Antitrust Litigation 2024 Comparisons

Even though it has been possible to claim damages based on infringements of competition law under Swedish legislation since 1993, the current legislation for private antitrust litigation, the Swedish Competition Damages Act (the “Competition Damages Act”), entered into force on 27 December 2016. It transposes the EU Competition Damages Directive (Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014) (the “Competition Damages Directive”).

There have been no judgments rendered based on the current Competition Damages Act, but there is a relevant pending case (PriceRunner v Google), see 1.2 Recent Developments.

In earlier case law, in 2011, Euroclear was ordered to pay damages due to an abuse of dominant position in a case where there was no previous decision from the Swedish Competition Authority (Svea Court of Appeal, Case No T 10012-08). There are also a few older cases in which claims have been dismissed on the basis that the claimant has not been able to prove an infringement or causation between the infringement and the loss.

There is a pending follow-on litigation case in the Patent and Market Court. The claim was filed by the Swedish company PriceRunner in 2022. The claim is based on the European Commission’s decision in 2017, where Google was found to have abused its dominant position, by using its search engine to promote its own comparison shopping service in the search results, while demoting competing comparison shopping services. 

The legal basis for private antitrust claims in Sweden is the Competition Damages Act, which entered into force on 27 December 2016, transposing the Competition Damages Directive.

Any person, both natural and legal, can bring a claim for damages for loss suffered from an infringement of Article 101 or 102 TFEU or the equivalent Swedish provisions. Both follow-on and standalone claims can be brought.

A prerequisite for liability under the Competition Damages Act is that the infringement was committed intentionally or through negligence. The threshold for the prerequisite to be met is low, basically allowing infringers to be relieved from liability only in cases where the infringer made an excusable error. 

In cases where the Swedish Competition Authority has closed an investigation without concluding that there has been an infringement of competition law, there is an option for private parties to bring such a case to court to reach an injunction to cease the infringement. In accordance with Chapter 3, paragraph 2, of the Swedish Competition Act, such an action can be brought by an undertaking affected by the infringement. Such an action is, however, only possible in matters where the Swedish Competition Authority has first decided to close its investigations into the potential infringement.

Antitrust cases are allocated to the Patent and Market Courts, which are specialised courts for intellectual property, market law and competition law cases with exclusive jurisdiction to try antitrust cases.

The court of first instance is the Patent and Market Court, which is part of the Stockholm District Court. The court will generally consist of two or three judges and two or three economic experts.

A judgment from the first instance may be appealed to the Patent and Market Court of Appeal. Such an appeal is dependent on leave to appeal being granted by the Patent and Market Court of Appeal.

A judgment from the Patent and Market Court of Appeal is final, except for cases where the Patent and Market Court of Appeal allows an appeal to the Swedish Supreme Court. Such an appeal is also dependant on leave to appeal being granted by the Supreme Court.

A decision of the Swedish Competition Authority or the European Commission are binding on the Swedish courts.

Decisions by competition authorities in other EU member states are not binding on the courts but are regarded as prima facie evidence of an infringement.

In antitrust damages cases, the burden of proof lies with the claimant. In general terms the claimant therefore needs to provide evidence to support that (i) there has been an infringement of competition law, (ii) the infringement was intentional or carried out through negligence, (iii) the infringement has caused damage, and (iv) the amount of that damage.

In cases where the Swedish Competition Authority or the European Commission have concluded that there has been an infringement, the decision is binding on the court. The claimant will therefore not need to provide evidence in support of the infringement.

With regards to providing evidence that an infringement caused damage, the court should make an assessment of probability, whether it is more likely that that harm was caused by the infringement rather than that it would have happened but for the infringement. In damages cases concerning cartel infringements, there is a presumption that the cartel has caused damage.

With regards to the size of the damage, the burden of proof may be eased in situations where it is particularly difficult to present evidence or when it may unduly impede the effective exercise of the right to compensation guaranteed under the TFEU. Under Chapter 35, Section 5 of the Swedish Code of Judicial Procedure, the court may estimate the amount of damages to a reasonable amount. This may also be done provided that the proof can be assumed to entail costs or inconvenience disproportional to the size of the damage and the compensation claimed.

