SWEDEN Law and Practice Contributed by: Marcus Glader, Sebastian Örndahl, Noelia Martinez and Dagne Sabockis, Vinge
posal are discussed between the SCA and the parties in each individual case. The SCA may accept both structural and behavioural remedies – eg, divestments of brands or parts of businesses, licence commit - ments, or commitments to provide access to essen - tial infrastructure. The commitments may be limited in time or have no time limits. See also 5.4 Negotiating Remedies With Authorities and 5.5 Conditions and To be accepted, the remedies must be sufficient to fully eliminate the negative effects caused by the concentration. The parties must also be able to fully implement the remedies. The SCA may not impose any remedies that are more extensive than what is necessary to eliminate the harmful effects on competition – ie, remedies must be proportional to the competition concerns that have been identified. For further guidance the SCA refers to the EC’s Notice on remedies acceptable under the EUMR. Timing for Divestitures . 5.3 Legal Standard 5.4 Negotiating Remedies With Authorities The SCA may on its own motion require that a party to a concentration takes measures to remedy the competition concerns that have been identified. Any commitments proposed by the parties will also be subject to the SCA’s approval, which is more com - mon in practice. The SCA may issue a decision to clear the concen - tration with commitments in both Phase I and Phase II. However, the SCA will only consider commitments during Phase I if the competition concerns are clear and easy to remedy. If the parties propose commit - ments in Phase I, the SCA’s review period is automati - cally extended to 35 business days. The proposed commitments are often market tested by the SCA, see 7.2 Contacting Third Parties . There is no deadline for the parties to propose com - mitments. However, given that the SCA may proceed to Phase II before the entire 25-business-day period in Phase I has lapsed, the SCA encourages the parties to make any commitment proposals in Phase I ahead of the 25-business-day deadline. In Phase II, the parties
should propose commitments at least three weeks before the end of the SCA’s review period. If this dead - line cannot be met, the commitment proposal should also include written consent to extend the review period (see 3.7 Review Process ). 5.5 Conditions and Timing for Divestitures The SCA may accept commitments concerning measures that must be taken both before and after the implementation of the concentration. The precise conditions and timing aspects will normally be dis - cussed between the SCA and the parties in each case. The SCA may clear a concentration subject to com - mitments, enforceable by a fine in the event of non- compliance, that shall not exceed what is necessary to ensure compliance with the SCA’s decision. The SCA may also appoint an independent trustee to supervise compliance with these commitments. For instance, in the recent Strålfors / 21 Grams case, where the SCA accepted the parties’ commitments to put in place functional separation measures, the conditional fines were set at SEK300 million and SEK450 million. 5.6 Issuance of Decisions The SCA’s review ends with a formal decision whereby the SCA either clears the transaction unconditionally, with conditions, or prohibits the transaction. Non- confidential versions of the SCA’s decisions are pub - lished on the SCA’s website. The SCA’s decisions to clear a non-problematic concentration will normally not include any reasoning. Unlike, for instance, the European Commission, the SCA will not declare con - centrations as being compatible with the internal mar - ket but rather state that it will take no action in relation to the concentration (which, in practice, amounts to a clearance). 5.7 Prohibitions and Remedies for Foreign-to- Foreign Transactions All transactions where the Swedish notification thresh - olds are met are treated in the same way. Any decision by the SCA to prohibit a concentration or to clear it with remedies will thus be based on the effects of the concentration in Sweden or a substantial part of it, irrespective of whether the parties are Swedish or foreign undertakings.
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