European Commission

 

Enforcement fiche for Sweden



I. ADMINISTRATIVE ENFORCEMENT
Which administrative mechanisms are available to enforce the UCP Directive? The Swedish Consumer Agency (Sw. Konsumentverket) and the Consumer Ombudsman (Sw. Konsumentombudsmannen) compose the supervisory authority for a number of laws in the consumer area, inter alia the Marketing Practices Act. The Authority is committed to adherence to the laws that apply, and that consumer rights will be respected. The Swedish Consumer Agency/Consumer Ombudsman are able to take action against misleading advertising and other types of marketing, unfair contract terms, incorrect price information and dangerous products and services. The general website of the Authority can be found at http://www.konsumentverket.se/.
Who can file administrative complaints? The Consumer Agency and the Consumer Ombudsman allows administrative complaints to be filed by every natural or legal person. There is no need to prove a legitimate interest. Although, the Swedish Consumer Agency and the Consumer Ombudsman are acting on behalf of the consumer and will only further investigate complaints that relate to a consumer interest. Such interest is found when the complaint is made by a consumer.
Do any specific procedural requirements apply to filing administrative complaints? A complaint should include the advertising, the contractual terms, the packaging, the product or anything else that is to be reported as incorrect in a marketing perspective. With regard to radio or television advertising, the complaint must include the date the advertisement was broadcasted, time, channel and which company the advertisement can be related to. A complaint can be filed by mail or e-mail.
Do the administrative authorities have an obligation to investigate the complaint? The Consumer Agency reviews and archives all complaints, but does not have any obligation to investigate all complaints further. The Consumer Agency will only further investigate complaints that relate to a consumer interest. Such interest is found when the complaint is made by a consumer.
Are there any specific requirements regarding the provision of evidence to the competent authorities? See above regarding the information required to file a complaint.
II. ENFORCEMENT THROUGH COURT ACTION
Which court actions are available to enforce the UCP Directive? A trader whose marketing practices are unfair may be enjoined from continuing the practice or from adopting any other similar practice (cease and desist orders). Such injunction may also be issued against an employee of the trader, any person acting on the trader’s behalf and anyone who has substantially contributed to the marketing practice. A trader who, in the course of its marketing, fails to provide material information may be ordered to provide such information (information orders). Such an order may also be issued to an employee of the trader and any person acting on the trader’s behalf. Furthermore, a trader may be obliged to pay a fine for disruptive marketing practices when violating specified provisions of the Marketing Practices Act. The fine is applicable for, inter alia, violations of the provisions of Annex I to Directive 2005/29/EC. A trader may also be obliged to pay damages when violating an issued injunction.
Who can start a court action? Proceedings in respect of an order or injunction may be commenced by the Consumer Ombudsman, the trader affected by the marketing practices, or an organisation of consumers, traders or employees. Proceedings concerning a fine for disruptive marketing practices shall be commenced by the Consumer Ombudsman in the Stockholm District Court. If the Consumer Ombudsman decides in a particular case not to commence proceedings for the imposition of a fine for disruptive marketing practices, an individual trader affected by the marketing practice and an organisation of traders may commence such proceedings. Proceedings for imposition of conditional fines which have been ordered on the basis of the Marketing Practices Act shall be commenced in a district court. Proceedings may be commenced by the person who sought issue of a conditional fine and by the Consumer Ombudsman. Proceedings for damages shall be commenced in the Stockholm District Court. Such proceedings may also be commenced in a district court which has jurisdiction pursuant to Chapter 10 of the Code of Judicial Procedure.
Can court actions be initiated by competitors? Yes, court actions may be initiated by competititors, if such competitor is a trader affected by the marketing practices.
Can the case be handled through an accelerated procedure? The court may order that an injunction or an order shall apply until further notice, if the plaintiff establishes probable cause for its claim and it can be reasonably assumed that the defendant, by taking or omitting to take specific action, can reduce the effectiveness of an injunction or order. The decision may enter into force immediately.
Are there any specific requirements regarding the provision of evidence to the court? The Marketing Practices Act does not contain such requirement. Consequently, the general rules on evidence as laid down in the Swedish Code of Judicial Procedure are applicable. The Code of Judicial Procedure sets forth the principle of free assessment of evidence in its Chapter 35 § 1, which includes both the principle of the validity of any evidence and the free evaluation of evidence. With the validity of any evidence means that evidence is in principle not subject to restrictions on the sources that may be used to determine truth. The parties in a trial are therefore entitled to invoke any form of evidence, except as for such information subject to doctors and lawyers' professional secrecy. The principle of free evaluation of evidence in turn means that the judge is free to determine the value of the evidence presented at trial.
III. SANCTIONS
