28 October 2013

The State Administration approves municipalities' use of social clauses

A new statement from the State Administration clarifies the legality of labour clauses within municipal law. 

Danish municipalities often wish to use their purchases of goods, services and construction works to promote a number of social considerations, e.g. by inserting clauses in the agreements that the supplier must meet requirements concerning e.g. the number of apprenticeships, that the goods are manufactured in a certain way or requirements in relation to pay and employment terms. Such clauses are often called social clauses.

In particular, the kind of clause containing requirements for the pay and employment terms offered by the supplier to its employees has attracted attention. Such clauses, which are often called labour clauses or ILO clauses, have given rise to considerations in relation to the unwritten public policies on the local government mandate and also in relation to EU regulation.

On 22 October 2013, the State Administration issued an informative statement clarifying the labour clauses in relation to the local government mandate:

On 6 June 2013, the Copenhagen City Council decided to insert labour clauses in its procurement contracts. These clauses obligate the municipal supplier to ensure that the pay and employment terms are not less favourable than those applying where the task is performed. The reason for Council's decision was that the State Administration  had provided this opportunity in a statement.

In its statement, the State Administration refers to the statement of the Ministry of Economic and Business Affairs of 3 May 2013 concerning fair trade clauses in procurement contracts etc., and the State Administration states that the Ministry re-defines and specifies the limits of the local government mandate.

In the actual statement, the State Administration relies on the legal view of the Ministry's statement and, consequently, such labour clauses cannot be considered illegal.

It is important to note that the statement of the State Administration only concerns the municipal angle.

Further, social clauses must be drafted so that they comply with EU law. This implies e.g. that the procurement rules must be observed, and that the use of social clauses must not directly or indirectly result in discrimination against suppliers from other EU member states.

If you have any questions to the above, please contact attorney Rikke Søgaard Berth or attorney Andreas Christensen.

The European Court of Justice: Redundancies - when?

9 October 2017

In two recent cases, the European Court of Justice (ECJ) ruled that an employer should have consulted the employees’ organisations before giving notice of changes that resulted in collective redundancies.

The European Court of Justice: Public servant was entitled to be reinstated in trial position

9 October 2017

The European Court of Justice (ECJ) has assessed that a public servant employed in a trial position as head of department should have been offered the same or a similar position when returning from parental leave, even though the probationary period had expired.

Compliance: E-leaning in competition law

20 September 2017

Horten now offers e-learning in competition law tailored to each company.

New judgment from the European Court of Human Rights concerning companies’ monitoring of private communication

19 September 2017

The European Court of Human Rights recently ruled that employers must inform employees of the possibility of monitoring and to which extent.

The world’s largest e-sports tournament is coming to Denmark

14 August 2017

In December 2017 and for the next two years, Arena Fyn in Odense will host the finals of the world’s largest e-sports tournament - ESL Pro League - in the computer game Counter Strike. Horten has assisted Odense municipality in connection with the legal framework of the tournament.

New oil and gas strategy for the North Sea

4 July 2017

A new oil and gas strategy has been set out for the Danish part of the North Sea. The strategy was prepared in cooperation between the industry, the DEA and GEUS to ensure optimal exploitation of the Danish resources.

Denmark ready for Tour de France

30 June 2017

The state and five cities - Copenhagen, Roskilde, Odense, Vejle and Sønderborg - are ready for the Tour de France Grand Départ. If Denmark is chosen as the venue, it will be the greatest sports event ever in Denmark.

Horten advances in new Chambers and Legal 500 rankings

19 April 2017

In 2017, the leading international ranking agencies, Legal 500 and Chambers, are once again ranking Horten among the best law firms in Denmark.

Conviction in bribery actions against Atea

24 March 2017

The Eastern High Court has delivered convictions in two bribery actions where Atea gave away iPhones, iPads and other IT equipment to two senior employees at the City of Copenhagen and DSB.

Four new specialised attorneys at Horten

7 March 2017

Horten has appointed four new specialised attorneys having in-depth professional and commercial expertise within personal data law, environmental and planning law, energy and supply law and tax law.

The Energy Regulatory Authority: New criteria for estimation of reasonable return on invested capital

17 February 2017

Recently, the Energy Regulatory Authority listed the circumstances that may and must be included when estimating a reasonable return on capital invested in a heating company in connection with the Authority's approval of return on invested capital.

