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Select Topics
Relevant legislation and authorities
show/hide chapter
  1. Is a merger control regulation in force?
  1. Which authorities enforce the merger control regulation?
  1. Relevant regulations and guidelines with links:
  1. Does general competition regulation apply to mergers or ancillary restrictions?
  1. May an authority order a split-up of a business irrespective of a merger?
  1. Other authorities that also require merger filing or may prohibit transaction
    (Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)
  1. Are any parts of the territory exempted or covered by particular regulation?
Voluntary or mandatory filing
show/hide chapter
  1. Is merger filing mandatory or voluntary?
Types of transactions to file – what constitutes a merger
show/hide chapter
  1. Is there a general definition of transactions subject to merger control?
  1. Is "change of control" of a business required?
  1. How is "control" defined?
  1. Acquisition of a minority interest
  1. Joint ventures/joint control – which transactions constitute mergers?
Thresholds that decide whether a merger notification must be filed
show/hide chapter
  1. Which thresholds decide whether a merger notification must be filed?
  1. Special thresholds for particular businesses
  1. Rules on calculation and geographical allocation of turnover
  1. Special rules on calculation of turnover for particular businesses
  1. Series of transactions that must be treated as one transaction
Exempted transactions and industries (no merger control even if thresholds ARE met)
show/hide chapter
  1. Temporary change of control
  1. Special industries, owners or types of transactions
  1. Transactions involving only foreign businesses (foreign-to-foreign)
  1. No overlap of activities of the parties
  1. Other exemptions from notification duty even if thresholds ARE met?
Merger control even if thresholds are NOT met
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  1. May a merging party file voluntarily even if the thresholds are not exceeded?
  1. May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?
Referral to and from other authorities
show/hide chapter
  1. Referral within the jurisdiction
  1. Referral from another jurisdiction
  1. Referral to another jurisdiction
  1. May the merging parties request or oppose a referral decision?
Filing requirements and fees
show/hide chapter
  1. Stage of transaction when notification must be filed
  1. Pre-notification consultations
  1. Special rules for acquisitions on stock exchanges and public takeover bids
  1. Forms available for completing a notification
  1. Languages that may be applied in notifications and communication
  1. Documents that must be supplied with notification
  1. Filing fees
Implementation of merger before approval – "gun jumping" and "carve out"
show/hide chapter
  1. Is implementation of the merger before approval prohibited?
  1. May the parties get permission to implement before approval?
  1. Due diligence and other preparatory steps
  1. Veto rights before closing and “Ordinary course of business” clauses
  1. Implementation outside the jurisdiction before approval – "Carve out"
  1. Consequences of implementing without approval/permission
The process – phases and deadlines
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  1. Phases and deadlines
Assessment and remedies/decisions
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  1. Tests or criteria applied when a merger is assessed
  1. May any non-competition issues be considered?
  1. Special tests or criteria applicable for joint ventures
  1. Decisions and remedies/commitments available
Publicity and access to the file
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  1. How and when will details about the merger be published?
  1. Access to the file for the merging parties and third parties
Judicial review
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  1. Who can appeal and what may be appealed?

 
SWEDEN

Erik Söderlind
Partner, Lawyer

erik.soderlind@kastelladvokatbyra.se

Tel: +46 (0)70 326 66 42

Pamela Hansson
Partner, Lawyer

pamela.hansson@kastelladvokatbyra.se

Tel: +46 (0)70 388 00 28

Jennie Bark-Jones
Counsel, Solicitor of England and Wales

jennie.barkjones@kastelladvokatbyra.se

Tel: +46 (0)70 640 37 76

Christina Mailund
Partner, Lawyer

christina.mailund@kastelladvokatbyra.se

Tel: +46 (0)70 353 37 76

New regulation proposed

On 13 February 2020, an amendment of the Swedish Competition Act was proposed as part of the implementation of the Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market. The proposal includes giving the Swedish Competition Authority the power to determine fines in cartel cases and to order a split-up of a business irrespective of a merger. The amendment is expected to be implemented in 2021.

Relevant legislation and authorities

1) Is a merger control regulation in force?

