Chapter 2, Article 7 of the Swedish Competition Act2 prohibits the abuse of a dominant position. The provision reads as follows: 'Any abuse by one or more undertakings of a dominant position on the market shall be prohibited.'
The abuse may, in particular, consist in:
- directly or indirectly imposing unfair purchase or selling prices, or other unfair trading conditions;
- limiting production, markets or technical development to the prejudice of consumers;
- applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; or
- 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 the contracts.
The Competition Act entered into force on 1 November 2008. The prohibition against the abuse of a dominant position has remained intact since it was introduced in the former Competition Act3 in 1993. It corresponds to Article 102 of the Treaty on the Functioning of the European Union (TFEU), which applies in parallel to the Swedish provision if the dominant position covers a substantial part of the internal market and the abuse may affect trade between EU Member States.
The Competition Act is enforced by the Swedish Competition Authority (SCA). Neither the legislator nor the SCA has issued any formal guidance on the interpretation of the prohibition. In practice, the SCA and the Swedish courts interpret Swedish and EU case law.
II YEAR IN REVIEW
i Judgments from the Swedish courts
Last year,4 the Patent and Market Court of Appeal (PMCA) delivered final judgments in Nasdaq and FTI.
Swedish Competition Authority v. Nasdaq AB et al5
On 28 June 2019, PMCA delivered the final judgment in the high-profile Nasdaq case, concluding that Nasdaq's actions to prevent Burgundy from moving its trading system to the same data centre as Nasdaq did not constitute abuse of a dominant position.
Nasdaq is the operator of the Swedish, Danish and Finnish stock exchanges. Shortly after a new multilateral trading platform (MTF), Burgundy, was established in the Nordics, it wanted to move its matching engine to the same location where Nasdaq already had its matching engine along with the trading equipment of a large number of customers. For a new MTF, achieving a critical mass of liquidity is crucial. One category of customers that may increase liquidity is high-frequency traders. For these traders, physical proximity to the matching engine of the marketplace is often important to reduce risk caused by time lag in the execution of transactions.
When Nasdaq was informed in October 2010 that Burgundy had finalised negotiations with data centre supplier Verizon concerning the rental of a neighbouring space, Nasdaq contacted Verizon, expressed its dissatisfaction and informed them that, if Burgundy moved in, Nasdaq would move its matching engine from the data centre. Eventually, Verizon decided to withdraw from the negotiations with Burgundy.
The SCA requested that four different companies in the Nasdaq group pay fines totalling 29 million kronor.
The action was dismissed by the Patent and Market Court. The PMD found Nasdaq had acted in accordance with its contractual rights, rather than abusing power derived from its dominant position, and that the conduct amounted to competition on the merits.6
The PMCA dismissed the action on the basis of a different, and more questionable, motivation. It noted that the purpose of the prohibition against abuse of a dominant position is not to protect less efficient competitors. At the time of the disputed conduct, Burgundy used a trading system that was slower than Nasdaq's trading system. It was not until six months after the disputed conduct that Burgundy got a training system with the same latency as Nasdaq's. On this basis, the PMCA concluded that Nasdaq's conduct was not even capable of restricting competition in the way alleged by the SCA. It noted that fines of a penal nature cannot be imposed based on circumstances that occurred after the disputed conduct.
The judgment implies that it is lawful for dominant companies to harm less efficient competitors, which is unfortunate and questionable from an EU competition law perspective. The purpose of the AEC standard (i.e., 'as efficient competitor') is to establish whether the (pricing) practices of a dominant undertaking could drive an equally efficient competitor from the market. The assessment is based on the cost and price structures of the dominant company. As such, it serves as a useful tool for distinguishing between legitimate price competition and conduct liable to result in anticompetitive foreclosure (reducing the risk of false positives and false negatives). Expanding the AEC concept in a useful way to non-price-based conduct is not entirely straightforward. In the case at hand, a relevant question could have been whether the disputed conduct was capable of foreclosing a hypothetical competitor with the same efficiency (or latency) as Nasdaq. Regrettably, this question was not addressed by the PMCA.
Svenska Förpacknings- och Tidningsinsamlingen AB v. SCA7
On 28 February 2020, the PMCA set aside an order issued by the SCA against Svenska Förpacknings- och Tidningsinsamlingen AB (FTI) to recall a termination of an agreement with its competitor, TMResponsibilities (TMR).
