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On the Development Trends of the Local Acts of the Companies in the Gas Industry as the Sources of the Energy Law

Viktoriya Valeryevna Romanova, Head of the Department of Energy Law Moscow State Law University named after O.E. Kutafin (MSLA), Doctor of Law

Sergey Sergeyevich Fil, Corporate Law Manager LLC “Gasprom Energoholding”, Lector at the Department of Energy Law Moscow State Law University named after O.E. Kutafin (MSLA)

In this article the authors conduct legal analysis of the local acts of companies in the gas industry as a source of energy law, examine the varieties of local acts of the companies of gas industry, pay attention to the peculiarities of the local acts of the companies of gas industry.

   

Nowadays, one cannot overlook the significant strengthening of the role of the internal (local) acts of certain legal persons as the sources of the energy law.

The regulating impact of the local normative acts of the legal persons has received significant attention in the legal literature, which has a good reason[1]. The legal nature of the local acts, their significance as the sources of law deservedly constitutes the subject of legal research[2].

The aim of the current article is to determine the peculiarities characteristic of the local acts of the companies in the gas industry, to single out of the various types of such acts and to provide the legal analysis of the trends in their development.

One should first of all consider that the peculiarities characteristics of the local acts of the companies in the gas industry are primarily conditioned on the authority of the key organization in the gas industry, namely the owner of the Unified System of the Gas Supply, which is fixed in the law. In accordance with Art. 13 of Federal Law No. 69-ФЗ “On the Gas Supply in the Russian Federation” of 31 March 1999[3], the organization, which owns the Unified System of the Gas Supply, secures the construction, the exploitation, the reconstruction and development of the objects of the Unified System of the Gas Supply; secures the uninterrupted dispatcher control over the functioning of the objects of the Unified System of the Gas Supply as well as the objects of the gas supply connected to it at the points of connection; conducts the management of the functioning of the Unified System of the Gas Supply; secures the utilization of the energy-efficient and the ecologically friendly equipment and the technical processes at the objects of the Unified System of the Gas Supply; conducts the measures aimed at guaranteeing the industrial and ecological security of the objects of the Unified System of the Gas Supply and the protection of the environment; adopts the measures aimed at preventing potential accidents and catastrophes and the liquidation of their consequences at the objects of the Unified System of the Gas Supply. In accordance with the above-mentioned article, the organization which owns the Unified System of the Gas Supply can, in order to enhance its efficiency, adopt measures on the improvement of the structure of the system of gas supply without endangering the reliability of the gas supply. As rightly noted by K.A. Chuychenko, the scale of the activity of a global energy corporation determine the complex character of the legal tasks, with which its lawyers are presented[4].

In order to research the peculiarities of the local acts of the legal persons in the gas industry, first of all the local acts of OAO Gazprom and the companies of the Gazprom Group, we can use, among other, the following provisional classifications of local acts:

1) local acts regulating corporate relations;

2) local acts dealing with the technical regulation;

3) local acts regulating the order of concluding contracts;

4) local acts regulating the relations on providing industrial security;

5) local acts regulating the relations on providing the security of the objects of the gas industry with regard to the acts of illegal intrusion;

6) local acts regulating the labor the local acts dealing with the technical regulation relations.

Let us dwell on the above-mentioned provisional groups in more detail.

1) Local acts regulating corporate relations.

These acts regulate the relations in connection with the creation, re-organization and liquidation of the legal person, managing it or participating in a legal person, the relations in connection with the purchase of stock or shares in the capital stock of companies, in relation to the appointment, election, termination or suspension of authority and responsibility of the persons, who are or were part of the management and control bodies of a legal person, in relation to the emission of securities etc.

When examining the peculiarities of the local acts, which regulate corporate relations in the gas industry, we would like to dwell in more detail on such corporate act as the Statute of OAO Gazprom[5].

The legal analysis of the clauses of the Statute shows that the sphere of application of its clauses extends not only to the shareholders or the companies of the Gazprom Group, but also to other persons, which is conditioned by the legal status of OAO Gazprom.

In accordance with p. 1.4. of the Statute of OAO Gazprom, the legal status of the Company, the rights and responsibilities of its shareholders are determined by the current Statute and the Civil Code of the Russian Federation, Federal Law “On the Joint-Stock Companies” and Federal Law “On the Gas Supply in the Russian Federation”.

