Claim for compensation against the Danish State was time-barred

Case no. BS-23798/2018-HJR
Judgment delivered on 3 May 2019

B, retaining undivided possession of the estate left by A
vs.
The Ministry of Employment

The case concerned the issue of whether a claim for compensation against the Ministry of Employment raised by B, who retained undivided possession of the estate left by A, for incorrect implementation of EU law was time-barred.

The Supreme Court agreed that the claim for compensation was covered by the general three-year limitation period in the Danish Limitation Act, and that the loss, including the associated capital loss, for which compensation was claimed on the grounds that the then applicable provision in Section 2a(3) of the Danish Salaried Employees Act denied A the right to severance pay in contravention of EU law, had to be regarded as having been suffered when A retired on 30 June 2009. The claim for compensation against the Ministry of Employment was thus time-barred when the writ was filed against the Ministry on 30 June 2014, unless the limitation period should be regarded as suspended or postponed.

Like the High Court, the Supreme Court based its decision on the fact that no third-party notice had been provided to the Ministry of Employment before the case was instituted, which led the Supreme Court to agree that the limitation period could not be regarded as having been suspended. The Supreme Court found that the mere fact that a Danish scheme proves to be in violation of EU law does not constitute exceptional circumstances that would justify a suspension of the limitation period, and that there were no other exceptional circumstances that would warrant an exceptional suspension of the limitation period due to an error of law. Finally, the Supreme Court agreed that the EU law principle of effectiveness did not preclude the use of the general three-year limitation period on the claim for compensation raised against the Ministry of Employment.

Accordingly, the claim for compensation was time-barred.

The High Court had reached the same conclusion.