Ten years have already lapsed since the reform of the Greek competition law, Law 3959/2011. This was the first time since 1977 that the legislator opted not to modify the Law, but rather to introduce a new one. Essentially, the new Law has codified the old provisions, but has also introduced some new provisions, taking case law into consideration, further harmonising it with EU law and introducing some new innovations.
The new Law has reduced the number of the members of the HCC from nine to eight, of which six are full-time appointees (the Chair, the Vice-Chair and four commissioners or, as per the terminology of the law, rapporteurs) and two are part-time members. The new Law keeps the radical changes introduced in 2009 regarding the composition and operation of the HCC. Ever since its establishment in 1977 (before Greece joined the then European Economic Community), the HCC was made up of experts appointed by the supervising Ministry (originally the Ministry of Commerce, which subsequently was merged into the Ministry of Development) and a number of representatives from the business community, and even the General Confederation of Greek Workers, which had expertise in the field of competition, was close to the market and had an understanding of economics. The HCC was independent of the Ministry's Competition Service, which has operated under various names and forms since the establishment of Greece's competition regime. The only connection between the two bodies was that the Chair of the HCC was also head of the Competition Service. Traditionally, the HCC has been considered as a tribunal while the Competition Service was the prosecutor, meaning that the Chair's dual role was problematic.
The new Law has kept the 2009 regime of Law 3784/2009, under which the rapporteurs and the Chair form the majority of the HCC in plenary session, while also acting as the heads of the Competition Service; however, the new Law states that the rapporteur in each case does not have a voting right. Individual rapporteurs are assigned cases by lot, carried out by the HCC in a plenary session. They express their position on a case in a report that they submit to the HCC, without the HCC being bound by it (although it is rather unlikely that the HCC will adopt a different position given that it is naturally the rapporteurs who have the best knowledge of the case, and thus it is more likely that their opinion may influence the other members than not). Under the previous regime (prior to 2009), the Competition Service issued recommendations to the HCC, which would then hear a case. The new Law has also introduced the specific post of Vice-Chair. Both the Chair and the Vice-Chair are selected by Parliament's Chamber of Presidents.
A major change that the new Law introduced is a five-year statute of limitations. Until that change, the position of the HCC on this point had been vague, but nevertheless with the tendency that there was no statute of limitations, except for a fine (and not for the recognition of a violation). This led to rulings on violations that occurred more than 20 years ago. The new provision aligns Greek legislation with EU legislation and adopts the jurisprudence of the European courts.
Law 3784/2009 also introduced shorter time limits. In particular, statements of objections must now be submitted within 90 days of the assignment of a case. For concentrations, the time for issuing a decision is limited to 45 days from the date of notification of the concentration. Finally, the HCC has six months for the hearing of a case to take place and to issue a relevant decision. The HCC in its new form seems to be capable of meeting these deadlines.
Regarding the criteria for the calculation of fines (previously, severity and duration of a violation), the new Law added a geographical dimension to the violation, its duration and the method of participation of the specific undertaking, and finally the financial benefit that such undertaking gained from the specific violation.
The new Law has also tried to fill a gap in the liability of members of associations; if an association is found guilty of violating competition law, it is now expressly stated that, if the association cannot pay the fine, it must ask its members to finance the payment. If the members do not respond, then the members whose representatives participated in the violation are jointly and severally liable for the payment of the fine.
It is important to note that the new Law introduces personal liability for individuals that are proven to have participated in preparatory actions, the organisation or commission of the violation, with fines ranging from €200,000 to €2 million; however, with the introduction of a minimum fine for individuals, there is no such provision for undertakings.
The new Law has also modified and introduced various fines:
- for culpable violation of the obligation to notify a merger, the fine has increased from a minimum of €15,000 to €30,000 for each notifying undertaking, and the cap has increased from 7 to 10 per cent of the annual turnover of the undertaking;
- for gun-jumping in mergers, the cap has been reduced from 15 to 10 per cent of the annual turnover of the undertaking;
- in a case of non-compliance with a decision of the HCC, a new fine of up to 10 per cent of the annual turnover of the undertaking has been introduced; and
- in the case of repeated non-compliance with a decision, the fine has been reduced to 10 per cent of the annual turnover of the undertaking (from 15 per cent).
For the first time, criminal liability (Article 44 of the new Law) is attached to cartels (punishable by imprisonment of at least two years), regardless of whether there has been an effect on the market. Discussions have arisen as to whether this provision is unconstitutional, but it remains to be seen how it will be implemented by the HCC and the courts.
Finally, the new Law has introduced changes to the notification obligations. Under the new Law's provisions, the post-merger notification (Article 4a of Law 703/77) is abolished and there is no obligation to notify agreements that fall under Article 1 (in line with EU law). It should also be borne in mind that the power that the Ministers of Regional Development and of Finance had under the previous Law to approve a concentration that had been prohibited by the HCC has now been rescinded under the new Law.
A new regulation for the functioning and operation of the HCC has been issued by a Common Ministerial Decision dated 16 January 2013. The new regulation aligns the procedural framework of the HCC to the new Law, and also inserts provisions deriving from the experience of the HCC. In addition, it defines the internal operational system and financial administration of the HCC, taking into consideration the rules of transparency and efficiency of its financial resources.
In general, Greek competition law transposes Articles 101 and 102 of Treaty on the Functioning of the European Union (TFEU). Although the HCC is the body with general competence to rule on competition law, special competence regarding telecommunications, as well as the postal services market, is granted to the Hellenic Telecommunications and Post Commission (EETT). The EETT may request the HCC's assistance or even refer a case to it. Decisions issued by the HCC (or the EETT) are subject to appeal before the Athens Administrative Court of Appeal (with further appeal to the Council of State for errors of law).
The services of HCC consist of three offices reporting directly to the Chair: the Office of the Chair, the Secretariat and the Directorate General for Competition (DG COMP). The DG COMP is responsible for the defence and legal support of actions taken by the HCC, both in and out of court, as well as for the judicial defence and legal support of the HCC's members and staff. It is made up of four directorates and one autonomous department.
