"Data is key in the digital economy", stated Margrethe Vestager, the European Commissioner for Competition, in connection with the recent anticipated merger clearance decision regarding Apple and Shazam, the developer of a popular music recognition application.
Data is rapidly becoming a more and more valuable resource and instrument of exchange in today's economic system. Aggregated user information and other data is a valuable asset. In some cases it may even be a precondition for digital platforms and service providers to be able to operate a successful business.
In regard to the emerging tech giants, there is an ongoing international discussion if protecting the competitive process should be an objective itself in competition enforcement and policy instead of prioritising short term price effects.
Commissioner Vestager, who just recently addressed the crowd with the topic "Fairness in Tech" at the Helsinki start-up event Slush, has through her enforcement actions firmly and repeatedly demonstrated that data is gaining an increasingly important role in the assessment of mergers. National competition authorities around Europe have followed suit.
Due to network effects and scaling, digital service markets tend to concentrate in large units. As this also spurs the condensation of data, European competition authorities seem to have set their sights on the tech industry giants. The aforementioned Apple/Shazam merger review was moved to an in-depth investigation over concerns of data condensation as well as Apple's potential access to sensitive competitor data.
Eventually, the acquisition was unconditionally cleared. Other recent decisions and statements from EU competition officials also indicate that the data-intensive digital industries are among their top priorities, if not the paramount.
Merger control is not the only area of competition law where the use of data is currently under scrutiny. There have been concerns that digital platforms and services might misuse their market power and impose unfair terms and conditions on both trade partners and consumers. The Commission's investigations regarding tech giants such as Google and Amazon have gained a lot of attention, but also national enforcement action is taking place around Europe.
In December 2017, the German Competition Authority announced that it had made a preliminary legal assessment in its proceedings against Facebook. The authority stated that it "holds the view that Facebook is abusing this dominant position by making the use of its social network conditional on its being allowed to limitlessly amass every kind of data generated by using third-party websites and merge it with the user's Facebook account". A decision in the matter may possibly be given by the end of this year.
Some notable distinctions exist between traditional commodity markets and markets of digital goods and services. From the competition enforcement point of view, the most important difference is that in the market of digital goods and services defining and measuring a company's true market power is challenging at best.
For instance, digital platforms are commonly active on several markets: they offer a free (or zero-price) service to consumers while selling advertising space or providing a trading platform to businesses. The turnover of a company may be low but the amount of data they possess may be immense.
Another key feature of the digital markets is the rapid innovation cycle which also leads to quick changes and shifts of the market circumstances and relations. An illustrating example is the evolution of the mobile messaging application WhatsApp, which was not considered a relevant competitor in the 2011 merger decision of Microsoft/Skype, but just a few years later, was deemed as one of the leaders on the market of electronic consumer communication services.
For these reasons, traditional market power indicators such as value based market shares may no longer be effective enough. The Commission as well as national competition authorities have worked to find new tools and theories of harm to address the situation, which may lead to temporary uncertainty among businesses and even diminish the incentive to invest and extend operations.
Some alternative market power indicators used by the Commission have been, for instance, the number of users or downloads of an application or the penetration rate or reach of a service. The development of new tools and measurements remains to be seen during the upcoming years.
According to Commissioner Vestager's statements, the reconsideration of merger control turnover thresholds is up for discussion. The potential need for possible extensions to merger review deadlines has also been flagged by some Commission officials.
Additional and alternative merger control thresholds based on deal value rather than the parties' turnovers were introduced in Germany and Austria in 2017. By introducing new deal value based thresholds, authorities wish to cover new types of transactions where one or both of the parties might have a small turnover but high value.
The new rules are aimed at addressing potentially harmful mergers that would otherwise be left unscrutinised. However, the amendments have also partly resulted in more disparate and less clear cut rules on merger control. Alternative threshold rules make determining if a transaction is notifiable more complex and time-consuming.
As the assessment of the local nexus of the transaction is done based on indicators other than just turnover, the obligation to notify a merger in jurisdictions with alternative thresholds may in some cases come as a complete surprise to the parties of a transaction. With increasingly disparate merger control rules, it becomes increasingly important for companies and other market players to stay on top of the changing legal regime and making sure that the merger control stream is carefully implemented in M&A activities.
Although it is well worth it to keep all eyes open for legislative changes in the future, we have already seen many important examples of data playing a pivotal role in merger reviews. The use of data may already now become a central aspect in successfully finalising an acquisition.
The merger review of Apple and Shazam demonstrated that even though a merger may eventually be cleared without any further requirements, the role of data may in some cases significantly complicate and delay the review process. The case also demonstrates that enforcers already now have tools to intervene, as Apple/Shazam based on turnover thresholds was originally notifiable only in Austria, but was subsequently on request by Austria and several other members states referred for review to the Commission.
A recent judgment sets out new considerations on whether a party who lodged a request for action to the Finnish Competition and Consumer Authority (FCCA) has the right of appeal if the FCCA dismisses the request. The judgment enforces the notion that appealing the FCCA decision in court is a more accessible option than once was thought. Finnish procedural law may be on the road to converging with EU law in this regard.
Decisions by the FCCA may generally be appealed to the Market Court as a first instance and to the Supreme Administrative Court as a second instance. However, the issue of who may appeal a decision is far from settled.
Under Finnish administrative judicial law, a decision may be appealed by any person whose right, obligation or interest is directly affected by a decision. Courts often face the difficult question of when such a direct effect is at hand. The issue has been revisited in many competition law cases.
The treatment of appeals concerning dismissive FCCA decisions has been fairly strict. After a request for action has been dismissed by the FCCA, the Market Court has regularly held appeals inadmissible, stating that the party who requested action is only indirectly affected by the FCCA decision. For instance, both competitors and customers of a company that has allegedly abused its dominant market position have been treated this way.
However, a broader evaluation of the direct effect has been applied on occasion. In one case (MAO 35/11), the Market Court held that the appellant's status as a competitor as well as a customer and subcontractor to the allegedly dominant company each constituted a direct effect resulting in a need to review the appeal. This is closer to the perspective applied by European Union level authorities, under which the right of appeal is connected to the potential advantages brought by the appeal.
The Supreme Administrative Court has drawn nearer to this type of approach. In a September 2018 judgment (KHO 2018:132), it reviewed an appeal by a direct mail advertising company that had made a request for action to the FCCA on the pricing and supply practices of an allegedly dominant competing postal carrier. The FCCA dismissed the request for action after seven years of investigation into the suspected abuse of dominance.
The Market Court considered the direct mail advertising company's right of appeal at length, noting that the parties were the biggest companies in the field and that the appellant was the mail carrier's customer in less populated areas. These factors constituted a direct effect on the appellant justifying its right to challenge the FCCA's dismissal.
On further appeal, the Supreme Administrative Court chose to tackle the issue by briefly stating that taking into account the content of the FCCA's decision, the appellant had the right of appeal.
This brief mention leaves room for speculation. To what extent is the Supreme Administrative Court's conclusion affected by the particulars of the case? How? Is this an endorsement of a more general right of appeal by competitors or customers of allegedly dominant companies? A definitive answer cannot be derived from the Supreme Administrative Court's laconic assessment.
To conclude, the right of appeal of parties that have lodged a request for action to the FCCA is not set in stone. It seems clear that the mere act of requesting action does not by itself establish a right of appeal when the request is dismissed. A direct effect is needed - but finding such an effect seems to be a real possibility nowadays instead of a futile attempt to get a FCCA dismissal re-examined.
The Finnish Parliament has approved the government proposal concerning the replacement of the current renewable energy feed-in tariff system with a new premium scheme on 23 May 2018. The Government has now issued a decree on the entry into force of the amendments to the Act on Production Subsidy for Electricity Produced from Renewable Energy Sources. The amended Act will enter into force on 25 June 2018.
The Ministry of Economic Affairs and Employment further announced that the first and only auction round under the premium scheme will take place in November-December this year. The annual electricity production available for auction is 1.4 TWh.
The Parliament is currently in discussions to approve the budget authority for government subsidy for the annual production of up to 1.4 TWh as proposed in the first supplementary budget for 2018. The premium would be paid for 12 years. It is estimated that the first instalment of the premium would be paid in 2020.
Please see our article on the draft government proposal for the new renewable energy subsidy reform here.
The premium scheme is a technology neutral support system based on auction process organised by the Finnish Energy Authority. Wind, solar, wave, wood fuel and biogas power plants can participate in the auction. Hydro power is excluded from the scheme.
The winners of the auction are those fulfilling the rather strict legal criteria and placing the lowest bid. The bid has to include the premium required for the project, the annual electricity production of the power plant as well as, for wind power projects, the number of wind turbines to be constructed.
The participation criteria include seven project-specific participation criteria and financial criteria.
The project-specific participation criteria are:
Furthermore, the power plant's maximum annual electricity production cannot exceed the production targeted by the auction.
In addition to the project-specific criteria, there are financial criteria that the project must fulfil in order to be eligible for the auction. The power producer must submit a EUR 2,500 non-refundable participation fee and deposit a participation guarantee of EUR 2 per MWh multiplied by the annual electricity production of the power plant.
Further, upon acceptance to the premium scheme the power producer must deposit a construction period guarantee. The amount of the guarantee is EUR 16 per MWh multiplied by the annual electricity production.
The power producer has to complete the power plant project in set timelines and produce a set amount of electricity to avoid any sanctions that may follow any underperformance. The project must be at least partially connected to the grid within three years and the entire power plant project must be completed within five years from the acceptance date to the new scheme. If the project is delayed from the set timelines, the construction period guarantee will be withheld at least partially.
If the power producer does not produce on average at least 75% of the annual electricity production offered in the bid within the first four-year period, or at least 80% thereof within the second or third four-year period, the power producer must compensate the underproduction to the Finnish Energy Authority. The underproduction compensation is calculated as the shortfall of the produced annual average electricity production multiplied by the quoted premium.
The auction is a pay-as-bid auction where the winning bidders receive premiums in accordance with their respective bids. The premium support is capped at annual average electricity production over three four-year periods or, if the production cap is not reached earlier, at maximum 12 years.
The premium support is a combination of a fixed and reduced premium. When the electricity market price is equal or lower to EUR 30 per MWh (floor price), the power producer is paid the premium that they bid for.
When the electricity market price is higher than EUR 30 per MWh, the difference between the electricity market price and the floor price is reduced from the premium that the power producer bid for. The formula for calculating the reduced premium is: Bid premium – (Electricity market price – EUR 30 per MWh).
The Energy Authority will provide further instructions on the practical implementation and timetables for the electricity producers participating in the auction on its website in July.
Krogerus' Energy and Infrastructure team will continue monitoring the progress of the new premium scheme and the information to be published by the Energy Authority next month.
On 11 April 2018, the European Commission proposed what is being referred to as a "New Deal for Consumers". The purpose of the New Deal is to ensure that consumers benefit fully from the rights granted to them under EU law.
The New Deal will:
• introduce collective redress and administrative fines throughout the EU;
• enhance online consumer protection; and
• tackle the dual quality of consumer products marketed in different Member States.
Although the New Deal is primarily intended to enhance consumer rights, it also includes certain changes that will benefit businesses by reducing some of their administrative burdens.
The New Deal will ensure that consumers in all Member States are able to claim individual remedies when they are affected by unfair commercial practices. In addition, the New Deal will empower certain qualified entities, such as consumer organisations, to launch representative actions seeking injunctions and collective redress (e.g. compensation, replacement or repair) on behalf of consumers. These entities will also be able to negotiate a settlement on such redress with the relevant trader. This settlement must be approved by a court or administrative authority. In each case, the relevant trader will be obligated to inform consumers about a final decision and the necessary steps to benefit from redress.
The New Deal will also introduce stronger sanctioning powers for Member States' consumer authorities, enabling them to impose effective, proportionate and dissuasive penalties in a coordinated manner. For widespread infringements affecting consumers in several Member States, the New Deal will provide for a maximum fine of at least 4% of the trader's annual turnover in each Member State in which the infringement has taken place. However, Member States will also have the option of adopting higher maximum fines.
The New Deal will increase transparency in online marketplaces by requiring that consumers must be clearly informed of the main parameters determining the ranking of search results, whether the party they are contracting with is a trader or a private person, and whether or not consumer rights stemming from EU law will apply to the contract. Moreover, in all types of online platforms consumers will need to be clearly informed of which search results are being paid for by a trader.
The New Deal will also extend the 14-day withdrawal right consumers have in distance sales to "free" digital services for which consumers do not pay with money but by providing their personal information, for example, for marketing purposes. Services to which this withdrawal right will typically apply include email and social media services.
To ensure that consumers are not misled about the quality of the products they are purchasing, the New Deal will prohibit traders from marketing a product as being identical to the same product being marketed in several other Member States if their composition or characteristics are substantially different.
For example, it will be prohibited to market chocolate containing less cocoa in one Member State using the same branding and packaging that is used in several other Member States where the cocoa content of the product is higher.
The New Deal will benefit businesses operating online stores by lifting the obligation to accept returns of goods that have already been used rather than just tried in the same way as in a physical store. Moreover, such businesses will no longer be obligated to reimburse consumers merely on the basis of proof that goods have been sent back. Instead, they will be allowed to withhold payment until the returned goods have actually been received.
As regards online communications with consumers, more flexibility will be introduced by allowing web forms and chats to be used instead of email, provided that consumers can keep a record of their communications with the trader.
The New Deal, which comprises two proposals for Directives, will next be discussed by the European Parliament and Council. If adopted, the Directives will still need to be transposed into national law by each Member State. Therefore, it is currently still unclear if and when the New Deal will enter into force.
Krogerus will monitor and publish updates on the progress of the New Deal.
In Finland, as elsewhere, the law dictates that the commercial nature of marketing activities and the party on whose behalf they are being carried out must be clearly disclosed. When advertisements were still confined mainly to print, television and radio, these obligations were relatively straightforward to fulfil. However, the rise of social media and influencers has blurred the line between editorial and commercial content.
No binding rules exist on exactly how marketing should be identified as such on social media. According to a position on covert advertising, issued by the Nordic Consumer Ombudsmen in May 2016, an overall assessment must always be carried out to determine whether commercial content is adequately marked. Factors such as the choice of wording, font size and the placing of the relevant information will be taken into account in this assessment.
Case law on covert advertising is still lacking in Finland. Recently, however, the Consumer Ombudsman and the Finnish Council of Ethics in Advertising (a self-regulatory body of the Finland Chamber of Commerce) have given a number of decisions and statements clarifying how they consider influencers should indicate the commercial nature of paid promotions and other similar collaborations on various social media platforms.
All of the decisions and statements given so far have concerned B2C marketing. However, the prohibition on covert advertising applies also to B2B marketing. Therefore, the guidance provided by these decisions and statements is likely to be useful also to B2B marketers.
In January 2017, the Council gave a statement concerning a blog post published by a popular lifestyle blogger (MEN 1/2017). The blogger had been invited by a Finnish food company to visit a poultry farm and a slaughter house. The blogger had also been paid by the food company to write about their experience.
The resulting blog post, which had a positive tone, was marked "in collaboration with Company X", as recommended in the Finnish Consumer Ombudsman's guidelines on the recognisability of advertising in blogs. Nevertheless, the Council found that it was not possible for the average consumer to notice, at a first glance, that the blog post was in fact marketing.
According to the Council, the aforementioned text was not easily visible, clear and understandable. Rather, it was small-sized and it blended in with the content of the blog. Moreover, the Council considered that the expression "in collaboration with" did not clearly express to the average consumer that the collaboration was commercial in nature.
The Council recommended that expressions such as "advertisement" or "commercial partnership" (together with the name of the company or brand) should be used instead. In addition, attention should be paid to ensuring their visibility.
Nevertheless, due to the lack of case law on covert advertising on social media, and because the company and the blogger had tried to comply with the Consumer Ombudsman's guidelines, the Council exceptionally deemed that they had not acted contrary to good practice.
Videos posted by influencers on YouTube have been subject to the greatest scrutiny by the Consumer Ombudsman and the Council. To begin with, in June 2016, the Council gave a statement concerning 15-minute video of a popular gaming vlogger playing and commenting on a particular game as part of a campaign organised for the game company by an influencer network (MEN 13/2016).
At the top of the top of the description box underneath the video, the text "this video is sponsored by Company X" was displayed in both English and Finnish. On the video, the vlogger mentioned, among other things, that they wanted to encourage viewers to get the game.
Nevertheless, the Council found that the video was not readily recognisable as an advertisement for the game. The Council reasoned (somewhat controversially) that although sponsorship is a form of marketing, it was misleading to say that the video was sponsored, because in sponsored audiovisual content it is prohibited to encourage the purchase of the sponsor's products.
