|I. ADMINISTRATIVE ENFORCEMENT
|Which administrative mechanisms are available to enforce the UCP Directive?
The primary administrative mechanism in regards to enforcing the UCP Directive implemented primarily in the Danish Marketing Practices Consolidation Act is the Consumer Ombudsman cf. Section 22 of the act. This section states that it is the responsibility of The Consumer Ombudsman to monitor compliance with this Act and the executive orders issued pursuant to this Act, especially in the interests of consumers. This is ment to be a priority rule, not a jurisdiction rule, which means the authority of The Consumer Ombudsman is not limited to subjects regarding consumers.
Furthermore The Consumer Ombudsman may carry out inspections for the purpose of processing complaints forwarded from enforcement authorities in other EU countries pursuant to Regulation (EC) No 2006/2004 on consumer protection cooperation, and which concern infringements of directives for which the Consumer Ombudsman has been appointed the competent authority cf. Section 22a.
The Consumer Ombudsman shall seek by negotiation to influence traders to act in accordance with the principles of good marketing practice and to observe this Act in other respects cf. Section 23(1).
In addition he produces guidelines for marketing in specified areas that must be considered essential, especially in the interests of the consumer and he has the authority to, on request, give a statement regarding his view of the lawfulness of contemplated marketing arrangements, unless an opinion would be subject to unusual doubt or other special circumstances exist. An advance indication does not amount to an actual opinion of the lawfulness of the arrangement concerned.
|Who can file administrative complaints?
Although The Consumer Ombudsman primarily handles problems regarding consumers, complaints can be filed by anyone for instance consumers, competitors or other traders even anonymously. In addition the Consumer Ombudsman is intituled to process issues regarding The Marketing Act on his own initiative c.f. the Marketing Act Section 22.
|Do any specific procedural requirements apply to filing administrative complaints?
There are no legal requirements you need to meet in order to file a complaint, however the Consumer Ombudsman has issued a guide on his website (www.forbrugerombudsmanden.dk) listing which information is recommended to state in the complaint to insure he has all needed information in order to asses the complaint. (For instance information about the trader the complaint concerns, why the trader is thought to violate the Marketing Act, documentation etc.)
On the website of The Consumer Ombudsman is a printed form for filing complaints but using it is optional.
|Do the administrative authorities have an obligation to investigate the complaint?
The Consumer Ombudsman does not have obligation to investigate the complaint. All complaints filed with the ombudsman will be assessed, but it is his choice weather a complaint should be investigated further or not.
The assessment is generally based on the following circumstances:
- is the problem base for many complaints?
- is the issue a general problem seen in several trades?
- how severe is the problem in regard to each person?
|Are there any specific requirements regarding the provision of evidence to the competent authorities?
There are no specific requirements regarding the provision of evidence to The Consumer Ombudsman.
The Consumer Ombudsman however has authority to require the disclosure of all details considered necessary for his activities, including decision as to whether a matter falls within the purview of the Act cf. Section 22(2.)
|II. ENFORCEMENT THROUGH COURT ACTION|
|Which court actions are available to enforce the UCP Directive?
Under Section 20 of The Marketing Act actions in conflict with the Act may be prohibited by judgements.
As a consequence the regular court action of filing a civil suit is also available to enforce the implemented directive.
Concurrently with this or subsequently there is the posibility of imposing injunctions cf. below.
|Who can start a court action?
Under Section 27 anyone with a legal interest therein may start the court actions in accordance with Section 20.
Under Section 27 The Consumer Ombudsman has the authority to start court actions on his own initiative as well.
The term legal interest is not conclusively defined in Danish law but in general the plaintiff needs to have an individual interest in the case and he or she need to be individually affected by the outcome.
|Can court actions be initiated by competitors?
Court actions can be initiated by competitors as long as they have the sufficient legal interest.
|Can the case be handled through an accelerated procedure?
Because of the often urgent nature of these types of lawsuits it is possible to obtain an injunction to restrain the breach.
A case regarding an injunction of this matter is handled through the regular procedure in the Danish Administration of Justice Act chapter 57.
In short the bailiff's court process the case and is able to issue an injunction to stop the action violating the Marketing Act. Furthermore the bailiff's court has authority to order certain actions from the violator in order to insure compliance with the injunction.
In order to obtain an injunction the plaintiff must prove or render probable:
- that the actions wanted prohibited is in conflict with rights of the plaintiff
- that the defendant is going to carry out the actions wanted prohibited
- that the overall goal of the injunction would be wasted if the plaintiff is referred to the ordinary courts.
|Are there any specific requirements regarding the provision of evidence to the court?
In general the provision of evidence in regards to the ordinary court actions are no different than other civil or penal cases.
One should however pay attention to the provisions in the Danish Marketing Act Sections 3(3) and 22(2) regarding the traders duty to submit documentation and information regarding their behavior on the market.
Section 3(3) furthermore states that the trader must be able to prove factual information. The burden of proof regaring facutal information thereby is the traders.
|What are the possible civil sanctions and remedies for the infringement of the UCP provisions?
Under Section 20 of The Marketing Act actions in conflict with this Act may be prohibited by judgments.
