42. Other Important Information
42.1. Additional contributions to the equity of PI GAZOTECH Sp. z o.o.
In 2013, actions instituted by PGNiG S.A. 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 S.A.’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 S.A. to pay additional contributions of PLN 52m, were held before the Regional Court of Warsaw, the Warsaw Court of Appeals, and finally the Supreme Court. On June 25th 2010, the Regional Court granted PGNiG S.A.’s claims and declared the resolution concerning share redemption and the resolution concerning the additional contributions as invalid. On November 12th 2010, PI GAZOTECH Sp. z o.o. filed an appeal with the Regional Court, together with a request for a court fee waiver. On December 14th 2011, the Court of Appeals dismissed PI GAZOTECH Sp. z o.o.’s appeal. The judgement is final. On April 24th 2012, PI GAZOTECH Sp. z o.o. filed a cassation complaint. By virtue of its decision of March 13th 2013, the Supreme Court refused to accept the cassation compliant for consideration. As a result, the resolution of PI GAZOTECH Sp. z o.o.’s General Meeting of April 23th 2004 is invalid, the decision declaring its invalidity is final and cannot be repealed in proceedings before the Supreme Court based on the cassation compliant. Thus the proceedings in this case were concluded.
Proceedings instigated by PGNiG S.A. 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 S.A. 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 invalidated the resolution. On November 12th 2010, PI GAZOTECH Sp. z o.o. filed an appeal with the Regional Court, together with a request for a court fee waiver. By virtue of its decision of June 22nd 2012, the Court of Appeals of Warsaw dismissed PI GAZOTECH Sp. z o.o.’s appeal. The decision is final. On October 30th 2012, PI GAZOTECH Sp. z o.o. filed a cassation compliant against the decision. On August 14th 2013, the Supreme Court refused to accept the cassation compliant for consideration. Thus the proceedings in this case were concluded.
42.2. Proceedings before the President of the Polish Office of Competition and Consumer Protection (UOKiK)
On December 28th 2010, the President of the Polish Office of Competition and Consumer Protection (UOKiK) instigated, ex officio, anti-trust proceedings concerning abuse of dominant position on the domestic natural gas wholesale market by PGNiG S.A., 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 general 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 S.A. discontinued those practices as of November 30th 2010, and imposed on the Company a fine of PLN 60m. On July 24th 2012, PGNiG S.A. filed an appeal against the decision of the President of UOKiK with the Competition and Consumer Protection Court at the Regional Court of Warsaw. As at the date of these financial statements, the Competition and Consumer Protection Court had not notified PGNiG S.A. of a hearing date.
On February 9th 2012, the President of the UOKiK instigated anti-trust proceedings concerning alleged employment by PGNiG S.A. of practices infringing collective consumer interests. The President of the UOKiK accused PGNiG S.A. of using, in general gas supply contracts, a provision classified as an abusive clause. In the course of the proceedings, PGNiG S.A. voluntarily agreed to revise certain contractual provisions. By virtue of a decision of August 10th 2012, the President of the UOKiK resolved not to impose a fine on the Company and obliged the Company to introduce a new form of comprehensive agreement containing revised general provisions. On September 11th 2013, PGNiG S.A. notified the President of the UOKiK that it had fully complied with the obligation imposed on it by virtue of the above decision.
On February 22nd 2013, the President of UOKiK instigated anti-trust proceedings concerning practices employed by PGNiG S.A. which infringe collective consumer interests. The President of the UOKiK accused PGNiG S.A. of using provisions classified as abusive clauses in contract forms used in general gas supply contracts. PGNiG S.A. initiated a review process and submitted a motion to the President of the UOKiK for a commitment decision, in which it voluntarily agreed to revise the contract forms. By virtue of a decision of June 28th 2013, the President of the UOKiK resolved not to impose a fine on PGNiG S.A. and obliged the Company to fulfil its commitment. PGNiG S.A. is taking steps to fulfil this obligation.
On April 3rd 2013, the President of UOKiK instigated anti-trust proceedings concerning abuse of dominant position by PGNiG S.A. on the domestic wholesale and retail natural gas market, consisting in impeding the development of market conditions necessary for the emergence or development of competition through:
- limiting the ability of business customers to reduce the ordered volumes of gas fuel and contractual capacity,
- limiting the ability of business customers to resell gas fuel,
- requiring that business customers define the maximum volume of gas fuel purchased for resale in the contract,
- refusing to grant wholesale customers the right to a partial change of supplier.
In the course of the proceedings, PGNiG S.A submitted a motion to the President of the UOKiK for a commitment decision, in which it voluntarily agreed to revise certain provisions in its contracts with non-household customers. By virtue of a decision of December 31st 2013, the President of the UOKiK resolved not to impose a fine on PGNiG S.A. and obliged the Company to fulfil its commitment. PGNiG S.A. is taking steps to fulfil this obligation.
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 S.A. for payment of a disputed amount, representing the equivalent of liquidated damages for delay in the performance of a contract, deducted by PGNiG S.A. 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 also due to actual significant delays in the performance of the contract, which constituted grounds for charging the contractual penalties. Further, according to PGNiG S.A., the plaintiff's claims became 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 S.A. to mediation. On September 20th 2012, an out-of-court settlement was made between PGNiG S.A. 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 June 13th 2012, PBG S.A. was declared insolvent in voluntary arrangement. 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 S.A., which included the claim related to incorrect performance of the contract concerning the Grodzisk Nitrogen Rejection Unit Construction Project. The claim related to the Grodzisk Nitrogen Rejection Unit Construction Project was not approved on the list of claims. As the date of prescription of the claims filed to be included in the bankruptcy estate of PBG S.A. approached, PGNiG S.A. took due care to interrupt the operation of the prescription period related to the claims under the contract. To this end, on November 5th 2013, the attorney-in-fact of PGNiG S.A. filed with the District Court for Poznań-Stare Miasto in Poznań a request to call for a conciliation hearing. In this request, all consortium members, i.e. parties to the contract concerning the Grodzisk Nitrogen Rejection Unit Construction Project, were called to pay PLN 159m to PGNiG S.A. as compensation for damage resulting from the improper performance of the EPC contract for delivery of the Grodzisk Nitrogen Rejection Unit.
On February 18th 2014, PGNiG S.A. was requested to make, by February 25th 2014, a prepayment for costs of translation of the request to call for a conciliation hearing. The date of the conciliation hearing was set for September 16th 2014.
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