Sweden

Status

Adopted

Explanatory note re status

The government bill proposed for the implementation of the Omnibus Directive into Swedish law was passed by the Swedish Parliament (Riksdagen) on 18 May 2022.The implementation will result in new and amended provisions in the following acts:

• The Act on Distance Contracts and Off-Premises Contracts (“Distansavtalslagen”)
• The Marketing Act (“Marknadsföringslagen")
• The Act on Contractual Terms and Conditions in Consumer Relations (“Avtalsvillkorslagen”)
• The Price Information Act (“Prisinformationslagen”)

The new and amended rules entered into force on 1 September 2022.

Implementation Act

Act amending the Act on Contractual terms and Conditions in Consumer Relations (Lag om ändring i lagen (1994:1512) om avtalsvillkor i konsumentförhållanden).
Act amending the Act on Price Information (Lag om ändring i prisinformationslagen (2004:347)).
Act amending the Act on Distance Contracts an Off-premises Contracts (Lag om ändring i lagen (2005:59) om distansavtal och avtal utanför affärslokaler).
Act amending the Marketing Act (Lag om ändring i marknadsföringslagen (2008:486)).

(Envisaged) Implementation Date

The new and amended rules entered into force on 1 September 2022.

Approach to implementation

Amendments to existing laws (see "Implementation Act").

Next steps

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A. Amendment to Unfair Contract Terms Directive (Directive 93/13/EEC)

What penalties can be imposed for infringements of consumer rights related to consumer contracts? 
Has the option to limit the penalties been implemented? 

A trader may be issued to pay a market disruption fee or be subject to an order in conjunction with a conditional fine if the trader, or a person acting on behalf of the trader, intentionally or negligently violates certain provisions in the Swedish Marketing Act, any of the provisions of Annex I to Directive 2005/29/EC (‘Unfair Commercial Practices Directive’) and other provisions under special regulation, such as the Swedish Price Information Act and the Swedish Act on Distance Contracts and Off-Premises Contracts.

By 1 September 2022 market disruption fines or conditional fines shall be fixed at no less than SEK 10,000 (EUR 1,000) and may not exceed 4% of the annual turnover. Similar fines may be issued for infringements of the Swedish Act on Contractual Terms and Conditions in Consumer Relations. If there are no indications for an estimate of the annual turnover, the maximum fine is EUR 2,000,000.

Sweden has refrained from acting on the option given by the Omnibus Directive to set higher maximum fines than the fines mentioned.

B. Amendments to Price Indications Directive (98/6/EC) 

I. What obligations must traders now comply with when advertising price reductions to consumers?

As a result of the implementation, each notice of price reduction must contain information about the lowest price that the trader has applied in a period of at least 30 days before the application of one of the price reductions.

The Swedish legislator has used one option to introduce certain exceptions. Therefore, the above does not apply to:

• goods which are liable to deteriorate or expire rapidly (in particular food).

The Swedish regulation is applicable for all kinds of products and services (i.e., goods, services and other utilities) except real estates and jobs. This means that the Swedish legislation is more extensive than the Omnibue Directive.

The above is stipulated in Sec. 7a of the Price Information Act.

II. What penalties can now be imposed for infringements of consumer rights related to the indication of the prices of products offered to consumers? What criteria have been established for the imposition of the fines?

As a result of the implementation, infringements of the new regulation in Sec. 7a of the Price Information Act are subject of market disruption fee up to the amounts previously specified. Besides the possibility to issue a market disruption fee, orders on prohibition can be used. These sanctions must be effective, detterent, and proportional. The indicative criteria for the imposition will be set out in Sec. 12 of the Price Information Act which refers to Sec. 10 of the Marketing Act. Such infringements are to be considered substantial.

C. Amendments to Unfair Commercial Practices Directive (2005/29/EC)

I. What are the implications of "digital services and content" now being considered "products" under the Unfair Commercial Practices Directive?

It was necessary to introduce a special regulation in the Act on Distance Contracts and Off-Premises Contracts that applies to agreements on digital content that are delivered on something else than a physical medium and regarding execution of digital services, in order to clarify the extent of the Act.

II. What changes for traders who offer goods and services of different traders or consumers on their website that are displayed in a certain order when searched by a consumer ("rankings")?

The trader must provide general information about the criteria that determine the ranking and their significance in relation to other criteria. Information must thus be provided about the criteria that individually or in combination are most important for the ranking. However, no detailed information is required on the ranking mechanism.