What are the possible civil sanctions and remedies for the infringement of the UCP provisions? An injunction pursuant cease and desist or information, as described above II, shall be issued in conjunction with a conditional fine unless special reasons render such fine unnecessary. A trader may also be ordered to pay a fine for disruptive marketing practices where the trader, or any person acting on behalf of the trader, intentionally or negligently breaches a number of provisions specifically specified in the Marketing Practices Act. The fine is applicable for, inter alia, violations of the provisions of Annex I to Directive 2005/29/EC. The fine for disruptive marketing practices shall be fixed at no less than SEK 5,000 and no more than SEK 5 million. The fine may not exceed 10% of the trader’s annual turnover. The court may furthermore issue a restraining order in order to secure a claim relating to a fine for disruptive marketing practices. A trader who intentionally or negligently violates an issued injunction or order or a provision specifically specified in the Marketing Practices Act such as, inter alia, the provisions of Annex I to Directive 2005/29/EC, shall compensate any consumer or trader for any damage suffered thereby. In determining the amount of compensation to be paid to a trader, account may be taken of circumstances other than those of a financial nature. In the event of a violation of an injunction the court may, where reasonable, order that any misleading presentation on goods, packaging, printed matter, business documents or suchlike be removed or altered so that it is no longer misleading. If that objective cannot be achieved in any other manner, the court may order that the property be destroyed.
What are the possible criminal sanctions for the infringement of the UCP provisions? The Marketing Practices Act does not contain such provisions.
What are the possible administrative sanctions for the infringement of the UCP provisions? In cases of minor importance, the Consumer Ombudsman may issue orders concerning injunctions (cease and desist orders) or information orders. The orders shall be issued in conjunction with a conditional fine. In order to be valid, an information order must be accepted by the trader immediately or within a specific period of time. If the order has been accepted, it shall apply as if it were a final judgment of a court. Otherwise, the Consumer Ombudsman may, at its sole discretion, initiate legal proceedings.
What are the contractual consequences of an administrative order or a judgement relating to an unfair commercial practice on an individual transaction? There are no contractual consequences in respect to the individual transaction of an administrative order or a judgement relating to an unfair commercial practice. The sanctions of the Marketing Practices Act do not result to contractual invalidity or similar.
How can consumers get redress/compensation (e.g. through collective actions)? Consumers may be awarded damages when a trader intentionally or negligently has violated an issued injunction or order or a provision specifically specified in the Marketing Practices Act such as, inter alia, the provisions of Annex I to Directive 2005/29/EC. The damages shall correspond with the damage suffered because of the violation. In determining the amount of compensation to be paid to a trader, account may be taken of circumstances other than those of a financial nature. Exclusively financial damages are payable and the obligation of damages requires adequate causality. The estimation of damages is made in relation to each case and is based on the circumstances thereof. As described above section II, proceedings in respect of an order or injunction may be commenced by an organisation of consumers. However, damages are estimated on an individual basis. The Marketing Practices Act does not contain any provisions on compensation through collective action.
Can the administrative authorities or the courts require the publication of their decisions? Both the administrative authorities and the courts publish their decisions, which are publicly available. However, the Marketing Practices Act does not contain any provisions which enables the court or the administrative authority to require that their decision are published in any other manner.
IV. OTHER TYPES OF ENFORCEMENT
Are there any self-regulatory enforcement systems in your jurisdiction that deal with aspects of the UCP Directive? The National Board for Consumer Complaints (ARN) is a public authority that functions roughly like a court. Its main task is to impartially try disputes between consumers and business operators. Petitions are filed by the consumer. The Board submits recommendations on how disputes should be resolved, for example that the business operator shall repair the defect on a product. The Board's recommendations are not binding, but the majority of companies nonetheless follow them. The Board's inquiry is free of charge. The Swedish Consumer Agency and the Consumer Ombudsman compose the supervisory authority of inter alia the marketing regulation and, in addition to the above described measures, have its self-regulatory enforcement system. The Consumer Agency/Consumer Ombudsman publishes its own code of statute and related publications, such as, inter alia, The Nordic Consumer Ombudsmen's position on good marketing on the Internet, which is considered good practice. It furthermore negotiates trade agreements that are indicative for both traders and consumers and provides guidance in relation to applicable laws and regulations.
Are there any mediating services that deal with aspects of the UCP Directive (e.g., an ombudsman)? As described above section I, Sweden has a Consumer Ombudsman that may issue orders and injunctions in conjunction with conditional fines in cases of minor importance. However, the Consumer Ombudsman is obliged to initiate legal proceedings when the legal position is unclear, or the case does not involve a case of minor importance, and may also initiate legal proceedings when issued orders are not accepted. Neither the Consumer Agency/Consumer Ombudsman or the ARN provide advice on individual cases, which is provided by the Consumer Guides, which work in close relation to the Consumer Agency.