Företagsobligationsmarknaden och likabehandlingsprincipen – en analys av principens tillämplighet och räckvidd

Sammanfattning: The corporate bond market has thrived in the past decade and emerged as a compelling capital source for companies, particularly in light of the tighter restrictions placed on banks following the financial crisis. Notwithstanding its growth, the legal aspects of the market have not received sufficient coverage in Swedish legal literature. This study seeks to examine the presence of a principle of equal treatment in the Swedish corporate bond market. A key aspect of the analysis is Article 18(1) of the Transparency Directive, as transposed in Sweden via Chapter 18, Section 3 of the Securities Market Act. The analysis assesses whether the equal treatment principle requires substantive equality in addition to an informational requirement. The considered view is that under EU law, the obligation to provide equal treatment is exclusively related to the provision of information. This conclusion is supported by a systematic and teleological interpretation of Article 18(1) and by CJEU case law, particularly the Audiolux case. However, upon examining the interpretations from other Nordic countries at the time of implementation, there appears to be a lack of uniform understanding regarding the provision's interpretation. The analysis then continues with a focus on Swedish law, which is feasible as the Transparency Directive is a minimum directive. Although EU law likely stipulates solely an obligation for informational equal treatment, the paper argues for the existence of a substantive principle of equal treatment at the Swedish level. This stance is reinforced by illustrating comparable situations in pursuant to Swedish company law, where the significance of the equal treatment principle for a properly operating market is emphasized. The PECL and DCFR also support this view. The principle of equal treatment must be observed in several relationships within the corporate bond market, specifically in the interactions between issuers and bondholders, as well as between bond agents and bondholders. The legal regulation for the former is primarily located in Chapter 18, Section 3 of the Securities Market Act, while for the latter, it is primarily derived from the Standard Terms and Conditions for Bonds. Even without such terms, it appears that a comparable requirement is probable to exist as a commercial practice between bond agents and creditors. The demand to treat each other in an equally substantial way is also viewed as applicable between creditors, and this stems from the fact that their interactions within a bond loan can be viewed as an unincorporated partnership (Sw. enkelt bolag). It is noteworthy that the matter discussed in this paper has not been tried by a court in Sweden. Finally, to support a strong and reliable market with efficient capital allocation, the need for further studies to deepen the legal understanding of the Swedish corporate bond market is highlighted.