Competition Act (1993:20) (as amended up to Act (1994: 1846)), Sweden

SE032: Anti-Competitive Practices, Act, 14/01/1993, No. 20 https://www.wipo.int/clea/docs/en/se/se032en.html

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Promulgated January 14, 1993 (1993:20)

Introductory provisions

Section 1 The purpose of this Act is to eliminate and counteract obstacles to effective competition in the field of production of and trade in goods, services and other products. Section 2 This Act shall not apply to agreements between employers and employees relating to wages and other conditions of employment. Section 3 (1) For the purposes of this Act an undertaking shall be defined as a natural or legal person engaged in activities of an economic or commercial nature. To the extent that such activities involve the exercise of authority they shall not fall within the scope of this definition. (2) The term undertaking shall also include associations of undertakings. (3) The provisions of the Act relating to agreements shall also apply to: 1. decisions by an association of undertakings; and 2. concerted practices of undertakings. Section 4 (1) For the purposes of this Act the acquisition of an undertaking shall be defined as the acquisition of an undertaking established in this country. The definition shall also include acquisitions of separate business activities and mergers. (2) An acquisition where the ownership of an undertaking or a business activity is not transferred in toto shall be deemed to be an acquisition of an undertaking within the meaning of this Act only if the acquisition enables the purchasing party to exercise a decisive influence over the undertaking or business activity. Section 5 (1) Where both the provisions of this Act and the competition rules laid down in the European Economic Area (EEA) Act (1992:1317) are applicable in an individual case, decisions taken in pursuance of this Act must be compatible with the said provisions. (2) This Act shall not be applicable to the fixing of prices referred to in the European Coal and Steel Community Act (1972:762) if this conflicts with the terms of agreements provided for in section 1 of that Act.

Prohibited restrictions on competition

Anti-competitive cooperation between undertakings

Section 6 (1) Without prejudice to decisions taken pursuant to section 8 or 15 or to section 13 or 17, agreements between undertakings shall be prohibited if they have as their object or effect the prevention, restriction or distortion of competition in the Swedish market to an appreciable extent. (2) This shall apply, in particular, to agreements which: 1. directly or indirectly fix purchase or selling prices or any other trading conditions; 2. limit or control production, markets, technical development, or investment; 3. share markets or sources of supply; 4. apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; or 5. make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts. Section 7 Any agreements or provisions included in agreements that are prohibited under section 6 shall be void.

Decisions on exemptions

Section 8 (1) The Swedish Competition Authority may in individual cases grant an exemption from the prohibition laid down in section 6 where an agreement: 1. contributes to improving the production or distribution of goods or to promoting technical or economic progress; 2. allows consumers a fair share of the resulting benefit; 3. only imposes on the undertakings concerned restrictions which are not indispensable to the attainment of the objective referred to in point 1; and 4. does not afford such undertakings the possibility of eliminating competition in respect of a substantial proportion of the products in question. Section 9 (1) If an undertaking wishes to obtain an exemption under section 8, it shall notify the agreement to the Swedish Competition Authority. (2) The Swedish Competition Authority may not take a decision on exemption until the undertaking has submitted such a notification. Sections 10

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(1) Decisions on exemptions under section 8 shall specify the date from which the exemption shall take effect. This date may be earlier than the date of the decision. (2) The decision shall be issued for a specified period and conditions and obligations may be attached thereto. Section 11 A decision on exemption under section 8 may be renewed if the requirements set forth therein continue to be satisfied.

Revocation or amendment of decisions on exemption

Section 12 (1) The Swedish Competition Authority may revoke or amend its decision on exemption where: 1. there has been a change in any of the facts which were basic to the making of the decision; 2. the parties commit a breach of any obligation attached to the decision; 3. the decision is based on incorrect or misleading information; or 4. the parties to whom the decision applies abuse the exemption. (2) In cases to which points 2, 3 or 4 apply, the decision may be revoked with retroactive effect.

