Insights

07/11/2018

Appealing the FCCA’s decisions in court

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.

The right of appeal requires a direct effect on the appellant

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. 

Reluctance to accept appeals against FCCA decisions of dismissal

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.

A changing trend?

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.  

Further considerations

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.