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Trends and climate

Trends

Have there been any recent changes to the cartel regime? If so, have they had a significant impact on enforcement activity?

During 2014 the Swedish Competition Authority (SCA) underwent a reorganisation and introduced conduct-specific competition units to ensure specialised and efficient competition enforcement. The same year saw the introduction of a marker system for the leniency programme, which is similar to the leniency system at EU level. This gives leniency applicants more time to submit the necessary information and evidence, while keeping their place in the leniency application queue.

On September 1 2016 the Stockholm District Court was replaced by the new Patent and Market Court as court of first instance for competition cases, in order to ensure uniform and equivalent court procedures in such complex matters as competition cases. The previous court of appeal, the Market Court, has also been replaced by the Patent and Market Court of Appeal, while the Supreme Court continues to be the final court of appeal.

Are there any proposals to reform or amend the existing cartel regime?

There has been a proposal for increased SCA decision-making powers. Under the current regime, the SCA conducts investigations into suspected violations of competition rules and must subsequently take the matter to court to obtain a judgment imposing penalties. The SCA’s own powers are limited to ordering the undertaking(s) to cease the infringement (under penalty of a fine) or, under certain circumstances, imposing a fine through a settlement procedure. The proposal has been to increase the SCA’s decision-making powers, making the SCA the initial decision-making authority in cases pertaining to cartels and collusion, market abuse and mergers. However, the latest proposal has been limited to increased decision making powers of the SCA only in matters pertaining to merger control. The intended date for this proposed legislation to come into force is January 1 2018.

Have there been any recent key cases?

There have been no recent cases of particular legal significance concerning cartels in Sweden.

Legal framework

Legislation

Which legislation applies to cartels and what are the relevant substantive provisions?

The Competition Act (2008:549) governs in principle all aspects of Swedish competition law. The act contains two general prohibitions: against anti-competitive agreements (Chapter 2 Section 1) and against abuse of a dominant position (Chapter 2 Section 7). The act also includes regulations on control of concentrations (Chapter 4) as well as relevant procedural rules relating to (for example) dawn raids.

The two general prohibitions against anti-competitive agreements and abuse of dominance correspond to Articles 101 and 102 of the Treaty of Functioning of the European Union and are to be interpreted in line with EU law and the case law of the European Court of Justice. Further, Articles 101 and 102 are directly applicable to practices which may affect trade between EU countries.

Institutions

Which bodies are the relevant regulatory and prosecutory authorities and what are their specific roles?

The Swedish Competition Authority (SCA) is the independent governmental authority responsible for the general supervision of competition in Sweden, for implementation and administering of the Competition Act and for investigating cartel matters.

Are there any sectoral regulators with concurrent powers?

No.

Application

Does the legislation apply to both formal agreements and informal practices?

Yes. The prohibition against anti-competitive agreements covers cooperation between two or more undertakings. The cooperation can be effected through a formal or informal agreement, a decision by an association of undertakings or concerted practice.

Does the legislation apply to individuals, companies or both?

The Competition Act applies only to undertakings, which can encompass any form of activity of an economic or commercial nature regardless of legal status. Limited liability companies, trading partnerships, sole traders and economic associations are considered undertakings. Under certain circumstances, state and municipal bodies may also fall within the ambit of this concept.

Does the legislation subject companies to civil liability, criminal liability or both?

The legislation subjects companies to civil liability. Infringement of the prohibition against anti-competitive agreements renders cartel agreements null and void and may result in liability to pay fines as well as damages.

Does the legislation subject individuals to civil liability, criminal liability or both?

The legislation applies only to undertakings. However, in cases of particularly serious infringements, a ‘trading prohibition’ can be imposed on individuals involved in cartels.

Where cartel conduct is punishable by both civil and criminal penalties, can the enforcement authority pursue both types of penalty? How does the authority decide which penalties to seek?

Not applicable.

Are there any sector-specific offences or exemptions?

