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  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 Effect from 1 January 2008

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

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

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.

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.

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

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