Antitrust Litigation 2024 Comparisons

The legislative framework for antitrust litigation in Denmark primarily encompasses:

• the Danish Competition Act;
• the Danish Competition Damages Act which transposed the EU Damages Directive (2014/104/EU) into national law;
• the general Danish legal principles on damages; and
• the Danish Administration of Justice Act.

The Danish competition rules generally mirror EU competition law rules and are interpreted in accordance with the case law of the European Court of Justice and the decisional practice of the European Commission.

In Denmark, private antitrust litigation is generally consistent with private enforcement of any other damage claim. However, the Competition Damages Act does provide certain specific provisions regarding, for example, the disclosure of evidence, time-barring, and the burden of proof.

Until now, there have been relatively few private antitrust judgments rendered by Danish courts, although several cases are pending before the courts. Thus far, most judgments have concerned damages resulting from anti-competitive agreements and not the abuse of a dominant position.

To the knowledge of the authors, most private antitrust court decisions have concerned damages for infringements committed before the Competition Damages Act transposing the EU Damages Directive (2014/104/EU) into national law entered into force.

However, in recent years, there has been an increase in private antitrust filings and several significant damages cases (including Danish follow-on cases to European Commission decisions) are currently pending.

The legal basis for private antitrust claims is set out in:

• the Competition Damages Act;
• the Danish Administration of Justice Act; and
• the Danish general legal principles on damages.

A party may bring a private claim before the courts seeking the following remedies:

• damages – this type of claim is typically based on Section 3 of the Competition Damages Act. General tort law, including the general Danish legal principles on damages, can also serve as a legal basis for private antitrust claims; and/or
• injunctive relief – this type of claim is based on Chapter 40 of the Danish Administration of Justice Act.

In Denmark, both standalone and follow-on claims are available.

Currently, claims are predominantly brought as follow-on cases, as infringement decisions adopted by the European Commission and the Danish competition authorities are binding on the courts in a subsequent action for damages. Further, a final infringement decision by a competition authority in another EU member state creates a presumption of an infringement of competition law in a subsequent action for damages. Lately, there has, however, been an increase in standalone claims, which are available for any kind of breach of competition law.

Antitrust cases are heard before the civil courts.

There are three levels of civil courts in Denmark:

• 24 District Courts;
• two High Courts – the Western High Court and the Eastern High Court; and
• the Supreme Court, which is the highest court in Denmark.

In addition, there is a specialised Maritime and Commercial High Court which only deals with certain types of cases, including cases where the application of competition rules is of significant importance.

All courts are competent to hear actions for damages related to competition law infringements. However, a party may choose to bring the case before the Maritime and Commercial High Court instead of a district court, regardless of the value of the matter in dispute, as long as the application of competition rules is of significant importance.

In Denmark, most cases concerning a breach of Danish or European competition law are heard by the Maritime and Commercial High Court as the court of first instance. Appeal cases are tried at one of the High Courts, depending, primarily, on the geographical location of the parties involved. Cases may only be brought before the Supreme Court upon the granting of permission by the Appeals Permission Board (Procesbevillingsnævnet). However, in certain specific cases, a judgment of the Maritime and Commercial High Court may be appealed directly to the Supreme Court as the court of the second instance (see 12. Appeals).

The Effect of Decisions Made by Danish National Competition Authorities

According to Section 7(1) of the Competition Damages Act, a final decision rendered by the Danish competition authorities regarding an infringement of competition law is binding in a follow-on damages action before the courts. Thus, the question of unlawfulness cannot be re-examined during the damages action. A final decision on infringement may consist of a final administrative decision, a final criminal judgment, or an accepted criminal or administrative fine notice.

The Effect of Decisions Made by Foreign National Competition Authorities

According to Section 7(2) of the Competition Damages Act, a final decision by a national competition authority in an EU member state creates a presumption of infringement in a follow-on damages action before the courts.

The Role of Danish Competition Authorities in Antitrust Proceedings Before the Courts

In accordance with Section 12(2) of the Competition Damages Act, the Danish competition authorities may, at the court’s request, assist in quantifying damages in connection with an action for damages.

Burden of Proof

Under Danish law, the burden of proof generally rests upon the claimant. As a general rule, a claimant must therefore prove an alleged breach of competition law and in the case of an action for damages, the existence and amount of the loss.

However, Section 12(1) of the Competition Damages Act establishes a statutory presumption that damage/harm has occurred in cartel cases, although the defendant (infringer) may rebut that presumption.