There are no sector-specific offences. Under Swedish law there are similar exemption rules as under EU competition law. Some types of agreement are exempt from the prohibition against anti-competitive cooperation. These ‘block exemptions’ are compiled in a number of laws implementing the corresponding EU block exemptions:

  • Act (2008:586) implements EU Regulation 316/2014 on the block exemption for technology transfer agreements.
  • Act (2008:581) implements EU Regulation 330/2010 on the block exemption for vertical agreements and concerted practices.
  • Act (2008:582) implements EU Regulation 1218/2010 on the block exemption for specialisation agreements.
  • Act (2008:583) implements EU Regulation 1217/2010 on the block exemption for research and development agreements.
  • Act (2008:584) implements EU Regulation 461/2010 on the block exemption for vertical agreements and concerted practices in the motor vehicle sector.

In addition to the abovementioned block exemptions there are special rules for farming and taxi operations that entail certain exemptions from the prohibition against anti-competitive cooperation.

To what extent, if any, does the legislation apply to extraterritorial conduct?

As the Competition Act contains no territorial restriction, an anti-competitive agreement between undertakings outside Sweden may be prohibited under the act, as long as the agreement has actual or potential anti-competitive effect in Sweden.

Investigations

Initiating an investigation

Who can initiate an investigation of potential cartel conduct?

The Swedish Competition Authority (SCA) is the only authority that can initiate an investigation of potential cartel conduct. Investigations may be initiated at the SCA’s own initiative or after a complaint or notification from a third party.

If an investigation is initiated by complainants or third parties, what rights (if any) do they have?

A complainant is not considered party to the investigation by the SCA and has very limited rights to take part in such investigation. However, there is a subsidiary right for undertakings concerned to bring an action to the Patent and Market Court claiming an injunction in case the SCA decides not to take action against a suspected infringement. Undertakings concerned may also initiate individual proceedings for damages if the undertaking has suffered harm caused by the alleged infringement.

What obligations does a company have on learning that an investigation has commenced?

There is no obligation for the SCA to inform an undertaking that an investigation has commenced. In case of an on-site inspection (ie, a dawn raid) by the SCA, secrecy provisions apply until the dawn raid is initiated. The SCA’s application to the Patent and Market Court as well as any subsequent decision of the Patent and Market Court authorising the SCA to perform on-site inspections is kept strictly confidential, not only in relation to third parties but also in relation to the undertakings subject to the investigation, until the on-site inspection has been initiated.

What obligations does a company have if it believes that an investigation is likely?

A company suspecting an investigation by the SCA, but that has not yet been informed of such investigation, does not have any legal obligations (please see the question below as regards actions ordered by the SCA).

What are the potential consequences of failing to act or delaying action?

Orders by the SCA to submit information and documents, appear before the SCA for questioning or permit a dawn raid can be imposed under penalty of a fine for non-compliance. Facilitating the SCA’s investigation may have a positive effect on the fines for the undertaking concerned. While denying an infringement or aggravating the SCA’s investigation does not lead to higher fines as long as it does not constitute an attempt to mislead the SCA, it could affect the undertaking’s chances for leniency. Application of the privilege against self-incrimination (reflecting the European Convention for the Protection of Human Rights and Fundamental Freedoms) means that the SCA may not compel answers which might involve an admission of the existence of a competition law (or other) infringement.

Formal stages of investigation

What are the formal stages of and approximate timeframe for investigations?

 When the SCA obtains information on a suspected infringement, it will decide whether to proceed with an investigation or formally dismiss the case (leaving concerned undertakings a subsidiary right to bring actions). The SCA may file an application to the Patent and Market Court in order to receive authorisation to conduct an on-site inspection (ie, a dawn raid) on one or more of the suspected companies.

If the SCA finds evidence that confirms its suspicions, it will continue the investigation by questioning the representatives of the suspected undertaking and by contacting consumers and uninvolved competitors.

If the SCA finds that it has sufficient evidence to prove the existence of a cartel, it will issue a statement of objections to the suspected companies, setting out its evidence and position. The suspected companies will then be given an opportunity to respond to the allegations, after which the SCA may:

  • order the undertaking(s) to cease the infringement under penalty of a fine;
  • sue the undertaking(s) before the Patent and Market Court; or
  • issue a fine order (ie, a binding settlement which can be appealed) if the undertaking concerned consents and does not contest the SCA’s statement of objection.

The approximate timeframe for the SCA’s investigation depends on the complexity and scope of the matter but ranges from approximately one to two years. Fines may be imposed only if the summons application has been served within five years from the date that the infringement ceased. If the affected undertaking has been subject to an on-site investigation (ie, a dawn raid) within this period or is given an opportunity to express its views on a draft summons application of the SCA, then this event stops and the clock is ‘reset’, as long as the party subject to the claim of infringement is served a summons application within 10 years from the date that the infringement ceased.

Investigative powers

What investigative powers do the authorities have?

The Competition Act provides the SCA with extensive powers to require information, documents and other materials both from undertakings suspected of an alleged infringement and from third parties. The SCA may also order persons who are likely to be in a position to provide relevant information to appear for questioning. Orders to provide documentation or information and appear for questioning may be imposed under penalty of an administrative fine for non-compliance. However, privilege against self-incrimination applies.

Following an application by the SCA, the Patent and Market Court may permit the SCA to carry out an inspection on the premises of an undertaking (ie, a dawn raid). A decision on a dawn raid may also refer to the following premises if there is a strong indication that the premises in question may contain relevant evidence:

  • homes and other premises belonging to the board members and employees of the undertaking which is subject to investigation if the infringement under investigation is considered serious; and
  • the premises of an undertaking which is not subject to investigation

In carrying out dawn raids the SCA’s inspection powers are similar to those of the European Commission. The SCA is empowered to:

  • examine the books and other business records;
  • make copies of or take extracts from the books and business records (including electronic records);
  • ’mirror’ digitally stored material for subsequent in-depth search (however, the SCA is not authorised to review mirrored data on its own premises without prior consent from the undertaking);
  • request oral explanations on the spot (however, the interviewee is not required to provide any incriminating information); and
  • access any premises, land, modes of transport and other areas.

What is the geographic reach of public enforcement actions?

The SCA’s exercise of extraterritorial jurisdiction is restricted by public international law. Unless it is able to enforce an action against foreign companies, the SCA is unlikely to take such action. However, Sweden cooperates with EU member states and participates in a separate Nordic cooperation agreement which allows the authorities to carry out cross-border investigations and exchange information and evidence.

When is court approval required to invoke these powers?

For dawn raids the SCA requires authorisation from the Patent and Market Court. Authorisation will be given only if there is reason to believe that an infringement has been committed.

Are searches of business and personal premises authorised? If so, which bodies carry out searches and will they wait for legal advisers to arrive?

Following the Patent and Market Court’s decision, the SCA may carry out on-site inspection of premises, land, modes of transport and other areas of a suspected undertaking. If a serious infringement is suspected, on-site inspection may be authorised for homes and other premises belonging to the board members and employees of the undertaking which is subject to investigation. Undertakings other than those to be investigated may under special circumstances be subject to on-site inspection.

The party on whose premises an inspection is to be carried out has the right to summon a legal representative. Pending the arrival of such a representative, the inspection shall not begin, unless waiting for a legal representative would lead to an unreasonable delay or risk evidence being tampered with. The SCA normally agrees to wait approximately 40 minutes for legal representatives.

What level of cooperation with the authorities is required and what are the consequences for failing to cooperate?

There is no duty to cooperate with the SCA in an investigation. However, an order to provide the SCA with information, documents and names and to permit a dawn raid can be imposed under penalty of a fine for non-compliance.

Is in-house legal advice or attorney work product protected by the law of privilege? Does this extend to the advice of in-house counsel?

Legal privilege applies to communication and documentation to and from members of the Swedish Bar Association and other bar associations or law societies and their associates. Following a 2011 decision by the District Court in Konkurrensverket v Posten (Ä 6673-11) legal privilege also covers all documents which have been given to a lawyer in confidence within the scope of his or her professional duties. Legal privilege entails that the SCA is not entitled to review, take copies of or request verbal explanations of information covered by legal privilege. Legal privilege does not extend to the advice of in-house counsel.

Are any other limitations imposed on investigatory powers in order to safeguard the rights of those under investigation?

Privilege against self-incrimination applies (reflecting the European Convention for the Protection of Human Rights and Fundamental Freedoms). Therefore, the SCA may not require answers or information which might involve an admission of the existence of a competition law (or other) infringement.

What is the process for objecting to an authority’s exercise of its claimed powers?

Orders by the SCA to submit information or documents and appear before the SCA for questioning can be appealed to the Patent and Market Court. In the event of a dispute over the question of whether a particular document is legally privileged, the SCA seals the document in question and sends it to the Patent and Market Court for review.

Publicity and confidentiality

What information about investigations will be made publicly available and at which stage(s) of the process?

According to Chapter 17.3 of the Public Access to Information and Secrecy Act (2009:400), confidentiality applies to information relating to the SCA’s ongoing investigations insofar as it is  of significant importance to the investigation that the information is not disclosed. The SCA normally considers all material information relating to an ongoing investigation as subject to confidentiality. The SCA can disclose that an investigation is ongoing without mentioning information that the investigation generates.

Following an investigation, information is made publicly available in accordance with the Swedish principle of public access to official documents. However, this is subject to the provisions of the secrecy act which, among other things, protect a party’s business or operational information, inventions and research results. For information contained in official documents, secrecy in accordance with the secrecy act may apply for a maximum of 20 years.

Regarding disclosure to other parties to a proceeding by the SCA, there must be strong reasons for refusing full access to information.

Is any information automatically confidential and is confidentiality available on request?

Even though the SCA is obliged to follow the provisions of the secrecy act, the SCA’s attention should be actively drawn to information that is considered to be a trade secret or otherwise sensitive in nature. SCA decisions which do not disclose information with reference to the secrecy act can be appealed to the Administrative Court of Appeal.

International cooperation

Do the authorities in your jurisdiction cooperate with authorities in other jurisdictions?

The SCA applies EU competition rules in close cooperation with the competition authorities in the European Competition Network (ECN), which entails informing one another of proposed decisions and inviting comments from the other authorities to ensure consistent application of the competition rules.

The SCA is also obligated to cooperate with the European Commission regarding competition matters and investigations, which includes the obligation to cooperate with and help other national competition authorities within the European Union. This allows the authorities to carry out cross-border investigations and exchange information and evidence.

Sweden also has a separate cooperation agreement with Denmark, Norway and Iceland which, besides general assistance in cases, enables the national competition authorities in these countries to exchange both confidential and non-confidential information.

From a global perspective, the SCA exchanges experience, methodology and best practices with other authorities (eg, within the framework of the Organisation for Economic Cooperation and Development  Competition Committee, the United Nations Conference on Trade and Development and the International Competition Network.

Do the relevant enforcement authorities request waivers so as to allow for increased cooperation with authorities in other jurisdictions? What are the consequences of declining to grant a waiver?

The Competition Act provides that the SCA, following an application by an enforcement authority in a state with which Sweden has entered into an agreement, may make use of its investigation powers to (for example) order undertakings to provide information and documentation and conduct hearings. Following a request of such agency, the SCA may also apply to the Patent and Market Court for authorisation to conduct on-site inspections (ie, dawn raids).

Decisions

How is a cartel investigation resolved? Are settlements, plea bargains or other negotiated resolutions available?

A cartel investigation can be resolved in four ways:

  • the SCA orders the undertaking(s) to cease the infringement under penalty of a fine;
  • the SCA sues the undertaking(s) before the Patent and Market Court;
  • if the undertaking concerned consents and does not contest the SCA’s statement of objection, the SCA issues a fine order (a binding settlement which can be appealed); or
  • the SCA drops the investigation without further actions.

What is the process for negotiating a settlement, plea bargain or other negotiated resolution? Do such resolutions require court or other approval?

The SCA has the authority to issue a fine order corresponding to a binding settlement only in cases where the facts are uncontested and there is a sufficiently clear infringement, allowing for a simplified and expedited process. The system of fine orders is built on a voluntary basis but does not entail any element of plea bargain or negotiated solution. The settlement can be appealed to the Patent and Market Court within one year of written confirmation.

If a settlement is not reached, what is the procedure for adjudicating a charge of cartel conduct?

If the SCA does not find it appropriate to issue a fine order for a specific case or if there is no consent for such fine order from the party concerned, the SCA must sue the suspected undertaking before the Patent and Market Court for a charge of cartel conduct to be adjudicated and penalised. Such application results in a civil litigation under the procedural framework for civil litigation.

Which party must prove its case? What is the relevant standard of proof?

The burden of proof lies with the SCA and it is therefore up to the SCA to prove that an infringement of the Competition Act has been committed.

Is there a hearing? If so, what is the process for submitting evidence and testimony?

The proceeding in the Patent and Market court is a civil proceeding that includes an oral hearing as well as submission of evidence and the possibility to invoke testimonies.

What are the accused’s procedural rights?

As a party to the proceeding, the suspected undertaking has rights of defence. There are also specific provisions in the Secrecy Act providing a subject of an enforcement proceeding with a more extensive right of access to the case file. A party subject to an enforcement proceeding has the right to be informed about factual information submitted by parties other than itself and to express its view on such information.

Appeal process

What is the appeal process?

As a court of first instance, the Patent and Market Court is a division of the Stockholm District Court. Judgments and decisions reached by the Patent and Market Court can be appealed to the Patent and Market Court of Appeal , which is a division of the Svea Court of Appeal. The Patent and Market Court of Appeal must grant leave to appeal before the court can conduct a more complete examination of an appealed case or matter. Leave to appeal is usually granted in cartel cases.

Leave to appeal to the Supreme Court (the final instance) is granted only if the case is considered important as a precedent. Therefore, the Patent and Market Court of Appeal is in practice the final instance for most cases.

To what extent can the appeal body review the agency’s findings of fact, legal assessment and penalties?

The SCA does not have authority to impose fines. Therefore, if the SCA decides to penalise an undertaking for infringement of the competition rules, it must invoke a civil proceeding with the Patent and Market Court as court of first instance. The Patent and Market Court’s decision may in turn be appealed to the Patent and Market Court of Appeal, which will try the case on its merits. The Patent and Market Court of Appeal can therefore review the agency’s and the first-instance court’s findings of fact, legal assessment and penalties in order with the standard court procedure. The appeal body can then take all of the circumstances presented by each party into account and make a decision based on the information provided by each party.

Penalties

Penalties for companies

What are the potential penalties for companies involved in a cartel?

The maximum fine is limited to 10% of the undertaking’s turnover of the preceding financial year. The Swedish Competition Authority (SCA) may also order a cease of the infringement, subject to a fine for non-compliance.

The legislation subjects companies to civil liability. Infringement of the prohibition against anti-competitive agreements renders cartel agreements null and void and may result in liability to pay fines as well as damages.

Are there guidelines in place for penalties? If not, how are penalties normally calculated?

The SCA has issued non-binding guidelines on the calculation of fines following the method used under EU law. Fines are calculated mainly on the basis of the gravity and duration of the infringement. Mitigating or aggravating circumstances (eg, limited involvement versus a cartel leader) and the market power of the undertaking may also be taken into account, as well as previous violations of the competition rules.

Do the authorities take into account any penalties imposed in other jurisdictions?

There are no grounds in the Competition Act or the SCA’s guidelines for taking into account penalties imposed in other jurisdictions, nor is such a circumstance mentioned as a mitigating circumstance.

However, the principles of ‘ne bis in idem’ and ‘identity of facts’ entail that an undertaking can be fined only in a Swedish national court for the same infringement of competition law as it has been fined for in another EU member state, if the Swedish aspects of the infringement have not been already taken into account and considered in the previous proceeding.

With respect to penalties imposed in non-EU member states, there are no such protections against double fines or penalties.

How can a company mitigate its exposure to fines?

An undertaking that is alleged to have infringed the competition rules can avail itself of the leniency programme to mitigate its exposure to fines.

In calculating the fine, mitigating circumstances are also taken in account (eg, an undertaking’s limited involvement in the infringement).

Penalties for individuals

What are the potential penalties for individuals involved in a cartel?

