Företagsförvärv i kris - Vad är egentligen tanken med doktrinen om räddningsförvärv?

Sammanfattning: The competition law has a reality to relate to in the same manner as every other branch of law. The failing firm defence is an example of how competition law has adapted to events in society. This paper analyses the rules relating to the failing firm defence by examining their function and application. In order to understand the rules on a deeper level I identify the established law, case law and literature of jurisprudence. The first issue of the paper is if the failing firm defence should be considered as an exception from the rules for merger control. The second issue is which values and interests that justifies the application of the rules. The methods used for the purpose of the analysis are legal dogmatics and sociology of law. To begin with, I identify the rules in the sources of law from the EU and Sweden. Thereafter follows a presentation of relevant case law where the failing firm defence has been applied in the above mentioned legal systems. In order to deepen the understanding of the rules I examine different perspectives in the literature of jurisprudence. Based on the findings in the paper I conclude that the failing firm defence should not be considered as an exception within competition law. On the other hand, it should be considered as a valve in the rules of merger control where they form an integrated criteria in the assessment of a merger. A clear pattern emerges regarding what values and interests that are motivating the decisions as well as the existence of the rules. Values connected to competition and efforts to keep assets in the market are highlighted by the instances. This resonates with EU’s focus on safeguarding their internal market and the consumers within the European Union. Other interests that emerge are connected to social values and public policy. This reinforces my conclusion that the failing firm defence should be considered as a valve in the rules for merger control where interests that are not strictly connected to competition can be regarded. One specific value that is stressed in particular is the consumer welfare within EU’s internal market.