DENMARK Law and Practice Contributed by: Simon Evers Hjelmborg, Christian Monberg, Linn Dyrgaard Stinus and Ann Sophie Juul Hird, Accura Advokatpartnerselskab
All of the principles above apply to the provi - sions set out in 3.1 Limitation Period , unless otherwise stated. 3.3 Corporate Liability The relevant provisions on corporate liability are found in Sections 25–27 of the Criminal Code. Generally, legal entities can only be held respon - sible and sanctioned with fines when the relevant provisions warrant corporate liability (Section 25 of the Criminal Code). The rules on corporate liability apply to all legal entities regardless of corporate form unless otherwise stated, including public and private limited companies, partnerships, associa - tions, foundations, estates, municipalities, state authorities, and, in certain cases, one-man businesses (Section 26). However, municipali - ties and state authorities can only be punished for offences committed in the exercise of activi - ties that correspond to or can be equated with activities carried out by private entities (Section 27 (2)). Liability for a legal entity requires that an offence has been committed in relation to the legal enti - ty’s operations which can be attributed to one or more persons associated with the legal entity or the legal entity as such. This entails a subjec - tive requirement of intent or negligence (as in personal criminal liability) and can appear in two forms. Either: • as attribution to individuals associated with the legal entity; or • as attribution to the legal entity itself. If it cannot be proven that individuals associated with the company (typically management and/or employees) exhibited culpable behaviour, or if it
cannot be blamed on the company as such that the violation occurred, the legal entity cannot be held liable. Legal entities can be held liable for acts commit - ted by executive employees as well as any other employee. Furthermore, the legal entity can be held liable if it is operated in a way that gener - ates or strengthens the possibility of a violation. In general, executive owners or co-owners of a company are more likely to be held liable along with the legal entity since they have common interests. Attempts by legal entities can only be sanctioned when the penalty framework of the act allows for imposing a sentence exceeding four months of imprisonment on natural persons (Section 27(1)). Because the legal entity is a “person” of its own, both entities and persons can be held liable for the same violation. This is particularly relevant if the management or a senior employee has acted intentionally or with gross negligence. In such cases, charges are typically brought against both the company and the leading individuals who can be held responsible. Charges against sub - ordinate employees are generally not pursued unless there are special circumstances, such as a serious offence committed intentionally and possibly on their own initiative. In such cases, however, charges are also brought against the company. As a main rule under Danish law, a successor entity can be held liable for the offences by the original entity. In the event of a merger, the prin - ciple of universal succession applies meaning that the criminal liability from the transferring company is transferred to the receiving com - pany. Changes to the company’s structure or beneficial owners does not change whether the
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