Competition law in Finland: overview

A Q&A guide to competition law in Finland.

The Q&A gives a high level overview of merger control, restrictive agreements and practices, monopolies and abuse of market power, and joint ventures. In particular, it covers relevant triggering events and thresholds, notification requirements, procedures and timetables, third party claims, exclusions and exemptions, penalties for breach, and proposals for reform.

To compare answers across multiple jurisdictions visit the Competition law Country Q&A tool.

This Q&A is part of the PLC multi-jurisdictional guide to competition and cartel leniency. For a full list of jurisdictional Competition Q&As visit www.practicallaw.com/competition-mjg.

For a full list of jurisdictional Cartel Leniency Q&As, which provide a succinct overview of leniency and immunity, the applicable procedure and the regulatory authorities in multiple jurisdictions, visit www.practicallaw.com/leniency-mjg.
 

Mikko Eerola and Lotta Pohjanpalo, Waselius & Wist
Contents

Merger control

1. Are mergers and acquisitions subject to merger control in your jurisdiction? If so, what is the regulatory framework and what authorities are responsible for merger control?

Regulatory framework

Mergers and acquisitions are subject to merger control under the provisions set out in Chapter 4 of the new Finnish Competition Act (948/2012, as amended) (Competition Act) that entered into force on 1 November 2011.

A merger that is defined as a concentration and exceeds the relevant turnover thresholds (see Question 2) must be notified to the Finnish Competition Authority (FCA). The FCA provides a first instance review of the concentration. It can clear the concentration (either unconditionally or conditionally) or ask the Market Court to prohibit it.

Regulatory authorities

There are two regulatory authorities:

  • The FCA.

  • The Market Court (a special court hearing market law, competition and public procurement cases). The Market Court hears first appeals from decisions of the FCA.

The Supreme Administrative Court (SAC) is the highest appellate court in competition cases. The SAC reviews the FCA's decisions on second appeal and the decisions of the Market Court (such as a decision on fines) on first (and only) appeal.

See box, The regulatory authorities.

 

Triggering events/thresholds

2. What are the relevant jurisdictional triggering events/thresholds?

Triggering events

The provisions of Chapter 4 apply to all concentrations that meet the turnover criteria (see below, Thresholds). A concentration is defined as:

  • The acquisition of control of an undertaking.

  • The acquisition of the whole or part of the business operations of an undertaking.

  • A merger.

  • The setting up of a full-function joint venture (see Question 37).

The provisions on the control of concentrations do not, however, apply to intra-group arrangements.

Thresholds

A concentration is subject to control if both:

  • The combined worldwide turnover of the parties to the concentration exceeds EUR350 million (as at 1 December 2011, US$1 was about EUR0.7).

  • The turnover generated in Finland of each of at least two parties to the concentration exceeds EUR20 million.

Parties to the concentration include the:

  • Acquirer of control.

  • Acquirer of the whole or part of the business operations.

  • Undertaking where control is being acquired.

  • Business operation (or part of the business operation), which is being acquired.

  • Merging parties.

  • Founders of a full-function joint venture (see Question 37).

The Competition Act has specific provisions concerning the calculation of the turnover. In general, the turnover of the acquirer's entire group is relevant. In contrast, for the seller, only the turnover attributable to the target company (including any companies over which the target company exercises control) or the business operations that are being acquired is taken into account.

Turnover is allocated geographically according to the customer's location at the time of the transaction. Therefore, turnover that is generated from the sale of products or services to Finnish customers (regardless of where the seller is located) qualifies as turnover generated in Finland for the purposes of the thresholds.

 

Notification

3. What are the notification requirements for mergers?

Mandatory or voluntary

It is mandatory to notify concentrations that meet the turnover criteria of the Competition Act (see Question 2), except for those that fall within the exclusive jurisdiction of Regulation (EC) 139/2004 on the control of concentrations between undertakings (Merger Regulation).

Timing

The notification must be submitted to the FCA after entering into a binding acquisition agreement, acquiring control of an undertaking or announcing a public bid, and before the implementation of the concentration. However, the notification can also be submitted before the entry into a binding acquisition agreement, if it is sufficiently certain that the parties will enter into an agreement or arrangement giving rise to the notification obligation.

Generally the concentration cannot be implemented before competition clearance has been received.

Formal/informal guidance

The notifying party is entitled to receive additional information and guidance from the FCA in relation to a contemplated concentration before submitting the notification. In particular, this applies to guidance concerning the:

  • Applicability of the Competition Act's provisions.

  • Scope and extent of the obligation to notify.

Pre-notification negotiations with the FCA are advisable, as they usually help in completing the notification and contribute to the FCA processing it quickly.

Responsibility for notification

The following parties have an obligation to notify:

  • The acquirer of control.

