In Greece, Law 3959/2011 on the 'Protection of Free Competition' (Greek Competition Act) is the main piece of legislation regulating free competition. The prohibition of abuse of dominance is established, in particular, by virtue of Article 2 of the Greek Competition Act, which essentially mirrors Article 102 of the Treaty on the Functioning of the European Union (TFEU).
Hence, the abuse may consist in:
- directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
- limiting production, distribution or technical development to the prejudice of consumers;
- applying dissimilar conditions to equivalent trading transactions with other trading parties, especially the unjustified refusal to sell, buy or otherwise trade, thereby placing certain undertakings at a competitive disadvantage;
- making the conclusion of contracts subject to acceptance, by the other parties, of supplementary obligations which, by their nature or according to commercial practice, have no connection with the subject of such contracts.
The Hellenic Competition Commission (HCC) is the national competition authority, which, without prejudice to the responsibilities of other authorities, is competent for the enforcement of the provisions of the Greek Competition Act, as well as of Articles 101 and 102 of the TFEU.2
The HCC has issued acts on procedural issues that apply also in investigations for abuse of dominance cases, such as rules on procedure for the acceptance of commitments (HCC decision No. 588/2014), the treatment of confidential information (HCC Notice of 13 January 2015) and access to file (HCC Rules of Internal Procedure and Management of 16 January 2013).
In assessing abuse of dominance cases, the HCC follows the relevant guidance of the European Commission and respective EU case law.
Finally, in relation to the telecommunications sector, the Hellenic Telecommunications & Post Commission (EETT) is pursuant to the provisions of Act 4070/2012 on electronic communications and other provisions, responsible for, inter alia, applying the provisions of the Greek Competition Act, as well as of Articles 101 and 102 of the TFEU and EU Regulation 1/2003 in relation to the exercise of electronic communications activities.
II YEAR IN REVIEW
During 2012-2017, the HCC issued 11 decisions on abuse of dominance,5 whereas in 2018 the authority rendered a notable decision against Elais-Unilever Hellas for alleged implementation of abusive practices at retail and wholesale level in the margarine market resulting in the imposition of a fine of approximately €8.7million.6
ELMIN Bauxite SA
By virtue of Decision 690/2019, HCC adopted, on 30 July 2019, interim measures against ELMIN Bauxite SA (ELMIN), a company active in the market for the production and trade of bauxite, for having allegedly abused its (super)dominant position, being the only producer-supplier of bauxite in Greece. The above decision was issued on HCC's own initiative and following its ex officio investigation, upon receipt of a complaint by Mytilineos SA (Mytilineos), an entity active in the metalworking industry.
The case involved the aimed sudden and substantial reduction by ELMIN of the bauxite (including bauxite derivatives) quantities that it supplied to Mytilineos. According to HCC, ELMIN's behaviour, entailed the danger of excluding certain suppliers/products from the relevant market, thus restricting intra-brand competition. In addition, the increase of prices was deemed probable as a result of ELMIN's anti-competitive behaviour to the consumers' harm.
In particular, the HCC found that ELMIN's behaviour constituted: (1) an unjustified refusal to sell; (2) an indirect imposition of unfair sales conditions; and (3) a limitation to the production of bauxite to the detriment of consumers.
Procedurally-wise, the HCC ruled that the conditions for the imposition of interim measures, under applicable rules, were met since: (1) it was deemed probable that ELMIN's practices constituted an abuse of dominance under the Greek Competition Act and TFEU due to latter's unjustified refusal to sell to Mytilineos, combined with the indirect imposition of unfair sales terms and limitation to the production of bauxite, which could not have been objectively justified; and that (2) there was an urgent need to prevent an imminent danger of irreparable damage to the public interest, taking into account factors such as difficulty of finding alternative sources of supply, even from entities active in the downstream markets, and insecurity in ensuring required quantities, thus putting at risk both the activity of Mytilineos, as well as the smooth supply of the market.
