General

General attitudes

What is the general attitude of business and the authorities to competition compliance?

Swedish business generally has a certain awareness about the competition rules and the risks inherent in ignoring them but a comprehensive compliance structure within companies is, nevertheless, quite rare, except for the largest companies, and smaller companies with a large global reach. The authorities’ attitude is that all businesses should be aware of the competition rules as a basic principle without any specific requirements or expectations. Legal ignorance is not a valid defence.

Government compliance programmes

Is there a government-approved standard for compliance programmes in your jurisdiction?

No, in Sweden there is no government-approved standard for competition compliance programmes.

Applicability of compliance programmes

Is the compliance guidance generally applicable or do best practice and obligations depend on company size and the sector of the economy in which it operates?

Compliance guidance in Swedish companies varies to a great extent. Smaller companies in general tend to be fairly ignorant of the competition rules and compliance routines, whereas larger, and in particular multinational, companies tend to have comprehensive compliance programmes in place.

If the company has a competition compliance programme in place, does it have any effect on sanctions?

There are no rules addressing the effect of compliance programmes to sanctions for infringements. Having no compliance programme in effect does not render larger sanctions for competition law infringements. Moreover, the possibility cannot be excluded that a company with a comprehensive compliance programme in place, that, nevertheless, infringes the competition rules, would be subjected to harder sanctions, as it could then be considered to have intently (rather than negligently) infringed the competition rules.

Implementing a competition compliance programme

Commitment to competition compliance

How does a company demonstrate its commitment to competition compliance?

There are two aspects to this: internally, the company will present its compliance commitment as part of its corporate policy and conduct compliance training of some sort, followed up by individual commitments to the corporate policy from employees. Externally, there will typically be limited demonstration of such commitment, although in some cases it could be noted in corporate presentations and the like. However, following the implementation of the directive on disclosure of non-financial and diversity information by certain large companies (2014/95/EU), ‘public interest entities’ with more than 500 employees will be required to report in their annual report on environmental, social and employee-related, human rights, anti-corruption and bribery matters, thus also demonstrating their commitment to compliance in a broader sense.

Risk identification

What are the key features of a compliance programme regarding risk identification?

One initial parameter would be to appoint a compliance officer with the task of identifying risky structures and behaviour in the company and its markets. This function is usually complemented by a whistle-blower function, ensuring anonymity, where employees (and sometimes customers and suppliers) can reveal inappropriate behaviour, etc. All policies that are set up following such a risk analysis should not only be implemented but also audited at regular intervals on a risk-based approach.

Risk-assessment

What are the key features of a compliance programme regarding risk-assessment?

Assessing risk would ideally be vested with the company compliance officer or, alternatively, with an external adviser, typically a lawyer well versed in competition law. However, difficulties arise already over the definition of compliance risk. Is it the risk of legal or regulatory sanctions, material financial loss, or loss to reputation a company may suffer as a result of its failure to comply with laws, regulations, rules, related self-regulatory organisation standards, and codes of conduct applicable to its activities (compliance laws, rules and standards), or is it the risk for breaches of compliance laws, rules and standards? Most of the time, people tend to focus on the breaches themselves when, in our opinion, the risk assessment should focus on the likelihood of breaches and the potential consequences of such breaches, to ensure that the compliance resources are set to use where they have most effect.

Risk-mitigation

What are the key features of a compliance programme regarding risk-mitigation?

The corporate compliance officer should continuously assess the company’s activities and address potential risky situations when such appear. At the same time (if applicable) the corporate legal department should be involved in as much corporate activity as possible, at least if external contacts are involved. Therefore, a compliance programme should ideally provide for appropriate control stations for corporate activities as appropriate for each company.

Compliance programme review

What are the key features of a compliance programme regarding review?

See above.

Dealing with competitors

Arrangements to avoid

What types of arrangements should the company avoid entering into with its competitors?

The Swedish Competition Act prohibits agreements, concerted practices and decisions with the effect or object of restricting, distorting or preventing competition. The hardcore restrictions mentioned in article 101 TFEU also constitute hardcore restrictions according to the Swedish Competition Act. The Swedish Competition Act mimics article 101 TFEU and the Swedish Competition Authority (SCA) also looks to the decision-making practice and the guidelines of the European Commission when applying the national rules.

Suggested precautions

What precautions can be taken to manage competition law risk when the company enters into an arrangement with a competitor?

