Finland: economist perspective

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The use of economics in the Finnish competition law enforcement during 2021 and early 2022 continued to be most prevalent in the context of merger inquiries. Over the past year, the Finnish Competition and Consumers Authority (FCCA) employed economic modelling in the context of a healthcare merger and conducted a detailed market definition analysis in its review of an acquisition concerning, in particular, frozen bakery products.

Following a proposal and impact analysis by the FCCA^[1], the Finnish government has issued a draft proposal^[2] suggesting that the thresholds for mergers reviewable by the FCCA should be lowered. The proposal is subject to parliamentary approval, but many of the practitioners we interviewed agreed that the case for lowering merger notification thresholds is reasonable.

Pan-European developments, such as the Digital Markets Act, the Green Deal, the draft guidelines on horizontal cooperation and the new guidelines on vertical agreements will have implications for Finnish firms too. All lawyers and the FCCA follow European developments with an interest, and there are some signs of horizontal agreements promoting sustainability concretising in due course.

This article is based on interviews with the FCCA and with prominent competition law practitioners from the law firms Avance Attorneys, Frontia, Castrén & Snellman, Dittmar & Indrenius, Hannes Snellman, Krogerus, Merilampi and Waselius & Wist, conducted between May and July 2022.

A healthcare merger found to have a pro-competitive effect

In January 2022, the FCCA unconditionally cleared a proposed acquisition in the Finnish healthcare sector. The transaction involved Pihlajalinna, the third largest private healthcare provider in Finland, and Pohjola Sairaala, the hospital arm of the large insurance and financial services conglomerate OP Financial Group. ^[3]

In its analysis, the FCCA distinguished between insurance-funded and self-paying customers. Drawing on an economic model designed to assess the relative bargaining positions of insurance companies vis-à-vis healthcare providers, the FCCA found that the transaction is likely to be pro-competitive in the market for insurance customers. The main driver of the pro-competitive effects was the fact that Pohjola Sairaala would be divested from OP. More specifically, Pohjola Sairaala was owned by OP’s insurance company, which, before the merger, directed its insurance patents to its own hospital arm. The acquisition freed this capacity for competition and, hence, the net impact on competition was found to be positive even though Pihlajalinna strengthened its bargaining position.^[4]

While initially concerned about the effects of the merger in certain medical specialties and geographic areas in the self-paying segment, the FCCA concluded that the merger is unlikely to give rise to a significant impediment to effective competition. This conclusion stemmed in part from a competitor announcing its expansion to one of the potentially problematic regions thus alleviating potential competition concerns there.^[5]

Quantitative analysis underpinning market definition key to clearance of frozen bakery merger

An acquisition of Sponmill (including its subsidiary Myllyn Paras) by Lantmännen was cleared following an in-depth Phase II review by the FCCA.^[6] Most of the FCCA’s economic analysis focused on the market definition with a thorough investigation of both demand- and supply-side substitutability. Notably, the FCCA conducted a critical loss analysis to assess the substitutability between different bakery products.

When interviewed, the FCCA noted that certain features of the market made it difficult to design a survey that would have captured consumers’ actual decision-making when faced with a small price increase. Nevertheless, the high number of respondents allowed for a supermarket chain level analysis that, together with other evidence, supported a wider market comprising several bakery products.^[7] The finding of a wide market was the key to the clearing of the merger. Further, the fact that some firms supplying the retail sector could enter the market for food service customers was seen by the FCCA as a countervailing factor to potential harm to competition in the latter market.^[8]

Other mergers reviewed by the FCCA during 2021 included, for example, Valmet/Neles^[9] and Mehiläinen/Fysios.^[10] The former review focused on vertical theories of harm and the latter on both horizontal and vertical theories of harm, albeit these theories were not subject to in-depth economic analysis. Nevertheless, several of the interviewed lawyers stated that the FCCA’s merger reviews have been thorough and data intensive. Some noted that companies contemplating mergers need to be mindful of the fact that the FCCA’s review may identify competition concerns in a specific product or geographic markets notwithstanding their small size.

Merger review thresholds to be lowered

Following an impact analysis and a proposal to the Ministry of Employment and Economic Affairs from the FCCA, the Finnish government has put forward a draft bill setting out significant changes to the turnover thresholds for mergers requiring notification to, and a review by, the FCCA.^[11] More specifically, the government proposal (under consultation at the time this article is written) suggests that mergers with an overall turnover derived from Finland of at least €100 million and at least €10 million per company, ought to be notified to the FCCA. This would represent a substantial change to the current regime whereby the notification threshold for the overall turnover has been €350 million and at least €20 million generated in Finland per each company. Contrary to the FCCA’s initial recommendation, the proposal does not, however, include the right to call in mergers that do not meet the revenue thresholds but that could give rise to competition concerns.

Many of the interviewed practitioners agreed that the economic case for the proposed changes is reasonable, given the size of the Finnish economy and the currently high thresholds by international standards.

The FCCA considered that the government’s draft is an important step in the right direction, and also pointed out that there is no international evidence to suggest that further powers to call in mergers given to some authorities would have resulted in any significant distortions. The lawyers stressed the importance of transparency should any more discretionary measures to call in mergers for review be introduced.

No new abuse of dominance or cartel cases

There have not been many prominent investigations or new decisions regarding abuse of dominance over the recent years. The interviewed lawyers consider that a high burden of proof and long processing times can explain why companies are reluctant to initiate processes regarding potential abuse of dominance. The number of new cartel decisions has also been low recently. The lawyers alluded to ongoing investigations that may surface in due course.