In light of the above, the HCC ordered ELMIN to: (1) immediately supply Mytilineos with the required quantities of bauxite for 2019 as it did with respective bauxite quantities in 2018, in order to prevent the probable systemic risk in the relevant markets; and (2) to enter into negotiations with Mytilineos for concluding a bauxite supply agreement under specific conditions. Finally, the HCC also threatened ELMIN with a fine of €8,000 per day of non-compliance to its interim decision.
Another interim measures ruling was issued by the HCC against the company ARGOS in the market of distribution of print press products following a request of the Minister of Finance (currently Minister of Development and Investments).
In particular, the HCC unanimously found that the infringement of abusive exploitation of dominant position was likely on behalf of ARGOS and constituted more precisely: (1) an unreasonable refusal to sell, by unilaterally imposing the terms of its new commercial policy, without informing and negotiating with the publishing companies on the above terms in a timely manner; (2) an indirect imposition of unreasonable trading conditions in the context of the enforcement of its new commercial policy; (3) a discriminatory treatment with respect to its policy for the return of the deducted insurance contributions, considering that it treated third companies that were not related to it differently as it did not return the entire amount of the deducted contributions to them, as opposed to other related publishing companies (i.e., its shareholders); and (4) an unreasonable refusal to sell, by refusing to distribute print press products.
Against that background, the HCC ordered ARGOS to: (1) revoke its new commercial policy for all publishing companies; (2) cease its unreasonable refusal to distribute the print press products to the publishing companies; (3) return the entire amount of the insurance contributions to all publishing companies; and (4) enter into negotiations with all publishing companies to form a new commercial/pricing policy. The HCC also threatened ARGOS with a fine of €5,000 for each day of non-compliance with its interim measures decision.
Meanwhile, the HCC issued earlier this year its Opinion 39/2019 on the functioning of competition in the national market of press distribution. The HCC highlighted the structural weaknesses of the print press distribution market, including: (1) decline of demand for the print press products; (2) legal requirement to distribute press products throughout Greek territory; (3) particular significance of the sale of publication, especially with respect to the overall cost of ARGOS; and (4) revenue and business methods of the publishing companies, the sale of publications (in comparison to the revenue generated from digital advertising). In this context, the HCC concluded that the above weaknesses lead to the creation of a potential 'natural monopoly' or 'essential facility' in the market at hand. In this respect, the HCC analysed the pros and cons of various measures for dealing with the above problems, the measures relating to the legal form of the distribution agency, the enhancement of the negotiating position of publishing companies, the enactment of a Code of Conduct and the classification of press distribution services as services of general economic interest.
By virtue of its unanimous Decision 698/2019, the HCC accepted the commitments offered by DIAGEO Hellas SA (DIAGEO), which, according to authority's preliminary analysis, was dominant in the markets of gin, scotch whisky and ReadyToDrink/Premix spirit drinks and, in particular, in the on-premises distribution channel in Greece.
The company's alleged anticompetitive practices pertained to the provision of exclusivity of pouring services (concerning unbranded demand) and of marketing and visibility services (concerning branded demand), by on premise outlets to DIAGEO. According to the HCC, the above were capable of foreclosing potential or existing competitors from access to significant part of relevant markets through the incentivisation of exclusivity by DIAGEO, bolstered by the offering of financial incentives (lump sums or rebates, or both).
In order to accommodate the HCC's concerns but without admitting infringement of competition law rules, DIAGEO proposed a set of commitments, aiming to lift exclusivity with regard to pouring (e.g., by undertaking not to enter into pouring agreements with existing or new strategically important on-premises outlets regarding a large portion of unbranded demand, nor to provide special incentives to on-premises outlets to pour brands or brand variants of DIAGEO, or both, with regard to particular types of beverages, etc.) and marketing services (e.g., undertaking that DIAGEO brands or cocktails be included in the outlet's menu and on tables would not account for more than 50 per cent of all brands or cocktails listed in respective category of menu and of all tables designated for the service of drinks in the on-premises outlets, etc.), so that every strategically important outlet and on-premises outlet would be able to offer these services in parallel. The duration of the commitments was set to five years.
Summarised information about HCC's decisions and pending cases is provided below.
