Competition law landscape on an EU level and in Sweden and Finland – how is 2023 turning out?
Both at EU and national level, the last year has brought with it many developments and that trend continues in 2023. In what seems to be a global sentiment, transactions continue to face tough scrutiny on many levels – be it merger control, or the review of foreign direct investment or foreign subsidies. Additionally, it seems that ALL the rules are changing. The EU is focusing on the renewal of several of its staple rules (such as the Vertical Block Exemption Regulation and the Horizontal Guidelines) and adopting new tools such as the Digital Markets Act and Guidelines on Exclusionary Abuses. Based on what we have seen during 2023 so far, this year is expected to be an eventful one. Here are some of the highlights.
1. Commission’s new Horizontal Guidelines
In what is likely to be the most awaited set of modernized guidance from the Commission, the finalized horizontal guidelines were published on 1 June 2023. Simultaneously, the Commission adopted the revised block exemption regulations covering R&D agreements and specialization agreements.
The guidelines cover a vast array of issues and example agreements between competitors, and we will be providing more detailed insights into several topics covered in the Roschier Newsroom. Particularly topical are the sections on information exchange, sustainability agreements and bidding consortia, so watch this space.
2. New merger control thresholds in Finland
On 1 January 2023, the new merger control thresholds came into force in Finland. Transactions are now notifiable to the FCCA if the parties’ combined Finnish turnover exceeds EUR 100 million and the aggregate turnover in Finland of each of at least two of the parties exceeds EUR 10 million.
The level of the amended thresholds is now more aligned with those of the FCCA’s Nordic counterparts. With the focus of the thresholds now clearly on turnover generated specifically in Finland, this is expected to lead to at least a 25 per cent increase in notified transactions by parties with strong footprints in the Finnish market. During the first quarter of 2023, the FCCA received 14 merger control notifications, which is approximately double those received in Q1/22.
The FCCA notification form has also been revised. The main change concerns the market share thresholds established for “affected markets”, which have been adjusted in order to ensure that clearly non-problematic transactions could be notified with less information required. However, in transactions with affected markets, the new notification form lays down increased information requirements for both parties, mainly concerning conglomerate effects, potential competition and key IP rights. For further information on these changes, see our Insights article.
As Finland boasts several highly concentrated markets, it will be interesting to see whether the FCCA utilizes the rekindled principle of using the prohibition against the abuse of dominance to review transactions which fall outside the jurisdictional scope of EU and national merger control rules, as recently confirmed by the European Court of Justice in the Towercast decision (for more details, please see our Insights article).
3. Swedish competition authority willing to accept behavioral remedies
M&A and Antitrust developments in Sweden
After a record breaking 2021 with 139 merger cases concluded, 2022 ended up being a more ordinary year for the Swedish Competition Authority (the SCA), with 117 merger cases. However, considering that up until 2020 the SCA handled at most 80 merger cases per year, 2022 was still a significant year in terms of the number of merger cases. In terms of substance, following the trend of the previous year, the SCA did not prohibit any mergers, only conducted two phase II investigations, and all merger cases were approved unconditionally, one of which was cleared with remedies in both Norway and Finland. Further, in October 2022, the SCA initiated a phase II investigation into a transaction relating to the market for heat insulation and draining products for moisture protection. However, in January 2023, after receiving the SCA’s draft decision on the matter, the parties withdrew the notification and cancelled the transaction.
The SCA started 2023 by approving the acquisition of the all-you-can-read (AYCR) magazine platform Readly by the Swedish publisher Bonnier. The acquisition was approved in phase I subject to behavioral remedies. Since Bonnier both has its own AYCR platforms and is one of the largest publishers of magazines in Sweden, the investigation focused on the transaction’s vertical effects on competition. The SCA raised preliminary concerns relating to the potential foreclosure of other publishers on the platform. To alleviate the SCA’s preliminary concerns and obtain clearance in phase I, Bonnier proposed voluntary remedies ensuring competing publishers access to the platform on competitively neutral terms, continued access to data on reader behavior, and competitively neutral positioning of titles.
Within antitrust, the SCA had successes at the start of 2023, and has been gaining some procedural momentum. In the fall of 2022, the SCA imposed its first competition damage-fee decision, involving damage fees of SEK 300 000 and SEK 1 250 00 imposed on the two parties involved in a bidding cartel. The addressees of the decision were two taxi companies who were found to have colluded in a public tender regarding transport for the disabled. In early 2023, the Patent and Market Court upheld the SCA’s decision, however, the appeal of the taxi companies did not contain any pleadings. Furthermore in December 2022, the SCA imposed the second ever competition damage fee on two sanitation companies who were found to have agreed not to compete, mainly in relation to public procurement. The SCA was notified of the cartel by one of the sanitation companies involved, which received immunity from the fees while the other company received a fee of SEK 1 219 000.
