Sweden / Market Court / MD 2015:4 The Swedish Competitions Authority v Swedavia

Facts of the case:

The case concerns the imposition of a fine to Swedavia due to their position in the market for the provision of a queuing and processing system for a taxi service at Arlanda airport, as well as the withdrawal of a reservation fee and a billboard fee. The Market Court condemnes Swedavia, conducted by Uppsala Taxi 100 000 AB, to pay the penalty of a fine (vid vite) of two million SEK on 23 November 2011, and was ordered to cease to levy an additional reserving fee of 25 SEK for ‘high service’ (plate fee) which was introduced on 7 February 2011. The Swedish Competition Authority has then brought proceedings before the District Court of Stockholm v. Swedavia regarding fines relating to plate fee, regarding a certain time up to 23 November 2011. Swedavia claims that the action of the Swedish Competiton Authority is dismissed as there is procedural hindrance, because Swedavia by imposition of fine has already been tried for the actions covered by the Swedish Competitions Authority’s action (ne bis in idem), to which the Swedish Competitions Authority’s actions are not  permitted under Chapter 3 paragraph 7 of the Competition Act. The District Court has left Swedavia's claim as unfounded. Swedavia has appealed the District Court decision to the Market Court.

Outcome of the case:

The Market Court found that the objective of competition damage is of a criminal nature. The question is whether the case of the imposition of a fine is considered to be of criminal nature, as of art. 6 of the ECHR. The concept of being accused of a crime is autonomous in the sense that it should be independently and universally interpreted when applying the convention and the protocol. The European Court of Human Rights has emphasized in their court practice that the judicial qualification in the national court can not be decisive on its own, since such a system would make it possible for the states to form their legislation in a way that is incompatible with the purpose of the Convention. Furthermore, as the Court stated in a previous case (Zolotukhin v. Russia), the second and third criteria not necesseraly are cumulative but can rather be alternative. Additionally, this relation does not exclude a complete assessment of the criteria when a separate analysis of them does not lead to a clear conclusion regarding the question of wether there is an accusation of a crime or not.

The Market Court considered that the conditions of this case cannot form alone the basis for assessment of the procedure when applying article 4.1 of the Protocol and article 50 of the Charter. The provision in chapter 3 paragraph 7 of the Competition Act does not hinder the fines imposed for an infringement, which formed the basis for a decision on a penalty imposition. The provision must be considered to meet the requirements of clarity, as of the principle of legality, in a regulation of this kind. Nor does the general principle of ne bis in idem hinder the fines imposed in a case like this, because the penalty payment obligation is not of criminal nature. Swedavia has been able to predict that a breach of the rules prohibiting the abuse of a dominant position could lead to action against the company regarding both imposition of fine as well as sanction charges.

To conclude, the imposition of a fine due to a dominant position has not been considered being of criminal nature, either considering to its nature or its severity. Not even a collected assessment of the nature of the act and the nature of the sanction and severity leads to a conclusion that an imposition of a fine constitutes an accusation of a crime. 

Paragraphs referring to EU Charter: 

 

The right not to be tried twice:

38. The prohibition of double prosecutions and punishments are in both the Europe Convention seventh additional protocol (the protocol) and in the EU Charter of Fundamental Rights (Charter). It is stated in Article 4.1 of the protocol that no one shall be tried or punished again in criminal proceedings in the same state in which he or she has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. And according to article 50 in comparison with Article 51 of the Charter of Rights, no case of application of Union law tried or punished again for an offense for which he or she has already been acquitted or convicted within the Union by a final judgement in accordance with the law.

39. The question of the relationship in this respect between Swedish law on the one side and the regulations of the protocol and Charter of Rights on the other, have on several occasions been the subject of assessment, both for the legislator and the Swedish courts, by the European Court of Human Rights and the Court of Justice of the European Union, mostly regarding tax procedures. A fairly detailed explanation of the judgments made in the mentioned context are presented in the ruling of the Supreme Court in NJA 2013 p. 502 (plenary), where the Court amending its earlier practice held that the right not to be tried twice for the same action covers inter alia the system of penalties and sanctions for crimes against the Tax Procedures Act (1971: 69). (Regarding article 4.1 of the protocol, see Hans Danelius, Mänskliga rättigheter i europeisk praxis, fourth ed. P. 611 f. and Iain Cameron, An Introduction to the European Convention on Human Rights, 7 ed. P. 156 f. ).

40. The first condition for the application of Article 4.1 of the protocol and Article 50 of the Charter of Rights is, that the same criminal act is reviewed twice. According to the European Court of current practice, Article 4.1 should be understood to prevent a retrial in so far as it covers identical facts or facts which are substantially the same as regards the first (see European Court in Case No 14939/03, Zolotukhin v Russia, § 82). The trial will be based on what constitutes concrete factual circumstances involving the same defendant and which are inextricably linked together in time and space (§ 84).

41. Another condition for the application of Article 4.1 of the Protocol and Article 50 of the Charter of Rights is that the sanctions under consideration are criminal in nature. The assessment of the sanction shall according to the application be under both the provisions of the Protocol on the Charter of Fundamental Rights, according to three criteria: the legal classification of the offense in domestic law, nature of the breach and the nature and severity of the sentence (see European Court of Human Rights judgment in Case 5370/72, Engel and others v. the Netherlands, § 82, and the European Court of Justice in Case C-489/10, Bonda, paragraphs 37 and 39, and C-617/10, Akerberg Fransson, paragraph 35).

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47. Cases concerning, inter alia, fine damages obligation of the kind that the Market Court decided in its judgment in MD 2011: 28 are dealt with under the provisions of out-of-court settlement of the Code of Judicial Procedure (Chapter 8. 2 § KL). In this respect, therefore, the procedure for examination of questions concerning the imposition of the kind now in question qualified as a civil procedure. The obligation to compensate loss (Chap. 3 § 25 KL) that occured as a result of anti-competitive cooperation (2 Ch. 1 § KL) or abuse of dominant position (2 ch. 7 § KL) contains KL also material provisions of a purely civil nature . These conditions can not alone be the basis for the assessment procedures for the application of the first criterion under Article 4.1 of the Protocol and Article 50 of the Charter of Rights.

Deciding body (original language): 
Marknadsdomstolen
Language: 
Swedish