Investigations of abuse of dominance pending at the HCC
|Sector||Investigating authority||Conduct||Case opened|
|Citrus fruit sector
|HCC||Abuse of Dominance, unspecified||April 2020|
|HCC||Abuse of Dominance, unspecified||March 2020|
|Banking||HCC||Exclusionary practices in the context of provision of banking and payment services||November 2019|
|Supply of fur animal food
|HCC||Abuse of Dominance, unspecified||December 2019|
(Coca-Cola-3E Greece SA)
|HCC||Abuse of Dominance, unspecified||September 2015|
HCC decisions in the past year (2019) for abuse of dominance
|Sector||Investigating authority||Conduct||Fine imposed|
|Bauxite production and trade||HCC||Refusal to sell, imposition of unfair trade conditions and restriction of production||(Decision in substance pending – only interim measures decision issued)|
|Printed-press distribution||HCC||Refusal to sell, imposition of unfair trade conditions and discriminatory treatment||(Decision in substance pending – only interim measures decision issued)|
|Gin, Scotch Whiskey and RTD/Premix spirit drinks||HCC||Exclusivity agreements||(Commitments decision not published yet – only press release)|
In its long-awaited decision, the Council of State issued last year its decision9 in an abuse of dominance case between the EETT and OTE, the leading telecommunications provider in Greece.
In particular, the case which had been initially brought before the EETT, following a complaint by OTE's competitor (i.e., Tellas), involved restrictions imposed by OTE in the offering of its wholesale broadband access service, which according to the EETT constituted abuse of dominance, in the form of, inter alia, price squeeze.10 In this respect, the EETT imposed a fine of €20 million on OTE having found that OTE's offering in the wholesale broadband access sector, where the latter was dominant, did not allow its competitors to trade profitably in the downstream market of retail broadband internet access. In reaching the above conclusion, the EETT applied the reasonably efficient operator (REO) criterion.
Thereafter, OTE challenged the decision before the Athens Administrative Court of Appeals, which partially upheld the EETTs decision, insofar as it related to the price squeeze aspect of the case. The fine was also reduced by €10 million.11 In substantiating the infringement of abusive price squeeze, the Court accepted the EETT's stance, namely that proof of existence of price squeeze is sufficient, without the need to also prove the existence of an anticompetitive effect.
The case was ultimately brought before the Council of State, where OTE claimed that the EETT had wrongfully applied the REO criterion, instead of the equally efficient operator (EEO) criterion (usually adopted by the European Commission). OTE supported, among others, that EETT failed to prove the company's intent to implement the alleged abusive pricing policy and to examine the effects of alleged abuse in the relevant market.
The Council of State upheld adoption of REO criterion by the EETT, ruling that EEO criterion could not have been applied due to OTE's refusal to provide the necessary information for this purpose to the EETT. But, referring to the Deutsche Telekom12 case, the Council of State ruled that the mere existence of a pricing policy implemented by a dominant undertaking does not render such policy abusive under Article 102 TFEU, without evidence of an anticompetitive effect, which (proof), however, exists if the anticompetitive effect is related to possible barriers which pricing policy could have created for the growth of products on the retail market in end-user access services on the degree of competition in that market. The Council of State concluded that, in order to prove the abusive nature of such practice, an anticompetitive effect in the market must exist, without, however, this required to be specific. On the contrary, mere establishment of the potential existence of such anticompetitive effect, capable of excluding equally effective competitors, would appear sufficient.
In light of the above, the Council of State overturned OTE's application for cassation, insofar as it challenged the abuse of dominance aspect of the case.
III MARKET DEFINITION AND MARKET POWER
The Greek Competition Act does not provide for a definition of dominance. The HCC follows the notion of dominance, as this has been formulated by relevant European and Greek case law. Hence, high market shares (greater than 40 or 50 per cent) and an undertaking's ability to act independently of its competitors' costumers and ultimately consumers are factors that are taken into account. The structure of the market (such as competitors' market position, existence of barriers to entry and countervailing buyer power) is also decisive.
