1 Legal framework
1.1 Which laws regulate competition in your jurisdiction?
The legal framework for competition law in Denmark comprises:
- the Competition Act;
- the Competition Damages Act; and
- a number of executive orders on specific matters.
In addition, certain sectors are governed by sector-specific competition regimes – for example:
- the food supply chain;
- payment services; and
The Danish competition rules to a large extent mirror EU competition law and are interpreted in accordance with the case law of the Court of Justice of the European Union and the decisional practice of the European Commission.
1.2 Which authorities are responsible for enforcing the competition legislation? What is their general approach to enforcement?
Three different authorities are engaged in competition cases, depending on the nature of the case:
- the Competition and Consumer Authority (CCA);
- the Competition Council; and
- the Special Crime Unit.
The CCA is responsible for enforcing the Competition Act and EU competition law in cases where agreements or conduct affects trade between member states.
The Competition Council has overall responsibility for the CCA's administration of the Competition Act and renders decisions in cases of principle or of particular importance.
The Special Crime Unit investigates competition cases concerning individuals' participation in company infringements of competition law.
The CCA's general approach to enforcement is based on the following criteria:
- the gravity of the infringement;
- the expected impact on the market;
- the competitive landscape and the economy as such;
- the importance of the case (ie, whether it involves an issue that has not previously been clarified in legal practice); and
- the expected resource required.
Like most other national competition authorities, the CCA prioritises restrictions of competition ‘by object'; however, both horizontal and vertical restrictions are deemed an enforcement priority and the CCA investigates a relatively high number of resale price maintenance cases annually. Relatively few cases concern abuse of a dominant position.
2 Private claims
2.1 What types of private claim may be brought for breach of competition law in your jurisdiction?
A party to a decision rendered by the competition authorities may bring a civil action for annulment before the courts.
In addition, the following types of private claims are possible:
- an action for declaration (eg, brought by either party in a refusal to supply conflict);
- an action for injunction before the ordinary courts or the enforcement court (eg, brought by customers and/or competitors in cases concerning discriminatory pricing or by competitors in cases concerning predatory pricing); and
- a claim for damages suffered as a consequence of breach of competition law (eg, brought by the customers of cartel participants).
2.2 What is the legal basis for bringing a claim for breach of competition law?
The legal basis for bringing a claim for breach of competition law depends on the nature of the claim.
The legal basis for an action for the annulment of a decision by the competition authorities is Section 20(3) of the Competition Act, which provides that decisions of the Competition Appeals Tribunal (CAT) or of the Competition and Consumer Authority must be brought before the courts no later than eight weeks after the party in question has been notified about the decision. After the amendments in the Competition Act in 2021, transposing the ECN+ Directive, an appeal to the CAT is no longer mandatory and decisions of the Competition Council can thus be brought directly before the ordinary courts.
A claim for breach may be brought before the ordinary courts without the involvement of the competition authorities. The basis for such claim is derived from the substantial competition provision relevant to the case at hand. Under Danish law, private persons or companies are generally not entitled to invoke legislation passed in the general interest of the public (actio popularis). However, in relation to a breach of competition law, it is generally accepted that any person or company with a specific legal interest in the breach may bring an action.
The legal basis for a claim for damages due to breach of competition law is set out in:
- the Competition Damages Act, which transposed the EU Damages Directive (2014/104/EU) into national law; and
- the Danish common legal principles on damages.
3.1 Who has standing to bring a claim for breach of competition law?
The basic principle in Denmark is that parties with a legal interest in a case have standing to bring a claim for breach of competition law.
In practice, a customer, competitor or supplier which is individually affected by the breach in question may bring an action.
In relation to a claim for damages, any natural or legal person that has suffered a loss caused by an infringement of competition law can bring a claim. This may, for example, be customers, competitors or suppliers.
3.2 Can a claim for breach of competition law be brought against parties outside the jurisdiction?
A claim for breach of the Competition Act can be brought against parties outside Denmark if the anti-competitive conduct claimed in breach of competition law affects the Danish market.
If the violation has an effect on the Danish market, the rules of the Competition Act apply.
If the violation also affects trade between EU member states, Article 101 or 102 of the Treaty on the Functioning of the European Union also applies.
3.3 Can a claim for breach of competition law be brought against individuals, or only companies?
According to Section 2(1) of the Competition Act, the act applies to any form of undertaking. Hence, the prohibitions in Section 6 and 11 do not as such apply to individuals.
