Abstract
This contribution deals with the treatment of small and medium-sized undertakings under Swedish competition law. Before analysing the specific issues, a short introduction to the legal framework of Swedish competition law may be appropriate.
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Notes
- 1.
Konkurrenslagen (2008:579).
- 2.
Articles 1, 2, 6, and 7 of the Swedish Competition Act read as follows:
“Article 1: Agreements between undertakings shall be prohibited if they have as their object or effect, the prevention, restriction or distortion of competition in the market to an appreciable extent, if not otherwise regulated in this act. This shall apply, in particular, to agreements which:
1. directly or indirectly fix purchase or selling prices or any other trading conditions; […]
Article 2: The prohibition in Article 1 does not apply to agreements which
-
1.
contributes to improving the production or distribution or to promoting technical or economic progress;
-
2.
allows consumers a fair share of the resulting benefit;
-
3.
only imposes on the undertakings concerned restrictions which are indispensable to the attainment of the objective referred to in paragraph 1, and
-
4.
does not afford such undertakings the possibility of eliminating competition in respect of a substantial part of the utilities in question.
Article 6: Any agreements or provisions included in agreements that are prohibited under Article 1 shall be void. The relevant provision of the Swedish Competition Act prohibiting abuse of a dominant position is the following.
Article 7: Any abuse by one or more undertakings of a dominant position on the market shall be prohibited.
Such abuse may, in particular, consist in
-
1.
directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions,
-
2.
limiting production, markets or technical development to the prejudice of consumers,
-
3.
applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage, or
-
4.
making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations, which by their nature or according to commercial usage have no connection with the subject of such contracts.”
-
1.
- 3.
The Swedish Competition Act of 1993, Konkurrenslagen (1993:20), available in English at http://www.kkv.se/upload/Filer/ENG/Publications/The_Swedish_Competition_Act.pdf.
- 4.
See Government Bill 1992/93:56, p. 21.
- 5.
Judgment of the Swedish Supreme Court in case T 2808–05 of 19 February 2008, The Ystad Harbour Case.
- 6.
Konkurrensverket.
- 7.
Chapter 3, Articles 1 and 3 of the Swedish Competition Act.
- 8.
- 9.
- 10.
Chapter 3, Article 17 of the Swedish Competition Act; if the undertaking to which the fine order is addressed does not consent to the order within the time specified, the Swedish Competition Authority may initiate court proceedings concerning fines instead.
- 11.
Marknadsdomstolen, www.marknadsdomstolen.se; see Chapter 7, Article 1 of the Swedish Competition Act.
- 12.
Chapter 3, Article 2 of the Swedish Competition Act.
- 13.
Årsredovisningslagen (1995:1554).
- 14.
Lag (1982:80) om anställningsskydd.
- 15.
See, e.g., Swedish Competition Authority: http://www.kkv.se/t/Page____4337.aspx, 4 April 2012.
- 16.
PM Upphandling och mindre företag- öka SME:s deltagande och dra nytta av konkurrensen, 14 January 2009, file ref. 385/2008.
- 17.
Decision of the Swedish Competition Authority of 13 December 2005, File ref. 532/2004.
- 18.
Decision of the Swedish Competition Authority of 15 December 2010, File ref. 402/2010. The author of this contribution worked at that time as Senior Case Officer for the Swedish Competition Authority and served as senior advisor (“projektråd”) to the case team handling the Make Up Store case.
- 19.
Judgment of the Swedish Market Court of 9 February 2005, 2005:5.
- 20.
Decision of the Swedish Competition Authority of 2 March 2004, file ref. 498/2002.
- 21.
Judgment of the Swedish Market Court of 9 February 2005, 2005:5.
- 22.
Judgment of the Swedish Market Court of 10 September 2008, 2008:12.
- 23.
Judgment of the Stockholm District Court of 7 June 2006 (T 4231–04).
- 24.
Decision of the Swedish Competition Authority of 13 May 2011, file ref. 709/2009.
- 25.
Judgment of the Stockholm District Court of 24 February 2012 (T 19974–10).
- 26.
Fine order by the Swedish Competition Authority of 30 June 2009, file ref. 237/2007.
- 27.
