Sweden: economist perspective

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The use of economics in Swedish competition law enforcement is generally most prevalent in merger investigations. However, during the past year, only a few merger cases have required extensive economic analysis. Within antitrust, the Swedish Competition Authority (SCA) has concluded several investigations, some of which have been long-standing with the authority. The SCA’s increased activity in this field suggests a potential rise in the use of economic experts in the foreseeable future.

This article is based on interviews with prominent Swedish competition lawyers from the law firms Bokwall Rislund, Cederquist, Cirio, Delphi, Hannes Snellman, Kastell, Setterwalls and Vinge. The interviews were conducted between May and June 2023.

Competition economics generally plays a significant role in mergers, but only a few recent cases have required extensive economic analysis

Merger activity in 2022 remained high. In 2022, the SCA received 121 merger notifications, which is slightly lower than the record-breaking 135 notifications in 2021. However, during the first half of 2023, merger activity decreased. The SCA received 43 notifications, compared to 69 notifications during the first half of 2022.

Even though merger activity has been declining, most interviewed lawyers perceive that merger support will remain the key service provided going forward. Approximately half of all competition law-related legal advice provided by the interviewed lawyers relates to mergers. Moreover, the current decrease in merger notifications should, according to several interviewed lawyers, be viewed as an indication that merger activity is coming back to a more ‘normal’ level after two years of exceptionally high activity.

The interviewed lawyers generally agree that despite the high number of merger filings in recent years, the SCA continues to demonstrate commendable efficiency and accessibility in its case handling, especially for unproblematic mergers. The authority’s responsive and streamlined approach benefits the parties involved, ensuring smooth and efficient merger processes.

The interviewed lawyers perceive that competition economics generally plays a significant role in mergers, but only a few recent cases have required extensive economic analysis. This is primarily because the SCA has conducted fewer in-depth investigations. However, in the past year (the second half of 2022 and the first half of 2023), two merger cases handled by the SCA stand out.

  • The first case was Vestum’s acquisition of Isodrän and MDT Markvaruhuset.[1] The case involved the only Phase II investigation by the SCA during the past year. The interviewed lawyers also noted that the transaction involved small companies in terms of turnover.[2] During its investigation, the SCA found that Isodrän and Vestum’s subsidiary Pordrän were close competitors in moisture protection and that the transaction would lead to anticompetitive effects as the competitive pressure exerted by Isodrän on Pordrän would be eliminated.[3] Vestum abandoned the acquisition of Isodrän in January 2023 after receiving the SCA’s draft decision to prohibit the merger.
  • The second case was the acquisition of the digital magazine and newspaper subscription platform Readly by Bonnier.[4] The SCA’s competition concerns in the case included Bonnier preferring its own titles or excluding rivals from the platform after the transaction. During the investigation, competing publishers also expressed concerns about Bonnier restricting access to data on reading behaviour or using data on competing publishers’ titles. The SCA cleared the transaction in Phase I with behavioural remedies addressing these concerns in February 2023.

The SCA has recently concluded several antitrust investigations, some of which have been long-standing with the authority

The SCA has had several open antitrust investigations during the past year. Some of the cases have been ongoing for many years. During the interviews, some lawyers mentioned the SCA was approaching the end of some of these long-standing antitrust investigations. At the time of writing this article, the SCA has concluded several cases.

In two of these decisions, economic issues played a central role.

  • In the first decision, the SCA accepted voluntary remedies by Finnair to stop its restrictions on how online travel agencies (OTAs) advertise discounted prices on the airline’s tickets.[5] The case dates back to February 2020 when the SCA received a complaint stating that, since October 2019, Finnair had prevented OTAs from advertising Finnair’s tickets for a price lower than the price Finnair offered the tickets to the OTAs. Moreover, Finnair had revoked the rights to sell its tickets for OTAs that did not comply with the requirements. The SCA’s investigation into Finnair’s alleged anticompetitive restrictions included comparing the relationship between the prices of OTAs and Finnair with the prices of OTAs and the competing airline SAS in selected routes that both airlines fly from Sweden. The SCA found that a significantly higher number of OTAs offered SAS tickets on price comparison sites that advertise both airlines’ tickets. Moreover, OTAs’ prices for SAS tickets varied both below and above the price advertised by SAS for the same route. In contrast, OTAs’ prices for Finnair tickets, apart from a few exceptions, were either equal to or above the prices advertised by Finnair for the route.
  • In the second decision, the SCA did not find it appropriate to intervene against alleged anticompetitive public sales activities by Samhall.[6] The SCA investigated how Samhall, a state-owned company entrusted with the service of general economic interest of providing employment for disabled workers, priced its cleaning services in grocery stores. During the investigation, the SCA collected pricing information from Samhall and its competitors in the form of framework agreements, pricing methods and key pricing indicators. The purpose was to determine the market price for cleaning services and to assess if Samhall has offered prices below the identified market price. The preliminary results of the SCA’s investigation indicated clear evidence of pricing below market price by Samhall. However, the SCA did not deem it appropriate – with support of the rules preventing anticompetitive public sales activities – to intervene against Samhall. In the decision, the SCA points out two limitations of enforcing the rules (i) the SCA cannot impose deterrent fines for anticompetitive practices that have incurred in the past, and (ii) the SCA cannot accept commitments subject to the penalty of a fine. Although the SCA ended its investigation, the authority emphasised the importance of Samhall ensuring that its pricing practices are in accordance with market prices in the future.

