42. Other Important Information
42.1. Additional contributions to equity of PI GAZOTECH Sp. z o.o.
In 2012, actions instituted by PGNiG SA were pending to rescind or declare invalidity of resolutions of the Extraordinary General Meeting of PI GAZOTECH Sp. z o.o. concerning additional contributions to the company’s equity.
Proceedings concerning PGNiG SA’s action against PI GAZOTECH Sp. z o.o. to rescind or declare invalidity of resolutions by the General Meeting of PI GAZOTECH Sp. z o.o., dated April 23rd 2004, including the resolution obliging PGNiG SA to pay additional contributions of PLN 52m, were held in turn before the Regional Court of Warsaw, the Warsaw Court of Appeals and the Supreme Court. On June 25th 2010, the Regional Court granted PGNiG SA’s claims and declared the resolution concerning share redemption and the resolution concerning the additional contributions invalid. On November 12th 2010, PI GAZOTECH Sp. z o.o. filed an appeal with the Regional Court, along with a petition to be exempt from court fees. On December 14th 2011, the Court of Appeals dismissed PI GAZOTECH Sp. z o.o.'s appeal. The ruling is final. On April 24th 2012, PI GAZOTECH Sp. z o.o. lodged a cassation compliant, which had not been accepted for consideration by the Supreme Court by the date of this report.
Proceedings instigated by PGNiG SA against PI GAZOTECH Sp. z o.o. to rescind or declare invalidity of the resolution of the Extraordinary General Meeting of PI GAZOTECH Sp. z o.o., dated January 19th 2005, whereunder PGNiG SA was obliged to pay an additional contribution of PLN 26m, were held before the Regional Court and the Court of Appeals of Warsaw. By virtue of its ruling of October 18th 2010, the Regional Court of Warsaw rescinded the resolution. On November 12th 2010, PI GAZOTECH Sp. z o.o. filed an appeal with the Regional Court, along with a petition to be exempt from court fees. By virtue of its decision of June 22nd 2012, the Court of Appeals in Warsaw dismissed PI GAZOTECH Sp. z o.o.’s appeal. On October 30th 2012, PI GAZOTECH Sp. z o.o. lodged a cassation compliant against that decision, a copy of which was delivered to PGNiG SA's representative on December 31st 2012. The complaint had not been accepted for consideration by the Supreme Court by the date of this report.
Proceedings based upon PGNiG SA’s action against PI GAZOTECH Sp. z o.o. to rescind or declare invalidity of the resolution of the General Meeting of PI GAZOTECH Sp. z o.o., dated October 6th 2005, whereunder PGNiG SA was obliged to pay additional contributions in the amount of PLN 6.6m, were brought before the Regional Court of Warsaw. On May 30th 2008, the Regional Court dismissed the Company’s claim and reversed the decision concerning implementation of measures to safeguard the claim (the temporary injunction order). The proceedings to rescind or declare invalidity of the resolution on additional contributions and to maintain the safeguarding measures have been held before the Court of Appeals and the Regional Court of Warsaw since 2008. By virtue of its decision of May 25th 2010, the Court of Appeals changed the Regional Court’s decision concerning maintenance of the safeguarding measures dated May 30th 2008 and dismissed the request for reversing the final decision on implementation of the safeguarding measures. The Regional Court of Warsaw, by virtue of its decision of May 21st 2012, declared the resolution of the General Meeting of PI GAZOTECH Sp. z o.o. on additional contributions invalid. The decision became final as of June 12th 2012.
42.2. Proceedings before the President of the Polish Office of Competition and Consumer Protection (UOKiK)
On December 28th 2010, the President of UOKiK instigated anti-trust proceedings concerning abuse of dominant position by PGNiG SA on the domestic wholesale natural gas market, consisting in:
- inhibiting sale of gas against the interest of trading partners or consumers, and
- impeding the development of market conditions necessary for the emergence or development of competition
by refusing to sell gas fuel under a comprehensive gas supply contract to an entrepreneur that intended to resell the gas, i.e. Nowy Gaz Sp. z o.o. of Warsaw.
In its decision of July 5th 2012, the President of UOKiK found these actions to be anti-competitive practices, concluded that PGNiG SA discontinued those practices as of November 30th 2010, and imposed on the Company a fine of PLN 60m. On July 24th 2012, PGNiG SA filed an appeal against the decision of the President of UOKiK with the Competition and Consumer Protection Court at the Regional Court of Warsaw.