Next, in a decision given in February 2017, the Consumer Ombudsman deemed that a music video created as a part of a commercial partnership between a well-known Finnish singer-songwriter and an international construction products brand constituted covert advertising, because it included numerous references to the brand and could be accessed also through other sources than just the brand's own YouTube channel and Facebook page.
According to the Consumer Ombudsman, consumers searching for or coming across the artist's music would not expect to be exposed to marketing, unless they were specifically informed of this. Displaying the brand's logo and name as a small-sized overlay and below the title of the video was insufficient, because these were not visible if consumers shared the video on other social media platforms.
Subsequently, YouTube has added a paid promotion disclosure feature, which displays a text overlay, reading "includes paid promotion", for the first few seconds a viewer watches a video. However, in a newsletter published by the Consumer Ombudsman in November 2017 and two statements given by the Council in December 2017 (MEN 37/2017 and MEN 38/2017), the use of this feature alone has also been deemed insufficient, because it does not indicate who the marketer is.
According to the Consumer Ombudsman and the Council, vloggers should mention orally at the beginning of each video, whose products they are promoting. In addition, because videos are often watched with the sound turned off, a text such as "commercial partnership with Company X" should be displayed both at the beginning of the video and at the top of the description box underneath it, so that this text is visible without expanding the description box.
Most recently, in January 2018, the Council gave a statement concerning a photograph posted by a Finnish top athlete on Instagram (MEN 4/2018). The photograph showed the athlete skiing with the products of one of their sponsors displayed in the foreground. The caption below the photograph contained information on how those products could be won, as well as several branded hashtags.
According to the sponsor, the athlete had created the post at their own initiative. However, the sponsor conceded that the post was marketing and should have been marked as such.
The Council found the post to be contrary to good practice. According to the Council, if the commercial nature of an Instagram post is not apparent from the photograph itself, the caption below the photograph should begin with an appropriate mention of this. However, such a written mention alone would be insufficient.
According to the Council, because Instagram users often browse photographs without their captions, a photograph posted as part of a commercial partnership should in itself be marked in a way that indicates its commercial nature. The Council did not provide more specific guidance on how this should be done.
Social media users should be able to tell at a first glance that the content they are viewing is commercial in nature. They should also know immediately on whose behalf it has been published. The Consumer Ombudsman and the Council have taken a strict view on what type of indications are necessary in order to meet these requirements – to some extent stricter than that taken, for example, by the Swedish Patent and Market Court in a recent judgment concerning influencer marketing.
At least insofar as B2C marketing is concerned, a single mention of a commercial partnership will probably be insufficient. Instead, when the platform being used enables multiple means of communication, information on the commercial partnership should be communicated through all of these means using unambiguous wording, such as "commercial partnership with Company X". Care should be taken to ensure that this information is visible even when the content is shared on other platforms.
By law, a company is generally always liable for the marketing of its products, even if that marketing has been carried out by a third party, such as an influencer. Therefore, in order to minimise exposure to liability risks, companies engaging in commercial partnerships with influencers – whether directly or through an influencer network – should make sure that those influencers receive and abide by clear guidelines on how the partnership should be disclosed.
Finally, as to the question posed in the title: Yes, this is an #ad for the legal services provided by the author and their employer, Krogerus.
The Finnish Ministry of Finance has published a draft government proposal concerning new interest limitation rules. Changes to the regime have been much awaited since it is known that the current Finnish rules are not fully compliant with the rules laid down in the EU Anti-Tax Avoidance Directive.
Based on the proposal, the new rules in a nutshell:
The new limitations are planned to take effect as of the beginning of 2019.
The Ministry of Economic Affairs and Employment has published a draft government proposal for a new subsidy system, 'premium scheme', for promoting electricity production from renewables by means of inviting tenders.
The premium scheme would be intended as a transition period solution between the feed-in tariff system and future development needs of renewable energy sources on market conditions. The objective is to invite tenders for a total of 2 TWh of annual electricity production. The Ministry has circulated the proposal with comments due on 4 October 2017.
According to the draft proposal, the key elements of the new premium scheme are:
The bidders are required to determine in connection with their bid the first tariff period (i.e. calendar quarter) as of which the right to receive premium should commence. The first tariff period must be at the latest the following calendar quarter after three years have lapsed from the acceptance date.
Moreover, the entire project should be completed within five years as of the acceptance date. Unless the project is at least partially connected to the grid within the aforementioned three-year period or fully completed within the aforementioned five-year period, the acceptance decision will expire. The Finnish Wind Power Association has questioned if the time limitations should be shorter.
In the current proposal it is unclear if it will be possible to change afterwards the first tariff period determined in the bid. The draft government bill remains silent in this respect and does not provide guidance whether advancing or postponing the first tariff period is later allowed. The Finnish Wind Power Association has also acknowledged this potential issue and presented inquiries in this respect with the Ministry of Economic Affairs and Employment.
The outcome would be unreasonable if the provision would allow to advance the first tariff period but prohibit the postponing thereof thus exposing the energy producer to sanctions only in case of postponing. If that would be the case, it would always be advisable to set the first tariff quarter to the latest possible moment, and in case of large wind power projects comprising of several turbines, even to split the project in smaller units, to minimise the risk of sanctions.
A fair solution would be to enable the energy producer to freely change the first tariff quarter within the three-year period depending on the progress of the construction works. This would improve the equal treatment of large and small wind power projects as the large projects take more time to construct and are subject to higher risk of delay in construction works.
In particular large power plant projects require flexibility as a number of reasons can cause changes to the estimated construction schedule. If the proposed premium scheme would not allow changing the first tariff period (within the three-year maximum period) after submitting the bid, an optimal tariff period may not be necessarily achieved which may in turn lead to financing issues. If changing of the first tariff period would not be allowed in the proposed premium scheme, one should be very cautious about being too optimistic with the construction schedule, also considering strict sanctions attached to underperformance.
According to the proposed premium scheme, if the bidder does not produce on average at least 75% of the offered annual electricity production within the first four-year period, or at least 80% thereof within the second or third four-year period, the bidder must compensate the underproduction to the Energy Authority. The underproduction compensation is calculated as the shortfall of the produced annual average electricity production multiplied with the quoted premium.
In addition, if the power plant is not entirely connected to the grid within the three-year period, the Energy Authority will withhold a share of the construction period guarantee pro rata compared to the amount of capacity not connected. The construction period guarantee is proposed to be EUR 16/MWh. In such case, the bidder will also not receive full amount of premiums as less electricity is being produced.
To participate in the auction, a power plant project must be of a specific size. The draft proposal sets limits to both minimum and maximum power output levels, the maximum being the capacity targeted by the auction. Projects exceeding the capacity auctioned are excluded from the auction. If a project fits the premium scheme only partially due to capacity already reserved by other bids, or if two or more projects are tied in their bids, such projects can be accepted to the system partially provided that they have both consented to partial acceptance to the premium scheme in their bids.
There is potentially a significant risk involved for a project to consent in advance to partial acceptance to the premium scheme. Presumably most bids are calculated on the assumption that the entire, or most, of the capacity will be finally accepted to the premium scheme in order for the bid to be as cost-effective as possible. If at the end only a portion of the capacity is accepted to the premium scheme, the project may not be economically viable with the quoted premium.
It is problematic requiring the bidders to consent to partial acceptance beforehand when it is not known how much capacity will be left for the partial acceptance. A more reasonable approach would be to ask the bidders if they consent to partial acceptance afterwards once it is known how much capacity will be left.
Requirements relating to the project size may result in a need to rearrange the project structure, especially in case of large wind farms and, to the extent possible, projects that are partially accepted to the premium scheme. Such rearrangements may take time and should be initiated as soon as possible.
A binding decision about ordering the required equipment or commencing construction would exclude the energy producer from the premium scheme. The wording of the draft government bill is not very successful in this respect as project companies do not necessarily make any formal decisions on when to commence construction or to order the required equipment.
The proposed premium scheme requires that in order to participate in the auction the land use planning and the construction permit must be legally valid and binding.
As there are typically various different permits required for a renewables project, the formulation of the proposed provision is not optimal as the mentioned permits do not necessarily mean that the project is ready-to-build. The important question is whether the construction can be commenced without undue delay after having obtained acceptance decision. However, the proposed severe sanctions attached to non-performance or underperformance are likely to ensure that only realistic projects will finally participate in the auctions.
It should also be noted that a government proposal on the amendment of Section 14 in the Finnish Real Estate Tax Act has been issued on 31 August 2017. The proposed amendments concern the taxation of wind power plants.
Pursuant to the current legislation, wind farms with a nominal capacity of maximum 10 MVA are subject to the general real estate tax rate of between 0.93% and 1.80%, as decided by a municipality. In accordance with the proposed Act, the 10 MVA threshold would, however, apply to the aggregate nominal capacity of all turbines connected to the grid through the same connection point.
The proposed amendments would affect wind farms that are currently subject to the general real estate tax, but that have an aggregate nominal capacity exceeding the 10 MVA threshold provided for in the Act. Wind farms exceeding the threshold could therefore be subject to a separate real estate tax rate of 3.10%, at its maximum.
The proposed Act has been sent to the Finance Committee for its committee report and is subject to the Finnish Parliament's approval. The rules are intended to be applicable as of fiscal year 2018. The adoption of the aforementioned amendments would undoubtedly weaken the wind power plants' competitiveness in the auction.
If approved by the Parliament during autumn 2017, the new premium scheme would enter into force in 2018.
Krogerus' Energy and Infrastructure team will continue monitoring the progress of the proposed new legislative amendments.
On 27 June 2017 the Finnish Parliament adopted the new Natural Gas Market Act and certain other related acts. The overall purpose of the legislative package is to open the Finnish natural gas markets for competition in connection with the commissioning of the Balticconnector gas pipeline between Finland and Estonia. At the same time, new legislation limiting the price increases of fees for electricity and natural gas distribution and transmission services was adopted.
The natural gas market has not been opened up to competition as the isolated market exception contained in the EU Directive concerning common rules for the internal market in natural gas (2009/73/EC) has been applied in Finland. The key aim of the package, i.e. to increase competition in the supply of natural gas originating from renewable sources, originate from the Finnish Government's report on national energy and climate strategy to 2030. Another aim is to improve the competitiveness of natural gas through lesser regulation by abolishing for the most part the specific regulation of the pricing of natural gas.
The aim is also to create the conditions for Finland to participate in the EU internal market for natural gas and to create a regional market in Finland and the Baltics. The political decision to participate in the regional gas market covering Finland and the Baltics will be made at later stage when the market model and preconditions are known.
The legislation also aims to prevent unreasonable increases of fees for electricity and natural gas distribution and transmission services.
The key content of new legislation includes:
The wholesale and retail markets for natural gas will be opened for competition starting from the beginning of 2020. Gas networks will be opened for competing suppliers and the gas users will have an opportunity for obtain gas from various suppliers. Pricing regulation in the wholesale of natural gas is removed and the obligation to supply gas at the wholesale level is limited to wholesalers having significant market power and covers only wholesales of natural gas imported from Russia to retailers. Regulation concerning the retail sale of natural gas is decreased to cover small customers using gas for household purposes.
The liberalisation of the gas market in Finland may open up new business models and possibilities for various market players. Such opportunities may be increased should Finland join the wider regional market in the future.
The unbundling will be achieved by the so-called effective unbundling model in the EU Directive 2009/73/EC. According to the preparatory materials, this will best ensure that the transmission system operator acts as a neutral developer of marketplaces towards new entrants and the overall benefits will be taken as the starting point for development of the transmission system and the marketplace.
In practice this will mean a solution similar to the electricity industry where the transmission system operator cannot be owned by parties active in production or supply. The new transmission system operator needs to be certified in accordance with the procedures laid out in the new special Act, EU Directive 2009/73/EC and EU Regulation 715/2009.
The transmission system is seen as a part of the critical energy infrastructure the Finnish State will have control and majority of ownership in. The Economic Committee of the Parliament saw it important to start preparations to combine the operations of the unbundled transmission system operator and Baltic Connector Ltd., the state-owned undertaking which will operate the Balticconnector pipeline between Finland and Estonia.
Due to the requirements of the European Commission, the new Natural Gas Market Act will as a main rule cover all LNG facilities, including those that are not connected to the main gas grid. Exceptions to this include facilities serving the end-user's own needs only that are not used to importing LNG. Third party access of suppliers and users to the LNG terminals will cover the entire service chain. Tariffs and terms will be confirmed and supervised by the Energy Authority.
A new provision will be introduced to both the Electricity Market Act and the Natural Gas Market Act that contains an annual ceiling of 15 % for increases both distribution and transmission service fees. The increase will be compared to the preceding 12 months period on a sliding scale so that increases occurring in the following year will be taken into account. The increases will be considered on the basis of client groups. A secondary assessment method was introduced to electricity service fee increases at the transmission and high voltage distribution systems during the Parliamentary process.
The Energy Authority continues to supervise the overall reasonableness of the distribution and transmission fees through its regulatory methodology. However, the provision does not limit the distribution of e.g. dividends and other group contributions to the owners of the system operator, as was proposed earlier by the Energy Authority.
The new Natural Gas Market Act shall enter into force on 1 January 2018, but the new provisions concerning unbundling of the transmission system and opening of the natural gas market will not enter into force until 1 January 2020.
The provisions limiting price increases of electricity distribution and transmission services shall enter into force already during autumn 2017.
On 24 November, the Finnish Government released its Climate and Energy Strategy for 2030. The new strategy was especially awaited by the power producers from renewables who are eager to know what the future holds for them after the current feed-in tariff regime. The strategy confirms that a new technology neutral operating subsidy scheme for promoting investments in power generation from renewables will be put in place based on competitive tendering process.
The strategy still remains silent on details of the new subsidy scheme, but it targets an increase of 2 TWh of additional production from renewables in Finland by early 2020. This can be converted to roughly 600–800 MW of additional capacity. The target is rather modest given that there are already 6 TWh of almost fully permitted wind power projects in the development pipeline, but the new subsidy scheme will offer a second opportunity for the most cost-efficient and competitive projects.
Finland is committed to increase the share of renewables of final energy consumption to over 50 per cent by 2030 and to reach total carbon neutrality in 2050. The new strategy proposes concrete measures in order to achieve those goals. Amongst other things, the Finnish government envisages that a further interim subsidy scheme is still required to incentivise electricity production from renewable sources to achieve Finland's targets for the renewables for 2030. The new subsidy scheme must be cost-efficient and technology neutral.
Competitive tendering process will be arranged during 2018–2020 on the basis of which operating subsidy will be granted to selected renewables projects. The current feed-in tariff subsidy scheme will no longer be available for wind power projects, but the projects that have already been approved to the current feed-in tariff system remain unaffected.
The long-term target of the Finnish Government is that investments in renewables sector are made without any public incentive mechanisms once the renewables technologies have matured.
The new operating subsidy will be paid only to the most cost-efficient and competitive renewables production investments that will be decided on the basis of a competitive tendering process. The details on the tendering process are still unknown and the strategy remains silent on, among others, how many times auctions will be arranged, how the premium payable for the selected project will be determined and for how long the premium will be paid.
However, it is now confirmed that the auctions will be arranged during 2018–2020 and the selected projects are expected to be in production early after 2020. After that the Finnish government will again reassess the need for additional subsidy schemes to reach its targets.
Based on past experience from the current feed-in tariff subsidy scheme, the new operating subsidy will not be granted in the form of a price guarantee, but rather as a fixed or flexible premium that can be adjusted on the basis of the electricity market price and the emission allowance price, or possibly a combination thereof.
A working group appointed by the Ministry of Employment and the Economy have previously stated that a fixed premium would be the best by means of functionality of the electricity markets and that it would also improve the predictability of the amounts that need to be reserved from the state budget for the subsidy scheme (for further information about the outcomes of the working group, please also visit krogerus.com/feed-in-tariff-is-closing).
Some conclusions can perhaps be made from the Finnish Government's estimate that around MEUR 278 (MEUR 13 in 2020 and MEUR 265 in 2021–2030) of public funding is required for the new subsidy scheme in case the electricity price assumptions set out in the white paper prove to be accurate. As no final decisions have yet been made, the exact form and amount of the subsidy remains to be seen.
The new subsidy scheme will be open for all power generation projects from renewable sources. However, according to the Finnish Government the health effects of wind power need to be thoroughly studied before wind power projects may be admitted to the new system, which is a result of ongoing political debate in Finland about the alleged, but unconfirmed, health effects of wind power projects. In addition, inclusion of small scaled wood fuelled CHP plants to the new subsidy scheme will be separately investigated by the Finnish Government.
