Łączenie spółek kapitałowych a sukcesja prawa do rekompensaty na pokrycie kosztów osieroconych wynikających z KDTów

Abstract

Power Purchase Agreements (PPAs) being contracts for the supply of power and energy have been used in energetics since 1990s. As European Commission found long-term contracts being against the rules of competition law they have been cancelled. Costs (so called stranded costs) resulting from the long-term contracts were to be covered in terms of the state public aid. On the 1st of March 2005 Poland notified European Commission about the project of the legal act on the basis of which the voluntary cancellation of PPAs would be possible and parties would be able to receive compensation of the costs resulting from the cancellation (so called stranded costs). In 2005 the European Commission started the proceeding. In the decision from 25 th of September 2007 the European Commission noticed, that PPAs guarantee to the selected producers being the party of the mentioned contracts the privileged position in comparison to their competitors, which may harm the fair competition and influence the commercial exchange between the EU states. Long-term contracts have been cancelled on the basis of the legal act from 29 th of June 2007 on the rules of covering the costs beared by the producers resulting from the anticipatory cancellation of the long-term contracts for the supply of power and energy. However, in relation to the transformation of corporations involving mainly joining of the corporations the important matter became the one that concerned the admissibility of transfer of the basis of the administrative succession. According to the article 494 § 1 of the Code of Commercial Partnerships and Companies the new corporations acquires the rights and obligations of the joined corporation. In article 494 § 2 of theCode of Commercial Partnerships and Companies is stated that the new corporation on the date of joining acquires e.g. permissions, concessions and allevations that has been given to the joined corporation unless in the terms of permission, concession or allevation has been stated otherwise. As stated above, the right to compensate the stranded costs given to the corporations on the basis of the legal act on terminations of the PPAs are the subject of transfer on the basis of administrative succession to the new corporation. This conclusion is to be interpreted and legally justified in the legal acts.