Criminal liability for unlicensed financial activities in Sweden: what market participants need to know

As of 1 March 2026, the Act on Criminal Liability for Unlawful Financial Activities (2026:56) (Sw. lagen [2026:56] om straff för olovlig finansiell verksamhet) (the “Act”) is in force.[1] The Act makes it a criminal offence, where intent or gross negligence is established, to carry out financial activities that are subject to a licensing or registration requirement without holding the necessary licence or registration. Minor cases are excluded.

The new law does not create any new licensing requirements. What it does is change the consequences of operating without a licence. For anyone involved in Swedish capital market transactions, whether as a guarantor (Sw. garant), sub-guarantor (Sw. undergarant), financial adviser, or issuing institution, that change is material and demands attention.

Who is most exposed?

The guarantee market

Rights issues (Sw. företrädesemissioner) by smaller listed Swedish growth companies often rely on guarantee arrangements put in place by private investors rather than institutional ones. In that segment of the market, it has historically not been unusual for guarantors to operate without the licences that, on a strict analysis, may well be required. Provided guarantee provision is not carried out professionally (Sw. yrkesmässigt), it can be lawful to do so, but determining whether the professional-activity threshold is crossed is a genuinely difficult question. It turns on factors such as how the service is presented or marketed, the regularity of the activity, and whether it forms part of any wider commercial undertaking.

Prior to 1 March 2026, the practical risk of unlicensed guarantee provision in this context was primarily regulatory: an intervention order or administrative sanction by the Financial Supervisory Authority (Sw. Finansinspektionen) (the “FSA”), with a conditional fine (Sw. vite) potentially attached. Criminal liability is a different order of magnitude entirely, and the associated investigative powers (discussed below) are considerably broader than anything available in a purely regulatory proceeding.

Scope of the Act

Although the guarantee market has attracted the most commentary, the Act is not sector-specific: it applies across the full range of financial activities subject to licensing or registration requirements under Swedish law.

The legal framework

Existing regulatory intervention

Where unlicensed financial activity is detected, the FSA retains the powers it has always had: it can order the activity to cease, and can impose an administrative sanction. In relation to guarantee provision specifically, the FSA’s established position is that the licensing requirement bites on legal entities operating professionally, whilst natural persons can be directed to cease the activity (rather than being sanctioned administratively).

Criminal penalties

Under the Act, a person who intentionally or with gross negligence conducts licensable financial activity without the requisite authorisation faces a fine or a custodial sentence of up to two years. Where the offence is serious, the available sentence rises to a minimum of six months and a maximum of six years. Corporate fines (Sw. företagsbot) may be imposed on legal entities alongside personal liability. Minor infringements fall outside the criminal threshold.

A broader investigative toolkit

One of the more significant practical consequences of criminalisation is the shift in investigative capacity. The FSA’s own powers to gather evidence are limited: broadly speaking, it can require the entity under investigation to provide information, but goes no further. Once suspected unlicensed activity becomes a criminal matter, it is subject to investigation by police and prosecutors operating under the Code of Judicial Procedure (Sw. rättegångsbalken), with access to the full range of coercive measures that entails.

Licensing requirements in new issuances: a practical guide

Financial advisers

A financial adviser retained to run a new issuance will typically take on a mandate covering investor engagement, structuring of transaction terms, assembly of a guarantee book, and production of a prospectus and marketing materials. That scope of work will ordinarily require, at a minimum, a licence for the reception and forwarding of orders and for placement without firm commitment, together with the relevant ancillary service authorisations under Chapter 2, Section 2, items 3 and 6 of the Securities Markets Act (2007:528) (Sw. lagen [2007:528] om värdepappersmarknaden).

In some transaction structures, most commonly where an issuing institution is involved, the adviser may additionally be taking on a role that engages the requirement for a proprietary trading licence (Sw. handel för egen räkning): for example where it subscribes for shares itself before distributing them to investors in a quota value issue (Sw. kvotvärdesemission), or where it acts as a liquidity guarantor. Where the adviser is collecting application forms and subscribing for shares on investors’ behalf, a further licence for execution of orders on behalf of clients will apply.

Guarantors

An adviser or other party that participates as a guarantor, as opposed to simply assembling a guarantee book from third-party investors, requires a licence for guarantee provision in addition to whatever other licences its activities may call for. The same requirement applies to any other party participating in a guarantee arrangement where doing so constitutes professional activity. Natural persons cannot obtain a licence under the Securities Markets Act for guarantee provision; they may participate as a guarantor on a one-off basis, but any recurring or structured guarantee activity is not open to them without a licensed corporate vehicle.

An existing shareholder, whether a company or an individual, who enters into a subscription commitment without payment would ordinarily be regarded as engaging in proprietary trading of the kind that falls within the exemption from the licensing requirement.