The State Administration: Reconsideration of decision on access to inter-municipal enterprise's business information relevant for a tender procedure

16 February 2017

After having established that a decision was incorrect on several issues, the State Administration requested an emergency service organised as an inter-municipal enterprise to resume the matter and make a new decision. The inter-municipal enterprise had referred to section 30, no. 2 of the Act on public access to documents in public files (the "Act") as the basis of exempting information in consideration of the inter-municipal enterprise's future possibilities of putting out operational assignments to tender.

Horten advises Burmeister & Wain Scandinavian Contractor A/S on its acquisition of Burmeister & Wain Energy A/S in bankruptcy

8 February 2017

With effect from 6 January 2017, Burmeister & Wain Energy A/S (BWE) was acquired by Burmeister & Wain Scandinavian Contractor A/S (BWSC), which, despite the common name, has had different owners since the 90'ies.

The EUDP - new round of applications for grants to energy projects in 2017

1 February 2017

The Energy Technology Development and Demonstration Program (EUDP) has published a new strategy for 2017-2019, which forms the basis of new projects worthy of support. The EUDP is a public scheme supporting new energy technology, which must contribute to achieving the target set in relation to energy and climate. Compared to previous strategies, the new strategy focuses on key areas in a more global perspective.

Does waste incineration play a role in a circular economy?

31 January 2017

The European Commission has published a new communication on the role of waste incineration in a circular economy. The purpose of the communication is to ensure an optimal energy exploitation of non-recoverable waste.

New action plan for the implementation of the regulation on data protection

30 January 2017

The Article 29 group has adopted a new action plan listing which subjects the group will prioritise in 2017 to ensure an effective implementation of the regulation on data protection.

Are you allowed as a governm¬ent official to say that the municipal chief executive's "core competence may not be the truth"?

30 January 2017

According to the Ombudsman, it was in accordance with the rules of government employees' freedom of speech when a municipal employee was given a warning for writing on his Facebook profile that the municipal chief executive was "a person whose core competence may not be the truth".

The Danish state is liable in damages for lack of replacement holiday

23 January 2017

The Supreme Court has ruled that the Danish state is liable in damages for not having made the Holiday Act consistent with the Working Time Directive fast enough in relation to sickness during holiday. However, the Supreme Court ruled in favour of the Danish state as the Supreme Court found that the state was not liable in damages at the time of the employee's sickness during the summer holiday 2010.

Recent case law concerning access to documents - January 2017

19 January 2017

The limits as to when access to documents should be granted are clarified on a current basis. We have reviewed recent case law concerning access to documents and have summarised all relevant statements within the municipal areas below, including business information, identification requirement and data extraction.

Data protection officer – who, when, what?

12 January 2017

The so-called Article 29 group has adopted a set of guidelines covering data protection officers, which will provide more clarity with regard to the data protection officer's assignments, position and liability.

Global Leaders in Law appoints Horten as exclusive partner for Denmark

10 January 2017

Global Leaders in Law, the leading global general counsel forum based in London, and Horten has announced partnership. Appointed as a global bronze partner, Horten will sponsor the activities of Global Leaders in Law in 2017.

New Advisory Board is to advise the government on a circular economy

2 November 2016

The government has set up an Advisory Board consisting of Danish business executives, who are going to advise the government on a circular economy thereby increasing enterprises' earning opportunities, promoting a more efficient utilisation of resources and minimising the environmental impact. The new measure was presented by the Minister of the Environment and Food, Esben Lunde Larsen, and the Minister of Business and Growth, Troels Lund Poulsen.

Aid to the Eurovision Song Contest was not illegal under municipal and state aid law

14 October 2016

On 12 October 2016, the Ministry of Social Affairs and the Interior concluded in a statement that the aid provided through Projektselskabet by the City of Copenhagen and the Capital Region of Denmark to the Eurovision Song Contest in 2014 was legal.

The Data Protection Agency: Understand the requirements for employees' processing of personal data

7 October 2016

In a recent decision, the Data Protection Agency criticised a municipality's control of the data security based on unauthorised persons' access to sensitive personal data stored on an employee's private IT equipment.

Trainee could be dismissed before training period started

8 September 2016

In a leading Supreme Court case, the court found that a company could terminate a training agreement before it had begun.

The ombudsman: Dismissal of upper secondary school teacher was contrary to government employees' freedom of speech

5 September 2016

The ombudsman found that it was "strongly criticisable" that Campus Bornholm had dismissed a teacher for having criticised the employer.

