Remedies

Compensation

What forms of compensation are available and on what basis are they allowed?

Under section 1, Chapter 3 of the Competition Damages Act, compensation shall cover actual loss, loss of profit and interest.

The object of damages for infringement of competition law is to restore the plaintiff’s financial situation to that which it would have been had the infringement never occurred. Therefore, when determining the damages, the courts will compare the plaintiff’s actual financial situation with the hypothetical financial situation in the absence of the infringement.

Other remedies

What other forms of remedy are available? What must a claimant prove to obtain an interim remedy?

The court may in some circumstances order security measures if there is reason to suspect that the defendant is trying to evade payment.

Punitive damages

Are punitive or exemplary damages available?

No. Swedish law does not provide for punitive or exemplary damages.

Interest

Is there provision for interest on damages awards and from when does it accrue?

Yes. If the Competition Damages Act is applicable, interest accrues from the day the harm occurred to the day payment is effectuated.

Consideration of fines

Are the fines imposed by competition authorities taken into account when setting damages?

No. Fines imposed by competition authorities are not taken into account when determining damages.

Legal costs

Who bears the legal costs? Can legal costs be recovered, and if so, on what basis?

Normally, the losing party bears the legal costs. The winning party can therefore recover all reasonable litigation costs from the losing party. The costs may also be apportioned between the parties depending on the degree of success of each party.

Under Swedish law, a non-European Economic Area resident bringing an action before a Swedish court against a Swedish national or legal person must, at the defendant’s request, furnish security to guarantee payment of the costs for the judicial proceedings, which the person or company may be ordered to pay.

In the case of class actions, where the defendant is liable for the plaintiff’s litigation costs but is unable to pay, group members have a duty to use the received compensation to pay for the plaintiff’s litigation costs.

If a case regarding administrative fines is consolidated with a claim for damages brought by a plaintiff, the plaintiff will only risk bearing the particular costs added to the case by the claim for damages, therefore, not the opposite party’s costs relating to the administrative fines part of the case.

Joint and several liability

Is liability imposed on a joint and several basis?

When two or more undertakings are liable for the same injury caused by an infringement of competition law, they are, according to section 2, Chapter 2 of the Competition Damages Act, jointly and severally liable. This is in line with general principles of Swedish tort law and was therefore applicable even before the new act was enacted. However, a novelty in the new Act is the limitation of joint and several liability as regards small and medium-sized undertakings in section 3, Chapter 2. A similar limitation is provided for immunity recipients.

Contribution and indemnity

Is there a possibility for contribution and indemnity among defendants? How must such claims be asserted?

A party who has been obliged to pay compensation to an injured party has a right of recourse against other liable parties. Such claims may be pursued after a judgment or settlement. Co-infringers are held jointly and severally liable for the harm caused by the infringement and a co-infringer has the right to obtain a contribution from other co-infringers if it has paid more compensation than its share. The share is determined by examining the infringer’s turnover, its market share and its role in the breach.

Passing on

Is the ‘passing on’ defence allowed?

When quantifying damages, the passing on defence is available in principle. Such a defence would be successful if it has a bearing on the injury suffered by the plaintiff, since the defendant is only liable to compensate injury actually sustained by the plaintiff.

In section 2, Chapter 3 of the Competition Damages Act, it is specifically stipulated that damages for over- or undercharges should exclude any loss that has been passed on. Further, there are two provisions in the new act that soften the burden of proof for indirect purchasers or providers claiming damages for losses incurred through a ‘passing on’ of over- or undercharges.

Other defences

Do any other defences exist that permit companies or individuals to defend themselves against competition law liability?

As long as the plaintiff has been able to prove the existence of an intentional or negligent infringement, actual injury and the causal link between the two, there are no specific grounds of justification as regards liability as such.

As regards the amount of the damages, this can be reduced if the plaintiff has contributed, by fault or negligence, to the injury sustained. Also, if the plaintiff has benefited from the infringement, this would have an impact on the amount of the damages.

Alternative dispute resolution

Is alternative dispute resolution available?

Section 1 of the Swedish Arbitration Act stipulates that arbitrators may rule on the civil law effects of competition law between the parties. Parties may also freely decide to settle disputes out of court.

No public figures or studies on these issues are available. However, there are relatively few Swedish court cases to date on damages for breach of competition law that have led to final judgments (see question 1). This suggests that alternative means of dispute resolution are used.