SWEDEN Law and Practice Contributed by: Marcus Glader, Sebastian Örndahl, Noelia Martinez and Dagne Sabockis, Vinge
8. Appeals and Judicial Review 8.1 Access to Appeal and Judicial Review The SCA’s decisions to prohibit a concentra - tion or a decision to clear a concentration with conditions that are imposed by the SCA may be appealed to the Patent and Market Court. In turn, rulings of the Patent and Market Court may be appealed to the Patent and Market Court of Appeal if the latter grants a leave to appeal. A decision to prohibit a concentration may only be appealed by the buyer, but the seller may be allowed to intervene in the appeal (this was con - firmed in the recent Svensk Dos case). Notably, the SCA’s clearance decisions and its decisions to initiate an in-depth investigation of a concen - tration may not be appealed. 8.2 Typical Timeline for Appeals The SCA’s decision to prohibit a concentration or to clear it with conditions that are imposed by the SCA must be appealed within three weeks from the date of the decision (see 5.6 Issuance of Decisions ). The Patent and Market Court must deliver its ruling within six months from the appeal, which, in turn, may be appealed to the Patent and Market Court of Appeal within three weeks. The Patent and Market Court of Appeal has three months to rule on the case. If the parties consent, or if extraordinary reasons so require, each court may extend the review period by one month at a time. Given that few cases end up in Phase II in Swe - den every year, and that concentrations are rarely prohibited (in particular, since the parties may choose to withdraw the notification before any prohibition decision is issued), court pro - ceedings following the SCA decisions in merger cases are uncommon. However, the case law of
the Swedish courts includes several examples where the SCA’s decisions were overturned, and includes a recent prohibition decision, concern - ing a concentration resulting in the total number of market players being reduced from three to two (in the Svensk Dos case) that was annulled by the Patent and Market Court of Appeal. 8.3 Ability of Third Parties to Appeal Clearance Decisions No decisions by the SCA may be appealed by third parties. Unconditional clearance decisions may not be appealed at all.
9. Foreign Direct Investment/ Subsidies Review
9.1 Legislation and Filing Requirements Under the Swedish FDI Act, certain investments in Swedish entities conducting activities eligible for protection must be notified to the Swedish Inspectorate for Strategic Products (ISP). Noti - fication is mandatory where the buyer or anyone in its ownership structure acquires 10, 20, 30, 50, 65 or 90% of the voting rights in a Swedish undertaking which conducts activities eligible for protection, or gains influence over the manage - ment of such an undertaking by other means. Both direct and indirect influence may trigger the notification obligation. Violations of the duty to notify may lead to administrative fines. The FDI Act covers a wide range of activities, including those related to dual use items, sen - sitive personal or location data, military equip - ment, critical raw materials, strategic technolo - gies, but also certain schools, food businesses, and businesses within the transport or construc - tion sectors.
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