Civil Law And Cross-Border Electricity Interconnector Failure Litigation In Europe

1. Introduction

A cross-border electricity interconnector is a transmission facility connecting the electricity systems of two countries or electricity-market areas. It may be an overhead line, underground cable, submarine cable, converter station, or associated equipment.

Examples include interconnectors linking:

France–United Kingdom

Netherlands–United Kingdom

Ireland–United Kingdom

Sweden–Denmark

Norway–Germany

Spain–France

Italy–neighbouring European systems

A failure can involve:

physical cable failure;

converter-station failure;

fire or equipment damage;

inadequate maintenance;

design defects;

insufficient transmission capacity;

protection-system failure;

incorrect switching;

software/control-system failure;

grid instability;

cross-border congestion;

regulatory restrictions;

delayed repair;

force majeure;

cyberattack or sabotage.

The resulting litigation can involve contract law, tort/delict, energy regulation, damages, competition law, insurance, construction law and EU internal-market law.

A key point is that EU law does not create one uniform European civil-liability regime for interconnector failures. EU electricity legislation establishes regulatory duties and market rules, while national civil law normally determines the ultimate claim for damages.

2. Basic Legal Structure

A typical interconnector looks like:

Country A transmission grid → Interconnector → Country B transmission grid

There may be several contractual and regulatory relationships:

TSO ↔ TSO

Interconnector owner ↔ TSO

Interconnector operator ↔ market participants

TSO ↔ electricity supplier

TSO ↔ large industrial consumer

Owner ↔ construction contractor

Owner ↔ cable manufacturer

Owner ↔ insurer

Market participant ↔ balancing/capacity platform

A failure can therefore generate several different claims from the same event.

3. Main Causes of Interconnector Failure

A. Physical failure

Examples:

cable rupture;

insulation failure;

overheating;

converter failure;

transformer failure;

submarine cable damage.

B. Maintenance failure

The operator may be accused of failing to:

inspect equipment;

replace defective components;

maintain protection systems;

conduct appropriate testing;

maintain spare parts.

C. Design defect

The system may have been inadequately designed for:

expected electrical loads;

fault conditions;

environmental conditions;

voltage fluctuations;

marine conditions.

D. Construction defect

A defective cable or installation may result in:

premature failure;

reduced capacity;

repeated outages.

E. Operational failure

Incorrect switching, inadequate coordination or improper dispatch may cause an outage.

F. Regulatory failure

A dispute may concern:

refusal of an exemption;

capacity allocation;

congestion management;

access rights;

regulatory discrimination;

network tariffs.

G. Force majeure

Possible events include:

extreme weather;

earthquakes;

accidental ship-anchor damage;

war;

sabotage;

major cyberattack.

Whether these qualify as force majeure depends on the applicable contract and national law.

4. European Regulatory Framework

The traditional EU electricity framework included:

Directive 2009/72/EC;

Regulation 714/2009;

Regulation 713/2009 establishing ACER.

The current framework has developed through:

Directive (EU) 2019/944;

Regulation (EU) 2019/943;

ACER's regulatory functions;

network codes and guidelines;

national energy legislation.

Regulation 714/2009 expressly addressed cross-border electricity exchanges and interconnector congestion. It also provided mechanisms concerning revenues generated from interconnection capacity. (EUR-Lex)

5. Important Legal Questions

A court or regulator may have to determine:

1. Who operated the interconnector?

Was the defendant:

transmission-system operator;

interconnector operator;

owner;

contractor;

manufacturer?

2. What duty was breached?

Possibilities include:

contractual duty;

statutory duty;

regulatory duty;

tort/delict duty.

3. Did the failure actually cause the loss?

This is frequently the most difficult question.

4. What losses are recoverable?

Possible losses include:

repair costs;

replacement electricity;

balancing costs;

lost trading revenue;

lost capacity revenue;

business interruption;

consequential losses.

5. Was there contributory negligence?

6. Was the failure foreseeable?

7. Did force majeure apply?

8. Which country's law applies?

6. Case Law

Case 1: Crown Van Gelder BV v Autoriteit Consument en Markt

C-360/19, CJEU, 8 October 2020

This is one of the most useful European electricity-failure authorities.

