summary of the case
On 14 October 2016, the Ministerial Council adopted Decision 2016/05/MC-EnC in Case ECS-05/13 establishing a breach of Energy Community law by declaring that Ukraine, by failing to ensure that heavy fuel oils are not used if their sulphur content exceeds 1.00 % by mass on its entire territory and failing to ensure that gas oils are not used if their sulphur content exceeds 0.1 % by mass on its entire territory, failed to comply with Article 3(1) and Article 4(1) of Directive 1999/32/EC in conjunction with Article 16 of the Treaty.
Ukraine was required to take all appropriate measures to rectify the breaches identified in Article 1 of Decision 2016/05/MC-EnC and ensure compliance with Energy Community law immediately, as well as to report regularly to the Secretariat and the Permanent High Level Group about the measures taken. The Secretariat was invited to initiate a procedure under Article 92 of the Treaty in case the breaches were not rectified.
Despite the proactive role and the efforts of the Secretariat to provide assistance as well as following numerous reminders and several meetings, the situation as regards the compliance of the national legislation of Ukraine with Directive 1999/32/EC remained unchanged since the last decision of the Ministerial Council and the breaches identified in Decision 2016/05/MC-EnC have not been remedied.
Therefore, on 12 October 2017, the Secretariat initiated Case ECS-05/13S by submitting a Reasoned Request to the Ministerial Council under Article 92 of the Treaty.
In its Reasoned Request, the Secretariat submitted that the non-implementation of a Ministerial Council Decision 2016/05/MC-EnC under Article 91 of the Treaty by Ukraine in itself constitutes a breach of Energy Community law. The Secretariat requested the Ministerial Council to declare that the breach identified is serious and persistent breach within the meaning of Article 92(1) of the Treaty.
By its Decision 2018/14/MC-EnC of 29 November 2018, the Ministerial Council established a serious and persistent breach of the Energy Community law by declaring that Ukraine had failed to implement Decision 2016/05/MC-EnC, and invited the Secretariat to request Measures under Article 92 of the Treaty in 2019 if the Ukraine fails to implement Ministerial Council Decision 2016/05/MC-EnC by 1 July 2019.