Concurrently with this or subsequently, such injunctions may be imposed by judgments as may be considered necessary to ensure:
Compliance with the prohibition, including through provision that agreements entered into in conflict with a prohibition are invalid and restitution of the state of affairs existing before the unlawful action, including destruction or recall of products and issue of information or correction of statements.
Actions in conflict with The Marketing Act incur liability to pay damages under the general rules of Danish law.
Any person who infringes or unwarrantably takes advantage of another’s rights in conflict with this Act shall pay reasonable damages for this.
If infringement or exploitation of rights in conflict with The Danish Marketing Act has taken place neither intentionally nor through negligence, the offender shall pay damages to the extent deemed reasonable.
|What are the possible criminal sanctions for the infringement of the UCP provisions?
The possible criminal actions are regulated in Section 30 of the marketing Act.
Under this section several actions are sanctioned with either fines or imprisonment.
Non-observance of a prohibition or injunction imposed by the court or an injunction imposed by the Consumer Ombudsman under Section 23(2) or under Section 27(2) shall be liable (however, non-observance of an order to repay a payment received does not carry a penalty) of a fine or imprisonment of up to four moths.
A party who omits to mention information required under section 22(2), or under section 22a(3) second sentence, or under circumstances covered by The Danish Marketing Act gives the Consumer Ombudsman incorrect or misleading information, is liable to a fine unless a more severe penalty is prescribed under other legislation.
Infringement of the provisions of section 3(1-2), sections 4-6, section 8(2), sections 9-11, section 12a(1-2), section 13(1-4), section 14, section 15(3) and section 16(1-4) and deliberate infringement of section 18 is liable to a fine unless a more severe penalty is prescribed under other legislation. Infringements of section 3(2) that consist of damaging references to another trader or matters that apply in particular to the party in question and infringement of section 5 are subject to private prosecution.
Infringement of section 19 is liable to a fine or imprisonment of up to eighteen months, unless a more severe penalty is prescribed under section 299 a of the Danish Penal Code. Prosecution will take place only at the request of the injured party cf. subparagraph 4.
Further more the Danish Penal Code supplies the Marketing Act with sanctions for actions that might also
|What are the possible administrative sanctions for the infringement of the UCP provisions?
In general The Consumer Ombudsman shall seek by negotiation to influence traders to act in accordance with the principles of good marketing practice and to observe The Danish Marketing Act in other respects cf. Section 23(1).
The negotiation however is more than friendly conversation, and if a trader disregards an undertaking given to the Consumer Ombudsman after negotiation under subsection (1), the
Consumer Ombudsman may impose such injunctions on the trader as may be considered necessary to ensure compliance with the undertaking cf. subsection (2). These injunctions are criminally sanctioned cf. Section 30(1)
Furthermore The Consumer Ombudsman may impose a provisional prohibition where there is an obvious danger that the purpose of a prohibition as referred to in section 20(1) will be lost if the court’s decision must be awaited cf. Section 29.
A case to affirm the prohibition shall be brought not later than the next working day. The rules in sections 642 No. 2, 643, 645(1-3) and 651 of the Administration of Justice Act apply correspondingly, and the rules in sections 636, 638 and 648(2) apply subject to the
|What are the contractual consequences of an administrative order or a judgement relating to an unfair commercial practice on an individual transaction?
Misleading and aggressive commercial practices can be terminated by initiating a cease and desist procedure. In practice this procedure will be initiated by a competitor or The Consumer Ombudsman, who are not a party to the individual transaction with the consumer. The individual transaction will therefore not be affected by a cease and desist decision, since a judicial decision only produces effects between the parties to the procedure, in casu the vendor and his competitor or The Consumer Ombudsman.
Nevertheless, a procedure can also be initiated by the consumer who contemplates that the contract is void because he has concluded the contract with a mistaken consent. He will thus allege that this mistaken consent originates from inter alia error, fraud or violence. If a competent court concludes that the vendor has conducted an aggressive or misleading commercial practices, the consumer will be able to prove the origin of his mistaken consent and thus his contract will be declared void.
|How can consumers get redress/compensation (e.g. through collective actions)?
In general the consumers can get compensation by filing a civil lawsuit themselves. Under Section 20(2) of The Marketing Act actions in conflict with this Act incur liability to pay damages under the general rules of Danish law. And under 20(3) any person who infringes or unwarrantably takes advantage of another’s rights in conflict with this Act shall pay reasonable
damages for this.
If a majority of consumers have a uniform claim for damages as a result of infringement of the provisions of the Marketing Act, the Consumer Ombudsman may treat this as a single claim cf. Section 23.
The Consumer Ombudsman may be appointed as group representative in a collective action, cf. Part 23a of the Administration of Justice Act cf. Section 23(2)
|Can the administrative authorities or the courts require the publication of their decisions?
The Consumer Ombudsman usually publics his decisions in a press release on his website.
The Danish court system has a principle of free access to public records which entails that the public has access to court decisions in general unless tangible circumstances should speak against it. In that case the couth can decide to exempt a case from publicity. It is not custom in Danish legal practice that the courts themselves publish their decisions.
|IV. OTHER TYPES OF ENFORCEMENT|
|Are there any self-regulatory enforcement systems in your jurisdiction that deal with aspects of the UCP Directive?
|Are there any mediating services that deal with aspects of the UCP Directive (e.g., an ombudsman)?