The information must be in a special section of the online interface and must be easily accessible from the place where the search result is presented. The information must be easy for a consumer to absorb. However, the information does not have to be presented in a customized way for each individual search.

This information does not have to be given by search engine providers pursuant to Article 2 (6) Regulation (EU) 2019/1150 of the European Parliament and the Council on June 20, 2019 on promoting fairness and transparency for business users of online brokerage services.

Failure by a trader to provide the required information may result in misleading by omission and the penalty provisions in the Marketing Act will apply. In order for a misleading act to be unfair, it is also required that it affects or is likely to affect the recipient's ability to make an informed business decision.

III. What are the transparency obligations that traders who operate online marketplaces where other traders and consumers can sell goods and services must comply with now?

If a consumer is offered a specific product with a price indication or several specific products with an indication of a common price, the trader operating the online marketplace shall inform the consumer whether the person offering the product is a trader or not, based on the information that the trader who operates the marketplace has received from the seller. The trader who operates the online marketplace has the right to use the information that the seller has given and is not obligated to specifically check the seller's legal status.

Lack of information can result in misleading by omission and the penalty provisions in the Marketing Act will apply. In order for a misleading act to be unfair, it is also required that it affects or is likely to affect the recipient's ability to make an informed business decision.

IV. Are there any new provisions for consumer protection against unfair practices in doorstep selling and commercial excursions?

Sweden has chosen not to introduce new regulations with respect to doorstep selling and commercial excursions.

There should be no specific restrictions in law regarding sales in a consumer's home or during excursions organized by the trader for marketing or sales purposes.

V. What transparency obligations must traders who publish consumer reviews now comply with?

In these cases, the trader must inform the consumer whether it is ensured that the reviews are made by consumers who have used or bought the product. If the trader has a method for deciding whether the reviews are made by real consumers, it must also be clear how such a check is carried out. There is no obligation for the trader to introduce such a verification system, but - in case no system is implemented - the trader must inform the consumer about this.

The information must be clear and ambiguities in the information can be considered as misleading by omission and the penalty provisions in the Marketing Act will apply. In order for a misleading act to be unfair, it is also required that it affects or is likely to affect the recipient's ability to make an informed business decision.

It is misleading to state that reviews are made by consumers who have used or purchased the product without taking reasonable and proportionate measures to ensure that reviews come from such consumers. It is also misleading to post or instruct other people to post false consumer reviews, false consumer recommendations, give a misleading picture of consumer reviews or consumer recommendations on social media to advertise products.

VI. What must traders who market a good, in one Member State, as being identical to a good marketed in other Member States, while the goods have a different composition ("dual quality"), consider now?

When marketing a product, the trader is not allowed to present it as identical to a product marketed in other Member States of the European Union if the composition or characteristics of the products differ significantly and this is not justified for legitimate and objective reasons. The provision only applies to the marketing of goods and is therefore not applicable for services. It is not misleading if the difference between the goods is easy to identify for consumers.

VII. Under what conditions and with what effects are legal remedies now available to consumers who have been harmed by unfair commercial practices?

In accordance with Sec. 37 of the Marketing Act, consumers who have suffered damage from unfair commerical practices are entitled to compensation under the conditions that the trader acted intentionally or negligently. Furthermore, the compensation only applies to pure property damage. The provision primarily aims to regulate non-contractual relations. The aim with the possibility for compensation is to act preventively and provide financial compensation for consumers who have suffered damages due to improper marketing activities. The paragraph covers all types of infringements of national regulations adopted on the basis of the Unfair Commercial Practices Directive.

In light of the above, the Swedish legislator considers the means for compensation that are already regulated in the Marketing Act and other consumer protection laws to meet the requirements of the Omnibus Directive stipulating that consumers shall be given the right to compensation in connection with unfair commercial practices by the trader.

VIII. What penalties can be imposed for infringements of consumer rights by unfair commercial practices?

Pursuant to Sec. 23 of the Marketing Act, traders who apply improper marketing practices may be subject to penalties for intentional or negligent infringements of certain provisions in the Marketing Act, any of the provisions of Annex I to Directive 2005/29/EC (‘Unfair Commercial Practices Directive’) and other provisions under special regulation. They can be ordered to discontinue the marketing practice or any other similar practice. According to Sec. 24, a trader who fails to provide essential information when marketing a product may be ordered to provide such information. A prohibition or imposition shall be combined with a conditional fine, if not unnecessary by special reason.

