For the first time, the Finnish Competition and Consumer Authority (“FCCA”) has proposed imposing a penalty payment on a company based on procedural misconduct in an investigation. In May 2024, the FCCA proposed to the Market Court the imposition of a penalty of EUR 4.4 million on a care service provider for resisting an inspection by deleting information from a mobile device.

Procedural infringement in question

In 2023 and 2024 the FCCA conducted several inspections in the elderly care home services sector, to investigate whether there had been anti-competitive cooperation between competing service providers. The events leading to the penalty proposal began in January 2023 with an inspection conducted on a care home service provider’s premises.

At the time of launching the inspection, one of the managers subject to investigation was unavailable and arrived at the premises later during the inspection, after which followed the immediate confiscation of a work phone. Once the FCCA began processing the data copied from the manager's phone, the inspection software revealed that some data had been deleted after the start of the inspection. The deleted data included five WhatsApp threads concerning communication either with competitors or internally between managers, as well as recent call logs. The manager confessed to deleting the data while being aware of the ongoing inspection.

FCCA’s assessment

The FCCA highlighted that the extensive and severe deletion of material, concerning WhatsApp communications and call logs, demonstrated considerable negligence by the manager. Given the manager’s past involvement in similar investigations, they were aware of the investigative powers of the competition authority, as well as the central role of messaging apps in the inspection. According to the FCCA, these actions were intended to exclude data from the investigation, compromising its integrity and causing significant delays and complications. Despite the reprehensible nature of the procedure, the FCCA reduced the proposed fine by 20 percent. This reduction was due to the care home service provider’s active role in recovering the deleted data, which served as a mitigating factor, although their assistance only commenced after the FCCA observed the deleted data.

This case underscores the importance of adhering strictly to procedural rules during antitrust inspections and exercising caution in handling data which is subject to investigation. Since 2021, the FCCA has been empowered to impose penalties for breaching procedural regulations, with such penalties potentially reaching one percent of the company's turnover. To prepare for a dawn raid, please see our article on tips and tricks for in-house lawyers.

If you need more information or further guidance in this area, please contact Petteri Metsä-Tokila or Maria Karpathakis.

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