A “pass-on” defence is available. The burden of proving that the overcharge was passed on lies with the defendant.

In relation to indirect purchasers or suppliers, the Swedish Competition Damages Act sets out that an overcharge or undercharge will, unless otherwise proven, be considered to have been passed on if the infringement caused an overcharge for the direct buyer or an undercharge for the direct supplier.

The current rules on limitation entered into force on 27 December 2016, when the Competition Damages Act entered into force.

The limitation period for a claim for damages under the Competition Damages Act is five years from when an infringement ceased and the claimant became aware, or would reasonably have been aware that the infringing behaviour caused damage, and the identity of the infringer.

The limitation period is suspended while a competition authority acts against the infringement to which the claim relates. A new limitation period of five years commences from the day on which there is a legally binding decision from the competition authority or when the investigation is concluded in another manner.

Recent judgments from the European Court of Justice in the cases Volvo and DAF Trucks, C 267/20, and Heureka, C-605/21, set out that the limitation period under national rules, applicable before the transposition of the Competition Damages Directive, must ensure the effectiveness of Article 101 and 102 TFEU. This means that the limitation period for damages for an infringement of EU competition law cannot begin to run before the infringement has come to an end and the injured party knew or should have known of the relevant circumstances to bring a claim for damages. EU law also requires the suspension of the limitation period for the duration of a European Commission investigation.

These judgments further clarify that if an infringement continued to produce effects after the expiry of the time limit for the transposition of the Competition Damages Directive, then the limitation provision in the directive applies for the entire claim. Therefore, in the case of an infringement that was ongoing on 27 December 2016, the limitation provision in the Competition Damages Act is applicable for the entire claim, even if parts of the damage were suffered prior to 27 December 2016.

A private antitrust litigation in the first instance can be expected to last 18–36 months.

An antitrust claim for damages can be brought as a class action under the Swedish Class Action Act. 

There are three types of class actions available under Swedish legislation, based on who brings the claim:

• private class action – may be brought by any person or entity, provided that the person or entity has a claim of its own and is a member of the class;
• organisation class action – may be brought by a non-profit organisation, such as a consumer and labour organisation; or
• public class action – may be brought by a government authority on behalf of a group of class members.

A class action requires that the factual issues must be common or similar amongst the entire class, and that the group of claimants is sufficiently well defined, so that it is possible for individuals (and the court) to establish if they are covered by the class action in question.

In the case of class actions, a settlement on behalf of the group members must be approved by the court. Such an approval shall be given, unless the terms of the settlement are discriminatory or otherwise unreasonable.

The Swedish Class Action Act sets out an opt-in system, where the members of the class that have not notified the court in writing by a given time that they want to be included in the class action, are deemed to have withdrawn from the class.

In relation to indirect purchasers or suppliers, the Swedish Competition Damages Act sets out that an overcharge or undercharge will, unless otherwise proven, be considered to have been passed on if the infringement caused an overcharge for the direct buyer or an undercharge for the direct supplier.

There is no class certification procedure. If the requirements set out in the Swedish Class Action Act are met and the application to initiate a class action is not rejected by the court, the class members are notified of the action and will be given the opportunity to confirm that they want to be part of the class action (as set out in 4.2 Opting In or Out).

Jurisdiction

In the case of claims involving parties within the EEA, jurisdiction is determined through application of the Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the “Brussels I Regulation”) or the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the “Lugano Convention”).

The main rule, as set out in Article 4.1 of the Brussels I Regulation, is that a person (natural or legal) that is domiciled in a member state shall be sued in the courts of that member state.

Further, in the case of non-contractual behaviour, which is often at hand in antitrust damages cases, jurisdiction can be established based on where the harmful event occurred (or may occur). This follows from Article 7.2 of the Brussels I Regulation. It is therefore possible to establish jurisdiction in Sweden for a case concerning damage caused in Sweden, even if the defendant is domiciled in another member state.

