Poikkeus kilpailunrajoitusten kiellosta/EN

Suomeksi

The prohibition of agreements that restrict competition, laid down in section 5 of the Competition Act (948/2011) and Article 101(1) of the Treaty on the Functioning of the European Union (TFEU), is not absolute. Section 6 of the Competition Act and Article 101(3) TFEU permit an exemption from the prohibition where four cumulative conditions are met — and today undertakings assess this themselves, since no authority grants prior authorisation.

Avainkohdat

• Mistä on kyse: Section 6 of the Competition Act and Article 101(3) TFEU constitute an exemption from the prohibition of restrictions of competition in section 5 / Article 101(1): an agreement, decision by an association of undertakings, or concerted practice that would otherwise be prohibited is permitted if it satisfies four cumulative conditions (efficiency gain, a fair share for consumers, indispensability, and the survival of competition).
• Miksi sillä on kaupallista merkitystä: Assessing whether the exemption applies is a mandatory part of the legality analysis of almost every horizontal or vertical cooperation agreement, trade association recommendation, or other restriction of competition — without a working section 6/101(3) justification, the restriction is simply prohibited, void, and may lead to a fine proposal.
• Mikä menee useimmin pieleen: An undertaking relies on a generic efficiency claim without documented, objective evidence. Under the self-assessment system, the burden of proving that all four conditions are met rests on the party invoking the exemption — not on the authority.

Starting Point: the Prohibition and the Exemption From It

Section 5 of the Competition Act prohibits agreements between undertakings, decisions by associations of undertakings, and concerted practices which have as their object the significant prevention, restriction or distortion of competition, or which have that effect. The provision corresponds in substance to Article 101(1) TFEU, which prohibits, as incompatible with the internal market, agreements between undertakings, decisions by associations of undertakings, and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition; under Article 101(2), such agreements and decisions are void.

Both provisions, however, contain the same structural reservation: the prohibition does not apply to an agreement that satisfies conditions separately listed in the law. In the Competition Act, this exemption is set out in section 6, titled "Exemption from the Prohibition", and at EU level in Article 101(3) TFEU. Section 6 of the Competition Act was deliberately drafted to align with Article 101(3), because national competition law was harmonised with the EU competition rules already in the 2004 reform (Act 318/2004, Government proposal HE 11/2004 vp) when the EU's revised implementing regulation entered into force, and this approach continued in the comprehensive 2011 reform of the Competition Act. In practice, sections 5 and 6 thus form a whole that is interpreted together with Article 101(1) and (3) and the related EU case law.

The Four Cumulative Conditions

Under section 6 of the Competition Act, the prohibition in section 5 does not apply to an agreement, decision by an association of undertakings, or concerted practice, or a category thereof, which:

1) contributes to improving the production or distribution of goods or to promoting technical or economic progress;
2) allows consumers a fair share of the resulting benefit;
3) does not impose on the undertakings concerned restrictions that are not indispensable to the attainment of those objectives; and
4) does not afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.

Article 101(3) TFEU formulates the same test in near-identical terms: an agreement which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, may be exempted from the prohibition, provided that it does not (a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of those objectives, or (b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.

All four conditions must be met simultaneously ("cumulative conditions") — the absence of even one is enough to defeat the exemption. In practice, the test breaks down into two positive and two negative conditions:

• Efficiency gain — the agreement must produce an objectively verifiable efficiency gain (e.g. cost savings, economies of scale, or a qualitative improvement such as a new or better product, faster time to market, or technical progress). A saving arising merely from the exercise of market power is not sufficient.
• A fair share for consumers — the resulting benefit must be passed on, at least in part, to the users of the products affected by the agreement, so that it at least compensates for the negative effects caused by the restriction (e.g. a price increase).
• Indispensability — the restrictions must not go beyond what is necessary to achieve the efficiency gains; the more severe the restriction, the more strictly it is assessed whether a less restrictive alternative would have been sufficient.
• Competition must not be eliminated — the agreement must not give the parties the possibility of eliminating competition in respect of a substantial part of the products concerned; sufficient remaining competitive pressure must survive on the market.

Epäselvä oikeustila

How far the "fair share for consumers" condition can be satisfied by so-called collective or off-market benefits (e.g. environmental or climate benefits that accrue more broadly to society rather than solely to the buyers of the products in question) remains, even at EU level, a partly open question, to which the Commission's Article 101(3) Guidelines and its later guidance on sustainability agreements provide only a partial answer. There is no Finnish case law that expressly applies section 6 of the Competition Act to such a situation, so the question cannot be regarded as settled in domestic application practice.