However, the term ‘undertaking' within the meaning of the act is interpreted broadly and includes any kind of economic activity. Thus, public entities, non-profits and other economic organisations established for other purposes than mere commercial purposes are subject to the act, regardless of their non-commercial character.
Collective bargaining on wages and working conditions is exempt from the act and unions undertaking such collective bargaining are not subjected to the Competition Act (Section 3). However, a distinction must be made between collective bargaining on wages and collective negotiation on pricing towards companies in the case of, for example, solo self-employed individuals. The European Commission's guidelines on collective agreements by solo self-employed persons will most likely be applied in Denmark in such cases.
Although individuals are not in themselves subject to the Competition Act, by means of participation, an individual can be fined (or imprisoned in case of cartel cases) for a company's competition law violations.
For instance, the authorities often bring charges against members of the executive management if they have participated in or failed to take action against anti-competitive practices/behaviour by the business.
4 Collective actions
4.1 Is it possible to bring a collective action for breach of competition law in your jurisdiction? If so, what is the applicable regime?
Consumers and companies may bring a class action for breach of competition law before the courts. In addition, it follows from Section 10 of the Competition Damages Act that the Consumer Ombudsman may act as a class representative of several neutral and/or legal persons which claim that they have suffered a loss caused by competition law infringements committed by one or more undertakings. The Consumer Ombudsman may only act as a class representative in a class action based on clear evidence of an infringement.
Class actions for breach of competition law are determent in accordance with Chapter 23a in the Administration of Justice Act.
Class action claims are instituted by filing a writ of summons with the court. In addition to what is described under question 10.2, such writ of summons must set out:
- a brief description of the class;
- information on how the class member can be identified and notified about the case; and
- a proposal for a group representative that is willing to take on the role of class representative.
The writ of summons can be filed by anyone that can be appointed as a class representative.
4.2 Do collective actions proceed on an ‘opt-in' or an ‘opt-out' basis?
In general, a class action only comprises claimants registered as members of the class (ie, ‘opt-in').
In special cases, the court may decide that the class action may include class members which are not included in the class action (ie, ‘opt-out').
4.3 Do collective actions require certification? If so, what requirements must be met to obtain certification?
As a general rule, the group representative is designated by the court. The following can be designated as a class representative:
- a class member;
- a public authority (if the law so empowers the authority);
- an association;
- a private institution; or
- another association of undertakings (when the class action falls within the scope of the association's purpose).
According to the Administration of Justice Act, a class action can be brought where:
- several persons have uniform claims against the same individual or entity;
- all claims have jurisdiction in Denmark;
- the court has jurisdiction over at least one of the claims;
- the court has jurisdiction in respect of the substance of the matter;
- a class action is deemed to be the best way to process the claims;
- the class members can be identified and appropriately notified about the case; and
- a class representative can be appointed.
5.1 In what forum(s) are claims for breach of competition law heard in your jurisdiction?
Most cases regarding breaches of competition law – including cases directly before the courts as well as cases regarding a decision rendered by the competition authorities – will be brought before or referred to the Maritime and Commercial High Court in Copenhagen.
Sanctioning cases regarding sanctions imposed on individuals are brought before the relevant city court.
6 Bringing a claim
6.1 What is the limitation period for claims for breach of competition law in your jurisdiction?
According to Section 23c of the Competition Act, the relative statutory limitation period applicable to fines imposed on undertakings and individuals is five years; whereas the ultimate statutory limitation period is 10 years.
The limitation periods are calculated from the time when the infringement ceased.
The five-year statutory limitation period (but not the 10-year period) is suspended from the date on which at least one undertaking is notified of a formal investigatory measure by the Competition and Consumer Authority (CCA), a national competition authority or the European Commission. This suspension will apply to all undertakings involved in the infringement.
According to the Competition Damages Act, the relative statutory limitation period applicable to damages claims is five years; whereas the ultimate statutory limitation period is 10 years.
The relative five-year period is calculated from the point in time at which:
- the infringement ceased; and
- the claimant became aware of, or ought to have become aware of:
- the anti-competitive behaviour and the fact that this behaviour constituted an infringement of competition law;
- the harm caused by the infringement of competition law to the claimant; and
- the identity of the infringing party.