According to p. 3.1. Art. 3 of the Statute of OAO Gazprom, the Company is responsible for, among other, the conduct of the unified scientific and technical and investment policy in the area of the reconstruction and development of the Unified System of Gas Supply; the construction and financing of pipe-bends of high pressure for the gasification of the rural areas; the control over the functioning of the Unified System of Gas Supply; the development of the current and long-term prognosis, targeted scientific and technical, social and other programs of the development of the comprehensive; improving the management of the Unified System of Gas Supply and the forms and methods of operation in this area. In accordance with p. 3.2 of the Statute, the main types of activity of the Company are, among other, the complex development of the system of gas supply; the control over the system of gas supply. According to p. 4.7 of the Statute, the Company conducts the control over the gas streams, the flexible planning of the extraction and supply of the natural gas based on quarters and months on the basis of the actual requirements of the regions and certain consumers with the consideration of the production capacities of the objects of the Company as well as its subsidiaries.

The current clause of the Statute also fixes the fact that the Company secures the uninterrupted dispatcher control over the functioning of the objects of the Unified System of Gas Supply, the centralized technological and dispatcher control over the connected objects irrespective of the fact in whose property they are. The given point of the Statute also defines that the Company gives its suppliers and the consumers of gas binding directions on the regime of the gas supply and gas consumption in accordance with the legal acts acting in the sphere. It is clear from the content of the given points of the Statute that the given clauses of the corporate document encompass not only the shareholders of the company or the Gazprom Group of companies. It should be noted that the given clauses of the Statute lay down the possibility of the creation of the norms by the Company and these norms would also be binding not only for the shareholders and the Gazprom Group of companies.

According to p. 1.5 of the Statute, OAO Gazprom was founded for an indefinite term. In accordance with p. 3.1 of the Statute, OAO Gazprom supplies gas to both the domestic and the foreign consumers.

Thus, the sphere of activity of the given corporate document of the flagship company in the gas industry cannot be considered as limited in time, space or a circle of persons.

2) The local acts dealing with the technical regulation. When exploring the local acts of the companies in the gas industry dealing with the technical regulation, one should pay attention to the fact that since the adoption of Federal Law No. 184-ФЗ “On the Technical Regulation” of 27 December 2002[6], a system of acts of the technical regulation was formed in the companies of OAO Gazprom. On 17 September 2009, OAO Gazprom adopted the Concept of the Technical Regulation, which was developed in accordance with Order of OAO Gazprom No. 45 of 4 April 2005 “On the Measures on the Implementation in the OAO Gazprom and its Affiliates and Organizations of Federal Law “On the Technical Regulation” and Specified in Accordance with the Directive of the Board of OAO Gazprom No. 12 of 1 April 2009 “On the Work Conducted by OAO Gazprom on the Standardization and Technical Regulation”[7]”.

The given acts are available at the website of OAO Gazprom, other companies of the OAO Gazprom Group and present a system of standardization of OAO Gazprom, a system of voluntary certification[8].

According to p. 1.5 of the Concept of the technical regulation in OAO Gazprom, one of the main tasks in the process of the implementation of the Concept is the coordination of the activity of the structural subdivisions and the affiliates of OAO Gazprom.

In this relation, we should note the clearly visible trend for the unification of the local acts of the companies in the gas industry dealing with technical regulation.

Considering the fact that the voluntary certification can be requested not only by the companies of the Gazprom Group, but also other interested parties, these acts can hardly be considered as limited based on the circle of persons. Federal Law No. 184-ФЗ “On the Technical Regulation” of 27 December 2002 does not contain the requirements on the limitation based on the territory of the acts jurisdiction.

The acts in question can have a temporal limitation. Thus, according to p. 2.6.6 of the Order of the certification of production in the System of Voluntary Certification Gazpromsert, the term of action of the certificate of conformity is determined by the certification body with consideration to the normative and other documents, but the maximum term constitutes three years[9]. According to Art. 21 of Federal Law No. 184-ФЗ of 27 December 2002, the authority of certification is empowered to recall or terminate the validity of the certificates of conformity, which it has previously issued.

3) When dealing with the third group of the local acts, which regulate the order of concluding agreements, one should note that the regulation impact of these acts has significantly grown after the adoption of Federal Law No. 223-ФЗ “On the Purchase of Goods, Works and Services by Certain Types of Legal Persons” of 18 July 2011[10].