The statutory rebuttable presumption only applies to infringements after 27 December 2016, when the Competition Damages Act entered into force. For all cartel damages prior to this date, the claimant (injured party) bears the burden of proof in accordance with the general Danish rules on burden of proof.

The Probative Value of Decisions by Danish and Foreign National Competition Authorities

According to Section 7(1) of the Competition Damages Act, a final decision rendered by the Danish competition authorities regarding an infringement of competition law is binding in a follow-on damages action before the courts. Thus, the question of unlawfulness cannot be re-examined during the damages action. According to Section 7(2) of Competition Damages Act, a final decision by a national competition authority in an EU member state creates a presumption of an infringement in a follow-on damages action before the courts (see 2.3. Impact of Competition Authorities).

According to Section 10(1) of the Competition Damages Act, it is possible for the defendant (infringer) to invoke the pass-on defence – ie, that the loss resulting from the competition law infringement has been passed on to the next market level. In this case, the defendant bears the burden of proof for the pass-on defence (see Section 10(2) of the Competition Damages Act).

Five-Year Relative Limitation Period

Following the implementation of the EU Damages Directive (2014/104/EU) into Danish law, the relative statutory limitation period for private competition damages claims has been extended from three to five years (see Section 15(1) of the Competition Damages Act).

According to Section 15(2) of the Competition Damages Act, the limitation period commences from the point in time at which the infringement ceased, and the claimant became aware of, or ought to have become aware of:

• the anti-competitive behaviour of the defendant (infringer) and that the behaviour constituted an infringement of competition law;
• the harm caused by the infringement to the claimant (injured party); and
• the identity of the infringer (defendant).

The five-year period is temporarily suspended if a competition authority initiates an investigation or proceeding in respect of the infringement of competition law to which the action for damages relates (see Section 15(4) of the Competition Damages Act). The suspension remains effective for one year after the decision on the infringement has become final or the case has otherwise been concluded.

Ten-Year Absolute Limitation Period

In addition to the five-year limitation period, an absolute ten-year limitation period also applies to competition law damages claims (see Section 15(3) of the Competition Damages Act). The absolute ten-year period is calculated from the point in time at which the infringement ceased and is thus not dependent on when the injured party became aware of its claim.

There are no official statistics on the duration of private antitrust litigation. The total duration of the process – from the initiation of the proceedings until a judgment is rendered – largely depends on the complexity of the case and whether expert appraisal is relevant. Further, the duration depends on the workload of the specific court handling the case. 

Typically, relatively simple cases (without, in particular, the need for expert appraisal) in the first instance take approximately two to three years. For complex matters, the duration of the proceedings is often significantly longer. It is not unusual that such proceedings take approximately five years or more.

The duration of an appeal is usually around two years.

In Denmark, consumers and companies may bring a class action for breach of competition law before the court. Moreover, pursuant to Section 16 of the Competition Damages Act, the Danish Consumer Ombudsman is authorised to act as a representative in class actions regarding losses caused by competition law infringements.

Class actions, including class actions regarding competition law infringements, are regulated in Chapter 23a of the Administration of Justice Act.

Opt-in and opt-out class action suits are not specifically regulated in the Competition Damages Act. However, under the Administration of Justice Act, both opt-in and opt-out class action suits are allowed.

The opt-in model is the starting point for a class action. However, in special circumstances, the court may decide that the class action should be based on an opt-out model (see Section 254 e(8) of the Administration of Justice Act). In this case, the group representative must be a public organisation (see Section 254 c(2) of the Administration of Justice Act). The court will set a deadline within which potential group members must opt out of the class action suit.

Claims can be brought by both direct and indirect purchasers. Thus, it follows from Section 3(1) of the Competition Damages Act that the right for damages is independent of whether there is a direct contractual relationship with the infringer.

The defendant (infringer) may claim that any overcharge paid by the claimant has been passed on. The defendant bears the burden of proof (see Section 10 of the Competition Damages Act).

According to Section 11(1) of the Competition Damages Act, an indirect purchaser claiming damages bears the burden of proof and is thus required to prove that the overcharge was passed on to the indirect purchaser.

Section 11(2) of the Competition Damages Act states that the indirect purchaser shall be deemed to have proved the passing-on if the indirect purchaser proves that:

• the infringer has committed an infringement of competition law;
• the infringement resulted in an overcharge to the direct purchaser; and
• the indirect buyer has purchased the goods or services that were the object of the competition law infringement or has purchased products or services deriving from such goods or services.

This provision does not apply if the infringer is able to prove to the court that the overcharge has not been passed on in whole or in part to the indirect purchaser (see Section 11(3) of the Competition Damages Act).

