adjusted PFN for leasing stands at 32.4 million euros, an increase of 5.8 million euros compared to 2017, with an adj./EBITDA ADJ. PFN at 3.28x. As far as legal entities are concerned, revenues amount to approximately 20 million (13.4 million in 2017), with EBITDA of 2.2 million (1.8 million in 2017) and liquidity of 3.5 million, while the financial debts referred to them are in the hands of Proger SpA. The PFN adj / EBITDA adj pro-

form, as a result, stands at 2.92x. The order book at 31/12/18 amounts to approximately EUR 345 million, consisting mainly oforders in Saudi Arabia and Tunisia andframework agreements with Eni and Terna. The backlog, together with the 31/12/18 pipeline of approximately 674 million, guarantee visibility to the development of the plan (VdP expected to 168.8 million in 2019 and peak at 238.6 million in 2021).
• Liquidità (Liquidity)
The trend in operating liquidity denoted a negative balance of 6.3 million, due to the significant negative change in the CCN that totally absorbs the Gross Operating Cash Flow. The trend is impacted by the choice to finance some strategic suppliers, obtaining improvement economic conditions tosupport marginality, without limiting their availability of bank trusts. As of 31/12/18, in fact, the Company maintained an adequate buffer of about 20million on thetrust, useful for the development of the future growth plan. The increase in paid capital will also allow new financial resources to be raised with banks or private debt, in support of the growth plan.
Key risk factors
• Market risk
The Group is heavily dependent on macroeconomic and geopolitical dynamics, both internationally and nationally. With regard to abroad, it constantly monitors the country risk both before participation in a tender and periodically during the development of the orders in place. Similarly, in Italy, specific analyses are carried out to assess the creditworthiness of potential contractors before and during the development of a contract.
• Operational risk
Individual orders are subject to the risk of delays and slippage, covered by insurancepolicies. The Group's prospective results depend heavily on the performance of the first four projects (about 87% of the 2019 VDP).
• Financial risk
The Group is exposed to fluctuations in the interest rate on existing variable-rate loans, neutralised through the use of derivative hedging instruments (IRS on the aforementioned type of financing contracts). The Group limits currency risk by adopting a natural hedge policy on foreign orders.
Rating assumptions
• Production development in 2019-2020 in line with the business plan in terms of revenues and margins, unlike in 2018 due to the delayed capital increase in support of the growth plan
• Sustainable growth of the CCN, with a progressive reduction in average days of collection as a result of the credit management policies initiated by management in 2017
• PFN growing in line with business development, with PFN/EBITDA < 2.75x and EBIT interest coverage > 6.0x in 2019-2020
• Completion of the acquisition plan in 2019 and development of expected constant flows in the Business Plan
Rating sensitivities
• A trend in line with rating assumptions will allow the maintenance of the current rating class
• A deterioration in economic and financial performance compared to credit rating assumptions could lead to a
downgrade of the assigned rating

The methodology used can be consulted on the Cerved Rating Agency website – www.ratingagency.cerved.com Analyst Responsible: Donato Biancosino – [e-mail]
Chairman of the Rating Committee: Cristina Zuddas – [e-mail]
Cerved Rating Agency's rating, issued pursuant to Regulation (EC) 1060/2009 and subsequent amendments and additions, is an opinion on the merits of creditand that expresses in summary the ability of the evaluated entity to meet its obligations on time. Cerved Rating Agency's rating does not constitute investment advice or a form of financial advice; it does not amountto recommendations for the sale and holding of securities or for the holding of particularinvestments, nor does it provide any indication as to whether a particular investor should make a particular investment. The rating is subject to continuous monitoring until its withdrawal. The rating was issued at the request of the evaluated entity, or related third parties, who participated in the process by providing the necessary information requested by the analytical team. In addition, available public information and proprietary informationobtained from sources trusted by theCerved Rating Agency were used in the analysis. The rating has been communicated, within the time limits provided for by the current Regulation, to the person evaluated for the verification of any material errors.

[researchcentre123] 05/3/2021 13:49

I think they never planned on repaying - otherwise it would have been structured differently.

[thordon] 05/3/2021 08:26

I Know , its in the response of the letter.
By Law you have to inform , once that's exhausted then Lawyers next.

[russman] 05/3/2021 02:46

If they could repay, they would have repaid by the maturity date.

[thordon] 04/3/2021 19:56

Tomorrows deadline tomorrow , suspect Proger SR will not respond

[thordon] 03/3/2021 22:12

The point is that what ever happens we will most likely end up taking a majority stake in proger by increase share over what was offered.
If the cash is not returned than the company we lent the money with be sanctioned by Law.
After that gets messy

[shortcpx] 03/3/2021 21:43

Yes as otherwise what's the point of pasting contract wins if they've got no cash to give us

[thordon] 03/3/2021 21:26

We will see

[shortcpx] 03/3/2021 16:19

Hopefully they take payment upfront and upstream it to their parent.

