Building in Denmark

BUILDING IN DENMARK

A manual for the construction industry

BUILDING IN DENMARK

As many countries, Denmark is in a state of constant transforming through a series of substantial construction projects in infrastructure and energy as well as industrial and commercial buildings. Establishing national CO2 and hydrogen infrastructure with a construction value in excess of EUR 5 billion is just one in many planned projects, which also includes massive renewable energy projects. Industrial investments include planned hydrogen plants with more than 7 GW capacity, short term carbon capture investments in excess of EUR 4 billion and expansion in the life sciences industries in a similar scale.

Public projects include the artificial island of Lynetteholmen, renewal of the Danish rail system, and expan-

sion of the Copenhagen metro.

Despite Denmark’s relatively modest size, the nation serves as a hub of activity with both foreign investors and contractors taking an active interest in doing construction work in Denmark.

The Danish market is quite accessible, and doing business in Denmark is relatively easy. However, it is recommended that companies take a holistic approach to projects, select the optimal corporate structure, and tax setup and secure the relevant knowledge of the Danish labour market regulation as well as construction law and practice.

This can assist organizations in minimizing costs and risks.

ABOUT THE GUIDE

The first edition of this guide was also a first of its kind. The guide was targeted to international contractors with a comprehensive overview of the questions that typically arise when performing construction activities in Denmark. Since then, with the increase in foreign developers with interests in Denmark, the guide has been expanded to include recommendations for these.

The objective of this guide is to address the most crucial and frequently occurring considerations that may be relevant, such as invitations to

tender, construction, and working environment in Denmark. Weblinks within the guide offer additional information in English on the various topics.

We strive to answer the most frequently asked questions. Inevitably, there may be a need for further information, or you might have specific concerns and questions not addressed in this guide. Therefore, we recommend that you seek professional legal counsel before bidding on tenders or initiating construction projects in Denmark.

INVITATIONS TO TENDER AND CONSTRUCTION CONTRACTS IN DENMARK 1

This chapter provides an overview of the public invitations to tender and construction contracts in Denmark.

1.1

PUBLIC INVITATIONS TO TENDER IN DENMARK

In Denmark, as in the other EU member states, public entities must issue public invitations to tender for construction projects.

1.1.1

Overview of Ongoing Invitations to Tender

On udbud.dk all public projects in Denmark for which invitations to tender have been issued are published. The website, which is updated daily, lists national - and EU invitations to tender in two separate tables, and provides a convenient overview of procurement procedures in Denmark. Further, the website facilitates the procurement process for the contracting authorities. The website has an English language option, however the actual invitations to tender on the website are only available in Danish.

Udbud.dk offers a variety of tools for

finding the invitations to tender that are relevant to your business, including:

• Simple - and full text searches

• A list of procurement procedures which are particularly relevant to small and medium-sized enterprises (SME-friendly) is available

• An e-mail subscription service which provides automatic notification to you when a new invitation to tender matching your search is published

• A possibility to find other suppliers via the website in order to draw up a joint bid with them

1.1.2

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The Danish register of invitations to tender (udbud.dk) lists all public invitations to tender in Denmark. The website is updated daily and provides an e-mail subscription service free of charge which will notify you if an invitation to tender is matching your search criteria.

Obligation to Issue an Invitation to Tender

The applicable Danish regulations on invitations to tender oblige the state, municipalities, and other entities governed by public law to issue a public invitation to tender for contracts exceeding certain thresholds. The threshold values are set by the EU and are different depending

1.1.3

on the type of contract. The threshold values are updated every two years and are until 31 December 2024 as follows:

For construction activities, the threshold is EUR 5,538,000. The threshold for contracts for services and purchases of goods placed by public entities is EUR 143,000, and if the contract for services and purchases of goods is placed by municipal entities, the threshold is EUR 221,000. If the estimated value of the contract equals or exceeds these thresholds, the contract must be subject to an EU procurement process and thus announced on TED (Tenders Electronic Daily).

Requirements of the Bid

The procurement process is often a complex matter. Thus, when submitting a bid, you must pay close attention to the requirements laid down in the tender invitation and other related material.

Precision is key! Whether the relevant requirements are met in your bid is subject to a strict standard and assessment. Small inconsistencies between your bid and

The latest tenders announced on TED by Danish contracting authorities are shown on udbud.dk under the heading “EU-procurement procedures”.

The procurement invitation must state the criteria according to which the bidder will be chosen, including – but not limited to - whether the contract will be awarded to the least expensive or the most suitable bid. If the estimated value of a contract is below the thresholds, but the contract has a clear cross-border interest, and the estimated value of the contract is at least DKK 100,000 [EUR 13,420], the contract must be subject to a national procurement process and thus announced on udbud.dk

the requirements in question, both in regard to format and content, may lead to disqualification.

Compliance with the rules on procurement is regulated by the Danish Act on the Complaints Board for Public Procurement (in Danish: “Lov om Klagenævnet for Udbud”), and is monitored at first instance by the Complaints Board for Public Procurement (in Danish: “Klagenævnet for udbud”).

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A bid should not be drawn up by technicians alone. The participation of legal experts is recommended as it is essential that the requirements for the bid are in meticulous compliance with what is required by the tenderer. Danish public entities are often formalistic, and rejections based on minor formalities are both common and upheld.

Complaints Procedure in Case of Errors in the Invitations to Tender

Where a complaint is filed with the Complaints Board for Public Procurement, the Board will not ex officio examine which procurement regulations that might have been breached.

It is therefore recommendable to examine the potentially breached procurement regulations carefully before filing a complaint. If proceeding with the claim, you must formulate allegations that precisely describe the breaches that you believe the contracting entity is guilty of and that you want the Complaints Board to consider. For each allegation, you must describe the facts and submissions in detail. It is advisable to consult a lawyer when preparing a complaint.

Where a contract has been awarded based on a breach of procurement regulations, unsuccessful bidders can claim damages. However, the enforcement of damages claims often fails because unsuccessful bidders fail to present sufficient evidence of the loss incurred.

In cases where contracts are awarded on the basis of a breach of procurement regulations, and the breach is a breach of fundamental

procurement rules, the Complaints Board may declare contracts already concluded null and void so that the invitation to tender must be reissued.