  • The acquirer of the whole or part of a business operation.

  • The merging parties.

  • The founders of a full-function joint venture.

When several parties are obliged to notify, they can either:

  • Submit a joint notification.

  • Authorise one party to submit the notification.

However, all parties that must notify are responsible for the notification's accuracy and timely delivery.

Relevant authority

The notification must be submitted to the FCA.

Form of notification

The notification must be submitted, in writing, in Finnish or in Swedish. The FCA generally accepts appendices to the notification that are in English.

The notification must comply with the requirements of the Decree by the State Council on the Obligation to Notify a Concentration (1012/2011), and include information on (among other matters):

  • The parties to the transaction.

  • The transaction and its impact on competition.

  • Affected markets.

  • Important customers.

  • Suppliers and competitors.

The FCA can grant waivers over the extent of information to be submitted in the notification if the:

  • Effects of the concentration on competition are likely to be minor.

  • Requested information is unnecessary to assess the concentration.

The FCA has introduced a simplified notification form that reduces the amount of information to be submitted. This can be used where the notifiable concentration only has minor effects in Finland (in particular, if it concerns setting up a full-function joint venture outside of Finland).

Filing fee

There is no filing fee.

Obligation to suspend

The parties cannot generally implement the concentration before its approval.

The obligation to suspend does not prevent, in certain cases, the implementation of a public bid or the redemption of shares. The parties can also apply to the FCA or the Market Court to allow them to take actions to implement the concentration, on the basis of the potential harm that suspending implementation may have on the concentration.

If the FCA has proposed the prohibition of a concentration, the obligation to suspend lapses within one month from the proposal, unless the Market Court orders otherwise. Appeals of the FCA's clearance decisions by third parties do not prevent the implementation of the concentration, unless the Market Court orders otherwise.

 

Procedure and timetable

4. What are the applicable procedures and timetable?

The FCA must immediately examine a notification received. During an initial one-month investigation period, which starts to run from the submission of a complete notification (a substantially incomplete notification does not trigger the investigation period), the FCA can:

  • Decide that the concentration does not fall within the scope of the Competition Act.

  • Clear the concentration unconditionally or conditionally.

  • Decide that further proceedings are required.

The FCA is authorised to stop the time running at any stage of the investigation, which extends the relevant investigation period accordingly.

If the FCA does not decide to start further proceedings within the above time limit, it is deemed to have approved the concentration. Usually, the FCA issues a written decision before the end of the one-month period.

If the FCA decides to start further proceedings it must, within three months, either:

  • Clear the concentration unconditionally or conditionally.

  • Ask the Market Court to prohibit the concentration (which the FCA cannot do).

If the FCA makes no decision it is deemed to have approved the concentration. The Market Court can suspend the three-month period for a maximum of two months. Furthermore, where information requested by the FCA has not been submitted in time or the information provided is inadequate, the FCA may decide to extend the above processing time limits with any amount of days corresponding to the delay in submitting the adequate information.

If the FCA asks the Market Court to prohibit the concentration, the Market Court must issue its decision within three months of the FCA's request. The Market Court can decide to:

  • Approve the concentration conditionally or unconditionally.

  • Prohibit the concentration or order the concentration to be dissolved.

  • Refer the concentration back to the FCA.

If the Market Court makes no decision, it is deemed to have approved the concentration.

For an overview of the notification process, see flowchart, Finland: merger notifications.

 

Publicity and confidentiality

5. How much information is made publicly available concerning merger inquiries? Is any information made automatically confidential and is confidentiality available on request?

Publicity

The general principle under Finnish administrative law is publicity. Therefore, unless there are statutory grounds for keeping the information confidential, the information is publicly available. The FCA decides whether to release information to third parties or keep it confidential in accordance with the Act on the Openness of Government Activities (621/1999, as amended). The general rules on court proceedings in the Act on Publicity of Legal Proceedings (945/1984, as amended) determine how much of the procedure in the Market Court is publicly available. The parties involved have more extensive rights to access information than third parties: as a rule, they have access to all documents that may influence the determination of the matter concerned.

Procedural stage

Pre-notification negotiations with the FCA are generally conducted on a confidential basis. Once the notification is made, information on the parties to the concentration and the notification date is published on the FCA's website (see box, The regulatory authorities). The FCA also gives the parties' main competitors, suppliers and customers an opportunity to comment on the concentration (this means releasing a summary of the notified concentration to those parties). In addition, interested parties often request a public version of the notification submitted to the FCA.

The FCA's final decision is published on its website, except for business secrets or other confidential information that it excludes from the public version. Public versions of the Market Court's decisions are generally published on the Market Court's website (see box, The regulatory authorities) and in a publicly available database (www.finlex.fi).

Automatic confidentiality

The FCA and the Market Court keep a document confidential if there are statutory grounds for doing so (for example, it falls within a category of business secrets).

