FINLAND Law and Practice Contributed by: Anna-Stéphanie Roubier, Johanna Kauppinen and Milja Vuopio, HPP Attorneys Ltd
of national support for the European Commission, which has exclusive competence to enforce legisla - tion on foreign subsidies at the EU level. 4.7 Special Consideration for Joint Ventures There are no special considerations in the substan - tive review of joint ventures. According to the FCCA’s Guidelines, the SIEC test is well suited to intervening in situations where competition is impeded at the level of the joint venture’s founding members. The joint ven - ture can enable co-ordination between the founding members if they are able to follow and monitor each other’s actions via the joint venture. Moreover, the economic significance of a joint venture to its founding members can be so great that the founding members may refrain from competing with each other in other markets to ensure the continued viability of the joint venture. 5. Decision: Prohibitions and Remedies 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions The FCCA can, following its investigation, clear a concentration with or without conditions. Should the FCCA conclude that competition concerns identified during its investigation cannot be remedied, it must make a proposal to the Market Court for the prohibi - tion of the concentration. The Market Court has the sole competence to prohibit a concentration. Commitments, or a proposal of prohibition, are likely if a concentration is found to significantly impede effective competition in Finland or a substantial part thereof. This would be the case, in particular, if a con - centration creates or strengthens a dominant position. If competition concerns are identified during the FCCA’s investigation, the parties may propose rem - edies to address the concerns. These would be either structural or behavioural commitments. The FCCA evaluates whether the proposed commitments can fully eliminate the competition concerns identified. If remedies are sufficient to address the concerns, clear - ance is granted subject to commitments. Conversely, if the commitments are considered insufficient, the
FCCA makes a proposal to the Market Court for the prohibition of the concentration. 5.2 Parties’ Ability to Negotiate Remedies Should the FCCA identify competition concerns with a notified concentration, the parties may negotiate remedies in accordance with Section 25 (2) of the Competition Act, with the aim of obtaining clearance. Remedies take the form of structural or behavioural commitments. The FCCA has a strong preference for structural commitments, which it considers the most effective and reliable way to eliminate competition concerns. In practice, the most common remedy is the divestment of overlapping businesses: parts of the combined business are sold to a suitable pur - chaser to preserve effective competition in the rel - evant market(s). Behavioural commitments, such as access obliga - tions, supply commitments or firewalls between busi - ness units, may also be used but are less common. They are typically accepted only as supplementary measures where structural remedies alone do not fully address the competition concerns. The FCCA does not propose remedies. The initiative rests squarely on the notifying party (parties), which must devise and offer suitable commitments capable of addressing the identified competition concerns. It is for the FCCA to evaluate whether the proposed com - mitments are adequate, enforceable and effective for implementation. It is important to note that the FCCA cannot impose clearance conditions to which the noti - fying party (parties) would not agree, given that it is for the latter to propose commitments. This contrasts with the situation before the Market Court; when being called upon to decide on a prohibition proposal, the Market Court may impose conditions even if such conditions are not acceptable to the notifying party (parties). Under the Competition Act, commitments must be sufficient to eliminate any identified competition con - cerns. They must also be enforceable and capable of effective implementation. The FCCA’s mandate is strictly limited to competition issues. This means that commitments cannot be devised, or required,
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