A Committee, appointed by the Swedish Government in autumn 2004 to contemplate the need to introduce amendments to the Swedish Competition Act (hereinafter the "Competition Act"), has recently delivered its final Report to the Swedish Secretary for Trade and Industry. The Committee, chaired by the President of the Administrative Court of Appeal Mr. Sten Heckscher, has concluded that certain changes should be introduced to the Competition Act. Although the Committee was unanimous that the present scheme of the Competition Act and its enforcement operate relatively well, it proposed the enactment of a new statute, based on the present Competition Act.
The focus of the reform appears to lie first and foremost in expediting and facilitating proceedings before the institutions responsible for enforcing competition rules, namely the Swedish Competition Authority (hereinafter the "SCA"), the Stockholm District Court, the Market Court and the general courts of law. The aim is to enhance and render more efficient enforcement of the Competition Act while at the same time increasing the legal certainty and predictability for undertakings involved in competition proceedings.
According to the Committee, this aim can be achieved inter alia through the introduction of the following changes. Firstly, the SCA is proposed to be vested with the power to impose fines in uncontested cases, i.e. in cases where the infringement is not disputed by the infringing undertaking(s). In such cases, the SCA would present a draft decision, which would subsequently become legally binding if accepted by the infringing undertaking(s). This would signify a departure from the present system, where the administrative enforcement has been divided between the SCA and the Market Court, the former being responsible for conducting investigations and making findings on whether the Competition Act has been infringed, the latter having had the exclusive competence to impose fines. At the same time, the competence to impose fines is proposed to be extended to the general courts of law, by providing for the possibility for courts to adjoin claims for damages (based on infringements of the Competition Act) with the imposition of administrative fines. Furthermore, the Committee envisages that in cases where damages and fines are litigated jointly, the claimant’s financial burden would be alleviated by limiting the claimant’s costs to the special costs associated with the action for damages.
Secondly, the Committee has recommended the introduction of clearer guidelines for the method of calculating fines. This envisaged model would follow to a great extent the European Commission’s old guidelines on the method of imposing fines. The objective would be to impose severe penalties for particularly serious and harmful competition infringements, such as cartels. Although the introduction of clearer guidelines for the calculation of the financial penalties resulting from the infringement of the Competition Act must be welcomed, such guidelines should be based on the European Commission’s current model for the calculation of fines.
Thirdly, the Committee has proposed amendments to be introduced to the national merger control regime. In particular, it is proposed that the substantive assessment of concentrations under the Competition Act should be aligned with the test applied under the EC Merger Regulation 139/2004. Furthermore, the meaning of certain fundamental concepts (such as "concentration") is proposed to be harmonized with the EC Merger Regulation 139/2004 and to introduce the "failing firm" defence.
In addition to the aforementioned proposed amendments, the Committee has also addressed the criminalization of competition law. The Committee expressed opposition to the introduction of criminal sanctions for infringements of the Competition Act, noting that at present there is no rationale for such development. This conclusion brings to an end, at least for now, the debate on whether the efficient enforcement of competition rules requires criminal sanctions. However, the Committee has put forth the idea of introducing directors’ disqualification orders in certain cases of serious infringements of the Competition Act, in particular cartels.
The Committee has projected that the entry into force of the new Competition Act would occur on 1 January 2009. Before that the proposal, if taken up as a Government Bill, will undergo various consultation procedures and parliamentary debates.
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