Dr Peter Whelan advises the Finnish Ministry of Employment and the Economy and the Finnish Competition and Consumer Authority

On 27 May 2014, at the House of the Estates in Helsinki, Dr Peter Whelan, presented his final report on whether Finland should introduce criminal sanctions for cartel activity.

Dr Whelan’s ninety-page report was jointly commissioned by the Finnish Ministry of Employment and the Economy (MEE) and the Finnish Competition and Consumer Authority (FCCA) and will be used by the MEE, the FCCA and the Finnish Ministry of Justice in order to determine whether cartel criminalisation should occur in Finland in future.

Dr Whelan argued that, while a solid case for the introduction of criminal cartel sanctions in Finland could be made out, criminalisation should not occur without the resolution of certain fundamental and problematic issues. Chief among these issues is the protection of the administrative leniency programme in Finland. Dr Whelan argued that in order to protect that programme post-criminalisation, the Finnish authorities would need to be able: (i) to create a system that allows for the automatic granting of criminal immunity to individual cartelists who are the first to report their cartel to the authorities; and (ii) to create a partial link between the criminal immunity programme and the administrative leniency programme (in order to protect the employees of the firm seeking administrative leniency). Dr Whelan also argued that the use of orders banning convicted cartelists from engaging in the future management of a business could also be a useful method of complementing the enforcement of cartel law in Finland.

Following Dr Whelan’s presentation, the Director General of the Ministry of Employment and the Economy, Pekka Timonen, noted that the report presented both the basis for the justification of criminalising cartels and the justified need to do so from the aspect of the judicial system in matters related to competition. The Director General also accepted that there was a significant risk that criminalisation could indeed endanger the efficiency of the administrative leniency programme. He also saw merit in introducing in Finland a system allowing for the imposition upon cartelists of orders banning business activity. In forwarding Dr Whelan’s report to the Ministry of Justice, the MEE will request the Ministry in particular to consider whether it is feasible to protect the functionality of the leniency system in the context of cartel criminalisation. In addition, the Ministry of Justice will also be requested to examine the concept of imposing orders banning business activity.

Dr Whelan’s research on cartel criminalisation forms the substance of his forthcoming book The Criminalization of European Cartel Enforcement: Theoretical, Legal, and Practical Challenges, which will be published in June 2014 by Oxford University Press as part of their series Oxford Studies in European Law.