Facts

A major power failure occurred at the Diemen high-voltage substation in the Netherlands, operated by TenneT.

Crown Van Gelder operated a paper factory connected to the regional distribution network, which was supplied by TenneT's high-voltage transmission system.

The outage caused Crown's electricity supply to be interrupted and Crown alleged that the transmission operator had failed to take reasonable measures to prevent the interruption. (EUR-Lex)

The Dutch regulator initially rejected Crown's complaint because Crown was not directly connected to TenneT's transmission network.

CJEU decision

The CJEU rejected that restrictive approach.

A final customer could complain concerning a transmission-system operator even where its installation was connected only to a distribution system supplied by the transmission network.

The Court emphasized that TSO obligations include maintaining secure and reliable transmission systems and managing electricity flows with interconnected systems. (EUR-Lex)

Principle

A lack of direct contractual connection does not necessarily prevent a customer from challenging a transmission operator's regulatory compliance after a grid failure.

Relevance to interconnectors

This is highly relevant where:

Country A's interconnector fails → Country B's distribution network loses supply → affected consumer has no direct contract with the interconnector operator.

The operator may still be subject to regulatory accountability.

7. Case 2: Baltic Cable AB v Energimarknadsinspektionen

C-454/18, CJEU, 11 March 2020

This is a particularly important direct interconnector case.

Facts

Baltic Cable operated a high-voltage electricity interconnector between national transmission networks.

The dispute concerned the application of EU rules governing revenues obtained from allocating interconnection capacity and the treatment of operation and maintenance costs. (EUR-Lex)

CJEU decision

The Court held that the relevant EU revenue provisions applied to an undertaking that merely operated a cross-border interconnector.

It also held that ordinary operation and maintenance costs could not simply be treated as network investments for the relevant regulatory purpose.

The regulatory authority had to permit appropriate use of congestion revenues so that the interconnector could operate in financially acceptable conditions, including an appropriate profit. (EUR-Lex)

Principle

An interconnector operator is subject to specific EU regulatory rules even where its activity consists essentially of operating the cross-border line.

Relevance to failure litigation

The case is important when determining:

responsibility for maintenance;

financial incentives for reliability;

use of congestion revenues;

regulatory treatment of interconnector operators.

It does not itself decide a damages claim for physical cable failure, so it should be used as a regulatory authority rather than presented as a direct outage-compensation case.

8. Case 3: ACER v Aquind Ltd

C-46/21 P, CJEU, 9 March 2023

This case concerned the proposed Aquind electricity interconnector between the UK and France.

Facts

Aquind sought an exemption for its proposed interconnector under the EU electricity interconnector regime.

ACER rejected the exemption.

The dispute ultimately reached the CJEU concerning the appropriate intensity of review of ACER's decision-making. (EUR-Lex)

Decision

The CJEU dismissed ACER's main appeal and dealt with the review framework applicable to decisions concerning interconnector exemptions. (EUR-Lex)

Principle

Interconnector projects are subject to specialized regulatory assessment, and regulatory decisions affecting interconnector economics are subject to judicial review.

Relevance

The case is useful when a supposed “failure” is not physical but results from:

regulatory refusal;

delayed authorization;

exemption disputes;

inability to construct or operate the connection.

It also demonstrates that regulatory decisions can themselves generate litigation concerning economic losses connected with an interconnector project.

9. Case 4: Aquind Ltd v ACER

T-342/23, General Court, 11 June 2025

This is an especially important recent interconnector liability authority.

Facts

Aquind brought an action seeking compensation from ACER concerning alleged unlawful acts and omissions relating to the proposed UK-France interconnector.

Aquind claimed substantial economic losses, including alleged loss of profits associated with delays affecting the project. (EUR-Lex)

Legal issue

The General Court examined EU non-contractual liability under Article 340 TFEU.

The Court emphasized three fundamental requirements:

unlawful conduct;

actual damage;

causal connection between the conduct and damage.

