It raised my interest as the Finnish Editor of Nordic Competition to read recently that Finland has signed the Nordic competition authorities’ co-operation agreement. I was keen to know why Finland, as a member to the European Competition Network (ECN) and after 15 years of Nordic co-operation, has now decided to enter into the agreement with the fellow Nordics and how this will impact advising clients in my jurisdiction. Here’s what I learned.
On the European scene, it was the first year with a Competition Commissioner from a Nordic country. We spoke to Margrethe Vestager in December. 2015 also saw several interesting cases and developments in the Nordics.
- Property agency merger blocked after completion. The Stockholm District Court blocked an already completed takeover by Swedbank Franchise of Svensk Fastighetsförmedling. Read the full blog post here.
- Norwegian Mobile merger. TeliaSonera, the Finnish-Swedish telecoms player, succeeded in obtaining a conditional clearance to take over Tele2’s mobile operations in Norway in a 3-to-2 merger. Our blog post is available here.
- Danish deal called off. In September, however, TeliaSonera and Telenor, Norway’s telecoms incumbent, abandoned their plan to merge their Danish operations in the face of opposition from the Commission.
- Sector specific merger regulation. 2015 was the year when sector specific merger rules were introduced in Denmark. As of 1 June 2015 virtually all telecoms mergers in the Danish market must be notified and assessed under merger control rules. See our blog post here.
- Stopping the clock. Just one of the updates to Swedish merger control procedures that were formalised in guidelines published this year.
- Gun jumping. In December 2014 the Danish Competition Council concluded that EY had jumped the gun when taking over KPMG Denmark. Our blog post on the council’s decision is available here. Six months later, the Danish Competition and Consumer Authority decided to refer the case to the public prosecutor’s office. See our blog post here. Clarification on the case is expected in 2016. Keep an eye on the blog in 2016 for an update!
- Holding back information when notifying a merger has also been on the agenda in Denmark. The Danish Competition and Consumer Authority decided to report Metro Cash & Carry to the state prosecutor for not telling the Authority about a second potential buyer of the company it was acquiring. Our blog post is available here and we hope to update you on the matter in 2016.
- Fining powers. The Swedish government launched a review into the possibility to give the Swedish Competition Authority its own fining powers. As the law currently stands the Swedish Competition Authority must raise a court action to request imposition of fines both in antitrust and in merger control cases. A report is due to be published on the issue in May 2016.
- Testing the limits of search powers. The Swedish Market Court ruled at the end of October against the Swedish Competition Authority’s request to extend a search at its premises of electronically copied material seized during a dawn raid relating to a separate suspected infringement. The SCA must now either request documents from the company in question, or seek permission to launch a new dawn raid to find documents relating to the separate suspected infringement. Read the full blog post here.
- Damages directive. The implementation of the Damages Directive is under way in the Nordic countries. We will update our readers on this in 2016.
- Rogue trading. The Swedish Competition Authority brought a novel dominance case before the Stockholm District Court against Nasdaq OMX, the Nordic stock market operator. The authority claims that Nasdaq abused a dominant position on the market for trading of Swedish, Danish and Finnish equities by excluding a rival trading platform, Burgundy, from installing their trading system on the same premises as Nasdaq’s own trading system (and those of a large number of securities traders). Burgundy was thereby forced to place their system elsewhere, making Burgundy’s connection to Nasdaq’s trading system, as well as to potential securities trading customers, longer and slower. The authority is seeking fines of SEK 31 million (around EUR 4 million) in the case.
ASSA AB v Konkurrensverket (A 3/14)
The Swedish Market Court ruled at the end of October against the Swedish Competition Authority’s request to extend a search at its premises of electronically copied material. The ruling is a reminder that a dawn raid is an intrusive measure for which an explicit statutory basis is required. A forthcoming amendment to the Swedish Competition Law will help clarify the Authority’s scope of review of electronic data in future cases.
Konkurrensverket v ASSA AB (Case Ä 842-14)
The scope of competition authorities to search seized documents has been a hot topic in several recent European cases – notably as concerns the European Commission in the Nexans and Prysmian cases. The Stockholm District Court also ruled earlier this year on this issue in the case of Konkurrensverket v ASSA AB, and the issue is currently on appeal before the Swedish Market Court.
This year has seen many important decisions in Finnish competition law cases both on the administrative Finnish Competition and Consumer Authority (the “FCCA”) driven end and the private damages actions side. Most of them are still pending on appeal but as a part of my initial contribution to the Nordic Competition Blog, I will briefly review some of the interesting findings and arguments raised in these cases so far. This entry involves certain reflections around the Finnish competition authorities’ inquiry into the Finnish dairy product leader Valio Oyj (“Valio”) and their conclusion that Valio had abused its dominant position on the Finnish fresh milk market during 2010-2012.