The Dominance and Monopolies Review: Greece

Introduction

In Greece, Law 3959/2011 on the Protection of Free Competition (the 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 of:

  1. directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
  2. limiting production, distribution or technical development to the prejudice of consumers;
  3. 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; or
  4. making the conclusion of contracts subject to acceptance, by the other parties, of supplementary obligations that, 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 also apply in investigations for abuse of dominance cases, such as rules on procedure for the acceptance of commitments (HCC Decision 588/2014), the treatment of confidential information (HCC Notice of 13 January 2015) and access to files (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 and 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.

Year in review

i HCC

In 2020, the HCC issued two decisions on abuse of dominance cases, of which one concerned a preliminary ruling calling on further investigation by the Directorate-General for Competition3 (DGC) and the other concerned the rejection of a complaint and, therefore, a non-finding of an abuse of dominance.4

Between 2012 and 2017, the HCC issued 11 decisions on abuse of dominance.5 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 In 2019, the HCC issued three decisions on abuse of dominance cases, of which two related to the adoption of interim measures, whereas the third decision was an acceptance of a commitments decision.

Maviz SA

By virtue of Decision 711/2020, issued on 28 April 2020, the HCC ruled in favour of Maviz SA, a company active in the market for the supply of fur animal feed (upstream) and, through its subsidiary Bosman Mink Farm SA, in the market for the breeding and selling of fur animals (downstream), following a complaint filed against it by one of its downstream market customers (AK). The complainant alleged that Maviz SA had abused its dominant position by refusing to supply it with fur animal feed, which allegedly resulted, in turn, in the death of AK's fur animals and, consequently, in the complainant's exclusion from the market.

The HCC decided to unanimously reject the complaint for lack of evidence of a violation of Article 2 of the Greek Competition Act by Maviz SA and to abstain from any further action under Article 102 of the TFEU.

In particular, the HCC found that although Maviz SA held a dominant position (and even a super dominant position) in the upstream market for the supply of fur animal feed, the cumulative conditions for the finding of an abusive conduct within the meaning of Article 2 of the Greek Competition Act were not met. In this regard, the HCC concluded that the conditions for qualification of refusal to supply as abusive were not met as it found that the refusal did not lead to the elimination of effective competition in the downstream market. It also considered that the conduct of Maviz SA was objectively justified, as the company was not obliged to continue delivering feed to a customer with large debt and lack of sufficient guarantees for the repayment of such debt.

Coca-Cola 3E

By means of Decision 708/2020,7 the HCC decided to abstain from issuing a final decision and delivered a preliminary ruling on the basis of which the DGC was called upon to conduct, as a matter of priority, an investigation aimed at collecting further data on the net prices of Coca-Cola 3E's products that are in competition with the complainant's products, to assess whether Coca-Cola 3E had engaged in abusive practices, namely predatory pricing.

The case was brought before the HCC following a complaint filed by Agni Industrial & Commercial SA, a competitor of Coca-Cola 3E, for abuse of its dominant position.

In particular, the complainant alleged that Coca-Cola 3E, which held a dominant position in the market of cola-type beverages, abused its dominant position by applying, since 2013, predatory conduct and methods of price undercutting (i.e., by applying prices below cost in competing products or, if not below cost, by selectively applying reduced prices in competing products with the aim of excluding the complainant from the market).

The HCC found it necessary for the statement of objections to be supplemented by additional information that will allow it to better assess the relationship between the average variable cost and net price for the products and called on the DGC to conduct further investigation as a matter of priority.

A new hearing for the assessment of the complaint is expected in the near future.

DEPA Commercial SA

In addition to the two cases discussed above, the HCC issued a decision accepting DEPA Commercial SA's request to revise the commitments that had been adopted through HCC Decision 551/VII/2012, as amended by various HCC decisions,8 regarding the supply of natural gas through electronic auctions (Commitment No. 3).9 In particular, the HCC unanimously (1) decided that there had been a substantial change in the facts on which HCC Decision 551/VII/2012, as amended and applicable, was based (in relation to the third commitment undertaken by DEPA); and (2) accepted DEPA's request for its exemption from the obligation to implement the programme of distribution of natural gas quantities through electronic auctions, as set out in HCC Decision 631/2016.10

Summary

Summarised information about HCC investigations and decisions issued during 2020 is provided below.