[brumbrum79] 03/3/2021 10:41

03.03.2021
EPC services within the Kingisepp ammonia and urea plant in Russia

Proger at work alongside Tecnimont s.p.a. as part of the development on behalf of EuroChem – a world leader in the field of fertilizers – of the new ammonia and urea plant in Kingisepp, in northwestern Russia.

Located about 130 kilometers from St. Petersburg, the plant will have a capacity of approximately 3,000 tons of ammonia and 4,000 tons of urea per day, once fully operational.

In detail, Proger will provide EPC services (turnkey) for the construction of a new steel structure covered by insulated panels, for a total weight of approximately 3,000 tons and 14,500 square meters of covered area, in addition to the secondary support structures of the conveyor belts. The structure is intended to protect the urea storage area and a special heavy mechanical equipment, called Reclaimer inside. The entire structure will be protected from hydrocarbon fire by means of intumescent paint.

The Reclaimer has the purpose of moving the urea in tablets, coming from the granulation unit, to and from the conveyor belt and to the loading area for transport. The new contract marks the consolidation of Proger’s presence in Russia, a country where the company began operating in 2011.

Link:
hxxp://www.proger.it/en/servizi-epc-nellambito-dellimpianto-di-ammoniaca-e-urea-di-kingisepp-in-russia/

[shortcpx] 01/3/2021 14:13

There could be a shareholder loan or dividend. The other shareholders may work out a deal as well. Plenty of options on the table. These terse RNSes don't help.

[1hughb] 01/3/2021 13:57

Diesel the only rationale I can think of is that they were mates with the last management. I don't really see how they can pay back, unless proger buys its shares from the holding company that owes the money. There would be an assumption then that proger still has the money, which somehow I doubt. Still I guess we see. I would be stunned if they paid back on time.....Still I guess we see now......

[diesel] 01/3/2021 10:31

Proger is a significant company involved in many state sponsored contracts, it new this loan was coming due and must have planned for it, we now have to see if there any nasties in the contracts.
I’m still unclear as to what the rationale for lending them money in the first place, I don’t believe it was just the interest rate.

[targatarga] 01/3/2021 08:34

Let's hope proger don't sign any poison pill contracts!

[shortcpx] 01/3/2021 08:31

Whoever said management was fabulous? Current and previous aren't anything special otherwise they wouldn't be valued at just cash. Enforcement isn't the only game in town if they decide to give an extension or the other shareholders step in

[thordon] 01/3/2021 08:25

Proger Ingegneria srl could be in real trouble , looked at there accounts and no real turnover as a Holding company.
If they fail to pay then a court order for there assets.

In other words they could lose the company to Cadogan

Which ever way we will still end up with shares in the company

[brumbrum79] 01/3/2021 08:07

Now I'd like to know from these "management": which is the plan? which are the alternatives (in terms of new investments and new business opportunities?

After 15 months no-one idea/news/informations about that.
A "faboulus" management board... Many "thanks".

Next step should be the enforcement of the pledge on shares of Proger Ingegneria srl.

[targatarga] 27/2/2021 08:19

Thankyou Thordon - Thats all very clear. I wonder if another appeal will be lodged.

[thordon] 26/2/2021 20:21

SIXTH ADMINISTRATIVE COURT OF APPEAL Case No. 640/12569/19 Judge of the first instance: Skochok TO

DECREE

IN THE NAME OF UKRAINE

February 23, 2021, Kyiv

The panel of judges of the Sixth Administrative Court of Appeal composed of:

presiding judge - Pylypenko OE

of judges - Sobkiva Ya.M. and Stepanyuk AG,

under the secretary - Vasilenko YA,

with:

representative of the plaintiff: - Karpyuk LR,

representative of the third person: - Gnatenko OA,

Having considered in open court the appeals of the Limited Liability Company "Astrogaz" , the Limited Liability Company "Naftogazsekspluatatsiya" , the State Service of Geology and Subsoil of Ukraine against the decision of the District Administrative Court of Kyiv from October 6, 2020 in the case of an administrative claim of the Limited Liability Company "Astrogas" to the State Service of Geology and Subsoil of Ukraine, third parties: Limited Liability Company "Naftogazsekspluatatsiya" , the company "Oy Land Gez Eversis Trading BV" on the recognition of inaction illegal and the obligation to take action,

INSTALLED:

In July 2019, the plaintiff - Limited Liability Company "Astrogaz" appealed to the District Administrative Court of Kyiv with an administrative claim to the State Service of Geology and Subsoil of Ukraine, third parties: Limited Liability Company "Naftogazsekspluatatsiya" , Company "Oy Land Gez Eversis Trading" Bi.Vi "on the recognition of inaction as illegal and the obligation to take action, in which he requested:

- declare illegal the actions of the State Service of Geology and Subsoil of Ukraine to return the application of the Limited Liability Company "Astrogaz" dated 09.10.2018 N 30 to obtain a special permit for subsoil use;

- to recognize illegal inaction of the State Service of Geology and Subsoil of Ukraine on non- adoption of a decision (order) on the application of the Limited Liability Company "Astrogaz" dated 09.10.2018 N 30 to obtain a special permit for subsoil use;

- to oblige the State Service of Geology and Subsoil of Ukraine to consider the application of the Limited Liability Company "Astrogaz" dated 09.10.2018 N 30 to obtain a special permit for subsoil use in essence with the adoption of the relevant decision (order);

- to oblige the State Service of Geology and Subsoil of Ukraine based on the results of consideration of the application of the Limited Liability Company "Astrogaz" dated 09.10.2018 N 30 to grant the Limited Liability Company "Astrogaz" a special permit for subsoil use of Pirkiv oil and gas condensate field, for geological study, including experimental and industrial development of fields, with the subsequent extraction of oil, gas (industrial development of fields).