D. Amendments to Consumer Rights Directive (2011/83/EC)

I. What are the implications of "goods with digital elements" and "digital services and content" now falling within the scope of the Consumer Rights Directive? Must traders consider any new information requirements?

Due to the Omnibus Directive amending the Consumer Rights Directive, goods with digital elements as well as digital content and digital services are now subject to the same rules as all other goods and services. Therefore, the definitions of the terms are aligned with the Act on Distance Contracts and Off-Premises Contracts.

After the definitions, there are certain requirements regarding pre-contractual information. The concept of functionality aims at the information requirement in Chapter 2 Sec. 2 in the Act on Distance Contracts and Off-Premises Contracts. Before the signing of the contract the trader must inform the consumer about the functionality of the goods with digital elements, digital content and digital services, including technical protection measures. These circumstances already follow from the current wording of the provisions, hence, it is not neccessary to define the term "functionality" in the Act.

Before the signing of the contract the trader must also inform the consumer about compatibility and interoperability between goods with digital elements, digital content and digital services, to the extent that the trader knows or should know about it.

II. Do the national provisions that transpose the rules under the Consumer Rights Directive also apply when consumers "pay" for the provision of digital content or services with personal data?

By implementing the Consumer Rights Directive and the Digital Content Directive, the Swedish consumer regulations also apply to contracts for the provision of digital content on something other than a tangible medium or a digital service to a consumer where the consumer does not pay a monetary price but provides personal data to the trader.

However, that does not apply if the trader processes the personal data provided by the consumer for no other purposes than:

• fulfilling its contractual obligations by supplying the digital content or service; or
• for complying with legal requirements to which the trader is subject.

III. What new information obligations and formal requirements must traders comply with for distance or off premise contracts with consumers?

According to Chapter 2 Sec. 1a of the Distance Contracts and Off-Premises Contract Act, traders must always provide their telephone number to the consumer when concluding a distance or off-premise contract. The obligation to indicate the fax number, on the other hand, is no longer applicable. In addition to the telephone number and the e-mail address, information about other means of communication that enable consumers to store correspondence with the trader on a durable medium must also be provided now.

Besides, there is a new information obligation in Chapter 2 Sec. 2.4 of the Distance Contracts and Off-Premises Contract Act. According to this traders must inform consumers if they have personalised the price of the specific product/service on the basis of automated decision-making. The information must be provided in a clear and comprehensible manner before the conclusion of the contract with the consumer.

IV. Which additional specific information requirements apply for contracts concluded on online marketplaces?

If a consumer is offered a specific product on an online marketplace with a price indication or multiple products with an indication of a common price, the trader operating the marketplace must inform the consumer as to whether or not the person selling the product is a trader, based on the information provided by the person selling the product.

Pursuant to the new and amended provisions in the Marketing Act and Distance Contracts and Off-Premises Act, several information obligations apply to operators of online marketplaces. These information obligations, inter alia, include information about:

• the main parameters for determining the ranking presented to the user;
• whether the third party offering their goods, services or digital product is a trader or not;
• the non-applicability of consumer protection law if the third party offering the goods, services or digital product is not a trader; and
• where applicable, how the obligations related to the contract are shared between the third party offering the goods, services or digital product and the operator of the online marketplace.

The Swedish legislator did not make use of the option provided in the Omnibus Directive to impose additional information requirements for providers of online marketplaces.

V. In case of a withdrawal by the consumer: What must traders consider with regard to the use of content (other than personal data) created or provided by the consumer when using digital products provided by the trader?

After termination of the agreement, including in case of withdrawal from the agreement, traders must refrain from using the content that is not personal data and that was provided or created by the consumer when using the digital content or services provided by the trader, unless that content:

1. has no use outside the context of the relevant digital content or digital services;
2. is related exclusively to the activity of the consumer when using the relevant digital content or the digital service;
3. has been aggregated by the trader with other data and cannot be disaggregated or can only be disaggregated with disproportionate effort; or
4. was created by the consumer together with others, provided that other consumers can continue to use the content.

The trader must - upon request - also provide the consumer with the content provided or created by the consumer (unless the first three exceptions (1-3) as mentioned above apply), which must be done free of charge, within a reasonable period of time and in a common and machine-readable format.

VI. What are the new provisions for the expiry of / exceptions from the consumer's right of withdrawal?

In the case of contracts for the provision of services where the consumer does not pay a price but provides personal data, the right of withdrawal expires when the services are fully provided, e.g. in case of a one-time-provision of a file for download. If a service is to be provided permanently (or for a longer term), then the right of withdrawal does not expire with the first provision. In this case the general withdrawal period of 14 days applies.