Yes. The rules currently applicable are contained in the Swedish Competition Act (2008:579). The Competition Act has been amended several times since it first came into force.  

2) Which authorities enforce the merger control regulation?

The Swedish Competition Authority enforces the Swedish Competition Act, including the merger regulation contained therein. The Swedish Competition Authority reviews notifications of mergers. Until 2018, the Swedish Competition Authority was unable to block mergers without requesting a motion for the court to issue a prohibition decision. Since 1 January 2018, however, the Authority has been empowered to clear mergers, either unconditionally or subject to remedies, or to prohibit them. 

Decisions of the Swedish Competition Authority may be appealed to the Patent and Market Court. Decisions of the Patent and Market Court can be appealed to the Patent and Market Court of Appeal. 

3) Relevant regulations and guidelines with links:

The merger regulation is contained in the Swedish Competition Act. More detailed rules may be found in the ordinance KKVFS 2010:3. For guidance on the fundamental concepts of ‘concentrations’, ‘joint ventures’, ‘undertakings concerned’ and ‘turnover’, the Swedish Competition Authority refers to the European Commission’s interpretative notice. Links to the relevant legislation, guidelines and forms are listed here:

Original Swedish version

Unofficial English translation

Konkurrenslagen

The Swedish Competition Act

Konkurrensverkets föreskrifter om anmälan om företagskoncentration enligt konkurrenslagen

The Swedish Competition Authority’s Regulations on the Notification of Concentrations between Undertakings under the Swedish Competition Act (2008:579)

 

Konkurrensverkets vägledning för anmälan och prövning av företagskoncentrationer

Guidance from the Swedish Competition Authority for the notification and examination of concentrations between undertakings

Konkurrensverkets Befogenheter Proposed powers of the Swedish Competition Authority (not available in English)

4) Does general competition regulation apply to mergers or ancillary restrictions?

Swedish competition law is interpreted in accordance with EU competition law in this respect (as in many other competition regulation matters).

Generally, restrictions of competition that are ancillary to the merger, for instance a standard non-compete obligation on the seller, are considered inherent parts of the merger and are not subject to separate scrutiny under the general competition regulation. However, restrictions that go beyond what may be considered ancillary may be caught by the general prohibition on anti-competitive agreements.

The general competition regulation may in special circumstances be used to oppose a transaction as such (not merely a specific restriction in the transaction documents). For instance, the general prohibition on anti-competitive agreements may be applied to full-function joint ventures that have coordination of the market behaviour of the parent companies as their object or effect. These scenarios are probably only of interest if the transaction does not meet the thresholds for merger filing.

5) May an authority order a split-up of a business irrespective of a merger?

No. 

There is a proposal to change this as part of the implementation of the Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market. The implementation is expected in 2021.

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

Generally speaking, licences are not required to conduct business locally in Sweden. However, certain exceptions apply to specific sectors of the economy, including insurancebanking/financial services and broadcasting; although operators which have been approved by other EU/European Economic Area member states in these sectors may, in certain circumstances, benefit from mutual recognition of their foreign licences. 

If a Swedish licence is required, the regulatory agency may have to take competition policy into account. Under the Radio and Television Act, for example, an acquisition of a licence to broadcast television may not be approved by the Broadcasting Authority if the transfer would increase the concentration of ownership of those with licences to broadcast television by more than a limited extent. Sector-specific legislation must therefore be taken into account when considering the competition issues that may arise in connection with a merger. 

7) Are any parts of the territory exempted or covered by particular regulation?

No.

Voluntary or mandatory filing

8) Is merger filing mandatory or voluntary?

Merger filing is mandatory, provided the thresholds are met. However, as noted in topic 14, the parties can choose to submit a filing where the first threshold (parties have combined annual turnover in Sweden of at least SEK 1 billion) is met but the second (each of at least two parties have annual turnover in Sweden of at least SEK 200 million) is not. This option is worth considering carefully in cases where substantive competition issues are likely to arise as a result of the merger. 

Types of transactions to file – what constitutes a merger

9) Is there a general definition of transactions subject to merger control?