The Self-Assessment System and the Burden of Proof

Before 2004, an exemption from the restriction of competition prohibition was in practice available only by applying for it in advance from the competition authority (the so-called exemption authorisation). This system was abandoned at EU level by Council Regulation (EC) No 1/2003 on the implementation of the competition rules, which replaced the earlier notification and authorisation system with the so-called legal exception system. Under Article 1 of the Regulation, agreements referred to in Article 101(1) which do not satisfy the conditions of Article 101(3) are prohibited, no prior decision to that effect being required; and, correspondingly, agreements which satisfy the conditions of Article 101(3) are not prohibited — likewise without any prior decision. In practice, this means that no prior notification or application for exemption is made to the Commission, the FCCA, or any other authority: an agreement is, by operation of law, either permitted or prohibited at the moment the conditions of Article 101(3) (or section 6 of the Competition Act) are or are not met. Undertakings must therefore assess their own situation themselves — this is consistently referred to as the self-assessment system.

The burden of proof is arranged symmetrically in Article 2 of the Regulation: the burden of proving an infringement of Article 101(1) or Article 102 rests on the party or authority alleging the infringement, but the burden of proving that the conditions of Article 101(3) are satisfied rests on the undertaking or association of undertakings claiming the benefit of that provision. The FCCA or a claimant therefore does not have to show that the exemption does not apply — an undertaking invoking the restriction as its defence must itself demonstrate that all four conditions are satisfied.

Käytännön huomio

Document the section 6/101(3) self-assessment at the same time the agreement is made — not only once the FCCA, the counterparty, or the Market Court questions the arrangement. In practice, this means a written memorandum setting out (i) the claimed efficiency gain and its objective supporting material (e.g. cost calculations, market research), (ii) the mechanism by which the benefit is passed on to customers, (iii) an assessment of less restrictive alternatives and why they are insufficient, and (iv) a market share and competitive situation analysis for the fourth condition. A purely legal justification constructed after the fact, without contemporaneous documentation, rarely withstands closer scrutiny.

Commission Guidelines on the Application of Article 101(3) TFEU

The Commission has published guidance titled "Guidelines on the application of Article 81(3) of the Treaty" (2004/C 101/08), which in scope covers the current Article 101(3) TFEU (the numbering changed with the Treaty of Lisbon, the content did not). The Guidelines are not legally binding norms, but they describe the interpretive framework adopted by the Commission, which the FCCA and the Finnish courts also use as an aid when applying section 6 of the Competition Act.

The main contribution of the Guidelines is to structure the four conditions into two positive and two negative conditions and to elaborate on each separately:

• Efficiency gains are divided into cost efficiencies (e.g. economies of scale and synergies, rationalisation of production or distribution) and qualitative efficiencies (e.g. new or improved products, R&D, faster time to market). The benefits must be objectively verifiable, not merely the parties' own assertions.
• The benefit passed on to consumers does not require that every individual consumer benefits from every efficiency separately — it is sufficient that the overall effect of the agreement on the market concerned is not negative for consumers, and the greater the restriction of competition, the greater the efficiency gain and its pass-through must be.
• The indispensability assessment requires examining whether the same efficiency gain could be achieved by a less restrictive means; the more far-reaching the restrictions of competition contained in the agreement, the more strictly the absence of alternative means is assessed.
• The survival of competition is ultimately assessed on the basis of whether sufficient actual or potential competition remains on the market — this condition is never met if the agreement in fact eliminates all effective competition.

The Guidelines also expressly emphasise the self-assessment and burden-of-proof system under Regulation (EC) No 1/2003: because the prior notification system has been abandoned, undertakings must make their own documented assessment applying the methodology of the Guidelines.

Block Exemption Regulations — an Automatic Exemption for Certain Types of Agreement

Because an individual section 6/101(3) assessment is burdensome and uncertain, particularly for common, widely used types of agreement, the Commission has issued several block exemption regulations, which state in advance and generally that certain, precisely defined contractual terms satisfy the conditions of Article 101(3) (and thus also of section 6 of the Competition Act) up to certain market share thresholds and conditions — without each agreement having to be assessed individually. The best-known example is the Vertical Block Exemption Regulation (EU) 2022/720, discussed in detail in the article Vertical Agreements and Block Exemption Regulations. Corresponding block exemption regulations have also been issued for, among others, research and development agreements ((EU) 2023/1066) and specialisation agreements ((EU) 2023/1067).

A block exemption is not a different exemption from section 6/101(3) — it is a categorical determination made in advance by the legislator (the Commission) that a given type of agreement satisfies those same four conditions, provided the market share and other conditions set out in the regulation are met (a "safe harbour"). If an agreement falls outside a block exemption (e.g. because a market share threshold is exceeded, or because of a so-called hardcore restriction), this does not automatically mean it is prohibited — the agreement must instead be assessed individually, directly under section 6 / Article 101(3), in the manner described above.