Unsuccessful bidders wishing to present their reservations during the course of an invitation to tender have to observe the “stand-still” period of 10 days (for electronic communications) and 15 days (for other written communications).

The “stand-still” period begins as soon as the contract is awarded in writing. During this period, a final contract may not be concluded with the preferred bidder.

Unsuccessful bidders may ask the Complaints Board to grant their complaint suspensive effect, preventing the contract from being awarded. The Complaints Board then must decide in a fast-track procedure whether the final conclusion of the contract can be postponed.

In its final decision, the Complaints Board for Public Procurement can declare a contract null and void. Moreover, the Complaints Board can impose fines amounting to millions on the authority that issued the invitation to tender.

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During the “stand-still” period of 10 or 15 days a complaint filed to the Complaints Board for Public Procurement can prevent a contract from being finally awarded to the preferred bidder.

CONSTRUCTION CONTRACTS

The upcoming sections provide a concise introduction to Danish construction and engineering contract law, focusing on the AB system, a standard framework used extensively in the industry. It explains how Danish construction law, primarily based on unwritten legal principles and arbitration practices, operates without specific statutory provisions.

The AB system, particularly its latest iteration, AB-18, is highlighted as a central element, employed especially by public authorities since 2019. This system, although not a legislative document, is an essential reference for understanding the contractual and operational nuances of construction projects in Denmark.

Danish law does not contain provisions on construction and engineering contracts.

Construction law is largely based on - unwritten - legal principles, primarily expressed in published arbitration practice.

In practice, the vast majority of construction contracts in Denmark apply the standard terms for engineering and construction work, known as the AB-system. Since the 1st of January 2019, public authorities have been obliged to use the AB-18 system

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which is the latest set of contractual terms for contracts involving works and deliveries in the construction and civil engineering business.

The AB system is an agreed document which codifies general legal principles and relies on a long tradition. This makes it challenging to understand and navigate through a simple reading. Many provisions are implicit, and a correct reading and understanding of a clause requires knowledge of the underlying general legal principles and sometimes traditional practices.

The vast majority of construction projects in Denmark are governed by the standard terms called AB. It is recommended to obtain expert legal advice to understand the particulars thereof. An English version of the AB 18 terms is available with the Danish Construction Association at danskbyggeri.dk

The AB system

AB (in Danish: “Almindelige betingelser”) is a suite of agreed documents negotiated between the representative organisations of the construction industry and the Danish state. The terms are an agreed document and not legislation. Consequently, the rules within the AB system only apply if agreed upon by the contracting parties, tough adaptation

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does not need to be expressed.

Deviations from individual clauses (that do not express mandatory legal provisions) can be agreed upon and often occur - especially for commercial terms. However, it should be noted that deviations generally need to be clear in order to be effective.

Prior to finalizing a construction contract, it is highly recommended to thoroughly examine the terms and conditions. The AB system and Danish law is substantially different than what is seen in many other jurisdictions.

Unless otherwise agreed, the contractor is obliged to provide security amounting to 15% of the contract sum. Following the formal acceptance (or “handing-over”) of the construction work, this security shall be reduced to 10% of the contract sum, and one year after formal acceptance, it shall be further reduced to 2%. The contractor’s security shall expire definitively after 5 years unless the employer has raised any claims prior to the expiration.

At the contractor’s request, the employer is obligated to provide security amounting to the average of three monthly payments and at least 10% of the contract sum. Public entities are generally

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not obliged to provide security.

While international contractors may have experience with similar security systems, the Danish system incorporates a dispute resolution method that allows both parties to challenge the other party’s claims regarding the guarantee (or the use of other security). Thus, while on the surface it is “on-demand” – in practice calling a bond will require that entitlement can be established. Furthermore, AB performance bonds generally do not have fixed expiration dates, which often poses challenges for international banks.

The Danish system does not operate with ongoing retentions.

It is advisable to consult with your bank prior to providing security in order to ensure that they have a clear understanding of the specific requirements and details pertaining to Danish construction guarantees.

Payment 1.2.3

Upon written request to the employer, the contractor is entitled to receive payment twice a month for completed work and delivery of materials at the construction site. Furthermore, the contractor has the right to claim payment for materials and similar items purchased by the contractor but not yet delivered to the construc-

tion site. If required by the employer, the contractor must provide security for the delivery of the undelivered materials, with the size of the security corresponding to the required payment for the materials including VAT.

It is possible to agree on a payment

1.2.4

schedule instead of payment according to the aforementioned rules. The payment schedule should align with the agreed-upon timeline and specify the dates or stages at which the contract amount or specific portions thereof must be paid. The contractor is entitled to payment on the agreed-upon dates,

provided that the work related to the payment has been performed.

Payment must be requested within a reasonable period after the completion of the extra work, unless there are exceptional circumstances that make it impossible to settle them.

The Right to Stop Work if payment is not Made

If the employer fails to pay the due amount by the payment deadline, the contractor is entitled to stop the construction work after providing a written notice of either 3 working days (unless the employer is a public employer or a social housing organization, where the notice period is 5 working days).

Furthermore, the contractor is entitled to stop the work immediately if the employer is declared bankrupt or undergoes a reconstruction process, or if the employer’s financial

condition is such that it is presumed incapable of fulfilling the contract. A prerequisite for this action is that the employer has not provided sufficient security for the fulfilment of the remaining part of the agreement. If the employer promptly provides such security, the contractor must resume the work.

Stopping the works is high-risk, but the contractual option to do so is often seen exercised be minor (sub) contractors which are highly dependent on an ongoing cashflow.

1.2.5

Extension of Time

The AB system for extension of time is more complex than it appears. Generally, both parties are entitled to extensions of time in case of:

• Variations in the work required by the employer

• Force majeure

• Unusual weather conditions

• Circumstances attributable to the other party

• Public orders or bans imposed by public authorities

The legal consequences of the cause of delay vary, but as a general rule extension of time only entitles the contractor to claim the costs resulting from the delay covered and not any lost profit.

1.2.6

Liquidated Damages

Liquidated damages, which are at times referred to as daily fines or penalties, apply when agreed, and if agreed they are the exclusive and sole remedy for delays. While liquidated damages do not have to reflect a pre-established evaluation of the employer’s actual daily costs, excessive liquidated damages may be subject to reduction. Further, if it becomes evident that no loss or inconvenience has occurred as a result of the delay, the liquidated damages may be disregarded. The threshold for incon-

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venience is, however, rather low.