In addition, Article 2 of the Greek Competition Act, has been found by the HCC to apply in situations of collective dominance, whose existence presupposes, in accordance with the EU approach, the concurrence of the following two conditions: lack of competition between the dominant parties and absence of (substantial) outside competition.
Special rules apply in the mass media sector. In particular, pursuant to Article 3 of Law 3592/2007 on the Concentration and Licensing of Mass Media Enterprises and Other Provisions, as in force, a concentration that leads to the creation of a dominant position in the media sector is prohibited. The relevant market share criteria applicable for determining dominance are as follows:
- market share exceeding 35 per cent, where the company is active in only one media sector (television, radio, press and magazines);
- market share exceeding 35 per cent in each market and with respect to the specific geographical market covered in each sector, where the company is active in more than two media sectors;
- total market share exceeding 32 per cent in two sectors with the same geographical coverage;
- total market share exceeding 28 per cent in three sectors with the same geographical coverage; and
- total market share exceeding 25 per cent in four sectors with the same geographical coverage.
Article 2 of Greek Competition Act, which essentially mirrors Article 102 TFEU, does not contain an exhaustive list of types of abuses. According to the HCC, the purpose behind the prohibition of abusive exploitation of a dominant position is the protection of the free market system and of the economic freedom of third parties.13 In addition, while the finding of dominance is not per se unlawful, a dominant undertaking has a special responsibility to refrain from impairing, through its conduct, genuine undistorted competition on the market.14
It is settled HCC case law (following the footsteps of EU case law)15 that the concept of abuse is objective relating to the behaviour of an undertaking in a dominant position that is such as to influence the structure of a market, where as a result of the very presence of the undertaking in question, the degree of competition is weakened and through recourse to methods that, unlike normal competition, has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition.16 Hence, it is sufficient to show that the abusive conduct of the undertaking in a dominant position tends to restrict competition or, in other words, that the conduct is capable of having that effect.17
However, information witnessing intent of the dominant undertaking to exclude its competitors, especially when such evidence consists of internal documents, may be taken into account as direct evidence in assessing a dominant undertaking's commercial practices, in order to conclude whether these are geared towards the protection of its reasonable commercial interests or whether these were designed and implemented for the purpose of excluding competitors.18
ii Exclusionary abuses
Article 2 of Greek Competition Act does not distinguish between exclusionary and exploitative practices, hence both practices are deemed to be caught by the prohibition. To date, the HCC has dealt with a number of abusive practices; however, its most important cases involve rebates and exclusivity terms.
In the Athenian Brewery case,19 dating back in 2014, the HCC imposed a record fine of approximately €31 million against Athenian Brewery, the Greek subsidiary of Heineken NV, for abuse of its dominant position in the Greek beer production and distribution market, in breach of Article 2 of the Greek Competition Act and Article 102 TFEU. In particular, the HCC found that Athenian Brewery applied an exclusionary strategy in order to exclude its competitors from the on-trade consumption market (such as HORECA (hotel, restaurant and café) chains and other retail outlets) and to limit their growth possibilities for a period of 15 years. According to the authority, the company employed various commercial practices aimed at exclusivity, including significant payments conditional upon exclusivity or the foreclosure of competitive brands, loyalty and target rebates.
More recently,20 the HCC imposed a fine of approximately €8.7 million against the company Elais-Unilever Hellas for abuse of dominance. The case involved, inter alia, the offering of target rebates to various supermarkets in the margarine market. The HCC stipulated that the rebate schemes that were offered in exchange for the client's undertaking to increase its purchases from Elais-Unilever, or to achieve a specific sales target, constituted abuse of dominance. The HCC based its findings on the following: (1) the rebates being conditional upon the achievement by the client of a quantitative target regarding products purchased by Elais-Unilever; (2) the target was determined at the beginning of each fiscal year, whereas rebates were paid at the end of this period (i.e., an excessive rebates period was applied); (3) the amount of the rebates depended on the purchased quantities during the above excessive period of reference compared to realised purchases during the previous reference period by same buyer (individual character of rebates scheme); and (4) the rebate was applied retroactively.