To manage any competition law risk, it is recommended that the company contacts an internal or external legal counsel and requests that the counsel reviews a proposed arrangement before it enters into force. It is important that the company continuously updates key personnel about competition law compliance to ensure that it is compliant at all stages when in contact with competitors.

Cartels

Cartel behaviour

What form must behaviour take to constitute a cartel?

Decisions, agreements and concerted practices are covered by the Swedish Competition Act: it is, consequently, sufficient if the behaviour is coordinated without having a written agreement. The Swedish Competition Act does not regulate attempts and it is only either agreements or concerted practices with the object or the result of preventing, restricting or distorting competition that are caught. Acts with the object to restrict competition are prohibited per se and acts with anticompetitive results must be shown to have affected the market.

Avoiding sanctions

Under what circumstances can cartels be exempted from sanctions?

Cartels can be exempted from sanctions (however unlikely) if the agreement in question fulfils the criteria set out in article 101.3 TFEU, as the Swedish Competition Act provides a corresponding provision. The applicable block exemption regulations adopted by the European Commission are also applicable in Sweden. Consequently, agreements fulfilling the criteria set out in the Block Exemption Regulation (BER) will also be exempted in Sweden. Specific national exemptions apply for primary agricultural associations (economic associations whose members are individual farmers or other undertakings engaged in agriculture, horticulture or forestry) and agreements between taxi undertakings or agreements between a central taxi booking service and taxi undertakings encompassing no more than 40 taxi vehicles.

Exchanging information

Can the company exchange information with its competitors?

Information exchange is regulated by the general prohibition to restrict competition. Information that is considered competitively sensitive encompasses business matters that determine the actions of a company, and that, if known, will affect a competitor’s behaviour on the market. Sensitive information is information concerning, for example, prices, costs, prognoses for further sales or investments, statistics on specific competitors, etc. The sensitivity of the information mentioned also needs to be assessed based on the industry concerned and how it functions. It is also important to assess how a company has gained access to the information, if customers use information about competitors when negotiating, and if the market in question is highly transparent. Historic information and statistics within industry associations that are generally not forward looking and where it is impossible to identify individual companies are not problematic.

Leniency

Cartel leniency programmes

Is a leniency programme available to companies or individuals who participate in a cartel in your jurisdiction?

The SCA has a leniency programme in force for both horizontal and vertical agreements. Only one company can be granted leniency and it is not possible for several companies to jointly apply for leniency. In order to be eligible for leniency, the company cannot have been the initiator or ‘ring-leader’ of the competition law infringement. In order to be granted leniency the company must give the SCA all necessary information and proof of the infringement it has or has access to, actively cooperate with the authority during the investigation, not destroy evidence or in any other way obstruct the investigation and immediately cease the infringement when the application for leniency has been filed with the authority. A company that wishes to file for leniency can anonymously contact the authority to learn if the information it has provided is enough to be granted leniency from fines and it can also be given an extension to provide the necessary information required for leniency without fear of a competitor submitting the information first (‘marker’; see question 17). The authority has an obligation to state if another company participating in the same infringement has already submitted an application for leniency.

Can the company apply for leniency for itself and its individual officers and employees?

When a company applies for leniency and is granted leniency, individual officers and employees (key persons) will also receive leniency from a potential trading prohibition sanction. This will automatically take place when a company is granted leniency or a reduction of their fines for submitting information to the authority. A trading prohibition may be imposed on a person exercising management control over an undertaking.

Can the company reserve a place in line before a formal leniency application is ready?

Yes, there is a marker system in place. The marker system allows for the company to receive a maximum of two weeks to gather all necessary information. To be granted the extension, it is required that the company explains and motivates why the extra time is needed to collect all necessary information.

Whistleblowing

If the company blows the whistle on other cartels, can it get any benefit?

No, not unless it is also active in the other cartels whereby it can apply for leniency or a reduction of fines in relation to such other cartels.

Dealing with commercial partners (suppliers and customers)

Vertical agreements

What types of vertical arrangements between the company and its suppliers or customers are subject to competition enforcement?

In essence, all types of vertical arrangements that are subject to competition enforcement under EU competition rules are also subject to competition enforcement under Swedish law. However, the SCA has shown a fairly lax attitude towards vertical arrangements. The SCA has thoroughly investigated a clear-cut case of resale price maintenance but eventually came to the conclusion that the actors involved had too insignificant a market share for the infringement to merit any sanctions.

Would the regulatory authority consider the above vertical arrangements per se illegal? If not, how do they analyse and decide on these arrangements?