Yes, according to the Swedish Competition Act a transaction subject to merger control is defined as a transaction whereby:

  1. two or more previously independent undertakings merge;
  2. either one or more persons, already controlling at least one undertaking, or one or more undertakings acquire, 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; or
  3. a joint venture which on a lasting basis fulfils all the functions of an autonomous economic entity is created.

Note that certain transactions of a temporary nature are not considered to be mergers subject to merger control (see topics 19 and 20).

10) Is "change of control" of a business required?

Yes, generally a merger will only be considered to take place if the transaction results in a change of control over a business.

However, transactions that result in the establishment of a new business (a joint venture) controlled by two or more businesses or persons already controlling one or more businesses will also constitute a merger.

11) How is “control” defined?

Under the Swedish Competition Act, control means the possibility of exerting decisive influence over an undertaking. Control normally exists when a party is able to exercise more than half of the voting rights in an undertaking. Control may also exist in the case of a minority stake, if this stake constitutes by far the largest shareholding. In addition, control may exist due to contractual ties, joint senior management functions, a significant influence on senior management or financial ties. Control can also be exercised through the possibility of blocking strategic decisions; i.e. having a right of veto.

"Control" and "Change of control" is interpreted according to EU competition law, including the EU Commission’s Consolidated Jurisdictional Notice.

12) Acquisition of a minority interest

Acquisition of a minority interest that does not result in anyone gaining control over a business is not subject to merger control. 

However, if the acquisition of a minority interest confers de facto control of a business, the transaction will be subject to merger control. This is, for instance, the case if the buyer acquires veto rights regarding decisions that are essential for the strategic behaviour of the business, or if the remaining shares are spread over a large number of shareholders and the acquired shares de facto confer decisive influence over general meetings on the buyer. The Swedish Competition Authority will interpret these issues in line with EU competition law.

13) Joint ventures/joint control – which transactions constitute mergers?

The following transactions regarding businesses subject to joint control may be subject to merger control if the joint venture is "full function":

  1. Establishment of a joint venture
  2. Change from joint to sole control
  3. Dissolution – provided (part of) the business of the joint venture is transferred to one or more of the businesses controlling the joint venture or a third party
  4. Change in or extension of the activities of a joint venture – provided that further assets, contracts, know-how, rights etc. are transferred to the joint venture to form the basis for the new activities.
  5. Change in participants/owners – for instance if one of the controlling businesses sells its share in a joint venture to another business, or if one of the controlling businesses is acquired by another business. 

Full functionality will be interpreted in accordance with EU competition law. A joint venture that is not “full function”, because it does not, on a lasting basis, perform all the functions of an autonomous economic entity, is not subject to merger control but may be scrutinized under the general prohibition on anti-competitive agreements. Whether a joint venture is considered “full function” or merely “cooperative” depends on the level of the joint venture’s dependence on its parents and to what extent the joint venture has an independent presence in the market.

Even if a joint venture is “full function” and therefore subject to merger control (provided the thresholds are met), the general prohibition on anti-competitive agreements may also be applied if the joint venture has coordination of the market behaviour of the parent companies as its object or effect.

Thresholds that decide whether a merger notification must be filed

14) Which thresholds decide whether a merger notification must be filed?

a) Turnover thresholds

A merger notification must be filed if:

  1. the combined total annual turnover in Sweden of all undertakings involved is at least SEK 1 billion and 
  2. the total annual turnover in Sweden of each of at least two of the undertakings involved is at least SEK 200 million.

A notification may also be submitted voluntarily by the parties, or requested by the SCA, where only the first threshold is met. The SCA has used this mechanism several times.

b) Market share thresholds

N/A

c) Value of transaction thresholds

N/A

d) Assets requirements

N/A

e) Other

N/A

15) Special thresholds for particular businesses

The thresholds stated in topic 14 apply to all transactions.

16) Rules on calculation and geographical allocation of turnover

The Swedish Competition Authority uses the same rules on calculation and geographical allocation of turnover as those contained in the European Commission’s Consolidated Jurisdictional Notice.