The market standard for liquidated damages is 1‰ of the contract sum per working (not calendar) day.

Strict notice requirements are applicable with regard to liquidated damages, and additional stipulations pertain to liquidated damages for exceeding interim deadlines.

Caps on liquidated damages are rarely set below 10% of the contract sum.

It is advisable to consult with your bank prior to providing security in order to ensure that they have a clear understanding of the specific requirements and details pertaining to Danish construction guarantees.

Handing-over 1.2.7

Immediately prior to the completion of the work, the contractor shall provide written notice to the employer regarding the timing of completion (completion notice). Subsequently, the employer shall convene a final inspection meeting with the contractor, which shall take place no later than 10 working days following the specified completion date.

Failure to issue an invitation to a formal acceptance meeting implies that the construction project is considered accepted on the mentioned date.

It should be noted that the handover date is not synonymous with the completion date but rather the date on which the conformity of the work (defects) is ascertained.

It is presumed that there will be defects requiring rectification that do not prevent the handover process. Only material defects that prevent the employer from utilizing the work, such as the lack of an occupancy permit, entitle the employer to reject the work.

1.3

Defects and damage

When the work has not been executed in accordance with the contracts, or where it does not align with acknowledged technical standards, it is deemed defective - there is an implied, but limited, fitness for purpose obligation.

Should the defective work inflict damage upon other parts of the building, this is viewed as a product liability (and insurance) issue. Defects and product liability are distinct issues, governed by separate rules, although the rectification work needed often overlaps, creating considerable areas of ambiguity.

Identified defects must be deter-

mined at handover, at which time a period for rectification is established. If the defects are not rectified within this timeframe, the employer generally has the right to commission a third party to perform the rectification work. Further inspections of the work take place both 1 year and 30 days prior to the 5-year anniversary of the handover.

The defects rectification period generally expires after 5 years. The Contractor is not permitted to repair damage caused to other works or a pre-existing building. The liability for such damage is typically confined to the agreed liability insurance sum.

CONSTRUCTION DISPUTES

Sections 1.3 and 1.4 will review the highlights Denmark’s distinctive approach to resolving construction disputes, primarily through the Building and Construction Arbitration Board. Key features include a tiered dispute resolution process, the crucial role of independent expert inspections detailed in Section 1.4, and the binding nature of the Board’s decisions.

In Denmark, there is a longstanding tradition that disputes in the field of construction are resolved by the Building and Construction Arbitration Board (“Voldgiftsnævnet for bygge- og anlægsvirksomhed”). The Board maintains offices in Copenhagen, but it may convene wherever it deems appropriate. Another distinct characteristic of Danish construction disputes is that evidence is typically secured by inspection and assessment conducted by an indepen-

dent expert - see Section 1.4.

Disputes between the parties is governed by a complex set of rules. Firstly, the project managers should attempt to resolve the dispute within five days. Subsequently, representatives of the company management also have five days to resolve the dispute. If this does not settle the matter, the dispute may be escalated to wither a speedy resolution or mediation before arbitration can be initiated.

Disputes are handled by experts with extensive industry experience. Decisions rendered by the Arbitra-

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tion Board are final and binding - no appeal is possible. All decisions may be published in an anonymized form.

See the website of the Danish Building and Construction Arbitration Board voldgift.dk

1.4

CONSTRUCTION DISPUTES

Either party may petition the Building and Construction Arbitration Board for the designation of an impartial expert to secure evidence. This expert’s role is to conduct inspections, ascertain the prevailing circumstances, and, if necessary, provide a technical analysis thereof.

This procedural mechanism, wherein both parties engage in inquiries with the designated expert(s), is peculiar to Denmark’s legal landscape

(Belgium has a similar system) and to large extent replaces the battle of experts, where either party appoints its own expert.

Hence, it is typically normally necessary for parties to seek local legal guidance when a dispute arises which requires evidence to be taken. Evidence obtained outside the framework of an expert inspection may be deemed inadmissible.

ESTABLISHMENT IN DENMARK 2

This chapter provides an overview of the tax and corporate requirements for foreign construction activities in Denmark, including permanent establishment, corporate structures, and RUT-Register enrollment.

2.1

Engaging in construction activities in Denmark necessitates understanding the tax and corporate implications, especially regarding the formation of a permanent establishment and the associated corporate tax obligations. This includes selecting the appropriate corporate structure and understanding the registration requirements in the RUT-Register for foreign service providers. Detailed insights into these aspects, including the differentiation between a branch and a limited company and the specifics of forming joint ventures, are discussed in the following sections.

Service providers from abroad, even if they don’t establish a permanent presence in Denmark, might still be required to enrol in the “RUT-Register”.

PERMANENT ESTABLISHMENT

For tax purposes, a permanent establishment is defined by the execution of business operations from a stable business location, ensuring a level of continuity. Generally, establishing a construction site or participating in a construction endeavour is deemed a permanent establish ment under Danish tax regulations.

In the absence of a double tax treaty, there could be potential double taxation complications. Should a double tax treaty be in place, it is crucial to thoroughly examine its provisions to determine the optimal course of action

SUBCONTRACTS

Should a subcontract related to a construction project be agreed upon between two non-Danish entities, the fundamental principle of permanent establishment remains applicable. This holds true for the subcontractor when the contractual performance takes place in Denmark.

Furthermore, even if the subcontractor is tasked with only a portion of the project, the primary principle of permanent establishment persists. Yet, if the project’s execution relies exclusively on labour force, then the regulations concerning the hiring out of labour come into effect.

EXCEPTIONS

Several exceptions deviate from the primary guideline regarding what constitutes a permanent establishment. Specifically, it does not apply to:

• Infrastructure solely dedicated to the storage, exhibition, or dispatch of goods

• Commercial premises used exclusively for the procurement of goods or the gathering of enterpriserelated information

• Business facilities dedicated entirely to advertising activities, information dissemination, or similar functions

2.1.1

It is fundamental to evaluate each construction activity individually to ascertain the presence of a permanent establishment subject to tax obligations in Denmark. However, when

Choice of Corporate form

If business operations in Denmark qualify as a permanent establishment, there exists a mandate to register for taxation. Consequently, it becomes essential to deliberate upon the optimal corporate structure, which could be:

1. A branch (permanent establishment)

2. Limited company

However, as a deviation from this primary guideline, a construction project of a temporary nature is exempt from registering a branch for corporate reasons but remains obligated for tax registration purposes.

