Yrityskaupan kilpailuoikeudellinen arviointi ja korjaustoimenpiteet/EN
The Finnish Competition and Consumer Authority (FCCA) assesses the effects of a merger on the basis of the so-called SIEC test (significant impediment to effective competition). The outcome of the assessment determines whether the transaction is approved as such, approved subject to commitments, or prohibited altogether.
- Mistä on kyse: On the FCCA's proposal, the Market Court may prohibit a merger or order it to be dissolved if the transaction would significantly impede effective competition in the Finnish market or a substantial part of it. The FCCA itself, by contrast, may approve the transaction as such or impose conditions accepted by the notifying party.
- Miksi sillä on kaupallista merkitystä: The outcome of the assessment determines the conditions for approving the transaction and directly affects the value and structure of the deal.
- Mikä menee useimmin pieleen: Market share alone is not decisive: a transaction involving even a high market share is often approved if barriers to entry are low or buyer power is strong, whereas a transaction involving a moderate market share can be problematic in a tightly oligopolistic market.
The SIEC Test
[muokkaa]Under section 25 of the Competition Act, on the FCCA's proposal, the Market Court may prohibit a merger, order it to be dissolved, or impose conditions on it, if the transaction would significantly impede effective competition in the Finnish market or a substantial part of it, in particular because it creates or strengthens a dominant market position. If the impediment to competition can be avoided through conditions, the FCCA negotiates and imposes them instead of making a proposal — the FCCA cannot, however, impose conditions that the notifying party does not accept.[1] The provision corresponds in substance to the SIEC test under the EU Merger Regulation, which replaced the earlier assessment framework based purely on dominance in 2004 — the SIEC test also covers situations in which no party achieves a dominant position but competition is nevertheless significantly weakened (for example, non-coordinated effects in a tight oligopolistic market).
Key Factors in the Assessment
[muokkaa]The assessment examines, among other things, the parties' market shares and their change, barriers to entry, the bargaining power of buyers, possible efficiency gains (efficiency defence), and whether the target company would otherwise have exited the market (failing firm defence). The assessment always first requires the definition of the relevant markets, both in product and geographic terms.
Remedies (Commitments)
[muokkaa]If the FCCA considers that the transaction gives rise to competition concerns, the parties may offer remedies to remove the problem:
- Structural remedies — for example, the divestment of a business or production facility to a third party. These are, as a starting point, regarded as the most effective, since they remove the competition concern permanently without the need for ongoing monitoring.
- Behavioural remedies — for example, a commitment to grant competitors access to certain infrastructure or not to combine certain business operations. These are used less often as the primary solution, since they require ongoing compliance monitoring.
The FCCA's practice on the priority between structural and behavioural remedies is not as well established as that of the European Commission, and there are not many published Finnish decisions on commitment solutions. The acceptability of a commitment is always assessed case by case through negotiation with the FCCA.
Prohibition and Appeal
[muokkaa]If the competition concern cannot be removed through commitments, the FCCA makes a proposal to the Market Court for the prohibition or dissolution of the merger — the prohibition or dissolution order is issued by the Market Court, not the FCCA. An appeal against the Market Court's decision is brought directly to the Supreme Administrative Court without leave to appeal; see Appeals in Competition Matters.
The Market Court's Processing Time (Section 29)
[muokkaa]The Market Court must issue its decision on the FCCA's prohibition proposal within 69 working days of the proposal being made; otherwise the merger is deemed to have been approved. The prohibition on implementation, in turn, lapses automatically 23 working days after the proposal is made, unless the Market Court orders otherwise — the Market Court may in that case impose conditions on implementation.[2]
The expiry of the time limits results in the merger being deemed approved without any separate decision — this applies both to the FCCA's own processing time (see Merger Control Procedure: Review Phases and Timeline) and to the Market Court's 69-working-day decision time following a prohibition proposal. Tracking the time limits is therefore an essential part of scheduling the transaction.
See Also
[muokkaa]- Relevant Markets
- Dominant Market Position
- Merger Control Procedure: Review Phases and Timeline
- The EU Merger Regulation and the One-Stop-Shop Principle