When can there be disqualification in a Port Board?
Firstly, it should be noted that the port's activities as an independent institution are covered by the Public Administration Act, cf. section 1(2) of the Act.
The rules on disqualification in the Danish Public Administration Act therefore apply to the members of the Board of Directors and to the port's employees when dealing with cases concerning the conclusion of contracts or similar private law transactions, cf. section 2(2) of the Act. This applies even if this is not written into the articles of association.
The assessment of the questions raised about disqualification under section 3 of the Public Administration Act for members of the Board of Directors is legally similar in many ways to the assessment of questions about disqualification in a municipal council.
As stated generally in the commentary on the Danish Local Government Act (3rd ed.) by Hans B. Thomsen et al, Djøfs forlag 2022, p. 280, the assessment is based on a general assessment of the risk of extraneous considerations influencing the case decision.
A decision to consider a board member disqualified is thus based on objective criteria and does not imply any indication that the member in question must be assumed to give weight to improper considerations.
The fact that the board of directors agrees on a decision on a case has no influence on the decision on the question of a member's impartiality and cannot justify a more lenient assessment of the question of impartiality.
Whether there is disqualification in relation to a specific case must be assessed on the basis of section 3(1)(1) and (3) of the Public Administration Act, which reads:
"(1) he or she has a particular personal or financial interest in the outcome of the case or is or has previously been a representative of someone who has such an interest in the same case,
......
3) the person concerned participates in the management of or is otherwise closely associated with a company, association or other private legal entity that has a special interest in the outcome of the case."
The Administrative Procedure Act's rules on disqualification apply to both specific cases and general cases.
The more general a question about the port expansion is, the stronger a board member's interest in the outcome of the case must be for disqualification to be considered.
