Abstract
This paper provides an overview of the civil law consequences of corruption in the least corrupt country in the world – Denmark. It outlines the relevant terminology, including the elements of the crime, from a criminal law perspective and provides an overview of the applicable legal framework from a civil law perspective. The paper also presents and evaluates some of the most notable Danish rulings concerning the consequences of corruption, including the Carl Bro case and the Oil-for-Food cases.
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- 1.
Firstly, the protocol of the EU convention on fraud from 1995 (the Convention on the protection of the European Communities’ financial interests), secondly the EU convention on corruption from 1997 (The Convention on the fight against corruption involving officials of the European Communities or officials of the Member States of the European Union), thirdly the OECD Anti-Bribery Convention also from 1997 (the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions), fourthly the Joint Action of 22 December 1998 (adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on corruption in the private sector) and fifthly the Council of Europe’s anti-corruption convention from 1999 (the European Criminal Law Convention on Corruption).
- 2.
The following chapter is a slightly revised version of part of one of the author’s earlier publications; see LB Langsted, ‘Bribery, Bribery across Borders and the Like from a Danish Perspective’ (2009) 54 Scandinavian Studies in Law 248.
- 3.
s 304a DCC applies to arbitrators in Denmark and abroad.
- 4.
This was established by the Danish courts in UfR 1983.990 H and UfR 1985.270 Ø.
- 5.
The DCC was amended in 2000 to ensure compliance with this convention.
- 6.
The comments to art 1, para 4, point 15.
- 7.
The comments to art 1, para 4, point 16. The example provided is a political party official in a single-party state, whether or not he is formally a public official, provided that he in fact performs a public function.
- 8.
This view is supported by V Greve et al., Kommenteret straffelov II, 10th edn (Copenhagen, Jurist- og Økonomforbundets Forlag, 2012) 79.
- 9.
s 299 is only applicable if the person in question manages the trust property on behalf of its owner (in Danish: “varetager en andens formueanliggender”). See Sect. 5.2.2.
- 10.
The situation was similar in the decision reported in UfR 1974.955 Ø in which the recipient had accepted a promise of approximately DKK 500,000 in agency commission.
- 11.
C Torp’s report from 1917 on a draft criminal code states (p 253) that “the safest and most tangible criterion of whether the advantage is of this nature [undue favors which seriously endanger the honesty in a business relationship, red] is that it must be kept concealed from the person whose matters the recipient is managing. The very concealment renders it suspicious”.
- 12.
ibid.
- 13.
See for instance Greve et al., Kommenteret straffelov II (n 9), 615.
- 14.
See for instance UfR 2005.1388 V.
- 15.
Judgment of Vejle Criminal Court of 30 May 2006.
- 16.
Judgment of the Western High Court of 15 May 2007.
- 17.
For further information in English on the scope of application of criminal statutes under Danish law see LB Langsted, P Garde and V Greve, Criminal Law in Denmark, 4th edn (The Hague, Wolters Kluwer, 2014) 33 ff.
- 18.
See for instance LL Andersen and PB Madsen, Aftaler og mellemmænd, 5th edn (Copenhagen, Forlaget Thomson, 2006) 244 and H Ussing, Aftaler, 3rd edn (Copenhagen, GadJura, 1950) 190.
- 19.
See S Jørgensen, Kontraktsret I (Copenhagen, DJØF, 1971) 154 and Andersen and Madsen (n 19), 244.
- 20.
MM Fogt suggests that “there is presumably according to Danish law, a vice versa presumption that violation of a public law provision does not generate any civil law consequences unless it is clear from the objectives of the public law provision that the effect depends on or can only be countered by an additional civil law sanction”. Such presumption, however, probably leaves too narrow a room for invalidity. See MM Fogt, ‘Civil Law Consequence of Corruption in Danish Law – The Oil-for-Food Programme Cases and Beyond’ in O Meyer (ed), The Civil Law Consequences of Corruption (Baden-Baden, Nomos, 2009) 91.
- 21.
Such contract may, however, depending on the specific circumstances, be invalid due to fraud (see Sect. 5.3.1.5.1).
- 22.
See for instance Andersen and Madsen (n 19), 244 and Ussing (n 19), 190.
- 23.
This view is supported by the Norwegian Supreme Court in its decision published in NRt. 2004.1582.
- 24.
The Danish State Prosecutor for Serious Economic Crime, who handled these cases, advised in 2006 that the liability of companies and individuals was time-barred. The question of forfeiture, however, was not time-barred. In 2012 the Supreme Court decided in one of the cases that the proceeds should be confiscated, see UfR 2012.3368 H. The other companies involved In the Oil-for-Food cases had previously accepted a confiscation of their proceeds.
- 25.
UfR 2006.1914 V. The judgment is thoroughly covered by Fogt, ‘Civil Law’ (n 21), 95 ff.
- 26.
See Fogt, ‘Civil Law’ (n 21), 99.
- 27.
See for instance UfR 1954.378 Ø, 1977.874 V and UfR 2001.451 V.
- 28.
See for instance also UfR 1969.303 H (covered above in Sect. 5.3.1.1), UfR 1978.498 H, UfR 2001.631 H, UfR 2012.1914 V.
- 29.
See Fogt,’Korruptionens civilretlige virkning komparativt’ (2010) Erhvervsjuridisk Tidsskrift 271, 281.
- 30.
See R Nielsen, Contract Law in Denmark (Copenhagen, DJØF Publishing and Wolters Kluwer, 2011) 185.
- 31.
See for instance Andersen and Madsen (n 19), 164 and Ussing (n 19), 303.
- 32.
Translation from Nielsen (n 31), 134.
- 33.
ibid.
- 34.
See Andersen og Madsen (n 19), 164.
- 35.
Translation from Nielsen (n 31), 133.
- 36.
Translation from Nielsen (n 31), 137.
- 37.
Fogt, ‘Civil Law’ (n 21), 94.
- 38.
See for instance Nielsen (n 31), 172.
- 39.
See for instance B Gomard, Obligationsret II, 3rd edn (Copenhagen, Jurist- og Økonomforbundets Forlag, 2003) 80.
- 40.
The principle in s 42(2) of the Danish Sale of Goods Act is assumed to apply to all contracts, see among others Gomard (n 40), 98.
- 41.
See for instance Nielsen (n 31), 175.
- 42.
This principle is set out in s 23 of the Sale of Goods Act. See also Gomard (n 40), 132 and Nielsen (n 31), 181.
- 43.
cf s 24 of the Sale of Goods Act.
- 44.
See for instance AV Kruse, Restitutioner (Copenhagen, Gad, 1950) 335, and Ussing (n 19), 201. According to Ussing the doctrine was only applicable to payments contrary to the contra bonos mores principle, whereas the question of restitution for payments in violation of the contra legem principle would have to be decided from case to case.
- 45.
See for instance UfR 1999.305 V and UfR 2001.2374 H.
- 46.
See for instance Andersen and Madsen (n 19), 130.
- 47.
See for instance Kruse (n 45), 335, and Fogt, ‘Civil Law’ (n 21), 112.
- 48.
See for instance Andersen and Madsen (n 19), 120 and Ussing (n 19), 240.
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Langsted, P.D., Langsted, L.B. (2015). The Civil Law Consequences of Corruption According to the Laws of the Least Corrupt Country in the World – Denmark. In: Bonell, M., Meyer, O. (eds) The Impact of Corruption on International Commercial Contracts. Ius Comparatum - Global Studies in Comparative Law, vol 11. Springer, Cham. https://doi.org/10.1007/978-3-319-19054-9_5
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