This country-specific Q&A provides an overview of Environment laws and regulations applicable in Denmark.
What is the environmental framework and the key pieces of environmental legislation in your jurisdiction?
The overall purpose of the Danish environmental legislation framework is to protect the environment and nature conservation, so sustainable development of society with respect for human living conditions and for the conservation of wildlife and vegetation. The environmental framework is:
The Environmental Protection Act (miljøbeskyttelsesloven). The Act prevent and control pollution of air, water, soil, and subsoil, as well as vibration- and noise nuisance. The Act also contains hygienically justified rules of importance to the environment and population and to limit the use and waste of raw materials and other resources. It contains rules to promote the use of cleaner technology as well as rules to promote recycling in waste management.
Nature Protection Act (naturbeskyttelsesloven). The Act protects nature with its population of fauna and flora as well as their habitats. It also protects landscape-, cultural-historical-, scientific- and educational values. It aims to improve, restore, and provide the nature and, finally, it ensures that the human population is given access to the nature by improving the opportunities for outdoor life.
Planning Act (planloven). The Act ensures that the overall planning synthesizes the interests of society with respect to land use. The Act especially aims towards appropriate development in the whole country and in the individual administrative regions and municipalities, based on an overall planning and economic considerations. Also creating and conserving valuable buildings, settlements, urban environments and landscapes. Furthermore it aims towards that the open coasts shall continue to comprise an important natural and landscape resource and to preventing pollution of air, water as well as soil- and noise nuisance. Finally it aims to involve the public in the planning process as much as possible.
Besides the environmental framework legislation (and the environmental EU legislation) Danish environmental legislation consists of acts through statutory orders, circulars, plants, guidelines, and decisions. The statutory orders are binding administrative rules. Some of the most important statutory orders in the environmental legislation are:
Water Basin Management Planning Act (vandplanlægningsloven). The Act implements the Water Framework Directive in Danish law and provides the definition of applied measures in obtaining good sea ecosystem, enabling sustainable exploitation of marine resources. It applies to the ecosystem structure, function and processes – including geographic, physiographic, biologic, geologic and climatic factors – as well as physical, acoustic and chemical relations existing and caused by human activities. It encompasses Danish sea zones such as waterbeds and seabed territories as well as exclusive economic areas.
Coastal Protection Act (kystbeskyttelsesloven). The Act provides rules to protect the Danish coastline and reduce flood- and coastal erosion risk.
Environmental Objectives Act (miljømålsloven). The Act provides detailed framework for protection of surface water and groundwater for planning within the international nature conservation areas. It implements the Birds Directive as well as parts of the Water Framework Directive and the Habitats Directive.
Environmental Impact Assessment Act (miljøvurderingsloven). This Act is an implementation of the EIA Directive and SEA Directive and contain rules for screening and environmental impact assessment of plans, programs and specific projects.
Contaminated Soil Act (jordforureningsloven). The purpose of this Act is to prevent, eliminate or/and reduce land contamination to avoid adverse effects from soil contamination through technical inspection projects.
Freedom of Access to Environment Information Act (miljøoplysningsloven). The Act implements the Directive on public access to environmental information and repealing and the Aarhus Convention, and ensures that everyone has the right to access environmental information.
Who are the primary environmental regulatory authorities in your jurisdiction? To what extent do they enforce environmental requirements?
Environmental legislation is primarily administered by the Danish national government (Environmental Protection Agency, EPA) and the municipalities as approval authorities. Typically, the approval authority carries out the environmental inspection and if necessary, enforcement (by injunctions or prohibitions) if environmental legislation is not complied with.
The vast majority of the tasks and responsibility for enforcing environmental legislation lies with the municipalities.
The environmental legislation has very different legal provisions regarding to inspections. In relation to environmental permits, inspections are carried out on a regular basis to ensure that companies regularly adjust in relation to current environmental legislation and BAT. In the area of e.g., nature protection there is no requirement for regular inspections by the authorities, so inspections and enforcement often take place based on notifications from citizens.
What is the framework for the environmental permitting regime in your jurisdiction?
The permitting process in Denmark depends on the type of activity and installation to be permitted. Industrial activities given rise to pollution are generally permitted in accordance with the Statutory Order on Industrial emission permits (godkendelsesbekendtgørelsen), which implement parts of the EU-Directive 2010/75 on industrial emissions. Some industrial activities (with high similarity) are regulated by the Statutory Order on general binding rules (standardvilkårbekendtgørelsen.) Binding rules / industrial sectors
Company industries that are alike (e.g. car repair shops and machine shops) are regulated by industry executive orders (branchebekendtgørelser). The process for these industries is based on a notification scheme and not a permitting process. The owner notifies the municipality and if no terms or conditions are set, the owner can open his workshop after four weeks from notification.