Another notable HCC decision involving a bundling practice includes that of Nestle,21 in which the HCC found that Nestle unlawfully imposed bundling arrangements on its clients in the instant coffee retail market. Nestle was also held liable for the enforcement of exclusive supply clauses in its agreements with its clients, as well as for offering loyalty rebates to the latter in the same market.
Finally, as regards authorities and courts' approach on price squeeze (see the case of wholesale broadband access service) and refusal to deal (see the Bauxite case), see Section II.
The HCC has also dealt with a few discriminatory treatment cases in the energy sector. In its Gas Distribution Companies22 case, the HCC found that the non-acceptance of the gas tube of the complaining company and the refusal to grant a licence for use in gas facilities, where the complaining company's steel tubes were used, constituted an unjustified discriminatory treatment by the Gas Distribution Companies of Thessaloniki and Thessaly and imposed against them a fine of approximately €620,000.
In addition, in 2015, the HCC rendered its decision23 in the case of Public Power Corporation (PPC)/Aluminium SA, accepting commitments offered by PPC. According to the HCC investigation, PPC, the incumbent producer and supplier of electricity in Greece, had allegedly abused its dominant position by refusing to supply Aluminium SA and by imposing on it unfair and discriminatory trading conditions.
iv Exploitative abuses
Recently, the Athens Administrative Court of Appeals issued its decision in the AEPI (i.e., Greek Company for the Protection of Intellectual Property) case.24 The case was originally brought before the HCC, following a complaint by various music creators for AEPI's alleged abuse of dominance in the market for the management of copyright of Greek and foreign composers of musical works, by setting unreasonable fees for said management.25 The HCC compared fees charged by AEPI against fees charged by foreign collective management organisations (CMOs) (in particular by a Swiss CMO), concluding that the amount charged by AEPI, in relation to phonogram rights, was abusive.
The HCC decision was challenged by AEPI. Following a lengthy process before Greek courts, the Athens Administrative Court of Appeals issued its decision on the case, ruling essentially that the comparison method employed by the HCC was the most appropriate due to the same object pursued by AEPI and CMOs, and the specific characteristics of the market.
V REMEDIES AND SANCTIONS
The Greek Competition Act authorises the HCC to impose a series of sanctions, as well as behavioural or structural remedies, upon finding an infringement of Article 2 thereof and/or Article 102 TFEU.
The Greek Competition Act provides that a fine will be imposed on undertakings or associations of undertakings for abuse of dominance or failure to fulfil commitments made by them and which are made binding by the HCC decision. The amount of the fine must not exceed 10 per cent of the aggregate turnover of the undertaking for the year in which the infringement ceased or, if it persists, the year preceding issuance of the HCC decision. In the case of groups of companies, the group's aggregate turnover is taken into account for calculating the fine. The calculation of the fine is also subject to factors such as the gravity, duration and geographic scope of the infringement, as well as the duration and nature of participation in the infringement by the undertaking and the economic benefit derived therefrom. If the economic benefit can be measured, the amount of the fine cannot be less than that (even if it exceeds the 10 per cent upper limit).
The HCC may impose on the infringing undertaking a fine of up to €10,000 per day of failure to comply with its decision.
Individuals who, due to their position in the company, are involved in the infringement are jointly liable with the company for payment of the HCC fine and may also be separately fined by an amount ranging from €200,000 to €2 million, as long as they participated in the organisation or commitment of the infringement. Their position in the company and the degree of their participation in the infringement shall be taken into account.
According to HCC Guidelines on the calculation of fines of 12 May 2006, as supplemented in 2009, HCC determines the basic amount of the fine which, depending on the gravity and duration of the infringement, shall not exceed 30 per cent of the undertaking's total gross revenues for each year of the infringement. This amount is then adjusted – upwards or downwards – depending on aggravating or mitigating factors that may exist. The overall amount of the fine, for all years of the infringement, should not, as a rule, exceed the 10 per cent cap set by the law.
