The Danish Product Safety Act

This is the primary act in Denmark concerning product safety. Additionally, there are several sets of regulations for specific types of products. This applies, for instance, to toys, electrical products, and machinery. The Product Safety Act establishes the obligations of manufacturers, distributors, and importers (“traders”) to only place safe products on the market and to take relevant measures if a product is found to pose a risk to users. The Product Safety Act complements the Market Surveillance Regulation and expands the safety regulation of products and the authorities’ capacities in this regard.

Regulation on General Product Safety

From 13 December 2024, consumer products must comply with the new EU regulation on product safety when sold in an EU country. The EU regulation came into effect on 12 June 2023, however, there is an 18-month period for implementation. Generally, there are no changes to the material requirements for safe products, but new rules are set for labelling, product safety in e-commerce, and the use of new technologies.

The Danish Safety Technology Authority is a government agency overseeing product safety regulations and enforcement in Denmark. The Danish Safety Technology Authority conducts inspections, monitors compliance, and has the authority to order a withdrawal or recall.

Additionally, there are sector-specific regulators responsible for overseeing product safety in certain industries. For instance, the Danish Medicines Agency oversees regulations concerning medical equipment and products, while the Danish Environmental Protection Agency oversees regulations related to products’ chemical properties.

According to the Danish Product Safety Act, the responsibility for product compliance lies with the commercial operators, who is obligated to actively ensure that products placed on the market complies with legislation and are safe to use.

If a product is not compliant, it must not be advertised or made available on the market. Therefore, all commercial operators have a general duty to ensure that the products they place on the market are safe to use. The assessment of whether a product is safe or not must be based on factors such as the product’s characteristics and purpose, the users’ conditions and the possibility of providing guidance on and warning against any potential dangers associated with the product.

If a commercial operator becomes aware that a product they have placed on the market is not safe when used in an usual and expected manner, they must immediately notify the Danish Safety Technology Authority and take the necessary measures.

It is up to the commercial operator to decide which measures, given the specific circumstances, can most effectively prevent damage or injuries resulting from the product’s risk. However, this “voluntary” approach to determining the necessary measures must be viewed in the context of the Danish Safety Technology Authority’s ability to intervene and impose further measures if the commercial operator’s voluntary measures are deemed insufficient.

As mentioned in 1.3 Obligations to Notify Regulatory Authorities, a business operator who becomes aware that a product they have placed on the market is not safe when used in the usual and expected manner must immediately notify the Danish Safety Technology Authority and take the necessary measures.

The obligation to notify the regulatory authority applies to all commercial operators involved in the supply chain. However, it is sufficient for a single commercial operator in the supply chain to notify the Danish Safety Technology Authority, provided that the notification is sufficient.

The notification to the Danish Safety Technology Authority should enable the authority to assess the risk, including whether the measures taken by the commercial operator to mitigate the risk are adequate. Therefore, the notification should typically include a description of the product and the risk.

If the product is sold in several EU countries, the notification to the authorities can be made as a joint communication to all relevant national authorities using the EU Commission’s Product Safety Business Alert Gateway.

Regarding the deadline for notification, it should be made “immediately” when the commercial operator becomes aware that a product poses a safety risk. According to Danish law, this is interpreted as a reasonable and prompt action in relation to the specific circumstances of the case, with emphasis on whether the notification was made without undue delay after the business operator became aware of the safety risk associated with the product.

The Danish Safety Technology Authority is granted a range of remedies over commercial operators to ensure compliance with the law’s requirements. If a product does not comply with product safety regulations, the Danish Safety Technology Authority can issue an enforcement notice against the commercial operator. Enforcement notices can be issued against all levels of the supply chain.

For example, the Danish Safety Technology Authority can instruct the commercial operator to warn users about the risks associated with the product or to remedy conditions that do not comply with product safety regulations. Among the most intrusive enforcement notices are orders to cease sales, recalls, withdrawals, and destruction of products. Violations of product safety regulations can result in a fine or, in severe cases, imprisonment.

As a starting point, fines begin at EUR6,700, but fines may be determined based on the expected profits from selling a dangerous product. Under aggravating circumstances, imprisonment of up to two years may be imposed. This could occur, for instance, when the product has caused serious personal injury, in cases of repeat offences, or in instances of systematic violations of the regulations.

In Denmark, personal injury and property damage are the main reasons for legal action in product liability matters.

In Denmark, the legal framework regarding defective products are governed by a dual system. The Product Liability Act governs cases involving personal injuries and consumer property damage, while broader categories of damage, such as commercial property damage, are regulated by product liability rules develop through case law.

Both the Product Liability Act and case law-develop rules are applicable solely to damage or injury other to anything other than the product itself. Liability for damage to the product itself is governed by contractual agreements between the parties and Danish laws such as the Sale of Goods Act and standard contracts including the AB-regime, CISG and FIDIC.

