23 February 2016

DISPUTE CONCERNING COST-FREE LOAN GUARANTEES TO TWO DISTRICT HEATING COMPANIES MAY BE BROUGHT BEFORE THE SUPREME COURT

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.

On 25 January 2016, the Western High Court ruled that the Municipality of Sønderborg's cost-free loan guarantees to two district heating companies constituted illegal state subsidies. This means that the municipality must collect guarantee commission amounting to more than DKK 70 million in the guarantee period. Horten assists the Municipality of Sønderborg.

Based on the ruling, several municipalities are evaluating their loan guarantees.

The two district heating companies have applied for permission to have the matter tried before the Supreme Court. The Appeals Permission Board must first decide whether it can grant permission to appeal against the ruling to the Supreme Court, and if permission is granted, it may take up to two years before the case has been heard.

WHAT ARE THE CONSEQUENCES IF THE COST-FREE LOAN GUARANTEES CONTINUE?

The ruling means that municipalities providing guarantees are generally to charge a market-related guarantee commission. If not, the lacking commission will constitute an illegal state subsidy to the district heating company. Illegal state subsidies are generally to be repaid to the state treasury. The state subsidy will thus not benefit either the municipality or the company. The amount one risks having to pay to the state treasury will increase the longer the subsidiary scheme continues.

It is therefore important that the legal action does not stop the municipal procedures to bring the loan guarantees in accordance with the ruling by charging a market-related guarantee commission. If you wait or fix a commission which is too low, you risk that the amount ends up in the state treasury.

MARKET-RELATED GUARANTEE COMMISSION AND PROCEDURE FOR CHANGE OF PROVISION OF GUARANTEE

It is not considered state aid if a loan guarantee is provided on terms that would be acceptable to a private investor operating under market-economic terms. The fixing of the guarantee commission should therefore generally take place on terms equal to those of borrowers on the capital market.

In this connection, it is less probable that a one-off commission will meet this requirement. Other things being equal, the market price of the interest rate with and without a loan guarantee should be calculated. In general, the guarantee will be the difference between these two amounts. The credit rating of the borrower may also be taken into consideration when making the assessment.

The municipalities initiating a procedure to ensure that the municipality's guarantees are lawful, must also ensure that changes are made in accordance with correct administrative procedures.

 

related news

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.

Exclusivity discounts: the Intel case, including record-high fine is remitted

20 September 2017

The European Court of Justice ruled that a dominant company's use of excklusivity discounts does not always constitue abuse of the company's dominant position.

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.

European ip rights in Great Britain after Brexit

19 September 2017

Great Britain's exit from the EU will create uncertainty for both British and EU27 companies in relation to the extent and protection of intellectual property rights in Great Britain. It is therefore of great interest and importance to clarify the consequences of Great Britain’s exit and how to handle them.

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.

Google - an overview of the summer’s EU case against the internet giant

27 July 2017

In June 2017, the European Commission ruled in the first of three pending cases against Google and ordered Google to pay a record-high fine of EUR 2.42 billion for abuse of its dominant position. According to the European Commission, Google favoured Google Shopping in its search engine.

Baltic Gas Pipe Project continues

26 July 2017

Phase 1 of the Open Season 2017 for the Baltic Pipe Project showed sufficient demand for gas transportation – making it possible for the activities to continue.

Giant merger of oil and gas activities in the North Sea

18 July 2017

Centrica plc has concluded an agreement with Bayerngas Norge AS concerning a merger of the European oil and gas activities in the North Sea.

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.

Still waiting for a European Patent Court

20 June 2017

The agreement concerning the European Patent Court is once again delayed. The agreement concerning the establishment of a so-called unitary patent and a joint patent court was planned to come into force in December 2017, but this will presumably not be the case.

White Paper concerning the data protection regulation has arrived

29 May 2017

The Ministry of Justice has now published the long awaited White Paper concerning the data protection regulation and the legal framework for Danish legislation in this respect.

Merger control: When to notify mergers and acquisition to national competition authorities

10 May 2017

In mergers and acquisitions, it is always relevant to consider, if the transaction is subject to merger control – on either a national or an EU level. Transactions that are subject to merger control must be notified and approved, before they are implemented.

Honors to M&A partner Lise Lotte Hjerrild

25 April 2017

Partner Lise Lotte Hjerrild is appointed to the Steering Group of the International M&A and Joint Venture Committee of the American Bar Association and Women in Law Awards 2017.

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.

Conditional approval of Maersk Line's purchase of German container shipping company

12 April 2017

The European Commission has approved Maersk Line's takeover of the German container shipping company Hamburg Südamerikanische Dampfschifffahrts-Gesellschaft KG (HSDG).

