Our point of view

Competition & Procurement Newsletter 1/2014

7 February 2014

COMPETITION

EU - The European Commission amends EU merger control procedure

On 1 January 2014, new rules on procedure for mergers subject to merger notification requirement under the EU Merger Regulation (“EUMR”) entered into force. The European Commission (“Commission”) has amended the “Notice on a simplified procedure for treatment of certain concentrations,” increasing the percentage of mergers that can be reviewed under the Commission’s simplified review procedure, and the Implementing Regulation, clarifying and reducing the volume of information required from merging parties in the notification. The Commission aims to speed up the merger review procedure at the EU level and to make it less burdensome for business. However, the amendments also expand the requirements of merging parties to provide copies of internal documents in the merger notification.

Simplified procedure

The rules extend the scope of the simplified procedure for non-problematic cases, meaning that more transactions may qualify for simplified review. In general, the simplified procedure is applicable for concentrations which clearly do not raise any competition concerns. Mergers qualifying for the simplified procedure may be notified using a Short Form CO, instead of the standard notification Form CO, which requires the submission of less information and fewer documents.

The market share thresholds that determine whether a concentration qualifies for a simplified procedure have been increased by 5%. Consequently:

  • Concentrations involving competitors, i.e. companies that are engaged in business activities on the same product and geographic market (horizontal relationships), qualify for the simplified procedure if the parties’ combined market share is below 20% on any relevant market (the current threshold is 15%); and
  • Concentrations involving companies that are not competitors but operate on markets that are upstream or downstream of each other (vertical relationships), qualify for the simplified procedure if individual or combined market share of all the parties on the vertically linked markets is below 30% (the current threshold is 25%).

In addition, the transaction may, at the Commission’s discretion, be reviewed under simplified procedure if the parties’ combined market share is between 20% and 50% and the increment (“delta”) of the Herfindahl-Hirschman Index (HHI) resulting from the concentration is below 150. The HHI is the sum of the squares of the individual market shares of all the firms in the market indicating the pre- and post-merger concentration level on the market.

Implementing Regulation

The Commission has amended the Implementation Regulation including merger notification forms, in order to reduce the amount of information required from merging parties in the notifications submitted to the Commission. The following amendments have been made:

  • New market share thresholds for “affected markets”
    In general, the Commission requires very detailed market information and analysis “for affected markets”. The thresholds of what constitutes an “affected market” have been increased to a combined market share of 20% for horizontally affected markets (previously 15%) and to 30% (previously 25%) for vertically affected markets.
  • Individual waivers
    The Form CO and Short Form CO now provide categories of information that the parties may wish to seek a waiver from providing. Request for individual waivers are made during the pre-notification contacts and allow merging parties to submit a notification without providing extensive information that is required but is not relevant in particular case.
  • Expanded requirement to submit documents
    Both types of notifications (Short Form CO and Form CO) will require merging parties to provide copies of certain internal documents in the merger notifications. As regards the Short Form CO, the requirement is triggered if there are reportable markets i.e. there is any horizontal overlap or vertical relationship between the parties. The definition of reportable markets applies to activities in the European Economic Area (“EEA”) territory, meaning that if the parties are active in worldwide markets but not in the EEA, there will be no reportable markets. The amended Short Form CO requires submission of copies of all presentations prepared by or for, or received by, any members of the board of management, or the board of directors, or the supervisory board, or the shareholders’ meeting analysing the notified concentration. As regards the amended Form CO, it requires submission of the minutes of the management board, supervisory board and shareholders’ meetings at which the transaction was discussed; internal documents assessing the rationale for the transaction (including documents where the transaction is discussed in relation to potential alternative acquisitions) and internal documents from the preceding two years for the purpose of assessing any of the markets affected by the transaction and/or potential sales growth or expansion into other product or geographic markets.

Peter Forsberg, Partner, Stockholm
Liana Thorkildsen, Senior Associate, Stockholm

EU - Microsoft’s acquisition of Skype does not impede effective competition on the market

On 11 December 2013, the General Court of the European Union ruled that the acquisition of Skype Global Sàrl by Microsoft Corp. would not restrict competition on the market and dismissed Cisco System Inc’s and Messagenet SpA’s appeal of a European Commission decision of October 2011 to clear the acquisition of Skype by Microsoft.

