Seuraamusmaksuista vapautuminen ja niiden alentaminen (Leniency-ohjelma)/EN

Suomeksi

The leniency programme (immunity from and reduction of fines) is the most important practical tool for uncovering cartels: it encourages undertakings that took part in a cartel to report the infringement to the authority themselves in exchange for a reduction in the sanction.

Avainkohdat

Mistä on kyse: The first undertaking to report a cartel can obtain full immunity from a fine; subsequent applicants can obtain a partial reduction based on the value of their cooperation.
Miksi sillä on kaupallista merkitystä: Filing a leniency application is often the most effective way to limit an undertaking's liability for a cartel that has already come to light — but the timing and content of the application determine what level of leniency is available.
Mikä menee useimmin pieleen: Only the first applicant can obtain full immunity — in a competitive situation where other cartel members suspect the infringement may come to light, speed is decisive, and preparation of the application should not be drawn out in order to compile a complete set of materials.

Scope of Application: Only Secret Cartels Between Competitors

The leniency programme (sections 14–17b) is not a general system for the reduction of fines; its scope of application is expressly limited by the Act. Section 14, on full immunity, provides:

"An undertaking shall not be subject to a fine where the matter concerns a secret cartel between competitors referred to in section 5 or in Article 101 of the Treaty on the Functioning of the European Union, if an undertaking that participated in such a restriction of competition: [...]"^[1]

The limitation is threefold:

Only restrictions under section 5 / Article 101 TFEU — abuse of a dominant market position under section 7 (the counterpart to Article 102 TFEU) falls entirely outside the programme, because section 14 does not refer to section 7 at all — unlike, for example, sections 9 or 12, which cover both provisions.^[2]
Only an arrangement between competitors — the wording "between competitors" structurally excludes vertical agreements (e.g. distribution or supply agreements), because the parties to those are not each other's competitors.
Only a secret cartel — open, non-secret horizontal arrangements (e.g. publicly announced cooperation agreements that later prove to infringe section 5/Article 101) do not satisfy the wording of section 14, even where the matter concerns a restriction between competitors.

An undertaking that has coerced another into participating in a cartel cannot obtain full immunity at all — even if the other conditions are met.^[3] The same applies to the partial reduction of 30–50%/20–30%/up to 20% (section 15): it, too, is tied to the restriction of competition referred to in section 14(1), i.e. the same secret cartel between competitors.^[4]

Other Cases: The Separate, Informal Reduction Possibility under Section 18

The Competition Act nevertheless also contains a more general provision, separate from the leniency programme. Section 18 ("Reduction of a fine in cases other than cartel cases") covers precisely what falls outside section 14 — for example, abuse of a dominant market position (section 7) or arrangements other than those between competitors/secret arrangements:

"Where the matter concerns a restriction of competition other than that referred to in section 14(1), the Finnish Competition and Consumer Authority may propose that a smaller fine than would otherwise be imposed be imposed on an undertaking or association of undertakings, or refrain from making a proposal for a fine, if the undertaking or association of undertakings has materially assisted the Finnish Competition and Consumer Authority in investigating the restriction of competition. In the situations referred to in subsection 1 above, the Market Court may impose a smaller fine than would otherwise be imposed, or refrain from imposing a fine."^[5]

Section 18 differs from the leniency programme structurally, not only in scope:

It is a possibility based on the discretion of the FCCA and the Market Court ("may propose" / "may impose"), not an undertaking's right to fulfil or partially fulfil set conditions.
It does not involve a marker procedure (section 17a), fixed reduction tiers (section 15), or the formal cooperation conditions of section 16.
It does not involve a restriction on the use of evidence comparable to that in section 17(5)–(6) — see below.

Käytännön huomio

If a client's suspected infringement is abuse of a dominant market position, unilateral conduct, or an arrangement other than one between competitors, "leniency" under sections 14–17b is not available, regardless of how quickly and comprehensively the undertaking offers to cooperate. The only route available is the discretionary "material assistance" reduction under section 18, which should not be equated with a formal leniency application in client communications.

Full Immunity

Only one member of a cartel can obtain full immunity from a fine. The condition is that the applicant is the first to submit to the FCCA a corporate statement together with sufficient information and evidence enabling the FCCA either to carry out an inspection or to find an infringement of the Competition Act, depending on whether an inspection has already been carried out. An undertaking that has coerced others into participating in the cartel cannot obtain full immunity.^[6] Immunity is further conditional on the applicant:

ending its participation in the cartel immediately (unless the FCCA instructs otherwise in order to safeguard the investigation);
engaging in genuine, comprehensive, continuous and expeditious cooperation with the FCCA throughout the proceedings; and
not destroying, falsifying or concealing evidence, and not disclosing its application to others.^[7]

Partial Reduction for Subsequent Applicants

Cartel participants who are not first applicants but who bring significant added value to the investigation can obtain a partial reduction of the fine:

the first such applicant: 30–50%;
the second applicant: 20–30%; and
subsequent applicants: up to 20%.^[8]

Marker Application

An applicant can secure its place in the queue by way of a so-called marker application, which allows additional time to compile a complete set of application materials without losing its position of priority, provided sufficient supplementary information is submitted within the deadline set by the FCCA.^[9]

Summary Applications in Parallel EU Cases

Section 17b allows an undertaking to apply for leniency in Finland by way of a summary application if it has already applied to the European Commission or to the competent competition authority of another EU Member State for immunity from or a reduction of a fine concerning the same alleged secret cartel — whether by marker or by full application.^[10] This is the national implementation of the ECN+ concept that parallel applications concerning the same pan-European cartel need not be prepared in full for every national authority separately at the outset.

