FINLAND Law and Practice Contributed by: Anna-Stéphanie Roubier, Johanna Kauppinen and Milja Vuopio, HPP Attorneys Ltd
3.8 Pre-Notification Discussions With Authorities Prior to filing a notification, pre-notification discus - sions usually take place with the FCCA. In cases that raise no concerns, pre-notification discussions may not always be considered necessary. Pre-notification discussions are typically conducted on the basis of a draft notification or other prelimi - nary material submitted to the FCCA. Discussions and materials provided during the pre-notification phase are always treated as confidential. 3.9 Requests for Information During the Review Process Requests for information (RFIs) are a typical investi - gative tool for the FCCA. Depending on the concen - tration under review, the RFIs may be extensive and require significant work from the parties involved. The RFIs often seek documents that explain the economic rationale for the transaction and appraise the concen - tration and its effects on competition. Such informa - tion is typically contained in board meeting minutes and materials prepared for the board for its decision- making – and in any studies, analyses or reports that may have been drafted or commissioned. When the FCCA considers a notification incomplete, it requests that the parties submit missing or sup - plementary information. Given that procedural time limits apply, time limits for replies are generally short. If required, the FCCA can, and in practice will, issue a “stop-the-clock” decision. The FCCA also requests comments and views, usually in writing, from customers, competitors and suppli - ers to the concentration, as well as from any relevant trade association and other interested parties. The FCCA may also request market information from third parties, experts and different research institutes, and the authority can also conduct surveys and other own- market investigations. 3.10 Accelerated Procedure There is no separate short-form, fast-track or other type of accelerated procedure for the FCCA’s review in simple cases. However, the information requirements are more limited in the case of concentrations with no
affected markets (ie, in the case of horizontal overlaps, where the combined market share on any relevant or plausible markets does not exceed 20%; and/or in the case of vertical links, where neither party’s market share exceeds 30% on any vertically linked market, irrespective of whether the parties have an actual supply relationship). Where a concentration does not give rise to affected markets, the notifying parties only need to provide information for reportable market(s). Furthermore, the FCCA may, in individual cases, grant waivers from information obligations. This is typically done where the concentration does not give rise to significant effects on competition, or the information requirements are in some respects unnecessary to assess the effects of the concentration. The notifying party may make a reasoned request for such a waiver. Waivers are typically requested and discussed with the FCCA during the pre-notification phase. The FCCA applies the “significant impediment to effective competition” (SIEC) test to determine wheth - er a notified transaction should be approved. The sub - stantive test corresponds to the test laid down in the EUMR and applied by the European Commission. The SIEC test focuses on the effects of a concentration on effective competition in the affected market(s) and seeks to ascertain how much competition might be lost as a result of the concentration. The FCCA usually begins by identifying – to the extent that is necessary in each case – the relevant product/ services market(s) and geographic market(s) before analysing any potential concentration-induced nega - tive effects on competition – and any potential coun - terbalancing effects, such as efficiency gains and the effects of potential competition. 4. Substance of the Review 4.1 Substantive Test The elements and the weight given to them, including any economic analysis, in the FCCA’s assessment, depend on the concentration and its potential effects on competition. The appraisal is always based on an overall assessment of the foreseeable impact of the concentration in light of the relevant facts.
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