Heightened Scrutiny: The Swedish Competition Authority Adopts New Regulations and General Guidelines on Merger Notifications

On 27 March 2025, the Swedish Competition Authority (the “SCA”) adopted new regulations and general guidelines on merger notifications, KKVFS 2025:1, which will enter into force on 26 May 2025. The regulations and guidelines contain instructions for the notification and the information required when notifying a transaction under the national merger control rules in the Swedish Competition Act. Replacing the current regulations and guidelines, KKVFS 2010:3, the new regulations and guidelines introduce increased information requirements for notifying parties, e.g. requiring the submission of internal documents regarding the transaction, as well as a greater volume of market data than previously required. This change, along with ever-increasing regulatory requirements, makes the transaction process even more complex.

What is new?

The updated regulations and guidelines introduce several key changes:

• Internal Documents: Previously, the disclosure of internal documents discussing or analysing the transaction and the relevant markets were not required at the time of notification, although the SCA could request such disclosure at a later stage during the merger control review. The new rules require the submission of internal documents, with the scope depending on market shares and overlaps. If the transaction results in horizontal overlaps with a combined market share of at least 20% or vertical relationships with a market share of 30%, comprehensive documentation must be submitted to the SCA. This includes internal analyses, reports and market surveys (such as management presentations, offering memorandums, due diligence reports and similar) prepared to assess the transaction and the market, minutes from board meetings, and data useful for quantitative economic analysis.
• Relevant Market Definitions: Notifying parties are now required to discuss all reasonable alternative market definitions, addressing potential product and geographic market segmentations.
• Market Data: The information requirements for market data have increased, particularly for transactions with horizontal overlaps above 20% or vertical overlaps above 30%. Notifying parties are required to disclose, inter alia, details on planned products and estimated sales.

Other updates include clearer guidance on when to engage in pre-notification contacts, as well as editorial updates.

Greater demands

The regulations and general guidelines will entail a heavier workload on notifying parties in the planning and implementation of M&A transactions. The most significant change is the requirement to submit materials prepared to assess the transaction and the relevant markets, minutes from board meetings, and data useful for quantitative economic analysis.

Given these increased requirements, the SCA will likely place significant weight on internal documents which may be perceived as providing an insight into the parties’ rationale for the transaction and their views on the competitive landscape in the relevant markets. The rationale is to test whether the merger case put forward by the lawyers/economists in the notification (and subsequently) is consistent with the parties’ own internal commercial records and views. Given the SCA’s increased focus on internal documents, it is essential for companies to exercise increased caution in the language used in any deal-related documentation. Any language implying dominance/significant market power, intentions to “crush or foreclose competitors”, plans to “charge monopoly prices”, deteriorate the quality of products or reduce innovation are very likely to adversely affect the SCA’s review and cause substantial delays to the transaction schedule.

Concluding remarks: A changing regulatory framework

The Swedish and European merger control regimes have recently experienced significant changes and are facing further developments. The European Court of Justice’s judgement in Illumina Grail (our previous blog post regarding the case is available here), and the European Commission’s withdrawal of its Article 22 Guidance have curtailed the ability of national competition authorities to refer below-threshold transactions to the European Commission. It remains to be seen which role the national competition authorities’ call-in powers will have (our previous blog post regarding the SCA’s call-in powers is available here). Additionally, a Swedish Government-commissioned inquiry recently proposed granting the SCA the power to require companies to disclose information about planned transactions below the merger control thresholds in the Swedish Competition Act (our previous blog post regarding the proposal is available here). The SCA has further submitted a proposal to the Swedish Government suggesting significant amendments to the Swedish merger control rules, including removing the geographic area size requirement (“substantial part of Sweden”) for prohibition or injunction, and changing the Phase II investigation deadline from three months to 90 business days (our previous blog post regarding the proposal is available here).

These developments will likely lead to an increasingly complex M&A process. It will be essential to engage legal, and in many cases economic, counsels early in the transaction process. Alongside other new regulatory requirements, such as the Swedish Foreign Direct Investments regime (with a European regime expected soon) and the European Foreign Subsidies regime, the revised merger regulations and general guidelines are expected to result in higher transaction costs, extended timelines, and increased complexity.