The Finnish Competition and Consumer Authority (FCCA) got a new head of merger control, Ms Sanna Syrjälä, at the beginning of 2017. In this interview with Nordic Competition, she urges parties to engage in early and realistic pre-notification discussions and highlights the increased significance of econometrics in effects analyses.
You have a background as a head of research in the FCCA’s department responsible for cartels and other behavioural competition law enforcement. Why did you choose to move your focus to merger control, and how will your experience be of use in your new position?
I have ten years’ experience in antitrust matters with the FCCA. In the early years, I worked mostly with cartels, cartel proceedings and other article 101 “by object” infringements. Over the past five years my focus shifted more towards abuse of dominance and article 101 “by effect” cases. At the same I finished my master’s degree in Economics for Competition Law. Merger control was the obvious next step for me when I was looking for new challenges and opportunities to develop my expertise. Although it is a new field for me, the underlying economic ideas and the analysis of market power are very similar to antitrust analysis. The time frame we have for the analysis in merger control is much shorter, so we have to be very efficient and keep our focus. I can see some advantages here gained from my experience with antitrust court proceedings.
In Finland, communication with the FCCA in merger control matters has generally been regarded as rather informal and conversational. However, are there any good practices that the parties could take into account to make the proceedings more effective?
We intend to retain the good practices and informal nature of communication. Due to the tight time frames, merger analysis requires a close dialogue and cooperation between the FCCA and the notifying parties. There are a few good practice tips I could point out here. The first one is the pre-notification phase and early contacts to the authority. The more complex the case is, the longer the pre-notification phase should be. This benefits both us and the notifying parties, since it speeds up the procedure considerably and also improves the quality of the analysis. Even with non-problematic mergers, we would like to get a heads up a few days before the filing in order to ensure that we have the appropriate resources available. Secondly, I would like to urge the parties to give the FCCA a realistic analysis in the pre-notification phase. Sometimes we see that the parties disregard or downplay the possible concerns and are not giving us the full picture. I don’t see much point in this, since we spot the problems anyway when we start the analysis and we only end up wasting time. The sooner we have the right questions on the table the better both for the FCCA and the notifying parties.
Can you tell us a bit about the FCCA’s merger control team and case teaming? What is the role of economists in the investigations and do the economists have weight in the decision-making?
We have a small team that takes care of daily routines and non-problematic mergers. This team consists of lawyers only, but we consult our chief economist when we have any questions. The situation is very different when we are dealing with a more complex case. The mergers team gets extra resources from other departments when necessary. Furthermore, the role of economists is very important as they are mainly responsible for carrying out the effects analysis. The use of econometric analysis at the FCCA has increased significantly in the recent years. It is, however, always a team effort and we lawyers also participate in the effects analysis to the best of our ability. However, most importantly our job is to provide a legal framework for the analysis. When we are done, the case team consults the Board of the Competition Division and presents the analysis to the Director General, who makes the final decision.
Does the FCCA consider that the parties should engage economists in merger cases more often and in what kind of cases in particular? Does the FCCA have any wishes for the parties concerning the use of economists and their co-operation with those of the FCCA?
In my opinion, it would be useful for the parties to use their own economist in cases where a potentially harmful effect to competition can be identified. In some cases, these kinds of concerns are self-evident and they are highlighted to parties already in the pre-notification phase or the parties are already aware of them based on their own analysis. In other cases the concerns are raised during phase I investigations. During the past few years we have communicated to the parties in similar situations that the use of an economist might benefit the quality of the analysis, help our job and thereby speed up the procedure. Our economists are always willing to exchange views, models and data (when possible) with economic consultants, as long as the cooperation improves the analysis.
We have seen extensive information requests by the Commission and surprise inspections at a national level following a merger control filing in recent years. Do you foresee that the FCCA will be likely to increase the use of these measures to investigate mergers, and in what kind of situations would it do so?
In the past, the FCCA has conducted dawn raids in merger cases when there has been reason to suspect that the information provided by the notifying parties is not accurate or that we are not getting the full picture. It is a good tool to have in the box, but I do not see a dramatic change here in the near future.
The FCCA’s merger control guidelines are not fully in line with the Commission’s Consolidated Notice. Does the FCCA give the Consolidated Notice a priority over national guidelines?
The Finnish guidelines are predominantly in line with the Commission’s Consolidated Notice. There are, however, some details that are different. In these details the FCCA’s guidelines take priority over the Consolidated Notice.
According to Finnish law, turnover is to be calculated based on the “most recent financial statements drawn up” (as compared to “audited”). The exact moment is somewhat uncertain to many whereas the question is relevant in concentrations taking place after the end of the financial year. How does the FCCA interpret this?
The wording of the law and the Finnish guidelines in this respect are indeed not very clear. In FCCA practice, the term “most recent financial statements drawn up” refers to board-approved, dated and signed financial statements. Thus, the calculation of turnover does not require that the financial statements have been audited, let alone approved by the shareholders’ meeting.
Finland has no similar data room procedures for the disclosure of information during the proceedings as the Commission or, for example, the Swedish Competition Authority. Does the FCCA anticipate that external advisors would receive similar restricted access to confidential data received by the FCCA during the proceeding via the authority’s data room in Finland as well?
This question is raised in practically every phase II case, and the use of economic consultants has increased such requests. So far, the FCCA has taken the stand that granting external advisors and consultants access to confidential data would not be compatible with the Finnish Act on the Openness of Government Activities.
How do you co-operate with other competition authorities in the Nordic countries on merger cases?
Cooperation between Nordic Countries is conducted both in the ECN and via bilateral contacts as well as in the Nordic meetings. Cooperation in actual pending merger cases is based on informal communication between case handlers and economists in the respective countries.
What are the current main areas of focus of the FCCA in the merger control? Are there any planned amendments to law, such as amendments to thresholds, control of minority shareholdings or take-up right below the thresholds?
The nature of merger control is that you never know what kind of cases will be notified. It is interesting to see what this year brings us. The Finnish Competition Act is currently being revised. However, no major amendments concerning merger control have been on the agenda in the Working Group preparing amendments to the Act. A minor change to the calculation of the time-limit for the proceeding is, however, being proposed.
Another recent national development is the on-going social and health care services reform and the debate concerning whether the Competition Act should be amended to include sectoral competition legislation in order to safeguard effective competition. In this context, the need for sectoral merger regulation may also arise.