The relative five-year period is suspended while a competition authority takes action to initiate an investigation or proceedings in respect of the infringement of competition law to which the action for damages relates.
The ultimate 10-year period is calculated from the point in time at which the infringement ceased.
6.2 What are the formal requirements for bringing a claim for breach of competition law?
Claims for actions for reversal or remittal of a decision of the Competition Council (CC) or the Competition Appeals Tribunal (CAT) can be appealed to the ordinary courts within eight weeks of receiving the decision (Section 20(3) of the Competition Act).
Actions for declaration or actions for injuncting before the ordinary courts or the enforcement court may also be brought before the courts, even if neither the CCA nor the CC has rendered a decision.
Claims for damages suffered as a consequence of a breach of competition law are regulated by the Competition Damages Act. Under this act, a claim for damages can be made by any person or company that has suffered damage due to a breach of competition law.
Proceedings before the ordinary courts are instituted by the filing of a writ of summons with the court (Section 348 of the Administration of Justice Act).
6.3 What are the procedural and substantive requirements for bringing a claim for breach of competition law?
Under the Administration of Justice Act, a proceeding is instituted by filing a writ of summons with the court. The writ of summons must include:
- the name and address of the parties;
- the name of the court in which the proceedings are instituted;
- the plaintiff's claim, the amount claimed, the type of case at hand, the plaintiff's civil registration number or business registration and a brief description of the case;
- a detailed description on the point of fact and law made by the plaintiff in support of its claim;
- the documents and other evidence on which the plaintiff intends to rely; and
- the plaintiff's proposal for the hearing of the case (Section 348(1) and (2)).
The writ of summons must be accompanied by copies of the documents on which the plaintiff intends to rely to the extent that such documents are in the plaintiff's possession (Section 348(4)).
Thereafter, the court will have the writ of summons served on the defendant based on the information provided in the writ of summons and inform the defendant that it has at least two weeks from the date of service to submit a statement of defence. Subsequently, the court will convene the parties to a pre-trial hearing (unless the court finds such hearing unnecessary); and will then set the final hearing date (Sections 350, 351 and 353).
6.4 What are the implications if a public enforcement action in relation to the same behaviour is pending? Can a claim still be brought?
In respect of damages claims, the right to compensation is independent of whether the CCA or the CC has established an infringement of the competition rules.
However, according to Section 7(1) of the Competition Damages Act, a final decision rendered by the Danish competition authorities (including accepted administrative fines and decisions appealed to and confirmed by a Danish court of law) regarding an infringement of competition law will be deemed irrebuttable in a follow-on damages action before the courts.
According to Section 7(2) of the Competition Damages Act, a final decision rendered by a national competition authority in another member state regarding an infringement of competition law will be deemed to establish a presumption of an infringement in a follow-on damages action before the courts.
Moreover, the Competition Damages Act entails a presumption that cartel infringements cause harm.
6.5 How is jurisdiction over the claim determined?
As a general rule, an infringement decision of the CC or the CAT should be brought before the relevant city court at the place where the party bringing the action lives or has its registered office. However, if the provisions of the Competition Act are of material importance (as is typically the case), the action may be brought before the Maritime and Commercial High Court in Copenhagen.
For other types of actions, a court will have jurisdiction over the claim if:
- the defendant lives or has its registered office within the jurisdiction;
- the claim relates to business conducted by the defendant within the jurisdiction;
- the claim relates to real estate which is situated in the jurisdiction;
- the claim relates to a contractual obligation which has been or must be performed within the jurisdiction (with the exception of payment obligations);
- the claim relates to a breach of competition law committed within the jurisdiction; or
- the parties have agreed to submit their dispute to the relevant city court.
For instance, this means that the fact that a breach of competition has been committed within its jurisdiction will automatically entitle a court to take on a competition law claim.
6.6 How is the applicable law determined?
The rules in the Competition Act apply if a violation has an effect on the Danish market.
6.7 Under what circumstances must security for costs be provided?
In Denmark, there are no obligations to provide security for costs. However, according to the Act on Court Fees, a court fee is payable upon institution of a civil claim or an enforcement proceeding.
In cases regarding prohibitory injunctions, the court will likely order the claimant to provide security for any damage and inconvenience that the other party may suffer as a result. The court determines the nature and amount of the security. The security must be provided in cash deposit or bank guarantee (a lawyer's representation is not sufficient).