The more detailed preparatory work on the new subsidy scheme now continues on the basis of the released strategy, including assessment of alleged health effects of wind power. It is expected that the new strategy will have an effect on at least the Finnish wind power market and requires that the market participants re-assess their position in the market.
In a long-anticipated ruling given on 16 August 2016 (KKO 2016:49), the Finnish Supreme Court confirmed that charging consumers for printed invoices cannot automatically be prohibited as unfair. Instead, the acceptability of additional fees applied to certain invoicing methods must be assessed on a case-by-case basis.
Following the rise in popularity of various electronic invoicing methods, some businesses have started charging their customers for printed invoices. The Finnish telecommunications operator Elisa is among these. In February 2013, Elisa announced that it would raise the additional fee it charged consumers for printed invoices from EUR 0.95 to EUR 1.90.
Elisa's announcement provoked an intervention from the Consumer Ombudsman who demanded that Elisa must provide consumers with printed invoices free of charge.
Elisa refused to comply. It argued, among other things, that printed invoices are costly for it to produce and send, that electronic invoicing is more ecological and promotes the development of the information society, and that all consumers wishing to avoid paying the additional fee have a number of free electronic invoicing options available to them.
Not satisfied with Elisa's reasoning and wanting to set a precedent, the Consumer Ombudsman took the matter to the Market Court.
The Consumer Ombudsman claimed, among other things, that charging consumers an additional fee for printed invoices entails commercialising a basic element of the contractual relationship between a business and a consumer. This must be deemed unfair within the meaning of the Consumer Protection Act ‒ especially because consumers without internet access are unable take advantage of the free electronic invoicing options on offer.
In its ruling, the Market Court took the middle ground and prohibited Elisa from charging consumers an additional fee of EUR 1.90 or more for printed invoices. According to the Market Court's reasoning, a fee that size could not be considered insignificant in relation to what a consumer typically pays to use Elisa's services. Therefore, it was unfair. In addition, the Market Court stated that also a fee lower than this could be unfair.
Both Elisa and the Consumer Ombudsman petitioned for and were granted leave to appeal to the Supreme Court.
The Supreme Court overturned the Market Court's ruling and dismissed the Consumer Ombudsman's claims in their entirety.
The Supreme Court reasoned that the freedom of contract allows for businesses to agree with consumers on pricing models deviating from the typical arrangement where the cost of invoicing is included in the price of the service. Consequently, contractual provisions according to which certain invoicing methods are subject to an additional fee are not automatically unfair. Such provisions may be included in consumer contracts provided that they are clearly and comprehensibly formulated and that, under the circumstances at hand, they do not lead to an unfair outcome for consumers.
In this regard, the Supreme Court concluded that Elisa had clearly indicated in its terms of service that consumers who chose to receive printed invoices would be charged an additional fee. The Consumer Ombudsman had not even claimed that this fee would have been disproportionately high in relation to the costs actually incurred by Elisa for providing printed invoices. Therefore, charging the fee could not be considered unfair.
On the contrary, the Supreme Court acknowledged that prohibiting Elisa from charging an additional fee for printed invoices would probably have led Elisa to include the costs associated with providing such invoices in the prices of its services. As a consequence, also those consumers who had chosen less costly invoicing options would have ended up bearing a portion of these costs.
With respect to the argument that not all consumers have internet access, the Supreme Court took the position that although businesses providing essential services, such as telecommunications services, must offer consumers at least one invoicing option not requiring internet access, it is not necessary for this invoicing option to be free of charge.
The Supreme Court's ruling confirms that it is possible for businesses to charge additional fees from consumers who choose to receive printed invoices or to use other invoicing methods entailing extra costs for the business. However, such fees must be clearly specified in the business' terms of service. Moreover, to help ensure that such fees are able to withstand possible later scrutiny, they should be set proportionate to the actual costs associated with the invoicing method in question.
The question of whether businesses are allowed to impose additional fees for all invoicing options is somewhat unclear from the Supreme Court's ruling.
During the course of the proceedings, both the Consumer Ombudsman and the Market Court supported the idea that at least as far as paying by invoice is the only possible payment method, businesses must offer consumers at least one free invoicing option. Although such a requirement cannot be traced back to any specific legal provision, the Supreme Court also referred to it ‒ albeit only in passing ‒ as being based on the general principles of obligation law.
Considering the ambiguity of the Supreme Court's ruling in this regard, it is advisable for businesses to make sure that at least one free invoicing option is made available to consumers. This can be done, for example, by using various electronic means such as email or e-invoice services. Also, because according to the Supreme Court, there are no formal requirements on how an invoice should be delivered, even a free text message containing all of the necessary payment information may be considered sufficient ‒ as it was in the case at hand.
Companies that shift profits out of the jurisdiction of their operational activity to lower tax countries are facing increased scrutiny. This phenomenon, dubbed Base Erosion and Profit Shifting or BEPS by the OECD, is attracting the attention of the Finnish Tax Administration.
Three common ways for companies to shift profits abroad include special purpose entities, transfer pricing and hybrid mismatches. The Finnish Tax Administration is now using its audit power to stop what it sees as illicit profit shifting.
Of particular interest in Finland is transfer pricing. The Tax Administration is also reviewing cross-border related investments and corporate structures.
If your company gets audited, there are certain steps to consider. The earlier appropriate action is taken, the likelihood is increased for a more favourable (or at least less painful) outcome.
The Finnish tax regime is affected by the OECD's Base Erosion and Profit Shifting (BEPS) report, which was finalised on 5 October 2015. It provides guidelines on how member countries can close the gaps in existing international rules allowing companies to artificially shift profits out of the jurisdiction of operational activity.
Further, the Communication from the Commission to the European Parliament and the Council addressing a Fair and Efficient Corporate Tax System in the European Union ("Communication"), released on 17 June 2015, suggests a new approach to corporate taxation to meet the goal of fairer and more efficient taxation and to effectively tackle corporate tax avoidance in the European Union.
Both the BEPS report and the Communication are essentially politically driven and have evidently put significant pressure on the tax administrations of OECD member countries – accordingly, also in Finland.
As a consequence, the Finnish Tax Administration has initiated a great number of tax audits focused, in particular, on transfer pricing of multinational enterprises.
Interestingly, the issues under scrutiny in tax audits are based essentially on civil law originated arrangements. They typically involve a number of specific constructions of law, such as intellectual property rights of significant value.
The issues involved tend to be complex and often involve multiple parties in various jurisdictions, as well as tax administrations in different countries.
Furthermore, since taxation is based on transactions emanating from civil law, for example, licensing of a trade mark or patent portfolio, the complexity is significantly enhanced, as these transactions need to be correctly identified both in accordance with their civil law form as well as with respect to the applicable tax rules.
Once a tax audit is initiated by the Finnish Tax Administration, a company should first realise that this is typically the beginning of relatively lengthy legal proceedings. Accordingly, the better the case is built right from the beginning, the better the eventual outcome will be.
Taxation is essentially about information on facts and circumstances laying the foundation for the tax assessment. In other words, a tax assessment is about finding out the underlying truth realised in any given tax year under scrutiny.
Furthermore, the ultimate truth can never be found, unless the descriptions of the facts and circumstances relevant to the assessment are understood in a way reflecting the factual context.
The ultimate purpose of a tax audit carried out by the Finnish Tax Administration should be to find out whether the information provided by a taxpayer is correct and adequate in order to have its taxation assessed in accordance with law.
Accordingly, when facts are under scrutiny in a legal proceeding, there is always the issue of burden of proof and, in particular, the question of who is the party upon which such burden can be laid. This is definitively the case also with tax audits.
There are two principal areas of focus in building up a tax case: the first is the factual context and how it is addressed between the taxpayer and the Finnish Tax Administration. The second focus area is the preparing of the documents of correspondence between the parties involved.
Both of the focus areas need to be structured as if one would be preparing for the later stages of appellate proceedings. The facts and circumstances need to be clear and correctly in place and the documents drafted need to be explaining the case convincingly and in an understandable language. Also, the legal framework has to be implemented properly.
Companies may wish to examine their existing or contemplated tax arrangements to assess their potential risk for an audit.
By taking a proactive role, companies are better prepared if an audit is initiated and can mitigate any detrimental effects to operational activity.
On 2 February 2016, the European Commission and the United States agreed on a new framework for transatlantic data flows. Instead of "Safe Harbor", the new agreement is called the "EU–US Privacy Shield". The EU member states and the European Parliament still need to approve the arrangement in the upcoming days.
The new framework should provide legal certainty to companies after the confusion caused by the Schrems ruling [see: Safe Harbour No Longer] of the Court of Justice of the European Union on 6 October 2015, in which the court declared the Commission's endorsement of the Safe Harbour arrangement invalid.
The new arrangement will impose more stringent obligations on US companies to protect the personal data of EU citizens. It will also impose stronger monitoring and enforcement obligations on the US Department of Commerce and Federal Trade Commission, for example, through increased co-operation with European data protection authorities.
The agreement includes the following provisions:
The implementation of the arrangement will be subject to annual joint reviews to monitor the functioning of the arrangement. The European Commission and the US Department of Commerce will conduct the review and invite national intelligence experts from the United States and European data protection authorities to participate.
The day after the conclusion of the negotiations, on 3 February, the Article 29 Working Party, representing EU's data protection authorities, published its reaction to the agreement.
The Working Party welcomes the agreement and will now assess whether the arrangement is sufficient considering the right to respect for private life and data protection enshrined in European fundamental rights law. The Working Party will analyse the result of the negotiations in the light of the essential guarantees for intelligence activities elaborated in the jurisprudence of the European Court of Justice.
The European Commission will prepare a draft "adequacy decision" in the upcoming weeks, which could then be adopted by the College of Commissioners at the European Union after obtaining the advice of the Article 29 Working Party and after consulting representatives of the EU member states.
The United States, for its part, will make the necessary preparations to enforce the framework, monitoring mechanisms and the Ombudsperson.
Once found adequate by the Commission, the Privacy Shield agreement will provide a valid legal basis for transatlantic data flows, thereby removing the enforcement uncertainty currently facing European companies that have not switched from using the now-defunct Safe Harbour.
In welcoming the agreement, the Article 29 Working Party also confirmed that so-called standard contractual clauses and binding corporate rules can still be used for transferring personal data to US companies and services.
At the same time, however, the Working Party communicated that, once the full assessment of the Privacy Shield documentation has been carried out, it will provide an overall statement of validity on all methods of transferring personal data to the United States.
The last word has not been said on this subject, so stay tuned.
A working group recently submitted its report on a possible new subsidy scheme for wind power and other forms of renewable energy. The report is issued as part of preparations for the latest national energy and climate strategy. It will next move to political decision-making. It is estimated that any new subsidy scheme will take effect, in the earliest, in 2018.
On 13 May 2016, the Working Group for Developing Subsidy Schemes for Renewable Energy appointed by the Ministry of Employment and the Economy submitted its report to Olli Rehn, the Minister of Economic Affairs.
The starting point of the review was to evaluate how the objectives concerning the increase of the share of emission-free renewable energy and self-sufficiency could be achieved in a technologically neutral and cost-efficient manner, while ensuring the preconditions for the long-term development of new technology solutions and renewable energy projects.
For this purpose, the working group evaluated whether a model based on investment aid, operating aid or certificates best fulfils the goals set for the new support scheme for renewable energy. The group also considered competitive bidding process as a part of the new support system.
The working group reviewed the support schemes for the production of industrial scale renewable electricity and the combined heat and power generation. In addition, the objective was to achieve a clear and consistent support scheme, and efficient management and control of subsidies granted.
The report of the working group did not include a clear recommendation for the support system but mainly analysed the different alternatives for the political decision-making process.
It seems, however, that, according to the working group, the most suitable support model for renewable energy going forward would be the operating aid scheme based on a bidding process.
According to the working group, the operating aid scheme, which is based on a technology-neutral competitive bidding process, would be a cost-effective way to guarantee an increase to the production capacity for electricity that uses renewable energy in Finland. It would also facilitate compliance with EU rules on state subsidies and requirement for technology-neutrality.
The scheme can be made flexible and such that it reacts quickly to changes concerning the need to increase the share of renewable energy. It can be implemented in a number of different ways, and the applied procedure can be developed on the basis of experiences.
The operating aid scheme would be financed from the state budget. According to the working group, the scheme can be considered as the best alternative from the project developer's risk perspective if the project is not a demonstration project for new technology.
The working group did not give guidance on the applicable subsidy level but stated that the subsidy level can be a flexible premium adjusted on the basis of the electricity market price and the emission allowance price or a fixed premium, or a combination thereof. The working group considers that a fixed premium would be the best by means of functionality of the electricity markets. It would also improve the predictability of the amounts that need to be reserved from the state budget for the subsidy scheme.
The working group's report also included a summary on how the bidding process could be set up. According to the working group, the bidding process should be based on long-term general plan that would include, among others, estimates of need for increase of electricity that uses renewable energy, functionality of the electricity markets and electricity systems and number of bidding processes. These estimates would be adjusted annually and the timing and volumes of annual bidding processes would be decided on the basis of such adjusted targets.
There would be at maximum two bidding processes annually. Bids could be approved annually up to the amount of the production volume (MWh) determined in advance, taking into account also the amount reserved from the state budget for the entire subsidy period. The actual subsidy level would be determined based on the bidding process, and it could be based at first stage on a clearing price model (i.e. highest accepted bid) and later on "pay-as-bid" model. The accepted bids would receive premium for a maximum period of 10 or 12 years.
The bidding process would be technology-neutral and all electricity producers that fulfil the economical and operational criteria are allowed to participate in the bidding processes. However, it would be possible to categorise bids based on different production profiles, for example, based on adjustability of the production. In connection with bidding, each bidder must provide a security, the amount of which is determined on the basis of production volume (EUR/MWh), and pay a non-refundable participation fee.
The winning projects must be realised in accordance with the accepted bid and taken into commercial use within certain fixed time period from the date when the results of the bidding process become legally valid and binding. According to the working group, this time period could be, for example, two years but it could be prolonged for additional time period, however, at the same time, reducing the subsidy period for which the premium is paid accordingly. If the project would not be realised within such fixed time period, the electricity producer would lose the security given.
The Finnish Energy Authority would manage the subsidy scheme and organise the bidding processes, under the control of the Ministry of Employment and the Economy.
The working group analysed also the certificate scheme as a part of its work. According to the working group, the certificate scheme would facilitates an increase in the share of renewable energy cost-effectively and its main benefit from the Finnish State's perspective would be that it is funded by electricity consumers and that the scheme is market-based where only the target level for renewable energy is subject to political decision-making. Some sectors that consumes a lot of electricity and operate in international trade would be partly released from the funding obligation of the scheme.
In the certificate scheme, the project developer would receive both the market price for electricity and the price of the certificate, but, at the same time, bears the related risk for the price development. According to the working group, the higher level of risk increases the need for subsidies and may also decrease the possibilities to realise the projects.
The certificate scheme would be technology neutral, but, at the same time, the risk of over subsidising could apply to it. According to the working group, the joint certificate scheme of Sweden and Norway could be used as a basis for preparation of the national scheme but the national scheme cannot be implemented on a quick schedule. It could be in place at the earliest early 2020.
The working group expects that the national scheme alone would not be sufficiently liquid and therefore a functional scheme requires implementation of an over-national system mainly with Sweden. An over-national scheme would be more burdensome and less flexible to manage and implementation of changes thereto due to, for example, changed national circumstances would no longer be possible solely based on national decisions.
In addition, the working group states that the certificate scheme would be very similar to emission trade system as a control mechanism and may result in investments being directed to the countries where their realisation is the most cost-effective and otherwise most favourable to the electricity producer. Thus, according to the working group, there would be no guarantee that investments take place in Finland and that the joint certificate scheme would be efficient way to reach national targets for renewable energy and self-sufficiency.
As to the investment aid model, the working group considered that the discretionary investment subsidy is suited particularly for demonstration projects and the commercialisation of new energy technology, as well as specified other project types outside the EU ETS. The operating aid scheme for forest chips-based electricity is cost-effective and promotes replacement of peat with forest chips in the combined heat and power generation.
Projects approved or queuing to the feed-in tariff system
According to the working group, the new support scheme would be made compatible with the prevailing feed-in tariff system based on the Act on Production Subsidy for Electricity Produced from Renewable Energy Sources and the experiences collected from the feed-in tariff system would be utilised in the implementation of the support scheme.
