This annual merger control report of Dittmar & Indrenius highlights the most recent trends and developments in Finnish merger control enforcement.
Important legislative amendments entered into force in 2023, and it was expected in the Government Bill that the new, lower notification thresholds would double the annual number of notifications to the Finnish Competition and Consumer Authority and make it a busy year for the authority. However, the total number of notifications did not live up to the expectations. Also, as in 2022, there were no proposals to prohibit concentrations, no declarations of incomplete notifications and no stop-the-clock decisions in 2023. However, 2023 saw an interesting trend emerging in all except one of the Phase II cases ending up being withdrawn by the parties. Furthermore, the year included some ‘first ever’ actions, for example, Finland’s first ever referral request to the European Commission under Art. 22 EUMR in a ‘below all notification thresholds’ context.
Summary of the rules on review periods
In this chapter, we briefly go through the rules on review periods in Finland to give some background to what will be discussed later. The year 2023 brought no changes to these rules, so if you are familiar with these rules, you may skip this section and move directly to the next chapter.
After receiving a complete notification of a concentration from the notifying party (or parties), the Finnish Competition and Consumer Authority (“FCCA”) has 23 working days at the so-called initial stage (“Phase I”) of its investigation to decide that the concentration does not fall under the Competition Act, to approve the concentration with or without commitments, or to decide that the concentration raises significant competition concerns and warrants an in-depth scrutiny during a further investigation stage (“Phase II”). Phase II extends over a period of max. 69 working days, which can exceptionally be further extended by up to 46 working days by the Market Court at the request of the FCCA. At the end of Phase II, the FCCA must either approve the concentration with or without commitments or request the Market Court to prohibit it.
If the FCCA has submitted its prohibition proposal to the Market Court, the Market Court has 69 working days to clear the concentration with or without commitments or to prohibit it. A decision issued by the Market Court may be appealed to the Supreme Administrative Court within 30 days. The length of such appeal proceedings in the Supreme Administrative Court is not set in law.
If the parties do not provide in time the information the FCCA has asked for, or the information provided is substantially insufficient or incorrect, the FCCA may extend the review periods in both Phases I and II with the number of days the information requested is late (‘stop-the-clock’).
If the notification is substantially insufficient, the 23 working day review period of Phase I does not begin to run until sufficient information is provided (‘incomplete notification’). Sometimes the FCCA has declared a notification incomplete at quite a late stage of the procedure, once even towards the end of Phase II.
2023 brought important changes as of 1 January 2023
First, the merger control notification thresholds were lowered. According to the new rules, a concentration has to be notified to the FCCA if the following cumulative criteria are met: (i) the parties’ combined Finnish turnover exceeds EUR 100 million and (ii) the Finnish turnover of each of at least two of the parties exceeds EUR 10 million. Consequently, the merger control regime now focuses on transactions with potentially more local effects, as the FCCA had discovered that many industries and markets in Finland had concentrated due to transactions falling below the previous higher and more global notification thresholds. As the FCCA was keen to investigate also such transactions, it proposed to have the thresholds lowered.
The new turnover thresholds apply to transactions signed on or after 1 January 2023. According to the old rules, concentrations had to be notified if the parties’ combined global turnover exceeded EUR 350 million and the Finnish turnover of each of at least two of the parties exceeds EUR 20 million.
In connection with the reform of the Finnish merger control notification thresholds, the introduction of a right for the FCCA to require a notification of a ‘below-thresholds’ concentration was discussed. The FCCA had proposed and advocated for such a right during the reform process, but it was ultimately not accepted due to the resulting uncertainties for future transactions. However, the proposal might resurface again.
For more detailed description of the reform of the turnover thresholds, please see our alert here.
In addition, the merger control notification form – which is an annex to the Government Decree on the obligation to notify concentrations – was renewed for 2023. The renewed form brought new requirements for providing information in a merger control notification, such as the greater examination of all realistically plausible alternative market definitions and potential competition. It also makes notifying concentrations without horizontal overlaps or vertical links less burdensome than before. The information requirements and analysis that must be provided to the FCCA in the new form is now closer to that of e.g. the EU, Sweden and Denmark.
Furthermore, the FCCA issued new guidance in 2023 concerning its merger control practices, but the anticipated new guidance concerning remedies is yet to be published.
2023 in numbers
Unlike the European Commission (the “EC”), the FCCA does not yet provide annual merger control statistics. However, D&I has compiled and kept up-to-date detailed statistics on Finnish merger control cases since the merger control rules entered into force in Finland in autumn 1998.