Can environmental permits be transferred between entities in your jurisdiction? If so, what is the process for transferring?
Permits are given to a specific entity for the purpose of operating one or more specific activities or one or more specific installations associated with one particular geographical location.
Companies can be sold in free trade, so it is possible to transfer a permit to another entity. It is not possible to utilize the permit on another location though.
Typically, when trading an industrial company, you buy the whole company including production, activities, installations, employees and also the environmental permits. A change of ownership must be registered with the authorities, so the authority at all times knows who is responsible, e.g., for complying with terms, BAT and legislation.
What rights of appeal are there against regulators with regards to decisions to grant environmental permits?
Denmark has ratified the UNECE Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters (Aarhus Convention) that insures, that any person with a direct, personal, and legitimate interest have access to judicial procedure.
Decisions to grant environmental permits can be appealed to higher authority. In Denmark all appeals regarding environmental issues and decisions will be lodged to the Environmental Protection and Food Appeals Board (Miljø- og Fødevareklagenævnet). The verdict can be brought to court.
Are environmental impact assessments (EIAs) for certain projects required in your jurisdiction? If so, what are the main elements of EIAs and to what extent can EIAs be challenged?
Environmental impact assessment (EIA) is required before adopting a plan, programs or actual projects that may have a significant impact on the environment. Regarding to actual projects, the EIA-obligation is limited only to apply to the projects defined in Article 4 of the EIA Directive.
All projects listed in Annex I are considered as having significant effects om the environment and require an EIA. For projects listed in Annex II, the authority has to decide whether an EIA is needed (screening).
The main element of the EIA’s includes assessment and evaluation of impacts and development of alternatives, to predict and identify the likely environmental impacts of a proposed project including the detailed elaboration of alternatives. The authority informs the public of its decision.
The EIA Directive and the SEA Directive are e.g., implemented in the Environmental Impact Assessment Act and Promotion of Renewable Energy Act (lov om fremme af vedvarende energi). An EIA decision can be appealed to higher authority. Depending on whether the EIA decision is based on Environmental Impact Assessment Act or Promotion of Renewable Energy Act the appel-authority is the Environmental Protection and Food Appeals Board or the Energy Appeals Board, (Energiklagenævnet).
What is the framework for determining and allocating liability for contamination of soil and groundwater in your jurisdiction, and what are the applicable regulatory regimes?
In general, and similar to EU legislation, the precautionary principle and the polluter pays principle applies in all Danish environmental legislation.
The principals also apply, of course, to soil and groundwater pollution. Contaminated Soil Act contains the legal framework for determining soil and groundwater pollution and the Act also allows the authorities to carry out enforcement e.g., injunctions or prohibitions to the responsible polluter. In addition, the Environmental Damage Act contains legal provisions for the person (typical a legal person) responsible for a pollution to be held financially responsible for the damage and costs associated with remediation.
Under what circumstances is there a positive obligation to investigate land for potential soil and groundwater contamination? Is there a positive obligation to provide any investigative reports to regulatory authorities?
The authority (in these cases it will most often be the municipality) can grant an injunction to investigation in order to determine the extent of a soil contamination, risk assessment and the costs associated with remediation.
For soil contaminations where no person can be held responsible, the Regions of Denmark are responsible for mapping contaminated areas. Mapped areas are categorized at Knowledge level 1 or 2.
Knowledge level 1 contains areas where there is actual knowledge that there have been industrial activities on the area that may have caused contamination.
Knowledge Level 2 contains areas where studies have confirmed that the area is contaminated. The Regions of Denmark are responsible for soil remediation (removing contaminated soil) or to carry out remedial measures (purifying and revitalizing the soil).
The Regions of Denmark are responsible and obligated to perform a soil remediation. The requirement applies on areas concerning groundwater, surface water, international habitat areas and areas where contaminated soil has a detrimental effect on people, e.g. kindergartens or public playgrounds.
All mapped areas are registered in a public database called Digital MiljøAdministration (DMA) administrated by the Danish EPA.
If land is found to be contaminated, or pollutants are discovered to be migrating to neighbouring land, is there a duty to report this contamination to relevant authorities?
In both The Environmental Protection Act and the Contaminated Soil Act, there is an obligation to report a detected pollution to the competent authorities.