BRANCH VS. LIMITED COMPANY

In general, two principal distinctions differentiate a branch from a limited company:

1. Tax Transparency: A branch exhibits tax transparency, implying that it incurs taxation both in Denmark and in its parent entity’s home country. While some foreign contractors appreciate this transparency, allowing them to offset expenses in their domicile country during the

construction activities possess either an economic or spatial linkage (for instance, the construction of a series of terraced homes), the assessment will consider the entire scope of work.

construction phase, the situation can lead to detrimental double taxation in the absence of an applicable double tax treaty. In such cases, relief from double taxation can only be sought through a general credit rule, allowing taxes paid in the native country to be credited against Danish tax. Depending on specific circumstances, establishing a Danish company might be a more efficient alternative. This entity would be taxed solely on its Danish revenue, negating any double taxation concerns.

2. Liability: For a branch, its parent foreign company assumes full responsibility for the branch’s commitments. Conversely, a company’s (either A/S or ApS) liability remains confined to its subscribed share value, pegged at either DKK 40,000 (for ApS) or DKK 400,000 (for A/S). Even though participation in construction endeavours frequently necessitates the provision of guarantees, these assurances usually have caps concerning their amounts and designated recipients. Hence, a company’s liability limitation is effective against all other project-related creditors.

Additionally, the process to set up a company is often more straightforward and quicker than establishing

a branch. A newly formed company can be operational within hours, while a branch’s registration might extend to several weeks, incurring higher expenses. Moreover, companies face no stipulations regarding the residency of their local management members.

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A limited company is easy to establish from day to day and no local management is required. Establishing a limited company in Denmark is both cost and tax efficient compared to the establishment of a branch.

JOINT VENTURE

A joint venture can be forged between a foreign construction company and a Danish counterpart or among multiple foreign businesses. The primary joint venture structures that can be employed include:

1. General Partnership (Interessentskab – I/S): From the perspective of Danish taxation, a general partnership is taxtransparent. Foreign entities entering such a partnership are perceived to be operating through a permanent establishment (or branch) as previously outlined. Joint venture participants hold joint and several liability for all the venture’s commitments.

2. Limited Partnership (Partnerselskab – P/S or Kommanditselskab – K/S): Tax-wise, a limited partnership functions similarly to a general partnership in its transparency. The distinction lies in the liability of the participants; their liability is confined to a predetermined sum, reflecting their stake in the limited partnership.

3. Company (A/S or ApS): When the joint venture adopts a company framework, it side-steps double taxation issues since the company is recognized as an independent tax entity. Here, participants’ liability is restricted to their respective equity holdings in the company.

The RUT-Register is a distinct platform dedicated to foreign entities offering services in Denmark without having a registered local establishment (In English “Register of Foreign Service Providers,” while in Danish, it is termed “Register for Udenlandske Tjenesteydere”).

When a foreign organization has set up either a branch or a company within Denmark, registration in the RUT-Register is redundant. Nevertheless, for foreign businesses supplying manpower or for entities not obligated to institute a branch or company, the RUT-Register is mandatory.

Besides registering the foreign business, it is essential to list individual employees engaged for tasks within Denmark, complete with their names. Non-compliance or failure to register can lead to fines and may constitute material breach of a construction contract.

The RUT-Register’s public nature serves multiple purposes. Danish unions utilize it as a reference point for overseas businesses penetrating the Danish marketplace. Moreover, companies listed tend to undergo closer scrutiny by Danish officials compared to native enterprises.

The keeper of the RUT-Register is the Danish Business Authority, in Danish: “Erhvervsstyrelsen.”

To successfully register within the RUT-Register, the following particulars need to be submitted:

• The foreign entity’s official name and address for which registration becomes essential

• If applicable, the CVR number (Commercial Register Number) or SE-number (tax identification number)

• The initiation date of Danish activities and their anticipated conclusion

• The precise location of the offered services

• A designated contact person in Denmark affiliated with the registering enterprise

• The European “NACE code” –an acronym for “Nomenclature générale des ac-tivités économiques dans les Communautés Européennes”

• Details of the dispatched employees and their respective work durations in Denmark

CORPORATE TAX

The corporate tax rate for a permanent establishment (branch) or a Danish company is set at 22% (2023). The effective tax rate can be further reduced through deductions for business expenses and depreciation on specific assets. Notably, there are provisions that allow for the deferral of taxation on profits related to construction projects until their completion.

In contrast to many other countries, Denmark imposes a relatively low burden on employers regarding social security contributions, with an approximate annual cost of EUR 2,000 per employee.

For intercompany transactions and the determination of revenue within

a group involving a permanent establishment or a company in Denmark, adherence to Danish transfer pricing regulations is mandatory. These regulations align with the OECD guidelines. Small and medium-sized enterprises are exempt from comprehensive documentation requirements but are still obligated to apply the arm’s length principle.

However, if a taxpayer is classified as a “large group,” defined as having (i) more than 250 employees, (ii) assets exceeding DKK 125 million (approximately EUR 16.8 million), or (iii) a turnover surpassing DKK 250 million (approximately EUR 33.6 million) on a consolidated basis, full transfer pricing documentation will be a requirement. 2.2

2.3

2.3.1

Foreign companies in the building and construction industry

Foreign companies operating in the building and construction industry usually register for Value Added Tax (VAT).

When a foreign construction company creates a fixed place of business in Denmark to provide services, it becomes mandatory for the company to register for VAT and account for Danish VAT on the services it delivers to its clients.

It is important to note that the notion of a “fixed place of business” differs from the tax concept of a “permanent establishment.” A fixed place of business is defined as “a durable combination of human and technical resources,” where it is the human resources that engage with customers. In practical terms, this requires some form of physical establishment and personnel capable of independently providing or receiving the services in question.

2.3.2

Irrespective of whether foreign companies in the construction industry establish a permanent place of business in Denmark, Danish Value Added Tax (VAT) must always be applied to construction services and related activities concerning real estate situated in Denmark. VAT regulations explicitly state that construction and installation work carried out on real estate must be subject to VAT based on the location of the real estate.