To date, the implementation by the HCC of the new Law has been successful, although there is room for improvement.
i Prioritisation and resource allocation of enforcement authorities
In 2018, according to the latest data published by the HCC, 15 decisions were issued regarding concentrations (including gun-jumping and modification of remedies) and eight regarding Articles 1 and 2 of Law 3959/2011 (formerly Articles 1 and 2 of Law 703/77 and equivalent to Articles 101 and 102 TFEU). The HCC also published an opinion, requested by the Ministry of Economy and Development, on amending Law 3959/2011 for the establishment of a partial payment of fines mechanism to facilitate the payment of fines by undertakings. The HCC supported such mechanism, but only on condition that the undertaking concerned waive the right to appeal against the HCC's decision.2 The amendment has not yet taken place.
The ongoing crisis in the financial sector, and in the country in general, has led the HCC to prioritise sectors that are of interest to consumers, even though the competition regime is essentially meant to protect the mechanisms of the market while consumers are separately protected by special legislation and enforcement agencies. Political and public pressure has been brought to bear on the HCC to research consumer products and high prices.
The new scheme of commissioners and rapporteurs (introduced in 2009) has made the HCC more effective and efficient in handling cases.
ii Enforcement agenda
On 7 July 2011, the HCC issued a notice on enforcement priorities. According to this, the prioritisation of cases is generally based on the criterion of public interest. In this context, and according to the HCC, priority is given to ex officio investigations or complaints pertaining to:
- hardcore restrictions (price fixing, market sharing, and sales or production restrictions) of national scope, especially in cases of horizontal agreements (cartels), particularly taking into account the market position of the undertakings involved, the structure of the relevant market and the estimated number of the affected consumers;
- products and services of major importance to the Greek consumer where the anticompetitive practice under examination may have a significant impact on prices or the quality of the services (especially as compared with Member States of the European Union); and
- anticompetitive practices with cumulative effect (i.e., practices applied by a large number of companies that are able to pass on the increased prices to intermediate undertakings or final consumers).
All of the above were more or less the same in a previous HCC Notice in 2010, but this time the HCC has also prioritised the review of relevant leniency applications, if all the criteria of the leniency programme are met; and compliance with the rulings of the Athens Administrative Court of Appeal and the Council of State (the Supreme Administrative Court) issued in appeal proceedings concerning prior decisions by or actions against the HCC.
As in the 2010 Notice, the HCC has also prioritised the adoption of exceptional regulatory measures in certain sectors of the economy according to the strict terms of Article 11 of Law 3959/2011 and, as stated by the HCC, provided that such measures are absolutely necessary, suitable and proportionate for the maintenance of effective competition.
The prioritisation of any particular case also depends, according to the HCC, on the authority's resources, the possibility of proving an infringement, the necessity of providing guidance on novel issues of interest, as well as an assessment of whether the HCC is the best-placed body to act (particularly having regard to the jurisdiction of national courts to deal with cases of private interest).
On 24 May 2012, pursuant to Article 14(2) of the Competition Act,3 the HCC adopted an internal management tool in the form of a point system for the investigation of cases by the Directorate General. In particular, according to this decision, the Directorate General shall investigate pending cases according to their ranking on the basis of a point system, which essentially exemplifies and quantifies the priority criteria set out in the Notice on Enforcement Priorities.4
On 24 September 2015, the HCC issued a second decision5 (published on 4 March 2016), on the quantification of the criteria for prioritisation of pending cases. The decision was issued so as to update a previous decision by providing more specific guidance based on the experience gained by the HCC in the three years that had passed since the issue of the first decision. The new decision is largely the same as the old one in terms of the general principles of prioritisation, but does, however, set a three-month time limit (from the filing of a complaint or the commencement of an ex officio investigation) within which a case must be ranked using the point system, whereas the previous decision set none. It also introduces a negative point system applicable in cases where the statute of limitations has expired and a fine may no longer be imposed, or where the facts of the case are such that the HCC may reasonably believe that the anticompetitive practices have ceased or altered in ways that mitigate the competition concerns.
The point system aims at enhancing the efficiency of investigations, the focus being on important cases with increased estimated impact on the functioning of effective competition or overall systemic effect, or both, while promoting a more coherent and targeted policy of prioritising pending cases.
The point system is intended solely for internal use (such that the ranking of each individual case at the investigation phase is not made public, or notified to the complainant). Moreover, it provides for the possibility of rejecting complaints that get a low priority ranking according to the point system.
It should finally be noted that the HCC places fining undertakings that obstruct on-site inspections high on its agenda. In that regard, the HCC has also fined two undertakings for obstruction of on-site inspections in the past few years: Latomiki ATE and Latomiki AE. According to the decision, the above-mentioned undertakings deleted electronic files during the raid, and for such action the HCC fined them €72,000. This decision shows the determination of the HCC to protect its mechanism of dawn raids, and sends a clear message to the market.
i Preliminary remarks
As previously stated, the general provisions contained in Article 101 TFEU have been introduced word-for-word into the Greek legal system (Article 1 of Law 3959/2011), and the HCC aims to follow the jurisprudence of the European Commission and the European courts in the case of cartels. Even though it has adopted a leniency policy, and declares itself open to considering any commitments to remedy the effects of cartels prior to discussing any case, in practice, the way the HCC deals with cartels has not changed. The leniency policy was only successfully applied for the first time in 2017, in a major cartel case involving more than 40 companies in the constructions sector. That being said, the HCC has been making extensive use of the settlement mechanism in cartel cases, having issued five settlement decisions within just two years of its adoption.6
ii Penalties – leniency policy
In the case of an infringement of Article 1 of Law 3959/2011, fines of up to 10 per cent of the total turnover of the undertaking can be imposed by the HCC.7 The HCC has also adopted the practice of the European Commission according to which, in cases where the violation concerns a specific product or sector, a maximum fine of 30 per cent of the turnover for that sector applies, but this cannot exceed 10 per cent of the overall turnover provided for by law. There could also be criminal liability of the persons who initiated or participated in the formation and implementation of the cartel. In August 2011, the HCC adopted a leniency programme8 based on the European Commission's programme providing for immunity or reduction of fines. In 2017, the programme was applied successfully9 for the first time in a major cartel case in the constructions sector (as analysed further below); however, that application, only one known application had ever been made,10 which was unsuccessful.
