SWEDEN Law and Practice Contributed by: Helena Selander, Pontus Scherp and Fredrik Norburg, Norburg & Scherp
Under the Competition Damages Act, any natural or legal person that has suffered harm as a result of an infringement of Article 101 or 102 TFEU, or the cor - responding provisions of Swedish competition law, may seek compensation for that harm. Claims may be brought either as follow-on actions, based on a prior infringement decision, or as standalone actions, where the claimant must establish the underlying competition law infringement. Liability for damages requires the infringement to have been committed intentionally or negligently. The threshold for establishing fault is relatively low. In practice, an infringer may generally escape liability on this basis only where the infringement resulted from an excusable error. Swedish competition law also provides for certain private enforcement actions seeking injunctive relief. Where the Swedish Competition Authority has decid - ed not to pursue an alleged infringement, an under - taking affected by the conduct may, under Chapter 3, Section 2 of the Swedish Competition Act, bring an action before the court seeking an order requiring the infringement to cease. This right of action does not apply where the Swedish Competition Authority has applied Article 13 of Council Regulation (EC) No 1/2003. 2.2 Courts Competition law cases in Sweden fall within the exclu - sive jurisdiction of the specialised Patent and Market Courts, which hear cases concerning competition law, intellectual property and market law. At first instance, cases are heard by the Patent and Market Court, which forms part of the Stockholm District Court. Depending on the nature of the case, the composition of the court generally includes two or three legally qualified judges together with two or three economic experts. Decisions and judgments of the Patent and Market Court may be appealed to the Patent and Market Court of Appeal, subject to leave to appeal being granted. Judgments of the Patent and Market Court of Appeal cannot be appealed unless the Patent and
Market Court of Appeal allows an appeal and the Swedish Supreme Court grants leave to appeal. 2.3 Impact of Competition Authorities Final infringement decisions of the Swedish Com - petition Authority are binding on Swedish courts in subsequent actions for damages. The same applies to infringement decisions adopted by the European Commission. By contrast, infringement decisions issued by com - petition authorities in other EU member states do not have binding effect in Swedish civil proceedings. Such decisions may nevertheless be relied upon as prima facie evidence that an infringement of competition law has occurred. The Swedish Competition Authority is not a party to private antitrust damages proceedings. Its decisions may, however, have an important bearing on such pro - ceedings, in particular in follow-on actions where a final infringement decision establishes the existence of the relevant competition law infringement 2.4 Proof As a general rule, the claimant bears the burden of proof in an antitrust damages action. The claimant must therefore establish: • the existence of a competition law infringement; • that the infringement was committed intentionally or negligently; • that it resulted in harm; and • the amount of the loss suffered. There are, however, important exceptions and pre - sumptions. In particular, cartel infringements are pre - sumed to cause harm. Accordingly, in a damages action arising from a cartel, the claimant does not have to establish that the infringement caused harm, although the defendant may rebut the presumption. A final infringement decision by the Swedish Competi - tion Authority is binding on the court in a subsequent damages action. The same applies to infringement decisions of the European Commission. Consequent - ly, where such a decision establishes the relevant infringement, the claimant is not required to prove
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