Compensation for violation of the principle of equal treatment of the Temp Act

5 September 2016

For the first time, the Supreme Court has ruled on a violation of the principle of equality of the Temp Act.

New partner

15 August 2016

Horten strengthens the partner group and the expertise within environmental and public law with the admission of partner Anne Sophie K. Vilsbøll.

Compensation for wrongful publication of conviction

5 July 2016

Recently, the Eastern High Court ruled in a case where the housing association AAB had published information on a former voluntary cashier's criminal offenceson the Internet contrary to the Personal Data Act.

New state aid register will come into force on 1 July 2016

30 June 2016

As part of the European Commission's reform of the European state aid rules initiated in 2012, the member states must register any state aid to companies exceeding € 500,000 in a public web-based register. The rule comes into force on 1 July 2016, when the new register will be available.

New rankings from IFLR1000: Horten is still the leading law firm within energy and infrastructure

22 June 2016

Every year, the international directory IFLR1000 publishes a guide of the world's best law firms within energy and infrastructure. In the recently published guide, Horten is, like last year, rated as one of the country's best advisers within this area.

New act on e-cigarettes: Obligation to prepare a written policy concerning smoking at the work place

14 June 2016

A new act on e-cigarettes has come into force. The act implies that employers must prepare a written policy stipulating whether and, if so, where e-cigarettes are allowed.

New agreement on municipalities' economy in 2017

13 June 2016

The day after the Government and the Danish Regions presented an agreement on the regions' economy in 2017, it was published that the Government had also concluded an agreement with KL on the municipalities' economy in 2017.

Amendments to the Planning Act - conclusion of political agreement

10 June 2016

On 9 June 2016, a political agreement was concluded between the Government, the People's Party, the Conservative Party and the Social Democrats concerning an amendment of the Planning Act.

Work permit in Denmark - many schemes will change

9 June 2016

From 10 June 2016, it is no longer possible to apply for a residence permit in Denmark through the Green Card scheme, and the minimum yearly salary required to obtain residence and work permit under the Pay Limit Scheme is abolished.

Legal to prohibit headscarves at the work place? A clarification is on its way from the European Court of Justice

8 June 2016

Recently, the Advocate-General proposed a decision in a case concerning a prohibition against religious symbols at the work place. The proposal may influence ECJ case law in a new direction.

Waste suited for incineration is perhaps to be opened to competition

17 May 2016

On 13 May 2015, the Government published a proposal for alternative financing of the so-called PSO tax. The financing is to take place under the Budget instead of via the PSO tax. One of the initiatives is to open the waste energy production sector to competition

New ratings from the international reference book Legal 500

4 May 2016

There are several good news for Horten in the new rankings, among these to new Tier 1-ratings in Media & entertainment and Telecoms.

Gift policy

3 May 2016

With a conviction of bribery, your company risks having to wave goodbye to public orders due to the rules of the Procurement Act.

The prohibition against discrimination overtrumps due process of law

3 May 2016

In a recent preliminary ruling, the European Court of Justice established that private persons and companies are subject to a prohibition against discrimination due to age based on both a principle of EU law as well as an obligation under a directive

Municipalities cannot take out insurance covering volunteers - yet

2 May 2016

The Ministry of Social Affairs and the Interior has put a - temporary - stop to the question whether municipalities can take out collective accident and liability insurance covering volunteers.

The supreme court: Uncertain whether prohibition against indirect discrimination covers parents with disabled children

29 April 2016

The dismissal of a child-minder on leave to take care of her son suffering from Asperger syndrome was not contrary to the Anti-Discrimination Act. It is still uncertain whether a person covered by the protection criteria is protected against indirect discrimination.

The Western High Court ruled in favour of a former executive officer in text message case

27 April 2016

The Western High Court ruled in favour of a former executive officer, who had violated the provisions on mail secrecy by having read a crane driver's text messages on his work cell phone.

Time barring of industrial injury claims

26 April 2016

The Supreme Court has ruled that claims for compensation for permanent injury under the Act on Industrial Injuries are subject to the general 5-year limitation period - even if the industrial injury did not happen after 1 January 2004.

Final adoption of the new personal data regulation

14 April 2016

The European Parliament has adopted the new personal data regulation together with the rest of the data protection reform.

Dismissal of disabled employee was not contrary to the anti-dicrimination act

14 April 2016

The Supreme Court has ruled in a case as to whether an employee's sympathetic reflex dystrophy was long-term and therefore constituted a disablement within the meaning of the Anti-Discrimination Act.