Swedish rules on producer responsibility require producers to ensure that their packaging materials are collected and recycled. FTI and TMR offer producers the services needed to comply with this responsibility. In 2012, FTI agreed to give TMR access to its nationwide collection system for household packaging. When FTI terminated the agreement without stating any reason for doing so in 2016, the SCA found that the termination constituted an abuse of a dominant position and ordered FTI to recall the termination.
The PMCA set aside the SCA's order. Unlike the PMC,8 the PMCA found that it was not proven that it was impossible or unreasonably difficult for a competitor to duplicate the infrastructure within a reasonable timeframe. The PMCA did not explicitly state that the Bronner criteria must be fulfilled in cases regarding refusal to supply to existing customers. However, the Court noted that it follows from the European Commission's guidance paper on exclusionary abuse that the refusal must concern an input that is 'objectively necessary' in order for the refusal to constitute an abuse, regardless of whether the refusal concerns a new or an existing customer. Based on the way the SCA argued its case (that there were no actual or potential alternatives) and that the ECJ, neither in Bronner nor in any subsequent cases, has stated that the indispensability criterion is not applicable when the refusal concerns existing customers, the PMCA decided to apply the indispensability criteria in the case at hand.
ii SCA cases
Last year,9 the SCA did not adopt any infringement decisions regarding abuse of a dominant position. The SCA ended three investigations without finding an infringement; one regarding access to online advertisement and sale of train tickets,10 one regarding private app providers' access to public car parks,11 and one regarding use of trademarks in the gambling industry.12 Currently,13 the SCA has one active ongoing investigation, which concerns suspected predatory pricing in the insurance industry.14
III MARKET DEFINITION AND MARKET POWER
i Market definition
Neither the legislator nor the SCA have adopted guidelines on how to define the relevant market. In its decisions and judgments, the SCA and the courts regularly refer to EU case law and the Commission's notice on the definition of the relevant market.15
The purpose of the market definition in abuse cases is to assess whether the undertaking in question has the possibility to prevent effective competition from being maintained on the market by giving it the power to behave to an appreciable extent independently of its competitors.16
The small but significant and non-transitory increase in price (SSNIP) test has been accepted by the courts as an established method for defining the relevant market.17 A SSNIP test may, however, be misleading in cases regarding abuse of dominance if the test is based on a price that is already above the competitive level (the 'cellophane fallacy'), or if the market is characterised by strong network effects.18 In practice, the assessment is based on a number of circumstances, including not only quantitative evidence of substitution, but also qualitative aspects such as the qualities of the products and their intended use.19 Market definitions in previous cases may provide guidance, but are not precedential.20
ii Market power
The term 'dominant position' is interpreted the same way as it is in Article 102 TFEU. As regards a definition of the term, the preparatory works to the previous Competition Act (preparatory works)21 refer to the judgment of the CJEU in United Brands, in which a dominant position was defined as:
a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition from being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers.22
The term 'dominant position' includes both single and collective dominance.23
The assessment of dominance is based on a number of circumstances that are not individually decisive. A company's market shares are a natural starting point for the analysis. Market shares above certain thresholds may lead to presumptions of dominance.24
Despite the existence of market share presumptions, the assessment of dominance is usually based on a full assessment of all the relevant facts in the case, including, in particular:
- barriers to entry and expansion;
- advantages (financial, technological, regulatory, historical, etc.);
- vertical integration;
- presence in neighbouring markets;
- whether the company is an unavoidable trading partner; and
- whether customers have counterweighing buyer power.
In two recent cases, Swedish Match25 and Nasdaq,26 the PMC refrained from relying on a market share presumption, despite high market shares. However, following an appeal of the judgment in Swedish Match, the PMCA stated that market shares of more than 70 per cent in volume and value was a strong indication that Swedish Match had a dominant position, and that it would have to be exceptionally easy for new players to enter the market, or expand, in order for Swedish Match not to be deemed to have a dominant position.27
The courts have also referred to the European Commission's guidance paper on exclusionary abuses for further guidance on the term 'dominant position'.28
The prohibition against the abuse of a dominant position does not define the term 'abuse'; the type of abuses mentioned in the prohibition are only examples, and do not constitute an exhaustive list. For a definition of abuse, both the SCA and the Swedish courts regularly refer to the CJEU's judgment in Hoffman-La Roche, in which an abuse was defined as:
an objective concept relating to the behaviour of an undertaking in a dominant position which is such as to influence the structure of markets where, as a result of the very presence of the undertaking in question, the degree of competition is weakened and which, through recourse to methods different from those which condition normal competition in products or services on the basis of the transactions of commercial operators, has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition.29
The prohibition covers both exclusionary and exploitative abuses.
