Concentrations between undertakings
The merger control provisions are contained in the Swedish Competition Act (2008:579).
Definition of a Concentration
A concentration within the meaning of the Competition Act arises when
- two or more previously independent undertakings merge, or
- either one or more persons, already controlling at least one undertaking, or one or more undertakings acquire whether by purchase of securities or assets, by contract or by any other means, direct or indirect control of the whole or parts of one or more undertakings.
Also the creation of a joint venture which on a lasting basis fulfils all the functions of an autonomous economic entity constitutes a concentration within the meaning of point 2.
Obligation to notify a Concentration
A concentration shall be notified to the Swedish Competition Authority if:
- the combined aggregate turnover in Sweden of the undertakings concerned in the preceding financial year exceeds SEK 1 billion and
- at least two of the undertakings concerned had a turnover in Sweden the preceding financial year which exceeds SEK 200 million for each of the undertakings.
A concentration should be notified by the merging parties or the party or parties acquiring control.
If the turnover requirement according to point 1 is fulfilled, but the turnover does not exceed what is laid down in point 2, the Swedish Competition Authority may in a particular case require a party to a concentration to notify the concentration where particular grounds exist for doing so. A party and other participants in a concentration always have the right to voluntarily notify a concentration, where the turnover requirement as laid down in point 1 is fulfilled.
The undertakings concerned are normally the merging undertakings or undertakings acquiring control and the undertaking over which control is being acquired.
From the date of receipt of a complete notification, the Competition Authority has 25 working days in which either to make a decision that there are no grounds for action or that it shall initiate a special investigation. That period shall be increased to 35 working days where an undertaking concerned offter committments. During this 25/35 days no action may be taken to put the concentration into effect. The Competition Authority may in exceptional cases grant an exemption from the prohibition. After a decision to carry out a special investigation, the Competition Authority has a further three months in which to take legal actions before the Stockholm City Court against the concentration. The three-month period may be extended by the Stockholm City Court providing the notifying parties agree to it or there are special reasons for doing so.
Intervention against a Concentration
A concentration that must be notified or has been voluntarily notified can be prohibited if the concentration is liable to significantly impede the existence or development of effective competition in the country as a whole, or a substantial part thereof and if a prohibition can be issued without significantly setting aside national security or essential supply interests. The competition test corresponds to the SIEC test of the EC Merge Regulation.
If it is sufficient to eliminate the adverse effects of a concentration, a party to a concentration, instead of being subject to a prohibition, may instead be required:
- to divest an undertaking, or a part of an undertaking, or
- to take some other measure having a favourable effect on competition.
Undertakings may also voluntarily make commitments to the Competition Authority and the commitment may be made subject to a penalty of a fine.
To the extent that the creation of a joint venture, which constitutues a concentration has the aim or effect of co-ordinating of the competitive behaviour of the undertakings which remain independent, such co-ordination shall be appraised in accordance with the criteria of chapter 2 articles 1 and 2 of the Competition Act.
Guidance regarding the concept of a concentration, joint ventures, the concept of undertakings concerned and calculation of turnover etc. is found in the European Commission's interpretative notices.