The New Sanction System of Competition Infringements According to the Finnish Competition Act 2010 Working Group’s Proposal – Perspectives for Criminalization
Abstract
This article examines the new Competition Act 2010 proposal which has been published on 29 January 2009 and is set to come into force in 2010. This article assesses the arguments the working group has put forward relating to the possible use of criminal sanctions in the new Competition Act. Even though many European countries have implemented criminal sanctions in their competition legislation, it seems that Finland will continue to rely on administrative sanctions in the foreseeable future. The working group does not see criminal sanctions as the solution that prevents infringements of competition law in the future, and argues that administrative sanctions are strict enough for this purpose. Administrative sanctions are also considered a more flexible and procedurally easier option from the point of view of the Finnish legal system. However, there are several arguments supporting the notion that administrative sanctions are too lenient and that profits earned from cartels, for example, exceed them. In these situations, criminal sanctions are the only solution for preventing competition law infringements effectively. The sanction options presented in the proposal are not well argued; the working group does not sufficiently take into account the advantages and disadvantages connected to criminalization, and gives scant explanation for its opinion on the topic. It is therefore clear that different options should be examined more carefully.
Furthermore, this article covers arguments to be taken into account when assessing the possibility of criminal sanctions, such as the need to consider traditional criminalization principles. These principles could provide the needed rationalization for criminalizing competition law infringements in Finland, but the working group has not addressed them. This article promotes the idea that, among others, the ultima ratio principle should be examined in this context in order to determine whether it weighs for or against criminalizing competition law infringements in Finland.