Sub-guarantors

A common structure in the Swedish market involves the lead guarantor assembling a parallel book of investors who each bear a portion of the guarantee risk under separate bilateral arrangements, whilst the lead guarantor alone is party to the guarantee agreement with the issuer and would subscribe for shares if the guarantee were called. The investors in that parallel book are sub-guarantors.

The lead guarantor clearly requires a licence for guarantee provision. The position for sub-guarantors is less settled. Because guarantee provision is conventionally understood to refer to the activity of the party that actually subscribes in the issuance, there is an argument that sub-guarantors fall outside its scope. In our view, however, where a sub-guarantor is receiving compensation, for instance a share of the fee paid by the issuer to the lead guarantor, and is otherwise operating in a manner that meets the professional-activity test, there is a real and appreciable risk that a licensing requirement attaches to that activity too.

What is happening in the market

Early signals

Something has clearly shifted in the market. Several rights issues underway around the time the Act came into force have either gone to market without any guarantee arrangement at all, or with guarantors receiving no compensation for their commitment. That, in itself, would have been unusual a year ago. Separately, transaction data shows the total number of rights issues running at around half the volume of the equivalent period in the prior year, with directed issuances picking up the slack.[2] It would be an overstatement to pin every aspect of that shift on the new criminal liability rules, as market conditions and issuer-specific factors always play a role, but the pattern is hard to explain without them.

The FSA’s published guidance

On 19 February 2026 (updated 23 February 2026), the FSA published a set of questions and answers on the licensing requirement as it applies to guarantee provision and firm commitment placement.[3] The guidance does not draw a bright line: the FSA is explicit that no fixed numerical threshold separates licensable from non-licensable activity. It does, however, identify a series of indicators that point towards professional activity:

• Repeated engagements, beyond an isolated transaction, are indicative.
• Active marketing of guarantee provision services, for example through advertising, suggests that a licence is required, even if relatively few mandates result from the marketing effort.
• The service being embedded in a business model, supported by an organisational infrastructure, or generating revenue (directly or indirectly) are all features that weigh in favour of professionalism.

The guidance also makes clear that an existing shareholder providing a guarantee in its own company's issuance is not automatically exempt from the licensing requirement: that person may equally be providing the service professionally and therefore require a licence. The overall message from the guidance is that each situation must be assessed individually on its own facts, and that anyone who regularly participates in guarantee arrangements should take the question of licensing seriously.

It is worth bearing in mind that the FSA framed its guidance narrowly: it addresses guarantee provision and firm commitment placement, and does not purport to resolve questions about other licensable activities. That said, the underlying analysis of what makes an activity professional in character draws on principles that apply across the Securities Markets Act more broadly. Anyone whose activities in connection with new issuances go beyond guarantee provision, including, for example, parties providing bridge loan facilities in connection with rights issues where a registration requirement may arise under separate legislation, would be well advised to consider whether the FSA’s reasoning has implications for their own position.

A new structure: the Oncopeptides example

The rights issue currently being conducted by the Swedish listed company Oncopeptides offers a concrete illustration of how market practice is adapting. In that transaction, DNB Bank ASA is acting as the formal guarantor. In parallel, DNB Bank ASA has entered into put option agreements with a number of investors, who are not named, under which those investors are, in effect, the option writers: if DNB is allocated shares under the guarantee, it holds the right to sell those shares to the option writers at a pre-determined price.[4] The company has confirmed that this arrangement was put in place directly as a response to the Act, and that the investors concerned would very likely otherwise have acted as conventional guarantors.[5]

The guarantee compensation in the Oncopeptides issuance is set at 12% for top guarantors and 9% for bottom guarantors. In the same company's rights issue in autumn 2025, those rates were 8% across the board. Whether the increase is partly a function of the new structure, and the additional balance sheet risk and transactional complexity absorbed by DNB Bank ASA as formal guarantor, is impossible to say with certainty, though it seems plausible. It is also worth noting that the formal guarantor in a structure of this kind may seek to negotiate the subscription price discount, as an additional mechanism for managing their exposure.

For the smaller listed growth company sector, the picture remains uncertain. It is far from obvious that a licensed guarantor will always be prepared to step in on terms that an issuer can accept, and without that guarantee support, the prospect of a fully underwritten rights issue may simply not be available.

Looking ahead

The more interesting question, now that the Act is in force, is whether the market finds a durable solution or simply contracts. The put option structure used in the Oncopeptides transaction is one adaptation, but it depends on the availability of a licensed counterparty willing to potentially absorb significant balance sheet exposure as the formal guarantor, and that is not a given, particularly for smaller issuers that lack the relationships or the deal economics to attract a bank of DNB Bank ASA’s standing. If that kind of licensed capacity proves scarce, the practical effect of the Act may be to make underwritten rights issues a financing tool available only to larger and better-connected listed companies. Whether that outcome was anticipated or intended by the legislature is not obvious from the preparatory works, and it may yet prompt a policy response. In the meantime, anyone regularly active in this space should treat a licensing review not as a box-ticking exercise but as a matter of some urgency.