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PitoliS - Tr ian tafylloS Pi sti oli s-Tri antafyllos& Associ ates Col l a bor a t i ngwi t h ANDERSENGLOBALi nGr eec e&Cypr us

I n theDeepWaters ofGreekCompeti ti on Law: ASurvi vor' sGui de 2nd Edi ti on

Α

Ant i t r us t , Compe t i t i ona nd Re gul a t or yL a wP r a c t i c e

Dr .Themi s t ok l i sK.Gi annak opoul os


Pistiolis - Triantafyllos & Associates

In the Deep Waters of Greek Competition Law: A Survivor's Guide 2ND EDITION

Reprinted from “COMPETITION LAW IN WESTERN EUROPE AND THE USA” SUPPLEMENT 390, FEBRUARY 2017 WITH PERMISSION BY KLUWER LAW INTERNATIONAL

Dr. Themistoklis K. Giannakopoulos Antitrust, Competition and Regulatory Law Practice


Table of Contents 1.

Introduction and Sources of Greek Competition Law ............................................................. 6

2.

Institutions/Bodies Responsible for the Enforcement of National Competition Rules.......... 6 2.1.Administrative Authorities .................................................................................................... 6 2.1.1.The Hellenic Competition Commission (HCC) ................................................................ 6 2.1.2.

The National Telecommunications and Posts Commission................................... 11

2.1.3.

Courts .................................................................................................................... 11

3. Anti-competitive Agreements, Decisions and Concerted Practices, Abuse of Dominant Position .......................................................................................................................................... 12

4.

3.1.

Exemptions under Article 1(3) ....................................................................................... 13

3.2.

The De Minimis Rule...................................................................................................... 13

3.3.

Abuse of Dominant Position .......................................................................................... 14

3.4.

The Concepts of ‘Undertaking’ and ‘Association of Undertakings’ ............................... 14

3.5.

The Concept of ‘Abuse’ of Dominant Position .............................................................. 17

Other Powers of the HCC....................................................................................................... 19 4.1. The Powers of the HCC in Respect of Regulatory Interventions into Sectors of the Economy .................................................................................................................................... 19 4.2.

4.2.1.

Applicable Criteria in the Selection of Cases Procedure ....................................... 22

4.2.2.

Submission of the Commitments Offer ................................................................. 23

4.2.3.

Content and Types of Commitments..................................................................... 24

4.2.4.

Evaluation and Acceptance or Rejection of Commitments ................................... 25

4.3. 5.

The Power of the HCC to Accept Commitments ........................................................... 22

The Power of the HCC to Adopt Interim Measures ....................................................... 27

Mergers and Joint Ventures under Greek Competition Law................................................. 31 5.1.

Obligation of Prior Notification of Concentrations ....................................................... 32

5.2.

Obligation to Suspend the Implementation of a Concentration That Must Be Notified 32

5.3.

Appraisal of Concentrations .......................................................................................... 35

5.4.

Examination of Notification and Initiation of Proceedings ........................................... 35

5.4.1.

Phase I Proceedings ............................................................................................... 35

5.4.2.

Phase II Proceedings .............................................................................................. 36

5.5.

Extension/Suspension of the Applicable Deadlines ...................................................... 37

5.6.

Annulment/Revocation of Decisions ............................................................................. 37 3


5.7. 6.

Calculation of Turnover ................................................................................................. 38

Enforcement of Greek Competition Law and Judicial Review .............................................. 39 6.1. Initiation of Proceedings: Upon Complaint/Upon the HCC’s Own Initiative/Upon Request by the Minister of Economy, Competitiveness and Shipping ..................................... 39 6.2.

The HCC Notice on Enforcement Priorities ................................................................... 41

6.3.

The ‘Point System’ Mechanism of the HCC ................................................................... 43

6.3.1.

Methodology ......................................................................................................... 44

6.3.2.

Point System Criteria ............................................................................................. 44

6.4.

Fact-Finding Powers of the HCC .................................................................................... 46

6.4.1.Collection of Information ............................................................................................. 46 6.4.2.On-the-Spot Inspections............................................................................................... 47 6.5. The Procedure Resulting in the Adoption of the Final Decision of the HCC, in Respect of Infringements of Competition Rules ......................................................................................... 50 6.5.1.Introduction of a Case to the HCC in Order to Be Heard ............................................. 50 6.5.2.

The Report (‘Statement of Objections’) of the Competition Directorate General 53

6.5.3.

The Right of Access to the HCC File ....................................................................... 54

6.5.4. Replies by the Parties Concerned to the Allegations Contained in the Report (Statement of Objections) ..................................................................................................... 61 6.5.5.The Content of the Final Decision Adopted by the HCC upon Completion of the Hearing .................................................................................................................................. 66 6.5.6. The Procedure Regarding Adoption, Notification and Publication of the Final Decision of the HCC ............................................................................................................... 74 6.6.

Judicial Review............................................................................................................... 75

6.6.1.

Appeal against the Decisions Applying the Provisions of Law 3959 ..................... 75

6.6.2. Action for Annulment against the Decision of the Administrative Court of Appeals of Athens before the Supreme Administrative Court: The Council of State ......................... 77

7.

6.6.3.

Action for Damages ............................................................................................... 77

6.6.4.

Administrative and Judicial Fees ........................................................................... 78

Leniency Policy ...................................................................................................................... 79 7.1.

Scope of Application of the Leniency Programme ........................................................ 80

7.2.

Immunity from Fines (Types 1A and 1B) ....................................................................... 80

7.2.1. Immunity Type 1A: Conditions and Minimum Requirements Related to the Provision of Evidence ............................................................................................................ 80 7.2.2. Immunity Type 1B: Conditions and Minimum Requirements Related to the Provision of Evidence ............................................................................................................ 81

4


7.2.3.

Undertakings Excluded from the Possibility of Being Granted Immunity from Fines 82

7.3. Reduction of Fines: Type 2 – Conditions and Minimum Requirements Related to the Provision of Evidence ................................................................................................................ 82 7.4.

Conditions Related to the Application of the Leniency Programme ............................. 83

7.5.

Procedure Regarding the Application of the Leniency Programme .............................. 84

7.5.1.

Application to the HCC .......................................................................................... 84

7.5.2.

Handling of Applications for Immunity from Fines ............................................... 84

7.5.3.

Handling of Applications for Reduction of a Fine .................................................. 86

7.6. 8.

General Considerations ................................................................................................. 87

Settlement Procedure ........................................................................................................... 87 8.1.

The HCC Settlement Notice ........................................................................................... 88

8.1.1.

Criteria for the selection of cases to be subject to the settlement procedure ..... 89

8.1.2.Procedure ..................................................................................................................... 90 9.

Special Sectors of the National Economy .............................................................................. 97 9.1.Electronic Communications................................................................................................. 97

10.Recent/Future Developments and Conclusions ....................................................................... 99

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1.

Introduction and Sources of Greek Competition Law

1. The Greek Competition Law consists mainly of Law 3959 „On the protection of free competition‟ (hereinafter „Law 3959‟), and the Regulation regarding the Operation and Administration of the Competition Commission (hereinafter „the Regulation‟), adopted in January 2013. 1 Additionally, the Hellenic Competition Commission (hereinafter „HCC‟ or „Competition Commission‟) has adopted, various „soft law‟ acts, such as: (a) the Notice on agreements of minor importance which do not appreciably restrict competition under Article 1(1) (de minimis), (b) the Decision on the terms and conditions governing immunity from fines, or reduction of fines, imposed on undertakings which contribute to the investigation of infringements of the provisions of the said law („Leniency Programme‟), and (c) the Notice with Guidelines on the method of setting fines. Other interesting pieces of „soft law‟ are the Notices of the HCC regarding its enforcement priorities, 2 the „point system‟ applicable in order to decide the enforcement priorities, 3 the submission of complaints, the Decision regarding commitments, 4 the Notice on the treatment of confidential information and on the submission of the nonconfidential versions of documents,5 and the most recently adopted Settlement Notice.6

2. Institutions/Bodies Responsible for the Enforcement of National Competition Rules 2.1. Administrative Authorities 2.1.1. The Hellenic Competition Commission (HCC) 2. The competent authority for the enforcement of the Greek competition legislation is the HCC.7 The HCC is operating as an independent authority; its members enjoy personal and functional independence and, in the exercise of their duties, are bound solely by the law and their conscience. The HCC has legal personality, enjoys administrative and financial autonomy, and represents itself autonomously in judicial proceedings of any type. It is supervised by the Minister of Economy, Competitiveness and Shipping, pursuant to the relevant provision of Law 3959.8 It is subject to the control of the Hellenic Parliament, in accordance with the provisions

1

. Decision 117 „Regulation regarding the Operation and Administration of the Competition Commission‟, Federal Gazette 54/B/2013, also referred to by the HCC in the English version of the Confidentiality Notice as „Rules of Internal Procedure‟.

2.

HCC Decision 525/VI/2011.

3

. HCC Decision 615/2016 „Quantification of the criteria used in the prioritization of cases investigated by the Directorate-General for Competition by means of an updated “Point System”‟, Federal Gazette 585/B/2016, (hereinafter „the Point System Decision‟).

4

. HCC Decision 588/2014 „Terms, conditions, and procedure for the acceptance of commitments on the part of the undertakings concerned, and issues regarding the suspension of the deadlines of Article 15(4) and (5) of Law 3959/2011‟ (adopted in Plenary Session, hereinafter „Commitments Decision‟).

5

. Available in English at the website of the HCC, hereinafter referred to as „Confidentiality Notice‟.

6

. HCC Decision 628/2016 „Terms, conditions, and procedure for the settlement of disputes in cases of horizontal collusion infringing Article 1 of Law 3959/2011 and/or Article 101 TFEU (adopted in extended Plenary Session, hereinafter referred to as “Settlement Notice”).

7

. It is, however, to be noted that the HCC has no jurisdiction to apply the provisions of Law 146/1914 on unfair competition. The application of the legislation on unfair competition falls exclusively within the jurisdiction of the civil courts.

8

. The provision regarding supervision of the HCC by the Minister of Economy, Competitiveness, and Shipping should have been abolished, also in view of the case law of the European Courts (see below for more details). It undermines the independence of the HCC and does not and cannot serve any practical purpose; it can only be seen as a remaining from the period where the HCC used to be a department of the Ministry of Economy, Competitiveness, and Shipping, and not an independent authority. It certainly seems to suffice that under the relevant provision of Law 3959 the HCC, as an independent authority, is subject to the control of the Hellenic Parliament.

6


of the Parliament‟s Regulation.9 The Commission decides, provides its opinion, and acts in respect of issues falling under the ambit of its jurisdiction, according to the legislation in force.10 3. The Board of Directors of the Competition Commission is composed of eight regular members; one of them is the President, one the Vice-President, and four are the Rapporteurs (Case-Handlers). Such persons are of recognized status, distinguished for their scientific skills and professional capacity in the legal and economic sector, specifically in respect of free competition issues. The President, the Vice-President and the Rapporteurs (Case-Handlers) are state bureaucrats at the highest level, under full-time and exclusive employment, whose professional activities are suspended for the term they retain their position at the HCC. In addition to the regular members, two deputy members are appointed, who must possess the same qualifications as the regular members, and who substitute the regular member, apart from the President, the Vice-President, and the Rapporteurs (CaseHandlers), in case they are absent, unable to perform their duties, or their position is vacant. 11 4. The President and the Vice-President of the Competition Commission are selected by the Parliament, upon application mutatis mutandis of Article 101A(2) of the Greek Constitution,12 and are appointed by decision of the Minister of Economy, Competitiveness, and Shipping, within fifteen days from the date the resolution of the Parliament‟s Presidents‟ summit is served to the Minister. The remaining members of the Competition Commission, both regular and deputy, as well as the Rapporteurs (Case-Handlers), are selected and appointed by the Minister of Economy, Competitiveness, and Shipping, upon the opinion of the Parliament‟s Institutions and Transparency Commission. The term of service of the President, the Vice-President and the members of the Competition Commission is five years, 13 and may be renewed once. The procedure for the appointment of the members of the Commission is initiated every time two months prior to the termination of the term of service of the preceding members.14 5. The President of the HCC represents the Commission before any third party and has, according to the law and the regulatory acts and decisions of the Commission‟s Plenary Session, the responsibility of its operation, exercising to that end his powers. In particular, the President of the HCC: (a) informs the Minister of Economy, Competitiveness and Shipping, about the enforcement of the decisions of the HCC, the verification and payment of the verified fines; (b) coordinates and manages the operation of the HCC and its operational units; (c) represents the HCC in the Committees, Groups, Meetings and Summits within the framework of the EU, the Organization of Economic Cooperation and Development (OECD) and other international organizations, being empowered to authorize to this end, the Vice-President, or a member of the HCC, or the Director General, or the Directors or a member of its operational units; (d) is the principal administrative manager of the personnel of the operational units of the HCC; (e) sets up the Administrative and Disciplinary Council for the personnel of the Commission;

9

. Article 12(1) of Law 3959, as amended by Art. 19(2)(a) of Law 4013/2011, which practically laid down explicitly that the HCC has legal personality; and the same provision is included in Art. 1(1)–(2) of the Regulation.

10

. Article 1(3) of the Regulation.

11

. Article 12(2) / Law 3959.

12

. Article 101A(2) of the Constitution provides: A law lays down the details regarding the selection and the employment status of the scientific and the rest of the personnel of the service, which is organized with a view to supporting the operation of each independent authority. The persons composing the independent authorities must have the requisite qualifications, according to the provisions of the law. Their selection is carried out by a resolution of the Parliament‟s Presidents‟ summit, after seeking a unanimous resolution or in any case by enhanced majority of 4/5 of the summit‟s members. The details regarding the selection procedure are laid down by the Regulation governing the operation of the Parliament.

13

. The increase of the term of service of the members of the HCC from a period of three (under Law 703/77) to five years aims at disconnecting their appointment from the election cycle, which is normally four years: Justification Report accompanying the Law on the Protection of Competition submitted to the Parliament, published at the website of the Hellenic Parliament, www.hellenicparliament.gr, at 3.

14

. Article 12(3) of Law 3959.

7


(f) proceeds with the necessary actions for the preparation of the budget, the statement of accounts and the balance sheet of the Commission; (g) supervises the management of the financials of the Commission and the use of the monetary expenditure; (h) exercises the powers provided for in Article 8 of Law 3959, regarding the preventive control of concentrations; (i) decides on the execution of self-initiated investigations by the Competition Directorate General; (j) proceeds with the publication of announcements with a view to providing information to the public. 6. Likewise, the powers of the person appointed to the position of Vice-President of the HCC are the following: (a) substituting the President of the HCC, in cases where he is absent, unable to perform his duties, or his position is vacant; (b) monitoring the enforcement of the decisions of the HCC, the verification and payment of the verified fines, and informing accordingly the Plenary Session; (c) coordinating and supervising the drafting of operational and educational projects; (d) exercising part of the President‟s powers, upon his authorization, and signing documents or acts „by virtue of his order‟.15 7. Within the Competition Commission a Competition Directorate General is established, which is headed by the Director General. The Competition Directorate General consists of four Directorates: the Directorate of Legal Documentation (Legal Services Directorate), two Directorates of Financial Documentation (Operational Directorates), and the Directorate of Administrative and Financial Support, as well as of one independent Mass Media Unit, the establishment of which is provided for in Article 18 of Law 3592/2007. 16 8. The Directorates and other operational units of the Competition Commission are subject to the authority of the Director General, who coordinates their operation. The Director General is selected, following a public tender for the position, in which the formal and substantial qualifications that must be met are laid down. The Director General is appointed by a decision of the Plenary of the Competition Commission, for a four-year term, that may be renewed only once.17 9. The powers of the HCC are laid down in detail in Article 14 of Law 3959. According to such provision, the HCC: (a) verifies whether an infringement of Articles 1 and 2, and Articles 101 and 102 TFEU, occurs, and adopts the relevant decisions; (b) approves or prohibits the implementation of a notified concentration, takes measures in cases of implementation of a concentration in breach of the relevant provisions or HCC decisions, and grants a derogation from the obligation to suspend the implementation of a concentration; (c) adopts any absolutely necessary regulatory measure, which aims at the creation of effective competition conditions; (d) threatens and imposes the fines and the other sanctions, as the case may be; 15

. Article 19(4) of Law 3959.

16

. According to Art. 18 of Law 3592/2007 on concentration and licensing in the mass media and broadcasting sector, an independent department for the control of the mass media and broadcast market is established within the HCC.

17

. Article 21(2) of Law 3959.

8


(e) takes interim measures; (f) allows the block exemption of categories of agreements; (g) withdraws the benefit of exemption granted pursuant to EU or Greek Block Exemption Regulations; (h) collects, processes and evaluates, respecting the obligation of professional secrecy, all the necessary for the accomplishment of its mission data and information; (i) submits its opinion to the Courts, either in writing, on its own initiative, or orally, upon permission of the competent court, in respect of issues regarding the application of Articles 1 and 2, and of Articles 101 and 102 TFEU; (j) expresses an opinion regarding competition issues, and on the proposals of amendment of Law 3959; (k) adopts notices and guidelines regarding the application of the provisions of Law 3959; (l) puts forward its recommendation regarding the adoption of the Regulation of its Operation and Administration; (m) appoints the Director General of the Competition Directorate General; (n) lays down the criteria of setting priorities in the investigation of cases, and of strategic objectives, the terms, the conditions, and the procedures for admission in the Leniency Programme, the method of calculating the fines, and the procedure regarding the imposition of commitments; (o) decides on self-initiated investigations to be carried out by the Competition Directorate General; (p) cooperates with the European Commission and the Competition Authorities of other Member States of the EU regarding the application of the Community legislation on competition; (q) provides to the Minister of Economy, Competitiveness and Shipping any information of general nature in its possession; (r) lays down the procedure, the terms, and conditions of the settlement procedure pursuant to Article 25a. 10. In addition to its decisive powers, the HCC enjoys also advisory powers. It provides its opinion on issues falling under its jurisdiction, either upon its own initiative, or upon request submitted by the Minister of Economy, Competitiveness, and Shipping, or any other Minister involved, as the case may be. Moreover, the HCC expresses its opinion on proposals for the amendment of Law 3959, or recommends, as the case may be, amendments. In addition, the HCC expresses its opinion in respect of draft legislation and other regulatory provisions, which may introduce obstacles to the operation of free competition. The opinion of the Competition Commission may be requested by, and is passed on to, the government body involved, as the case may be. The HCC expresses its opinion within a time limit, which cannot be longer than forty-five days from the date of notification of the issue to it. Upon expiration of the forty-five daysâ€&#x; time limit, the lack of the relevant opinion does not prevent the progress of the procedure. Article 38 regarding the provision of information is applicable mutatis mutandis.18 11. Very important for the proper operation of free competition in the territory of Greece is the provision of Article 24(4) of Law 3959, according to which the HCC provides its opinion for the abolition or amendment of legislative provisions, which the HCC, following the procedure regarding regulatory intervention into sectors of the economy (pursuant to Article 11 of Law 3959), identifies as the cause, among others, of lacking conditions of effective competition in the market. The opinion of the Commission is submitted to the Minister involved, as the case may be, and is notified to the Minister of Economy, Competitiveness, and Shipping. During the last three years, the HCCâ€&#x;s task force on liberal professions reviewed laws and regulations affecting a number of regulated professions, ultimately issuing more than twenty-five formal opinions aimed at identifying and removing regulatory obstacles as regards the access and exercise of a number of professional services. According to the 18

. Article 23(1)–(3) of Law 3959.

9


OECD Economic Survey for Greece (November 2013), it is estimated that around 75% of nearly 350 regulated professions had been opened to competition, in line with the HCC recommendations (opinions issued by the HCC in the context of its enhanced advocacy role). 19 12. Furthermore, the HCC cooperates with the regulatory or other authorities, which supervise specific sectors of the national economy, and, upon request, provides its support to the said authorities, in cases where the latter have the power, according to the law, to apply in such specific sectors Articles 1 and 2 of Law 3959, and Articles 101 and 102 TFEU. In addition, the HCC, in the handling of cases for which it has itself the power to apply the said articles in the aforementioned specific sectors, may request the assistance of such authorities. The same applies to the application of Articles 5–10 in merger cases, in which the undertakings concerned carry out their business activities in the above-mentioned specific sectors of the national economy. 20 13. Likewise, the HCC, as the National Competition Authority, is competent for the cooperation with the competition authorities of the Commission of the European Union and for the provision of the assistance required to its authorized officials in carrying out investigations provided for by Community law, as well as with the competition authorities of other countries. 21 The initiation, nevertheless, by the EU Commission of proceedings for the adoption of a decision under Regulation 1/2003, relieves the HCC of its competence to apply Articles 101 and 102 TFEU. Likewise, in cases where both the HCC and the Competition Authority of another Member State of the EU, within the framework of application of Articles 101 and 102 TFEU, have taken on, upon complaint or on their own initiative, a case concerning an agreement between undertakings, a decision of association of undertakings, or a practice of an undertaking or undertakings, it has three options: it may: (i) reject the complaint or terminate for such reason the self-initiated procedure, as the case may be, (ii) suspend the procedure, or (iii) proceed regularly with the hearing of the case, adopting a decision on the merits.22 14. Lately, the HCC continued to pursue the strategic objectives laid out since the inception of the ongoing economic crisis, in particular: 

Maintaining a consistent level of core enforcement action (antitrust investigations and merger control work) compared to previous years, taking into account the economic downturn and the inherent challenges in pursuing a diversified agenda;

Placing renewed emphasis on market monitoring actions, notably by making more use of sector inquiries, while further increasing cooperation with other stakeholders;

Expanding considerably the Authority‟s advocacy efforts in order to promote competition assessment of laws and regulations; and

Making better use of internal management tools for prioritizing the investigation of cases, with a view to increasing the systemic effect of its action.23

19

. OECD Annual Report on Competition Policy Developments in Greece-2014, 12 Jun. 2015, DAF/COMP/AR(2015)3, available at the website of the HCC, recitals 57–58. Furthermore, with a view to promoting competition awareness and within the ambit of its advisory powers, the HCC published a new „Guide for Public Procurement Authorities: Detection and Prevention of Collusive Practices in Procurement Tenders‟ aimed at enhancing the awareness of public officials with regard to bid-rigging practices. For other initiatives and outreach activities, see the OECD Annual Report on Competition Policy Developments in Greece-2014, recital 64.

20

. Article 24 of Law 3959.

21

. Article 28(1) of Law 3959. Moreover, Art. 28(2) provides that, in cases where an undertaking, which has its establishment or exercises its business activity in Greece, refuses to submit to an investigation provided for by the European Union law provisions, the HCC and the official authorized by it, acting upon its own initiative or upon the relevant request by the authorized for the investigation from the Commission of the European Union officials, ensures the smooth conduct of the investigation in general, particularly by the provision of the necessary assistance, pursuant to Art. 38 of Law 3959. According to Art. 28(3), the competition authorities of the Commission of the European Union and the Commission of the European Union are considered to be the European Commission for the purposes of Law 3959.

22

. Article 26 of Law 3959.

23

. OECD, Annual Report on Competition Policy Developments in Greece-2015, recital 2.

10


2.1.2. The National Telecommunications and Posts Commission 15. As regards the field of electronic communications, according to Article 12(f) of Law 4070/2012, 24 the National Telecommunications and Posts Commission (EETT) 25 has the jurisdiction to apply the provisions of Law 3959, and Articles 101 and 102 TFEU, as well as Regulation 1/2003, in respect of the activities of electronic communications companies. The EETT may request the assistance of the HCC in cases where it considers that this is expedient. This provision has always been interpreted so far as providing eventually exclusive competence to the EETT to apply the Greek competition rules. Such exclusivity has been recognized de facto by the HCC also in the past, because as yet, there has been no decision of the HCC on competition issues in the field of electronic communications.26 However, there have been various and very interesting decisions of the EETT, applying the Greek competition rules. The EETT participates also in the International Competition Network as the competent authority for the application of the Greek competition rules in the field of electronic communications.

2.1.3. Courts 16. According to Article 35(2) of Law 3959, the Courts, Civil and Criminal, shall apply Articles 1 and 2, as well as Articles 101 and 102 TFEU. Such judgments are not binding upon the Competition Commission, the Administrative Court of Appeals of Athens and the Council of State, when they deliver their judgments pursuant to the provisions of Law 3959. On the contrary, the judgments of the Administrative Court of Appeals of Athens and the Council of State, delivered upon an appeal lodged pursuant to the provisions of Law 3959, have the power of res judicata.27 The Courts of any jurisdiction, which apply, pursuant to the above, Articles 101 and 102 TFEU, may request from the European Commission to hand over them information in its possession, or to express its opinion on issues related to the application of the Community competition legislation. They may also request from the Competition Commission to express its opinion on such issues, as well as on issues pertaining to the application of Articles 1 and 2 of Law 3959. 28 17. Moreover, without prejudice to the procedure before the Administrative Court of Appeals of Athens, according to Article 30 of Law 3959, and to the procedure before the Council of State according to Articles 11(7) and 32, the HCC may submit its opinion to the Courts, either in writing, on its own initiative, or orally, upon permission of the competent court, in respect of issues regarding the application of Articles 1 and 2 of Law 3959, as well as of Articles 101 and 102 TFEU. In case of oral expression of opinion, the Competition Commission is represented by the President, or the Vice-President, or upon the Presidentâ€&#x;s authorization, by a member of the Commission, or the Director General, or a member of the staff of the Competition Directorate General. The Competition Commission may request from the competent, as the case may be, court, any document that is considered indispensable in order to express its opinion.29 18. The decisions of the Competition Commission are subject to appeal before the Administrative Court of Appeals of Athens within a time limit of sixty days from the date they are served to the parties concerned. 30

24

. Law 4070/2012, Federal Gazette 82/A/2012, replaced the previously applicable Law 3431/2006.

25

.

26

. The Annual Report 2005–2006 of the HCC mentions, in 58, that Law 3431/2006 provides for the exclusive jurisdiction of the National Telecommunications and Posts Commission to apply the provisions of Law 703/77 in the field of electronic communications. Therefore, the Competition Directorate General referred a number of cases to the EETT, whilst it investigates a case in the field of courier services in coordination with the EETT. Thus, it seems that the HCC has finally departed from the position expressed in its above-mentioned Opinion 6/III/2001, apparently due to its heavy workload and the complexity of the issues involved in electronic communications cases, which require specialized staff to deal with them. See also HCC Decision 444/V/2009, in which the Competition Commission explicitly recognized the exclusive jurisdiction of the EETT to apply Law 703/77 in the electronic communications sector.

27

. Article 35(1) of Law 3959. . Article 35(3) of Law 3959. Furthermore, according to Art. 35(4), the secretaries of the courts are obliged to send to the Competition Directorate General of the Competition Commission, free of charge, copies of the judgments, which apply the provisions of Law 3959 and Arts 101 and 102 TFEU, being liable and subject to disciplinary action, in case of omission. The Competition Commission ensures the immediate delivery of the above judgments to the European Commission.

28

29

EETT is the acronym in Greek of the telecommunications commission, which is generally recognizable, and thus it will be preferred hereinafter over the English acronym NTPC.

. Article 14(2)(i) of Law 3959.

30.

Article 30(1) of Law 3959.

11


19. An action for annulment may be brought before the Council of State, pursuant to the relevant applicable provisions, by the parties participating in the proceedings before the Administrative Court of Appeals of Athens against the latter Court‟s judgments, delivered pursuant to Law 3959. The State General Commissioner responsible for the ordinary administrative courts has also the right to bring an action for annulment, even if he had not been a party to the court proceedings, at the end of which the judgment appealed against has been delivered. In this latter case, the deadline for exercising the judicial remedy is three months from the date of publication of the decision.31 It is to be noted that such right of the State General Commissioner to appeal to the Council of State is independent to the right to request the annulment, in the benefit of the Law (i.e., public interest), of any decision of the administrative courts pursuant to Article 29(g) of Law 1756/1988. 32

3. Anti-competitive Agreements, Decisions Concerted Practices, Abuse of Dominant Position

and

20. Article 1 of Law 3959 consists of four paragraphs and follows with precision the wording of Article 101 TFEU. The first paragraph contains the prohibition and provides that: 21. All agreements and concerted practices between undertakings, and all decisions by associations of undertakings, which have as their object or effect the prevention, restriction or distortion of competition in the Greek Territory, are prohibited, and in particular those consisting in: –

directly or indirectly fixing purchase or selling prices or any other trading conditions;

limiting or controlling production, markets, technical development or investment;

allocating markets or sources of supply;

applying dissimilar conditions to equivalent transactions in trade, in such a way that hinder competition, and in particular refusing unduly the sale, purchase or any other transaction;

making the conclusion of contracts subject to acceptance by the other parties of additional supplies, which, by their nature or according to the commercial habits, are not related to the subject matter of such contracts.33

22. No reference is made to an adverse effect on trade within Greece. However, Article 46 of Law 3959 provides that the Greek competition rules shall apply to all restrictions of competition that have effects, or may have effects within the country, even in cases where these are due to agreements between undertakings, decisions of associations of undertakings, concerted practices between undertakings or associations of undertakings, or concentrations of undertakings, taking place or adopted outside the country, or when the undertakings or associations of undertakings concerned do not have an establishment in the country. The same applies to the abuse of a dominant position, which takes place in the country. Thus, the approach of the „effects doctrine‟ is adopted, which is followed by the HCC and the courts. 34 Likewise, parent and subsidiary companies are treated 31

. Article 32(1) and (2) of Law 3959.

32.

Article 34(4) of Law 3959. Furthermore, the State General Commissioner is not obliged to appear before the Administrative Court of Appeals of Athens and the Council of State, during the hearing of judicial remedies exercised by him according to Law 3959. Such judicial remedies are heard even in the Commissioner‟s absence as if he were present. Likewise, the General Commissioner may delegate the exercise of any of his powers provided by Law 3959, to the Deputy Commissioner, or to any other legally authorized deputy: Art. 34(2)–(3) of Law 3959.

33

. For example, in the HCC Decision 271/IV/2004, the HCC ruled that the requirement of presence of a pharmacist at a cosmetics shop during all the working days and hours, in order for the defendant to undertake the clear and scheduled decision to include the above shops to its network and commence the delivery of its products to them, constituted a disproportionately burdensome obligation for the applicants or for any other company wishing to be included in the selective distribution network of the defendant, and as such constituted an infringement of Art. 1 and it should be condemned. The fine was set at 1.5% of the annual turnover of the defendant during the previous to the infringement financial year.

34

. See, for example, HCC Decision 110/98, where a concentration implemented outside Greece had been found to produce effects within the Greek territory, also in view of the fact that one of the companies participating in the merger had a subsidiary in Greece. The HCC concluded that the concentration should have been notified and suspended it, until approval. A fine had been imposed, whilst the concentration had eventually been approved.

12


by the HCC and the Greek courts as a single economic entity. Consequently, the parent companies established abroad are responsible and bear the consequences of the actions of their subsidiaries in Greece, especially in cases where the latter, although legally independent, do not enjoy financial and administrative independence and their business policy is designed by the parent company. 35 23.

The second paragraph of Article 1 contains the consequence of the infringement of the first paragraph:

Agreements and decisions of associations of undertakings, falling under paragraph 1, to which paragraph 3 is not applicable, are automatically36 (de jure) void. 24. Automatically void shall be considered to have the meaning that such prohibited agreements or decisions, according to the Greek Civil Code,37 do not produce any legal effects, because they are considered not to have taken place. Moreover, nullity of part of an agreement or decision causes the nullity of the entire agreement or decision, if it can be concluded that the agreement or decision would not have taken place in the absence of the null part. 25. Law 3959 added a fourth paragraph to Article 1, which provides that the Regulations of the EU regarding the application of paragraph 3 of Article 101 of the TFEU in various categories of agreements, decisions of associations of undertakings, or concerted practices (Block Exemption Regulations) are pertinent by analogy in cases of applying paragraph 3 in respect of agreements, decisions and concerted practices, which are not likely to affect trade between Member States, according to the notion of paragraph 1 of Article 101 TFEU. 38

3.1. Exemptions under Article 1(3) 26. Law 3959 abolished completely the obligation to notify business cooperation falling within the ambit of Article 1(1). Article 3(2) provides that agreements, decisions and concerted practices falling under paragraph 1 of Article 1, and fulfilling the conditions of Article 1(3), are not prohibited without prior adoption of a relevant decision being necessary. Thus, undertakings are now responsible for the legal assessment of the agreements they conclude and the practices they apply, in respect of their compliance with Article 1 of Law 3959. 27.