By the decision of the District Administrative Court of Kyiv of October 6, 2020, the administrative claim was partially satisfied.

Not agreeing with the judgment, Limited Liability Company "Astrohaz" , Limited Liability Company "Naftohazekspluatatsiya" State Service of Geology and mineral resources of Ukraine addressed an appeal in which

Astrogaz Limited Liability Company asks the appellate court to overturn the appealed decision of the court of first instance and adopt a new decision to satisfy the administrative claim in full. Limited Liability Company "Naftogazsekspluatatsiya" , the State Service of Geology and Subsoil of Ukraine ask the appellate court to cancel the decision of the District Administrative Court of Kyiv from October 6, 2020 and issue a new decision to deny the claim in full.

December 2, 2020, according to the stamp of the incoming correspondence of the court Vh. N 46784, Limited Liability Company "Naftogazekspluatatsiya" filed a response to the appeal of the Limited Liability Company "Astrogaz" , according to which the third party requests to deny the appeal of the plaintiff, emphasizes that the subsoil user ( Limited Liability Company "Astrogaz" " ) at the time of the appeal to the State service of geology and Mineral Resources of Ukraine with the corresponding statement was not resolved violation of the law (ie - the prescription requirements of the State service of geology and Mineral Resources of Ukraine concerning the elimination of wells Pirkivska N 1), and therefore the Order Derzhheonadra from 04.09.the effect of the special subsoil use permit dated 19.10.2007 N 3109 is suspended, in connection with which the return of the application to the applicant with reference to the provisions of paragraph 8 of the Order N 615 is justified.

December 3, 2020, according to the stamp of the incoming correspondence of the court Vh. N 47175, Limited Liability Company "Astrogaz" filed a response to the appeal of the Limited Liability Company "Naftogazsekspluatatsiya" , according to the content of which, requests to leave this appeal unsatisfied as unfounded, emphasizes that in case of refusal to grant special permits subsoil or return of the submitted documents, Gosgeonadra must make a decision, which is made by order, which, within the disputed legal relationship was not done, which actually indicates the illegal inaction of Gosgeonadr on non-decision on the application of LLC "Astrogaz" , and refutes the arguments of LLC " about absence of the bases for acceptance by Gosgeonadrama of the order following results of consideration of the statement of the plaintiff from 09.10.2018 N 30.

January 18, 2021, according to the stamp of the incoming correspondence of the court Vh. N 1774, Limited Liability Company "Astrogaz" filed a motion to postpone the case.

February 1, 2021, according to the stamp of the incoming correspondence of the court Vh. N 4005, Limited Liability Company "Astrogaz" filed a response to the appeal of the State Service of Geology and Subsoil of Ukraine, according to the content of which the plaintiff asks to deny the appeal of the defendant, he said. That the appeal of the latter does not contain any arguments that would relate to the erroneous conclusions of the court of first instance on satisfied claims in part recognition of the defendant's unlawful inaction on failure to make a decision (order) on the application LLC "Astrogaz" from 09.10.2018 N 30 for subsoil use and obligations of the State Service of Geology and Subsoil of Ukraine to consider the application of LLC " in essence with the adoption of the relevant decision (order).

February 1, 2021, according to the stamp of the incoming correspondence of the court Vh. N 4009, Limited Liability Company "Astrogaz" filed an objection against the request to attach evidence to the case file, namely the attachment of the opinion of an expert in the field of law from 05.11.2020, Ph.D. O.A. Polivodsky.

Based on the results of consideration of this petition, the panel of judges decided to attach the above expert opinion, as the latter came to the court through the court office, but such a conclusion will be provided by the panel of judges based on the merits of the case.

February 2, 2021, according to the stamp of the incoming correspondence of the court Vh. N 4187, Limited Liability Company "Astrogaz" submitted written explanations on the case, which stressed the need to take into account the conclusions of the Supreme Court in case N 826/23816/15 on effective protection of the violated right, N 826/15869/17 from 11.09.2019 regarding the inaction of the subject of power in terms of failure to take appropriate decisions, the need to apply the principle of tacit consent, etc.

In accordance with Part 1, 2, 3 of Art. 242 CAS of Ukraine, the court decision must be based on the principles of the rule of law, be lawful and reasonable. A decision made by a court in accordance with the rules of substantive law in compliance with the rules of procedural law is lawful. The decision made by the court on the basis of fully and comprehensively clarified circumstances in the administrative case, confirmed by the evidence that was examined at the hearing, with an assessment of all the arguments of the parties.