Confidentiality on request

Throughout the procedure, the parties can, and in practice almost invariably do, request that the FCA or the Market Court keep certain information confidential. Usually, the FCA and the Market Court agree to keep business secrets or other competitively sensitive information confidential.

 

Rights of third parties

6. What rights (if any) do third parties have to make representations, access documents or be heard during the course of an investigation?

Representations

When the FCA reviews the notification, it hears the parties' main competitors, customers and suppliers (usually indicated by the notifying party) and releases basic information on the concentration and its effects on competition to them (see Question 5, Procedural stage).

Market participants that have not been contacted by the FCA can, on their own initiative, contact the FCA and give their statements and comments on the concentration. However, there is no guarantee that the FCA will take these statements into account.

Document access

Third parties can generally access documents that are provided to the FCA or the Market Court, unless they are business secrets or otherwise confidential (see Question 5, Automatic confidentiality and Confidentiality on request).

Be heard

See above, Representations.

 

Substantive test

7. What is the substantive test?

The competition authorities apply the significant impediment of effective competition (SIEC) test. This means that a concentration may be prohibited if it significantly impedes effective competition in the Finnish market, or a substantial part of the Finnish market, particularly as a result of the creation or strengthening of a dominant market position.

 

Remedies, penalties and appeal

8. What remedies can be imposed as conditions of clearance to address competition concerns? At what stage of the procedure can they be offered and accepted?

The FCA and the Market Court can impose both behavioural and structural remedies, although structural remedies are generally preferred. To be accepted, the proposed remedies must be capable of removing the identified competition concerns.

The parties can offer, and the FCA can accept, remedies both during the initial one-month investigation period and the further three-month investigation period. There are no statutory deadlines for proposing remedies but the parties should propose them early enough to enable the FCA consider the proposed remedies in its determination of the matter. In cases that lead to competition concerns it is generally advisable to start negotiating remedies with the FCA as early as possible. The parties can start discussing remedies with the FCA in pre-notification negotiations. The FCA can only impose such remedies which are accepted by the notifying parties.

Although the parties must conduct negotiations concerning remedies with the FCA, the Market Court can revise the conditions imposed in accordance with arguments raised in the Market Court.

 
9. What are the penalties for failing to comply with the merger control rules?

Failure to notify correctly

An undertaking that fails to comply with the obligation to notify can receive an administrative fine of up to 10% of its total annual turnover. The Market Court imposes this fine on the recommendation of the FCA. A fine is not imposed if either:

  • The failure is considered to be minor.

  • A fine is otherwise unjustified to safeguard competition.

This can be the case if the:

  • Notification obligation is subject to interpretation (for example, if it is unclear whether the transaction qualifies as a concentration under the Competition Act).

  • Notification does not include all requested information.

Should the parties have submitted incorrect or misleading information that has had a material effect on the decision, the Market Court may, on the recommendation of the FCA:

  • Prohibit the concentration.

  • Order the concentration to be dissolved.

  • Impose conditions.

The FCA must submit its proposal to the parties within one year from the date when the decision became final or when the concentration was implemented.

Implementation before approval or after prohibition

An undertaking that implements a concentration in breach of the Competition Act can receive an administrative fine of up to 10% of its total annual turnover. The Market Court imposes this fine on the recommendation of the FCA. A fine is not imposed if the failure is minor or it is otherwise unjustified (see above, Failure to notify correctly).

The Market Court can also, based on the FCA's recommendation, either:

  • Order the dissolution of a concentration that has been implemented in breach of the Competition Act.

  • Attach conditions to its implementation.

Failure to observe

The FCA's decisions can be made subject to a conditional administrative fine. The size of the fine is determined on the basis of (Act on Conditional Fines (1113/1990, as amended)):

  • The extent and nature of the obligation concerned.

  • The financial standing of the party concerned.

  • Other relevant factors.

If the party that receives the decision fails to comply with it, the Market Court can impose the fine. Failure to observe conditions attached to a clearance decision may also lead to the Market Court ordering the dissolution of the concentration.

The fines are administrative in nature. Criminal fines can be imposed under the Penal Code on individuals who submit false evidence to an authority.

 
10. Is there a right of appeal against any decision? If so, which decisions, to which body and within which time limits? Are rights of appeal available to third parties or only the parties to the decision?

Rights of appeal and procedure

The FCA's decisions can (subject to some exceptions) be appealed to the Market Court by both:

  • The party that the decision addresses.

  • Other persons whose rights, obligations, or interests are directly affected by the decision.

The appeal must be filed within 30 days from receiving the decision. The following FCA decisions are not subject to appeal:

  • Interim injunctions or temporary obligations.

  • Decisions determining whether further proceedings are required.

