Greece: Presenting the Greek Antitrust Framework
This article provides a brief presentation of the Greek antitrust framework in terms of substantive rules and procedure. Aspects of public enforcement in Greece are described, and a comparison is made with equivalent EU rules. Recent developments and trends are also covered.
- Hellenic Competition Authority
- Types of antitrust violations
- Leniency, settlement and commitments
- Statute of limitation rules
- Merger control rules
Referenced in this article
- Greek Law 3959/2011
- Articles 101 and 102 of the TFEU
- Council Regulation (EC) No. 1/2003
- First-ever Greek settlement case (cosmetics sector)
- First-ever Greek hybrid (leniency and settlement) cartel case (construction sector and public tenders)
The Greek Antitrust Law (L3959/2011) (the Antitrust Law) is based on European legislation. Articles 1 and 2 of the Antitrust Law are generally applicable provisions prohibiting, respectively, anticompetitive behaviour and abuse of dominance. The wording of those articles – a literal translation of the equivalent articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) – was introduced before Greece joined the Community and has remained unchanged. Both articles provide for an indicative list of typical (per se) violations.
The Hellenic Competition Authority
Generally, responsibility for the enforcement of the Antitrust Law lies with the Hellenic Competition Commission (HCC), which is also the national competition authority for the application of the equivalent EU provisions (articles 101 and 102 TFEU).
However, according to the EU common framework for liberalisation in the telecommunications, postal services and energy sectors as implemented in Greece, there are separate national regulatory authorities (NRAs), namely the Hellenic Telecommunications and Postal Services Commission and the Regulatory Authority of Energy (RAE). With the rest of the regulatory sector-specific powers held by those NRAs, the RAE is further responsible for enforcing the Antitrust Law in the aforementioned sectors, although cooperation with or referral to the HCC is also possible.
The HCC has recently undertaken initiatives to increase cooperation with other independent authorities to facilitate its enforcement work. On September 2020, a memorandum of understanding (MOU) was signed between the HCC and the RAE to, among other things, promote policies for the exchange of information from the economic operators in the energy market on matters relating to the responsibilities of the two authorities.
Along similar lines, another MOU was recently signed on April 2021 between the HCC and the Hellenic Regulatory Port Authority.
Under the Antitrust Law, the HCC comprises eight members, six of whom are full-time appointees (the chair, the vice chair and four commissioners).
Investigations can be initiated either ex officio (eg, in cases of public interest or when a certain anticompetitive pattern has come to the attention of the authority) or in response to a complaint submitted by a third party (usually a competitor, supplier or customer).
The investigative powers of the General Directorate of Competition (part of the HCC) are specifically provided for in the Antitrust Law and are generally in line with those of other European competition authorities. Investigation requires a written mandate from the chair of the HCC that defines the scope and legal basis of the investigation, and also mentions the sanctions applicable should the enterprise fail to cooperate. Other public officers or authorities may be involved in an investigation carried out by the officers of the General Directorate of Competition, which must also comply with constitutional restraints (eg, if an investigation is in the residence of a representative of an enterprise, court authorisation is required).
The failure of an enterprise to comply with an investigation (eg, refusing to provide information, submitting misleading data or concealing documents) entails administrative and criminal sanctions.
As soon as the investigation is concluded, the General Directorate of Competition assesses the findings of the investigation and proceeds, in cooperation with one of the commissioners, to draft a recommendation (similar to a statement of objections) to the HCC. This recommendation is notified to the parties involved, to express their position both orally and in writing before the HCC (right of prior hearing).
Prioritisation of cases is generally at the discretion of the HCC; nevertheless, it is subject to relevant (internal) rules for reasons of consistency and transparency.
On 21 November 2019, a new point system was established by HCC Decision No. 696/2019, which introduced a new way of calculating the degree of priority of various cases by correlating, using a mathematical formula, two separately calculated factors, namely the impact of the case and the extent of time and human resources needed to handle it.
Aside from taking into account factors that were used in the previous point systems (eg, whether a practice is hardcore, its geographical extent or the existence of novel legal issues), the new point system refines the notion of public interest as a factor for prioritisation and assigns, for example, priority to cases deriving from complaints by consumer associations with which the HCC has concluded a memorandum of cooperation. Another innovation is the introduction of an ‘impending prescription factor’, which applies to cases that are nearing prescription and multiplies the final score, so that those cases achieve a higher priority ranking for investigation.
