Denmark updates

Employment & Benefits

Ministry of Employment liable for replacement holiday damages
  • Denmark
  • March 08 2017

In a recent decision, the Supreme Court considered whether the Ministry of Employment was liable for damages regarding replacement holiday. The court found that the Danish authorities had set aside EU law and were liable for damages. However, as the employee's holiday had taken place in 2010 – before the Holiday Act should have been amended – the employee was not entitled to compensation.

Revisions tabled in 2016/2017 legislative programme
  • Denmark
  • December 14 2016

The government recently presented its legislative programme for the parliamentary year 2016/2017. The programme contains a number of upcoming proposals for amendments within the area of employment and labour law, including proposed amendments to the Holiday Act, the Childbirth Act, the Public Servants Act, the Working Environment Act and the Vocational Training Act.

Relocation and dismissal of disabled employee in flexible job not contrary to Anti-discrimination Act
  • Denmark
  • September 21 2016

A recent Board of Equal Treatment case involved a municipality's alleged discrimination against a disabled employee who was relocated to another flexible job with a reduced salary and later dismissed on the grounds of improving efficiency. The board found that the employee had accepted employment in a new flexible role and that the salary reduction was not an expression of discrimination, but rather a question of applying new rules for flexible jobs.

Senior employee entitled to bonus
  • Denmark
  • July 20 2016

The Maritime and Commercial Court considered whether a senior employee's claim for a bonus payment under a bonus plan constituted 'salary' as defined in Section 17a of the Salaried Employees Act. The court attached significance to the contents of the bonus plan, the purpose of Section 17a and the wish to counter the risk of circumvention. Consequently, the senior employee was entitled to a direct proportional share of the agreed bonus.

Obesity not necessarily a disability
  • Denmark
  • May 11 2016

A recent judgment shows that obesity alone does not constitute a disability under the Anti-discrimination Act, but that it may do so in certain special circumstances. Obesity may constitute a disability only if it has been sufficiently documented that physical, mental or psychological impairments or discomfort caused by it prevent the affected employee from fully and effectively carrying out his or her work on an equal basis with others.

Energy & Natural Resources

Contributed by Bruun & Hjejle
New subsidy scheme for wind and solar power 2018-2019
  • Denmark
  • January 08 2018

Due to a recent agreement between the government and the Danish People's Party, solar and wind power projects will compete for state subsidies for the first time. Under the new subsidy model, the solar power, land windmill or near-shore windmill projects which deliver the highest amount of megawatts for the lowest price will receive subsidies until the budget is allocated. Subsidies will be awarded as a fixed additional charge to the electricity cost.

Recommendations for new energy policy
  • Denmark
  • July 10 2017

The government-established Energy Commission recently filed its recommendations for the future energy policy. The commission's report forms part of the policy preparation for the next stage of Denmark's green transition. The central message of the recommendations is that to reach the goal of a low-emissions society by 2050, an ambitious and long-term energy policy must be established by 2020.

Reasonable return on invested capital in heating supply sector
  • Denmark
  • April 10 2017

In several energy supply industry sectors, profits are allowed only as a reasonable return on invested capital subject to regulatory control. This applies, for example, to the electricity distribution, gas distribution and heating supply sectors. The Danish Energy Regulatory Authority is in the process of establishing new methods and principles for determining a reasonable return on invested capital across the different sectors.

Plan for financial regulation of electricity distribution
  • Denmark
  • December 05 2016

The government recently came to an agreement with a majority of Parliament concerning the financial regulation of electricity distribution companies. The agreement is the first step towards the government's new energy supply strategy. However, its details remain vague, including with regards to general and individual optimisation requirements.

Optimisation potential and privatisation in energy supply sector
  • Denmark
  • September 12 2016

McKinsey & Company recently delivered a report analysing the optimisation potential in the energy supply sector as part of the government's anticipated energy supply strategy. The report covers district heating, waste incineration, electricity distribution, gas distribution and water supply, and concludes that there is potential for optimisation of between Dkr5.9 billion and Dkr7 billion annually across these sectors.

Environment & Climate Change

Denmark ratifies Hong Kong convention promoting environmentally sound ship recycling
  • Denmark
  • October 03 2016

Denmark recently ratified the Hong Kong Convention for the Safe and Environmentally Sound Recycling of Ships, which aims to ensure that ships being recycled at the end of their operational lives pose no unnecessary risk to human health and safety or the environment. It is hoped that the convention will help to set global standards to ensure that ships are broken up safely.

