FINLAND Law and Practice Contributed by: Anna-Stéphanie Roubier, Johanna Kauppinen and Milja Vuopio, HPP Attorneys Ltd
amended), or the acquisition of the equivalent actual control; • the acquisition of all or part of a company’s busi - ness; • a merger; or • the establishment of a joint venture that performs all the functions of an independent economic entity on a permanent basis. The acquisition of a minority shareholding may trigger a notification obligation if the acquiror will be able to exercise decisive influence over the target undertaking or acquired assets – for example, through veto rights established in a shareholders’ agreement. The acquisition of all or part of an undertaking’s business is notifiable to the FCCA if turnover can be attributed to the purchased business/assets and the turnover thresholds are met. The transfer of personnel generally provides strong evidence of a notifiable con - centration. The purchase of (key) intellectual property rights may also give rise to a notifiable merger, even without the transfer of personnel, provided again that the jurisdictional thresholds are met. 2.4 Definition of “Control” While Section 21 (1) of the Competition Act defines the types of concentrations that are subject to the Finn - ish merger control regime, the Accounting Act pro - vides the definition of “control”. In accordance with the Accounting Act, “control” is established through majority voting rights, or through the authority to appoint members to another undertaking’s govern - ing body or bodies. The definition encompasses both sole and joint control. The FCCA’s Merger Guidelines (Part 2) further clarify that control may be de jure or de facto. The presence of veto rights concerning stra - tegic matters may also represent a form of control. The purchase of a minority shareholding triggers a merger control notification requirement, if it results in the acquisition of (sole or joint) control (see 2.3 Types of Transactions ). 2.5 Jurisdictional Thresholds In accordance with Section 22 of the Competition Act, a concentration is notifiable where:
• the combined turnover generated in Finland of all parties to the concentration exceeds EUR100 mil - lion; and • the turnover generated in Finland by each of at least two parties to the concentration exceeds EUR10 million. In accordance with Section 22 (2) of the Competition Act, special rules apply for calculating the relevant turnover of credit institutions, certain investment firms and other financial institutions, including insurance and pension companies. Consistent with the one-stop-shop principle, where the turnover thresholds defined in the EU Merger Regulation (the “EUMR”; Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings) are met, the Finnish merger control provisions do not apply, unless a referral mechanism under the EUMR is invoked. 2.6 Calculations of Jurisdictional Thresholds The applicable turnover is that generated during the previous financial year (12-month period), as recorded in the most recent audited annual accounts. Turno - ver includes the amounts derived from the sale of goods and/or the provision of services in the ordinary course of a company’s operations. The relevant turno - ver excludes sales rebates, value added tax and any other direct taxes relating to turnover. Adjustments to the relevant turnover must be made where acquisi - tions and/or divestments have occurred after the most recent approved annual accounts were drawn. The rules governing the calculation of relevant turno - ver have been further clarified in the FCCA’s Merger Guidelines (Part 3), which provide, for instance, that foreign currencies are converted into euros using the European Central Bank’s annual average currency exchange rates. 2.7 Businesses/Corporate Entities Relevant for the Calculation of Jurisdictional Thresholds For assessing the jurisdictional thresholds, Section 24 of the Competition Act specifies that on the “acquir - er” side (acquisition of control or of business or parts thereof, merging parties or a founder of a joint ven -
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