Legal Alerts/24 May 2018

Legal Alert – The Government Proposes Amendments to the Finnish Competition Act

Government has today published its proposal for amendments to the Finnish Competition Act. The Finnish Ministry of Economic Affairs and Employment appointed a working group in 2015 for revising the Finnish Competition Act. The working group submitted its proposal for the amendments to the Competition Act to the ministry on 14 March 2017. The purpose of this revision is to adopt the recommendations made by the European Competition Network (ECN) on investigative powers, enforcement measures and sanctions in the context of inspections and requests for information. The revision also addresses the competition neutrality rules in order to set a level playing field between private and public undertakings.

Substantial proposals

Section 35 is to be amended in a way that the FCCA would have the right to continue its inspection of gathered data at its own premises. Such continued inspections would be conducted by making a data copy while leaving the original data at the hands of the undertaking under investigation in order to minimise disturbance to the undertaking. In addition, while continuing the inspection at the FCCA’s premises, the representative of the undertaking under investigation would have the right to be present during the inspection. The right to make copies for continued inspection would cover both inspections made at the premises of the undertaking as well as inspections made at other premises pursuant to Section 36.
Section 37 is to be amended by adding the wording “irrespective of the medium” in order to clarify that the FCCA has the right to access any books and other records related to the undertaking under investigation, irrespective of the medium in which they are stored. This means that the FCCA can search, for example, employees’ mobile phones, which the Authority has previously been unable to do.
Third major amendment concerns competition neutrality. The proposal introduces a new Section 30 d stating that public undertakings and other undertakings under control of public authorities must maintain separate accounts for economic activities they pursue in competition with other undertakings. Public undertakings would have this obligation only when engaging in economic activities. The purpose of this provision is to prevent the emergence of competition neutrality problems by requiring more prudence by public undertakings when acting in a competitive environment.

Other changes

The proposal also takes into account the government’´s proposed regional reform by adding the word “region” to the relevant provisions. Moreover, the exchange of information between national authorities would be clarified and extended by adding more authorities to whom the FCCA can provide information. Furthermore, the FCCA could take into account the significance of the competition restriction when setting its enforcement priorities. In the area of merger control, processing times would be modified in such a way that during phase I, the FCCA would have 23 working days to investigate the effect of the merger on competition. During phase II, the FCCA would have 69 working days and the Market Court can extend it with 46 working days by application.

Further steps

The proposal will be submitted to the Parliament for final review before it can be enacted. We expect these amendments to enter into force during this year. The proposal is available on the website of the Ministry of Economic Affairs and Employment (in Finnish).

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