Kilpailuoikeuden perusteet ja lähteet/EN

Suomeksi

The competition law applicable in Finland consists of two parallel layers: EU competition law (Articles 101 and 102 TFEU and their related regulations) and the national Competition Act (948/2011). Both are often applied in parallel to the same proceeding whenever a restriction of competition is capable of affecting trade between Member States.

Avainkohdat

• Mistä on kyse: Competition law is divided into two main branches — restrictions of competition (cartels, abuse of dominance) and merger control — both of which are applied at both EU and national level.
• Miksi sillä on kaupallista merkitystä: The competent authority and the applicable body of rules depend on whether the arrangement is capable of affecting trade between Member States — this also determines whether the European Commission, the FCCA, or both, have jurisdiction.
• Mikä menee useimmin pieleen: The national Competition Act is drafted very largely to follow the wording of EU law, which means EU case law strongly guides the interpretation of purely national provisions as well — EU case law cannot be disregarded merely because a matter is national.

Purpose, Scope and Key Concepts of the Competition Act

Purpose of the Act (Section 1)

Section 1 of the Competition Act defines the purpose of the Act: safeguarding healthy and effective economic competition from harmful restrictions of competition. Under the provision, the application of the Act must in particular take into account the protection of the conditions for the functioning of markets and the freedom to conduct a trade or business, so that customers and consumers also benefit from competition. The purpose provision functions as an interpretive principle when applying the rest of the regulation: the aim of the Competition Act is not to protect individual competitors as such, but the competitive process itself, and thereby ultimately the interests of customers and consumers.

Scope of Application (Section 2)

Section 2 of the Competition Act limits the scope of the Act in two ways. First, the Act does not apply to agreements or arrangements concerning the labour market — this is a separate question in its own right, concerning the interface between collective bargaining and competition law, which is not addressed further in this article. Second, the cartel prohibition in section 5 of the Act does not apply to arrangements between agricultural producers, associations of producers, sector-specific associations, or associations thereof, concerning the production or sale of agricultural products, or the use of joint storage, handling or processing facilities — provided that the arrangement meets the substantive conditions laid down pursuant to Article 42 TFEU, under which the competition rules of Articles 101 and 102 TFEU do not become applicable. The agricultural exception is thus narrow and directly tied to the conditions of EU primary law — it does not grant the agricultural sector a general exemption from the Competition Act.

The Concept of "Undertaking" and the "Single Economic Unit" (Section 4)

Section 4 of the Competition Act contains the Act's key definitions. Under it, an undertaking means a natural person, and one or more private or public legal persons, engaged in economic activity; a dominant market position means an exclusive right, or other such dominant position, held by one or more undertakings or an association of undertakings, covering the whole country or a certain area, in certain product markets, which significantly directs the price level or terms of supply of a commodity, or otherwise affects competitive conditions at a given stage of production or distribution in a comparable manner.

An "undertaking" (in EU law, the English term undertaking itself) is, however, not confined to a single legal person. In both EU and national competition law, the concept is understood functionally: all companies subject to the same control, belonging to the same group, may together form a single undertaking, i.e. a single economic unit, even if they are legally separate legal persons. The Court of Justice confirmed this in its Akzo Nobel judgment: the concept of "undertaking" refers to an economic unit even if, in law, that economic unit consists of several natural or legal persons, and a parent company that wholly (or almost wholly) owns its subsidiary is presumed to actually exercise decisive influence over its subsidiary's conduct — a rebuttable presumption that the parent company may rebut by producing evidence.

Käytännön huomio

The single economic unit doctrine has direct practical significance for both fines liability and the assessment of intra-group agreements: (i) a parent company can become jointly and severally liable for its subsidiary's competition law infringement, even if the parent company did not itself participate in the infringement, where the shareholding is full or almost full; and (ii) agreements within the same group (e.g. supply agreements between a parent and a subsidiary) fall, as a starting point, entirely outside the cartel prohibition in section 5 / Article 101(1) TFEU, because there is no agreement between two independent undertakings but an internal arrangement within the same economic unit. In a due diligence review, it is therefore worth establishing the group structure and shareholdings at the very outset, so as to know which agreements can be assessed under section 5 at all.

Section 6 of the Competition Act, which sets out the four cumulative conditions for an exemption from the prohibition in section 5, is discussed in detail in the article Exemption from the Prohibition of Restrictive Agreements.

Rules Governing Restrictions of Competition

The core rules governing restrictions of competition are:

• Article 101 TFEU — prohibits agreements and concerted practices between undertakings that restrict competition.
• Article 102 TFEU — prohibits the abuse of a dominant market position.
• Section 5 of the Competition Act (948/2011) — the national counterpart to Article 101 TFEU.
• Section 7 of the Competition Act — the national counterpart to Article 102 TFEU.

The EU rules apply where a restriction of competition or arrangement is capable of affecting trade between Member States (the "effect on trade" criterion); otherwise, national law alone applies. In practice, both bodies of rules apply in parallel to the vast majority of significant business arrangements.

The De Minimis Rule: a Safe Harbour for Agreements of Minor Importance

The Commission has published a notice — commonly and consistently known as the "de minimis notice" — in which it defines when agreements between undertakings do not appreciably restrict competition within the meaning of Article 101(1) TFEU (and thus also not within the meaning of section 5 of the Competition Act), owing to their minor effect on the market. The notice currently in force was issued on 25 June 2014 and published on 30 August 2014 (OJ C 291, pp. 1–4; 2014/C 291/01); it replaced the earlier de minimis notice of 2001.

