This note relates to the proposed legal tools which can be applied with reference to difficulties concerning the implementation of the investment in the harbour areas in Gdynia by B. Inc. Sp. z o.o.
I. Facts of the case On the basis of the copies of documents in the case submitted by B. Inc. Sp. z o.o. the following description of the facts of the case could be made: On 30 June 2004 the Company concluded the contract of lease of the harbour real estate, with Z. S.A. in Gdynia with the intention of using the real estate concerned for the construction of the gases and/or oil fuel load/discharge and storage terminal. Throughout the period since the date of the contract conclusion until the date of the note preparation, the Company has been paying a fixed fee under the rent for the benefit of Z. S.A. The lease contract provides the possibility of subletting the subject of the contract to M. Gdynia Sp. z o.o until the legally valid construction permit, enabling to commence the terminal construction, is obtained. On 27 July 2005 the Company obtained the decision on the land development conditions which, once it is validated, enables to initiate proceedings for the issuance of a construction permit. The decision on the land development conditions has been appealed by P. Sp. z o.o., a tenant of the harbour areas in Gdynia carrying out an economic activity analogous to the activity planned by the Company in the area in question. P. Sp. z o.o. complained also against the orders of the Director of Urząd Morski in Gdynia of 26 July 2005 on the agreement of the draft decision on the land development conditions. The petition against the decision on the land development conditions was admitted by the Self-Government Board of Appeal [SKO] in such a way that the decision appealed was annulled and the case was referred to the first instance authority for re-examination. The Minister of Infrastructure dismissed the complaint against the order of the Director od Urząd Morski in Gdynia on 12 September 2005, upholding the orders complained of. It does not appear from the documents delivered whether P. Sp. z o.o. has submitted the petition to the Regional Administrative Court in Warsaw. Consequently, the Company cannot commence the planned investment, suffering damage in the form of both – actual loss (the rent paid in the form of the fixed fee less the rent paid by M. Sp. z o.o.) and expected profits (fees for services rendered by the load/discharge and storage terminal of the Company).
II. Legal conclusions Such facts of the case enable to draw the following conclusions: 1. The effect in the form of damage is related to actions or omissions of the three subjects i.e. Z. S.A.. in Gdynia, P. Sp. z o.o. and the Mayor of the City Gdynia. 2. There is causality between actions of the above-mentioned subjects, however in the case of the two last ones only, the normative, adequate theory – based causality can be proved. 3. B. Inc. Sp. z.o.o. is able to prove the damage existence and to quantify its range. 4. After analysing the contents of the lease contract it should be found (its evaluation itself and proposals of changes are separate issues) that there are prerequisites enabling to prove the defect of the thing leased and on that base to demand – from Z. S.A. – the reduction of the rent for the period of the duration of the defect of the thing leased pursuant to Article 664 Item 1 of the Polish civil code. 5. After analysing the decision of the Self-Government Board of Appeal as well as information on the contents of the P. Sp. z o.o. appeal included in the note of Mrs B.S., it can be found that that the SKO’s decision alleges the formal defect in the form of failure to carry out, by the authority issuing the decision, the analysis of the conditions and rules of the land management and its development resulting from separate regulations, as well as of the facts of the case and the legal status of the site on which the investment implementation is expected. The deficiencies in that respect charge the Mayor of the City of Gdynia, which results in the possibility of making compensatory claims under the provisions of Article 420 with the mark 1 and 2 of the Polish civil code. 6. Actions by P. Sp. z o.o. are situated within the range of licit acts, therefore there are no grounds for asserting claims under the liability in tort (the contractual liability is out of question at all). However, with reference to the fact, that P. Sp. z.o.o. already carries out the activity analogous to the one planned by the Company, it is possible to demand its discontinuance and to make compensatory claims under the provisions of Article 3 in conjunction with Article 18 item 1 of the Act on combating unfair competition. The prerequisite of the demand in this case, can be the plea of good customs’ infringement by P. Sp. z o.o., which by its activities, lengthens the administrative proceedings and makes the competitive load/discharge and storage terminal’s coming into existence impossible.
III. Proposals for the Company’s activities I propose, so that a basic form of the Company’s activities, be negotiations with Z. S.A., acknowledging that under the strategic approach Z . S.A. is a valuable partner for the Company. In their progress the demand for the reduction of the rent within the fixed fee (possibly, for the next change of the rent payment date within a floating fee) should be issued. Compensatory claims should be addressed to the remaining subjects i.e. the Mayor of the City Gdynia (this solution should be considered first and foremost taking into account the facts known to me on the date of the note preparation, resulting from the documents submitted). Any possible addressing of claims to P. Sp. z o.o. should be preceded by the analysis of the files of the appeal proceedings before the Self-Government Board of Appeal, however putting forward, to P. Sp. z o.o., the demand for discontinuance of the activities delaying the issuance of an administrative decision can be suggested right now. However, it seems that the next decision by the Mayor of the City Gdynia on the land development conditions should be advantageous for the Company. Otherwise, initiating the appeal procedure as well as an active participation in the possible appeal proceedings initiated by P. Sp. z o.o. should be certainly taken into account. Any changes regarding the strategic assessment of the above- mentioned subjects shall lead to the change of the actions proposed.