The per se illegality for hardcore restrictions in vertical arrangements was for a long time taken for granted but following the investigation referred to in the preceding point, where the effect on competition was a determining factor even in a typical hardcore restriction case, it can no longer be considered that a vertical restriction is illegal per se under Swedish law.

Under what circumstances can vertical arrangements be exempted from sanctions?

Except for the considerations that can be made under the European Commission’s Guidelines on Vertical Restraints and the BER for vertical agreements, which are applied as Swedish law, it seems like the lack of tangible restrictive effects may also exempt vertical arrangements from sanctions under Swedish law.

How to behave as a market dominant player

Determining dominant market player

Which factors does your jurisdiction apply to determine if the company holds a dominant market position?

The preparatory works of the Swedish Competition Act refer to the definition of the European Court of Justice in United Brands (C-27/76, p65), that is, a position of economic strength enabling a company to prevent effective competition being maintained and act independently of its competitors, customers and consumers. It also relates to the possibility of hindering market entry and the dominant undertaking normally being an unavoidable commercial partner.

Abuse of dominance

If the company holds a dominant market position, what forms of behaviour constitute abuse of market dominance? Describe any recent cases.

The Swedish Competition Act has copied the examples of abuses set out in article 102 TFEU. One of the recent cases from the Patent and Market Court is Nasdaq Stockholm, where Nasdaq and its subsidiaries allegedly prevented a competing trading platform from placing its matching computer in a computer facility operated by a third party. According to the SCA, Nasdaq’s preventive actions foreclosed the competitor from the ability to provide attractive services, which eventually led to the competitor exiting the market. The Patent and Market Court held that Nasdaq had a dominant position during the relevant time period but the SCA had not proved that Nasdaq’s actions amounted to an abuse of its dominant position. Nasdaq had indeed acted to oppose cross-connections with the competitor but it had been done based on the contractual rights afforded by the agreement between Nasdaq and the third party, the supplier of the computer facility, and not by abusing its dominant position. The judgment has been appealed and is currently (April 2019) pending before the Patent and Market Court of Appeal.

Another recent case is Swedish Match, where the company was found to have abused its dominant position when applying a system for labels for their snus (a smoke-free tobacco) coolers in supermarkets and kiosks. The system disallowed competitors from designing their own labels as they had to use a template determined by the dominant actor or accept that the labels would be switched for generic labels. The new labelling system for coolers provided by the dominant player was found to constitute an abuse of a dominant position that lessened competition to the detriment of consumers, as the other snus brands lost the opportunity to communicate price and brand. The judgment was overturned on appeal to the Patent and Market Court of Appeal. Although Swedish Match’s actions were found to be abusive, they were objectively justified due to requirements under the Swedish Tobacco Act.

In February 2018, the SCA handed down a decision whereby a Swedish company active in the market for the collection and recycling of packaging waste, FTI, was ordered to recall the termination of an agreement with a competitor allowing it to access FTI’s infrastructure for the collection of packaging waste from households. The SCA found that the termination of the agreement and the fact that no new agreement was entered into amounted to a refusal to supply. FTI’s infrastructure was furthermore considered an essential facility according to the SCA. It was found that the infringement would best be remedied by ordering FTI to recall the termination of the agreement with the competitor as without the agreement there would not be any competition on the market. FTI appealed the decision to the Patent and Market Court, which dismissed the appeal. FTI requested leave to appeal before the Patent and Market Court of Appeal in February 2019 based on claims of deficient reasoning by the Patent and Market Court.

Under what circumstances can abusing market dominance be exempted from sanctions or excluded from enforcement?

As long as the company can demonstrate an objectively necessary reason for its actions or show that the action brings about efficiency gains beneficial for customers it is possible that the abuse can be exempted from sanctions or enforcement. A company is allowed to protect its commercial interests by using the means available to effectively compete as long as it can be motivated by industry business norms. The Swedish Match case described in question 23 is an example.

Competition compliance in mergers and acquisitions

Competition authority approval

Does the company need to obtain approval from the competition authority for mergers and acquisitions? Is it mandatory or voluntary to obtain approval before completion?

If a concentration meets the thresholds set out in the Swedish Competition Act it must be notified to the SCA.

The relevant thresholds are:

  1. the combined aggregate turnover in Sweden of all the undertakings concerned in the preceding financial year exceeded 1 billion Swedish kronor, and
  2. at least two of the undertakings concerned each had a turnover in Sweden the preceding financial year that exceeded 200 million Swedish kronor.

