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Kommunala konkurrensbegränsningar: Tillämpningen av 3 kap. 27 § konkurrenslagen
Karlstad University, Faculty of Arts and Social Sciences (starting 2013), Karlstad Business School (from 2013).
2025 (Swedish)Independent thesis Advanced level (professional degree), 20 credits / 30 HE creditsStudent thesisAlternative title
Municipal Anti-Competitive Practices : Chapter 3, Section 27 of the Swedish Competition Act (English)
Abstract [en]

The provisions on anti-competitive public sales activity (the so-called conflict resolution rule) in Chapter 3, Section 27 of the Swedish Competition Act (2008:579) came into force on 1 January 2010. The provisions aim to resolve competition conflicts between the public and private sectors when they operate as competitors in the same market. This paper examines how the provisions on anti-competitive public sales activity has been applied concerning municipal activities. According to the provisions, the state, a municipality, or a region may be prohibited from applying a certain practice in a commercial activity if it distorts or restricts, or is likely to distort or restrict, the conditions for effective competition in the market. However, a prohibition may not be issued for practices that are justifiable from a public interest perspective. Regarding municipalities and regions, they may be entirely prohibited from conducting a certain commercial activity that distorts or restricts competition. However, an activity may not be prohibited if it is in accordance with the law, meaning that it falls within the scope of municipal competence. Proceedings regarding prohibitions on practices and activities under the provisions on anti-competitive public sales activity are conducted in the Patent and Market Court by the Swedish Competition Authority. Competition between municipalities and private actors occurs in a wide range of markets. There is a risk that competition may be distorted in such cases, as municipal activities are generally conducted under different conditions than private enterprises. Municipal activities are largely financed by tax revenues. Municipalities cannot be declared bankrupt. Another factor is that municipalities are generally required to apply the cost-price principle, which essentially results in underpricing compared to private businesses, which are subject to market-based profitability requirements. Unlike the rest of Swedish and European competition legislation, the provisions on anti-competitive public sales activity are not based on the prohibition principle, which assumes that anti-competitive behavior is inherently harmful and should therefore be prohibited, but rather on the abuse principle. This principle assumes that behaviors assessed as harmful in individual cases may be prohibited. In contrast to the “regular” competition law provisions on prohibitions against anti-competitive cooperation, there is no requirement for a significant effect in Chapter 3, Section 27 of the Competition Act. According to the wording of the law, a prohibition may be issued even against a practice that is "likely" to distort or restrict competition. Despite this, court practice appears to have developed a form of significance requirement, and in practice, the Swedish Competition Authority has found it difficult to provide sufficient evidence for a prohibition to be issued. It may be questioned whether such a significance requirement was intended by the legislator when drafting the provisions on anti-competitive public sales activity. The paper also includes a comparative element, where Swedish and Finnish law are compared.

Place, publisher, year, edition, pages
2025. , p. 56
National Category
Law
Identifiers
URN: urn:nbn:se:kau:diva-103462OAI: oai:DiVA.org:kau-103462DiVA, id: diva2:1941519
Educational program
Juristprogrammet, 270 ECTS
Supervisors
Examiners
Available from: 2025-03-03 Created: 2025-02-28 Last updated: 2025-10-16Bibliographically approved

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