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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.

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