When a foreign company’s client is another Danish company, the foreign

company is not obligated to register for VAT in Denmark. Instead, the reverse charge mechanism comes into play, and the foreign company invoices its customer without including VAT. It is then the responsibility of the Danish customer to calculate and report Danish VAT.

This rule applies whether the customer is an end client or another construction company. If the Danish customer is not already registered for VAT, they must register for VAT to facilitate the VAT settlement process.

In situations where a foreign construction company engages other foreign subcontractors for construction work in Denmark, Danish Value Added Tax (VAT) must be applied to the subcontractor services.

In this scenario, it is consistently the responsibility of the foreign main contractor (i.e., the construction company) to be registered for

VAT in Denmark. The main contractor must account for Danish VAT in accordance with the reverse charge mechanism.

As a result of a registration in Denmark, you gain the general right to deduct Danish VAT on its expenses incurred also for Danish subcontractors.

The VAT rate in Denmark is 25 %.

EMPLOYMENT IN DENMARK 3

This chapter provides an overview of Denmark’s labor market, detailing its flexicurity model, employment laws, and regulations from hiring to termination.

3.1

DANISH LABOUR MARKET

Denmark’s labour market, known for its flexibility and unique structure, significantly differs from other EU member states in aspects such as union interactions, market regulation, and social security contributions.

This text delves into the Danish labor market’s key features, including the ‘flexicurity’ model, the roles of unions and employers’ associations, collective bargaining agreements, and the categorization of employees. It is also the legal frameworks governing blue-collar and white-collar workers, addressing laws applicable to various employment types, recruitment procedures, employment contracts, working hours, remuneration, holiday entitlements, parental leave, and sickness benefits. Additionally, the following explains termination processes, including mass dismissals, and outlines regulations for resident and work permits, as well as pension schemes in Denmark.

3.1.1

Flexicurity - the “Danish Model”

The Danish labour market model is termed “flexicurity” (composed of the terms “flexibility” and “security”). The composite term describes a triumvirate between the unions, employers’ associations, and the state: the unions and the employers’ associations provide flexible employment opportunities with rapid hiring and firing. In return, the state provides a stable social-welfare safety net and further training

opportunities for employees, who have been fired. There is virtually no social security contribution for the employer to pay on top of the salary as is the case in other countries. The social contribution is paid by the employees as taxes. When you are bidding on a public invitation to tender in Denmark, as you should not calculate with a high social security contribution in your cost base of a tender.

3.1.2

Unions and Employers’ Associations

In principle, neither the employer nor the employee is under an obligation to join an employers’ association or a union respectively. Hence, the terms of employment can be freely negotiated between the employer and the employee. However, in practice, joining an employer’s organization is often

the most expedient way to operate.

2 out of 3 of all employees in Denmark are members of a union. Whereas almost all blue-collar workers are covered by the terms of collective agreements, the same does not apply to white-collar staff.

3.1.3

The Danish Construction Association (“DI Byggeri”) is the principal employers’ association for the construc-

tion industry. The dominant union in the construction industry is Fælles Fagligt Forbund (so-called “3F”).

Various Categories of Employee

In Denmark, a distinction is made between blue-collar workers, white-collar employees, and other members of staff.

As a rule, detailed collective agreements apply to blue-collar workers. Blue-collar employees are governed by the Danish Act on Salaried Employees (in Danish: “Funktionærloven”) and may also – insofar as agreed – be covered by the provisions of a collective agreement.

The Salaried Employees Act in Denmark cover office workers and individuals who oversee and provide instructions to other employees.

Other staff members, such as managing directors, are generally not subject to the laws governing regular employees or collective agreements. Thus, for executive staff members there is a significant degree of contractual freedom.

3.2

3.2.1

WORKERS (BLUE-COLLAR)

Applicable Law

The applicable law primarily depends on the type of employment, specifically whether the worker is seconded or locally employed. Seconded workers are as a starting point governed by the laws of their original employment contract.

However, Danish labour laws may apply in addition, as a seconded worker must not be placed in a less favorable position than that provided by the compulsory regulations applicable in the country where they typically carry out their work.

3.2.2

Recruitment Procedure

When recruiting an employee in Denmark, you may collect details about the candidate. As an employer, it is important to only request information that is relevant and serves a legitimate purpose.

During job interviews, employers should avoid posing inquiries about topics such as health, pregnancy, religious affiliations, political opinions, or sexual orientation.

3.2.3

Employment Contract

All Danish employers are obligated by law to provide all workers with an employment contract. Workers are entitled to a contract if they work more than 3 hours per week in average in over 4 weeks. The contract

must describe the specific conditions of employment. If the general terms of the employment are regulated by a collective agreement, the employment contract can include a reference to this specific agreement.

3.2.4

Working Hours

There is no legislative minimum requirement of working hours under Danish law, but a maximum of 48 hours in average within a fourmonth period. In addition, working hours must be organized so that employees have a rest period of at least 11 consecutive hours within each 24-hour period.

The rest period may be reduced to 8 hours in certain situations.

In addition to the legislative requirements on working hours working time is often regulated in the collective bargaining agreements.

The normal working week is 37 hours.

3.2.5

There is no minimum wage determined by law in Denmark. However, detailed provisions on wages and salaries are usually set out in the collective bargaining agreements. The provisions of a collective agreement can be difficult to implement correctly.

Vacation 3.2.6

Minimum holiday entitlements and holiday pay are regulated by the Danish Holiday Act. The minimum holiday entitlement is five weeks per holiday year, but it is common to agree – either in collective bargaining agreements or individual contracts - on an additional five days’ of special holidays per holiday year.

The monthly paid employee earns

2.08 days’ paid holiday for each month of employment. Upon termination, the employer is obligated to pay for any accrued but not held holiday. The Danish Holiday Act is comprised of very detailed regulation of e.g., notice to take holidays, legal impediments to taking holidays, access to transfer holidays to a new holiday year, compensation for holidays not taken and not transferred etc.

3.2.7

Maternity and Paternity Leave

Employees have a statutory right to be absent from work during maternity, paternity, and parental leave during a total of 52 weeks, which the parents – to some extent – can divide between them.

Subject to the meeting the statutory criteria, parents are entitled to statutory parental benefits during the leave. This is paid by the government. Whether the employee is also

entitled to salary from the employer during the leave depends on whether the employee is a white-collar employee, or employed under collective bargaining agreements, or on individually agreed conditions.