Where the alleged infringement involves an institution exercising discretion, the relevant breach must also satisfy the applicable threshold of seriousness. (EUR-Lex)

Result

The damages action was dismissed. The Court found that the necessary conditions for EU non-contractual liability had not been established cumulatively. (EUR-Lex)

Principle

Even in a highly regulated interconnector dispute, economic loss alone is insufficient. The claimant must establish unlawfulness, actual damage and causation.

Importance

This is one of the strongest authorities for an examination answer concerning:

interconnector + regulatory decision + economic loss + damages.

10. Case 5: BritNed Development Ltd v ABB AB and ABB Ltd

[2018] EWHC 2616 (Ch); [2019] EWCA Civ 1840

This is a major UK interconnector-related damages authority, although it is principally a competition-law case rather than a physical-outage case.

Facts

BritNed owned and operated a 1,000 MW submarine electricity interconnector connecting the Dutch and UK electricity systems.

ABB supplied the cable component.

ABB had participated in a global cartel concerning high-voltage submarine and underground power cables.

BritNed claimed that the cartel caused it loss through an overcharge and other economic effects. (CaseNode)

High Court

The court found that BritNed had suffered loss resulting from the cartel and considered the appropriate method of calculating damages.

Court of Appeal

The Court of Appeal considered the principles governing assessment of damages for competition-law infringement and the effect of the regulatory environment on the calculation of loss. The case is reported as [2019] EWCA Civ 1840. (CaseNode)

Principle

Damages involving sophisticated electricity infrastructure require careful analysis of counterfactual conditions, regulatory constraints and actual economic loss.

Relevance to failure litigation

If an interconnector failure is caused by defective equipment or negligent construction, the claimant may similarly need to establish:

what the interconnector would have earned or cost if the failure had not occurred.

Important qualification

This is not a physical interconnector-outage case. It is an analogous interconnector damages authority.

11. Case 6: Energiavirasto

C-578/18, CJEU, 23 January 2020

This case concerned the rights of electricity consumers to challenge decisions concerning electricity-network regulation.

Facts

A household customer complained about the activities of an electricity distribution-system operator.

The dispute concerned the scope of the concept of a party entitled to challenge a regulatory decision under the electricity directive. (EUR-Lex)

Principle

The CJEU emphasized effective access to regulatory dispute-resolution mechanisms and the interpretation of the electricity directive's complaint and appeal provisions.

Relevance

In an interconnector failure dispute, questions may arise concerning:

who has standing;

whether a customer can complain to a regulator;

whether only directly connected parties have rights;

whether regulatory decisions can be challenged.

The case therefore supports the broader principle that electricity regulation must provide effective mechanisms for affected parties.

Qualification

This is not an interconnector-failure damages case; it is an analogous electricity-regulatory standing authority.

12. Case 7: Cafpi v Enedis

CJEU Case C-691/21, judgment concerning French electricity-network liability

This case is particularly useful for the civil-liability dimension.

Facts

Electrical equipment belonging to Cafpi malfunctioned after a voltage surge.

The alleged cause was a break in the neutral conductor of the electricity distribution system operated by Enedis.

Cafpi and its insurer sought compensation under French contractual-liability rules. Enedis raised arguments concerning the applicable liability regime and limitation. (EUR-Lex)

Legal significance

The case involved the interaction between:

contractual liability;

electricity-network operation;

damage caused by an electrical disturbance;

product-liability rules;

limitation.

Relevance to interconnector disputes

Although involving a distribution network rather than a cross-border interconnector, it is valuable because it shows how a technical electricity failure can produce a conventional civil-liability dispute.

Principle

The legal characterization of the electricity infrastructure and the applicable liability regime can determine:

who may sue;

what cause of action applies;

limitation periods;

whether contractual or product-liability rules govern.

13. Case 8: Crown Van Gelder — Broader Liability Lesson

The Crown Van Gelder litigation is worth emphasizing separately because it illustrates an important distinction:

Regulatory responsibility

A TSO may have statutory obligations concerning:

reliability;

maintenance;

security;

capacity;

system management.

Private damages

Whether a claimant can actually recover damages requires a separate analysis under applicable national civil law.

Therefore:

Regulatory breach does not automatically equal private damages.

The claimant must identify the relevant civil cause of action and establish causation and recoverable loss.