In accordance with Art. 317 CAS of Ukraine grounds for revocation of the court decision of the court of first instance in whole or in part and the adoption of a new decision in the relevant part or change the decision is incomplete clarification by the court of the circumstances relevant to the case; unproven circumstances relevant to the case, which the court of first instance found established; inconsistency of the conclusions set forth in the decision of the court of first instance with the circumstances of the case; incorrect application of substantive law or violation of procedural law.

Deciding on partial satisfaction of the claim, the court of first instance concluded that the State Service of Geology and Subsoil of Ukraine, within the statutory 60-day period for refusing to allow the limited liability company "Astrogaz" to issue a permit, the relevant commission on the preliminary consideration of the application did not create, and referring to the grounds set out in paragraph 8 of the Order N 615, returned the application with documents without its consideration in the manner prescribed by the above legislation, which, in the opinion of the court, indicates the illegality of the defendant.

The panel of judges considers this conclusion of the court of first instance unfounded, given the following.

As established by the court and seen from the available materials of the case, 19.10.2007 Limited Liability Company "Astrogaz" received a special permit for the use of subsoil for the search and exploration of hydrocarbons in the Permian and coal deposits N 3109, including research and industrial development, geological and economic assessment and approval of reserves of the DKZ field of Ukraine for the purpose of introduction into industrial development of the Pirkivska Square field, located within the Zinkiv district of Poltava region (hereinafter - Pirkivske field).

During 2007-2015, the plaintiff conducted a geological study, including research and development of the Pirkivskoye field. According to the results of this study , Astrogaz LLC at its own expense tested oil and gas reserves in the State Commission of Ukraine for Mineral Resources at Gosgeonadra (hereinafter - SCC), which is confirmed, in particular, by Protocol No. 3447 of 29.10.2015 (hereinafter - the Protocol DKZ N 3447), agreements on the initial and detailed geological and economic assessment of Pirkivska Square dated 27.06.2014 N 01-2706 / 14 AG and dated 27.02.2015 N 01-2702 / 15 AG, respectively, acts of acceptance of the transfer of work performed, payment orders and bank statements on payment under these agreements.

According to this protocol, the Pirkivskoye field is recognized as prepared for further geological exploration, including research and development, or hydrocarbon extraction (industrial development) (pp. 28, 44 of Protocol No. 3447).

On October 9, 2018, Astrogaz Limited Liability Company applied to Gosgeonadr with application No. 30, requesting a special permit for subsoil use without holding an auction for the purpose of geological study, including research and development of fields, with subsequent oil production, gas, (industrial development of fields) at the Pirkiv oil and gas condensate field for a period of 20 years, located in the Poltava region, Zinkiv district, 5 km north of Zinkiv.

By letter dated 16.01.2019 N 822/03 / 12-19 Gosgeonadra informed LLC "Astrogaz" about the return of the latter application with a package of documents dated 09.10.2018 N 29 in accordance with paragraph 8 of the Procedure for granting special permits for subsoil use, approved by the Cabinet Ministers of Ukraine dated 30.05.2011 N 615, indicating that a permit without an auction may not be issued to a person who does not perform the program of works in subsoil areas for the use of which it has already been granted, or in respect of which violations of subsoil use rules in such areas recorded in inspection reports , instructions or orders of the relevant bodies in the field of subsoil use until their elimination. So, bodies of the state geological control Gosgeonadr according to results of the last check of LLC Astrogazon the special permission for subsoil use from 19.10.2007 N 3109 which was carried out in July, 2015 the order in connection with non-fulfillment of item 3 of the Program of works in the established terms, not carrying out liquidation of a well N 1 Pirkovskaya industrial inflow. At the same time, the subsoil user did not eliminate the violation of the law in due time, and the order of Gosgeonadr dated 04.09.2015 N 271 of the special subsoil use permit dated 19.10.2007 N 3109 was suspended.

Based on the above, considering the violation of their own rights and interests protected by law, the plaintiff filed a lawsuit in court. Giving a legal assessment of the circumstances of the case, the conclusions of the court of first instance and the arguments of the appellant, the panel of judges notes the following.

According to Part 2 of Art. 19 of the Constitution of Ukraine , public authorities and local governments, their officials are obliged to act only on the basis, within the powers and in the manner prescribed by the Constitution and laws of Ukraine.

Resolution of the Cabinet of Ministers of Ukraine of December 30, 2015 No. 1174 approved the Regulations on the State Service of Geology and Subsoil of Ukraine.

According to paragraph 1 of Regulation No. 1174, the State Service of Geology and Subsoil of Ukraine (Gosgeonadra) is a central executive body whose activities are directed and coordinated by the Cabinet of Ministers of Ukraine through the Minister of Ecology and Natural Resources and which implements state policy in geological exploration and subsoil use. .

