Early in 2021, the Swedish Competition Act (2008: 579) will be amended in several important respects. The background to the amendments is Directive (EU) 2019/1 of the European Parliament and of the Council, which aims to harmonize the investigative and sanctioning powers of the European competition authorities in their enforcement of the EU competition rules. Undertakings active in Sweden will be affected by the amendments in several ways.
As a result of the Directive, the Swedish Competition Authority (“SCA”) will have several new investigative and sanctioning powers. Undertakings that are subject to investigations regarding suspected competition law infringements will face stricter requirements to co-operate with the SCA and may be liable to pay fines if they provide incorrect, incomplete or misleading information or otherwise obstruct the SCA’s administrative decisions during the investigation. Undertakings that, by themselves or through a trade association, infringe competition law, or an order or a commitment to cease an infringement, will be subject to extended possibilities for the SCA to impose fines for the infringement. According to the proposal, the SCA will be granted decision-making powers in respect of fines. The most important changes in the Competition Act are described below:
The upcoming amendments in the Competition Act (“CA”) concern suspected infringements of the prohibition of anti-competitive agreements (Chapter 2, Section 1 CA / Article 101 of the Treaty on the functioning of the European Union (“TEUF”)) and the prohibition of abuse of a dominant position (Chapter 2, Section 7 CA / Article 102 TEUF). The rules on mergers (Chapter 4 CA) and anti-competitive sales by public entities (Chapter 3, Section 27 CA) are not affected by the amendments.
The SCA’s power to order undertakings to terminate infringements of the competition rules will be extended to include structural orders (Chapter 3, Section 1 CA). Thus, if necessary to end an infringement, the SCA may order undertakings to divest, inter alia, operations and trademarks.
The SCA will have the power to adopt infringements decisions, i.e. decide that an undertaking has infringed the competition rules, without taking any measures against the infringement (Chapter 3, Section 1 (a) CA). Such decisions have precedential value in competition damages cases, which means that the infringement as such may not be reassessed (Chapter 5, Section 9 of the Competition Damages Act (2016: 964)).
An obligation for the SCA to market test commitments will be introduced. This means that, before the SCA accepts an undertaking’s commitments to end a suspected infringement of the competition rules, undertakings affected must be given an opportunity to comment on the commitments (Chapter 3, Section 4, Paragraph 3 CA).
According to the proposal, the SCA will be granted decision-making powers in respect of fines. The power to impose fines, which currently concerns infringements of the competition rules, will be extended to non-compliance with the SCA's orders according to Chapter 3, Section 1 or 3 CA and/or commitments according to Chapter 3, Section 4 CA to cease infringements (Chapter 3, Section 5, Paragraph 1, Items 2 and 3 CA). A current provision which states that fines may not be imposed in minor cases (Chapter 3, Section 7, Paragraph 1, Item 3 CA) will be removed. The maximum fine payable for an association of undertakings (e.g. a trade association) will be extended in cases where the infringement relates to the activities of its members. In such cases, the maximum amount of the fine shall be 10 per cent of the sum of the total worldwide turnover of each member active on the market affected by the infringement of the association (Chapter 3, Section 6, Paragraph 2 CA).
As a result of the proposal to give the SCA decision-making powers in respect of fines, it is proposed that the provisions governing fine orders (Chapter 3, Sections 16-19 CA) are removed.
According to the current procedure, parties may in some cases be compensated for reasonable litigation costs that have been incurred after the receipt of the SCA’s draft summons application with request for fines (Chapter 8, Section 16 CA). As a result of the proposed change in decision-making procedure governing fines, it is proposed that this provision is removed.
Directive 1/2019 aligns the Member States’ programmes for leniency and reduction of fines with the EU Commission’s leniency rules. In Sweden, this means, inter alia, that it will no longer be possible for associations of undertakings (e.g. trade associations) to be granted leniency. Further, the possibility of leniency for those who “in other ways have facilitated the investigation of the infringement to a very significant extent” (Chapter 3, Section 12, Paragraph 2, Item 2 CA) will be removed. If an undertaking provides information that leads to an increase in the amount of the fines, e.g. information that the infringement had a longer duration than what was previously known, this information shall not be taken into account when determining the fines for the said undertaking (Chapter 3, Section 13, Paragraph 3 CA).
The time limitation in Chapter 3, Section 20 CA will be suspended when the Commission or a competition authority in another Member State investigates the same agreement or procedure that the SCA investigates, or may investigate (Chapter 3, Section 20 (a) CA). The suspension of the limitation period will start from the notification of the first formal investigative measure to at least one undertaking subject to the enforcement proceedings. It will apply to all undertakings which have participated in the infringement.