  • Decisions concerning the conducting of inspections in the undertaking's premises.

Decisions on extending processing time limits are not subject to separate appeal but may be appealed by a party who has the right to appeal the FCA's decision in the main issue (that is, the actual merger control decisions).

The notifying parties cannot appeal against the FCA's decision ordering conditions proposed by the notifying parties.

Subject to certain exceptions, the Market Court's decisions can be appealed to the Supreme Administrative Court by the parties and other persons whose rights, obligations or interests are directly concerned by the decision. The appeal must be filed within 30 days from receiving the decision.

Third party rights of appeal

According to the decisions of the Market Court and the Supreme Administrative Court, the FCA's clearance decisions do not usually directly affect third parties' rights, obligations or interests. Therefore, third parties are not usually found eligible to appeal the FCA's decisions in merger control cases.

 

Automatic clearance of restrictive provisions

11. If a merger is cleared, are any restrictive provisions in the agreements automatically cleared? If they are not automatically cleared, how are they regulated?

Ancillary restrictions are not automatically cleared on the clearance of a concentration. The parties can ask the FCA to clear ancillary restrictions in the notification. However, in practice they tend to rely on their own judgement. As part of a concentration, the FCA may approve restrictive provisions that are:

  • Directly related to the concentration.

  • Necessary for its implementation.

These provisions could include, for example, non-compete provisions on the seller, as long as their object, scope and duration do not exceed what is necessary for the implementation of the transaction.

 

Regulation of specific industries

12. What industries (if any) are specifically regulated?

The Competition Act sets out specific provisions in relation to:

  • Concentrations in the electricity market. A concentration in the electricity market is subject to the usual merger control rules. In addition, a concentration can be prohibited if, as a result of the concentration, the combined share of the transmission operations of the parties to the concentration and the entities and facilities related to them on a national level exceeds 25% of the amount of electricity transmitted at 400V in the transmission grid.

  • Concentrations of financial institutions and insurance companies.

 

Restrictive agreements and practices

Scope of rules

13. Are restrictive agreements and practices regulated? If so, what are the substantive provisions and regulatory authority?

The Competition Act contains provisions on agreements and practices that restrict competition. All agreements between undertakings, decisions by associations of undertakings and concerted practices by undertakings, which have as their object or effect the significant prevention, restriction or distortion of competition, are prohibited (section 5, Competition Act).

In particular, the Competition Act prohibits agreements, decisions and practices that:

  • Directly or indirectly fix purchase or sale prices, or any other trading conditions.

  • Limit or control production, markets, technical development, investment, or share markets or sources of supply.

  • Apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage.

  • 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.

This list is not exhaustive and other competition restrictions may be prohibited under section 5 of the Competition Act. The prohibition applies to both horizontal and vertical competition restrictions.

Breaches of the Competition Act are not subject to criminal sanctions (although supplying false information to an authority may be (see Question 24, Fines)).

The FCA is primarily responsible for enforcing the Competition Act's provisions on prohibited competition restrictions. However, only the Market Court can impose fines, on the FCA's recommendation (see Question 24, Fines).

 
14. Do the regulations only apply to formal agreements or can they apply to informal practices? Are there broad categories of agreements that might violate the law?

The Competition Act covers both formal agreements and informal practices.

 

Exemptions and exclusions

15. Are there any exemptions? If so, what are the criteria for individual exemption and any applicable block exemptions?

Individual exemption is available for agreements, decisions or concerted practices that:

  • Contribute to improving the production or distribution of goods, or to promoting technical or economic progress.

  • Allow consumers a fair share of the resulting benefit.

  • Do not impose on the undertakings concerned any restrictions that are not indispensable to attaining these objectives.

  • Do not allow the undertakings concerned the possibility of eliminating competition in relation to a substantial part of the market of the products in question.

All of these requirements must be met for the exemption to apply. The FCA does not issue formal individual exemptions, and has not issued any block exemptions.

In relation to horizontal and vertical agreements, the FCA uses the block exemptions and guidelines issues by the European Commission as a source of interpretation.

 
16. Are there any exclusions? Are there statutes of limitation associated with restrictive agreements and practices?

Exclusions

Some specific fields of activity remain outside the Competition Act's scope, including:

  • Agreements or arrangements relating to the labour market.

  • Certain agreements, decisions and practices concerning the primary production of agricultural goods.

In addition, for section 5 of the Competition Act to apply, the relevant competition restriction must significantly prevent, restrict or distort competition (see Question 13). The FCA has issued guidelines on significance, which follow the European Commission's Notice on agreements of minor importance (OJ 2001 C368/13). Under these guidelines, the following are not generally considered to be significant:

  • Agreements between actual or potential competitors that have a combined market share that does not exceed 10% on any affected relevant market.