Swedish competition authority willing to accept behavioral remedies
As mentioned in our 2021 Year in Review, for some time now the SCA has been arguing that it requires modern tools to counter modern competition issues. As further described below, with the Digital Markets Act (DMA), the European Commission has been provided with tools enabling it to act in situations different from typical antitrust issues: i) abuse of dominance; ii) cartels or agreements that prevent, restrict, or distort competition; and iii) mergers that can be expected to significantly impede effective competition.
Although the DMA is only applicable in digital markets, tools included would allow authorities to restrict certain behaviors that might limit competition but are outside the framework of dominance or restrictive agreements, as well as tools to catch so-called “killer acquisitions” (i.e., transactions falling below the traditional monetary merger control thresholds, but still capable of significantly impeding effective competition).
In Sweden, the SCA has argued that there is a need for legislative changes to tackle certain antitrust conduct that is not caught by the current rules since it does not constitute an abuse of dominance, an anti-competitive agreement or a transaction. One of the main proposed tools would require certain companies or in certain sectors to inform the SCA of all transactions they enter into. The other main proposed tool is a “market investigation tool” enabling the SCA to investigate competition in a certain sector of the market, including the possibility to issue remedies for those operating in the sector to promote competition in the future.
Currently lacking such tools to assess complex competitive issues, a new trend has been slowly but distinctly coming into fruition in a platform / DMA-world – the SCA’s increased acceptance of behavioral remedies. In fact, as is shown in the table below, more than half of the remedies accepted by the SCA in the past eight years have been behavioral. Also, the SCA’s decision in Bonnier / Readly shows that the SCA is prepared to rely on behavioral remedies to address competitive concerns within the platform economy.
Merger Cases approved conditionally in the past eight years
|2015||Orkla ./. Cederroth Intressenter||Horizontal||Structural||Phase I|
|2018||Metso ./. P.J. Jonsson & Söner||Horizontal||Behavioral||Phase I|
|2019||Karo Pharma ./. Trimb Holding||Horizontal||Structural||Phase I|
|2020||Gasum ./. Lidingö Clean Gas||Horizontal||Behavioral||Phase I|
|2021||Altia ./. Arcus||Horizontal||Structural||Phase II|
|2021||Axfood/Dagab ./. Bergendahl Foods||Horizontal and vertical||Behavioral||Phase II|
|2023||Bonnier News ./. Readly AB Int.||Vertical||Behavioral||Phase I|
4. Commission adopts a new notice on Simplified Procedure in Merger Control
As part of its initiative to focus resources on truly problematic proposed transactions, on 20 April 2023 the Commission adopted a new Notice on Simplified Procedure, which will enter into force on 1 September 2023. Accordingly, the notification form and other procedural practicalities will change on the same date.
5. Foreign Subsidies Regulation – an additional notification layer for screening transactions and public procurement bids
The principle that state aid has the ability to distort competition and make playing fields unlevel has been recognized for years. Despite severely relaxed state aid rules due to the Covid pandemic and the Ukraine war, the Commission has in principle subjected Member States to strict scrutiny regarding the possibility to subsidize companies. However, non-EU governments (most notably the US, China and most recently the UK) have not been similarly restrained. Most recently, the US Inflation Reduction Act has really brought “state aid competition” to the forefront as industrial investments gravitate towards the jurisdictions where the most money is on offer.
The Foreign Subsidies Regulation (FSR) is one of the EU’s new tools for addressing distortions to the internal market caused by foreign subsidies. The FSR entered into force on 12 January 2023, comes into effect on 12 July 2023 and, as of 12 October 2023, companies will have to notify the Commission of concentrations and participation in public procurement procedures meeting the FSR notification thresholds. From 12 July 2023, the Commission will also have the power to open ex officio investigations, request ad hoc notifications of transactions or public procurement bids that do not meet the notification thresholds, and conduct “dawn raids”.
The notification obligation arises depending on the level of “foreign financial contribution” received (three years prior to the notification) as well as, in the context of transactions, on the level of turnover achieved by the companies involvedand, in the context of public procurement bids, on the value of the procurement. If the thresholds are met, notification is obligatory and the transaction and/or award of the bid is suspended until the Commission has issued its (approval/prohibition/remedy) decision.
The Commission has sole jurisdiction to apply the FSR and the review periods are very similar to those under the merger control rules. The FSR also establishes a cooperation mechanism between the Commission and Member States to facilitate information sharing. The Commission also has the power to impose fines for failure to notify in the context of the FSR.
Companies active in transactions or public procurement bids in the EU will need to start collecting data concerning any foreign subsidies received as this will be information regularly requested in the context of deal and procurement bid preparations. The FSR is bound to become a part of the regulatory feasibility assessment process alongside merger control and FDI review.