Where fines for a competition law infringement are imposed on an association of undertakings taking account of the turnover of its members, and the association is not able to pay the fines, the association will be obliged to call for contributions from its members to cover the fines (Chapter 3, Section 23 (a) CA). If full payment is not made, the SCA will be entitled to decide that one or more of the members represented in the trade association's decision-making bodies at the time of the infringement shall pay the remaining part of the fine (Chapter 3, Section 23 (b), Paragraph 1 CA). If this does not lead to full payment, the SCA may decide that one or several other members shall pay the remaining part of the fine. However, payment shall not be required from undertakings which are able to show that they did not implement the infringing decision of the association and either were not aware of its existence or have actively distanced themselves from it before the investigation started (Chapter 3, Section 23 (b), Paragraph 2 CA).
The SCA’s power to conduct unannounced inspections at undertakings’ business premises (dawn raids), which under the current legislation may be authorised to investigate competition law infringements, will be extended to also include non-compliance with the SCA’s orders and/or accepted commitments to cease infringements, and/or non-compliance with the SCA’s administrative decisions during the SCA’s investigation (Chapter 5, Section 3, Paragraph 2 CA). The power to conduct inspections at other premises than the premises of the undertaking investigated will be extended to include not only legal persons, but also, inter alia, non-profit associations (Chapter 5, Section 4 CA). The power to conduct inspections at the home of any board member and employee of the undertaking investigated will be extended to include investigations of all infringements and not only, as today, serious infringements (Chapter 5, Section 5 CA).
The SCA’s powers during an inspection will also be extended. It will be clarified that the SCA has the right to access any information which is accessible to the entity subject to the inspection, irrespective of the medium on which the information is stored (Chapter 5, Section 6, Item 2 CA). A current limitation which entitles undertakings not to disclose trade secrets of a technical nature (Chapter 5, Section 12 CA) will be removed. The SCA will have the power to seal business premises, accounting and business documents (Chapter 5, Section 6, Item 5 CA). The SCA will be entitled to bring (physical and digital) documents, including original documents and the storage material in which they are stored, to the SCA's premises or other designated premises for further review there, without the undertaking’s consent (Chapter 5, Section 6 (a) CA). When the SCA examines documents in the SCA's premises or other designated premises, the undertaking investigated will be entitled to monitor the measures taken by the Authority (Chapter 5, Section 6 (b) CA).
Those who are required to provide information or are subject to an investigation under the Competition Act shall not be forced to admit an infringement of the competition rules. By this amendment, it will be clarified that the protection against self-incrimination does not only apply in investigations that may lead to fines (which has already been clarified in case law) but also in investigations that can lead to orders under penalty of a fine to cease such violations (Chapter 5, Section 13 CA).
A new type of administrative fine (Sw. utredningsskadeavgift) will be introduced. Such fine may be imposed on undertakings that intentionally or negligently violate certain administrative decisions during the SCA's investigation, e.g. by submitting incorrect, incomplete or misleading information, failing to ensure that a representative appears for interrogation, breaking a seal or otherwise obstructing an inspection (Chapter 5, Section 21 CA). The fines for non-compliance may amount to a maximum of one per cent of the undertaking's turnover during the previous financial year (Chapter 5, Section 23, Paragraph 2 CA). According to the proposal, the SCA will have decision-making powers in respect of such fines.
A new provision will clarify that periodic penalty payments shall be based on the undertaking's average daily turnover in the previous financial year (Chapter 6, Section 1 (a) CA).
Restrictions will be introduced in the possibility to submit certain documents as written evidence in cases and matters under the Competition Act. A party who, in a proceeding before a national competition authority in the EU, has been given access to a leniency application or a settlement submission, will not be entitled to invoke such document in a case or matter under the Competition Act, unless the case/matter concerns an appeal of an infringement decision and it is necessary for the party to invoke the document in order to conduct its defence (Chapter 8, Section 4 CA). Further, during the competition authority’s proceedings, the party will not be entitled to invoke: (i) documents that others have produced specifically for the proceedings; (ii) documents produced by the competition authority and submitted to the parties; or (iii) revoked settlement submissions (Chapter 8, Section 5 CA). A new provision will clarify that the SCA may only exchange leniency applications with the Commission and competition authorities in other Member States with the undertaking’s consent (Chapter 5, Section 14 (a) CA). According to a new provision (Chapter 30, Section 1 (a)) in the Public Access and Secrecy Act (2009: 400) information in leniency applications and settlement submissions will be covered by absolute secrecy at the SCA.
The amendments are proposed to enter into force on 4 February 2021.
If you have any questions regarding the upcoming changes, you are welcome to contact
Trine Osen Bergqvist
Competition Law Expert, Advokat, Stockholm
+46 (0)10 614 30 26
trine.osenbergqvist@vinge.se