According to article 1 of the Antitrust Law, all agreements between undertakings, all decisions by associations of undertakings and concerted practices that have as their object or effect the prevention, restriction or distortion of competition in the Greek territory are prohibited, in particular those that:
- directly or indirectly fix purchase or selling prices or any other trading conditions;
- limit or control production, markets, technical development or investment;
- share markets or sources of supply;
- apply dissimilar conditions to equivalent transactions with other trading parties, thereby impeding competition, in particular by refusing, without valid justification, to sell, purchase or conclude any other transaction; or
- make the conclusion of contracts subject to acceptance by other parties of additional obligations that, by their nature or according to commercial usage, have no connection with the object of the contracts.
The prohibition captures both horizontal and vertical behaviours, the difference being that the former (cartels) are considered to constitute the most serious type of violation and entail heavier sanctions. Regarding vertical agreements, the EU Block Exemption Regulations also apply in Greece, the resale price maintenance and the restriction of passive sales constituting the main points of concern.
Under article 1, paragraph 3 of the Antitrust Law, the provisions of paragraph 1 may not apply in cases where any agreement between undertakings, decision by associations of undertakings or concerted practice:
- contributes to improving the production or distribution of goods, or to promoting technical or economic progress;
- allows consumers a fair share of the resulting benefit;
- does not impose on the undertakings concerned restrictions that are not indispensable to the attainment of those objectives; and
- does not afford those undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.
The above exemption criteria are cumulative, in accordance with the EU model. Until the enforcement of the Antitrust Law, the system of self-assessment, as introduced by Council Regulation (EC) No. 139/2004, was only partially adopted in Greece, given that a notification system remained mandatory (in accordance with article 21 of L703/77). This formality has since been abolished, and exemption applies automatically once the above criteria are cumulatively fulfilled. The burden of assessment lies with the undertakings involved.
Abuse of dominance
Greek law does not contain a definition of dominance. However, in accordance with the well-established European and Greek case law, the market share (potentially greater than 50 per cent, depending on the allocation of the market power of the remaining players) and the ability of a firm to act independently of competitors and customers is critical. The overall market structure is always of interest (eg, other competitors, or legal or actual barriers to entry), so even undertakings with a smaller market share (even around 30 per cent) can be held dominant if the degree of market-share dispersion is high.
Article 2 of the Antitrust Law prohibits any abuse by one or more undertakings of a dominant position within the national market or in a part of it. This abuse may, in particular, involve:
- directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
- limiting production, markets or technical development to the prejudice of consumers;
- applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; or
- making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations that, by their nature or according to commercial usage, have no connection with the subject of the contracts.
From the above indicative examples, it is clear that the provision does not distinguish between horizontal (exclusionary) and vertical (exploitative) practices, therefore both aspects of possible abusive practices are covered. The exact form of abuse of dominance may vary. There are, therefore, two points of particular interest for dominant undertakings: rebates and predatory pricing.
It is true that, with the evolution of EU case law, it is hard for a dominant firm to implement a feasible discount policy that can stand effectively in the market and, at the same time, be in full compliance with competition rules. It is generally accepted that rebates connected with, for example, target sales are only exceptionally admissible once they are cost-related and justified. The rationale is common according to the EU approach (ie, preventing dominant firms from any practices that end up binding the customers and excluding potential competitors).
Regarding predatory pricing, proper assessment of this type of conduct presupposes careful cost analysis. As a general rule, the critical threshold is the average variable cost since sales below that cost are deemed abusive. Other than that, each case must be examined on an ad hoc basis, in the framework of the exact competition conditions of each market.
A critical element for defending an alleged abuse of dominance is its objective justification, interrelated with a commercial rationale. Also, potentially overriding interests (more efficient service for the customer) may counterbalance prima facie abusive behaviour. Proportionality is crucial in any case for the overall assessment of a certain conduct.
The prohibition of dissimilar treatment of similar situations is often misinterpreted as a ‘flat’ equality of treatment, particularly in cases involving alleged discrimination. However, the details of a specific practice cannot and must not be disregarded since, for example, the different credit risk or sales volume between customers may justify their different treatment. Comprehensive understanding of the facts of each case, combining vigorous legal analysis and economic competitive assessment, is a prerequisite for grey areas, which is mostly the rule in competition law.
Sanctions in general
According to article 25 of the Antitrust Law, the HCC has the power to impose fines against the violating undertakings. The fine cannot exceed 10 per cent of the aggregate turnover of the undertaking for the previous fiscal year, depending on the gravity and the duration of the infringement. European guidelines for the calculation of the fine are also followed by the HCC.