Article 1(3) contains the possibility and the conditions for granting an exemption and provides that:

Agreements, decisions and instances of concerted practices or categories thereof, falling within the provisions of Article 1(1) of Law 3959 are valid, in whole or in part, provided that they meet cumulatively the following criteria: (a) contribute to the improvement of the production or distribution of goods, or to the promotion of technical or economic progress, while allowing consumers a fair share in the resulting benefit; (b) do not impose on the undertakings concerned, restrictions which are not indispensable to the attainment of the aforementioned objectives; and (c) do not afford such undertakings the possibility of eliminating competition in respect of a substantial part of the relevant market.

3.2. The De Minimis Rule 28. On 2 March 2006, the HCC issued a Notice on agreements of minor importance, which do not appreciably restrict competition under Article 1(1) of the then applicable Law 703/77. The Notice is drafted 35

. Judgment 609/2003 of the Court of First Instance (multi-member) of Athens, and HCC Decision 318/V/2006.

36

. Article 3(1) of Law 3959 specifies the meaning of „automatically voidâ€&#x; and provides that agreements, decisions and concerted practices falling under Art. 1(1), and not fulfilling the conditions of Art. 1(3), are prohibited without the prior adoption of a relevant decision being necessary.

37

. Articles 180 and 181 of the Greek Civil Code.

38

. By such provision the risk of applying stricter rules to entirely national cooperation, compared to those falling under Art. 101 TFEU, is explicitly excluded: Justification Report, supra n. 12, at 1.

13


according to the respective de minimis Notice of the European Commission (2001/C 368/07), and in fact its provisions are worded in absolutely identical terms. There are, however, differences in respect of the market shares, below which an agreement between undertakings is considered not to restrict competition within the meaning of Article 1(1). 29. Thus, the HCC takes the view that an agreement between undertakings does not appreciably restrict competition within the meaning of Article 1(1) of Law 3959: in cases where the aggregate market share held by the parties to the agreement does not exceed 5% on any of the relevant markets affected by the agreement, where the agreement is concluded between undertakings which are actual or potential competitors on any of these markets (agreements between competitors); or if the market share held by each of the parties to the agreement does not exceed 10% on any of the relevant markets affected by the agreement, where the agreement is concluded between undertakings, which are not actual, or potential competitors on any of these markets (agreements between non-competitors). 30. In cases where it is difficult to classify the agreement as either an agreement between competitors or an agreement between non-competitors, the 5% threshold is applicable.39

3.3. Abuse of Dominant Position 31.

Article 2 of Law 3959 follows in precision the wording of Article 102 TFEU, providing that:

Abuse of dominant position, by one or more undertakings, in the entirety or in a part of the market in the Greek Territory, is prohibited. Such abuse may, in particular, consist in: (a) directly or indirectly imposing fixed purchase or selling prices, or other unfair trading conditions; (b) limiting production, consumption or technical development to the detriment of consumers; (c) applying dissimilar conditions to equivalent transactions, and in particular refusing unduly the sale, purchase or any other transaction, in such a way that certain undertakings are placed at a competitive disadvantage; (d) making the conclusion of contracts subject to acceptance by the counterparts of additional supplies, which, by their nature or according to the commercial habits, have no connection with the subject of such contracts. 32. According to Article 3(3) of Law 3959, the abuse of dominant position under Article 2 is prohibited, without the prior adoption of a relevant decision being necessary.

3.4. The Concepts of ‘Undertaking’ and ‘Association of Undertakings’ 33. According to the HCC, undertakings for the purposes of competition rules are all entities of any nature carrying out economic activities, that is, providing products and/or services in a specific market, irrespective of their legal nature and financial structure. Such approach covers any type of collection of financial resources, for the purpose of carrying out economic activities. Moreover, another prerequisite is the independence of business action, and consequently, taking on the ensuing financial risks. The concept of economic activity includes any type of activity that is carried out in the private sector, or is at least considered competitive with a similar activity carried out by private undertakings. The generation of profit is not relevant. Furthermore, the fact that the economic objective may be pursued in parallel with other objectives, such as, social, cultural, etc., is not taken into account.40 34. Therefore, it is not excluded, in the HCC‟s view, that a professional association is considered an undertaking falling under competition law, in cases where it is established that such association, in parallel with 39

. Recital 7 of the HCC de minimis Notice.

40

. See for example HCC Decisions 367/V/2007, 429/V/2009 and 430/V/2009, with reference to earlier case law of the HCC and the European Courts.

14


seeking to achieve its purposes according to its bylaws, carries out economic activity, consisting thus in an entity to which decisions of an economic nature may be attributed. The basic characteristic of an entity constituting an undertaking, whether profit or non-profit, is the carrying out of investments, that is, the creation of capital.41 35. Applying the above principles, the HCC concluded that the professional association of loaders working at the greengrocery central wholesale market should be considered an undertaking for the purpose of application of the provisions regarding dominant position. The HCC took such view on the basis of the fact that the purchase and maintenance of equipment facilitating loading and unloading constituted, in its opinion, an investment generating profits and bearing financial risks. The Association takes all the relevant decision regarding such investments (type and number of machines, supplier, maintenance, abandonment and replacement, frequency of technical inspections, etc.), manages the necessary financing, either directly by voluntary contribution of its members, or through loans, undertakes the potential financial risk, and enjoys the ensuing return on investment. The return on investment is distributed immediately to its members, either directly by the payment of dividends, or indirectly by higher remuneration for certain working tasks, or less effort in return of specific remuneration. The undertaking of financial risk, in the HCC‟s view, consists in the fact that despite initially the return on investment is positive and generates profit, it may well result in losses, in cases where, for example, it turns out that the abandonment and replacement of a machine would be more beneficial than its maintenance. In addition, the HCC considers that in cases of purchase of capital equipment funded by a loan or credit, undertaking of financial risk constitutes also the potential situation of inability to pay the loan instalments, or the arrears. 36. In reaching the above conclusion, the HCC took additionally into account the fact that the loaders‟ association had in practice taken over the management of the entire loading and unloading process, as if it were a natural business entity. It assigns the workings shifts and designates the workers that will carry out the loading and unloading for each trader. The latter do not have the right of choice. In addition, the loaders are subject to the power and control of the association, because it has a decisive role, similar to any company of the private sector, in the number and personal qualifications of the workers who will have the right to work in the central wholesale greengrocery market. Moreover, the association enjoys extensive disciplinary powers over the loaders, a task that traditionally belongs to the employer, despite the fact that it is not formally the employer of them. Finally, the association carries out all the requisite financial actions (receives payments, pays the insurance contributions, pays the remuneration to the loaders, etc.), and to this end it keeps in its own name all the associated bank accounts.42 37. Moreover, regarding the concept of undertaking, it is worth referring to an earlier decision of the HCC, where the HCC concluded that a ship in operation is considered to be an undertaking for the purposes of application of the competition rules, irrespective of the fact that temporarily it is deprived of its capacity to sail. Thus, the acquisition of a vessel and of the relevant license is considered to be a concentration, in cases where the exploitation of the vessel is the sole activity of the shipping company. 43 38. Likewise, the HCC ruled that the dentists are „undertakings‟ within the meaning of Articles 1 of Law 3959 and 101 TFEU, and the Hellenic Dentists Federation and the Dentists‟ Local Associations constitute „associations of undertakings‟ within the meaning of Article (1) of Law 3959, whereas by deciding, fixing and issuing tables of minimum fees for their members, they adopt measures that concern their members‟ business conduct. The fact that the Minister of Health, who has the power to set the minimum dentists‟ fees for the provision of dental medical services, had not raised the minimum fees since 1993, did not constitute an adequate legal basis for the dentists‟ associations to intervene and fix on a regular basis, and on their own initiative, the minimum fees for their members, since such regulatory power has not been delegated to the dentists‟ 41

. HCC Decision 438/V/2009, 31 of the electronic version published at the website of the HCC, with reference to similar case law of the HCC and the ECJ.

42

. Ibid., 32–33. The HCC, despite the fact that it concluded that the association of loaders committed an abuse of its dominant position, it refrained from imposing a fine, in view of the fact that such abuse resulted from the applicable national legislation governing the operation of central wholesale greengrocery markets. In addition, it imposed an obligation on the association to terminate the infringement and abstain from it in the future, but without threatening any fine or periodic penalty payment, and it took the view that the applicable legislation governing the operation of the central wholesale greengrocery markets needed to be amended within a reasonable period of time, in order for it to become compatible with the community and national competition rules: 39–40 of the electronic version of the Decision.

43

. HCC Decision 210/III/2002. It is to be noted, nevertheless, that such decision was annulled by the Administrative Court of Appeals of Athens. By its Judgment 1541/2014 the Court ruled that the criteria regarding the obligation to notify a concentration were not met, and thus the decision of the HCC imposing fines for failure to comply with the obligation to notify a concentration had to be annulled, without examining the rest of the arguments put forward by the parties concerned: recitals 7 and 8 of the Judgment.

15


associations. Moreover, the argument that setting minimum fees was a guarantee of quality of the services provided, as well as the argument that the fees had not been applied by all the members of the dentists‟ associations were rejected by the HCC. Consequently, the HCC obliged the defendant parties to put an end to the infringement and to refrain from committing it again in the future, to inform their members about the HCC decision in writing, to delete the respective minimum tables of fees from their websites, as well as to withdraw any printed material concerning the price policy of their members. The imposition of a periodic penalty payment of EUR 3,000 in case of persistence of the infringement had also been threatened. 44 39. Along the same lines, the HCC has ruled that the pharmacists are natural or legal persons (in cases where they operate by setting up companies), carry out economic activities autonomously, and they undertake the risks of such business activities. Thus, they constitute undertakings for the purposes of competition law. Furthermore, the Pharmacists Association of Achaia is a body, in which the pharmacists, possessing a license to operate a private pharmacy within the said region, organize themselves by law. The association, among others, monitors the compliance with the rules governing the pharmacist profession by its members. Therefore, mainly due to its nature as a professional body of a number of undertakings, which are connected among themselves on the basis of an organized cooperation, the association, in view of the fact that it takes care of the business interests of its members, and is vested with the power, among others, to regulate the conduct of such members, constitutes in the view of the HCC an association of undertakings for the purposes of competition law, notwithstanding the fact that it is subject to state supervision, as all the legal persons of a public nature.45 40. Furthermore, the drivers‟ instructors, who are operating as freelance professionals, carry out economic activities, and as such they are considered „undertakings‟ for the purposes of competition law, in view of the fact that they provide services as independent economic entities in the learning-how-to-drive market, they receive compensation from the trainee and future licensed drivers, and also undertake the business risks associated with the exercise of their business activities.46 41. Likewise, it is interested to mention that in a recent decision the HCC ruled that a local cooperative bank has been considered jointly liable for the infringements of competition rules in the form of price-fixing, and more specifically by applying a common price-list in the provision of instructors‟ services to new drivers. According to the findings of the HCC, the bank has facilitated compliance with the common price-list by specific banking products offered to its client, a local association of drivers‟ instructors. Furthermore, the HCC considered that the local bank was aware of the anti-competitive practices and deliberately facilitated them, taking into account mainly the fact that the president of the association held during the same period a highranking position in the management of the local bank. In the HCC‟s view, the bank is to be held liable for the anti-competitive practices of its employees/officials, even in cases where the management is not aware of them, all the more in cases where a member of its management team is the person seeking them. The HCC, nevertheless, did not impose a fine on the bank, but rather as an exception it addressed a recommendation, taking into account the fact that it was the first time in the local jurisdiction that a third party was held liable for facilitating anti-competitive practices.47 42. The latest decision of the HCC in the long series of infringement decisions with fines against trade associations has been adopted against the Association of Dental Technicians of Crete, active in the market of dental technician services in the local market of Crete. The Association was found to have infringed the competition rules, by adopting decisions aimed at the direct or indirect fixing of minimum fees for its members, in the form of inclusion of specific provisions to that effect in its articles of association, and in the form of adoption and notification to members of price lists with minimum fees. According to the HCC decision, these actions demonstrated a clear and consistent determination by the association to coordinate the pricing policies of its members, in violation of the applicable national provisions. The amount of fine imposed by the HCC on the Association was insignificant, since it was calculated on the basis of its revenues in the absence of any data 44

. HCC Decision 292/IV/2005. An action for annulment against the decision of the HCC was rejected by the Administrative Court of Appeals of Athens (Judgment 1027/2007), and the Plenary of the Council of State, following an action against the judgment of the Court of Appeals, confirmed the latter‟s ruling by its judgment 149/2015.

45

. HCC Decision 545/VII/2012, recital 49.

46

. HCC Decision 571/VII/2013, recitals 89–90, upheld upon appeal by Judgment 4771/2015 of the Athens Administrative Court of Appeals. The same principles apply to buildings constructors: HCC Decision 561/VII/2013.

47

. HCC Decision 571/VII/2013, recitals 623–631, and 217.

16


regarding the turnover of its members. In addition, the HCC ordered the elimination of the said anti-competitive provision from the articles of association, and imposed on the Association the obligation to inform in writing all dentists and dental technicians that fees are to be decided autonomously, and to ensure that the relevant press release of the HCC is published in local newspapers in Crete, where occurrence of the infringement was verified.48

3.5. The Concept of ‘Abuse’ of Dominant Position 43. In the past, the HCC had to deal with a refusal by a pharmaceutical company to execute the orders placed for specific medicines, alleging that otherwise it would not be in a position to comply with its obligations under the sector specific applicable legislation, as a result of the constantly increasing quantities sold to the medicine retailers, due to parallel exports to other markets. Such parallel exports were highly profitable for the vendors, in view of the fact that the price in Greece of the medicines in question was significantly lower than in other countries. 44. Upon request, the HCC initially considered such conduct to constitute an abuse of dominant position, and granted interim measures, by which it obliged the defendant undertaking to execute temporarily the orders placed for the medicines in question until the adoption of the final decision on the case. In the meantime, it made a reference for a preliminary ruling on the case, which however was considered inadmissible by the Court of Justice. However, the opinion of the Advocate General had been taken under consideration by the HCC. 45. Thereafter, the HCC heard and adopted its final decision on the case. According to such decision, refusal to deal, even in cases where it is absolute and total, is not considered to be abusive per se; its abusive character is inferred upon weighing of both sides interests, and in the light of the principle of proportionality. Therefore, if objective circumstances occur, which justify such a refusal to deal, there is no abuse, even if prima facie there seems to be so. Taking into consideration that competition law protects competition as an operation, in such weighing of interests, the interest of consumers is, inevitably, taken into account. 46. In view of the specific circumstances of the case, the HCC concluded that the behaviour of the defendant undertaking had been triggered by the existence of parallel exports and the resulting loss of revenues, which, according to the defendant‟s allegations, would bring about a reduction of the funds invested in research and development. However, the refusal to deal caused problems to the Greek market, and put into danger the supply of medicines to the patients, who are the end consumers. In view of the above, there had been an abuse of dominant position. Taking into account, nevertheless, the short period of the infringement (four months), and the fact that, as a result, the consequences of the infringing conduct had not been established in the Greek market, the HCC addressed a recommendation to the defendant undertaking to refrain from similar conduct in the future, threatening the imposition of a fine of up to 3% of the gross revenues of the company. 47. Furthermore, in respect of the question whether the attempt to restrict parallel trade consisted in an infringement of Article 102, the HCC considered that this was a matter of weighing the interests concerned, and of the existence of objective reasons justifying such conduct. By reference to the United Brands case law, the HCC ruled that the effort to limit the loss of profits is a reason that contributes to the reasonable commercial interests of the defendant undertaking. Moreover, additional reasons that justified the conduct of the defendant undertaking were: (a) the fact that in the European medicine sector, due to the state intervention in the fixing of the medicines prices, there is no effective competition, (b) the percentage of supplies by the dominant undertaking, which exceeded the national consumption, (c) the effect of parallel trade on the profits of the dominant undertaking, (d) the fact that the consumer did not gain any benefit from the parallel export, and (e) the general financial and regulatory framework of the case in question. 48. The HCC, applying the principles of the case law of the European Courts (Commercial Solvent, and United Brands), concluded that the refusal to deal by the defendant undertaking did not constitute an infringement of Article 102 TFEU, in view of the fact that the complainants neither had been placed at a competitive disadvantage, nor had been forced to exit the market. 49. As to the effects on trade between Member States, the HCC admitted that the ultimate purpose of the Community legislator is the creation and enhancement of market integration. Nevertheless, such purpose cannot be achieved by the maintenance of a regulatory framework for setting the prices. The distortions of competition 48

. HCC Decision 591/2014, recitals 88–92.

17


caused by such regulatory framework must be dealt with by the adoption of specific measures by the competent Community authorities, and not by extending or narrowing down the application of Article 102 TFEU. 49 50. It is to be noted that regarding the above case an action for damages is still pending before the Court of Appeals of Athens, upon appeal against the judgment of the Court of First Instance, which, although held the action admissible, rejected it on the merits, concluding that no refusal to deal had occurred that would constitute an abuse of dominant position. The Court of Appeals has suspended proceedings, and has made a reference for a preliminary ruling to the ECJ, seeking guidance on the application of the rules regarding abuse of dominant position.50 The ECJ ruled that Article 102 TFEU must be interpreted as meaning that an undertaking enjoying a dominant position in the relevant market for medicinal products which, in order to put a stop to parallel exports carried out by certain wholesalers from one Member State to other Member States, refuses to meet ordinary orders from those wholesalers, is abusing its dominant position. It is for the national court to ascertain whether the orders are ordinary in the light of both the size of those orders in relation to the requirements of the market in the first Member State, and the previous business relations between that undertaking and the wholesalers concerned.51 51. Following the above ECJ‟s ruling, the Athens Administrative Court of Appeals and the Council of State referred back the case to the HCC for a new ruling.52 The HCC issued a statement of objections and convened on 5 November 2014 to decide: (a) whether the defendants have abused their dominant position in the markets of migraine medicines and medicines for the treatment of respiratory diseases in Greece during 2000–2006, by refusing to meet the orders and reducing the quantities of certain medicinal products supplied to associations of pharmacists and wholesalers, with a view to reducing parallel exports; (b) to what extent and for which period of time the defendants have failed to comply with the interim measures imposed by HCC by virtue of its decision 193/III/2001, in particular the requirement to meet all orders of the associations of pharmacists and wholesalers for certain medicinal products pending adoption of a final decision in the case; (c) what is the appropriate sanction to be imposed on the defendants for the abuse of its dominant position in connection with their distribution policy on the Greek market regarding one specific product during 2000–2002. According to the statement of objections, the defendants abused their dominant position in the market of migraine medicines from 2000 to 2004 by refusing to meet „ordinary‟ orders of wholesalers. The „ordinary‟ character of wholesalers‟ orders are calculated by reference to the annual size of orders and supplies per wholesaler, the national consumption per year and the pattern of previous business relations between the pharmaceutical companies and wholesalers during the years prior to the infringement. Furthermore, the statement of objections takes the view that the defendants did not comply with the interim measures imposed by the HCC for the period during which decision 193/III/2001 remained in force, and proposes the imposition of a fine for the infringement regarding one specific product. The decision of the HCC on the case is still pending.53 52. Likewise, in respect of abusive conduct of dominant undertakings, by its Decision 520/VI/2011, the HCC found that a company mainly active in the production and distribution of salty snacks in Greece engaged in restrictive agreements, and committed an abuse of its dominant position in the market, infringing as a result both national and EU competition rules. 53. According to the HCC Decision, the company had adopted and implemented a single, consistent, and targeted policy in the market of salty snacks, that sought to exclude its competitors from smaller retail outlets (notably, kiosks, grocery stores and traditional food stores and mini-markets), and to limit their possibilities for growth. To achieve such objective, the company engaged in various abusive practices throughout the period from 2000 until at least 2008, some of which exhibited extraordinary intensity, including: (a) exclusivity agreements at wholesale level, (b) agreements for the provision of cabinets on the basis of exclusivity, aimed at capturing the available space at smaller retail shops (e.g., kiosks) and raising entry/expansion barriers, to the exclusion of competitors, (c) rebates conditional upon the commitment of all, or the most substantial part of, available 49

. HCC Decision 318/V/2006.

50

. Court of Appeals of Athens, Judgment 1565/2006.

51

. Joined Cases 468/06 to 478/06 Sot. Lelos kai Sia EE and Others v. GlaxoSmithKline AEVE [2008] ECR I-7139.

52

. Judgments 2019/2009, 2100/2009 and 1983/2010 confirmed by the Council of State‟s Judgments 1923/2012, 1922/2012, 1921/2012 and 1925/2012.

53

. See the press release of the HCC in English available at its website.

18


shelf/store space for its products, (d) target rebates at both wholesale and retail level, and (e) coordinated and targeted acts aimed at replacing and removing, by unorthodox means, the products and cabinets of competitors from those outlets.54 54. Likewise, in a recent decision, following an ex officio investigation in the retail market for baby diapers in Greece, the HCC concluded that the defendant had infringed Articles 101 and 102 TFEU, as well as Articles 1 and 2 of Law 3959, by engaging in anti-competitive commercial practices. According to the decision of the HCC, the evidence gathered throughout the investigation (i.e., contractual agreements of the defendant with super markets, interviews, scorecards followed by the super markets, shelf planograms, instructions to merchandisers, and other internal documents and e-mails) substantiated that, during the investigated period from 2003 to 2011, the defendant had adopted and implemented anti-competitive practices aimed at maintaining and/or strengthening its dominant position in the market for baby diapers, thereby excluding competitors and limiting their growth possibilities. The alleged abusive conduct included, in particular, individualized target rebates and rebates conditional upon the commitment of excessive shelf space (percentage of shelf space and of available SKUs) for its baby diapers products, as agreed between the defendant and major retail chains throughout the investigated period. The characteristics of the aforementioned rebates, as well as the way they were implemented, were analyzed according to the criteria set out by case law for exclusivity requirements. The rebates conditional upon the commitment of excessive shelf space were also analyzed as non-compete clauses and were found to constitute, in addition to abusive behavior, an infringement of Articles 101 TFEU and 1 of Law 3959 concerning restrictive agreements. Based on the gravity and duration of the infringement, and after taking into account the particularities and economic conditions of the case, the HCC imposed fines totaling EUR 5.3 million.55

4.

Other Powers of the HCC

4.1. The Powers of the HCC in Respect of Regulatory Interventions into Sectors of the Economy 55. Article 11 of Law 3959 provides for the power of the HCC to carry out regulatory interventions into sectors of the national economy. Upon request by the Minister of Economy, Competitiveness, and Shipping, or on its own initiative, the HCC shall investigate a specific sector of the Greek economy, which falls under its jurisdiction, and in cases where it concludes that in such sector conditions of effective competition do not prevail, and considers that the application of Articles 1, 2, and 5–10 is not sufficient for the creation of effective competition conditions, it may take, by a reasoned decision, any necessary measure for the creation of conditions of effective competition in such specific sector of the economy. The HCC, within ninety days by the latest from the initiation of the procedure, shall make public its reasoned views in respect of the non-existence of conditions of effective competition in the specific sector of the national economy under investigation, laying down the individual markets of which such sector consists.56 In order to collect the necessary information, the HCC avails itself of the powers and procedures provided for antitrust investigations by Law 3959 (Articles 38–41).57 56. The HCC makes public the initiation of the procedure for regulatory intervention into a sector of the economy by an announcement at its website. Such announcement includes at least: (i) a summary of the relevant request of the Minister, or of the relevant decision of the HCC, (ii) a reference to the relevant provision of the Law (Article 11) as well as to the Ministerial Decision governing the public consultation procedure, and (iii) a description of the sector of the economy subject to the investigation with an indicative reference to other relevant markets. The announcement takes place within twenty-four hours from the submission of the relevant request by 54

. See the press release of the HCC available at its website. The fines imposed for the above-mentioned infringements reached EUR 16,177,514. The Administrative Court of Appeals of Athens confirmed the Decision of the HCC, however reduced the level of fines to a total of EUR 10,286,000: Judgment 869/2013.

55

. HCC Decision 581/VII/2013. See also OECD Annual Report on Competition Policy Developments in Greece-2014, recitals 22–25. It is to be noted that the Decision of the HCC was not adopted unanimously, since the Vice-President of the HCC and one regular member took the view that no fine should be imposed, because no infringement was duly substantiated: recital 445 of the HCC Decision.

56

. Article 11(1) of Law 3959.

57

. Article 11(8) of Law 3959.

19


the Minister, or from the adoption of the relevant decision of the HCC, and triggers the commencement of the time limit of ninety days, within which the HCC shall make public its reasoned views in respect of the nonexistence of conditions of effective competition in the specific sector of the national economy under investigation.58 57. According to Article 11(2) of Law 3959, the HCC makes public, sufficiently and in an appropriate manner, its views regarding the non-existence of conditions of effective competition in the specific sector of the national economy under investigation, and carries out a public consultation in respect of them. Sufficient publication of the views is guaranteed by relevant summary announcement in at least two financial newspapers of countrywide circulation, as well as by complete publication at the website of the HCC. 59 The public consultation lasts at least thirty days. 58.

The publication of the views of the HCC shall include at least the following: 

the specific markets which, according to the HCC, compose the sector of the economy under investigation;

the reasoned views of the HCC regarding the existence or not of effective competition in each of the markets, which compose the specific sector of the economy;

the issues that anyone interested to participate in the public consultation is called upon to comment or answer;

an invitation to all interested persons to participate in the consultation, to express their views, and to submit information they possibly possess, which may be useful for the adoption of the decision of the HCC;

the duration of the consultation;

the way by which the persons participating in the public consultation may submit their views and the information they possess;

the statement that any person may participate in the public consultation regardless of the existence of a legitimate interest;

the statement that the submission of the views of a legal person is carried out by its legal representative.

59. The HCC, within fifteen days from the completion of the consultation, publishes at its website and at the website of the Ministry of Economy, Competitiveness, and Shipping, a summary of the views expressed, in a manner ensuring the confidentiality of the identity of the person expressing his/her views. Likewise, information identified as confidential by the person submitting or sending it is not published.60 60. After the completion of the public consultation and provided that the HCC verifies again that even after carrying out the consultation, in the specific sector of the economy conditions of effective competition do not

58

. Ministerial Decision 3716 Public Consultation Procedure pursuant to Art. 5 of Law 703/77, Federal Gazette 926/B/2006, recitals 2–3. Such Ministerial Decision had been adopted under Law 703/77, but it is still applicable to the extent that it does not contradict with the provisions of Law 3959.

59

. Moreover, the Ministerial Decision governing the public consultation procedure provides that a summary, including at least a description of the object of the consultation, as well as an invitation to visit the website of the HCC, is published at the website of the Ministry of Economy, Competitiveness, and Shipping, as well as at the websites of at least two information internet portals using Greek as their main language: recital 5.

60

. Ministerial Decision on the Public Consultation Procedure, recitals 4 and 6. Likewise, according to recital 8, the same publication requirements are applicable for the decision imposing measures, which is also notified to the Minister.

20


prevail, it announces precise measures, which it considers absolutely necessary and appropriate, and in compliance with the principle of proportionality, in order to create conditions of effective competition. 61 61. The HCC makes public, sufficiently and in an appropriate manner pursuant to Article 11(2), its views on the measures it announces, and carries out a further public consultation in respect of them, for a period of at least thirty days. Upon completion of this second public consultation, and after having taken into account its results, the precise measures, which the HCC considers absolutely necessary, appropriate, and in compliance with the principle of proportionality, in order to create conditions of effective competition, are imposed by a decision of the HCC, which is the solely enforceable decision.62 62. Law 3959 introduced a very important, for the establishment and protection of free competition, power of the HCC. Article 11(5) provides that in cases where the HCC verifies that the absence of effective competition conditions occurs due to, among others, legislative acts, it expresses its opinion, pursuant to the specific provisions of Law 3959, regarding the abolition or amendment of such legislative acts. The opinion of the HCC is submitted to the competent Minister, as the case may be, and notified to the Minister of Economy, Competitiveness and Shipping. 63. Within such framework, the HCC has conducted a sector inquiry into the production, marketing, distribution, and retail of fresh fruits and vegetables, covering the period from 2005 to 2011. Among other findings, the HCC concluded that, despite the recent legislative interventions aimed at lifting regulatory barriers, with a view to enhancing market operation in all stages of the supply chain and avoiding distortions of competition, spearheaded by the substantial reform of the Market Regulations Code and the Rules for Product Distribution, Trade and Provision of Services by the Ministry of Development, the overall regulatory framework in the fruit-and-vegetable sector remains either complicated or insufficient, as the case may be. In this context, the HCC proposed, among others, the following: (a) The introduction of a single and coherent framework of tax provisions on incomes derived from agriculture undertakings and farmers, in particular with regard to bookkeeping and data profiling; (b) the adoption of implementing measures and the removal of barriers in the operation of agriculture auction markets; (c) the adoption of new rules, as well as supplements to the existing rules, with a view to serving novel and/or local market structures (e.g., „contract agriculture‟, „standing crop‟ and „out-growing‟ contracting, e-market, the positioning of local and regional markets, the removal of certain restrictions on the establishment of agricultural cooperatives, a more systematic implementation of the provisions on standardization and traceability, etc.); (d) the modernization of the lease regulations in central markets (e) the reform of the regulatory framework governing the organization and operation of outdoor markets (as regards, in particular, licensing requirements); (f) the promotion of Farmers‟ Markets and the adoption of the relevant implementing measures; (g) the simplification and subsequent codification of other licensing, administrative and criminal provisions concerning the production and sale of fruits and vegetables. 63 64. Within two years by the latest from the adoption of the above decisions, as the case may be, the HCC is obliged to initiate the procedure of investigation of the relevant sector of the economy, and evaluate whether conditions of effective competition have been restored, or whether it is necessary to amend the measures that it has adopted and impose lighter or heavier measures, as the case may be. For such purpose, the same procedure with the one for the adoption of the initial decision is followed. It must be noted that in any case, the Minister of Economy, Competitiveness, and Shipping enjoys the power to submit a request for review to the HCC, prior to the lapse of two years and in any case at least one year after the adoption of the relevant decision, if it is considered that conditions of effective competition have been restored, or it is necessary to amend the measures adopted and impose lighter or heavier measures as the case may be.64 65. The relevant decisions of the HCC are taken in plenary session, and may be challenged by an action for annulment before the Council of State, by any person having a legitimate interest to that end. Fines for non-

61

. Article 11(3) of Law 3959. It is to be noted that the previously in force Law 703/77 referred specifically to any „regulatory measure, behavioural or of a structural nature‟. Moreover, it mentioned that such measures may, particularly, be in compliance with the principles of transparency, non-discrimination, account separation, and with the obligation of cost-orientation of the prices.

62

. Article 11(4)–(5) of Law 3959.

63

. See the relevant Press Release of the HCC, date 4 Dec. 2013, available at its website.

64

. Article 11(6) of Law 3959.