Although it did not impose any fines for abuse of dominance in 2019, the HCC has dealt with relevant cases on several occasions over the past years and has imposed high fines. In its Athenian Brewery26 case, involving the implementation of anticompetitive practices aiming to exclusivity, including significant payments conditional upon exclusivity and/or the foreclosure of competitive brands, loyalty and target rebates, in the beer market for a period of over 15 years, the HCC imposed a record-setting fine of approximately €31 million.
Penal sanctions, in the form of a monetary penalty ranging from €30,000 to €300,000 may also be imposed in abuse of dominance cases. Penal sanctions are imposed by the competent criminal authority against an undertaking's legal representatives.
ii Behavioural remedies
The Greek Competition Act also provides for the imposition by the HCC of behavioural remedies, to the extent these are necessary and appropriate for the termination of the infringement, depending on its nature and gravity.
As already mentioned in Section II above, the HCC has imposed behavioural measures in the context of its interim measures decisions and has also accepted commitments of a behavioural nature by the infringing undertakings in 2019.
However, as would derive from the HCC's past practice, the authority usually proceeds to the imposition of a fine, together with an order to cease and desist.
iii Structural remedies
According to the Greek Commission Act, the HCC may impose structural measures only in cases where there are no equally effective behavioural measures, or the existing equally effective behavioural measures are more burdensome compared to the structural ones.
Contrary to its practice in merger control cases, the HCC does not seem to favour the imposition of structural measures in the context of abuse of dominance cases.
The HCC may initiate an investigation either acting ex officio or following receipt of a complaint or upon request of the Minister for Development and Investments. Investigations are most commonly triggered by complaints submitted to the HCC.
The case is assigned to the competent economic and legal services directorates of the Directorate-General for Competition (DGC) which proceed to a preliminary assessment of the case based on information requests to interested parties, as well as on-site investigations (dawn raids). The DGC has recently conducted dawn raids in the banking sector (November 2019) and, more recently, in the print press distribution market (May 2020). Failure to provide information requested by the HCC, as well as obstruction of the DGC's dawn raid, entail the imposition of a fine of €15,000 up to a maximum of 1 per cent of the turnover of the undertaking concerned (meaning group turnover, if applicable). Criminal penalties of at least six months' imprisonment may also be imposed in this case.
Upon completion of the DGC investigation, the case is assigned to a rapporteur (who is an HCC member). The rapporteur must submit his report to HCC within 120 days of assignment of the case. This deadline may be extended by 60 days maximum. The only exception is if, based on HCC Decision 696/2019 on the prioritisation of cases, the case does not match the prioritisation criteria and is filed away.
Following submission of the rapporteur's report, the case is heard by the HCC. The HCC is not bound by the report.
Interested parties are summoned to appear before the HCC at least 45 days before the hearing and are served with the rapporteur's report at the same time. Parties must submit their statements of objection 20 days prior to the hearing. In addition, they may submit their addenda-rebuttal 10 days before the hearing. After completion of the hearing and after notification to them of the minutes of the hearing, parties have a short deadline to submit their final pleadings, before the HCC issues its ruling. According to the law, the HCC's decision must be taken within 12 months of assignment of the case to the rapporteur. This deadline may be extended for a maximum of two months.
The Greek Competition Act also provides for an interim measures procedure, where there is an emergency to prevent an imminent danger of irreparable damage to the public interest. Interim measures may be taken by the HCC either on its own initiative or following a request of the Minister for Development and Investments. In this case, HCC must reach a decision within 15 days from the submission of the request. In the context of these proceedings, the deadlines for the submission of statements of objections/addenda-rebuttal by the parties are determined by decision of the HCC chair.
Also, undertakings under investigation may offer commitments at any stage of the investigation and at the latest 20 days prior to the hearing (if they have been served with the rapporteur's report). The procedure for the acceptance of commitments by HCC is summarised as follows (HCC Decision 588/2014): (1) preparatory meetings with the DGC or the rapporteur handling the case, or both; (2) prioritisation and assignment of the case to a rapporteur, if not already done; (3) assessment of the intent of the offering undertaking, suitability of the case for the acceptance of commitments and adequacy of the commitments; (4) submission of commitments offer by the undertaking within 30 days of being invited to do so by the rapporteur; (5) market-testing (if considered appropriate); (6) drafting by the rapporteur of the report for the acceptance of the commitments offer; (7) service of the report to the interested parties (i.e., the undertakings under investigation and complainants) within three months of the submission of the commitments offer; (8) summoning of parties to the hearing, at least 45 days in advance; and (9) issuance of the HCC decision, by virtue of which the commitments are made binding.