Over the past decade, the enforcement of the prohibition has gradually shifted from being rather legalistic to being more effect-based. In 2016, the SCA adopted a new prioritisation policy for its enforcement, which states that the most important factor for prioritising cases is the potential harm to competition and consumers.30 It may also be noted that the PMC in a recent judgment questioned the existence of 'naked restrictions', that is, unilateral restrictions that are so harmful to competition that there is no need to show anticompetitive effects to establish an abuse.31
Evidence of an anticompetitive strategy is not sufficient per se to establish an abuse, but in practice it has sometimes seemed to play a rather important role.32 The SCA has used evidence of anticompetitive intent to argue that conduct does not constitute competition on the merits,33 and that a dominant company has considered it likely that the conduct is capable of having anticompetitive effects.34 The PMC has taken evidence of anticompetitive intent into account in its assessment of a conduct's effects on competition.35
ii Exclusionary abuses
Although the prohibition covers both exclusionary and exploitative abuses, the SCA's enforcement focuses on exclusionary abuses. The SCA's enforcement policy states that the SCA prioritises unilateral conduct that is capable of excluding effective competition. When deciding whether conduct is sufficiently harmful to warrant an investigation, particular consideration is given to the share of the market affected by the conduct and, in cases where the foreclosure concerns an input, to what extent the input is essential to enable effective competition. When it comes to price-based conduct, the SCA considers whether the pricing is capable of foreclosing as efficient competitors.36 Therefore, although as-efficient competitor tests are not strictly necessary to establish an abuse, the SCA regularly performs such tests in cases regarding price-based abuse to decide whether an intervention is warranted.37
iii Exploitative abuses
Exploitative abuses are covered by the prohibition. Cases regarding pure exploitative conduct are, however, rare, in particular in public enforcement. During 2016–2020, the SCA's prioritisation policy did not even mention exploitative abuse, and the SCA has not initiated any investigations or legal proceedings regarding pure exploitative conduct. In the latest version of the Prioritisation Policy, which was adopted on 12 February 2020, an amendment was made regarding exploitative abuse stating that the SCA may prioritise exploitative abuse if there are clear signs that a dominant firm is directly exploiting customers or consumers as a result of non-functioning competition.38 Cases regarding exploitative abuse occasionally occur in private litigation.39
Like Article 102 TFEU, the Swedish provision prohibits the application of 'dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage'. The prohibition applies not only to discriminatory prices, but also to other discriminatory terms. It covers discrimination of a dominant company's competitors (first-line discrimination) as well as discrimination of its customers (second-line discrimination). The latter form of discrimination (sometimes referred to as pure discrimination) is less likely to lead to foreclosure of effective competition, and thus less likely to be prioritised by the SCA.40 These cases are more likely to occur in private litigation.41
V REMEDIES AND SANCTIONS
The main remedies and sanctions against abuse of a dominant position are:
- administrative fines;
- fine orders;
- orders imposing obligations (under threat of a fine for default);
- commitment decisions;
- nullity; and
Following the implementation of Directive (EU) 2019/1 (the ECN+ Directive) to empower the competition authorities of the Member States to be more effective enforcers, the SCA will also have the power to issue infringement decisions.
ii Administrative fines
An undertaking that intentionally or negligently infringes the prohibition against abuse of a dominant position may be ordered to pay administrative fines. The SCA does not have the authority to impose fines itself, but the PMC may do so at the SCA's request.42 In connection with the implementation of the ECN+ Directive, the Ministry of Trade has submitted a proposal to give the SCA decision-making powers in cases regarding fines.43
When determining the amount of the administrative fines, account shall be taken of the gravity and duration of the infringement, and possible aggravating or mitigating circumstances.44 The gravity is based primarily on the nature of the infringement, the size and significance of the market, and the infringement's actual or potential impact on competition.45 The amount may be increased if there are aggravating circumstances (if the company has persuaded other companies to participate, or has played a leading role in the infringement) and reduced if there are mitigating circumstances (if the company's participation has been limited).46 Besides circumstances referable to the infringement, particular account shall be taken of the undertaking's financial status, whether the undertaking has previously infringed any of the competition prohibitions and whether it has quickly discontinued the infringement.47
The SCA has published a memorandum describing its method of setting administrative fines.48 The purpose of the memorandum is to provide greater clarity on how the SCA interprets and applies the provisions on administrative fines in the Competition Act. The memorandum does not pre-empt the interpretations made by the courts.
