The Swedish Competition Act (2008:579) ("Competition Act") (Sw. Konkurrenslagen (2008:579)) is applicable to all concentrations, including acquisitions, mergers and the creation of full-function joint ventures.

Concentrations within the meaning of the Competition Act arise 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 the 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, or where a joint venture, which on a lasting basis fulfills all the functions of an autonomous economic entity, is created.

The Swedish Competition Authority (“Competition Authority”) (Sw. Konkurrensverket) has translated the Swedish Competition Act (2008:579) and it can be accessed at the Competition Authority’s website, www.konkurrensverket.se.

The Swedish Competition Authority is the administrative authority for competition matters in Sweden and is primarily tasked to enforce the Swedish Competition Act (2008:579) and Articles 101 and 102 of the Treaty on the Functioning of the European Union. The Competition Authority has decision-making powers in matters of merger control and the right to order companies to cease infringements of competition law. Since 1 March 2021, the Competition Authority may also, as first instance authority, decide in matters regarding fines and sanctions for non-compliance with competition law (Sw. konkurrensskadeavgift). The majority of the decisions of the Competition Authority are generally subject to review by the Patent and Market Court (Sw. Patent- och marknadsdomstolen) and the Patent and Market Court of Appeal (Sw. Patent- och marknadsöverdomstolen). The Competition Authority’s decision to clear a notified transaction is however final and cannot be appealed (however see further question 18 regarding clearance decisions based on incorrect or incomplete information).

If the concentration has a Community dimension, as defined in Regulation No 139/2004 (the “EUMR”), the European Commission has exclusive competence to review the concentration.

The Competition Authority has published the Swedish Competition Authority’s Regulations on the Notification of Concentrations between Undertakings under the Swedish Competition Act (2008:579) (the “Regulations”) in which it sets out detailed merger filing requirements. The Regulations contain rules on issues such as which party is obliged to submit a notification (normally the acquiring party or parties), when and to which authority the notification shall be made, the requirements in order for the notification to be considered complete, time limits, professional secrecy, pre-notification contacts and the information to be provided in the notification. A notification can be submitted electronically. If submitted electronically, the notification is considered to be received on the date when the e-mail reaches the Competition Authority. For the notification to be deemed complete, a signed declaration must be submitted in its original within three working days of having submitted the notification by e-mail.

It is possible to apply for and receive informal waivers from the duty to provide certain information. A waiver can be discussed during the pre-notification contacts but may also be requested during the review process. Whether the waiver is granted depends on whether the Competition Authority considers the information to be necessary for the assessment.

The Competition Authority has issued guidance for the notification and examination of concentrations between undertakings (the “Guidance”).

The Regulations and the Guidance are available in English at the Competition Authority’s website, www.konkurrensverket.se.

All transactions that are included in the definition of “concentration” in the Swedish Competition Act (2008:579) are caught by the national rules. There are no exceptions.

The Guidance states that the EUMR is relevant when applying the Competition Act and that guidance with respect to the interpretation of common terms and their application can be obtained from the European Commission’s notices and guidelines. The Competition Authority and the Swedish Courts will, when reviewing any proposed concentration, rely on these and other sources of EU law. For example, the Swedish national equivalents of the terms “concentration”, “control”, “undertakings concerned”, “turnover” and “joint venture” are intended to be interpreted in the same manner in Swedish competition law as in EU competition law.

A concentration arises if there is a lasting change of control of an undertaking, meaning the possibility of exercising a decisive influence over an undertaking. Control normally exists where one party can exercise a majority of the voting rights in an undertaking. Decisive influence can be established both de jure and de facto and it can be found where there are sufficient legal, economic or organizational ties. Decisive influence may also exist where one party has the power to block strategic decisions.

The creation of a joint venture also falls within the purview of the Competition Authority if, as a consequence of the joint venture, two or more parents achieve joint control of an undertaking that performs, on a lasting basis, all the functions of an autonomous economic entity.

Notification of a minority investment is only required if the purchaser acquires control, that is, the right to exercise decisive influence over the undertaking. The Guidance e.g. states that acquiring a minority stake in an undertaking may lead to control if the stake by far constitutes the largest shareholding.

There are no special rules for foreign-to-foreign transactions. All concentrations which meet the relevant thresholds must be notified to the Competition Authority. There is no specific local effects test, but at least two undertakings concerned must have a turnover in Sweden in order to meet the relevant thresholds, see "What are the relevant thresholds for notification?" below.

A concentration must be notified to the Competition Authority if the combined aggregate turnover in Sweden of the undertakings concerned in the preceding financial year exceeded SEK 1 billion and at least two of the undertakings concerned had a turnover in Sweden which, the preceding financial year, exceeded SEK 200 million for each of the undertakings.

