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The Finnish Supreme Court Grants a Limited Leave of Appeal in the Asphalt Pavement Cartel Case

  • Finland


    The Finnish Competition Authority (”FCA”, nowadays Competition and Consumer Authority “FCCA”) discovered a large national cartel taking place in the asphalt pavement industry in Finland during 1994-2002. After extensive proceedings before the Market Court and the Supreme Administrative Court, the latter ruled on 29 September 2009 that Lemminkäinen Oyj, VLT Trading Oy, NCC Roads Oy, Skanska Asfaltti Oy, SA-Capital Oy, Rudus Asfaltti Oy and Super Asfaltti Oy (the “Respondent Companies”) had taken part in a national cartel fixing prices and sharing geographic asphalt pavement markets.

    After the Supreme Administrative Court had confirmed the existence and the duration of the asphalt pavement cartel and imposed the penalties as the final instance, the purchasers of the asphalt pavement services i.e. 40 Finnish municipalities and the State of Finland (the “Claimants”) brought follow-on damage claims against the Respondent Companies in the Helsinki District Court. The Helsinki District Court obliged the Respondent Companies to pay damages to the Claimants. All the Parties appealed the decision to the Helsinki Court of Appeal which rendered its ruling 19 October 2016. The amount of damages payable was decreased to approximately 35 MEUR altogether.

    Eversheds Sutherland represents ten municipalities who then appealed the case to the Supreme Court of Finland. The municipality of Vantaa, represented by Eversheds Sutherland, was the only municipality being granted a leave of appeal; the decision was received 6 September 2017. The leave of appeal was restricted to the specific question of whether the liability to pay damages subject to the cartel survives certain business transactions and is passed on to the company continuing the business. Lemminkäinen Oyj was the only Respondent Company who was granted a leave of appeal. The leave of appeal was restricted to the question of how the limitation period to claim for damages applies to joint liability and only covered the cases in which the municipalities of Rovaniemi and Mikkeli are acting as Claimants. In other words, the Supreme Court will only deal with a very limited aspect of the proceedings.

    The next stage in the proceedings is for the Parties to exchange submissions. This will take place early October 2017.

    The asphalt pavement cartel follow-on damages litigation represents one of the most complex legal proceedings ever handled in Finnish courts. The ruling of the Supreme Court will constitute a significant landmark precedent, when it comes to damage caused by competition infringements taking place prior to the implementation of the Directive 2014/104/EU on actions for damages under national law for infringements of the competition law provisions. The case continues to attract European-wide attention.

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