The fines may not amount to more than 10 per cent of the undertaking's total annual turnover.49 The highest fine ever imposed by final judgment in a Swedish case concerning abuse of dominance is 35 million Swedish kronor.50
iii Fine order
Instead of bringing legal proceedings requesting administrative fines, the SCA may in some cases issue a fine order with the same effect as a legally binding judgment. These orders may only be issued if the undertaking consents thereto and the SCA considers that the material circumstances regarding the infringement are clear.51 According to the preparatory works, fine orders should not be used in cases with legal questions of precedential interest.52
The SCA's power to issue fine orders has only been used in a limited number of cases. To date, the SCA has not issued any fine orders in cases regarding abuse of a dominant position. If the SCA receives decision-making powers in cases regarding fines, the power to issue fine orders may be removed.53
iv Orders imposing obligations
A company that abuses its dominant position may be ordered by the SCA to terminate the abuse.54 According to the preparatory works, such orders may not be more far-reaching than what is necessary to eliminate the anticompetitive effects of the infringement.55 The SCA may impose behavioural obligations, such as the obligation to end an agreement or stop a certain conduct, but it may not impose structural obligations.56
If there are 'particular grounds', the SCA may issue an interim order for the period until a final decision is adopted.57 According to the preparatory works, interim measures should be taken in cases where the infringement is 'more serious' and may lead to 'significant negative effects' if the company is not ordered to terminate the conduct immediately. Account shall also be taken of the effects on the company addressed by the order.58
A final or interim order to terminate an abuse may be imposed under threat of a fine for default.59
v Commitment decision
If the undertaking investigated offers commitments, the SCA may adopt a commitment decision stating that there are no longer grounds for action.60 As long as the decision applies, the SCA may not issue orders imposing obligations regarding the conduct covered by the decision.61
vi Special right to legal action
If the SCA decides not to investigate a complaint, or to end an investigation without issuing an order, undertakings affected by the conduct are entitled to institute private proceedings before the PMC, and to request that the court orders the company to end the abuse.62
An agreement that infringes the prohibition against abuse of a dominant position is considered null and void.63 This means that the agreement, or at least the infringing provisions thereof, cannot be enforced by a court.
An intentional or negligent abuse of a dominant position may lead to liability to pay damages.64
The Swedish procedural rules differ significantly from the EU's procedural rules and from those of other EU Member States. In particular, the decision-making powers of the SCA are less extensive than those of the European Commission and most other European competition authorities. As regards decisions to impose administrative fines, a pure judicial model applies, meaning that the first instance decision (both on substance and fines) is taken by the court.65 The SCA may take decisions requiring that an infringement be brought to an end, but if these orders are appealed, the courts are entitled to make a full review of the case.
ii SCA investigations
SCA investigations are governed by the Competition Act and the Administrative Act.66 Subject to certain limitations set out in the Public Access to Information and Secrecy Act,67 a party to an investigation has extensive rights of access to files.
Most SCA investigations regarding abuse of a dominant position start with a tip-off or a complaint from a customer, supplier or competitor. Ex officio investigations occur but are quite rare. The SCA does not investigate all tips and complaints that it receives: the process of selecting cases for investigation is described in the SCA's Prioritisation Policy for Enforcement.68 If the SCA decides not to open an investigation, the case is closed with no further explanation other than a short reference to the Authority's prioritisation policy. If the SCA decides to open an investigation, the case is allocated to the Market Abuse Unit, a specialised unit that handles cases regarding abuse of dominance, vertical restraints and competition neutrality.
The SCA has extensive investigative powers. It may order parties and third parties to provide information and documents, conduct interrogations and, upon prior authorisation from the PMC, conduct unannounced inspections at the premises of companies.69 Unlike the Commission, the SCA is not entitled to impose sanctions for the submission of incorrect, incomplete or misleading information, but the right to impose (or request the Court to impose) such sanctions will be introduced as a result of the ECN+ Directive.
