Category Archives: Private Enforcement

2016: This happened in the Nordics

Here’s our roundup of the most interesting competition law developments in the Nordic countries in 2016.

Mergers

  • Non-compete clause. The Stockholm District Court found against the Swedish Competition Authority that a non-compete clause lasting five years did not constitute an infringement of competition rules by object, and was further unable to identify anti-competitive effects. As a result, the Court refused to impose the fines of around EUR 5 million that the SCA had requested. The Patent and Market Court will hear the authority’s appeal in September 2017.
  • Read more

    Mind the Gap: Another Hurdle for Damages Claims in the EEA?

    Guest post by Elisabeth Lian Haugsdal

    Photo: Kevin George/Shutterstock

    We are delighted to publish a post written by Elisabeth Lian Haugsdal. Elisabeth currently works as a Legal Officer at EFTA in Brussels and is one of the true experts on the peculiarities of the EEA Agreement, the agreement that extends the effect of most EU legislation to include Norway and the other EFTA countries (except Switzerland). As always, the views expressed on this blog are personal and covered by the disclaimer. Read more

    HELSINKI COURT OF APPEAL REJECTS DAMAGES CLAIMS AGAINST SUCCESSORS

    A street, motor-way, landscape, sky

    Photo: Shutterstock

    Liability based on the concepts of a single economic entity or economic succession is well-establish in competition law. The Helsinki Court of Appeal’s judgments in the asphalt cartel follow-on damages cases on 20 October 2016 are, however, a reminder that competition law concepts on liability do not necessarily apply in the follow-on damages cases which are subject to a civil law assessment.

    Majority of claims were dismissed Read more

    2015 Roundup: This Happened in the Nordics

    On the European scene, it was the first year with a Competition Commissioner from a Nordic country. We spoke to Margrethe Vestager in December. 2015 also saw several interesting cases and developments in the Nordics.

    Mergers

    • Property agency merger blocked after completion. The Stockholm District Court blocked an already completed takeover by Swedbank Franchise of Svensk Fastighetsförmedling. Read the full blog post here.
    • Norwegian Mobile merger. TeliaSonera, the Finnish-Swedish telecoms player, succeeded in obtaining a conditional clearance to take over Tele2’s mobile operations in Norway in a 3-to-2 merger. Our blog post is available here.
    • Danish deal called off. In September, however, TeliaSonera and Telenor, Norway’s telecoms incumbent, abandoned their plan to merge their Danish operations in the face of opposition from the Commission.
    • Sector specific merger regulation. 2015 was the year when sector specific merger rules were introduced in Denmark. As of 1 June 2015 virtually all telecoms mergers in the Danish market must be notified and assessed under merger control rules. See our blog post here.
    • Stopping the clock. Just one of the updates to Swedish merger control procedures that were formalised in guidelines published this year.
    • Gun jumping. In December 2014 the Danish Competition Council concluded that EY had jumped the gun when taking over KPMG Denmark. Our blog post on the council’s decision is available here. Six months later, the Danish Competition and Consumer Authority decided to refer the case to the public prosecutor’s office. See our blog post here. Clarification on the case is expected in 2016. Keep an eye on the blog in 2016 for an update!
    • Holding back information when notifying a merger has also been on the agenda in Denmark. The Danish Competition and Consumer Authority decided to report Metro Cash & Carry to the state prosecutor for not telling the Authority about a second potential buyer of the company it was acquiring. Our blog post is available here and we hope to update you on the matter in 2016.

    Procedure

    • Fining powers. The Swedish government launched a review into the possibility to give the Swedish Competition Authority its own fining powers. As the law currently stands the Swedish Competition Authority must raise a court action to request imposition of fines both in antitrust and in merger control cases. A report is due to be published on the issue in May 2016.
    • Testing the limits of search powers. The Swedish Market Court ruled at the end of October against the Swedish Competition Authority’s request to extend a search at its premises of electronically copied material seized during a dawn raid relating to a separate suspected infringement.  The SCA must now either request documents from the company in question, or seek permission to launch a new dawn raid to find documents relating to the separate suspected infringement.  Read the full blog post here.
    • Damages directive. The implementation of the Damages Directive is under way in the Nordic countries. We will update our readers on this in 2016.

    Dominance

    • Rogue trading. The Swedish Competition Authority brought a novel dominance case before the Stockholm District Court against Nasdaq OMX, the Nordic stock market operator. The authority claims that Nasdaq abused a dominant position on the market for trading of Swedish, Danish and Finnish equities by excluding a rival trading platform, Burgundy, from installing their trading system on the same premises as Nasdaq’s own trading system (and those of a large number of securities traders). Burgundy was thereby forced to place their system elsewhere, making Burgundy’s connection to Nasdaq’s trading system, as well as to potential securities trading customers, longer and slower. The authority is seeking fines of SEK 31 million (around EUR 4 million) in the case.
    =&3=&

    Arbitration awards and antitrust appeals

    Sweden’s Supreme Court discusses Eco Swiss doctrine

    The EUCJ’s well-known Eco Swiss judgment of 1999 established an EU version of the so-called ‘second look’ doctrine originally developed in the USA. Arbitration tribunals may rule on competition law claims between private parties, but should a party initiate an annulment action on the basis that an award is in breach of competition rules, the ordinary courts may look into the competition law issue again. However, the scope of the Eco Swiss doctrine has remained somewhat unclear. For instance, what if the arbitration tribunal carried out a careful analysis of the competition law issue, but landed on a conclusion that seems questionable? In a judgment of 17 June 2015, Sweden’s Supreme Court finds that Eco Swiss may require courts to review arbitration awards more rigorously in cases where EU competition rules come into play than where only national competition rules are involved. Read more