In the case of multiple defendants, a claim can be brought in the member state where one of the defendants is domiciled, in accordance with Article 8.1 of the Brussels I Regulation. For this to be possible all claims must have a sufficiently close connection.

If a claim involves parties outside of the EEA, the court will apply principles developed in case law with reference to the rules in the Swedish Code of Judicial Procedure for determining local jurisdiction. In short, the court will determine whether there is a Swedish interest, considering all relevant factors including – eg, whether the defendant has assets in Sweden and whether the harm was caused or suffered in Sweden.

Applicable Law

Antitrust damages claims are usually a result of non-contractual behaviour. In such cases, applicable law is governed by Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (the “Rome II Regulation”).  The applicable law shall in principle be the law of the country where the market was, or is likely to be, affected, as set out in Article 6.3 (a) of the Rome II Regulation.

If an infringement is deemed to have affected the market in several jurisdictions, the claimant may choose to apply the law of the country of the proceedings on the entire claim, if at least one of the defendants are seated there. See Article 6.3 (b) of the Rome II Regulation.

A party may require that the other party (or third parties) is ordered to disclose documents that can be assumed to be of importance as evidence in an ongoing claim for damages. Such a request must identify the document or type of document requested and explain what type of information is assumed to be included in the document.

However, there are a few exceptions to disclosure. The following information cannot be subject to disclosure:

• communications between a party and its counsel;
• trade secrets, unless there are special reasons for disclosure;
• documents held by a competition authority concerning declarations in a leniency process and settlement submissions; and
• documents produced for the competition authority’s investigation, while the investigation is still ongoing.

It should be noted, in terms of documents including trade secrets, that the court may order that documents are disclosed with restrictions, such as limiting the number of recipients and the use of the documents (confidentiality ring). 

The court may order a competition authority to produce documents, if it can be assumed that another party cannot produce the documents without inconvenience.

A request to obtain documents before proceedings have begun requires that there is reason to believe that the evidence will otherwise be lost. 

It should be added that there is always the option of obtaining documents from the Swedish Competition Authority based on the fundamental right of access to public documents that is awarded to every Swedish citizen. There are, however, restrictions in terms of access to documents that contain trade secrets or documents that have been provided as part of the leniency programme.

Communications between a party and its counsel cannot be subject to disclosure.

Documents held by a competition authority concerning declarations in a leniency process and settlement submissions cannot be subject to disclosure. Furthermore, such documents are not permissible as evidence in antitrust claims.

As a general rule, all evidence is admissible in Swedish court proceedings, based on the principle of free examination of evidence. There are, however, a few exceptions of relevance for private antitrust claims:

• leniency statements and settlement submissions are not permissible as evidence; and
• written witness statements from factual witnesses are usually not allowed, unless the parties agree.

Since written witness statements from factual witnesses are generally not allowed, the parties will need to examine their witnesses during the hearing.

A witness can be summoned under penalty of a fine. If a witness fails to attend, the court may order that the witness be brought into custody before the court. The witness can also be ordered by the court to review documents of relevance for the examination.

A witness is generally not allowed to be present during the hearing up until their examination.

The witness will, unless certain exceptions are applicable, be examined under oath.

In antitrust damages cases it is most common that the parties appoint their own experts. The claimant will typically appoint an economic expert to prepare a report on the quantification of harm, and potentially also on other matters of relevance, such as relevant market and dominance. It is also common to appoint legal experts, to provide legal opinions on, for example, the content of foreign law (if applicable).

The defendant will usually appoint their own experts to submit a countering expert opinion.

Expert witnesses should submit a written opinion, unless the court decides otherwise, and the expert witness must also be examined during the oral hearing if requested by a party.

Cross examination is allowed in respect of all issues covered by the written expert report filed with the court.

The court may, but it is uncommon, at the request of one of the parties, appoint its own experts. The court may also make a request that the Swedish Competition Authority assist on calculating the damages. Such a request can be declined by the Authority. As explained in 2.2 Courts, the court typically consists of both judges and economic experts.