The granting of exemptions where no decision is issued within a specified period

Section 13 (1) If the Swedish Competition Authority does not take a decision relating to a notification submitted in accordance with section 9 within three months of the date of receipt, an exemption from the prohibition laid down in section 6 shall be deemed to have been granted in conformity with the notification for a period of five years from the date of conclusion of the agreement. (2) The above provision shall not apply in cases where the Swedish Competition Authority within the three months period opposes the agreement. Section 14 The Swedish Competition Authority may revoke an exemption granted under section 13 if the agreement has effects that are incompatible with section 8.

Exemptions granted by the Stockholm City Court

Section 15 In examining an obligation imposed under section 23 the Stockholm City Court may, at the request of a party, grant an exemption pursuant to section 8 in respect of an agreement which is prohibited under section 6 but satisfies the requirements for an exemption under section 8. Section 10 shall be applicable in such cases. Section 16 The Swedish Competition Authority may renew, revoke or amend a decision taken pursuant to section 15. Sections 11 and 12 shall be applicable in such cases.

Block exemptions

Section 17 (1) Exemptions from the prohibition contained in section 6 shall apply to categories of agreements that satisfy the conditions specified in section 8 (block exemptions). (2) The categories of agreements referred to in subsection (1) shall be specified in implementing provisions by the Government or an authority so empowered by the Government. (3) Agreements which are eligible for a block exemption need not be notified in accordance with section 9 for the purpose of obtaining an exemption. Such agreements may, however, be notified. Section 18 The Swedish Competition Authority may withdraw the benefit of a block exemption if the agreement has effects that are incompatible with section 8.

Abuse of a dominant position

Section 19 (1) Any abuse by one or more undertakings of a dominant position in the Swedish market shall be prohibited. (2) Such abuse may, in particular, consist in: 1. directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; 2. limiting production, markets or technical development to the prejudice of customers; 3. applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; or 4. making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

Negative clearance

Section 20 (1) Upon application by an undertaking the Swedish Competition Authority may certify that, on the basis of the information provided by the undertaking or the facts in the Authority's possession, an agreement or practice does not fall under the prohibitions contained in section 6 or section 19 and that there are therefore no grounds for the Authority to take any action under this Act (negative clearance).

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(2) Following such a decision the Swedish Competition Authority may not impose an obligation under section 23 (1) or bring an action for the payment of anti-competitive charges under section 26. Section 21 (1) The Swedish Competition Authority may revoke its decision under section 20 where: 1. there has been a change in any of the facts which were basic to the making of the decision; 2. the decision is based on incorrect or misleading information; or 3. the Market Court changes its adjudication in such a way that the agreement or practice manifestly falls within the scope of the prohibitions contained in section 6 or section 19.

Administrative rule for the Swedish Competition Authority

Section 22 Upon receipt of a notification of an agreement under section 9 or an application for clearance under section 20 the Swedish Competition Authority shall give any parties to the agreement that are not applicants the opportunity of being heard regarding the notification or application.

Action against prohibited restrictions on competition

Section 23 (1) The Swedish Competition Authority way require an undertaking to terminate an infringement of any of the prohibitions contained in sections 6 and 19. (2) If the Swedish Competition Authority decides in a particular case not to impose such an obligation, the Stockholm City Court may do so at the instance of an undertaking that is affected by the infringement. Section 24 An obligation imposed under section 23 shall take effect immediately, unless other provision is made. Section 25 If special reasons exist, an obligation under section 23 may be imposed for the period until a final decision is taken on the matter. The Stockholm City Court may only impose such an obligation following commencement of legal proceedings.