  • Agreements between undertakings that operate on different levels of production or distribution where no undertaking's market share on any affected relevant market exceeds 15%.

However, hard-core restrictions on competition are prohibited regardless of the size of a party's market share, for example:

  • Price-fixing.

  • Market-sharing.

  • Resale price maintenance.

  • Absolute territorial protection.

In addition, if competition is restricted in a relevant market by the cumulative effect of agreements entered into by different suppliers or distributors, the market-share thresholds of 10% and 15% are reduced to 5% for both competitors and non-competitors. However, the requirement of significance is not fulfilled if the market shares do not exceed the 10%, 15% or 5% thresholds during the two successive calendar years by more than two percentage points.

Irrespective of the FCA's guidelines, significance is always assessed on a case-by-case basis.

Statutes of limitation

Competition infringement fines cannot be imposed if the FCA has not made a proposal on fines to the Market Court within the later of five years from the occurrence or termination of the competition infringement. Any investigative measure taken by the FCA result in a new five-year limitation period starting to run. However, competition infringement fines cannot be imposed on an undertaking if the FCA has not made any proposal in relation to this to the Market Court within ten years from the occurrence or termination of the competition infringement.

 

Notification

17. What are the notification requirements for restrictive agreements and practices?

Notification

It is not possible to notify restrictive agreements (see Question 15). The parties must self-assess whether an exemption applies.

Informal guidance/opinion

It is possible to receive informal guidance from the FCA on a non-binding basis.

Responsibility for notification

It is not possible to notify restrictive agreements (see above, Notification).

Relevant authority

It is not possible to notify restrictive agreements (see above, Notification).

Form of notification

It is not possible to notify restrictive agreements (see above, Notification).

Filing fee

It is not possible to notify restrictive agreements (see above, Notification).

 

Investigations

18. Who can start an investigation into a restrictive agreement or practice?

Regulators

The FCA can start investigations on its own initiative. If the FCA finds that an undertaking or an association of undertakings restricts competition in breach of the Competition Act or Article 101 of the Treaty on the Functioning of the European Union (TFEU) it must start the necessary proceedings to eliminate the competition restriction or its harmful effects. However, the FCA may decide not to take action if either:

  • It is unlikely that the alleged competition restriction would constitute a prohibited competition restriction under the Competition Act or the TFEU.

  • Irrespective of the competition restriction, competition in the said market can be deemed to be effective as a whole.

Third parties

The FCA can also start investigations based on requests for action made by a third party whose rights, interests or obligations are affected by the competition restriction. The FCA has discretion not to take action if competition in the market is effective or the restriction is insignificant.

An investigation can also be started based on a leniency application by one of the parties to a competition restriction (see Question 24, Immunity/leniency).

 
19. What rights (if any) does a complainant or other third party have to make representations, access documents or be heard during the course of an investigation?

Representations

The FCA can request comments or statements from third parties during the course of an investigation. Interested third parties can also submit statements to the FCA on their own initiative. However, third parties have no guaranteed right to make representations or be heard.

Document access

The right of third parties to access documents is governed by the Act on the Openness of Government Activities (621/1999, as amended). This provides that a request to obtain a document must be sufficiently individualised to enable the FCA to identify the document concerned. The FCA must assist the party requesting information to make the request individualised.

The party that requests information is not generally required to submit any grounds for the request or prove its identity. The FCA decides whether to provide or disclose all or part of the requested document. If it decides not to, it must state its reasons. A request for obtaining documents must be processed without undue delay.

The FCA has the right not to disclose information if disclosure would jeopardise the successful completion of its pending investigations.

Be heard

See above, Representations.

 
20. What are the stages of the investigation and timetable?

The stages of the investigation are, generally, the same whether the investigation has been started following a third party's request for action or on the FCA's own initiative.

The FCA generally starts investigations of serious competition restrictions, such as cartels, by conducting surprise investigations (dawn raids) at the concerned undertakings' premises. Dawn raids can also, subject to the Market Court's authorisation, be conducted in other than business premises, such as employees' private homes. As part of its investigation, the FCA may request information from both undertakings involved in the alleged competition restriction and third parties.

The FCA hears the parties concerned before making a decision on whether there has been a violation of the Competition Act. As a rule, the FCA does this by giving the parties concerned an opportunity to comment on its draft decision. If the FCA finds there has been a competition infringement, the FCA asks the Market Court to impose a competition infringement fine (see Question 24, Fines). The Market Court then decides what (if any) fine to impose.

There are no explicit statutory time limits on the duration and timetable for the FCA's investigations, or the decisions of the Market Court and Supreme Administrative Court (if relevant) (see Question 26). The FCA has discretionary power to prioritise matters under investigation. However, as the decisions of these bodies are administrative in nature, they must be given without undue delay.

