NORDIC COMPETITION AUTHORITIES EXPAND CROSS-BORDER CO-OPERATION

Photo: Shutterstock

Photo: Shutterstock

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.

The Why

The agreement, signed on 8 September 2017, concerns the Nordic competition authorities’ cross-border co-operation in competition and merger control cases. Although Finland is now joining for the first time, the agreement also replaces the previous agreement between Denmark, Norway, Iceland and Sweden. The new arrangement, thus, changes the co-operation between the competition authorities in the entire Nordic region.

The Nordic agreement has as its background the fact that the Nordic markets are generally rather integrated. In many industries, the same companies operate in more than one Nordic country. Whereas Regulation No 1/2003 enables the EU Member States’ competition authorities to co-operate in the enforcement of Articles 101 and 102 TFEU, such co-operation does not involve Norway and Iceland, as they are not EU Member States. Moreover, the requirement of an effect on cross-border trade for and the exclusion of merger control matters from the co-operation within the ECN are factors leading to the Nordic competition enforcers’ new collaboration.

The What

Once the national ratification and legislative processes are completed, the Nordic competition authorities will have broader co-operation powers than before or within the ECN. Here is a roundup of the key points to note:

  1. Co-operation powersFirst, the agreement empowers the authorities to inform each other of any investigation or proceeding and to exchange information, including confidential information, with one another. Although these two powers also existed in the old agreement, my colleagues in the other Nordic countries may want to check the new wording concerning, for example, a restriction to use the exchanged information only for the subject matter in question.

    Second, the agreement provides the authorities with two entirely new powers: the power to carry out requests for information and the power to carry out inspections and other fact-finding measures on behalf of another authority, which may also participate in such an inspection. This may sound like old news for many of you familiar with ECN co-operation. However, in addition to reminding you of Norway and Iceland, I also encourage you to keep reading.

  2. No need for cross-border effects on tradeThe above co-operation is not limited to the application of Articles 101 or 102 TFEU or Articles 53 or 54 EEA alone (or in parallel with the national competition acts as proposed in the so-called ECN+). Instead, it also covers matters where the equivalent national competition law provisions apply exclusively. In other words, the Nordic competition authorities may also co-operate in purely national cases that have no effect on inter-state trade whatsoever.
  3. Co-operation also possible in merger control casesWith the exception of the right to conduct inspections on behalf of another authority, the above-mentioned co-operation powers also cover merger control cases that are subject to national merger control rules. As a side-remark, I note that dawn-raids are possible and have been conducted also in merger control matters in Finland.

The Wish

We have lately seen EU-level and national legislative proposals aimed at providing competition authorities with more effective tools and powers which, in addition to the above, affect Finland and the other Nordics. Whether or not justified from an effectiveness perspective, as a practitioner I am personally concerned.

One should keep in mind that administrative legislation governing the actions of competition authorities, concerning, among other things, a requirement of court order for inspections or a right to appeal of authority’s actions, does in fact vary from country to country. Therefore, new powers should not be implemented as given from above, but should instead go through an appropriate and sufficient overall assessment within the specific national legal framework, considering also whether adequate counter-balancing rights of defence and the rules on, for example, legal control of the use of such powers are in place. One power is not fit for everyone.

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Salla Mäntykangas-Saarinen is a Counsel at Castrèn & Snellman’s Helsinki office specialising in competition law. Email: salla.mantykangas-saarinen@castren.fi

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