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compliance start from at least EUR 15,000, and may reach an amount equal to 10% of the annual turnover of the undertaking concerned in the preceding to the adoption of the decision financial year. 65

4.2. The Power of the HCC to Accept Commitments 66 .In addition to the other powers enjoyed by the HCC in respect of infringements of the competition rules, the penultimate amendment of Law 703/77 in August 2005 added, in accordance with Regulation 1/2003, the power of the HCC to accept by decision commitments to bring an infringement to an end, offered by the undertakings or associations of undertakings concerned. 67. Currently, under Law 3959, in cases where the Competition Commission, in the course of a relevant investigation being carried out either on its own initiative, or upon request of the Minister of Economy, Competitiveness, and Shipping, or upon complaint, presumes that there is an infringement of the provisions of Articles 1, and 2, or of Articles 101 and 102 TFEU, it may by decision accept the offer of commitments by the undertakings or associations of undertakings concerned, by which the infringement will be brought to an end, and render such commitments binding for the undertakings or associations of undertakings. The decision of the Competition Commission may be adopted for a specific period of time, in cases where it is ascertained that there are no reasons for further enforcement of the said decision. 68. The HCC, upon request by any interested person, or upon its own initiative, may initiate from the beginning the procedure, in cases where: 

a substantial change occurred in respect of the facts, on which the decisions had been based;

the undertakings concerned failed to comply with the commitments they have accepted;

the decision had been based on incomplete, inaccurate, or misleading information provided by the undertakings concerned.66

69. The Competition Commission has recently laid down, by a decision adopted in Plenary Session, the terms, the conditions, and the procedure for the acceptance of commitments on the part of the undertakings or associations of undertakings concerned. The adoption of the streamlined procedure described below in detail already led to an increase of commitment proposals in pending investigations, thereby enhancing the efficient allocation of the Authority‟s resources.67

4.2.1. Applicable Criteria in the Selection of Cases Procedure 70. The purpose of commitments decisions is, according to the HCC, to restore effective competition in the market. The HCC enjoys absolute discretion on whether to initiate or not the evaluation procedure, and on whether to accept or not the commitments offered by the undertakings concerned. In any case, the HCC is not obliged by the law to provide reasons for such decision,68 which is subject to judicial review only in cases where the HCC exceeds the limits of its discretionary powers. Within the context of the commitments evaluation procedure, the HCC ensures the deterrent nature of the competition rules achieved with the imposition of fines, and assesses the benefit resulting from the commitments, with a view to opting for the most appropriate result from a public interest point of view within the framework of restoring conditions of effective competition in the market. In cases of serious infringement of competition rules, the imposition of a fine should be preferred, provided that the infringement is established. The reason for such an approach is that in such cases the imposition of a fine is considered more effective from a competition policy point of view, since the fine, in addition to its

65

. Article 11(8)–(9) of Law 3959. Moreover, pursuant to Art. 11(10), a decision of the Minister of Economy, Competitiveness, and Shipping, to be adopted with the consent of the Competition Commission, will govern specific issues regarding the public consultation, its content, the procedure, as well as any other relevant detail.

66

. Article 25(6) of Law 3959.

67

. OECD Annual Report on Competition Policy Developments in Greece-2014, recital 8.

68

. HCC Decision 460/V/2009. Such approach has been confirmed by the Administrative Court of Appeals of Athens, by its Judgment 1244/2011, recital 18, and by the Council of State, by its Judgment 3847/2013.

22


punitive nature, presents also a deterrent nature, not only in respect of the recipients of the decision of the HCC, but also in respect of any other undertaking, which would have had the intention to engage in similar conduct.69 71. Within that framework, the HCC as a rule will not accept commitments in cases of hardcore restrictions of competition regarding price-fixing,70 and/or bid-rigging, and/or limitation of production, and/or imposition of quotas, and/or market allocation. Likewise, as a rule, commitments will not be accepted in cases of hardcore abuse of dominant positions. In the evaluation process, the HCC will take into account aspects related to the nature of the product or service, the structure of the market, the market share of the undertakings concerned, the barriers to entry, the range and density of the potential damaging results to competition and to the consumers, as well as the length, the extent, the complicate nature, and the multiplicity of the infringement. 72.

Thus, the HCC will not accept commitments where:

(a) the case concerns horizontal cooperation, which are subject to the leniency programme; or (b) these are equivocal or subject to conditions; or (c) these are put forward for purposes of obstruction; or (d) these do not serve the efficiency of the procedure. 73. where:

Nevertheless, the HCC considers in principle appropriate the acceptance of commitments in cases

(a) the existing problems of competition are straightforwardly detectable; and (b) the competition problems are dealt with completely by the commitments offered, without new problems being created; and (c) the competition problems may be resolved efficiently and if possible within a short period of time; and (d) the commitments offer contributes to savings in the resources of the HCC, and to the acceleration and efficiency of the procedure, which are enhanced in cases where the undertakings concerned express their intention to offer commitments as soon as possible; in any case, the HCC does not, in principle, consider suitable the acceptance of commitments in cases where the report (statement of objections) has been served to the parties involved. 74. The procedure for evaluation and acceptance of the commitments offered may be interrupted at any stage on the initiative either of the HCC or the parties concerned. In such a case, the HCC may continue the procedure of investigation and corroboration, or not, of an infringement, with a view to adopting the relevant decision according to Article 25(1) of Law 3959.71

4.2.2. Submission of the Commitments Offer 75. The undertakings concerned may submit a proposal to accept commitments at any stage of the investigation of a case by the HCC, and in any case within twenty days prior to the hearing at the latest, in cases where the relevant report (statement of objections) has already been served to the parties. Likewise, the undertakings concerned, whenever they become aware, by any means, of the investigation on the alleged infringements of competition law, may come in contact with the Competition Directorate General in order to explore the possibility of accepting commitments. The Competition Directorate General may on its own initiative inform the parties on the possibility of accepting commitments in a specific case.

69

. Commitments Decision, recital 2. See in that respect HCC Decision 580/VII/2013, 3, where commitments were rejected specifically on such grounds.

70

. See for example HCC Decision 571/VII/2013, 3.

71

. Commitments Decision, recitals 3–6.

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76. In cases where the undertaking concerned decides to offer commitments, it may request for an informative meeting, during which it puts forward the reasons, for which it intends to offer commitments, taking into account the above-mentioned selection criteria regarding acceptance of commitments by the HCC, and presents and/or submits the commitments that it intends to offer. It may be opportune at this stage to hold several preparatory informative meetings with the purpose of clarifying the alleged competition problems, on the one hand, and on the other hand improving the commitments offered with a view to dealing with such competition problems more efficiently and completely. 77. The procedure for the evaluation and acceptance or not of the commitments is initiated in cases where it is decided that: (a) the intention of the undertaking to offer commitments, which will deal with the competition problems completely and efficiently, is genuine; and (b) the specific case in question is in principle suitable for the acceptance of commitments, taking into account the criteria for the selection of the cases as laid down by the HCC; and (c) the nature and the characteristics of the commitments offered on the basis of the above are suitable for the restoration of free competition conditions in the market, taking into account the content and the form of the commitments offered, as these are laid down in the Commitments Decision; in any case, the procedure for the evaluation of the commitments does not initiate if it is decided that in the specific case the imposition of a fine is suitable.72 78. In cases where it is decided, on the basis of the above, that it is suitable to initiate the procedure for the evaluation of commitments, the Rapporteur (Case-Handler) of the case requests from the undertakings offering commitments to submit within a deadline of thirty days a commitments proposal, with the purpose of dealing with the alleged infringements and competition problems under investigation, as these are briefly described in the request. In case of failure to submit the commitments proposal within the deadline laid down on the part of some of the undertakings concerned, the investigation of the case for the verification or not of the infringement may continue in respect of these undertakings. The service of such request by the Rapporteur (Case-Handler) suspends the deadline for the submission of the report (statement of objections) on the case by the Rapporteur (Case-Handler) to the Plenary Session, as well as the deadline for the adoption of the decision on the case by the HCC, according to Article 15(4) and (5) of Law 3959. In addition, upon service of such request, the undertakings concerned may receive, upon relevant written request, a copy of the non-confidential version of any potential complaint, if such request has not already been satisfied on the basis of the Article 15(7) of the Regulation. 73 79. In cases where the report (statement of objections) is already served to the undertaking, the latest point by which the undertakings concerned may submit a commitments offer is together with their written pleadings, that is twenty days prior to the hearing at the latest. The Rapporteur (Case-Handler) of the case drafts the recommendation on the sustainability and adequacy of the commitments offered, which is served to the parties two days prior to the date of the hearing on the case, without new summons. During the hearing the HCC decides on whether to initiate the evaluation procedure for the acceptance or not of the commitments. If the HCC decides to do so, the procedure laid down in the Commitments Decision is followed without it being necessary to draft a new report (statement of objections), and the deadline of twelve months within which the HCC has to adopt its decision, according to Article 15(5) of Law 3959, is suspended; otherwise, the hearing of the case continues. The offer of commitments to be evaluated by the HCC does not result in the undertakings concerned admitting the alleged infringements that are under investigation.74

4.2.3. Content and Types of Commitments 80. According to the HCC, the commitments offered must be clear and well-defined, sufficient and suitable to terminate the alleged infringements and restore conditions of competition in the market, must be realistic and thus complied with by the undertakings which offer them, and must be implemented totally, directly or within a reasonable defined period of time. Commitments under conditions are not accepted. The implementation of 72.

Commitments Decision, recitals 7–11.

73

. Commitments Decision, recitals 12–13.

74

. Commitments Decision, recitals 14–15.

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commitments shall not be dependent upon the willingness of a third party, which is not bound by them. In cases where the commitments offered cannot be implemented without the consent of third parties, undertakings concerned shall submit evidence that the third party gives its consent. Furthermore, the commitments offered may include either behavioural measures, or structural measures, or a combination of both. Monitoring of the commitments offered must be feasible. Undertakings concerned may propose mechanisms of controlling the implementation of commitments through the participation of third parties, such as for example independent trustees to monitor the implementation, the cost of which will burden the undertakings concerned.75

4.2.4. Evaluation and Acceptance or Rejection of Commitments 4.2.4.1.

Consultation76

81. At any stage of the procedure, if it is deemed necessary, the HCC may carry out a consultation on the commitments offered, in order to collect the views of legal and natural persons active in the market concerned. The consultation may take place in various suitable methods or a combination of them, such as, indicatively, (a) sending to undertakings or association of undertakings active in the market, or other entities such as consumers associations, letters requesting them to express their views within a set deadline, (b) interviews with representatives of undertakings, associations of undertakings, or other entities, including the complainant, (c) initiation of a public consultation by publication at the website of the HCC of a summary of the competition problems under investigation and the commitments offered. In cases of public consultation, interested parties will be entitled to submit their comments within a set deadline of at least ten days. Within the framework of the consultation, clarifications and information may be requested by the parties submitting comments, whilst specific care is taken for the protection of personal data and business secrets. Thereafter, on the basis of the processing and evaluation of the views expressed during the consultation and any other potentially available information, and/or the recommendation on the commitments offer, further clarification and/or amendments of the commitments offered may be requested from the undertakings concerned. Consultation may also be carried out in respect of any submitted amendment of the commitments.

4.2.4.2.

Procedure for the Acceptance or Rejection of Commitments77

82. Provided that the relevant criteria laid down by the Commitments Decision are fulfilled, the Rapporteur (Case-Handler) drafts a recommendation on the acceptance of the commitments offered, as it is formulated on a case-by-case basis, or otherwise proceeds with the investigation of the case. Such recommendation includes primarily (a) the problems of competition that were identified, and the substantial factual background on which the alleged infringements are based, (b) the views of the parties concerned and of third parties, in cases where consultation has taken place, and (c) the evaluation of the suitability and relevance of the commitments offered in their final form. The recommendation is served, together with summons to hearing, to the undertakings offering commitments and to the complainant within three months from the date of submission of the commitments offer. The deadline may be extended in cases where the commitments offer requires clarifications and/or is not complete, resulting in the inability of the Rapporteur (Case-Handler) to proceed with the evaluation of the commitments. The hearing procedure, including the summons deadlines and the deadlines for the submission of written pleadings by the parties concerned and by third parties are governed by the Regulation regarding the operation and administration of the HCC, which is also applicable in the hearing of cases during the investigation of which a commitments offer has been submitted. There is no right of access to the file on the case. 83. In cases where the commitments offer is accepted by the HCC, as it is eventually formulated, the HCC renders by decision such commitments binding for the undertakings concerned and decides that there are no reasons for action anymore on its part. In any case, the HCC is obliged to adopt the relevant act only in cases where commitments are accepted. In case of rejection of commitments, the relevant decision has a preparatory nature in respect of the final decision of the HCC on the case, and thus it is included in the latter. 78

75

. Commitments Decision, recitals 16–17.

76

. Commitments Decision, recitals 18–19.

77.

78

Commitments Decision, recitals 20–24.

. Such approach is specifically mentioned in the HCC Commitments Decision, with reference to Judgment 2265/2010 of the Administrative Court of Appeals of Athens.

25


84. The decision of the HCC accepting commitments may threaten the imposition of a fine in cases where the undertakings or associations of undertakings do not comply with a commitment offered and accepted, and thereafter, the HCC may impose such fine in case of non-compliance by a relevant decision. The infringement in this case consists in the failure of the undertaking to comply with the commitments decision, and thus it is not necessary to prove an infringement of Articles 1 and 2 of Law 3959, and/or 101 and 102 of the EU Treaty.79 85. In case of rejection of the commitments offered, the investigation of the case in order to verify the existence or not of an infringement continues. However, in case of rejection of the commitments offered by some but not all of the undertaking concerned, the procedure continues in respect of such undertakings concerned. Right after the decision of the HCC on the acceptance or rejection of the commitments offered, the deadlines for the submission of the report (statement of objections) by the Rapporteur (Case-Handler) to the Plenary of the HCC and for the adoption of the decision by the HCC resume. In any case, acceptance of commitment by the HCC in a specific case does not bind the HCC in respect of pending or future proceedings or cases, and does not create any right or legitimate expectation for the resolution of pending or future cases or proceedings by the acceptance of commitments. 86. In the first case dealt with by the HCC under the new Commitments Decision, it accepted commitments propose by nine fuel trading companies with a view to meeting the competition concerns expressed to them by the HCC. The HCC‟s self-initiated investigation focused on the long-term exclusive cooperation agreements concluded between petrol-station operators and fuel trading companies. According to the preliminary assessment, the nine fuel wholesale companies involved lease the land/premises on which the petrol-station is operated by the owner/operator or his/her relatives, and at the same time (or a couple of days later) sign a commercial cooperation agreement with the same petrol-station operator, either by the same private agreement or by another, distinct concession agreement granting the right to use the property, by which they sublease the land/premises to the same operator, for a duration exceeding five years (often with the possibility to convert them to open-ended agreements by tacit renewal). The above agreements might give rise to competition concerns, because they amount to a non-compete obligation of more than five years, thus excessively restricting the petrol-station operator‟s contractual freedom to choose his/her fuel supplier. 87. In order to address the preliminary competition concerns expressed by the HCC, the nine wholesale fuel trading companies commitments, which consist in the following: (a) refrain from entering into any such future arrangements exceeding five years, (b) gradually terminate all such existing arrangements, based on a specific time-frame relative to the time of their conclusion, thereby ensuring both the independence of the contracting petrol-station operators in their business decision-making and any outstanding financial requirements of the trading companies, and (c) inform the petrol-station operators concerned about the time and procedure regarding the termination of the said contracts. The HCC made the above commitments binding on the undertakings concerned, thereby finding that there are no longer grounds for further action, without such decision concluding whether or not there has been, or there is still, an infringement.80 88. It is interesting to refer, also to two recent commitments decision adopted by HCC. First, by a unanimous decision, the HCC accepted commitments proposed by the Public Power Corporation S.A. (PPC S.A.), the incumbent producer and supplier of electricity in Greece, with a view to dealing with the preliminary competition concerns expressed by the HCC. The HCC‟s investigation in the markets for the production and trade of electricity was initiated following a complaint by Aluminium of Greece S.A. (Aluminium) and its parent group Mytilineos Holdings (group of companies also active in the energy sector) for alleged abuse of dominance by PPC (Article 102 TFEU and Article 2 of the Greek Competition Act). Aluminium is the biggest high voltage electricity consumer (manufacturer of aluminium). The complainants alleged that PPC refused to supply Aluminium and imposed on the latter unfair and discriminatory trading conditions, thereby also foreclosing a competitor in the upstream electricity production market. On the basis of the commitments proposed by PPC, in summary, PPC shall: (a) Immediately withdraw its request to the power transmission operator (“ADMIE”) to no longer represent Aluminium‟s electricity meters, revoke the declaration of discontinuation of power supply to Aluminium and the termination of the commercial relationship for power supply with the latter and, subsequently, make public the said withdrawal; (b) Continue to supply Aluminium on the current terms and conditions; (c) Conduct negotiations with Aluminium concerning the fees for the supply of electricity to 79

. Commitments Decision, recital 27.

80

. HCC Decision 602/2015. See also the OECD Annual Report on Competition Policy Developments in Greece-2014, recitals 46–47, and 2015 recitals 38-41. and the press release of the HCC available in English at the website of the HCC.

26


Aluminium on the basis of the pertinent legislation and regulatory framework, to be completed within three (3) months with the conclusion of a supply agreement between the parties; and (d) Abstain from similar actions until the conclusion of the negotiations / the resolution of the dispute, provided that Aluminium continues to pay the fees it currently pays. The HCC made the above commitments binding on the undertaking concerned without concluding whether or not there has been, or still is, an infringement. In case of non-compliance, the HCC may impose the fines provided for in Law 3959.81 89. Likewise, by its unanimous decision dated 13 October 2016, the HCC accepted a proposal submitted by the State Natural Gas Supply Company (DEPA) to revise partly the commitments adopted with previous HCC Decisions (551/2012, 589/2014, 596/2014 and 618/2015), as follows: (a) Increase the quantities auctioned through the gas release programme and, consequently, amend specific terms of the system for the supply of natural gas through electronic auctions, in view of the forthcoming scheduled annual auction; (b) Revise specific terms of the commitments pertaining to DEPA‟s reservation of capacity at the points of entry of the transmission network, pending the review of the entire sub-set of the relevant commitments in light of Regulations (EU) 984/2013 and 715/2009 (relating, respectively, to capacity allocation mechanisms in gas transmission systems and to the conditions for access to transmission networks and congestion management), as implemented. 82

4.3. The Power of the HCC to Adopt Interim Measures 90. Article 25(5) of Law 3959, based on the model introduced by Regulation 1/2003 which excludes the right of natural and legal persons to request interim measures, provides for the power of the HCC to adopt interim measures. It provides that the HCC has the exclusive power to take interim measures, upon its own initiative, or upon request by the Minister of Economy, Competitiveness, and Shipping, where an infringement of Articles 1, 2, and 11, or of Articles 101 and 102 TFEU, is likely to occur, and an emergency need occurs to prevent without delay imminent danger of irreparable damage to the public interest. 91. Thus, natural and legal persons do not anymore enjoy any enforceable right to request from the HCC the adoption of interim measures for the protection of their private interests. They may still inform the HCC and submit complaints in respect of infringements of the competition rules that, in addition to their private interests, may cause an irreparable damage to competition, and the HCC enjoys the discretion to adopt interim measures upon its own initiative and only if it is persuaded that such a situation occurs. 92. The wording of the provision follows that of the respective Article 8 of Regulation 1/2003. Although it seems to give broader powers to the HCC, in the sense that it warrants the adoption of interim measures in cases of „irreparable damage to the public interest‟, compared to „irreparable damage to competition‟ referred to in Article 8 of Regulation 1/2003, the HCC does not share such view. In an announcement published on 24 October 2005, and by reference to Article 8 of Regulation 1/2003, the HCC clarifies that it considers the term „public interest‟ to coincide solely and exclusively with the protection of competition as an „institution‟. Therefore, the HCC draws the conclusion that the protection exclusively of private interests does not suffice, under the new legislative status, to establish the right of submission of a request of interim measures, on the basis of an infringement of Articles 1, 2 and 5 of the then applicable Law 703/77, and of Articles 101 and 102 TFEU. The HCC believes that what is legally crucial, within the meaning of the said provision, is exclusively whether a practice in the market exposes in danger of irreparable damage the public interest, in the sense of placing at serious risk competition. The fact that a practice that may be caught by the relevant national and European provisions may by reflection damage the private interests of one or more undertakings, or other aspects of the public interest, such as, for example, the public interest in health, the protection of the environment, etc., does not suffice anymore to activate the interim protection upon request by private persons. According to the HCC, other authorities and Courts are competent for the protection of such lawful interests. Thus, Article 25(5) of Law 3959 provides now that the jurisdiction of civil courts to take interim measures for the protection of private interests is not affected by the relevant provisions of Law 3959. 93. In order to further substantiate the above views, the HCC based itself on the fact that the relevant provision of the then applicable Law 703/77 introduced the harm to the public interest as a reason for the adoption of interim measures also in cases of infringement of Articles 101 and 102 TFEU. According to the 81

. HCC Decision 621/2015; see also the relevant press release, and the OECD Annual Report on Competition Policy Developments in Greece201, recitals 32-34, both available at the website of the HCC.

82

. See for more details the relevant press release of the HCC, available at its website.

27


HCC, a contrary interpretation would infringe Article 8(1) of Regulation 1/2003, and as a consequence the principle of uniform application of the Community competition rules, which is one of the aims of Regulation 1/2003, would be infringed, since the European Commission, on the one part, may adopt interim measures only on its own initiative and for the protection of competition in cases of breach of Articles 101 and 102 TFEU, whilst the HCC, on the other part, would adopt interim measures also on the basis of other reasons or aspects of public interest(i.e., implementation of financial policy, health protection, etc.), or reasons pertinent to the applicant undertaking.83 94. In respect of the other conditions for the adoption of interim measures, the occurrence of an emergency situation is examined in relation with the need to prevent directly imminent danger of irreparable damage. Therefore, the emergency is related to whether it exists, or is expected to exist, directly imminent danger of irreparable damage, that is imminent danger, which, in order to be precluded, must be dealt with in any case, in order to avoid causing irreparable damage. Irreparable damage, according to the HCC, exists where the damage is either impossible, or hard, to repair, until the adoption of the HCC decision on the main proceedings of the case. Damage impossible to repair occurs in cases where the previous, legal and factual, situation is not possible to be restored, and more specifically, when the occurred result is definite and irreversible. Hard to repair damage occurs in cases where the restoration of the previous situation requires intensive efforts, time-consuming procedures and excessive (disproportionate) expenses, whilst it is not certain that the desired result will be achieved. In order to decide whether irreparable damage occurs or not, it must be examined whether the damage will not be possible to repair, or will be hard to repair, if the interim measures are not adopted, and not if, finally, the complaint will be successful, the examination of which will follow at a later time.84 95. Article 25(5) provides further that the HCC may threaten to impose a fine amounting up to EUR 10,000 per each day of non-compliance with its decision, and impose such fine by the decision verifying noncompliance.85 The benefits obtained by the undertaking, as well as the effects in the relevant market resulting from non-compliance with the decision shall be taken into account for the calculation of the fine. The Competition Commission is obliged to take a decision within a deadline of fifteen days by the latest from the date of submission of the relevant request by the Minister of Economy, Competitiveness, and Shipping, and after a prior hearing of the interested parties. Such decision may only be challenged by appeal before the Administrative Court of Appeals of Athens. The provisions of Article 30(2), (3) and (4) of Law 3959 are applicable mutatis mutandis.86 96. Moreover, within the ambit of its power to grant interim measures the HCC may issue a provisional order. The provisional order is issued upon the HCCâ€&#x;s initiative, or upon a relevant request to this end by the competent Minister (currently the Minister of Development, Competitiveness, Infrastructures, Transportation, and Networks), by a decision of the Commission, and is valid until the adoption of a decision in respect of the interim measures by the latest.87 The HCC invites to a hearing the natural or legal person against which the provisional order is to be adopted, at least twenty-four hours in advance. In other respects, the provision of Article 6 of the Code of Administrative Procedure (Law 2690/1999, as applicable each time) applies. 88

83

. See also HCC Decision 436/V/2009.

84

. HCC Decision 297/IV/2006, Federal Gazette 167/B/2006, at 2025. In that case the HCC, although not unanimously, granted the interim measures in view of the danger, as a result of the practices complained of, to revert to an oligopoly market, and to eliminate the main competitive advantage of offering all the brands of cigarettes, and particularly those for which eminent demand existed, as the case was with the products of the defendant undertaking.

85

. It is to be noted that under Law 703/77, the maximum amount of fine was EUR 5,000. Moreover, the HCC in Case 297/IV/2006 mentioned above threatened a periodic penalty payment of EUR 2,500 for each day of non-compliance with its decision.

86

. See below for more details.

87

. The HCC issued recently a provisional order in the context of a pending investigation in the markets for the production and trade of electricity, which was initiated following a complaint by Aluminium and its parent group Mytilineos Holdings for alleged abuses of dominance by Public Power Corporate in the form of refusal to supply electricity and deal with the complainant: See the Press Release of the HCC on the case available at its website.

88

. Article 16 of the Regulation. Article 6 of the Code of Administrative Procedure lays down the administrative procedure that must be followed by the administrative authorities, when granting to any interested party the right to be heard, orally or in writing, prior to the adoption of any measure to the detriment of its rights or interests. According to para. 3, in cases in which the adoption of the adverse measure is required, in order to avoid an imminent danger or due to reasons of compelling public interest, it is possible, exceptionally, to proceed with the remedy of the situation without the prior hearing of the interested person. If the situation that has been remedied is likely to

28


97. It is interesting to refer to the first interim measures decision after the adoption of Law 3959, issued by the HCC in the summer of 2012, concerning the market of infant milk. By its Opinion 12/VI/2011, the HCC unanimously proposed the abolition of the restriction concerning the sale of infant formulas (for infants under the age of six months) solely in pharmacies, and in particular for those of such products which are available without prescription. The restriction of the then applicable regulation, which provided for such formulas to be exclusively sold in pharmacies, constituted, according to the HCC, an obstacle to the proper operation of free competition, which cannot be justified on the basis of overriding public policy considerations. 98. According to the HCC‟s Opinion, the said regulation imposes entry barriers to potential competitors (e.g., food retailers), and forecloses the retail market, while limiting the freedom of suppliers to use alternative distribution networks. It, thus, renders the distribution of the products concerned less efficient, and results in the consumer being deprived of choice and potential benefits arising from the combination of distribution and price competition. Far from being suitable and objectively necessary, the ensuing entry barriers lack a proportional regulatory objective pertaining to public interest, such as possibly the protection of infants‟ health and the encouragement of breastfeeding. This is due to the fact that consumer protection, as well as the quality of infant formulas, is ensured by means of the applicable European and national legislation that regulates inter alia the products‟ composition, labelling, advertising and marketing, with binding provisions and regardless of the infants‟ age. In addition, the perceived consumer benefit resulting by the existing system of pharmacies on nightservices duty will not be adversely affected by the proposed abrogation, since pharmacies will continue to sell infant formulas alongside food retailers, as is currently the case with follow-on formulas for infants beyond the age of six months and other baby foods.89 99. Following the above Opinion of the HCC, the Pharmacists Association of Achaia adopted unanimously a decision, according to which: (i) its members would not sell any of the infant milks of four specific undertakings (i.e., the undertakings that did not cooperate exclusively with the distribution channel of pharmacies), (ii) its members would return the said excluded infant milks to the Pharmacists Cooperative and to the warehouses the soonest possible (i.e., within one week), (iii) the Association would monitor closely (potentially with a view to exclusion) the infant milks of two other suppliers, and (iv) certain undertakings would be rewarded for their devotion to the pharmacies as an exclusive point of sale of their infant milks and for their recognition of the scientific role performed by the pharmacist. 90 100. The HCC initiated the procedure for the adoption of interim measures, since it considered that the above unanimous decision of the Association has presumably the object of coordination and concerted behaviour by its members in an anti-competitive manner, i.e., by the adoption of exclusionary measures (the Association encourages its members, within the framework of their business activities, to refuse the distribution of the products of the suppliers, who do not cooperate exclusively with the distribution channel of pharmacies). In the opinion of the HCC, such approach constitutes a decision of an association of undertaking, which has as its object the restriction and control of distribution, and thus it falls within the ambit of Article 1(1) of Law 3959.91 As such, the object of the unanimous decision was the prevention, restriction or distortion of competition. Consequently, it is not necessary to appraise any specific results in the market, since the prevention, restriction, or distortion of competition is examined on the basis of objective criteria. The decision of the Association infringes Article 1(1) of Law 3959 without it being necessary to investigate further in respect of its results, and whether or not it had been applied in practice. The HCC specifically noted that in the appraisal of the practice, it did not examine the individual intention of the Association but only the content and the objective purpose of the decision. An anti-competitive intent is not necessary, rather suffices the objectively potential anti-competitive

be altered, the administrative authority, within a period of fifteen days, invites the interested person to express his/her views, and then it proceeds with a potential new remedy. If the above deadline lapses and no action is taken, the remedy ceases to exist, de jure and without any other action. 89

. See the press release of the HCC in English available at its website.

90

. HCC Decision 545/VII/2012, recital 50.

91

. Nevertheless, the HCC underlined the fact that any association of undertakings may have legitimately a role in safeguarding the interests of its members. It cannot, however, in a general manner, invoke the freedom to set up trade unions in order to justify actions infringing national and EU competition provisions, as in the case in question: HCC Decision 545/VII/2012, recital 53.

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effect, which causes the prohibition of the decision, even though the Association might not have aimed at such an effect.92 101. In any case, according to the HCC, a potential compliance of the members of the Association with the aforementioned decision was expected to be sufficient to have a significant negative impact on competition in the market of infant milk, since the products in question will disappear from a distribution channel, and their supply will be restricted to the detriment not only of the undertakings producing and importing the products concerned, but also of the consumers.93 102. Furthermore, in the HCC‟s view, it should be specifically noted that the collective boycott, by a decision of an association of undertakings or by an agreement, of certain suppliers from a specific distribution channel constitutes a measure, which is highly probable to have an impact on and restrict competition even at the level of suppliers, in the upstream level of business activities, infringing thus the principle of proportionality itself. However, for the protection of the interests of their sector, the undertakings and associations of undertaking may potentially negotiate with their suppliers in a legal manner a better offer for the pharmacies, so that the latter will be in a position to offer competitive prices, and as such the consumers will benefit from the reduction of prices caused by the intensification of competition in the market. 103. The HCC further noted that the coordination of the business activity of the undertakings, by a decision of an association of undertakings, as well as by any agreement or concerted practice among undertakings, is prohibited. As a result, the alleged anti-competitive conduct of the parties concerned consisted in the practices aiming at the collective boycott from the market of certain supplier undertakings, and thus, from a competition law point of view, they were independent from the adoption and enforcement of the rule regarding exclusive or not distribution of the infant milk products by the pharmacies. 94 104. The investigation of the HCC revealed, in addition, a coordination of the business activities both at a horizontal level (pharmaceutical warehouses-wholesalers/pharmacists‟ cooperative), and at a vertical level (pharmaceutical warehouses-association of pharmacists), and more specifically a cooperation with anticompetitive effect was alleged among: (a) the Pharmacists Cooperative and the Pharmacists Association of Achaia, in respect of the return of products, and (b) the Pharmacists Cooperative, the two pharmaceutical warehouses-wholesalers and Pharmacists Association of Achaia, in respect of the boycott of future orders. Such practices were alleged by the HCC to aim at the creation of conditions of competition in the markets concerned that deviated substantially from the conditions of free competition (in respect of the freedom of business activity of the pharmaceutical warehouses-wholesalers and the retailers-pharmacists). Such coordination was alleged to have as its object the uniform compliance with, and direct applicability of, the decision of the Association regarding the boycott of certain suppliers by its members, and the extension of the boycott at all the involved levels of business activity in the supply chain connecting the supplier with the consumer. Therefore, from the specific conduct in question by the Association and the wholesalers-pharmaceutical warehouses an anticompetitive practice came out, with the object and potential effect of restriction and control of distribution of certain products, in breach of Article 1 of Law 3959 (and potentially Article 101 TFEU). 95 105. The „public interest‟ that the HCC was called upon to safeguard was in the said case the protection of free competition, and the preservation of the opportunity to supply without obstacles products necessary for the public health, and all the more related to the particularly sensitive category of the infants‟ health. The restriction of distribution of infant milk and special category infant milk for infants with some king of health problems was 92

. The HCC made reference to settled case law, according to which in order to consider that an infringement has been committed intentionally, it is not necessary for the undertaking or association of undertakings to be aware of the fact that the provision of Law 3959 and/or Art. 101 has been infringed. It suffices that it could not ignore that the said conduct had as its object the restriction of competition: HCC Decision 545/VII/2012, recital 55.

