Konkurrensbegränsande offentlig säljverksamhet - Privata aktörers rätt att agera på en fri marknad

Sammanfattning: The purpose of this paper is to analyze, in a Swedish perspective, the rule of restriction or distortion by public sales operations in Chapter 3. Section 27 of the Competition Act (2008:579) (KL) and clarify how the rule is used to regulate competition problems between public and private actors. The essay is based on the questions how the rule on anticompetitive public sales operations has been developed in practice and, more specifically, whether there is any requirement for the size of the operation for the rule to be applicable. For almost ten years, a number of cases have been brought to trial, three of which has been taken to the highest court, MD (current PMÖD). The paper argues that, although few cases has made it to trial, the rule has had a great impact in the form of a self-regulation effect by public actors. Municipalities, regions and state authorities are changing their behavior on the public market in conformity with the regulation. From the complainant's side, which in most cases is the Swedish Competition Authority, the introduction of the rule has made it possible to tackle competition problems between municipal and private actors to a greater extent than before. The conclusion after an investigation of cases from MD is that it is not considered a restriction of competition by the market if the public operator has a small market share. This is regardless of whether or not the public operator benefits from its public position.