Anti-competitive behaviour charges

Section 26 (1) The Stockholm City Court may, at the request of the Swedish Competition Authority order an undertaking to pay a special charge (anti-competitive behaviour charge) where the undertaking, or a person acting on the undertaking's behalf, intentionally or negligently: 1. infringes any of the prohibitions contained in sections 6 and 19; or 2. commits a breach of any condition imposed pursuant to section 10 (2). (2) The proceeds of the charge shall go to the state. Section 27 (1) The charge shall be fixed at not less than five thousand kronor nor more than five million kronor, or a sum in excess thereof but not exceeding ten per cent of the undertaking's annual turnover in the preceding business year. (2) If an action relating to the charge is brought against several undertakings, the charge shall be fixed on an individual basis. Section 28 (1) In fixing the amount of the charge, account shall be taken, in particular, of the gravity and the duration of the infringement. (2) In minor cases no charge shall be imposed. Section 29 (1) The anti-competitive behaviour charge provided for in section 26 (1), point 1, shall not be imposed in respect of acts taking place: 1. after receipt by the Swedish Competition Authority of a notification under section 9 or an application under section 20 and before its decision concerning the notification or application takes effect, provided that the acts fall within the limits of the activities described in the notification or application; or 2. during the period specified in a negative clearance, provided that the clearance is not revoked pursuant to section 21, point 2. (2) Subsection (1) shall not, however, be applicable where the Swedish Competition Authority declares, within one month of receipt of the notification or application, that it is of the opinion that section 6 applies and that application of section 8 is not justified, or that section 19 applies. Such a decision may only be issued if it is obvious that an exemption cannot be granted or that a negative clearance cannot be issued. Section 30 (1) An anti-competitive behaviour charge may only be imposed where a summons application has been served on the party concerned within five years of termination of the infringement. (2) The charge must not be imposed in respect of measures taken in compliance with a decision to which a penalty of a fine has been attached in accordance with the provisions of this Act. Section 31 An anti-competitive behaviour charge that has been imposed shall lapse if the relevant judgment is not executed within five years of gaining legal force. Section 32 In order to secure payment of an anti-competitive behaviour charge the Stockholm City Court may, at the request of the Swedish Competition Authority, issue a distraint order. The provisions of chapter 15 of the Code of Judicial Procedure concerning distraint in respect of debts shall be applicable where relevant.

Compensation

Section 33

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(1) Any party who, intentionally or negligently, infringes any of the prohibitions contained in section 6 and 19 shall compensate the damage that is caused thereby to another undertaking or party to an agreement. (2) The right to such compensation shall lapse if no action is brought within five years from the date when the damage was caused. (3) The Stockholm City Court shall always be competent to examine cases relating to compensation pursuant to this section.

Acquisitions of undertakings

Prohibition of acquisitions of undertakings etc.

Section 34 (1) The Stockholm City Court way, at the request of the Swedish Competition Authority, prohibit any acquisition of an undertaking that is subject to compulsory notification under section 37. (2) The acquisition shall be prohibited where: 1. it creates or strengthens a dominant position which significantly impedes, or is liable to impede, the existence or development of effective competition in the Swedish market as a whole, or a substantial part of it; and where 2. this takes place in a manner that is detrimental to the public interest. (3) Acquisitions that have been effected on a Swedish or foreign stock exchange, a recognized market or any other market regulated by a recognized authority, or by a bid at a compulsory auction, shall not be prohibited. Instead, the undertaking way be ordered to dispose of the assets acquired. Section 35 In consequence of a decision to prohibit the acquisition of an undertaking the acquisition shall be void. Section 36 If such a measure is sufficient to eliminate the adverse effects of an acquisition, the purchaser may, instead of being placed under a prohibition pursuant to section 34, be required: 1. to dispose of an undertaking or a business activity, in whole or in part; or 2. to take some other measure having a favourable effect on competition.

Notification of acquisitions of undertakings

Section 37 (1) Acquisition of an undertaking shall, where the aggregate turnover of the participating undertakings in the preceding business year exceeded four billion kronor, be notified to the Swedish Competition Authority by a party to the acquisition contract. (2) If the purchasing party belongs to a group consisting of several undertakings under joint control or otherwise connected, the aggregate turnover of the group shall be deemed to be the purchasing party's annual turnover.

Special investigations of acquisitions

Section 38 (1) The Swedish Competition Authority may decide to carry out a special investigation of an acquisition notified under section 37. (2) Such a decision shall be issued not later than 30 days after submission of a notification to the Swedish Competition Authority. During this period the parties to the acquisition contract must not take any action to proceed with the acquisition.