In accordance with the provisions of the Antitrust Law, there are three new elements regarding administrative sanctions:
- in cases with a group of companies, the aggregate group turnover is to be considered;
- if the economic benefit enjoyed by the undertaking can be measured, the fine cannot be less than that (even if it exceeds the threshold of 10 per cent); and
- individuals involved in violations of L3595/2011 face a twofold personal liability:
- they are jointly liable with the undertaking for the payment of the above fine (this existed also under L703/77); and
- a separate fine ranging from €200,000 to €2 million may be imposed against them if they were involved in preparing, organising or committing the violation.
Criminal sanctions are also threatened in cases that violate the Antitrust Law or articles 101 and 102 of the TFEU. According to article 44 of the Antitrust Law, a distinction is made, depending on the type of violation:
- horizontal violation leads to imprisonment of between two and five years, and a fine ranging from €100,000 to €1 million;
- vertical violation leads to a fine ranging from €15,000 to €150,000; and
- abuse of dominance leads to a fine ranging from €30,000 to €300,000.
As per a law enacted in May 2016, criminal violations in the case of horizontal violations (cartels) are eliminated in the case of leniency or settlement, provided the accused undertakings have paid off any fines imposed by the HCC.
Decisions issued by the HCC are, at the first stage, subject to appeal before the competent administrative court of appeal. The court examines both the legality and the substance of the decision, which may be annulled in total or in part. This includes the reduction of the fine (if any), which is not at all unusual.
On the contrary, annulment of the decision is not as frequent, and in many cases this is because of technicalities owing to the inability of the HCC to strictly adhere to administrative procedural rules.
The appeal does not suspend the payment of the fine imposed or the enforcement of other conditions or remedies imposed by the opposed decision. The court, however, may suspend enforcement, totally or in part, conditionally or unconditionally, in extreme cases, such as a clearly unfounded decision or the complete inability of the undertaking or undertakings to pay the fine. A provision – strongly contested as unconstitutional – limits the authority of the court to suspend the fine by 80 per cent.
The decision of the Appellate Court is subject to appeal (cassation) before the Supreme Administrative Court for legal reasons only (wrong application of the law assuming as correct the factual basis accepted or dictum not supported by reasoned arguments).
The law also allows the suspension of the contested decision of the Appellate Court by the Supreme Administrative Court.
Article 42 of the new law of May 2016 provides that any violation of the law is subject to a five-year prescription, which starts on the date when the violation was committed. In cases of continuous violations or repeated violations, it starts on the date when the offence ceased.
The new provision resolves a controversial issue in respect of violation of articles 1 and 2 of the Antitrust Law (equivalent to articles 101 and 102 TFEU). Prior to the new provision, the HCC did not accept the concept of prescription or the application of the provision of article 23, section 2a of Council Regulation (EC) No. 139/2004; on the contrary, it was argued that many generally accepted principles that are applicable in administrative law require the administration to act in a timely manner (ie, within a reasonable time frame and not at any time). In addition, the rule of uniform application and the interpretation of European and national law cannot be disregarded.
Contrary to Council Regulation (EC) No. 1/2003, which clearly refers only to violation of articles 101 and 102 of the TFEU, the above provision, speaking for ‘any violations of the law’, appears also to cover infringements of Greek provisions for merger control. Such a provision on the limitation period is absent from Council Regulation (EC) No. 139/2004 but is indirectly found in Regulation (EEC) No. 2988/74 (article 1), which remains applicable for any competition infringements other than those falling under Council Regulation (EC) No. 1/2003.
The main question is whether the late notification or prior implementation of a merger would be considered to be a continuous violation. Issues of prescription have not been tackled by the HCC in merger cases.
Still, although the general rule of administrative law should apply – which does not allow the revocation of an illegal act after the passing of a reasonable time – a period of five years is always considered as such.
Prescription can be interrupted by any act of the HCC (or the European Commission) within the framework of the investigation of the violation or of the procedures related to the specific violation, including, but not limited to:
- written requests by the HCC or other authority to provide information or orders for audit (or dawn raids);
- assignment of the case to a rapporteur; and
- servicing of a statement of objections or of a recommendation report.
The interruption starts from the communication of the relevant act to at least one of the undertakings participating in the violation and applies to all accomplices. The deadline for the completion of a prescription is suspended during the time that the act or decision of the HCC relating to the case is pending before courts. In any case, the prescription is complete after 10 years have passed (ie, twice the basic period of prescription).
The ‘commitments decision’ procedure under Council Regulation (EC) No. 1/2003 and Greek competition law provides the HCC with a mechanism to dispose of competition law cases by way of a formal settlement similar to a US consent decree.