From a statistical point of view, the relevant numbers in 2023 unfortunately cannot really be compared to the ones in the previous years since 2023 is the first year of application of the new notification thresholds. As said, it was estimated in the Government Bill that due to the lowered turnover thresholds the number of notifications to the FCCA would double. However, the 46 notifications in 2023 remained far from the anticipated double number of notifications. There were 35 notifications in 2022, 33 in 2021, 23 in 2020 (a pandemic exception) and again 33 in 2019 (see our merger control report regarding 2022 here, 2021 here, 2020 here and 2019 here). Consequently, the 46 notifications in 2023 show only an approx. 31 % increase compared to the 35 notifications in 2022.
In 2023, the FCCA issued a total of 47 final decisions. Out of this, 46 were non-conditional Phase I approvals. The FCCA initiated altogether four Phase II reviews in 2023; one of the cases was notified already in 2022. The four Phase II reviews the FCCA initiated in 2023 is just shy of 9 % of the 46 notified cases. Three of the four Phase II reviews the FCCA started in 2023 ended up being withdrawn by the parties and one was approved by the FCCA subject to conditions. The number of withdrawn transactions in Phase II investigations has seen a peak lately.
First ever proposal of a fine for breaching remedies
In 2021, the FCCA conditionally cleared an acquisition in which Valio – a Finnish dairy and food company – bought the foodservice wholesaler Heinon Tukku. The acquisition was approved subject to commitments as Valio would receive information related to the pricing of competing food manufacturers through Heinon Tukku. In order to eliminate the competition concerns, Valio undertook to protect the confidential information of its competitors so that it is not passed on to the people responsible for the pricing of Valio’s products within the organization. In practice, this was implemented with IT system restrictions, and an independent trustee was appointed to monitor compliance with the commitments.
At the end of 2022, Valio informed the FCCA that it had discovered an error in the protection of competitors’ price data. Due to the error, the staff of Valio who handle sales for foodservice customers had had access to the price information of Valio’s competitors for several months. The FCCA considered that Valio had not complied with the most important commitment for approving the acquisition, which was to prevent the transmission of competitors’ price information in a way that has a negative impact on competition.
In December 2023, the FCCA proposed to the Market Court that the Court impose a fine of EUR 900,000 on Valio for the violation. The FCCA itself is not empowered to impose the fine. According to the proposal, the proposed amount is 0.04 % of Valio Group’s global turnover in 2022. The case is currently pending at the Market Court. The case marks the first time the FCCA has proposed a fine for a breach of commitments offered to secure a merger control clearance.
Finland’s first ever ‘below-thresholds’ referral request to EC under Article 22 EUMR
In July 2023, the proposed acquisition of Nasdaq’s European power trading and clearing business by the European Energy Exchange (“EEX”) was caught by initial referral requests submitted by Finland and Denmark pursuant to Article 22 of the EU Merger Regulation (“EUMR”) on their own initiative. According to Finland and Denmark, the concentration would result in a monopoly on trading and clearing services for Nordic electricity derivatives (stock exchanges). The initial referral requests were subsequently joined by Sweden and Norway. In August 2023, the EC accepted the referral requests. Consequently, the proposed acquisition – which did not meet the notification thresholds of the EU or any EU Member State – fell under the jurisdiction of the EC, and the EC asked EEX to notify the transaction.
This is the first time the FCCA has requested a referral in a transaction falling below the Finnish notification thresholds and demonstrates that the merger control risk must be assessed in advance also in cases where the EU or Member State notification thresholds are not met. The possibility of the EU Member States to make a referral request of a concentration falling below national notification thresholds dates back to the EC’s new interpretation of and new guidance (published in March 2021) on the application of the referral mechanism set out in Article 22 EUMR (for more detailed discussion about the new interpretation and guidance, please see our alert here). This was the third occasion on which the EC had accepted referral requests pursuant to Article 22 EUMR in application of its guidance of March 2021.
Several notifications withdrawn in Phase II
Lately, there have been several withdrawals of merger notifications in Phase II cases. The withdrawals were made after the FCCA’s provisional Phase II findings. Withdrawals have been quite rare in Finland until lately, although in 2022 also Helen Oy / LämpöYkkönen Oy joint venture was withdrawn as a result of a lengthy Phase II investigation. The concentration was rearranged so that it did not have to be notified (see more in our alert here). In all three withdrawn cases no actual commitment offer was made, and the FCCA commented that in none of these cases economically reasonable and feasible commitments could be found as the business operations under investigation were not possible nor profitable to be separated from other business operations.
