DENMARK Law and Practice Contributed by: Erik Kjær-Hansen, Josephine Alsing and Victoria Krebs Dissing, Gorrissen Federspiel
In Denmark, both standalone and follow-on claims are available. Currently, claims are predominantly brought as follow- on cases, as infringement decisions adopted by the EC and the Danish competition authorities are binding on the courts in a subsequent action for damages. Further, a final infringement decision by a competi - tion authority in another EU member state creates a presumption of an infringement of competition law in a subsequent action for damages. Lately, however, there has been an increase in standalone claims, which are available for any kind of breach of competition law. 2.2 Courts Antitrust cases are heard before the civil courts. There are three levels of civil courts in Denmark: • 24 district courts; • two High Courts (the Western High Court and the Eastern High Court); and • the Supreme Court, which is the highest court in Denmark. In addition, there is a specialised Maritime and Com - mercial High Court, which only deals with certain types of cases, including cases where the application of competition rules is of significant importance. All courts are competent to hear actions for damages related to competition law infringements. However, a party may choose to bring the case before the Mari - time and Commercial High Court instead of a district court – regardless of the value of the matter in dispute ‒ as long as the application of competition rules is of significant importance. In Denmark, most cases concerning a breach of Dan - ish or European competition law are heard by the Maritime and Commercial High Court as the court of first instance. Appeal cases are tried at one of the High Courts, depending primarily on the geographical location of the parties involved. Cases may only be brought before the Supreme Court upon the grant - ing of permission by the Appeals Permission Board ( Procesbevillingsnævnet ). However, 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 (see 12. Appeals ). 2.3 Impact of Competition Authorities The Effect of Decisions Made by Danish National Competition Authorities According to Section 7 (1) of the Competition Dam - ages Act, a final decision rendered by the Danish com - petition authorities regarding an infringement of com - petition law is binding in a follow-on damages action before the courts. Thus, the question of unlawfulness cannot be re-examined during the damages action. A final decision on infringement may consist of a final administrative decision, a final criminal judgment, or an accepted criminal or administrative fine notice. The Effect of Decisions Made by Foreign National Competition Authorities According to Section 7 (2) of the Competition Dam - ages Act, a final decision by a national competition authority in an EU member state creates a presump - tion of infringement in a follow-on damages action before the courts. The Role of Danish Competition Authorities in Antitrust Proceedings Before the Courts In accordance with Section 12 (2) of the Competition Damages Act, the Danish competition authorities may – at the court’s request ‒ assist in quantifying damages in connection with an action for damages. 2.4 Proof Burden of Proof Under Danish law, the burden of proof generally rests upon the claimant. As a general rule, a claimant must therefore prove an alleged breach of competition law and – in the case of an action for damages – the exist - ence and amount of the loss. However, Section 12 (1) of the Competition Damages Act establishes a statutory presumption that dam - age/harm has occurred in cartel cases ‒ although the defendant (infringer) may rebut that presumption. The statutory rebuttable presumption only applies to infringements after 27 December 2016, when the Competition Damages Act entered into force. For all
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