🇩🇰 Denmark

6         DENMARK

6.1         LEGAL FRAMEWORK

The judicial process has only been harmonized a little within the European Union, and each country is therefore relatively free to set their own rules for procedures conducted before its national courts. However, every state must act in accordance with the general principles in the European Convention on Human Rights.

6.2         MAIN PRINCIPLES

The Danish Courts consists of:

  • the Supreme Court
  • two High Courts
  • the Maritime and Commercial Court
  • the Land Registration Court
  • 24 district courts
  • the courts of the Faroe Islands and Greenland
  • the Appeals Permission Board
  • the Special Court of Indictment and Revision
  • the Judicial Appointments Council
  • the Danish Court Administration.

Unlike many other European countries, Denmark does not have special administrative or constitutional courts. Instead, the normal courts have to review the legality of public decisions or questions concerning conflicts with the Constitutional Act of Denmark (in Danish: Grundloven).

Denmark has specific committees and boards handling complaints, for example are complaints regarding fixation of rent are handled by The Housing and Rent Assessment Committee. It is very normal that these committees and boards have judges from the above-mentioned courts as members.

In Denmark, the courts are independent from the executive and legislative authorities. Section 3, 61 and 63 of the Constitutional Act of Denmark form the legal basis and provides for the division of power between the executive, the judicial and the legislative systems.

The Danish civil process is based on the rules of the Danish Administration of Justice Act and is based on a principle of negotiation between the parties.

In regards to the principle of negotiation the Danish judges can, during their voting, only consider elements that have been presented to them, for example pleadings, evidence and oral statements. It is elementary that the judges only consider what the parties have presented, but in rare cases the judges can at their own initiative decide to do their own examination of the case (ex officio examination) but this is only performed when the judges are not sufficiently informed by the parties. It is therefore very important to present the judges with all information that is beneficial to the party.

The judge can only base his or her decision on the information provided, so if party (A) does not provide sufficient material or materials at the other party’s (B) request, it can cause procedural adverse effect towards party (A).

The Danish judges have free access to appraisal of evidence, and the Danish judges have a constitutional right that provides them a special protection against dismissal and transfer from their job. A Danish judge can only be removed from his job if action is filed against him and the Special Court of Appeals rules that he should be dismissed from his job. Otherwise the office of judge is irredeemable until the judge turns 70 years of age.

6.3         MILESTONES OF A TRIAL PROCEDURE

6.3.1        Introduction of the case

A case is initially introduced to the courts with the submission of a written writ of summons in which the plaintiff presents his case. The writ of summons, usually written by the plaintiff’s lawyer, must contain sufficient information to enable the defendant to understand why a lawsuit is being filed. The requirements are outlined in section 351 of the Danish Administration of Justice Act and include, among others, a factual presentation of the case, the plaintiff’s suggestion to the handling of the case as well as a clear description of the plaintiff’s claims. In Denmark, it is common to attach only the exhibits, which are referred to in the writ of summons or following pleadings.

6.3.2        Pleadings and pre-trial

After receiving the writ of summons, the court assesses if the writ of summons is submitted to the correct jurisdiction or otherwise the court will refer the case. If the writ of summons is submitted correctly, the court can decide that the defendant has to send a statement of defence within 14 days, but it is normal to extend the deadline.

When the court receives the statement of defence, the court can convene the parties to a pre-trial hearing, unless the court assesses that such a meeting is unnecessary. These meetings are normally handled over the phone. During this meeting, the parties can discuss how they relate to the case, if an expert opinion is required, if there is any chance of a settlement as well as the time and date for the court hearing. The court can decide if there is any need for further pleadings (in Danish: replik and duplik) or meetings.

In Denmark, the deadlines are set early in the process and it can be difficult to change them later on unless the court is provided with a reasonable explanation. This has the advantage of predictability, but the rigidity of the system is sometimes excessive.

Whenever pleadings are exchanged, the exhibits referred to herein (contracts, letters, documents, etc.) must accompany the pleadings, unless these exhibits have been submitted earlier on.

Unless the parties are able to settle the case during the pre-trial process, the case will be handled by the court at the date suggested at the pre-trial hearing and agreed by the parties.

6.3.3        Public hearing

It is a mandatory rule in Denmark that all processes in the court room is to be done oral, even though most proceedings require the preparation of written pleadings. Even when the law allows oral considerations, it is recommended to submit written evidence.

The proceedings are therefore oral and the courts are generally open for the public.

6.3.4        Judgment

After the hearing, the lawyers will receive the court’s judgment, often by post or electronic transmission. Normally it takes four weeks for the judgment to arrive.

6.3.5        Appeal

Most of the time, an appeal can be made.

The appeal is a new proceeding where the purpose is to determine whether the previous judgment is correct or incorrect. Claims and allegations which have not been relied upon in the first instance can only be included if approved by the court following the opposing party’s objection. The procedure follows the same principles as those outlined above.

The High Courts

There are two high courts in Denmark – the High Court of Western Denmark and the High Court of Eastern Denmark. Appeals from a district court are referred to the high courts. Civil and criminal cases are tried by the district courts (first tier), but under certain conditions a civil case may be referred to a high court.

The Supreme Court

The Supreme Court is the final court of appeal in Denmark and is situated in Copenhagen. The Supreme Court reviews judgments and orders from the High Court of Eastern Denmark, the High Court of Western Denmark and the Copenhagen Maritime and Commercial Court.

The Supreme Court reviews both civil and criminal cases and is the final court of appeal (third tier) in probate, bankruptcy, enforcement and land registration cases. In criminal cases, the Supreme Court does not review the question of guilt or innocence, as well as there are no lay judges on the Supreme Court panel. It is only in exceptional cases where a right of appeal (third tier) to the Supreme Court is permitted (see below).

6.4         THE PRELIMINARY RULING QUESTION BEFORE THE EUROPEAN COURT

In disputes involving technology, IP and/or innovation, the rules are very often derived from a European directive or regulation.

From studying the Danish laws it can be observed that there are several Danish laws which implement EU law directives. A directive is often implemented by adding new sections to an existent Danish law concerning the related legislative area.

6.5         LAWYERS’ FEES

All parties shall pay costs associated with any procedural steps the party has made or requested. However, it is common for the Court to impose the costs on the losing party.

In Denmark, it is possible to get a free trial process. The Appeals Permission Board determines when a party shall have free process. The conditions for free process are outlined in the Danish Administration of Justice Act.

6.6         CRIMINAL PROCEEDINGS

Criminal proceedings operate under different rules that can be found in the Danish Administration of Justice Act, and some of the articles in the

Danish Copyright Act contain penal provisions for infringements.

Often the research and collecting of evidence is the most substantial part of the criminal proceedings, particular if the judges have their main focus on the expert appraisals.

6.7         JURISDICTION AND VENUE

Normally the Maritime and Commercial Court have jurisdiction in cases concerning intellectual property. The second instance in cases beginning in the Maritime and Commercial Court is the Supreme Court. This is a modification to other civil cases, which begins in a district court and can be appealed to one of the High Courts.

Where the case concerns intellectual property or IT-rights, it is very common that the parties reach an agreement via arbitration. The primary benefit of arbitration is that the case can be solved quicker, in confidentiality and the involved parties avoid any attention that might have a negative effect on their business or brand.

It is normal to have a negotiated clause regarding meditation or dispute resolution in agreements between parties. The purpose of the clause is to find consensus without spending time and money.

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