HCC decisions may be challenged before the Athens Administrative Court of Appeals, within 60 days of their notification to the parties. The above deadline, as well as the filing of the appeal, do not have a suspensory effect; suspension of enforcement may, however, be granted by the Court upon request of the interested party. Decisions of the Athens Administrative Court of Appeals may be challenged by an application for cassation before the Council of State. As regards especially interim measures decisions, these are only subject to appeal before the Athens Administrative Court of Appeals.
VII PRIVATE ENFORCEMENT
Law 4529/2018 on transposing into Greek law Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the member states and of the European Union and other provisions (Law 4529/2018) governs private enforcement of competition law in Greece.
Like Directive 2014/104/EU, Law 4529/2018 introduces the right to full compensation of every natural or legal person that has suffered harm by an infringement of competition law. Compensation includes both actual loss and loss of profit, plus payment of interest (Article 3).
Law 4529/2018 does not, however, include a collective redress mechanism, despite the European Commission's relevant horizontal recommendation.27 Thus, it may be expected that the general Greek legislation on the matter would apply (Article 74 of Greek Code of Civil Procedure). In addition, the possibility to bring a collective action for damages is provided for by Law 2251/1994 'on consumer protection'. However, in the absence of relevant case law, it is not absolutely clear whether these provisions would apply to private antitrust enforcement cases or whether these are limited to matters solely arising under the consumer protection legislation.
For the calculation of the damages, Law 4529/2018 stipulates that the court may estimate the amount of the damage inflicted to the claimant based on a probability standard, in cases where it is practically impossible or excessively difficult for the claimant to determine the precise amount of the harm suffered on the basis of the available evidence. To this end, the court should consider the nature and scope of the infringement, as well as the diligence that the claimant showed in collecting and using the relevant evidence. In this respect, we would expect the court to rely on relevant soft-law provisions of the European Commission.28
As regards the evidence that may be used in the context of private competition litigation, Law 4529/2018 specifically mentions that the court is authorised to order the disclosure of evidence contained in the HCC/EETT's case-file. This possibility is, however, subject to certain restrictions. In particular, the Court may not order the disclosure of the following evidence until the HCC/EETT has terminated its proceedings: (1) documents and information drawn up by natural or legal persons specifically in the context of the proceedings before the HCC/EETT; (2) documents and information drawn up by the HCC/EETT and sent to the parties during their proceedings; and (3) withdrawn settlement submissions. Also, under no circumstance may the Court order the disclosure of (1) leniency statements; (2) settlement submissions; and (3) documents that quote, to an extent, parts of the documents under (1) and (2).
At the same time, the finding of a competition law infringement by virtue of a decision of the HCC, the EETT or the European Commission, that is not subject to appeal, as well as a final decision of the Greek and EU Courts, following appeal, is binding for the Civil Court ruling on a damages action. On the contrary, a final decision finding an infringement, which has been issued in another EU Member State and produced before the Greek Civil Court, constitutes conclusive proof of the infringement but is subject to rebuttal.
Third-party litigation funding is not specifically regulated by Greek law and it is not standard practice.
Law 4529/2018 provides for the formation of a special chamber within the Athens Courts of First Instance and Appeals (which are competent by law to hear damages actions) consisting of judges specialised in competition law; however, these are yet to be formed.
Finally, following enactment of Law 4529/2018, no relevant Court decision has yet been publicised. The greatest difficulty that the Greek Courts are expected to face in awarding damages under Law 4529/2018 is how quantify harm.
