This presentation by Sweden, was made during the presentations on “Tools for Addressing Competitive Neutrality” held at the 67th meeting of the OECD Working Party No.2 of the Competition Committee on 3 June 2019. More information on the topic can be found at ww.oecd.org/competition/competitive-neutrality.htm.

1. The Swedish provisions on
anti-competitive public sales
activities
Katarina Magnusson
Swedish Competition Authority
OECD, WP2, June 2019

2. Background to the legislation
» Legislation in 2010 after 15 years of debate,
investigations and political actions.
» Objective: Remedy competition problems associated
with public actors´ sales activities in competition with
private operators.
» Publicly owned entities operate under special
conditions.
» Strong municipal powers.
» May create competition problems not covered by
competition law.
2

3. General facts
» The legislation concerns anti-competitive sales
activities and anti-competitive conduct in sales
activities ”conduct prohibition” or ”activity
prohibition”.
» The Swedish Competition Authority (SCA) is the
authority supervising the law but has no decision
powers.
» The Patent and Market Court and the Patent and
Market Court of Appeal have jurisdiction.
» A prohibition applies to future conduct.
3

4. When are the provisions
applicable?
4
What does the law
say?
Comment
Public actors are
concerned…
The State, a municipality, a County Council or a
body where any of these has a dominant
influence.
…when they are
engaged in sales
activities…
Undertaking concept of competition law. Not
purchases.
…and when there is a
restriction of
competition.
Distorts or impedes, actually or potentially.

5. What can be prohibited?
5
What does the law
say?
Comment
Prohibition of a
conduct…
A conduct (HOW the sales activity is performed)
can be prohibited.
...unless conduct is
justifiable on public
interest grounds.
A trade-off between competition concerns and
social benefit. Internal motives (e.g. the
municipality´s financial situation) not accepted.
Prohibition of a sales
activity…
A municipality or County Council sales activity
(but not a state activity) can be prohibited (i.e.
WHAT sales activities are performed).
…unless in accordance
with the Swedish Local
Government Act.
If the activity is in line with the tasks of the
municipality/County Council, the activity cannot
be prohibited.

6. Examples of restrictions of
competition
» Denial of access to infrastructure.
» The public actor´s sales activities are favoured by the
merger of authorities with the sales activities.
» Below-cost (or, possibly, below market price) pricing.
» Discriminatory procedures.
» In some cases, the mere presence of the public sales
activity, if it cannot avoid restricting competition.

7. Lessons learned from court
proceedings
» The SCA has a high burden of proof when it comes to
proving anticompetitive effects.
» Market definition is an important part of the effects
analysis.
» The investigations often have the same complexity as
cases of abuse of dominance.
» The investigation time + court proceedings often takes
several years.
» The SCA has to prioritize carefully.

8. Where we are today
» Seven cases in courts – 2 approvals, 1 partly
approved and 1 approval in the first instance
(appealed).
» 26 cases of self-corrections after the SCA has initiated
an investigation.
» Prioritization on communication.
» Many municipalities have reviewed their sales
activities from a competition policy point of view.
» The State and municipalities consider, to a greater
extent, the effects on competition when they exercise
and plan their sales activities.

9. Thank you for your attention!