Before the SCA institutes proceedings with a request for fines, the party must be given the opportunity to comment on the SCA's draft summons application.70 The Competition Act contains no corresponding provision regarding orders to impose obligations, but the SCA has nonetheless developed a practice of communicating draft orders before adopting a final decision.
A party that receives a draft summons application or a draft order may request an oral hearing of the case. The main purpose of the oral hearing is to complete the party's written submissions with oral comments and ensure that the SCA's decision is well-supported.71
When the investigation is completed, the main findings and a proposed decision are presented to the Director General, who makes the final decision on whether to intervene or close the case.
The SCA does not have the opportunity to give negative clearance. Thus, when the SCA decides to close a case, the closing decision normally states that the SCA has not taken a final stand on whether the conduct constitutes an infringement.
The duration of the SCA's investigations varies from case to case, depending on the complexity of the case and whether the investigation leads to the finding of an infringement. Investigations regarding abuse of dominance tend to take longer than investigations of other competition infringements. In cases that lead to the finding of an abuse, the investigation may take several years.72
iii Early resolutions and settlement procedures
The SCA does not have the possibility to make settlement agreements. If a party consents thereto, the SCA may issue a fine order with the same effect as a legally binding judgment, but the SCA is not entitled to grant reductions in the fines in return for such consent.
iv Appeals and judicial review
The right to appeal decisions adopted by the SCA is governed by Chapter 7, Article 1 of the Competition Act. Orders by the SCA to impose obligations may be appealed. Decisions not to investigate a case may not be appealed, but undertakings affected by the conduct may institute private proceedings and request that the court issues an order to end the conduct.73 Fine orders may, under certain circumstances, be set aside.74
As of 1 September 2016, the competent court in competition law cases is the PMC, a division of Stockholm District Court that specialises in competition, patent and market law.75
Judgments and decisions by the PMC may be appealed to the PMCA, which is a division of Svea Court of Appeal. Leave to appeal is required. Decisions and judgments by the PMCA in competition cases may normally not be appealed. The PMCA may, however, allow the judgment to be appealed to the Supreme Court if the Supreme Court's review is important from a precedential perspective.76 To date, this opportunity has only been used in cases concerning procedural rights.
The courts' review is not limited to a legal review: both the PMC and the PMCA make a full review of the case.
The number of judgments regarding abuse of a dominant position delivered by the courts following the introduction of the new court system is too limited to make any general conclusions regarding the length of the court proceedings. In the three cases in which final judgments have been handed down, the total proceedings lasted from two to four years.77 Considering the complexity of this type of case, it is fair to assume that court proceedings will take at least two years and most often several years (appeals included).
VII PRIVATE ENFORCEMENT
A company that intentionally or negligently abuses a dominant position may be held liable to pay damages for the harm caused. The right to claim damages is governed by the Competition Damages Act,78 which implements the EU Directive on Competition Damages into Swedish law.79 When the Competition Damages Act entered into force on 27 December 2016, it replaced the previous provisions on competition damages in the Competition Act.
The liability covers compensation for actual loss, loss of profit and interest. The claimant has to demonstrate the existence of an abuse, the extent of the harm, and the existence of a causal link between the abuse and the harm. In contrast to cartels, abuse of a dominant position is not presumed to cause harm. Following the entry into force of the Competition Damages Act, final infringement decisions of the SCA or Swedish courts constitute full proof that an infringement has actually occurred.80
Collective actions are available and governed by the Swedish Group Proceedings Act,81 which is based on an opt-in system.
To our knowledge, there are no Swedish court cases in which a claimant has been awarded damages for abuse of a dominant position.
Last year,82 the PMCA delivered its final judgment in Net at Once v. Gothnet,83 rejecting Net at Once's stand-alone claim for damages against Göteborg Energi (Gothnet) for alleged abuse of a dominant position.84
There are no general prohibitions against third-party funding of private litigation.
VIII FUTURE DEVELOPMENTS
A key aspect for the future will be how the SCA's defeats in the PMCA will affect the authority's priorities going forward. Following the entry into force of the new court system on 1 September 2016, 85 three cases on abuse of dominance have been finally decided. Two of the cases were upheld by the PMC, but all three were ultimately dismissed by the PMCA. Considering the time and extensive resources the SCA has invested in these cases, the outcome is concerning and likely to affect future priorities. Even outside the scope of Article 102, the PMCA has sided with the defendants in all competition law cases it has heard.
