Sweden vs Nordea Nordic Baltic AB, October 2015, Administrative Court of Appeal, Case No 4811-14, 4813–4817-14

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Nordea Nordic Baltic AB was the manager of funds and a central distributor in Sweden of certain funds registered in Luxembourg. The company entered into a new distribution agreement that replaced two previous agreements. According to this new agreement, the remuneration to the company was lower than under the previous agreement. The company considered that the compensation under the old agreements had been too high which therefore compensated for (set-off) the lower compensation received according to the new agreement.

The Court of Appeal stated that the set-off principle must be applied with caution. A basic precondition should be that these are transactions that have arisen within the framework of the same contractual relationship. It did not matter if the company was overcompensated by another party to the agreement. Any overcompensation in previous years from the same contracting party could also not be taken into account as it was the result of a different pricing strategy within the framework of another contract.

For internal set-offs to be considered they must be related to transactions between the same contracting parties and covered by the same pricing strategy within the same agreement.

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Stockholm KR 4811-14 Dom 2015-10-29

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