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KKV:n tutkintavaltuudet ja yllätystarkastukset/EN

Kilpailuoikeus-wikistä
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The FCCA's investigative powers include the right to carry out unannounced inspections (dawn raids) on company premises to investigate suspected restrictions of competition. The inspection powers were significantly expanded by an amendment to the Competition Act implementing the so-called ECN+ Directive.

Avainkohdat
  • Mistä on kyse: The FCCA may carry out dawn raids on company premises and examine electronic material, including mobile phones and other mobile devices.
  • Miksi sillä on kaupallista merkitystä: Preparing for an inspection in advance (compliance programmes, staff training, clear instructions for an inspection situation) directly affects how smoothly and how narrowly the inspection is carried out.
  • Mikä menee useimmin pieleen: The FCCA may continue reviewing electronic material on its own premises after the inspection — the inspection does not necessarily end on the same day the inspectors leave the company's premises.

Inspection powers

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FCCA inspectors have the right to access a company's premises, examine accounting records and other business documents regardless of the medium on which they are stored, take copies of material, and seal premises and material for the duration of the inspection. Following the amendment to the Competition Act, the right of inspection also extends to mobile devices such as work phones and tablets; however, inspectors may only ascertain whether material on a device falls within the scope of the investigation, and may not examine content that is clearly established to be private in more detail.[1] The FCCA may also continue reviewing copied electronic material on its own premises after the inspection has ended.

Obligation to provide information

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The Finnish Competition and Consumer Authority (FCCA) has the right to require undertakings, associations of undertakings, contracting authorities, municipalities, joint municipal authorities, wellbeing services counties, joint authorities for wellbeing services, and the State, as well as entities under their control, to provide, notwithstanding confidentiality provisions, all information and documents necessary to assess the content, purpose and effects of a restriction of competition, as well as mergers and procedures referred to in Chapter 4a.[2]

Natural persons are also obliged to provide necessary information and documents at the FCCA's request. However, the obligation does not cover special categories of personal data or personal data relating to criminal convictions, nor documents containing confidential correspondence between an external legal adviser and the client.[3] The obligation to provide information also extends to inquiries made at the request of another member state's competition authority as part of ECN+ cooperation.[4]

The FCCA also has the right to summon for a hearing a representative of an undertaking or its association, or any other person who may hold information necessary for investigating a restriction of competition, and to record the answers it receives.[5]

Inspections of business premises and other premises

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A competent FCCA official has the right to carry out inspections of business and storage premises, land areas and means of transport under an undertaking's control, to monitor compliance with the merger control rules and sections 5 or 7 or Article 101 or 102 TFEU.[6] No prior court authorisation is required for such an inspection.

By contrast, an inspection of premises other than an undertaking's business premises — for example, premises falling within the protection of the home — requires the FCCA to obtain prior authorisation from the Market Court. The Market Court may prohibit the inspection if it would be arbitrary or excessive, having regard in particular to the seriousness of the suspected restriction of competition, the significance of the evidence sought, the undertaking's involvement, and whether it is reasonably likely that relevant documents are kept on those premises.[7] See Appeals in Competition Matters: a Market Court decision granting an inspection authorisation under section 36(5) is not separately appealable.

The official carrying out the inspection has, regardless of the storage medium, the right to examine an undertaking's business correspondence, accounting records, data-processing records, other documents and data, and to take copies of them; the official may also request explanations of facts and documents from representatives and staff, and seal premises, accounting records, documents or data for as long as carrying out the inspection requires.[8] This medium-independence also extends to work-related phones and other mobile devices used in business activities; in practice, however, inspectors may only establish the relevance of material on a device, and may not review content that is clearly private.

Note also the limitation: when an inspection is carried out under section 36 on premises other than business premises, the official has only the powers under subsection 1 (the right to examine and copy), not those under subsection 3 (requesting explanations, sealing).[9]

The police are obliged to provide the FCCA with executive assistance in carrying out an inspection.[10]

Note: sections 35–37 were most recently amended on 27 June 2025 (713/2025), which, among other things, expressly extended the right of inspection to means of transport and clarified the handling of temporary copies of data on the FCCA's own premises.[11]

Penalty payment for obstructing an inspection

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If an undertaking intentionally or negligently, among other things, obstructs an inspection carried out under section 35, breaks a seal affixed in connection with an inspection, or provides incorrect, misleading or incomplete information in response to an FCCA request for information, the FCCA may propose to the Market Court that a separate procedural penalty payment be imposed. The procedural penalty payment may not exceed one per cent of the company's total worldwide turnover — a different matter from the (considerably higher) fine imposed for the substantive competition infringement itself.[12] The provision is based on the implementation of the ECN+ Directive (Act 546/2021).

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During the investigation, the FCCA must respect the rights of defence of the undertaking under investigation. The FCCA informs the undertaking of its status in the investigation and of the suspected conduct as soon as possible; the undertaking has, on request, the right to obtain information on the investigation documents and the stage of proceedings to the extent this does not prejudice the investigation, and it must be heard before a proposal for a fine is made or a decision finding an infringement is issued.[13] The FCCA may use information obtained under sections 33–36 only for the purpose for which it was gathered, unless it has opened a new investigation.[14]

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An undertaking is not obliged to hand over to the FCCA documents containing confidential correspondence between an external legal adviser and the client; the same limitation also applies to information requested from natural persons under section 33.[15]

The word external is essential. Under the case law of the Court of Justice of the EU, the protection of legal professional privilege in a competition-law investigation covers only correspondence with an independent lawyer — that is, one not employed under a contract of employment by the client — not advice from an in-house lawyer employed by the company, even if that lawyer is a member of a bar association. The principle was established in AM&S Europe v Commission, and was expressly confirmed as regards in-house lawyers in Akzo Nobel Chemicals and Akcros Chemicals v Commission.[16] Because the wording of section 38(3) of the Competition Act ("external legal adviser") follows the same distinction, the same limitation applies in practice equally to investigations concerning purely national infringements of sections 5 and 7 as to investigations under Articles 101/102 TFEU.

