The Swedish Competition Authority (“KKV”) published on 4 January 2010 its policy for prioritising which matters it will chose to investigate. KKV has a wide discretion over which cases it chooses to investigate, but will prioritise cases by reference to specified factors and whether or not private enforcement is more appropriate.
KKV emphasises the following factors as decisive in its prioritising:
- The gravity of the problem or incident
- The importance of setting a precedent
- Whether another authority or stakeholder would be better equipped to take appropriate action or if the application of some other regulatory regime would be better suited to the problem
The gravity of the problem or incident
The policy states that certain behaviour is particularly serious, such as agreements on prices, limiting markets, market sharing, exclusionary abuse of a dominant position, illegal direct procurement and, as regards public sales operations that restrict competition, operations that may be prohibited when they conflict with both the Competition Act and other statutes and involve the combined conduct of official operations and sales operations. Cases of recidivism are generally seen as serious. The extent and importance of the Swedish market which is affected is important.
Need for precedents
It is seen as especially important to establish clarifying judicial rulings on uncertain legal issues as well as issues relating to new legislation. Where a “test case” is being prosecuted, typically KKV will not investigate other, similar matters. Where established precedents serve to enable other stakeholders to take action, the matter will not be prioritised by KKV.
Other authorities/stakeholders are competent
KKV may refrain from investigating a matter if it considers that it would be more appropriate for another authority to take action in a matter. A good example, though not referred to by the policy, is where sector-specific legislation such as the electronic communications regulatory regime is applicable to an alleged abusive behaviour by a telecom operator.
The KKV Enforcement policy stresses that if the Authority concludes that a competition matter should not be investigated any further if, after having made an overall assessment of the matter, an adversely-affected business can instead exercise its autonomous right to bring proceedings; that is, pursue the matter itself at court. Such actions are brought by submitting a summons application to the Market Court.
Source: KKV press release http://www.kkv.se/t/NewsPage____5613.aspx