Denmark

Status

Adopted

Explanatory note re status

The legislative process for the implementation of the Omnibus Directive into Danish law has been completed by introducing (trough two acts and one ordinance) amendments to the following laws:

• Consumer Contracts Act,
• Contracts Act,
• Marketing Act
• Order on Information on the Selling Price and Unit Price of Consumer Goods

As required by the Omnibus Directive the new rules have come into force on 28 May 2022.

Implementation Act

Act No 2158 of 27 November 2021 amending the Consumer Contracts Act and the Contracts Act (Amendment of the rules on consumer contracts as a result of the implementation of certain parts of the New Deal for Consumers Directive package (Modernisation Directive) and amendments to consumer protection rules falling outside the implementation of the Modernisation Directive) ("Lov nr. 2158 af 27. november 2021 om ændring af lov om forbrugeraftaler og lov om aftaler og andre retshandler på formuerettens område (Ændring af reglerne om forbrugeraftaler som følge af implementering af visse dele af direktivpakken New Deal for Consumers (moderniseringsdirektivet) og ændringer af forbrugerbeskyttende regler, der falder uden for implementering af moderniseringsdirektivet)")

Act No 2192 of 30 November 2021 amending the Marketing Act (Implementation of amendments to the Unfair Commercial Practices Directive and introduction of rules on commercial practices directed at children and young people and new penalty model, etc.) ("Lov 2021-11-30 nr. 2192 om ændring af lov om markedsføring (Gennemførelse af ændringer i direktivet om urimelig handelspraksis og indførelse af regler om handelspraksis rettet mod børn og unge samt ny bødemodel m.v.)")

Order No 2292 of 3 December 2021 amending the Order on Information on the Selling Price and Unit Price of Consumer Goods ("Bekendtgørelse 2021-12-03 nr. 2292 om ændring af bekendtgørelse om oplysning om salgspris og enhedspris for forbrugsvarer")

(Envisaged) Implementation Date

As required by the Omnibus Directive the new rules have come into force on 28 May 2022.

Approach to implementation

Amendments to existing laws (see "Implementation Act" above).

Next steps

N/A

A. Amendment to Unfair Contract Terms Directive (Directive 93/13/EEC)

What penalties can be imposed for infringements of consumer rights related to consumer contracts? 
Has the option to limit the penalties been implemented?  

The Danish Consumer Protection Act and Danish Marketing Act provides for administrative fines in case of infringement of the national provisions adopted pursuant to the Unfair Contract Terms Directive. It is the Danish Consumer Ombudsman who monitors the market for infringements and who may issue administrative fines. The number of provisions for which infringement may be met with a fine have been significantly expanded.

According to the amended Art. 34 (1) in the Danish Consumer Protection Act and Art. 37 (3) of the Danish Marketing Act, fines can be imposed for infringements of, inter alia:

• violation of various (precontractual) information obligations, including information obligations for online market places;
• violation of the rules regarding the statutory withdrawal period;
• charging consumers in violation of certain legal requirements; and
• unfair commercial practices.

B. Amendments to Price Indications Directive (98/6/EC)

I. What obligations must traders now comply with when advertising price reductions to consumers?

In announcements of price reductions, the seller shall indicate the normal sales price, which shall be the lowest applied sales price during a period of not less than 30 days before the application of the price reduction.

For goods which are liable to deteriorate or expire rapidly (in particular food), the 30 days' period has been reduced to 14 days.

In case of progressive, uninterrupted price reductions, the normal sales price shall be the sales price which applied before the first price reduction.

II. What penalties can now be imposed for infringements of consumer rights related to the indication of the prices of products offered to consumers? What criteria have been established for the imposition of the fines?

Danish law contains penalty provisions applicable to infringements of the national provisions adopted pursuant to the Price Indications Directive. Pursuant to Art. 37 (3) of the Danish Marketing Act, the Danish Consumer Ombudsman can impose administrative fines. Indicative levels of the fines are not set out in the law, but the indicative criteria (severeness and the offender's turnover) have now been included.

C. Amendments to Unfair Commercial Practices Directive (2005/29/EC)

I. What are the implications of "digital services and content" now being considered "products" under the Unfair Commercial Practices Directive? 

The Unfair Commercial Practices Directive has been implemented in the Danish Consumer Protection Act, so that "digital goods" and "digital services" are excplicitly included in the protection.

The possibility in the New Deal for Consumers directive (2019/2161) of extending the area of application to also include (i) situations where the trader only collects metadata, and (ii) situations where the consumer without having entered into an agreement with the trader is subjected to advertisements in order to access digital goods or digital services, have not been exercised. These situations are therefore not included in the protection.

II. What changes for traders who offer goods and services of different traders or consumers on their website that are displayed in a certain order when searched by a consumer ("rankings")?

Online market places that offer search functionalities will have to provide clear information on the main parameters used to the rank product in online searches and their relative importance (Danish Marketing Act Art. 6a).

Provision of search results on the basis of a consumer's online search without clearly indicating any type of advertisement or payment for higher search result ranking has been added to the list of trading practices that are always considered unfair (Danish Marketing Act, Appendix 1, 11(a)).

