Class Actions in Denmark

• Author: Erik Werlauff
• DOI: 10.1177/0002716208328285
• Published date: 01 March 2009
• Date: 01 March 2009
• Subject Matter: Articles

The standard European consumer representative
injunction actions have been extended from 2008 by a
general class action procedure. This is normally an opt-
in mechanism, but under certain conditions, and only
for actions brought by a designated public authority
such as the consumer ombudsman, it can be brought
on an opt-out basis.
Keywords:
class actions; Denmark; Hafnia Case; class
representatives; Eternit Case; opt-in; opt-out
Class Actions in
Denmark
1. Debates Preceding the
Introduction of the Class Action
Mechanism
By
A rather long debate in general and legal
ERIK WERLAUFF
press and in academic writings preceded the
new Danish class action mechanism. While
consumer lawyers advocated for an act on class
actions, some commercial and industrial lawyers
argued that the introduction of class actions
would be a dangerous path toward an American
style of litigation. It was also pointed out that
industry might benefit from a class actions act.
Numerous cases were given as examples of the
need for a collective redress mechanism. In a
large number of cases, businesses sued the gov-
ernment for reimbursement of the so-called
ambi-tax, which was later held contrary to EU
law (the 6th VAT Directive) by the European
Court of Justice. Such cases would be far easier
to deal with under a collective redress system.
The same could be said about a number of
cases where limited and public companies were
claiming back the capital gains taxes that they had
paid to the Danish Companies and Commerce
Register (Erhvervs-og Selskabsstyrelsen)—
taxes that were later held contrary to EU law.1
Other examples where a collective redress
Erik Werlauff is a professor of business law at Aalborg
University, Denmark and a member of the Standing
Committee on Procedural Law.
DOI: 10.1177/0002716208328285
202
ANNALS, AAPSS, 622, March 2009

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CLASS ACTIONS IN DENMARK
203
scheme would have been beneficial were mentioned in the debate: a case con-
cerning a roof that collapsed,2 tragic cases concerning hemophiliacs who had
been treated with HIV-infected blood in public hospitals,3 compensation claims
for flight tickets,4 unlawful fees collected by banks,5 cases of unlawful price
trusts,6 or cases of incomplete prospectuses on stock emission.7 The problems
that cases such as these have in common are the fact that claims are often
dropped if no mechanism for considering them collectively exists and the fact
that proceeding with them individually is more expensive and is conducted in a
less efficient manner.8
2. The New Class Action System
2.1. Overview
The provisions about the courts, evidence, discovery, expert witnesses, and so
on are exactly the same in class actions as in ordinary civil procedure. There is no
special “court of class actions,” nor separate provisions on evidence or discovery.
The parties in a class action must settle for the already existing provisions.
2.2. The scope of the new mechanism
Common claims submitted on behalf of a number of persons can be consid-
ered by means of a class action under Section 254a(1) of the Administration of
Justice Act. The rules do not, however, apply to cases to which Chapters 42, 42a,
43, 43a, 43b, 44, and 88 of the act apply, that is, matrimonial cases, paternity
cases, and other nondispositive cases, including cases leading to status judgments
under family law.
Under Section 254b(1) of the Administration of Justice Act, class actions can
be brought to a court when (1) there is a common claim as specified in Section
254a, (2) there is a Danish venue for all of the claims, (3) the court is the venue
for one of the claims, (4) the court possesses the necessary expertise to deal with
one of the claims, (5) a class action mechanism is considered to be the best man-
ner of handling the claims, (6) the members of the class can...