The Finnish Parliament has approved a Government Bill which has
the effect of imposing a dominant position on two major Finnish
retailers, S-group and Kesko. The new law will enter into force on
1 January 2014. It does not have retroactive effect.
According to the new Section 4a of the Competition Act, an
operator in the Finnish consumer goods retail sector is deemed to
hold a dominant market position if its market share exceeds 30 per
cent. On current market shares, both S-group and Kesko will hold a
dominant position on certain consumer retail markets, including
foodstuffs. The presumption of dominance is non-rebuttable. The
dominant position applies to both retail and procurement of daily
consumer goods.
According to the preparatory works of the Bill, the abuse of the
dominant position shall be assessed in light of article TFEU 102.
However it has been widely recognized that the applicable EU case
law does not cover all the practices raised as potentially abusive.
The preparatory works raise as issues that may merit further
analysis e.g. the payments for access to shelf space, imposing an
unfair imbalance of risk and loyalty card schemes. Consequently, we
anticipate that the Competition Authority will provide further
guidance to market parties on its interpretation of the new law in
the months to come.
We note that certain commentators have suggested that ascribing a
dominant position automatically may help foreign firms investing or
expanding at the expense of major Finnish firms.
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