Turnover is calculated on the basis of the most recent audited accounts of a financial year of the participating undertakings as well as any undertakings associated with each participating undertaking, including any direct or indirect parent companies, subsidiaries, joint ventures and subsidiaries of parent companies. The turnover a joint venture has with third parties must be divided equally between the controlling owners irrespective of their share in the capital and the actual distribution of profit; i.e., if the shares in a joint venture are divided 60/40 between two participants who exert joint control, half of the turnover of the joint venture must be attributed to each participant.

"Turnover" is the net turnover derived from sale of products and services within the undertaking’s ordinary activities after deduction of (i) value added tax and other taxes directly related to the sales and (ii) any turnover between associated undertakings.

Turnover must be adjusted to take account of any divestments or acquisitions of businesses after the end of the financial year that the turnover calculation is based on.

Generally, turnover from products and services sold to customers who are resident in Sweden at the time of entering into the relevant agreement is considered Swedish turnover. The European Commission’s Consolidated Jurisdictional Notice contains special guidelines that also apply in this respect.

17) Special rules on calculation of turnover for particular businesses

The rules for calculating turnover of for example insurance undertakings and credit institutions are the same as those contained in the European Commission’s Consolidated Jurisdictional Notice. 

18) Series of transactions that must be treated as one transaction

Transactions that are interdependent because they are linked by conditions must be treated as one if control in each transaction is acquired ultimately by the same undertaking(s).

Furthermore, if the same parties enter into different transactions that are not interdependent regarding the sale of different businesses or different parts of a business, all such transactions within a two-year period must be treated as one and the same merger.

See also topic 19 regarding temporary control.

Exempted transactions and industries (no merger control even if thresholds ARE met)

19) Temporary change of control

A merger filing is only required if there is a change of control on a lasting basis.

In accordance with the European Commission’s Consolidated Jurisdictional Notice, change of control may be considered temporary – and therefore not require a merger filing – if a transaction is divided into steps.

For example, where several undertakings jointly acquire control of another undertaking but, according to a pre-existing plan, immediately after completion split the assets of the undertaking between themselves, the temporary joint control will not be subject to merger filing. However, the separation of the assets may require one or several merger filings.

Another example of temporary control is when joint control is established for a limited period before the acquirer obtains sole control, for instance because the seller has agreed on an earn-out payment and the seller retains important veto rights for a limited period. Generally, if the period does not exceed 1 year, only the acquisition of sole control may be subject to merger filing.

20) Special industries, owners or types of transactions

N/A

21) Transactions involving only foreign businesses (foreign-to-foreign)

There is no exemption for foreign-to-foreign transactions. All transactions that meet the thresholds are subject to merger control regardless of where the undertakings concerned are registered, operate or own assets.

22) No overlap of activities of the parties

There is no exemption for transactions with no overlap of activities.

23) Other exemptions from notification duty even if thresholds ARE met?

As a consequence of the EU "one-stop shop" principle, the Swedish merger control rules do not apply if the thresholds for EU merger control are exceeded and the European Commission has not referred the merger to the Swedish Competition Authority.

Merger control even if thresholds are NOT met

24) May a merging party file voluntarily even if the thresholds are not exceeded?

Yes. If only the first threshold is met (i.e. the turnover of all undertakings involved exceeds SEK 1 billion), the parties may file voluntarily. 

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

Yes. If only the first threshold is met (i.e. the turnover of all undertakings involved exceeds SEK 1 billion), the Swedish Competition Authority may request that the parties submit a notification and will investigate and can ultimately block the transaction. In recent years, the Swedish Competition Authority has used its discretion to request a filing on several occasions.

Referral to and from other authorities

26) Referral within the jurisdiction

N/A

27) Referral from another jurisdiction

The Swedish Competition Authority cannot handle mergers based on referrals from other jurisdictions, except referrals from the European Commission.

The European Commission may refer a merger or a part of a merger to the Swedish Competition Authority. In that case, the Swedish Competition Authority may handle the merger even if the thresholds for merger notification in Sweden are not exceeded. In the case of a partial referral, the European Commission will handle certain (international) aspects of the merger, whereas the Swedish Competition Authority will handle the strictly Swedish aspects.