From an outside perspective, without access to all facts, it is difficult to judge the outcome of the cases. However, the fact that two out of three judgments from the lower court have been changed by the court of last instance is notable per se and raises important questions regarding predictability and legal certainty, the effectiveness of the enforcement and the competence of the courts.
1 Marcus Glader is a partner and Trine Osen Bergqvist is a senior expert at Vinge.
2 The Swedish Competition Act (2008:579).
3 The former Competition Act (1993:20).
4 1 April 2019 to 31 March 2020.
5 Case PMÖD PMT 1443-18, SCA v Nasdaq AB et al.
6 Case PMT 7000-15, SCA v. Nasdaq AB et al, 15 January 2018.
7 Case PMÖÄ 1519-19, Svenska Förpacknings- och Tidningsinsamlingen AB v. SCA.
8 Case PMÄ 2741-18, Svenska Förpacknings- och Tidningsinsamlingen AB v. SCA, 21 January 2019.
9 1 April 2019 to 31 March 2020.
10 Decision dated 4 June 2019 in cases 230/2018 and 380/2018.
11 Decision dated 26 September 2019 in cases 304/2018 and 327/2018.
12 Decision dated 13 March 2020 case 128/2019.
13 31 March 2020.
14 Case 446/2019.
15 See, for instance, the PMCA's judgments in PMÖÄ 1519-19, Svenska Förpacknings- och Tidningsinsamlingen AB v. SCA, 28 February 2020, p. 10; the Market Court's judgment in MD 2013:5, TeliaSonera AB v. SCA, 12 April 2013, p. 38; and the PMC's judgments in case PMT 16822-14, SCA v. Swedish Match North Europe AB, 8 February 2017, p. 134; case PMT 7000-15, SCA v. Nasdaq AB et al, 15 January 2018, p. 22; and case PMÄ 2741-18, Svenska Förpacknings- och Tidningsinsamlingen AB v. SCA, 21 January 2019, p. 16. Even the preparatory works refer to the said notice, see Government Bill 2007/08:135, p. 71.
16 Judgment from the Market Court, MD 2013:5, TeliaSonera AB v. SCA, 12 April 2013, p. 38.
17 See, for instance, MD 2013:5, TeliaSonera AB v. SCA, 12 April 2013, p. 38; and the PMC's cases PMT 16822-14, SCA v. Swedish Match North Europe AB, 8 February 2017, p. 135 and PMT 7000-15, SCA v. Nasdaq AB et al, 15 January 2018, p. 22 (not changed by the PMCA in PMÖD PMT 1443-18, SCA v Nasdaq AB et al).
18 Judgment from the PMC, PMT 7000-15, SCA v. Nasdaq AB et al, 15 January 2018, p. 23 (not changed by the PMCA in PMÖD PMT 1443-18, SCA v Nasdaq AB et al).
19 See, for instance, MD 2013:5, TeliaSonera AB v. SCA, 12 April 2013, p. 38.
20 See, for instance, the PMC's judgment in case PMT 7000-15, SCA v. Nasdaq AB et al, p. 26, which referenced OECD, Market Definition, DAF/COMP(2012)19, p. 87.
21 Government Bill 1992/93:56, p. 85.
22 Case C-27/76, United Brands Company et al v. Commission of the European Communities, EU:C:1978:22, pp. 65 and 66.
23 Like Article 102 TFEU, the prohibition covers abuse by 'one or more undertakings'. In MD 2011:28, Uppsala Taxi 100 000 AB v. Europark Svenska AB et al, 23 November 2011, the Market Court considered that Europark and Swediavia, by virtue of their agreement concerning the taxi allocation system at Arlanda Airport, had a collective dominant position.
24 According to the preparatory works to the former Competition Act (Government Bill 1992/93:56, pp. 85 and 86), market shares above 40 per cent constitute a clear sign of dominance; market shares above 50 per cent lead to a presumption of dominance; and market shares above 65 per cent lead to a presumption that is almost impossible to rebut; in particular, if the competitors are relatively small.