The given law encompasses the following legal persons:

-          the state companies, the subjects of the natural monopolies, organizations conducting the regulated types of activity, including the area of gas supply, state unitary enterprises, municipal unitary enterprises, autonomous establishments as well as the companies with the sum total statutory fund share of the Russian Federation, the subject of the Russian Federation or a municipal establishment of over 50%;

-          the affiliate enterprises with the sum total share of the legal persons listed in ps. 1 and 2 in the statutory funds reaching over 50%;

-          the affiliate enterprises with the sum total share of the affiliate enterprises of the legal persons listed in ps. 1 and 2 in the statutory funds reaching over 50%;

The goals of the regulation of the current Federal Law are to secure the unity of the economic space, the creation of the conditions for the timely and the fullest possible satisfaction of the needs of the legal persons mentioned in p. 2 of the current article (further on referred to as customers) in the goods, works and services with the required indicators of price, quality and reliability, the effective utilization of the monetary funds, the broadening of the opportunities for the participation of the legal and physical persons in the purchasing of goods, works and services (further on referred to as purchasing) for the needs of the customers and stimulating their participation, the development of fair competition, securing publicity and transparency of purchasing and preventing corruption and other abuses (p. 1 Art. 1 of the current law).

Federal Law “On the Purchasing of Goods, Works, Services by Certain Types of Legal Persons” lays down the general terms of purchasing goods, works and services. In accordance with p. 3 Art. 3, the legal persons, which fall under the jurisdiction of the current law, have the right to foresee in the directions on purchasing other (than competition and auction) types of purchasing.

Under these conditions, the directions on the purchasing of goods, works and services, which are approved by certain legal persons, are the rules with which an unlimited number of counterparties, including the foreign ones, would comply, and can be applied multiple times.

The current group of local acts of the legal persons in the gas industry is also characterized by conducting the process of unification among the companies of the OAO Gazprom Group[11].

According to the Direction on the Purchasing of Goods of OAO Gazprom and the Gazprom Group of companies, the requirements of the Directions are obligatory for application when conducting the purchasing activity of OAO Gazprom and the Gazprom Group of companies.

P. 1.1.4 of the Direction also establishes that the affiliate companies of OAO Gazprom, on the basis of the current Direction in accordance with the requirements of Federal Law No. 223-ФЗ of 18 July 2011, determine in the given order the directions on the purchasing and secure the determination of the directions on purchasing of their affiliates. The representatives of the interests of the Company in the management bodies of other companies of the Gazprom Group secure the development and adoption, based on the current Directions, of the local normative act, which regulates the purchasing activity of the corresponding company of the Gazprom Group, including those foreseeing the opportunity of handing to OAO Gazprom or the Gazprom Group companies of the function of the Organizer and conducting the purchasing in accordance with the rules set by the current Directions.

The developed Directions on the purchasing are available at the official websites of the respective companies[12].

The separation into separate groups (4 and 5) of the local acts of the companies in the gas industry, which regulate the relations on securing the requirements of industrial security and the local acts regulating the relations on securing the anti-terrorist protection is conditioned by the necessity of adopting by the companies in the gas industry of the local acts with the aim of implementing the requirements set in Federal Law No. 116-ФЗ “On the Industrial Security of the Dangerous Industrial Objects” of 21 July 1997[13], Federal Law No. 256-ФЗ “On the Security of the Objects of the Fuel and Energy Complex” of 21 July 2011[14].

Thus, the local acts, included into these groups, are characterized by the limited circle of persons even in the corresponding sector of the industry, because they primarily touch upon the owners of the respective energy objects. Certain peculiarities related to the access to such information are characteristic of the local acts, which regulate the relations in the sphere of security of the objects of the fuel and energy complex. The given local acts, as opposed to, for example, the acts on the purchasing, should not be mandatorily made available at the websites of the companies of the industry. Moreover, according to the directions of Federal Law No. 256-ФЗ “On the Security of the Objects of the Fuel and Energy Complex” of 21 July 2011, the information related to the security of the objects of the fuel and energy complex, including the objects of the gas industry, is, according to the federal laws, the information with limited access.

6) When dealing with the peculiarities characteristic of the local acts regulating the labor relations, one should pay attention to certain clauses of the Statute of OAO Gazprom. According to p. 4.16 of the Statute, the Company is allowed to grant its employees additional vacations, a shortened workday and other social benefits.

It is natural that each of the given conditional groups of the local acts in the gas industry deserves to be the subject of detailed study and analysis.

The legal analysis of the reviewed peculiarities of the local acts of the companies in the gas industry testifies to the growing regulating impact of these acts. This is caused by the specific nature of the legal regime of such strategic energy resource as gas, by the peculiarities of the legal regime of the energy objects in the gas industry and the peculiarities of the legal status of the subjects of the gas industry. For many of the reviewed groups of the local acts, in particular for the local acts regulating the relations in the area of purchasing and the sphere of the technical regulation, a trend on the unification within the Gazprom Group of companies is characteristic. The broadening of the sphere of the application of the local acts, which is not limited by the shareholders and the affiliate companies, testifies to the fact that these acts occupy a special position among the sources of the energy law.