14. Six-Case Exam Table

Note: Because reported European case law specifically involving civil damages for a failed international interconnector is relatively limited, some authorities above are deliberately identified as analogous electricity-network or interconnector cases, rather than being presented as direct physical-outage precedents.

15. Contractual Liability

An interconnector operator may have contractual relationships with:

neighbouring TSO;

electricity trader;

capacity purchaser;

maintenance contractor;

equipment supplier;

construction contractor.

A contract may contain:

availability guarantees;

capacity guarantees;

maintenance obligations;

response-time obligations;

outage notification;

liquidated damages;

limitation clauses;

force-majeure provisions;

indemnities;

insurance requirements.

Example

Suppose an interconnector guarantees:

95% annual availability.

Actual availability falls to 80% because of defective equipment.

Possible claims include:

contractual damages;

liquidated damages;

repair costs;

replacement-power costs;

lost capacity revenue.

The enforceability of the claim depends on the applicable national law and contractual terms.

16. Tort/Delict Liability

Where no direct contract exists, the claimant may rely on national tort/delict law.

Possible allegations:

negligence;

failure to maintain infrastructure;

defective design;

unsafe operation;

breach of statutory duty;

unlawful interference with property;

damage to business operations.

However, the precise cause of action differs between European legal systems.

17. Causation

Causation is often the central issue.

Consider:

Cable failure → reduced electricity import → higher electricity prices → trader's loss

The defendant may argue:

“The market price would have increased anyway.”

The claimant must therefore establish a sufficiently reliable causal chain.

Courts may examine:

market prices;

alternative generation;

substitute interconnectors;

electricity demand;

weather;

renewable generation;

congestion;

balancing markets;

counterfactual capacity.

18. Types of Recoverable Loss

Potential categories include:

A. Repair costs

Cost of repairing the interconnector.

B. Replacement electricity

Cost of purchasing electricity from another source.

C. Lost capacity revenue

Revenue lost because transmission capacity could not be sold.

D. Lost trading profits

Potentially recoverable where sufficiently established.

E. Business interruption

Loss suffered by industrial users.

F. Financing costs

Additional borrowing or financing expenses.

G. Regulatory losses

Possible where a legally attributable regulatory act caused the loss.

But foreseeability, remoteness, causation and contractual limitations remain important.

19. Force Majeure

A failed interconnector may involve force majeure.

Possible events:

submarine cable struck by an anchor;

exceptional storm;

earthquake;

war;

terrorism;

sabotage;

major cyberattack.

The court normally examines:

contractual definition;

foreseeability;

preventability;

reasonable mitigation;

notice requirements;

duration;

causal effect.

A force-majeure clause does not automatically eliminate every liability.

20. Defective Equipment

Suppose:

Manufacturer supplies a submarine cable → insulation fails → interconnector unavailable for six months.

Potential claims:

Owner → manufacturer

for:

breach of contract;

warranty;

defective product;

negligence;

repair costs;

consequential loss.

The parties may dispute whether:

the defect existed at delivery;

installation caused the defect;

maintenance caused deterioration;

the defect was foreseeable;

contractual exclusions apply.

The BritNed litigation demonstrates the commercial importance of cable procurement and sophisticated economic-loss analysis in interconnector projects, although its cause of action was competition-related rather than a cable-failure claim. (CaseNode)

21. Regulatory Liability

A claimant may argue that an energy regulator:

wrongly refused an exemption;

delayed authorization;

imposed discriminatory conditions;

incorrectly allocated capacity;

unlawfully restricted access.

Aquind v ACER is particularly important here.

The General Court stressed that EU non-contractual liability requires cumulative proof of:

unlawfulness + actual damage + causal link. (EUR-Lex)

This makes regulatory damages more difficult than simply showing that a decision had economically negative consequences.

22. Congestion and Capacity

An interconnector can remain physically operational but still fail commercially because of congestion.

Possible problems:

insufficient capacity;

incorrect capacity calculation;

discriminatory allocation;

network bottlenecks;

market-splitting;

inadequate coordination.

EU law has specific rules governing cross-border capacity and congestion.

