For the first time in Finland, a court has assessed in more detail the compatibility of joint bids made by competing companies. The Finnish Market Court has, upon a request by the Finnish Competition and Consumer Authority (“FCCA”), considered a case concerning potential infringement of the competition law. 

In its recent judgement, the Finnish Market Court imposed a penalty fine on six Finnish public transportation companies for engaging in prohibited concerted practices. According to the FCCA, the companies submitted joint tenders in violation of the Finnish Competition Act in three tenders for Föli (public transportation in the Turku region) in 2013, 2014, and 2016, a period when the sector opened to competition.

The Finnish Market Court found that the companies involved were considered competitors. According to the Court, the companies effectively mitigated the risks associated with open competition through cooperation, and divided the market, generating income based on the distribution model agreed. The Market Court deemed the operations to fulfill the criteria of a concerted practice, prohibited under competition law.

The Finnish Market Court determined that the collaboration had an objectively anti-competitive nature. Consequently, the conduct was deemed intentional, regardless of the parties’ subjective intent. Hence, the Market Court found it unnecessary to assess the actual effects of the cooperation on competition.

The companies attempted to invoke the so-called efficiency defence, a recognised exception in EU competition law, by claiming that the joint ventures allowed them to offer more competitive prices, ultimately benefiting the tenderer. However, the Court remained unconvinced and stated that the companies had not provided adequate reasoning for the market division and had not made a credible effort to explore alternatives that would impose the least restriction on competition.

Despite recognising the joint ventures’ partly acceptable goals, the Court found that the main purpose of the cooperation was elimination of mutual competition and division of market. The Court imposed a penalty payment of 1.5 million euros between the six companies involved.

For more information or further guidance in this area, please contact Katia Duncker or Maria Karpathakis.

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