In addition, the parties can (according to Article 6, Paragraphs 5 and 6 and Article 8, Paragraph 8 of Law 3959/2011) offer binding commitments to remedy the effects of a cartel. If the HCC accepts these commitments, then the procedure comes to an end and no fines are imposed. Following one of the first cases, in 2008, when the HCC had accepted such commitments,11 the HCC is generally reluctant to accept commitments, using the argument that these cannot be accepted in hardcore (per se) violations. There have, however, been some more examples in the past few years where it was considered that commitments would be more efficient than 'traditional' enforcement and the imposition of fines.12 Indeed, the HCC's priority should be to protect the mechanisms of the market rather than applying huge fines, which are counterproductive.
In the case of DEPA, the incumbent gas operator in Greece, since the original commitments decision13 (551/VII/2012) was issued in 2012, five more commitments decisions have been issued by the HCC14 The later decisions have updated the commitments undertaken by DEPA, following an examination of the undertaking's compliance as well as of the effectiveness of the commitments as time progressed. Following a meeting in plenary session in December 2016, the HCC issued in 2017 a decision15 eliminating a commitment concerning the method of formation of the starting price of electronic bids for natural gas, in view of the liberalisation of the natural gas market from 1 January 2018. During 2018, the HCC published decision No. 635/2016, following an ex officio investigation of the compliance of DEPA with the commitments that it had originally undertaken by virtue of decision 551/VII/2012.16 The HCC fined DEPA €60,000 for failure to comply with one out of seven commitments (i.e., to offer an unbundled natural gas sales contract without obliging customers to include the provision of services for the transfer of natural gas).
This year saw the HCC accept commitments by Nissan dealer Nik I Theocharakis SA with regard to alleged vertical practices concerning its policy towards independent repairers on the provision of technical information for the repair and maintenance of Nissan vehicles, and the terms of granting discounts during short-term 'central' discount programmes for technical services to specific customers.17 On the other hand, the HCC upheld its policy in rejecting commitments for hardcore restrictions in the Minerva case, which concerned the imposition of RPM and the prohibition of passive sales in vertical agreements with its distributors in the butter and margarines markets. The HCC proceeded to the full investigation of the case, which led to the imposition of a fine amounting to €384,106.18
Although the law provides that undertakings can be offered commitments after the assessment of a violation, the guidelines provide that these can also be offered at the beginning of the process; this constitutes a useful compromise, which avoids further use of time and resources while achieving a result similar to a consent decree.
iii Settlement procedure
On 18 July 2016, the HCC issued Decision 628/2016 by which it formally established a settlement procedure for cartel infringements, thus further bringing its practice in line with that of the European Commission, which first introduced this procedure in 2008. Pursuant to the Decision, companies may express their interest, in writing, to partake in the settlement procedure, either before the issuance of a statement of objections or after, within a maximum of 35 days prior to the date set for an oral hearing (in contrast to the European Commission, which will always carry out the procedure prior to the issuance of a statement of objections). The HCC meets in plenary session to approve or reject these expressions of interest, and if it approves them, proceeds to holding bilateral meetings with each implicated undertaking, wherein it set outs the facts of the case, the scope of the infringement and the extent of the participation of the undertaking concerned, the key evidence on which it bases its findings, as well as the range within which the fine can be expected to fall.
Following the conclusion of these meetings, which can be as few or as many as the HCC deems necessary in each case, an undertaking is then given a 30-day deadline within which to file its settlement submissions, by which it must unreservedly admit its participation in, and liability for, the cartel, accept the (maximum) range of the fine which may be imposed, and forgo the right to receive full access to the file and to an oral hearing before the HCC. The HCC then issues a proposal accepting or rejecting the settlement submissions and setting out the conclusions of the meetings and, if the undertaking concerned accepts this proposal, a settlement decision is issued officially by the HCC.
Prior to issuing a settlement decision, the HCC is neither bound nor limited by anything that took place during the procedure and maintains the right to terminate it. Upon so doing, the settlement submissions and proposal are wholly revoked and may not be used as evidence against the implicated undertaking by either the HCC or by the competent courts on appeal. Unlike the European Commission, which offers a 10 per cent reduction, the HCC offers a 15 per cent reduction of the fine for cases that successfully complete the settlement procedure. Viewed in light of the ongoing financial crisis in Greece, which has hit businesses especially hard, it is anticipated, and has been confirmed in practice, that this settlement tool will often be put to use.
In fact, the issue of this HCC decision essentially – and most likely, purposely – coincided with the issue of a statement of objections for the largest case ever dealt with by the HCC, both in terms of the number of implicated undertakings (40) and the fines threatened (over €200 million). The statement of objections was issued following an ex officio investigation into tenders submitted, and respective contracts awarded, for public infrastructure works, which concluded that bid rigging took place on a significant scale, covering multiple projects and spanning the better part of 26 years. The settlement decision was eventually issued on 10 March 2017, and was followed by a standard hearing procedure for the undertakings that did not participate in the settlement.19 The decision for the non-settling undertakings is still expected.
Since then, the HCC has been making extensive use of the settlement procedure, by issuing another three settlement decisions in 2018. The increase of the importance of the settlement procedure is apparent from that it is tested in most horizontal cases that the HCC has dealt with since its inception (although not all undertakings involved in those cases wished to settle).
iv Significant cases
Enforcement against cartels in 2018 was 'soft' compared to 2017 when the HCC imposed fines amounting to €80.702 million in the constructions cartel case, the biggest case ever to be investigated by the Greek competition authority. The fine concerned the companies that entered into the settlement procedure; for the non-settling companies, the HCC has not yet issued its decision.
In 2018, cartel enforcement concerned cases of relatively lower importance and was characterised by the universal application of the settlement procedure for all of them.
On 14 December 2018, the HCC issued a settlement decision against five construction companies for bid rigging in a public tender for the construction of school infrastructure in the Fthiotida region that took place in March 2011, and imposed fines amounting to a total of €245,000.20 The case concerned a total of 13 construction companies, eight of which decided not to follow the settlement procedure; the HCC's decision on the latter companies has not yet been issued.
