The principal provision on receiving a bribe (s 144 DCC) stipulates that “any person who unduly receives, demands, or agrees to receive a gift or another benefit in the exercise of a Danish, foreign or international public function or office is sentenced to a fine or imprisonment for a term not exceeding six years.”

The persons covered by this provision not only include Danish public officials, but also persons employed to perform public services of assignments abroad. Any public-sector employee is a public official irrespective of whether the government, a region or municipality is the employer, and employees of the Danish courts are also included.⁴ It is irrelevant whether the employee has any decision-making authority,⁵ since actual administration may be exercised under undue influence as well. This applies to public-sector employees in both Denmark and abroad. The provision also applies to politicians who hold positions as for example members or chairmen of boards, committees and so forth.

Generally, the provision does not apply to employees of state companies. If, however, the company performs functions which are similar to functions performed under public law, the nature of the assignment may justify the application of the bribery rules contained in s 144 DCC. This issue remains to be settled by a Danish court, but the view is supported by the comments accompanying OECD’s anti-corruption convention,⁶ which state that employees of state companies are subject to the provisions of the convention, unless the company “operates on a normal commercial basis in the relevant market, ie, on a basis which is substantially equivalent to that of a private enterprise, without preferential subsidies or other privileges.”⁷ The comments further indicate that the provision (under special circumstances) may apply to a person holding some form of public authority, irrespective of the terms of his employment.^{8 , 9} Although the issue remains to be determined by a Danish court of law, this interpretation has merit. If, for example, prisons were entirely privately owned and operated, which is the case in some countries, it would seem unfair if prison employees were not subject to s 144 DCC, since they would most likely not be subject to s 299 DCC concerning secret commission.¹⁰

The group of persons to whom a bribe may not be provided is identical to the group of persons who may not receive a bribe. The briber can be anybody, including legal entities. While s 144 DCC applies to the receipt of all undue advantages, s 122 DCC only imposes a penalty on providing gifts and other favors if it is done with the objective of ensuring a certain conduct by the employee in public service. The words “perform or fail to perform such function or office […]” cover not only any kind of decision-making, but also the actual exercise of administrative duties. Subsequent gifts or favors provided in gratitude of good case administration are not covered by s 122 DCC, and the provider of such is not liable to punishment. Depending on the circumstances, however, such gifts or favors may be covered by s 144 DCC, and if this is the case, the recipient will then be liable to punishment.

A related, but unusual, situation arose in the so-called “Carl Bro case”. Three managerial staff members in the Carl Bro group were accused primarily of breach of trust under s 280 DCC, alternatively of violation of s 299(2) DCC, by having paid out secret commissions. It is unusual, but not contradictory, that the company, Carl Bro, as such would be the victim of the crime under the primary charge, whereas the company could best be described as the “beneficiary” of the crime under the alternative charge. The prosecution was thus faced with two main challenges: determining the fund flow – how did the money leave the company and where did it go? – and who in the group had knowledge of the payments.

The money flow in the Carl Bro case was as follows: A person living in Switzerland issued two fictitious invoices of a total of just under DKK 2,000,000. The two invoices were paid by the Carl Bro group, and one of the defendants subsequently collected the money – less some commissions – in Switzerland. The fate of the money is unknown after this point. According to the defendants’ evidence in court, a suitcase containing the money was delivered to a “Mr Schmidt” at a pub in Germany. However, as it is well known, there are quite a few “Mr Schmidts” in Germany. The defendants also stated that the money was to be passed on to a person central to the management of the German company Nordbau, which was party to a number of building contracts near Hamburg; projects which the Carl Bro group would like to participate in.

Based on this course of events, it was quite simply impossible to determine whether the Carl Bro group was the victim of a crime, or whether it had benefitted from a crime committed in its own interest. The court of first instance, the District Court, found that the senior group management had considered it “pretty obvious that the fees [the DKK 2,000,000] were just on or beyond the border of bribery, but that the fees might be a necessary evil”.¹⁶ According to the District Court, the management had further considered it “an issue which had to be handled with discretion”. On this basis, the District Court found that the defendants may very well “have believed that the Carl Bro management considered the projects to be of such importance to the group that it was prepared to turn a blind eye, and more or less tacitly accept that [one of the defendants] handled the practical difficulties connected to the payment of the special consultancy fees, including withdrawing the mentioned amounts and providing the required vouchers”. Consequently, the District Court reached the decision that the defendants were innocent of breach of trust. It is not entirely clear whether the Court based its decision on the assumption that the management actually knew about and thereby tacitly sanctioned the “consultant fees” or on the fact that the defendants believed that this was the case. Either way, the defendants had lacked the necessary intent to breach the trust of the company.

The High Court upheld the District Court’s decision in regard to both ss 280 and 299(2) DCC, but based its conclusion concerning the charge of secret commission on the fact that the defendants were of the impression that the management of Carl Bro had approved the payment of the “consultancy fees”, and that they consequently did not intend to breach the trust of the company.¹⁷

The general principle of pacta sunt servanda is established in the Danish Law of King Christian V from 1683 (the “Danish Law”), which is still partially in effect. According to s 5-1-2 of the Danish Law, contracts concluded between legally competent parties are valid in all details, unless they are (i) against the law (contra legem) or (ii) contrary to public policy (contra bonos mores). Furthermore, the Danish Contracts Act (the “DCA”) contains provisions according to which contracts against good morals (s 33 DCA) and unfair contracts (s 36(1) DCA) are wholly or partially invalid (see Sects. 5.3.1.5.2 and 5.3.1.5.3). Together these provisions comprise the “core” legislation relevant to establishing the contractual consequences of corruption.

According to s 5-1-2 of the Danish Law, contracts are invalid if they are against the law or contrary to public policy. The wording “against the law” simply refers to the laws in force at the time in question¹⁹ and does not provide any further answers to the question of a contract’s validity. Only contracts which are in violation of mandatory provisions are invalid, whereas it naturally follows that contracts that are contrary to provisions which can be derogated from by agreement between the parties are valid in the absence of other vitiating factors.

Most Danish civil law provisions concerning contracts are non-mandatory, and consequently the parties may agree to dispense from such provisions. This means that contracts conflicting with such non-mandatory provisions (in civil as well as public law) are not considered contra legem, because it is assumed that it has been the intention of the parties to deviate from the rules in question. If a civil law provision, however, explicitly states that it is mandatory, or if this follows from an interpretation of the purpose of the provision, any contract concluded against such provision is contra legem and therefore invalid.

This leaves the question of the validity of contracts violating statutory mandatory provisions of public law. Such contracts are not necessarily invalid; even if a violation is sanctioned with punishment or fine.

Some legal scholars have previously suggested that the crucial factor in determining the validity of agreements, which are in violation of mandatory provisions of public law, is whether the statutory provision in question dictates the legal consequences of its violation or whether it simply prohibits a certain conduct. If specific legal consequences (other than invalidity) are sanctioned by the provision, it was presumed that such prescribed sanctions were exhaustive, thereby eliminating invalidity as a consequence.²⁰ Such presumption has now been abandoned, and it is widely recognized that the question of the validity of a contract which is in violation of one or more mandatory provisions in public law must be answered on a case by case basis; considering among other things the gravity of the violation, and whether a civil law sanction such as invalidity is necessary in order to mitigate the effect of the criminal action.²¹