DECISION
20 April 2016
Adm no. 67/2016
1 (5)
The Swedish Competition Authority’s Prioritisation Policy for
Enforcement
The Swedish Competition Authority does not investigate every reported tip-off
and complaint or conduct which the Competition Authority discovers through its
intelligence gathering. The process of selecting cases for investigation is set out in
this prioritisation policy, a process where various factors are taken into account
and weighed against each other. The purpose of this policy is to clarify which
issues the Competition Authority chooses to prioritise in its enforcement role.
The Competition Authority focuses on investigating cases of the general interest
and which will result in clear results. The primary aim is always to promote
effective competition in the private and public sectors for the benefit of consumers
as well as to promote efficient public procurement for the benefit of the actors in
the public and private sector.
The Competition Authority has several functions in regards to enforcement of
competition and procurement. This policy is divided into three parts. The subsequent sections of the policy explain the Competition Authority’s prioritisation in
competition and procurement enforcement. The final section of the policy outlines
the information which the Competition Authority may include in a decision to
close an investigation, where such decision has been taken with reference to the
prioritisation policy.
Prioritisation in competition enforcement
In its prioritisation of competition enforcement, the Competition Authority takes
the following factors into consideration:
KKV1000, v1.3, 2011-12-15
•
•
•
•
Whether the conduct causes harm to competition and consumers.
The importance of securing a guiding precedent.
Whether the Competition Authority is best placed to intervene.
Whether it is possible to effectively investigate and remedy the
competition concern in question.
Address SE-103 85 Stockholm
Visiting Address Torsgatan 11
Telephone +46 8-700 16 00
Fax +46 8-24 55 43
[email protected]
DECISION
20 April 2016
Adm no. 67/2016 2 (5)
Does the conduct cause harm to competition and consumers?
The most important basis for prioritising cases is whether the conduct is able to
harm competition and consumers. In such cases, the Competition Authority
assesses the benefits of intervention for consumers as well as the importance to
the general welfare of eliminating the anti-competitive constraint in question.
Cooperation between competitors
Cooperation between competitors may result in significant harm to consumers.
The Competition Authority gives highest priority to investigating and prosecuting
cartels. In this context, cartels refers to practices where firms, which are active on
the same market, agree amongst themselves to fix prices, limit or control output
or partition markets.
Cooperation between non-competitors
In general, cooperation between firms active on different levels of the value chain
(i.e. vertical cooperation) leads to efficient distribution and increased competition.
Nonetheless, under certain conditions, it may result in harm to competition and
consumers.
The Competition Authority prioritises investigating vertical cooperation which is
capable of harming effective competition in product- or distribution markets. In
its prioritisation, the Competition Authority gives particular consideration to
what share of the market that is affected by the cooperation, the market power
held by the parties engaged in the cooperation, the concentration of the markets
and whether other firms on the same market are engaged in similar forms of
cooperation.
Abuse of dominance
The quest of firms to attain and maintain market power and profitability is a key
driving force in competitive markets. However, under certain conditions,
unilateral conduct by dominant firms may result in harm to competition and
consumers.
The Competition Authority prioritises investigating conduct by dominant firms
that is capable of excluding or foreclosing firms, which are able to exercise
effective competitive pressure on some level of the market. In its prioritisation, the
Competition Authority gives particular consideration to the share of the market
that is affected by the conduct and, in cases where the foreclosure concerns an
input, to what extent the input is essential to enable effective competition in the
market. In assessing price-based conduct, the Competition Authority also
considers whether the pricing is capable of foreclosing a competitor which is,
hypothetically, as efficient as the dominant firm.
DECISION
20 April 2016
Adm no. 67/2016 3 (5)
Anti-competitive sales activities by public entities
Where public entities operate on a competitive market, it may lead to distortion of
the conditions of efficient competition or may hamper the occurrence or
development of such competition. The Competition Authority prioritises
investigating cases where the conduct of the public entity in question hampers or
distorts the long-term conditions for competition.
The Competition Authority prioritises cases where the competition concerns are
clear. In this context, competition concerns are clear where one or several private
market actors are able to demonstrate in a tangible, quantifiable and documented
manner the resulting harm or the risk of such harm. By way of examples, such
harm may be where the development and growth of private firms are hampered
or where private firms are forced to liquidate whole or parts of its business and
where private firms find it difficult to enter or grown on a relevant market.