If the relevant threshold requirement in (i) but not (ii) is met, the SCA may require a party to notify the concentration where particular grounds exist or a party can voluntarily notify the concentration. In addition, a party to the concentration can voluntarily notify the concentration (in order to prevent uncertainty regarding the SCA potentially requiring a notification, which it may do as long as a proceeding against the concentration can be completed within two years from the concentration having taken place).

The party or parties acquiring control of another company or a part of it shall notify the concentration.

How long does it normally take to obtain approval?

During Phase I the SCA has 25 working days to decide whether to approve the merger or decide to carry out a special investigation (Phase II). In 2018, the average time for a Phase I clearance was 12 working days.

Phase I can be extended to 35 days if the parties offer commitments during the Phase I investigation. If a decision to enter into Phase II has been made, the SCA has three months to decide whether to approve, prohibit or stipulate remedies to approve the proposed concentration.

If the company obtains approval, does it mean the authority has confirmed the terms in the documents will be considered compliant with competition law?

According to the Swedish Competition Act, a decision by the SCA not to take any action with regard to a concentration shall also cover restrictions directly related and necessary to the implementation of the concentration that has been notified. The restrictive provisions in the share purchase agreement (and any other submitted agreements) will be cleared at the same time as a decision not to take action is taken by the authority.

Failure to file

What are the consequences for failure to file, delay in filing and incomplete filing? Have there been any recent cases?

There is no sanction for failure to file in the Swedish Competition Act, even though parties to a concentration meeting the thresholds may not take action to put the concentration into effect. The SCA can order a prohibition or an obligation for the parties in a concentration not to take any action (standstill) until the SCA has made a decision whether the concentration would impede effective competition.

If the notification is incomplete the SCA will impose an obligation for the notifying party or parties to supply information, documents or other material, and thus ensure that all the relevant information needed for the assessment is available to the SCA. The obligation may be combined with a ‘stop-the-clock’ provision. There have been no recent cases.

Investigation and settlement

Legal representation

Under which circumstances would the company and officers or employees need separate legal representation? Do the authorities require separate legal representation during certain types of investigations?

There are no rules in the Swedish Competition Act regarding legal representation. Instead, it is the Swedish Bar Association’s Code of Conduct (the Code of Conduct) that limits the ability of a member of the Swedish Bar to represent several persons in the same case. The relevant section of the Code of Conduct is section 3.2, which states that an attorney must not accept a mandate if there exists a conflict of interest or a significant risk of a conflict of interest.

A conflict of interest exists if, for example:

  • the attorney is assisting another client in the same matter and the clients have conflicting interests;
  • the attorney is assisting another client in a closely related matter and the clients have conflicting interests;
  • there is a risk that knowledge covered by the attorney’s duty of confidentiality may be of relevance in the matter; or
  • there exists any other circumstance that prevents the attorney from acting in the client’s best interests in respect of the mandate.

‘Significant risk’ indicates that the attorney must also consider whether a conflict of interest may arise in the future. Persons who take part in a cartel can be personally sanctioned by a trading prohibition from three to 10 years. The relevant circle of persons are either those who formally represent the company, such as the managing director, or the board of directors, but it could also be the person who factually heads the business, without a formal position.

Thus, for example, if a trading prohibition could be relevant, then the company and certain of its officers could need separate legal representation.

Dawn raids

For what types of infringement would the regulatory authority launch a dawn raid? Are there any specific procedural rules for dawn raids?

The SCA can launch a dawn raid for any infringement of the Swedish Competition Act. Currently, it is the Patent and Market Court that decides on the mandate for a dawn raid, following an application from the SCA. Such an application will only be granted if there is reason to believe that an infringement has been committed, if the undertaking has failed to comply with an order to provide information, documents etc., or there is otherwise a risk that evidence may be withheld or tampered with. In all instances the importance of the requested measure must be weighed against the disruption or other inconvenience caused to the party affected by the measure. If there is a risk that the value of the investigation would otherwise be reduced, the court may order such measure without consulting the company.

As described below, there is a governmental report proposing that the SCA shall be granted powers to decide on dawn raids itself, without having to apply to the court for permission.