25 Case PMT 16822-14, SCA v. Swedish Match North Europe AB, 8 February 2017, p. 144.
26 Case PMT 7000-15, SCA v. Nasdaq AB et al, 15 January 2018, p. 85. The judgment was upheld by the PMCA in PMÖD PMT 1443-18, SCA v Nasdaq AB et al, but the PMCA did not assess whether Nasdaq had a dominant position.
27 Case PMT 1988-17, Swedish Match North Europe AB v. SCA, 29 June 2018, p. 7.
28 See, for instance, the PMC's judgment in case PMT 16822-14, SCA v. Swedish Match North Europe AB, 8 February 2017, p. 140.
29 Case C-85/76, Hoffman-La Roche & Co AG v Commission, ECLI:EU:C:1979:36, p. 91.
30 The prioritisation policy, which was updated on 12 February 2020, is available at the SCA's website, www.konkurrensverket.se/globalassets/english/about-us/english_prioritisation_policy_for_enforcement.pdf.
31 The PMC's judgment in case PMT 7000-15, SCA v. Nasdaq AB et al, 15 January 2018. The judgment was upheld by the PMCA in PMÖD PMT 1443-18, SCA v Nasdaq AB et al, 28 June 2019.
32 In case PMT 16822-14, SCA v. Swedish Match North Europe AB, 8 February 2017, several pages of the PMC's judgment are devoted to the question of whether Swedish Match's conduct was based on an anticompetitive strategy but with a different motivation. The judgment was set aside by the PMCA in case PMT 1988-17, Swedish Match North Europe AB v. SCA, dated 29 June 2018 because the conduct was deemed objectively motivated. It was thus not necessary to determine whether the conduct was based on an anticompetitive strategy.
33 See the SCA's summons application in case 815/2014, SCA v. Swedish Match North Europe AB, 9 December 2014, p. 383 with further references.
34 ibid, p. 385 with further references.
35 See the PMC's judgment in case PMT 16822-14, SCA v. Swedish Match North Europe AB, 8 February 2017, p. 183. The judgment was set aside by the PMCA in case PMT 1988-17, Swedish Match North Europe AB v. SCA, dated 29 June 2018, as the conduct was deemed to be objectively justified.
36 See footnote 30.
37 See, for instance, the SCA's decision in case 494/2013, Assa AB et al, 22 November 2017.
38 See footnote 30.
39 The most recent example of a case regarding pure exploitative abuse is a case from 2011 concerning a 'sign fee' imposed by the airport operator Swedavia for pre-ordered taxis at Arlanda Airport. The fee was imposed on taxis that picked up customers in the arrival hall with a sign with the customer's name on it. When the complaint was rejected by the SCA on priority grounds, the complainant brought successful private actions to the Market Court. In a judgment delivered on 23 November 2001, MD 2011:28, the Market Court found that there was no 'necessary connection' between the fee and the pre-ordered taxi traffic. Without considering whether the fee was excessive, the Court found that the fee was 'unfair' and thus abusive. Following the judgment, the SCA submitted a summons application with a request for fines. In its judgment delivered on 9 June 2016 in case T 9131-13, the request was dismissed by Stockholm City Court. The Court agreed that the fee was anticompetitive but found that it was objectively justified by capacity issues at the airport. The SCA chose not to appeal the judgment.
40 See footnote 30.
41 See, for instance, MD 2011:2, Stockholm Transfer Taxi in Stockholm AB v. Swedavia AB, 2 February 2011, concerning the alleged discriminatory allocation of taxi lanes at Arlanda Airport. When the complaint was rejected by the SCA on priority grounds, the complainant brought private actions in the Market Court. Considering that the taxi space outside Arlanda was limited, the Market Court agreed that Swedavia was obliged to ensure that the allocation of taxi lanes was neutral from a competition perspective, but it did not agree that the allocation was discriminatory. The Court found that the allocation was based on customer demand and that it did not lead to a competitive disadvantage for the complainant. Accordingly, the conduct did not constitute an abuse.
42 Chapter 3, Article 5 of the Competition Act.
43 Ds 2020:3 p. 57.
44 Chapter 3, Article 8 of the Competition Act.
46 Chapter 3, Articles 9–10 of the Competition Act.
47 Chapter 3, Article 11 of the Competition Act.
48 The memorandum is published at the SCA's website, www.konkurrensverket.se/globalassets/english/competition/method-of-setting-administrative-fines.pdf.