Failure to comply with these obligations is subject to administrative fines.

III. What are the transparency obligations that traders who operate online marketplaces where other traders and consumers can sell goods and services must comply with now?

Online market places must inform consumers of whether products offered on the market place is offered by a commercial third party or not, based on such third party's declaration to the market place (Danish Marketing Act Art. 6 (2)(7).

This information is considered "essential" and failure to provide it is subject to administrative fines.

IV. Are there any new provisions for consumer protection against unfair practices in doorstep selling and commercial excursions?

Doorstep selling is illegal under current Danish law and remains illegal after the implementation of the directive. Because doorstep selling is illegal and agreements entered in such situations are invalid, it was considered unnecessary to use the option to extend the right to withdraw from a transaction or to implement other provisions.

In relation to commercial excursions, it was decided not to implement any new provisions as the use of commercial excursions are considered to be very limited and the existing regulation is considered sufficient.

V. What transparency obligations must traders who publish consumer reviews now comply with?

Traders who provide access to reviews of products must in a clear and easily understandable way inform the customer of (i) whether the trader has ensured that the reviews actually stem from consumers who have used or bought the products, and (ii) if so, how it has ensured this (Danish Marketing Act, Art. 6 b).

It is considered misleading commercial practice to state that reviews are made by consumers who have actually used or bought the product if the trader has not taken appropriate measures to ensure that the review actually stems from such consumers (Danish Marketing Act, annex 1, no. 23 b).

It is also considered misleading commercial practice to submit or acquire fake reviews from other commercial or private parties (Danish Marketing Act, annex 1, no. 23 c).

VI. What must traders who market a good, in one Member State, as being identical to a good marketed in other Member States, while the goods have a different composition ("dual quality"), consider now?

It would seem that marketing goods in one Member State, as being identical to goods marketed in other Member States, while the goods have a different composition ("dual quality") has not been added to the list of misleading commercial practice.

VII. Under what conditions and with what effects are legal remedies now available to consumers who have been harmed by unfair commercial practices?

Pursuant to current Danish law, traders can be held liable for damages resulting from unfair commercial practices (Danish Marketing Act, Art. 24 (2).

Also, a contract concluded as a result of an unfair commercial practice may be set partly or wholly set aside (Danish Contracts Act, Art. 38c (1), cf. article 36 (1)).

VIII. What penalties can be imposed for infringements of consumer rights by unfair commercial practices?

Current Danish law contains penalty provisions applicable to infringements of the national provisions adopted pursuant to the Unfair Commercial Practices Directive, pursuant to Article 37 (3) of the Danish Marketing Act.

Under the amended Art. 37 (7) of the Danish Marketing Act, violation of the provisions regarding unfair commercial practices which may hurt the interests of consumers in at least two other member states may be fined with up to 4% of the traders annual turnover in the relevant member states (capped at EUR 4,000,000 if there is no information on the trader's annual turnover).

D. Amendments to Consumer Rights Directive (2011/83/EC)

I. What are the implications of "goods with digital elements" and "digital services and content" now falling within the scope of the Consumer Rights Directive? Must traders consider any new information requirements? 

Goods with digital elements as well as digital content and digital services are now subject to the same rules as all other goods and services covered by the Consumer Rights Directive.

For goods with digital elements and digital content and digital services, however, additional information requirements for traders apply which have been implemented in the Danish Consumer Contracts Act, Art. 8 (1)(23) and (24). These include that the trader must, before entering the contract, give the consumer:

• Information, where relevant, on the functionality, including applicable technical protection measures, and
• Information on the compatibility and interoperability of digital content, services and goods with digital elements.

II. Do the national provisions that transpose the rules under the Consumer Rights Directive also apply when consumers "pay" for the provision of digital content or services with personal data?

Yes, the Danish Consumer Contracts Act now also applies to situations where the consumer "pays" for the digital content or digital service. This is done by reference in the Danish Consumer Contracts Act, Art. 2 to the Danish Sales of Goods Act, Art. 4a (3).

The possibility of expanding the area of applicability to also include (i) situations where the trader only collects meta data or (ii) situations where the consumer without having an agreement with the trader is exposed to advertisements in order to access digital content or a digital service, has not been utilized and will therefore not be covered by the national consumer protection regulation.

III. What new information obligations and formal requirements must traders comply with for distance or off premise contracts with consumers? 

Traders must now always provide their telephone number to the consumer when concluding a distance or off-premise contract. The obligation to indicate the fax number, on the other hand, is no longer applicable. (Danish Consumer Contracts Act, Art. 8 (1)(2) and Art. 17 (1)(2).

The trader must now also inform the consumer, where relevant, if the price has been personalized based on automated decision-making process (Danish Consumer Contracts Act, Art. 8 (1)(7).

Where there is only limited space or time to display the information, the main characteristics of the goods or services, the total price, the right of withdrawal, the duration of the contract and the conditions of termination of indeterminate contracts must be indicated (Danish Consumer Contracts Act, Art. 11 (2). However, the trader must still provide the other mandatory information, including the model withdrawal form, in an appropriate manner.