In October 2018, the HCC settled yet another case involving newspaper distributors Argos SA and Europi SA.21 More particularly, the HCC, following complaints of points of sale for unjustified exclusion from the supply of newspapers, imposed a total fine of €500,000 on the two companies respectively for a horizontal agreement between them, lasting from 2001 until 2017, that included price and agent commission fixing, as well as allocation of territories and customers. Aside from the fixed 15 per cent reduction due to the application of the settlement procedure, the fine was reduced significantly by another 30 per cent because of the major decline of the newspaper industry over the last years.
On 8 October 2018, the HCC issued a settlement decision on a cartel case involving dairy producer Friesland Campina and its wholesaler Mandrekas SA for placing restrictions on the latter's participation in public tenders for milk supply for the period 2003–2007.22 Although the two companies normally have a vertical relationship (supplier-distributor), the purpose of these restrictions was to prevent the possibility of participation – and therefore, competition – of the two companies (supplying the same brand) in the same tender. The originality of this case lies with the fact that it is the first one where all implicated companies applied for the settlement procedure and, surprisingly, before notification of a statement of objections. These factors were taken into account with the imposition of a small fine of €160,225 for Friesland and €11,328 for Mandrekas.
v Trends, developments and strategies
There are no notable published investigations or pending cartel cases yet for 2019. A decision is still expected for the non-settling companies in the major Construction Companies cartel case.
III ANTITRUST: RESTRICTIVE AGREEMENTS AND DOMINANCE
i Significant cases
Vertical agreements, restrictive franchise agreements and abuse of dominant position
While there have been several decisions reached by the HCC on vertical agreements over the years, very few of those have dealt with franchise networks. Thus far, the most comprehensive decisional guidance offered by the HCC on restrictive franchise agreements has been Decision No. 580/VII/2013, pursuant to which one of the largest Greek telecoms retail chains, Germanos SA, was fined €10.2 million for including problematic clauses restricting competition in the standard agreements it concluded with franchisors for over 22 years (from 1990 to 2012).
On appeal, in Decision No. 527/2016 of the Athens Administrative Court of Appeal, the HCC decision was quashed, in part, on grounds that are entirely novel for a competition case. The Court of Appeal, while upholding the infringement in substance, quashed the fine because it had been levied by the HCC as a total sum of €10.2 million when what it should have done – according to the Court – was apportion the fine for each anticompetitive conduct that was separately identified. The decision was remitted to the HCC so that it could correctly apportion the fine for each infringement (RPM, distributor-franchisor supply restrictions and excessive non-competition clauses), which it duly did in October 2016.23
This judgment may have potentially far-reaching (positive) consequences for future appeals of HCC decisions; it forces the HCC to specify the infringements comprising anticompetitive behaviour by quantifying each one separately. Given that, in the past, certain HCC decisions have been somewhat nebulous in setting out a link between violation and fine, this, at the outset, appears to be a welcome jurisprudential development.
Moreover, the recent relative increase over the past years of franchise decisions may be a sign that the HCC intends to place greater focus on such cases in the future. The franchise system is fairly widespread throughout Greece, and covers a wide range of products and services offered at the retail level, so we can potentially expect to see more such cases in the future.
In 2018, however, the HCC turned its eye away from franchise agreements, which had been the focus of 2017, and focused its antitrust enforcement intensively on the food sector. In October 2018, the HCC issued a decision against Elais-Unilever on two counts of abuse of dominance (alleged target rebates and prohibition of parallel promotion of competing products) and three counts of vertical restrictions (alleged RPM, market partitioning by territories and customers, and non-compete obligations) in the margarines market, spanning from 1996 until 2017. The HCC fined Elais-Unilever a total of €27,561,704, which is one of the highest fines that the Greek competition enforcer has ever imposed. The case is mostly interesting in the sense that, although it is the first one to follow the ECJ's Intel case, the HCC eventually followed the 'traditional' approach of older EU Court decisions that dealt with retroactive target rebates as 'presumptively' anticompetitive, and considered further economic effects analysis as redundant and merely complementary.
Earlier in the same year, again in the same market, the HCC fined Minerva (Unilever's main competitor) €384,106 for imposing minimum resale price maintenance on its distributors for the period 1997–2010, and rejected as unfounded the rest of the accusations regarding prohibition of passive sales and alleged non-compete obligations.24 The small portion of the market affected by the practices, their scarce application over the years and Minerva's, albeit unsuccessful, intent to enter into the commitments procedure were deemed to be mitigating factors that contributed to the low amount of the fine.
Finally, in the pharmaceuticals sector, the HCC found, following a referral of the case from the Athens Administrative Court of Appeals, that the companies GlaxoSmithKline AEBE and GlaxoSmithKline PLC abused their dominant position in the market for anti-migraine drugs by refusing to supply to wholesalers engaging in parallel exports of the Imigran and Lamictal drugs, for the years 2000–2004; the fine amounted to €2,919,378.25 The HCC assessed the legality of refusal to supply based on the criterion of 'ordinary' orders formulated by the ECJ in joined cases C-468/06 to C-478/06, following a reference for a preliminary ruling by the Athens Administrative Court of Appeals. Refusals to respond to 'ordinary' orders were deemed abusive, whereas refusals to supply to orders that were not ordinary (because they were disproportionate to the volumes usually sold by the resellers making the orders) were not abusive. With the same decision, the HCC also found that GlaxoSmithKline failed to comply with the interim measures HCC decision No. 193/III/2001, by virtue of which the company had been ordered not to refuse supplies of the Imigran, Lamictal and Severent drugs irrespective of the volume of the orders.
ii Trends, developments and strategies
Antitrust enforcement in the food sector is bound to continue, since the HCC has also issued a statement of objections against Friesland Campina for alleged abuse of dominant position (due to imposition of exclusivity rebates) and illegal vertical agreements with its distributors, which include RPM and non-compete clauses, for the period 1996–2009.26 The case hearing took place on 4 December 2018 and a decision is awaited. The same company was fined in 2018 for entering into a horizontal agreement with one of its wholesalers to prevent their parallel participation in public tenders for the supply of milk.27
In a completely different context, the HCC, following a hearing on 25 September 2018, is expected to issue a decision on alleged Article 1 vertical violations by companies Gambro Lundia, Iatrika Proionta and Mpaxter Hellas, which include parallel trade restrictions and geographic market allocation in the market for artificial kidney machines and services.28
IV SECTORAL COMPETITION: MARKET INVESTIGATIONS AND REGULATED INDUSTRIES
The HCC, as per Article 11 of Law 3959/2011, may examine particular sectors of the Greek market, and if it ascertains that in that particular sector there is no effective competition, it can take any regulatory structural measure for the creation of effective competition conditions. To date, the HCC has only rarely applied this procedure: pursuant to the previous equivalent Article 5 of Law 703/77, in the case of oil companies in 2008, and later, pursuant to Article 11 of Law 3959/11, in the market of production, marketing, distribution and retail of fresh fruits and vegetables in 2013.