[1] Marchenko M.N. The Sources of Law: Handbook. Moscow: TK Velbi, Prospekt, 2007 (in Russian); V.V. Lapteva, S.S. Zankovskiy (eds.) Entrepreneurial Law: Textbook.  Russian Academy of Sciences, Institute of State and Law. Moscow: Volters Kluver, 2006. P. 37 (in Russian); I.V. Ershova, G.D. Otnyukova (eds.) Russian Entrepreneurial Law: Textbook Moscow: Prospect, 2012, p. 68 (in Russian); Shitkina I.S. The protection of shareholder rights in local normative acts of a joint stock company Khozyaystvo i pravo, 1997, No. 10 (in Russian).

[2] Krivchenkov A.S. The systematization of local legal acts of an organization, Dr. Law Diss. Moscow, 2010 (in Russian). Malko A.V., Pestova T.P. Local legal acts as means of implementing local legal policy. Pravovaya politika i pravovaya zhizn. 2009, No. 3 (in Russian). Potapov V.A. Corporate normative acts as a type of local acts. Dr. Law Diss. Мoscow, 2006 (in Russian).

[3] RF Federal Law No. 69-ФЗ “On the Supply of Gas in the Russian Federation” of 31 March 1999. Code of Laws of the Russian Federation, 1999, No. 14, Art. 1667 (in Russian).

[4] For details, see Chuychenko K.A. On the practical activity of the lawyers of OAO Gazprom. Energetika i pravo. Moscow, Jurist, 2008, pp. 281–287.

[5] The Statute of OAO Gazprom is available at the official website of OAO Gazprom: http:www.gazprom.ru.

[6] RF Federal Law No. 184-ФЗ “On the Technical Regulation” of 27 December 2002. Code of Laws of the Russian Federation, 2002, No. 52 (p. I), Art. 5140 (in Russian).

[7] Available at: http://www.gazprom.ru/about/strategy/innovation/techregulation.

[8] For more information, see: http://www.gazpromcert.ru.

[9] The order of the certification of the production. The system of voluntary certification Gazpromsert. Available at: http://www.gazpromcert.ru.

[10] RF Federal Law No. 1223-ФЗ “On the Purchasing of Goods, Works, Services by Certain Types of Legal Persons” of 18 July 2011. Code of Laws of the Russian Federation, 2011, No. 30 (p. I), Art. 4571 (in Russian).

 [11] According to the data available at the official website of OAO Gazprom, the number of companies with the share of OAO Gazprom exceeds 240. Out of the given companies, in over 80 companies the share of OAO Gazprom exceeds 100% and in over 30 exceeds 50%.

 [12] See, for example, the official website of OAO Gazprom available at: http://www.gazprom.ru ; the official website of OOO Gazprom Energoholding available at: http://www.energoholding.gazprom.ru; or OOO Gazpromexport available at: http://www.gazpromexport.ru and others.

[13] RF Federal Law No. 116-ФЗ “On the Industrial Security of the Dangerous Industrial Objects” of 21 July 1997. Code of Laws of the Russian Federation, 1997, No. 30, Art. 3588 (in Russian).

[14] RF Federal Law No. 256-ФЗ “On the Security of the Objects of the Fuel and Energy Complex” of 21 July 2011. Code of Laws of the Russian Federation, 2011, No. 30 (p. I), Art. 4604 (in Russian).

Bibliography:

  1. Chuychenko K.A. On the practical activity of the lawyers of OAO Gazprom. Energetika i pravo. Moscow : Jurist, 2008. pp. 281–287.
  2. I.V. Ershova, G.D. Otnyukova (eds.) Russian Entrepreneurial Law: Textbook. Moscow: Prospekt, 2012. p. 68.
  3. Krivchenkov A.S. The systematization of local legal acts of an organization. Dr. Law Diss. Moscow, 2010.
  4. Lapteva, S.S. Zankovskiy (eds.) Entrepreneurial Law: Textbook.  Russian Academy of Sciences, Institute of State and Law. Moscow: Volters Kluver, 2006. p. 37.
  5. Malko A.V., Pestova T.P. Local legal acts as means of implementing local legal policy. Pravovaya politika i pravovaya zhizn. 2009. № 3.
  6. Marchenko M.N. The Sources of Law: Handbook. Moscow: TK Velbi, Prospekt, 2007.
  7. Potapov V.A. Corporate normative acts as a type of local acts. Dr. Law Diss. Мoscow, 2006.
  8. Shitkina I.S. The protection of shareholder rights in local normative acts of a joint stock company. Khozyaystvo i pravo, 1997. № 10.