Actions relating to acquisitions of undertakings

Section 39 (1) Actions may only be brought before the Stockholm City Court pursuant to section 34 or section 36 following a decision to carry out a special investigation pursuant to section 38. (2) An action must be brought within three months of the decision. The Stockholm City Court may, at the request of the Swedish Competition Authority, extend this time limit by not more than one month at a time, subject to the agreement of the parties to the acquisition contract or, in the case of an acquisition effected in the manner described in section 34 (3), of the purchasing party, or if special reasons exist. Section 40 (1) If the Swedish Competition Authority decides not to intervene with respect to an acquisition, an action referred to in section 39 (1) may not be brought. (2) This shall not, however, apply in cases where the decision was influenced by incorrect information submitted by any party to the acquisition contract.

Prohibition of acquisitions pending a final decision

Section 41 (1) If such a measure is justified by a public interest which outweighs the inconvenience caused to the parties to the acquisition, the Stockholm City Court may, at the request of the Swedish Competition Authority, prohibit an undertaking, under penalty of a fine, from proceeding with an acquisition until a final decision has been taken on a matter provided for in section 34 or section 36. Such a request shall be made in writing unless an action is pending. (2) The request may not be granted until the parties to the acquisition contract or, where the acquisition took place in the manner described in section 34 (3), the purchasing party, have had the opportunity to be heard. However, in case of urgency the above measure may be allowed until a new decision is taken.

Time limit for decisions on acquisitions

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Section 42 (1) A prohibition or obligation referred to in section 34 or section 36 must not be imposed more than six months after an action has been brought before the Stockholm City Court. This time limit may be extended, subject to the agreement of the parties to the acquisition contract or, in the case of an acquisition effected in the manner described in section 34 (3), of the purchasing party, or if special reasons exist. A prohibition or obligation must not, however, be imposed more than two years after conclusion of the acquisition contract. (2) If an appeal is made against the judgment of the Stockholm City Court, the Market Court must make a ruling within three months of expiry of the period for appeal. The provisions of subsection (1) concerning extension of the time limit shall also apply to the Market Court's examination of the case.

Review

Section 43 (1) Notwithstanding the imposition of a prohibition or obligation pursuant to section 34 or section 36, the matter may be reviewed where revocation or modification of the prohibition or obligation is justified on the grounds that it is no longer necessary or appropriate. (2) A decision by the Stockholm City Court or the Market Court not to take any action with respect to the acquisition of an undertaking may only be reviewed where a party to the acquisition contract has given incorrect information about matters which are basic to the making of the decision. Section 44 (1) Petitions for review under section 43 shall be addressed to the Stockholm City Court by the Swedish Competition Authority or a party affected by the decision. (2) Petitions for review under section 43 (2) shall be submitted not later than one year after a final decision has been rendered on the matter.

Obligation to supply information, investigations

Cases concerning exemptions and negative clearance

Section 45 Where this is necessary for the performance of its duties under this Act, the Swedish Competition Authority may require: 1. undertakings or other parties to supply information, documents or other material; 2. persons who are likely to be in a position to provide relevant information to appear at a hearing at a time and place decided by the Authority; or 3. a municipality or county council engaged in activities of an economic or commercial nature to account for the costs of and revenues from these activities. Section 46 Decisions referred to in section 45 shall take effect immediately, unless other provision is made.

Investigation of infringements

Section 47 (1) Upon application by the Swedish Competition Authority the Stockholm City Court may decide that the Authority may carry out an investigation of an undertaking to establish whether it has infringed any of the prohibitions contained in sections 6 and 19, where: 1. there is reason to believe that an infringement has been committed; 2. the undertaking does not comply with an obligation imposed pursuant to section 45, point 1, or there is a risk of evidence being withheld or tampered with; and 3. the importance of the action taken is sufficient to outweigh the interference or other inconvenience caused to the parties affected by it. (2) Applications for investigations shall be ztade in writing. Section 48 A decision pursuant to section 47 way also be taken in respect of a party other than the undertaking to be investigated. Such a decision may only be taken where: 1. the conditions contained in section 47 (1), points 1 and 3 are satisfied; 2. there is a strong indication that the party referred to in the application is in possession of evidence; and 3. the said party does not comply with an obligation imposed pursuant to section 45, point 1, or there is a risk of evidence being withheld or tampered with. Section 49 In case of urgency a decision pursuant to section 47 or section 48 may be issued without the party referred to in the decision being given the opportunity to be heard. Section 50 (1) A decision pursuant to section 47 or section 48 shall specify: 1. the subject matter and purpose of the investigation; 2. the date on which the investigation is to begin; and 3. the Swedish Competition Authority's powers under section 51. (2) The decision shall take effect immediately, unless other provision is made. Section 51 (1) In carrying out an investigation decided upon pursuant to section 47 or section 48, the Swedish Competition Authority shall be empowered: 1. to examine the books and other business records; 2. to take copies of or extracts from the books and business records;