The involved undertaking may voluntarily propose that the HCC undertake certain behavioural or structural commitments to terminate the alleged infringement (either an anticompetitive agreement, decision or concerted practice, or an abuse of dominance).
The HCC can consider those commitments and render them mandatory if and when:
- they remove the HCC’s initial competition concerns;
- the case is not one in which a fine would be appropriate (therefore excluding commitment decisions in hardcore cartel cases); and
- efficiency reasons justify that the Commission limits itself to making the commitments binding and does not issue a formal prohibition decision.
The HCC is considered to have wide discretion in accepting commitments. It has rendered Decision No. 588/2014 on commitments.
In 2005, leniency was introduced into Greek competition law. The HCC has rendered Decision No. 526/VI/2011 on leniency, following, in general terms, the European Commission’s Leniency Notice.
Leniency applies only in horizontal cartel cases and not in vertical cartel cases or abuse of dominant position cases. In accordance with the EU approach, a distinction is made between:
- full immunity from fines, if the undertaking is the first to submit evidence for a cartel about which the HCC did not have, at the time of submission, sufficient evidence to carry out an investigation or find out about the infringement; and
- reduction of fines, if the undertaking provides the HCC with evidence of the alleged infringement that represents a ‘significant added value’ when compared to other information already possessed by the HCC.
The undertaking must also:
- cooperate fully, actively and continuously throughout the investigation procedure, and provide the HCC with all information and evidence in its possession or that might later become available to it;
- end its participation in the alleged infringement as soon as it submits the information to the HCC;
- not have encouraged other undertakings to participate in the infringement;
- treat, with full confidentiality, the fact that it has applied for leniency until the completion of the investigation and the drafting of the report by the HCC on the case; and
- not have participated in any cartel case in the past that has been detected and confirmed by a national competition authority or the European Commission.
On May 2016, the HCC issued a statement of objections in the construction cartel focusing on alleged collusion regarding tenders for public works of infrastructure, notably road construction, rail transport, metro rail and concession projects (public–private partnerships). This is practically the first case in Greece in which one of the accused parties contributed considerably to the substantiation of the infringement by submitting a leniency application following the dawn raids conducted by the HCC and was granted full immunity.
On 18 July 2016, the HCC issued Decision No. 628/2016, by which it formally established a settlement procedure for cartel infringements, thus bringing its practice further in line with that of the European Commission, which introduced this procedure in 2008. Pursuant to this HCC decision, companies may express their interest, in writing, to partake in the settlement procedure, either before the issue of a statement of objections or after, within a maximum of 35 days prior to the date set for an oral hearing (in contrast with the Commission, which will always carry out the procedure prior to the issue of a statement of objections).
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 that this settlement tool will be put to use often.
The issue of the above HCC decision 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 settlement decision was eventually issued on 10 March 2017 (HCC Decision No. 642/2017) and was followed by the standard hearing procedure for the remaining undertakings that did not participate in the settlement (HCC Decision No. 647/2017).
Previously, on 10 January 2017, the HCC issued its first settlement decision (HCC Decision No. 636/2017), which refers to a cosmetics and selective distribution channel, following a settlement request by the leading retailer in the Greek market. This was the second case submitted to the simplified (settlement) procedure but the first to complete it successfully. Since then, a couple of further cases have been settled or are under way for settlement.
The HCC is also capable of enforcing articles 5 to 10 of the Antitrust Law, which deal with merger control of concentrations of a national dimension. In this capacity, it has the decisive power to verify whether there is significant impact on competition from the concentration and to allow or prohibit it, accept remedies or impose conditions.
The HCC is also capable of handling mergers with a community dimension that are referred to it by the European Commission in accordance with the provisions of Council Regulation (EC) No. 139/2004.
National merger control applies when a concentration exceeds the following turnover thresholds:
- the combined aggregate worldwide turnover of all the undertakings concerned is at least €150 million; and
- the aggregate turnover of each of at least two of the undertakings concerned in the Greek market exceeds €15 million.
The above thresholds apply to all market sectors, except for mass media, where special legislation (L3592/2007) defines the respective thresholds as follows:
- the combined aggregate worldwide turnover of all the undertakings concerned is at least €50 million; and
- the aggregate turnover of each of at least two of the undertakings concerned in the Greek market exceeds €5 million.
If falling under Greek merger control rules, the undertakings are prohibited from materialising the concentration before clearance by the HCC or contrary to the prohibition decided by the HCC. Otherwise the undertakings concerned are subject to severe sanctions (ie, a penalty and the possible invalidation of the concentration). A penalty is also the result of a late notification, even if the parties have not yet implemented the concentration or if the concentration was finally approved.
