SWEDEN Law and Practice Contributed by: Marcus Glader, Sebastian Örndahl, Noelia Martinez and Dagne Sabockis, Vinge
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 control at least one under - taking, or one or several undertakings, through the acquisition of securities or assets, by agree - ment 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 concentration 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 Swed - ish merger regime mirrors the definition in the EUMR. Control is constituted by rights, con - tracts, or any other means that, either separately or in combination, confer the possibility of exer - cising 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 direc - tors, or (iii) having the right to veto its strategic decisions. The acquisition of shares or assets, and share - holders’ agreements established in connec - tion therewith, are the most important means
of achieving control. However, control can also be achieved through other contractual arrange - ments (eg, via veto rights in a financing agree - ment), or if a minority shareholder is granted rights in the articles of association or sharehold - ers’ 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 jurisdic - tional 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 fac - tual 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 control. If an undertaking alone has the authority to make decisions about another undertaking’s strategic business decisions, or the power to veto such decisions, it has sole control over that undertaking. Joint control exists if two undertak - ings must reach an agreement on strategic deci - sions regarding a joint venture and thereby both have the ability to veto such decisions. Both the acquisitions of 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, determination of the undertaking’s
544 CHAMBERS.COM
Powered by FlippingBook