In September 2011, Microsoft, active with the design, development and marketing of computer software and the supply of related services including internet-based communications services and software, notified to the Commission the planned acquisition of Skype, active within the provision of internet-based communications services and software enabling instant messaging, voice calls and video communications over the internet. Cisco and Messagenet, major competitors of Microsoft, both active within the supply of internet-based communications services and software to undertakings and the general public, submitted to the Commission that it was concerned that the planned acquisition would lead to anti-competitive effects. Despite these concerns, in October 2011, the Commission cleared the acquisition of Skype by Microsoft. Cisco and Messagenet brought an action before the General Court for annulment of the Commission’s decision.

The General Court approved the Commission’s assessment that the acquisition of Skype by Microsoft would not significantly impede effective competition even on the narrowest possible definition of the markets. The Commission made a distinction between internet-based communications services aimed at the general public (“consumer communications”) and those aimed at undertakings (“enterprise communications”) and examined the impact of the acquisition on each of the two markets identified. Further, the Commission examined the narrowest possible segments, with the greatest overlap between the services offered by Microsoft and Skype – the segment for instant messaging on PCs functioning on the Windows operating system, and the segment of voice calls on Windows-based PCs and that of video calls on Windows-based PCs. The Commission took the view that the transaction did not restrict competition even in those narrow segments.

The General Court confirmed the Commission’s finding that the transaction did not restrict competition even in those narrow segments. On the narrow segment for consumer video communications on Windows-based PCs, Microsoft’s and Skype’s combined market share would amount to between 80 and 90%. However, the General Court confirmed that on fast-growing and evolving markets, such as consumer communications, high market shares are not necessarily indicative of market power and, therefore, of lasting damage to competition in the market. The consumer communications sector is a recent and fast growing market characterised by short innovation cycles. Furthermore, a particular account was taken of the increasing use of mobile phones and tablets, where Microsoft was relatively small player.

Peter Forsberg, Partner, Stockholm
Liana Thorkildsen, Senior Associate, Stockholm

Finland - active year of private enforcement

Looking back at 2013 in Finnish competition law, private enforcement has been the most active segment. There are several reasons for this development. First and foremost, there is no settled Finnish case law on competition-related damages claims. Second, there were several important Finnish public enforcement court judgments in 2009-2012, concerning which follow-on private proceedings have been initiated. Third, the general European trend of emphasizing private enforcement has likely influenced the willingness to bring private actions also in Finland.

Last year we saw the first major private enforcement decisions in Finland from the Helsinki District Court. In the hydrogen peroxide cartel case, the Court rendered an interim judgment concerning certain preliminary questions as well as two judgments related to production of documents. In the asphalt cartel case, the Court dismissed the claim of the Finnish State in its entirety but awarded damages to a number of municipalities. The contents of these decisions are summarized in this article.

In addition, there are several other significant cases pending before the courts. These include follow-on claims related to information exchange in the raw wood market and a follow-on claim related to a spare part cartel.

We expect significant private enforcement developments in Finland also in 2014. The Helsinki District Court’s asphalt decisions may be appealed, and proceedings in the other pending cases will continue in the District Courts.

Unfortunately, the decisions rendered so far have not yet brought legal certainty as to how competition law-related claims will be decided in Finland. The decisions are only from the first instance, and can be appealed to one or two further instances. Furthermore, it seems that the decisions are not entirely consistent with previous case law in other cases unrelated to competition law, and to a certain extent not even internally coherent. It thus still remains to be seen whether or not Finland will become a preferred jurisdiction for domestic and international private enforcement actions.

Follow-on claim related to the hydrogen peroxide cartel

On 20 April 2011, CDC HP (“CDC”) filed an action against Kemira Oyj (“Kemira”) before the Helsinki District Court for alleged damages. The EUR 78 million claim is based on the European Commission’s decision from 2006 in the hydrogen peroxide cartel case. Two Finnish pulp and paper companies had sold their rights in respect of damages claims to CDC.
During 2013, the District Court rendered an interim judgment concerning certain preliminary questions as well as two judgments related to production of documents. These judgments can be appealed only in connection with an appeal against the decision on the principal claim. The principal proceedings will continue this year and the main hearing is scheduled to take place during May-June 2014.

1) Interim judgment of 4 July 2013 on preliminary questions

The interim judgment of 4 July 2013 concerned three questions: (i) whether the District Court is competent to rule on the principal claim, (ii) whether CDC’s claim has become time-barred under certain limitation periods, and (iii) whether the assignment of rights (sale of damages claim) to CDC is valid.