According to the Danish Product Liability Act, individuals who have suffered personal injury or property damage as a result of a defective product have standing to bring claims for product liability. Whether the defective product is used commercially or privately is irrelevant. The rules governing the standing of companies and other commercial operators who have suffered damage to bring a claim are regulated by product liability rules developed through case law. A common feature of both sets of product liability rules is that they do not cover damage to the defective product itself.

According to the Danish Act on Limitation, the time limit for bringing a claim for product liability is typically three years from the date when the claimant became aware, or should have become aware, of the claim, the defect in the product, and the identity of the party responsible for the defect. However, the three-year time limit can be suspended if the claimant neither had nor should have had knowledge of the claim. A claim based on the rules of the Product Liability Act are time-barred after ten years. The Product Liability Act does not restrict the claimant’s access to damages by the product liability rules developed through case law, where the absolute limitation period for personal injuries is 30 years.

In Danish law, the general rule is that the claimant must initiate proceedings against a producer at their domicile. However, Danish law also allows the claimant to bring the case where the damage occurred, which is often the claimant’s place of residence.

There are no mandatory steps that must be taken before legal proceedings can be commenced in product liability cases under Danish law.

There are no explicit rules under Danish law for the preservation of evidence, including the product itself, in product liability cases. Failure to preserve key evidence will, however, render it difficult for both the claimant and the producer to lift the burden of proof.

If a party seeks disclosure of documents held by the opposing party in a product liability case, Danish courts have the authority to compel this, provided that the requesting party clarifies the specific issues for which the documents are needed. Failure to comply with the court’s disclosure order may lead to adverse inferences being drawn. Similarly, if a party wishes to disclose documents held by a non-party, the court may impose disclosure based on the relevance of the documents to the case, unless the non-party is exempt from providing testimony on the content of the documents. Non-compliance may result in sanctions similar to those for failing to comply with a court appearance, including fines or imprisonment.

In Denmark, the decision to involve expert evidence typically rests with the parties, though the court may reject such evidence if it deems it unnecessary, either upon request or at its own discretion. Court-appointed experts, rather than party-appointed experts or witnesses, are more commonly relied upon, providing written statements and court explanations based on queries posed by the parties. Pre-proceeding statements acquired by the parties are generally admissible, with the opposing party granted similar access post-commencement. Parties may also, with court approval and mutual agreement, secure their own expert statements (party-appointed experts) after proceedings have begun.

Under the Danish Product Liability Act, producers bear a strict liability for damage resulting from defects in their products. To seek compensation for incurred damage, claimants must establish the existence of the inflicted damage, a defect, and the causal link between the defect and the damage. Consequently, there’s no requirement for the claimant to prove negligence or fault on the part of the producer.

Under product liability principles established through case law, a presumption of negligence applies. Upon the claimant proving the existence of a defect, the burden of proof shifts to the producer to prove that the defect is not a result of their negligence.

Both the Product Liability Act and case law-derived product liability principles impose a presumption of negligence on intermediaries. Consequently, the intermediary may be held liable for injury or damage resulting from a defective product unless it can demonstrate lack of intentionality or negligence.

Danish law do not have formal rules concerning the assessment of evidence by courts and the requisite level of proof. Therefore, in each instance, the court must assess the evidence presented and determine whether the claimant has met the burden of proof. Additionally, the court is not obligated to adhere to expert evidence.

Product liability cases, irrespective of the disputed claim’s value, are adjudicated in Danish civil courts, including district courts, the Maritime and Commercial Court, High Courts, the Supreme Court, and, if parties have mutually agreed, in arbitration.

Generally, there are no specific procedural requirements for such cases, and jury hearings are not available for product liability cases, as juries are exclusively involved in specific criminal cases.

With some exceptions, the two-tier principle enables all civil cases, eg, product liability cases, to be adjudicated by at least two courts in Denmark. If a district court or the Maritime and Commercial Court serves as the initial instance, its verdict can be appealed to the High Court without requiring special permission. Conversely, if the High Court acts as the first instance, its decision can be appealed to the Supreme Court. However, if a dispute is heard by the High Court as the second instance, an appeal to the Supreme Court requires third-instance leave of appeal from the Appeals Permission Board.

Various defences are available to producers in product liability cases. For instance, a producer may demonstrate that the product is not defective, in which connection a frequently used defence is expert evidence, including expert opinions on the producer’s safety and quality control of the product. The producer is exempt from liability if it can prove that the defect arises from the product’s compliance with mandatory public regulations. Additionally, a producer cannot be held liable if it can prove that, based on scientific and technical knowledge available at the time of circulation, the defect was undetectable. Furthermore, a producer is not liable if the defect arises after the product has been put into circulation. Lastly, evidence of the claimant’s contributory negligence or assumption of risk may absolve the producer of liability.

