Cartel agreements are void ex tunc. Unlawful concerted practices between competing undertakings that are not based on agreements are also legally unenforceable. The SCA may order cartel members to cease the cartel activity, subject to a fine for non-compliance with the order. The imposition of the fine requires a decision by the relevant courts.
Further, the cartel members may, as an administrative sanction, upon application by the SCA, be ordered by the Patent and Market Court to pay fines as an economic sanction for their illegal activities. The decision of the District Court may be appealed to the Patent and Market Court of Appeal. As mentioned earlier, the SCA itself has the right to impose binding fines on undertakings where the undertaking in question does not dispute the fine (see question 30).
A fine may not exceed 10 per cent of the turnover of the undertaking concerned during the previous financial year. There is no lower limit to the fine. Unlike under EU competition law, only the turnover of the violating undertaking itself is taken into account in this calculation, rather than the turnover of all undertakings belonging to the same group. Fines are primarily determined according to the gravity and duration of the infringement. The degree of gravity is measured by the harmful effects of the infringement on competition and prices in the market, as well as by the extent of direct economic losses suffered by other parties. Moreover, when setting the fines, it may also be taken into account whether the undertaking in question has previously violated articles 101 and 102 TFEU or the corresponding national rules.
In addition to fines, the current Act introduced the possibility of imposing an injunction against trading for persons who have participated in serious breaches of Chapter 2, section 1 or article 101 TFEU, provided such an injunction is necessitated by the public interest. The new Trading Prohibition Act was introduced in 2014 and the SCA has published guidelines on the application of the rules on injunctions against trading. The new act broadened the scope for trading prohibitions, in the sense that injunctions can now be imposed on all persons that conduct the management of a business. The Act also gives the Swedish Enforcement Authority a mandate to oblige a third party to submit information regarding his or her economic dealings with the person alleged to have participated in the infringement.
In assessing whether an injunction against trading is necessitated by the public interest, special consideration shall be given to whether the conduct was systematic or intended to produce significant personal gain, whether such conduct caused or was intended to cause significant harm, whether the person in question has previously been convicted of criminal acts in respect of business activities and whether the conduct was intended seriously to prevent, restrict or distort competition. The infringement must therefore have been of a serious nature and of relatively long duration for an injunction to be imposed. Furthermore, where the person against whom the injunction is considered has participated in giving significant assistance in the investigation of the infringement by the SCA, the European Commission or a competition authority in another member state, an injunction shall not be considered necessitated by the public interest. This will particularly apply to companies that are first to report an infringement to the SCA. An individual risking such an injunction may apply to the SCA for individual leniency.
An injunction against trading may be issued against members and alternate members of the board of directors, the managing director and the deputy managing director, provided that such a person committed the wrongdoing in respect of business activities or was serving in such a post at the time of the infringement of the competition rules. An injunction against trading can further be imposed against persons who, in another capacity, have in fact conducted the management of a business, or who have held themselves out to third parties as responsible for a business. Negligence in appointing, instructing and supervising staff is normally not sufficient for an injunction against trading to be imposed. The board of directors and the management are, however, obliged to take corrective actions if they learn that persons within the company are engaged in infringing conduct. If such actions are not taken immediately, infringements that are committed thereafter may be relevant when assessing whether an injunction should be imposed. The SCA may apply for an injunction against trading either in conjunction with an action for administrative fines or in separate proceedings before the Patent and Market Court.
In addition to administrative sanctions, the Act contains an explicit right to claim damages for parties who have suffered injury as a result of infringements of the prohibitions against anticompetitive agreements or abuse of a dominant position. Chapter 3, section 25 of the Act stipulates a right to damages for parties injured as a consequence of infringements of Chapter 2, sections 1 or 7 of the Act or articles 101 or 102 TFEU. Damages should equal, and thus compensate, the injuries sustained (and proven) by the plaintiff. A private antitrust action may be brought under the general Swedish procedural rules. Since the entry into force of the new Competition Damages Act (2016:964) on 27 December 2016, the competence to hear private antitrust actions has moved from the general courts to the Patent and Market Courts.
There is also a possibility for the Consumer Ombudsman to represent consumers in class actions, in accordance with the Group Proceedings Act (2002:599) (see question 23). Finally, the Swedish Arbitration Act (1999:116) stipulates that the civil law consequences of competition law violations may be the subject of arbitration.
Administrative fines imposed by competition authorities are normally not taken into account when determining damages.
To date, the SCA has filed about 30 applications for fines with the Stockholm District Court (now to be filed with the Patent and Market Court) for activities restricting competition. These applications have concerned both alleged abuses of a dominant position and anticompetitive cooperation between undertakings. The highest individual fine so far imposed by the courts amounted to 200 million kronor as a result of a cross-appeal in the Asphalt case (see below). A tendency can be observed regarding the SCA’s increased interest in different kinds of unlawful behaviour, whereby it no longer focuses only on the most grave and obvious cartels, but also pursues companies for fines in less traditional cases (eg, involving forms of bidding cooperation).
In the biggest cartel case in Sweden to date, following the 2007 judgment of the Stockholm District Court in the Asphalt cartel, total fines on all nine companies involved amounted to approximately 500 million kronor after all appeals were settled. Although the amount is high for Sweden, it is considerably lower than the 1.2 billion kronor sought by the SCA. To establish the fines in that case, the court made an overall assessment of the violations that had occurred and all relevant circumstances.
The most recent judgment from the Patent and Market Court on anticompetitive agreements was handed down in July 2018, and concerned Booking.com’s price parity clauses, requiring hotels not to offer lower prices on their own websites than on Booking.com, which the Court found to restrict competition. The judgment is the result of a private action. The most recent judgment in a case driven by the SCA on anticompetitive agreements was handed down in February 2018, and concerned procurement-related competition infringements. In December 2017, the Patent and Market Court fined two telecom companies for engaging in anticompetitive arrangements before a public procurement of internet fibre services in 2009, where one company agreed not to participate in the tender. However, one of the parties subsequently appealed and in February 2018 the case was overturned by the Patent and Market Court of Appeal (see ‘Update and trends’).
It should also be mentioned that the SCA has used its authority to issue binding fines in non-contentious cases on a number of occasions. This power for the SCA was introduced by the current Act (see question 30).
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