SWEDEN Law and Practice Contributed by: Marcus Glader, Sebastian Örndahl, Noelia Martinez and Dagne Sabockis, Vinge
voluntary notification if there are “special reasons” for which the SCA may call in a transaction (see 2.11 Power of Authorities to Investigate a Transaction for further details). 2.2 Failure to Notify Under Swedish merger control rules, there are no penalties for failing to notify a transaction that meets the jurisdictional thresholds. If the SCA learns about a transaction that should have been notified, it may issue an order to file that can be made subject to a conditional fine. Decisions regarding conditional fines are made public. 2.3 Types of Transactions The concentrations caught by the Swedish merger regime are those where the control of an undertaking is changed on a lasting basis as a result of (i) two or more previously independent undertakings merging, or (ii) either one or several persons, who already con - trol at least one undertaking, or one or several under - takings, through the acquisition of securities or assets, by agreement or in any other way, directly or indirectly acquiring control over one or more undertakings or parts thereof. The creation or acquisition of a joint venture that, on a lasting basis, performs all the functions of an autonomous economic entity constitutes a concen - tration of undertakings according to point (ii) above. A full-function joint venture must have management of its day-to-day operations and access to sufficient resources, including financing, staff and assets. The definition of a concentration in the Swedish merg - er regime mirrors the definition in the EUMR. Control is constituted by rights, contracts, or any other means that, either separately or in combination, confer the possibility of exercising decisive influence on an undertaking, by (i) owning more than half of its voting rights, (ii) being able to appoint more than half of its directors, or (iii) having the right to veto its strategic decisions. The acquisition of shares or assets, and sharehold - ers’ agreements established in connection therewith, are the most common means of achieving control. However, control can also be achieved through oth -
er contractual arrangements (eg, via veto rights in a financing agreement), or if a minority shareholder is granted rights in the articles of association or share - holders’ agreements that enable it to veto strategic decisions. Any operations that result in a change of control, irrespective of whether they involve a transfer of shares or assets, are caught by the Swedish merger control regime if the jurisdictional thresholds are met. The assessment of whether control is obtained should be made on a case-by-case basis in light of all legal and factual circumstances. An internal restructuring or reorganisation is not caught by the Swedish regime as long as there is no change of control. 2.4 Definition of “Control” Please see 2.3 Types of Transactions for the definition of concentration and control. The definition of control is the possibility to exercise decisive influence over an undertaking, rather than the actual exercise of such influence. Control may take the form of sole control or joint con - trol. An undertaking has sole control if it alone has the authority to make or veto decisions about another undertaking’s strategic business decisions. Joint con - trol exists if two undertakings must reach an agree - ment on strategic decisions regarding a joint venture and thereby both have the ability to veto such deci - sions. Acquisitions of both sole and joint control are caught by the Swedish merger control regime. Strategic business decisions include, but are not limited to, appointment of members of the board of directors, decisions regarding the budget, determina - tion of the undertaking’s business plan (in which the undertaking’s goals are established and the actions to be taken to achieve these goals are specified) and, in certain circumstances, decisions regarding the under - taking’s investments. Whether a business decision is strategic is ultimately based on whether it concerns essential elements of the undertaking’s operations. Acquisitions of minority interests can be caught, if they result in de jure or de facto control. An example of a minority shareholding conferring de jure control is when there are specific rights attached to the minor -
599 CHAMBERS.COM
Powered by FlippingBook