DENMARK Law and Practice Contributed by: Erik Kjær-Hansen, Josephine Alsing and Victoria Krebs Dissing, Gorrissen Federspiel
4. Class and Collective Actions 4.1 Statutory Basis
Section 11 (2) of the Competition Damages Act states that the indirect purchaser will be deemed to have proved the passing-on if the indirect purchaser proves that: • the infringer has committed an infringement of competition law; • the infringement resulted in an overcharge to the direct purchaser; and • the indirect buyer has purchased the goods or services that were the object of the competition law infringement or has purchased products or services deriving from such goods or services. This provision does not apply if the infringer is able to prove to the court that the overcharge has not been passed on in whole or in part to the indirect purchaser (see Section 11 (3) of the Competition Damages Act). 4.4 Class Certification The procedure for bringing a class action for breach of competition law is identical to any other court case. Thus, a class action suit begins by filing a writ of sum - mons, which must set out: • a brief description of the case and the group; • information on how the members of the group 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 only difference in a class action suit is that the claimant in the writ of summons must also request that the court processes the claim in accordance with the rules of class actions. 5. Choice of Jurisdiction 5.1 Rules on Jurisdiction and Applicable Law Under Danish law, as a general rule, a defendant must be sued in the district court where the defend - ant resides (natural person) or where the main office is located (legal persons). In addition, the Administration of Justice Act contains a provision (Section 246 (1)) on supplementary juris - diction. According to this provision, a lawsuit can be
In Denmark, consumers and companies may bring a class action for breach of competition law before the court. Moreover, pursuant to Section 16 of the Competition Damages Act, the Danish Consumer Ombudsman is authorised to act as a representative in class actions regarding losses caused by competi - tion law infringements. Class actions, including class actions regarding com - petition law infringements, are regulated in Chapter 23a of the Administration of Justice Act. 4.2 Opting In or Out Opt-in and opt-out class action suits are not spe - cifically regulated in the Competition Damages Act. However, under the Administration of Justice Act, both opt-in and opt-out class action suits are allowed. The opt-in model is the starting point for a class action. However, in special circumstances, the court may decide that the class action should be based on an opt-out model (see Section 254 e(8) of the Admin - istration of Justice Act). In this case, the group repre - sentative must be a public organisation (see Section 254 c(2) of the Administration of Justice Act). The court will set a deadline within which potential group members must opt out of the class action suit. 4.3 Direct/Indirect Purchasers Claims can be brought by both direct and indirect purchasers. Thus, it follows from Section 3 (1) of the Competition Damages Act that the right to damages is independent of whether there is a direct contractual relationship with the infringer. The defendant (infringer) may claim that any over - charge paid by the claimant has been passed on. The defendant bears the burden of proof (see Section 10 of the Competition Damages Act). According to Section 11 (1) of the Competition Dam - ages Act, an indirect purchaser claiming damages bears the burden of proof and is thus required to prove that the overcharge was passed on to the indirect pur - chaser.
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