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Whistleblowing and self-reporting
Are whistleblowers protected in your jurisdiction?
There is no general whistleblower legislation or protection in Denmark. While most large private companies have whistleblower mechanisms in place, it is still in its infancy in the public sector.
The Financial Business Act protects whistleblowers. Financial undertakings are legally required to have a scheme in place that facilitates whistleblowing (see Section 75a of the Financial Business Act). Further, whistleblowers are protected by Section 75b, which provides that:
(1) A financial undertaking shall not subject employees to unfavourable treatment or unfavourable consequences for reporting a violation or potential violation by the undertaking of financial legislation to the Danish FSA or to a scheme implemented in the undertaking.
(2) Employees whose rights are infringed by a breach of subsection (1) may be awarded compensation in accordance with the principles of the Danish Act on Equal Treatment of Men and Women as regards Access to Employment etc. (ligebehandlingsloven), such compensation to be assessed with due regard to the employee's length of service and the merits of the case in general.
(3) Subsections (1) and (2) cannot be varied by agreement to the detriment of the employee.
Employees in the private sector are protected only against unreasonable dismissals. Assessing whether a dismissal is unreasonable can be difficult.
Section 77 of the Constitutional Act protects freedom of speech. Therefore, whistleblowers may in some cases be protected by this provision. However, the protection provided by Section 77 is unclear, which is why the Ministry of Justice published reports in 2006 and 2015 on the freedom of speech of public-sector employees. The reports provide that there are certain restrictions on public-sector employees’ freedom of speech. An employee cannot, for example, make incorrect statements or make statements on the public authority’s behalf. Further, the employee’s freedom of speech must be exercised with due consideration of the internal decision-making process and functional capacity of the public authority. The 2015 report dismissed the idea of requiring the public sector to establish whistleblowing arrangements.
Is it common for leniency to be shown to organisations that self-report and/or cooperate with authorities? If so, what process must be followed?
Danish law includes no specific provisions about leniency with regard to anti-corruption and bribery. Sections 82 and 83 of the Criminal Code contain general rules regarding leniency. Section 82(1)(9) provides that self-reporting must be considered a mitigating circumstance when determining a sentence. At present, there is insufficient case law in place to assess how much leniency will be shown to organisations that self report to the authorities.