93

. The HCC took specifically into account the fact the Association‟s intensive efforts to ensure compliance with the decision. It sent a letter to its members calling upon its members to put in effect the decision, by exhausting the available stock and refraining from putting new orders of products from the specific undertakings concerned. All the more, the Association, in order to ensure total compliance with the agreed conduct, it tried to reach an agreement with the pharmaceutical warehouses-wholesalers supplying its members, so that these would not supply the products that were boycotted, and thus the members of the Association would not be in a position to order such products in practice: HCC Decision 545/VII/2012, recitals 56 and 59.

94

. HCC Decision 545/VII/2012, recitals 57–58.

95

. See for more details HCC Decision 545/VII/2012, recitals 66–68.

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alleged to cause harm to competition, as well as to the interests of the consumer, in respect of prices and choices. Such restriction and control of distribution entailed the risk of reduction of the inter-brand competition among one supplier and its competitors, or might have as an effect the reduction of competition at the level of trade and the coordination in respect of prices. The practice in question concerned boycotting of the products of four undertakings and the monitoring of the products of two other, thus it concerned a significant number of undertaking carrying out business activities in the market of infant milk. Regarding the special category of therapeutic milks, in view of the fact that such products are consumed by infants suffering from some kind of disease upon medical prescription, the HCC emphasized that their uninhibited supply was necessary for the protection of the health of the infants, which constitutes public interest. 106. Likewise, the adoption of specific interim measures was prescribed by reasons related to maintenance and safeguard of the competitive structure of the market, and to the general and specific security. More specifically, it was necessary for the prevention of irreparable damage in the competitive process and in the market, which was threatening to result from the coordinated anti-competitive boycott of certain suppliers/products of certain companies from the distribution channel of pharmacies, the reduction of supply, which might possibly result from the practice in question, the alleged coordination of prices and the resulting alleged harm to the consumers. The action of the HCC regarding the adoption of interim measures was considered urgent since there was a direct need to overturn the anti-competitive practice dispersed to various levels of business activity and in the market in general, to prevent the risk of dispersion of similar practices, and to preclude the possibility of retaliatory measures against the suppliers who had not distributed the infant milk exclusively through pharmacies. In addition, the adoption of interim measures was considered urgent, since it was necessary to ensure that the parties would not follow similar practices, which are presumably infringing the competition provisions, at least up until the adoption of the decision on the main case. The market of infant milk is inelastic on the demand side, and is distinguished by the extensive brand loyalty of the consumers to certain products. All the more, in the case of special category infant milk, distributed only through pharmacies and upon medical prescription, the restriction of supply was alleged to have as an effect the above-mentioned. The harm to competition, respectively, not only at the level of undertakings suppliers of infant milk, whose products was decided to be boycotted from the pharmacies, but also in respect of damage to the competitive process by the dispersion of the anti-competitive practices in the market, would be hard to repair, if not irreparable. 107. Finally, the protection of the interests of the consumer, and the need to safeguard effective competition in the market was considered superior to any potential interests of the Pharmacists Association of Achaia and the pharmaceutical warehouses ensured by similar practices, which cannot be presumed suitable for the legitimate defence of their business interests, and in addition there were no specific legitimate interests ensured by such practices. In view of all the above, the HCC considered that the conditions for the adoption of interim measures up until the adoption of the decision on the main case were met. In order to ensure the balance of the competition conditions in respect of the part that this had been affected by the above-mentioned practices of the Pharmacists Association of Achaia, the Pharmacists Cooperative, and the other pharmaceutical warehouses-wholesalers, the HCC considered opportune to order the abstention from any practice consisting particularly in the return of orders of certain products (apart from justified cases, such as, indicatively, damaged products) from the pharmacies to the pharmaceutical warehouses, or in the boycott of orders of such products or of products coming from certain suppliers.96

5. Mergers and Joint Ventures under Greek Competition Law 108. The provisions of Law 3959 regarding merger control are contained in Articles 5–10. Article 5(1)–(4) contains the definition of concentration and its wording is identical to the one of Article 3 of the EU Merger Regulation, while Article 5(5) and (6) deal with joint ventures and corresponds to Article 2(4)–(5) of the EU Merger Regulation.

96

. HCC Decision 545/VII/2012, recitals 60–63 and 69–72.

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5.1. Obligation of Prior Notification of Concentrations 109. Law 703/77 had removed the alternative criterion of the market share in respect of the obligation of prior notification of intended concentrations. Currently, under Article 6(1) of Law 3959, any concentration of undertakings shall be notified to the HCC within thirty days 97 from the conclusion of the agreement, or the announcement of the public bid to buy or exchange, or from taking on the obligation to acquire a holding, which guarantees control of the undertaking, where cumulatively: 

the aggregate turnover of all the undertakings participating in the concentration, amounts, in the world market, at least to EUR 150,000,000; and

at least two of the participating undertakings achieve, each one separately, an aggregate turnover of more than EUR 15,000,000 in the Greek market.

110. The above time limit of thirty days begins with the occurrence of the first of the events mentioned above. The obligation to notify burdens the following persons: (a) in cases where the concentrations consist in merger, according to Article 5(2)(a), or in the acquisition of joint control, according to Article 5(2)(b), jointly the undertakings participating in such actions; (b) in all other cases, the person, or the undertaking acquiring control of the whole or parts of one or more undertakings.98 111. In case of willful infringement of the obligation to notify, the Competition Commission imposes on each of the undertakings bearing the obligation to notify a fine of at least EUR 30,000, which shall not in any case exceed the 10% of the aggregate turnover of the undertaking concerned, as this is defined in Article 10. The economic power of the undertakings concerned by the concentration, the number of the markets affected and the level of competition in such markets, as well as the anticipated effect of the concentration on competition, are specifically taken into account in setting the amount of fine.99 It is to be noted that the burden of proof in cases of failure to notify a concentration is reversed and falls upon the undertakings concerned, which need to prove that there had been no wilfulness. Likewise, in cases of delayed notification of concentrations, willfulness is considered to exist due to the sole fact that the deadline set by the law has lapsed.100 112. Finally, it must be remembered that the persons bearing the obligation to notify, immediately after the notification, are also obliged to publish at their own expenses, the notified concentration in a daily financial newspaper of countrywide circulation. The published text is notified immediately to the HCC, and is also published at its website. Any interested person may submit comments or provide information regarding the notified concentration. The HCC shall take into account the reasonable legitimate interests of the undertakings concerned by the concentration to protect business secrets.101

5.2. Obligation to Suspend the Concentration That Must Be Notified

Implementation

of

a

113. Similar to the provisions of the EU merger legislation, the implementation of a concentration is prohibited until the adoption of a decision on the case by the HCC. Such prohibition applies also to 97

. Under Law 703/77 the relevant time limit used to be ten working days. The prolongation has been considered necessary within the framework of sound administration, in order to provide the parties concerned with enough time to prepare and submit their notification: Justification Report, supra n. 12, at 2.

98

. Article 6(2)–(3) and (7) of Law 3959.

99

. Article 6(4) of Law 3959. It is to be noted that the respective sanctions under Law 703/77 used to be 
EUR 15,000 and up to 7% of the aggregate turnover of the undertaking concerned.

100

. HCC Decision 530/VI/2011 (upheld by the Administrative Court of Appeals of Athens by Judgment 390/2013) with reference to previous case law of the HCC and the Administrative Courts (See, for example, Judgment 135/2009 of the Administrative Court of Appeals of Athens).

101

. Article 6(6) of Law 3959.

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concentrations that have not been notified, pursuant to Article 6(1). In case of wilful infringement of such prohibition, the HCC may impose, on those who bear the obligation of notification, a fine of at least EUR 30,000, which in any case may not exceed 10% of the aggregate turnover of the undertaking concerned. The economic power of the undertakings concerned by the concentration, the number of the markets affected and the level of competition in such markets, as well as the anticipated effect of the concentration on competition, are specifically taken into account in setting the amount of fine. However, the obligation to suspend shall not prevent the implementation of a public bid to buy or exchange, or the acquisition of an undertaking‟s controlling interest within the framework of stock exchange market transactions, provided that such actions have been notified to the competent competition department within the time limit provided for by Article 6(1), and that the acquiring party does not exercise the voting rights attached to the securities in question, or does so only in order to maintain the full value of its investment, and on the basis of a specific derogation granted by the HCC.102 114. The HCC may, upon request, grant derogation from the obligation of suspension, in order to prevent serious damage to one or more undertakings concerned by the concentration or to a third party. In taking such decision, the HCC takes into account, among others, the extent to which the concentration constitutes a threat for competition. The decision granting the derogation may lay down conditions and obligations, in order to ensure a state of effective competition, and to prevent situations that could hinder the enforcement of a potential definitive decision prohibiting the concentration. Derogation may be requested and granted at any time, either prior to the notification, or after the transaction. The decision granting the derogation may be revoked by the HCC, if its adoption has been based on incorrect or misleading information, or if the undertakings concerned infringe any term or condition laid down by the decision.103 115. The HCC has been generally lenient in the past in respect of granting such derogations. 104 Thus, it is interesting to refer here to the HCC Decision 329/V/2007, where the HCC granted derogation on the basis of the fact that the undertaking to be acquired was listed in the Athens Stock Exchange, and following the announcement of the acquisition, the price of the shares were increasing, as a result of speculation, which would cause the purchasing company to pay a much higher price than the one corresponding to the actual market value of the company to be acquired. 105 However, the HCC allowed only the actions that would be considered necessary to safeguard the full value of the investment, and on the condition that up until the adoption of the definite decision, the acquiring company would notify to the HCC each action to this end. 116. In a decision regarding the merger of two banks, the HCC granted the derogation taking into account, among others, the fact that the rapid planned change of brand name would help the bank to be acquired to strengthen its financial position and improve its competitiveness, which have been affected from the insolvency of the shareholders and companies of the group to which the latter belonged. In addition, the potential imposition of financial sanctions by the Bank of Greece would put at risk the full value of the acquiring party‟s investment,

102

. Article 9(1)–(2) of Law 3959. It is to be noted that under Law 703/77 the maximum amount of fine was 15% of the aggregate turnover of the undertaking concerned. In HCC Decision 530/VI/2011, although the case was judged under Law 703/77, the fine imposed was the minimum provided i.e., EUR 30,000. The case was judged under Law 703, but the more favourable provisions of Law 3959, regarding the maximum amount of fines to be imposed, were applied. The HCC took into account various mitigating circumstances: the short duration of the infringement (two months), the simple nature of the case and the fact that control had not been exercised and thus no harm to competition had been caused, the reasonable belief of the undertaking concerned that it had not infringed the obligation to suspend the implementation of the concentration (based on the fact that a declaration was inserted in the merger contract, according to which the voting rights of the shares to be transferred would not have been exercised up until the approval of the concentration by the HCC), the absence of wilful misconduct, and the good cooperation of the undertaking concerned with the HCC including the immediate response to the latter‟s requests for the provision of information: recitals 50–53.

103

. Article 9(3) of Law 3959. According to the HCC, the relevant decision granting derogation is by its very nature an interim measures decision, aiming at the prevention of significant damages of the undertakings concerned or of third parties: See HCC Decision 537/VII/2012, recital 36, citing, at footnote 33, HCC Decision 420/V/2008.

104

. See for example HCC Decisions 192/III/2001 and 113/II/2000. However, the HCC has been more precautious and has rejected several requests for derogation on the basis of Art. 9(3), with a view to preventing serious damage to one or more undertakings concerned.

105

. By the HCC Decision 346/V/2007 the Commission granted derogation and allowed the acquiring company to exercise its voting rights and nominate four out of twelve members of the BoD of the company to be acquired, without anyway acquiring control of the company. Likewise, by the HCC Decision 347/V/2007, the Commission allowed by derogation the exercise by the acquiring company of voting rights amounting to 1/20 of the share capital, with the purpose to postpone the general meeting of the shareholders of the company to be acquired, and avoid a situation in which the minority shareholders would be in a position to adopt decisions that would devalue the investment, that is, replacement of board members, approval of financial statements, allocation of profits, etc.

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and thus the latter should actively participate and contribute in the activities of the scheduled general meeting of the shareholders of the bank to be acquired.106 117. In another decision regarding the merger of two other banks, the HCC granted the derogation, for reasons related to the protection of financial stability, the enhancement of trust by the public to the financial system, and all the more the need to protect the consumers-accountholders and prevent potential serious damages to them, as well as the prevention of situations destabilizing the financial system, in view of the prevailing circumstances in the banking sector. In the said case, the HCC took specifically into account the fact that the accountholders of the bank in liquidation could not proceed with withdrawal of money, and the fact that due to the liquidation process, only actions related to the scope of such process were allowed. As a result, the accountholders of the liquidated bank to be acquired could not carry out any transactions in their accounts, and thus, they were exposed to a severe risk of suffering serious damages, since they cannot avail themselves of their deposits, neither for the payment of their debts, nor, and more importantly, to cover their basic needs. An additional important reason had been the fact that, a situation where it had not been possible to withdraw money from some of the operating banks, would have caused, most probably, loss of trust of the accountholders towards the banking system, which has been already affected by the extremely challenging financial situation in Greece, and the conditions prevailing internationally. For such reasons, it has been considered necessary to ensure the smooth operation of the banking sector in general.107 118. On the contrary, in case 196B/III/2001, the HCC rejected the request for derogation, in view of the fact that the applicants failed to persuade the HCC about the existence of a high risk of serious economic damages to the interested or to third parties, if the derogation had not been granted. 119. Where a concentration has already been implemented, in breach of the provisions or decisions of the HCC prohibiting its implementation, or has been implemented in breach of a term or condition attached to an approval decision adopted pursuant to Article 8(8), the HCC, by the decision taken at the end of the thorough appraisal procedure, or by a separate decision, without being subject to an obligation to respect any specific deadline, may order: (a) the dissolution of the undertakings concerned, in particular through the dissolution of the merger, or the disposal of all the shares or assets acquired, in order to restore the situation prevailing prior to the implementation of the concentration; (b) the adoption of any other appropriate measure in order to ensure the dissolution of the merger of the undertakings concerned, or the adoption of other restoration measures. 120. In case of non-compliance with such decision, the HCC may impose a fine amounting up to 10% of the aggregate turnover of the undertakings concerned, and an additional penalty payment of up to EUR 10,000 for each day of non-compliance with its decision.108 121. Moreover, the HCC has the power to take interim measures suitable for the restoration or maintenance of effective competition conditions, in cases where a concentration has taken place: (a) in breach of the obligation to suspend, and the relevant decision, according to Article 7(1), has not yet been adopted; (b) in breach of a term or condition imposed on the undertakings concerned by the decision provided for in Article 8(8); (c) in breach of the provisions or decisions prohibiting its implementation.109

106

. HCC Decision 485/VI/2010, recital 10.

107

. HCC Decision 537/VII/2012, recitals 38–40.

108

. Article 9(4) of Law 3959; again the maximum amount of fine under Law 703/77 used to be 15% of the aggregate turnover of the undertaking concerned.

109

. Articles 9–10 of Law 3959.

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122. In any case, the validity of any transaction carried out in breach of the obligation to suspend shall be dependent upon the decisions of the HCC, issued pursuant to Article 8(2), (3) and (6), or pursuant to Article 8(4), as the case may be. 123. Finally, the provisions regarding suspension do not affect at all, nevertheless, the validity of transactions in securities, including securities convertible to other securities, unless the buyers and the sellers were aware, or ought to have been aware, of the fact that the relevant transaction was carried out in breach of the obligation to suspend the implementation of the concentration.110

5.3. Appraisal of Concentrations 124. Article 7 of Law 3959 lays down the criteria for the appraisal of the notified concentrations, on which the HCC bases its final decision to allow or prohibit an intended concentration; it follows the wording of the relevant provisions of the EU Merger Regulation.111 Thus, any concentration of undertakings subject to prior notification, which may significantly restrict competition in the national market, or, when taking into account the characteristics of the products or the services, in a substantial part of it, and particularly by creating or reinforcing a dominant position, will be prohibited by a decision of the HCC. For the appraisal of the possibility of a concentration to substantially restrict competition for the purpose of merger control, the following are taken particularly into account: (i) the structure of all the relevant markets, (ii) the actual or potential competition by undertakings established either in Greece or abroad, (iii) the existence of legal or actual barriers to entry in the market, (iv) the position of the interested parties in the market and their financial and economic power, (v) the alternative options available to suppliers and users, (vi) their access to the sources of supply or to the markets of trading the products, (vii) the evolution of the supply and demand of the relevant goods and services, (viii) the interests of the intermediate and ultimate consumers, as well as the contribution to the technical and economic progress and to the improvement of financial efficiency, on condition that such contribution is to the benefit of the consumers and does not constitute a barrier to competition. 125. Furthermore, according to Article 7(3), to the extent that the creation of a joint venture has as its object or effect the coordination of the competitive behaviour of undertakings, which remain independent, such coordination is evaluated according to the criteria provided for in Article 1(1) and (3). In such evaluation, the HCC takes specifically into account the following: (a) whether two or more parent undertakings exercise, to an important extent, activities in the same market with the joint venture, or in the upstream or downstream markets in relation to the one of the joint venture, or in a neighbouring market, closely related to such market, and (b) whether the coordination, which occurs directly as a result of the creation of the joint venture, provides to the participating undertakings the possibility of eliminating competition in a large part of their markets.

5.4. Examination of Notification and Initiation of Proceedings 5.4.1. Phase I Proceedings 126. The HCC examines the notified concentration as soon as the relevant notification is submitted. If it is established that the notified concentration does not fall within the field of application of Article 6(1), the President of the HCC, within one month from the date of notification, issues an act, which is notified to the persons or undertakings that submitted the notification. It is to be noted, however, that such act does not exclude the application of the provisions of Articles 1 and 2 of Law 3959. If it is established that the notified concentration, notwithstanding the fact that it falls within the field of application of Article 6(1), does not cause serious doubts as to its compatibility with the requirements for the operation of competition in the specific relevant markets concerned, the HCC, by a decision adopted within one month from the date of notification, allows the concentration.112

110

. Article 9(5) of Law 3959.

111

. It is to be noted that there has been so far no decision of the HCC prohibiting a notified merger of undertakings.

112

. Article 8(1)–(3) of Law 3959. This phase corresponds to Phase I proceedings at EU level.

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5.4.2. Phase II Proceedings113 127. However, in cases where it is established that the notified concentration falls within the field of application of Law 3959, and causes serious doubts as to its compatibility with the requirements for the operation of competition in the specific relevant markets concerned, the President of the HCC, by a decision issued within one month from the date of notification, initiates the procedure of detailed appraisal of the notified concentration, and informs immediately the undertakings concerned about his decision. From the date they are informed about the initiation of the thorough appraisal procedure, the undertakings concerned may jointly proceed with amendments to the concentration, or offer the acceptance of commitments, with the purpose of not causing serious doubts as to the compatibility of the concentration with the requirements of operation of competition in the specific relevant markets concerned, and notify them to the HCC. 114 Thereafter, in such circumstances, the case is introduced to the HCC within a deadline of forty-five days from the date of initiation of the thorough appraisal procedure. 128. The concentration is prohibited by a decision of the HCC, issued within ninety days from the date of initiation of the thorough appraisal procedure, in case where the requirements laid down by Article 7(1) of Law 3959 are fulfilled, and in the case of Article 7(3)115 where the conditions of Article 1(3) are not fulfilled. In all other cases, the HCC allows the concentration. It is noteworthy to mention that the lapse of the deadline of ninety days without the adoption of a rejection decision is considered to be an approval of the concentration by the HCC, which thereafter is obliged to issue inevitably the relevant verification decision. The above decisions of the HCC cover also the restrictions that are directly related and necessary to the implementation of the concentration. 129. The HCC may by decision approve a concentration upon terms and conditions imposed by itself, in order to ensure that the undertakings concerned will comply with the commitments they have entered into vis-Ă vis the HCC with a view to rendering the concentration compatible with Article 7(1), and in the case of Article 7(3)116 compatible with Article 1(3) of Law 3959. The commitments offered by the undertaking concerned must be submitted within a time limit of twenty days at the latest from the date the case is introduced to the HCC by the submission of the relevant recommendation initiating the thorough appraisal procedure. The HCC, in exceptional circumstances, may accept commitments even after the expiry of the above time limit set for their submission. In such a case, the deadline of ninety days may be extended to 105 days, by a decision of the HCC served to the notifying parties.117 130. Furthermore, the HCC may by the same decision threaten the undertakings concerned with the imposition of a fine in case of non-compliance with the above terms and conditions within the framework of commitments. Such fine may amount up to 10% of the aggregate turnover of the undertakings concerned, as this is calculated pursuant to Article 10. In setting the amount of fine the consequences of non-compliance on competition are specifically taken into account. The HCC may by decision consider that the fine is payable, in cases where it is established that the undertakings concerned did not comply with the terms and conditions imposed. In case that the undertakings concerned persist in not complying, the HCC may order: (a) the dissolution of the undertakings concerned, in particular through the dissolution of the merger, or the disposal of all the shares or assets acquired, in order to restore the situation prevailing prior to the implementation of the concentration, or (b) the adoption of any other appropriate measure in order to ensure the dissolution of the merger of the undertakings concerned, or the adoption of other restoration measures. In case of non-compliance with such decision, the HCC may impose a fine amounting up to 10% (used to be 15% under Law 703/77) of the

113

. Article 8(4)–(8) of Law 3959, as amended by Art. 19(1) of Law 4013/2011.

114

. In Case 513/VI/2011, the merger concerning the ice-cream market, taking the form of acquisition of the ice-cream brands of the seller, was approved following the acceptance by the HCC of the commitments offered by the undertakings concerned, to amend the distribution agreements and the agreements regarding the provision of ice-cream freezer cabinets on a rent-free basis, to be transferred to the acquiring company, eliminating the provisions regarding exclusivity, and to reduce from three to one year the term of the non-competition clause regarding the obligation of the seller to abstain from production and marketing of branded ice-cream in cooperation with third parties. 115

. The original text of the Law makes reference, apparently by mistake, to Art. 5(5), which is the numbering of the provision under the previously applicable Law 703/77.

116

. Ibid.

117

. Under the initial version of Art. 8(8) of Law 3959, the HCC was obliged to proceed with a recommendation on the appropriateness of the commitments offered within twenty days from the date of their submission. Article 19(1)(b) of Law 4013/2011 abolished such obligation.

36


aggregate turnover of the undertakings concerned, and an additional penalty payment of up to EUR 10,000 for each day of non-compliance with its decision. 131. In a recent case, the HCC dealt with a significant merger case in the dairy products sector. It challenged, under Greek merger control rules, the notified concentration between MEVGAL and DELTA, both companies active in a range of dairy product markets, whereby the latter acquired control over the former. The HCC‟s phase II investigation indicated that the proposed transaction, as originally notified, could have raised competition concerns notably in the Greek market for chocolate milk, and to a lesser degree, in the market for the procurement of raw milk. The notifying party offered commitments to remedy the HCC‟s concerns. Eventually, the HCC approved the notified concentration, subject to the following conditions and obligations: (a) the merged entity shall divest the chocolate milk business currently operated under the brand name „Topino‟, in order to remove the horizontal overlap between the parties. To ensure the viability and competitiveness of the divested business activity, DELTA further commits to provide potential buyers with access to its distribution network and production, at their own choice, for a transitional period of two years following completion of the brand divestiture. A trustee will be appointed to ensure compliance with the divestiture commitment; (b) the merged entity shall continue to procure raw milk, under current volumes and general trading terms, from producers located in two prefectures of Northern Greece (Imathia and Pella) for a transitional period of two years, at the producers‟ absolute choice and freedom.118

5.5. Extension/Suspension of the Applicable Deadlines119 132. The deadlines for the adoption of a decision in Phase II merger proceedings may be extended provided that the notifying undertakings grant their consent, or the notification is incorrect or misleading, and as a result the HCC cannot proceed with the appraisal of the notified concentration. 133. The deadlines may also be extended if the notification form has not been completely filled in, and as a result the HCC is not in a position to proceed with the appraisal of the notified concentration. With the exception of the case where the notifying parties consent to the extension of the deadlines, the HCC is obliged, within seven working days from the date of the notification, to request from the notifying undertakings the correction of the initial notification. In such case, the deadlines will be considered to start on the date of submission of the complete notification. 134. In addition, the deadlines are suspended exceptionally in cases where the undertakings concerned do not comply with the obligation to provide information under Article 38, and provided that the undertakings concerned are notified of such suspension within an exclusive time limit of two days, from the date on which the deadline set for the provision of information has lapsed. In such case, the deadlines will be considered to start running afresh on the date the undertakings concerned provide complete and accurate information requested under Article 38.

5.6. Annulment/Revocation of Decisions120 135. In cases where a decision adopted within the context of Phase II merger proceedings is annulled, in whole or in part, by a court judgment, the HCC re-appraises the concentration taking into account the situation prevailing in the market. The notifying parties proceed to this end with the submission of a fresh notification, or a supplement to the initial notification, in cases where the latter has turned out to be incomplete, due to changes that occurred in the meantime, in the market situation or in the information provided. In cases where such changes do not exist, the parties confirm such fact to the HCC. 136. Moreover, the decisions of the HCC adopted within the context of Phase II merger proceedings may be revoked, in cases where their adoption had been based on incorrect and misleading information, or the undertakings concerned infringe any term or condition laid down by the decision. In such cases, if the decision is revoked, the adoption of a new decision is allowed, without any obligation of the HCC to respect the deadlines provided for in the relevant provisions. 118

. OECD Annual Report on Competition Policy Developments in Greece-2014, recital 52.

119

. Article 8(11)–(12) of Law 3959.

120

. Article 8(13)–(14) of Law 3959.

37


137. „Incorrect‟ is the information that, on the basis of objective judgment, does not correspond to reality. „Misleading‟ is the information that does not correspond to reality, and intentionally, with a view to deceiving the HCC, has been included in the file of a notified concentration. According to the HCC, there is no deadline within which a decision has to be revoked. In addition, the above-mentioned provision does not lay down whether the revocation process should be initiated on the Commission‟s own initiative or upon request by an undertaking interested in the revocation, and therefore, the HCC has accepted that it is initially acceptable for an interested party to lodge a request for revocation.121

5.7. Calculation of Turnover 138. The elements to be taken into account and the method of calculation of the turnover of the undertakings concerned, for the purposes of applying the merger provisions of Law 3959, are laid down in Article 10, which follows generally the wording of Article 5 of the EU Merger Regulation. 139. Accordingly, the aggregate turnover comprises the amounts deriving from the sale of products and the provision of services by the undertakings concerned, in the national or global market as the case may be, during the preceding financial year, and correspond to the undertakings‟ concerned ordinary activities, after the deduction of discounts on sales, as well as of the value added tax and other taxes directly related to the turnover. The aggregate turnover of an undertaking concerned does not include the transactions carried out between the undertakings, mentioned in Article 10(5). By way of derogation, where the concentration consists in the acquisition of parts of one or more undertakings, regardless of whether or not such parts have legal personality, in respect of the seller, only the turnover and the market share relating to the part to be transferred is taken into account. However, two or more such transactions, which take place within a period of two years among the same persons or undertakings, shall be treated as one and the same concentration, taking place on the date of the last transaction in order.122 140. Instead of the turnover, the following shall be taken into account: (a) in cases of credit institutions and other financial institutions, the aggregate amount of the categories of revenues below, as defined by the provisions of Presidential Decree 367/1994 (Federal Gazette 200 A‟), after the deduction, as the case may be, of the value added tax and the other taxes directly related to the said services and products provided: (i) interest income and similar income; (ii) income from securities: – income from shares, dividends and other variable yield securities; – income from participating interests; – income from shares in affiliated undertakings; (iii) commissions receivable; (iv) net profit on financial operations; (v) other operating income. 141. The turnover of a credit or financial institution in Greece shall comprise the income items, as defined above, which are received by the branch or division of such institution established in Greece, as the case may be: (b) for insurance undertakings, the value of the gross premiums written, which shall comprise all amounts received and receivable, in respect of insurance contracts issued by or on behalf of the insurance undertakings, including the outgoing reinsurance premiums, as such value results after deduction of taxes and para-fiscal contributions or levies charged by reference to the amounts of individual premiums or the 121

. HCC Decision 443/V/2009, 8 of the electronic version published at the website of the HCC.

122

. Article 10(1)–(2) of Law 3959.

38


total volume of premiums. As to the calculation of the turnover within Greece, pursuant to Article 6, gross premiums received from persons having their residence or establishment in Greece shall be taken into account.123 142. Without prejudice to Article 10(2), the turnover of an undertaking concerned shall be calculated by adding together the respective turnovers of the undertakings below: (a) the undertaking concerned; (b) those undertakings, in which the undertakings concerned, directly or indirectly: (i) either own more than 50% of the capital or business assets; (ii) or has the power to exercise the majority of the voting rights; (iii) or has the power to appoint or dismiss the majority of the members of the management bodies of such undertakings; (iv) or has the right to manage the undertakings‟ affairs; (c) those undertakings which have in the undertaking concerned the rights or the influential powers listed in (b); (d) those undertakings in which an undertaking as referred to in (c) above retain the influential rights listed in (b); (e) those undertakings in which, more than one undertakings as referred to in (a) to (d), jointly have the influential rights or powers listed in (b). 143. In cases where undertakings concerned by the concentration jointly have the influential rights or powers listed in Article 10(4)(b), in the calculation of the aggregate turnover no account shall be taken of the turnover resulting from the sale of products and the provision of services between the joint undertaking and each of the undertakings concerned or any other undertaking connected with any one of them, according to Article 10(4)(b)– (e); on the contrary, account shall be taken of the turnover resulting from the sale of products or the provision of services between the joint undertaking concerned and any third undertaking. Such turnover shall be apportioned equally amongst the undertakings concerned.124

6. Enforcement of Greek Competition Law and Judicial Review 6.1. Initiation of Proceedings: Upon Complaint/Upon the HCC’s Own Initiative/Upon Request by the Minister of Economy, Competitiveness and Shipping 144. Proceedings in respect of alleged infringements of the national and EU competition rules are initiated by the HCC, either on its own initiative (ex officio), or upon a complaint, or upon request submitted by the Minister of Economy, Competitiveness, and Shipping. 125 145. Any natural or legal person has the right to submit a complaint before the HCC, which acts as a public authority for the application of Law 3959, regarding infringements of Articles 1 and 2, as well as Articles 101 and 102 TFEU.126 123

. Article 10(3) of Law 3959.

124

. Article 10(4)–(5) of Law 3959.

125

. Article 25(1) of Law 3959.

