Chapter 2 of the Competition Act holds the substantive provisions relevant for cartels and other anticompetitive agreements. Chapter 2, Sections 1 and 2 are modelled on Article 101(1) and 101(3) of the Treaty on the Functioning of the European Union (TFEU). Section 1 prohibits the cooperation between undertakings that has as its object or effect the prevention, restriction or distortion of competition in the market to an appreciable extent, whereas Section 2 sets out the possible exemptions to the prohibition found in Section 1.
The Swedish leniency programme was amended in 2014 to better reflect the EU leniency system. The new leniency regime introduced a marker system whereby a company may apply for a marker and submit limited information about an ongoing infringement. The minimum requirement to obtain a marker is to submit information on the market affected by the infringement, the other companies involved and the nature of the infringement. To secure the marker, the company must submit a complete application within a specified period. Unless the company with the marker fails to submit the outstanding information, another company cannot jump the queue for immunity.i Significant casesInsurance services - reviewability of dawn raids
In April and June 2017, the SCA conducted a dawn raid against a number of insurance companies (Söderberg & Partners et al) for suspected bid rigging in public tenders. This was done after a prior decision by the PMC allowing the raid. During the raid the SCA 'mirrored' several hard drives and, with the consent of the companies, brought and reviewed them at the premises of the SCA. However, when the SCA copied certain documents from the hard drives and included them in the case file, one company appealed the measure to copy the documents, arguing that the documents were outside the scope of the PMC's dawn raid decision. After both the PMC and the PMCA had rejected the appeal, the Supreme Court heard the case. The Court stated that if a company contests the SCA's right to review or copy certain material on the grounds that the measure is out of scope of the original dawn raid decision, the SCA must refer the dispute to the Swedish Enforcement Agency and request its assistance in order to review or copy the contested material. In this case, the SCA had not requested such assistance, which the Supreme Court found to be a violation of the company's right to a fair trial under the European Convention on Human Rights. The Court stated, however, that the appropriate remedy for such a violation was economic compensation, rather than to create a new right of review before the PMC. The decisions of the lower courts were thus affirmed.Data communications services in Gothenburg - bid rigging?
The SCA sued TeliaSonera, Sweden's largest telecommunications operator, and GothNet, a local network operator in Gothenburg, and requested a total fine of 35 million kronor for having formed a bid-rigging cartel during a public procurement procedure by the City of Gothenburg in 2009. The SCA claimed that when the City of Gothenburg procured data communication services, TeliaSonera and GothNet agreed that TeliaSonera would refrain from submitting a tender in the procurement, even though GothNet and TeliaSonera were competitors. Subsequently winning the bid, GothNet contracted TeliaSonera as a subcontractor. The PMC ruled in favour of the SCA's claim and ordered each of the parties to pay 8 million kronor in fines. TeliaSonera appealed the judgment, which was reversed by the PMCA. In its judgment from February 2018, the PMCA stated that the nature of the information provided by TeliaSonera to GothNet entailing that TeliaSonera would not be submitting a bid in the procurement was a concerted practice within the meaning of the competition rules. However, considering the economic and legal context of the procurement in which the coordination took place, the court held that the information exchange could not be regarded anticompetitive by object. Since there was not sufficient evidence of anticompetitive effects, the SCA's claim was rejected.Moving companies - market sharing?
The SCA sued three companies in the moving company sector, Alfa Quality Moving, NFB Transport Systems and ICM Kungsholms, for a total fine of 42 million kronor. The companies had in two merger transactions included non-compete clauses of five years, which, according to the SCA, were too far-reaching. The SCA claimed that the clauses constituted illegal market sharing agreements. However, the PMC held that the clauses were not anticompetitive by object and that the SCA had not shown any anticompetitive effects. The PMCA affirmed the judgment on appeal. The court pointed out that non-compete clauses may be necessary for the successful implementation of a merger transaction, since such clauses provide the buyer with a certain degree of security. The SCA had argued that the moving companies knowingly had exceeded the three-year period outlined in the Commission's guiding notice on ancillary restraints. However, the PMCA found that the three-year preiod reflects the duration under which companies normally can assume to be protected under the Commission notice rather than the maximum duration allowed for a non-compete clause. Accordingly, the court did not hold the non-compete clauses to be anticompetitive by object. The PMCA further concluded that the SCA did not provide evidence of any anticompetitive effects.ii Trends, developments and strategies
In the past, the SCA has launched cartel cases against companies in the asphalt and petrol markets. For the past few years, the SCA has devoted greater resources to develop its cartel detection methods. Sectors that have been investigated more recently include construction, electronic equipment, and retail. On average, the SCA conducts a handful of dawn raids per year, and it receives approximately five leniency applications per year, of which approximately half are summary applications.
In December 2018, the SCA conducted a questionnaire survey of the level of corruption in the construction industry. Among the responding firms, 49 per cent believed that there were cartels in the industry, and 29 per cent of those believed that cartels operated on a regular basis.iii Outlook
The fight against cartels is one of the main priorities of the SCA, and measures relating to the detection of cartels has increased, especially concerning bid-rigging cartels in public procurement procedures. There are several ongoing investigations at the SCA of companies suspected of having colluded at the bidding stage.