Decision of the Swedish Competition Authority of June 2010.
- 28.
Fine order by the Swedish Competition Authority, 2011-12-01, file ref. 327/2010.
- 29.
Fine order by the Swedish Competition Authority, 2011-12-01, file ref. 327/2010.
- 30.
Konkurrenslagen (2008:579).
- 31.
Konkurrensverkets allmänna råd om avtal av mindre betydelse (bagatellavtal) som inte omfattas av förbudet i 2 kap. 1 § Konkurrenslagen (2008:579), KKVFS 2009:1.
- 32.
The Swedish Competition Authority’s policy for prioritising competition and procurement issues of 5 October 2010, ref 675/2010, it can be downloaded in English language from http://www.kkv.se/upload/Filer/ENG/About/Prioriteringspolicy_eng.pdf.
- 33.
Swedish Competition Authority, Method of setting administrative fines, file ref. 394/2009, of 19 November 2009; the guidelines can be downloaded in English language here: http://www.kkv.se/upload/Filer/ENG/Competition/Metod_fastställa_konkskadeavgift_%20eng.pdf.
- 34.
The film is published on Youtube and can be downloaded from http://www.kkv.se/t/Page____5767.aspx.
- 35.
Decision of the Swedish Market Court of 5 February 2010, MD 2010:5.
- 36.
Decision of the Swedish Competition Authority of 23 October 2009, file ref. 542/2009. The Swedish Competition Authority’s investigation in this case was led by the author of this National Report, at that time Senior Case Officer at the Swedish Competition Authority. The views here are of the author alone and not of the Competition Authority.
- 37.
Judgment of the Swedish Market Court of 23 November 2011, 2011:28.
- 38.
The Swedish Code of Judicial Procedure (Rättegångsbalken).
- 39.
E.g., prop. 2004/05:117 and Ds 2008:74.
- 40.
Chapter 3, Article 27 of the Swedish Competition Act stipulates:
“A certain conduct by the State, a municipality or a county council within a sales activity covered by Chapter 1, Article 5, first paragraph, may be prohibited through an injunction, if such conduct
1. distorts, by object or effect, the conditions for effective competition in the market, or
2. impedes, by object or effect, the occurrence or the development of such competition. An injunction may not be imposed in relation to conduct that can be justified by public interest considerations. A certain sales activity by a municipality or a county council may also be prohibited in cases referred to in the first paragraph. However, such a sales activity may not be prohibited if it is compatible with law. An injunction shall take effect immediately, unless decided otherwise.”
- 41.
Government Bill 2008/09:231, p. 55.
- 42.
Government Bill 2008/09:231, p. 28.
- 43.
Reference number at the Swedish Competition Authority: Dnr 304/2010. The author of this contribution worked at that time as Senior Case Officer for the Swedish Competition Authority and served as the first senior advisor (“projektråd”) to the case team handling the Räddningstjänsten Dala Mitt case.
- 44.
Reference number at the Swedish Competition Authority: Dnr 391/2011.
- 45.
Reference number at the Swedish Competition Authority: Dnr 438/2011.
- 46.
Reference number at the Swedish Competition Authority: Dnr 45/2012.
- 47.
Swedish Competition Authority, http://www.kkv.se/t/NewsPage____7916.aspx, 7 April 2012.
Acknowledgement
The author is grateful for the valuable comments and advice of the supervisors of his doctoral thesis, Prof. Hans Henrik Lidgard and Prof. Mats Bergman. The author is also grateful for comments from the members of the Nordic Section of the LIDC present at the meeting of 18 June 2012 in Stockholm, where an earlier draft of this contribution was discussed, and in particular for comments received from Prof. Ulf Bernitz, Giovanni Gozzo, Cecilia Torelm Tornberg, and Richard Jacobsson. Moreover, the author wants to thank his colleagues at the Gärde Wesslau Competition Law Practice Group for their valuable comments and support, in particular Roland Adrell, Karl-Arne Olsson, Johan Lidén, and Sara Karlsson.
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Moldén, R. (2014). Sweden. In: Këllezi, P., Kilpatrick, B., Kobel, P. (eds) Antitrust for Small and Middle Size Undertakings and Image Protection from Non-Competitors. LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-54000-4_12
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