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The Western Division of the Danish High Court had previously acquitted a Danish municipality in a case where the municipality’s mechanical ditch cleaners had caused damage to a telecommunications cable situated in a roadside ditch.
On 12 October 2020, the Danish Supreme Court handed down its judgment and affirmed the High Court’s judgment.
The main issue of the case was whether the municipality according to Section 9 (1) of the Danish Cable Owners Act (in Danish: “Ledningsejerloven”) should have obtained information from the Danish Register of Underground Cable Owners before performing the ditch clean-up.
In order to decide on the issue, the Supreme Court was to consider if the clean-up performed constituted “excavation” in such way as the term is set out in the Danish Cable Owners Act.
The five Supreme Court judges split into two groups. The majority of three judges took into account what they interpreted as a natural linguistic understanding of the word excavation. On those grounds, they did not find that the term comprises any earthworks made at surface level. The majority of judges referred to the legislative history to Section 9 of the Act listing several examples such as shooting pipes through the earth, drilling holes, and depth ploughing of pipes, poles, plugs or spears. This, compared to the ditch-cleaner at issue, which was not made for digging, however only for removing leaves, grass cuttings and other soft items from the ditch, and only with a working depth of maximum 10 cm, entailed that the majority of the Supreme Court judges agreed with the High Court that the municipality’s work of cleaning up the ditch did not constitute any excavation as set out by the Danish Cable Owners Act.
The minority of the Supreme Court judges, who found that the municipality had acted in a way giving rise to liability, took into account the same legislative history to the Cable Owners Act, but also referred specifically to the preamble of the Act about preventing damage during excavation (as the one in the above case).
In particular, the minority referred to the fact that in 2009 the scope of application of the Act was extended, thereby introducing an option for exempting the duty to obtain information from the Register of Underground Cable Owners in connection with certain types of excavation. The legislative history to this extension of the Act set out that ordinary soil cultivation and earthworks made at surface level would be exempt. On those grounds, the minority found that a ditch clean-up subject to a working depth of 10 cm should be interpreted as excavation in terms of the Act. Since the minority also found that there was no evidence that the damage would have occurred even if the municipality had obtained information from the Register, the minority would [still] have found that the municipality had acted in a way giving rise to liability.
The judgment is an interesting example of the schism between the common understanding of the provisions of an act and the explicit preamble of an act.
Hence, it is interesting that the majority of the Supreme Court judges took into account the interpretation of the term excavation and thereby took into account the natural linguistic understanding of the term, whereas the minority of judges took into account the preamble of the Act compared with a paragraph in the explanatory notes in which ordinary soil cultivation and earthworks made at surface level are presumed to be recognised as excavation.
The judgment will have great practical impact for the municipalities of Denmark and other ditch-cleaning operators performing ditch clean-ups and similar maintenance works, since said operators can avoid becoming affected by the Cable Owners Act, and may thereby circumvent from the duty to obtain information from the Register of Underground Cable Owners, including to obtain an excavation permission.
Hence, the municipalities may carry on their practice in this field without being imposed with additional, time-consuming administrative work and costs.
Holst, Advokater represented the municipality in question during the proceedings before the High Court and before the Supreme Court. Any questions about the case may be directed to me.
The judgment delivered by the Danish Supreme Court is available here (in Danish): https://www.holst-law.com/Admin/Public/DWSDownload.aspx?File=%2fFiles%2fFiler%2fPdf%2fDomme%2fH%c3%b8jesterets+dom+af+12-10-2020.pdf
Jacob Fenger, Partner
M: +45 3010 2227