Enersense International Oyj / Voimatel Oy
The concentration was notified back in 2022, and the Phase II investigation began in January 2023. Both parties are active in the telecommunications infrastructure construction and maintenance markets. According to the FCCA’s investigation, the acquisition would have led to adverse competitive effects on the above-mentioned markets due to the markets being already concentrated and, according to the FCCA’s preliminary view, only two nationwide operators of a wide range of services would remain in several markets after the acquisition, the remaining competitor being Eltel. The FCCA also found that Enersense and Voimatel have overlapping business operations in the maintenance services of substations and transmission networks. According to the FCCA, the parties’ combined market shares were already high (30-60 %) in the notifying party’s own view and they were market leaders in several markets.
On 15 February 2023, Enersense announced that it would withdraw from the acquisition, as a result of which the processing of the matter by the FCCA lapsed. No actual commitment offer was made in the case.
OptiGroup FSF AB / Pamark Business Oy
The concentration was notified in March 2023 and Phase II initiated in April 2023. After the FCCA received an unopposed extension to the Phase II review period from the Market Court, the notifying party ended up withdrawing the notification on 21 August 2023.
Both OptiGroup and Pamark are consumer goods wholesalers operating in Finland selling cleaning and hygiene products, as well as health and safety products and personal protective equipment. Based on the FCCA’s preliminary review, it was the wholesale market for cleaning and hygiene products where the merger could have had adverse competitive effects with the combined market share of the parties up to 40-70 %.
According to the FCCA, its investigations did not find that the entry or expansion of new players into the market, nor the bargaining power of customers to balance the competitive effects, would have prevented price increases and quality decreases resulting from the acquisition. Also in this case, only preliminary discussions on the commitments took place prior to the withdrawal.
PostNord Strålfors Oy / Edita Prima Oy
In the most recent withdrawal case, notified in October 2023 and moved to Phase II in November 2023, the notifying party ended up withdrawing the notification on 8 January 2024. The parties to the merger had overlapping activities, especially in customer communications management services, such as processing and printing of administrative documents, provided to companies and authorities. Based on the FCCA’s preliminary review, the acquisition could have had adverse competitive effects on the Finnish markets for traditional customer communications management services, i.e. transaction printing services. Transaction printing services refer e.g. to services for processing, printing and debarking physical documents personalized with names, addresses or other personal data, such as invoices and pay slips.
Based on the investigation, transaction printing should be viewed as a separate market from digital customer communications management services, even though the share of electronic communications has increased. In addition to applicable legislation regarding communication by mail, the transition from traditional communications to digital communications is, according to the FCCA, particularly limited by the willingness and readiness of end-customers to switch to digital communications.
According to the FCCA, the market for transaction printing services is already highly concentrated, and as a result of the acquisition, the parties’ combined market share would have been high and only two major players would have remained in the market, remaining competitor being state-owned Posti. No commitments were suggested by the parties to address the competition concerns.
Conclusions
A year ago, we predicted, like everyone else, that 2023 would be a busy year for the authority due to the lowered turnover thresholds. Looking back, there was, in the end, only a relatively small increase in the number of notifications in 2023 – although an increase of approx. 31 %. Naturally, the less-than-anticipated increase is due to many different, also unforeseeable reasons (such as the globally increased uncertainty and interest rates). It remains to be seen whether the Government’s estimate of double number of notifications due to the new lower notification thresholds will be more accurate when a longer period of application of the new thresholds can be examined.
The renewed notification form has been helpful especially in making simple cases less burdensome. Most of the cases notified in 2023 were simple Phase I cases. There was not that much to learn from the few Phase II cases, especially as all but one of them were withdrawn. But the first ever case at the Market Court for a breach of remedies will be interesting to follow.
It was perhaps a bit surprising to see Finland making an Art. 22 EUMR referral request, for the first time – generally speaking the right for such requests is hotly contested by businesses – in only the third ever ‘below all notification thresholds’ case in which the EC has accepted such requests. But at the same time it is of course impossible, also for the FCCA, to foresee when a case meriting in the FCCA’s view such a controversial request will appear – 2023 just happened to see the first one. In this context, we remind that the first of such EC cases, Illumina/Grail, is still pending at the European Court of Justice as Illumina has appealed the General Court’s judgment of July 2022 in which the Court confirmed the EC’s new approach to the application of the referral mechanism set out in Art. 22 EUMR, i.e. the EC’s jurisdiction to review the ‘below all notification thresholds’ transactions (see our alerts here and here as well as the EC’s news on the latest development in the Illumina/Grail saga here).
The fact that the FCCA’s proposal for introducing a right for it to require a notification of a ‘below-thresholds’ concentration was not accepted in connection with the recent legislative changes was welcome but it remains to be seen how quickly the proposal might resurface again.
Finally, we are naturally very pleased to share that Dittmar & Indrenius have been involved as counsel to either the buyer or the seller in many of the cases notified to the FCCA in 2023.
