Further summary proceedings were initiated in late September 2020 by Ohm Energie, seeking a suspension of payments due for ARENH volumes, claiming that deliveries had been continued illegally by EDF since it had requested suspension of ARENH deliveries from April to June 2020 due to force majeure. On 23 October 2020 the Paris Commercial Court rejected all of Ohm Energie’s claims.
In parallel, seven cases concerning the substance of the matter have been brought by suppliers, claiming compensation from EDF for the prejudice caused by its allegedly unlawful refusal to apply the force majeure clause. The suppliers concerned are Hydroption, Vattenfall, Priméo Energie Grands Comptes and Priméo Energie Solutions, Arcelor Mittal Energy, Plüm Energy et Entreprises et Collectivités, TotalEnergies and Ekwateur.
On 13 April 2021, the Paris Commercial Court issued a first judgement on the merits in the Hydroption case, ordering EDF to pay the claimant €5.88 million in damages. The court considered that the conditions for force majeure were fulfilled and concluded that in continuing its ARENH deliveries against Hydroption’s wishes EDF had committed a breach of contract for which it could be held liable. On 15 October 2021, the Paris Court of Appeal overturned the Commercial Court’s judgement insofar as it considered EDF liable and ordered it to pay damages to Hydroption, considering that the exemption clause of force majeure was not established, and that EDF was not obliged to satisfy a request for suspension of the contract. On 2 December 2021, the Toulon Commercial Court placed Hydroption SAS in liquidation. The liquidator has not taken an appeal to the Court of Cassation.
The Paris Commercial Court issued two more judgements on the merits on 30 November 2021, in the Total Energies and Ekwateur cases, ordering EDF to pay these companies damages totalling several dozen million euros.
The other cases are still ongoing.
Several legal actions before the civil, administrative and criminal courts were begun following the sale by Edison of the Ausimont SpA industrial complex to Solvay Solexis SpA in 2002. The following proceedings are still ongoing:
On 28 February 2018, the Province of Pescara notified Solvay Speciality Polymers Italy SpA (formerly Solvay Solexis SpA) and Edison SpA of the launch of an administrative procedure to determine who was responsible for the pollution of the land outside the industrial complex belonging to Ausimont SpA which had been sold. The Province also ordered Edison to remove waste that was on the land concerned. Edison first appealed against this order before Pescara regional administrative court, and then before the Italian Council of State. In April 2020 the Council of State rejected the claim and Edison, considering the ruling unfair and unlawful, filed applications for its annulment before the Italian Court of Cassation, the Italian Council of State and the European Court of Human Rights (ECHR). The application before the Council of State has been rejected, while the case before the ECHR is still in process.
Edison has nonetheless begun work to make the site safe in agreement with the competent Public Administrations. In particular, Edison has completed the prevention measures (covering) of the polluted areas, reactivated the pump and stock system for the shallow waters and conducted further deep inspections on the soils. Furthermore, the Company has recently submitted a plan to the Ministry for the Environment for the first phase of environmental remediation relating to the disposal and management of waste.
On 11 June 2021 the Council of State published a ruling rejecting the appeal by the Ministry for the Environment against the decision of the Abruzzo regional administrative court concerning annulment of the award of the integrated contract for remediation work in these areas to the Belgian company Dec Deme.
Edison, which had already started the aforementioned work to make these areas safe and clean following the decision of the Council of State of April 2020, is currently discussing the cleanup and waste removal operations under its responsibility with the relevant bodies,
At the end of June 2021, the Arbitral Tribunal partial award, largely granting the claims asserted by Solvay Specialty Polymers Italy in relation to the environmental warranties made by Montedison under the sale contract for Ausimont signed in 2001, ordered Edison to pay compensation of €91 million for the period from May 2002 (closing date) to December 2016.
Edison’s appeal to the Swiss federal court of Lausanne was rejected in January 2022. Sentence enforcement proceedings are now in progress before the Milan Court of Appeal.
The Arbitral Tribunal postponed the quantification of the damages suffered by Solvay Specialty Polymers Italy in the period after December 2016 and the legal fees incurred by the parties to a further phase of the arbitration, unless the parties reach an agreement in this respect. The award carries a dissenting opinion by one of the members of the Arbitral Tribunal.The Public Prosecutor’s Office of Mantua has decided to initiate criminal proceedings against some executive directors working or having worked for Edison since 2015 and some of Edison’s representatives, due to alleged environmental offences, also on the basis of Legislative Decree 231 of 2001, which allegedly occurred in certain areas of the Mantua petrochemical plant. Such orders of the Province of Mantua were confirmed by the Council of State’s ruling of April 2020 as described below. These proceedings are ongoing.
The Mantua petrochemical plant – which Edison (as the successor of Montedison) has not owned or managed since 1990 – is subject to a large-scale and complex program of environmental clean-up and restoration activities which also regarded all of the areas targeted by the procedure initiated by the Public Prosecutor. The ENI group has initiated these activities. After the transfer of the clean-up projects to Edison in June of last year, following the previously mentioned ruling of the Council of State, Edison is carrying out large part of the activities.
Over the past few years, the Italian province of Mantua notified Edison of eight orders to rehabilitate the land and the whole Mantua petrochemical site sold by Montedison to the ENI group in 1990, despite two settlement agreements concerning these environmental issues signed by ENI and the Italian Ministry for the Environment.
Edison appealed against all these rulings before the Brescia Division of the Lombardy regional administrative court, but lost its appeal in August 2018. Edison then took the matter to the Italian Council of State, which rejected Edison’s appeal in a ruling of 1 April 2020 confirming the first-instance decisions. Edison pursued its appeal before the ECHR, and the proceedings are ongoing.
However, as mentioned above, Edison has already begun cleanup work on the site, taking over from the previous operators and conducting a series of tenders.
