For the first time in Finnish antitrust practice, a procedural violation during a competition inspection has resulted in a penalty payment. The recent Market Court’s assessment focused purely on a procedural violation – specifically, the deletion of inspection data – regardless of whether the deleted data was relevant to the investigation. 

Since 2021, the Finnish Competition and Consumer Authority (“FCCA”) has had the authority to propose fines for such violations, with penalties of up to 1% of a company’s annual turnover.

Procedural violation during inspection

In 2023–2024, the FCCA conducted several inspections in the care sector, investigating potential anti-competitive cooperation among competing service providers. One such inspection of a care home service provider (the “Company”) revealed a procedural violation. The infringement was committed by a part-time manager at the Company’s subsidiary, who was subject to the FCCA's investigation (hereafter the “Manager”).

At the outset of the inspection, the FCCA instructed the Company that no documents, files, emails, or other materials were to be removed or destroyed. However, during data processing, the FCCA discovered that several WhatsApp conversations and recent call logs had been deleted from the Manager’s mobile device. The Manager admitted to deleting the data, despite being aware of the ongoing inspection at the time. The FCCA deemed this action to be resistance to inspection and proposed a EUR 4.4 million penalty be imposed on the Company.

FCCA’s authority and corporate liability challenged

The Company contested the FCCA’s proposal on several grounds. It argued that the FCCA lacked the authority to inspect an employee’s personal phone without prior Market Court approval and that the Competition Act did not clearly define what actions could trigger penalties. The Company also disputed being held liable for the Manager’s conduct, asserting that it had neither obstructed the inspection nor acted negligently.

To support its position, the Company pointed to its internal compliance measures, including clear guidelines and employee training regarding inspections. It further emphasised that the phone was the Manager’s personal device, used for both private and professional purposes, and that the WhatsApp account was not linked to the Company’s systems.

Company held liable – but compliance efforts helped reduce the fine

The Market Court upheld the FCCA’s findings, confirming that the Company had committed a procedural violation through the Manager’s actions. The Court ruled that the FCCA was entitled to inspect all storage devices used for company purposes – including personal devices used for work – without Market Court authorisation, and that the Competition Act sufficiently outlines prohibited conduct.

Importantly, the Court held the Company liable for the Manager’s deletion of data, even though the Company had no prior knowledge of the action and had given clear instructions not to delete any materials. The contents of the deleted messages and the Company’s later cooperation were considered irrelevant in determining the violation itself.

However, the Court did take into account mitigating circumstances, including the Company’s cooperation and its internal compliance efforts. Since the Manager had acted contrary to explicit instructions, and the conduct was neither foreseeable nor preventable, the Court reduced the fine from EUR 4.4 million to EUR 1.5 million.

Are your employees prepared for an unexpected inspection?

Make sure your management is prepared for an inspection. See our Competition Compliance Toolkit, which includes free preparation tools (also available in Finnish):

Dawn Raid Game – Test your preparedness with this interactive tool.

Dawn Raid App – Access essential information to guide you through a dawn raid.

Dawn Raid Management Tool - A customizable, secure platform to manage unexpected investigations.

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

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