If an employer pays salary during leave, the employer can be entitled to reimbursement of the parental benefits that the employee would have received.

3.2.8

Sickness

For blue-collar workers, the entitlement to salary during illness derives from the collective bargaining agreement in force, if any, or from individually agreed terms between employees and employer It is common that blue-collar

workers receive salary during illness for a certain period.

White-collar employees receive compensation during illness unless they are dismissed due to prolonged illness.

3.2.9

Termination of Employment Relationships

The notice of termination for blue-collar workers is determined in the applicable collective bargaining agreement, if any such is concluded. If not, it is subject to freedom of contract. As a general rule, the notice periods for blue-collar workers are quite short, often between 14 days (after 6 months’ employment) and 3 months (after 6 years’ employment), depending on industry and seniority.

For blue-collar workers, it is generally not required that the termination be based on objective criteria, except for standard anti-discrimination provisions. Specific rules for termination fairness may be agreed upon in collective agreements.

A fair reason for termination can may be that the employee does not perform as expected. Scale down and restructuring will most

often be considered a fair reason for termination, whereas terminations based on the employee’s behavior are more often challenged.

The maximum compensation for blue-collar workers, will derive from the collective bargaining agreement in force, if any. For white-collar workers, the compensation can vary from 1 to 6 months of severance pay.

If the termination is deemed unfair based on discrimination, the compensation may vary between 6 to 12 months of salary for both blue-collar and white-collar workers.

Summary dismissal (immediate termination of employment) may take place only in the event that the conduct of the employee constitutes gross misconduct.

When planning mass dismissal in Denmark, several information and negotiations obligations must be adhered to as outlined in the Danish Act on Collective Dismissals (in Danish “Lov om Masseafskedigelser”). The Act stipulates that employers must inform and negotiate with the employees and, during the process, inform the Regional Labour Market Offices (in Danish: “De Regionale Arbejdsmarkedsråd”) about the negotiations.

The consequences of not following the procedure for mass lay-offs can

be claimed for damages from the employees. Furthermore, the Regional Labour Market Offices can impose penalties on the company.

Before the employer initiates the mass lay-off process, the employee should be aware that collective agreements may contain further rules on the information and consultation of em-ployees in case of mass lay-offs. Furthermore, a mass lay-off may include employees who enjoy special protection against dismissal, e.g., employee representatives.

3.3.1

WHITE-COLLAR EMPLOYEES

The following section explains the basic legal status of salaried employees on the Danish labour market. Contrary to the legal status of workers, the rights of employees are governed by statutory provisions.

Applicable Law

Posted workers are subject to the law applicable to their original employment contract. However, if the worker subsequently is seconded to Denmark, the mandatory provisions of Danish law will govern him or her.

Another choice of law than Danish

law cannot be agreed. A worker may not be placed in a position worse than under the mandatory provisions applicable in the country where he or she usually performs his or her work. However, there are hardly any mandatory statutory provisions applicable to workers in Denmark.

3.3.2

Recruitment Procedure

The recruitment procedure is governed by the same regulations mentioned in section 3.2.2. above in relation to blue-collar workers.

3.3.3

Employment Contract

It is a legal requirement that employers must provide the employee with an employment contract if their employment lasts for at least a month and the average weekly working time exceeds eight hours per week. If the general terms of the employment are regulated by a collective agreement, the employment contract will typically include a reference to applicable collective agreement.

If the employer intends to change the terms of the employment during the employment, it is essential to distinguish between those changes that are considered significant and those that are not.

If a change in salary or working conditions is deemed non-significant, it can take effect immediately or with the notice period determined by the employer. In such cases, the individual employee is legally obligated to adhere to the new terms, just as they would with other terms of their employment contract. Failure to comply with these changes may constitute a breach of the employment contract, invoking the duty of obedience. This breach could potentially lead to termination or summary dismissal.

In contrast, significant changes in employment terms necessitate a different approach. Employers must

formally notify the affected employee with an individual notice period. Implementing significant changes without adhering to this notice period would constitute a breach of contract by the employer. When a significant

change is notified with the appropriate notice period, the employee faces two options: They can either accept the change and continue their employment under the new terms or consider themselves terminated.

3.3.4

Working Hours

There is no legislation governing the weekly working hours per se except for the limitation on working a maximum of 48 hours per week. The weekly working hours according to the collective agreements are usually 37 hours per week (excl. lunchtime). Apart from this, the working hours may be agreed freely by the parties.

The employment contract must state whether pecuniary compensation or time off will be granted for overtime.

Modifications to working hours must be notified to the employee together with notification of the periods of notice applicable when the employment relationship is terminated.

3.3.5

Remuneration

There is no statutory minimum wage in Denmark. Pay and employment conditions are, as a rule, regulated by collective agreements or are negotiated individually between employers and employees.

The individual agreement can stipulate a minimum wage for the sector, and the trade unions publish annual wage statistics, which can be used as a starting point for salary negotiations.

The most common forms of payment systems in Denmark are based on monthly wages, day wages, hourly wages, and piecework wages.

Hourly wages, day wages and piecework wages are as a rule paid out once or twice a month and monthly wages are (naturally) paid out monthly, retrospectively. Wages are generally paid out to an employee’s Easy Account “NemKonto”, unless otherwise agreed.

3.3.6

Vacation

Minimum holiday entitlements and holiday pay are regulated by the Danish Holiday Act. The minimum holiday entitlement is five weeks per holiday year, but it is common to agree – either in collective bargaining agreements or individual contracts – on an additional five days’ of special holidays per holiday year.

The monthly paid employee earns 2.08 days’ paid holiday for each month of employment. Upon termi-

nation, the employer is obligated to account and pay for any accrued but not taken holidays. Payments must, as a general rule, be made to the statutory holiday fund “FerieKonto”. The Danish Holiday Act is comprised of very detailed regulation of e.g., notice to take holidays, legal impediments to taking holidays, access to transfer holidays to a new holiday year, compensation for holidays not taken and not transferred etc.

3.3.7

Maternity and Paternity Leave

Employees have a statutory right to be absent from work during maternity, paternity, and parental leave during a total of 52 weeks, which the parents – to some extent – can divide between them.

