Acasă » General Interest » Economics&Markets » Romania loses arbitration case against Enel and EUR 1.3 million; Who is to blame?

Romania loses arbitration case against Enel and EUR 1.3 million; Who is to blame?

28 July 2016
Gabriel Avăcăriței

Everyone, after reviewing the facts. No one, when foreseeing the most plausible consequences.

Many experts with good reputation in the energy sector considered it was the perfect time for them to punctuate what it was already clear from the very beginning: the Court of Auditors has pushed the state companies into a legal confrontation while provided them with little if any ammunition. To start with, the press release from the Ministry of Energy restores chronology in the case on which the ​​International Court of Arbitration in Paris concluded on Wednesday:

In 2012 and 2013, the Court of Accounts conducted several verifications at SC Electrica S.A., which have resulted in decisions of the Court of Auditors number X/40194/2012, respectively, number X /40147/2013. The Court considered that certain obligations assumed by the buyer in the privatization contract of Electrica Muntenia Sud have been not observed and, therefore, asked SC Electrica S.A. to recover the damages caused by these alleged shortcomings. MINISTRY OF ENERGY

And we have found the first culprit: the Court of Auditors. Razvan Purdilă commented on Facebook: “What a pity! In the past, the Court was such a good professional body and one had many to learn from it! Nowadays…”. In turn, Dorin Chirică said: “When they report the damages they come with these huge figures, but then [the Court] never states on how many contested reports it lost or how much the actual damages are, when applicable, established after long and costly trials!”

This is a first quite worrying conclusion, given the fact that a recent report on the energy sector from the Court indiscriminately scatterd accusations against companies (electricity producers, distributors, traders, etc) and against the market regulator. And there are at least two other high profile cases which originated from Court of Auditors reports: Petrotel-Lukoil and Romgaz.

Further, the explanatory press release from the Ministry of Energy identifies the second culprit: the courts of Romania.

Please note that half of the complaints were drafted based on the findings and arguments put forward by the Court [of Auditors], whose decisions were in parallel challenged in court in Romania by SC Electrica S.A. respectively by SAPE, but without success. MINISTRY OF ENERGY

Once the Court of Auditors report had the support given by court decisions, Electrica SA, respectively SAPE were forced to call the Enel firms for arbitration. It is worth noting, however, in the same press release from the Ministry of Energy, that

SC Electrica S.A. conducted their own analysis of contractual obligations by the purchaser […] MINISTRY OF ENERGY

and decided to ask for penalties in an action that have consisted from 24 counts. Only half of them had been imposed by the Court of Auditors. Here we have therefore the third culprit (in part): Electrica and its team of lawyers who considered that the company had good enough arguments to ask for hundreds of millions of euros worth penalties. There is not suficient information available to decide on the competence of the lawyers who represented the state companies during arbitration in Paris, so we will put aside any fault in this area.

But there is still another comment on Facebook, from Alexandru Săndulescu: “We are so fortunate the colleagues in the media do take for granted immediately, unconditionally and unverified all that comes from the Court of Auditors. No offense, but that is what they do.” And so, the fourth culprit is media, the uncritical loudspeaker and amplifier of all the revanchist popular sentiments of frustration.

Finally, there are the politicians who often become the catalyst on the stage and the engine from behind the scenes for populism that breeds on such feelings and gives precaution and balance no chance. There are nominal examples (Victor Ponta, Constantin Niţă) or groups of people (e.g. the senatorial committee in 2010), where it is difficult to distinguish the cynical distortion with electoral purposes, from poor, though honest, understanding of contracts and market behavior.

Anyway, so intoxicated, many commentators will remain confident that once again the foreigners successfully conspired against our national interests.

Are there any significant changes we should expect after the failure in Paris? No, because on each level of guilt – Court of Auditors, prosecutors and judges, corporate legal teams, media and politicians – hard to imagine qualitative progresses would be necessary on short and medium term. Maybe, it is only at a personal level that we can hope for more caution, and more restraint to be expressed, and more carefulness that each and every allegation be supported by arguments or else clearly labeled as mere opinion.

Autor: Gabriel Avăcăriței

A journalist experienced with both old and new media, Gabriel has been the editor in chief of Energynomics since 2013. His great command in communication, organizing information and publishing are put to work every working day in order to develop all the projects of the Energynomics B2B communication platform: website, magazine, and own-events.

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