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Finland/ Supreme Administrative Court/ KHO:2019:98 Decision no. 3712; 189/3/18, 193/3/18, 195/3/18, 213/3/18, 220/3/18, 223/3/18, 235/3/18, 247/3/18 and 261/3/18

Finnish Competition and Consumer Authority, Oy Matkahuolto Ab, the Finnish Bus and Coach Association and seven coach companies; appeal against the decision of the Market Court

Policy area:
Competition
Deciding Body type:
National Court/Tribunal
Deciding Body:
Supreme Administrative Court
Type:
Decision
Decision date:
20/08/2019

Key facts of the case:

The Competition and Consumer Authority had submitted a proposal to the Market Court under which  a penalty payment amounting to over EUR 30 million should be imposed on seven coach companies, the bus sector lobby group Finnish Bus and Coach Association and Matkahuolto (a service and marketing company promoting bus and coach services in Finland). In 2010-2015, the companies had sought to maintain their status in the market and to prevent the access to the market of competitors by excluding new regular services from Matkahuolto’s timetable and ticket purchase services as well as parcel delivery services. The Market Court found that the companies had operated a cartel and ordered each of the parties involved in the cartel to pay a EUR 100,000 penalty payment for prohibited restriction of competition. The cartel companies appealed against the decision to the Supreme Administrative Court. The Competition Authority also appealed, because it considered the fines imposed were insufficient. In its decision, the Supreme Administrative Court applied the Competition Act, TFEU as well as the relevant case law of the CJEU. The references to the Charter were included in the court’s discussion concerning fair trial, the rights of the defence and the principle of equal treatment.

Key legal question:

The Supreme Administrative Court considered whether the penalty payments were justified and what would be the right amount of the fine for each respondent company.

Outcome of the case:

The Supreme Administrative Court found that the anti-competitive behavior of the companies prevented the liberalization of the market and delayed opening it up to competition. The court increased the amount of the financial penalties imposed on the respondent companies to a total sum of EUR 8,9 million. Heavier fines were imposed on Matkahuolto (EUR 4,3 million) and Koiviston Auto (EUR 2,3 million) which is one of the largest bus companies in Finland. The payments imposed on the smaller bus companies and the Finnish Bus and Coach Association varied between EUR 100,000 and EUR 600,00.

 

The Supreme Administrative Court held that the Market Court had not fully assessed the nature and extent, degree of gravity, and the duration of the infringement on an individual basis, taking into account the conduct of each of the companies involved. The amount of the penalty payment must be in proportion to the gravity of the infringement, in order to satisfy the requirements of Article 47 of the Charter. The Market Court’s decision did not take into account the varying sizes and turnovers of the companies involved. This was contrary to the principle of equal treatment of the respondent companies, within the meaning of the relevant anti-trust case law of the CJEU. Some of the companies had requested an oral hearing. The Supreme Administrative Court assessed the request in light of the Administrative Judicial Procedure Act, Article 47 of the Charter, Article 6-1 of the ECHR and the relevant case law of the ECtHR. The court concluded that an oral hearing was not necessary because the Market Court had held an oral hearing in the first instance.