Subject to the meeting the statutory

criteria, parents are entitled to statutory maternity pay during the leave. This is paid by the government. Whether the employee is also entitled to salary from the employer during the leave depends on whether the employee is a white-collar employee, or employed under collective

3.3.8

bargaining agreements, or on individually agreed conditions.

A white-collar employee, who has become a mother, is entitled to half of her usual salary for a total of 4

Sickness

During sickness white-collar employees covered by the Danish Act on Salaried Employees are entitled to their usual salary. There is no maximum duration on the entitlement. However, after 30 days, the employer may be entitled to receive reimbursement of statutory

weeks before estimated birth and 14 weeks after the birth. If an employer pays salary during leave, the employer may be entitled to reimbursement of the maternity benefits that the employee would have received.

sickness benefits and will thus be compensated to some extent.

It is possible to terminate the employment contract after 120 days of illness if this is agreed in the employment contract.

3.3.9

Termination of Employment Relationships

The notice of termination for white-collar employees, notice of termination is regulated by the Danish Act on Salaried Employees.

According hereto, the period of notice in case of termination by the employer is between 1 and 6 months depending on the duration of the employment relationship. Employees may terminate their employment contracts with one month’s notice, irrespective of their length of service with the company.

The parties may agree on a trial period of up to 3 months during which the employment relationship may be terminated by either side subject to observance of 14 days’ notice. Employees must receive their salary during the notice period.

A white-collar employee who has been dismissed unfairly may file claim for a compensation of a maximum of 6 months’ salary, depending on seniority.

3.3.10

Mass Dismissal

When planning mass dismissal in Denmark, several information and negotiations obligations must be adhered to as outlined in the Danish Act on Collective Dismissals (in Danish: “Lov om Masseafskedigelser”). For white-collar workers the regulation is the same as mentioned in section 3.2.10. above in relation to blue-collar workers.

3.4

RESIDENT PERMIT AND WORK PERMIT IN DENMARK

Employees with citizenship from Nordic countries, EU/EEA and Switzerland do not need to apply for a residence and work permit. Any national citizen of an EU member state may work in Denmark without a work permit. EU nationals must however register with the Danish

authorities, but they cannot be refused to live and work in Denmark.

Employees with citizenship from a country outside of the Nordic countries, the EU/EEA or Switzerland must apply for a residence and work permit.

3.5

PENSION SCHEMES

Employees in Denmark accrue statutory retirement pensions (state pension and state supplementary pension) from the Danish government. Though not mandatory, it is common practice for employers to pay a supplementary pension for their employees. The usual market standard

is an employer contribution around 8% of the monthly salary, whilst the employee usually pays 4% of the salary. If the employer has concluded a collective bargaining agreement, the pension contribution is most often regulated in the agreement.

DANISH TAX SYSTEM FOR EMPLOYEES 4

This chapter covers individual tax obligations in Denmark, including tax liability factors for residents and foreign workers, and details on expat tax schemes and regulations.

4.1

The following outlines the tax obligations for individuals residing or employed in Denmark, emphasizing the potential for double taxation in the absence of an agreement and the factors influencing tax liability. It details the conditions under which employees, particularly those working for foreign entities, become liable for Danish taxes based on their duration of stay and the nature of their employment. Key points include the criteria for full and limited tax liability, the implications of working for a Danish subsidiary or permanent establishment, and the specific rules for hired-out labour and expat tax schemes.

The text also highlights the importance of correctly applying Danish tax regulations to avoid fines and provides insights into the unique expat tax program designed for high-income individuals and researchers.

TAX LIABILITY FOR INDIVIDUALS

The tax liability for employees primarily hinges upon whether their remuneration pertains to services rendered in Denmark. The nationality or origin of the employer, specifically whether it is a Danish company or a foreign entity, is not the sole determining factor.

What holds sway is the degree to which the employee’s earnings can be attributed to work conducted within Denmark. When the employer is a foreign entity, the tax liability of the employee is contingent upon the duration of their presence in Denmark.

4.2

TIME SPENT IN DENMARK

Residing and working in Denmark continuously for a period exceeding six months results in the employee assuming full tax liability in Denmark, commencing from the very first day of employment within the country. Conversely, if an individual works and resides in Denmark for less than six months, which is equivalent to fewer than 183 days, limited tax liability in Denmark is established only when the employer is domiciled within the Danish jurisdiction. Should the employer neither maintain residency nor possess a permanent

establishment in Denmark, and the employee’s presence in Denmark is less than 183 days, the employee is not subject to taxation in Denmark.

It is important to note that in calculating the employee’s time spent in Denmark, any brief international sojourns, such as vacations, are encompassed within the overall duration of the employee’s stay in Denmark.

Any erroneous application of Danish tax regulations may result in fines.

Salary paid by a Danish subsidiary or permanent establishment of a foreign enterprise 4.2.1

Tax liability in principle arises on the first day of operation in Denmark, irrespective of whether the company maintains a physical domicile in Denmark or not.

For employees who are employed at this permanent establishment, their limited tax liability at this permanent establishment commences from the

first day of work. This holds true regardless of whether the provisions outlined in a specific double taxation treaty (DTT) stipulate that the business itself is only subject to taxation under the rules concerning a permanent establishment after a certain duration, such as 6 or 12 months, or possibly not taxed at all until the activity ceases in Denmark once again.

4.2.2

Hired-out-of-labour

4.2.3

When a foreign individual, who has maintained their formal employment relationship with a foreign employer situated abroad, engages in work for a Danish company, the regulations governing the hiring-out of labour come into effect. To trigger these rules, certain conditions must be met: Firstly, the foreign employer must have assigned the foreign individual to work in Denmark for a Danish company (the actual employer), and secondly, the work performed must be an integral component of the Danish company’s operations.

Hired-out-of-labour

The expat tax program is a tax arrangement designed for specific high-income individuals, including researchers, who have the option to pay taxes through this scheme instead of adhering to the standard income tax framework. The expat tax scheme entails a total tax rate of 32.84%, encompassing a base tax rate of 27% and a mandatory labour market contribution of 8%.

When an employee is directly hired out by a foreign entity to work in Denmark for a Danish company, they become liable for international hiring-out of labour tax, which the Danish company is responsible for withholding from the employee’s salary.