In relation to time limits for the imposition of competition infringement fines, see Question 16, Statutes of limitation.

 
21. How much information is made publicly available concerning investigations into potentially restrictive agreement or practices? Is any information made automatically confidential and is confidentiality available on request?

Publicity

Third parties' requests for action are generally public. Therefore, the FCA must normally disclose, if requested:

  • The contents of a request for action.

  • Documents related to it, including information on the parties connected with the competition restriction.

Business secrets or other sensitive information can be excluded from the information disclosed. The identity of the party that has submitted the request for action is usually also public information, unless there are special reasons for keeping it confidential. For example, at least during the initial stages of the investigation, the preparation of a dawn raid can represent a valid reason for not disclosing information on the request for action (including the identity of the party making the request). The FCA regularly issues press releases and other communications on dawn raids, and other significant investigations that it starts or closes. In connection with those press releases, information relating to the parties connected with the restrictive agreement and the investigation into their practices is usually disclosed.

Even the parties involved cannot have access to documents on the FCA file for as long as the FCA investigation is pending, if the disclosure of such documents would adversely affect the investigation of the matter.

Automatic confidentiality

The FCA will keep a document confidential if there are statutory grounds for doing so (for example, it falls within a category of business secrets).

Confidentiality on request

The parties can, and in practice almost invariably do, request that the FCA keep certain information concerning them confidential. This can be on the basis, for example, of protection of business secrets or that disclosure would cause financial harm to the party concerned.

 
22. What are the powers (if any) that the relevant regulator has to investigate potentially restrictive agreements or practices?

The FCA has extensive powers to investigate competition restrictions. If requested, undertakings must provide the FCA with information and documents relating to the:

  • Content, purpose and impact of a competition restriction.

  • Relevant market conditions.

  • Undertaking's position on the market.

The FCA may also conduct inspections of undertakings' business premises, warehouses, land and vehicles as well as private premises such as homes of employees. If there are reasons to believe that the undertaking will remove evidence of the competition restriction, the inspection is carried out without advance warning (see Question 20).

If necessary, the FCA may also hear representatives of the undertaking or other persons which may have been involved in the execution of the competition restriction, and record the statements of such persons.

 
23. Can the regulator reach settlements with the parties without reaching an infringement decision? If so, what are the circumstances in which settlements can be reached and the applicable procedure?

The FCA can close the case by making a decision ordering that certain commitments be binding on the parties involved in an alleged competition restriction. The commitments must be capable of eliminating the restrictive nature of the conduct concerned.

The FCA can re-open the case if:

  • Any fact on which the decision is based changes significantly.

  • The parties breach their commitments.

  • The decision has been based on insufficient, false or misleading information.

 

Penalties and enforcement

24. What are the regulator's enforcement powers in relation to a prohibited restrictive agreement or practice?

Orders

The FCA can make orders (obligations, injunctions and prohibitions) including that:

  • The infringing party terminate the conduct that breaches the Competition Act.

  • A party deliver a product to another undertaking under certain conditions.

  • Certain commitments be binding on the parties.

  • Undertakings submit certain documents and information.

The FCA can attach conditional fines to these orders, which the Market Court can make final (see below, Fines).

The Market Court can also authorise inspections, if the FCA needs to carry out an inspection in other than business premises.

Fines

The Market Court can impose administrative competition infringement fines of up to 10% of the undertaking's total annual turnover from the last year in which the undertaking participated in/committed the infringement. In fixing the amount of the fine, the gravity, extent and duration of the competition restriction are taken into account.

Personal liability

Personal liability cannot attach to individual directors or managers. Individuals that submit false evidence to an authority can, however, incur criminal liability under the Penal Code (see Question 9).

Immunity/leniency

In cartel cases it is possible to obtain full immunity from, or reduction of, fines. The FCA can decide not to propose fines for a leniency applicant that meets the requirements for full immunity. The FCA can also recommend that the Market Court impose reduced fines on leniency applicants that are not eligible for full immunity but have considerably assisted the FCA in its investigations. The Market Court bases its fines on the FCA's recommendation, but has full discretion to deviate from that recommendation.

Impact on agreements

Any condition of an agreement that breaches the Competition Act or an order of the FCA or the Market Court must not be applied or implemented. However, the entire agreement itself is not declared void, provided the prohibited restriction is capable of being severed from the agreement without:

  • Rendering the agreement as a whole unenforceable.

  • Significantly changing the meaning of the agreement.

  • Significantly altering the balance of the respective parties' rights under the agreement.

 

Third party damages claims and appeals

25. Can third parties claim damages for losses suffered as a result of a prohibited restrictive agreement or practice? If so, what special procedures or rules (if any) apply? Are class actions possible?

