Yksityisoikeudellinen vahingonkorvaus kilpailuoikeudessa/EN

Suomeksi

A party injured by an infringement of competition law is entitled to claim damages directly from the undertaking that committed the infringement — this private-law enforcement (private enforcement) complements the administrative sanctions imposed by the authorities.

Avainkohdat

• Mistä on kyse: The Act on Competition Damages (1077/2016), which implemented the EU Damages Directive 2014/104/EU, eases the injured party's position through, among other things, statutory presumptions.
• Miksi sillä on kaupallista merkitystä: A customer or competitor that has fallen victim to a cartel may seek compensation regardless of whether the authority has already imposed a fine — the two proceedings may run partly in parallel.
• Mikä menee useimmin pieleen: A leniency applicant's position in damages liability differs from that of the other cartel members — full immunity from the fine does not mean immunity from damages liability, although its scope may be more limited.

Right to Full Compensation

The cornerstone of the Act is section 2: every natural or legal person who has suffered harm from an infringement of competition law is entitled to full compensation for the harm caused, from the undertaking or association of undertakings that caused it. The right extends also to an indirect purchaser or supplier of the infringer.

Interest under section 3(2) of the Interest Act (633/1982) must also be paid on the damages from the date on which the harm arose — not only from the date proceedings were initiated or judgment given. The same section also contains the cartel presumption described in the Presumption of Harm section of this article.

Käytännön huomio

"Full compensation" is not merely a slogan: it excludes, for example, national doctrines that reduce damages in a way that would produce a punitive or under-compensatory outcome. The point at which interest begins to accrue (the date the harm arose, not the date proceedings were initiated) is, in practice, a significant sum in long-running cartel cases, where the harm may have arisen years before the action was brought.

Binding Effect of an Infringement Decision

Section 3 is, in practice, just as decisive as section 2: a court must, on its own initiative, base its damages judgment on an infringement of competition law established in a final decision of the Finnish Competition and Consumer Authority (FCCA), the Market Court or the Supreme Administrative Court — the claimant therefore no longer needs to prove the infringement itself, only the causal link and the amount of harm. A final infringement decision issued in another EU member state is not binding in the same way, but the court must take it into account as part of the evidence.

Presumption of Harm

The Act provides that a cartel is presumed to cause harm unless proven otherwise. This effectively shifts the burden of proof onto the undertaking that committed the cartel infringement: the undertaking itself must show that the cartel did not in fact cause the alleged harm, rather than the claimant having to prove from the outset that harm occurred.

Passing-On of the Overcharge (the Passing-On Defence)

When a court awards damages, it must assess what proportion of any overcharge has been passed on further down the distribution chain — in this assessment, account may also be taken of actions and their outcomes brought by other levels of the distribution chain in relation to the same infringement, as well as publicly available information on the public enforcement of the infringement.

The burden of proof is allocated according to the direction of the claim:

• Where a defendant that committed the infringement relies as a defence on the claimant having passed on the overcharge, the burden of proving the pass-on rests on the defendant.
• Where an indirect purchaser claims compensation, the burden of proving that an overcharge was passed on to it, and its amount, in principle rests on the claimant itself.
• This is, however, eased by a reversed presumption: an indirect purchaser is deemed to have shown that the overcharge was passed on where it demonstrates (i) that the defendant committed the infringement, (ii) that the infringement resulted in an overcharge being levied on the defendant's direct purchaser, and (iii) that the indirect purchaser purchased the goods or services that were the object of the infringement, or goods or services derived from or containing them. The defendant may rebut the presumption by showing that the overcharge was not passed on, or was not passed on in full.

This regime corresponds, in substance, to Articles 12–14 of the Damages Directive (2014/104/EU); see Glossary: Passing-On Defence.

Order for the Production of Evidence

In principle, the general provisions of Chapter 17 of the Code of Judicial Procedure apply to the production of evidence, but the Act establishes a special, three-tier protection for the competition authority's case file.

Subsidiarity. A court may order the Finnish Competition and Consumer Authority to produce evidence forming part of its case file only if no party or third party can reasonably supply it by other means.