To qualify for the expat tax scheme as a high-income employee, one must earn a minimum monthly salary of DKK 72,500 (2023). This calculation includes the ongoing salary, housing allowance, the value of any provided items and services such as free phone and internet, employer-paid health insurance, and the employer’s contributions to specific pension plans.

Employer-provided accommodations, contributions to pension plans with tax deductions, employer contributions to group life insurance, and other salary components not guaranteed by a minimum contractual amount are not included.

The salary amount is determined as the salary prior to social security contribution deductions but after deductions for contributions to the labour market supplementary pension fund (“ATP”).

The expat tax scheme can be applied for a maximum duration of 84 months if the conditions are fulfilled.

In essence, individuals seeking to utilize the expat tax scheme must not have been subject to full or limited tax liability in Denmark within the last 10 years preceding their application. Additionally, an individual may only use the scheme once in their lifetime.

PERSONAL TAXATION IN DENMARK

The tax systems in most EU member states differ from the Danish tax system. The main difference is due to the manner in which social security is funded. In Denmark, social security systems are predominantly financed through taxes.

In contrast, many other EU member states require substantial social security contributions in addition to taxes. Consequently, Denmark initially appears to impose a significantly higher tax burden compared to the majority of other EU member states. However, when considering taxes, social security contributions, and Value Added Tax (VAT) in their entirety, the disparities in net incomes for average employees among countries become less pronounced.

Before receiving their initial salary payment, individuals subject to taxation in Denmark must obtain a wage tax card linked to their personal ID number. Employers require this card to withhold taxes directly from the salary. The wage tax card is transmitted electronically to the employer. If a wage tax card is not provided by the time salary payment is due, the employer must withhold 55% of the salary without any deduction for exemptions.

Each person is entitled to a basic taxfree amount of DKK 48,000 (2023), which is adjusted annually. Income exceeding this threshold is subject to an 8% labour market contribution,

while the remaining portion is taxed at an average rate of 37%. If the total annual income surpasses DKK 568,900 (2023), the excess amount above this limit is subject to an additional tax rate of 15%.

Currently, taxes cannot exceed 52.07% of an individual’s total income.

Tax reductions are expected in 2024.

Certain expenses can be deducted from the salary prior to taxation, making them exempt from taxes. Primary deductible costs include expenses related to the commute between an employee’s residence and workplace, contributions to medical and accident insurance, and payments to pension schemes.

Fringe benefits, such as free accommodation, company cars, computers, and telephones provided to employees, are considered part of the employee’s income for tax purposes when utilized for private purposes. The Danish Tax Agency assesses the value of these fringe benefits, such as the economic value of a company car, distinguishing between personal and business use. Business-related use, such as travel to clients or between workplaces, is not included in the employee’s taxable income, while personal use, including the commute between home and work, is considered taxable income.

Filing of tax returns

INDIVIDUALS

Every individual subject to taxable income in Denmark receives a preliminary income assessment for the forthcoming year in November. The Danish Tax Agency determines this assessment based on recent income and other tax-related information. Taxpayers have the option to make continuous adjustments to the preliminary assessment.

The annual tax return for individuals becomes available in March of the year following the tax year. Typically, an electronic version of the tax return is accessible on the Danish e-filing platform known as “TastSelv.” Taxpayers are recommended to review this return and make any necessary amendments.

COMPANIES

Taxable legal entities must submit their tax returns no later than six months after the conclusion of the income year.

Failure to file tax returns may result in a fine.

Every individual or company has the capability to access their electronic tax records on the Danish Tax Agency’s e-filing platform, “TastSelv,” and can make modifications to the tax card and tax return online.

NJORD LAW FIRM

NJORD Law Firm is a specialized legal practice with a strong local foundation, a significant national presence, and a broad international perspective. Our firm excels in providing precise answers to complex questions, offering clear and direct advice that’s easily understandable and always delivered with empathy and respect.

At NJORD, we specialize in tailoring our advice to the unique realities of each client, regardless of the size of the task at hand. Our ambition drives us to approach every

assignment with dedication, keeping our clients well-informed and secure throughout the process.

From our Danish offices in Copenhagen, Roskilde, Silkeborg, and Aarhus, to our international locations in Riga, Tallinn, and Vilnius, we handle local assignments for businesses and private clients while supporting international companies across different countries. Our legal experts specialize in ten key areas, ensuring we always provide up-to-date, specialized advice.

CONTACT

STEFFEN HEBSGAARD MUFF

Attorney at law, Partner

+45 77 40 10 17

shm@njordlaw.com

RUNE TARNØ

Attorney at law, Partner

+45 23 45 53 97 rut@njordlaw.com

JESPER KRAGH-SKRIVER

Attorney at law

+45 77 40 10 50 jks@njordlaw.com

Steffen Hebsgaard Muff specializes in construction contracts and disputes. This includes infrastructure and energy projects, as well as project logistics and integrated IT-solutions, emphasized by his status as a leading FIDIC practitioner in Denmark. Read more at njordlaw.com

Rune Tarnø specialises in commercial law and primarily advises medium-sized undertakings in Denmark and internationally. Rune advises on all aspects of corporate law, including the formation of new companies, mergers, divisions, (tax-free) business conversions, succession, etc. Additionally, Rune is specialized in transactions within real estate. Read more at njordlaw.

Jesper Kragh-Skriver specializes in commercial dispute resolution and has extensive experience in litigation and international arbitration. His focus area is construction law and construction related matters. Read more at njordlaw.com

THOMAS RYHL

Attorney at law, Partner

+45 77 40 11 58

thr@njordlaw.com

SEBASTIAN BRETH ARNBERG

Attorney at law

+45 77 40 11 30 sba@njordlaw.com

KATRINE BASTIANSEN

Assistant attorney

+45 77 40 10 64 kbn@njordlaw.com

Thomas Ryhl advises on regulatory issues within capital markets and financial services, as well as other EU directives, and on VAT and tax. He has litigated several high-profile litigations and has led many negotiations with public authorities on complex matters. Read more at njordlaw.com

Sebastian Breth Arnberg handles tax and VAT and has extensive experience with property and capital gains taxation. He has expertise in advising the interests of both national and international companies and Danish coporate law and tax. Read more at njordlaw.com

Katrine Bastiansen is primarily engaged in employment and labour law. Read more at njordlaw.com