The current feed-in tariff system would be closed and no acceptances for wind power plants, biogas plants or wood-fuelled power plants into the feed-in tariff system would be given.
The applications for approval into the feed-in tariff system would, however, be evaluated under the existing law in respect of such wind power plants that have already received a quota decision. Subsidies for electricity produced in plants accepted to the feed-in tariff system would continue to be paid according to the relevant feed-in tariff system approval.
The more detailed preparatory work on the new support scheme now continues on the basis of the working group's report. The work carried out by the working group is a part of the preparation of the national energy and climate strategy that will be submitted to the Finnish parliament for decision-making at the end of 2016.
The strategy will then also include the final form and scope of the new support scheme. Market participants, therefore, need to stay alert and wait for concrete decisions on the new scheme.
The Working Group for Developing Subsidy Schemes for Renewable Energy report (in Finnish) is available here.
Does your business offer products or services to consumers in Finland? In the future, you could face fines for violating certain consumer protection legislation.
Finnish consumer protection legislation is known as amongst the strictest in the world. In recent years, harmonisation on the EU level has brought about some changes towards a more lenient direction. However, in those areas that remain within the national legislature's authority ‒ such as procedural matters ‒ an opposite trend can be seen.
Most recently, a Ministry of Justice working group proposed that the enforcement powers of the Finnish consumer authorities should be expanded significantly.
In particular, the working group suggested that the Consumer Ombudsman should be given the right to petition the Market Court to impose fines for certain violations of consumer protection legislation. In addition, it suggested that it should be made more difficult for businesses to oppose, and thus void, injunctions issued independently by the Consumer Ombudsman.
In other words, in the future, you could face fines, for example, by neglecting to give certain mandatory information in your marketing targeted at consumers or for communicating such information unclearly. Also, the Consumer Ombudsman could order you to refrain from the marketing in question until the Market Court has ruled on its lawfulness at your request.
In Finland, primary responsibility for enforcing consumer protection legislation has been assigned to the Consumer Ombudsman. By law, if the Consumer Ombudsman comes across a suspected violation of consumer protection legislation, it must, as a first step, aim to get the business in question to voluntarily discontinue its allegedly unlawful activities.
Failing this, the Consumer Ombudsman may, subject to certain conditions being met, independently issue an injunction under penalty of a fine, or, otherwise, petition the Market Court to issue such an injunction. Moreover, in urgent matters, the Consumer Ombudsman may independently issue an interim injunction under penalty of a fine. Similarly, the Market Court may, at the request of the Consumer Ombudsman, issue an interim injunction until the Consumer Ombudsman's petition for a permanent injunction has been decided.
Currently, an injunction issued by the Consumer Ombudsman becomes void if the party against which it has been issued opposes it (free of any formal requirements) within a set deadline, which must be at least eight days. In such a case, the Consumer Ombudsman must take matter to the Market Court if it still wishes to have the allegedly unlawful contact prohibited under penalty of a fine. An interim injunction issued by the Consumer Ombudsman, on the other hand, automatically becomes void unless the Consumer Ombudsman takes the matter to the Market Court within a deadline of three days. Currently, the Consumer Ombudsman cannot directly petition the Market Court to impose fines on a business that has breached consumer protection legislation. Instead, fines can be ordered to be paid only in cases where a business has violated an injunction that has previously been issued against it.
If the amendments proposed by the working group are enacted, the Market Court could, at the request of the Consumer Ombudsman, impose fines on a business that has wilfully or negligently violated certain provisions of the Consumer Protection Act or similar legislation aimed at protecting consumers' interests, even if no injunction has previously been granted.
Furthermore, fines could also be imposed on the management of the business in question or on a third party who has acted on behalf of the business in question (e.g. an advertising agency), provided that they have wilfully or negligently substantially contributed to the unlawful activities.
The relevant provisions include, among others, those that prohibit surreptitious as well as false or misleading advertising and those that govern what information must be conveyed to consumers in advertising and sales.
The amount of fines to be imposed would be calculated based on the annual turnover of the business entity being fined. In the case of fines to be imposed on a business' management, the basis for this calculation would be the annual income of the persons in question.
The maximum amount of fines is proposed to be set at ten per cent of the relevant turnover or income. However, in the case of fines to be imposed on a business entity, an additional cap of EUR 100,000 is suggested. No similar cap is proposed for fines to be imposed on a business' management, which is perhaps an oversight on the part of the working group. In each individual case, the nature, extent and duration of the infringement, as well as other relevant factors, would be taken into account in determining the amount of fines to be imposed.
In addition to being given the right to directly petition the Market Court to impose fines, the Consumer Ombudsman would maintain its right to independently issue injunctions and to petition the Market Court to issue injunctions. In fact, it could even apply these powers in tandem, for example, by asking the Market Court to impose fines for past unlawful activities, and to issue an injunction to prohibit the continuation or repetition of the same activities in the future.
It is also proposed that the opposition of an injunction issued independently by the Consumer Ombudsman would no longer void that injunction. Instead, the party, against which the injunction has been issued, would have a deadline of thirty days to challenge the injunction before the Market Court. Otherwise, the injunction would become permanent. Also, even if the injunction were challenged, it would remain in force for the duration of the proceedings, unless the Market Court specifically ordered otherwise.
According to the working group's report, which is written in the form of a government bill, the purpose of the proposed amendments is to better enable the Consumer Ombudsman to quickly and effectively put an end to unlawful activities. However, the proposed amendments have received much criticism from representatives of the business community ‒ also those within the working group itself.
In particular, it has been called into question whether new or enhanced powers of enforcement are really necessary, as the Finnish consumer authorities already have a broad range of means at their disposal ‒ some of which they neglect to use. For example, since 2007, the Consumer Ombudsman has been entitled to pursue class action lawsuits in cases where a number of consumers have similar claims against the same party. However, to date, the Consumer Ombudsman has not used this opportunity a single time.
In addition, it has been argued that some of the proposed amendments are disproportionate and perhaps even unconstitutional, or, at the very least, that they are in conflict with the government's current deregulation policy.
Perhaps for to the last-mentioned reason, it is currently unclear when and to what extent the proposed amendments will be enacted. However, what is clear is that, despite ongoing harmonisation on the EU level, businesses offering products or services to consumers in Finland will need to familiarise themselves with the particularities of Finnish consumer protection legislation also in the future. Otherwise, they could face substantial sanctions in the form of injunctions and fines.
In a study commissioned by Krogerus we examined the views of selected Finnish companies regarding the efficiency of arbitration.
The study is based on responses from 23 Finnish companies regarding the duration and costs of arbitral proceedings, methods for improving the efficiency of arbitral proceedings and experiences using expedited arbitration.
You can download the full Krogerus study here: Improving the Efficiency of Arbitration
The Finnish Supreme Court recently clarified the circumstances where an employer can add a non-competition clause into an employment agreement.
Pursuant to the Finnish Employment Contracts Act, particularly “weighty reasons” related to the operations of the employer or to the employment relationship are required for an enforceable non-competition obligation agreed in the employment agreement or otherwise in the beginning or during the employment.
In July 2014, the Finnish Supreme Court issued a precedent (KKO:2014:50) where it was assessed whether weighty reasons for a non-competition agreement existed in a case regarding an employee who was working as an automation engineer in a company providing automation and robotic systems for the food industry.
The Supreme Court ruled that the employer did not have particularly weighty reasons for the non-competition clause limiting the employee’s right to engage in new employment for four months after the termination of employment.
The Supreme Court’s principle reasoning was that only a small part of the employee’s duties was of such nature that the employer would have needed protection through a non-competition clause.
The employee did not accrue essential research knowledge or take part in confidential sales activities of the company during the employment. Nor did the employee’s position support the need for a non-compete restriction because of its low level in the employer’s organisation. Additionally, the employee’s salary level – a monthly basic salary of slightly below EUR 2,400 at the time of the termination of employment – was regarded as so low that it could not have been regarded sufficient to compensate the restriction caused to the employee.
In relation to the employee’s duties as the main user of the employer’s server, the Supreme Court assessed that the confidentiality provision, including liquidated damages of EUR 20,000, was sufficient to protect the business and trade secrets of the employer.
Moreover, the Supreme Court referred to the Finnish Criminal Code prohibiting the violation and misuse of business secrets and stated that the protection under criminal liability, in addition to the risk of liquidated damages, were sufficient to ensure the protection of the confidential information against competing actions.
Consequently, the non-competition clause was not binding and the employer was not entitled to liquidated damages for the employee’s breach of the non-competition clause.
Under Finnish law, an employee’s right to conclude a new employment contract with a competing employer or to engage in competing activity on his or her own account can be limited for a maximum period of six months, if particularly weighty reasons exist.
To determine if weighty reasons exist such to justify the non-competition clause, employers are required to analyse the following:
the nature of the employer’s operations and need to protect business or trade secrets;
possible special training given to the employee by the employer; and
status and duties of the employee.
Firstly, with regard to the employer’s operations, if the work consists of product development, the need for a non-competition clause is considered to be more significant in terms of the need for protection against competing companies.
Additionally, an agreement of non-competition is generally justifiable if the employee, due to his or her position, receives confidential information or if the employee accrues special knowledge as a result of his or her duties.
As a rule, it can be said that the higher the employee’s position within the employer’s organisation is, the more likely it is that particularly weighty reasons are deemed to exist.
Grounds for a non-competition clause may exist if an employee carries out his or her duties independently or otherwise with a high level of responsibility, or if the salary level is regarded as high.
Although there is no statutory requirement to pay any compensation to the employee for a non-competition obligation that is valid for less than six months after the termination of employment, a low salary level may often indicate that the employee’s position or duties do not constitute weighty grounds for a non-competition clause to be enforceable.
Additionally, the type of field of business of the employer may have an impact on the assessment on whether there are justified grounds for the non-competition clause at hand.
In some fields of business, in which renewal of new information and development of technologies/methods is fast and essential, correspondingly the need to protect business secrets against competitors is vital.
Also, ensuring the confidentiality of information related to customers and trade secrets (such as pricing) may support the justifications for a non-competition agreement.
Although non-competition clauses are in many cases recommended, it is to be noted that if particularly weighty reasons are not deemed to exist, the non-competition clause is null and void.
Moreover, there are certain other limitations with respect to the enforceability of non-competition clauses. In instances where the enforceability of a non-competition clause is uncertain, you may wish to consider if there are other ways, such as through use of confidentiality clauses, that you can best protect a company’s vital interests.
Whether you consider it the latest buzzword or the beginning of a new era, the internet of things will have significant impacts across the business landscape.
The Internet of Things (IoT) refers to the interconnection of identifiable embedded computing devices.
In a nutshell, IoT is where every day physical objects are connected to the internet and can identify themselves to other devices without requiring human-to-human or human-to-computer interaction.
A related term, the “industrial internet”, coined by American super-conglomerate General Electric, refers to the integration of complex physical machinery with networked sensors and software.
IoT is still in its infancy, but a generation shift is already taking place.
So while driverless cars that seamlessly interact with road infrastructure are a leap away, many companies are embracing the opportunities offered by connected devices and data to optimise manufacturing and service in real-time.
The estimates are that connected devices will outnumber people in the near future. Depending on the source, the number of digital devices connected to the internet is estimated to grow from the current 3 to 7 billion, to 25 to 50 billion, by 2020.
The change creates business opportunities. Cisco Corporation, for instance, has estimated that the value of new business created as a result of IoT will total roughly USD 19 trillion over the next decade – out of which USD 14.4 trillion will be contributed by enterprises and USD 4.6 trillion by smart cities, administration and the public sector.
Both manufacturing and service industries will be affected: intelligent systems in the IoT enable rapid manufacturing of new products, dynamic response to product or service demands and real-time optimisation of manufacturing production, while allowing for more effective use of energy and other resources.
All of this is based on data gathered, analysed and communicated by machines.
The data, its creation, indexation, analysis and control over it become key issues in the emerging legal landscape. Strictly speaking, one cannot “own” data, but access to it is something businesses should want to have a say on and, as discussed below, legal considerations in the form of IP, data privacy and contracting will be on the table.
The co-existence of, and interrelationship between, relevant factors can be depicted as follows:
If data is the key in the IoT, what is the relevant legal tool in the IP toolbox?
In terms of traditional intellectual property, data, as such, is not an object of protection. Large amounts of data may, however, take forms that are granted protection; and database protection and its associated forms of IP (e.g. the so-called protection of catalogues granted under Finnish law) may see a rise in significance.
You will also need to address IP ownership issues, including the complex question of joint ownership, in more detail. Even the thus-far somewhat academic question about IP ownership of works created by machines may be revived: in the traditional “internet”, people are the main producers of content and data, whereas in the IoT, machines assume this role and become the creators.
If a machine created a database or a copyright work and, in the process of doing that, used a significant part of another database, with who will the rights vest, and has an infringement taken place?
The key, most likely, will be in the contractual stipulations, but if the underlying IP issues are not taken into account beforehand, problems may emerge. Also, issues of open data and accessibility of governmental data on the one hand, and trade secrets, on the other, are likely to raise difficult questions.
Traditional “hard IP”, patents, will also be relevant, and companies may need to start looking into new areas of technology in trying to map their patent landscape: by way of example, manufacturers of heavy machinery may find themselves faced with telecoms and computer-implemented-invention-related-patent thickets.
Another challenge will be that for the IoT to work in a truly seamless and interoperable way, it needs to use standardised technology. If, however, standardised elements of technology in this architecture are patented, third party users of the technology who have not obtained a licence may be forced to infringe those patents.
Data protection law regulates how information on consumers may be collected, processed and transferred.
By definition, “personal data” means any information that – either as an isolated datum or in combination with other pieces of information available to the business – is identifiable as concerning a private individual. Controllers of such data are under a statutory duty of care, the purpose of processing this data must be specified in advance, and there has to be a legal ground for any processing.
Big data may mean big value and big benefits, but also big responsibility.
Data protection challenges related to the IoT include information on the processing of data, prerequisites for the user’s consent, exclusivity of purpose, data analytics, limitations on the possibility to remain anonymous when using services, and security risks.
You can overcome these challenges, but careful planning and a proper understanding of the applicable regulatory framework are needed.
It is highly probable that the regulatory landscape will be transformed in the not-too-distant future if and when the so-called General Data Protection Regulation (GDPR) proposed by the European Commission already in 2012 enters into force. Already approved with amendments by the European Parliament on its first reading last year, but still pending Council agreement, the GDPR would introduce new requirements to businesses, backed up with hefty fines for non-compliance.
In the proposed form, the GDPR contains extensive provisions on profiling. Now, the IoT promises to be an unmatched medium of analysing and, on that basis, predicting people’s personal characteristics and circumstances, but the data subjects’ right to object to profiling under the GDPR will need to be ruled in. The same would apply to the far-reaching principles of data protection by design and data protection by default embraced in the GDPR.
IoT-related contractual issues may arise out of many different types of contracts. IoT-related contract clauses are not relevant only in traditional ICT contracts, but they become significant also in contract types that have traditionally not dealt with ownership of data, data protection and intellectual property rights.
Since all sorts of devices will be connected to the internet and will gather data, for example,R&D agreements, sale and purchase agreements of machinery and other devices and various rental, services and maintenance agreements need to address these issues.
Perhaps the most important issue lawyers will need to stipulate is how the rights regarding the data are divided among the parties. For instance, does one of the parties have the exclusive right to use this data, or do the parties have equal or parallel rights of use?
There is naturally an unlimited number of ways rights can be allocated. Moreover, these contract clauses resemble more traditional licensing and transfer of IP provisions.
Naturally, privacy considerations must be addressed when drafting the contracts.
The internet of things will present, in the very near future, a whole host of opportunities – and challenges. For some issues, it is sufficient to look to existing legal norms for a solution. For others, new tools are needed to work with the evolving technological landscape.
Ever type your trade mark into a search box only to get results to a competitor’s goods and services? Businesses that use someone else’s trade marks as keywords in web stores without the owner’s permission may engage in trade mark infringement, confirms a recent ruling of the Finnish Market Court.
Business owners naturally expect an online search using their trade marked terms will lead to their goods and services. Problems arise when a competitor or other third party captures a trade marked term as a keyword and directs people to goods and services that do not belong to right holder’s business operations.
Is this legal?
According to the Finnish Market Court’s ruling in Wellmen Oy v SOK (MAO:516-517/14), this type of online advertising is infringing. The court’s judgement was not appealed and is now final.
In its decision, the court held the use of a keyword that was identical with a registered word trade mark “Selätin” infringed rights based on the trade mark registration. The disputed keyword was used in a web store’s product search.