In addition, the SCA concluded two cases concerning anticompetitive agreements.

  • In the first case, the SCA fined Norrmejerier for entering an anticompetitive market-sharing agreement with its competitor Frigoscandia in northern Sweden between 2011 and 2021.[7] Both companies were active in temperature-controlled transport services during the time of the agreement. However, Norrmejerier’s core business is the production of dairy products. Frigoscandia informed the SCA about the infringement in 2021 and consequently was granted full immunity for any fines. The SCA initially planned to fine Norrmejerier 47 million krona for the infringement. The fine was first lowered by 30 per cent due to Norrmejerier’s cooperation in the investigation. The SCA lowered the fine further to 7 million krona due to the potential negative impacts of an excessive fine. In its decision, the SCA noted that besides Norrmejerier, there is only one other company active in milk production in northern Sweden and that the dairy industry is strained and characterised by increasing costs.
  • In the second case, the SCA closed an investigation into alleged anticompetitive cooperation within sales of bread to grocery stores in Sweden.[8] The SCA concluded that the behaviour of the investigated companies Fazer and Polarbröd did not constitute an infringement of article 101 of the Treaty on the Functioning of the European Union.[9] The SCA investigated whether Fazer and Polarbröd either directly or indirectly colluded through their common distributor Polfärskt[10] by agreeing to not sell certain bread products to grocery stores when Polfärskt entered into a distribution agreement with Fazer. The authority found that Fazer and Polarbröd had communicated with each other at the time Fazer entered into the agreement with Polfärskt and that Fazer had stopped selling certain bread products that competed with Polarbröd’s offering. However, the SCA did not find evidence suggesting that Fazer and Polarbröd agreed or colluded on the supply of bread or that the adjustments to Fazer’s offering resulted from an agreement between the companies.

The SCA’s lengthy antitrust investigations divide opinions within the legal community

The SCA has had several long-standing antitrust investigations in recent years. Some of these investigations have involved large requests for information and tight deadlines and hence have been resource demanding for the parties involved. At the same time, communication from the SCA on progress and theories of harm under scrutiny has been perceived as limited.

While some of the interviewed lawyers find the lengthy investigations problematic, others emphasise the need for thorough investigations that may take time to yield results. On the one hand, some lawyers argue that prolonged investigations with limited updates are problematic as the investigation becomes a financial burden for companies and leaves them with uncertainty about the potential impact on their operations. Others see that in-depth scrutiny of cases is essential for delivering fair and accurate outcomes. By taking the necessary time to gather and analyse information, the SCA aims to ensure well-substantiated decisions that uphold competition laws and protect consumer interests effectively.

All interviewed lawyers emphasise, however, that the SCA should strike the right balance between a comprehensive review process and timely communication of progress to foster trust and confidence in the SCA’s efforts to maintain fair competition and protect the interests of all stakeholders.

The SCA has successfully used its newly gained decision-making powers and imposed fines in two antitrust cases

The SCA gained decision-making powers in March 2021. In the second half of 2022, the SCA imposed fines in two antitrust cases. Both decisions were upheld by the Patent and Market Court (PMC)[11] in the first half of 2023.