(i) Competence of the District Court
The relevant supply agreements contained arbitration clauses. According to them, any dispute relating to the interpretation and application of the agreements or any dispute arising out of the agreements shall be submitted to arbitration. The point at issue was whether or not the arbitration clauses covered CDC’s claim for compensation.

The District Court noted that credible evidence both for and against the Court’s competence was brought forward. The parties had not at least explicitly agreed that the arbitration clauses would apply to potential claims for compensation for infringements of competition laws. CDC’s claim was not directly based on the relevant supply agreements or the breach of any specific clauses contained therein. Instead, compensation was claimed for an alleged overcharge paid as a result of a cartel.

The District Court concluded that CDC’s claim did not relate to the interpretation or the application of the relevant supply agreements. Nor did it involve a dispute arising directly out of the relevant supply agreements. The District Court, therefore, judged itself competent to rule on the matter.

(ii) Start and interruption of limitation periods
The District Court concluded that the limitation periods had begun on the date of the Commission decision on 3 May 2006, not earlier as argued by Kemira and not later as argued by CDC.

According to the District Court, the limitation period had been effectively interrupted within three years of the Commission decision. With regard to the limitation period in the Finnish Competition Act, CDC had filed the claim on 20 April 2011 which is within five years of the Commission decision. Therefore, CDC’s claim had not become time-barred.

(iii) Legality of assignment of rights to CDC
Kemira had asserted that the clauses against assignment in the relevant supply agreements were binding upon CDC, and that the assignment of rights to CDC was a scam transaction.

The District Court noted that it was undisputed that CDC so far had paid only a nominal sum for the rights to claim compensation. However, it had been agreed that the final price is determined by the outcome of the claim. According to the Court, there was in principle no obstacle to an assignment of rights to pursue the claim to CDC. The Court found no reason to doubt the genuineness of the deeds of transfer or the agreements, either. Hence, CDC had standing to bring the action.

2) Judgments on production of documents of 20 December 2013

CDC had requested the Helsinki District Court to grant it access to (i) the full version of the Commission decision, and (ii) certain background materials of an expert opinion Kemira had invoked. In its judgments of 20 December 2013, the Court dismissed both requests.

(i) Full version of the Commission’s decision
The District Court noted that CDC was in the possession of the public version of the Commission decision and that it had not disputed the fact that the Commission had ordered certain parts of the full version to be treated as confidential. On the basis of legal literature and the Finnish Code of Judicial Procedure, the Court concluded that Kemira’s obligation to disclose the full version of the decision is only as wide as its obligation to give testimony in court about the confidential parts of the full version of the decision.

According to the District Court, it is evident on the basis of the Commission’s proposal for a Directive on Antitrust Damages Actions that the Commission seeks to encourage private enforcement. The Commission had nonetheless ordered certain parts of its own decision to remain confidential. This reinforces the assumption that the confidential parts of the decision contain information of such nature that national courts cannot order it to be disclosed.

(ii) Background materials for expert opinion
The District Court noted that an order for disclosure under the Finnish Code of Judicial Procedure requires that the requested document be identified in a sufficient manner. CDC had not been able to identify to a sufficient degree what the background material to Annex CEG030 comprised. Further, the Court also considered the fact that Kemira itself was not able to replicate the compilation of the documents in any reliable manner.

As regards the so-called Harriman Reports, CDC’s request concerned all reports over a period of 19 years. The District Court stated that it is not able to assess whether these numerous reports could be of significance as evidence in the case, which is a necessary precondition for production of documents under the Finnish Code of Judicial Procedure. Therefore, and since the reports were publicly available, the Court dismissed CDC’s request also to this extent.

Follow-on claims related to the Asphalt Cartel

In 2009, the Finnish Supreme Administrative Court ordered seven companies to pay infringement fines totalling approx. EUR 82.5 million for their participation in a cartel that operated in the Finnish asphalt market between 2 May 1994 and 11 February 2002. According to the Court, the companies had infringed both national and EU competition law.

In its judgments of 28 November 2013, the Helsinki District Court ruled on follow-on claims for damages brought by the State of Finland and 40 municipalities. The District Court had held preparatory hearings in the matter in 2012, and there was a combined main hearing for all 41 claims between September 2012 and April 2013. More than 2,000 documents were submitted as evidence and almost 70 witnesses testified during the main hearing.
The judgments of the District Court can be appealed to the Court of Appeal. The deadline for possible appeals has been extended until 31 March 2014.