In an antitrust damages case, the claimant can claim damages that will fully restore the claimant’s financial situation to what it would have been if the infringement had not occurred. The assessment will be based on a comparison of the actual financial situation and a hypothetical scenario excluding the effects of the infringement. Damages can be reduced if the claimant is found to have contributed to its loss.

There are no exemplary or punitive damages available, but there is a possibility that the court can estimate damages to a reasonable amount. For that to be possible, the court must determine that it is not possible or unreasonably difficult for the claimant to prove damages.

Interest with an interest rate of two percentage points above Swedish reference rate will accrue from the time when the damage occurred. Once proceedings have been initiated, the interest rate is eight percentage points above the Swedish reference rate.

The main rule is that if there are more than one party responsible for the harm caused to a claimant, all parties are jointly and severally liable.

Small or medium-sized companies, as defined in the European Commission’s recommendation 2003/361/EG concerning the definition of micro, small and medium-sized enterprises, will only be jointly and severally liable for damages claimed by their direct or indirect buyers or suppliers, if the company had a market share below 5% and liability would risk the company’s existence. However, such exemption will not apply if the company had a leading role in the infringement, affected others to take part, the company has previously infringed competition rules or if damages cannot be recovered from another infringer.

Parties that have been granted leniency from a Competition Authority will not be immune to private claims for damages. However, they will only be jointly and severally liable for harm suffered by that party’s direct or indirect buyers or suppliers and other claimants, if such harm cannot be recovered from another infringing party.

A company that has reached a settlement with the claimant will only be held liable if damages cannot be recovered from another infringer and if not otherwise agreed.

A defendant that has been sued for damages may initiate a contribution claim against another infringing party to claim compensation for such party’s part of the damages.

The right to claim such compensation is limited in relation to parties that have been granted leniency from a Competition Authority. The right to compensation will then be limited to damages caused by such a party to its direct or indirect buyer or suppliers.

Generally, interim relief is available in accordance with the general provisions for interim measures in the Swedish Code of Judicial Procedure. This includes interim injunctions to cease certain conduct and attachment of assets.

As mentioned in 6.1 Disclosure/Discovery Procedure, documents may be obtained before proceedings have begun, if there is reason to believe that the evidence will otherwise be lost.

As a general rule, the court should encourage that the parties reach a settlement, if it is not regarded inappropriate. The court may also decide on mediation if accepted by the parties. 

Arbitration is also an accepted dispute resolution method for private antitrust claims, given that there is such an agreement between the parties.

Litigation funding is available and is still unregulated in Sweden. A funded party is not required to disclose its funding arrangements. It is therefore not possible to know how frequently it is used, but it has become increasingly common in Swedish dispute resolution and there are a few domestic litigation funders in the country. 

Generally, the losing party should bear the legal costs. The winning party can therefore recover its litigation costs from the losing party, including court fees, counsel fees, expert fees and internal costs. However, the costs must be reasonable. The costs are often apportioned between the parties, depending on the degree of success.

Security for costs may be required for claimants from certain jurisdictions.

As described in 2.2 Courts, a judgment may be appealed to the Patent and Market Court of Appeal, provided that a leave to appeal is granted. Appeals are not only on points of law.

A judgment from the Patent and Market Court of Appeal is final, except for in the rare case that the Patent and Market Court of Appeal allows an appeal to the Swedish Supreme Court. Such an appeal is also dependant on leave to appeal on a point of law being granted by the Supreme Court.

There have been few private antitrust claims brought in Swedish courts. However, there are several reasons why Sweden is a preferable jurisdiction for these types of claims.

Firstly, Sweden has specialised courts for these types of claims – the Patent and Market Courts, with judges with a high level of expertise in the field. Furthermore, the Swedish courts have, from an international perspective, an effective handling of claims. There are also good opportunities to collect and pursue a claim in Sweden regarding damage suffered in several different jurisdictions within the EU.

In the case of PriceRunner v Google, it can be noted that the Patent and Market Court has not stayed the proceedings pending the European Court of Justice’s judgment in the Google Shopping case, unlike courts in some other EU jurisdictions.