VIII FUTURE DEVELOPMENTS
The covid-19 crisis has not left competition law enforcement unaffected. The HCC has showed its vigilance in monitoring the functioning of competition in the context of the current situation. In particular, the HCC has formed a special task force, which is competent to issue guidelines addressed to undertakings and consumers on the application of competition law amidst the crisis, collect information on initiatives to be implemented by undertakings and their compatibility to competition law and to conduct investigations into potential breaches of competition rules, including abuse of dominance. Meanwhile, following numerous consumer complaints, in March 2020 the HCC sent information requests to many undertakings active in the medical supplies market and, even more recently, conducted dawn raids in the food sector.
Meanwhile, the HCC seems to have fully entered the digital era. It has recently launched sector inquiries into e-commerce and Fintech. These initiatives are indicative of HCC's intent to monitor more closely the application of competition law in the digital markets and ensure compliance in these dynamically evolving sectors.
1 Marina Androulakakis is a partner, Tania Patsalia is a senior associate and Vangelis Kalogiannis is a junior associate at Bernitsas Law Firm.
2 Articles 101 and 102 TFEU are directly applicable in Greece in cases where it is proven that trade between Member States is affected.
3 Pursuant to Paragraph 5 of Article 25 of the Greek Competition Act, the HCC has the power of taking interim measures, on its own initiative or following a request of the Minister of Finance (currently Minister of Development and Investments), where an infringement of Articles 1 (prohibited collusion), 2 (abuse of dominance) and 11 (regulation of sectors of the economy) of Greek Competition Act or Articles 101 and 102 of the TFEU is suspected and there is an urgent need to prevent an imminent risk of irreparable harm to the public interest. In case of failure to comply with the imposition of interim measures, the HCC has the power to impose a fine of up to €10,000 for each day of non-compliance with its interim decision. Interim decisions may be appealed before the Athens Administrative Court of Appeals. The HCC cannot adopt interim measures to safeguard individual interests, but said jurisdiction lies with civil courts.
4 According to Article 25 Paragraph 6 of the Greek Competition Act, the HCC may accept commitments if it considers, during relevant investigation carried out either at own initiative or following a request by the Minister of Finance or a complaint, that there is a likelihood of infringement of Articles 1 and 2 of the Greek Competition Act or Articles 101 and 102 of the TFEU.
5 OECD Peer Reviews of Competition Law and Policy, GREECE, 2018, p. 40.
6 HCC Decision 663/2018.
7 The HCC decision on the matter has not been issued at the time of writing; therefore, input on the case is based on publicly available information, such as the HCC's press release of 4 June 2019.
8 Only the HCC press release is available to date.
9 Council of State Decision 860/2019.
10 EETT Decision 447/01/26.07.2007.
11 Decision No. 2193/2009 of the Athens Administrative Court of Appeals.
12 CJEU, case C-208/08P, judgment of 14 October 2010, paragraphs 250–251.
13 HCC Decision 590/2014, Athenian Brewery, paragraph 239.
14 HCC Decision 581/VII/2013, Procter & Gamble Hellas, paragraph 262.
15 CJEU Decisions C-85/76 Hoffmann-La Roche v. Commission, paragraph 91, C-322/81 Michelin v. Commission, paragraph 70 and C-62/86 Akzo v. Commission paragraph 69.
16 Decision 869/2013 of the Athens Administrative Court of Appeals, paragraph 35.
17 Athens Administrative Court of Appeals, Decision 2458/2017, paragraph 8.
18 HCC Decision 520/VI/2011, Tasty Foods, paragraph 174.
19 HCC Decision 590/2014, Athenian Brewery.
20 HCC Decision 663/2018.
21 HCC Decision 434/V/2009.
22 HCC Decision 516/VI/2011.
23 HCC Decision 621/2015.
24 Decisions 1102/2017 and 1103/2017 of the Athens Administrative Court of Appeals.
25 HCC Decision 245/III/2003.
26 HCC Decision 590/2014.
27 Commission Recommendation of 11 June 2013 'on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law'.
28 Communication from the Commission 'on quantifying harm in actions for damages based on breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union' and the accompanying Practical Guide of 11 June 2013.