The Finnish Competition and Consumer Authority (FCCA) has updated the guidelines on immunity from penalty payment and reducing the penalty payment in cartel cases. According to the Competition Act, an undertaking participating in an unlawful cartel may obtain leniency upon revealing such a cartel to competition authorities. The update is based on the ECN+ directive which harmonised the relevant legislation in the European Union.
On 27 January 2022, the FCCA published updated guidelines on the application of the Competition Act in leniency cases, i.e. in the immunity from penalty payment and reducing the penalty payment in cartel cases where a cartel member reveals the existence of a cartel or delivers new information on the cartel to the competition authority. The guidelines had to be updated as the Sections on leniency in the Competition Act changed in connection with the implementation of the ECN+ Directive into national law.
The Sections of the Competition Act concerning leniency have become more detailed. As a result, the text of the guidelines has also changed. In practice, however, the processing of leniency cases in the FCCA has not changed significantly, as the FCCA’s process of exempting from the penalty payment and reducing the penalty payment was in line with the requirements of the ECN+ Directive even before the amendment of the Competition Act.
Clarifications on applicants’ cooperation obligation and application types
The contents of the Competition Act and the guidelines on leniency applicants’ obligation to cooperate have been specified. Cooperation obligation refers to the applicant’s obligation to cooperate with the FCCA throughout the investigation of the restriction of competition. In addition, it has now been pointed out in the Competition Act that a corporate statement can be made in writing or orally, and that an application for immunity from penalty payment or a reduction of the penalty payment can also be made in English when agreed. In practice, the FCCA already accepted an oral corporate statement and an application in English.
In addition, the guidelines and the Competition Act make a clearer distinction between the different application types, the marker application and the summary application, treating them as separate entities. In practice, the use of different application types has not changed in the FCCA.
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The first person leaving the cartel may avoid penalty payments
The company that initially exposed the cartel to the FCCA may be exempted from the penalty payment, which the FCCA would otherwise propose to the Market Court. The company must submit to the FCCA a corporate statement, as well as information and evidence on the cartel before the agency has received them through any other means.
Parties to the cartel other than the company that first exposed the cartel to the FCCA can also benefit from their cooperation with the FCCA. The penalty payment for companies party to the cartel may be reduced if they submit to the FCCA a corporate statement, information and evidence relevant for establishing the restriction of competition or its full scope or nature, for which the FCCA has not received information through any other means. The penalty payment may be reduced by a maximum of 50 per cent. The amount of the reduction is impacted by the time of providing the information and by the relevance of the information provided by the company in establishing the restriction of competition.