The Finnish Market Court referred to a judgment of the Court of Justice of the European Union (CJEU) in the Google AdWords case Google France and others v Louis Vuitton Malletier SA (C-236/08–C-238/08), and held the use of the keyword resulted in confusion regarding the “commercial origin” of the trade mark.
After the keyword “Selätin” was typed into a web store’s product search box, the result yielded a third party’s competing product instead of offering the product of the trade mark holder, which was not at all available. The products in question were considered identical. The webpage to a third party’s product appeared immediately after the search with the keyword was conducted. The trade mark was visible on the page after the search also.
In light of these circumstances, the court stated the average consumer was likely to be confused of the commercial origin of the product. This confusion endangered the basic function of a trade mark, which is to serve as an identification of origin. The confusion was not avoided even though the actual names of the marketed product, as well as its producer, were both available on the webpage. The trade mark owner had a right to prohibit the use of its trade mark as a keyword in connection with the other party’s product.
The thread of the Finnish Market Court’s reasoning followed the CJEU’s decision in the Google AdWords case, where the CJEU stated the origin function of a trade mark is adversely affected by keyword advertising if the advertisement does not enable the relevant audience to ascertain (or enables them ascertain only with difficulty) whether the goods and services originate from the owner of a trade mark.
Not only giving guidance for the national courts’ decision making, the CJEU’s interpretation also had an impact on major search engine keyword practices.
Nowadays, when a trade mark owner lodges a complaint, representatives from Google and Microsoft’s Bing investigate and may enforce certain restrictions on the use of a trade mark in advertising. Other search engine organisations have also initiated the same practice. At issue is whether the use of a trade marked term as a keyword, in combination with particular advert text, is confusing as to the origin of the advertised goods and services.
It appears likely that since the case assessed by the Finnish Market Court was successful based on the reasoning that the trade mark’s origin function was adversely affected by the keyword usage, the court made no further assessment of the use based on other functions of a trade mark. These functions were considered, among others, in the preliminary ruling in Interflora v Marks & Spencer (C-323/09), in which the CJEU acknowledged, in addition to the primary function (as a badge or origin), a trade mark may have a number of additional functions.
The CJEU indicated that trade mark owners may be able to take successful legal action whether or not the primary function of a mark is put at risk. This could be the case where a keyword takes unfair advantage of the distinctive character or reputation of a trade mark or where it causes damage to a distinctive character and reputation of a trade mark.
Nevertheless, it is still left for the national courts to determine these issues based on the facts and circumstances of the situation at hand. The original Interflora case is still unresolved, as the case was recently remitted to the High Court for retrial in the United Kingdom.
The decision of the Finnish Market Court is a welcome clarification on the scope of trade mark protection.
For trade mark owners, the ruling gives further comfort to claims against illegitimate use of a trade mark as a keyword in those instances where the consumer cannot identify a commercial origin of the goods and services appearing in context with the used keyword.
Furthermore, recent case law suggests that businesses should plan their keyword advertising carefully. It is advisable to go through your keywords and search functions to make sure you are not unintentionally indulging in a trade mark infringement.
Here are some tips you should consider to protect your trade marks and avoid keyword issues in your business operations:
• Monitor keyword usage by your competitors, third parties and major search engines
• Consider whether your distributors and resellers are using your trade marks as keywords and provide guidelines for such use
• Go through keywords and search functions used in your own business advertising and make sure your practices are appropriate
• Consider legal actions when necessary
The Finnish Labour Court issued, in the end of August 2014, its rulings based on the preliminary ruling of the Court of Justice of the European Union (CJEU) issued earlier this year in cases concerning employees’ right to salary for consecutive maternity leaves when the second pregnancy occurred during unpaid family leaves following their maternity leaves.
The Finnish Labour Court declared that provisions in collective agreements requiring employees to return to work between family leave and a new maternity leave in order to be entitled to salary during maternity leave are against the mandatory provisions of Finnish Employment Contracts Act and are, therefore, null and void.
Under Finnish law, maternity leaves are unpaid, but many Finnish collective bargaining agreements provide for salary during a part of the maternity leave on the condition that the employee returns to work between two maternity leaves in order to receive salary during the second maternity leave.
The CJEU ruled that such conditions are in breach of European Union law. This preliminary ruling significantly alters the right to salary during consecutive maternal leaves in Finnish collective bargaining agreements.
The preliminary ruling in the joined cases C-512/11 and C-513/11 concerned two requests for a preliminary ruling by the Labour Court of Finland in two essentially similar matters concerning two women and their right to salary during their second consecutive maternity leaves.
Following initial periods of maternity leaves, the two women took unpaid parental leaves. They then got pregnant for the second time during their unpaid childcare leaves and notified their employers of their pregnancies and asked to interrupt their unpaid family leaves and consequently take a new period of maternity leave.
The employers accepted the notifications concerning the interruptions of the unpaid family leaves, but refused to pay the employees salary for the second maternity leave.
The reason for this was that the applicable collective agreements stipulated a requirement for a certain period of work in between paid maternity leaves, and the employees did not return to work between the first maternity, parental and childcare leaves and the second maternity leave.
In both cases, the employees were entitled to maternity allowance provided for by law, while the employers should normally pay the difference between that allowance and their normal salary if the employees are based on collective bargaining agreements, company policy or individual agreements entitled to salary during a certain part of their maternity leave.
The request for a preliminary ruling essentially concerned whether a provision in a collective bargaining agreement stipulating that salary during maternity leave is not paid to an employee if the employee does not return to work between two maternity leaves.
In its ruling, the CJEU considered Directive 96/34 on parental leave and two objectives of that directive.
Firstly, the framework agreement constitutes an undertaking by management and labour to introduce, through minimum requirements, measures to promote equal opportunities and treatment between men and women, by offering them an opportunity to reconcile their work responsibilities with family obligations.
Secondly, the framework agreement enables new parents to interrupt their professional activities to devote themselves to their family responsibilities, whilst giving them the assurance that they will be entitled to return to the same job, or, if that is not possible, an equivalent or similar post consistent with that employee’s employment contract or relationship at the end of the leave.
The CJEU found that the choice of an employee to exercise her right to unpaid parental leave should not affect the conditions on which she may exercise the right to take a different leave, in this case maternity leave. The CJEU emphasised that taking unpaid parental leave in this case inevitably means that an employee who needs to take maternity leave immediately after that parental leave loses part of her salary. The CJEU further emphasised that a pregnancy is not always foreseeable.
The CJEU concluded that provisions in collective agreements, pursuant to which a pregnant employee who interrupts a period of unpaid parental leave to take a maternity leave does not benefit from the salary to which she would be entitled had that period of maternity leave been preceded by a minimum period of resumption of work is in breach of European Union Law.
It is to be noted that the CJEU referred to the directive concerning parental leaves although the employees were on childcare leaves, which is not a right guaranteed by the directive referred to by the CJEU.
The employees were still entitled to an income, at least equivalent to the sickness allowance provided for by national social security legislation, as required by the Pregnant Workers Directive (92/85), but not the additional salary provided for in the collective bargaining agreement.
Many Finnish collective agreements include corresponding requirements of a period of work between family leaves and also some employers not bound by any collective agreements have been applying the same principles.
However, based on the rulings of CJEU and the Finnish Labour Court such a requirement shall from now on be deemed to be in in breach of European Union law and the Finnish Employment Contracts Act, and therefore, null and void. As employees do not have a statutory right to paid family leaves, these rulings may also have an impact on future collective bargaining and on employers’ willingness to voluntary offer paid maternity leaves.
A recent amendment to the feed-in tariff act (1396/2010) means you can reserve your spot in the feed-in tariff system today – even if your project is not yet ready for final approval.
On 30 April 2014, the Finnish parliament approved the government’s proposal on amending the feed-in tariff act (1396/2010).
The amendment makes it possible to get a binding reservation from the Finnish Energy Authority to the effect that the electric capacity of wind power plants under development have a place reserved within the overall feed-in tariff quota of 2,500 MW already before the final approval application to the feed-in tariff system.
The quota is the aggregate limit for electric capacity of wind power plants that will be accepted into the feed-in tariff system. The decision is binding for a period of two years, and the final application for approval to the feed-in tariff system must be filed within this time period.
The requirements are that the wind power developer has received building permits for the wind turbines and entered into a binding grid connection agreement with a grid operator for connecting the wind turbines to the grid.
Moreover, if the connection agreement is not directly made with Fingrid Oyj, a confirmation from Fingrid Oyj must be obtained that the electricity produced by the wind turbines may be fed to the main grid.
The reservation system took effect starting on 30 June 2014.
According to the Feed-in Tariff Act, the basic rule regarding priority of acceptance to the Feed-in Tariff Act is time priority, meaning that the electricity producer who has first submitted its approval application to the feed-in tariff system receives priority over any subsequent applicants.
When the wind power developer is ready to submit the final approval application, there is a risk that the overall feed-in tariff quota of 2,500 MW has already been reached.
In the future, the order of priority is changed to the effect that the Energy Authority must take into account also projects that have reserved a spot in the feed-in tariff system. The order of priority in respect of reservations to the feed-in tariff system is also based on date and time for submitting the reservation application.
In the reservation application, information must be submitted regarding the electricity producer, the wind turbine type, the nominal power output of the wind turbine type, the investment time table as well as other information that may have an affect on the decision. Further requirements may be given by Finnish government decree.
However, the Energy Authority has confirmed that a decision on, for example, wind-turbine type, does not necessarily have to be final at the time when the reservation application is filed. Wind power producers have an obligation to inform the Energy Authority if the capacity of the wind power plants is reduced after the reservation decision has been granted, so that Energy Authority can free capacity to the feed-in tariff system to others.
However, the reservation decision is not binding to the extent the capacity of the wind power plants is increased afterwards.
The Energy Authority grants the reservation if all necessary information has been submitted and there is no obstacle for granting the decision pursuant to the Feed-in Tariff Act; for example, there is still capacity left in the feed-in tariff system and that the wind power plant fulfils all other requirements for being accepted to the feed-in tariff system.
On the other hand, the Energy Authority must deny the reservation application if there is significant insecurities due to the large amount of wind turbines, other reason for doubt that the wind power producer does not fulfil the requirements for being accepted to the feed-in tariff system, or if there is doubt that the wind power producer will make the final approval application in the future.
The Energy Authority must also deny the reservation application to the extent the total capacity of approved wind power projects and reserved capacity to the feed-in tariff system is exceeded.
The reservation decision is in force for two years from the date the decision received legal force. However, the decision will not be valid for longer than until 20 June 2020, meaning that if the reservation decision gained legal force less than two years before such date, the reservation decision is regardless in force only until 20 June 2020.
The reservation decision may be transferred to another wind power producer upon written application to the Energy Authority, in case the ownership of the wind power plant is transferred. However, the reservation may not be transferred from one wind power plant to another.
The Energy Authority may cancel the reservation decision if false or erroneous information has been submitted to the Energy Authority that would have had an impact on the decision or if a wind power producer neglects to notify the Energy Authority about reduction of the nominal power output of the wind turbines.
European Commission confirms private equity investors’ potential cartel liability for portfolio companies.
A recent European Commission decision found financial services giant Goldman Sachs liable for the cartel activities of a company that was part of Goldman Sachs’s investment portfolio.
Goldman Sachs’s liability was based on the decisive influence exerted over the company through voting rights and board representation.
The decision can be seen as a signal from the Commission that it is prepared to hold private equity investors liable for competition law infringements of portfolio companies.
On a practical level, this means private equity companies may have to look closely at their due diligence processes before making an investment.
On 2 April 2014, the European Commission imposed fines totalling EUR 301.7 million on eleven producers of underground and submarine high voltage power cables. The companies had operated a global cartel from 1999 to 2009.
According to the Commission, the companies involved had agreed on price levels, shared markets and allocated customers between themselves. In addition to the actual cartel participants, the Commission found companies exerting decisive influence over them to be jointly and severally liable for the fines.
One of the companies held liable was Goldman Sachs. A fund managed by Goldman Sachs Capital Partners owned a stake in an Italian cartel participant, Prysmian. According to the Commission, Goldman Sachs had decisive influence over Prysmian through its control of Prysmian’s board of directors.
On these grounds, the Commission held Goldman Sachs jointly and severally liable with Prysmian for a fine of EUR 37.3 million. This is not the first Commission decision holding a private equity investor liable for the actions of its portfolio companies, but the previous cases have dealt with much smaller cartels and investors.
The Commission imposed the highest individual fine in the case, totalling EUR 104.6 million, on Prysmian. This was based on the volume of Prysmian’s sales, the length of its participation and its central role in the cartel.
The joint and several liability of Goldman Sachs covered approximately one-third of the fine. A previous owner was held similarly liable for the rest of the fine.
According to Joaquín Almunia, the Commission member responsible for competition policy, Goldman Sachs was involved in the decision-making of Prysmian in a way that was “not [the] normal involvement of a financial investor”.
The Commission held that Goldman Sachs essentially controlled Prysmian through its appointments in the latter’s board of directors. The Commission emphasised the fact that Goldman Sachs was updated on the business of Prysmian through monthly reports and could have replaced the board of directors at any time.
Even though Goldman Sachs reduced its stake in Prysmian from 2005 onwards, the Commission found that it continued to exert de facto decisive influence over the company at least between 2005 and 2007.
Goldman Sachs has announced that it is considering appealing the decision.
The Commission has consistently held parent companies liable over the actions of subsidiaries in cases where the subsidiary has not been operating independently in the market and the parent company has exerted decisive influence over it. In these circumstances, the Commission does not have to prove that the parent company itself participated in the infringement.
When assessing whether the parent had such decisive influence over the subsidiary, the Commission takes into account all economic, organisational and legal connections between companies.
Typically, these connections include shareholdings, voting rights and rights to appoint members of the board. The Court of Justice of the European Union has confirmed that a shareholding of 100% gives rise to a rebuttable presumption of such decisive influence.
Holding Goldman Sachs liable does not in itself constitute a major change in the Commission’s practice. EU courts have confirmed that private equity investors may be fined for the actions of their portfolio companies.
However, the decision makes it clear that the Commission does not see any difference between private equity investors and other owners with regard to liability for competition law infringements.
The Commission’s decision signals that it is advisable for private equity investors to exercise caution and to carefully assess the competition law compliance culture in their target companies, both when making investment decisions and during ownership.
A failure to do so may result in an infringement fine of up to 10% of the annual worldwide turnover of the entire group concerned. The liability remains even if the stake is later disposed.
These issues should be taken into account in conducting due diligence reviews of potential target companies, as well as in drafting purchase agreements.
Your company’s compliance programme may not be the easiest topic to bring up at an executive management meeting, but it probably is one of the most important.
What makes for a good compliance programme?
This topic was raised at a Krogerus Compliance Officer Roundtable that gathered a cross-section of business executives in Finland. Here is a summary of some ideas you may wish to keep in mind.
A compliance programme is a set of internal policy decisions that aims to assure a company is following all rules and regulations applicable to its business operations.
Compliance as a business function first took hold in the United States in response to several corporate scandals in the 1970s and 1980s. Over the years, it has slowly spread to Finnish shores, and has recently gained real traction.
While it is not uncommon for in-house legal counsel in Finland to take care of compliance matters, companies are increasingly hiring a compliance officer. A few Finnish companies are also considering whether to create a compliance function that is independent from the legal department.
The cornerstone of a good compliance programme is articulating the risk appetite of the company and balancing it against the risk tolerance.
The risk appetite reflects the amount of risk the company is willing to take and, respectively, the risk tolerance describes the risk capacity the company is capable to carry in pursuit of its business objectives. Risk management cannot be about avoiding all potential risks, but it should be used as a mechanism helping to prioritise identified risks.
A compliance programme is meant to support your business strategy. Therefore, risk assessment and measuring the risk appetite and risk tolerance is an integral part of the strategic planning. Once this balancing exercise has been done, the compliance programme can be tailored to meet the strategic needs and requirements of your business.
A good compliance programme identifies the inherent risks and establishes appropriate mechanisms to control them, while it acknowledges the residual risks.
The contents of the inherent risk is influenced by the company’s regulatory environment, volume and scope of activity, including products, customers and distribution channels, as well as history of compliance problems.
The residual risk is a risk that remains after controls are taken into account. Handling the residual risks means either accepting it as a part of the agreed risk appetite or reducing it by starting over the risk analysis and adding certain control mechanisms.
The key factor for establishing an independent compliance function is to clearly define its tasks, which can be challenging.
The tasks of the compliance function are defined based on the risk assessment. Therefore, the tasks should concentrate on the regulatory regimes where non-compliance would harm the business most or those areas where non-compliance is most likely to happen.