The cases concerned information exchange, bid rigging, and market sharing. Economic analysis played a limited role, primarily due to the by-object nature of the infringements. Both cases involved small companies.[12]

  • In the first case, the SCA found that two taxi companies active in southern Sweden had engaged in illegal horizontal cooperation through bid rigging in public procurement for mobility services.[13] The two companies were in contact with each other before submitting their bids, exchanging draft tenders and discussing, among other things, tender prices. The companies agreed that one of them would have a lower tender price. The SCA received knowledge about the conduct through a tip from the contracting authority. The authority fined the two taxi companies 1,550,000 krona for bid rigging in October 2022. Both companies appealed the decision, but the PMC rejected the appeals in February 2023 and thereby upheld the SCA’s decision.[14]
  • In the second case, the SCA found that two companies active in the markets for sanitation and cleaning services and cleaning of garbage containers in southern Sweden had engaged in illegal horizontal cooperation.[15] At the beginning of 2014, the two companies entered a written agreement to cooperate against other competitors instead of competing with the other. The agreement also stated that the companies could not provide services that competed with the other's areas of activity. The companies applied the agreement by devoting themselves solely to their respective activities and forwarding requests for other services to the other company. The agreement was applied both in private business contacts and in public procurements and was neither limited in time nor geographically. The SCA received knowledge about the conduct through a leniency application. In December 2022, the SCA decided to fine one of the companies approximately 1,200,000 krona.[16] The decision was appealed to the PMC, but the appeal was withdrawn in March 2023, and thereby the SCA’s decision was upheld.[17]

Several interviewed lawyers emphasise the fundamental importance of the two decisions as they show that the SCA will intervene in competition law infringements irrespective of the size of the companies involved. It should, however, also be noted that some lawyers raised the concern regarding small-scale players’ ability to finance adequate legal representation. This sentiment is particularly relevant in one of the cases as the defendants lacked adequate resources to finance legal representation. Nevertheless, the SCA’s success in court is generally viewed by the interviewed lawyers as a positive development as it establishes case precedents that can have a deterrent effect on companies seeking to engage in anticompetitive behaviour.

A long-standing case concerning the treatment of leniency applications has come to an end

In October 2022, the SCA’s long-standing case against Arla Foods AB (Arla) came to an end. The case has received attention from Swedish lawyers as it concerns the treatment of leniency applications. In 2020, the SCA fined Arla around 1 million krona for alleged anticompetitive cooperation with a competitor in public procurement.[18] Arla admitted that it had infringed the competition rules but argued that at an early stage of the investigation it had submitted the information needed by the SCA to clarify the infringement under a leniency application. As the information had been filed under a leniency application, the fine should be waived in full. The SCA rejected the request as the information provided by Arla was provided after the SCA had initiated the investigation and requested the information. The SCA did, however, reduce the fine by the maximum possible reduction of 50 per cent due to Arla's cooperation in the investigation but did not waive it entirely under the leniency programme.

Arla appealed the decision to the PMC and later to the Patent and Market Court of Appeal (PMCA).[19] The PMCA tested what level of fine reduction should be granted for a leniency application submitted after a request for information from the authority. Both courts concluded that the conditions for leniency were not fulfilled and that the company must provide the information on its own initiative.[20] As a result, Arla must pay the fine as set by the SCA.


Notes

[1] SCA decision on 5 January 2023 in case 594/2022.

[2] The combined turnover of Isodrän and MDT Markvaruhuset in 2021 was 218 million krona. Vestum press release 12 July 2022: https://www.vestum.se/ir/pressmeddelanden/vestum-starker-sin-position-inom-fuktskydd-och-va-system-genom-forvarv-av-tva-specialistbolag-med-total-omsattning-om-218-msek/.

[3] The acquisition of building materials retailer MDT Markvaruhuset did not raise competition concerns.

[4] SCA decision on 1 February 2023 in case 786/2022. The concentration involved Tidnings AB Marieberg, a subsidiary of Bonnier News Group, and Readly.

[5] SCA decision on 7 July 2023 in case 111/2020.

[6] SCA decision on 26 June 2023 in case 628/2021.

[7] SCA decision on 5 July 2023 in case 718/2021.

[8] SCA decision on 12 July 2023 in case 365/2021.

[9] Article 101 of the Treaty of the Functioning of the European Union prohibits anticompetitive horizontal agreements between competitors.

[10] Polarbröd is the majority shareholder in Polfärskt.

[11] The Patent and Market Court constitutes the first instance of appeal for the SCA’s decision.

[12] In both cases, the combined turnover of the companies involved was around 40 million krona.

[13] SCA decision on 20 October 2023 in case 569/2020.

[14] PMC decision on 16 February 2023 in case PMÄ 17109-22.

[15] SCA decision on 1 December 2022 in case 121/2021.

[16] The second company reported the violation to the SCA and subsequently received an exemption from the fine.

[17] PMC decision on 17 April 2023 in case PMÄ 19173-22.

[18] SCA decision on 14 December 2020 in case 713/2020.

[19] The Patent and Market Court of Appeal constitutes the second instance of appeal for the SCA’s decision.

[20] PMCA decision on 6 October 2022 in case PMT 13071-21.

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