Section 11 — Withdrawal of the Benefit of a Block Exemption

Section 11 of the Competition Act relates precisely to the operation of block exemption regulations, but in reverse: it is the national legal basis for withdrawing the benefit of a block exemption in an individual case. The provision reads:

"Pursuant to Article 29(2) of Council Regulation (EC) No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the EC Treaty, the Finnish Competition and Consumer Authority may withdraw, in respect of the territory of Finland, the benefit of a Commission block exemption regulation from an agreement, a decision by an association of undertakings, or a concerted practice, where that agreement, decision by an association of undertakings, or concerted practice has effects incompatible with Article 101(3) of the Treaty on the Functioning of the European Union in the territory of Finland, or in a part of the territory of Finland which has all the characteristics of a distinct geographic market."

The background is that block exemption regulations are EU-wide: an agreement that satisfies, for example, the conditions of the VBER (EU) 2022/720 is permitted throughout the internal market, regardless of the Member State in whose market its actual competitive effects arise. Article 29(2) of Regulation (EC) No 1/2003, however, gives a national competition authority the possibility of intervening where an agreement in fact produces effects contrary to Article 101(3) specifically in the territory of that Member State (or on a distinct national market) — even where it otherwise fully satisfies the conditions of the block exemption elsewhere in the EU. Section 11 of the Competition Act is the national implementing provision for this EU-law power: it gives the FCCA the authority to withdraw the benefit conferred by a block exemption, but only in respect of the territory of Finland (or a distinct sub-market) — not EU-wide, a power which rests with the Commission alone under Article 29(1) of the Regulation. The wording of the provision still refers to the old article numbering of the EC Treaty (Articles 81 and 82), which shows that the text has not been textually updated since the Treaty of Lisbon, even though it correctly refers, in substance, to the current Article 101(3).

Practical Examples

A Finnish Example: SOK's Exemption Authorisation (case no. 1095/67/2003)

Before the 2004 self-assessment reform, undertakings could apply to the competition authority for an individual exemption authorisation. An illustrative — if now historical — example of such an assessment of the four conditions is the decision of the then Finnish Competition Authority of 16 April 2004, case no. 1095/67/2003, in which Suomen Osuuskauppojen Keskuskunta (SOK) was granted an exemption authorisation under section 6 of the then Act on Competition Restrictions (480/1992) for the joint procurement, pricing and marketing by cooperative retail societies in the S Group's Prisma, S-market and Sale chains, subject to certain conditions. The exemption authorisation was expressly limited to the period 1 January–31 December 2004, because the EU's revised, self-assessment-based implementing system, and the corresponding national legislative amendment, were due to enter into force on 1 May 2004 and to abolish the entire exemption authorisation system. The case illustrates well the kind of evidence the competition authority then required regarding efficiency gains, consumer benefit, indispensability, and remaining competition — that is, the same four-stage test that undertakings must now apply themselves, without a prior decision by the authority.

Because the current self-assessment system does not produce corresponding published FCCA decisions expressly concerning a "section 6 exemption" (see the section on self-assessment above), no more up-to-date, replacement domestic example is given in this article without first confirming it against decisions published by the FCCA.

An EU-Level Example: the CECED Decision (2000/475/EC)

Commission Decision 2000/475/EC (adopted on 24 January 1999, Case IV.F.1/36.718 — CECED) concerned an agreement between members of CECED, the trade association of household appliance manufacturers, by which they undertook to cease manufacturing and importing into the EU the least energy-efficient classes of washing machines. Although the agreement restricted manufacturers' product ranges and thus the form of competition, the Commission granted it an individual exemption under the then Article 81(3) (now Article 101(3)):

• the efficiency gain arose from a significant reduction in energy consumption and in CO₂, SO₂ and NOₓ emissions, which would otherwise have been achieved only years later;
• the consumer benefit arose both for individual consumers (the electricity bill savings covered the higher purchase price of the machine within 9–40 months) and collectively for society as a whole in the form of environmental benefits, which the Commission assessed as being several times greater than the increase in purchase price;
• indispensability was satisfied because the Commission considered alternative, less restrictive means (mere information campaigns, energy labelling, eco-labelling) insufficient to achieve the objective;
• competition was not eliminated, because several energy classes and numerous technical ways of competing remained on the market, and barriers to entry did not increase materially.

The CECED decision remains one of the most frequently cited examples of how so-called collective (e.g. environmental) benefits can also be taken into account when assessing consumer benefit — see the note above on the partly open nature of this question.

See Also

• Cartels and Horizontal Restrictions of Competition
• Vertical Agreements and Block Exemption Regulations
• Fundamentals and Sources of Competition Law
• Information Exchange Between Competitors

Sources

Lainsäädäntö ja lähteet tarkistettu 6.9.2026.