The procedure for bringing a class action for breach of competition law is identical to any other court case. Thus, a class action suit begins by filing a writ of summons which must set out:

• a brief description of the case and the group;
• information on how the members of the group can be identified and notified about the case; and
• a proposal for a group representative that is willing to take on the role of class representative.

The only difference in a class action suit is that the claimant in the writ of summons must also request that the court shall process the claim in accordance with the rules of class actions.

Under Danish law, as a general rule, a defendant must be sued in the district court where the defendant resides (natural person) or where the main office is located (legal persons).

In addition, the Administration of Justice Act contains a provision (Section 246(1)) on supplementary jurisdiction. According to this provision, a lawsuit can be initiated against a defendant that is not resident or domiciled in Denmark in specific circumstances. For 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 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 statements with evidence, but are generally free to determine 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 Damages 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).

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 proportionality 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 competition 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 competition authority has concluded its proceedings by adopting a decision or otherwise closed the matter. In this case, the court may order disclosure of the following 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 proceedings; 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).

Parties cannot usually be required to disclose privileged documents. In competition law matters, this follows from Section 19 of the Competition Act and case law such as the Akzo Nobel ruling (European Court of Justice case C-550/07).

According to Section 5(3) of the Competition Damages Act, the court cannot order the disclosure of leniency statements or settlement submissions. Nonetheless, 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 competition authorities and the sources of the evidence.

The procedure of hearing witnesses is generally regulated by the Administration of Justice Act and also applies to witnesses testifying in private antitrust proceedings.

According to Section 168 of the Administration of Justice Act, if a person is called as a witness, the person generally has a duty to appear and testify in court.

As a main rule, a witness must give its statement orally before the court. The witness is initially questioned by the party who called the witness to testify. The legal counsel of both parties is, however, permitted to pose questions to the witness. If a witness summoned to testify before the court fails to appear, the witness may be ordered to pay a fixed penalty. In rare instances, a witness may be placed in detention until the witness can be questioned in court.

In civil cases (including cases regarding competition law infringements), a party may request an expert opinion in accordance with the rules in Chapter 19 of the Danish Administration of Justice Act. The request should be submitted as early as possible in the proceedings. 

The request must state the framework for the expert’s opinion (see Section 196(2) of the Administration of Justice Act). This includes information on the subject and purpose of the expert opinion.

After an expert’s opinion has been requested by one party, the other party must be given the opportunity to comment on the request before the court decides whether to grant it. In practice, the court generally accepts a request for an expert’s opinion.

If the court decides that an expert’s opinion may be obtained, the requesting party must submit its questions to the court if the questions were not included in the initial request (see Section 197 of the Administration of Justice Act). The opposing party is also allowed to submit its own questions to the court.

As a general rule, the parties do not have to agree on which questions to ask or how to phrase the questions. However, the parties may dispute the wording of the questions and the court can also reject questions that are deemed irrelevant. In practice, the court does not generally interfere unless the parties disagree about, for example, the relevance of the questions.

The court will then proceed to appoint one or more experts. Depending on the nature of the case and the questions to be answered, the court may find it appropriate to appoint multiple experts to address the same questions (see Section 198(1) of the Administration of Justice Act).

The expert will then have to answer the questions in writing based on an inspection of the relevant object (if relevant) and/or the exhibits submitted by the parties in the proceedings. The expert must submit its report to the court. Upon request by one of the parties, the expert can also be summoned as a witness at the oral hearing.

In Denmark, expert opinions are generally given significant evidential weight by the courts.

The parties are permitted to submit statements on technical, financial, or similar issues that were obtained from experts prior to the commencement of the proceeding as evidence. These statements may be admitted as evidence unless the content of the statement, the circumstances of its creation or other circumstances provide grounds to deviate. However, the courts are not obliged to take such expert evidence into account. If a party has submitted such a statement, the other party may submit a similar statement under the same conditions, even if it was not possible to obtain such a statement until after the proceedings were instituted.

After the proceedings have been commenced, the court may, at the joint request of the parties, authorise the parties, in addition to or instead of obtaining an expert opinion by a court-appointed expert, to submit statements obtained by each party from experts on specific matters of a technical, financial or similar nature. The court’s authorisation shall also cover the proceedings in the appeal instance.

Assessment of Damages

Damages are assessed in accordance with the general 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 statutory 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 risks or failure to mitigate losses.

Exemplary or Punitive Damages

Under Danish law, damages are awarded solely as compensation for a specific loss suffered by a party. Neither exemplary nor punitive damages are permissible.