A summary application must set out a brief description of, among other things, the applicant, the other parties to the cartel, the products and territories concerned, the duration and nature of the cartel, and the Member States in which evidence is likely to be located.^[11] The FCCA must give the applicant an opportunity to submit a full application if the Commission indicates that it does not intend to deal with the case, or part of it; in certain situations, the FCCA may itself also request that a full application be submitted within a set deadline.^[12] If the full application is submitted within the deadline (or voluntarily earlier) and its products, territories and the duration of the cartel correspond to the application made to the Commission/the other authority, it is deemed to have been submitted on the date the summary application was filed — which also determines the applicant's priority relative to other applicants.^[13]

Relationship to Liability in Damages

Leniency provides immunity only from a public-law fine. It does not remove an undertaking's private-law liability in damages towards the victims of the infringement — that liability is governed separately by the Act on Competition Damages (1077/2016), to which the Competition Act's own provision on damages expressly refers.^[14] See further Private Damages Claims in Competition Law.

Act 1077/2016 implemented Directive 2014/104/EU of the European Parliament and of the Council. Article 11(4)–(6) of the Directive specifically limits the joint and several liability, and the right of contribution, of an undertaking that has been granted immunity from a fine (full leniency immunity) — this limitation reflects a deliberate balance between the effectiveness of public enforcement (the attractiveness of the leniency system) and the right of injured parties to full compensation.^[15] In Finland, this limitation is implemented in Act 1077/2016 as follows:

Joint and several liability is limited, not removed: "An undertaking that has been granted immunity from a fine is jointly and severally liable for the harm caused to its own direct or indirect purchasers or suppliers. Towards other injured parties, an undertaking granted immunity from a fine is jointly and severally liable only where those parties are unable to obtain full compensation from the other undertakings that participated in the same infringement of competition law."^[16] The immunity recipient is thus always fully liable to its own direct and indirect contractual counterparties, and only secondarily — where full compensation cannot be obtained from the other infringing undertakings — liable to other injured parties.
Cap on the right of contribution: the amount the immunity recipient must pay to other parties liable for compensation is "no more than the amount of the harm caused to its own direct and indirect purchasers or suppliers", and, as regards other injured parties, its share is determined by its own degree of responsibility.^[17]

The restriction on the use of evidence is a separate matter from the limitation of liability. Under section 17 of the Competition Act, a corporate statement, information and evidence submitted to the FCCA in connection with a leniency application may, in principle, be used only for the purposes of handling the restriction-of-competition matter before the FCCA, the Market Court or the Supreme Administrative Court — but such information and evidence "may nevertheless also be used for the purposes of handling actions for damages brought under the Act on Competition Damages".^[18] Act 1077/2016, however, contains a stricter, absolute rule specifically for the content of the corporate statement: a court may not, in damages proceedings, rely as evidence on "information on the content of a statement made to the Commission or an EU Member State's competition authority for the purpose of obtaining immunity from or a reduction of a fine, or on a settlement submission" — if only part of a piece of evidence consists of such a statement, the remaining parts may nevertheless still be used.^[19] The distinction is therefore as follows: the content of the corporate statement itself is permanently protected (a "black list" item), whereas other information and evidence submitted as attachments to the application may become usable in damages claims, in particular once the FCCA's proceedings have concluded.

Limitation Period

Section 19 is not a special provision concerning leniency applications, but rather the general limitation period for imposing a fine for an infringement of section 5, 7, 25 or 27, or of Article 101 or 102 TFEU — that is, it also applies to abuse of a dominant market position and to cases other than cartel cases, not only to leniency cases. In the structure of the Act, it is the final section under the "Sanctions" heading of Chapter 3, immediately before the "Damages" heading beginning at section 20.^[20]

The general rule is five years, but the FCCA's own investigative measures restart the running of the period from the beginning:

"A fine may not be imposed for an infringement of the provisions of section 5, 7, 25 or 27, or of Article 101 or 102 of the Treaty on the Functioning of the European Union, unless a proposal has been made to the Market Court within five years of the date on which the infringement occurred, or, in the case of a continuing infringement, within five years of the date on which the infringement ended. Measures taken by the Finnish Competition and Consumer Authority to investigate the restriction of competition restart the running of the limitation period from the beginning."^[21]

In a parallel EU investigation, the limitation period does not restart but is instead suspended (paused) for the duration of measures taken by the Commission or another Member State's competition authority, for all participants in the infringement, until the investigation has concluded as regards them.^[22] This is supplemented by an absolute, unbroken ten-year maximum period: a fine may not be imposed at all if a proposal has not been made to the Market Court within ten years of the infringement occurring (or, for a continuing infringement, of it ending) — irrespective of how many times the five-year period has restarted.^[23]

Practical significance for a leniency applicant: leniency does not, in itself, affect the limitation period. The first undertaking to have filed an application benefits from full immunity under section 14 irrespective of the running of the limitation period under section 19, but if the FCCA's investigation becomes time-barred before a proposal is made to the Market Court — for example, owing to a slow procedure — no proposal for a fine can be made against anyone, including the leniency applicant, because immunity under section 14 relates only to what would otherwise have been imposed.