Arla Foods is not granted leniency in a case on unlawful cooperation

Arla Foods has admitted that it is guilty of the unlawful cooperation, but has claimed that it should not be subject to an administrative fine, as the undertaking has provided the Swedish Competition Authority with information and evidence regarding the infringements.

Since the information provided by Arla Foods consists of information the Swedish Competition Authority almost two months earlier had requested Arla to provide, the Swedish Competition Authority’s view has been that there is no reason to grant Arla Foods immunity from the administrative fine.

The Patent and Market Court of Appeal has now, like the Patent and Market Court, found that Arla Foods has infringed the competition rules, and has found that the prerequisites for granting Arla Foods immunity are lacking in this case. The Court emphasises that an undertaking cannot qualify for leniency where the information provided by the undertaking consists of information already specifically requested by the Swedish Competition Authority.

“We welcome the Court’s clarification that leniency is possible only when an undertaking – on its own initiative – provides information and evidence of significance to the Swedish Competition Authority. The judgment shows that it is important that undertakings are proactive and voluntarily step forward and reveal infringements or present crucial evidence to qualify for leniency. This highlights the importance of not postponing to inform the Swedish Competition Authority with information about an infringement,” says Rikard Jermsten, Director-General of the Swedish Competition Authority.

The Court has also found that Arla Foods should pay an administrative fine of SEK 1,130,000, the amount that the Swedish Competition Authority had claimed and that the Patent and Market Court previously decided on. The Patent and Market Court of Appeal has also described some principles on how the size of a fine is to be determined, including what could be taken into account to ensure that the fine has a deterring effect.

After having brought the action against Arla Foods, the Swedish Competition Authority has developed a new method for calculating administrative fines which may lead to raised administrative fines that are more in line with the level of corresponding sanctions in other EU Member States for equivalent infringements.

The decision of the Patent and Market Court of Appeal cannot be appealed.

Marie Strömberg Lindvall, Press Officer, +46(0)76 542 15 92, marie.stromberglindvall@kkv.se
Eva Persson, Legal Counsel, +46(0)8 700 15 87, eva.persson@kkv.se