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

According to Section 3(3) of the Competition Damages 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.

Joint and Several Liability

Section 8(1) of the Competition Damages Act stipulates that if two or more companies are liable for the same damage arising from a competition law infringement, 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 liable to its direct and indirect customers/suppliers (see Section 8(4) of the Competition Damages Act). However, 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.

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 Justice Act, an injunction may be directed against private parties and representatives of the state, region, and municipality acting in their capacity as parties in private legal matters.

According to Section 412 of the Administration of Justice Act, preliminary injunction proceedings must be initiated by filing a request for a preliminary injunction with the relevant district court.

Section 413 of the Administration of Justice Act states that a party seeking a preliminary injunction must provide conclusive or at least presumptive evidence that:

• the party does, in fact, hold the right sought to be protected by the preliminary injunction;
• the actions of the alleged infringer require the issuance of a preliminary injunction; and
• the party’s ability to enforce its right would be diminished if the party should await the outcome of an action on the merits.

If these conditions are fulfilled, the court may grant a temporary court order unless the general rules on penalties and damages and any potential security offered by the alleged infringer provide sufficient protection. The court may also refuse to grant a preliminary injunction if this would cause the alleged infringer any damage or inconvenience that is disproportionate to the granting of the injunction.

The party seeking a preliminary injunction bears the burden of proof. However, the burden of proof is different from, and not as burdensome as, the burden of proof in ordinary court proceedings. As noted above, the party is not required to provide conclusive evidence but is only required to provide presumptive evidence.

There are no statutory deadlines for the court to decide on a request for interim measures. However, the proceedings generally move quite fast (and a lot faster than ordinary court proceedings) due to stricter deadlines being set by the court. The decision in the injunction proceedings may be appealed to the High Court.

The court’s decision is not a final decision on the merits, and thus it is not possible to claim damages as part of the injunction proceedings. A party must thus commence ordinary court proceedings on the merits no later than two weeks after the decision in the preliminary injunction case. 

A party who has obtained an injunction on the basis of a right that turns out not to exist must pay the other party compensation for loss and damages.

In Denmark, parties are generally encouraged to seek a resolution when involved in a court case.

When a lawsuit is initiated, the parties are actively encouraged by the court to consider potential settlement options including engaging in mediation facilitated by a court-appointed mediator.

However, alternative dispute resolution is voluntary in the Danish legal system. Thus, if a party declines an invitation to enter into settlement discussions and/or declines mediation facilitated by a court-appointed mediator, this does not give rise to any sanctions.

Under Danish law, third-party funding is permitted, although there are no specific regulatory or legal provisions that cover it. Therefore, all lawsuits are available for third-party funding including lawsuits regarding competition law infringements.

There is no minimum threshold for the claim to be financed through third-party funding. However, in practice, litigation funding involves considerable effort for both the claimant and the investor. Therefore, the claim is often of a substantial size to ensure a reasonable return for both parties.

Historically, third-party funding has not been widely used in Denmark. In recent years, third-party funding has gained more attention, and Denmark has seen its first third-party funding cases.

Litigation in Denmark involves different expenses, including expenses such as lawyer fees, court fees, and expenses for expert opinions.

According to Section 312 of the Administration of Justice Act, the winning party is entitled to recover the costs associated with the proceedings, either fully or partially. However, it is at the discretion of the courts to determine the amount to be recovered, and this amount generally falls short of covering the actual costs incurred.

Under Danish law, there is no general obligation to provide security for the costs. Nevertheless, a court fee is mandated upon the initiation of a civil claim or injunction proceeding (see the Danish Act on Court Fees).

The Danish legal system is based on a two-instance principle. This means that parties to a case generally have the option to appeal a court’s judgment to a higher court within a four-week period. The higher court can either uphold, overturn or modify the judgment.

The Appeals Permission Board (Procesbevillingsnævnet) may grant permission for a third-instance appeal if the case raises issues of principle. In certain specific cases, a judgment of the Maritime and Commercial High Court may be appealed directly to the Supreme Court as the court of the second instance. This generally requires that the case raises issues of principle or has significant societal impact.

Appeals can be based on both factual and legal arguments, allowing for a comprehensive review of the case.

Several cases of private antitrust litigation are currently pending before Danish courts; these are both stand-alone cases and follow-on cases. This is a novel development, as traditionally such cases have been relatively few.

The authors expect to see more antitrust litigation regarding abuse of dominance, including standalone cases.

They also expect to see more decisions interpreting the Competition Damages Act, in particular in light of the emergence of European Court of Justice case law relating to the EU Damages Directive.