On 18 September 2019, the Court of Cassation issued several decisions rejecting claims concerning both Enedis and EDF, judging the aid illegal because it had not been notified; consequently, the prejudice of producers who could not benefit from that aid is deemed not legally reparable. Since then, further Court of Cassation decisions have essentially confirmed its ruling of 18 September 2019 and rejected producers’ appeals founded on state aid arguments.
Since court decisions were now consistently following this precedent, some producers brought actions before administrative courts, claiming reparation from the State. To date the administrative courts have dismissed the producers’ claims.
In parallel to the compensation claims before civil courts, EDF and Enedis sought to apply their Civil Liability insurance policy, but the insurers refused their claim. The French Court of Cassation considered in a ruling of 9 June 2015 (for the Green Yellow case) that the insurance payment was due and that the distribution network operator was at fault. Following that ruling, Enedis and EDF brought action against their insurers in April 2017, applying to the courts for formal recognition of two partial serial claims. If the courts were to recognise the existence of two partial serial claims, a single excess and a single limit would apply for all claims with the same technical cause. In view of the favourable developments in cases before the Court of Cassation, EDF and Enedis decided to apply for this case to be removed from the court list on 17 February 2021, to suspend the procedure for 2 years in order to draw up the final list of cases still outstanding. EDF and Enedis will file submissions by 17 February 2023 in order to suspend the time limit on this civil action for 2 years.
In the crisis caused by the Covid-19 pandemic, some suppliers applied to the President of the Paris Commercial Court in 2020 for an emergency order suspending ARENH deliveries either totally, or partially, equivalent to the decline in electricity consumption by their customer portfolio during the crisis, citing the force majeure clause contained in the master ARENH agreement signed with EDF.
On 20, 26 and 27 May 2020, after summary proceedings the Paris Commercial Court issued provisional rulings on the applications for suspension of ARENH contracts made by four alternative suppliers (TotalEnergies, Gazel, Alpiq and Vattenfall). The urgent application judge ruled that force majeure was established, and ordered the suspension of deliveries for three of the applicants (TotalEnergies, Gazel, and Alpiq). EDF appealed against this ruling. On 28 July 2020, the Paris Court of Appeal upheld these Commercial Court decisions. On 24 September 2020 EDF filed an appeal before the Court of Cassation which was rejected on 11 May 2022.
Meanwhile, as a precautionary measure to protect its rights, on 2 June 2020 EDF notified the energy suppliers Alpiq, Gazel and TotalEnergies of the termination of their ARENH contracts. By an order of 1 July 2020, the president of the Paris Commercial Court declared this termination null and void. EDF appealed against that decision. On 19 November 2020, the Paris Court of Appeal overturned the Commercial Court’s order and stated that there were no grounds for summary proceedings, thus restoring the effects of the termination.
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 were 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 filed an appeal before the Court of Cassation on 19 January 2022, and the proceedings are still ongoing.
On 30 November 2021 the Paris Commercial Court issued two more judgements on the merits in the cases brought by TotalEnergies et Ekwateur, ordering EDF to pay damages of €53.93 million to TotalEnergies and €1.77 million to Ekwateur. EDF has appealed against these two judgments, and the proceedings are still ongoing.
On 6 December 2022, the Paris Commercial Court issued two further judgements on the merits in the cases brought by Priméo Energie Grands Comptes and Priméo Energie Solutions, ordering EDF to pay these two companies damages of €1.73 million and €2.36 million respectively. EDF has appealed against these two judgments, and the proceedings are still ongoing.
The other cases on the merits 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:
