Complaints procedure for private parties

Is there a procedure whereby private parties can complain to the authority responsible for antitrust enforcement about alleged unlawful vertical restraints?

Complaints can be lodged with the Competition Authority’s complaints unit. While there is no mandatory format for complaints, complainants are encouraged to use a form supplied by the Competition Authority. There is no legal time limit for the processing of complaints, but the Competition Authority states that it normally aims to issue a decision on whether or not to investigate within one month or, at the most, four months. The Competition Authority may then decide not to take any further action, or to proceed with an investigation that may have the results set out in question 4. If the Competition Authority decides not to initiate an investigation, an interested party may lodge an action with the Patent and Market Court of Appeal for a cease and desist judgment against the conduct complained of.

Regulatory enforcement

How frequently is antitrust law applied to vertical restraints by the authority responsible for antitrust enforcement? What are the main enforcement priorities regarding vertical restraints?

The Competition Authority and courts have taken very limited enforcement action in regard of vertical restraints in recent times. The principles and priorities of enforcement are likely to mirror those following from EU law, in particular the European Commission’s Block Exemptions and Guidelines.

What are the consequences of an infringement of antitrust law for the validity or enforceability of a contract containing prohibited vertical restraints?

Agreements or concerted practices that are prohibited under Chapter 2, section 1 of the Competition Act are invalid according to section 6 of said Chapter. The invalidity has effect ex tunc (ie, from the time the infringement commenced, or, if the agreement originally fell under the de minimis exception, from the time when it had a material effect on the market).

The effect of the invalidity is that the agreement or practice cannot be invoked according to its content or enforced before the courts.

The invalidity can be claimed both by the contracting parties or a third party. In the ALIS case, the Stockholm City Court found that the collecting rights association ALIS had no right to claim remuneration from Mediearkivet, since ALIS’s agreement with the individual right holders constituted an infringement of the Competition Act.

The invalidity catches as a rule only those parts of agreements that constitute an infringement of the competition rules. However, other parts of the agreement, or the agreement as a whole, may be modified or the whole agreement set aside under section 36 of the Contracts Act if the infringing parts are deemed essential to the agreement as a whole.

May the authority responsible for antitrust enforcement directly impose penalties or must it petition another entity? What sanctions and remedies can the authorities impose? What notable sanctions or remedies have been imposed? Can any trends be identified in this regard?

The Competition Authority may issue a cease-and-desist order in regard of conduct found to infringe the competition rules. In addition, it may impose a fine in cases where the undertaking in question does not contest such imposition. If the authority otherwise wishes to impose fines, it must lodge an application with the Patent and Market Court, requesting that the court impose such a fine. As yet, while cease-and-desist orders have been issued, no fines have been imposed in respect of vertical restraints.

Albeit not a sanction as such, in recent years, the trend in respect of vertical restraints cases has clearly been to settle, or to close the investigation following voluntary remedies by the parties.

Investigative powers of the authority

What investigative powers does the authority responsible for antitrust enforcement have when enforcing the prohibition of vertical restraints?

The Competition Authority has powers of investigation similar to those of the European Commission under Regulation 1/2003. The principal powers of investigation are requests for information, unannounced on-site inspections - the Competition Authority may carry out inspections at the premises of undertakings or in private homes - and the right to summon persons to be interviewed.

Private enforcement

To what extent is private enforcement possible? Can non-parties to agreements containing vertical restraints obtain declaratory judgments or injunctions and bring damages claims? Can the parties to agreements themselves bring damages claims? What remedies are available? How long should a company expect a private enforcement action to take?

Where the Competition Authority decides to take no action in respect of an alleged conduct, parties concerned may lodge an action before the Patent and Market Court for that court to assess the legality of that conduct.

On 27 December 2016, the Competition Damages Act entered into force in Sweden. The Act implements the EU Competition Damages Directive, and broadens the scope for actions for damages resulting from competition law infringements. Any party having suffered injury is entitled to claim damages (including parties to the agreement themselves). Claims under the Act are heard by the Patent and Market Court. All remedies available to secure a claim in the Code of Judicial Procedure (such as retention) are available to such a claimant. The general rules in the Code of Judicial Procedure on costs apply, mainly providing that the losing party shall pay for the successful party’s reasonable costs (including legal fees).