If a concentration, however, meets the turnover thresholds in the EUMR, the concentration shall instead be notified to the European Commission.

According to the Guidance, turnover means the turnover for all goods and services. The Guidance further states that the latest adopted annual accounts should be used, even in cases where any of the undertakings concerned have a split financial year and that, for a change of financial year, the turnover may need to be adjusted to refer to a 12-month period. It further states that if the undertakings concerned form part of a group of companies, the group’s aggregate annual turnover shall be used when calculating annual turnover and that if the acquisition relates to part of an undertaking, a corresponding calculation of turnover shall relate to the part acquired.

The term turnover is to be interpreted in a manner consistent with EU competition law and the Guidance explicitly refers to the European Commission’s Consolidated Jurisdictional Notice for further guidance.

The filing is mandatory without exemptions if the thresholds for notification are met. If only the SEK 1 billion threshold is met, but not the SEK 200 million threshold, it is voluntary to notify the concentration. Under such circumstances the Competition Authority may however also order the undertakings concerned to notify the concentration if there are particular grounds (Sw. särskilda skäl) to do so. For more information regarding what may constitute particular grounds, see question 20.

A notification of a concentration between undertakings may be submitted as soon as a party can demonstrate that they intend to implement a concentration. A notification of a concentration of undertakings shall be submitted before the concentration is implemented. Aside from the requirement that the notification of the proposed concentration must be submitted before the implementation, there are no set time limits within which the notification must be submitted. A notification can be submitted based on a letter of intent signed by the parties, an agreement in principle or other similar types of agreements. For public tenders, a published and binding public offer is accepted as a letter of intent. A notification can be submitted as soon as the concentration is concrete enough for the Competition Authority to be able to make an assessment of the concentration.

The time limits for the examination of the concentration start when the Competition Authority considers the notification to be complete. A notification is complete when the information to be provided to the Competition Authority according to the Regulations has been received by the Competition Authority.

Any concentration that meets the thresholds for notification must be notified prior to implementation. Parties are prohibited from taking any steps to complete a notified concentration prior to having obtained approval. The review by the Competition Authority is subject to certain time limits, see "Please provide an overview of the merger review process..." below.

A notification can be submitted or sent to the Competition Authority in paper form or by e-mail. The Competition Authority has issued an ordinance setting out detailed instructions regarding the notification of concentrations (KKVFS 2010:3). The instructions set out a list of questions that have to be addressed in order for the notification to be considered complete (unless a waiver is obtained). The information requested for a notification to the Competition Authority largely corresponds to that of the official form for standard merger notifications (the so-called Form CO) used when notifying concentrations to the European Commission and includes information regarding the parties and their competitors, details regarding the concentration as well as an assessment of the concentration’s impact on the market.

For concentrations below certain market share thresholds (below 20 percent for a horizontal concentration or 30 percent for a non-horizontal concentration) a simplified process applies, and less information is required by the Competition Authority. In such cases, the description of the market and its participants may be much less detailed. For example, it is not required that the parties submit a forecast of the potential growth or decline in demand, information about their plans to introduce new products on the market, to increase their production or sales capacity or to employ subcontractors. Where the market shares are above 20 percent on a horizontal market or 30 percent of a vertical market, the parties must submit detailed information about the demand structure, the possibility of a market entry and the importance of R&D work in the particular market as well as to what extent the parties are carrying out such work.

An English translation of the Regulations can be found on the Competition Authorities’ website, www.konkurrensverket.se.

There are no fees associated with the merger control process.

When a complete notification has been received by the Competition Authority, it has 25 working days (Phase 1) to decide whether to carry out a special investigation (Phase 2) or to take no further action. This time limit is suspended if one or more Member States request that the concentration be referred to the European Commission. Phase 1 can also be prolonged to 35 working days if the Competition Authority has received a proposed commitment from the parties to resolve concerns raised by the Competition Authority against the notified transaction within the 25-day period. If the Competition Authority decides to open a special investigation it has, from the time of the decision to open the investigation, three months to render a decision on the notified transaction.

If the parties do not comply with an order from the Competition Authority, e.g. to submit additional information, it may suspend the time limit until the order is complied with. Should the parties request it, the time limit may be suspended to a date that is decided by the Competition Authority.

The parties may not take any steps to implement the concentration without special permission from the Competition Authority. When the transaction takes place on a regulated market or trading platform and it is not possible to notify the concentration before it is implemented, the Competition Authority is of the opinion that the prohibition on implementation covers all forms of utilization of the rights related to the securities.

A concentration will be prohibited if it significantly impedes the occurrence or development of effective competition within the country as a whole, or a substantial part thereof. The substantive test in Swedish merger control is meant to be applied and interpreted in the same manner as the so-called SIEC test in the EUMR.

The Competition Authority can decide to approve, approve with conditions or prohibit a notified merger.