During a dawn raid, the SCA may examine and take copies of, or extracts from accounting records and other business documents (including computer records), request oral explanations from representatives or employees of the company and otherwise investigate the premises, property and means of transport of the undertaking. The SCA does not have the right to mirror data and bring it back to the SCA’s premises without the company’s consent, which is different from the powers of the European Commission. Subject to the approval of the Patent and Market Court, dawn raids may also be carried out in private homes or other private spaces (such as cars) of board members or employees of the company.

What are the company’s rights and obligations during a dawn raid?

The company has an obligation to cooperate with the SCA during a dawn raid; however, its right of defence must always be respected. However, there are no sanctions for non-compliance with the duty to cooperate, compared with EU law. Many companies request legal representation to ensure that their rights are respected when the SCA carries out a dawn raid. Nevertheless, the SCA is not obliged to wait for the legal counsel before starting their onsite investigation.

If there is a document the SCA would like to read and the company claims that it is covered by legal privilege, the document is to be placed in a sealed envelope and handed over to the Patent and Market Court that will determine if the document is covered by legal privilege or not.

Settlement mechanisms

Is there any mechanism to settle, or to make commitments to regulators, during an investigation?

There is no formal settlement procedure in Sweden. The closest thing to it is that the SCA may decide on an administrative fine if the infringement is established and all parties agree. A fine order that has been accepted is regarded to be a legally binding judgment. The SCA may also issue a behavioural order, ordering an undertaking to cease certain behaviour. Such order may be combined with fines. The undertaking may also offer to voluntarily cease a certain behaviour, and the SCA may, in such cases, decide to close its investigation.

It is up to the undertaking to approve or reject the suggested administrative fine in the fine order. In those cases where the undertaking does not approve the suggested fine, the SCA will take legal action and request the court to order the undertaking to pay the fine. The SCA is in such cases bound by its earlier request and cannot claim a higher fine than it had offered to the undertaking in the fine order.

As indicated above, a settlement through a fine order requires that the infringement is established. This means that the SCA will not accept a settlement through a fine order where there are uncertainties regarding the course of events, or where the case involves legal issues that can be of importance for the determination of similar cases.

If the SCA believes that the case is suitable for settlement through a fine order, it will inform the undertaking of this in connection with its draft statement of objection. The benefits of accepting a fine order is that the company will not have to undergo a lengthy court proceeding. The decision for a fine order is typically rather short, only a few pages long, which will make things more difficult for any undertakings seeking follow-on damages to prove their case, compared to when they will have access to a whole court file.

What weight will the authorities place on companies implementing or amending a compliance programme in settlement negotiations?

From the SCA’s perspective a company should be aware of its obligations and the implementation or amendment of a compliance programme will only have limited effects in settlement negotiations.

Corporate monitorships

Are corporate monitorships used in your jurisdiction?

The SCA is able to accept commitments offered by a company in order to avoid an infringement investigation. Such remedies are foremost behavioural and often subject to the penalty of a fine if the commitments are not followed. Regarding mergers, the SCA prefers structural remedies in mergers as it is easier to ensure compliance, similar to the decision-making practice of the European Commission. However, the use of trustees are used more frequently in the European Commission’s decisions than by the SCA. The SCA has, in one case, approved a merger with a trustee ensuring compliance with structural remedies to sell off certain assets as well as ensuring that the company carries on the business maintaining the value of the part of the business to be sold off, whereby the powers of the trustee is described in the decision to conditionally clear the merger. The SCA will later assess compliance with the decision and the monitor can be obliged to report to the SCA.

Statements of facts

Are agreed statements of facts in a settlement with the authorities automatically admissible as evidence in actions for private damages, including class-actions or representative claims?

As Sweden does not have a settlement procedure, it is the SCA that is responsible for drafting its decisions and a defendant may comment on draft decisions, but not otherwise influence the wording of the decision. There is, therefore, no possibility of agreeing on statements of the facts with the authorities. However, in principle, all evidence is admissible in Sweden and the court is free to weigh the evidence presented as it chooses under the rule on free provision and trial of evidence.

Invoking legal privilege

Can the company or an individual invoke legal privilege or privilege against self-incrimination in an investigation?

The duty to testify under Swedish law means that a person (suspect or non-suspect) cannot refuse to truthfully answer questions during an interrogation other than when there is a risk of self-incrimination, as self-incrimination is a valid defence in Sweden.

Furthermore, declarations made within a leniency programme and settlement briefs may not be produced as evidence according to the Competition Damages Act. The Competition Damages Act also protects certain other categories of documents, in the respect that they may only be produced to the court by such party who has originally obtained them from the competition authority, or a person who has acquired the rights of the first person. This is to prevent a ‘market for documents’ from arising.