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3. to ask for oral explanations on the spot; and 4. to have access to any premises, land, means of transport and other areas. (2) Prior to commencement of the investigation the decision authorizing it shall be presented to the party on whose premises the investigation is to be carried out. Section 52 (1) When an investigation decided upon pursuant to section 47 or section 48 is to be made, the party on whose premises the investigation is to be carried out shall have the right to summon a legal representative. (2) Pending the arrival of such a representative, the investigation shall not begin. However, this shall not apply where: 1. the investigation is unduly delayed as a result; or 2. the decision to conduct an investigation is taken pursuant to section 49. Section 53 The Swedish Competition Authority way request assistance from the enforcement service in carrying out the measures referred to in section 51, points 1, 2 and 4.

Common provisions

Section 54 Action taken pursuant to section 45 or section 51 must not relate to written documents: 1. the contents of which may be assumed to be such as to preclude the possibility of hearing a member of the Swedish Bar Association or any of his associates as a witness about it; and 2. which are in his possession or in that of the person protected by his obligation of professional secrecy. Section 55 An obligation imposed pursuant to section 45 or an investigation conducted pursuant to section 51 shall not entail an obligation to disclose business secrets of a technical nature. Section 56 Persons or undertakings that are subject to compulsory notification under this Act must not be unduly burdened.

Fines

Obligations imposed under penalty of a fine

Section 57 (1) A prohibition or obligation pursuant to section 23, 34, 36, 41 or 45 may be imposed under penalty of a fine. A penalty for non-compliance may also be attached to a decision to conduct an investigation under section 47 or section 48 in order to compel an undertaking or other party to submit to the investigation. (2) A voluntary commitment made in connection with the acquisition of an undertaking may be made subject to a penalty of a fine. Such a fine shall be imposed by the Stockholm City Court at the request of the Swedish Competition Authority. Section 58 The Swedish Competition Authority may make compliance with the obligation laid down in section 37 subject to the penalty of a fine.

Awards of fines

Section 59 (1) Actions for the award of fines imposed pursuant to the provisions of this Act shall be brought before a district or a city court by the Swedish Competition Authority. In the case of fines imposed at the instance of an undertaking an action for the award of fines may also be brought by that undertaking. (2) The Stockholm City Court shall always be competent to examine cases pursuant to this section.

Appeals

Section 60 (1) Appeals way be made to the Stockholm City Court against decisions taken by the Swedish Competition Authority on the following matters: 1. exemptions pursuant to sections 8, 11, 12, 14, 16 and 18; 2. negative clearance pursuant to sections 20 and 21; 3. obligations pursuant to sections 23 (1) and 25; and 4. obligations pursuant to section 45. (2) Appeals may only be made against decisions referred to in points 1 to 3 by undertakings that are affected by the decision. Section 61 An appeal may only be made against a decision of the Swedish Competition Authority under section 29 (2) in conjunction with an appeal against the Authority's final decision on the matter. Section 62 No appeals may be made against any decisions taken by the Swedish Competition Authority under the provisions of this Act other than those provided for in sections 60 and 61. Section 63 (1) Appeals against judgments and decisions of the Stockholm City Court in the following cases may be lodged with the Market Court: 1. obligations pursuant to section 23 (2) and 25; 2. anti-competitive behaviour charges pursuant to section 26; 3. distraint pursuant to section 32; 4. acquisitions of undertakings pursuant to sections 34, 36, 41 and 43; 5. investigations pursuant to sections 47 and 48; and 6. reviews of appeals pursuant to section 60.

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(2) Appeals against decisions issued during proceedings dealing with matters referred to in section 25, 32 or 41 shall be made separately. An appeal against a decision issued pursuant to section 32 or section 41 prior to a proceeding shall be made in the same manner as an appeal against a decision issued during a proceeding.

