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Sweden / Market Court / MD 2015:4

The Swedish Competitions Authority v Swedavia

Policy area:
Justice, freedom and security
Deciding Body type:
National Court/Tribunal
Type:
Decision
Decision date:
17/04/2015

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.