Also, on July 4th 2011, the President of UOKiK instigated anti-trust proceedings concerning abuse of dominant position by PGNiG SA on the domestic retail natural gas market. In the President's opinion, the abuse consisted in frustrating the emergence or development of competition on the domestic natural gas wholesale and retail markets by limiting the customers' ability to terminate comprehensive gas fuel supply contracts. In the course of the proceedings, PGNiG SA voluntarily agreed to change certain contractual provisions. By virtue of the decision of April 13th 2012, the President of UOKiK resolved not to impose a fine on the Company and required the Company to change certain contractual provisions. PGNiG SA has satisfied this requirement.
On February 9th 2012, the President of UOKiK instigated another anti-trust case concerning practices employed by PGNiG SA which infringe collective consumer interests. The President of UOKiK accused PGNiG SA of using in comprehensive gas fuel supply contracts a provision classified as illegal contractual clause. In the course of the proceedings, PGNiG SA voluntarily agreed to change certain contractual provisions. By virtue of the decision of August 10th 2012, the President of UOKiK resolved not to impose a fine on the Company and required the Company to introduce a new form of comprehensive agreement containing revised general provisions. PGNiG SA satisfies this requirement.
42.3. Dispute between PGNiG SA and PBG S.A.
On June 27th 2011, PBG S.A. filed with the Regional Court an action against PGNiG SA for payment of a disputed amount, representing the equivalent of the contractual penalties for delay in the performance of a contract, deducted by PGNiG SA from PBG's consideration.
The Company believes that the claim is unjustified due to the fact that the deliverable under the contract handed over by the contractor had material defects, and due to actual significant delays in the performance of the contract, which constituted grounds for charging the contractual penalties. In addition, according to PGNiG SA, the plaintiff's claims have become prescribed. On July 27th 2011, the Company filed its response to the claim, requesting that the action be dismissed in its entirety.
By virtue of its decision of April 9th 2012, the Court resolved to refer the dispute between PBG S.A. and PGNiG SA to mediation. On September 20th 2012, an out-of-court settlement was made between PGNiG SA and PBG S.A. w upadłości układowej (in company voluntary arrangement). As a result of the settlement, having obtained the approval of its court supervisor, PBG S.A. withdrew in full the action pending before the Regional Court.
By virtue of its decision of October 31st 2012, the Regional Court discontinued the proceedings.
On September 21st 2012 a Statement of Claims against the insolvent company was lodged with the District Court of Poznań, Division for Bankruptcy and Recovery Cases, by an attorney-in-fact acting for and on behalf of PGNiG SA, against insolvent company PBG S.A., which included the claim related to incorrect performance of the contract concerning the Grodzisk Nitrogen Rejection Unit Construction Project.
42.4. Proceedings before the Court of Arbitration
On March 31st 2011, PGNiG SA requested OOO Gazprom Export to renegotiate the price of gas deliveries under the Contract dated September 25th 1996 for supplies of natural gas to the Republic of Poland, so as to reduce the price. As the parties failed to reach an agreement in the period of six months, on November 7th 2011, PGNiG SA filed a request to OAO Gazprom and OOO Gazprom Export to start arbitration proceedings before the Court of Arbitration. In accordance with the Court's procedure, on February 20th 2012, the Company filed a suit against OAO Gazprom and OOO Gazprom Export.
Concurrently with the arbitration proceedings, PGNiG and OOO Gazprom Export entered into trade negotiations, which led to the execution, on November 5th 2012, of an Annex to the Contract, changing the pricing terms of gas supplies, with retroactive effect. Under the annex, the gas price is based on a formula which includes current market prices of natural gas and petroleum products, and thus reflects the changes on the European gas market.
In connection with the agreement, PGNiG SA withdrew its petition for arbitration from the Stockholm Arbitration Tribunal and the arbitration proceedings were closed.
42.5. Restructuring of the Group's core business
On December 18th 2012, the Parent's Supervisory Board approved the “Short-Term Value Creation Strategy for the PGNiG Group in 2012–2014”. The strategy provides for 19 initiatives in three business areas.
Two initiatives from the “Business Model” area are particularly important for the future structure of the Group:
- setting up a Shared Services Centre (SSC) – an initiative which assumes that support functions such as finance and accounting, HR and payroll, IT services or procurement will be transferred from the individual Group companies participating in the initiative to the SSC;
- restructuring of the Group's core business, assuming, inter alia, that the distribution companies which currently operate within the Group will be merged into one entity. The consolidation process is scheduled for completion in June 2013.
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