DENMARK Law and Practice Contributed by: Erik Kjær-Hansen, Josephine Alsing and Victoria Krebs Dissing, Gorrissen Federspiel
8. Damages 8.1 Damages: Assessment, Passing On and Interest Assessment of Damages Damages are assessed in accordance with the gener - al Danish legal principles on damages. Consequently, the claimant has to substantiate, inter alia, that: • the claimant has suffered a loss; • there was a causal connection between the loss and the infringement; • the loss was foreseeable; and • the defendant engaged in a culpable or wrongful act. The Competition Damages Act provides a special stat - utory presumption that damage/harm has occurred in cartel cases (see 2.4 Proof ). In Denmark, the calculation of damages generally follows the principle that the injured party should be financially positioned as if the injury had not occurred. This is also specifically stated in Section 3 (1) of the Competition Damages Act. However, the calculation of damages may be affected by factors such as the claimant’s own fault in terms of acceptance of certain Under Danish law, damages are awarded solely as compensation for a specific loss suffered by a party. Neither exemplary nor punitive damages are permis - sible. The Availability of a Passing-On Defence The passing-on defence is available. If a defendant can prove that overcharges have been passed on from the claimant to the claimant’s buyers, the defendant may argue that the claimant has not suffered (or only suffered a reduced) loss (see 2.5 Pass-On Defence ). Interests risks or failure to mitigate losses. Exemplary or Punitive Damages According to Section 3 (3) of the Competition Dam - ages Act, a claimant may seek interests from the date the competition law infringement occurred to the date of the court’s judgment. This is an exception to the general rule on interest in Danish law – according to
which, interests can only be claimed from the time of initiation of the proceedings.
9. Liability and Contribution 9.1 Joint and Several Liability Joint and Several Liability
Section 8 (1) of the Competition Damages Act stipu - lates that if two or more companies are liable for the same damage arising from a competition law infringe - ment, the companies are jointly and severally liable. Consequently, a claimant may pursue the entirety of its claim against any one of the responsible parties. Limited Liability for Immunity Recipients An immunity recipient is only jointly and severally lia - ble to its direct and indirect customers/suppliers (see Section 8 (4) of the Competition Damages Act). How - ever, this limitation does not apply if the injured parties are unable to obtain full compensation for their claims from the other companies involved in the competition law infringement. 9.2 Contribution A party who has been ordered to pay damages may claim contribution from other parties that are liable for the same damage. The contribution is determined according to the parties’ respective responsibility for the damage (see Section 8 (5) of the Competition Damages Act). A private competition case regarding a preliminary injunction is handled through the procedure outlined in Chapter 40 of the Administration of Justice Act. According to Section 411 of the Administration of Jus - tice Act, an injunction may be directed against private parties and representatives of the state, region and municipality acting in their capacity as parties in pri - vate legal matters. According to Section 412 of the Administration of Jus - tice Act, preliminary injunction proceedings must be 10. Other Remedies 10.1 Injunctions
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