For a compliance function to be independent, it is paramount that access to the board or a sub-organ focused on risk management is secured. Also, the compliance function should be clearly fenced from the risk audit of the company.
Although the increasing amount of regulation gives rise to certain concern, there are positive sides to a well-functioning compliance. High integrity and focus on ethical values increases the pride personnel feel for their company, which, in turn, increases the commitment and efficiency.
Once risk-oriented thinking becomes established in the company’s business operations, personnel takes ownership and responsibility for compliance and ‘doing the right thing’. Feeling an important piece in the puzzle promotes the objectives of a compliance programme.
But, most importantly, there cannot be any commitment by personnel if the management commitment goes missing. The significance of the tone from the top can also be supported by empirical evidence. Therefore, setting the right corporate culture really matters.
So, while implementing a compliance programme is not easy, if done well, the rewards are multi-fold.
Traditionally, the estate administrator’s main duty has been to liquidate the machinery of the estate as quickly as possible. But there are alternative possibilities. Instead of seeing the bankruptcy estate as a pile of assets left behind by a company that has gone through financial hardship, smart thinking says you should see this as an opportunity to start a new business.
At its best, bankruptcy means a fresh start for a successor company without burdens of the bankrupt one. At the same time, it also allows the estate administrator to take into account the broader interests of the different stakeholder groups.
While this sounds enticing, there are important factors to keep in mind.
It is one of the most important tasks of the estate administrator to realise the assets belonging to the bankruptcy estate. The administrator has to strive to sell the assets promptly and in a cost-effective way.
The sales method you choose needs to reflect the best possible price. It is often advisable to try to sell the business in its entirety or as an operational unit of the debtor company to a successor company.
In general, selling an operational unit is almost always a better option than selling assets separately.
The sales price of an operational unit is usually higher because some of the assets are of substantial value to a successor company but would be of very little or without any value to an outsider when sold separately. Assets of this kind are various intangibles and items with utility value related to land, buildings and fixed assets.
In addition, selling a bankruptcy estate to a successor company saves costs.
Usually you can achieve a substantially higher overall sales price when selling the bankruptcy estate as an operational unit, even though the maintenance costs are the same when selling assets separately.
The sale of assets (such as manufacturing plant) of a bankruptcy estate to a successor company naturally has considerable beneficial impacts on society and stakeholder groups beyond just the creditors in bankruptcy.
When a new company is born from the ruins of bankruptcy, it usually has a positive impact on local employment and other companies, such as former investors, subcontractors, suppliers and distributors of the bankrupt company. Ongoing revenue from a company also increases the tax base, which has a ripple effect across society.
Sometimes, the former employees can keep their jobs and the business remains in its old location.
Selling the assets of a bankruptcy estate as an operational unit is a challenging task. This complicated process requires mastering the daily operations of the entity and understanding both the business drivers and the legal issues that will allow it to continue well into the future.
Especially in bankruptcies of medium-sized and large companies, the estate administrator and the entire bankruptcy administration have to face and resolve complex issues dealing with the management of business operations.
By being realistic and proactive and by efficiently relaying information to the creditors, the estate administrator and the bankruptcy administration can avoid possible pitfalls that typically plague the sale of an operational unit.
The successful sale of an operational unit requires co-operation with major creditors who effectively have the supreme decision-making power in bankruptcy proceedings. Often, the estate administrator can also draw on the solid business and financial know-how of the major creditors.
The successful sale of the business or an operational unit requires that the estate administrator actively pursues selling the operational unit, which is facilitated by the administrator contacting potential purchasers immediately after the declaration of bankruptcy.
Ideally, this should be done on the first day of the bankruptcy proceedings. Unfortunately, the debtor company and its business operations depreciate in value throughout the process.
It is desirable that the preparations for finding a successor have been started even prior to the declaration of bankruptcy. In such cases, there is a known purchaser upon declaration. It is possible to carry out a sale of an operational unit within weeks from the declaration of bankruptcy, but this requires timely actions from the estate administrator and carrying through the actions that have been commenced prior to the bankruptcy.
Sometimes it may be economically justified for the bankruptcy administration to continue business operations in order to sell the business or an operational unit. It is often reasonable to continue operations until the end of the terms of notice to the employees.
When considering continuing business operations for a longer period, the estate administrator and creditors must be very cautious and ground their decisions on detailed calculations.
In order to find a potential purchaser and to obtain a decent sale price, it is essential for the bankruptcy estate to ascertain that all necessary documents (for example, environmental licences) are valid and in force.
This means that several factors have to come together seamlessly.
When done correctly, selling the business or operational unit as a whole offers a win-win to both the creditors and society-at-large.
When you are looking to hire someone, you may wonder what you can ask and what you cannot during the interview process. One misstep and a potential candidate might get the wrong impression about you and your company – or, worse still, accuse you of employment discrimination. In your search for the right person, you may want to keep a few things in mind.
Finnish law does not provide a list of questions that an employer can or cannot ask during a job interview. However, when assessing what kind of questions should be avoided, privacy and anti-discrimination laws play an important role. It should also be noted that using Google or other search engines on the Internet may not be allowed.
The privacy of a job applicant is protected by the Act on the Protection of Privacy in Working Life and the Personal Data Act. Additionally, in order to avoid discrimination claims, an employer should take into consideration the obligations arising from the Non-Discrimination Act and Act on Equality Between Women and Men.
The key requirement set forth in the legislation is the necessity requirement. An employer may only process information that is directly necessary for the employment relationship. Therefore, whether or not the question is deemed appropriate depends on the position and its requirements.
In addition to the necessity requirement, an employer must take into consideration the requirements regarding non-discrimination and equality – and bear in mind the extended protection against non-discrimination.
According to the Non-Discrimination Act, an employer is not allowed to discriminate based on a person’s age, ethnic or national origin, nationality, religion, belief, opinion, health, disability, sexual orientation or other similar reasons. In addition, pursuant to the Act on Equality Between Women and Men, an employer cannot discriminate based on a person’s gender, pregnancy or childbirth.
Any questions related to the above-mentioned matters may lead to the presumption of discrimination, which places the burden of proof on the employer. This presumption may be difficult to rebut. In a possible dispute, an employer must prove that there was no breach of the anti-discrimination provisions, which in practice usually means that employer must prove that there were objective grounds not to hire the candidate.
Allegations of discrimination may be avoided by focusing on matters that are relevant for the position. This practice also complies with the requirements set to protect the candidate’s privacy.
Although no exact list of do’s and don’ts can be made, it is a fairly safe to say that in most cases questions regarding the candidate’s marital status, ethnic background, religion or sexual orientation are not justified based on the necessity requirement. These questions may be difficult to justify, and they may often give rise to the presumption of discrimination.
Questions regarding the candidate’s health may be justified only to the extent directly relevant for the position. As also these questions may give rise to presumption of discrimination, they should only be used if the position actually imposes demands on the candidate’s health and the employer is able to demonstrate this.
Additionally, all of the candidates should be asked the same questions as oppose to requesting this information only from those candidates who seem to have lower working capacity, for example, based on their physical appearance or information submitted in their CV.
It should also be noted that if the employer later on finds out that the employee has provided untrue information during the interview when he/she was asked a question that may be interpreted discriminatory the employer may not take any legal measures due to employee’s dishonesty.
Based on Finnish law, an employer is allowed to collect information on the candidate primarily from the candidate himself/herself. Information may be obtained from somewhere else only with the candidate’s consent.
Using Google or other search engines on the Internet during the recruiting process may also be problematic. Even if it is not prohibited to ‘google’, information obtained when googling cannot be collected or used during the recruiting process.
It should also be noted that the information obtained by googling may be inaccurate or concern another person with same name as the candidate. Collecting and using this information requires the consent of the candidate.
If the information has been obtained without his/her consent, the candidate should be notified prior to making any decisions and should be given the right to access the information collected by the employer to evaluate its accuracy.
The restrictions regarding googling and collecting information apply to candidates that have applied for the position, but in general not to headhunting.
The Personal Data Act allows headhunters and others to find suitable candidates through the Internet, so long as the material you are searching for concerns generally available information regarding the professional status, duties or performance of a person.
However, as soon as the person becomes an applicant, the employee’s privacy is covered by the Act on the Protection of Privacy in Working Life.
When the candidate has included referee information on the application or provides this information during the interview, it can be interpreted as consent to collect information from the named person. However, it should be noted that the consent is limited to that specific person, and the employer cannot contact anyone else form the same organisation.
The use of drug tests and personality and aptitude tests, as well as the processing of the candidate’s credit information, are also regulated by law. Drug tests, as well as personality and aptitude tests, require the candidate’s consent. If the statutory requirements for requesting credit information are fulfilled, no consent is required, but the candidate should be notified prior to obtaining the information. Additionally, the candidate must be informed of the register that is used to obtain the credit information.
The safest route to gather information is to collect information directly from the candidate and the named referees, and request consent if information is collected from other sources. Googling without the consent of the candidate is not recommended, as the employer may have difficulties to exclude any information found by googling from his/her mind prior to making any decisions.
If the requirements are met, the use of drug tests and requesting credit information may be recommended to evaluate the candidate’s reliability. Additionally, personality and aptitude tests may also add value to the recruitment decision.
Even if these methods require consent, it is unlikely that a candidate with a genuine interest in the open position would decline. If the employee does not consent, the employer may draw conclusions for the reasons behind refusing consent.
If the provisions of the Non-Discrimination Act are violated in connection with the recruitment process, the candidate may claim indemnity in the amount of EUR 15,000.
If the employer is deemed to breach the obligations under the Act on Equality Between Women and Men, the candidate may be entitled to an indemnity in the minimum mount of EUR 3,240.
The maximum amount set for the indemnity (EUR 16,210) is only applicable if the employer is able to demonstrate that the candidate would not have been selected even if the choice had been made on non-discriminatory grounds. Otherwise, the Act does not provide for a maximum amount of indemnity.
If personal information is collected and processed contrary to the provisions laid down in the Act on the Protection of Privacy in Working Life and the Personal Data Act, the representatives of the employer may also face criminal liability.
A top-level domain (TLD) is the suffix at the end of a domain name: for example, the .com at the end of krogerus.com. TLDs can be divided into various categories, including country code TLDs (ccTLDs) and generic TLDs (gTLDs). Currently, there are only 22 gTLDs available for use by anyone, anywhere in the world – .com, .net and .org are the most prominent of these. However, the situation is about to change drastically.
Following the launch of the new gTLD programme, a total of 1,930 applications for new gTLD strings were filed with the Internet Corporation for Assigned Names and Numbers (ICANN). These included 1,409 unique strings. The most popular strings – .app, .home and .inc – were subject to about a dozen applications each. The first seven new gTLD strings* will become operative on 26 November 2013, with many more to follow in the coming months.
This insight examines the possible implications of the new gTLD programme for brand owners.
It can be a challenge these days to find a .com or .net domain name that is both practical and available. For example, had the krogerus.com domain name already been taken, Krogerus might have considered registering the domain name krogerusattorneys.com or krogerusfinland.com. However, neither of these would have been quite as convenient as the natural first choice.
Overcrowding of the current gTLD namespace is one of the main reasons behind the new gTLD programme. It is anticipated that the launch of an abundance of new gTLDs will bring more variety and choice to internet naming, making it easier for end users to locate the content they are interested in. In the near future, for instance, Krogerus could also opt to register such domain names as krogerus.ltd or krogerus.law.
An increased freedom of choice is not necessarily purely positive. It can also increase the potential for cybersquatting and other types of online trade mark infringement. For example, gTLD strings such as .discount, .sale and .shop could become popular amongst companies selling counterfeit or look-alike products. Meanwhile, gTLD strings such as .exposed, .sucks and .wtf could be used to discredit or denigrate certain brands.
So, what can you as a brand owner do to stop second-level domain names such as yourbrand.shop and yourbrand.sucks from falling into the wrong hands?
The Trademark Clearinghouse (TMCH) was set up to address some of the potential problems faced by brand owners. A brand owner that has entered its trade mark into the TMCH will have the opportunity to register second-level domain names that are an exact match to that trade mark before they become generally available.
This so-called sunrise period will last for 30 days after the launch of each new gTLD. It will be followed by a trade mark claims period of at least 60 days. During this time, anyone attempting to register a second-level domain name matching a trade mark entered into the TMCH will be notified of the trade mark. Should the notified party decide to go ahead with the registration, the trade mark owner will be informed of this. It can then consider what action it wishes to take.
Some new gTLD registry operators will also offer their own rights protection mechanisms. For example, Donuts Inc., which has applied to operate 307 new gTLDs, will implement its own Domains Protected Marks List (DPML). The DPML will enable brand owners to block their trade marks from registration across all gTLDs operated by Donuts Inc. Most trade marks entered into the TMCH will also be eligible for inclusion in the DPML.
However, the DPML will provide more extensive protection than the TMCH. In addition to exact matches, it will also allow the blocking of second-level domain names fully containing an exact match. In other words, if included in the DPML, the trade mark EXAMPLE could be used to block both example.clothing (exact match) and fake-example.clothing (exact match plus).
Certain major brand owners have also opted to register their own gTLDs to distinguish authorised websites from unauthorised ones.
For example, the gTLDs .apple, .google, .mcdonalds, .microsoft and .visa have been applied for by the respective brand owners. This is a rather costly option, taking into account the technical requirements that all applicants must fulfil as well as the USD 185,000 application fee charged by ICANN. The next application round is also not likely to commence for another few years. However, especially for owners of large trade mark portfolios, registering one’s house mark as a gTLD could be worth considering. In Finland, applications have been filed by the City of Helsinki (.helsinki), Kone Corporation (.kone), Nokia Corporation (.nokia and .诺基亚) and Phenomena Group Oy (.promo).
In addition to new rights protection mechanisms, new dispute resolution procedures will also be introduced. These are intended to supplement, not replace, the existing Uniform Domain Name Dispute Resolution Policy (UDRP).
Most notably, the Uniform Rapid Suspension System (URS) will offer an even faster and more affordable means for dealing with infringements. The grounds for filing a complaint are essentially the same as in the UDRP. However, due to the very speedy nature of the proceedings, cancellation or transfer of the disputed domain name is not an option. Instead, if the examiner finds in favour of the complainant, the registry operator must immediately suspend the domain name for the rest of the registration period. In other words, the domain name will be prevented from directing to the original website. Instead, it will redirect to a webpage indicating that the domain name has been suspended following URS proceedings. It will not be possible to transfer, delete or modify the suspended domain name during the remainder of the registration period.
For brand owners, the new gTLD programme entails both a greater freedom of choice and a heightened risk of online trade mark infringement. In order to best be able to take advantage of the former and combat the latter, it is advisable to enter at least one’s most valuable trade marks into the TMCH. This is possible provided that the trade marks in question are registered or have been validated by a court of law.
In addition, the trade mark owner must prove that the trade marks are in use. This can be done by submitting a signed declaration of use as well as, for example, a screenshot of the trade mark owner’s website, copies of marketing materials or photographs of goods bearing the trade marks. Proof of use in the traditional sense is not required. Rather, a single sample is sufficient.
Nevertheless, due to the relatively short duration of the sunrise and trade mark claims periods, it will become even more important to invest in quality domain name watching services.
* .bike, .clothing, .guru, .holdings, .plumbing, .singles and .ventures
We have all read of them in the papers: 3D printed handguns, musical instruments, grandfather clocks (with full machinery), robotic insects hovering on their own – you name it. It seems that with enough time and effort almost anything can be 3D printed these days, and 3D printing has become the weapon of choice for DIYers.
But what are the legal implications of 3D printing and how will this technology impact your business? While you may not do it yet, it is possible that you will start buying and selling products using 3D printing technology at some point in your business cycle.
One area of law where 3D printing may have potentially far-reaching ramifications is product liability. A 3D printed object can prove to be defective for a whole battery of reasons, such as:
You do not need to be a fortune teller to predict that courts will be asked to shed light on some tricky liability questions in the not-too-distant future.
Consumers are naturally protected by imperative provisions that sellers cannot contractually deviate from. But in the business-to-business context, it is possible to have a say on your liability position in both individual contracts and chains of contracts. As a vendor, you should negotiate a disclaimer, non-liability clause or cap – or otherwise limit your liability. You should also seek an indemnity for third-party claims. Be sure to include an arbitration clause so that any possible dispute remains confidential.
If you are the buyer, the indemnity clause should function the other way around. It is in your interest to minimise the vendor’s limitations of liability and try to achieve liability caps that still provide some comfort if liability is eventually triggered.