39


146. The complaint must be drafted according to the form provided by the HCC in the Greek language, which is the official language of the proceedings. The completed form together with the relevant documents must be submitted in two copies to the HCC, if possible also in electronic form (CD ROM). Submission may take place in person at the offices of the HCC, by courier, by registered mail, or by electronic mail. In this last case, the complaint must be sent to the email address kataggelia@epant.gr, and must include as attachment a signed copy of the complaint in pdf form. The accompanying documents are submitted in true certified copies of the original, and/or in their original version. Such documents are submitted in the language drafted, and if they are not in Greek, they must be accompanied by an official translation in Greek, the correctness and accuracy of which may be verified by the legal counsel of the complainant.127 147. The HCC may assign different degrees of priority to the complaints it receives. According to Article 14(2)(o) of Law 3959, by a decision of the Plenary Session, published at the website of the HCC, the criteria of setting priorities in the investigation of cases and of strategic objectives are quantified, by the application of a bonus point system, and the details of such application are laid down. The above decision may provide that the HCC does not investigate complaints, which, following the application of the bonus point system, are low in ranking. The rejection decisions due to low ranking are issued by the President of the HCC, upon the recommendation of the Competition Directorate General, shall be reasoned, and shall be served to the complainant within thirty days from the date of their adoption. The ranking order of the cases may be revised, in cases where this is considered justified, by a decision of the Director General, which is submitted for approval to the first Plenary Session of the HCC convened after the adoption of the decision. The Plenary Session may reject the decision of the Director General. The bonus point system is used exclusively for the internal handling of the cases by the HCC, and the ranking results are neither published nor notified to the complainant or any third party. 148. The complaints are appraised and ranked the soonest possible, pursuant to the provisions of Article 14(2)(n)(i) and 14(2)(o) of Law 3959, and are either investigated by the HCC according to the procedure of Article 15, or dealt with pursuant to the simplified procedure of Article 37 of Law 3959. The HCC appraises whether the information and allegations submitted to it by the complainant constitute indications of infringement of Articles 1 and 2, as well as of Articles 101 and 102 TFEU. If, following appraisal, no indication of infringement of the said Articles results, the complaint is considered to be evidently unfounded pursuant to Article 37.128 149. Article 37 of Law 3959 lays down a simplified procedure for the handling of complaints by the HCC. Complaints regarding issues not falling under the jurisdiction of the HCC pursuant to the provisions of Law 3959 are placed in the archive of the Competition Directorate General by an act of the President of the HCC, following a recommendation of the Competition Directorate General, within a deadline of five months from the date of their submission. In cases where the complaint falls under the jurisdiction of another independent or administrative or judicial authority, that is, a complaint regarding abuse of a relationship of economic dependence, or other issues constituting acts of unfair competition, the HCC is obliged to officially transfer such complaint within the above deadline. 150. Furthermore, complaints regarding infringement of Articles 1 and 2, and Articles 101 and 102 TFEU, which are obviously unfounded, and which are lodged only with the HCC and not with the competition authority of another Member State of the EU, are placed in the archive of the Competition Directorate General by an act of the President of the HCC, following a recommendation of the Competition Directorate General, within a deadline of nine months from the date of their submission. The competent department of the Competition Directorate General notifies the above acts to the complainant, who has a right to lodge an appeal against such acts, pursuant to the applicable provisions. At the end of each year, the President informs the Plenary Session about the number and the nature of cases placed in the archive during the year in question. 151. Moreover, according to the Regulation of the HCC, a complaint submitted to the HCC may be withdrawn at any stage of the procedure up until the end of the hearing. 129 For the withdrawal, a written 126

. According to Art. 36(2) of Law 3959, a decision of the HCC will lay down the form, the content, the procedural results, as well as the means of submission and registration of complaints.

127

. See HCC Decision 546/VII/2012, replacing the previously applicable HCC Decision 473B/VI/2010.

128

. Article 36(4)–(5) of Law 3959.

129

. Under the previously applicable Regulation (Art. 24), withdrawal of a complaint was allowed up until the end of the oral procedure.

40


statement, which is submitted at the General Registry of the Directorate General, is required. The withdrawal may also be submitted by an oral or written statement before the HCC, in cases where the oral hearing has been initiated. Such statement is submitted personally by the complainant, or by his/her attorney at law, who must have been duly authorized to this end by a specific proxy. 152. It is interesting to note that in cases where the statement of withdrawal is submitted after the service of summons to a hearing, the consent of the person against whom the complaint is lodged is required. 153. The submission of a statement of withdrawal does not suspend automatically the investigation of the case or the initiation of proceedings before the HCC.130 In cases where such statement is submitted after the assignment of the case to a Rapporteur (Case-Handler), the HCC decides on the continuation or not of the procedure initiated, whilst in cases where the statement is submitted prior to the assignment of a case to a Rapporteur (Case-Handler), the President of the HCC may by an act archive the case. 154. Revocation of the withdrawal is not allowed, and a withdrawal submitted on conditions or reservations is invalid. Finally, the HCC and its President are not prevented by the above provisions from reopening for investigation a case, which had been archived and not further pursued.131

6.2. The HCC Notice on Enforcement Priorities132 155. On 12 January 2010, the HCC published a Notice on the criteria, upon which it will exercise its discretion and set its priorities of action.133129 The HCC takes into account, among others, the fact that it is not obliged to assign the same degree of priority to all the complaints it receives, but it may give precedence to the public interest, as the grounds for examining a case in priority. Thus, the Plenary of the HCC, upon the recommendation of the Competition Directorate General, decides whether a case must be examined in priority, taking into account the potential consequences of the case in question to the operation of effective competition, according to the provisions of the then applicable Article 8(7) of Law 703/77. 156. The criteria upon which the priority of each case will be decided are the following: (1) The public interest of each specific case, which will be evaluated in the light of the extent of the potential consequences of a practice to the operation of effective competition, specifically in respect of the consumers. Priority will be assigned to self-initiated investigations or complaints concerning: (a) hardcore restrictions of competition (such as price-fixing, market allocation, limitation of production or sales) of nationwide nature, specifically in cases of horizontal cartels, taking into account also the power of the undertakings involved, the structure of the relevant market and the number of the consumers negatively affected; (b) relevant markets of products and services indispensable or very important for the Greek consumers, in cases where the anti-competitive practice may have a significant effect on the price increases and/or the quality of services, specifically in comparison with other Member States of the EU; (c) cases of anti-competitive practices with cumulative/multiplying effect, that is, practices applied by a number of undertakings, which are in a position to pass on the increased cost to intermediate undertakings or to the consumers.

130

. In case 580/VII/2013 the HCC rejected the arguments of the defendants that, in the context of its investigation of the case, it could not base itself on the content of complaints that had been withdrawn: recital 31 of the HCC Decision. In case 591/2014, following withdrawal of the complaint, the President of the HCC decided to proceed with an ex officio investigation: recital 29.

131

. Article 26 of the Regulation.

132

. A press release in English can be found at the website of the HCC.

133

. The legal basis for the adoption of the Notice was Art. 8b(2)(o) of Law 703/77, which provided that the HCC had the power to lay down the priorities of its action and decide on self-initiated investigations to be carried out by the Competition Directorate General.

41


(2) A case falling under the strategic objectives of the HCC in respect of relevant markets, sectors of economy, or potentially anti-competitive practices, as such objectives will be laid down and updated from time to time by the HCC itself. (3) The submission of an application under the leniency programme, in cases where all the relevant criteria are fulfilled. (4) The compliance with judgments of the Courts of Appeals and of the Council of State, which are delivered upon judicial actions against decisions of the HCC, or upon lawsuits against it. It is to be noted that in the new Notice adopted in July 2011 (see below), such criterion is not anymore included in the indicative list. However, the HCC mentions it in footnote 1, as apparently one of the criteria that will anyway take into account. (5) The need to adopt exceptional measures of a regulatory nature in a specific sector of the economy, on the basis of Article 5 of Law 703/77 (now Article 11 of Law 3959), provided that such measures are absolutely necessary, appropriate and in accordance with the principle of proportionality, in order to create conditions of effective competition. 157. In deciding the priority of examination to be assigned to a specific case, the following will also be necessarily taken into account: (1) The available resources of the HCC, both human and financial, in relation to the requirements of other pending cases or investigations of the HCC, with a view to achieving the most effective allocation of such resources, and also taking into account the possibility of proving the infringement of competition rules. (2) The need to clarify innovative or crucial legal issues with a view of ensuring legal certainty, and the consistent and coherent interpretation of the national applicable legislation for the protection of free competition vis-Ă -vis Community law, even in cases of anti-competitive practices with local effects only. (3) The confirmation that the HCC, when compared with other public authorities and the courts, is considered the best-placed authority to intervene and put an end to the infringement of competition rules in a specific case; respectively, the courts are considered to be the most competent to deal with private disputes arising from infringements of competition rules, since the rights of the parties affected may be protected by lodging requests for interim measures and civil law actions (including actions for damages). (4) The anticipated outcome of the intervention of the HCC, specifically in cases where the likelihood of immediate improvement of the operation of competition is visible. 158. It is to be noted, nevertheless, that according to the HCC itself, the aim of the Notice is to put forward indicatively the basic criteria, upon which the HCC will decide each time whether or not a case shall be examined in priority. However, each case has its own individual characteristics and will be evaluated on the basis of its peculiarities. 159. In May-June 2011, the HCC carried out a public consultation in respect of the definition of the criteria for setting priorities in the investigation of cases, and for setting the strategic objectives of the HCC.134 The criteria included in the text of the public consultation are the same with those included in the Notice, with one addition to the elements to be taken into account in setting priorities: the extent to which each complaint and the information submitted therein are complete. Indeed, the HCC adopted the new Notice in July 2011 by its Decision 525/VI/2011. It added one more indicative criterion: the advisory powers of the HCC, as these are laid down in Article 23 of Law 3959. Furthermore, the new Notice mentions (footnote 1) that the scope of mentioning the criteria is not to pre-empt the parties concerned, but instead to lay down, in an indicative manner, some main criteria, on the basis of which the HCC may decide each time whether or not to investigate a case in 134

. The public consultation is carried out on the basis of Art. 14(2)(n) of Law 3959, which provides the Plenary Session of the HCC with the power to lay down the criteria of setting priorities in the investigation of cases, and of strategic objectives, following a public consultation. The relevant decision takes specifically into account the public interest, the potential consequences on competition, the protection of consumer, the limitation periods of Art. 42 of Law 3959, as well as the result expected from the HCCâ€&#x;s intervention in a specific case. The application of criteria of setting investigation priorities and the pursuit of the strategic objectives must be dealt with in the report submitted annually to the Parliament pursuant to Art. 29 of Law 3959.

42


priority. It is self-evident for the HCC that each case is unique and it will be evaluated on the basis of its prevailing particular circumstances.

6.3. The ‘Point System’ Mechanism of the HCC 160. By its Decision 539/VII/2012, the HCC adopted in May 2012, pursuant to Article 14 (2)(o) of Law 3959, an internal management tool in the form of a „Point System‟ for the investigation of cases by the Directorate General. In particular, 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. Moreover, the Decision provides for the possibility of rejecting complaints that get a low priority ranking according to the Point System. 161. According to the HCC, the Point System aims at enhancing the efficiency of handling pending cases (both complaints and ex officio investigations), based on objective criteria, the ultimate objective being to ensure a more coherent and consistent application of national and EU competition rules. As the relevant provision of Law 3959 stipulates, the Point System is intended solely for internal use, as a management tool for the investigation of pending cases by the Directorate General (such that the ranking of each individual case at the investigation phase is neither made public, nor notified to the complainant). 135 Thus, the parties concerned do not have access to the relevant procedure, nor to any other documents related to the point system procedure. 162. By its unanimous Decision 616/2015 the HCC updated the “Point System” for the prioritization of pending cases by the Competition Directorate General, in the light of the experience gained during the past three years of its implementation. The HCC stated in the relevant press release that the updated Point System seeks to specify further and streamline the already existing criteria, particularly those referring to the nature and scope of the infringement, the relevant product or services market, the importance of the legal issue for purposes of establishing legal certainty and cooperation with other competition authorities within the European Competition Network, the probative value of the evidence on file data, as well as the existence of a leniency application. In addition, the updated Point System weighs in factors suggesting that the HCC should not pursue further a case on priority grounds, notably in respect of complaints which are subject (already at the time of their submission) to the five-year limitation period in accordance with Article 42 of the Law 3959, and which do not fall within the scope of the pertinent transitional provisions. 163. For the quantification of the criteria regarding priority investigation of certain cases based on the application of the point system, the details of which are laid down upon the discretion of the HCC, the latter, as an independent authority, takes specifically into account the following: –

the potential impact on the operation of efficient competition (considering, among others, the nature of the alleged infringement, the products and/or services concerned, as well as the extent of the investigated practices as the case may be);

the need to lay down a working schedule based on objective criteria, in order for the HCC to carry out its duties with efficiency, credibility, and increased speed;

the need to proceed with targeted action based on priority criteria laid down in advance, with the eventual objective of the improved handling of important distortions in the market, through the coherent and effective application of the free competition rules;

the fact that, within the framework of its above activities, the HCC is not obliged to assign the same degree of priority to the complaints it receives, but instead it may allocate precedence to the public interest as the criterion to investigate a case in priority;

the fact that the number of complaints lodged is very large, and also that their gravity and importance in respect of the public interest vary;

the fact that the human resources that the HCC has, or may have, at its disposal are unavoidably limited, and thus its objectively impossible and aimless the HCC to consume its efforts in the investigation of cases of a minor importance;

135

. See the relevant press releases of the HCC published at its website.

43


the fact that, for similar reasons, the continuation of the investigation of a case is not principally suitable, in cases where the HCC does not have the power to impose penalties due to time limitation;

the fact that the investigation of a complaint is not suitable, in cases where the HCC has already verified the alleged infringement and has imposed the relevant penalties, even for a different period of time, provided that the facts under investigation allow the HCC the opportunity to consider reasonably that the actions of the parties concerned has ceased, or are amended towards a direction, which resolves the competition issues arising;

the opportunity to monitor the results of the HCC‟s action and the appraisal of its operation, in a way that will enhance transparency and public control, with a view to achieving its constant improvement, pursuant to Article 22 of Law 3959.1363

6.3.1. Methodology137 164. According to the Decision of the HCC, the „Point System‟ is applicable to both complaints and selfinitiated investigations, and the relevant process is carried out and completed as soon as possible. During such process, each prioritization factor allocates integer point/s (0, 1, 2). The maximum marking that may be assigned to a case is ten points. The ranking order of the case, in cases this is deemed justified, may be revised by a decision of the Director General, which is submitted for approval to the first Plenary Meeting of the HCC convened after the adoption of such decision. The Plenary Meeting of the HCC may reject the decision of the Director General. 165. The HCC will not investigate cases, which are assigned, upon application of the Point System, a marking equal or below three points. Complaints assigned such low marking (equal or below 3) will be rejected by a decision of the President of the HCC, or the Vice-President upon authorization, following a report by the Competition Directorate General. The complaint rejection decisions based on low marking are reasoned and served to the complainant within thirty days from the date of their adoption.

6.3.2. Point System Criteria138 166. The table below shows the amended criteria applicable in assigning points to the cases before the HCC, and the weight of each of them.

CRITERIA

POINTS 1

b. Vertical cooperation† (i) Vertical cooperation concerning hardcore restrictions of competition‡ (ii) Vertical cooperation with a cumulative effect: cases of anticompetitive practices with cumulative – multiplier effect (more specifically, practices followed by more undertakings, which are in a position to transfer the increased prices to intermediate undertakings or to the consumers)

136

. See the Preamble to Point System Decision.

137

. Section II of the Point System Decision.

138

. Section III of the Point System Decision.

44

1


2

Products of crucial importance

3

Extent – Impact of practice

4

Leniency application

5

Proof value – degree of comprehensiveness of the evidence

6

Importance of legal issue – legal certainty cooperation

7

Factors which justify the termination of the investigation of the case (negative point assignment)

.

.

.

.

.

.

Cases concerning products and services market covering basic needs, of crucial importance, or of special interest for the public, taking additionally into account: (a) their weight in of the production of the Harmonized Index of Consumer Price (HICP), (b) the rate of their contribution to the Gross Domestic Product (GDP), and (c) the degree of elasticity of demand, as it is more specifically laid down in the relevant Annex to the Point System Decision Practices spanning across the Greek territory, or practices covering a significant part of the Greek territory or extending to another Member State of the EU Cases in which a leniency application, meeting the criteria of the Leniency Program, has been submitted Cases in which the available evidence is comprehensive, updated, and of significant proof value, which are likely to confirm the existence of infringement, and in general cases where the possibility of verifying an infringement is high Cases concerning clarification of novel or crucial legal issues, cases important for the achievement of coherence with EU case law regarding competition rules, aiming at legal certainty, or cases which have an impact on the cooperation with other members of the European Network of Competition Authorities (ECN), and/or have been prioritized for joint action within the framework of the ECN Cases where the HCC does not have the power to impose penalties due to time limitation (Articles 42 and 50(6) of Law 3959, and complaints in which the HCC has already verified the alleged infringement and has imposed the relevant penalties, even for a different period of time, provided that the facts under investigation allow the HCC the opportunity to consider reasonably that the actions of the parties concerned has ceased, or are amended towards a direction, which resolves the competition issues arising

1

2

2

1

2

−3

167. According to the final considerations of the Point System Decision, its provisions are applicable only in respect of the priority in the investigation of the cases by the Competition Directorate General. For the assignment of the cases to the Rapporteur (Case-Handler), the introduction of cases before the HCC and their investigation, the provisions of Article 15(1) are applicable. Cases concerning compliance by the HCC with a Courts‟ judgment, or referral back to the HCC (renvoi), or a request for a preliminary ruling to the Competition Directorate General by the HCC, are exempted from the application of the point system and investigated in priority, independent of the above criteria.

45


168. The point system procedure is not applicable in the following, specific in the law, procedures/cases, even if the human resources allocated for their investigation affect necessarily the speed of completion of the rest pending cases: (a) merger cases; (b) obviously unfounded complaints, and complaints falling outside the powers of the HCC, pursuant to Article 37 of Law 3959; (c) interim measures cases, pursuant to Article 25(5) of Law 3959; (d) exercise of the advisory powers of the HCC, pursuant to Article 23 of Law 3959; (e) regulatory Law 3959;

interventions

into

sectors

of

the

economy,

pursuant

to

Article

11

of

(f) investigations into sectors of the economy or types of agreements, pursuant to Article 40 of Law 3959; (g) cases concerning non-compliance of undertakings or associations of undertakings with structural or behavioral measures, or commitments imposed by a prior HCC decision; (h) cases of refusal to cooperate, or obstruction of the investigations of the HCC. The HCC applies a specific Point System Mechanism, with certain criteria used to assign points to the cases before the HCC, and decide thus the weight of each of them.

6.4. Fact-Finding Powers of the HCC 6.4.1. Collection of Information139 169. When it is necessary, in carrying out the duties assigned to the HCC by the provisions of Law 3959, the President of the HCC or the person authorized by him such as the Vice-President, Director General, Director or official of the Competition Directorate General, may request, in writing, information from undertakings, associations of undertakings, other natural or legal persons, or public or other authorities. The relevant written request140 shall mention the legal provisions, on which the request is founded, the aim of the request, the time limit set for the provision of the information requested, as well as the sanctions provided for in case of noncompliance with the obligation to provide information. The said time limit cannot be shorter than five days in cases of information regarding interim measures, in concentration cases, and in cases of decisions granting derogations from the obligation of suspension in merger cases; in all other cases it cannot be shorter than ten days. 170. The persons to whom the request is addressed are obliged to proceed with immediate, complete and accurate provision of the information requested. In cases where the information is requested from undertakings or associations of undertakings, the persons responsible according to Article 25(2) of Law 3959, and their officials in charge, are obliged to provide the information. 171. The persons who, under Article 212 of the Code of Criminal Proceedings, should not be examined in criminal proceedings, are not required to provide information, provided that they comply with the obligation of paragraph 3 of that same article. 141 However, the provisions of this paragraph do not affect the provisions regarding banking secrecy, which apparently are more specific and prevail.

139

. Article 38 of Law 3959.

140

. Unlike the situation provided for by Regulation 1/2003, there is no need for the HCC to adopt a decision requesting information: a simple written request, with specific content nevertheless, suffices. The same applies to the conduct of on-the-spot investigations, where a written authorization by the President, or the Director General or a Director of the Competition Directorate General, the last two duly authorized by the President, suffices.

141

. Article 212 of the Code of Criminal Proceedings refers to professional secrecy and provides, inter alia, that the criminal law procedure is annulled in cases in which, during the preliminary or the main proceedings, the legal and technical counsel and the public notaries have been examined, in respect of facts that have been entrusted to them by their clients. The legal and technical counsels decide, according to their conscience, whether and to what extent they should testify any further information and facts that came to their knowledge from the exercise

46


172. Moreover, without prejudice to the provisions of specific laws providing for the obligation of confidentiality, all public authorities and legal entities governed by public law are subject to the obligation to provide information and assist the HCC and its authorized officials in the performance of their duties. 173. In case of refusal, disobedience, or belated provision of the requested, as the case may be, information, or in case of provision of incorrect or incomplete information, without prejudice to the criminal sanctions provided for in Article 44 of Law 3959, the HCC: (a) in cases where undertakings or associations of undertakings, their directors and employees, as well as individuals or private legal entities are involved, imposes a fine, ranging from EUR 15,000 up to a maximum limit of 1% of the turnover, as this is calculated according to Article 10, on each of them and in respect of each infringement; (b) in cases where civil servants or officials of legal entities governed by public law are involved, the HCC refers the matter to the competent body, for initiation of disciplinary proceedings in respect of the above infringements, which constitute a disciplinary offence. 174. The HCC has not hesitated in the past to impose fines on undertakings that either did not provide the information requested, or provided incomplete information.142 However, as the Administrative Court of Appeals of Athens has ruled, and the Council of State confirmed,143 in order for the imposition of a fine as a result of delay in the provision of information to the HCC to be lawful, it is required that a specific request for the provision of information is made and served properly to the person concerned. The Council of State took the view that in the case in question none of the two letters (requests) of the Secretariat of the HCC to provide information could form the legal basis for the decision of the HCC imposing the fine, since the first one was not served, but only sent to the undertaking concerned by fax, whilst the second one was neither addressed nor served to the competent bodies of the undertaking concerned.

6.4.2. On-the-Spot Inspections 175. The investigation powers of the HCC in respect of establishing the infringement of national competition rules and/or Articles 101 and 102 TFEU are similar to those provided to the EU Commission by Regulation 1/2003. 176. More specifically, the authorized officials of the Competition Directorate General of the HCC exercise the powers of a tax investigator, and may, in particular: –

examine books of any type and category, data and other documents of the undertakings and associations of undertakings, including the electronic business mail of the owners, managers, managing directors (CEOs), administrators, and generally persons entrusted with the management or administration, as well as the

of their function. The same applies to civil servants, in cases in which a military, diplomatic, or concerning the national security, secret is concerned, unless the competent minister, upon request of the judicial authorities or any of the parties to the proceedings, or upon its own initiative, authorizes the civil servants accordingly. The prohibition applies even in cases where the person who entrusted the confidential facts and information waives the professional secrecy of them. According to para. 3, all the persons bound by professional secrecy are obliged to declare on oath to the person conducting the examination, that if they testify, they will infringe the professional secrecy obligation. A false statement to this end is punished with the sanctions provided for in the Criminal Code. 142

. See for example HCC Decisions 137/II/2000, 91/1997 and 248/III/2003. In this last case, the defendant undertaking alleged that the belated provision of information had been caused by the absence of the high-ranking officials of the company. However, the HCC rejected such allegations taking the view that the defendant undertaking was a large and well organized, by modern technology, company, with numerous and skilled personnel, which had been in a position to substitute effectively the absent officials, and provide the requested information timely. Likewise, the HCC, by its Decision 481/VI/2010, imposed a fine of 
EUR 20,000 for repeated failure to provide the requested information within the deadline set. The Commission rejected the argument that the delay resulted from the absence on leave of the legal counsel of the company, taking into account its size and the fact that it had, or should have, constant access to legal advice. Moreover, the Commission concluded that the repeated failure should be considered as a serious infringement, which ruled out the possibility of the delay being caused by pure negligence. It is interesting to note further that the HCC imposed the fine within the framework of a merger case, and despite the fact that there was no obligation to notify the merger. The HCC mentioned explicitly that a potential infringement of the obligation to provide information is evaluated and potentially punished independently from whether an infringement of the substantial competition rules also exists: recitals 38, and 40–43.

143

. Judgment 2015/2009.

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personnel of the undertaking or associations of undertakings, independently of the means used for their storage, and wherever these are kept, and take copies of, or extracts from, them; –

proceed with the confiscation of books, documents, and any other data, including the electronic means of storage and transfer of data, which constitute business information;

inspect and collect information and data of mobile terminals, portable devices, as well as their servers, in cooperation with the competent authorities as the case may be, which are located inside or outside the building premises of the undertaking or associations of undertakings under inspection;

carry out inspections at the offices and other premises and the means of transportation of the undertakings or associations of undertakings;

seal any business premises, books or documents, for the time period during which the inspection takes place, and to the extent that this is required;

carry out inspections at the houses of owners, managers, managing directors (CEOs), administrators, and generally, persons entrusted with the management or administration, as well as of the personnel of the undertakings or associations of undertakings, provided that there are reasonable grounds to believe that books or other documents, related to the undertaking and the subject-matter of the inspection, are kept there;

upon their discretion, take testimonies, on oath or unsworn, 144 and request from any representative or member of the staff of the undertaking or associations of undertakings to provide explanations, in respect of facts or documents related to the subject-matter and the purpose of the inspection, and record their answers.145

177. During the exercise of their on-the-spot inspection powers, the officials of the Competition Directorate General are obliged to comply with the provisions of Article 9 of the Constitution regarding the inviolability of home.146 178. The relevant authorization is provided in writing by the President of the Competition Commission or the person authorized by him such as the Vice-President, Director General, or Director of the Competition Directorate General, and includes the subject of the inspection and the consequences of impeding or obstructing it, or refusing to show the requested books, data and other documents, or to provide copies of, or extracts from, them. The person who carried out an inspection and/or investigation drafts a report, a copy of which is notified to the undertakings or association of undertakings concerned. In order to carry out an inspection and exercise the powers mentioned above, the President of the Commission or the authorized by him Vice-President, Director General, or Director of the Competition Directorate General, may request, in writing, the assistance of the public authorities and services, local authorities of first and second grade, and the legal entities governed by public law.147 179. In addition to the criminal sanctions provided for in Article 44 of the Law 3959, the HCC may impose by decision a fine ranging from EUR 15,000 up to a maximum limit of 1% of the annual turnover in the previous financial year (calculated according to Article 10 of Law 3959), on the undertakings or association of undertakings, or on those who by any means impede or obstruct the inspections by the authorized officials, as well as on the undertakings or association of undertakings, or on those who refuse to show the requested books, data and other documents and provide copies of, or extracts from, them;148 the fine is imposed on each of the 144

. Without prejudice, nevertheless, to the provisions of Art. 212 of the Code of Criminal Proceedings: for more details see supra n. 138.

145

. The procedure for the collection, storage, and processing of electronic files and mail, collected for the purposes of Law 3959, will be laid down by a decision of the HCC.

146

. According to Art. 9 of the Greek Constitution, the house of residence of each person is asylum. The private and family life of the person is inviolable. No investigation may be carried out in the absence of specific law provisions, laying down the time and the method, and always in the presence of a representative of the judicature. The persons infringing the previous provision will be punished for breach of the inviolability of home and for abuse of administrative authority and will be obliged to the full compensation of the injured party.

147

. Article 39(1)–(4) of Law 3959.

148

. According to the HCC, such obstruction/impediment consists in the introduction of obstacles and/or difficulties, by action or failure to act, by abstention or withholding, in order to invalidate or obstruct the inspection. Furthermore, it covers the refusal to submit to the inspection,

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persons mentioned above and for every single infringement. In the calculation of the fine the seriousness of the case under investigation, the gravity of the actions, and their influence in the outcome of the inspection are specifically taken into account. 180. The HCC, basing itself on previous EU and other Member States‟ case law and practice, considers, among other, obstruction or impediment the following: –

The refusal to submit to an inspection at the date and time the inspectors arrived at the offices under inspection, as well as the temporary or partial refusal to submit to the inspection. Similarly, the unjustified delay of initiation of the inspection, or a potential statement regarding the provision of explanations at a later stage, is perceived as refusal to submit to inspection.

The refusal to provide access to all or some of the offices. The refusal to provide access to one of the offices may be assessed as an absolute refusal to submit to inspection.

The delay in providing access for a long period of time.

The provision of incorrect and/or misleading information regarding the offices (location, arrangement, owner of the office, etc.).

The provision of incorrect and/or misleading information regarding documents (location, filing, draftsman, storage room, etc.). The inspector must have access to the entirety of the documents situated at the premises of an undertaking, irrespective of whether they can precisely indicate in advance which documents are subject to the investigation.

The failure to provide, or the partial provision, of documents, or the destruction, withholding, removal, or transfer of them, with a view to preventing the inspectors from identifying them. 149 Similarly, the refusal to provide documents for the reason that, in the opinion of the undertaking under inspection, they are irrelevant to the scope of the inspection, is assessed as a refusal to submit to the inspection, irrespective of whether the undertaking concerned eventually provides such documents at a later stage.

The provision of incorrect, incomplete and/or misleading information, upon a request for explanations during an on-the-spot inspection.

181. In view of the above, the HCC considers that the provision of any type, or for any issue, of incorrect, incomplete, or misleading information during an inspection by a person designated as the most competent for the provision of the said clarifications by the legal representative of the undertaking/association of undertakings concerned, covers not only the presentation of incorrect information as correct, but also the provision of any explanations, which run counter to the spirit and the scope of the inspections. The undertakings under inspection, within the framework of full submission to the inspection, are obliged to keep the entirety of their documents, as well as any other action, which obstructs the performance of the duties of the inspectors after compliance by the undertaking under inspection with the inspection order. Likewise, the refusal to show books, data and other documents, consists in the refusal to comply with a specific order, in order to prevent the inspector from obtaining the requested information. In addition, the refusal to provide copies or extracts consists in the refusal to comply with a specific order, in order to prevent the inspector from obtaining the requested information, and from further processing and evaluate such information. Thus, the concept of obstruction includes any action or omission, which at least harasses the inspectors in the exercise of their powers, as these are laid down in the law: HCC Decision 531/VI/2011, recital 24. In recital 25 of the same Decision, the HCC mentions indicatively cases of obstruction/impediment of inspections. It is to be noted that, upon appeal, the decision of the HCC was upheld by the Administrative Court of Appeals of Athens. By its Judgment 5923/2013, the Court upheld the assessment of the HCC, but reduced the fine imposed from €100,000 to €60,000, taking into account the type and gravity of the infringement and the range of the fines provided in the law: recital 12 of the Judgment. 149

. The HCC considered that the sole fact that certain critical documents had been transferred outside the internal network, upon a specific relevant order which had not been disputed, with a view to making them not accessible to the inspectors, and obstructing or preventing them from locating such documents during the on-the-spot inspection, proved the obstructive behaviour of the parties concerned, and consists in itself a serious infringement of the obligation to cooperate actively during the inspection. The removal of the documents from their initial location within the internal network and their subsequent transfer and storage at a different space, not accessible to the inspectors, outside the network, is considered by the HCC as falsification of such document, in view of the fact that their location is changed, even if it is presumed that their potential other elements and characteristics remain intact. Likewise, the transfer of documents from the network and their storage at the local hard disk located at another office in the undertaking under inspection, where the inspectors would not have searched under natural circumstances, and without any specific indication that at such premises documents related to the inspection might have been located, aimed in the HCC‟s opinion at the prevention, or at least the obstruction, of the team inspectors from locating such documents: HCC Decision 531/VI/2011, recitals 47–49.

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irrespective of their storage means, at their natural position, intact and accessible to the inspectors, up until the completion of the inspection, irrespective of whether or not such documents incorporated useful for the inspection information or not. Thus, in the HCC‟s view, for the verification of the infringement it is neither necessary to describe in detail or prove the impact of the specific obstructive behavior, nor the fact that such behavior affected adversely the substantive investigation of the case in question.150 182. Likewise, the HCC has verified that during an on-the-spot inspection, a large number of electronic files had been remotely deleted from the desktop computer of a high-ranking official and member of the BoD of the undertakings concerned, with the aim of concealing the said files from the inspection team. The fact that the computer had been tampered was later confirmed by the forensics expert assigned by the HCC to examine the confiscated hard disk of the computer in question, and to retrieve the deleted files.151 183. Furthermore, in cases of refusal or obstruction by any means of the authorized officials of the Competition Directorate General, or of the authorized officials of the European Commission, during the performance of their duties, the latter may request the assistance of the state attorney authorities as well as of any other competent state authority. Such assistance may be requested also on a precautionary basis. 152 184. Finally, Article 40 of Law 3959 introduces the power of the HCC to carry out investigations into sectors of the economy or types of agreements. In cases where the pricing or other circumstances create suspicions regarding potential restriction or distortion of competition, the HCC may carry out investigations into a specific sector of the economy, or specific types of agreements in various sectors, provided that they fall under its jurisdiction. Within the framework of such investigation, the HCC may request from undertakings or associations of undertakings the information necessary for the application of Articles 1 and 2, as well as to carry out any necessary to this end inspection. The HCC may specifically request the above undertakings or associations of undertakings to notify any agreement, decision or concerted practice. In order to exercise such power, the HCC decides in Plenary Session, whilst the provisions regarding requests for information, inspections, and confidentiality obligation, are equally applicable. The HCC may publish a report on the outcome of its investigation into specific sectors of the economy, or specific types of agreements in various sectors, and request from the interested parties to submit their comments.