Procedural provisions

Section 64 (1) Without prejudice to the provisions of this Act, the following provisions shall be applicable: 1. with respect to actions relating to matters referred to in section 63(1), points 1 to 4, the provisions of the Code of Judicial Procedure concerning disputes where settlement out of court is not permitted; and, 2. with respect to the examination of matters referred to in section 63 (1), points 5 and 6, the provisions of the Examination of Non-Contentious Matters Act (1946:807). (2) The provisions of Chapters 49, 50 and 52 of the Code of Judicial Procedure relating to courts of appeal shall instead be applicable to the Market Court. Section 65 For the purposes of matters covered by this Act the provisions of the Code of Judicial Procedure relating to prosecutors shall, with respect to orders concerning parties and the non-appearance of a party, apply to the Swedish Competition Authority. Section 66 Regarding examination of a matter pursuant to section 41, where no action is pending, the provisions that are applicable when such a matter is the subject of a proceeding shall, in addition to the provisions of that section, be applicable. A claim for costs presented by the party opposing the Swedish Competition Authority may, however, be examined in connection with the decision on the measure to be taken. Section 67 A decision on a measure provided for in section 41 that is taken where no action is pending shall be cancelled immediately, unless the Swedish Competition Authority decides to carry out a special investigation pursuant to section 38 or, where such a decision has been issued, unless it brings an action pursuant to section 39. The same shall apply where the Swedish Competition Authority decides not to take any action concerning the acquisition of an undertaking. Section 68 Before a decision is taken in a case relating to the acquisition of an undertaking, the party opposing the purchaser shall be given the opportunity to be heard. This shall not, however, apply to acquisitions that take place in the manner referred to in section 34 (3). Section 69 The matters referred to in section 63 (1) may be examined together, if this facilitates the investigation. Such examinations shall take place in accordance with the provisions of section 64 (1), point 1.

Entry into force and transitional provisions

1. This Act shall enter into force on July 1, 1993. 2. The Act shall supersede the Competition Act (1982:729) and the Prohibition Against Restrictions on Competition Regarding Agricultural Products Act (1991:921). 3. The following shall apply to agreements existing at the time of entry into force of this Act and regarding which notifications with a view to exemption under section 8 or applications for negative clearance under section 20 are submitted to the Swedish Competition Authority within 6 months of entry into force: (a) the provisions of section 7 shall only be applied 6 months after the date of a decision by the Swedish Competition Authority's decision concerning a notification or application; (b) the provisions of section 23 shall not, as regards infringements of the prohibition contained in section 6, be applied before the date referred to in subparagraph (a); (c) the anti-competitive behaviour charge provided for in section 26 or compensation provided for in section 33 for infringements of the prohibition contained in section 6 may not be imposed in respect of measures taken before the date referred to in subparagraph (a), provided that these measures are related to the activities described in the notification or application. 4. As regards agreements or practices existing upon entry into force of this Act which are prohibited under section 6 or section 19, the prohibitions shall not be applicable if, within 6 months of entry into force of this Act, the agreements or practices: (a) are altered in such a way as to make them eligible for a block exemption under section 17; (b) are altered in such a way that they no longer fall within the scope of section 6 or section 19; or (c) are terminated. The provisions of paragraph 1 (a) shall, however, be without prejudice to withdrawal by the Swedish Competition Authority of the benefit of an exemption pursuant to section 18. 5. Notifications with a view to exemption pursuant to section 8 or applications for negative clearance pursuant to section 20 may be dealt with prior to entry into force of this Act.

Paragraph 3 (a) to (c) shall apply to a notification or application made before entry into force of this Act. However, in such cases the time limit shall be 10 months.

6. Section 13 of this Act shall apply to agreements referred to in paragraph 3 above which are notified in accordance with the provisions laid down in that paragraph, except that the date from which the exemption shall be deemed to have been granted shall be that of entry into force of this Act. The same shall apply to agreements notified prior to entry into force of this Act. 7. The provisions currently in force shall continue to apply to acquisitions of undertakings effected prior to entry into force of this Act.