(i) The State’s claim
The principal amount of the Finnish State’s claim amounted to EUR 56.7 million. The District Court dismissed the claim in its entirety and ordered the State to compensate the asphalt companies for their legal costs in a total sum of EUR 2.6 million.

According to the Court’s judgment, partly new evidence had been presented after the proceedings at the Supreme Administrative Court. The District Court found that the relevant State entities (the National Board of Public Roads and the Finnish Road Enterprise) had participated in the cartel concerning asphalt contracts commissioned by the State at least from 1998 to 2002. In addition, representatives of the National Board of Public Roads had been aware of the existence of the cartel already from 1994.

The District Court considered that no damage had been caused to the State on the basis of such activity which the State had approved at the time when it took place, which the State had participated in, and from which the State itself considered it had benefited from.

(ii) The municipalities’ claims
The 40 municipalities had claimed a total principal amount of approx. EUR 66 million in damages. The District Court awarded total damages of approx. EUR 37.5 million.

The claim of one municipality was dismissed in its entirety, as the municipality in question had not shown it had suffered any damage. As a result of the applicable limitation periods, a number of municipalities’ claims were furthermore dismissed to the extent they had been addressed against companies other than the contracting party.

The judgments of the District Court include an assessment of a number of legal and factual questions, including the following.

Res judicata effect of infringement decision. The District Court held that it was bound by the decision of the Supreme Administrative Court to the extent the latter had investigated and ruled on the existence of the cartel, the participants and the length of their participation. However, the infringement decision did not have a binding effect in any other respect.

Legal basis for the damages claims. According to the District Court, most municipalities could not rely on the specific damage provision in the previous Finnish Competition Act – applicable in this case – as they were not undertakings as defined in the said act. However, the municipalities could invoke contractual liability against their contracting parties. Against the other respondents, the municipalities could rely on general tort liability. The District Court held that the other alleged legal grounds invoked by the claimants were not applicable.

Liability of various respondents. Some of the municipalities had claimed damages only from their contracting parties, others from several or all respondents. The District Court held that the respondents were jointly and severally liable, but each respondent only for the time period it had participated in the infringement. If a municipality’s right to claim damages against any of the participants in the infringement had become time-barred, it could thereafter claim damages only from its contracting party (provided that the claim was not time-barred against that contracting party). As to the internal division of liability between the respondents, the contracting party was held responsible for the entire damage.

Economic succession. Liability based on economic succession had been established earlier in Finnish public enforcement proceedings. The District Court held that, taking into account the need for efficient application of EU competition law, the same principle is applicable also in private enforcement actions. Thus, the companies that had acquired asphalt businesses that had participated in the infringement could be held liable for the actions of and damage caused by the sellers.

Limitation periods. The District Court held that most of the applicable limitation periods had started to run from the decision of the Supreme Administrative Court, i.e. the final decision in the infringement proceedings. The District Court’s conclusion differs in its approach from its decision in the hydrogen peroxide case. In the latter judgment, the Court found that the limitation period had started from the Commission’s decision in 2006, even though it was appealed and the final decision by the ECJ was given only in 2013.

Burden of proof. According to the District Court, an infringement decision does not as such reverse the burden of proof concerning the alleged damage. Thus, the claimants have to show that they have suffered damage also in claims related to competition law infringements.

Quantification of damage. Based on an overall assessment, the District Court found that the asphalt cartel as a starting point had caused damage to the municipality claimants. As the exact damage could not be established, the Court made an estimate of the overcharge. In this connection it emphasized that Finnish law is based on the principle of full compensation, but that no statutory damages can be awarded. It concluded that the overcharge had mostly been 15 %. However, there were several reasons why a number of municipalities had not suffered damage for all years they had claimed. For example, a price war prevailed in the Finnish asphalt market in 1996-1997, and according to the Court contracts concluded during these years did not usually involve overcharging.

Interest. In line with earlier case law unrelated to competition law, the District Court held that the municipalities had a right to compensatory interest from the time the overcharge was paid until the time when overdue interest started to accrue. The compensatory interest is meant to compensate for inflation – today it is the reference rate of the European Central Bank. Overdue interest started to accrue only from the time when the respondents were served the writ of summons. As a result of the applied compensatory interest rate and the later starting point of the overdue interest, the total amount of interest awarded to the municipalities was considerably lower than they had claimed.