In accordance with paragraph 3 of Regulation No. 1174, the main tasks of Gosgeonadr are:

1) implementation of state policy in the field of geological study and rational use of subsoil;

2) submission to the Minister of Ecology and Natural Resources of proposals to ensure the formation of state policy in the field of geological study and rational use of subsoil.

Subparagraph 9 of paragraph 4 of Regulation No. 1174 establishes that Gosgeonadra, in accordance with the tasks assigned to it, issues special permits for subsoil use (including for the use of oil and gas subsoil) in accordance with the established procedure.

Taking into account the above, the State Service of Geology and Subsoil of Ukraine is obliged to issue a special permit for subsoil use.

Basic legal, economic and organizational principles of the oil and gas industry of Ukraine and regulation of relations related to the peculiarities of the use of oil and gas subsoil, production, transportation, storage and use of oil, gas and refined products to ensure energy security of Ukraine, development of competitive relations in oil and gas industry, protection of the rights of all subjects of relations arising in connection with the geological study of oil and gas, development of oil and gas fields, oil and gas refining, storage, transportation and sale of oil, gas and refined products, oil and gas consumers and employees of the industry is determined by the Law of Ukraine "On Oil and Gas" .

Part 1 of Article 2 of the Law of Ukraine of 12.07.2001 N 2665-III "On Oil and Gas" (in the wording in force at the time of the disputed legal relationship, hereinafter - Law N 2665-III ) provides that this Law applies to relations arising in connection with the geological study of oil and gas, development of oil and gas fields, storage, transportation and sale of oil, gas and products of their processing, regardless of ownership of economic entities - participants in such relations.

According to Article 11 of Law No. 2665-III, the use and exploration of oil and gas fields, their exploration, construction and operation of underground storage facilities for oil and gas storage are carried out only with special permits for the use of oil and gas subsoil issued by the central executive body. authorities that implement state policy in the field of geological study and rational use of subsoil, under the conditions specified by applicable law.

The special permit for the use of oil and gas subsoil must contain in particular:

information on the recipient of a special permit for the use of oil and gas subsoil, the type of work for which it is issued;

determination of the boundaries of the oil and gas subsoil area provided for use;

validity of a special permit for the use of oil and gas subsoil;

a list of mandatory annexes, including an agreement on the terms of use of oil and gas subsoil.

Article 12 of Law No. 2665-III provides that the granting of special permits for the use of oil and gas subsoil is carried out in compliance with the principles of:

openness of the tender system when choosing the winner of the tender for obtaining special permits for the use of oil and gas subsoil;

the applicant has the appropriate qualifications, logistical and financial capabilities for the use of oil and gas subsoil;

provision by the state of guarantees to holders of special permits for the use of oil and gas subsoil and protection of their interests in accordance with the legislation during the entire term of the special permit for the use of oil and gas subsoil;

providing the holders of special permits for the use of oil and gas subsoil with the obligations under current legislation and a special permit for the use of oil and gas subsoil;

ensuring the most efficient and rational use of oil and gas subsoil;

payment for the issuance of special permits for the use of oil and gas subsoil;

approval by the central executive body implementing the state policy in the field of geological study and rational use of subsoil, the terms of competitions for each section of oil and gas subsoil with local governments, and for the use of oil and gas subsoil for industrial development - and with the central executive body implementing state policy in the field of industrial safety and state mining supervision.

According to Article 14 of Law No. 2665-III, special permits for the use of oil and gas subsoil are issued to auction winners, except as provided by the Cabinet of Ministers of Ukraine, the central executive body implementing state policy in the field of geological exploration and rational use of subsoil. The procedure for conducting auctions for the sale of special subsoil use permits and the procedure for granting them shall be established by the Cabinet of Ministers of Ukraine.

The procedure for issuing special permits for subsoil use was approved by the Resolution of the Cabinet of Ministers of Ukraine of May 30, 2011 No. 615 .

According to paragraph 1 of the Order N 615, the Procedure regulates the issuance of special permits for subsoil use (hereinafter - permits) within the territory of Ukraine, its continental shelf and exclusive (marine) economic zone, as well as determines the procedure for extension, renewal, issuance of a duplicate , suspension or revocation of the permit and making changes to it.

This Procedure applies to all types of subsoil use.

The procedure for granting special permits for subsoil use defines the following grounds for deciding to refuse a permit (paragraph 19):

submission of incomplete documents by the applicant;

detection of inaccurate data in the submitted documents;

non-compliance of the documents submitted by the applicant with the requirements of paragraph 8 of this Procedure;

availability of information from law enforcement agencies and financial monitoring entities that the applicant is financing terrorism in Ukraine;

the applicant has a debt for the payment of national taxes and fees as of the last reporting period;

refusal of the bodies specified in paragraphs two to four of item 9 of this Procedure to agree on the provision of subsoil for use;

non-fulfillment of the program of works on subsoil areas, for use of which the applicant has already been granted, detection of violations of subsoil use rules on such sites, which are fixed in acts of inspections, instructions or orders of relevant bodies in subsoil use until their elimination, except invalid or whose action has been suspended in accordance with a court decision.

