COVID-19: The Danish Epidemic Act

On 12 March 2020, the Danish Parliament adopted an amendment to the Danish Epidemic Act authorising the Minister for Health to take measures to combat the COVID-19 epidemic in Denmark. The Act may impose a large number of restrictions and orders on citizens, associations as well as private and public institutions etc. in respect of internal and external activities. The Act entered into force on 17 March 2020, and since then additional amendments imposing additional restrictions have been passed. In April 2020, the Government began to relax some of the restrictions as part of a gradual reopening of the country.

This is an update to our newsletter of 13 March 2020. The newsletter was last updated on 1 May 2020 with a description of the latest changes to the Government’s gradual reopening announced in April 2020.

The Government imposes radical restrictions on business and industry and on society in general

The Act forms the basis of the most comprehensive restrictions imposed by the Government to combat the COVID-19 epidemic in Denmark. In several amendments to the Act, the Danish Parliament has authorised the Government to impose a large number of restrictions, prohibitions and orders. This applies to e.g. prohibitions against public assemblies, closing of stores, restaurants, etc. and restrictions on the use of public transport. In addition, the Government can issue orders to individuals and impose special restrictions on undertakings, e.g. transport companies, in order to secure the supply of goods and medical equipment. The Act authorises probably the most radical measures in peacetime and affects several constitutional rights, including the freedom of assembly and the right of ownership.

The rules relating to the Covid-19 have been imposed by amending the Danish Epidemic Act (act on measures against contagious and other transmittable diseases), cf. Act no. 1026 of 1 October 2019 as subsequently amended by Act no. 359 of 4 April 2020. The Act is distinctly a framework act granting the Government, specifically the Minister for Health, the possibility of imposing special rules by issuing executive orders. These rules may subsequently enter into force immediately. It appears specifically that such rules will take precedence over all other national legislation (except the Constitution of Denmark).

However, the restrictions must be temporary and proportional and may be restricted to specific areas based on specific assessments. As the Government operates based on a precautionary principle in respect of the spread of the disease, it is expected that the measures will be radical.

On 21 April 2020, the Government issued several executive orders imposing such restrictions, including (i) the executive order on the prohibition against large assemblies and the prohibition against access to and restrictions on certain facilities, etc. (no. 445 of 19 April 2020) (“the Prohibition against assembly order”), (ii) the executive order on the prohibition against large assemblies, etc. (no. 456 of 20 April 2020) (the “Prohibition against large assemblies order”) and (iii) the executive order on measures etc. in the transport sector (no. 220 of 17 March 2020) (“the Transport-related infection order”). The executive orders entered into force at 10 am on 18 March 2020. The most significant provisions of these executive orders are described below.

The Act may grant the Government additional powers, including the prohibition against assemblies of less than 10 persons, if based on a recommendation from the health authorities.

From mid-April 2020, the Government has announced several measures to gradually reopen Denmark by relaxing a number of restrictions if this is deemed safe in terms of health. The main part of the restrictions, for instance in the prohibition against assembly order be in force until and including initially 11 May 2020. However, it is expected that a large number of the measures will remain in force for a long period ahead. The prohibition in the prohibition against large assemblies order is already in force through to and including 1 September 2020.

The Act is supplemented by a number of other Act and rules, which the Government has made use of. This is the case for, inter alia, the entry restrictions and the closing of the borders, which are initiated under the Schengen Agreement until initially 13 April 2020. Reference is made to our newsletter in this respect (link). The Government has prepared a guide for undertakings affected by the COVID-19 epidemic (www.virksomhedsguiden.dk) and a website containing news about COVID-19 (www.politi.dk). Also, we refer to our practichttp://www.politi.dk/coronavirus-i-danmarke groups’ newsletters and links on our COVID-19 website (link).

The most significant provisions from the business and industry’s perspective:

Prohibition against access to business premises etc.