In conjunction with an administrative fine for breach of the competition rules imposed by a Swedish decision, an EU Commission decision or a decision from another EU jurisdiction (the latter two under condition that the infringement has effects on the Swedish market and that the undertaking’s operation may be deemed to be conducted in Sweden), the SCA may apply for a trading prohibition in relation to persons who have participated in serious cartel infringements, in accordance with the Competition Act and the Trading Prohibition Act (1986:436).

A person on whom a trading prohibition is imposed may not conduct business operations or hold a senior position in an undertaking, nor may such a person be employed by or have regular assignments from a closely related party or from the business operation where the person has previously failed to fulfil his or her obligations. A trading prohibition is issued for at least three years and at most 10 years. A person who breaches a trading prohibition may be sentenced to imprisonment for a maximum of two years.

Do the authorities take into account any penalties imposed in other jurisdictions?

No. However, it follows from the Trading Prohibition Act and the SCA’s general guidelines on trading prohibition that, in the event of infringements of the rules on competition (KKVFS 2015:2), a trading prohibition is generally not in order if the relevant person has cooperated to a significant extent in facilitating the SCA’s investigation of the infringement (the same will apply for cooperation in investigations conducted by a competition authority in another EU member state or the European Commission).

Is a company permitted to pay a penalty imposed on its employee?

Not applicable.

Is a company permitted to continue to employ an employee involved in cartel conduct?

There is no general rule against continued employment of an employee involved in cartel conduct. However, if the employee is penalised with a trading prohibition, the person in question may not be employed by nor have regular assignments from a closely related party or from the business operation where the person has previously failed to fulfil his or her obligations.

Private actions

Private damages actions

Can private actions for damages be brought in your jurisdiction? If so, who may assert such actions?

Since the entering into force of the Competition Act of 1993, it has been possible to pursue damages claims against undertakings that have violated the competition rules. The implementation of the EU Directive on Antitrust Damages Actions is in force as of December 27 2016 with the entering into force of the Competition Damages Act (2016:964). The previous provisions on competition damages in the Competition Act have ceased to apply.

Under the Competition Damages Act, it is possible to bring private actions for damages if an undertaking has intentionally or negligently violated the prohibition against anti-competitive agreements or abuse of dominance. Parties that have suffered economic harm due to a competition law infringement are entitled to damages in accordance with the Competition Damages Act if they are able to prove the extent and causation of the harm. Such action shall be brought before the Patent and Market Court.

Injured parties have to bring their claim within five years, calculated from the moment that they could reasonably be expected to have knowledge of the infringement, from the moment that the infringement caused them harm or from the moment that they had knowledge of the identity of the infringer.

A final infringement decision of the Swedish Competition Authority (SCA) (fine order) or a Swedish court decision will constitute full proof that the infringement has occurred. This is an important alteration in relation to the previous regulations, where no such rule existed, and will likely lead to greater interest for follow-on damages proceedings.

What relief may be awarded to successful claimants (eg, damages, costs, injunctive relief or attorneys’ fees)?

The compensation for the harm suffered covers compensation for actual loss and for loss of profit, and payment of interest from the time the harm occurred until compensation is paid. Relief of legal costs may be awarded in accordance with the ‘loser pays’ principle of the Code of Judicial Procedure (1942:740).

How are the amounts of any damages, costs or attorneys’ fees calculated?

The compensation covers actual loss and loss of profit. Further, the compensation includes payment of interest from the time that the harm occurred until compensation is paid. The interest rate is calculated in accordance with Sections 5 and 6 of the Interest Act (1975:635).

Have there been any notable recent cases in which a private action was the subject of adjudication?

Two important judgments were delivered by the Stockholm District Court (now the Patent and Market Court) in Spring 2016 as follow-on damages claims to the Market Court’s judgment that TeliaSonera had abused its dominant position through a ‘margin squeeze’. Yarps was awarded  €6.5 million plus interest (T 15382-06) and Tele2 was awarded approximately €24 million plus interest (T 10956-05). Both cases were appealed to the Svea Court of Appeal (now the Patent and Market Court of Appeal). In relation to Yarps, the Svea Court of Appeal rendered its judgment in June 2017, finding that TeliaSonera had not abused its dominant position, leading to the damages claim being dismissed. The Tele2 case is pending hearing.

