DENMARK Law and Practice Contributed by: Erik Kjær-Hansen, Josephine Alsing and Victoria Krebs Dissing, Gorrissen Federspiel
initiated against a defendant that is not resident or domiciled in Denmark in specific circumstances. By way of example, cases in which claims for damages arising from a legal infringement are asserted may be brought before the court located at the place where the infringement occurred. A case may also be filed in the court located at the place where the defendant has assets at the time the case is brought or the place where the assets related to the claim are located at the time the case is brought before the court (See Section 246 (3)). The Brussels I Regulation and the Lugano Convention also apply in Denmark. The parties must substantiate their claims and state - ments with evidence, but are generally free to deter - mine which evidence they want to rely on. In general, the court will only consider the evidence produced and presented by the parties during the proceedings. In addition, Section 4-6 of the Competition Damages Act includes specific rules on disclosure. According to Section 4 (1) of the Competition Dam - ages Act, upon the request of a party, the court may order the opposing party (usually the defendant) and/or third parties to disclose relevant evidence in accordance with the rules set out in the Administration of Justice Act (Section 298-300). 6. Disclosure/Discovery 6.1 Disclosure/Discovery Procedure Section 4 (3) of the Competition Damages Act requires that the court restricts the disclosure of evidence to what is deemed proportionate. In assessing the pro - portionality of a disclosure request, the court must take into account the legitimate interests of all involved parties and third parties. However, Section 4 (2) of the Competition Damages Act directly states that the court in its decision must not take into account the interest of an undertaking in avoiding an action for damages resulting from an infringement of competi - tion law.
Section 5 (2) of the Competition Damages Act further provides that if the requested documents are part of a case before a competition authority, the evidence may only be ordered disclosed after the relevant com - petition authority has concluded its proceedings by adopting a decision or otherwise closed the matter. In this case, the court may order disclosure of the fol - lowing categories of evidence: • information prepared by a natural or legal person specifically for the proceedings of a competition authority; • information that the competition authority has drawn up and sent to the parties during its pro - ceedings; and • settlement submissions that have been withdrawn. Leniency statements and/or settlement submissions may not be ordered disclosed (see Section 5 (3) of the Competition Damages Act (see 6.3 Leniency and Settlement Agreements ). 6.2 Legal Professional Privilege Parties cannot usually be required to disclose privi - leged documents. In competition law matters, this follows from Section 19 of the Competition Act and case law such as the Akzo Nobel ruling (ECJ case C-550/07). 6.3 Leniency and Settlement Agreements According to Section 5 (3) of the Competition Dam - ages Act, the court cannot order the disclosure of leni - ency statements or settlement submissions. Nonethe - less, upon request from a party, the court may decide to access such evidence solely to ensure that its content falls within the scope of leniency statements or settlement submissions. For this assessment, the court may seek comments from the Danish competi - tion authorities and the sources of the evidence.
7. Witness and Expert Opinions 7.1 Witness Procedure
The procedure of hearing witnesses is generally regu - lated by the Administration of Justice Act and also applies to witnesses testifying in private antitrust pro - ceedings.
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