If a product fails to meet safety regulations or authorisation requirements set for that specific product, it may be deemed defective, as consumers are entitled to expect a certain level of safety as mandated by relevant product legislation. Some products are, however, inherently associated with known adverse effects; for instance, tobacco is widely recognised for its harmful effects. Likewise, it is commonly understood that certain products may trigger allergic reactions. Damage resulting from an unavoidable risk associated with using the product is not considered a defect despite non-compliance with regulation.

According to Danish procedural law, the court determines which party shall cover both court fees and legal costs associated with the case, often placing this burden on the losing party. However, the costs awarded by Danish courts typically do not reflect the actual legal expenses incurred during the proceedings. As a result, the parties involved often end up bearing a considerable portion of their own legal costs.

In 2017, the Danish Supreme Court endorsed the use of third-party funding at a group level. This occurred when the bankrupt estate of OW Bunker entered into an agreement with a third-party funder. The Supreme Court ruled that third-party funding was not contrary to Danish legal procedures.

As a result, third-party funding of product liability claims is allowed under Danish law, and there is full contractual freedom concerning third-party funding, provided that the governing contract for the third-party funder meets the general requirements for contracts under Danish law.

In addition to third-party funding, alternative methods of funding for product liability claims are available. These include legal expenses insurance and legal aid.

In essence, product liability claims may be pursued through class-action proceedings, subject to meeting specific eligibility requirements. Up until now, class actions have rarely been used in product liability proceedings, however, the potential rise of, for example, PFAS-related product liability claims (see 3.2 Future Policy in Product Liability and Product Safety) could change this and lead to an increase in product liability class actions as well.

According to Danish law, a class action suit must be initiated by a group representative and meet the criteria set out in Section 254b(1) of the Administration of Justice Act, before the court will allow the suit to proceed. These criteria include ensuring that the claims share a similar essence, that they all fall under Danish jurisdiction, and at least one of the claims is within the court’s jurisdiction. Additionally, the court must have subject-matter jurisdiction over all claims, and class action must be deemed the best procedural option. Moreover, the group members must be identifiable and informed about the class action suit.

These criteria are stringent. Specifically, the requirement that a class action suit must be the most suitable procedural option to address a certain claim implies that the court will only issue a group certificate if no other option for addressing the claim is better suited, making this condition difficult to fulfil.

In 2024, the Danish High Courts have rendered two judgments in which key statutory definitions of Danish Product Liability were subject to interpretation indicating potential adverse effects on all electricity distribution system operators and their insurers.

Both matters concerned electricity supplied by electricity distribution system operators, which was over-voltage upon delivery to consumers, causing damage to their properties. The judgments establish that electricity distribution companies are deemed as producers of electricity under the Danish Product Liability Act, as they alter the voltage level before distributing it to end-users. Moreover, it clarifies that the point of connection, where the operator’s supply network meets the consumer’s property, marks the commencement of electricity circulation. Thus, this point is pivotal in determining whether the electricity is defective.

Since the electricity in question was over-voltage at the connection point, the grid operators were held liable under the Danish Product Liability Act.

The General Product Safety Regulation, which entered into force in June 2023, stands as a pivotal addition to the EU’s legal framework concerning product safety. It will be applicable to products entering the market from December 2024 onward, replacing the General Product Safety Directive established in 2001. This regulation encompasses all products lacking specific EU regulation and is designed to enhance the safety standards of products sold both in physical stores and online. It also aims to bolster market surveillance against illicit products and fortify consumer rights for individuals who have acquired unsafe products. Products introduced to the market without adhering to safety regulations or approval criteria will generally be deemed defective.

By the conclusion of 2023, a political agreement to amend the nearly 40-year-old EU Product Liability Directive from 1985 was reached by the EU Parliament and the Council. The objective of the new EU Product Liability Directive is to adapt the Directive to the digital era and the principles of the circular economy, which includes promoting the increased reuse of previously traded products.

The evolution of technology and AI and the amendment of the Product Liability Directive will influence product liability regulation and litigation in Denmark in the coming years. According to the Danish government, the new Product Liability Directive will not only have legislative consequences, as changes to the Danish Product Liability Act are required, but is also expected to lead to an increase in product liability claims filed at Danish courts.

Recent concerns regarding the environmental and health hazards associated with PFAS-substances, commonly known as “forever chemicals”, have led to a noticeable rise in PFAS-related claims across the EU. This prompts speculation on whether Denmark will experience similar litigation. Much like trends observed in the US, PFAS claims, including class actions (see 2.16 Existence of Class Actions, Representative Proceedings or Co-ordinated Proceedings in Product Liability Claims) may arise in Denmark, alleging that the presence of PFAS substances renders products unsafe.