Issuance (refusal to issue, re-issuance, issuance of a duplicate, cancellation) of the permit is carried out in accordance with the Law of Ukraine "On the permit system in the sphere of economic activity" .

In accordance with paragraph 2 of Order No. 615, permits are issued by Gosgeonadra to the winners of auctions for their sale and without conducting auctions in the cases provided for in paragraph 8 of this Procedure, the permitting authority, except for minerals of local importance in the Autonomous Republic of Crimea. By the Council of Ministers of the Autonomous Republic of Crimea in accordance with this Procedure.

Subparagraph 1 of paragraph 8 of Order No. 615 stipulates that without an auction a permit is issued in the case of mining, if the applicant at his own expense carried out a geological study of the subsoil area and calculation of mineral reserves, approved by the State Committee, and than within three years after the approval of reserves, as well as the extraction of minerals (for oil and gas subsoil for geological study, including research and development of fields, followed by extraction of oil, gas (industrial development of fields), if the applicant at his own expense tested in DKZ subject to approval of the calculation of mineral reserves in DKZ for three years, and within the continental shelf and the exclusive (marine) economic zone of Ukraine - ten years from the date of issuance of the permit.

In accordance with the twentieth paragraph of paragraph 8 of the Order No. 615 to obtain a permit without an auction, the applicant submits an application to the permitting authority together with the documents listed in Annex 1. The application shall indicate the name and location of the subsoil area, type of minerals, information about the applicant (name, location, code according to the USREOU of the legal entity or surname, name, patronymic, place of residence, registration number of the taxpayer's account card - individual entrepreneur whether the series and passport number of such a person (for individuals who, due to their religious beliefs, refuse to accept the registration number of the taxpayer's account card and have notified the relevant SFS body and have a mark in the passport),

According to paragraphs twenty-two - twenty-sixth paragraph 8 of the Order N 615 the application is registered by the organizer of the auction in the journal with the assignment of its number and indication of the date and time of submission. Confirmation of registration is a mark of the organizer, which is affixed to a copy of the application and returned to the applicant, or a mark on the description of the attachment to the valuable letter of acceptance of the application for sending by mail.

Information on the registration of documents received for the issuance of a permit shall be posted on the official website of the permitting authority within three working days from the date of registration.

Documents that do not meet the requirements of this Procedure shall be returned to the applicant. Information on the return of documents within three working days from the date of the decision to return is posted on the official website of the permitting authority.

A permit without an auction may not be issued to a person who does not carry out work programs in subsoil areas for which it has already been granted a permit, or in respect of which violations of subsoil use rules have been identified in such areas recorded in inspection reports, instructions or orders of relevant authorities. in the field of subsoil use until their elimination.

The decision to grant a permit without holding an auction shall be made within 30 days after receipt of all approvals provided for in paragraph 9 of this Procedure.

The granting of permits in the cases provided for in subparagraphs 1 - 14 of this paragraph shall be carried out by the decision of the permitting authority (paragraph thirty-one of paragraph 8 of the Procedure No. 615).

Clause 9 of the Order N 615 establishes that the provision of subsoil for use, except for the provision of subsoil under the terms of production sharing agreements, is agreed with:

The Council of Ministers of the Autonomous Republic of Crimea, the relevant regional, Kyiv and Sevastopol city councils - for the use of subsoil areas for geological study, development of mineral deposits of national importance, as well as for purposes not related to mining;

relevant district, city, settlement, village councils - for the use of subsoil areas containing minerals of local significance;

Ministry of Environment - for all types of subsoil use.

The permit shall be issued on the basis of the application and documents specified in Annex 1 and shall be approved by the bodies specified in the second to fourth paragraphs of this paragraph.

The panel of judges draws attention to the fact that paragraph 8 of Order 615 provides for obtaining a subsoil use permit without an auction, ie under a special (simplified procedure), but only if the subsoil user has met a number of special requirements:

- the applicant at his own expense carried out a geological study of the subsoil area and the calculation of mineral reserves, which was approved by the SCC;

- submitted documents for obtaining a special permit no later than three years after the approval of reserves, as well as mining (for oil and gas subsoil for geological study, including research and development of fields, with subsequent extraction of oil, gas (industrial development of fields) , if the applicant at his own expense carried out approbation in the DKZ subject to approval of the calculation of mineral reserves in the DKZ within three years, and within the continental shelf and exclusive (marine) economic zone of Ukraine - ten years from the date of issuance of the permit;

- the applicant carries out work programs in subsoil areas for the use of which it has already been granted permission;

- in respect of the applicant, there are no violations of the rules of subsoil use in such areas as recorded in the acts of inspections, instructions or orders of the relevant authorities in the field of subsoil use.

Only the combination of all the above requirements entitles the subsoil user to obtain a special subsoil use permit without holding an auction.

Thus, from the case file it is seen that the basis for the return of Gosgeonadra application "Astrogas" with a package of documents from 09.10.2018 is the reference of the subject of authority to paragraph 8 of the Procedure for granting special permits for subsoil use, approved by the Cabinet of Ministers of Ukraine 30.05.2011 N 615 , indicating that the permit without an auction can not be issued to a person who does not perform work programs in subsoil areas, the use of which has already been granted, or in respect of which violations of the rules of subsoil use in such areas , which are fixed in the acts of inspections, instructions or orders of the relevant bodies in the field of subsoil use until their elimination.