 (latest update 1 May 2020)

The Government may prohibit or restrict access to facilities, which business owners (and other legal and physical persons) dispose of and to which there is general public access, cf. section 12b of the Act. According to the Government, this may be ferry terminals, airports, stations and meeting places such as fitness centres, restaurants, concert halls, tanning salons, etc. However, there are no specific restrictions in the legal framework and the Government may thus impose the restrictions on any type of facility. According to section 6 of the prohibition against assembly order, the following facilities must be closed to the public:

1. Places where food and beverages are served or where tobacco to be consumed at the point of sale is sold; however, selling food and beverages as takeaway is allowed.
2. Shopping centres, arcades and bazars, and stores located in these, unless the stores can be accessed directly from the street (and the access from the store to the shopping centre, etc. is blocked); however, except convenience stores, pharmacies and specialist stores selling medical equipment.
3. Places where sports and recreational activities are practiced, including gambling halls, playlands and water parks, public swimming pools, fitness centres, theatres and cinemas; however, except for facilities used for necessary rehabilitation.
4. Tattoo and piercing salons, spas, personal care and beauty clinics, massage clinics, hairdressers and other facilities offering services that imply close physical contact with customers, and tanning salons.

The Government has announced that the latter implies, inter alia, that night clubs, discotheques, bars, pubs, water pipe cafés and similar establishments must remain closed.

The prohibition was in force until 20 April 2020 for small businesses with one-to-one physical contact, such as hairdressers, beauty clinics and massage clinics, etc. These are now allowed to reopen provided that they comply with the health authorities’ measures to prevent spread of the decease (see below).

The Government is furthermore granted powers to impose prohibitions against other institutions, including outdoor areas, cf. section 12b of the Act. This may for instance be outdoor areas in amusement parks, campgrounds, golf courses, etc. Such prohibitions have not yet been imposed.

Other restrictions on business premises, etc.

 (latest update 1 May 2020)

The Government may pursuant to the Epidemic Act, as an alternative to the above-mentioned prohibitions, impose rules concerning maximum occupancy and other similar restrictions, e.g. allowing only a certain number of people compared to the capacity (e.g. allowing a maximum of one third of concert guests to be present), or impose requirements that in business premises people should keep a certain distance. This may for instance be imposed in supermarkets, pharmacies and other critical businesses, where a prohibition is not desired, but other restrictions are necessary.

In section 7 of the prohibition against assembly order, the Government has introduced a number of restrictions on all business owners with facilities with public access. These restrictions are thus not limited to certain types of facilities. The business owner must ensure that all these requirements are fulfilled:

1. Maximum 1 person per 4 square meters of floor area to which there is public access is allowed (the floor area is measured from wall to wall regardless of furniture and equipment, etc.). v.)
2. The facilities must to the extent possible be organised in a manner that minimizes the risk of infection, including by making it possible for customers and visitors to keep a distance between each other.
3. In or near the facilities, information material must be posted to the effect that people, who have symptoms of COVID-19, should stay isolated at home, and on good hygiene and appropriate behaviour in the public space. The information material must comply with the Danish Health Authority’s instructions (see link).
4. It must be ensured that all employees comply with the Health Authority’s recommendations on good hygiene and appropriate behaviour (see link).
5. To the extent possible, water and soap or hand sanitizers must be available to customers and visitors.
6. Employees must use gloves when selling non-packaged foods.

If undertakings do not comply with the above-mentioned restrictions, or if there is no prospect of this happening, the police may order the facility to close for a specific period, cf. section 8 of the Prohibition against assembly order.

Corresponding rules on maximum occupancy and/or requirements for distance may be imposed in respect of social and cultural institutions and other public facilities.

Restrictions on assembly

 (latest update 1 May 2020)

The Government wishes to avoid large assemblies that imply a large risk of spread of the disease. Under the provisions of the Epidemic Act, the Government obtains the possibility of prohibiting the organization of and participation in large assemblies, arrangements, events, etc., cf. section 6(1) of the Act. This may include indoor as well as outdoor and public as well as private assemblies (however, except events in private residences). The prohibitions may comprise any type of event, e.g. concerts, sports events, parties, general meetings and meetings in companies or associations.

Firstly, the Government has imposed a prohibition, under section 1 of the prohibition against assembly order, against organizing or participating in indoor and outdoor events, arrangements, activities etc. with more than 10 participants, preliminarily until 11 May 2020. However, this does not apply to events, etc., in private residences. The police may furthermore discretionarily impose prohibitions against the assembly of more than 10 people in other publicly accessible places, for instance in the event of crowds in parks, on bridges, etc.; cf. section 2 of the prohibition against assembly order. The police must exercise this discretion based on the Danish Health Authority’s general recommendations in respect of the risk of infection.