HCC investigations of abuse of dominance in 2020
SectorInvestigating authorityConductCase opened
Market of production and marketing of cosmetic products, personal and baby care products, parapharmaceuticals and other related products (following complaint) (Intermed v. Frezyderm)HCCViolating Articles 1 and 2 of Law 3959/2011 and Articles 101 and 102 of the TFEU
For abuse of dominance: under statement of objections, no dominant position found
December 2020
General purpose gas appliances (following complaint) (Stamatoulis v. Dimka SA (Resoul SA))HCCViolating Articles 1 and 2 of Law 3959/2011 and Articles 101 and 102 of the TFEU
For abuse of dominance: target rebates
November 2020
Press distributionHCC Violating Articles 1 and 2 of Law 3959/2011 and Articles 101 and 102 of the TFEU, pursuant to HCC Decision 659/2018
For abuse of dominance (among others): exclusivity, excessive pricing, discriminatory treatment and refusal to sell
November 2020
Covid-19 tests
(amid covid-19)
HCCViolating Articles 1 and 2 of Law 3959/2011 and Articles 101 and 102 of the TFEUAugust 2020
Citrus fruit sector
(amid covid-19)
HCCAbuse of dominance, unspecifiedApril 2020
Medical supplies
(amid covid-19)
HCCAbuse of dominance, unspecifiedMarch 2020
BankingHCCExclusionary practices in the context of provision of banking and payment servicesNovember 2019
HCC decisions for abuse of dominance in 2020
SectorInvestigating authorityConductFine imposed
Supply of fur animal feedHCCRefusal to supplyDecision issued and published
Cola-type beveragesHCCPredatory pricing and pricing below costPreliminary decision issued and published (hearing in substance pending)
Natural gasHCCDe facto exclusivity, bundling of services and denial of access to essential facilitiesAcceptance by the HCC of the request by DEPA SA to revise the commitments that had been adopted through HCC Decision 551/2012, as amended by HCC Decisions Nos. 589/2014, 596/2014, 618/2015 and 631/2016, regarding the supply of natural gas through electronic auctions (Commitment No. 3) (a new hearing to review DEPA's request to be exempted from all commitments is pending)

ii Other administrative authorities (EETT)

By means of Decision 903/15,11 the EETT rejected the complaint of telecoms operator Vodafone-Panafon SA (Vodafone) against its competitor and holder of dominant position Cosmote Mobile Telecommunications SA (Cosmote) in an abuse of dominance case.

According to the EETT decision, no adequate proof was produced before the authority as evidence that the accused entity, Cosmote, was engaged in abusive practices in the market of prepaid mobile telephony, namely by means of allegedly applying margin squeeze practices in violation of Article 2 of the Greek Competition Act and Article 102 of the TFEU.

In particular, under this decision, the EETT found that it was not proven that Cosmote had commercially retailed the 'What's Up' product at a loss from 2007 to 2012. It was therefore concluded that it was not engaged in an abusive exploitation of its dominant position in the relevant market by either margin squeeze practices or creation of barriers over end customers' movement and confinement pursuant to Article 2 of the Greek Competition Act. Furthermore, the EETT found that there was no reason to take action in terms of application of Article 102 of the TFEU.

In view of the above, the EETT rejected Vodafone's complaint as unfounded. However, the authority expressed its reservations regarding the assessment of different pricing of call termination by network providers or holders of significant market positions pursuant to their regulatory obligations (as a separate ex officio procedure before the EETT).

Market definition and market power

The Greek Competition Act does not provide 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 per cent or 50 per cent) and an undertaking's ability to act independently of its competitors' customers and ultimately consumers are factors that are taken into account. This is also evident in the HCC's case law,12 in which the authority found that a market share of between 70 per cent and 80 per cent in the relevant market is, in itself, a clear indication of the existence of a dominant position. 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:

  1. market share exceeding 35 per cent, where the company is active in only one media sector (television, radio, press and magazines);
  2. 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;
  3. total market share exceeding 32 per cent in two sectors with the same geographical coverage;
  4. total market share exceeding 28 per cent in three sectors with the same geographical coverage; and
  5. total market share exceeding 25 per cent in four sectors with the same geographical coverage.

