Certifiering och konkurrens - Kan avtal om certifiering vara konkurrensbegränsande?

Sammanfattning: Certifying products with the purpose to better position products on the market is common. To distinguishing certification from standardization and labeling of products is difficult. There is no uniform definition of certification. According to case law, the Commission's guidelines, and the Swedish Competition Authority's report; certification is defined as a product being assessed according to a certain predetermined standard and that a certificate is issued by a third independent party. There are several parties involved in a certification agreement. The purpose of this thesis is to investigate the conflict that may arise when a certification agreement can end up in collision with the EU's prohibition of anti-competitive agreements and what implications this hold for the consumers. To investigate this, current EU law must be described, systematized and interpreted. This means that an EU legal dogmatic method is used. Case law must be analyzed on both EU- and national-level in order to meet the consumer perspective and to analyze the practical effects of certification. Certification can be beneficial for consumers and society. Consumers gain access to information and can make informed choices without having to search for the information themselves. Other values such as environmental values and animal rights can benefit from certification. If certification would increase the demand for healthier products, society's healthcare costs could be reduced. Nevertheless, certification can cause an anti-competitive behavior. This thesis examines the impact of certification on competition in the light of economic theories, EU competition law and case law. The most common behavior found has been to limit production primarily in the food industry where quality labels are used to control production. There have also been cases where a narrow product category is defined and used to create disadvantage for competitors, which has led to creating high barriers to entry, limiting production and impaired pricing competition. In some cases the certification surveillance system were used in order to disfavor competitors. Moreover, cooperation on certification schemes gives companies an opportunity to meet and discuss prices or market divisions. In the end, it is the consumers that will be affected by these anti-competitive behaviors, by higher prices and lower supply. The positive aspects of certification have not resulted in significant case law where certification agreements have been able to be justified under the exception rule in Article 101.3 in the Treaty on the Functioning of the European Union. It could be assumed that certification agreements, which are predominantly positive, never will end up under the Commission's radar. However, there is no guarantee that a well-made agreement will not have anti-competitive effects. However, there are certain requirements that should be complied with. A certification system should be open, transparent, independent and accessible to all, in order not to compromise competition.