A referral of a merger from the European Commission may be requested either by the Swedish Competition Authority or by the merging parties.

28) Referral to another jurisdiction

If the thresholds for merger notification are met in at least three EU member states, the parties may request permission to submit a single merger notification to the European Commission, instead of notifications to each of the relevant national authorities (see topic 29).

The Swedish Competition Authority may also request the European Commission to examine a merger that does not have an EU dimension within the meaning of Article 1 of the EU Merger Regulation (No. 139/2004) but which affects trade between EU member states and threatens to significantly affect competition in Sweden. Such a request shall be made within 15 working days of the date on which the merger was notified to the Swedish Competition Authority. The European Commission shall immediately notify the other EU member states of the request and will decide whether to examine the merger within 25 days after this notification.

Other than referral to the European Commission, a merger cannot be referred to competition authorities in other jurisdictions.

29) May the merging parties request or oppose a referral decision?

Referral to the Swedish Competition Authority:
If a merger is subject to EU merger control, the parties may – prior to an EU merger notification – request that the merger is referred to the Swedish Competition Authority, provided that the merger may significantly affect competition in a distinct market in Sweden. If the Swedish Competition Authority does not oppose such referral, the European Commission may decide to refer the merger in whole or in part.

The European Commission must decide whether to refer a merger within 25 working days of receipt of the request (reasoned submission).

The European Commission may also, on its own initiative or upon request from the Swedish Competition Authority, decide to refer a merger that has already been notified to the European Commission to the Swedish Competition Authority. Such a referral decision must be taken within 65 working days after the merger notification has been filed. The merging parties cannot oppose such a referral decision.

Referral from the Swedish Competition Authority:
If a merger is not subject to EU merger control but is subject to merger control in Sweden and at least two other EU member states, the parties may request that a single merger notification is made to the European Commission in place of notifications to each of the relevant national authorities. If none of the relevant authorities oppose the referral, the European Commission will handle the merger notification and no notifications are needed in Sweden or any other EU member state. If any of the national authorities in question oppose the referral within 15 working days, the merger must be notified to each of the relevant national authorities.

Filing requirements and fees

30) Stage of transaction when notification must be filed

There is no specific deadline for when a notification must be filed, but the transaction may not be implemented before the merger has been approved by the Swedish Competition Authority.

The Swedish Competition Authority will agree to handle a notification before a binding agreement has been concluded or a public takeover bid has been announced if the parties can demonstrate a good faith intention to conclude an agreement or – in case of a public takeover bid – if the parties have publicly announced an intention to make such a bid.

31) Pre-notification consultations

The Swedish Competition Authority encourages pre-notification consultations, particularly for complex transactions. If the merger is likely to give rise to competition issues, it is advisable to engage in pre-notification discussions at an early stage, but if the merger is straightforward, this is normally not necessary.

The deadlines for the Swedish Competition Authority will only start to run from the formal submission.

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

Mergers that are a consequence of the acquisition of securities on a stock exchange or a public takeover bid must be notified after the acquisition/publication of the takeover bid. 

The acquisition/takeover bid may be implemented before approval from the Swedish Competition Authority has been obtained, provided that the merger is immediately notified to the Authority and that the acquirer does not exercise the voting rights attached to the securities in question or only does so on the basis of an exemption granted by the Authority.

Please also note that special regulations apply for handling of acquisitions on stock exchanges and public takeover bids, including a requirement for approval of offer documents from the Swedish Financial Supervisory Authority prior to being made available to the public. 

33) Forms available for completing a notification

There is no specific form for notifications to be submitted to the Swedish Competition Authority, but notifications must address a set of fixed questions (unless a waiver is obtained). The Authority has published an English version of the list of information and documents which must be provided, which is included in the Regulations on the Notification of Concentrations between Undertakings under the Swedish Competition Act (2008:579). The list essentially mirrors the information that must be provided in Form CO for notifications under the EU Merger Regulation.

34) Languages that may be applied in notifications and communication

Swedish.