Hannes Snellman’s team in private enforcement matters comprises both competition law and litigation experts. We have had a central role in a vast majority of all private enforcement proceedings in Finland to date.

For further information, please contact:

Mikael Wahlbeck, Partner, Helsinki
Antti Järvinen, Partner, Helsinki

Finland - The Finnish competition authority reviews dominant retailers’ customer loyalty programs as the new law enters into force

The new provisions of the Finnish Competition Act imposing a dominant position on food retailers Kesko and S-group became effective on 1 January 2014. The prohibition set forth in Article 7 of the Competition Act of abuse of dominant market position can now, by virtue of the new Article 4a, be applied on companies whose market share in the Finnish groceries retail markets exceeds 30 percent. In the present market situation, the provision concerns Kesko Food and S-group.

The Finnish Consumer and Competition Authority (“FCCA”) says that it does not intend to provide written guidelines on the application of the new provisions. Consequently, the companies themselves will be responsible for developing compliance routines in relation to the new provisions. The FCCA has motivated this position by arguing that it is not possible to provide general binding instructions about the matter, since abuse of a dominant market position always requires a case-by-case evaluation. The FCCA has however had discussions with concerned companies in the groceries trade on issues brought up by them as well as on matters of concern that emerged in the FCCA’s earlier study on Trade in Groceries: “How does buyer power affect the relations between the trade and industry?” The FCCA says that the aim of these negotiations, still underway, is to identify the risks arising from abuse of dominant market position and to avoid conflicts with the law up-front.

FCCA has also said that it will initiate a further investigation on customer loyalty schemes and their effects on competition. According to Director General Mr Juhani Jokinen the FCCA will study the impact of customer loyalty schemes on consumers’ behaviour, i.e. whether the respective market positions of Kesko Food and S-group have been enhanced by their loyalty card schemes. The investigation will be carried out by FCCA’s own researchers and will also comprise the discounts and benefits given to the cardholders by third party partners of the dominant retailers. It is expected that the investigation will be concluded by the end of 2014.

The FCCA says that should the investigation show that the binding effects of the loyalty cards on consumers are too important there could be restrictions.
The FCCA also plans to conduct a survey on the practices related to the trade's private label products.

Tapani Manninen, Partner, Helsinki

Sweden - The Stockholm District Court rules on the principle of ne bis in idem

On 13 January 2014, the Stockholm District Court ruled that the Swedish Competition Authority (“SCA”) is not prevented from bringing an action claiming a fine against Swedavia AB (a state owned company that owns and operates the Arlanda Airport in Stockholm) for abuse of a dominant position even though the Swedish Market Court had already in a previous, unrelated, procedure examined and prohibited the same conduct of Swedavia.

On 23 November 2011, the Market Court found that Swedavia had abused its dominant position by requiring taxi companies to pay a fee of SEK 25 per customer for booked taxis in order to be permitted to pick up customers from the arrival hall by holding up a sign with the customer’s name on it. The Market Court ordered Swedavia to cease charging the fee, subject to a fine for non-compliance of SEK 2 million. On 18 June 2013, the SCA brought an action before the District Court claiming a fine of SEK 340,000 on Swedavia for the same abusive behaviour that the Market Court had already examined and prohibited. Swedavia claimed that the SCA’s action was inadmissible as it was contrary to the principle of ne bis in idem according to which no-one shall be tried or punished twice in criminal proceedings for an offence for which he has already been finally acquitted or convicted. Swedavia claimed that the Market Court has already tried and prohibited the abuse of dominant position, the conduct that constituted the cause of the SCA’s action.

The District Court rejected Swedavia’s claim. The District Court stated that fines for infringements of prohibited restrictions of competition are criminal in nature and, therefore, that SCA’s action claiming a fine for Swedavia’s abusive behaviour was criminal in nature. However, the previous legal proceeding in the Market Court, according to which Swedavia was ordered to cease its abusive behaviour, was not criminal in nature, as it concerned a prohibition under penalty of a fine and not the imposition of fines per se for infringements of competition law. The District Court ruled that the SCA’s action was not contrary to the principle of ne bis in idem and the SCA’s claim was admissible. The substantive review of the SCA’s claim is still ongoing.