There appear to have been no private damages cases regarding cartels in Sweden.

Class actions

Can class actions be brought in your jurisdiction? If so, what is the procedure for such cases?

Yes. It is possible to initiate individual class actions in accordance with the Group Proceedings Act  (2002:599), which provides for an opt-in system. To date, there has been no class action for a competition damages claim in Sweden.

Immunity and leniency

Immunity and leniency programmes

Is an immunity and leniency programme available for companies? If so, how does it operate?

An immunity and leniency programme has been available in Sweden since 2002. In 2014, a marker system similar to that in the EU leniency system was introduced. The Swedish Competition Authority’s (SCA) guidelines on immunity from fines and reduction of fines (KKVFS 2015:1) include descriptions on how the SCA interprets the provisions regulating the leniency programme, the requirements for immunity or reduction of fines and the procedure that the SCA applies in these matters.

Immunity can be acquired by the first undertaking to notify the infringement to the SCA and if it is only owing to the information contained in the notification that the SCA has obtained sufficient material to take action against the infringement. In order to be granted immunity, the undertaking must also:

  • provide the SCA with all of the information and evidence about the infringement which the undertaking has in its possession or under its control;
  • continuously and actively cooperate with the SCA during the investigation of the infringement;
  • not destroy evidence or in any other way hinder the future or present investigation of the infringement; and
  • end its participation in the infringement as soon as possible after an application or after it has provided the information.

Immunity cannot be granted to an undertaking that has coerced another undertaking to participate in the infringement (though such undertaking may be granted a reduction, as outlined below). As only one undertaking can be granted immunity, joint applications cannot be successful.

Can the enforcement authority decline or withdraw leniency? If so, on what basis?

The SCA can decline or withdraw leniency and immunity when the undertaking in question:

  • fails to actively cooperate in full;
  • destroys evidence;
  • intentionally or through negligence provides erroneous or misleading information to the SCA; or
  • otherwise hinders the investigation.

As mentioned above, immunity shall be declined in relation to undertakings that have coerced another undertaking to participate in the infringement.

A previous suspicion of infringement from the SCA does not prevent an undertaking from being granted immunity.

Are there benefits for cooperators that do not qualify for immunity? If so, how are these benefits determined?

For undertakings that do not qualify for immunity, the SCA may grant a reduction of the fine (leniency) for undertakings that facilitate the investigation of the infringement to a significant extent. In order to be granted leniency, the undertaking must:

  • provide the SCA with all of the information and evidence about the infringement which the undertaking has or gets access to;
  • actively cooperate with the SCA during the investigation of the infringement;
  • not destroy evidence or in any other way hinder the future or present investigation of the infringement; and
  • end its participation in the infringement as soon as possible after an application or after it has provided the information.

When assessing the amount of the reduction, the SCA takes into account whether any other undertaking has already provided information that has facilitated the investigation to a significant extent. The first undertaking to fulfil the relevant conditions will be eligible for a 30% to 50% reduction, the second undertaking can receive a reduction of up to 20% to 30% and additional undertakings can benefit from a reduction of up to 20%.

What benefits (if any) are available for employees and former employees of a company that seeks leniency?

If an employee or former employee has participated in the provision of significant assistance in the SCA’s investigation of the alleged infringement, imposing a trading prohibition is seldom necessary. Employees of an undertaking that has been granted immunity or leniency are automatically covered by the undertaking’s application and need not make individual applications for immunity from a trading prohibition.

Is an immunity or leniency programme specifically available for individuals? If so, how does it operate?

Please see the question above. There are no restrictions on how many persons may be granted trading prohibition immunity for the same infringement. To be granted trading prohibition immunity, the person must:

  • provide the SCA with all of the information on the infringement at his or her disposal;
  • actively and continuously cooperate with the SCA during the investigation;
  • not destroy evidence or hinder the investigation; and
  • cease to participate in the infringement.