Käytännön huomio

In-house lawyers' emails and memoranda are not, in principle, protected during an inspection, even where they address legal advice — only advice from an external, independent lawyer is protected. This is worth bearing in mind at the pre-inspection preparation stage already: competition-law risk assessments prepared by an internal legal department are not automatically protected in an FCCA inspection.

Privilege against self-incrimination

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In answering questions put by the FCCA, an undertaking cannot be required to admit that it has acted contrary to section 5, section 7, or Article 101 or 102 TFEU.[17]

The provision derives from the CJEU's ruling in Orkem v Commission, which established that the Commission (and, correspondingly, a national competition authority) may require an undertaking to provide all necessary factual information and to hand over documents in its possession, even where these may be used as evidence of an infringement against the undertaking itself — but may not put questions the answering of which would amount to an admission of the existence of an infringement which it is for the authority itself to prove.[18]

Käytännön huomio

The privilege is narrower than the right to silence in criminal proceedings. An undertaking cannot refuse to answer purely factual questions, or fail to hand over existing documents, by invoking the privilege against self-incrimination — such a refusal may itself lead to a procedural penalty payment under section 37a. The privilege covers only answers that would in substance amount to an admission of a restriction of competition that has been found to be prohibited.

Special protection of corporate statements

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A separate, narrower system of restrictions on use applies to corporate statements and settlement submissions made in leniency proceedings: their content may be accessed only by the party under investigation, for the exercise of its rights of defence, and they may not be used as evidence before a court until the FCCA has closed its proceedings with respect to all parties under investigation.[19] See further Immunity from and Reduction of Fines (the Leniency Programme).

Preparation by undertakings

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Käytännön huomio

A working dawn-raid protocol should be drawn up in advance, not on the day of the inspection: who receives the inspectors, who acts as the point of contact for the legal department or external counsel, how staff are instructed to be cooperative but to refrain from unnecessary comment, and how material potentially covered by confidential attorney–client communication (legal privilege) is handled during the inspection.

Tarkistuslista — First steps when an inspection begins
  • Request and check the FCCA's inspection decision and its scope — whether it is an inspection of business premises under section 35 or an inspection also covering other premises under section 36.
  • Notify the legal department or external counsel of the inspection immediately and appoint a point of contact for the inspection.
  • Instruct staff to be cooperative but to refrain from unnecessary comment.
  • Identify and flag confidential attorney–client communications before material is handed over to the inspectors (legal professional privilege).
  • Bear in mind the privilege against self-incrimination: the obligation to provide information covers facts, not an obligation to admit one's own infringement.
  • Document the course of the inspection and any disagreements over the scope of the material or over material covered by legal professional privilege.

Closing the investigation

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Even before deepening the actual investigation, the FCCA may decide not to investigate a matter at all — for example, if a suspected restriction of competition is not probable, competition in the relevant market is functioning satisfactorily overall, or a request for action is manifestly unfounded. A decision not to investigate must be made without delay.[20]

An investigation may end in a finding by the FCCA that no infringement has occurred, a proposal to the Market Court for a fine, or acceptance of commitments offered by the parties without a formal finding of infringement.

See also

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Sources

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  1. ↑ Kilpailulaki muuttuu – KKV:n tarkastusoikeudet laajenevat (Finnish text), Merilampi.
  2. ↑ Competition Act (948/2011), section 33(1) (Finnish text). Finlex
  3. ↑ Competition Act (948/2011), section 33(2) (Finnish text). Finlex
  4. ↑ Competition Act (948/2011), section 33(3) (Finnish text). Finlex
  5. ↑ Competition Act (948/2011), section 34(1) (Finnish text). Finlex
  6. ↑ Competition Act (948/2011), section 35(1) (Finnish text). Finlex
  7. ↑ Competition Act (948/2011), section 36(5) (Finnish text). Finlex
  8. ↑ Competition Act (948/2011), section 37(1) and (3) (Finnish text). Finlex
  9. ↑ Competition Act (948/2011), section 37(4) (Finnish text). Finlex
  10. ↑ Competition Act (948/2011), section 37(5) (Finnish text), which refers to section 1 of Chapter 9 of the Police Act (872/2011). Finlex and Police Act, Finlex
  11. ↑ Act amending the Competition Act (713/2025) (Finnish text). Finlex
  12. ↑ Competition Act (948/2011), section 37a (Finnish text). Finlex
  13. ↑ Competition Act (948/2011), section 38(1), (2) and (4) (Finnish text). Finlex
  14. ↑ Competition Act (948/2011), section 38(3) (Finnish text). Finlex
  15. ↑ Competition Act (948/2011), section 38(3) and section 33(2) (Finnish text). Finlex
  16. ↑ Case 155/79, AM&S Europe Limited v Commission of the European Communities, EUR-Lex; Case C-550/07 P, Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v Commission, EUR-Lex.
  17. ↑ Competition Act (948/2011), section 38(3) (30 November 2012/662) (Finnish text). Finlex
  18. ↑ Case 374/87, Orkem v Commission of the European Communities, EUR-Lex.
  19. ↑ Competition Act (948/2011), section 38a (Finnish text). Finlex
  20. ↑ Competition Act (948/2011), section 32 (Finnish text). Finlex
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