Our Energy practice team has repeatedly demonstrated its credibility by devising unique opportunities for greenfield and brownfield investments for our clients. We provide comprehensive solutions related to privatization, regulatory compliance and due diligence in cooperation with eminent regulatory, corporate and financial experts.
Counsel to Norwegian NBT AS on Wind Farms Project in Serbia
Our latest accomplishment in the energy sector is providing counsel to NBT AS, Norway, a utility-scale wind power developer (exceeding 100 KW of power), in partnering with WV International (formerly Windvision). WV International has been developing wind farm projects in Serbia since 2010 and has been active in the renewable energy sector for nearly 20 years in eight countries: the Netherlands, Belgium, France, Spain, Morocco, Serbia, Senegal and Tunisia. NBT AS is a developer and operator of wind farms in emerging markets, with key projects in China and the Ukraine. The wind farms that will be jointly operated by NBT AS and WV International with an installed capacity of 800MW should exceed the combined output of all other wind farms in Serbia, which speaks to the importance of this project for the production of renewable energy in Serbia, as one of the key objectives of the Serbian energy sector. Based on key indicators, this project should deliver significant economic benefits and create new jobs, and in turn boost the local economy.
Our team was co-counsel on this project, working alongside the distinguished Israeli law firm Shibolet, Israel. We conducted a comprehensive due diligence of local wind farms (7 project companies), with a special emphasis on corporate, regulatory, real estate and commercial matters. Moreover, we supported the client in negotiations with the seller and preparation of the full set of transaction documents necessary to successfully close the deal.
High-profile proceedings before the Energy Community
Our energy practice, apart from Serbia, has also earned the trust of clients in the region. We are currently representing Bosnia and Herzegovina in the most important regional procedure before the Energy Community, in a high-profile case related to the construction of Block 7 of the Tuzla Thermal Power Plant.
In September 2018, the Energy Community, a multilateral organization which monitors the application of EU law in the energy sector in nine non-EU countries, launched a procedure against Bosnia and Herzegovina, based on allegations that a guarantee granted by the government of Bosnia and Herzegovina for a loan from the Chinese EXIM Bank for the construction of Block 7 of the TTPP constituted state aid. Months earlier, in July 2018, the State Aid Council of Bosnia and Herzegovina had cleared the guarantee.
The process was marked by continuous bids to preempt the outcome, violation of due process, complete disregard for the rights of the defense as well as the unlawful inclusion of the case on a draft-agenda of the Energy Community’s Ministerial Council meeting.
However, on December 17, the Council of Ministers denied requests to fast track the process and decided to continue in accordance with its own rules of procedure, which constitutes a significant case milestone in favor of the government of Bosnia and Herzegovina.
Bogdan Gecić, partner at Gecić Law, commented on the case for bne Intellinews: “The Secretariat of the Energy Community wanted to push the process five procedural steps faster. The Council of Ministers rejected that and pushed it back to where it should have been.”
He also said that independent experts Copenhagen Economics had reviewed the case thoroughly and concluded that the guarantee was issued for a loan granted under market conditions and does not constitute state aid, while the Energy Community had not produced an economic report prior to the first hearing in the case in October 2020.
The outcome of this case is pending.
Annulment of the largest penalty ever imposed in the history of Serbian competition law
We are especially proud of one of our most successful cases, not just in the energy sector, which was finalized in 2018. It concerns the EPS Distribucija case before the Commission for Protection of Competition of the Republic of Serbia (“SCA”).
On December 2016, EPS Distribucija was fined by the SCA for several alleged abuses of a dominant market position. The fine for alleged abuses amounted to RSD 330 million, and still holds the record for the highest penalty for competition infringements ever handed down by the SCA. The Commission found several abuses of dominant position. Following the Administrative Court’s decision to reject EPS Distribucija’s lawsuit against the SCA decision, EPS Distribucija filed an application to the Supreme Court of Cassation to review the judgement of the Administrative Court.
The Supreme Court of Cassation found that neither the SCA nor the Administrative Court had correctly determined whether EPS Distribucija had abused its dominant position and sent the case back to the Administrative Court for reconsideration. The Administrative Court ruled on the case for a second time and finally passed a landmark judgement annulling the SCA’s decision in its entirety. The Administrative Court found that the SCA had violated the law to the detriment of EPS Distribucija, as it failed to correctly determine the relevant product and geographic markets, EPS Distribucija’s market share, the existence of an alleged dominant position of EPS Distribucija, the existence of acts of alleged abuse of dominant position by EPS Distribucija, the “negative consequences“ and the effects of the alleged abuses on other market participants, in particular the impact of the alleged abuse on customers.
None of these successful representations would have been possible without the unique expertise of our team, our multidisciplinary approach and the unconditional support we provide to our clients in finding the most creative solutions.