Finland has had a leniency programme in place since 1 May 2004. The programme was updated in the Competition Act, which entered into force in November 2011, and is now laid out in Sections 14 to 17 of the Competition Act. The leniency programme is very similar to the European Competition Network model leniency programme. In 2016, the revised leniency guidelines issued in 2011 were replaced with new guidelines that take account of the new Antitrust Damages Act.
The FCCA received its first leniency case only minutes after the entry into force of the programme in 2004. However, after a spectacular start, there have been only a few leniency applications, which has clearly been a disappointment to the FCCA. The relatively small number of leniency cases is reflected in the number of the FCCA's penalty payment proposals to the Market Court in cartel cases. In 2014, 2015, 2016 and 2018 the FCCA only brought one cartel case before the Market Court each year, while in 2013 and 2017 no cases were brought before the Market Court by the FCCA.i Significant casesFCCA's penalty payment proposal in the Coach Company cartel
On 25 January 2016, the FCCA submitted a proposal to the Market Court to impose a fine of €38 million on seven coach companies, the Finnish Bus and Coach Association and Oy Matkahuolto Ab (Matkahuolto), a service and marketing company that promotes bus and coach services in Finland. The FCCA also ordered Matkahuolto to cease all anticompetitive measures to foreclose competing coach companies from the market. The FCCA had started its investigations in 2011 on the basis of a complaint lodged by competitors.
According to the proposal, the alleged cartel started in autumn 2008 and still partially continued at the time of the proposal. In December 2009, legislation was amended to open up coach traffic for competition. In a mutual understanding, major coach companies tried to prevent the opening of the market and new competitors' entry to the market, among other things, by preventing competitors from accessing the travel and parcel services of Matkahuolto. Consumers could not find competitors' departure information from Matkahuolto's timetables or buy their tickets from Matkahuolto. Moreover, competitors were denied access to Matkahuolto's parcel delivery system, access to which would have been essential from a business perspective. In measuring the amount of the proposed fine, the FCCA took into account as an aggravating factor that the Finnish Bus and Coach Association had previously been sanctioned for price recommendation.
On 14 December 2017, the Market Court found the coach companies, the Finnish Bus and Coach Association and Matkahuolto guilty of restricting competition. However, the Market Court found that lobbying work, discussions and negotiations related thereto as well as measures concerning opposing the issuing of route licences did not constitute a prohibited restriction of competition. As a result, the fines imposed by the Market Court were significantly lower than those proposed by the FCCA, amounting to a total of €1.1 million. The decision of the Market Court has been appealed to the SAC.FCCA's penalty payment proposal in the EPS insulation infringement case
On 4 December 2018, the FCCA submitted a proposal to the Market Court to impose a fine of over €4 million in total on two EPS insulation producers, Thermisol Oy and UK-Muovi Oy, for prohibited cooperation between competitors in the EPS insulation market in Finland. Styroplast Oy applied for leniency.
According to the FCCA, the alleged infringement began in November 2012 and continued until the end of 2014. Pursuant to the FCCA's proposal, the three companies infringed competition rules by agreeing on the amounts, timing and implementation of price increases. The case is currently pending before the Market Court.ii Trends, developments and strategies
As discussed above, the fight against cartels continues to be one of the FCCA's main priorities. The detection of cartels has been boosted by increasing cooperation between the competition authorities and the contracting entities responsible for public procurement. The FCCA has announced that it will bring all detected cartel infringements before the Market Court. Corresponding to EU rules, the fines may equal 10 per cent of the undertaking's turnover at the most. The FCCA's new Director General has publicly emphasised the need for a higher level of fines than what has been imposed by the courts in practice, arguing that higher fines would have a stronger deterrent effect, and welcomed the idea of criminalising cartel conduct in Finland.
In reviewing Finnish competition law during the past few years, it is clear that private enforcement has been a particularly active segment. In the Asphalt cartel case, the Helsinki District Court dismissed the damages claim of the Finnish state in its entirety, but awarded damages to a number of municipalities. While the claims of the state and of several municipalities were settled by the parties after the judgment of the Court of Appeal, a number of applications for leave to appeal were filed to the Supreme Court. The Supreme Court dismissed the majority of the applications, and granted limited leaves to appeal to one respondent and one claimant in September 2017. Some applications for leave to appeal were left in abeyance until final decisions are given in the matters in which leave to appeal was granted. The Supreme Court subsequently granted one respondent further leave to appeal in August 2018 and November 2018. In December 2017, the Supreme Court made a reference for a preliminary ruling to the European Court of Justice regarding the question of economic succession in determining the parties liable for damages. Significant damages cases concerning an infringement involving the procurement of raw wood came to an end in January 2019, when the Supreme Court dismissed an application for leave to appeal by one of the claimants. Further, multiple damages claims are pending before the Helsinki District Court in an abuse of dominance case involving national dairy products champion Valio Ltd (Valio).iii Outlook
It seems clear that the FCCA will continue to focus on the investigation of hardcore cartels. Under the prioritising rule of Section 32 of the Competition Act, the FCCA does not need to conduct an in-depth investigation if an infringement is deemed unlikely at the outset or, irrespective of the infringement's likelihood, if competition is considered effective on the whole. Moreover, according to publicly available information, the FCCA is currently investigating new cartel cases that may in future result in penalty payment proposals to the Market Court.