Avtalsrekvisitets innebörd vid ensidiga ageranden – Med fokus på beviskravet samt rättsfrågor

Competition within the European union is regulated through a system of competition rules, with the purpose of creating and maintaining an efficient market, the function of the inner market and the consumer welfare. The prohibition rule – see art. 101 TEUF and 2:1 KL – constitutes together an essential tool that ought to be used to break up unwarranted collaborations between two or more undertakings, which are harmful to the above-mentioned purposes. The applicability of the prohibition rule requires the commission or other competition authority to prove invoked facts of a case that initially shows that an agreement between two or more undertakings exists. In order fulfil the evidentiary requirement regarding the agreement requisite; the authorities need to prove the existence of either an agreement or a concerted practice. The agreement requisite within the scope of competition catches collaborations between two or more undertakings that displays a concurrence of will to act together toward a common goal, on the inner market. Notable is that certain, seen outward, unilateral conduct can be defined as just seemingly unilateral, where an agreement in some cases can be established. The more comprehensive goal with this essay is to create a more foreseeable application of 2:1 KL. To concretize the evidentiary requirement required regarding the facts of a case which, if being proved, establish an agreement or a concerted practice, especially regarding certain types of unilateral conduct, is a way to fulfil this essays more comprehensive goal. Therefore, the focus of this essay is to gather up all the aspects that is included and which affects the evidentiary requirement regarding the agreement requisite, but also to gather up all the factors that will affect the Swedish, national, courts when the case is about a unilateral disclosure of strategic information or a unilateral implemented policy in a selective distribution system. In this regard, it is about to precise what legal conditions that invoked and proved facts of a case need to consist of, in the hope of making the agreement requisite applicable. Two important questions arise in relation to this which is first to what extent EU-law should affect a Swedish, national, evidentiary requirement for the existence of an agreement and second if the evidentiary requirement, as seen today, is foreseeable. The principle of procedural autonomy will affect the evidentiary requirement regarding the agreement requisite, no matter if Swedish or EU competition rules are applied. It will mean that procedural aspects regarding the evidentiary requirement will be guided and established mainly through Swedish law. EU-based aspects regarding an evidentiary requirement should with benefit, and after careful consideration, be considering by the Swedish courts in this sense. Therefore, this essay establishes on one hand that the function of the rule, consequence-theory and presumption of innocence are aspects that leads to an acutely evidentiary requirement in regards to the agreement requisite. Also, on the other hand, it is established that principle of effectiveness and the function of the rule can be used to lower the evidentiary requirement regarding the same requisite. In a sense, the evidentiary requirement needs to be well balanced, where above mentioned aspects need to be taken into consideration. The evidentiary requirement for establishing an agreement or a concerted practice between two or more undertakings is set down in Swedish praxis as relatively high, which in my opinion makes sense. To use such a relative term for an evidentiary requirement presumes – on the other hand – that the legislator or the courts in detail goes through every aspect that influences the evidentiary requirement in question, which has not been done and which creates an unforeseeable evidentiary requirement regarding the agreement requisite. In relation to a unilateral disclosure of strategic information; the presumption of cause – the undertakings presume to take disclosed strategic information into consideration – and a parallel behaviour will be important aspects in the proceedings. In relation to a unilateral implemented policy in a selective distribution system the concurrence of will is central. The concurrence of will can be established by the commission or other competition authorities if they can prove an explicit or tacit consent. In this regard, it is essential to look whether an invitation from one party has been accepted by another, or if the parties share a common intention to act together toward a common goal. The evidentiary requirement for the agreement requisite – regarding the mentioned unilateral conducts – is not foreseeable and will most likely stay that way. The commission or other competition authority cannot create an exhaustive list of conducts that fulfil the evidentiary requirement for the agreement requisite in this sense, or to define the evidentiary requirement to a level where undertakings are full aware of its range. To create a somewhat more foreseeable evidentiary requirement, for Sweden, the legislator together with the Swedish courts could in a more detailed manner analyse all the aspects affecting the agreement requisite. Also, pinpoint to what extent EU-based aspects should be respected in this regard.