DENMARK Law and Practice Contributed by: Thomas Weitemeyer, Pernille Nørkær, Jonas Høst and Jacob Kreutzmann, Moalem Weitemeyer
Regulatory decisions (and, where available, the non- confidential reasoning) may shape the factual back - ground and arguments in subsequent contractual or tort-based disputes relating to the transaction, includ - ing disputes over conditions precedent, termination rights or compliance with regulatory undertakings. At the same time, confidentiality rules can limit the extent to which parties can access or rely on material from the administrative file in later civil proceedings. In addition, competition law issues can, in appropriate cases, give rise to follow-on damages claims. Such claims may be influenced by findings in administra - tive enforcement decisions and appeal proceedings, although the ordinary court will still assess causation and quantum under the applicable civil law standards. 10. Private Enforcement and Competition/Regulatory Claims 10.1 Follow-On and Standalone Actions Follow-on or standalone damages actions specifically linked to merger-related competition conduct (eg, gun jumping, unlawful information exchange or co-ordi - nated behaviour) are not common in Denmark, and such issues are more typically addressed through the administrative enforcement framework. Notwithstanding, civil claims can arise where merger- related conduct causes identifiable loss. Depending on the circumstances, claims may be brought on tort- based principles or, more commonly in an M&A con - text, through the contractual framework (eg, termina - tion rights, indemnities or disputes over compliance with conditions and covenants). Where administrative enforcement or appeal decisions contain relevant findings, these may influence the factual background
The mechanism is not M&A-specific, but it may be used where a transaction or regulatory event gives rise to a large number of similar claims (eg, consumer or investor claims), including in competition-related matters. In practice, however, it is rarely used in M&A- related cases in Denmark. 10.3 Limitation Periods, Causation and Quantification Limitation questions are frequently decisive. Claims are typically subject to statutory limitation rules (often driven by the claimant’s knowledge of the claim) and, in M&A disputes, are often supplemented or effectively shaped by contractual time bars, notice requirements and dispute resolution clauses. Parties therefore tend to manage limitation risk through clear drafting on claims procedures, survival periods for warranties/ indemnities, and documentation requirements. Danish courts and tribunals generally require a clear causal link between the alleged breach/misconduct and the loss. Disputes often turn on whether the loss is sufficiently connected to the breach (including issues of intervening causes), and whether the loss was foreseeable in the relevant contractual or tort- based context. Damages are typically assessed on a compensatory basis and often require fact-heavy evidence. In M&A disputes, quantification commonly involves valua - tion- or accounting-driven analysis (eg, completion accounts, working capital, EBITDA or “difference in value” assessments), frequently supported by expert evidence. Where regulatory conditions or commit - ments are relevant, documentation of compliance, mitigation steps and the economic impact of con - ditions can be important in supporting (or resisting) damages claims. 10.4 Settlements, ADR and Arbitration Settlements and negotiated outcomes are common in resolving competition and regulatory disputes con - nected to M&A, often driven by timetable pressure and the cost of prolonged uncertainty. In merger control, commitments/remedies are the main “settlement-type” mechanism used to address concerns within the administrative process. Similarly,
in any subsequent civil damages claim. 10.2 Collective and Class Actions
Denmark has a statutory collective actions regime for civil claims (group actions). The default model is opt- in, but an opt-out model is also available in limited situations, subject to court certification and proce - dural requirements.
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