Baltic Cable demonstrates the importance of the regulatory treatment of interconnector revenues and operation costs. (EUR-Lex)

23. Cross-Border Jurisdiction

Suppose:

interconnector owner = Netherlands;

manufacturer = Germany;

cable = physically between UK and Netherlands;

damage = UK market;

operator = joint venture.

Potential jurisdictional issues include:

contractual jurisdiction clause;

Brussels I Recast where applicable;

place of performance;

place where damage occurred;

arbitration clause;

applicable national law.

Because the UK is no longer an EU Member State, post-Brexit disputes involving UK-connected interconnectors require particular attention to the relevant jurisdiction and enforcement regime.

24. Applicable Law

The parties may choose:

English law;

Dutch law;

French law;

German law;

another applicable national law.

In the absence of an effective choice, European private international-law rules may become relevant.

The court must distinguish:

Regulatory law

EU and national electricity regulation.

Contract law

The law governing the interconnector agreement.

Tort law

The law governing damage caused by failure.

Property law

Potentially relevant to infrastructure and cables.

Insurance law

Relevant to coverage and subrogation.

25. Insurance and Subrogation

Interconnector operators commonly have insurance for:

property damage;

business interruption;

marine risks;

construction risks;

equipment failure;

third-party liability.

After paying the insured, an insurer may become subrogated to the insured's rights under applicable national law.

Thus:

Operator suffers loss → insurer pays → insurer pursues responsible contractor/manufacturer.

The dispute may then involve multiple jurisdictions.

26. Evidence

Technical evidence is extremely important.

A claimant should preserve:

SCADA records;

protection-system logs;

fault records;

maintenance records;

inspection reports;

cable-testing results;

engineering drawings;

commissioning documents;

outage records;

market data;

capacity-allocation records;

correspondence;

repair invoices;

expert reports.

Expert evidence

Experts may determine:

actual cause of failure;

whether maintenance was adequate;

expected equipment life;

whether the failure was foreseeable;

alternative causes;

counterfactual electricity prices;

amount of lost capacity.

27. Cyberattack and Sabotage

Modern interconnector litigation increasingly has to consider:

cyberattacks;

malware;

remote-control compromise;

physical sabotage;

GPS interference;

telecommunications failure.

A cyberattack may raise questions concerning:

force majeure;

negligence;

cybersecurity duties;

insurance;

attribution;

national security;

state responsibility.

The legal treatment will depend heavily on the contract and national law.

28. Limitation of Liability

Interconnector agreements often contain:

liability caps;

exclusions for consequential loss;

exclusions for lost profits;

force-majeure clauses;

indemnity provisions.

A claimant may therefore have a technically strong claim but still face a contractual limitation.

The court must examine:

wording;

governing law;

mandatory statutory provisions;

reasonableness/unfairness rules where applicable;

type of loss;

whether the limitation applies to the relevant breach.

29. Regulatory vs Civil Proceedings

The same outage may produce two different proceedings.

Regulatory proceeding

The regulator asks:

Did the TSO comply with its regulatory obligations?

Civil proceeding

The court asks:

Does this defendant owe this claimant compensation under the applicable civil or contractual law?

Crown Van Gelder illustrates why these should not automatically be treated as the same question. The CJEU dealt with the customer's ability to bring a regulatory complaint; it did not itself award private damages. (EUR-Lex)

30. Defences

An interconnector operator may rely upon:

1. Force majeure

The failure was beyond reasonable control.

2. Third-party damage

For example, a vessel damaged the submarine cable.

3. Contributory negligence

The claimant contributed to the loss.

4. Contractual limitation

The agreement limits damages.

5. Lack of causation

The alleged breach did not cause the loss.

6. Remoteness

The claimed loss was too remote.

7. Market causation

Market prices were affected by independent factors.

8. Regulatory immunity or limits

Depending upon the defendant and applicable legal framework.

31. Remedies

Depending on the applicable legal system, possible remedies include:

Monetary damages

For proven losses.

Specific performance

Where appropriate.

Injunction

To require or prohibit particular conduct.

Repair/replacement

Particularly under contractual arrangements.

Declaration

A court may declare contractual or regulatory rights.