The HCC also has the power, under Article 40 of Law 3959/2011, to conduct an investigation into a particular sector of the economy or into types of agreements in certain sectors when it believes that there are indications (such as the level at which prices are set) of a potential restriction or distortion of competition. To this end, it has the power to request companies active in a particular sector to submit any information (including agreements with suppliers or buyers, company policies, etc.) it deems necessary and to conduct searches. It may then issue a report detailing its findings, or further investigate an undertaking if it uncovers potential anticompetitive practices.
In May 2016, the HCC commenced an investigation into the supermarket product retail sector, sending out questionnaires to both leading and smaller market players. Given the continuing consolidation in the supermarket sector (see also Section VI.iii), it is possible that the HCC is attempting to gauge the buying power of large supermarket chains, and whether they are exercising this power in order to promote particular brands that generate the most profit, thus foreclosing smaller competitors. Nearly two years later, there is still no word on the outcome of this sector inquiry.
V STATE AID
Under the Greek legal system, the HCC may not examine any cases of state aid to undertakings, as its competence is restricted to undertakings' behaviour. Any case involving aid by the state must be handled by the European Commission.
VI MERGER REVIEW
As per Law 3959/2011, only major concentrations fall under the jurisdiction of the HCC, which examines whether they significantly impede competition.
The HCC is exclusively competent to apply merger control provisions in all market sectors; however, for specific liberalised industries, such as telecoms and energy, there are separate national regulatory authorities (the EETT and RAE, respectively) that are also competent to apply competition rules, including merger control provisions, in cooperation with the HCC. Law 3959/11 (Article 24, Paragraph 2) specifies the terms of cooperation between the authorities, given that in most cases coordination is required.
A separate authority for the sea transportation industry, RATHE, was abolished in 2004. Competence for such cases now lies with the HCC, although Law 3260/2004 provides that an expert from the Ministry of Economy and Development must participate in the hearings and deliberations of the HCC as a non-voting member. Furthermore, a specialised authority for the ports sector, the Regulatory Authority for Ports (RAL), was established in 2016, which is competent to take regulatory measures concerning competition between ports and to cooperate with the HCC for the enforcement of competition rules; however, the new authority does not have any merger review competencies.
The HCC is also competent to handle mergers with a Community dimension that are referred to it by the European Commission, as per the provisions of EU Regulation No. 139/2004.
ii Pre-merger notification
Concentrations that fall under the definition of the new Law (Article 6) are subject to a pre-merger notification. If they are implemented prior to clearance by the HCC or contrary to a prohibition decided by the HCC, the undertakings concerned are subject to serious sanctions (i.e., a penalty and possible invalidity of the concentration). A penalty is also imposed for late notification, even if the parties have not yet implemented the concentration or if the concentration was finally approved.
Merger control is exercised when a concentration exceeds the following turnover thresholds: the combined aggregate worldwide turnover of all the undertakings concerned is at least €150 million; and cumulatively, the aggregate turnover of each of at least two of the undertakings concerned in the Greek market exceeds €15 million.
The above thresholds apply for all market sectors, except mass media, where special legislation (Law 3592/07) defines the respective thresholds as follows: the combined aggregate worldwide turnover of all the undertakings concerned is at least €50 million; and cumulatively, the aggregate turnover of each of at least two of the undertakings concerned in the Greek market exceeds €5 million.
Deadline for notification
While EU Regulation No. 139/2004 does not set any notification deadline, and while it is in the parties' interest to move quickly to gain clearance and implement a merger, in Greece, notification must be made within 30 days from the entry into an agreement or the publication of an offer or an exchange, or the obligation from the undertaking to acquire participation, which secures the control of another undertaking. Parties to a concentration, which consists of a merger or the acquisition of joint control, shall notify the concentration jointly. In all other cases, the notification shall be effected by the person or undertaking acquiring control of the whole or part of one or more undertakings.
Definition of concentration
A concentration shall be deemed to arise where a change of control on a lasting basis results from the merger of two or more previously independent undertakings or parts thereof, or the acquisition of direct or indirect control of the whole or part of an undertaking, regardless of the way in which this acquisition is affected. Article 5 of Law 3959/11 follows the definitions of Regulation No. 139/2004.
Cases of a change of control (e.g., changing from joint to full control) also constitute concentrations to be notified once the above-mentioned thresholds are met.
Creation of a joint venture constitutes a concentration only if the new entity performs all the functions of an autonomous economic entity on a lasting basis. Otherwise, it would be a cooperative joint venture, falling under the scope of Article 1 of Law 3959/11 (Article 101 TFEU) and possibly qualifying for exemption.
Greek law, following the EU substantive test (SIEC), provides that a concentration is prohibited if it may lead to a significant impediment of competition in the whole or a substantial part of the Greek market, especially by creating or strengthening a dominant position. Therefore, market share will be examined, although it is not the only decisive criterion. Within the framework of the test, the law itself specifies the basic criteria to be considered thereunder, including:
- structure of the relevant markets;
- actual or potential competition;
- barriers to entry;
- market position of the participating undertakings;
- available sources of supply and demand;
- consumers' interest; and
The above test applies in all market sectors, except mass media, where a special law (Law 3592/2007) provides for a dominance test. For the purposes of this Law, 'dominance' is translated into a market share of 25 to 35 per cent, depending on the individual case.
The content of notifications is defined by a decision of the HCC. The HCC has issued a new draft notification form (through Decision No. 558/VII/2013) and a separate form for submitting remedies (through Decision No. 524/VI/2011). The format of these templates generally follows the guidelines of the European Commission, with the purpose of making the minimum information that must be substantiated as part of the notification clear to the notifying parties. The notification form must be submitted in Greek, together with all supporting documents and a filing fee, currently set at €1,100. A summary of the notification must also be published in a daily financial newspaper, as well as on the HCC website, so that any third party (competitor, supplier, customer, customers' association) may know of the transaction and express any comments or concerns to the HCC.