Attempt to get a guarantee and certain key warranties by the vendor concerning the characteristics of the products. And if in doubt, seek advice – preferably beforehand. In the long run, it is normally the most economically advantageous thing to do.
3D printing also has several implications in terms of intellectual property law. The main ones are as follows:
Copyright. The digital models used for printing a three-dimensional object may constitute subject matter protected by copyright. Under the Finnish Copyright Act, descriptive drawings and graphically or three-dimensionally executed works are considered literary in nature. Future case law will show whether parallels can be drawn between such a literary work and a physical object. The physical object may be copyright-protected in and of itself, but the high threshold of originality for articles of utility mean that protection is more difficult to attain than in the area of fine art.
Designs. Anyone who has created a design may, through registration, obtain the exclusive right to it. The exclusive right to a design implies that no person other than the right holder is entitled to use the design without a licence, except for private use for non-commercial purposes. The right holder’s entitlement to prohibit usage such as 3D printing, however, is restricted by the fact a design right does not cover features of appearance of a product solely dictated by its technical function.
Trade marks. Any kind of mark that can be represented graphically, including the shape of goods or of their packaging, may be a trade mark. The effect of the rights in a trade mark is that only the proprietor may use it in business. It follows that manufacturing an object that in one form or another reproduces other proprietor’s two- or three-dimensional trade mark requires a licence, provided that the object is manufactured for business purposes. As with designs, however, the exclusive right in a trade mark does not apply to any part of the mark mainly dictated by functional considerations.
Patents and utility models. Functional considerations belong to the realm of patents and utility models. The exclusive right conferred by a patent or utility model implies that only the proprietor may exploit the protected invention for commercial purposes. Since the term “exploit” covers, among other things, the act of making a protected product, unauthorised 3D printing of such a product is a prima facie infringement. A person distributing protected model files might be liable for a secondary infringement, assuming that the files can be considered the “means” of working an invention referred to in the Finnish Patents Act.
New industrial revolution?
Last year a writer for The Economist argued that the consequences of all the changes that will be brought about by the widespread use of additive manufacturing, more commonly three-dimensional (3D) printing, will amount to a third industrial revolution.
The first revolution began with mechanisation in the late eighteenth century and the second with the introduction of the assembly line in the late twentieth. Now, goes the argument, we are on the threshold of a new era, as the digitisation of manufacturing will transform the way goods are made.
3D printing is a process of making physical objects of virtually any shape from a digital model. The final product is achieved using an additive process where an object is manufactured by depositing material layer by layer. No separate mould is required – the digital model is the virtual mould. A number of different additive processes are used, and the materials that can be printed range from various plastics and ceramics to metal alloys. (Rearden Metal still remains unavailable, but Chinese scientists have begun printing organs with living tissue.)
Chambers Europe has conferred to Krogerus its Award for Excellence in Finland for 2013. This is the first time Chambers Europe has bestowed this honour in Finland.
The award was announced at a gala ceremony held at the Grosvenor House Hotel in London on 25 April. Krogerus was chosen from six law firm nominees.
“We work in a competitive international arena where clients expect the best from our practitioners,” comments Juha Pekka Katainen, managing partner.
“This award affirms the breadth and depth of the entire firm’s competence. Our clients deserve excellence in legal services, and we aim to give it to them.”
Chambers’ editors carried out extensive research from clients and other law firms to select the 2013 winner. The editors said the following about Krogerus:
“This esteemed firm continues to grow in prominence across a number of different practice areas, including real estate, energy, corporate/M&A, intellectual property and insolvency. It is a prime choice for major domestic matters, and also acts for a number of notable foreign investors, particularly from Asia and Germany. It counts major Finnish and other Nordic equity investors and construction companies among its clients, and recently advised AVIC International Investments on the Finnish law aspects of its acquisition of Deltamarin.”
Chambers Europe is a publication of Chambers and Partners. It is widely considered a leading independent organisation ranking law firms worldwide.
You can see the full list of Chambers Europe 2013 winners here: Chambers Award for Excellence
On 20 March 2013, the Finnish government issued its much-awaited proposal for a new Electricity Market Act and an amended Natural Gas Market Act. It also sent to the parliament a separate supervision act.
The proposal implements the European Union’s third Electricity and Natural gas Directives to the Finnish legislation. It also includes numerous nationally prepared amendments and changes.
The proposed acts may have significant impacts for undertakings operating in the energy sector, including operators of electricity systems and energy producers (such as entrepreneurs developing wind power). The new legislation is intended to enter into force as soon as possible, most likely during the summer or fall 2013.
The proposed new Electricity Market Act’s terminology is brought into line with the EU Directive 2009/72/EC on rules concerning the internal market in electricity. The regulation of transmission system derives mostly from EU legislation and includes numerous changes. Other types of electricity systems recognised by the proposed act are high-voltage distribution systems (ex regional system operators), distribution systems and a separate new sub-category of closed distribution systems.
Operations in closed distribution systems are subject to licence and most of the obligations of a system operator apply to such operators, too. The regulation of closed distribution system brings several electricity systems within geographically confined industrial, commercial or shared services sites within the scope of application of the proposed act.
The proposed act requires that power outages deriving from storms and heavy snow loads may not cause interruptions exceeding six hours in town plan zones or 36 hours in other areas in distribution systems. These requirements enter into force step-by-step during the next 15 years and, while the exact measures to be taken are left to the operators, in practice it is estimated that investments in excess of EUR 3.5 billion on, for example, underground cabling and construction of looped and back-up systems are required.
This may have impacts on the Energy Market Authority’s methodology to regulate the reasonableness of pricing.
The content of several central obligations are also clarified. Some criteria used to assess the obligation to develop the system in the Energy Market Authority’s practice are now included in the preparatory materials. The transmission and distribution system operators are required to prepare and submit a specific development plan.
A new general principle of impartiality clarifying the requirements of equitability and non-discrimination in electricity system services is included in the proposal. The distribution system operators are also obliged to prepare for fault situations by as swift repair works and returning to normal operations as possible. They are also obligated to inform customers of outages.
Obligations to connect electricity consumption and generation sites and to transfer energy now implement in full the third-party access principle deriving from Directive 2009/72/EC and EU caselaw.
The proposal includes changes tailored specifically to promote the position of developers of wind power and other renewable energy generation.
A single service line may now serve several power plants instead of one, making it possible to connect several wind power parks through a single service line to the electricity system. This development lowers the actual connecting costs and thus investment costs of the developers. It also clarifies that the general obligations relating to electricity system operators are not applied in service lines serving several undertakings.
Service lines may also connect power generation plants located outside the country borders to the Finnish electricity system, thus making it possible to construct wind power parks further off-shore.
On the retail market side, the proposed act further promotes the position of electricity consumers by, for example, making the change of seller easier, clarifying rules on billing and rising the maximum amount of standard compensation payable due to outages.
On the wholesale market side, the proposed new act on Surveillance of Electricity and Natural Gas Markets Acts includes also provisions on the Energy Market Authority’s co-operation with other national and European authorities. National provisions regarding the EU Regulation on wholesale market integrity and transparency (REMIT) on monitoring and prohibiting market manipulation and insider trading at electricity and natural gas wholesale and derivative markets will be enacted separately.
The most significant change in supervisory powers relates to the Energy Market Authority’s power to propose to the Market Court that it should impose fines up to 10 per cent of the undertaking’s relevant turnover for violations or neglects of certain provisions of the new acts. The Market Court’s decision imposing fines may be appealed to the Supreme Administrative Court.
Fines may be proposed in, for example, instances of failure to fulfil the requirements of the central system operator’s obligations. It is noteworthy that in the future market manipulation and insider trading in wholesale markets may be sanctioned by a similar fining process, as well as possible criminal sanctions for individuals.
While proposals to impose fines are expected to be low in number, this possibility underlines the importance of complying with this sector-specific regulation. To enable effective supervision of compliance with the expanding regulation, the Energy Market Authority’s resources are increased.
Read more about the recent developments in Energy Market Authority’s regulation of reasonableness of pricing: Setting the right charge in electricity distribution.
A recent ruling by the Court of Justice of the European Union (CJEU) could mean trouble for many Community trade marks.
There is now a heightened risk that national courts will invalidate these trade marks if they have not been used extensively enough in the European Union.
A Community trade mark (CTM) confers protection in all 27 EU member states. A CTM registration is granted based on a single application. Conversely, obtaining a bundle of national registrations in a group of member states generally requires filing separate applications in each jurisdiction.
As the cost of obtaining a CTM is not much higher than obtaining national trade marks in two to three member states, CTMs have become an increasingly popular choice. Many companies favour CTMs over national registrations, even when their business is limited to only one member state.
For these companies, CTM protection is sensible in instances where expansion into other EU markets is planned in the relatively near future. However, in light of the CJEU’s ruling, it may be worthwhile to consider national protection in the home market if plans for expansion are uncertain or likely to take more than five years to carry out.
The ruling referred to above was given by the CJEU on 19 December 2012, in case C-149/11 (Leno Merken BV AG v Hagelkruis Beheer BV). The core question in the case was how geographically widespread the use of a CTM must be in order to qualify as genuine use supporting a CTM registration.
Leno Merken had a CTM registration for the mark ONEL. The dispute arose when Hagelkruis filed an application to register the mark OMEL in the Benelux countries. Leno Merken promptly opposed the application. In response, Hagelkruis demanded that Leno Merken provide proof of use of its mark in the EU – failing which the opposition would be rejected.
Leno Merken complied. However, it could only provide proof of use regarding the Netherlands, where it was undisputed that the mark had been put to genuine use. Hagelkruis’ argued that use of a CTM in a single member state is not sufficient to prove genuine use in the EU, as required by the Community Trade Mark Regulation. The Benelux Intellectual Property Office agreed.
The view that use in only one member state is never enough to sustain a CTM registration has been supported by the national trade mark offices of many other member states. On the other hand, the CTM registry, The Office of Harmonization for the Internal Market (OHIM), has maintained that use of a CTM in even just one member state is always sufficient.
In its ruling, the CJEU rejected both of these extremes. It held that territorial borders should be disregarded in assessing whether a trade mark has been put to genuine use in the EU. The territorial scope of the use is only one element of genuine use in the EU.
The CJEU also repeated its earlier finding in case C-40/01 (Ansul BV v Ajax Brandbeveiliging BV) that a mark is put into genuine use when it is used in accordance with its essential function to distinguish the origin of the goods and services covered by it, and for the purpose of maintaining or creating market share in the EU.
The CJEU’s ruling has been interpreted to mean that use in a single member state may suffice when the market for the goods and services concerned is limited in scope. For example, it is not necessarily justified to require that a CTM associated with a local delicacy should be used also outside of its home member state.
On the other hand, when the relevant market is more widespread – as is the case with, for example, the financial services market – it could be difficult to claim that the use of CTM in only one member state constitutes genuine use in the EU.
The reasoning behind the CJEU’s ruling appears to be that the use of a CTM must be extensive enough to warrant its protection in the EU as a whole.
However, the CJEU did not specifically require that a CTM should always be put to use in more than one member state. This position would have resembled the concept of interstate commerce applied in US federal trade mark law. In practice, it would have almost automatically rendered a large number of CTMs void.
The CJEU’s ruling serves as a reminder that companies should consider carefully before deciding to opt for a CTM registration instead of national protection. National trade marks certainly still have their place in the trade mark system in the EU.
This is an important year on the taxation front. New rules restrict interest deductions and increase the transfer tax related to the sale of shares in housing and real estate. Additionally, two tax incentives support research and development activities, as well as innovation and growth.
The Finnish legislature has restricted interest deductions applied in taxation starting in the 2014 taxation year. If your company operates on other than a calendar-year basis for financial accounting purposes, the restriction may apply already in 2013.
The limitation concerns corporations and partnerships carrying on business activities in Finland. Entities carrying on other than business activities, such as real property companies, in general, are excluded from the scope of the limitation, as well as banking, insurance and pension institutions.
According to the main rule, net interest expenses are tax deductible for income tax purposes up the amount of EUR 500,000. Net interest exceeding EUR 500,000 is deductible to the amount corresponding to 30% of adjusted profit of the entity before depreciations, interest costs, losses related to financial assets and group contribution. However, interest paid to a non-related party is tax deductible as a whole.
The restriction is not applied in instances where the ratio of equity to the total balance sheet is not below the corresponding ratio of the whole group.
Transfer tax on transfers of shares of housing and real estate is raised to 2% (the current amount is 1.6%). The new rate is applicable to transfers made on 1 March 2013 or later. Regarding all transactions, the tax base is extended to liabilities transferred to the transferee and benefitting the transferor. Pro rata loans of housing and real estate companies are allocated to the shares transferred and counted to the tax base.
While Finland has not been in favour of the EU financial transaction tax, it introduced a temporary tax for Finnish deposit banks to be applied in tax years 2013–2015. Branches of foreign banks located in Finland are excluded from the scope of the tax. The amount of tax is 0.125% of the risk weighted items, as determined for solvency accounting purposes at the end of previous year.
There are also incentives in the new tax package. The incentives are currently temporary, which means you can apply them for the 2013–2015 taxation years.
One of the incentives provides an additional deduction on salaries related to research and development activities, which is introduced in income taxation. You can use the deduction no matter the size of your company. The amount of additional deduction is in the range of EUR 15,000–400,000.
Additionally, individual investors (so-called business angels) are allowed to deduct half of their monetary investments in a small non-listed enterprise that employs fewer than 50 persons and whose annual turnover or annual balance sheet total does not exceed EUR 10 million. The amount of deduction is EUR 5,000–75,000, and it can be made from capital income. The deduction is considered as income to the investor, among others, when the investor disposes of the investment. Thus, the deduction is not a final benefit. There are several further conditions for the tax deduction.
This regime is conditional and needs still be approved by the EU Commission. It is applied to investments made after the notification.
Another incentive allows corporations to make double depreciations on new plant and equipment in plants taken into use in the tax years 2013–2015.
In addition, the Finnish legislature has introduced several taxation amendments that impact individual persons and estate death-taxation. The Finnish value-added tax has also increased in all classes by 1%.
European Union companies with emissions should start to consider if they want to buy emissions from auctions to meet their quotas. The first primary auctions have already been executed by the common EU auction platform European Energy Exchange AG (EEX). The time is now to gather the information you need to start buying your emissions allowances.
Generally speaking, if you are a company in the European Union that emits green house gases into the air, you may fall under the scope of the European Union’s Emission Trading Scheme (EU ETS). What this means on a practical level is that you can start buying your emissions allowances from the auctions to meet the EU’s emission quotas. The companies impacted the most by EU ETS are electricity producers, heavy industries and aviation companies.
By buying your emission allowances from the auctions early on, you ensure the best price for the quota amounts you need. If you delay, it is possible you may have to buy allowances from more-expensive secondary markets later on. Odds are the so-called “back loading” and potential “set aside” for EU emission allowances in Phase III may result in increased carbon prices.
For now, we are in what is called Phase II of the EU ETS. Fundamental changes are coming, however, in Phase III, which will take place from the years 2013–2020.
During these years, heavy industries and, in all likelihood, some of the European aviation companies will need to buy more than 50 per cent of their allowances from the auctions, with the exception of district heating and the carbon leakage sectors. Electricity companies will need to buy 100 per cent of their allowances in the Phase III.
As a result, emission trading and auctions will undoubtedly become more visible parts of the business for these firms.
Auctions will be conducted either in the common EU auction platform used by 24 Member States or in “opt-out” auction platforms located in Germany, Poland and the United Kingdom. Following a competitive tender procedure, Member States and the European Commission appointed the EEX in Leipzig as transitional common auction platform for Phase III. Also, Germany selected EEX as an opt-out auction platform for Phase III auctions. The United Kingdom has nominated ICE Futures Europe (ICE) as its auction platform for the next trading period.
The time for preparation for the first auctions in 2013 will be very short despite the fact that the auction platforms have been made public. The primary auctions have already been executed in 2012. The first full auctions will take place in the beginning of 2013.
It is recommended that companies start their preparations for the auctions well in advance of the beginning of the Phase III. Several essential steps are outlined below.
Firstly, companies should evaluate their total annual emissions and the amount of allowances they need to obtain from the auctions in the Phase III (the amount they still need to buy in order to be able to comply with the EU ETS regulation). Once obtained, the total amount of allowances will then be surrendered by the end of April each year beginning in 2014. It should be noted that the auctioned allowances of Phase III may only be used to comply with Phase III emissions, not for year 2012. Only if you are an aviation company, you may use the allowances to comply with your emissions in 2012.