Written correspondence to and from external lawyers held by the lawyer or by the client is also protected by legal privilege and may not be subject to a court order to produce such documents. External lawyers are also prevented from giving evidence on matters confided to them in their practice. Advice from in-house lawyers is not legally privileged in Sweden (essentially due to the fact that an in-house lawyer cannot be a member of the Swedish Bar Association).

Confidentiality protection

What confidentiality protection is afforded to the company and/or individual involved in competition investigations?

As a general principle, documents received or drawn up by a public authority are public. This principle is, however, made subject to a number of exceptions in the Public Access to Information and Secrecy Act (2009:400) involving that in the SCA’s file, information on an undertaking’s business operations, inventions and research results are treated as confidential if the undertaking may be expected to suffer injury if the information is disclosed. Furthermore, such documents that a competition authority holds and that are declarations within a leniency programme, settlement briefs, written responses and other information that have been submitted to SCA, information provided by the SCA to the parties (such as a draft statement of objections, or draft settlement decision) and settlement briefs that have been recalled, may not be subject to a production order as long as the SCA is still handling the case.

Typically, confidentiality is only maintained towards third parties and not regarding any party to the proceedings. However, courts have the authority, under criminal responsibility, to ban counsels, management or parties from providing certain documents received during the court proceedings relating to competition damages to third parties in order to prevent a ‘trade with documents’.

Refusal to cooperate

What are the penalties for refusing to cooperate with the authorities in an investigation?

The SCA may request that persons (including companies) provide information or documents and that they submit themselves for interrogation at a time and a place that the authority decides or that municipalities that carry out economic activities provide statements of costs and incomes. Such requests can be combined with fines.

Infringement notification

Is there a duty to notify the regulator of competition infringements?

There is no duty to notify the regulator of competition infringements.

Limitation period

What are the limitation periods for competition infringements?

The rules on limitation have been changed through the introduction of the Competition Damages Act.

Previously, it was stated that the right to damages for breach of the Competition Act or articles 101 or 102 TFEU lapses if no claim is brought within 10 years from the date on which the injury was sustained, namely, when the infringement was made. In practice, with the long handling times of the authorities and courts, this meant that the right to damages had often lapsed. Therefore, the new Competition Damages Act stipulates a limitation period of five years from when the infringement ceased and the claimant became aware of, or would reasonably have been aware, of the anticompetitive behaviour, that this behaviour caused damages and the identity of the infringer. Previously, there were also no rules on a standstill or interruption of the limitation period during the time that a competition authority investigated the issue or legal proceedings were conducted. Such rules have now been included in the Competition Damages Act, stipulating that a limitation period is interrupted if a competition authority takes actions in case of the infringement that the claim relates to. A new limitation period commences on the day there is a legally binding decision on the infringement or if the authority concludes its investigation in another manner.

Miscellaneous

Other practices

Are there any other regulated anticompetitive practices not mentioned above? Provide details.

There are no other regulated anticompetitive practices relating to privately owned companies not mentioned above.

Future reform

Are there any proposals for competition law reform in your jurisdiction? If yes, what effects will it have on the company’s compliance?

A public investigation, assigned by the government, submitted a report in 2016 (SOU 2016:49) suggesting that the SCA should be given powers, as the first instance, to take decisions in matters also concerning competition infringements. Financial penalties for competition infringements were proposed to be payable when the SCA’s decision is final. The processing of appeals of SCA decisions should be done in accordance with the rules of the Court Matters Act, in compliance with the procedure provided for by the Patent and Market Court Act (2016:188). The legislator has to date only given the SCA decision-making powers for merger control matters since 1 January 2018.

Currently the SCA investigates matters but lacks decision-making powers regarding sanctions against infringements. The authority must bring an action in the Patent and Market Court (and the Patent and Market Court of Appeal), and it is the court that has the power to take decisions in these matters. The total time required for processing competition law matters in the authority and the courts is currently at least three-and-a-half years from the launch of a case until the decision has been tried in the first instance. The time for final decisions to be examined in two instances is currently estimated to be five to seven years.

The recently adopted judicial reform with the introduction of specialised courts for cases under competition law can, however, be expected to lead to reduced turnaround time in court, but the investigation considers that there is a need to enhance the powers of the SCA as well as to increase efficiency in both the infringement proceedings and also for the leniency programme.