Filling in and submitting the notification form improperly means that the notification is incomplete, the deadline for the submission is not met and the deadline for the HCC to issue its decision will not commence. Depending on the extent of omission, it may even be considered as a failure to notify.
In January 2015, the HCC issued a 'Notice on the Characterisation of Confidential Information and the Method for Submitting Non-Confidential Versions of Documents' (Notice). The Notice aims at clarifying the distinction between the information that should be considered confidential and that which need not, and allowing parties to utilise this distinction to characterise their own documents and submit both confidential and non-confidential versions thereof to the HCC. A prime example is merger notifications, which under this system are now submitted in two versions: a confidential version, followed by a duly redacted (per the rules set out in the Notice) non-confidential version. That being said, this Notice applies to all submissions of confidential information, not only those that are concentration-related.
The Notice sets outs indicative examples of confidential information such as professional and business secrets, correspondence between public authorities and preparatory documents, and proceeds to explain the correct method of redacting such information. It also includes a requirement of justification, meaning that each piece of information that a party deems confidential and redacts must be accompanied by a justification for this action. A lack of justification entails a presumption that the parties do not consider the information confidential and thus have no objection to its disclosure.
Given that the redacting exercise was previously carried out by the HCC, this new system purports to increase efficiency by significantly reducing the burden on administrative resources. Although the extent to which this aim will be achieved remains to be seen, this Notice is a further indication of the Commission's readiness to streamline its administrative procedure, something which is undoubtedly also in the best interests of the parties involved.
Within one month from receipt of proper notification, the President of the HCC must issue an act to certify that the concentration concerned does not fall within the scope of Law 3959/2011.
If the concentration falls within the scope of the Law, the concentration may be examined in one or two phases, in line with the practice defined by EU Regulation No. 139/2004.
Where the HCC finds that the notified concentration does not raise serious doubts as to its compatibility with the competition requirements of the relevant national markets, it issues a decision approving the concentration within a month from the date of notification (i.e., within the same period granted for verifying whether the concentration falls within or outside the scope of the law).
Where the HCC finds that the concentration raises serious doubts, its President issues a decision initiating Phase II proceedings, which decision is notified to the interested parties. This decision must be issued within a month from notification. Following this decision, the rapporteur prepares his or her recommendation within 45 days from the initiation of the Phase II proceedings, and the HCC must decide within 90 days to approve or prohibit the concentration. If the HCC fails to issue a decision within this 90-day period, the concentration is deemed approved. Both the 45 and 90-day deadlines start as of the initiation of the Phase II examination, rather than the notification date.
The first month following the notification is the most critical. Within this period, the following developments will (or may) occur: the concentration will be declared as not falling within the scope of the law; the concentration will be approved if it does not raise serious doubts that it will significantly impede competition; or a Phase II proceeding will be initiated (i.e., it is decided that a full investigation must take place).
The maximum time frame, provided that the notification is complete and no remedies have been submitted (see below), is one month plus 90 days (i.e., 118 to 121 days, depending on the length of the month).
Modifications and remedies
Within 20 days of the submission of the recommendation of the rapporteur, the parties have the right to propose remedies to remove serious doubts as to its compatibility with competition in the relevant market. Although the possibility of making modifications was introduced in 1995, the term 'remedies' was added by the new Law. The HCC may, in exceptional cases, accept a proposal of remedies after the expiration of the above deadline. In this case, the 90-day deadline may be extended by 15 days (105 days in total).
The HCC may approve the notified concentration, attaching to its decision conditions and provisions to ensure the compliance of the participating undertakings with the commitments agreed to by them, with a view to rendering the concentration compatible with the provisions of the law requiring that the concentration must not raise serious doubts about its significant impact on competition in the national market or, in the case of a joint venture, that the joint venture operates as an autonomous unit.
The HCC may threaten the participating undertakings with fines if they fail to comply with the conditions and provisions contained in the framework of the remedies.
A prohibition of a concentration implementation prior to its clearance does not prevent the concentration in certain cases:
- in the case of an acquisition of control following a public offer or other stock exchange transaction, provided that the relevant actions are notified in time (i.e., within 30 days from the date of such transaction) and the buyer does not exercise its voting rights related to the acquired titles, except (by special permission of the HCC) to maintain the value of its investment; and
- by special permission of the HCC, to avoid serious damage to one or more of the undertakings participating in the concentration or to a third party.
In addition to the general rules of the administrative law regulating the revocation of legal or illegal administrative acts, the new Law contains special rules concerning decisions approving the implementation of a concentration. One provision allows revocation of an HCC decision based on inaccurate or misleading data. Revocation in cases where the participating undertakings in the concentration violate any condition or accepted remedy is specifically regulated, thereby allowing the HCC to take any measures to dissolve the concentration, restore prior conditions, split the merged enterprises, or order the sale of the acquired shares or assets. This arrangement also applies in the case of concentrations implemented without approval.
Apart from its authority to revoke any decision approving a concentration and to restore conditions in the relevant national market, the HCC may impose fines, the amount of which depends on the type of violation, as follows:
- at least €30,000 and up to 10 per cent of the aggregate turnover in cases of violation of the obligation of an undertaking to notify a concentration subject to prior notification in a timely manner, regardless of whether such failure was unintentional but rather due to mild negligence;
- at least €30,000 and up to 10 per cent of the aggregate turnover for the implementation of a concentration before approval is granted;
- up to 10 per cent of the aggregate turnover of all participating undertakings that do not comply with the undertaken remedies; or
- up to 10 per cent of the aggregate turnover of all participating undertakings for failure to comply with the conditions of the HCC decision contained within the framework of the approved concentration.
In addition, the new Law provides for criminal sanctions, which are cumulative to the fines imposed by the HCC. Article 44 Section 1 provides for a fine ranging from €15,000 to €150,000 to be imposed by a criminal court on anyone who violates the provisions on merger control or does not comply with the relevant decisions of the HCC. The criminal character of an offence is eliminated for culprits or accomplices who notify the HCC, the Prosecutor or any other competent authority of the violation, and submit any evidence of the offence.