6.5. The Procedure Resulting in the Adoption of the Final Decision of the HCC, in Respect of Infringements of Competition Rules 6.5.1. Introduction of a Case to the HCC in Order to Be Heard 185. First of all, it is to be mentioned that, according to Article 4 of Law 3959, in the proceedings before the HCC for the application of Articles 1 and 2 each party shall bear the burden of proof regarding its allegations. 153 Generally, in respect of the application of Articles 1 and 2 of Law 3959, the HCC follows the practice of the European Commission, as laid down in its decisions, notices, guidelines, etc., and the case law of the European Courts. This is made clear by the frequent references to the provisions of the Commission‟s „soft‟ law, as well as to the jurisprudence of the European Courts; the reasoning of the HCC decisions is based on them. 186. The President of the HCC, upon the recommendation of the Competition Directorate General, introduces before the HCC those of the cases of Articles 1, 2, and 11 of Law 3959 pending before the said 150

. HCC Decision 531/VI/2011, recitals 26–27.

151

. HCC Decision 559/VII/2013. The HCC imposed a reduced by 10% fine (EUR 72,000), taking into account the fact that the undertaking concerned cooperated fully at the later stages of the investigative procedure. The decision of the HCC was upheld by the Administrative Court of Appeals of Athens: Judgment 1538/2015.

152

. Article 39(5)–(6) of Law 3959. Article 39(5) has been amended by Art. 233(1) of Law 4072/2012 (Federal Gazette, 86/A/2012). The maximum amount of fine initially provided for was EUR 100,000.

153

. The inclusion of such provision was considered necessary in order to fill the relevant legislative gap, resulting from the fact that it was not possible to apply by analogy either Regulation 1/03, in view of the fact that it covers exclusively the procedural issues of the proceedings before the EU Commission, or the procedural provisions governing the proceedings before national courts, in view of the fact that the HCC is an independent authority: Justification Report, supra n. 12, at 2.

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Directorate General, which meet the criteria of investigation in priority, as these are laid down by the HCC pursuant to Article 14(2)(n)(i), taking into account the available human resources, and the number and progress of cases pending after previous random assignments of cases by draw.154 187. Each case immediately after the adoption of the decision of the HCC regarding its investigation in priority, as well as any case of: (a) concentration pursuant to Articles 5–10, (b) interim measures pursuant to Article 25(5), (c) imposition of fines for failure to provide information under Article 38(3), and/or failure to submit to an on-the-spot inspection under Article 39(5), is randomly assigned by draw to one of the Rapporteurs (Case-Handlers) by the Plenary of the HCC. In situations where the case is introduced before a Chamber, by the same decision of the Plenary, the regular members of the Commission, who will participate in the composition of the Chamber dealing with the case, are randomly appointed by draw, in which the Rapporteur (Case-Handler) of the case does not participate. The Chamber is normally presided by the President or the Vice-President. By a decision of the Plenary Session of the HCC, upon the recommendation of the President, the presidency of a Chamber may be delegated to one of the regular members, to whom the case has been randomly assigned by draw, other than the Rapporteur (Case-Handler) appointed for the specific case. The Rapporteur (Case-Handler) to whom a case is assigned, is assisted by employees of the Competition Directorate General appointed by the Director General upon a recommendation of the competent, as the case may be, Director of the Competition Directorate General. The number of the employees of the Competition Directorate General who are appointed in a said case depends on the gravity of the case.155 188. The cases pertaining to the application of Articles 1, 2, and 5–10, if it is not provided otherwise in Law 3959, are by all means introduced in four-member, together with the Rapporteur (Case-Handler), Chambers, except for the cases of major importance, which are introduced in the Plenary Session by a decision of the HCC. In all other circumstances, the cases are introduced directly in the Plenary Session of the HCC. The Competition Commission is convened in Plenary Session at least once a month.156 189. The HCC is legally convened in Plenary Session, in cases where the President, the Vice-President, the Rapporteur (Case-Handler) appointed for the specific case, and at least two members, regular or deputy, participate in the meeting, and the decisions are adopted by the majority of the persons present. The Rapporteur (Case-Handler) appointed for the specific case participates in the meetings and debates of the Plenary Session and the Chambers of the Competition Commission, without however having a voting right. In case of halved votes, the vote of the presiding person prevails (casting vote). 190. The Chambers of the HCC are legally convened in cases where the President, or the Vice-President, or any other presiding regular member, the Rapporteur (Case-Handler) appointed for the specific case, and two regular members in addition participate in the meeting. The employees of the Competition Directorate General handling the case under discussion and the Secretary of the Plenary Session or the Chamber participate both in the Plenary Session and each Chamber without having the right to vote. The Secretary of the Plenary Session or the Chamber is appointed on a case-by-case basis by the President of the HCC together with his/her deputy from the group of employees of the Competition Directorate General, composing the President‟s Office. 191. If for any reason, the lawful composition of a Chamber, to which a case has been introduced, is not possible, not even following substitution, or for a serious reason its operation is rendered impossible, the Plenary Session of the HCC takes over the case, or assigns it to another Chamber appointed by a decision pursuant to the provisions of the present Law. In such a case, with the exception of Article 8(6) regarding mergers, the deadlines provided by the Law are reset and calculated from the beginning. Members of the HCC that are unduly absent from three consecutive meetings, either of a Chamber in which they participate or of the Plenary Session, forfeit de jure their mandate. Such forfeiture is verified by a relevant decision of the President of the HCC. 157

154

. Article 15(1) of Law 3959, which further provides that from the date of entry into force of the bonus point system, the Competition Directorate General investigates the cases according to their ranking order resulting pursuant to the provisions of Art. 14(2)(o).

155

. Article 15(2)–(3) of Law 3959. See also Art. 12 of the Regulation.

156

. Article 15(6) of Law 3959.

157

. Article 15(7)–(8) of Law 3959.

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192. The Plenary and the Chambers of the HCC are convened in a meeting, following an invitation by the President of the HCC. The invitation mentions the date and the place of the meeting, as well as the items in the agenda.158 The Secretary of the Commission summons the parties to the meeting during which their case will be discussed, and registers the data (topic, place, date and time of the meeting of the Plenary or Chamber) in the electronic registry of the meetings, at the website of the HCC.159 193. The specific date of hearing as laid down in the summons cannot be rescheduled, save where the HCC decides so on its own initiative, or upon a duly reasoned request by an interested party invoking a serious reason, which is submitted prior to the hearing and only for one time. The hearings following rescheduling are scheduled to take place within a month from the first scheduled hearing.160 The hearing is inevitably rescheduled in cases where any of the parties has not been summoned lawfully, save where such party is present and does not raise any objection. In all the cases of rescheduling a hearing, the HCC sets a new hearing date, which is notified by any suitable means to the parties not present during the hearing. The parties, which had not been summoned lawfully, are summoned to the new hearing date, according to the provisions of Article 48(1) of Law 3959, only in cases where they had not been present during the rescheduled hearing. 161 194. The summons is written and is served to the parties at least forty-five days prior to the hearing, or fifteen days in cases of examination of notified concentrations, and respective requests for derogation, pursuant to Articles 8 and 9 of Law 3959.162 In respect of interim measures, the summons deadline is defined on a caseby-case basis by the President of the HCC. By a provision inserted in the new Regulation, it is now possible, for the parties summoned, personally, and for their legal representatives, by a specific to this end proxy, to give off the summons deadline, or request its abbreviation by a written request they submit to the Secretaries of the HCC, even prior to the service of the summons to them. In case of summons of more than one parties, a statement giving off the official deadline, or requesting its abbreviation, is required by all the parties concerned. Such request may be submitted jointly. The President of the HCC decides on the abbreviation request. The new hearing date, in case of giving off the summons deadline, or acceptance of a request for abbreviation of the deadline, is announced to the parties by any suitable means, and is posted at the website of the HCC. 195. In any case, provided that the summons has been carried out lawfully and timely, the case is discussed even without the presence of the persons summoned, save where the HCC considers that their presence is required. However, in case of omission, unduly, or untimely summons, the party that had not been present during the hearing of the case is entitled to submit to the HCC a request for the repetition of the hearing, within an exclusive deadline of fifteen days from the date the decision of the HCC has been served to such party. 163 196. The HCC, on its own initiative, or upon request by the Rapporteur (Case-Handler), the Directorate General, or the parties, may order the joint hearing or the separation of cases, which have been introduced before it, in cases where this is considered appropriate for any procedural or substantial reason. Likewise, at any stage of the procedure prior to the introduction of the case to the HCC, the Directorate General may investigate jointly, or

158

. The meeting is convened according to the provisions of Arts 3–4 of the Regulation. According to Art. 22(7) of the Regulation, where the case is heard before a Chamber, at any stage of the procedure, it may refer the case to the Plenary, if it verifies that an issue of major importance is raised.

159

. Article 13(1)–(2) of the Regulation. The cases introduced for hearing according to Art. 13 of the Regulation are mentioned in an exhibit prepared by the Secretary for each meeting of the HCC, who ensures that the exhibit is put up outside the meeting room on the date of the meeting. The procedure is not to be annulled in cases where the exhibit is not put up, or a specific case is not mentioned in the exhibit, or the order of hearing of the cases is changed according to the discretion of the HCC: Art. 17 of the Regulation.

160

. In HCC Decision 479/VI/2010, a second request to defer the hearing was not accepted by the HCC, since the time limit of one month within which the hearing had to be set was exhausted, and in addition, in the opinion of the HCC the request to defer the hearing was simply intending to create problems and obstruct the proceedings. Such problems have been resolved by the new Regulation, which provides that it is possible to request rescheduling only for one time, as already mentioned.

161

. Article 18 of the Regulation.

162

. Such possibility is to be welcomed, in view of the fact that in merger cases, in which the undertakings concerned normally seek for a speedy process of examination, the HCC had been bound in the past to respect the time limits laid down by the relevant provisions, which resulted in delays that could be detrimental to a successful completion of a business deal. The author is aware of at least one such situation.

163

. Article 13(4)–(7) of the Regulation. See also Art. 15(9) of Law 3959.

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separate, cases pending before it, in cases where this is considered appropriate for any procedural or substantial reason.164 197. In the past, the HCC had ordered the separation of the cases regarding horizontal and vertical anticompetitive practices, in view of the fact that there were companies involved only in the vertical practices, which for reasons of confidentiality should not be present during the hearing of the horizontal practices. Moreover, a company that faces charges of participation in horizontal anti-competitive practices should not be put in a position to have access to the vertical business relationships of its competitors and the details thereof, a situation that would have occurred had the cases been heard jointly and not separately. The HCC rejected objections based on an alleged lack of power to separate the cases, and it concluded that it enjoys discretion, either upon request by the Competition Directorate General or on its own initiative, for reasons of suitable organization of the hearing and protection of business secrets, to hear certain cases separately or jointly. 165

6.5.2. The Report (‘Statement of Objections’) of the Competition Directorate General 198. The first main stage of the hearing of a case is the report, a document similar to the statement of objections. The report is drafted and submitted to the Plenary or Chamber of the HCC by the Rapporteur (casehandler) to whom the case is assigned according to the applicable procedure described above. 166 199. The report must be submitted to the Plenary Session or to the respective Chamber, as the case may be, within 120 days from the date of assignment, without prejudice to the provisions of Articles 5–10 regarding mergers. The deadline may be extended by the President of the HCC, upon request of the Rapporteur (CaseHandler), for a period not exceeding sixty days. All decisions of the HCC must be adopted within twelve months from the date of assignment of the relevant case to the Rapporteur (Case-Handler), with the exception of the cases provided for in Articles 5–10 regarding mergers. In exceptional circumstances, or where the case requires further investigation, the HCC may extend the said deadline for up to two months the maximum. 167 200. The report is served to the parties concerned on the responsibility of the Secretaries of the HCC together with the summons to the oral hearing. 168 The report, being a document similar to the statement of objections of the EU Commission, may in fact be described as a procedural and preparatory document, intended solely for the undertakings against which the procedure is initiated with a view to enabling them to exercise effectively their rights to fair hearing.169 As the HCC has ruled in the past, the report is a simple preparatory and advisory opinion, and is not binding upon the HCC that enjoys decisive power and, on the basis of an evaluation of the facts of a case, may decide in a different way, providing, however, the reasons justifying the rejection of the opinion of the Secretariat.170 201. In practice, the report comprises a description of the facts of the case, as understood by the Rapporteur, the legal assessment, and the recommendation to the HCC, in respect of the further proceedings of the case, that is, addressing a recommendation, imposing a fine and taking into account aggravating or mitigating circumstances in the calculation of it, accepting or rejecting commitments, if applicable, etc. At this stage, both assessments, legal and factual, cannot but have apparently a purely provisional character, also in view of the fact that the undertakings concerned have not been heard.

164

. Article 21 of the Regulation.

165

. HCC Decision 369/V/2007, recitals 39–40. The decision was upheld by the Administrative Court of Appeals of Athens (Judgment 3915/2014, which, however, reduced the amount of fine imposed) and by the Council of State (Judgments 2007/2013 and 294/2014).

166

. It is to be noted that in the past, drafting the report had been a task of the Competition Directorate General, whilst, under the current situation, the Rapporteur (case-handler) who is in charge of each case is also a member of the plenary of the HCC.

167

. Article 15(4)-(5) of Law 3959.

168

. Article 14(1) of the Regulation.

169

. See Joined Cases 142/84 and 156/84 BAT & Reynolds v. Commission [1987] ECR 4487, recital 14.

170

. HCC Decision 248/III/2003. Such statement may be considered valid even after the latest amendment of Law 703/77 and the significant changes it brought about.

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202. According to the HCC, it is not necessary for the report to include a recommendation as to the amount of fines to be imposed. It suffices that the necessary elements, such as the gravity and duration of the infringement, as well as the potential reasons for reduction of or immunity from fines, are mentioned. Such elements, in combination with the relevant provisions of the competition legislation and the Notice of the HCC on the calculation of fines, ignorance of which cannot be accepted and excused, will allow the undertakings concerned to calculate approximately the fines to be imposed, and to prepare their defence. 171 203. As regards the content of the report and its formal conditions, the practice of the EU Commission regarding the statement of objections, as it is formulated also in accordance with the case law of the European Courts and the principle of respect of the rights of defence, is also applicable by the HCC in respect of the report. Thus, generally, the HCC sends a separate copy of the report to each of the undertakings concerned, if these are more than one, after having deleted confidential data and information contained therein. Likewise, it sends a supplementary report, in cases where in its final decision the HCC intends to deal with allegations for infringement of the competition rules that have not been included in the initial report. Such practice has now been included in the Regulation, which provides that each party receives a copy of the version of the report that concerns itself, from which the information considered to be secret, pursuant to the relevant provision of the Regulation, is omitted.172 204. Likewise, during the process of drafting the report, the number of its versions, based on the number of the parties concerned and the information, documents, and parts of documents considered confidential, is defined. The number of versions and the recipients of each separate version are specifically mentioned in the report. Each version bears a relevant annotation regarding the recipient of it. In each version the information, which is considered confidential in respect of such specific recipient, is omitted. 173

6.5.3. The Right of Access to the HCC File 6.5.3.1.

The General Obligation to Respect Confidentiality

205. Information collected on the basis of application of the provisions of Law 3959 may be used only for the purpose sought by the request for information, the investigation or the hearing. 174 207. The members of the HCC and their deputies are bound by the obligation to respect confidentiality and professional secrecy. 175 Likewise, the officials of the Competition Directorate General of the HCC, and the officials of public authorities and services, local authorities of first and second grade, and legal entities governed by public law, to whom the authorization pursuant to Article 26(2)–(4) is provided, and who, in view of their mission, have access to confidential information of undertakings, associations of undertakings, or other natural or legal persons, that are not concerned by the application of Law 3959, are obliged to respect the confidentiality of such information.176 208. The confidential information related to the application of Law 3959 constitutes part of the administrative files. The employees exercising the powers provided for in the relevant provisions of the Law are obliged to preserve the confidentiality of such information, without prejudice to the provisions of Article 37(2) of the Code of Criminal Proceedings, according to which they are obliged to inform immediately the competent state attorney about any information they receive during the performance of their duties, relating to punishable acts, which are investigated ex officio. The confidential information constitutes part of the file, which is 171

. HCC Decision 369/V/2007, recitals 41–44. Such approach has been confirmed by the Administrative Court of Appeals of Athens in Judgment 1682/2009, recital 16. The Court considered that on the basis of the information included in the proposal, the provisions of the then applicable Law 703/77, and the Notice of the HCC on the calculation of fines, the undertaking concerned was in a position to calculate with high proximity the fines to be eventually imposed on it for the alleged infringements, and prepare its defence accordingly. The Council of State upheld, upon appeal, in its entirety the judgment of the Administrative Court of Appeals of Athens: Judgment 2774/2014.

172

. Article 14(1) of the Regulation.

173

. Article 15(5) of the Regulation.

174

. Article 41(1) of Law 3959.

175

. Article 12(7) of Law 3959.

176

. Article 41(2) of Law 3959.

54


submitted to the Administrative Court of Appeals of Athens and to the Council of State, maintaining their confidential nature. For such purpose, the above information is submitted in a separate part of the administrative file, bearing the indication „confidential information‟. A competent judicial clerk servant ensures that the parties will not have access to the confidential, in respect of each of them, parts of the file, unless such access is considered necessary for the protection of their utmost interest, and provided permission is granted, to the extent necessary, upon their request, by the court hearing the case.177 209. Infringement of the obligation to respect confidentiality, as laid down above, may result in: (i) imprisonment of the liable person for at least three months, pursuant to Article 252 of the Criminal Code, (ii) the imposition of a pecuniary sanction ranging from EUR 1,000 to EUR 10,000, (iii) the initiation of disciplinary proceedings, since the infringement of the confidentiality obligation constitutes a disciplinary offence. The President and the members of the HCC, in case of infringement of the confidentiality obligation, face the risk of imprisonment for at least three months, whilst the maximum limit of the pecuniary sanction imposed on them is EUR 15,000, and by the same decision they are forfeited from their post at the HCC. The above sanctions are also imposed in case of infringement of the obligation to respect confidentiality: (i) on any person, to whom the HCC assigns the carrying out of a study on its behalf, or participates in a working group set up by the HCC, provided that the relevant contract includes a confidentiality obligation clause, (ii) on the lawyers who are members of the Legal Office of the HCC, and (iii) on the subcontractors of the person, which has been assigned with the carrying out of the study, provided that they have been aware of the confidentiality obligation clause. 178

6.5.3.2.

The Persons Entitled to Have Access to the HCC File

210. According to the new Regulation, the information related to a specific case collected by the Directorate General during the investigation of the case constitutes part of the file of that case. In case of joint investigation or joint hearing of cases, the relevant files are merged. 211. The persons against which the procedure before the HCC has been initiated, or those who notified a concentration, have a right of access to the non-confidential information of the file,179 after the service of the summons to the hearing. Exceptionally, prior to the service of the summons, it is possible to provide to the persons, against which complaints have been lodged, a copy of the non-confidential version of the body of the complaint, upon their written request, and on condition that all the necessary authorization documents of their legal representatives and/o authorized attorneys at law, who submit the request, are submitted, provided, however, that the investigation of the case by the Directorate General is not hindered.180 212. Likewise, the complainants, that is, the natural or legal persons that lodged complaints, enjoy the right of access to the non-confidential information of the file also after the service of the summons. 181 However, complainants may not claim right of access to the case file to the same extent with that recognized for the parties 177

. Article 41(3) of Law 3959, which further provides that the conditions, the extent, the exemptions, the time, and the procedure for access to the administrative file by undertakings and associations of undertakings, against which the procedure before the HCC has been initiated, as well as by the natural or legal persons who have lodged a complaint, the procedure of use and publication of the previously mentioned confidential information by the Competition Directorate General, as well as any other relevant detail, shall be laid down by the Regulation governing the Operation and Administration of the Competition Commission, by derogation from the general provisions regarding the right of access to documents. On such legal basis, Art. 15 of the Regulation has been adopted.

178

. Article 41(4)-(6) of Law 3959.

179

. As the HCC points out, such right is distinct from the provision of documents in the context of other proceedings and from the general right of access to documents under Art. 10(3) of the Hellenic Constitution, Art. 5 of the Code of Administrative Procedure, L. 3448/2006 on the „Further use of public sector information and the regulation of matters falling within the jurisdiction of the Ministry of Interior, Public Administration and Decentralization‟ and Art. 16 of L. 1599/1986 „Relations between citizens and the State, introduction of a new type of ID card and other provisions‟, which pursue a different purpose and are subject to different criteria and exceptions on grounds of public or private interest: recital 3 of the Confidentiality Notice.

180

. Article 15(7) of the Regulation. In HCC Decision 520/VI/2011, the HCC granted, upon request by the defendant, access to the content of the complaint, prior to the service of the summons, but refused access to other documents that constituted evidence, supplementary information and data, and/or answers to questions posed by the Competition Directorate General. Therefore, the HCC rejected an objection related to a potential infringement of the right to a fair hearing, since the defendant had enough information in its possession in order to understand the structure and the basic points of the content of the complaint, which is evidenced by the fact that the defendant proposed commitments prior to the service of the statement of objections: recitals 14–17. Such approach of the HCC has been confirmed on appeal by the Administrative Court of Athens: Judgment 869/2013.

181

. Article 15(8) of the Regulation. See also HCC Decisions 309/V/2006, and 482/VI/2010, recital 11.

55


against which the complaint is submitted. The complainantsâ€&#x; access to confidential information is restricted to what is absolutely necessary in order to ensure the protection of public interest, in the sense of protecting competition.182 Third parties do not have any right of access to the files of cases pending before the HCC. It is interesting to note, in this respect, that the HCC considers a company that has lodged a complaint, a third party in respect of the data and information gathered during a self-initiated investigation in the sector of the economy concerned by the complaint; thus, access to such data and information had been denied. 183 In all other respects, the provisions of the Code of Administrative Procedure 184are equally applicable.185 213. It is to be noted that there should be a specific request for access to the file by the persons concerned. If there is no such request, a potential failure to have access will not constitute a flaw in the procedure leading to the adoption of the HCC decision.186 214. Thus, the new Regulation provides explicitly that the right of access to the information in the file is exercised upon written request by the interested party: (a) by inspection of the information at the premises of the Directorate General, or (b) by provision of copies, in hard copy or electronic form, at the expense of the parties requesting access.187

6.5.3.3. Confidential Documents and Information, and Confidentiality Requests in Respect of Data Submitted or Collected by the HCC in the Course of Investigations 215. Similar to the situation at European level, the Regulation provides that, in all cases of submission or collection of information pursuant to the provisions of Law 3959, the natural or legal persons, who submit information or from whom information is collected, within the relevant deadline to be set by the Directorate General or the Rapporteur (Case-Handler), as the case may be, described by a reasoned request for confidential treatment the information, documents and parts of documents, which contain confidential data, and submit them in a separate non-confidential version. In case of disagreement regarding the request for confidential treatment, the Directorate General or the Rapporteur (Case-Handler) notifies in writing to the applicant the intention of the authority to disclose the information, puts forward the relevant reasons justifying such intention, and sets a deadline, within which the applicant may submit his arguments in writing. In cases where, following submission of such arguments, the disagreement persists, the President of the HCC decides on the classification of the document or information.188 216. However, in cases where the use of documents, which contain confidential information of undertakings, is considered necessary by the Rapporteur (Case-Handler) in the process of drafting the report (Statement of Objections), in order to corroborate the existence of an infringement, such information is included in the report, without a requirement to follow the procedure described above, and from that time they drop their confidential nature.189 182

. Confidentiality Notice, recital 5.

183

. HCC Decision 442/V/2009, 11–12 of the electronic version published at the website of the HCC.

184

. Article 5 of Law 2690/1999 (Code of Administrative Procedure) provides for the right of any person to have access to administrative documents, or to documents kept at the premises of the administrative authorities. However, such right is also subject to the protection of private and family life, to the need to respect confidentiality, and without prejudice to the potential existence of intellectual or industrial property rights. Access is granted either at the premises of the administrative authority involved, or by the reproduction of a copy of the document, save in cases where reproduction may cause damages to the original. The expenses of reproduction burden the applicant, save where otherwise provided for. The deadline for the provision of the requested access or for the notification of a reasoned rejection of the request is twenty days.

185

. Article 15(9) of the Regulation.

186

. HCC Decision 527/VI/2011, recital 19, with reference to the Judgments of the Administrative Court of Appeals of Athens 1682/2009, recital 14, and 3694/2008, recital 10. Similarly, in Judgment 1616/2009, the Court ruled that the President of the HCC had been right in refusing access to the confidential documents in the file, in view of the fact that the applicant requested access to all confidential documents, without specifying which of these documents were absolutely necessary in order to organize his defence (recital 16).

187

. Article 15(10) of the Regulation.

188

. Article 15(1)–(3) of the Regulation.

189

. Article 15(6) of the Regulation.

56


217. The information, documents and parts of documents, for which a reasoned request for confidential treatment has not been submitted, or which have not been submitted in a separate non-confidential version, are considered to be non-confidential. Nevertheless, the Directorate General or the Rapporteur (Case-Handler), as the case may be, may exceptionally and upon their discretion classify as secret information, documents and parts of documents thereof.190 218. It must, however, be noted that the Regulation provides for the power of the President of the HCC to grant, upon request by the persons against which the procedure before the HCC has been initiated, or by the persons who have notified a concentration, and by a reasoned decision, total or partial access to documents, that contain confidential data of undertakings, in cases where such access is deemed to be absolutely necessary for the exercise of their rights of defence. In such cases, access is granted only to the person, the access of which to such confidential data has been deemed absolutely necessary for the exercise of its rights of defence. 191 219. The answered questionnaires and the testimonies on oath, which are produced in relation to initiated proceedings, are accessible only in respect of their content, according to the provisions regarding classified information. However, such answered questionnaires and testimonies are not accessible in respect of the identity of the persons who answered or testified on oath, taking specifically into account the risk of retaliatory measures.192 220. Similarly to the European provisions, access is not granted to the internal documents (such as notes, drafts, or other working papers and communication) of the Competition Directorate General, the European Commission and other National Competition Authorities, as well as to the correspondence between the Competition Directorate General and other departments or Competition Authorities, and all documents and information exchanged for the application of Articles 11 and 14 of Regulation (EC) 1/2003 (including any observations made by the European Commission or other competition authorities within the European Competition Network on a particular case), since these are considered to be confidential information. 193 221. However, in respect of the latter category, i.e., correspondence between the HCC and other public authorities or services or other competition authorities or the European Commission, or between those authorities, in certain exceptional circumstances, access is granted to such documents after deletion of any business secrets or other confidential information as referred to herein. Prior to granting access to the case file, the HCC shall request the Authority which has provided the document to identify the aforementioned business secrets or other confidential information. By way of an exception, the above documents shall be accessible, in a way similar to documents obtained from private parties, in particular if and to the extent that those documents contain allegations against the parties which the HCC must examine, or form part of the evidence of the investigation. According to the Confidentiality Notice of the HCC, these considerations apply, in particular, (a) in the context of exchange and use, as evidence, for the purpose of applying Articles 101 and 102 TFEU, of documents and information, between the European Commission and EU Member Statesâ€&#x; competition authorities according to Article 12 of Regulation (EC) 1/2003, and (b) in the context of collection of information and evidence from public or other authorities for the exercise of HCCâ€&#x;s powers under Article 38 of Law 3959.194 222. In a case before the HCC, the complainant alleged that all the corroborating documents submitted and invoked by the defendant undertakings did not fall within the ambit of confidential information, and, therefore, the HCC should provide the complainant with certified copies of all the documents and all the affidavits in the file.

190

. Article 15(4) of the Regulation.

191

. Article 15(7) of the Regulation. See for example HCC Decision 309/V/2006. In that case, the defendant undertaking requested full access to the information and data contained in the file of the case, as referred to in the report of the Competition Directorate General, in order to prepare its defence for the hearing before the HCC, regarding compliance with a prior decision of the HCC and payment of the periodic penalty payment. The HCC accepted the request and granted full access to the file of the case, whilst it rejected a similar request by the complainant by reference to the case law of the European Courts.

192

. Article 15(12) of the Regulation.

193

. Article 15(11) of the Regulation. See HCC Decision 327/V/2007, recital 7, and Confidentiality Notice, recitals 9(a) and (b).

194

. Confidentiality Notice, recital 9(c).

57


223. The HCC rejected such a request as legally unfounded, and decided to provide the complainant with access to only a part of the requested documents. First of all, it noted that the Greek legislative provision on confidentiality and access to the file is an almost accurate transposition of the European provisions. Therefore, the HCC applies the same principles and reasoning with the European Commission, and follows the case law of the European Courts on the matter. The specific right of access to the file in competition law proceedings, in the way it is laid down in the relevant provision of the Regulation, has the specific purpose of ensuring the confidential nature of business cooperation among competing undertakings, and differs from the general right of access of the citizens to documents, which is provided for in Article 10(3) of the Constitution, in Article 5 of the Code of Administrative Proceedings, and in Article 16 of Law 1599/1986. 224. The HCC, also on the basis of the European legislation and case law, which it follows and applies directly, has the obligation to secure the business secrets of the undertakings, irrespective of whether they are applicants, defendants or third parties. In any case, confidential information and trade secrets are excluded from notification to the complainant or any other party in the proceedings. The protection of business secrets has an equal value with the rights of defence of the undertakings under investigation, and the HCC evaluates the situation on a case-by-case basis and balances the one towards the other. According to the HCC, the relevant provision of the Regulation, regarding the non-disclosure of the identity of the persons providing answered questionnaires and testimonies on oath (affidavits), is absolutely essential for the protection of witnesses during the stage of collection of information from the Competition Directorate General. In case of disclosure of the identity of a witness at an early stage and prior to the adoption of the Decision of the Competition Commission, such witness would be exposed to pressure from the undertakings participating in the allegedly prohibited business practice, and therefore important witnesses would be deterred from testifying before the HCC. As a result, in cases where the above situation occurs, within the framework of the evaluation and balancing process, confidentiality should be preserved.195 225. Likewise, the HCC considers that the information and data submitted within the framework of the leniency programme remain confidential for all the undertakings concerned, irrespective of whether the application to participate has been accepted or rejected by the HCC. If their confidential nature were to be repealed, the scope of the leniency programme would be compromised, since it consists not only in facilitating the authority in respect of the verification of infringements, but also in protecting undertakings or witnesses, which inform the Competition Commission about anti-competitive practices.196 In such respect, it is interesting to note that the HCC made clear that the recent Confidentiality Notice refers, with regard to time-frame, to the handling of confidential information during the period that the case is pending before the Commission and until the conclusion of the procedure by adoption of a decision or otherwise; with regard to the subject-matter, the Notice refers to the information and evidence which form part of the case file. With regard to the information collected in the course of commitments procedure, the relevant Commission decision is applicable. Similarly, with regard to the leniency procedure and the treatment which is appropriate for the material collected in the context of the leniency procedure, due to the need to avoid any disclosure of information, which could undermine the HCC‟s Leniency Programme, the relevant provisions of the Leniency Programme are applicable. 197 226. The recent Confidentiality Notice adopted by the HCC aligns fully with the relevant EU applicable provisions and practice, and makes specific and extensive reference to the EU legislative framework and the EU Courts case law. On such basis, The HCC makes specific reference to two categories of confidential information/documents: (a) Professional and business secrets, i.e., the documents or parts of documents containing business secrets. Professional/business secrets deserve special protection. They are confidential information in relation to an undertaking‟s business activity, of which not only disclosure to the public but also mere transmission to a person other than the one who provided the information might seriously harm the latter‟s interests. Examples of information that may qualify as professional/business secrets include: technical and/or financial 195

. HCC Decision 437/V/2009, 5–6 of the electronic version published at the website of the HCC. The decision of the HCC has been, nevertheless, annulled by Judgment 458/2011. Thus, see also HCC Decision 527/VI/2011, recital 18, where the HCC referred to the confirmation of such approach by the Court in Judgment 1682/2009. The decision was upheld by the Administrative Court of Appeals of Athens by its Judgments 6413/2014 and 1474/2014 (with a reduction of the level of the fine imposed on the undertaking concerned).

