DENMARK Law and Practice Contributed by: Johannes Grove Nielsen, Camilla Søgaard Hudson, Lars Rosenberg Overby and Malthe Hersom Kløft, Bech-Bruun
force majeure for any non-performance resulting from the effects of the event if it rendered the performance impossible. This does not mean that force majeure cannot be invoked for any non-performance of a contract agreed on after such an event has occurred. Unforeseen situ - ations can occur after an event has already occurred due to developments in the situation – eg, if a nation - al conflict at the place of delivery suddenly makes it impossible to deliver the goods amidst an already ongoing conflict. It should be noted that the wording of a force majeure clause may influence the foregoing, as its wording would take precedence over the Danish legal princi - ples regarding force majeure mentioned previously. If an event has resulted in the performance of the con - tract being more burdensome for the performing party, this does not relieve the performing party from his or her obligations under the contract. 9.2 Enforcement of the IMO 2020 Rule Limiting the Sulphur Content of Fuel Oil Denmark has implemented the IMO 2020 limitation on the sulphur content of fuel oil on board ships in EU waters. This was implemented in a statutory order that came into force on 1 January 2020. According to the statutory order, vessels sailing in SOx-control emission areas are not allowed to use bunker fuel with a sulphur content of more than 0.10%. The same limit of sulphur content also applies for ships calling at a port outside a SOx-control emis - sion area within the EU. These limitations in sulphur content have been effective since 2015 as a result of Directive 2012/33/EU. Danish waters are within a SOx-control area, and the sulphur limit is therefore 0.1%. The Danish Ministry of Environment is responsible for enforcing the rules concerning sulphur. The Ministry of Environment is responsible for the regulation of ships’ sulphur emissions, while the Danish Maritime Author - ity assists with the practical control of ships flying the Danish flag and of foreign ships in Danish ports. One of the enforcement actions is the use of so-called
sniffers, which is a technology installed on bridges, helicopters and drones that relies on the exhaust gas - es from ships. A sniffer can measure the amount of sulphur in a ship’s bunker oil without an actual sample from the bunker oil. In addition, the Danish Maritime Authority takes part in international negotiations and co-operation on the implementation and enforcement of the regulations. From 2015 to 2020, a total of 36 shipping companies were reported to the police owing to suspicion of vio - lating the sulphur limitations. In 17 of these cases, the shipping companies have agreed to be fined sum - marily. The firm has conducted and won the only (as far as is known) trial in Denmark concerning violation of the limitation of sulphur content in bunker fuel. The firm’s client was the defendant, a major shipping company, which was facing a fine of more than DKK200,000 and the possibility of the company’s name being published as an offender. This has authority in Danish law when the fine exceeds DKK200,000 and when the prose - cution believes a shipping company has violated the sulphur limit. The client claimed to be innocent from the beginning and that the Danish Environmental Protection Agency had wrongfully sampled sulphur tests from the lubri - cation oil instead of the bunker fuel filter. The firm managed to prove that the test had indeed been taken from the lubrication oil, thus raising reasonable doubt about the origin of the tests, and the court acquitted the client. 9.3 Trade Sanctions Trade sanctions are adopted by the UN and the EU. A trade sanction can be adopted in two possible ways: • by the EU implementing independent sanctions that are directly applicable to any individual or business within the EU; or • by the EU implementing a sanction agreed on within the UN Security Council. Such sanctions are put into effect through a Council Regulation. The restrictions are therefore not incor -
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