Absolute prohibition on use. Leniency statements (statements made in connection with an application for immunity from or reduction of fines) and settlement submissions may never be used as evidence — not even after the proceedings have concluded. Where an item of evidence contains such a statement only in part, the remaining parts may still be used; only the competition authority to which the statement was submitted may assess the nature of the statement.

Temporary protection. Before the Finnish Competition and Consumer Authority has concluded its proceedings (by a decision under sections 9–11, 30c or 32 of the Competition Act, a proposal under section 12, or otherwise), the following may likewise not be used as evidence: (i) responses to the FCCA's requests for information or other material prepared specifically for its proceedings, (ii) draft decisions or other material sent by the FCCA to the parties during the proceedings, and (iii) withdrawn settlement submissions. A party's own statement concerning itself may, however, be used at this stage too if the party itself relies on it as evidence; the court must in that case invite the FCCA to comment on the possibility of using it.

Restriction on use. Evidence obtained solely on the basis of a right of access granted to the FCCA's case file is available only to the party that obtained the right of access (or its successor) — it does not "leak" for use by others.

Proportionality. The production of evidence must be limited to what is proportionate, having regard to the legitimate interests of the parties and third parties; the FCCA may, on its own initiative, submit an observation to the court on the proportionality of a production request. Particular caution is required where the request concerns the temporarily protected documents described above, the FCCA's case file in general, or where the FCCA has already commented on proportionality.

This regime implements the disclosure requirements of Articles 5–8 of the Damages Directive (2014/104/EU), including the black-list/grey-list mechanism of Article 6(5) and (6).

Limitation Period

The limitation period for a damages action is at least five years from when the injured party knew, or could reasonably have been expected to know, of the infringement, the resulting harm and the identity of the party responsible — but not earlier than the end of the infringement. The limitation period is suspended when a competition authority opens an investigation into the infringement, or when the parties enter into a mediation procedure aimed at dispute resolution.

Joint and Several Liability and the Leniency Applicant's Special Position

Undertakings that have jointly infringed competition law are, in principle, jointly and severally liable for the harm caused — each participant may be ordered to compensate the entire harm, and the one that pays may then recover its share from the others. An undertaking that has been granted full leniency immunity is, however, in principle liable only for harm caused to its own direct and indirect contractual counterparties, unless the injured party cannot obtain full compensation from the other participants in the infringement — this limitation is intended to preserve the attractiveness of the leniency programme.

Käytännön huomio

When assessing cartel risk, it is worth remembering that competition law liability often does not end with a fine — major industry customers or resellers may later bring damages actions, even years afterward, particularly following the publication of an infringement decision.

Competent Court

The Act on Competition Damages (1077/2016) contains no separate venue provision, and jurisdiction over damages actions has not been centralised in any particular court — unlike, for example, trade secret disputes or certain intellectual property matters. Such actions are therefore heard in the general courts of first instance (district courts, käräjäoikeudet) under the general jurisdiction provisions of the Code of Judicial Procedure, in principle in the district court of the defendant's domicile. The Market Court, which handles other competition law matters (e.g. proposals for fines and prohibitions concerning abuse of a dominant market position), does not have jurisdiction over private-law damages matters.

Käytännön huomio

Because jurisdiction is not centralised, a party that has fallen victim to a cartel should establish in advance which district court would be the most appropriate venue for the action — for example, in cases involving multiple defendants, the Code of Judicial Procedure's jurisdiction provisions on joint and several liability may open up several options.

Temporal Scope and Transitional Provisions of the Act

The Act on Competition Damages (1077/2016) entered into force on 26 December 2016, implementing Directive 2014/104/EU of the European Parliament and of the Council. The Act's substantive provisions (including the grounds for liability, the presumptions and the passing-on rules) are not retroactive: they do not apply to harm that arose before the Act entered into force. The Act's procedural provisions (including sections 8–9 on the order for the production of evidence), by contrast, apply, subject to certain conditions and in accordance with the transitional provisions, also to actions brought before the entry into force but heard after it.

See Also

• Fines in Competition Law
• Immunity from and Reduction of Fines (the Leniency Programme)
• Cartels and Horizontal Restrictions of Competition

Sources

Lainsäädäntö ja lähteet tarkistettu 6.9.2026.