15 June 2016
The Finnish Competition and Consumer Authority (FCCA) has investigated the practices of Kesko Food Ltd and Suomen Osuuskauppojen Keskuskunta (SOK) related to the sharing of sales data. The investigation did not produce any proof of restriction of competition that would have required further investigation.
The FCCA launched an unprompted investigation into the matter when the special provision of the Competition Act covering the consumer goods trade (Section 4a) had entered into force in 2014. According to the said special provision, an undertaking with a minimum of 30 per cent market share in the Finnish daily consumer goods retail trade is deemed to occupy a dominant position in the Finnish daily consumer goods market. As a result of the provision, enterprises with a market share exceeding the limit have to comply with the prohibition of the abuse of a dominant position according to the Competition Act. Both Kesko Food and SOK have over 30 per cent market shares in the Finnish daily consumer goods retail trade, so pursuant to Section 4a of the Competition Act, they occupy a dominant position.
Sales data refers to data about the products passing through grocery shops' points-of-sale, such as information about product prices, the number of products sold and the value of the sales. In Finland, the information received by suppliers is based on the sales data provided by retail chains and is purchasable from them. According to the FCCA's understanding, however, data obtained from different sources are not comparable, so an individual supplier cannot obtain an accurate picture of their overall market success. Further, there are no enterprises specialising in the analysis of sales data ('data sharing operators') in Finland.
In this matter, the FCCA assessed, on the one hand, whether retail chains occupying a dominant position are obliged to disclose sales data to their suppliers on terms deviating from the current terms and, on the other hand, whether retail chains are obliged to disclose sales data to data sharing operators. In the light of the information and reports available to the FCCA, the terms applied by Kesko Food and SOK to the sharing of sales data do not give cause to take further action or to continue investigating the matter.
When assessing whether the practice of the retail chains can be regarded as prohibited abuse of a dominant position, the FCCA has taken into account the objectives of Section 4a of the Competition Act and the established legal praxis concerning refusal to supply. The FCCA has not received any proof on the basis of which the retail chains' current data sharing practices could be considered to impair or distort competition in the daily consumer goods market. Further, no proof was found that the elements of refusal to supply, as adopted in legal praxis, would be fulfilled.
According to the FCCA, sharing sales data about daily consumer goods trade may have both positive and negative effects on competition. The effects depend, for example, on the accuracy and freshness of the information, the fairness of data sharing, and the competitive situation between suppliers in different products and product groups. Setting an obligation to disclose sales data does therefore not necessarily have a positive effect on competition in the daily consumer goods market. In the decision, the FCCA also points out that an obligation to disclose imposed on an individual retail chain does not resolve the problem that data obtained from different sources are incomparable.
More information: Kirsi Leivo, Director, tel. +358 29 505 3351, Martina Castrén, Senior Research Officer, tel. +358 29 505 3325 and Tom Björkroth, Senior Advisor, tel. +358 29 505 3350