The European Commission: Aid to construction of Kriegers Flak is legal

30 March 2017

The Commission has approved the Danish state aid to the offshore wind turbine project Kriegers Flak as the project will contribute to an increased use of renewable energy in Denmark.

Extensive commitment protects innovation in connection with approved DOW/DUPONT merger

30 March 2017

The European Commission has approved the merger between DOW and DuPont after long-term commitment negotiations. The approval is conditional on DuPont selling many of its pesticide companies and its global R&D.

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.

SAS is once again to pay major fine for participating in the Air Cargo cartel

20 March 2017

SAS and a number of other airlines have once again been fined by the European Commission for their participation in the Air Cargo cartel. In 2015, the European General Court annulled the Commission's decision due to a procedural error. The Commission has now remedied the error and changed its decision.

The European Court of Justice raises questions about wind turbine planning

10 March 2017

In two new rulings, the European Court of Justice has construed the scope and legal effect of directive 2001/42 on the assessment of the effect of certain plans and programmes on the environment (the SEA Directive.

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.

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 partners

4 January 2017

With effect from 1 January 2017, Horten appointed Lars Lüneborg and Julie Arnth Jørgensen as partners.

Competition law - Adoption of new rules on claims for damages

1 December 2016

The directive concerning damages to customers (and others) suffering a loss due to violation of the competition rules came into force in December 2014 (Directive 2014/104/EU). The directive is now being implemented into Danish law.

Greenland adopts personal data act

22 November 2016

From 1 December 2016, the Personal Data Act became effective in Greenland at the request of the Greenland Home Rule. The Act replaces the data protection legislation from 1978, which has applied in Greenland until now.

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.

Dynamic IP addresses may constitute personal data

19 October 2016

The European Court of Justice recently ruled in C-582/14 that a dynamic IP address may constitute personal data.

IFLR1000 ranks eight Horten partners as Leading Lawyers and two as Rising Stars

18 October 2016

The international directory IFLR1000 recently published its Financial and Corporate Rankings for 2017. These rankings were good news for Horten, as we have increased the number of partners ranked as Leading Lawyers within their legal areas of expertise.

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.

Horten on two committees at the Confederation of Danish Industry, DI

3 October 2016

DI has re-appointed Søren Hornbæk Svendsen as member of the Energy and Climate Policy Committee and Nina Henningsen as member of the Media Policy Committee.

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 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.

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.

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.

Practical advice concerning the European Single Procurement Document (ESPD)

28 April 2016

After the coming into force of the Procurement Act, the ESPD has given rise to special challenges both for the applicants/tenderers and the contracting entities.

Centrica to acquire Neas Energy

21 April 2016

Centrica to acquire leading European energy management company.

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.

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".

Horten Corporate Day 2016 - Danish companies at the forefront

18 March 2016

At Horten's Corporate Day 2016 on 16 March, Danish and foreign executives and experts gave their views on the trends and opportunities of the Danish business sector. Horten will repeat the success next year with Horten Corporate Day 2017.

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.

Publication of draft Privacy Shield between the EU and the USA

8 March 2016

At the beginning of February 2016, it was reported that the European Commission and the USA had politically agreed on a new scheme replacing the Safe Harbour scheme concerning transfer of personal data from the EU to the USA.

The 7th oil and gas licensing round in the North Sea has been concluded

26 February 2016

The Minister of Energy, Utilities and Climate has decided to issue 16 new oil and gas licenses to 12 different companies as a result of the 7th licensing round.

Are you ready for the new personal data protection regulation?

24 February 2016

Does your company - private or public - meet the requirements of the applicable personal data act, and are you ready for the new amendments?

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.

Denmark and Greenland sign new uranium agreement – why now?

12 February 2016

Denmark and Greenland have entered into a uranium agreement regulating the cooperation on future extraction and export of uranium and radioactive minerals.

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?

The Supreme Court did not set aside an arbitration award

10 February 2016

A new Supreme Court ruling concerning compensation for breach of a distributor agreement emphasises the binding character of awards.

Tax and state aid: where are we going?

10 February 2016

Since 2013, the Commission has investigated the member states' tax rulings to establish whether the state aid rules are violated through selective tax advantages.

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.

Political agreement on new EU-US privacy shield agreement

4 February 2016

A new political agreement between the European Court of Justice and the US is finalized, after the European Court of Justice set aside the the Safe Harbor scheme last year.

Lifting of trade sanctions against Iran - possibilities and risks

29 January 2016

On 16 January 2016, the International Atomic Energy Agency (IAEA) stated that Iran had met the requirements for lifting of EU and US trade sanctions against the country. This opens the way for new trade possibilities with Iranian players; however, still subject to certain risks.

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.

The future of gas

10 December 2012