Skip navigation

Denmark

Author: Anders Schäfer

I. Factsheet

Scope

There is a horizontal mechanism which allows injunctive and compensatory relief. Other types of mechanisms include joinder of parties and representative actions (which allow injunctive and compensatory relief).

Standing(Para. 4-7)

Class Action

The representative may be:

(1) a member of the class (private group action),

(2) an association, private institution or other organisation when the action falls within the framework of the organisation's object (organisational group action), or

(3) by a designated public authority (public group action).

Representative action

The requirement of legal interest. When actions are commenced, the court may demand security. Conditions laid down in para. 4 (a)-(c) of the Recommendation are to be satisfied. If any of the conditions are no longer applicable, the representative entity loses its status.

Admissibility

(Para. 8-9)

Class actions can be brought when 7 conditions are met: (1) there is a common claim, (2) there is a venue for all of the claims in Denmark, (3) the court is the venue for one of the claims, (4) the court possesses the requisite expertise to deal with one of the claims, (5) class actions are judged to be the best manner of handling the claims (class action is secondary), (6) the members of the class can be identified and informed of the case in an appropriate manner, and (7) a class representative as per Section 254c of the DAJA can be appointed (see section b). According to case law, the decisive criteria will often be "similar claims" and "the best manner of handling the claims".

Problems/Incompatibilities with Recommendation principles

Deciding on procedural issues, including approval of the class action, size of security and identification of the group may delay the legal process.

The preliminary stage of a class action takes a very long time and maybe also too long.

Information on Collective Redress

(Para. 10-12, 35-37)

Information is provided in a form specified by the court. That may include that the notification is made in whole or in part via public announcement and the court can require the class representative to carry out the notification. The costs of the notification are paid in the first instance by the class representative.

A summary of all pending class actions in Denmark can be viewed on the Danish Court Administration's website at www.domstol.dk.

Funding

(Para. 14-16)

The group representative may apply for free process for the entire group action to the Department of Civil Affairs. Private legal aid covered by insurance companies possible.

Third-party funding is not prohibited but does not seem widespread in practice. There is no specific regulation.

Problems/Incompatibilities with Recommendation principles

Since third-party funding is self-regulated and not (yet) common, it is not clear whether and how the courts ensure compliance with the Recommendation.

Cross Border Cases

(Para. 17-18)

No limitation as to the nationality of the group members or group representative. The court's decision in class actions based on the Opt-Out model only have a binding effect on class members who could have been sued in Denmark for the claim in question when the case was first brought.

Expedient procedures for injunctive orders (Para. 19)

National legislation not requiring to treat claims for injunctive orders with all due expediency. All civil claims (injunction and damages) are treated according to the same general rules in the Danish Administration of Justice Act (Third book). Interim measures are possible

Problems/Incompatibilities with Recommendation principles

No national legislation requiring treatment of injunctive orders with due expediency.

Efficient enforcement of injunctive orders (Para. 20)

Sanctions for non-compliance with the injunction order possible: Anyone who deliberately violates a prohibition or injunction may be sentenced to a fine or imprisonment for up to 4 months, and in connection with this, be ordered to pay compensation. The size of fines is according to case law between 2000 - 3500 EUR (no max sanction).

All areas covered.

Opt-In/Opt-Out (Para. 21-24)

Both the Opt-In and Opt-Out model is available under Danish law. Only a designated public authority (currently only the consumer ombudsman) may bring an Opt Out class action.

The court sets a deadline for the class members to opt-in or out (exceptions for extenuating circumstances). Opt-Out is only available if it is clear that the claims cannot be expected to be promoted by individual actions, and it is assumed that a group action with registration will not be an appropriate way of dealing with the claims.

Collective ADR and Settlements

(Para. 25-28)

Judicial approval is required for any out of court settlement agreement. The court will approve the settlement unless it discriminates against some class members or is otherwise patently unfair.

Costs

(Para. 13)

Loser pays principle applies, however, the court has a wide discretion as to what is "reasonable".

Lawyers' Fees

(Para. 29-30)

Contingency fees are prohibited.

Prohibition of punitive damages

(Para. 31)

Punitive or extra-compensatory damages are prohibited.

Collective Follow- on actions

(Para 33-34)

Compensatory collective redress starts only after the final injunction/declaratory

decision on a breach of law - Commonly in consumer and competition law.

Compensatory collective redress to avoid conflicting with ongoing injunction/declaratory decision on a breach of law is not always possible.

Problems/Incompatibilities with Recommendation principles

Not always possible to wait until the decision from the public authority has become final to commence follow-on claim.

The Interplay between injunctions and compensation across all sectors

It is possible to seek injunction and compensation within one single class action.

It is possible to rely on an injunction in a separate follow-on individual or collective damages action if the parties are the same in both cases.

News

The Law and You: Consumer Redress and SMEs

The Law and You: Consumer Redress and SMEs...

News

Merricks v Mastercard Inc : Collective Actions Re-invigorated

Merricks v Mastercard Inc : Collective Actions Re-invigorated...