Third party damages

Anyone who has suffered damage from an undertaking's intentional or negligent breach of the Competition Act or Article 101 or Article 102 of the TFEU can claim damages from that undertaking. Damages must generally provide compensation for the:

  • Expenses.

  • Price difference.

  • Lost profits.

  • Other direct or indirect economic damage resulting from the competition restriction.

The claimant must be able to demonstrate that there is a causal connection between the prohibited competition restriction and the damage caused. A claim for damages must be brought within ten years from the occurrence or termination of the competition infringement. Nonetheless, the claimant is always entitled to bring an action for damages within one year after the final decision of the FCA, the Market Court or the Supreme Administrative Court, as the case may be.

Special procedures/rules

If not subject to arbitration, claims for damages are brought, in the first instance, in the ordinary district courts.

Class actions

Class actions are not currently possible.

 
26. Is there a right of appeal against any decision of the regulator? If so, which decisions, to which body and within which time limits? Are rights of appeal available to third parties, or only to the parties to the agreement or practice?

Rights of appeal and procedure

The FCA's decisions can be appealed to the Market Court and the Market Court's decisions can be appealed to the Supreme Administrative Court. The same time limits apply as for merger control (see Question 10).

The following decisions cannot be appealed:

  • The FCA's decisions to conduct inspections, impose injunctions or impose temporary obligations (see Question 24, Orders).

  • The Market Court's decisions to authorise inspections.

The FCA's decisions on whether an undertaking qualifies for immunity from or reduction of fines are not subject to separate rights of appeal but may be appealed by a party who has the right to appeal the FCA's decision in the main issue.

Third party rights of appeal

The FCA's and Market Court's decisions can be appealed by the subject of the decision and by other persons whose rights, obligations or interests are directly affected by the decision.

 

Monopolies and abuses of market power

Scope of rules

27. Are monopolies and abuses of market power regulated under civil and/or criminal law? If so, what are the substantive provisions and regulatory authority?

Section 7 of the Competition Act corresponds to Article 102 of the TFEU and provides that abuse by one or more undertakings (or by an association of undertakings) of a dominant position is prohibited.

The FCA is primarily responsible for enforcing the Competition Act's provisions on prohibited competition restrictions, including abuses of a dominant position. As with restrictive agreements and practices, only the Market Court can impose fines, and the FCA's decisions can be appealed to the Market Court (the decisions of which can, in turn, be appealed to the Supreme Administrative Court) (see Question 26).

 
28. How is dominance/market power determined?

A dominant market position is deemed to be held by one or more undertaking(s) (or an association of undertakings) that hold an exclusive right or similar dominant position in a specified product market within the entire country, or given region, so as to:

  • Significantly control a product's price level or the terms of its delivery.

  • In some other corresponding manner influence the competitive conditions on a given level of production or distribution.

 
29. Are there any broad categories of behaviour that may constitute abusive conduct?

An abuse can consist of:

  • Imposing, directly or indirectly, unfair purchase or sale prices or other unfair trading conditions.

  • Limiting production, markets or technical development to the prejudice of consumers.

  • Applying dissimilar conditions to equivalent transactions with other trading partners, thereby placing them at a competitive disadvantage.

  • Making the conclusion of contracts subject to the other parties accepting obligations that, by their nature or according to commercial usage, have no connection with the subject of those contracts.

This list is not exhaustive, and other restrictive practices can qualify as an abuse of a dominant market position.

 

Exemptions and exclusions

30. Are there any exemptions or exclusions?

As with restrictive agreements, certain specific forms of activity fall outside the Competition Act's scope (see Question 16).

There are no express exemptions under the Competition Act from the prohibition of abuse of a dominant market position. In individual cases, various objective justifications can be invoked. Whether or not this is successful depends entirely on the circumstances of the case; an example of a justification would be a dominant company's refusal to supply on the basis of the customer's insolvency.

 

Notification

31. Is it necessary (or, if not necessary, possible/advisable) to notify the conduct to obtain clearance or (formal or informal) guidance from the regulator? If so, what is the applicable procedure?

It is not possible to notify the conduct to obtain clearance. It is, however, possible and advisable in unclear cases to consult with the FCA, which offers informal non-binding guidance. There is no particular procedure for this.

 

Investigations

32. What (if any) procedural differences are there between investigations into monopolies and abuses of market power and investigations into restrictive agreements and practices?

This is the same as for restrictive agreements (see Questions 19 to 22 and Question 24).

 
33. What are the regulator's powers of investigation?

These are the same as in relation to restrictive agreements (see Question 23).

 

Penalties and enforcement

34. What are the penalties for abuse of market power and what orders can the regulator make?

These are the same as for restrictive agreements (see Question 25).

 

Third party damages claims

35. Can third parties claim damages for losses suffered as a result of abuse of market power? If so, what special procedures or rules (if any) apply? Are class actions possible?