35) Documents that must be supplied with notification

The following documents should always be supplied with a merger notification:

  1. the most recent audited annual financial statements and annual reports for each of the parties to the merger.
  2. documentation regarding any undertakings that have been sold or acquired after the conclusion of the most recent financial year;
  3. all documents concerning the merger, regardless of whether the merger is brought about by agreement between the parties to the merger, acquisition of a controlling interest or a public takeover bid;
  4. summary of the merger, i.e. a description of the transaction(s) involved and markets affected, to be published by the Swedish Competition Authority; and
  5. non-confidential version of the notification (to be supplied to third parties).

If the merger gives rise to affected markets, a range of further documents will be required, including analyses, reports, minutes of board meetings and similar documents related to the merger.

36) Filing fees

There is no filing fee.

Implementation of merger before approval – “gun jumping” and “carve out”

37) Is implementation of the merger before approval prohibited?

Yes. The merging businesses must be run separately and independently until the merger has been approved. However, normal preparatory reversible steps are not prohibited (see topic 39).

Please also see topic 32 regarding public takeover bids and acquisitions on stock exchanges.

38) May the parties get permission to implement before approval?

No. 

39) Due diligence and other preparatory steps

Due diligence must be conducted in a way that prevents sensitive market information from being used for purposes other than assessing the viability of the merger.

An explicit exemption is not required for standard due diligence and other preparation measures without effect on the market. 

40) Veto rights before closing and "Ordinary course of business" clauses

An "ordinary course of business" clause that prevents the target company from taking decisions outside the course of its ordinary business until the closing date is generally considered acceptable.

However, it must be assessed on a case-by-case basis to what extent the parties may discuss – or provide each other with veto rights concerning – any decisions in their respective businesses.

41) Implementation outside the jurisdiction before approval – "Carve out"

There are no specific rules on “carve out” of the Swedish part of a transaction to avoid delaying implementation in the rest of the world pending approval in Sweden.

It must be assessed on a case-by-case basis whether it is possible to carve out the Swedish part of a transaction. 

42) Consequences of implementing without approval/permission

There are no automatic sanctions for implementing a transaction prior to obtaining clearance. However, the Swedish Competition Authority has the power to order the parties to respect the suspension requirement, subject to a fine.  

If the merger is ultimately prohibited, the Swedish Competition Authority may decide to split up the merged entity or take any other measures necessary to restore efficient competition.

The process – phases and deadlines

43) Phases and deadlines

Phase

Duration/deadline

Pre-notification phase:

There are no formal rules on pre-notification consultations, but it is normally advisable to inform the Swedish Competition Authority of the intended transaction at an early stage and to enter into pre-notification consultations that will include submitting one or more draft notifications. In unproblematic cases the authority will often be ready to approve the merger very shortly after receiving the formal notification, if there have been extensive pre-notification consultations.

No set duration or deadline

Phase I:

The merger is either approved (with commitments if relevant) or it is decided to initiate a phase II investigation of the merger.

In practice the Swedish Competition Authority may undertake the same types of investigations under phase I and II, and the Authority may also negotiate commitments in both phases. However, complex and/or problematic mergers will often require the longer deadlines applicable in phase II.

25 working days from the date when 
the notification was complete.

Extension:
10 working days if commitments are 
offered by one of the parties.

Phase II:

The merger is either approved, approved with conditions/commitments or prohibited.

Normally, the Swedish Competition Authority will provide the parties with a preliminary statement of concerns after initiating phase II.

The investigation is likely to involve detailed market surveys, economic analysis and possibly negotiation of commitments that may eliminate the concerns that the authority may have regarding anti-competitive effects of the merger.

Three months from the date when the 
phase II investigation was initiated.

Extension:

With the parties’ consent, the Authority may
decide to extend the three month time limit 
in Phase II by a maximum of one month at 
a time. If there are extraordinary reasons, 
the Authority can extend the time limit 
unilaterally.

Assessment and remedies/decisions

44) Tests or criteria applied when a merger is assessed

It is assessed whether the merger will "significantly impede effective competition – in particular due to the creation or strengthening of a dominant position".