6.8 Are interim remedies available in competition litigation? If so, how are they obtained?
The provisions of the Administration of Justice Act on prohibitory injunctions apply to competition law cases. According to the act, on application, the court may, by way of prohibitory or mandatory injunction, order private individuals and representatives of the Danish state, regions and municipalities in their capacity as parties to a private legal relationship to temporarily do, refrain from doing or tolerate certain actions.
A prohibitory or mandatory injunction may be granted if the party applying for the injunction proves, on a balance of probabilities or by clear and convincing evidence, that:
- the party holds the right for which protection by way of a prohibitory or mandatory injunction is sought;
- the conduct of the opposing party necessitates the granting of the injunction; and
- the ability of the party to enforce its right would be lost if the party had to await a full trial.
The enforcement court will not grant a prohibitory injunction if it finds that the general rules on damages and criminal liability of Danish law or any security provided by the defendant offers adequate protection to the claimant. Furthermore, even if the above conditions are satisfied, the enforcement court may refuse to grant a prohibitory injunction if the damage suffered by the defendant as a consequence of a prohibitory injunction would be disproportionate to the claimant's interests.
7 Disclosure and privilege
7.1 What rules apply to disclosure in your jurisdiction? Do any exceptions apply?
In general, each party must produce the evidence deemed necessary by such party and the court will only consider the evidence produced by the parties.
With regard to competition law matters, it is not possible to obtain disclosure of documents from the other party or third parties before proceedings begin. Nevertheless, it is possible to seek access to the files of public authorities.
During the proceedings, each party may request that the court order the other party, or any third party, to produce any evidence in its possession, subject to this evidence being identified and the request being proportional.
In respect of actions for damages in follow-on competition proceedings, the Competition Damages Act includes specific rules on disclosure. Accordingly, the court has authority to order the defendant or a third party to disclose relevant evidence within such parties control, subject to the rules in the Administration of Justice Act.
Moreover, Section 4(3) sets out that the court will limit the disclosure of evidence to that which is proportionate. In determining whether any disclosure requested by a party is proportionate, the court will consider the legitimate interests of all parties and third parties concerned.
Section 5(2) of the act further provides that the court may order the disclosure of the following categories of evidence only after the competition authority, by adopting a decision or otherwise, has closed its proceedings:
- information that was prepared by a natural or legal person specifically for the proceedings of a competition authority;
- information that the competition authority has drawn up and sent to the parties in the course of its proceedings; and
- settlement submissions that have been withdrawn.
However, according to Section 5(3) of the act, the court cannot order disclosure of leniency statements or settlement submissions.
Finally, evidence obtained solely through access to the file of a competition authority will be rejected until the authority has rendered a final decision.
7.2 What rules on third-party disclosure apply in your jurisdiction?
According to the Administration of Justice Act, the court may request a third party to issue or hand over documents that are at its disposal and that have importance to the case unless this would reveal information about a matter that it would be excluded from or exempted from giving evidence about as a witness.
If a third party fails to comply with the request of the court, the court may:
- impose a fine on the third party;
- order the police to bring the documents to the court;
- order the third party to pay the costs occasioned by the witness;
- impose a continuous fine on the third party for a maximum period of six months, consecutively or in the aggregate, in the same proceedings; or
- order the police to take the third party into custody.
7.3 What rules on privilege apply in your jurisdiction?
The principle of legal professional privilege is a legal concept that protects communications between a client and its attorney. The principle is well integrated in the common law countries, but in Denmark, it does not exist as a general and independently regulated legal framework outside the criminal procedure. However, the principle can be derived from a combination of:
- attorneys' confidentiality obligations;
- the witness exemption for attorneys;
- the rules of the European Convention on Human Rights;
- the practice of the European Court of Human Rights; and
- administrative practice.
In competition law matters, legal professional privilege follows from Section 19 of the Competition Act, case law and the Competition and Consumer Authority's (CCA) guidelines on dawn raids. As regards dawn raids, the CCA therefore follows the EU principle of protecting the confidentiality of correspondence between a company and its external lawyers.
8.1 What types of evidence are permissible in your jurisdiction? Is expert evidence accepted?
In civil proceedings, a party may request the court to commission an expert report on one or more questions. The request must include details about the subject matter of the expert report as well as the purpose of the exercise. The questions to the expert may be enclosed with the request (Section 196).
