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General introduction to the legislative framework for private antitrust enforcement

The basic antitrust prohibitions in Swedish competition law mirror the prohibitions in Articles 101 and 102 of the Treaty of the Functioning of the European Union (TFEU), and include prohibitions against agreements between undertakings that restrict competition (Chapter 2, Section 1 of the Competition Act) and abuse of a dominant position (Chapter 2, Section 7 of the Competition Act).

Agreements and clauses that infringe the competition prohibitions are void where anticompetitive cooperation is statutorily void, and conducts constituting an abuse of a dominant position are void according to established court practice.

Chapter 3, Section 25 of the Competition Act establishes a right to damages for parties injured because of infringements of Chapter 2, Sections 1 or 7 of the Competition Act or Articles 101 or 102 TFEU. Chapter 2, Section 1 of the Competition Damages Act establishes a liability to make up for the damage caused by an infringement. A private action for claims for damages on the basis that an agreement, provision or conduct is in violation of the Swedish or EU competition rules may be brought in Sweden, either as a standard private action under the general procedural rules or as a class action under the rules of the Class Action Act.

Since September 2016, the Patent and Market Court has jurisdiction over competition damages actions as well as competition cases brought by the Swedish Competition Authority. The Patent and Market Court of Appeal is the court of second, and final, instance in such cases. Thus, any action for competition damages in Sweden should be filed with the Patent and Market Court.

A finding of an infringement by a competition authority is not required before a private antitrust action is initiated. A claimant can provide other evidence that the defendant is in breach of the provisions of the Competition Act as basis for its claim against the defendant. However, the Competition Damages Act stipulates that a finding of a breach of the provisions in the Competition Act in a final ruling may not be reexamined in a subsequent action for damages even if the claimant is not explicitly mentioned in the decision. This is a change from the earlier Swedish legal tradition, which considered judgments as only binding between the parties and an evidentiary fact (which can be rebutted) in all other cases.

The rules on statutory limitations have also been changed. Prior to the Competition Damages Act, the right to damages for breach of the Competition Act or Articles 101 or 102 TFEU lapsed if no claim was brought within 10 years from the date on which the injury was sustained (i.e., when the infringement occurred). In practice, with the long handling times of the authorities and courts, this meant that the right to damages often had lapsed by the time of a final and binding judgment. Therefore, the 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 while legal proceedings were conducted. Such rules are included in the Competition Damages Act, stipulating that a limitation period is suspended while a competition authority takes action in the case of the infringement to which the claim relates. A new limitation period commences from the day when there is a legally binding decision on the infringement or if the authority concludes its investigation in another manner.

As a general rule, if there is more than one infringer, the infringers are jointly and severally liable for damages caused by their infringement. However, the Competition Damages Act includes certain limitations on joint and several liability, such as when the infringer's market share, at any point in time during the infringement, is below 5 per cent or where the infringer has been part of a leniency programme.

In proceedings for damages under Chapter 3, Section 25 of the Competition Act, the main rule is that the plaintiff has the burden of proof in relation to the infringement, intent or negligence, the injury suffered, and the causal link between the infringement and the injury. However, in relation to cartel infringements, there is a presumption that the cartel infringement caused the damage. The claimant can in those cases, therefore, concentrate on the question of proving the size of its loss. As regards the passing-on defence, the burden of proof lies with the defendant. Under general principles of Swedish procedural law, once a party has discharged its burden of proof in a given respect, the burden then shifts to the other party.

Under the Arbitration Act, Section 1, the civil law consequences of competition law breaches may be the subject of arbitration. The main civil law consequences of competition law are that any agreement that is prohibited pursuant to the rules on anticompetitive agreements between undertakings is automatically void, and the right to damages for competition infringements.