Statute of limitations
Article 42 of the new Law provides that any violations of the Law are subject to a five-year statute of limitations, which starts on the date the violation was committed. In the case of a continuous violation or a repeated violation, it starts on the date the offence ceased.
Contrary to EU Regulation No. 1/2003, which only refers clearly to the violation of Articles 101 and 102 TFEU, the above provision, providing for 'any violations of the law', appears to also cover infringements of Greek merger control provisions. Such provision on the limitation period is absent from EU Regulation No.139/2004, but is indirectly found in Regulation No. 2988/74 (Article 1), which remains applicable for any competition infringements other than those falling under Regulation No. 1/2003.
The main question is whether late notification, prior implementation, or both, of a merger would be considered to be a continuous violation. It must be noted that issues regarding a statute of limitations have not been tackled by the HCC in merger cases.
However, the general rule of the administrative law should apply, which does not allow for the revocation of an illegal act after the lapse of a reasonable time; a period of five years is considered to be such.
The statute of limitations is interrupted by any act of the HCC (or the EC) during the investigation of the violation or of the procedures related to the specific violation, including but not limited to written requests of the HCC or another authority to provide information, orders for audits (or dawn raids), assignment of the case to a rapporteur, or servicing of a statement of objections or of a recommendation report. The interruption starts from the date of communication of the relevant act to at least one of the undertakings participating in the violation, and applies to all participants. The deadline for completion of the statute of limitations is suspended during the time that the act or decision of the HCC in relation to the case is pending before the courts. In any case, the statute of limitations is completed upon the lapse of 10 years (i.e., double the basic period of prescription).
Strictly speaking, legally the statute of limitations is an institution of civil law, and refers to claims against a person. The term is not compatible with the public law terminology, where the authorities do not exercise any right but perform their duties in accordance with the law. Therefore, in terms of administrative law, we should rather refer to a peremptory deadline, following the lapse of which the HCC is deprived of its authority to act and enforce the specific provisions of the law.
The enforceable decisions of the HCC are subject to appeal (application for annulment) directly to the Athens Appellate Administrative Court. In merger cases, an appeal would normally challenge a decision of the HCC that either prohibited a merger or fined the undertaking for an alleged violation of merger control provisions (e.g., late notification). However, there has been one case where a third party successfully challenged the approval of a merger in court.
The Court examines both the legality and the substance of a decision, which may be annulled in full or in part. This includes a reduction of fines (if any), which is not uncommon. In contrast, the annulment of decisions is not as common: in many cases, this is due to technicalities, because of the HCC's inability to adhere strictly to the administrative procedural rules.
An appeal does not suspend payment of a fine, or the enforcement of other conditions or remedies imposed by the opposed decision. The Court may, however, suspend enforcement, in full or in part, conditionally or unconditionally, in extreme cases (e.g., in an unfounded decision or due to the inability of the undertakings to pay the fine). Regarding a provision strongly contested as being unconstitutionally limiting, the Court has the authority to reduce the fine by up to 80 per cent.
The decision of the Appellate Court is subject to appeal (cassation) before the Supreme Administrative Court for legal reasons only (i.e., incorrect application of the law, assuming as correct the factual basis accepted or the dictum not being supported by reasoned arguments). Exceptionally, the law also allows the suspension of a contested decision of the Appellate Court by the Supreme Administrative Court.
In the event that a decision of the HCC is totally annulled, a case may be re-examined by the HCC, which will re-judge the case based on the conditions prevailing in the market at the time of such re-examination. A new or supplementary notification will be required if the conditions of the market have changed or the data submitted needs to be updated (Article 8, Section 13). This is a new provision introduced by the current Law that increases the discretionary authority of the HCC, as the decision of the Court is based on different facts from those that will form the basis for the re-examination of the notification for a second time.
iii Significant cases
Recent HCC decisions on concentrations – overview of mergers and acquisitions
The past year was characterised by a significant increase of M&A activity across several diverse sectors of the economy, despite the fact that Greece is still affected by the repercussions of the financial crisis and that it has a long way to go until financial recovery.
Consolidation through M&A activity in the retail market for food and household products sold through supermarkets, which was quite strong in 2017 due to the deteriorating circumstances of the Greek economy, continued at a slower pace in 2018.
In this respect, on 27 July 2018, the HCC cleared29 the acquisition of Promitheftiki by Masoutis SA, the latter being a major supermarket chain in Northern Greece. The HCC also imposed remedies (i.e., the divestment of one store of Promitheftiki in the island of Andros) where the HCC identified competition concerns due to the possible creation of a dominant position by Masoutis.
Furthermore, the HCC accepted30 the modification of remedies previously undertaken by the Sklavenitis supermarket chain in the context of its acquisition of the Marinopoulos Group in 2017.31 Sklavenitis had committed to divest 22 of its branches to avoiding gaining a dominant position in certain localities. However, the lack of interest by competitors in acquiring all the branches and the changes in the competitive conditions in those localities led the HCC to reduce the number of branches to be divested to 12 and to order the closing of another two branches in areas where doubts still exist about the local competitive conditions.
Given the financial situation, it is likely that this wave of consolidation in the supermarket sector will continue in the future.
In January 2018, the HCC unconditionally cleared,32 without raising any competition concerns, the acquisition of 97.23 per cent of Iaso General, which operates four major health clinics in Greece, by Hellenic Healthcare, an intermediary company controlled by the global investment group CVC Capital Partners.
In the same relevant market, in September 2018 the HCC also approved the acquisition of 70.38 per cent of Ygeia A.E, again by Hellenic Healthcare, and did not identify any competition concerns.33
Media and telecommunications
On 2 April 2018, the HCC approved the acquisition of commercial trademarks of Pegasus Publishing SA by Dimera Media Investments.34 The concentration fell under the 35 per cent market share threshold of Law 3592/2007 governing concentrations in the news media sector, and did not raise any anticompetitive concerns. In 2017, the HCC had also approved the acquisition of Radiotileoptiki (operating the channel 'Epsilon') by the same company. However, in a separate decision (655/2018), it fined Dimera Media Investments €60,000 (€30,000 per concentration) for gun-jumping, given that both concentrations were effected before the HCC's approval, and another €50,000 for failing to notify the acquisition of Pegasus Publishing within the prescribed time limits.