Under the notice, an agreement does not appreciably restrict competition if the parties' market share remains below the following thresholds on any relevant market affected:

• a combined market share of 10%, where the parties to the agreement are actual or potential competitors of each other ("agreements between competitors"); or
• a market share of 15% for each party, where the parties are not competitors of each other ("agreements between non-competitors").

Where it is unclear which category the agreement falls into, the stricter 10% threshold applies; and where cumulative effects arise from parallel networks of agreements with similar market-foreclosing effects, the thresholds are lowered to 5%.

The de minimis safe harbour does not, however, cover so-called hardcore restrictions. Under the notice, the safe harbour does not apply to agreements which have as their object, directly or indirectly, among other things: (a) the fixing of prices when selling to third parties, (b) the limitation of output or sales, or (c) the allocation of markets or customers, nor to agreements containing any restriction classified as a hardcore restriction in any current or future Commission block exemption regulation. In other words: a minor market share never "saves" a price cartel, market allocation, or other serious restriction by object — a de minimis assessment is only relevant for agreements that are not already, by their very object, prohibited.

Käytännön huomio

The de minimis notice is not a legally binding norm but the Commission's own interpretive statement, and it does not bind the FCCA or the courts — it is nevertheless an established starting point for a first-stage risk assessment. In practice, a market share calculation always first requires defining the relevant markets (product and geographic dimension); see Relevant Markets. Because hardcore restrictions are excluded from the safe harbour altogether, a de minimis assessment never replaces a separate object/effect analysis — it is useful only after it has already been established that the agreement is not prohibited by its object.

Parallel Application of EU Law and National Competition Law

Section 3 of the Competition Act provides briefly but importantly: where a restriction of competition is capable of affecting trade between the Member States of the European Union, the provisions of Articles 101 and 102 TFEU also apply. The provision is a national mirror of the EU-level obligation laid down in Article 3 of Council Regulation (EC) No 1/2003.

Under Article 3(1) of the Regulation, where the competition authorities or national courts of the Member States apply national competition law to agreements, decisions by associations of undertakings, or concerted practices within the meaning of Article 101(1) TFEU which may affect trade between Member States, they must also apply Article 101 TFEU to those agreements, decisions or concerted practices. Similarly, where they apply national law to an abuse prohibited by Article 102 TFEU, they must also apply Article 102 TFEU.

Article 3(2) of the Regulation contains the so-called convergence rule, which limits the application of national law in two directions:

• The application of national competition law may not lead to the prohibition of agreements, decisions by associations of undertakings, or concerted practices which may affect trade between Member States but which do not restrict competition within the meaning of Article 101(1) TFEU, or which fulfil the conditions of Article 101(3) TFEU or are covered by a block exemption regulation — national law may therefore not be stricter than EU law in assessing agreements and concerted practices.
• The Regulation does not, however, preclude Member States from adopting and applying on their territory stricter national legislation which prohibits or sanctions unilateral conduct engaged in by undertakings. This is an exception to the convergence principle expressly permitted by the Regulation itself — it should not be read as suggesting that the Competition Act in fact departs from Article 102 TFEU.

Article 3(3) of the Regulation excludes from the scope of the convergence rule national merger control, as well as national law provisions that predominantly pursue an objective different from that pursued by Articles 101 and 102 TFEU.

Käytännön huomio

In practice, the convergence rule in Article 3 means that the FCCA and the Market Court cannot apply section 5 of the Competition Act more strictly than Article 101 TFEU where the effect-on-trade criterion is met: an agreement that would pass the test under Article 101(3) or a block exemption at EU level cannot be prohibited solely on the basis of national law. The position is different for unilateral conduct (e.g. abuse of a dominant position), because the Regulation itself permits stricter national regulation — this should not be generalised, without a separate assessment, to any particular provision of the Competition Act.

Competent Authorities

• The European Commission (Directorate-General for Competition) — competent in EU-wide matters and Community-wide mergers.
• The Finnish Competition and Consumer Authority (FCCA) — Finland's national competition authority, investigates restrictions of competition and reviews mergers exceeding the national threshold.
• The Market Court — handles the FCCA's fine proposals and appeals against FCCA decisions as the first instance.
• The Supreme Administrative Court (SAC) — the highest instance of appeal in competition matters.

Käytännön huomio

When advising a client, it is always worth establishing at the very outset whether the matter is a purely national or a cross-border arrangement — this determines both the competent authority and the applicable procedure, and it cannot be assumed to be self-evident on the basis of turnover alone.

The Two Main Branches of Competition Law

Competition law is, in practice, divided into two complementary areas:

• Restrictions of competition (behavioural) — cartels, other prohibited agreements, and abuse of a dominant market position; see Cartels and Horizontal Restrictions of Competition and Abuse of a Dominant Market Position.
• Merger control — ex-ante review intended to prevent mergers that would harm competition; see Fundamentals of Merger Control and the Notification Obligation.

In both, a key starting point is the assessment of relevant markets and market power.

See Also

• Relevant Markets
• Dominant Market Position
• Cartels and Horizontal Restrictions of Competition
• Fundamentals of Merger Control and the Notification Obligation

Sources

Lainsäädäntö ja lähteet tarkistettu 6.9.2026.