Ørsted acquitted in billion-euro competition law damages case

Background

The case concerned an alleged abuse of dominance by the former Elsam, now part of Ørsted, in the form of excessive prices on the wholesale electricity market in Western Denmark in 2003 - 2006.

The case was initiated before the Danish Maritime and Commercial High Court ("DMCHC") in 2007 and had thus taken more than 18 years (in first instance).

The case was initially brought as a so-called "follow-on" damages action based on certain infringement decisions by the Danish competition authorities, but those decisions were ultimately set aside by the High Court of Western Denmark ("HCWD").

The claimants, however, decided to continue the damages case as a co-called "stand-alone" action. The DMCHC's judgment therefore is the result of an independent and comprehensive assessment of the alleged abuse.

Judgment

The claimants sought to establish the existence and extent of the alleged excessive prices using a complex economic model designed to estimate the counterfactual prices and electricity flows to and from other electricity trading areas. However, according to the DMCHC the claimants had failed to show that Elsam had charged excessive prices, and Ørsted was therefore acquitted already for that reason.

The case also concerned the issues of liability for competition law infringements, causation and quantification of loss. In this respect, the claimants, inter alia, presented a complex econometric model intended to establish a causal link between the alleged excessive prices on the wholesale electricity market and the prices of fixed-price agreements between electricity trading companies and end-customers for future delivery periods. The claimants also produced several extensive loss calculations. Since Ørsted was acquitted already because the claimants had not established that Ørsted had charged excessive prices, the court did not rule on the other substantive issues.

The judgment formally only concerned six claimants (test cases), but due to the DMCHC's conclusion on the issue of abuse, the judgment de facto acquitted Ørsted of all damages claims.

Denmark's largest ever competition law related damages case

In addition to being one of the longest-running competition law damages cases ever, it is the largest ever such case in Denmark:

The case involved more than 1,000 claimants and a combined damages claim exceeding DKK 11.5 billion/EUR 1.5 billion (including statutory interest).

It involved, inter alia, four separate assessments by court-appointed economic and other experts regarding the claimants' economic models and loss calculations, and several procedural battles, including about the court-appointed expert assessments, document production, and possible reference to the ECJ for preliminary ruling.

The parties exchanged more than 700 written pleadings, letters and notices and produces more than 4,300 exhibits, including electricity supply contracts, complex economic models, loss calculations and economic reports; the court-appointed experts submitted 10 extensive reports; and the DMCHC issued more than 200 court orders and decisions, resulting in a trial bundle exceeding 13,500 pages.

The trial took place over a total of 30 days in January - April 2026.

Possible appeal

The judgment may be appealed to the HCWD or potentially directly to the Danish Supreme Court.

Read more

The DMCHC's press release about the judgment (in Danish)

Ørsted's press release about the judgment

A non-confidential version of the judgment (in Danish) is found here