Abuse

i Overview

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 in 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, 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 to 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 of the TFEU. In particular, the HCC found that Athenian Brewery applied an exclusionary strategy 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.

Finally, 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.

iii Discrimination

The HCC has also dealt with a few discriminatory treatment cases in the energy sector. In its Gas Distribution Companies case,22 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) v. 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 (the Hellenic Society 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.

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 or Article 102 of the TFEU, or both.

i Sanctions

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 that 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, the HCC determines the basic amount of the fine, depending on the gravity and duration of the infringement; the fine 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 2020, the HCC has dealt with relevant cases on several occasions over recent 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 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.

The HCC has accepted commitments of a behavioural nature by infringing undertakings in its past case law.27

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.

Procedure

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 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 or her statement of objections to the 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 statement of objections, the case is heard by the HCC. The HCC is not bound by the statement of objections.

Interested parties are summoned to appear before the HCC at least 45 days before the hearing and are served with the rapporteur's statement of objections 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, the HCC must reach a decision within 15 days of the submission of the request. In the context of these proceedings, the deadlines for the submission of statements of objections or addenda-rebuttal by the parties are determined by 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 statement of objections). The procedure for the acceptance of commitments by the 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 statement of objections for the acceptance of the commitments offer; (7) service of the statement of objections 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 interim measures decisions in particular, these are only subject to appeal before the Athens Administrative Court of Appeals.

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.28 Thus, it may be expected that the general Greek legislation on the matter would apply (Article 74 of the 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.29

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 to quantify harm.

Future developments

The covid-19 crisis has not left competition law enforcement unaffected. The HCC has shown 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 that is competent to issue guidelines addressed to undertakings and consumers on the application of competition law amid 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 throughout 2020, the HCC sent information requests to many undertakings active in the medical supplies market, as well as to hospitals and diagnostic centres (for covid-19 tests) and also conducted dawn raids in the food sector.

From a legislative point of view, one of the key issues to be highlighted in terms of regulation of competition, focusing on dominance, in Greece would be the envisaged amendments to the Greek Competition Act. In particular, the legislative committee, which was set up on 15 January 2020 with the mandate to review and propose legislative amendments to the Greek Competition Act in an effort to modernise competition rules in the digital age and protect competition in the product and service markets in the telecommunications and post services sector by introducing structural changes in Greek competition legislation, has submitted a draft bill to the competent Greek ministries. This is still under review and its content has not yet gone public.30 Based on publicly available information, the new draft bill includes an innovative provision concerning the abuse of a dominant position in an ecosystem of structural importance for competition in Greece. This provision is only applicable where the aggregate worldwide turnover of the company in a dominant position amounts to at least €300 million.

Footnotes

1 Marina Androulakakis is a partner, Tania Patsalia is a senior associate and Vangelis Kalogiannis is a junior associate at Bernitsas Law.

2 Articles 101 and 102 of the TFEU are directly applicable in Greece in cases where it is proven that trade between Member States is affected.

3 HCC Decision 708/2020.

4 HCC Decision 711/2020.

5 OECD Peer Reviews of Competition Law and Policy, Greece, 2018, p. 40.

6 HCC Decision 663/2018.

7 HCC Decision 708/2020.

8 HCC Decisions Nos. 589/2014, 596/2014, 618/2015 and 631/2016.

9 HCC Decision 723/2020.

10 An HCC plenary hearing for the HCC to review DEPA's request to be exempted from all commitments undertaken by the company under HCC Decision 551/VII/2012 is pending. Pursuant to the HCC rapporteur's statement of objections, which is not binding on the authority, the acceptance of DEPA's request is recommended, as it may be established that there has been a substantial change in the facts on which HCC Decision 551/VII/2012 was based in terms of commitments undertaken by DEPA.

11 EETT Decision 903/15 (Official Gazette B' 353, 7 February 2020).

12 HCC Decision 711/2020.

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 Decision 2458/2017 of the Athens Administrative Court of Appeals, 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 See, indicatively, HCC Decision 698/2019 (Diageo).

28 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'.

29 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.

30 See HCC Newsletter No. 3, October 2020, p.49.

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