Largely due to the low number of concluded antitrust cases, private enforcement activity remains low in Finland. According to the practitioners interviewed, the claimants’ limited success in damages cases in recent years may discourage companies from pursuing claims. The situation may evolve as a rebuttable presumption of harm of cartels, now implemented in Finnish law, will be applicable in future cases. Further, there is no opt-out class-action regime in Finland, which makes it complicated to combine large numbers of fragmented damage claims in situations where there are several potential claimants.

Use of economics in state aid cases may increase

According to some of the interviewed practitioners, the use of economics has been generally limited in state aid matters. This may, however, change with an increase in the number and complexity of state aid cases, and with an increased awareness of the role of economic evidence. The interviewed practitioners noted two examples of complaints lodged before the Commission in 2021: The Finnish Food and Drink Industries' Federation filed a complaint concerning alleged unlawful state aid to state-owned Suomen Viljava Oy’s oat mill investment, and Sanoma Media Finland Oy filed a complaint concerning video-on-demand and learning services provided by Yleisradio Oy, the Finnish public service broadcaster. In the latter case, the parties have submitted economic evidence related to the competitive effects of Yle’s contested services.

Sustainability agreements with competition implications likely to concretise in due course

In line with the EU Green Deal agenda, the Commission’s draft Horizontal Guidelines set out that companies will have more opportunities to coordinate to improve sustainability, innovation and knowledge sharing.^[12] While the policy-based (and academic) discussion around sustainability considerations in competition cases and mergers has gained considerable interest for some time, few actual decisions involving sustainability justifications have seen the daylight in Europe.

In Finland, the FCCA finds it plausible that sustainability-related benefits could outweigh competitive harm in some circumstances, but the authority is waiting for concrete cases to emerge and for further guidance from the Commission. For the time being, the FCCA does not issue its own guidance about the circumstances under which agreements between competitors could be permissible on sustainability grounds, or about economic methods to quantify such benefits.

The lawyers had mixed views about the prospects of sustainability agreements; some considered the topic academically interesting, while others told us about signs of such agreements starting to emerge in practice, albeit slowly.

Disclaimer

Concerning the cases mentioned in this article, Copenhagen Economics has acted as an economic adviser to a party in the Pihlajalinna/Pohjola Sairaala merger and for Yleisradio Oy in the context of the state aid complaint filed to the European Commission by Sanoma Media Finland Oy.

Notes

^[1] The FCCA’s press release from 11 June 2021: https://www.kkv.fi/en/current-issues/press-releases/2021/11.6.2021-fcca-study-expanding-the-obligation-to-notify-mergers-would-create-significant-consumer-benefit/. Buri R, Heinonen M, Parhiala T, Pietola M, Syrjälä S (2021), Selvitys yrityskauppavalvonnan ilmoitusvelvollisuuden muutostarpeista, Kilpailu- ja kuluttajaviraston selvityksiä 7/2021.

^[2] Ministry of Employment and Economic Affairs, government’s draft bill regarding lower turnover thresholds for mergers requiring notification: https://tem.fi/hanke?tunnus=TEM114:00/2021.

^[3] Press release of acceptance of Pihlajalinna / Pohjola Sairaala merger published January 14, 2022. Available online: https://www.kkv.fi/ajankohtaista/tiedotteet/kkv-hyvaksyi-pihlajalinnan-ja-pohjola-sairaalan-valisen-yrityskaupan/.

^[4] The FCCA’s public decision concerning Pihjalinna / Pohjola Sairaala can be found here: https://www.kkv.fi/paatokset/kilpailuasiat/yrityskauppavalvonta/kkv-867-14-00-10-2021/. The conclusion can be found eg, in paragraph 97.

^[5] The FCCA’s public decision concerning Pihjalinna / Pohjola Sairaala can be found here: https://www.kkv.fi/paatokset/kilpailuasiat/yrityskauppavalvonta/kkv-867-14-00-10-2021/. See paragraph 107.

^[6] The Finnish Competition and Consumers Authority (2022), Kilpailu- ja kuluttajaviraston päätös yrityskaupan hyväksymisestä asiassa Lantmännen ek för / Sponmill Oy, KKV/1276/14.00.10/2021.

^[7] The FCCA’s public decision concerning Lantmännen / Sponmill can be found here: https://www.kkv.fi/uploads/sites/2/r-2022-10-1276.pdf. The conclusion can be found eg, in paragraph 57.

^[8] The FCCA’s public decision concerning Lantmännen / Sponmill can be found here: https://www.kkv.fi/uploads/sites/2/r-2022-10-1276.pdf. The conclusion can be found eg, in paragraph 82.

^[9] Public version of the decision regarding Valmet / Neles, February 2022: https://www.kkv.fi/uploads/sites/2/2022/03/r-2021-10-1429.pdf.

^[10]     Press release of the FCCA’s decision concerning Mehiläinen / Fysios, January 2022: https://www.kkv.fi/ajankohtaista/tiedotteet/kkv-hyvaksyi-ehdollisena-mehilaisen-ja-fysioksen-valisen-yrityskaupan/.

^[11] The Ministry of Employment and Economic Affairs, government’s draft bill regarding lower turnover thresholds for mergers requiring notification: https://tem.fi/hanke?tunnus=TEM114:00/2021.

^[12] European Commission’s draft Horizontal Guidelines published March 2022: https://ec.europa.eu/competition-policy/public-consultations/2022-hbers_en.