Some Current Hot Topics
As in many other countries, sustainability, sustainable finance, and the measures needed to reach the climate and sustainability objectives are significant topics in Finland. Finland is committed to implementing the UN’s 2030 Agenda for Sustainable Development and the Finnish government has outlined a plan for Finland to be carbon-neutral by 2035, becoming the world’s first fossil-free welfare society. Significant financing and investments are needed to address different sustainability challenges and to support environmentally friendly initiatives. Also, for example, the EU Taxonomy Regulation, a classification system, establishing a list of environmentally sustainable economic activities, has been widely discussed in Finland. Originally Finland voted against the EU Taxonomy Climate Delegated Act due to its potential impact on the country’s forest industry. However, as the majority of the other member states voted in favour, the Act entered into force at the beginning of 2022. The second Delegated Act, mainly related to the assessment of specific nuclear and gas energy activities, has been adopted by the Commission in July 2022 and has entered into force as of January 2023.
Generally, the demand for climate- and planet-friendly solutions and innovations is high. The Finnish financing sector is engaged and closely following in this development and the sustainability indicators and ESG policies are being developed and introduced. Major Finnish banks have committed to the UN’s Principles for Responsible Banking and their strategy and practice will have to be aligned with sustainability goals and, for example, the Paris Climate Agreement. In practice, these sustainability-related principles are currently applied in the due diligence process and new financial products, such as green bonds and loans and, for example, margin grids are already based on sustainability indicators such as carbon dioxide emission levels. This progress and development will continue and increasing expertise in the field is needed. Some guidelines, principles and models already exist but it still remains to be seen how the EU regulation and for example Loan Market Association guidelines develop and shape the finance sector and practices around sustainability and related requirements and recommendations.
Recently, another topic gaining increasing attention has been sanctions compliance and clauses related to sanctions in financing agreements. EU sanctions are directly applicable law in Finland. In addition, many financing agreements include references to UK and US sanctions, and in some cases they might also become applicable in relation to a Finnish company, otherwise through a supply chain. Both financiers and borrowers are, and they need to be, increasingly cautious and aware of the applicable sanctions and the details and background or their counterparties. This has been visible in the market and this development will most probably continue. Sanctions related-clauses should always be carefully considered in order to avoid unintentional breaches and different adverse consequences, both on the borrower and lender side.
Legal Issues Related to the Finnish Banking and Finance Market
Financial assistance/corporate benefit
Like many other countries, Finland has rules regarding the prohibition of financial assistance and a requirement of corporate benefit. According to the Finnish Limited Liability Companies Act (statute 624/2006, as amended) a limited liability company shall not provide loans, assets or security for the purpose of a third party acquiring shares in the company or its parent company. Further, transactions which, in breach of the provisions of the Companies Act, reduce the assets of a company or increase its liabilities without any corporate benefit or a sound business reason for the company, constitute an unlawful distribution of assets.
The concept of corporate benefit is always evaluated from the perspective of the company granting loans or security and the assessment is made on a case-by-case basis. Finnish company law does not recognise any group benefit. Pursuant to the general principles of the Companies Act, it is the management’s obligation to assess the existence of corporate benefit or a sound business reason for entering into any particular transaction. However, ultimately the determination is made by an insolvency administrator and/or the court. Finnish market practice in situations where the applicability of the financial assistance prohibition or the existence of a corporate benefit for the company is not clear or is open for interpretation, is to include generic limitation language in the finance documents applying to both guarantees and security. The limitation states that a guarantee and/or security will only be provided to the extent this does not violate the financial assistance or distribution of assets provisions of the Companies Act. There is, however, no Finnish case law on such limitation language, and therefore the significance a Finnish court would assign to such a clause cannot be fully determined.
Floating Charge
In Finland, common security in financing transactions is a floating charge (also called a business mortgage). A Finnish floating charge covers all movable assets of a company, including all fixed assets (eg, machinery, equipment and trade marks), current assets (eg, raw materials, consumables and finished products and goods) and liquid assets (eg, cash at hand and receivables).
