SWEDEN Law and Practice Contributed by: Marcus Glader, Sebastian Örndahl, Noelia Martinez and Dagne Sabockis, Vinge
6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications A decision by the SCA to clear a concentration will also cover restrictions that are directly related and necessary to the notified concentration (ancillary restraints). Examples of ancillary restraints that may be covered are certain non-compete clauses, licence agreements and purchase and supply obligations. The SCA does not specify in its decisions whether the decision also covers ancillary restraints. Instead, the parties must assess themselves if the ancillary restraints are covered by the SCA’s clearance deci - sion, in line with the European Commission’s Notice on restrictions directly related and necessary to con - centrations. Restrictions that are not ancillary to a concentration may be incompatible with the prohibi - tion on anti-competitive agreements. 7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights Third parties do not have standing as parties in the SCA’s review process and they may not appeal the SCA’s decisions. However, the SCA may contact, among others, competitors and customers during its review, see 7.2 Contacting Third Parties . Upon registering a notification, the SCA will mention that it has received a notification of a concentration on its website, which may be monitored by market players. Market players may also submit their views on the notified concentrations to the SCA. No formal procedure for such submissions exists. Further, mar - ket players may request access to non-confidential documents in the SCA’s file under the Swedish Public Access to Information and Secrecy Act (2009:400), see 7.3 Confidentiality . 7.2 Contacting Third Parties Third parties may be contacted by the SCA during the SCA’s review of a concentration. The SCA typically contacts customers, competitors and/or suppliers of
the parties to a concentration. Other parties that may have relevant input for the review, such as trade asso - ciations or other authorities, may also be contacted. Third-party input may be collected in various ways – eg, through phone calls, written surveys, physical or digital meetings, or interviews. If the concentration does not appear to be problem - atic, the SCA will normally not make any contacts with third parties. Conversely, the SCA’s queries to third parties can be rather detailed in cases where the SCA has identified competition concerns, in par - ticular, in Phase II reviews. The SCA will usually also market test the commitments proposed by the parties to remedy any competition concerns. In these cases, the SCA will often send a non-confidential version of the proposed commitments along with any additional questions to the relevant third parties, see also 5.4 Negotiating Remedies With Authorities . 7.3 Confidentiality Upon registering a notification, the SCA publishes information about the notified concentration on its website, along with a summary of the concentration prepared by the parties. Any pre-notification contacts are subject to absolute secrecy under the Swedish Public Access to Infor - mation and Secrecy Act (2009:400). This includes the identity of the parties. Once a notification has been made, the SCA will main - tain confidentiality with respect to information con - cerning the commercial or operational conditions, as well as inventions and research results of undertak - ings, where it can be assumed that a disclosure of the information would cause damage to the undertaking concerned. The SCA also asks for non-confidential versions of concentration notifications and reasoned confidential - ity claims to be submitted along with the notification. The SCA assesses confidentiality on a case-by-case basis and normally respects reasonable confidentiality claims by the parties.
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