The parties can offer commitments at any time during the Competition Authority’s investigation.

According to its Guidance, if the Competition Authority believes that a concentration may bring about unacceptable anticompetitive effects, it will normally offer so-called state-of-play meetings on three occasions. First, it will do so within 15-20 working days after the notification has been submitted. This meeting is held if something during the investigation suggests that the Competition Authority may need to decide on a special investigation. Second, a meeting may be held within 10 working days after a decision on a special investigation. The purpose of the meeting is to facilitate the planning of the continued investigation. Third, a state-of-play meeting will also generally be held within 5 working days after the parties’ comments on the draft summons application. The aim of that meeting is to discuss the parties’ comments and any proposals from the parties for commitments that may convince the Competition Authority to take no further action. Once a remedy has been adopted, the Competition Authority can enforce the remedy under the penalty of a fine.

The Competition Authority will normally not suggest any commitments but will offer comments on the commitments suggested by the parties.

There are no direct sanctions for not filing a mandatory notification. However, the Competition Authority can, if the thresholds are met, under penalty of a fine, order the parties to notify a - concentration.

Should the parties file a notification containing incorrect information and the concentration is subsequently approved based on that information, the Competition Authority may decide to open up a special investigation and make a renewed assessment.

If the Competition Authority discovers that the notification is incorrect or incomplete during the course of its investigation it can, under penalty of a fine, order the parties to provide it with additional information. It can also “stop the clock” on the relevant time limit if the order is not followed.

The parties are prohibited from implementing the concentration before obtaining approval. Should the Competition Authority deem it necessary it can prohibit the parties from implementing the concentration under the penalty of a fine.

Should the parties implement a prohibited concentration the concentration risks annulment.

A transaction that constitutes a part of, or has as its aim to carry out, a prohibited concentration, is deemed void. However, if the acquisition took place on a regulated market or trading platform, the purchaser may instead be ordered to divest the assets acquired.

If only the SEK 1 billion threshold, but not the SEK 200 million threshold, is met the Competition Authority can order the undertakings concerned to notify the concentration if there are particular grounds to do so. According to the Guidance, particular grounds include when an already strong undertaking gradually acquires small competitors or when a strong undertaking in a concentrated market acquires a newly established undertaking that possibly could challenge its position. Complaints from, for example, customers and competitors may also constitute ‘particular grounds’ for requesting a notification. If a notification is requested by the Competition Authority (or voluntarily filed by the parties) under these rules the Competition Authority’s review can lead to either approval, an approval with commitments or that the concentration is prohibited.

If the Competition Authority becomes aware of a concentration that has been implemented without a notification it can, under penalty of a fine, order a notification if the requirements set out under the sections "What are the relevant thresholds for notification" and "Can the agency review and/or challenge mergers that are not notifiable?" are met.

The Competition Authority has a continued permissive attitude toward merger control. In 2022, 121 concentrations were notified and of these, only three were the subject of a phase 2 investigation. In 2022, the Competition Authority did not prohibit any concentrations. Parties sometimes choose to abandon the transaction when the Competition Authority expresses concern over its anticompetitive effects and the figures should be read against this background. We are not aware of the Competition Authority having a specific focus or attitude in the area of merger control.

As part of its strategy for 2023–2025, the Competition Authority will have a particular focus on competitive and well-functioning markets in times of crisis. The Competition Authority will therefore give special attention to competition aspects in times of challenges to society, including times of pandemic, rising costs of living and war. As part of this, in July 2023 the Competition Authority published a report (2023:13) regarding mergers in times of crisis. In the report, it is stated that times of crisis are not in itself a reason to look more favorably at acquisitions or mergers that could cause problems from a competition law perspective, however, a crisis may affect various factors that form the basis for the assessment of the future effects of the concentration on competition. As an example, it is mentioned that a merger between two domestic firms may be considered to have greater negative effects on competition than would have been the case before a crisis, if the crisis, for example, makes it more difficult or prevents imports and/or if previous competitive pressure from companies in other countries is weakened, etc. The Competition Authority has stated that it will thus pay extra attention to these factors in its assessment of concentrations.

The Competition Authority has a duty to maintain confidentiality. Absolute secrecy applies to the advice given in pre-notification contacts and covers information relating to purchasers and sellers as well as commercial and operating conditions. Advice is to be understood as all forms of information, consultation and guidance which may arise between an undertaking and the Competition Authority prior to a notification. When a notification has been received by the Competition Authority secrecy still applies albeit in a more diluted version. According to the Guidance, secrecy applies to documents and information about an individual’s commercial and operating conditions, inventions or research results, if it may be assumed that the individual will suffer damage should the information be disclosed.

A summary of the transaction (often written by the submitting party or parties) will be published on the Competition Authority’s website.