A new floating charge is created by entering into a pledge agreement regarding mortgage notes and delivering an application to the relevant authority for the issuance of new mortgages notes with instruction to deliver such new mortgage notes directly to the secured party. If mortgage notes over the assets of a company already exist, a pledge is created by entering into a pledge agreement regarding these mortgage notes and delivering them to the secured party.
Mortgage notes evidencing a floating charge are bearer notes, hence the transfer of a floating charge is executed by delivering the mortgage notes to the possession of the secured party. Although it is not mandatory, it is possible (and recommendable) to register the current holder of the mortgage notes in the Finnish Floating Charge Register. By registration, the secured party (pledgee) in practice ensures that it is contacted by the administrator in an insolvency situation and by the bailiff in case of enforcement of a floating charge granted to a third party. An original copy of the mortgage note needs to be presented in connection with the enforcement of the floating charge.
In an insolvency scenario, floating charges entitle to a priority over 50% of the enforcement proceeds of the relevant assets. The priority is limited to the nominal amount of the mortgage notes plus interest and enforcement costs as determined in the mortgage note.
Some assets (such as shares and receivables) can be separately pledged in spite of the existence of a floating charge. If a separate pledge has been created over an asset, such asset is not covered by the floating charge. In addition, separate mortgages may be created over certain asset classes (eg, large vehicles and aircraft) under Finnish law. These assets are not covered by a floating charge even if such assets have not been separately mortgaged.
Pledge of Receivables and Bank Accounts
A pledge over receivables and a pledge over bank accounts are essential to a Finnish security package, particularly in project finance. In Finland, both may be created by entering into a pledge agreement between the pledgor as the creditor of the relevant receivable or the holder of the bank account and the pledgee as the creditor against the pledgor. In order to create protection against third parties, the debtor/the bank should be notified of the pledge and instructed not to make any payments to the pledgor.
In practice, it is sometimes agreed that although a pledge agreement is executed, the pledgor is free to collect the receivables or to use the pledged bank account until a default occurs. In such cases, perfection measures are incomplete until the default and instructions to the debtor/the bank that no payments can be made to the pledgor and therefore the pledge is also subject to claw-back risk. This is relatively common practice but also something that needs to be consciously considered when entering into financing arrangements that are, at least partially, secured by a pledge over receivables and bank accounts.
Guarantee as for One’s Own Debt
When a guarantee is required for payment obligations, in the Finnish market it is common to require and give such guarantee as a guarantee as for one’s own debt. This form of guarantee is covered by the Finnish Act on Guarantees and Third-Party Pledges (statute 361/1999, as amended). Under such guarantee, a guarantor is liable for the principal debt in the same manner as for its own debt (as the name suggests). The creditor is entitled to demand payment from the guarantor immediately after the principal debt (in full or in part) has fallen due and payable. Contrary to a demand guarantee, a guarantee as for one’s own debt is related to the underlying debt obligation and subject to the same defences.
When entering into a guarantee as for one’s own debt, it is essential to identify the guarantee as such in the guarantee documentation. If nothing has been indicated in the relevant agreement, a guarantee is taken to create a secondary guarantee which does not place the creditor in as strong a position as a guarantee as for one’s own debt would. References to the applicable (and excluded) sections of the Finnish Act on Guarantees and Third-Party Pledges are commonly included.
Mankala Energy Companies
A specific concept in the field of electricity production in Finland is the so-called ‘Mankala principle’, which is based on the Finnish Supreme Administrative Court ruling from the 1960s. It establishes that a limited liability company, instead of paying dividends, may produce affordable energy for its shareholders as set out in its articles of association. The shareholders have the obligation to bear the operating costs in proportion to their shareholding in the company and have the corresponding right to a proportion of the electricity produced. The purpose of a Mankala company is to produce electricity for its shareholders at the lowest possible cost, whether as an independent energy producer or as an energy procurement company. The shareholders may, in turn, use the electricity for their own purposes or sell it onwards. The purpose of a Mankala company is not to make a profit; the lower procurement costs constitute the benefit received by the shareholders. The Mankala principle must be followed carefully or tax may become payable. In energy financing, the impact of Mankala structures should always be carefully considered.
More information:
Antti Rintakoski
Partner
+358503445606
antti.rintakoski@hpp.fi
Teija Lius
Partner
+358405599872
teija.lius@hpp.fi
