Two recent cartel judgements by the Supreme Administrative Court (SAC) have caused the Finnish Competition and Consumer Authority (FCCA) to advocate for higher fines as part of the implementation of the ECN+ Directive (please find a link to the Directive (EU) 1/2019 here). The SAC upheld findings of anti-competitive agreements or concerted practices in two cases, the Bus Cartel case (KHO:2019:98) and the Finnish Bakery Federation case (KHO 3713/2019) and augmented the fines previously ordered by the Market Court. In the Bus Cartel case, the Market Court had imposed fines totalling 1.1 million euros to seven participants in a market sharing cartel instead of the 38 million euros proposed by the FCCA. The SAC augmented the fines to a total of 8.9 million euros. In the Finnish Bakery Federation case, the Market Court had imposed fines of 15,000 euros to the Finnish Bakery Federation for illegal pricing recommendations instead of approximately 40,000 euros proposed by the FCCA. The SAC augmented the fines to 30,000 euros.
In both cases, the FCCA noted that even though it was pleased that the SAC confirmed the existence of antitrust infringements, the current legislation does not enable a level of fines that would be sufficiently high in proportion to the harmful nature of cartels, or in order to provide sufficient deterrence to cartels. According to the FCCA, Finland should put in place fining guidelines such as those applied by the European Commission, which would bring penalty payments to a sufficiently high level.
The ECN+ Directive aims to ensure that national competition authorities have the appropriate enforcement tools when applying the EU antitrust rules. Relating to the Finnish implementation of the Directive, the Ministry of Economic Affairs and Employment has nominated a working group, which has been tasked with assessing what legislative changes are required by the ECN+ Directive. According to the Ministry, the working group also has authority to assess the need and means to improve predictability of Finnish antitrust fines taking into account e.g. the fining rules and practices of the European Commission. The working group has until 6 March 2020 to propose for required legislative amendments. The ECN+ Directive has to be implemented by 2 February 2021.