When the court has decided whether to commission an expert report, the party that has submitted the request must forward its questions to the expert to the court, if those questions were not enclosed with the request. The other party must then submit its own questions, if any, to the court (Section 197).
Once the court has received the questions from the parties, it will take steps to appoint one or more court-appointed experts. If so deemed appropriate by the court, having regard to the nature of the case and of the questions to be answered, it may appoint two or more experts to answer the same questions (Section 198).
Besides court-appointed experts, statements on concrete matters of a technical, financial or similar character which a party has obtained from experts before the start of the case can be presented as evidence unless the content of the statement, the circumstances or its creation or other circumstances provide a basis for deviating from the starting point. However, the court is not bound by such expert evidence (Section 341a).
In respect of actions for damages in follow-on competition proceedings, the Competition Damages Act includes specific rules on evidence. Accordingly, the court has the authority to order the defendant or third party to disclose relevant evidence within such parties' control, subject to the rules in the Administration of Justice Act (Section 4(1)). For more information, see question 7.1, in which the rules are further described.
8.2 What is the applicable standard of proof?
As a general rule, the claimant bears the evidential burden of proof. This means that a claimant generally must prove:
- an alleged breach of competition law; and
- in the case of an action for damages, the existence and amount of the loss in Denmark.
However, according to Section 7(1) of the Competition Damages Act, a final decision rendered by the Danish competition authorities regarding an infringement of competition law will be deemed irrebuttable in a follow-on damages action before the courts. And according to Section 7(2), a final decision rendered by a national competition authority in another member state regarding an infringement of competition law will be deemed to establish a presumption of an infringement in a follow-on damages action before the courts.
Moreover, according to Section 12(1) of the Competition Damages Act, it is presumed that cartel infringements cause harm, but the infringer may rebut that presumption.
8.3 On whom does the burden of proof rest?
In general, the burden of proof lies on the claimant. See question 8.2.
8.4 What defences are typically available in competition litigation?
With regard to a potential violation of competition law, an undertaking may claim that an agreement generates objective economic benefits that outweigh the negative effects of the restriction of competition and consequently is exempt from the prohibition laid down in Section 6 of the Competition Act.
According to Section 8 of the Competition Act, such as Article 101(3), there are four conditions that the agreement must fulfil:
- It must contribute to improving the production or distribution of goods or to promoting technical or economic progress;
- Consumers must receive a fair share of the resulting benefits;
- The restrictions must be essential to achieving these objectives; and
- The agreement must not give the parties any possibility of eliminating competition in respect of substantial elements of the products in question.
An undertaking may also have the possibility to claim that the anti-competitive agreement or practice is a direct or necessary consequence of public regulation.
In terms of claims for damages, it is possible for an infringer to invoke the passing-on of actual loss as a defence against a claim for damages. Pursuant to the Competition Damages Act, it is the infringer that must prove the existence and extent of pass-on of the overcharge.
9.1 Can the proceedings be discontinued without a full trial? If so, how; and what are the implications?
Yes, the parties do not need permission from the court to discontinue proceedings.
According to Section 13 of the Competition Damages Act, the court may suspend the proceedings for up to two years where the parties thereto are involved in consensual dispute resolution concerning the claim covered by that action for damages. If the injured party enters into a consensual settlement with the infringer of the competition law, the claim of the settling injured party is reduced by the settling co-infringer's share of the harm that the infringement of competition law upon the injured party (Section 14(1)). Any remaining claim of the settling injured party will be exercised only against non-settling co-infringers. Non-settling co-infringers will not be permitted to recover contributions for the remaining claim from the settling co-infringer (Section 14(2)).
By way of derogation, if the non-settling co-infringers cannot pay the damages that correspond to the remaining claim of the settling injured party, the settling injured party may exercise the remaining claim against the settling co-infringer. However, the derogation may be expressly excluded under the terms of the consensual settlement agreement (Section 14(3)).
When the court determines the amount of recourse contribution that a co-infringer may recover from any other co-infringer, it will take into account any damages paid pursuant to a prior consensual settlement involving the relevant co-infringer (Section 14(4)).
9.2 In the case of collective actions, is collective settlement possible? If so, how; and what are the implications?
A collective settlement by the representative body is permitted but must be accepted by the court in order to be valid. The court must accept the settlement unless it discriminates between the claimants represented by the representative body or is prima facie unreasonable.