Does the owner of land that is affected by historical contamination have a private right of action against a previous owner of the land when that previous owner caused the contamination?
If property suffers from a defect, what an established pollution is, the owner can file a lawsuit against the previous owner for the loss, as the value of the property is less valuable than expected due to the contamination. The current owner carries the burden of proof.
What are the key laws and controls governing the regulatory regime for waste in your jurisdiction?
The key legislation for waste management are the Statutory Order on Waste (affaldsbekendtgørelsen), Statutory Order on waste incineration (affaldsforbrændingsbekendtgørelsen), Statutory Order on waste treatment facility (affaldsbehandlingsanlægsbekendtgørelsen), Statutory Order on waste on landfields (deponeringsbekendtgørelsen), Statutory Order on Seveso (risikobekendtgørelsen), Statutory Order on waste regulations, -fees, and -actors, etc. (bekendtgørelse om affaldsregulativer, -gebyrer og -aktører mv.) .
Do producers of waste retain any liabilities in respect of the waste after having transferred it to another person for treatment or disposal off-site (e.g. if the other person goes bankrupt or does not properly handle or dispose of the waste)?
As a general rule, the waste producer is no longer responsible for his waste when it has been handed over to a third party for treatment whether it is recycling, incineration or another disposal method.
However, it is required that shipments of waste regulated in the EU Regulation on Shipments of Waste, which applies in Denmark, shall be subject of the requirement of a financial guarantee or equivalent insurance covering costs of transport e.c.
To what extent do producers of certain products (e.g. packaging/electronic devices) have obligations regarding the take-back of waste?
In accordance with EU legislation, the Extended Producer Responsibility (EPR) for electronics, batteries and cars applies in Denmark.
In addition, Denmark also has national voluntary take-back schemes for companies’ own products when they have been turned into waste, e.g., nespresso capsules.
And finally, upcoming obligations for companies to comply with the Packaging Waste Regulation and companies’ responsibility to clean up single-use plastic and cigarettes.
What are the duties of owners/occupiers of premises in relation to asbestos, or other deleterious materials, found on their land and in their buildings?
As a general rule, an owner of premises is not obligated to take action in relation to the discovery of asbestos or other deleterious materials found on their land and in their buildings. If there is a need to remove, renovate or clean materials containing asbestos, it must be reported to the Danish Working Environment Authority (WEA) and the work must be done by professionally trained personal.
To what extent are product regulations (e.g. REACH, CLP, TSCA and equivalent regimes) applicable in your jurisdiction? Provide a short, high-level summary of the relevant provisions.
REACH and CLP are regulations of the European Union, and they are both directly applicable in Denmark.
TSCA is an American regulation that do not apply in Denmark. However, the limit values (e.g., formaldehyde in wood-based products) set in the regulation must be complied with by Danish export products to the USA.
What provisions are there in your jurisdiction concerning energy efficiency (e.g. energy efficiency auditing requirements) in your jurisdiction?
Energy efficiency requirements apply with a few exceptions to all activities listed in Annex I in the IE Directive (identical with annex 1 in the Statutory Order on Industrial emission permits), IE livestock and all waste incineration plants.
Activities listed in Annex I in the IE Directive, the binding requirement for energy efficiency is set in the Statutory Order on Industrial emission permits (§ 19, stk. 1) requiring the use of BAT.
For IE livestock, the binding requirement for energy efficiency is set in the Statutory Order on Environmental Approval for Livestock Holdings (husdyrgodkendelsesbekendtgørelsen § 35, stk. 1 and § 47) and requires the greatest possible utilization of energy- and raw material consumption and information on energy efficient.
For waste incineration plants, the Statutory Order on Waste Incineration (§ 12) has implemented the Energy Efficiency Directive (EU 27/2012), which requires all heat generated from waste incineration or co-incineration plants to be utilized when possible.
What are the key policies, principles, targets, and laws relating to the reduction of greenhouse gas emissions (e.g. emissions trading schemes) and the increase of the use of renewable energy (such as wind power) in your jurisdiction?
According to The Danish Climate Act, Denmark will reduce greenhouse gas emission by 70% in 2030 compared to 1990. Furthermore, Denmark will by 2050 at the latest, have achieved CO2 neutrality and not emit more greenhouse gas than are absorbed natural or technological.
In addition, Denmark is obliged to also comply with the EU’s 2020 and 2030 climate goals.