The case is particularly interesting as it was initiated by Uppsala Taxi 100 000 AB by a complaint initially brought before the SCA. Uppsala Taxi claimed that Swedavia was abusing its dominant position and requested the SCA to prohibit Swedavia’s abusive behaviour. The SCA, however, found no grounds to investigate the case. As the SCA rejected the case, Uppsala Taxi, based on its subsidiary right of action, initiated proceeding before the Market Court, which in its turn, ruled that Swedavia did abuse its dominant position. Now the SCA is seeking to impose a fine on Swedavia for its abusive behaviour, the same behaviour that the SCA initially did not find any grounds to investigate.

Peter Forsberg, Partner, Stockholm
Liana Thorkildsen, Senior Associate, Stockholm

PROCUREMENT

EU/ Finland - Two recent decisions of the Court of Justice of the European Union on public procurement

Two recent decisions of the Court of Justice of the European Union – each of which deviated from previous Finnish practice – delineate the limits of discretion that contracting authorities enjoy under EU public procurement law when running a bidding contest.

In October 2013, the court issued a decision (C-336/12) concerning the principle of equal treatment in asking and receiving documentation from candidates. The contracting authority in question had requested candidates in the contract notice to submit a copy of the most recent balance sheet. The applications from two candidates did not include such copies. The contracting authority then sent an email to each of those candidates requesting a copy.
The court was asked whether the principle of equal treatment precludes contracting authorities from asking a candidate (after the deadline has passed for applying in a restricted procedure) to provide documents, describing that candidate’s situation, that were called for in the contract notice but were not included in that candidate’s application dossier. The court held that the principle of equal treatment does not preclude a contracting authority from asking a candidate to provide a copy of such a published balance sheet that can be objectively shown to pre-date that deadline – so long as it had not expressly stated in the contract documents that the application would be rejected unless such documents were provided.

In light of the decision, both contracting authorities and potential candidates should, thus, consider carefully the wording of a contract notice so as to evaluate whether an express requirement has been laid down to provide a balance sheet or like documents – under a threat of rejection.

In December 2013, the court issued a decision (C‑561/12) concerning the limits of discretion in negotiated procedures. The negotiated procedure in question concerned planning and construction of the road E263 in Estonia. The technical specifications laid down, among other things, the width of the central reservation of certain section of road. A candidate who had submitted a proposal with a different width had been admitted, however, to participate.
The court was asked whether the contracting authority may undertake negotiations when there are tenders that do not satisfy the mandatory requirements of the contract documents and whether the negotiations undertaken must, at the very least, lead to the successful tender’s being consistent with those mandatory requirements.

The court held that, while the contracting authority has the power to negotiate in the context of a negotiated procedure, it is still bound to make procure compliance with any mandatory requirements of the contract. Admitting a tender that does not comply with the mandatory requirements with a view to negotiations would, the court reasoned, deprive the mandatory conditions in the call for tenders of useful effect. Such behaviour would not allow contracting authorities to treat the tenderers equally. The EU Public Procurement Directive does not, in short, allow the contracting authority to negotiate with tenderers that do not comply with the mandatory requirements laid down in the technical specifications of the contract.

Mika Pohjonen, Specialist Partner, Helsinki
Toni Malminen, Senior Associate, Helsinki

Sweden - The Swedish government evaluates certain issues related to judicial reviews of public procurements

The Swedish Government has appointed a committee to review and evaluate certain issues related to the judicial review of public procurements. The purpose is to increase the efficiency of public procurements by finding new approaches to perceived economic and practical problems emerging from public procurements being delayed by court proceedings.

The appointed committee will, among other things:

  1. Analyze the possibility of implementing a preclusion period, obliging tenderers to voice any concerns with a public procurement at an early stage, at the risk of otherwise being barred from basing a claim on previously known circumstances;
  2. Investigate the possibility for contracting authorities and entities to perform a direct award procedure during the time a judicial review procedure is on-going, thereby lessening the impact of the proceedings for the contracting authority; and
  3. Investigate and consider whether provisions regarding allocation of legal costs in judicial reviews should be adopted, especially whether the litigation costs should be allotted in accordance with the rules applicable to civil litigation, where the losing party pays the counterparty’s costs.

The results of the evaluation are scheduled to be presented on 15 June 2014. For further information, please see Kommittédirektiv 2013:105 (in Swedish).

Joakim Lavér, Partner, Stockholm
Therese Eriksson, Associate, Stockholm