Amendments to the Finnish Competition Act due to the ECN+ Directive
On 24 June 2021, the latest amendments of the Finnish Competition Act entered into force. The modifications were mostly based on the Directive 2019/1 (“ECN+ Directive”), which sought to ensure more effective enforcement of competition law across member states. The amended Competition Act was intended to enter into force already on 2 February 2021, but the critical Statement of the Constitutional Law Committee regarding the initial Government’s Proposal caused a delay of months.
The Government's Proposal would have empowered the Finnish Competition and Consumer Authority (“FCCA”) to issue an injunction decision prohibiting the restriction of competition without a time limit. Following the Statement of the Constitutional Law Committee, this competence was limited to one year at a time. The Constitutional Law Committee also objected to the proposal to empower the FCCA to require payment of the unpaid fines from the members of the association of undertakings. The amended Competition Act yields this power to the courts.
One key amendment concerns the amount of the penalty payment for associations of undertakings, such as trade associations. From now on, in addition to the association’s turnover, under certain conditions the turnover of the associations’ members might also be taken into account to determine the amount of the fine.
In the future, a penalty payment may be imposed, in addition to a restriction on competition, also for infringements of certain procedural rules. Also, in this case, the FCCA may not fine undertakings itself, but it must submit a penalty payment proposal to the Market Court, which will render the actual decision. Other key amendments to the Competition Act concern the FCCA’s powers to impose structural remedies to end competition law infringements.
One amendment not based on the ECN+ Directive is the introduction of rules for calculating penalty payments. The aim is to increase the predictability and consistency of the penalty payments proposed by the FCCA. The objective sought by these new rules is to increase the level of the penalty payments proposed by the FCCA. According to the FCCA, the new rules may raise especially the penalty payments proposed for the most serious and long-term infringements. However, like with the EU courts, the Finnish courts are not bound by the calculation rules and retain extensive discretion in assessing the amount of the penalty payment.
For more information please contact Päivi Tammilehto and Aarne Puisto.