To what extent are environmental, social, and governance (ESG) issues a material consideration in your jurisdiction? Is ESG due diligence for transactions and ESG due diligence in supply chains becoming mandatory or more common? To what extent are companies obliged to report on ESG matters? Has COVID-19 had any impact in relation to companies’ approach to ESG in your jurisdiction?
Large companies (applying reporting class C in the Danish Financial Statement Act), public owned companies and companies, which own investments in subsidiaries or affiliates, or other structured finance products admitted to trading on an regulated marked in EU/EØS (reporting class C in the Danish Financial Statement Act) are subject to mandatory filing of CSR-reporting in connection with their annual report.
However, ESG is also applied by other companies in order to provide a more detailed view of the company and to communicate its sustainability strategy. ESG-data, together with financial highlights is especially used by investors to get an adequate view in the company’s possibilities and the risk accompanied by investing in it.
Covid-19 has not had any immediate impact on companies’ approach against ESG in Denmark.
Does your jurisdiction have an overarching “net zero” or low-carbon target and, if so, what legal measures have been implemented in order to achieve this target.
Denmark does not have a target of zero CO2-emissions, but we do have a climategoal of CO2 neutrality in 2050. The climatgoal is set by the Danish Climate Act. Binding rules to ensure the achievement of the climatgoal have not yet been implemented. In addition, Denmark has ratified the Convention on Long-Range Transboundary Air Pollutants (LRTAP), the Directive on National Emission Ceilings (NEC Directive that sets stricter limits on the five main pollutants in Europe) and the Air Quality Framework Directive, which establish standards for a range of pollutants as well as requires quality monitoring of air pollution to helps in assessing the level of pollution in relation to the ambient air quality standards.
To what extent does your jurisdiction regulate the ability for products or companies to be referred to as “green”, “sustainable” or similar terms?
In Denmark there are a number of certification and labeling schemes, including international schemes such as FSC, PEFC, Fairtrade, MSC, ASC, EU-Ø and GOTS. Denmark/Nordic countries also have a few national green and sustainable label schemes such as:
Svanemærket, ensures that the product and service has the lowest environmental impact within its category. Strict demands are set for substances that are or can be problematic for health. The label ensures a high-quality recycling and a reduction of the amount of residual waste.
Ø-mærket, stands for Danish ecology and ensures increased animal welfare, fewer food additives, protection of nature and groundwater, no pesticides, no e-numbers and no GMO in animal feed.
Have there been any notable court judgments in relation to climate change or ESG-related litigation over the past three years?
To our knowledge there have been no court decisions relating to climate change in Denmark.
In light of the commitments of your jurisdiction that were made at or surrounding COP26, do you expect there to be substantial legislative change or reform in the relation to climate change in the near future?
After COP26 Denmark has decided to end all new oil and gas exploration in the North Sea. The extraction will end in 2050. However, this is probably not a result of COP26, but more a part of a wider plan to stop extracting fossil fuels and to achieve the climategoal of being CO2-neutral by 2050 set by the Danish Climate Act.
To what extent can the following persons be held liable for breaches of environmental law and/or pollution caused by a company: (a) the company itself; (b) the shareholders of the company; (c) the directors of the company; (d) a parent company; (e) entities (e.g. banks) that have lent money to the company; and (f) any other entities?
Each of the Danish environmental acts has a section on penalties and sanctions for breaches of its rules. The general rule in all these sections is that cases regarding to environmental breaches start against a legal entity such as a company or an institution. Normally when starting a case against a legal entity the police also start a criminal case against the CEO of the legal entity. To start a case against a person, presupposes that the person has acted intentionally or exhibited gross negligence. In general, a criminal case must start against the company that commits the violation. However, there may be cases where activities are located in the subsidiary, but the actual decisions are made in the parent company. In these cases, both companies will be prosecuted in the case. Banks, creditors or other entities cannot be held liable for legal entities environmental breaches.
To what extent can: (a) a buyer assume any pre-acquisition environmental liabilities in an asset sale/share sale; and (b) a seller retain any environmental liabilities after an asset sale/share sale in your jurisdiction?
a buyer cannot assume any pre-acquisition environmental liabilities in an asset sale/share sale. There is however in e.g., the nature protection act and the planning act rules according to which the owner or user is responsible for breaches of the act. Thus the current owner can be held responsible for the sellers actions.
it depends on the agreement between buyer and seller whether buyer takes over sellers’ environmental liabilities. The polluter pays principal applies in danish law, so if it can be proven, that a former seller is responsible for the pollution, the seller retains the liability after an asset sale/share sale.
