The Finnish Government has issued a Government Bill 210/2020 on 5 November 2020 to amend the Finnish Competition Act. The proposed amendments relate mainly to the implementation of the so-called ECN+ Directive and would, if adopted, inter alia, increase the investigative and decision-making powers of the Finnish Competition and Consumer Authority (the “FCCA”) as well as its powers to propose the imposition of penalty payments. The amendments are intended to enter into force on 4 February 2021, the date by which the implementation of the ECN+ Directive into the national legislation must be completed.
According to the Government Bill, the FCCA would be given competence to establish the existence of a competition restriction and, when deemed necessary by the FCCA, impose structural remedies on the undertakings infringing the competition rules. Following the amendment, the FCCA could, for example, oblige the infringing undertaking to divest a business unit or dispose a shareholding in a competitor. Such measures are, however, intended to be applied only in exceptional cases. In practical terms, a structural remedy would be imposed by the Market Court on the proposal of the FCCA. Additionally, the proposed changes would broaden the FCCA’s powers regarding who it may summon to a hearing when investigating a competition infringement. Accordingly, the FCCA’s right to summon persons to a hearing would extend to any person who may possess relevant information necessary to investigate competition infringement.
Furthermore, the proposed changes would facilitate the exercising of the rights of defence of the parties to a competition infringement. If adopted, a party under investigation would, according to the Government Bill, have the right to access to the documentation relating to the exemption from penalty payment, i.e. leniency, lodged with the FCCA. The use of such documents would, however, be strictly limited to the exercise of the rights of defence in court proceedings by an undertaking subject to investigation.
Additionally, the proposed amendments to the Competition Act relate closely to penalty payments. Changes are proposed regarding the calculation methods for penalty payments and the persons ultimately responsible for the payment of the imposed sanctions. Moreover, following the amendment of the current Competition Act, the undertakings themselves could assess more accurately the amount of the penalty payment to be imposed for restricting competition. The purpose of this amendment, which is not required under the ECN+ Directive but is instead based on national need, is clearly to create a deterrent and dissuasive effect. Interestingly, the Government Bill also proposes an addendum according to which the FCCA could propose and the Market Court impose penalty payments on undertakings for breaches of procedural rules and non-compliance with certain decisions and not only for competition restrictions as is currently possible pursuant to the Competition Act.
The proposed amendments to the Competition Act are intended to apply mainly to competition restrictions implemented or continued after the entry into force of the amendments. However, the Government Bill does not affect cases currently pending before the Market Court and the Supreme Administrative Court since such cases will be tried in accordance with the provisions in force prior to the entry into force of the amendments proposed.