A range of factors may be taken into consideration, including efficiencies that may be gained from the merger (efficiency defense) and whether one of the parties is likely to fail as an independent business (failing firm defense).

45) May any non-competition issues be considered?

Public security interests could lead to the clearance of a transaction which causes a significant impediment to effective competition, but this exception has never been applied. 

46) Special tests or criteria applicable for joint ventures

The assessment for joint ventures is the same as for other mergers, but if the joint venture also has coordination between the owners as its object or effect, it will also be assessed whether such coordination is acceptable under the general prohibition against anti-competitive agreements.

47) Decisions and remedies/commitments available

A merger may be approved, approved with conditions/commitments or prohibited.

If the Swedish Competition Authority expresses serious concerns about the merger, it is important that the parties enter into negotiations of possible commitments well before the expiry of the deadlines, as the authority will normally only consider an approval with conditions if the parties have offered commitments.

Commitments may take any form and they can be either structural or behavioural and with or without time limitations.

The Authority may revoke an approval if at any time it becomes aware that incorrect or misleading information has been provided by the parties or if the parties do not comply with the conditions/commitments contained in the approval.

If a merger has been implemented without approval, the Swedish Competition Authority may prohibit the merger and order a separation of the businesses or any other measure capable of restoring competition.

Publicity and access to the file

48) How and when will details about the merger be published?

The Swedish Competition Authority will publish the fact that it has received a merger notification and will publish the notifying party’s summary of the merger. Similarly, the Authority will publish the fact that it has taken a decision on its website and will include a non-confidential version of the decision. The level of detail of decisions varies considerably.

To protect business secrets, the parties are requested to provide a non-confidential description of the transaction with the notification and to identify any confidential information in the notification and the final decision. Confidential information is treated in an unusual way in Sweden. There is a constitutional right of public access to official documents and there are therefore detailed rules which place limits on this fundamental principle. As a result, information provided by parties in their pre-notification communications with the Competition Authority is covered by absolute secrecy, but information submitted thereafter is treated as confidential only if divulging the information to a third party would cause damage to the party concerned. 

49) Access to the file for the merging parties and third parties

The merging parties:

The merging parties have a right to access to the file, which includes correspondence with third parties that the Swedish Competition Authority may have had, including market survey questionnaires as well as an overview of all documents/correspondence in the file. However, if, with respect to a general or individual interest, it is of particular importance not to disclose to the parties information contained in the materials which is subject to secrecy, the Authority may provide information about the materials in some other way to the extent required for the parties to be able to exercise their rights, and provided that this can take place without serious damage to the interests that the secrecy is protecting. The Authority may, for example, allow the parties’ counsel to access information subject to secrecy through a data room procedure. If this procedure is used, some of the information from the case file is made available in a room on the Authority’s premises, which only a closed circle of persons can access. This is particularly appropriate in cases where the Authority has used quantitative data for statistical and economic analyses in the investigation. 

To protect information subject to secrecy, the Authority may also impose reservations on the parties’ or their counsels’ access to the information, to limit the recipient’s right to forward or utilise the information. Such reservations may refer to, for example, the persons who may access the information, the way in which the information is to be stored, what the information may be used for and what will happen to the information once the case is closed. A reservation does not prevent the parties from utilizing the information within the framework of the merger review.

Third parties:

Third parties do not have automatic access to the file, but the Swedish Competition and Consumer Authority may decide to provide third parties with a non-confidential version of the notification and other documents in connection with its market surveys. 

In addition, under Ch 6 art 4 of the Public Access to Information and Secrecy Act (2009:400), a public authority must, upon request by an individual, provide information contained in a public document held by the authority, unless the information is confidential or would impede the work being properly performed. This means that, in practice, any third party is able to obtain information submitted in the context of a merger review, subject to confidentiality. 

Judicial review

50) Who can appeal and what may be appealed?

The merging parties can appeal prohibition decisions by the Swedish Competition Authority to the Patent and Market Court. The decision of the Patent and Market Court can be appealed to the Patent and Market Court of Appeal, provided leave to appeal is granted. 

Third parties may not appeal any decisions under the merger control regulations.


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