Regulatory remedy

A regulator may issue a binding decision or impose sanctions.

Contract termination

Where a sufficiently serious breach occurs.

32. Special Importance of Aquind

The Aquind litigation is particularly useful for an exam because it shows that an interconnector dispute may concern not merely physical infrastructure but the entire regulatory life cycle of the project:

Project → exemption → regulatory decision → judicial review → alleged economic loss → damages claim.

The 2025 General Court judgment confirms that a claimant seeking EU non-contractual damages must satisfy the cumulative requirements of unlawfulness, actual damage and causation. (EUR-Lex)

33. Comparative Case Analysis

34. Important Qualification About the Case Law

There is no large body of CJEU judgments specifically awarding civil damages for the physical failure of a cross-border electricity interconnector.

Therefore, a legally careful answer should not falsely describe every electricity case as an “interconnector failure case.”

The authorities divide into:

Direct interconnector cases

Baltic Cable

ACER v Aquind

Aquind v ACER

BritNed v ABB

Analogous electricity-network cases

Crown Van Gelder

Energiavirasto

Cafpi/Enedis

This distinction is important for legal research and examination accuracy.

35. Simple Hypothetical

Assume an interconnector between France and another European country fails because of inadequate maintenance.

For six months:

electricity cannot be imported;

electricity prices rise;

traders lose revenue;

the operator loses capacity fees;

an industrial customer loses production;

the neighbouring TSO incurs balancing costs.

The legal analysis should proceed as follows:

Step 1

Identify the operator and owner.

Step 2

Identify the maintenance contract.

Step 3

Determine the governing law.

Step 4

Determine whether maintenance duties were breached.

Step 5

Determine whether EU electricity regulations were breached.

Step 6

Establish technical causation.

Step 7

Calculate the counterfactual position.

Step 8

Consider force majeure.

Step 9

Consider liability caps.

Step 10

Determine jurisdiction/arbitration.

Step 11

Calculate recoverable damages.

Step 12

Consider insurance/subrogation.

36. Exam Formula

For an examination answer, remember:

Interconnector → Operator → Regulatory Duty → Contract → Failure → Technical Causation → Market Impact → Damage → Force Majeure → Liability Limitation → Jurisdiction → Remedy

37. Quick Revision

Meaning

Cross-border electricity interconnector failure litigation concerns legal disputes caused by the malfunction, unavailability, inadequate capacity or regulatory failure affecting electricity connections between national systems.

Main causes

equipment failure;

cable damage;

maintenance failure;

construction defects;

operational error;

congestion;

regulatory decisions;

cyberattack;

sabotage;

force majeure.

Main legal fields

EU electricity law;

contract law;

tort/delict;

competition law;

construction law;

insurance;

private international law;

arbitration.

Leading authorities

Crown Van Gelder BV v ACM, C-360/19

Baltic Cable AB v Energimarknadsinspektionen, C-454/18

ACER v Aquind Ltd, C-46/21 P

Aquind Ltd v ACER, T-342/23

BritNed Development Ltd v ABB AB, [2019] EWCA Civ 1840

Energiavirasto, C-578/18

Cafpi/Enedis, C-691/21

Conclusion

Cross-border electricity interconnector failure litigation in Europe is a multi-layered area of civil and regulatory law. A single outage can simultaneously raise questions of contractual liability, tort/delict, EU electricity regulation, equipment defects, insurance, market losses and cross-border jurisdiction.

The strongest direct interconnector authorities include Baltic Cable, ACER v Aquind, Aquind v ACER, and BritNed. Baltic Cable establishes important principles concerning the legal and financial position of an interconnector operator. Crown Van Gelder is especially important for grid-failure complaints because it prevents regulatory remedies from being restricted merely because the affected customer's installation is connected through a distribution network. (EUR-Lex)

For civil damages, however, the decisive issues remain duty, breach, causation, actual loss, foreseeability, contractual limitations and applicable national law. The recent Aquind judgment is particularly useful because it confirms that even in a highly regulated interconnector dispute, an economic loss claim requires proof of unlawful conduct, actual damage and a causal link. (EUR-Lex)