6. Foreign Direct Investment review – added scrutiny in both Finland and Sweden
In 2022, Finnish FDI screening increased in volume, complexity and level of scrutiny. Some of this can be explained by the challenging geopolitical situation and heightened focus on national defense and security. Even though the EU screening mechanism has been implemented into Finnish law, what was expected to be an active dialogue with the Commission and EU Member States in the context of the FDI review has resulted in surprisingly few cases being discussed outside of Finland.
In addition to transactions, acquisitions of real estate have also attracted significant scrutiny in Finland resulting in several prohibition decisions presently being heard on appeal in the courts. An important takeaway from 2022 is that review periods for FDI screening in Finland continue to grow, with even non-problematic cases taking a good 10-12 weeks to be approved.
In Sweden, a new proposal for the FDI Act has been submitted to the Council on Legislation. The proposal is that the Act will enter into force on 1 December 2023 and any transactions closed after that date would be within the scope of possible approval. The presently applicable Protective Security regime will continue to apply alongside the new FDI regime.
For further insights on FDI screening in Finland and Sweden, please refer to our Insights article.
7. Public procurement continues as a focus area in Finland – FCCA goes after bid rigging, illegal direct procurements and the misuse of the affiliated entity exception
As part of the Finnish Government’s strategy and action plan for 2020–2023 for tackling the grey economy and economic crime, the FCCA has published a Policy Brief where it discusses its main concerns as regards bid rigging in public procurements and the opportunities of utilizing statistical methods in cartel detection. Statistical screening of potential bid rigging is currently focused on data collected from the Finnish procurement systems Hilma and Cloudia. The FCCA is expected to continue this work in 2023 and we would expect to see the launch of an investigation later this year.
Another topic the FCCA has recently publicly raised as a concern in the context of public procurements is the direct procurement from affiliated entities, particularly in certain sectors such as healthcare or waste management. The Confederation of Finnish Industries (together with other industry associations) filed a complaint and request for action to the FCCA alleging that the newly formed health- and social care regions are illegally procuring from their affiliated entity Sarastia. On 23 May 2023, the FCCA made a proposal to the Market Court for the Sarastia procurement to be deemed prohibited as Sarastia is not an affiliated entity within the meaning of the procurement rules. Even though the proposed fine (EUR 1000) is symbolic in nature, the lengthy decision addresses the requirements for affiliated entities in detail and makes it clear that the FCCA will be following affiliated entity procurements closely.
What is still to come in 2023?
The updating, modernization and entry into force of EU-level competition rules continue actively this year. One of the larger overhauls during 2022 concerned the rules on vertical agreements resulting in a revised Vertical Block Exemption Regulation and accompanying Vertical Guidelines. Please refer to our Insights Article for more details.
- The legislative changes pipeline is historically the strongest it has been in a decade, with the following still to be expected in 2023 – 2024: Evaluation of the current framework for the implementation of EU competition rules as set out in Regulations 1/2003 and 773/2004 leading to the expected publication of suggestions for renewal in 2024.
- The Commission has published amended Guidance on enforcement priorities concerning exclusionary abuses (originally published in 2008) with the intent to consult in parallel on the adoption of Guidelines on exclusionary abuses of dominance (to be published in 2024)
- The Commission’s Market Definition Notice is in the process of being revised with the expectation for a final new notice to be published in 2023.
In light of the globally active discussion on “raining in Big Tech”, the Digital Markets Act (DMA) warrants separate mention (see our Insights Article for more details). The DMA applies as of 2 May 2023 and the high level of activity around the DMA continues, with the Commission currently in prenotification talks with the alleged gatekeeper companies (designation of gatekeepers expected in September 2023). Interestingly, Commissioner Vestager has noted (during the recently held ABA Antitrust Spring Meeting in Washington DC) that the DMA notifications by gatekeepers will be an important source of information for the Commission in considering the possible application of Article 22 of the EUMR against killer acquisitions (i.e. in situations where notification thresholds are not met).
The Commission has made it clear that leniency applications are on the rise again and that the cartel unit is actively identifying possible areas of investigation. The focus seems to be very strongly on consumer goods, with the latest unannounced inspections being conducted in the fragrance sector and the energy drink sector (both in March 2023), and the fashion sector and the online rail ticketing sector (both in April 2023).
 In the case of a transaction, all undertakings involved in the transaction were granted combined aggregate financial contributions in the three financial years prior to notification of more than EUR 50 million. In the case of a procurement, the economic operator group has been granted a financial contribution of at least EUR 4 million in the three financial years prior to notification.
 The target, at least one of the merging parties or a JV is established in the EU and generates an EU turnover of at least EUR 500 million.
 The estimated value of the procurement is at least EUR 250 million.