Although Council Regulation (EC) No. 139/2004 does not set any notification deadline, and it is in the parties’ interest to move quickly to get clearance and implement the merger, notification in Greece must be made within 30 days of:
- the entry into an agreement;
- the publication of an offer or an exchange; or
- the undertaking of the obligation to acquire participation that secures the control of another undertaking.
Greek law, following the EU significant impediment to effective competition test, provides that a concentration is prohibited if it may lead to a significant impediment to competition in the whole or a substantial part of the Greek market, especially by creating or strengthening a dominant position.
Therefore, market share is examined, but it is not the only decisive criterion. In the framework of the adopted test, the law itself specifies the basic criteria to be considered, such as the 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 efficiencies.
The above test applies in all market sectors, except for that of the mass media where the special Law L3592/2007 provides for a dominance test. For the purposes of this Law, ‘dominance’ is translated into a market share of between 25 and 35 per cent, depending on the case.
The content of a notification is defined by a decision of the HCC. The HCC has issued a new draft notification form (Decision No. 558/VII/2013) with a separate form for submitting remedies (Decision No. 524/VI/2011). The format of those templates generally follows the guidelines of the European Commission, and the purpose is to make clear to the notifying parties the minimum information they have to substantiate as part of the notification.
The notification form must be submitted in Greek with all required supporting documents and the receipt of the filing fee, which is currently €1,100. A summary of the notification must also be published in a daily financial newspaper, and on the HCC website, so that any third party (eg, competitor, supplier, customer or customer’s association) may find out about the transaction and submit comments to the HCC.
If the notification form is not filled in and submitted properly, the notification is not complete, and the deadlines for submission and for the HCC to issue its decision are not met. Depending on the extent of omission, it may be considered as a failure to notify.
Within a month of receiving a notification, the president of the HCC must issue an act to certify that the concentration concerned does not fall within the scope of the law. If the concentration falls within the scope of the law, it may be examined in one or two phases, in line with the practice defined by Council Regulation (EC) No. 139/2004.
If the HCC finds that the concentration notified does not raise serious doubts on its compatibility with the competition requirements of the relevant national markets, it issues a decision approving the concentration within a month of the date of notification (ie, within the same period granted for the verification that the concentration is within or outside the scope of the law).
If the HCC finds that the concentration raises serious doubts, its president will issue a decision initiating Phase II proceedings, which is notified to the interested parties. This decision must be issued within a month of receiving the notification. Within 45 days of the decision, the case must be put before the HCC, which has to decide within 90 days whether to approve or prohibit the concentration. If the HCC fails to issue a decision within this 90-day period, the concentration is deemed to be approved. Both the 45 and 90-day deadlines start from the initiation of the Phase II examination, rather than the notification date under the previous law.
The first month after the notification is received is the most critical within this period, and the concentration may be declared as not falling within the scope of the law; if it does, it will be decided whether it is allowed because it does not raise serious doubts that it will significantly impede competition or whether Phase II will follow (ie, whether a full investigation has to follow). The total maximum period, provided the notification is full and no remedies have been submitted, is a month plus 90 days.
During the Phase II investigation, and within 20 days of when the parties receive the recommendation and the case is put before the HCC, the parties may jointly proceed to modifications in concentration or propose remedies to remove the serious doubts on its compatibility with the competition in the relevant market. The HCC may, in exceptional cases, accept a proposal of remedies after the expiry of the aforementioned deadline. In this case, the Phase II deadline of 90 days may be extended by 15 days to 105 days in total.
The HCC may approve the notified concentration, attaching to its decision conditions and provisions to ensure compliance of the participating undertakings with the commitments undertaken 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 to competition in the national market or, in the case of a joint venture, the latter operates as an autonomous unit.
The decision may threaten fines against the participating undertakings if they fail to comply with the conditions and provisions in the framework of remedies.
Depending on the kind of violation, the HCC may impose fines of:
- at least €30,000 and up to 10 per cent of the aggregate turnover in cases of violation of the obligation of the undertaking to notify in time a concentration subject to prior notification, regardless of whether failure was unintentional but was owing to light negligence;
- the same as above, but for the implementation of the concentration before approval is granted;
- up to 10 per cent of the aggregate turnover of all participating undertakings that do not comply with 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’s decision in the framework of the approved concentration.
In addition, the law provides for criminal sanctions that 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 the criminal court on anyone who violates the provisions on merger control or does not comply with the relevant decisions of the HCC. The criminal nature of the offence is eliminated for the culprits or the accomplices who notify the HCC, the prosecutor or any other competent authority of the violation or submit any evidence pertaining to the violation.