Decision of the Deputy Chancellor of Justice Regarding Attorneys’ Rights During the FCCA Investigations

In its recent decision, the Deputy Chancellor of Justice held that the procedural instructions issued by the Finnish Competition and Consumer Authority (the FCCA) infringe the freedom of expression and the right of defence. According to the Deputy Chancellor of Justice’s opinion, the FCCA cannot prohibit a person from being heard or their attorney from recording the hearing of a party without legitimate grounds.

In its complaint that it addressed to the Deputy Chancellor of Justice on 12 April 2019, the Finnish Bar Association requested an investigation into the proceedings of the FCCA.

Pursuant to the complaint, the FCCA has issued a code of practice under which the FCCA is entitled, on a case-by-case basis, to prohibit an attorney from recording the hearings of their client during an FCCA investigation carried out under the Finnish Competition Act. However, under the code of practice, the FCCA itself is entitled to record these hearings. The Finnish Bar Association requested the Chancellor of Justice to investigate whether the FCCA’s conduct complies with the law and the requirements of good governance.

In its explanation, the FCCA stated that, pursuant to the Finnish Administrative Procedure Act, the FCCA must ensure an adequate and appropriate investigation of antitrust matters by obtaining the information and reports necessary for resolving the matter. The FCCA held that a recording is an official document referred to in the Finnish Public Access to Information Act and therefore subject to the said law on the grounds that a recording can be considered to constitute an identical copy of an official document. The FCCA held that it has statutory grounds to prohibit its hearings from being recorded on a case-by-case basis if the resulting recording would jeopardise the FCCA’s role as a supervisory authority.

In its decision, the Deputy Chancellor of Justice discussed the general prerequisites for restricting someone’s rights as well as for securing the means by which authorities are able to conduct their tasks in peace. Under the Constitution of Finland, everyone has the freedom of expression and is protected under the law. This includes the right to be heard as well as other guarantees of a fair trial and good governance. Pursuant to the Finnish Constitution, public authorities must guarantee the observance of basic rights, liberties and human rights, and the exercise of public powers must always be based on an act.

The freedom of expression entails the right to express, disseminate and receive information, opinions and other communications without prior prevention by anyone. Any restrictions imposed on this fundamental right must be based on an act, and they must be strictly defined and specified with sufficient precision. Furthermore, there must be an overriding social need before such a restriction can be imposed.

Public authorities may not, in general, prohibit a person from being heard or from recording a hearing in which he or she is present as a party and may make observations on the situation. If the person to be heard has an attorney, he or she is entitled to exercise the same right to make observations on the situation, for example by recording the hearing. As fundamental rights cannot easily be overridden, the Deputy Chancellor of Justice held that a prohibition imposed on the right to record would restrict the freedom of expression of the person being heard.

The right to a fair trial and the fairness of the trial presupposes an equal opportunity for all parties to the proceedings to present their claims and arguments and to prepare and build their defence on equal terms. According to the Deputy Chancellor of Justice’s opinion, these rights are impaired if the person being heard does not have the same opportunity to record the hearing as the FCCA does.

Good governance includes hearing all parties concerned and all parties’ right to information. In administrative proceedings, the parties concerned must be guaranteed the right to be informed of all facts that may affect the outcome of their case. The administrative procedure must take into account the provisions regarding publicity and the freedom of expression set out above as well as the right to a fair trial and the principle of contradiction. In light of the above-stated, the Deputy Chancellor of Justice held that the FCCA’s procedure does not fulfil the preconditions of good governance if the FCCA is entitled to record hearings but the person to be heard and his or her attorney may only take notes in writing.

In conclusion, the Deputy Chancellor of Justice stated that, as a general principle, any derogations from fundamental rights must be interpreted strictly. According to the Deputy Chancellor’s opinion, more weighty grounds should exist for the prohibition than those presented by the FCCA. Furthermore, the Deputy Chancellor of Justice held that the preconditions for imposing such a prohibition should, in any case, be regulated by law.

This decision confirms that regardless of the nature of the offense, everyone must have the right to a fair trial and an equal opportunity to defend himself or herself, which cannot be withheld on weak grounds.

Borenius’ lawyers are available to assist in addressing any questions you may have regarding this new decision. Our head of antitrust Ilkka Aalto-Setälä serves as the chairman of the Finnish Bar Association’s Competition Law Expert Group.