DENMARK Law and Practice Contributed by: Erik Kjær-Hansen, Josephine Alsing and Victoria Krebs Dissing, Gorrissen Federspiel
cartel damages prior to this date, the claimant (injured party) bears the burden of proof in accordance with the general Danish rules on burden of proof. The Probative Value of Decisions by Danish and Foreign 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. According to Section 7 (2) of Competition Damages Act, a final decision by a national competition author - ity in an EU member state creates a presumption of an infringement in a follow-on damages action before the courts (see 2.3. Impact of Competition Authorities ). 2.5 Pass-On Defence According to Section 10 (1) of the Competition Dam - ages Act, it is possible for the defendant (infringer) to invoke the pass-on defence – ie, that the loss result - ing from the competition law infringement has been passed on to the next market level. In this case, the defendant bears the burden of proof for the pass-on defence (see Section 10 (2) of the Competition Dam - ages Act). 3. Limitation Periods and the Duration of Litigation 3.1 Statute of Limitations Five-Year Relative Limitation Period Following the implementation of the EU Damages Directive (2014/104/EU) into Danish law, the relative statutory limitation period for private competition damages claims has been extended from three to five years (see Section 15 (1) of the Competition Damages Act). According to Section 15 (2) of the Competition Dam - ages Act, the limitation period commences 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 of the defendant (infringer) and the fact that the behaviour consti - tuted an infringement of competition law; • the harm caused by the infringement to the claim - ant (injured party); and • the identity of the infringer (defendant). The five-year period is temporarily suspended if a competition authority initiates an investigation or proceeding in respect of the infringement of compe - tition law to which the action for damages relates (see Section 15 (4) of the Competition Damages Act). The suspension remains effective for one year after the decision on the infringement has become final or the In addition to the five-year limitation period, an abso - lute ten-year limitation period also applies to com - petition law damages claims (see Section 15 (3) of the Competition Damages Act). The absolute ten-year period is calculated from the point in time at which the infringement ceased and is thus not dependent on when the injured party became aware of its claim. 3.2 Typical Length of Private Antitrust Litigation There are no official statistics on the duration of private antitrust litigation. The total duration of the process – from the initiation of the proceedings until a judgment is rendered – largely depends on the complexity of the case and whether expert appraisal is relevant. Further, the duration depends on the workload of the specific court handling the case. Typically, relatively simple cases (without, in particular, the need for expert appraisal) in the first instance take approximately two to three years. For complex mat - ters, the duration of the proceedings is often signifi - cantly longer. It is not unusual that such proceedings take approximately five years or more. The duration of an appeal is usually around two years. case has otherwise been concluded. Ten-Year Absolute Limitation Period
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