30 October there was a stock debut on the WSE second the largest rail freight carrier in the EU – PKP CARGO.
As stated in the draft of the issue, the judgment of the European Court of Justice (Court of Justice of the European Union) on the C-512/10 stated the breach by Poland Directive 2001/14 on the allocation of rail infrastructure capacity.
Consequently, the value of the charges calculated for the use of the railway infrastructure was excessive, which also resulted in an inflating of the charges charged. This practice may result in claims for overpayment and compensation. According to the official position
The Management Board of PKP Cargo, the company planned a division before the IPO consisting of "transfer of part of the Company's assets, in particular covering all damages claims and related other claims held by the Company in relation to the Treasury of the Republic of Poland (or PKP PLK) in connection with defective implementation into the national legal order Directive 2001/14, to the Company as a railway carrier, for a period up to the date 14 December 2013” In accordance with the resolution adopted in the form of a notarial act dated 18 October 2013, division of the Company took place in the mode Article 529(1) pt 4 KSH, i.e.
by the transfer of the organized part of the company to the newly established company Windacja Kolejowa Sp. z o.o. in the organization.
However, it should be pointed out that the new company has been registered 26 November 2013 The question therefore arises whether the claims in question remained with PKP CARGO on the day of the public debut (30 October 2013) whether they switched to a new company at the time of the resolution on the division (18 October 2013) or maybe at the time of registration of the new company (26 November 2013).
In fact, this question concerns whether the valuation of PKP CARGO’s shares in the prospectus should include the value of potential claims or the claims in question were transferred to the new entity before or after IPO.
The position of the Management Board of PKP CARGO was clear – "Groups will not be entitled to any claims for historically overcharged rail infrastructure charges" on IPO day.
The legal procedure for the division of PKP CARGO provided for the so-called division by division, i.e. by the transfer of part of the assets of the company divided into a newly-established company. The separation of the new company takes place on the day of its entry in the register (the day of its separation).
The newly-established company created in connection with the division enters the date of separation into the rights and obligations of the divided company, as defined in the plan of division.
The newly established company in connection with the division shall be subject to these assets, in particular permits, concessions and reductions, in connection with the assets assigned to it by the split company in the plan.
On the other hand, to the division of the company shall apply the provisions relating to the formation of the appropriate type of newly bound company accordingly. In the case of a limited liability company, the company is created in the organisation when the agreement is concluded.
However, a limited liability company is required to be incorporated into the register (then it acquires legal personality). In the event of a division by the formation of a new company, the division plan shall be drawn up in writing by the divided company.
The distribution plan shall be accompanied, among others, by a new company agreement. The new company shall be entered in the register on the basis of organisational acts and resolutions of the general meeting of the split company.
An entry in the company's division register by division shall be made immediately after the share capital reduction of the split company has been registered, unless the division is made out of the company's own capital other than share capital.
The question therefore arises whether the adoption of a resolution on the division of a company with the simultaneous drafting of a new company agreement with limited liability (in the form of a notarial act) results in the binding of a limited liability company in an organisation which may acquire rights and obligations.
It should be stressed that the date of separation is the date on which the division by division takes effect in legal terms (the date of entry into the register of the newly established company).
On the date of the separation, there are legal effects such as the succession of the rights and obligations of the company divided into a separate company, the partners (shareholders) of the divided company become shareholders (shareholders) of the respective separated company.
Due to the above legal effects, the date of separation shall be determined by the registration court when entering entrepreneurs in the register.
This is due to the general concept adopted in the Polish Commercial Companies Code that the creation and amendment of the company's founding acts (the company's contracts or statutes) remain under the control of the court. Provisions Article 530(2) KSH precisely regulates the day of separation when a new company is formed.
The date of separation shall be determined by the registered court competent for the seat of the company being released. That court shall issue a decision on the entry of a company newly bound in the register, which shall at the same time be the entry of a division in that register.
In conclusion, in the present facts, the passage of certain rights and obligations as indicated in the plan for the division of PKP CARGO took place on the date of the separation, i.e. on the date of entry into the register of the newly established company, i.e. 26 November 2013.
Consequently, despite legal doubts, at IPO the claims in question were granted to PKP CARGO. It is highly controversial that a new ‘company in an organisation’ is established at the date of adoption of the resolution on division by division, which acquires the rights granted in the plan.
It is also interesting to say that the separation takes place in the newly-established company “in the organisation” – an entry in the KRS concerning the way in which the company Windacja Kolejowa Sp. z o.o. was created.
There is, therefore, another doubt whether the division took the form of a division by separation to an existing entity (in the option with or without an increase in share capital).
A separate issue remains the economic valuation of claims for the moment of public issue of the Company, in case of prior adoption of a resolution on the division of the Company and the desire to transfer rights to the new entity. In my opinion, the legal effect of this decision has already occurred after first stock listing. It is not clear that the value of claims for PKP CARGO on IPO was zero, in particular because the value of the assets in the distribution plan is to be measured.