New agricultural legislative package announced
  • Denmark
  • April 11 2016

The government recently agreed to a new legislative package on foodstuffs and agriculture that aims to introduce more specific regulations to fully realise the potential of Danish agriculture. The package has since come under criticism from scientists who believe that the numbers behind the proposal are misguiding, and that the package will have larger environmental impacts than first assumed and presented to Parliament.

Healthcare & Life Sciences

Court awards historically high damages in patent case
  • Denmark
  • February 08 2017

The Maritime and Commercial High Court recently awarded Teva Denmark A/S €13.45 million in damages and €594,000 in legal costs in a patent case. This is the largest amount of damages ever awarded in a Danish patent case and will therefore be subject to thorough review when constructing arguments on damages in future cases.

Repackaging parallel imported pharmaceuticals – new interpretation of necessity requirement
  • Denmark
  • December 14 2016

The Maritime and Commercial High Court recently referred to the European Court of Justice the question of whether a trademark holder can lawfully object to the continued marketing of a parallel imported, repackaged pharmaceutical product on which its trademark has been reaffixed if the trademark holder has marketed the product in the same volume and packet size in other European Economic Area countries.

Quetiapine patent invalidated – Danish court follows suit
  • Denmark
  • September 07 2016

The Maritime and Commercial High Court recently invalidated AstraZeneca's Danish quetiapine sustained release patent in litigation against Teva Denmark A/S and Accord Healthcare Ltd. Before this judgment, the validity of AstraZeneca's patent had been successfully challenged in several European countries, including the United Kingdom, Spain, Germany and the Netherlands.

Specific Mechanism applies to paediatric extension of SPCs and all strengths of pharmaceutical
  • Denmark
  • June 08 2016

The Supreme Court recently examined a case regarding whether the Specific Mechanism applies to the extension of a supplementary protection certificate (SPC) under the Paediatric Extension Regulation. The court confirmed the enforceability of the Specific Mechanism against the parallel import of pharmaceuticals from new EU member states, even if the extended SPC is based on the Paediatric Extension Regulation.

No particular importance attached to European invalidity judgments regarding European patent
  • Denmark
  • March 30 2016

The question of whether courts should consider foreign invalidity judgments regarding the same European patent is a common theme in patent proceedings. According to a recent decision in a case concerning a request for a preliminary injunction against the sale of a generic version of pharmaceutical Seroquel Prolong on the Danish market, little importance is attached to foreign invalidity judgments.

Intellectual Property

Influence of reputed trademark on marketing practices
  • Denmark
  • November 20 2017

The Maritime and Commercial High Court recently granted Danish company Dyrup A/S a preliminary injunction without security against Nowocoat International A/S for design and layout infringement of Dyrup's wood protection products. This decision is notable, as the majority of judges found that it was possible for end-consumers to disregard a well-known trademark and recognise a product only by its design, while also confusing it with another product.

When does copyright protection exist in Denmark?
  • Denmark
  • July 24 2017

The bar for copyright infringement of industrial works in Denmark is rather high. A copy must be very similar to an original work and an original work cannot be of a simple or technical nature. In a recent Commercial and Maritime Court case, the Danish ceramics company Kähler's Omaggio series of vases and candleholders was granted copyright protection and Bovictus A/S's KJ collection was found to infringe Kähler's copyright.

Designer banned from using own name as trademark
  • Denmark
  • March 06 2017

A recent Supreme Court case explored the right of individuals to use their own names, an issue on which the general public has strong opinions. The court stated that where a person has used his or her own name as a trademark and assigned the trademark to a third party, the principle of good marketing practice entails that he or she is then prevented from using the name as a trademark for goods or services similar to those for which the trademark was registered.

JT Olesen: shirt manufacturer earns its stripes
  • Denmark
  • May 23 2016

The Maritime and Commercial High Court recently ruled in favour of shirt manufacturer JT Olesen, finding that competitor Natex's Stanfield Shirt infringed the registered design of JT Olesen's Oscar Shirt and was a slavish imitation of it under the Marketing Practices Act. The court noted that the distinctive features of the Oscar Shirt were, among other things, contrasting-coloured edges in combination with stripes.