Answer ... The Swedish merger control legislation applies to all concentrations. The concept of ‘concentration’ is intended to be equivalent to the concept under the EU Merger Regulation (139/2004). The Swedish preparatory works state that “the interpretation of the concept at the EU level should act as the framework for the meaning of the Swedish concept”.
Answer ... The ‘change in control’ principle is defined in Section 1.9 of the Competition Act as follows:
“A concentration shall be deemed to arise if there is a change to the control of an undertaking on a lasting basis as a consequence of:
1. two or more previously independent undertakings merging; or
2. either one or more persons, already controlling at least one undertaking, or one or more undertakings, acquiring, whether by purchase of securities or assets, by contract or by any other means, direct or indirect control of the whole or parts of one or more other undertakings.”
In addition, the definition of a ‘concentration’ clarifies that the creation of a joint venture which, on a lasting basis, fulfils all functions of an autonomous economic entity constitutes a transaction that is caught by the Swedish merger control legislation.
However, the Swedish legislation does not include the special exception contained in Article 3(5) of the EU Merger Regulation. The Swedish legislature deemed that this would “complicate” the legislation and that, in any case, it was doubtful that the bulk of the operations exempted under Article 3(5) of the EU Merger Regulation could be deemed to bring about a lasting change in control. Instead, the legislature has left it to case law to decide whether the exception in the EU Merger Regulation should apply in Sweden on a case-by-case basis.
Answer ... As is currently the case under the EU Merger Regulation, the acquisition of a minority shareholding may trigger Swedish merger control legislation. The definition of a ‘concentration’ provides that a concentration will occur where there is an acquisition of control. For these purposes, ‘control’ includes the possibility of exercising decisive influence over an undertaking. A minority shareholding may therefore confer decisive influence if, for example, the remaining shareholders are widely dispersed.
Answer ... Certain joint ventures are covered by the Swedish merger control regime. As under the EU Merger Regulation, joint ventures are deemed to be concentrations if they fulfil the requirement of full functionality – that is, in essence, if the joint venture will have a lasting operation on a market independent of its jointly controlling parents. In addition, if the creation of the joint venture has as its object or effect the coordination of the competitive behaviour of the parents, then such coordination will be assessed under the Competition Act’s prohibition on anti-competitive agreements (ie, the equivalent to Article 101 of the Treaty on the Functioning of the European Union).
Answer ... There are no specific rules for foreign-to-foreign transactions under the Swedish merger control legislation: such transactions are caught if they meet the relevant turnover thresholds. A physical presence in Sweden is not required. If a foreign party fails to notify a notifiable transaction, there is no risk of fines as such, but the Competition Authority may request that a filing be submitted, subject to fines. However, the Competition Authority has not, to date, deployed this right against any foreign business.
Answer ... A mandatory filing is required if the following cumulative turnover thresholds are met:
- All parties to the concentration have a combined aggregate turnover in excess of SEK 1 billion (approximately €94 million based on the European Central Bank’s exchange rates for 2019) in Sweden; and
- Each of at least two of the undertakings concerned has turnover in excess of SEK 200 million (approximately €18.8 million) in Sweden.
Even if only the first threshold is fulfilled, the Competition Authority may request a filing (and the parties may opt to make a voluntary notification). The Competition Authority has used this mechanism in several cases.
‘Turnover’, as under the EU Merger Regulation, is based on the most recent audited accounts preceding the transaction. If no geographical breakdown of those accounts is available, sales should, as a rule of thumb, be allocated to Sweden when sales have been made to customers located in Sweden. Relevant turnover is calculated for the undertaking ‘concerned’, which includes the entire corporate group to which the undertaking belongs. Reference is made to the European Commission’s Consolidated Jurisdictional Notice.
The Competition Act introduced a so-called ‘anti-avoidance rule’ modelled on the EU Merger Regulation, when it entered into force on 1 November 2008. As a result, two or more transactions that have taken place within a two-year period between the same persons or undertakings are to be treated together as one and the same concentration when calculating the turnover generated in Sweden, for the purpose of establishing whether the turnover thresholds are met.
Answer ... The EU Merger Regulation overrides the Swedish merger control legislation pursuant to the so-called ‘one-stop shop’ principle. Thus, if a transaction meets the turnover thresholds in the EU Merger Regulation, there is no need to determine whether the transaction also meets the turnover thresholds contained in the Swedish merger legislation.