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Private Enforcement Class Action in Denmark

Private Enforcement Class Action in Denmark . 28 September 2007, Danish Association for Competition Law Jan-Erik Svensson. Overview. Principle of res iudicata (estoppel) Judgements only have effect inter partes , not erga omnes Precedential value

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Private Enforcement Class Action in Denmark

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  1. Private EnforcementClass Action in Denmark 28 September 2007, Danish Association for Competition Law Jan-Erik Svensson

  2. Overview • Principle of res iudicata (estoppel) • Judgements only have effect inter partes, not erga omnes • Precedential value • De facto class action – previous possibilities • Joinder of actions, cf. sections 250 and 254 of the Administration of Justice Act • Danish Consumer Ombudsman, cf. Danish Marketing Practices Act • Amendments to the Administration of Justice Act – Class action rules • Chapter 23 a • Adopted on 22 February 2007 - Effect from 1 January 2008

  3. Criteria • Claims are uniform (not necessarily “identical”) • Jurisdiction • Venue for all claims in Denmark, • Court is correct jurisdiction for one of the claims; and • Court has subject-matter competence in respect of one of the claims • Class action is believed to be the best way in which way to hear the claims – Joinder of actions may take precedence • Class members can be identified and notified of the case in an appropriate way • Appointment of a class representative

  4. Practical issues • Opt-in model – with a possibility of opt-out in some instances • Class representative appointed by the Court • Class member, • Association, private institution, or other organisation where proceedings are within the framework of the object of the organisation; or • Public authorities with statutory authority thereto (currently the Danish Consumer Ombudsman in limited areas) • Class representative is a party – class members are not • Class representative may be asked to provide security for costs • Not all steps can be taken by the class representative, e.g. settlements must be accepted by the Court

  5. Private Enforcement • Class action must be the best way • Cartel cases - Identify group - Prove loss, pass on - Possibly group of losses - Often different and individual claims - Ascertain liability, thereafter individual cases dealing with causation, size of claim, etc.

  6. Private Enforcement • Class action must be the best way • Abuse of dominance • Types of abuse, tying, excessive pricing, other? - Identify group - Prove loss, pass on - Possibly group of losses - Often different and individual claims - Ascertain liability, thereafter individual cases dealing with causation, size of claim, etc.

  7. Private Enforcement • Grounds for violation (liability?) proven with the decision by the competition authority • Individual cases, as evidence is needed in each case • Sweden has had class action rules since January 2003, - no cases of private enforcement of competition rules, but many other cases

  8. Class action / Private Enforcement Jan-Erik Svensson Gorrissen Federspiel Kierkegaard H.C. Andersens Boulevard 12 DK-1553 Copenhagen V Telephone: (+45) 33 41 41 41, Fax: (+45) 33 41 41 33

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