196

. HCC Decision 369/V/2007, recital 68, confirmed, upon appeal, by the Court in Judgment 1682/2009.

197

. Confidentiality Notice, recital 5, and footnote 10.

58


information relating to an undertaking‟s know-how, methods of assessing costs, production secrets and processes, supply sources, quantities produced and sold, market shares, customer and distributor lists, marketing plans, cost and price structure and sales strategy. (b) Other confidential information. This category includes information other than professional and business secrets, which may be considered as confidential, insofar as its disclosure would significantly harm a person or undertaking. Depending on the specific circumstances of each case, this may apply to information provided by third parties about undertakings which are able to place considerable economic or commercial pressure on their competitors or on their trading partners, customers or suppliers. Therefore, the notion of „other confidential information‟ may include information that would enable the parties to identify complainants or other third parties who reasonably wish to remain anonymous and any information which, while being, in principle, related to a business activity, are also linked to personal data or private life information of the natural person concerned. The category of other confidential information also includes military secrets, as well as any correspondence concerning classification of information as confidential, as it is generally so closely linked to confidential information itself that its disclosure would be equivalent to disclosing confidential information.198 227. In relation to these two categories, the HCC clarifies in the Notice that the assessment on whether a piece of information constitutes a professional/business secret or other confidential information, shall be made on a case-by-case basis. For any information to qualify as confidential, it is necessary that such information be known only to a limited number of persons, while its disclosure might seriously harm the person who has provided that information or third parties. Moreover, the interests that may be harmed by disclosure must be worthy of protection. The assessment on whether disclosure of such information is required shall be made on the basis of the Rules of Internal Procedure and the criteria set out therein. 199 228. Thus, as a matter of general principle of law, assessment of the confidential nature of information requires balancing the requirements for due exercise of the right of defence against the need to safeguard the confidentiality of certain information, as well as any legal interests prohibiting their disclosure. Efficient and consistent application of national and European rules on competition requires that the disclosure of evidence does not unjustifiably restrict the efficient enforcement of competition law by competition authorities. Moreover, the qualification of information as confidential does not prevent the HCC from disclosing and using information necessary to prove an infringement of Articles 1 and 2 of Law 3959 or Articles 101 and 102 TFEU. Where business secrets and confidential information are necessary to prove an infringement or for the purpose of applying competition rules in general, the HCC must assess for each individual document whether the need to disclose is greater than the harm which might result from disclosure.200 229. All other information and documents submitted or collected by undertakings which are not covered by the above definitions of „business secrets‟ and „other confidential information‟, and in particular information already publicly available, according to the Confidentiality Notice of the HCC, will not be considered confidential. For a piece of information to lose its confidential nature, it is sufficient for it to be available to specialist circles (even small ones) or capable of being inferred from publicly available information. 230. By way of example, the following type of information shall not, unless duly justified, be considered confidential: (a) data related to the respondent undertaking/undertaking concerned or the corporate group to which it belongs (such as, foreseeable price increases, dates of implementation of such increases, customer names, credit duration), which is already known outside the undertaking (in case of a group of undertakings, outside the group) or outside the association to which it has been communicated by that undertaking. An example in this respect is an undertaking‟s announcement of its commercial policy, such as by sending letters and circulars to its wholesalers or distribution network; (b) the names and positions of managers and employees of the companies involved in an infringement; (c) general terms of transactions, as well as any similar contractual clauses included in agreements signed with a number of counterparties on the basis of standard agreements/framework or pilot contracts (such as terms applicable to a distribution/franchise network); (d) corporate acts and information subject to publication by law; (e) protocol numbers of administrative documents; 198

. Confidentiality Notice, recital 9(d) and (e).

199

. Confidentiality Notice, recital 10.

200

. Confidentiality Notice, recital 4.

59


(f) legal remedies, appeals and any judicial documents in general, as well as extra-judicial statements against the litigants concerned, also including similar documents submitted to the courts of other states or of the EU, as well as unpublished court decisions and minutes of court hearings against the litigants concerned; (g) notices and minutes of public or private tenders and other information about the tenderers after completion of the relevant evaluation process by the competent authority, provided that the applicant for access to such information is one of the tenderers; (h) circulars issued by public organizations and bodies, periodicals and other printed material published by associations of undertakings distributed to their members, information available on the Internet; (i) information that has lost its commercial importance, for instance due to the passage of time. As a general rule, information that is more than five years old is no longer confidential. In such case, relevant information is considered confidential only if it is established, on specific grounds, that despite its historical nature, it continues to be an essential element of the commercial position of the undertaking concerned; (j) ranking of the various competitors in the relevant market, based on their respective market shares; (k) data from and about another undertaking which has been provided by or collected from the respondent/ investigated undertaking (e.g., price announcements, sales data, etc.). Exceptionally, however, data received pursuant to a confidentiality contract or a contract including a confidentiality clause, may be considered confidential; (l) findings of a study commissioned in connection with initiated proceedings, together with the general conditions and methodology of the study, provided that the protection of any intellectual property rights is safeguarded.201 231. In respect of the way to submit confidentiality claims, the Confidentiality Notice 202199 specifically provides that the parties are required to: (a) justify their confidentiality claim in relation to each individual document or part of a document, statement or part of a statement, (b) provide the HCC with a non-confidential version of their submissions/documents in which information regarded confidential is redacted, (c) provide a meaningful non-confidential concise description of each piece of redacted information, (d) identify the undertakings with regard to which such information/documents are to be considered confidential. 232. The parties shall provide the HCC with a separate non-confidential version of the documents, in which information regarded as confidential is redacted and replaced by the indication [CONFIDENTIAL]. The nonconfidential version of documents must mirror the confidential version of documents also in format. For the sake of administrative efficiency, the HCC may ask the submitting parties to provide first a draft of non-confidential version of the submissions/documents in which the information considered confidential is highlighted in a way that it remains legible. In that case, the final non-confidential version in which any confidential information is blackened-out will only be submitted after the HCC has provisionally accepted the confidentiality claims thereof. 233. In general, confidentiality claims for the entire document will not be accepted, since the HCC is of the opinion that it is normally possible to protect confidential information with limited redactions. As a minimum, titles and headings of documents/tables/pictures should not be deleted. However, if the submitting parties claim confidentiality for specific sections/paragraphs of a document, they are requested to provide a non-confidential version of the entire document, which must mirror the confidential version thereof in format. In that case, in addition to the indication [CONFIDENTIAL] referred to above, the submitting parties shall also provide a meaningful non-confidential summary description of each section/paragraph which has been redacted. 234. For easier reference, the undertaking providing the information must also submit a non-confidential description of the information for which it claims a confidentiality treatment, in such a way as to outline the specific meaning of that information (i.e., regarding a sales strategy, time period and region concerned). The nonconfidential version and the concise descriptions replacing the confidential parts of documents, in general, should provide all relevant details in order to enable the parties having access to them to assess if the information deleted is likely to be relevant for their defence. Entirely blank pages will not be accepted by the HCC. 235. Where market shares are deleted, they must be replaced by a range of 5%, up to market shares of 15%, and beyond that, by a range of 10% as follows: [0%–5%], [5%–10%], [10%–15%], [15%–25%] and so on, up to [95%–100%]. 236. It is important to note that the HCC makes clear that standard confidentiality stamps with the indication [BUSINESS SECRETS] or [CONFIDENTIAL] or other similar indication and automatic disclaimers in e-mails,

201

. Confidentiality Notice, recitals 11–12.

202

. Confidentiality Notice, recitals 13–22.

60


are not regarded as a reasoned request for confidential treatment. Such documents will be made accessible, unless confidentiality has been claimed in accordance with all the criteria set out herein. 237. Furthermore, the parties must ensure that the properties of documents submitted electronically do not disclose any confidential information. Non-confidential versions of submissions/documents, descriptions and summaries may become accessible to the parties involved in the above proceedings and, therefore, they must not contain business secrets or confidential information. 238. In addition, the parties must properly substantiate their claim for confidential treatment of information, explaining: why it constitutes business secrets or other confidential information and how this information could cause serious harm to the submitting undertaking or a third natural or legal person. They are also required to provide the HCC with all relevant details in order to enable the Authority to balance: (a) the need to preserve (other) partiesâ€&#x; rights of defence by granting as mush access as possible to the file, and (b) the need to protect confidential information and the identity of the person submitting the information or of any third party. 239. In case of non-compliance with the procedure set out in the Confidentiality Notice, the information, documents and parts of documents for which a reasoned confidentiality claim has not been submitted, or they have not been submitted in a separate non-confidential version, will be considered by the HCC as nonconfidential, and it will be assumed that the submitting undertaking has no objections to the disclosure of such information. 240. In respect of objections regarding legal professional privilege related to documents collected pursuant to the relevant provisions of Law 3959, and in case of dispute between the person raising the objection and the Directorate General or the Rapporteur (Case-Handler), as the case may be, the new Regulation provides that the President of the Commission has the power to decide.203 241. Finally, the documents, to which access is provided, may be used only for the purposes of judicial or administrative procedures of application of the provisions of Law 3959 and Articles 101 and 102 TFEU. 204

6.5.4. Replies by the Parties Concerned to the Allegations Contained in the Report (Statement of Objections) 6.5.4.1.

Written Reply

242. The undertakingâ€&#x;s concerned reply to the HCCâ€&#x;s report is first written and then, if considered necessary, also oral. The parties are obliged, on pain of inadmissibility, to submit written pleadings to the Secretaries of the HCC within twenty days prior to the hearing at the latest,205 in hard copy and in electronic form. The written pleadings and the attached documents are submitted in two copies each, whilst the separate non-confidential versions of them in as many copies as the parties involved in the case. The separate nonconfidential version of the written pleadings is also submitted in electronic form. By their written pleadings, the parties: (i) put forward their views; (ii) declare whether they wish to exercise the right to an oral hearing; (iii) announce the name of their legal representative; (iv) announce the number of witnesses, declaring also the topic on which they will be examined, and providing specific reasons for the necessity of their examination before the HCC. The number of witnesses should not exceed three for each litigant party. The HCC retains in any case the discretion to limit the number of the proposed witnesses by a decision, which is adopted during the hearing of the case.206 In addition, the HCC considers that such limitation in the number of witnesses is addressed to the parties concerned and not to itself. The approach taken by the HCC is that it is at its discretion to call as many witnesses as it considers expedient in order to reach a decision on the case heard. 207 Likewise, the HCC considers that it is 203

. Article 15(13) of the Regulation.

204

. Article 15(14) of the Regulation.

205

. Under the previously applicable Regulation the deadline was thirty days.

206

. This has happened in HCC Decision 327/V/2007: recital 10. The Decision has been upheld by both the Court of Appeals (3695/2008) and the Council of State (3858/2014).

207

. HCC Decision 395/V/2008, p. 12 of the electronic version. It is doubtful whether such approach is compatible with the principle of equality of arms; however, the Administrative Court of Appeals of Athens confirmed upon appeal the Decision of the HCC by its Judgment 2587/2010.

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at its discretion to allow the participation in the oral hearing of parties that have not expressed such intention by their written submission.208 243. Within the same deadline the parties are obliged, on pain of inadmissibility, to produce all the means of evidence and the procedural documents they invoke. In any case, the HCC retains the discretion to decide the conduct of an oral hearing. 244. The submission of the written pleadings is made to the Secretaries of the HCC, who attest by an annotation the date of their submission. Each party has the right to take copies of the views of the other party and of the relevant documents that the latter has submitted, naturally without prejudice to the provisions regarding confidentiality. The rejoinder to the arguments of the other parties takes place by a supplement to the written pleadings, which must have been submitted ten days prior to the hearing of the case at the latest. 209 In cases of interim measures and giving off or abbreviation of the summons deadline upon request by the parties, the deadlines for the submission of written pleadings, and for the submission of rejoinder by the parties, are defined on a case-by-case basis by the President of the HCC, are announced to the parties by any suitable means, and are posted at the website of the Commission. The parties summoned, personally, and their legal representatives, by a specific to this end proxy, provided that a serious reason occur, have the right to request, by a written and sufficiently reasoned request, an extension of the above-mentioned deadlines for the submission of written pleadings and rejoinder. The President of the Commission decides on the request. In cases where the request is accepted, the deadlines, set for the submission of written pleadings and/or rejoinder, are announced to the parties by any suitable means.210 245. Furthermore, upon request by the parties, the President or the acting President may allow the submission of supplementary written pleadings after the hearing, which must be submitted in hard copy and also in electronic form. The supplementary written pleadings and the documents attached to it must be submitted in two copies each, whilst the separate non-confidential versions of them in as many copies as the parties of the case. The supplementary written pleadings are submitted to the Secretaries of the Commission within three working days at the latest from the day the service of the minutes to the parties takes place. The service of the minutes to the parties falls under the responsibility of the Secretaries of the Commission, unless the President or the acting President decides differently. 211

6.5.4.2.

Oral Hearing212

246. As mentioned above, the parties concerned mention in their written pleadings whether they wish to exercise their right to an oral hearing. The oral hearing is not required in cases where all the parties declare in their written pleadings, or by another document delivered to the Secretaries of the Commission the day before the hearing of the case at the latest, that they will not be represented during the scheduled in the summons date of hearing. In such case, the hearing is concluded simply by the announcement of the case, and then the assembly for the adoption of the decision on the case takes place.213

6.5.4.2.1.

REPRESENTATION AT THE ORAL HEARING

247. During the announcement of the case, the parties declare if they are represented in person, together with, or by, an attorney at law. The authorization of the attorneys at law takes place either by an oral statement of the parties or their legal representative, which is registered in the minutes, during the first meeting on the case, or by a specific proxy drafted by a notary public. If until the first hearing, the documents officially authorizing representation have not been submitted, or the submitted ones are not complete, the HCC proceeds with the 208

. HCC Decision 413/V/2008, recital 1; HCC Decision 482/VI/2010, recitals 2–4.

209

. It is to be noted that a rejoinder is not provided for during the oral hearing, and the HCC considers that it is not obliged to provide such opportunity to the parties, since they have the right to submit their arguments and their views on the oral hearing in the written rejoinder. The HCC may, nevertheless, request for clarifications by the parties or the authorized attorneys, both during the oral proceedings and at the end of it, if this is considered expedient for the clarification of certain issues: See HCC Decision 327/V/2007, recital 9.

210

. Article 14(2)–(6) of the Regulation.

211

. Article 25 of the Regulation.

212

. Article 20(2)–(6) of the Regulation.

213

. Article 22(1) of the Regulation.

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hearing, and sets a reasonable deadline for their submission. The duly authorized attorney at law is also the person authorized to officially receive any documents, provided that his/her residence and professional establishment are located in Athens. A potential replacement of such person is notified in writing to the Secretaries of the HCC. For the preparatory acts in the procedure prior to the hearing, the power of attorney is considered to exist, provided that the official authorization of the attorney follows, or the interested party or his/her legal representative appears in the hearing, and declares that the performance of such actions is approved.214 248. Likewise, if during the assembly of the HCC prior to the adoption of the final decision it is verified that the documents regarding authorization or proxy have been submitted but suffer from inconsistencies, the President or the acting President of the Plenary or the Chamber invites by an act the person appearing as the legal representative or proxy to supplement the documents, and sets a deadline to this end. In cases where the legal representative or proxy of the party is not authorized eventually, the HCC upon its discretion may not take into account the procedural actions carried out by such person, and reject for such reason, an argument, objection or judicial action submitted by such person. Finally, it is to be noted that any amendment in the authorization and proxy, which will have occurred during the period from the date of submission to the HCC of the complaint, or notification, or request, up until the adoption and service of the decision of the HCC, or of another act adopted pursuant to the provisions of Law 3959, must be notified immediately to the Secretary of the HCC by the interested party. Otherwise, the service of documents by the HCC continues to be carried out validly to the persons and addresses that have already been declared. 215

6.5.4.2.2.

THE PROCEDURE AT THE ORAL HEARING

249. During the oral hearing, the procedure and discussion is directed by the President or the acting President, who allows and disallows a person to speak, poses questions to the Rapporteur (Case-Handler) to whom the case in question has been assigned, the officials of the Directorate General assisting the Rapporteur (Case-Handler) and the parties, the witnesses, the legal representatives, the representatives and their judicial proxies, asks for clarifications by the same persons, and examines the witnesses and the experts. 250. After the announcement of the case, the Rapporteur (Case-Handler) appointed for the specific case takes the stage, and briefly presents his/her report. Following the presentation of the report, the parties have the right to speak in the order defined by the President or the acting President. They present briefly their arguments and replies to the arguments of the rest of the parties. The party against whom the proceedings of the HCC have been initiated has the right to speak last. 251. The Members of the HCC, upon the permission of the President, pose questions to the parties or to their legal representatives, and to the witnesses. The parties, upon the permission of the President, may also pose questions to the legal representatives and the witnesses of the other parties. The officials of the Directorate General assisting the Rapporteur (Case-Handler) may pose questions, provide or request clarifications, during the above procedure, not themselves, nevertheless, but through the President or the acting President. 216 252. The HCC, at any stage during the procedure of the oral hearing as well as after its conclusion, may request the parties to submit statements on oath or fresh information on a specific issue. To this end, it sets a deadline, which must be shorter than the deadline for the submission of supplementary written pleadings. The parties have the right, without prejudice to the confidentiality provisions, to have access to any document submitted herewith.217

214

. Article 19(1)–(5) of the Regulation.

215

. Article 19(6)–(8) of the Regulation.

216

. It is interesting to note that in its Judgment 125/2009, the second Chamber of the Council of State took the view, among others, that an official of the Secretariat of the Directorate General, assisting the Rapporteur in carrying out its duties, did not have the right to ask questions to the parties and to the witnesses. The fact that such questions were allowed constituted an infringement of a substantial procedural requirement, and thus the judgment of the Administrative Court of Appeals, which took the opposite view, should be annulled (recital 7). However, given the importance of the issues at stake, the Chamber referred the case to the Plenary, where it is still pending.

217

. Article 22(2)–(6) of the Regulation.

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6.5.4.2.2.1.

WITNESSES: EXPERTS – TRANSLATORS

253. The new Regulation includes specific provisions regarding the participation in the procedures of witnesses, experts, and translators. 254. Persons examined before the HCC as witnesses, prior to their examination, must take the oath, pursuant to the provision of Article 408 of the Code of Civil Law Proceedings. Each witness is examined orally and separately from the others. However, the cross-examination of a witness with another witness or with a party to the proceedings is explicitly allowed by the Regulation. 255. The persons mentioned in Article 212 of the Code of Criminal Proceedings218 are excluded from being examined as witnesses. Such exclusion may be lifted but it has to be specifically allowed both by the person entrusted the relevant matter to the persons mentioned therein, and also by the person concerned by the respective secret. Each party to the proceedings has the right to request the exclusion of a witness, if a reason of exclusion occurs in respect of such witness, on the basis of the provisions of Article 212. In such case, such party to the proceedings that requests exclusion has to prove that the invoked reason occurs indeed. 219 256. Likewise, in cases where the HCC considers that issues are raised, the examination of which calls for specific knowledge, it may order expert investigations and appoints, upon its discretion, one or more experts to carry out such investigations. The experts take an oath before the HCC that they will carry out their duties conscientiously, objectively, and confidentially. In all other respects, the stipulations regarding the witness‟ oath are followed. The reasons of exclusion applicable to the Members of the Commission are equally applicable to the experts. 257. In order to carry out their duties, the experts may: (a) have access to the information in the file, including the classified ones, and take copies of it in hard copy or electronic form, and (b) request from the HCC potential information of a supplementary nature. The HCC retains the right, during the expert investigation, to provide instructions regarding the way it is carried out. The parties may propose experts for examination in their written pleadings; those experts may be examined as witnesses.220 258. For the parties, the witnesses, and the experts that do not have knowledge of the Greek language, a translator is appointed by the President or the acting President, who takes an oath before the HCC, that he/she will exercise his/her duty faithfully, and translate accurately whatever is mentioned. The reasons of exclusion applicable to the Members of the Commission are equally applicable to the translators. The cost of translation burdens the interested party. Finally, in cases where any of the parties to the proceedings or the witnesses is deaf, mute, or both, communication with such person takes place in writing. The answers provided are signed by the President or the acting President and are included, together with the respective questions, in the minutes of the hearing. If such persons are not capable of answering in writing, a suitable translator is appointed, pursuant to the relevant provisions of the Regulation.221

6.5.4.2.3.

HEARING OF THIRD PARTIES

259. The President, the acting President, the Plenary or the Chamber of the HCC, before which the case is heard, may summon to the hearing any third party, 222 including the parties mentioned below, as a witness, in cases where it is considered that their participation contributes to the investigation of the case. 260. Any third party, natural or legal person, may submit written pleadings in any case heard by the HCC, at least fifteen days prior to the hearing. The written pleadings are submitted to the Secretaries of the HCC, constitute an element of the file and are served, on the responsibility of the person submitting them, to the 218

. See above for more details on the content of such provision.

219

. Article 20(1) of the Regulation.

220

. Article 20(2)–(3) and (6) of the Regulation.

221

. Article 20(4)–(5) of the Regulation.

222

. According to the Administrative Court of Appeals, „third parties‟ for the purposes of this specific provision of the Regulation, are any parties not being proposed as witnesses by the parties concerned, and not the parties that are not related to the latter. Thus, the Court considered that the HCC had any right to call as witness the President of the BoD, the legal representative, and an employee of one of the parties concerned by an antitrust investigation: Judgment 1682/2009, recital 10.

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interested parties, at least ten days prior to the hearing of the case, and in cases of concentration of undertakings five days in advance, on penalty otherwise of inadmissibility. 223 261. It results from the wording of the above provision, or at least this is the way the HCC interprets the provision, that, in order to participate in the oral hearing, any interested third party must have submitted timely written pleadings on the case. The HCC has refused to accept the participation in the oral hearing of third parties that have not submitted written pleadings at all. 262. Furthermore, it has been judged, both by the HCC and the Administrative Court of Appeals, that, in order for a party to submit written pleadings and participate in the proceedings before the HCC, it must show that it has a legitimate interest. A „legitimate interest‟ is considered to exist in cases where the final decision on the case that is being heard affects, favourably or adversely, the interests or rights of a third party, which are recognized by the public or private law, and more specifically, in case where either the decision to be adopted by the HCC will constitute case law for the third party, or it will be enforceable in respect of that third party, or even without being case law for that third party it will have unintentional, favourable or adverse consequences in its legal relationships.224 263. On such basis, an explicit provision has now been inserted in the new Regulation, according to which in cases where the third party submitting the written pleadings can prove the existence of legitimate interest, it may request its presence during the oral hearing. During the first meeting on the hearing of the case, the HCC decides on the request. In cases where, upon its discretion, considers that the participation of the third party contributes to the verification of truth, it may, on a case-by-case basis, allow such third party: (a) to pose questions to the parties and to the other participants in the procedure, and/or (b) to receive the minutes of the procedure, with a view to submitting written pleadings at the end of it, and/or (c) to receive copies of the non-confidential versions of the written pleadings of the parties.225

6.5.4.2.4.

SUSPENSION OF THE HEARING OF A CASE

264. The HCC decides the suspension of the hearing, for a period that cannot exceed, save exceptional circumstances, a period of two months, if it considers that for the handling of the issues raised, additional information needs to be provided or important witnesses, or other persons should be summoned to be heard. The suspended hearing continues in a next meeting of the HCC with the participation of the members of the last composition.226

6.5.4.2.5.

MINUTES OF THE ORAL HEARING

265. According to the new Regulation, the minutes of the meetings of the HCC are kept by the Secretary. In order exclusively to assist the job of the Secretaries of the HCC, electronic means may be used for the registration of the whole or part of the oral procedure and specifically of the testimonies of the witnesses. After the compilation and signature of the minutes, all electronic means are destroyed. The minutes are signed by the President, or the acting President, and the Secretary. 227 Copies of the relevant minutes are issued by the Secretary of the Commission upon a request by the interested parties.228

223

. Article 23(1)–(3) of the Regulation.

224

. HCC Decision 443/V/2009, 10 of the electronic version published at the website of the HCC.

225

. Article 23(4)–(5) of the Regulation.

226

. Article 22 of the Regulation. In the HCC Decision 520/VI/2011, the HCC rejected an objection, according to which it was obliged to interrupt the hearing awaiting the submission of a supplementary report regarding the definition of the relevant market. In the HCC‟s view, it is absolutely reasonable and expected the parties to submit financial information and/or studies to corroborate their argumentation in the hearing of the cases before the Commission, but this does not by any means consist in grounds to interrupt the hearing in order to proceed with the submission of a supplementary report. This holds true all the more in cases where the definition of the relevant market has been based in qualitative and quantitative criteria, which have been taken into account in the report, and on which the parties concerned had the opportunity to thoroughly present their views, both in the written submissions and during the oral hearing procedure before the Commission: recitals 49–51.

227

. Article 29 of the Regulation, which also provides that the minutes of the assemblies of the HCC are kept briefly, and contain the general data of the meeting, the additional issues discussed and the result of the discussion.

228

. Article 31(4) of the Regulation.

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266. Unfortunately, the wording of the article of the new Regulation followed exactly the one of the previously applicable Regulation. It provides neither for an explicit obligation of the HCC to keep an electronic record of the hearing, nor for the right of the parties participating in the hearing to request a copy of the potential recording, as is the case at an EU level under Article 14(8) of Regulation 773/2004, or of the compiled written minutes prepared by the Secretariat of the HCC. On such basis, the HCC considered in the past that it was not obliged to make available to the parties, participating in the oral hearing of the case, the recording of the proceedings, in cases where it was available. Such a situation is to be considered as a breach of the principle of the rights of defence, especially in complicated and lengthy proceedings, where the parties are not in a position to keep accurate handwritten notes of the oral procedure and all the issues raised and arguments to be rebutted. Such notes cannot be considered in any case sufficient, as they cannot be absolutely complete and thorough, in order to provide thus to the interested parties the possibility of exercising appropriately and fully the rights of defence, and more specifically the right of rebutting the oral allegations of the HCC and/or of other participating parties.229 267. Likewise, Law 3959 provides that, as long as the procedure before the Plenary Session or a Chamber of the Competition Commission takes place, and particularly during the examination of witnesses, minutes are kept. The deadline for the submission of the final written pleadings by the participants in the oral hearing starts counting from the date following notification of the minutes to the parties, at the care of the Secretaries of the Commission. In any case, the minutes are notified to the parties within one month from the date of completion of the hearing of the case.230

6.5.5. The Content of the Final Decision Adopted by the HCC upon Completion of the Hearing 268. In cases where the HCC, following an investigation carried out upon its own initiative, or upon complaint, or upon request submitted by the Minister of Economy, Competitiveness, and Shipping, verifies that an infringement of Articles 1, 2 and 11 of Law 3959, or of Articles 101 and 102 TFEU, occurs, it may by decision:231 

address recommendations;

compel the undertakings or associations of undertakings concerned to terminate such infringement, and to refrain from it in the future;

impose behavioral measures or measures of a structural nature, which must be necessary and appropriate for the termination of the infringement, and proportionate to the

type and gravity of it. The imposition of measures of a structural nature is authorized only in cases where, either equally effective behavioural measures do not exist, or all the equally effective behavioural measures are potentially more burdensome than the measures of a structural nature; 232

229

. In the HCC Decision 428/V/2009, p. 16 of the electronic version published at the website of the HCC, the Commission rejected a request to provide the defendant with a text version of the electronically kept minutes of the hearing. The justification, rather unacceptable from a rights of defence and equality of arms point of view, had been that the meetings had been extremely lengthy and it would take too much time for the HCC to prepare text versions of the minutes; moreover, it should also be taken into account, in the HCC‟s opinion, that the defendant had been continuously present throughout the whole oral hearing proceedings, and the written submission had been thorough, complete and reached the HCC within the deadline provided by it. The Decision of the HCC was upheld by both the Administrative Court of Appeals of Athens (Judgment 1779/2011) and the Council of State (Judgments 1016/2014, 1015/2014, 1014/2014, and 1013/2014).

230

. Article 15(10) of Law 3959.

231

. Article 25(1) of Law 3959.

232

. Behavioural measures, coupled with a high periodic penalty payment of EUR 10,000, have been imposed by the HCC Decision 327/V/2007, because it had been considered that without them, the defendant undertakings would not be in a position to terminate the infringement and to refrain from them in the future. It is to be noted that in that case, the HCC did not apply the provisions of the Notice on the calculation of fines, since the hearing commenced prior to the adoption of the Notice and the defendants did not have enough time to prepare their defence on the basis of the Notice, whilst the fine according to the new method of calculation turned out to be extremely higher than the one resulting from the old method of calculation: recital 101.

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impose a fine on the undertakings or associations of undertakings that have committed the infringement, or do not comply with a commitment accepted by themselves, which has become binding, by a decision of the HCC;

threaten to impose a fine, or a periodic penalty payment, or both, in case of persisting or recurring infringement;

impose the threatened fine, or periodic penalty payment, or both, in cases where a decision of the HCC verifies the persistence or recurrence of the infringement, or the failure to comply with a commitment accepted by the undertakings or association of undertakings, which has become binding, by a decision of the HCC. It is interesting to mention here that the HCC has taken the view that it enjoys discretion, and in cases where it intends to impose fines for continuation or repetition of a verified infringement, it includes a relevant provision in the initial decision verifying the infringement. Omission to include such a provision results in lack of power to impose fines for continuation/repetition, in case the latter occur, and according to the HCC it should be perceived as an intention on the part of the HCC not to avail itself of such power, and not as a simple omission that can be rectified ex post by interpretation.233 Such an approach is to be strongly criticized, and it is doubtful whether it will potentially stand before the Courts. It is difficult to understand how the HCC will be in a position to justify in which cases and on what criteria it will opt for not punishing the continuation/repetition of an infringement of the competition rules. It is hereby submitted that, in order to serve the public interest of the establishment of competition, the HCC on its own initiative or upon application by an interested party, should always and at any stage be able to avail itself of all the powers available to it under Law 3959 in order to terminate a verified infringement. Therefore, such approach of the HCC should be amended, as it cannot be deemed in compliance with the spirit of Law 3959.

6.5.5.1. Fines – Limitation Periods 6.5.5.1.1. FINES: PERIODIC PENALTY PAYMENTS 269. The fine imposed, or threatened, may be equal to 10% (used to be 15% under Law 703/77) of the aggregate turnover of the undertaking during the financial year, in which the infringement ceased to exist, or the financial year previous to the adoption of the decision in question, in cases where the infringement persists up until the adoption of the decision. In cases where a group of companies is involved, the aggregate turnover of the group is taken into account in setting the amount of fine. The gravity, the duration, the geographical extent of the infringement, the duration and the nature of participation in the infringement of the undertaking concerned, as well as the financial benefit obtained, shall be taken into account in setting the amount of fine. Very important for the deterrent effect of the fines to be imposed is the new provision introduced by Law 3959 according to which in cases where it is possible to calculate the figure of the financial benefit of the undertaking concerned resulting from the infringement, the sum of the fine imposed cannot be less than such financial benefit, even in cases where it exceeds the above threshold of 10%.234 The periodic penalty payment may reach the amount of EUR 10,000 for each day of non-compliance with the decision and from the date laid down by the decision.235 270. Back in 2006, the HCC adopted by decision Guidelines regarding the method of calculation of fines, with a view to establishing transparency and impartiality, in the exercise of its discretion in setting the amount of fines, ensuring at the same time compliance with the principle of proportionality. In the HCC‟s view, the fine must be seen not only as a punishment for a specific infringement, but also as a deterrence of recurring infringements. Thus, its level must have a deterrent effect not only for the undertakings concerned by the relevant decision of the HCC, but also for all third parties, which may potentially intend to engage in an infringing behavior.236 For the calculation of the fine to be imposed in cases of infringement of the competition rules, the HCC applies the following method: first, it sets the basic amount of fine for each undertaking of association of 233

. HCC Decision 356/V/2007, recitals 12–13.

234

. Article 25(2)(a) of Law 3959. It is to be noted that such provision had already been introduced by the Guidelines of the HCC regarding the calculation of fines, adopted in 2006 (recital 17). Law 3959 went even further by providing the possibility of exceeding the maximum threshold.

235

. Article 25(2)(b) of Law 3959.