Renunciation of collective agreement was lawful

11 April 2016

Recently, the Industrial Court accepted that Cimber renounced SAS' collective agreement for cabin crew in connection with transfer of aircraft and staff from SAS.

How to prepare and conduct a general meeting

11 April 2016

This article will answer the questions often asked when preparing a general meeting, which most municipal companies are required to hold annually.

International women lawyers discuss the future of the legal profession

6 April 2016

Horten participates when 150 lawyers from all over the world meet in Berlin on 7-8 April under the headline "Law in a changing world – how women can contribute to innovation of the legal profession".

Ruling in the Kaltoft case: Employee's obesity was not considered a disablement

31 March 2016

Recently, the Court of Kolding ruled in a case whether an employee's severe obesity was a disablement. The court found that the employee's problems did not constitute a disablement within the meaning of the Anti-Discrimination Act.

Summary dismissal for purchase of mobile tickets for the employer's account

17 March 2016

The Supreme Court has ruled in a case where an employee purchased train tickets for private purposes from his work phone. According to the Supreme Court, the summary dismissal was justified.

Compensation for loss of capacity for work to person close to retirement age

15 March 2016

The Supreme Court has ruled that it is without any importance to the awarding of compensation for loss of capacity for work that the person is may receive state pension within a very short time.

Public-private investments in Greenland

9 March 2016

On 26 February 2016, Horten and Nuna Law Firm hosted a conference with focus on public-private investments in Greenland.

Dispute concerning cost-free loan guarantees to two district heating companies may be brought before the Supreme Court

23 February 2016

State subsidies: A dispute concerning cost-free loan guarantees to two district heating companies may be brought before the Supreme Court, but the municipal initiatives should continue.

Ten things to know about the new water sector act

18 February 2016

The new Water Sector Act will come into force on 1 March 2016. What does the new Act imply? There are many major and minor amendments and, below, we will introduce you to ten of them.

After the legal action concerning road charges

12 February 2016

Road charges after the Supreme Court ruling - What should municipalities and supply companies be aware of?

New nursing home in Hornbæk to be built and run by the OK Foundation

9 February 2016

In February, the Municipality of Helsingør selected the OK Foundation as cooperation partner in connection with the building of a new nursing home in Hornbæk.

Subsidies to agricultural activities covered by the local government mandate

9 February 2016

The State Administration: An association's sub-lease of land owned by the municipality was not considered an indirect municipal subsidy.

Supreme Court: Decisions concerning road charges were invalid

5 February 2016

The Supreme Court has ruled in favour of the Municipality of Slagelse that Forsyningssekretariatet's decisions concerning road charges were invalid.

Attorney was not covered by the salaried employess act

5 February 2016

The Eastern High Court surprisingly concluded that an attorney and partner at a law firm did not enjoy employee status and was therefore not covered by the Salaried Employees Act, the Holiday Act or the Contract of Employment Act.

Smoking police/policy - what is the employer allowed to do?

3 February 2016

Two new rulings clarify the scope of the employer's right to lay down smoking policies and impose sanctions in connection with violation of these policies.

EU action plan sets targets for future waste disposal

26 January 2016

"Closing the loop – an Action Plan for a Circular Economy" aims to reduce EU waste volumes. In Denmark, waste incineration is an important energy source, and the plan may therefore challenge the supply sector, says Sinne Conan, CEO of Konsentio, a public affairs bureau in Brussels.

Loan guarantees to two district heating companies were illegal and thereby invalid

26 January 2016

This was established on 25 January 2016 when the Western High Court ruled on a dispute between the Municipality of Sønderborg and two local district heating companies. The ruling means that the municipality is obligated to charge a guarantee commission which constitutes more than DKK 70 million in the guarantee period.

Major savings for the municipality of Brøndby by repurchasing and inviting tenders for street lighting contract

25 January 2016

Horten has assisted the municipality of Brøndby through a lenghty process of negotiations in connection with a repurchase and call for tenders for operation as well as maintenance and renovation of the municipality's street lighting installations.

The waste sector's role in a circular economy

21 January 2016

The development towards a circular economy requires major changes within the waste sector with focus on direct recycling, reuse and on complete removal of toxic materials. This is the assessment of the managing director of the Danish Waste Association, Jacob Hartvig Simonsen.

Update Employment Law

3 September 2014

No age discrimination

19 December 2011