DENMARK Law and Practice Contributed by: Christian Monberg, Simon Evers Hjelmborg, Ann Sophie Juul Hird and Linn Dyrgaard Stinus, Accura Advokatpartnerselskab
3.3 Corporate Liability The relevant provisions on corporate liability are found in Sections 25–27 of the Criminal Code. Generally, legal entities can only be held responsible and sanctioned with fines when the relevant provi - sions warrant corporate liability (Section 25 of the Criminal Code). The rules on corporate liability apply to all legal entities regardless of corporate form unless otherwise stated, including public and private limited companies, part - nerships, associations, foundations, estates, munici - palities, state authorities, and, in certain cases, one- man businesses (Section 26 of the Criminal Code). However, municipalities and state authorities can only be punished for offences committed in the exercise of activities that correspond to or can be equated with activities carried out by private entities (Section 27 (2) of the Criminal Code). Liability for a legal entity requires that an offence has been committed in relation to the legal entity’s opera - tions which can be attributed to one or more persons associated with the legal entity or the legal entity as such. This entails a subjective requirement of intent or negligence (as in personal criminal liability) and can appear in two forms. Either: • as attribution to individuals associated with the legal entity; or • as attribution to the legal entity itself. If it cannot be proven that individuals associated with the company (typically management and/or employ - ees) exhibited culpable behaviour, or if it cannot be blamed on the company as such that the violation occurred, the legal entity cannot be held liable. Legal entities can be held liable for acts committed by executive employees as well as any other employee. Furthermore, the legal entity can be held liable if it is operated in a way that generates or strengthens the possibility of a violation. In general, executive owners or co-owners of a company are more likely to be held liable along with the legal entity since they have com - mon interests.
Attempts by legal entities can only be sanctioned when the penalty framework of the act allows for imposing a sentence exceeding four months of imprisonment on natural persons (Section 27 (1) of the Criminal Code). Because the legal entity is a “person” itself, both entities and persons can be held liable for the same violation. This is particularly relevant if management or a senior employee has acted intentionally or with gross negligence. In such cases, charges are typically brought against both the company and the leading individuals who can be held responsible. Charges against subordinate employees are generally not pur - sued unless there are special circumstances, such as a serious offence committed intentionally and pos - sibly on their own initiative. In such cases, however, charges are also brought against the company. As a main rule under Danish law, a successor entity can be held liable for the offences by the original enti - ty. In the event of a merger, the principle of universal succession applies, meaning that the criminal liability from the transferring company is transferred to the receiving company. Changes to the company’s struc - ture or beneficial owners does not prevent the com - pany from being held criminally liable. In situations where the liable company has been divided after hav - ing committed an offence, the placement of respon - sibility depends on whether one of the new entities can be said to be continuing the part of the offending company that is relevant to the committed act. The Criminal Code does not provide for any specific defences in relation to corruption and bribery offences besides the common defences which can be used in relation to almost all criminal offences (self-defence, stress of necessity, being a minor, or being in a mental state of exception). 4.2 Exceptions There are no defences available to the violations under the Criminal Code. As such, there are no exceptions. 4. Defences and Exceptions 4.1 Defences
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