10 Court proceedings
10.1 Are court proceedings in your jurisdiction public or private? If the former, are any options available to the parties to keep the proceedings or related information confidential?
As a starting point under the Administration of Justice Act, all court hearings are open to the public. According to Section 65 of the Constitution, civil and criminal cases are heard in public to the widest possible extent.
However, the Administration of Justice Act further provides that the court can decide that a case should be heard behind closed doors if:
- the considerations of peace and order in the courtroom so require it;
- the state's relationship with foreign powers or special consideration for these otherwise require it; or
- a public hearing would expose someone to an unnecessary violation, including when an explanation about trade secrets must be given.
10.2 How do the court proceedings unfold in your jurisdiction?
Generally, cases are brought primarily before the district court. However, if the subject matter is of general public importance, the case can start in one of the two high courts. Furthermore, some specific cases can be brought before the Maritime and Commercial Court, – for example, in cases where the application of the Competition Act is of significant importance.
As mentioned in question 6.3, proceedings are instituted by filing a writ of summons with the court. For further information, regardless of the required content of the writ of summons, see question 6.3, in which the procedural and substantive requirements for bringing a claim are further outlined.
10.3 What is the typical timeframe for proceedings?
The timeframe for proceedings has increased over the past five years. The courts have received more complicated and complex cases, and COVID-19 has resulted in longer timeframes for proceedings. In 2020 to 2021, the average timeframe for civil lawsuits increased by 1.9 months and 14.6 months in the district courts and the High Court respectively, such that the average timeframe for proceedings is now 12.7 months and 36.8 months respectively. With regard to civil appeal cases, the average timeframe is 10.2 months in the High Court and 10.8 months in the Supreme Court.
Given the typical complexity of competition law cases, it is likely to take at least 18 to 36 months from the date on which an action is filed with a court of first instance (the city court or the Maritime and Commercial High Court in Copenhagen) until a judgment is delivered.
If the decision is appealed, it may take an additional 12 to 36 months before a final judgment is delivered.
10.4 What rules apply to the joinder of third parties?
According to the Administration of Justice Act, where a third party has a legal interest in the outcome of an action, that third party may join the proceedings in support of one of the parties.
Similarly, if the outcome of the legal issues involved in the proceedings is of significant importance to how the public administration hears the same or similar issues, the relevant public authority may join the proceedings if this will not cause considerable inconvenience to the proceedings. The court will direct how the party joining the proceedings can participate in the proceedings and the procedural evidence.
As a starting point, where a third party is joining the proceeding in support of the parties, it does not become a party to the case and cannot be awarded legal costs or have them imposed against it. However, the court may award costs to or against the third party joining the proceedings.
10.5 To what extent do the decisions of national or foreign competition authorities influence the court's decision?
With respect to a claim for damages, a final decision rendered by the Danish competition authorities (including accepted administrative fines and decisions appealed to and confirmed by a Danish court of law) regarding an infringement of competition law will be deemed irrebuttable in a follow-on damages action before the courts (Section 7(1) of the Competition Damages Act).
According to Section 7(2) of the Competition Damages Act, a final decision rendered by a national competition authority in another member state regarding an infringement of competition law will be deemed to establish a presumption of an infringement in a follow-on damages action before the courts.
11.1 What remedies are available in competition litigation in your jurisdiction?
The following types of remedies are available:
- invalidity and non-enforceability;
- fines for companies; and
- fines and imprisonment for individuals
Furthermore, companies that infringe the Competition Act risk being excluded from practising in public tender procedures.
Invalidity and non-enforceability: As a starting point under the Competition Act, agreements and decisions that are anti-competitive will be void unless exceptions apply (Section 6(5)). However, it is only those specific anti-competitive provisions in the agreement or similar that will be void.
Injunctions: The Competition and Consumer Authority may issue injunctions with a view to putting an end to the infringement, including behavioural or structural injunctions, which may include an obligation, for example:
- to terminate agreements, decisions or trading conditions in full or in part;
- not to exceed stated prices or profits; or
- to calculate prices or profits according to specified calculation rules.
Damages: Customers or others that have suffered losses due to an infringement of the Competition Act may initiate proceedings for compensation.