IV. Which additional specific information requirements apply for contracts concluded on online marketplaces? 

Before concluding a distance contract on an online marketplace, the online marketplace provider shall provide, in a clear and comprehensible manner suitable for distance communication, information on

1. the identity and place of establishment of the third party offering the goods, services or digital items content on the online marketplace,
2. whether that third party is a trader,
3. if the third party is not a trader, whether consumer rights under EU consumer protection law apply to the contract,
4. where applicable, how the obligations under the contract are shared between that third party and the online marketplace provider; and
5. general information on the main parameters for ranking the offers made to the consumer presented to the consumer as a result of a search and the relative importance of those parameters in relation to other parameters.

(Danish Consumer Contracts Act, Art. 8a)

(1) above is a requirement set out by the Danish legislator in addition to the information required in according with the Directive.

V. In case of a withdrawal by the consumer: What must traders consider with regard to the use of content (other than personal data) created or provided by the consumer when using digital products provided by the trader? 

Upon withdrawal from a contract for the provision of digital content or a digital service, the trader must:

1. comply with the obligations applicable under the GDPR; and
2. refrain from using any content, other than personal data, which the consumer provided or generated by the use of the digital content or digital service, except where the content

(a) cannot be used outside the context of the digital content or digital service,

(b) relates only to the consumer's activity in using the digital content or digital service,

(c) has been aggregated with other information of the trader and is not separable or can be separated only with disproportionate effort; or

(d) is jointly generated by the consumer and others and other consumers can continue to make use of the content.

(Danish Consumer Contracts Act, Art. 22a (1))

The trader shall make available to the consumer, at the consumer's request, any content other than personal data provided or generated by the consumer using the digital content or digital service, unless that content is covered by Art. 22a (1)(2)(a)-(c) above. The consumer shall be entitled to download that content free of charge, without hindrance from the trader, within a reasonable time and in a commonly used and machine-readable format (Danish Consumer Contracts Act, Art. 22a (2)).

The trader may prevent the consumer's continued use of the digital content or digital service, in particular by making the digital content or digital service inaccessible to the consumer or by making the consumer's account inactive, without prejudice to the consumer's rights under Art. 22a (2) (Danish Consumer Contracts Act, Art. 22a (3)).

VI. What are the new provisions for the expiry of / exceptions from the consumer's right of withdrawal? 

The right of withdrawal does not apply to delivered non-financial services, if the delivery of the service (a) is not provided against payment or if it (b) is commenced with the consumers' prior express consent and acknowledgement that they thereby lose their right of withdrawal (Danish Contracts Act, Art. 18 (2)(2)).

The right of withdrawal also does not apply to the delivery of digital content which is not delivered on a physical medium, if (a) the digital content is not delivered against payment; or (b) performance has begun with the consumers' prior express consent and acknowledgement that they thereby lose their right of withdrawal and the trader has given a confirmation in accordance with the second subparagraph of Art. 10 (2) or the second subparagraph of Art. 13 (2) (Danish Contracts Act, Art. 18 (2)(13)).

The confirmation must be provided on paper or, if the consumer consents, another durable medium.

VII. What penalties can be imposed for infringements of consumer rights? 

In assessing fines for infringements referred to in the Danish Consumer Contracts Act, Art. 34 (1) and the Danish Marketing Act, Art. 37 (3) (see answer to A.), which may harm the collective interests of consumers in at least two EU Member States other than Denmark, the fine may not exceed 4% of the annual turnover of the trader in the Member States concerned. If information on the trader's turnover is not available, the fine may not exceed EUR 2,000,000 (Danish Consumer Contracts Act, Art. 34 (4) and Danish Marketing Act, Art. 37 (7)).

Under the amended Danish Consumer Contracts Act, Art. 38f, the Danish Minister of Justice may, on the recommendation of the Consumer Ombudsman, lay down rules to the effect that traders who apply specified standard terms which are clearly unfair to apply in consumer contractual relations, as defined in Sec. 38c of the Consumer Contracts Act, shall be punished by a fine. The Danish Minister of Justice may also lay down rules providing for fines under the before mentioned infringements, which may harm the collective interests of consumers in at least two EU Member States other than Denmark; these fines may not exceed 4 per cent of the trader's annual turnover in the Member State or Member States concerned. If information on the turnover of the trader is not available, the fine may not exceed EUR 2,000,000.

E. Optional Provisions and Deviations

Has the Member State transposed a provision which is optional under the Omnibus Directive or made use of a deviation possibility provided for therein?

The only optional provisions/deviations Denmark has made use of are.

• Art. 6a No. 3 to 5 Price Indication Directive: Denmark has made use of the option to exempt certain prodcuts or practices from the obligation to indicate the prior price when announcing a price reduction (see B. I. above)
• Art. 6a para. 2 Consumer Rights Directive: Denmark has made use of the option to regulate additional information obligations for online marketplace operators (see D. IV. above).

Noteworthy points arising from legislative changes

N/A

Notable case law and/or enforcement action

N/A