This is the same as for restrictive agreements (see Question 26).

 

EU law

36. Are there any differences between the powers of the national regulatory authority(ies) and courts in relation to cases dealt with under Article 101 and/or Article 102 of the TFEU, and those dealt with only under national law?

In relation to Article 101 of the TFEU, the FCA can withdraw the benefit, within Finland, of a block exemption issued by the Commission if it finds that an agreement, a decision or certain practices have effects that are incompatible with Article 101(3) of the TFEU.

 

Joint ventures

37. How are joint ventures analysed under competition law?

Full-function joint ventures are subject to the provisions on the control of concentrations under Chapter 4 of the Competition Act (see Questions 1 to 13). A full-function joint venture is one which, on a lasting basis, performs all of the functions of an independent entity.

Other joint ventures can be analysed as restrictive agreements and, in some cases, as abuses of a dominant position.

 

Inter-agency co-operation

38. Does the regulatory authority in your jurisdiction co-operate with regulatory authorities in other jurisdictions in relation to infringements of competition law? If so, what is the legal basis for and extent of co-operation (in particular, in relation to the exchange of information)?

As a member of the European Competition Network, the FCA must exchange information and co-operate with the European Commission and the competition authorities of other EU member states.

The FCA also co-operates with competition authorities that are members of the International Competition Network and on an informal basis with other authorities.

 

Proposals for reform

39. Are there any proposals for reform of competition law?

There are currently no pending proposals for reform.

 

The regulatory authorities

Finnish Competition Authority (FCA)

Head. Juhani Jokinen (Director General)

Contact details. Pitkänsillanranta 3 A
00530 Helsinki
Finland
T +358 9 73141
F +358 9 7314 3328
E kirjaamo@kilpailuvirasto.fi
W www.kilpailuvirasto.fi

Outline structure. The Director General (DG) is the head of the FCA, which contains six organisational units. The following units are responsible for competition control and advocacy:

  • The Enforcement Unit consisting of the Industries 1 unit, responsible for cartel control, and the Industries 2 unit, responsible for merger control.

  • The Advocacy Unit.

They are supported by the following units:

  • DG's Staff.

  • International Affairs.

  • Communications and Personnel Development.

  • Administration.

Responsibilities. The FCA is responsible for protecting sound and effective economic competition through:

  • Intervening with competition restrictions that breach the Competition Act.

  • General advocacy.

Procedure for obtaining documents. The procedure for obtaining documents held by the FCA is regulated by the Act on the Openness of Government Activities (621/1999, as amended). This requires the FCA to respond to requests for documents without undue delay. If the FCA decides not to provide a document, it must state its reasons.

General information is available at the FCA's website (see above, Contact details).

Market Court

Head. Chief Justice Kimmo Mikkola

Contact details. Erottajankatu 1-3
PO Box 118
00131 Helsinki
Finland
T +358 10 364 33 00
F +358 10 364 33 14
E markkinaoikeus@oikeus.fi
W www.oikeus.fi/markkinaoikeus

Outline structure. The Chief Justice is head of the Market Court. Other members include 12 Market Court judges and a sufficient number of Market Court secretaries. In addition, a number of expert members participate in the hearing of the cases.

Responsibilities. The Market Court is a special court which hears cases relating to market law, competition law and public procurement.

Procedure for obtaining documents. See above, Finnish Competition Authority (FCA): Procedure for obtaining documents.



Contributor details

Mikko Eerola

Waselius & Wist

T +358 9 6689 5216
358 9 6689 520
F +358 9 6689 5222
E mikko.eerola@ww.fi
W www.ww.fi

Qualified. Finland, 1998

Areas of practice. EU and Competition Law; M&A.

Recent transactions

  • Over the past 14 years, represented a number of leading international and domestic corporations subject to FCA and European Commission investigations and proceedings before the Market Court, both in cases relating to alleged cartels and other horizontal competition restrictions and cases involving alleged abuse of dominant position.

  • Acted for both notifying parties and interested third parties in merger control proceedings before the FCA, and for complainants and interested third parties in public procurement proceedings before the Market Court and the Supreme Administrative Court.

Lotta Pohjanpalo

Waselius & Wist

T +358 9 6689 5253
+358 9 6689 520
F +358 9 6689 5222
E lotta.pohjanpalo@ww.fi
W www.ww.fi

Qualified. Finland, 2000

Areas of practice. EU and Competition law; M&A.

Recent transactions

  • Numerous domestic, multi-jurisdictional and EU merger control analyses and filings predominantly in cross-border transactions.
  • Regularly acts as counsel in proceedings before the FCA and the Market Court.
  • Acts as dawn raid counsel and provides compliance programmes and training for a number of multinational undertakings in the construction, consumer products, energy, pharmaceutical and technology sectors.

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