Ørsted is acquitted in historic damages case

By judgment of 31 March 2020, the Danish Maritime and Commercial High Court acquitted Ørsted of a damages claim of DKK 4.4 billion plus interest for allegedly charging excessive electricity prices. The court found that the earlier judgment of the High Court of Western Denmark, which set aside the administrative decisions that formed the basis for the damages case, also had legal force in relation to the plaintiffs in the damages case. Furthermore, the court found that the plaintiffs were precluded from basing their damages claims on other arguments than those included in the High Court case. Plesner represented Ørsted in the case before the High Court of Western Denmark and has also assisted Ørsted in the damages case before the Danish Maritime and Commercial High Court.

Background

In 2005, the Danish Competition Council found that the former electricity provider Elsam, which is now part of Ørsted, during the second half of 2003 and throughout 2004 had abused a dominant position by charging excessive prices for the sale of electricity in Western Denmark, and ordered Elsam to comply with certain price limits. In 2006, the Danish Competition Council rescinded the price limitation order, but upheld the finding that Elsam had charged excessive prices.

In 2007, the Danish Competition Council found that Elsam had also charged excessive prices in 2005 and 2006. In 2008, the Danish Competition Appeals Tribunal rescinded the decision with respect to the second half of 2006, but upheld it with respect to 2005 and the first half of 2006.

In 2007 and 2008, Ørsted brought the competition authorities' decisions before the Danish Maritime and Commercial High Court, which decided to put the case regarding the second half of 2003 and 2004 on hold until the case regarding 2005 and the first half of 2006 was decided. In 2016, the Danish Maritime and Commercial High Court upheld the decision of the Danish Competition Appeals Tribunal regarding 2005 and the first half of 2006.

However, in 2018, the High Court of Western Denmark acquitted Ørsted of the allegation that Elsam had charged excessive prices. Plesner represented Ørsted in the matter. Read previous Insight:
"Ørsted prevails in historic competition law case"

The competition authorities applied for leave to appeal the case to the Danish Supreme Court, which the Danish Appeals Permission Board rejected. Read previous Insight:
"Historic competition law case finally concluded"

In light of the now final judgment of the High Court of Western Denmark, Ørsted and the competition authorities agreed that Elsam should also be acquitted of the allegation that Elsam had charged excessive prices during the second half of 2003 and throughout 2004. Read previous Insight:
"Ørsted is again acquitted of the Danish competition authorities' claim of abuse"

This marked the final conclusion of the cases between Elsam and the Danish competition authorities.

However, Energi Danmark, Scanenergi and approx. 1,100 other plaintiffs, including other energy trading companies, utilities companies and electricity customers, maintained the damages case that they had brought before the Danish Maritime and Commercial High Court against Ørsted in 2007. In the damages case, they demanded a total of DKK 4.4 billion with the addition of interest from the second half of 2003 due to the allegedly excessive prices.

It is the largest competition related damages case ever in Denmark.

The judgment of the Danish Maritime and Commercial High Court

Following the judgment of the High Court of Western Denmark in the case filed by the authorities, the claimants maintained that their damages claims were based on other factual and legal arguments than those that were part of the competition authorities' decisions and that the damages case should therefore continue despite the High Court's judgment. The plaintiffs requested that the Danish Maritime and Commercial High Court as the next step in the proceedings referred a number of questions to the EU Court of Justice for a preliminary ruling.

Ørsted, on the other hand, argued that the basis for the damages case had lapsed as a result of the High Court's judgment and that Ørsted should therefore be acquitted.

The Danish Maritime and Commercial High Court found that the judgment of the High Court of Western Denmark in the case against the authorities also had legal force between Ørsted and the plaintiffs in the damages case. This was partly due to the fact that the High Court's judgment involved the same fundamental issue as the damages case, in particular whether Elsam had charged excessive prices, and that two of the plaintiffs had been very actively involved as interveners in the High Court case with the aim of safeguarding the interests of all of the plaintiffs.

The Danish Maritime and Commercial High Court also found that, by their conduct, the plaintiffs had de facto made a declaration that the basis for their claims followed from the competition authorities' decisions. Against that background, the plaintiffs were precluded from maintaining that their claims for damages could be based on other arguments than those included in the High Court case.

Consequently, Ørsted was acquitted.

The plaintiffs were ordered to pay DKK 7 million in legal costs to Ørsted.

Click here to read the judgment of the Danish Maritime and Commercial High Court
 (in Danish)

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