SWEDEN Law and Practice Contributed by: Marcus Glader, Sebastian Örndahl, Noelia Martinez and Dagne Sabockis, Vinge
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 published 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 concentrations as being compatible with the internal market 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 thresholds are met are treated in the same way. Any decision by the SCA to prohibit a concen - tration 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. 6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications A decision by the SCA to clear a concentra - tion will also cover restrictions that are directly related and necessary to the notified concen - tration (ancillary restraints). Examples of ancil - lary 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 wheth - er the decision also covers ancillary restraints.
Instead, the parties must assess if the ancillary restraints are covered by the SCA’s clearance decision themselves, in line with the European Commission’s Notice on restrictions direct - ly related and necessary to concentrations. Restrictions that are not ancillary to a concen - tration may be incompatible with the prohibition 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 Contact- ing 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 con - centrations to the SCA. No formal procedure for such submissions exists. Further, market players may request access to non-confidential documents in the SCA’s file under the Swedish Public Access to Information and Secrecy Act Third parties may be contacted by the SCA dur - ing 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 associations or other authorities, may also be contacted. (2009:400), see 7.3 Confidentiality . 7.2 Contacting Third Parties
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