Secondly, companies should decide which auctions they will attend. Even if your headquarters is in Finland, you can take part in the common EU auction platform or in the German or United Kingdom platforms. In general, the auctions will be held at least once a week. The calendars for 2013 auctions will be maintained by EEX and ICE. You should follow the auction calendars closely and prepare an auction participation strategy in advance.
Thirdly, companies joining the auctions in 2013 should have their preparations well on their way. These practical preparations include completing an application and gaining access to the auctioning platform, negotiating and signing an agreement with a broker company, preparing financial documents and company compliance programmes, getting an overview of the auctioning products (future, forward or spot), as well as getting acquainted with the auctioning processes and practices.
Finally, participants must comply with the European Union provisions that deal with insider dealing and market manipulation. At worst, legal consequences for neglecting auction or insider regulation may lead to criminal sanctions. Many companies have compliance programmes for insider issues, but considering the sectors participating in emissions auctions, this is not always the case.
By taking these steps, companies can get a jump start on the new auction process.
With a law enacted on 17 December 2012, the Finnish parliament moved forward on the longstanding plan to house intellectual property rights disputes in the Market Court. This legislative reform has a significant impact for all companies operating in Finland. The Market Court will start to hear these disputes in the autumn of 2013.
Currently, if you think someone has infringed your intellectual property rights or has engaged in unfair business practices, you have to bring the dispute to different courts – even if the claims roughly deal with the same facts. This reform makes it possible for a plaintiff to combine these claims.
As a result, the reform will mostly eliminate the need for simultaneous or consecutive litigation in different courts – saving litigants time and money. There is also the thinking that having a specialised intellectual property rights court will help to improve the quality and uniformity of rulings in these matters.
At present, when the National Board of Patents and Registration (NBPR) takes a decision concerning patents, utility models, trade marks, designs, trade names or topographies of integrated circuits, you need to appeal to the NBPR Board of Appeal. If you want to enforce any of these rights, the Helsinki District Court is the venue of first instance. If you want to get a prohibition against unfair business practices, you can take the case to the Market Court. Claims for damages resulting from those practices, as well as matters related to copyright and neighbouring rights, fall under the jurisdiction of the general courts, which may mean any district court in Finland.
After the reform, the Market Court’s jurisdiction will cover all civil and petitionary intellectual property rights matters, excluding only purely contractual disputes where a plaintiff does not claim that its intellectual property rights were infringed. The Finnish judiciary will also transfer petitions for injunctions based on intellectual property rights infringement from the district courts to the Market Court. Additionally, the Market Court will decide civil matters – such as claims for damages – related to intellectual property rights or unfair business practices.
The Market Court will also become the appeal body for all intellectual-property-rights-related decisions that the NBPR has taken. These include appeals against both refusals of registrations and decisions regarding oppositions of registrations. As a result, the NBPR Board of Appeal, stripped of all of its functions, can be abolished. The Market Court will also hear appeals against decisions the Finnish Communications Regulatory Authority has taken under the Domain Name Act.
The general courts will continue to hear criminal cases related to intellectual property rights. However, the issued amendment of law will centralise these matters in the Helsinki District Court, as the first instance.
After the reform, you will be able to appeal against the Market Court’s rulings either to the Supreme Court or the Supreme Administrative Court, depending on the nature of the matter. The Supreme Administrative Court will hear appeals against rulings in matters originating from the NBPR, and the Supreme Court will hear all other matters as a court of last instance. In all cases, you will need leave to appeal.
The legislature intends that the reform take effect on 1 September 2013. As a transitional arrangement, however, trade mark appeals brought before the NBPR Board of Appeal on or after 1 January 2013, as well as appeals related to patents, utility models, topographies and designs brought on or after 1 May 2013 and pending before the Board of Appeal when the reform takes effect, will be transferred to the Market Court. This change will not affect actions pending before general courts.
Wind power offers Finland an attractive means to hit its renewable energy targets. It is estimated that by 2020 some 800 turbines will operate throughout the country, bringing 2,500 megawatts of production capacity. And there are plans for much more wind farms in the pipeline. While the Finnish wind power industry is still in its nascent stage, look for this to change in the near future.
If things go as planned, Finland will increase its share of renewable energy significantly by 2020. Currently, about 30 per cent of the country’s electricity production is from renewables. This amount is set to increase to 38 per cent in the next eight years.
Part of Finland’s package of renewables is an increase of its wind power production to around 2,500 megawatts (MW) of capacity by 2020. Projects already in the works may set this amount even higher than is planned by national targets. The growth of interest in the wind power industry in Finland is thanks to, in large part, the feed-in tariff system that came into force on 25 March 2011.
The feed-in tariff provides wind power producers with a guaranteed production premium of wind power that is set at the difference between the target price and the three-month average spot market price.
The current target price is EUR 105.30 for each produced megawatt. This amount is planned to drop to EUR 83.50 at the end of 2015. The total time for the feed-in tariff is a maximum of 12 years. The tariff is available for an installed capacity of 2,500 MW. After this national target is reached, any remaining project will not receive the feed-in tariff, unless the Finnish legislature increases the capacity amount.
This attractive revenue stream has piqued the interest of local energy producers, developers, and new wind power participants in the market.
But before construction can move forward faster, Finland has regulatory and administrative hurdles. The same rules apply for wind power projects as for any other construction development. Yet, unlike for a typical building project, a whole host of other permits are needed for wind farms. As it stands, multiple governmental agencies require their own processes or permit requirements overlap, adding unnecessary delay and cost to each project.
Construction financing also requires specialised understanding. Banks may have covenants stating financing is subject to a producer getting the approvals for the feed-in tariff subsidy. However, final approval to the feed-in tariff does not come until the wind farm is ready for commercial use. If financing is needed in the build-up stages to get projects up-and-running, banks may have to bear some of the risk that the final tariff approval will, in fact, come once the wind farm is online.
What remains unclear is how participants in Finland will work around this dilemma once wind power projects reach the tens or hundreds of million euros. To get project started, it is possible that developers will seek a greater share of equity funding, bridge financing or non-bank investment sponsorship in the pre-tariff approval stages. Banks may also look to syndicate financing to spread some of the risk.
Some of the biggest environmental impacts wind farms cause comes from the noise from the moving propellers and from the shadows the structure creates in neighbouring lands. A wind farm’s presence in an otherwise minimally habited area also is arguably an eye-sore.
Different stakeholders are looking into ways to compensate landowners from any impairment in the value of their property that a neighbouring wind farm brings. Locating projects alongside motorways, in industrial harbours and in other already built-environments also presents an attractive option that helps to combat the not-in-my-backyard effect that has stalled some wind farm projects.
The Finnish government has acknowledged the obstacles and recently commissioned a report that provides solutions to many of the current challenges.
Compared to neighbouring Nordic countries, Finland’s installed capacity of wind power is currently much lower. By the end of 2011, Sweden already had 2,899 MW of installed capacity in operation, while Denmark had 3,871 MW. At the end of 2011, Finland had just 199 MW of installed capacity.
However, helped along by the Finnish government’s support for the industry’s development – combined with strong public approval (some 90 per cent of Finns are in favour of wind power production) – there are signs that what is now an industry in its early stages of growth will gather strength in the years to come.
In August, the Finnish government allocated EUR 125 million in its 2013 budget to fund the feed-in tariff system for renewables, which is a significant increase from the EUR 97 million apportioned this year. Wind power should benefit from this enhanced funding, but, nonetheless, getting projects started remains problematic.
In the report Tuulivoimaa edistämään (Moving Wind Power Forward), issued last April, Minister Lauri Tarasti offers 16 solutions to the Finnish government on how it can cut certain pre-construction processes to get wind-farms operating faster. Minister Tarasti updated his study in August with another report that discusses how to streamline permit processes.
In July, the Ministry of the Environment also issued a comprehensive report that summarises the procedures needed to get a wind power plant constructed. The report does not offer solutions to the current procedural bottlenecks, but, rather, serves a guideline for how the current process works.
As it stands, Finnish ministries and a working group are figuring out how governmental authorities can implement Minister Tarasti’s ideas on a practical level.
You can see the full report in Finnish (Tuulivoimaa edistämään) by visiting the Ministry of Employment and Environment website: http://www.tem.fi
The firm is regularly involved in leading wind power projects in Finland.
While arbitration offers an excellent means for parties to get their disputes settled faster than in traditional courts, how you draft the arbitration clause in a document is critically important for a positive outcome – should a dispute arise.
Legal agreements often have a clause indicating that parties agree to settle any disputes arising from the arrangement in arbitration. The text for this clause is frequently supplied by a local arbitration institute. Many lawyers in the jurisdiction assume that the text reflects market practice and are reluctant to alter its contents.
But while a standard arbitration clause appears complete on first blush, deeper investigation reveals its potential pitfalls. Before you agree to arbitrate when drafting a contract, there are some things you should keep in mind.
Rather than give the power to appoint arbitrators to an outside institute, parties are better off to keep this power. By doing so, litigants can make sure to appoint the most qualified arbitrators to hear their case. The parties themselves understand the facts better than anyone else and can pick arbitrators with the exact experience needed to settle the dispute in the most competent way.
It is often said that arbitration allows parties to have their dispute heard by arbitrators with intimate experience in their business sector and the disputed facts. Yet while arbitration institutes undertake good-faith efforts to find the most qualified arbitrators for the particular case, the institutes are also guided by other criteria – such as fair distribution of appointments to all candidates, gender equality and making sure to bring up the next generation of arbitrators.
For disputes where the interest is relatively small, say, 0.5 million euros or less, an arbitration institute may use this as a good opportunity to allow less experienced arbitrators decide the case. While from the institute’s perspective this is reasonable and sound, the litigants are likely to want the person with the maximum business background and legal knowledge – and not the person with limited experience but great potential.
Another thing to consider is the number of arbitrators that you agree to in your arbitration clause. It is a common misunderstanding that one arbitrator is sufficient and that the competence among arbitrators is equal.
The downside is that, when left alone to decide a dispute, an arbitrator’s thought processes may veer away from the relevant facts, resulting in judgments that the arbitrator may consider brilliant but the parties find irrelevant. As arbitration disputes, generally speaking, offer no right to appeal, parties may end up with a judgment that is unfair and grossly incorrect.
Parties sometimes think that appointing only one arbitrator is a good way to save money on the cost of the arbitration. But it is important to remember that the cost of the litigators far outweighs the costs of the arbitrators. In essence, a decision to have just one arbitrator is money that is misplaced.
Agreeing to appoint three arbitrators helps to ensure a more just outcome. When one arbitrator starts to process ideas that are off-track, the other two can serve to reject these concepts and get the dispute moving toward a more reasonable outcome – unanimously.
It is fairly common to see time limits in arbitration clauses. These clauses may state that the award should be given within, for instance, six months following the appointment of the arbitrators. Such time limits are needless, as they usually hinder sufficient usage of time for both the litigators and arbitrators. The parties could, of course, agree to dismiss the time limit, but rather often one of the parties is not willing to co-operate, as they have a contradictory interest toward the smooth continuance of the arbitration proceedings.
So, while an arbitration clause is a great thing to include in agreements, please, think the text over very carefully.
Companies operating in the European Union should also take caution in setting recommended resale price for their goods.
European Union competition rules say that suppliers cannot fix resale prices or set minimum prices for goods. When a supplier breaks these rules, authorities can hold that their actions are prohibited “resale price maintenance”.
While companies generally understand that market forces should dictate the price for their goods, where they sometimes run afoul in understanding how strictly competition authorities and courts may review their business practices in light of the competition rules.
In its decision issued on 20 December 2011, the Finnish Market Court found that certain practices developed by Iittala Group Oy Ab* between 2005 and 2007 constituted prohibited resale price maintenance. Iittala is a well-known Finnish design company that specialises in houseware objects.
In its proposal to the Market Court, the Finnish Competition Authority alleged that Iittala had set the minimum price level for some of its household products. Although the Market Court mainly agreed with the competition authority’s proposal and found that Iittala’s resale price recommendations had amounted to retail price maintenance, it reduced the fine originally proposed by the FCA by 25 per cent to a total of EUR 3 million, as it did not find any evidence that Iittala had benefited from its practices. Although Iittala considers the decision unfounded in its press release, it has opted not to appeal.
Iittala strongly disagreed with the Finnish Competition Authority’s proposal, which it argued was based largely on circumstantial evidence consisting mainly of Iittala’s internal documents and e-mails. Iittala submitted that its resale price recommendations had been flexible and should thus be permitted. To support this, Iittala presented extensive evidence that showed the prices of its products had varied greatly during the relevant period.
Iittala also demonstrated that it had not imposed any sanctions on those distributors whose pricing had not corresponded to its recommendations. However, the Market Court did not see Iittala’s recommendations as non-binding and found that there was an agreement or a concerted practice between Iittala and some of its distributors.
Iittala also submitted that its resale price recommendations had been essential to protect its prestigious brand in a situation where it extended its distribution network to include also discount stores and supermarkets.
According to Iittala, the wider availability of its products brought with it the risk of certain distributors free-riding on other distributors’ marketing investments, which was best combated through the use of flexible resale price recommendations. However, while the Market Court recognised that retail price maintenance, in principle, might lead to efficiencies and could thus be permitted, it noted that the burden of proof lies on the party claiming these efficiencies, a burden that was not fulfilled in this case.
In light of the Market Court’s decision, companies should be extremely careful in issuing resale price recommendations. Companies should also be very cautious both in their internal and external communications, as the decision demonstrates the low threshold in the presentation of evidence required to establish an infringement.
*Krogerus, together with another law firm, represented Iittala Group Oy Ab in the Finnish Market Court proceedings described in this text.
Finnish businesses with debts backed by a public authority should consider whether the guarantee holds up to state aid rules and the guidelines given in a recent Helsinki Administrative Court decision. The risk of non-compliance could mean that your public loan guarantee is removed, your company is fined and you risk investigation by the European Commission.
It is not uncommon for a private company in Finland to have a loan that is guaranteed by a local, regional or national public authority. When this happens, an important issue to consider is whether the guarantee meets the European Union’s state aid rules.
In spring 2012, the Helsinki Administrative Court issued a decision on the application of state aid rules to a loan guarantee given to Vantaan Energia Oy (Vantaa Energy Ltd), an energy operator in Finland’s fourth largest city of Vantaa.
The facts of the dispute date back to March 2011, when the Vantaa City Council granted Vantaa Energy a surety for a maximum amount of EUR 250 million to guarantee loans for the construction of the Långmossebergen waste-fired power plant, located along Ring Road III, in Vantaa.
Three residents of Vantaa appealed the City Council’s decision to the Helsinki Administrative Court. They charged that the guarantee violated state aid rules. The court ruled in the plaintiffs’ favour. It held that the City of Vantaa failed to establish the market price for the guarantee limited and that this was a violation of state-aid rules. The court also annulled the City Council’s decision to establish the guarantee.
Vantaan Energia is currently building the waste-to-energy plant (it is set for completion in 2014), but what it no longer has are the public loan guarantees in the form given by the Vantaa City Council in March 2011.
The guarantee limit granted by the City of Vantaa covered the financial institution loans and interest. According to the City Council decision, a counter guarantee amounting to 1.5 times the amount of the loan was required from Vantaa Energy. In addition, a guarantee commission was set and Vantaa Energy was required to take a negative pledge. The estimated total cost for the waste-fired power plant was approximately EUR 270 million at the time of the City Council’s decision, out of which EUR 250 million were funded with long-term loans.
In its ruling, the Helsinki Administrative Court said that a municipality has to take into account the effect of the EU state aid rules when it gives a guarantee. If the general provisions on state aid are ignored by the municipality, an administrative court can hear the case through a municipal appeal. Therefore, the Helsinki Administrative Court confirmed that national courts have jurisdiction to supervise compliance with state aid legislation.
As for the market price of the guarantee limit, the Administrative Court stated that the documents of the City Council failed to describe the terms of the limit, the means for the amortisation of the loans, the amount of interest charged and certain other substantive loan terms. The documentation could not have enabled an adequate evaluation of the market price of the guarantee limit. Since the City Council had not evaluated the applicability of state aid rules or whether the guarantee limit was determined on market terms, the Helsinki Administrative Court declared the decision of the Vantaa City Council void.
In its decision, the Helsinki Administrative Court did not assess whether the guarantee actually involved state aid or not. The Administrative Court merely stated that it was a possibility that could not be ruled out. This was sufficient basis for annulling the City Council decision. The Vantaa City Executive Board decided, in May 2012, not to appeal to the Supreme Administrative Court.
What this means for businesses is they should ensure that their loan practices meet state aid rule requirements. While the case law in Finland on this issue is scarce, non-compliance with the rules could have unfortunate consequences.