Secondly, the Government has prohibited large assemblies of more than 500 participants through to 1 September 2020. The prohibition implies that festivals, concerts, sport events, etc., will to a large extent not be allowed during that period.

By this Act, the Government is granted powers to generally prohibit assemblies of less than 10 participants. However, this requires that this is based on the health authorities’ recommendations, and only if less radical measures are deemed insufficient, cf. section 6(1), third sentence, of the Act. The memorandum to the bill presupposes that the prohibition will not apply to assemblies of people in the same residence or close relatives. Such a prohibition has not been imposed and is not expected to be imposed either.

Closing of areas and prohibition to visit

(latest update 1 May 2020)

The Government obtains the possibility of closing off specific areas that are assessed to carry a special risk of infection, including in order to avoid spread to other areas, cf. section 7 of the Act. This may at the same time imply a complete prohibition against assemblies within the closed off area.

In addition, the police obtains the possibility of entirely prohibiting visits to certain places, to which the public normally has access due to the risk of spread of the disease. This applies to e.g. squares, parks, roads, beaches, amusement parks, railway stations, airports, stores and shopping centres for a specific period, cf. section 6(1) of the Act. The prohibition will be a prohibition to visit, but not a curfew, as people are still allowed to use roads and e.g. walk through a park. Several prohibitions to visit have been imposed, including in Copenhagen.

Measures against citizens and private individuals and the assistance of undertakings

Under the Act, the Government can instruct anybody infected with COVID-19 or anybody presumed to be infected, to be examined by a health official, to submit to hospitalization or submit to isolation in a suitable facility. The Government may also initiate compulsory treatment. However, the Government cannot break into residences without a court order considering the constitutional protection of the inviolability of the home, section 72 of the Constitution of Denmark.

The Government has announced that initially the police and security firms that are appointed will manage this task. However, this also applies to private players, including small transporters and other undertakings. It appears from the Act that private players may use force, including physical retention and the use of handcuffs if necessary. It is presumed that such assistance only takes place if specifically required.

The Government may prohibit infected persons from using public transport, cf. section 11(3) of the Act. This also applies to persons, who may be infected (based on e.g. obvious symptoms).. This also means that force may be used on passengers, who do not cooperate. It is recommended that transporters contact the authorities in order to clarify, how to handle potentially infected passengers.

Restrictions for transport, including prohibition against disembarking from cruise ships and exit from ships in case of infection

(latest update 1 May 2020)

The Danish Minister of Health may prohibit access to means of transport, prevent disembarking and lay down restrictions on maximum occupancy, cf. section 12a of the Act. This could be, for instance, a prohibition against taking more passengers than one fourth of the usual capacity or no more passengers than there are seats.

The rules may be applied in respect of trains, buses, light rail, metro, airplanes and ferries. The rules cover public as well as private players. For now, the Government has imposed restrictions on the occupancy of long-distance busses to the effect that they may maximally convey passenger corresponding to 50 % of the seats (executive order no. 457 of 20 April 2020).

The Government has furthermore imposed a general prohibition against disembarkation from cruise ships and other ships which are not in regular service by more than 100 passengers in all Danish ports without special permission from the authorities (executive order no. 352 of 3 April 2020). Such a prohibition may however be extended to other types of ships if it is assessed that this is necessary to prevent the spread of the decease.

If during a ship journey it is established that somebody on board is infected, the transporter must upon arrival ensure that no passengers come into contact with persons ashore (“intercourse”), before the authorities allow it, cf. section 3(1) and section 4 of the transport-related infection order. This also applies to aircraft in the way that crew and passengers are not allowed to leave the airport until a special permission is granted, cf. sections 6 and 7.

Duty of notification for undertakings and private individuals

(added on 3 April 2020)

The health authorities may with effect as of 4 April 2020 impose on undertakings to submit health information in order to prevent the spread of the disease, cf. executive order no. 347 of 30 March 2020, cf. section 1. It solely appears that the information must be “relevant” and it is therefore not specifically stated in the executive order, which information it specifically refers to. Physical persons may be subjected to the same orders in respect of information about the person’s previous whereabouts at home and abroad, cf. section 2 of the executive order. The processing of personal data is subject to the General Data Protection Regulation (GDPR).