The importance of securing a guiding precedent
The Competition Authority may also prioritise issues which extend beyond those
covered by a case at hand and where an intervention or a reasoned decision to
close a case would assist firms and other actors on the market in understanding
their obligations under competition law. This is particularly important where
novel matters arise or where the competition concern arises in several markets
and an intervention would have a deterrent effect.
Whether the Competition Authority is best placed to intervene
The Competition Authority may refrain from intervening if another agency or
organisation is better placed in intervening. Where another agency has more
suitable tools for addressing a particular competition or market concern, the
Competition Authority may choose not to prioritise the case.
Whether it is possible to efficiently investigate and remedy the competition
concern in question
As a public body, the Competition Authority has the responsibility of using its
resources in the most efficient manner possible and thus, the expected use of
resources is considered against the benefits of intervention. In its prioritisation,
the Competition Authority gives particular consideration to whether it is possible
to investigate efficiently, gather the essential evidence and remedy the
competition concern with the competition powers it has at its disposable.
Where an enforcement case is deemed to be an inefficient way to achieve results,
the Competition Authority may opt to address the competition concern in a
different manner, such as by an external report or study.
DECISION
20 April 2016
Adm no. 67/2016 4 (5)
Prioritisation in procurement enforcement
The regulatory legal framework for procurement is first and foremost a tool for
suppliers to monitor their own interests in a procurement process, which may be
done by an application for reviewing a specific procurement process or the
validity of a specific agreement.
In its prioritisation procurement enforcement, the Competition Authority takes
the following factors into consideration:
•
•
•
•
•
Whether there is a deterrence effect and/or the need for guidance.
Shortcomings in the conduct of the procuring agency or body.
The general public interest.
Whether the Competition Authority is best placed to intervene.
The extent of resources needed in relation to the ability to achieve the
desired results.
Whether there is a deterrence effect and/or a need for guidance
The Competition Authority takes into consideration whether a case may be
expected to have a deterrent effect and/or addresses a matter which may need
clarification in benefit of a large number of actors on the market. This means that
a case may be prioritised where an enforcement decision or a fine may be
expected to prevent several procuring agencies or bodies from acting incorrectly
and where the Competition Authority may, through its enforcement, clarify the
correct procedure. An infringement that may result in a fine being imposed is
deemed to have a significant deterrent effect. There may be need for guidance if
an infringement is recurring, or where there is an unclear legal issue, or where
rules are applied in a novel setting which the Competition Authority regards to be
beyond the scope of the procurement rules.
Shortcomings in the conduct of the procuring agency or body
The Competition Authority may take into consideration shortcomings in the
actions of the procuring agency or body. Deficient routines or competence and
inadequate or unstructured documentation more often than not result in
infringements. Suspicions of inappropriate favouring of a particular supplier and
failure of an agency or department to comply with decisions and judgments are
taken into account. Repeated infringements are generally regarded as a
shortcoming of a serious nature. Shortcomings weigh less if an agency or
department has taken remedial action or recently been subject to a decision or a
ruling concerning a similar infringement.
The general public interest
The Competition Authority takes into account the extent of the general public
interest. Therefore, it may be of relevance where the Competition Authority has
received several complaints or intelligence regarding the same or similar
DECISION
20 April 2016
Adm no. 67/2016 5 (5)
infringement, or whether the alleged infringement has been highlighted
elsewhere. The general public interest is considered higher where the value of the
agreement is high or where the agreement is expected to hamper competition in a
more tangible manner.
Whether the Competition Authority is best placed to intervene
The Competition Authority may refrain from intervening where there it is
deemed that another agency or organisation is better placed to intervene. For
instance, there may be a possibility to have the matter tried at trial, or there is an
ongoing court case or one has been recently concluded.
The extent of resources needed in relation to the ability to achieve the desired
results
The Competition Authority assesses which investigative actions may be relevant,
the scope and cost of the investigation in relation to the expected results to be
achieved and how difficult it is to prove the infringement. Where an enforcement
case is regarded to be an inefficient method to achieve result, the Competition
Authority may choose to highlight the issue in a publication or report.
Information which the Competition Authority may include in a
decision to close an investigation with reference to the prioritisation
policy
It is the endeavour of the Competition Authority to be clear in decisions to close
cases. Where a case has been closed with reference to the prioritisation policy, this
shall be clear from the decision. Where possible, it shall also be clear in the
decision which part of the prioritisation policy has been instrumental in
discontinuing the investigation.
Where a case is closed at an early stage of the investigation, the decision shall only
include a general reference to the prioritisation policy. This is to allow the
Competition Authority to notify those affected by the decision without undue
delay as well as use its resources where these make most benefit.