SWEDEN Law and Practice Contributed by: Helena Selander, Pontus Scherp and Fredrik Norburg, Norburg & Scherp
the infringement again. As noted above, decisions of competition authorities in other EU member states are not binding but constitute prima facie evidence of an infringement. As regards causation, the assessment is based on whether it is more likely than not that the harm was caused by the infringement, compared with the hypo - thetical situation in which the infringement had not occurred. The evidentiary requirements concerning the quan - tification of harm may be relaxed where establishing the precise amount of the loss would be particularly difficult. Under Chapter 35, Section 5 of the Swed - ish Code of Judicial Procedure, the court may esti - mate the amount of damages at a reasonable amount where full proof cannot, or can only with difficulty, be presented. The court may also make such an esti - mate where the costs or inconvenience associated with producing the evidence would be disproportion - ate to the amount of the damage and the compensa - tion claimed. 2.5 Pass-On Defence A pass-on defence is recognised under Swedish law. A defendant may therefore argue that the claimant has mitigated or avoided some or all of its loss by pass - ing on an overcharge to its customers. The burden of establishing that such passing-on occurred rests with the defendant. The Competition Damages Act also contains a pre - sumption concerning claims brought by indirect pur - chasers or suppliers. Unless otherwise demonstrated, an overcharge or undercharge is presumed to have been passed on where the competition law infringe - ment resulted in an overcharge being imposed on the direct purchaser or an undercharge being imposed on the direct supplier. 3. Limitation Periods and the Duration of Litigation 3.1 Statute of Limitations Under the Competition Damages Act, which entered into force on 27 December 2016, the limitation period
for an antitrust damages claim is five years. The peri - od does not begin to run until the infringement has ceased and the claimant knows, or can reasonably be expected to know, of the conduct constituting the infringement, the fact that the infringement caused harm and the identity of the infringer. The involvement of a competition authority affects the limitation period. Where a competition authority takes action in respect of the infringement to which the damages claim relates, the limitation period is interrupted. A new five-year limitation period begins to run once the authority’s infringement decision has become final or the authority has otherwise concluded its proceedings. The limitation rules applicable to claims relating to periods before the Competition Damages Act entered into force must also be considered in light of the case law of the Court of Justice of the European Union. In Volvo and DAF Trucks (C-267/20) and Heureka (C-605/21), the Court clarified that national limitation rules must not make the exercise of the right to seek compensation for infringements of Articles 101 and 102 TFEU practically impossible or excessively dif - ficult. In particular, the limitation period cannot begin to run before the infringement has ceased and the injured party knows, or can reasonably be expected to know, the information necessary to bring a damages action. EU law may also require the limitation period to be suspended during an investigation by the Euro - pean Commission. The Court’s case law further addresses the temporal application of the limitation rules introduced by the Competition Damages Directive. Where the relevant limitation period had not expired by the deadline for transposing the Directive, the Directive’s limitation rules may apply even where the underlying infringe - ment occurred before that date. Accordingly, the interaction between the previous Swedish limitation regime and the Competition Damages Act must be assessed in light of the circumstances of the individual case and the applicable EU law principles.
173 A NTITRUST LI T IGATI O N 2026
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