Passing on passenger information and transporters’ duty of notification

(latest update 3 April 2020)

The Government may demand that passenger information be disclosed by the transporter, cf. section 13(1) of the Act. In principle, this applies to all transport types, including aircraft, ships, trains and buses.

It may be considered adding in relation to the general data protection rules that information can be disclosed to authorities for this purpose.

Transporters may additionally be instructed to notify the authorities on the health conditions on board ships and aircraft, cf. section 13(2) of the Act. This must initially take place upon arrival at the destination. This requirement was imposed in sections 3 and 5 of the Transport-related infection order.

As for ships, notification must be provided by the shipmaster or the ship’s doctor, if any. The shipmaster/ship’s doctor must also answer all questions from the authorities, cf. section 3(2). The Danish Maritime Authority has stated that in the event of sickness among the crew, Radio Medical Danmark, which offers medical advice, should be via www.radio-medical.dk. As for aircraft, the pilot must initially inform air traffic service prior to landing, cf. section 6 of the executive order.

Measures to secure the supply of goods and medical equipment

(latest update 3 April 2020)

The Government may issue specific rules to secure the supply of goods, cf. section 12f of the Act. This may include expropriation of important goods that private players dispose of. In the event of expropriation, the private player must be paid full compensation under section 73 of the Constitution of Denmark. The Government has issued separate executive orders relating to medical equipment, including export bans (e.g. executive order no. 277 of 25 March 2020 on the supply of disinfectants) and restrictions on the distribution of medicine (executive order no. 399 of 8 April 2020). In addition, the EU has imposed restrictions on the export of medical equipment from the EU. Reference is made to our newsletter in this respect (link).

The Minister for Transport has (independently of the Danish Epidemic Act) taken certain emergency measures to ensure the supply of goods by land transport, including by relaxing training requirements and resting time rules, cf. press releases of 13 March 2020 (see link) and 22 March 2020 (see link). Some of these requirements are specified in the executive order on the temporary lapse of the prohibition against lending out drivers etc. (executive order no. 222 of 17 March 2020 (as amended).

Suspension of obligations towards the authorities

(latest update 3 April 2020)

The Government contemplates that private players may be exempted from certain obligations towards public authorities, cf. section 12e of the Act, and that public authorities may be exempted from obligations towards private players, cf. section 12d of the Act. This will apply to obligations that will be impossible or excessively difficult to fulfil during the epidemic.

So far, the Government has issued, among others, executive order on the suspension of obligations towards public authorities in the area of the Ministry of Industry, Business and Financial Affairs (no. 220 of 17 March 2020) and executive order on obligations of the public authorities and private individuals’ rights towards public authorities in the area of the Ministry of Industry, Business and Financial Affairs etc. (no. 225 of 17 March 2020). For instance, the Government has extended the deadline for holding general meetings and submitting annual reports, cf. our newsletter in this respect (link).

However, the Government has specified that in any event this does not apply to obligations, which private players have towards public authorities or other private players under agreements. It depends on the agreements to which extent the parties can be exempted from fulfilling agreements due to the epidemic. As for the possibility of being exempted from fulfilling agreements due to COVID-19, we refer to our newsletter on force majeure (link).

The necessity criteria and the right to complain

 (latest update 3 April 2020)

The Government has announced that it is for the Minister of Health under the ministerial responsibility to assess whether he is authorised to issue the specific rules necessary. The issue is ultimately subject to judicial review, so that businesses may complain of any unnecessary or disproportional measures. However, it is contemplated that businesses to a great extent must follow the Government’s instructions, so that the Government is responsible for the steps actually being necessary. The Government will later lay down special rules on the right to complain, cf. section 3(1) of the Act.

Compensation of loss due to restrictions

(latest update 3 April 2020)

In the amended Act, section 27 of the Danish Epidemic Act is repealed, which granted compensation to businesses etc. by the initiation of legal remedies under the Danish Epidemic Act. The Government justifies this by the Government not believing that they would be able to assess the economic effects of the previous provisions, if they were to be activated. Instead, the Government has announced that it will prepare special compensation schemes and other bailout packages in cooperation with business and industry in order to ensure “reasonable compensation” for the consequences of the measures.

