FINLAND Law and Practice Contributed by: Anna-Stéphanie Roubier, Johanna Kauppinen and Milja Vuopio, HPP Attorneys Ltd
2.14 Exceptions to Suspensive Effect The Competition Act provides for exemptions to the general prohibition against implementation pre-clear - ance. Parties are permitted to perform the following actions prior to the FCCA’s approval: • to implement a public bid or use a mandatory bid, as defined in the Finnish Securities Market Act ( arvopaperimarkkinalaki , 746/2012, as amended); or • to redeem or use a right of redemption, as defined in the Limited Liability Companies Act ( osakey- htiölaki , 624/2006, as amended). These aside, actions required to preserve and secure the value of assets to be transferred and continue the business are allowed during the interim period between notification and clearance. 2.15 Circumstances Where Implementation Before Clearance Is Permitted The Competition Act generally prohibits the implemen - tation of concentrations before the FCCA’s clearance (unconditional or subject to commitments), unless the FCCA has decided otherwise. See 2.14 Exceptions to Suspensive Effect for the limited exceptions to the general rule against pre-clearance implementation. There is no general exemption from the prohibition to implement a concentration before its approval, includ - ing to carve out a concentration’s local completion to avoid delaying global closing. 3. Procedure: Notification to Clearance 3.1 Deadlines for Notification The Competition Act does not prescribe a deadline for the submission of a merger control notification. How - ever, a notifiable transaction cannot be implemented prior to the FCCA’s approval. According to Section 23 (1) of the Competition Act, a concentration must be notified following the conclu - sion of an agreement, the acquisition of control or the announcement of a public bid pursuant to the Finnish Securities Market Act, but before the closure of the transaction.
on a preliminary ruling given by the Court of Justice of the European Union in Case C-449/21 Towercast , pro - vides competence for national competition authorities and national courts to investigate below-thresholds concentrations ex post on the basis of rules prohibit - ing the abuse of a dominant position. While the FCCA has recognised in the blog post the usefulness of the Towercast tool, it does not, according to the FCCA, replace competence to call in below-threshold trans - actions that may have significant impact on the mar - ket. 2.12 Requirement for Clearance Before Implementation A notification is mandatory in Finland where the juris - dictional thresholds are met. Concentrations meet - ing the national thresholds must be submitted to the FCCA for approval before implementation. The Competition Act prohibits, as a general princi - ple, the completion of a transaction before approval; therefore, a transaction may not be implemented prior to its clearance by the FCCA (or the Market Court, as applicable). Only actions required to preserve and secure the value of the assets to be transferred, and to continue the business, are allowed during the interim period between notification and clearance (see 2.14 Exceptions to Suspensive Effect for very limited exceptions). 2.13 Penalties for the Implementation of a Transaction Before Clearance Where a concentration is implemented before the FCCA’s approval, the Competition Act provides for the following measures: the imposition of a penalty payment (fine), the prohibition of the concentration, an order to dissolve the concentration or the imposi - tion of conditions for clearance. These measures are imposed by the Market Court upon the FCCA’s pro - posal (see 2.2 Failure to Notify ). The FCCA applies the same rules irrespective of the nationality of the notifying parties. Should a notifiable foreign-to-foreign transaction fail to be reported to the FCCA, the consequences described in the foregoing would apply in the same manner as in the case of a purely national transaction.
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