Gosgeonadra within the disputed legal relations stressed that the state geological control Gosgeonadr on the results of the last inspection of LLC "Astrogaz" on a special permit for subsoil use from 19.10.2007 N 3109, which was held in July 2015, issued an order in connection with non-compliance Clause 3 of the Work Program in due time, failure to liquidate well N 1 Pirkivska, in which no industrial inflow was received, at the same time, the subsoil user in due time did not eliminate violations of the law, and the order of Gosgeonadr from 04.09.2015 N 271 action special subsoil use permit dated 19.10.2007 N 3109 suspended.

At the hearing of the appellate court, the representative of the plaintiff and a third party confirmed that at the time of the application of LLC "Astrogaz" to the State Service of Geology and Subsoil of Ukraine with a statement (as well as at the time of this case) valid and not canceled (due to the fact that the latter did not appeal to Astrogaz LLC at all ).

The reference of LLC "Astrogaz" to the fact that the instruction N 01/01/3109 from 13.07.2015 was unlawfully stated about the need to liquidate the well N 1 Pirkivska as such, in which no industrial inflow was received (confirmed by Minutes No. 3447 of the meeting of the Board of the Commission of Ukraine on Mineral Reserves at the State Service of Geology and Subsoil of Ukraine dated 29.10.2015), the panel of judges considers unfounded, because this fact could be grounds for revocation of the above instruction, but the order of LLC "Astrogaz" was not appealed, so it is current.

It should be noted that paragraph 8 of the Order N 815, provides a permit without an auction can not be granted to a person who does not perform work programs in subsoil areas, the use of which has already been granted, or in respect of which violations of subsoil use rules in such areas, which are fixed in the acts of inspections, instructions or orders of the relevant bodies in the field of subsoil use until their elimination.

Documents that do not meet the requirements of this Procedure shall be returned to the applicant. Information on the return of documents within three working days from the date of the decision to return is posted on the official website of the permitting authority.

Therefore, the State Service of Geology and Subsoil of Ukraine, having received an application from LLC "Astrogaz" together with the documents specified in Annex 1, and found non-compliance by the applicant with the requirements of order N 01/01/3109 from 13.05.2015 (which is valid), had the right on the basis of the norms of the current legislation to return the documents to the applicant, which was done by the subject of power.

References of the plaintiff, with which the court of first instance agreed that in case of refusal to grant special permits for the use of subsoil Gosgeonadra must take the appropriate decision, which is issued by the order refuted by the above.

With regard to the plaintiff's arguments concerning the application of the principle of tacit consent, the court of first instance correctly stated the following.

In accordance with Part 1 of Art. 1 of the Law of Ukraine "On the permit system in the field of economic activity" from 06.09.2005 N 2806-IV (hereinafter - the Law N 2806-IV ), the principle of tacit consent - is the principle according to which the business entity acquires the right to conduct certain actions to carry out economic activity or types of economic activity without obtaining the relevant permit, provided that the business entity or its authorized person duly submitted an application and documents in full, but within the statutory period of the permit or decision to refuse in its issuance is not issued or sent.

The mechanism of application of the principle of tacit consent is defined in Part 6 of Art. 4-1 of the Law N 2806-IV , according to which, if within the period prescribed by law the business entity is not issued or sent a permit or a decision to refuse its issuance, then ten working days from the date of expiration of the prescribed period for the issuance or refusal to issue a permit, the business entity has the right to take certain actions to carry out economic activities or types of economic activities. A copy of the application (description of the accepted documents) with a note on the date of their acceptance is a confirmation of the submission of the application and documents to the state administrator or permitting authority.

According to Part 5 of Art. 4-1 of Law No. 2806-IV , the grounds for refusal to issue a permit are: submission by the business entity of an incomplete package of documents required to obtain a permit, in accordance with the established exhaustive list; detection of inaccurate information in the documents submitted by the business entity; negative conclusion on the results of examinations and surveys or other scientific and technical assessments required for the issuance of a permit.

Disposition of Part 6 of Art. 4-1 of the Law N 2806-IV provides that in case of failure of the permitting authority to fulfill its legal obligation (within the period prescribed by law to issue a permit or send a notice of refusal to issue it), ie due to its inaction, the business entity acquires the right to take certain actions to carry out economic activity or types of economic activity without obtaining a relevant permit.

Thus, the legal fact, which consists in the inaction of the permitting authority, becomes a prerequisite for the emergence of a legal relationship in which the business entity can apply the principle of tacit consent. That is, for the entity to have the right to apply the principle of tacit consent occurs in the presence of a system of the following conditions: 1) the entity submitted all documents required by law to obtain permission, confirmed by a copy of the application (description of accepted documents) their acceptance; 2) expiration of the term for consideration of the submitted documents - 10 working days from the date of submission of the application; 3) the absence / untimeliness of the response of the subject of power on the merits of the application.