The Government has introduced a number of schemes to support trade and industry in the form of a compensation scheme for wages and salaries, a compensation scheme to cover fixed costs of undertakings and special guarantee schemes under the Danish Fund for Industrial Growth (Vækstfonden). In this respect, the Government has introduced industry-specific schemes covering, inter alia, organizers of large events and the media. For businesses, it is important to ensure documentation, to follow procedures and to apply within the deadlines. We refer to our newsletter in this respect, which will be updated on a current basis.

The Government’s bailout packages to a great extent solely cover costs, not lost earnings. It is therefore important that undertakings are entitled to “full compensation”, if the measures amount to expropriation under section 73 of the Constitution of Denmark. Initially, this may imply claims for compensation of lost net profits. However, in respect of most undertakings this will not be the case, if the measures are deemed to be general and not specific, which speaks in favour of this being a compensation free regulation. However, the measures may be so radical that for some undertakings they may be deemed as expropriation, which is a form of de facto surrender. The Government has indicated that this may be the case, if a prohibition is imposed on the public’s access to the premises of business owners.

We therefore recommend that businesses – depending on the compensation, which the Government will grant – consider whether the measures may amount to expropriation, so that they may advance compensation claims against the State.

Coercive measures and punishment

(latest update 3 April 2020)

The police and the authorities obtain extended access to taking coercive measures without a court order in order to ensure compliance with the Act, cf. section 6(4) of the Act. This applies, inter alia, in respect of measures against assemblies, cf. section 4 of the Prohibition against assembly order. However, the Government revoked the proposed possibility of taking coercive measures in residences without a court order, considering section 72 of the Constitution of Denmark on the inviolability of the home. Therefore, the police can only access private residences without a court order, if the moment would otherwise be wasted in accordance with the general rules of the Danish Administration of Justice Act.

Violations of the rules are punishable by fine or, in serious circumstances, by imprisonment of up to six months, cf. section 29(2) of the Act. As for fines imposed on businesses, the number of employees in the company at the time of the offence must be considered, cf. section 29(3) of the Act.

The Government has in the memorandum of the bill fixed recommended fine levels, which are higher than the fines originally fixed. The new fine levels are:

• Violation of the prohibition against large assemblies, cf. section 1(1) of the prohibition against assembly order: Fine of DKK 2,500 (first offence).
• Businesses’ failure to comply with the closing order for restaurants, shops, sports and leisure activities, etc., cf. section 6(1) of the Prohibition against assembly order: Fine of DKK 10,000 for small businesses (up to nine employees), DKK 20,000 for medium-sized businesses (10 to 49 employees) and DKK 40,000 for large businesses (50 or more employees). The fines may be increased by 100% and 150% for second and third offences, respectively.
• Undertakings’ failure to comply with restrictions for certain premises, etc.; cf. section 7(1) of the Prohibition against assembly order: Fine of DKK 3,000 (first offence).

Violations of the other executive orders, including the Transport-related infections order, are punishable by fine and imprisonment of up to six months. To our knowledge, no recommended fine levels have been issues in this respect.

Application of the Act and implementation in executive orders

(latest update 3 April 2020)

The Act will largely only have legal effect once executive orders are issued, as is the case in respect of for instance the Prohibition against assembly order and the Transport-related infections order. With executive order no. 213 of 17 March 2020, the Government has established that sections 5-7 and 12a-12f of the Epidemic Act and the executive orders issued in this respect, generally apply to the combating the Coronavirus (COVID-19). However, this may also appear directly from the individual executive orders. So far, the individual executive orders have been issued with immediate effect or on very short notice.

The Act does not extend to Greenland and the Faeroe Islands except that all or any of the provisions hereof may be brought into force by Order in Council for the said parts of the realm subject to any variations in their operation necessitated by the specific conditions prevailing in Greenland and the Faeroe Islands respectively. This has not yet happened.

Links

Epidemiloven (nr. 1026 af 1. oktober 2019 som ændret ved lov nr. 208 af 17. marts 2020)

Forsamlingsbekendtgørelsen (nr. 224 af 17. marts 2020 som senest ændret ved bkg. nr. 445 af 19. april 2020)

Storforsamlingsbekendtgørelsen (nr. 456 af 20. april 2020)

Transportsmittebekendtgørelsen (nr. 220 af 17. marts 2020)