22 Contingent liabilities and other financial obligations

The contingent liabilities and other financial obligations in the following table are not recognized in the balance sheet.

Guarantee obligations are principally related to VAT and duties on the one hand and to financing obligations of associated companies or related third parties on the other. Guarantee obligations will only lead to a cash outflow when called upon. At year-end, no obligations had been called upon. Most of the outstanding orders for projects under construction will be completed in 2023. Other relates mainly to contingent liabilities in contracts for catalysts.

Litigation

DSM has a process in place to monitor legal claims periodically and systematically.

DSM is involved in several legal proceedings, most of which are related to the ordinary course of business. DSM does not expect these proceedings to result in liabilities that have a material effect on the company’s financial position. In cases where it is probable that the outcome of the proceedings will be unfavorable, and the financial outcome can be measured reliably, a provision has been recognized in the financial statements and disclosed in Note 18 Provisions.

In 2015, an award was issued against DSM Sinochem Pharmaceuticals India Private Ltd. (DSP India) in a protracted arbitration case in India going back to 2004 involving a joint venture that DSP India had formed with Hindustan Antibiotics Ltd., which suspended its operations in 2003. DSP India (renamed to Centrient Pharmaceuticals after divestment by DSM in 2018) is covered by an indemnity from Koninklijke DSM N.V. for this case. In 2015, DSP India made an application with the Civil Court in Pune (India) to set aside the arbitral award. The award amounts to INR 127.5 crore (approximately €14 million as at year-end 2022) excluding interest of 12% per year as of 2004. In 2019, DSM provided the Bombay High Court a bank guarantee of INR 150 crore (approximately €17 million as at year-end 2022). At the end of 2022, the application proceedings were still pending. DSM has always viewed this case as unfounded and is of the opinion that the likelihood of the award being ultimately set aside is high. Therefore, no liability is recognized in respect of this case.

In 2019, Brazilian tax authorities disagreed with certain tax treatment as applied by the company in 2014–2016, which would have an effect on such prior year income tax returns of around BRL 65 million (approximately €12 million as at year-end 2022), including penalties and interest. DSM views this case as unfounded and considers that the possibility of winning this case is high, as confirmed by external legal counsel. Therefore, no liability relating to this case is recognized. During 2022 no relevant developments took place that alter this view.

On 8 March 2022, DSM was informed by the district court of Munich (Germany) that TransnetBW GmbH (Transnet), responsible for collecting the renewable energy levy (EEG Levy) from companies supplying energy to end users, filed a claim against KGW-Kraftwerk Grenzach-Whylen GmbH (KGW). KGW is the owner of the cogeneration plant on DSM’s site in Grenzach (Germany), which is leased to and operated by DSM. DSM and KGW are of the opinion that DSM is exempted from the EEG levy, which for the period 2010 until 2020 for electricity consumed by DSM would amount to approximately €50 million. KGW filed its statement of defense on 30 June 2022. So far, DSM has not joined the proceedings and is therefore not a party to the claim. Depending on how this case progresses, it is still considered possible that either KGW will assert a recourse claim against DSM, or Transnet will assert an alternative payment claim against DSM. A court hearing is expected to take place not before the summer of 2023. DSM has not recognized a provision in respect of this case.