With regard to contracts for the provision of services for which the consumer pays a price, the right of withdrawal does not expire until the services have been fully provided and the consumer has consented to the service before the expiry of the withdrawal period acknowledging the expiry of the right of withdrawal.

In the case of contracts for digital content that is not delivered on a durable medium and for which no price is paid, the right of withdrawal expires at the beginning of the performance of the contract.

With regard to contracts for digital content that is not delivered on a durable medium and for which the consumer pays a price, the right of withdrawal only expires if the consumer expressly consents to the performance during the withdrawal period confirming his/her knowledge about the expiry of the right of withdrawal and if the trader expressly confirms this consent to the consumer.

VII. What penalties can be imposed for infringements of consumer rights?

Currently, the penalty provisions under Swedish law for infringements of consumer and marketing regulations consist of orders which may be issued in conjunction with conditional fines and market disruption fees which may be issued for intentional or negligent infringements of certain provisions in the Marketing Act, any of the provisions of Annex I to Directive 2005/29/EC (‘Unfair Commercial Practices Directive’) and other provisions under special regulation.

At this point, for infringements of the Price Information Act and Act on Distance Contracts and Off-Premises Contracts and the Act on Contractual Terms and Conditions in Consumer Relations the penalty provisions in the Marketing Act mentioned above shall apply, with the exception of the provisions on market disruption fees.

After 1 September 2022, as a result of the implementation of the amended Art. 24 of the Omnibus Directive, it is possible to issue market disruption fees according to the Marketing Act and issue fines according to the Act on Contractual Terms and Conditions in Consumer Relations in the minimum amount of SEK 10,000 (EUR 1,000) and in a maximum amount of 4 % of the trader's turnover in the financial year preceding the respective infringements.

E. Optional Provisions and Deviations

Has the Member State transposed a provision which is optional under the Omnibus Directive or made use of a deviation possibility provided for therein?

Optional provisions/deviations:

• Art. 8b of Unfair Terms Directive 93/13/EEC - Sweden has not made use of the optional limitation of penalties for infringements of consumer rights related to consumer contracts
• Art. 6a Price Indication Directive 98/6/EC - Sweden has made use of the option to exempt certain prodcuts or practices from the obligation to indicate the prior price when announcing a price reduction. In addition, Sweden has gone beyond the scope of the Price Indication Directive and has applied the requirements for the announcement of a price reduction not only to products (i.e., goods), but also to services.
• Art. 3 Unfair Commercial Practices Directive 2005/29/EC - Sweden has not introduced any provisions on contract terms that are unreasonable in any case. The provisions of market law contain only a more general provision on conditions that are to be considered unreasonable.
• Art. 11a Unfair Commercial Practices Directive 2005/29/EC - Sweden has not made use of the option to determine (further) conditions for the application and effect of remedies. The Swedish legislator stated that remedies are already adequately regulated in Swedish law and that the limitations are compatible with the EU principles of proportionality and efficiency and that no additional amendments are required.
• Art. 13 Unfair Commercial Practices Directive 2005/29/EC - No use was made of the option to limit fines to breaches of certain provisions of the Directive. Sweden has not made use of the option to regulate higher maximum fines than the ones provided for in the Directive.
• Art. 6a Consumer Rights Directive 2011/83/EC - Sweden has not made use of the option to add additional precontractual information obligations to online marketplaces.
• Art. 9 Consumer Rights Directive 2011/83/EC - Sweden has made of the option to extend the withdrawal period for consumer contracts concluded on occasion of doorstep selling or commercial excursions to 30 days.
• Art.16 (2) Consumer Rights Directive 2011/83/EC - Sweden has made no use of the option to derogate from some of the exceptions from the right of withdrawal set out in Article 16 (1) for contracts concluded in the context of doorstep selling or commercial excursions.
• Art. 16 (3) Consumer Rights Directive 2011/83/EC - Sweden has made use of the option to regulate that - in the case of service contracts where the consumer has specifically requested a visit from the trader for the purpose of carrying out repairs - the consumer loses the right of withdrawal after the service has been fully performed provided that the performance has begun with the consumer's prior consent.
• Art. 24 Consumer Rights Directive 2011/83/EC - Sweden has not used the option to regulate higher maximum fines than the ones provided for in the Directive.

Noteworthy points arising from legislative changes

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