Fines for companies: Companies that intentionally or through gross negligence infringe the Competition Act may be sanctioned with fines. When fines are calculated, the starting point is the gravity and duration of the infringement. The turnover of the companies concerned is also considered. The size of the fine increases with the duration of the infringement (Section 23b of the Competition Act). However, the fine cannot exceed 10% of the relevant worldwide turnover in the financial year before the decision (Section 23b(4) of the Competition Act).
Fines and imprisonment for individuals: Individuals that intentionally or by gross negligence infringe the Competition Act (by participation) may be sanctioned with fines. The fines are calculated based on the gravity and duration of the infringement (Section 23b of the Competition Act).
- in intentional cartel cases, individuals can be subject to imprisonment for up to one year and six months; and
- in case of particular aggravating circumstances, the maximum penalty is imprisonment for up to six years.
11.2 Are punitive damages awarded in your jurisdiction?
Punitive damages are not awarded in regard to claims for damages caused by an infringement of competition law. According to the Competition Damages Act, any natural or legal person that has suffered harm caused by an infringement of competition law can claim and obtain full compensation for that harm. However, full compensation may not lead to overcompensation, whether by means of punitive, multiple or other types of damages.
11.3 Will the courts consider any fines imposed by the competition authorities in deciding on the quantum of damages? What other factors will it consider in this regard?
No. Any fine paid is not taken into consideration in respect of damages awarded.
12.1 Can the decision of the court or tribunal be appealed? If so, on what grounds and what is the process?
In Denmark, the legal system is based on a two-instance principle: that is, the parties to a case can generally appeal the ruling of one court to a higher instance. In addition, the Appeals Permission Board may grant third-instance permission to appeal.
A judgment of a city court or of the Maritime and Commercial High Court in Copenhagen may be appealed to the High Court within four weeks of issue. In certain specific cases, a judgment of the Maritime and Commercial High Court may be appealed directly to the Supreme Court as the court of the second instance.
13 Costs, fees and funding
13.1 What costs and fees are incurred when litigating in your jurisdiction? Can the winning party recover its costs?
Costs in respect of litigation in Denmark are usually considered relatively low compared to those in other jurisdictions.
The winning party is typically awarded cost recovery by the courts; however, the recovery order rarely covers all cost incurred.
Only costs that have been necessary for the adequate conduct of the case are deemed to constitute recoverable costs. Legal fees or costs for assistance by a person representing by the party are recoverable by a reasonable amount, while other costs are recoverable in full.
13.2 Are contingency fees and similar arrangements permitted in your jurisdiction?
According to the Code of Conduct for the Danish Bar and Law Society, a lawyer cannot make a pactum de quota litis – that is, agree to receive a share of any result achieved by the client upon the conclusion of the case.
However, a lawyer can in most cases take into account the result of the case at hand.
13.3 Is third-party funding permitted in your jurisdiction?
Third-party funding is unregulated in Denmark, but is generally considered legal if both the general rules of procedural law and the rules of legal ethics are complied with.
Third-party funding is often provided in lawsuits involving compensation claims with a high financial value and the possibility of insurance coverage. In Denmark, cases regarding alleged misinformation to the stock market and alleged misleading information in a public offering circular or prospectus have also attracted third-party funding.
14 Trends and predictions
14.1 How would you describe the current competition litigation landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?
The election for the parliament has recently been held in Denmark, but the composition of the government has not yet been settled.
From the pre-election legislative program (suggested by the former government), it follows that the government proposes amendments to the Competition Act, which include obligations to notify certain mergers below relevant thresholds, a market investigation tool, and certain amendments to statute of limitations, etc.
15 Tips and traps
15.1 What would be your recommendations to parties facing competition litigation in your jurisdiction and what potential pitfalls would you highlight?
Any natural or legal person that has suffered damage due to an infringement of competition law is entitled to full compensation for such damage. A claimant may also seek interest on any grant of damages – generally from the date the infringement occurred to the date of the court's judgment (Section 3(3) of the Competition Damages Act).
In Denmark, interest in litigation is relatively high compared to other jurisdictions. Pursuant to the Interest Act, the interest is determined as an annual interest rate corresponding to the established reference rate with a supplement of 8%. The reference rate is considered to be the official lending rate that the Central Bank of Denmark has set per 1 January and 1 July, respectively, of the year in question.
Amanda Lundby Langer contributed to this Guide.
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