49 Chapter 3, Article 6 of the Competition Act.
50 MD 2013:5, TeliaSonera AB v. SCA, 12 April 2013.
51 Chapter 3, Articles 16–19 of the Competition Act.
52 Government Bill 2007/08:135, p. 261.
53 Ds 2020:3 p. 57.
54 Chapter 3, Article 1 of the Competition Act.
55 Government Bill 1992/93:56, p. 90.
56 Following the implementation of the ECN+ Directive, the SCA will also have the power to impose structural obligations.
57 Chapter 3, Article 3 of the Competition Act.
58 Government Bill 1997/98:130, p. 62.
59 Chapter 6, Article 1 of the Competition Act.
60 Chapter 3, Article 4 of the Competition Act.
61 See, for instance, the SCA's decisions dated 3 May 2017 in cases 630/2015 and 210/2017, Arla Foods amba. In February 2016, Arla introduced restrictions in the right for members of the Arla group to supply organic milk to other diaries than Arla. The SCA initiated an investigation regarding abuse of a dominant position (case 630/2015). Considering that the members' right to supply milk to competing dairies was subject to a commitment decision from 2010, which was unlimited in time, the SCA found that it was not entitled to issue an order against the restrictions introduced in 2016. The new restrictions were, however, deemed to constitute a violation of the said commitment decision. For the SCA to be able to intervene against the new restrictions, the SCA revoked the commitment decision (case 210/2017).
62 Chapter 3, Article 2 of the Competition Act.
63 This does not follow directly from the Competition Act, but is stated in the preparatory works, Government Bill 2003/04:80, p. 54.
64 The liability to pay damages for competition law infringements is described further under Section VII.
65 As described above, the Ministry of Trade has submitted a proposal to give the SCA decision-making powers in cases regarding fines.
66 The Administrative Act (2017:900).
67 The Public Access to Information and Secrecy Act (2009:400).
68 See footnote 30.
69 Chapter 5, Articles 1 and 3 of the Competition Act.
70 Chapter 3, Article 5 of the Competition Act.
71 The oral hearing is described on the SCA's website (Swedish only), www.konkurrensverket.se/omossmeny/om-oss/konkurrensverkets-uppdrag/sa-arbetar-vi/kvalitetssakring-av-beslut/muntligt-forfarande/.
72 From recent investigations leading to the finding of an abuse, it may be noted that the SCA's investigation of FTI, Swedish Match and Nasdaq took approximately one and a half years, two and a half years and four and a half years, respectively.
73 Chapter 3, Article 2 of the Competition Act.
74 According to Chapter 3, Article 19 of the Competition Act, a fine order for which consent has been given shall upon appeal be set aside under the preconditions in Chapter 59, Section 6, First Paragraph of the Code of Judicial Procedure.
75 Chapter 8, Article 1 of the Competition Act.
76 Chapter 1, Article 3 of the Act on Patent and Market Courts (2016:188).
77 Following the entry into force of the new court system, final judgments from the PMCA has been delivered in three cases; Swedish Match (PMT 1988-17), in which the court proceedings lasted for three and a half years, Nasdaq (PMT 1443-18) which took approximately four years and FTI (PMÖÄ 1519-19), which took approximately two years. The proceedings in the PMC are somewhat lengthier than in the PMCA.
78 The Competition Damages Act (2016:964).
79 Directive 2014/104/EU of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union.
80 The Competition Damages Act applies to infringements conducted and harm that arose after the Act entered into force on 27 December 2016.
81 The Swedish Group Proceedings Act (2002:599).
82 1 April 2019 to 31 March 2020.
83 PMT 2216-18, Net at Once Sweden AB v. Göteborg Energi Gothnet AB, 22 November 2019.
84 The case stems from 2009, when the city of Gothenburg procured data communication services. Gothnet, a municipally-owned data communication services provider, which owned fibre connections to many of the addresses specified in the procurement, charged a competitor in the procurement – the telecommunication operator Net at Once – a wholesale access price that was higher than the price Gothnet offered in its own tender. Net at Once brought an action for damages and argued that Gothnet had abused its dominant position by way of discrimination, margin squeeze and unfair trading conditions. Unlike the PMC, the PMCA found that the relevant market could be defined by the fibre addresses specified in the procurement. Yet, despite Gothnet's special position in this 'market', Gothnet was not considered to have a dominant position, and the case was dismissed.
85 The new court system is described in Section VI.