In April 2012, the Swedish government appointed a committee to review legislation applicable to the activities of the Swedish Competition Authority (SCA) in order to ascertain effective competition law enforcement. The results of the inquiry "Enhanced Effectiveness of Competition Law Enforcement" were presented on 8 March 2013.
Suspending the time periods in merger investigations
The inquiry proposes to introduce new rules empowering the SCA to suspend the time limits in merger investigations (similar to the Commission's powers under Article 10.4 of the Merger Regulation) both during the initial investigation (Phase I) and during the in-depth investigation (Phase II).
The SCA is responsible for examining notified merger concentrations in order to prevent concentrations that risk impeding effective competition. Merger control investigations must be made within statutory time limits. In order to conduct investigations, the SCA depends to some extent on the undertakings to provide information. If the undertakings do not respond promptly and diligently to requests, the SCA can run short of time. In European merger control proceedings, the Commission can suspend examination periods in cases where undertakings fail to provide requested information (i.e. "stop the clock" until such information is provided).
Given that economic analysis plays an increasing role in merger investigations and that the SCA must obtain extensive information from the parties to underpin its analysis, the inquiry concludes that empowering the SCA to stop the clock in its merger investigations if the parties fail to submit requested information would lead to more effective investigations.
Marker system in leniency programme
The inquiry proposes to introduce a "marker" system under the Swedish leniency programme, i.e. a possibility for undertakings applying for leniency to first provide a limited amount of information to secure a marker, which guarantees the undertaking's place in the queue for leniency for a given period of time during which the undertaking can collect sufficient information to meet the requirements for leniency.
The leniency programme can result in full immunity from fines for the first undertaking to reveal participation in anti-competitive cooperation. As a rule, only one of the undertakings can obtain leniency. The current legislation does not permit the SCA to grant a marker and, therefore, an undertaking applying for leniency must provide sufficient information to meet all the requirements directly when applying for leniency.
SCA's working procedure in connection to unannounced inspections
Finally, the inquiry examined the SCA's working procedures when reviewing digitally stored material belonging to a company that is subject to an unannounced inspection. Current legislation does not explicitly empower the SCA to carry out indexing and searching of digital material outside the company's premises, i.e. at the SCA's premises. The inquiry notes that volumes of digital information are increasing and it can often take several weeks to review, so the inquiry concludes that allowing the SCA to carry out indexing and searching of digital material on the authority's premises will contribute to more effective investigations.
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