What duties to disclose environmental information does a seller have in a transaction? Is environmental due diligence commonplace in your jurisdiction?
The legal caveat emptor principle applies in Danish law. It means that the buyer purchase at his own risk in the absence of an express warranty in the contract. A buyer of a company or parts of a company, including the purchase of shares, has an elaborated duty to investigate the company’s conditions, including the environmental conditions.
Vice versa the seller is obligated not to withhold or misrepresent material facts of the company or any other information that may be of significant importance to the buyer. Violation of this rule will impose liability on seller. The assessment is based on increased culpa – the level of guilt within the action of the seller.
When placing the onus on the buyer, it is recommended – and quite common – for buyers to perform due diligence before making a purchase.
What environmental risks can be covered by insurance in your jurisdiction, and what types of environmental insurance policy are commonly available? Is environmental insurance regularly obtained in practice?
It is possible for companies in Denmark, including agriculture, to be covered by environmental insurance. The insurance policy will cover the costs associated with bringing nature back to what it was before any environmental damage cost by the company. In addition, all owners of real estate, if relevant, have an obligation to have an insurance that covers damages from leaks etc. from oil tanks of 6,000 liters and less.
To what extent are there public registers of environmental information kept by public authorities in your jurisdiction? If so, what is the process by which parties can access this information?
The Danish Environmental Protection Agency hosts and provides public access to most of the archives for environmental data in Denmark. The archives contains a large number of collected data regarding to nature and environment. Among them are data regarding protected nature and data on species. There are also data on soil polluted areas as well as data from industrial activities, including permits, derogations or injunctions.
The public have full access to the majority of Danish environmental information and data. In addition, there are some archives that require login, and also there are some specific environmental information which are subject to confidentiality e.g., intellectual property rights or trade secrets, that the public cannot access.
To what extent is there a requirement on public bodies in your jurisdiction to disclose environmental information to parties that request it?
According to the Danish environmental information legislation- the Freedom of Access to Environment Information Act and the Access to public Files Act (offentlighedsloven) – the public have full access to all environmental data, with only a few exceptions. The public authorities can refuse to provide the requested information
if the authority is not in possession of the environmental information,
if the environmental information relates to a pending lawsuit,
or if releasing the information would adversely effect international relations, public safety, property rights or national defense.
The list is not exhaustive.
To what extent does your jurisdiction have legislation targeting modern slavery issues, both in relation to employers themselves but also their supply chains?
Denmark is obligated to respect the European Convention on Human Rights, ECHR article 4 on the prohibition of slavery and forced labor.
In addition, Denmark has signed or acceded to a number of conventions adopted by the International Labor Organization (ILO) including the Forced Labour Convention, 1930 (No. 29), the Abolition of Forced Labor Convention, 1957 (No. 105) and the Worst Forms of Child Labour Convention, 1999 (No. 182).
Denmark has also ratified the ILO’s Protocol of 2014 – an amendment to the Forces Labour Convention, 1930 (No. 29).
According to the Danish Criminal Code (§ 262a), forced labor carries a penalty up to 10 years imprisonment.
What impact, if any, has COVID-19 had in relation to environmental regulations and enforcement in your jurisdiction?
The Minister of the Environment of Denmark has derogated from conducting environmental inspections in several environmental areas.
A dispensation from the requirement on low emissions zones was given in order to allow trucks and vans in the big cities in the evening- and night hours as well as weekends during the first lock-down in March 2020. People were stockpiling, and even the supply chains were not at risk, it became necessary to allow trucks and vans in the cities at all times a day to supply the stores with extra groceries.
Have there been any significant updates in environmental law in your jurisdiction in the past three years? Are there any material proposals for significant updates or reforms in the near future?
Within the last three years, stricter requirements have been decided on low emission zones for trucks, buses and vans.
A ban has been adopted on the distribution of free plastic bags in the retail, and a minimum price requirement has been set for plastic bags.
Stricter requirements have also been decided for wood-burning stoves when selling your real estate. Wood-burning stoves from 2008 and before must be removed or replaced when changing ownership in real estate relations.
And finally stricter requirements have been adopted for sorting of waste. Municipalities are obligated to sort waste into nine different types.
In the nearest future low emission zones will also include passenger cars, and the political agenda contains the introduction of car-free days as well as a ban on fuel vehicle in the cities and zero-emissions zones.
Stricter requirements for sorting of waste are on its way.
And the energy industry is growing by the establishment of more and bigger wind farms and solar parks.
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