However, the legal guarantees of the rights of private law entities (in particular, procedural deadlines, the possibility of applying the principle of tacit consent, etc.) should not be used to legalize an ongoing offense or illegal activity.

A similar position was expressed by the Supreme Court in the rulings of April 11, 2018 in case No. 804/401/17 and of June 19, 2018 in case No. 464/2638/17 . Given that at the time of the appeal of LLC "Astrogaz" to the defendant with a statement the latter was not met the requirements of the order of Gosgeonadr from 13.07.2015, moreover, the order of Gosgeonadr from 04.09.2015 N 271 valid special permit for subsoil use from 19.10.2007 N 3109 was suspended (this order was also not challenged by the plaintiff and is valid), within the disputed legal relationship can not be applied the principle of tacit consent.

With regard to the remaining arguments of the parties, the panel of judges notes that in accordance with the established case law of the European Court of Human Rights, which reflects the principle of the proper administration of justice, decisions of courts and other dispute resolution bodies should duly state the grounds which they are based. Although Article 6 § 1 of the Convention obliges the courts to give reasons for their decisions, it cannot be construed as requiring a detailed answer to every argument. The extent to which the court must comply with the obligation to state reasons for the decision may vary depending on the nature of the decision (Seryavin v. Ukraine, § 58, judgment of 10 February 2010).

In view of the foregoing, the panel of judges concluded that the court of first instance had violated substantive law, which led to an incorrect decision of the case. In this regard, the court considers it necessary to satisfy the appeal of the Limited Liability Company "Astrogaz" - to leave without satisfaction, the appeals of the Limited Liability Company "Naftogazsekspluatatsiya" , the State Service of Geology and Subsoil of Ukraine - the decision of the District Administrative Court of Kyiv from 06 October 2020 - to cancel and adopt a new resolution refusing to satisfy the administrative claim of Astrogaz Limited Liability Company .

Guided by Art. 241 , 242 , 308 , 310 , 317 , 321 , 322 , 325 , 329 CAS of Ukraine , panel of judges, -

DECIDED:

The appeal of the Limited Liability Company "Astrogaz" - to leave without satisfaction.

Appeals of the Limited Liability Company "Naftogazsekspluatatsiya" , the State Service of Geology and Subsoil of Ukraine - to satisfy.

The decision of the District Administrative Court of Kyiv of October 6, 2020 - to cancel and adopt a new resolution, which in satisfaction of the administrative claim of the Limited Liability Company "Astrogaz" to refuse in full.

The decision of the court comes into force from the date of its adoption and can be appealed by filing a cassation appeal directly to the Supreme Court within thirty days from the date of the full court decision.

Presiding Judge: Pylypenko OE

Judge: Sobkiv Ya.M.

Stepanyuk AG

The full text was made on February 23, 2021.

[thordon] 26/2/2021 19:52

We should of had RNS regarding this

[thordon] 26/2/2021 19:51

Ukraine Court system is so backward to find cases

[thordon] 26/2/2021 19:49

SIXTH ADMINISTRATIVE COURT OF APPEAL Case No. 640/12569/19 Judge of the first instance: Skochok TO

DECREE

IN THE NAME OF UKRAINE

(abbreviated)

February 23, 2021, Kyiv

The panel of judges of the Sixth Administrative Court of Appeal composed of:

presiding judge - Pylypenko OE

of judges - Sobkiva Ya.M. and Stepanyuk AG,

under the secretary - Vasilenko YA,

with:

representative of the plaintiff: - Karpyuk LR,

representative of the third person: - Gnatenko OA,

Having considered in open court the appeals of the Limited Liability Company "Astrogaz" , the Limited Liability Company "Naftogazsekspluatatsiya" , the State Service of Geology and Subsoil of Ukraine against the decision of the District Administrative Court of Kyiv from October 6, 2020 in the case of an administrative claim of the Limited Liability Company "Astrogas" to the State Service of Geology and Subsoil of Ukraine, third parties: Limited Liability Company "Naftogazsekspluatatsiya" , the company "Oy Land Gez Eversis Trading BV" on the recognition of inaction illegal and the obligation to take action,

Guided by Art. 241 , 242 , 308 , 310 , 317 , 321 , 322 , 325 , 329 CAS of Ukraine , panel of judges, -

DECIDED:

The appeal of the Limited Liability Company "Astrogaz" - to leave without satisfaction.

Appeals of the Limited Liability Company "Naftogazsekspluatatsiya" , the State Service of Geology and Subsoil of Ukraine - to satisfy.

The decision of the District Administrative Court of Kyiv of October 6, 2020 - to cancel and adopt a new resolution, which in satisfaction of the administrative claim of the Limited Liability Company "Astrogaz" to refuse in full.

The decision of the court comes into force from the date of its adoption and can be appealed by filing a cassation appeal directly to the Supreme Court within thirty days from the date of the full court decision.

Presiding Judge: Pylypenko OE

Judge: Sobkiv Ya.M.