Have there been any notable recent cases in which a leniency application was the subject of adjudication?

No.

Criminal liability

Is immunity from criminal prosecution available? If so, how and under what conditions is immunity granted?

There is no criminal liability for violation of the competition rules under Swedish law.

Application procedure

What is the procedure for a leniency application?

If a company wishes to file a leniency application, it should contact the SCA for an evaluation of its chances of obtaining leniency. The application can be made in writing. However, oral applications will be accepted.

An undertaking that wishes to apply for immunity or leniency but does not have complete information available can apply for a marker to obtain more time to submit information. For an undertaking to receive such a marker, its application must contain information concerning:

  • which product the infringement relates to;
  • which undertakings are participating in the infringement; and
  • what the purpose of the infringement is (eg, market sharing or price fixing).

The undertaking should inform the SCA of what information-collecting measures will be taken, how long this will take and what type of information the undertaking will be submitting. The SCA will then, in consultation with the applicant, set a submission deadline. As a general rule, respite will be granted for up to two weeks. Failure to submit the required information within the respite period will result in the loss of the marker.

When receiving an application for a marker, the SCA will inform the undertaking if there is another undertaking ahead of it in the queue.

What is the typical timeframe for consideration of a leniency application?

There is no formal deadline. Given the chronological hierarchy of the marker and leniency system, meaning that only the first applicant can be granted immunity and each subsequent leniency applicant receives a lower fine reduction than the previous applicant, it is important to apply for immunity as soon as possible.

What information and evidence is required?

The immunity or leniency applicant must provide all of the information it has at its disposal relating to the alleged infringement, including (as far as possible) information on:

  • what kind of anti-competitive cooperation it concerns (eg, market sharing, price fixing);
  • which goods or services the cooperation relates to;
  • which geographical area the cooperation relates to;
  • which undertakings have participated in the cooperation;
  • when this cooperation was initiated and when it was concluded (if it has been concluded);
  • which contacts have taken place between the undertakings that participated in the cooperation and the content of these contacts;
  • when the contacts between the undertakings have taken place;
  • what the participating undertakings have done to facilitate and implement the cooperation;
  • which persons within the undertaking are able to provide information on the cooperation; and
  • which persons in competing undertakings have participated in the cooperation.

The undertaking must also submit copies of any documents that concern the reported infringement that the undertaking has or gains access to (eg, notes or minutes from meetings and correspondence, tapes or recordings and employee statements).

The SCA must be provided with such (written or oral) evidence or such information on the infringement that has considerable added value to the information already accessible to the SCA.

What information and evidence is disclosed to subjects of the investigation other than the leniency applicant?

During an ongoing investigation, secrecy applies to the information submitted by those subject to the investigation in relation to other parties subject to the investigation insofar as it is of significant importance for the investigation that the information is not disclosed. The SCA normally considers all material information relating to an ongoing investigation as subject to confidentiality. However, when the SCA issues its statement of objections, there must be particularly strong reasons for refusing full access to information in relation to another party subject to the same investigation or proceeding.

What level of cooperation is required from applicants?

The undertakings must voluntarily, actively and continuously cooperate with the SCA throughout the investigation. In accordance with the SCA guidelines on immunity from fines and reduction of fines (KKVFS 2015:1) this entails that the undertaking must place its employees and, if possible, also former employees at the disposal of the SCA (in order to provide answers to questions concerning its anti-competitive cooperation). The undertaking must also voluntarily and without delay provide any information and documents concerning the infringement, which the undertaking is made aware of after the application has been made. The SCA may also require assistance from the undertaking in the event of a court procedure. In such cases, the undertaking must confirm its previously submitted information.

What confidentiality protection is offered to applicants?

The confidentiality protection under the Secrecy Act protects information in a notification or statement submitted to the SCA in relation to a competition investigation, if it can be assumed that disclosure of the information would cause substantial harm or significant injury.

Can the company apply for a marker? If so, under which conditions?

If an application is incomplete but still contains relevant information on the concerned market, the company may obtain a marker. The SCA decides the time limit of the marker. However, it is usually no longer than two weeks unless sufficient reasons are provided by the undertaking.