On 19 April 2018, the HCC cleared the acquisition of 100 per cent of CYTA Hellas by Vodafone.35 The HCC's review was restricted to the market for the offering of televised content subscription services (where both companies enjoy very limited market power), given that the telecommunications prong of the concentration falls under the exclusive competency of EETT.
Finally, in June 2018, the HCC approved the acquisition of sole control of assets of the Lambrakis Media Group by Alter Ego Media SA.36 The concentration, which concerned the television, newspaper and radio relevant markets, also fell well under the 35 per cent market share threshold set by Special Law 3592/2007, and therefore it did not raise anticompetitive concerns.
Natural gas and electricity
On 16 July 2018, the HCC cleared the acquisition of sole control of Attiki Gas Supply Co and Attiki Natural Gas Distribution Co by the Public Gas Corporation of Greece SA, without identifying any anticompetitive concerns.37
Furthermore, on 18 July 2018, the HCC cleared the acquisition of Thessalia Gas Supply Co by Eni SpA (through its subsidiary, ENI gas e luce SpA), without identifying any anticompetitive concerns in the market for the (retail and wholesale) supply and distribution of natural gas, as well as in the market for the retail supply of electricity.38
In the electricity sector, the HCC also approved the acquisition of NRG Trading House Energy SA by Motor Oil Hellas SA.39 Although both companies are active in the production and wholesale supply of electricity and NRG is also active in the retail supply of electricity, their market shares (individually and combined) in all such markets are below 5 per cent, and therefore no anticompetitive effects were identified.
Sea passenger transport
The HCC unanimously approved the acquisition of Hellenic Seaways by Attica Group, both companies having a significant presence in the sea passenger transportation market, but imposed several remedies in order to resolve its doubts on the possible anticompetitive effects created given that post-acquisition Attica Group would acquire a dominant position or monopoly in several itineraries.40 Attica Group committed to facilitate the entry of competitors in 'port pairs' (which are connected with itineraries) where it is dominant, not to increase fares and to maintain the current frequency of itineraries.
The HCC approved, without identifying any anticompetitive concerns, the acquisition of sole control of Nea Odos SA and Central Greece Motorway SA by the GEK Terna construction group through the purchase of the shares of Ferrovial SA in these companies.41
In the hotel services sector, the HCC cleared the acquisition of 70 per cent of the share capital of Golf Residencies by Evergolf, controlled by the Vassilakis Group.42 The HCC found that there was joint control between the Vassilakis Group and the other three shareholders of Golf Residencies, due to the joint exercise of voting rights by the latter and the minority – veto rights enshrined in the articles of association of Golf Residencies. The concentration was evaluated based on its effects in the Iraklion city (Crete) area, given that it was the only place where both companies owned hotels; still, the HCC did not identify any competition law concerns given that the market share in the most strictly defined market possible (the city of Iraklion) amounted to a maximum 7.38 per cent.
In June 2018, the HCC approved the 100 per cent acquisition of carton producer Pako SA by Unipak SA.43 The HCC found that both companies had a market share lower than 15 per cent in the relevant market and failed to identify any competition law concerns, which was not affected by the fact that one person participated in the management of both Pako SA and competitor Boxpack Ltd. This was the case because of the lack of competitive impact of the acquisition whatsoever and the implementation of 'Chinese wall' measures to prevent the dissemination of commercially sensitive information between the two companies.
The new structure of the HCC has generally been successful by being more efficient and expeditious, demonstrating a better knowledge of the competition conditions and taking advantage of its interaction with the Directorate General of the European Commission. It can be seen that the refinements introduced by the new competition law are gradually improving the overall operation of the HCC. It now remains to be seen how the new Directive 2019/1 will be transposed into Greek law and whether it will contribute even more to the efficiency of the HCC's operation.
1 Emmanuel Dryllerakis and Cleomenis Yannikas are senior partners at Dryllerakis & Associates.
2 HCC decision No. 38/2018.
3 The Competition Act (Law 3959/2011).
4 HCC decision No. 525/VI/2011.
5 HCC decision No. 616/2015.
6 HCC decisions No. 642/2017, 636/2017, 668/2018, 674/2018, 669/2018.
7 Article 25, Paragraph 2(a) of Law 3959/2011.
8 HCC decision No. 526/VI/2011.
9 See also below, HCC decision No. 642/2017.
10 In the Milk cartel case, HCC decision No. 373/V/2007.
11 HCC decision No. 408/V/2008 regarding bank interchange fees (DIAS system).
12 See, e.g., HCC decision No. 538/VII/2012 of the HCC (regarding pay-TV platform NOVA).
13 HCC decision 551/VII/2012.
14 HCC decision Nos. 589/2014, 596/2014, 618/2015, 631/2016, 635/2016.
15 HCC decision No. 635/2016.
16 See also HCC press release of 21 Feburary 2018.
17 HCC press release of 7 December 2018; HCC decision No 641/2017.
18 HCC decision No. 657/2018.
19 HCC decision No. 642/2017.
20 HCC decision No. 674/2018.
21 HCC decision No. 669/2018.
22 HCC decision No. 668/2018.
23 HCC decision No. 625/2016.
24 HCC decision No. 657/2018.
25 HCC press release of 11 July 2018. The text of the decision has not yet been published.
26 HCC press release of 18 October 2018.
27 HCC decision No. 668/2018.
28 HCC press release of 25 July 2018.
29 HCC decision No. 665/2018.
30 HCC decision No. 664/2018.
31 HCC decision No. 637/2017.
32 HCC decision No. 654/2018.
33 HCC press release of 27 September 2018. The text of the decision has not yet been published.
34 HCC press release of 2 April 2018. The text of the decision has not yet been published.
35 HCC press release of 23 April 2018. The text of the decision has not yet been published.
36 HCC press release of 4 June 2018. The text of the decision has not yet been published.
37 HCC press release of 21 November 2018. The text of the decision has not yet been published.
38 HCC press release of 18 July 2018. The text of the decision has not yet been published.
39 HCC decision No. 666/2018.
40 HCC decision No. 658/2018.
41 HCC press release of 23 November 2018. The text of the decision has not yet been published.
42 HCC decision No. 661/2018.
43 HCC decision No. 660/2018.