Such a situation makes negative influence on competitive situation within the national service market of handling of foreign trade and transit cargos at Ukraine’s sea ports and also on competitiveness of business entities – port operators and other companies of marine transport operating at Mykolayiv Sea Port.
In particular, it concerns establishment and use of canal dues discounts as the procedure of recovery and rates of port dues approved by the decree of the Ministry of Infrastructure of Ukraine dated 27.05.2013 No. 316 “On Port Dues” (further – Decree No. 316) and registered in the Ministry of Justice of Ukraine 12.06.2013 No. 930/23462 does not provide for the establishment and use of canal dues discounts at Mykolayiv Sea Port as opposed to other sea ports (Yuzhnyy Port, the sea ports in Odesa and Yalta).
In June 2014 the Antimonopoly Committee of Ukraine considered NIBULON’s application testifying that the Ministry of Infrastructure of Ukraine violates the legislation on economic competitiveness protection when establishing different conditions to use port dues for separate sea commerce ports.
During consideration and analysis, the Antimonopoly Committee of Ukraine established that the Ministry of Infrastructure of Ukraine, by the Decree No.316, determined the amount of dues and their discounts at sea ports at the level approved by the Provisions No.442 and 1544 without any economic grounding and, contrary to the requirements of the Article 22 of the Law, without development and conformation of the appropriate methodology.
In particular, the evidence of the dues amount groundlessness is that YuzhnyySeaPort provides business entities with a 50 % discount.
Besides, an opportunity for the natural monopoly entities, including Yuzhnyy Sea Port, to establish the amount of port dues discounts for certain cargo vessels directing to berths to be unloaded which belong to certain business entities and, on the contrary, not to provide such discounts or provide them in different amount to the vessels directing to perform transshipment operations on the berths that belong to other business entities can cause competitiveness restriction in the cargo transshipment market and infringement of interests of other business entities.
In its turn, the Ministry of Infrastructure of Ukraine explained the impossibility of using port dues discounts at other ports, in particular, at Mykolayiv Sea Port, “…use of discounts for port dues (canal dues) which are necessary to maintain canal will lead to low-quality canal maintenance resulted in negative impact on navigation safety of this region”.
But, the Committee trying the case No. 36-26.13/81-10/44-10/52-10 found out that the denial of sea port services for PREVENTER entering NIBULON’s berth was based on restriction of overall length of cargo vessels which are permitted to sail through the first canal bend of the water area of Mykolayiv Sea Port and to NIBULON’s berth, due to unsatisfactory and dangerous condition of the first canal bend of Mykolayiv Sea Port water area which at that moment was a part of the water area belonged to SE “Mykolayiv Commercial Sea Port”, despite full canal dues paid by business entities who used the Bug-Dnipro-Lyman Channel (the dues amount was determined in compliance with the Provision No.1544).
Thus, presence of unsatisfactory and dangerous canal conditions even with recovering full amount of dues established by the Provision No.1544 can indicate both economically unreasonable amount of such dues, misuse of funds obtained from these dues and absence of control over funds allocation on the part of the Ministry of Infrastructure of Ukraine.
Thus, providing Yuzhnyy Sea Port with the right to apply tonnage dues discounts and berthage discounts to different business entities, whereas the amount and direction of use of such dues are strictly determined, can testify that the Ministry of Infrastructure of Ukraine established dues at the economically unreasonable level and created conditions for violation of the legislation on economic competitiveness protection by business entities.
Consequently, in order to prevent from violating the legislation on economic competitiveness protection, the Antimonopoly Committee of Ukraine provided the Ministry of Infrastructure of Ukraine with recommendations to be considered. In particular, to take measures as to methodology development to form rates of port dues at sea ports and to inform about measures taken within a period of one month.