236

. Recitals 3 and 4 of the Notice with guidelines on the method of setting fines (hereinafter „Fines Guidelines‟), published at the website of the HCC (Greek version).

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undertakings, correlated to the gravity and duration of the infringement; then, in cases where it considers it is opportune, it increases or decreases the basic amount of the fine, taking into account any potential mitigating or aggravating circumstances that may occur. The basic amount of the fine results as follows: (a) the rate of the fine is set at a maximum of 30% of the turnover of the undertaking from products or services related with the verified infringement, on the basis of the its gravity, 237 and (b) such rate is calculated on the annual turnover for each year of the infringement, or on a monthly basis for infringement with duration less than a year. In cases of association of undertakings, the above rate is calculated on the aggregate annual turnover of the undertakings-members of the association.238 271. Regarding the gravity of the infringement, the HCC will take particularly into account its type, the anticompetitive effects produced, or threatened to be produced in the relevant market, the specific weight of each undertaking in the infringement, the financial benefit achieved or sought, the market power of the undertakings concerned in the relevant market, and the extent of the geographical market. The most serious infringements of competition, such as, indicatively, the horizontal restrictions regarding price-fixing, market allocation, limitations of production, as well as some forms of abuse of dominance, will be punished strictly and exemplarily, thus with the rate of the fines being at the maximum levels provided for. Regarding the duration, the period during which the anti-competitive practice took place in practice, will be taken into account. In cases where the HCC does not have credible financial information in order to calculate the basic amount of the fine for the total period of the infringement, for the period that the information is missing it will take into account the highest annual turnover achieved in the duration of the infringement.239 272. Moreover, the basic amount of the fine may be increased in cases where the following aggravating circumstances occur: the undertaking concerned (a) has committed in the past a verified infringement of the competition rules; if the infringement is the same or similar, the fine may be increased by up to 100%; (b) refused to cooperate, or attempted to hinder the Competition Directorate General during the investigation of the case in question; (c) had assumed a leading role in the infringing practice(s), or had encouraged other undertakings to adopt such practice(s). The HCC takes specifically into account actions by the undertaking concerned with a view to coercing other undertakings to participate in the infringement, or retaliatory measures against other undertakings in order to put in place the infringing practices. 240 273. Likewise, the basic amount of the fine may be reduced in cases where the following mitigating circumstance occur: the undertaking concerned (a) submits evidence proving that it has terminated the infringement right after the first in line intervention of the Competition Directorate General (i.e., on-the-spot inspection); (b) proves that it ended up in committing the infringement due to negligence; (c) submits evidence proving that its involvement in the infringement had been particularly limited, or that in practice it raised 241 objections in a clear and substantial manner against the implementation of the infringing practice; (d) cooperated effectively with the HCC, beyond the scope of application of the HCC Leniency Programme. 274. In cases where both aggravating and mitigating circumstances occur, the basic amount of the fine is first increased according to the judgment of the HCC on the basis of the aggravating circumstances, and then the resulting amount is reduced on the basis of the mitigating circumstances. Moreover, in order to ensure the deterrence of the fine, the HCC may take a diverging approach from the method introduced by the Notice, whenever the peculiarities of a specific case call for. Finally, in the calculation of the amount of the fine, the

237

. It is interesting to mention the approach taken by the HCC, basing itself on the EU Commission Guidelines for the calculation of fines, and on Judgment 2094/2007 of the Administrative Court of Appeals of Athens: In a case, for instance, where within the framework of vertical agreements among the supplier of a specific product and several retailers, it is verified that some of them contain terms infringing the competition rules, the calculation of the fine to be imposed is based on the turnover of the supplier in the relevant market of the product concerned by the vertical agreements in question, and not on the basis of the turnover of the transactions of the said supplier with the undertakings involved in the agreements including the anti-competitive terms: See the relevant Notice of the HCC, adopted in 2009, published at the website of the HCC (Greek version).

238

. Recitals 5–9 of the Fines Guidelines.

239

. Recitals 10–13 of the Fines Guidelines.

240

. Recital 14 of the Fines Guidelines.

241

. Recital 15 of the Fines Guidelines.

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HCC may take into account the risk that the financial viability of the undertaking concerned being exposed to an irreparable damage by the level of the fine to be imposed.242 275. The undertakings or associations of undertakings concerned are obliged within fifteen days from the date of service of the decision, by which the infringement or potential infringement is verified and its termination is ordered, to inform the President of the HCC about the actions they have taken, or are going to take, in order to put an end to the infringement. The same obligation burdens the undertakings and associations of undertakings, in cases of compliance with a court judgment, delivered upon appeal against a decision of the HCC. 243 276. Furthermore, the HCC may by decision impose a fine on undertakings or associations of undertakings, in case of non-compliance with a previous decision of it. Such fine may amount up to 10% of the aggregate turnover of the undertaking in the current or the preceding to the infringement financial year. 244 277. It should be noted that in cases where the HCC imposes a fine for more than one infringement of the competition rules, it should lay down in its decision specifically the amount of fine imposed for each of the infringements. The Court referred back to the HCC a case where the total amount of fine was imposed for infringements resulting both from delays in the provision of information and from providing incomplete and misleading information, ordering it to lay down specifically which part of the fine corresponds to each of the infringements.245

6.5.5.1.2.

LIABLE NATURAL PERSONS: INDEPENDENT FINES ON EACH OF THEM

278. The persons responsible for compliance with the provisions of Articles 1, 2, 5–10, and 11(5) and (6) of Law 3959, as well as of Articles 101 and 102 TFEU, are: 

in cases of sole proprietorship undertakings, the businessmen themselves;

in cases of companies governed by the Civil Code and commercial undertakings (limited and unlimited partnerships) and joint ventures, their administrators and all the partners bearing unlimited liability;

in cases of companies limited by shares, the members of the Board of Directors (BoDs) and the persons authorized to execute the relevant decisions.

279. The appointment of another person responsible for the infringement of competition rules is prohibited and is not valid. In case of resolutions of the collegiate bodies of the company adopted by majority, only the persons voted in favor of adoption are liable. The above natural persons are liable with their personal assets in total, together with the legal person, for the payment of the amount of fine. The Competition Commission may also impose on the above natural persons, following a prior hearing, an independent fine ranging from EUR 200,000 to EUR 2,000,000, in cases where it has been proven that they participated in preparatory actions, in the organization, or in the implementation of an illegal behavior of the company. Their position in the company, and the degree of their participation in the illegal action, are specifically taken into account for the calculation of the fine.246

6.5.5.1.3.

FINES ON ASSOCIATIONS OF UNDERTAKINGS

280. In cases where the infringement committed by an association of undertakings is related to the activities of its members, the fine threatened or imposed may reach up to 10% of the aggregate turnover of its members, 242

. Recitals 16 and 21–22 of the Fines Guidelines.

243

. Article 25(7) of Law 3959.

244

. Article 25(4) of Law 3959.

245

. HCC Decision 529/VI/2011. The HCC amended its practice accordingly (see HCC Decision 516/VI/2011).

246

. Article 25(2)(c) of Law 3959. This specific provision, in combination with the extension of the Leniency Programme to cover also natural persons, is expected to contribute to the discovery and elimination of anti-competitive practices, in view of the fact that it provides motives to cooperate with the HCC to the natural persons responsible for the execution of the decisions of the undertakings: Justification Report, supra n. 12, at 6.

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during the financial year in which the infringement ceased to exist, or the financial year previous to the adoption of the decision in question, in cases where the infringement persists up until the adoption of the decision. In cases where a fine is imposed on an association of undertakings, taking into account the aggregate turnover of its members, and the association does not have the resources to pay such fine, it is obliged to request for contributions from its members in order to cover the amount of fine. If such contributions are not made within the deadline set by the HCC, the latter may request the payment of the fine directly from each of the undertakings, whose representatives participated in the involved decision-making bodies of the association. Where the HCC has requested such payment, in cases where it is necessary in order to secure the payment of the total amount of the fine, it may request the payment of the remaining amount of the fine by any member of the association, which carried out actual business activities in the market where the infringement occurred. The HCC shall not, nevertheless, request payment from undertakings, which prove that they have not realized the existence of the illegal decision of the association, or that they have not applied it, or that they have actively abstained from such decision, prior to the initiation of the investigation of the case by the HCC. The financial liability of each undertaking regarding the payment of the fine shall not exceed the 10% of the aggregate turnover of the current or the preceding to the infringement financial year. 247 281. The fines provided for in Law 3959 are considered to be public revenues and are collected according to the Code for the Collection of Public Revenues, which are rather strict and burdensome, and provide the State with specific powers and rights, in order to make effective the collection of public revenues. Responsible for the collection of fines is the competent as the case may be Public Financial (Tax) Authority, which is obliged to inform immediately the HCC about payment or non-payment of each fine imposed.248

6.5.5.1.4. LIMITATION PERIODS 282. In the Greek competition legislative system, up until the adoption of Law 3959, there used to be no provision similar to Article 25 of Regulation 1/2003, regarding the limitation periods for the imposition and enforcement of penalties. 283. The situation has now changed with the entry into force of Law 3959. Infringements of the provisions of the Law 3959 triggering the power of the HCC to impose penalties are subject to a limitation period of five years. The limitation period shall begin to run on the day on which the infringement is committed. However, in the case of persisting or recurring infringements, the limitation period shall begin to run on the day on which the infringement ceases.249 284. However, any action taken by the HCC, the European Commission, or by the competition authority of a Member State of the EU for the purpose of the investigation or proceedings in respect of an infringement, shall interrupt the limitation period for the imposition of fines. The limitation period shall be interrupted with effect from the date on which the action is notified to at least one undertaking or association of undertakings, which has participated in the infringement. Actions interrupting the countdown of the period shall include in particular the following: (a) written requests for information by the HCC or by another from the above-mentioned competition authority; (b) written authorizations to conduct inspections issued to its officials by the HCC or by another from the abovementioned competition authority; (c) initiation of proceedings by another from the above-mentioned competition authority; (d) assignment of a case by draw to a Rapporteur (Case-Handler); (e) notification of the statement of objections or recommendation of the HCC or of another from the abovementioned competition authority. 247

. Article 25(3) of Law 3959.

248

. Article 49 of Law 3959. The Code for the Collection of Public Revenues is the Legislative Decree 356/1974, Federal Gazette 90/A/1974.

249

. Article 42(1)–(2) of Law 3959. According to Art. 50(6) the limitation period of Art. 42 extends also to infringements which have been committed prior to the entry into force of Law 3959, and have not been subject to a complaint, to a self-initiated investigation, or to a request for investigation by the Minister of Economy, Competitiveness, and Shipping.

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285. The interruption of the limitation period shall apply for all the undertakings or associations of undertakings, which have participated in the infringement. Each interruption shall start limitation period running afresh. However, the limitation period shall expire at the latest on the day on which a period equal to twice the limitation period has elapsed without the HCC having imposed a fine. That period shall be extended by the time during which limitation is suspended.250 286. Likewise, the limitation period for the imposition of fines shall be suspended for as long as the decision of the HCC is subject to proceedings pending before the Courts. Such suspension shall apply for all the undertakings or associations of undertakings, which have participated in the infringement. 251

6.5.5.2.

Sanctions of a Criminal Nature

287. Whenever the HCC verifies an infringement of Articles 1, 2 and 5–10, or of obligations imposed on undertakings, according to Article 11, it proceeds with the relevant notifications to the competent State Attorney authority, within a deadline of ten days by the latest from the date of adoption of its relevant decision. 252 288. Any person concluding agreements, taking decisions, or applying concerted practice, in breach of Article 1 or Article 101 TFEU, is punished by the imposition of a pecuniary sanction ranging from EUR 15,000 to EUR 150,000. By the same sanction is punished any of the liable persons, pursuant to Article 25(2)(c), who acts in breach of Articles 5–10 regarding mergers, or does not apply the decisions adopted pursuant to Article 11(5) and (6) regarding regulatory intervention into sectors of the economy. Likewise, any person committing an abuse of dominant position in the market, in breach of Article 2 of the present or Article 102 TFEU, is punished by a pecuniary sanction ranging from EUR 30,000 to EUR 300,000. 253 289. One of the most important innovations introduced by the last amendment of Law 703/77 is the fact that the infringement of Articles 1 and 101 at a horizontal level and with horizontal effects constitutes a criminal offence. According to the relevant provision of Law 3959, if the infringement of Article 1 and/or 101 TFEU involves undertakings being actual or potential competitors among themselves, imprisonment of at least two years and a pecuniary sanction ranging from EUR 100,000 up to a maximum limit of EUR 1,000,000 are imposed.254 290. Unlike the situation under the relevant provision of French competition law, for instance, which punishes with a prison sentence of four years and a fine of EUR 75,000 any natural person who fraudulently takes a personal and decisive part in the conception, organization or implementation of practices infringing the articles corresponding to Articles 101 and 102 TFEU, the provision of the Greek competition law implements certain limitations. 291. Under such provision, imprisonment is imposed only in cases of horizontal cooperation, that is, agreements, decisions and concerted practices between companies active at the same level of competition, which produce the effect of restriction of competition at this level. It is neither applicable to vertical restraints nor to the abuse of dominant position. It is difficult to understand the reasons for which such distinction is made, specifically in respect of the abuse of dominant position. It is hereby submitted that, once it has been decided to criminalize under Greek law the infringements relating to horizontal anti-competitive cooperation, the so-called hardcore cartels, criminalization should undoubtedly be extended to cover the abuse of dominant position equally. The results of an abusive behavior of a dominant undertaking will have equally or even more disastrous consequences with those produced by a hardcore cartel in the operation of competition in the market. Moreover, 250

. Article 42(3)–(5) of Law 3959.

251

. Article 42(6)–(7) of Law 3959.

252

. Article 43 of Law 3959.

253

. Article 44(1)–(2) of Law 3959. Art. 29 of Law 703/77 provided additionally that in case of recurring behaviour, the limits of pecuniary sanctions would have been doubled. It is to be noted that, according to press reports, the Courts recently imposed for the first time a pecuniary sanction amounting to EUR 9,000 on natural persons who had been involved in a cartel investigated, verified and punished by the HCC.

254

. Article 44(1) of Law 3959, as amended by Article 106 of Law 4389/2016, Federal Gazette, 94/A/27.05.2016. According to Art. 53 of the Greek Criminal Code, the maximum term of imprisonment cannot exceed five years. It is to be noted that the relevant provision of Law 703/77 was less strict, since the minimum imprisonment provided for was six months instead of two years.

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the independent behavior of a dominant undertaking, and the freedom of business movements and choice, constitute elements which would particularly utter for the assignment of a criminal law aspect to the abuse of dominance. 292. Moreover, according to the wording of the relevant provision of Law 703/77, in order for imprisonment to be imposed, the prohibited practices should have had as their effect the restriction of competition at the horizontal level of the participating parties. Thus, under the previous Law, unlike the situation in France and unlike the situation with the administrative sanctions, which would have been applicable if the object to restrict competition had been established and irrespective of the results, it seemed that an attempt to establish a horizontal cartel would not have been punished with imprisonment, if the resulting restriction of competition had not occurred for whatever reasons. Under the wording of the relevant provision of Law 3959 this is not the case anymore; imprisonment will be imposed in case of a horizontal cartel infringing Article 1 of Law 3959 and/or 101 TFEU. 293. If, nevertheless, the infringer acknowledges its liability before the competent authority, and pays in full the amount of fine imposed, or receives immunity from it, on the basis of the leniency program, the punishable nature of the relevant offences committed by the same infringement is lifted, and a full immunity from administrative penalties of other nature takes effect. In cases where the payment of fine in installments is allowed, the initiation of criminal proceedings is suspended for as long as the arrangement is in place and the debtor complies with the relevant conditions of such arrangement. During such suspension period, the limitation period of the offences committed is suspended. Participation in the leniency programme, as a result of which a reduced fine is imposed, is considered to be a mitigating circumstance in cases where the fine is not paid in full, and on the persons committing such actions a reduced penalty pursuant to Article 83 of the Criminal Code is imposed. 294. Moreover, with a view to encouraging cooperation with the authorities, in order to discover and terminate infringements of the competition rules, Law 3959 provides that the persons committing the punishable acts, that is the infringements, or the accomplices, are not punished, in cases where, on their own initiative and before they are examined anyway in respect of their act, announce such act to the Misdemeanors‟ State Attorney, to the HCC, or to any other competent authority, submitting at the same time relevant evidence. In any other case, the substantial contribution of the above persons to the detection of participation in such acts by submission of evidence to the authorities, is considered mitigating circumstance pursuant to Article 84 of the Criminal Code and a lenient sanction pursuant to Article 83 of the Criminal Code is imposed. 255 295. Furthermore, if the alleged infringement of competition rules is investigated by the HCC or by any other competent regulatory authority by any means, the Misdemeanors‟ State Attorney, following the preliminary examination, suspends by an act, upon the agreement of the Court of Appeals State Attorney, any further action up until the adoption of the decision by the HCC. In such a case the suspension time limit of three years, pursuant to Article 113(3)(a) of the Criminal Code, is not applicable. Finally, any person directly damaged by such acts may participate as prosecuting party in the Court hearings regarding infringements of competition rules.256 296. In addition, following the adoption of Law 3959, it is now provided that the persons mentioned below are punished with imprisonment of at least six months: (a) Any person impeding or obstructing by any means, specifically by posing obstacles or withholding evidence, the inspections related to the application of the provisions of Law 3959 carried out by the authorized officials under Article 39; (b) Any person refusing or obstructing the provision of information under Article 38 of Law 3959; (c) Any person providing deliberately, contrary to Articles 38 and 39 of Law 3959, false information, or withholding evidence; (d) Any person who, despite it is summoned to this end by an authorized employee of the Competition Commission, or by any other authorized for the inspection official, according to Article 39(1)–(3), refuses to proceed with a testimony, on oath or unsworn, in front of such authorized person, according to the provisions of Article 39(1)(g), as well as any person who, within the framework of his/her testimony, deliberately testifies false evidence, or refuses, or withholds true evidence.257

255

. See also recitals 5–6 of the leniency programme decision (more details below in the relevant section).

256

. Article 44(3)–(6) of Law 3959.

257

. Paragraph 7 of Art. 44 has been added by Art. 233(2) of Law 4072/2012.

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297. It is doubtful and it remains to be seen whether the ensuing criminalization of hardcore cartels will have the desired effects, that is, the decrease of the relevant infringements. It is to be noted that, in France, criminal proceedings are quite rare because the Public Prosecutor rarely takes action. 258 It remains to be seen whether the situation will be different in Greece. 298. On the contrary, it should be expected that the introduction of imprisonment will create problems to the fact-finding powers of the HCC, because the issue of the right to avoid self-incrimination will be raised. Companies involved in fact-finding proceedings will certainly try to impede the investigation powers of the HCC and avoid the provision of information and documents or answering questions, invoking that their legal representatives are exercising their right to avoid self-incrimination.259 299. Such right, emanating from Article 6 of the European Convention on Human Rights (ECHR), and from Article 14 of the International Covenant on Civil and Political Rights, is also considered to be stemming from Article 5(1) of the Greek Constitution, which entrenches the right to human personality; it has been incorporated in the Greek legal system by the provisions of Articles 223(4) and 273(2) of the Code of Criminal Proceedings. The practical consequence of such a right is that no one is obliged to testify against himself/herself facts that are incriminating him/her in respect of an action punishable under criminal law. 260 300. And indeed, the Legal Service of the Hellenic Parliament, in its Report including the legal evaluation of the provisions of Law 3959, expresses doubts as to whether the HCC inspectors are allowed to scrutinize the communication of managers of an undertaking with their legal counsels. In view of the fact that the infringements may cause the imposition of criminal sanctions, the relevant proceedings are of a combined nature, that is, administrative-criminal, and as a result the provisions of the Criminal Law Proceedings are applicable mutatis mutandis, such as Article 212, to which explicit reference is made. Given that such Article does not allow the persons covered by professional privilege to testify, the confiscation of documents containing such professional secrets is also not allowed, because otherwise it would be possible to introduce in the criminal hearings, by the use of documents, information covered by professional privilege, pursuant to Article 212. The Legal Service recommended the addition of reference to Articles 261 and 262 of the Criminal Law Proceedings, in order to ensure the requisite protection, but the recommendation was not accepted.261 301. Likewise, the Parliament‟s Legal Service expressed serious doubts in respect of the power of the authorized inspectors to take testimonies, on oath or unsworn, and request from any representative or member of the staff of the undertakings to provide explanations, in respect of facts or documents related to the subjectmatter and the purpose of the inspection. Given the administrative-criminal nature of the proceedings, the Legal Service takes the view that it is prohibited to take into account as evidence, and include in the file of the case, the testimony of a person which later has become himself defendant in the criminal law proceedings following the verification of a competition law infringement. Such prohibition emanates from the right to avoid selfincrimination.262 302. It remains to be seen what the interpretation of the Greek Courts will be, once they will have to deal with the powers of the HCC to collect information and conduct investigations in order to substantiate horizontal

258

. See European Cartel Digest, Supplement 2 (May 2009), Kluwer Law International, vol. 2, FR (1), 7.

259

. It is to be noted that in a case under the previously applicable Law 703/77, the Administrative Court of Appeals of Athens followed the case law of the European Courts in respect of an argument regarding the right to avoid self-incrimination and rejected all the relevant allegations of the appellant: Judgment 1682/2009, recitals 17–20.

260

. See A. Karras, Criminal Court Proceedings (in Greek) 375–376 (3d ed., Sakkoulas 2006).

261

. Report of the Legal Service of the Hellenic Parliament on the „Draft Law regarding Protection of Free Competition‟, published at the website of the Parliament, recital 5(a). Article 262(3) of the Criminal Law Proceedings provide that in case the owner of a document declares it is covered by professional privilege, pursuant to Art. 212, and the person confiscating the document considers that such statement is false, it seals the document or secures it by any other appropriate means, without taking cognizance of its content, and asks the professional association involved as the case may be (Bar Association, Doctors‟ Association, etc.) to provide an opinion as to whether the document is covered by professional privilege. Despite the fact no reference is made in the Law 3959 to such obligation of the inspectors, to the best of the author‟s knowledge and experience the HCC inspectors are very careful with the confiscation of documents covered by legal professional privilege.

262

. Legal Service Report, supra n. 258, at recital 5(c).

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cartel allegations on the one hand, and the right of the legal representative of the companies involved in such proceedings to avoid self-incrimination on the other hand.263

6.5.6. The Procedure Regarding Adoption, Notification and Publication of the Final Decision of the HCC 303. According to the Regulation,264 the preparation of the draft decision is assigned by the President or the acting President to the Vice-President, and/or to the Rapporteur (Case-Handler), and/or other Member or Members of the HCC. In exceptional cases this role may be assumed by the President himself or by the acting President. The name of the draftsman of the draft decision is not to be disclosed prior to the adoption of the decision. The decision of the HCC must be specifically reasoned, and is adopted following an assembly. 304. The first assembly of the HCC for the adoption of decision takes place in a meeting that in its turn takes place within a reasonable time period, and in any case not longer than thirty days from the date of submission of the supplementary written pleadings, or in all other cases from the meeting during which the hearing of the case was concluded. During this first assembly the President or the acting President appoints the person who has the duty to draft the decision. The Members of the Commission who participated in the hearing have access to the information in the file. The decision is adopted within thirty days from the last assembly. 305. If, during voting, more than two opinions arise and it is not possible to reach majority, the voting is repeated, and each time, members who express the weaker opinion are obliged to accede to one of the more prevailing. In case of halved votes, the vote of the President of the HCC or the acting President prevails (casting vote). The opinion of the minority is mentioned in the decision, as well as in the minutes of the assemblies, with reference of the names of the members that took the minority view. 306. In cases where issues arise during the assembly, for the resolution of which the parties concerned are required to submit more information, or the Competition Directorate General is required to carry out further investigation, the HCC issues a relevant decision. If such information is necessary only for the calculation of the fine, it may be requested from the parties, through the Secretaries of the Commission, without the adoption of a preliminary decision. The HCC may also invite the officials of the Directorate General assisting the Rapporteur (Case-handler), in order to provide information or clarifications on the content of the relevant file. The assembly for the adoption of the decision is private, and its result is confidential until the registration of the injunctive part of the decision in the Decisions and Opinions Book of the HCC, which is kept by the Secretary of the HCC. 265 307. Following the adoption of the decision, the Secretary of the HCC registers by consecutive number the data of the case and the injunctive part of the decision in the Decisions and Opinions Book of the Commission. The above consecutive number is the number of the decision of the Commission. 308. Once the official final body of the decision is ready, the text of the decision is signed by the President or the acting President, the draftsman/draftsmen of the decision and the Secretary, and the number of its versions is defined, based on the number of the parties and the information classified „confidentialâ€&#x; for the rest of the parties and third persons. Each version of the decision carries on each page of it a relevant annotation regarding the recipient of it. In the draft decision the number of version and the recipient of each specific version are mentioned. In each version the information that is considered confidential in respect of the specific recipient is omitted, provided that it is not considered necessary for the reasoning of the case. Under the responsibility of the Secretary, one of the versions is sent for publication to the Federal Gazette, is posted to the Internet, pursuant to 263

. It is beyond the scope of this Commentary to explore in depth the existence itself and the subject matter of the right to avoid selfincrimination, the recent developments and the implications its applicability will have in respect of competition law investigations. The intention herein is only to raise awareness of the issues that will rather certainly arise as a result of the introduction of criminal sanctions in cases of horizontal cartels.

264

. Articles 27–28 of the Regulation.

265

. According to Art. 30 of the Regulation, In the Commission Decisions and Opinions Book the following are registered: (a) the number of the decision or opinion, (b) the date of adoption of the decision, (c) the number of the issue of the Federal Gazette in which the decision has been published, as well as the numbers of the issues of the Federal Gazette in which potential corrections have been published, (d) the names of the parties, and in cases of legal persons their trading name, (e) the type of the case, (f) the injunctive part of the decision of the Commission, (g) the judgments of the Administrative Court of Appeals of Athens on appeals against decisions of the Commission, and (h) the judgments of the Council of State, on appeals against the relevant decisions of the Administrative Court of Appeals of Athens. Upon a relevant decision by the Plenary of the Commission, the Decisions and Opinions Book may be kept electronically.

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the provisions of Article 47 of Law 3959,266 and is handed over to the competent, as the case may be, authorities for further actions. In such version no business secrets are included. Also under responsibility of the Secretary, a certified copy of the respective version of the decision is served automatically to all interested parties. 267 The correction of potential unintentional errors of the text of the decision posted to the internet, and published in the Federal Gazette, takes place upon responsibility of the Secretary. The relevant correction is published in the Federal Gazette and at the Internet. 309. Following publication of the definitive decision of the HCC, the file of the case is put in the archive of the Directorate General. The elements of the file of each case are destroyed after the lapse of a five-year period from the date the relevant decision of the HCC becomes irrevocable. For the destruction, a three-member committee is set up by a decision of the President, which drafts the relevant memorandum of destruction. 310. Moreover, the drafts of the decisions and of the minutes, which are originally signed, are kept by the Secretaries of the HCC in separate paper files and in electronic (computerized) file. Copies of the decisions of the HCC and of the relevant minutes are issued by the Secretary of the HCC, upon a request by the parties. Third parties may take copies of the decisions of the HCC, in the form these have been sent to the Federal Gazette in order to be published, bearing the relevant cost.268

6.6. Judicial Review 6.6.1. Appeal against the Decisions Applying the Provisions of Law 3959 6.6.1.1. Competent Courts: Persons Enjoying Locus Standi, Deadlines, Right to Intervene, Interim Order, Proceedings 311. The decisions of all the competent State bodies (i.e., the HCC, the EETT, etc.) applying the provisions of Law 3959 are subject to an appeal before the Administrative Court of Appeals of Athens within a deadline of sixty days from the date of their service.269 312. The right to appeal belongs to: (a) the undertakings or associations of undertakings against which an HCC decision has been adopted; (b) the complainants; (c) the State represented by the Minister of Economy, Competitiveness, and Shipping; and (iv) any third party having a legitimate interest.270

266

. Article 47 of Law 3959 provides that the joint decisions of the competent Ministers, the decisions of a regulatory nature issued by the Minister of Economy, Competitiveness, and Shipping, as well as the decisions, opinions and reports of the HCC, adopted according to the provisions of Law 3959, are published in the Federal Gazette, and are posted to the internet pursuant to Law 3861/2010. The content of the provision of Art. 27(1) is similar, with reference, however, only to the decisions of the HCC of an individual nature, which in addition must be specifically reasoned. Article 27(2) provides that the HCC may order the undertaking or association of undertakings that infringed Law 3959 to publish the decision in a newspaper, in circulation at a national or local level, depending on the size of the market, in which the violation takes place, its gravity, and its effects. If, on the other side, the decision of the HCC has been annulled by an irreversible court judgment, then the HCC is obliged to publish at its own expenses such judgment in the same newspaper.

267

. Article 15(11) of Law 3959. Likewise, Art. 16(3) provides that the decisions adopted following application of Arts 1 and 2 of Law 3959 are notified to both the undertakings infringing the law and to the complainant, in cases where the HCC initiated the investigation procedure upon complaint. Furthermore, according to Art. 48, for all the service of summons to appear before the HCC provided for in Law 3959, as well as for the service of decisions and recommendations, the provisions of Arts 47–57 of the Code of Administrative Proceedings regarding the service of documents are applicable mutatis mutandis. In case of postponement or interruption of the hearing to another date and time, the notification of the date following postponement or interruption to the parties in the proceedings who are not present may be carried out by any appropriate means. The service of other documents, including the letters for the collection of information of Art. 38, may take place by registered mail.

268

. Article 31 of the Regulation. According to the Administrative Court of Appeals, the parties do not have any right to request access to the minutes of the meetings of the HCC prior to the completion of the procedure and the adoption of the decision (Judgment 1616/2009, recital 17).

269

. Article 30(1) of Law 3959. A provision to be welcomed is introduced by Law 3959: according to Art. 33, by a Presidential Decree issued upon proposal of the Minister of Justice, Transparency and Human Rights, and the Minister and Economy, Competitiveness, and Shipping, specific chambers may be set up at the Administrative Court of Appeals of Athens, to hear appeals, interventions, requests regarding the stay of proceedings, actions for annulment, and judicial review requests, lodged according to Law 3959; any issue related to the procedure before them, in cases where they conduct a hearing according to the provisions of the present Law, is also laid down by such Decree. This will enhance the quality and speed of judicial protection of all the parties concerned, and consequently the public interest, given the complexity of the issues involved in competition cases.

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313. The deadline for the submission of an appeal, and its submission, do not suspend the execution of the HCCâ€&#x;s decision. In cases where, nevertheless, sufficient reasons exist, the President of the Administrative Court of Appeals of Athens may suspend, upon request of the person concerned, entirely or in part, or under certain conditions, the execution of the contested decision, applying mutatis mutandis the provisions of Articles 200 et seq. of the Code of Administrative Proceedings. 314. More specifically, according to the relevant provision of Law 3959, in case of submission of appeal against a decision of the HCC imposing a fine, upon request by the appellant, the Administrative Court of Appeals of Athens may by a reasoned decision order the suspension of payment of part of the fine, which cannot exceed the 80% of the total amount of the fine. The suspension request is accepted up to the above maximum part of the fine, and without prejudice to what is stipulated by the principle of proportionality in the said case, where it is considered that the direct execution of the contested case will cause to the applicant, in case of successful outcome of the appeal, irreparable or difficult to repair damage. 315. Furthermore, regarding the extent of control carried out by the Administrative Court of Appeals, it is to be noted that the Court scrutinizes compliance of the decision in question with all the relevant applicable legal rules; errors in law are examined sua sponte by the Court, and thus the result of the action for annulment may well be the aggravation of the position of the appellant.271 316. A very important amendment in respect of the previous situation is brought by Law 3959. It is now provided that, in cases where the Court considers that the appeal is evidently substantiated, it may grant, by a specifically reasoned judgment, the suspension request even in respect of the total amount of the fine, and even if the damage caused to the applicant from the direct execution of the contested decision is not considered irreparable or difficult to repair. 317. By the judgment ordering suspension or any other appropriate measure, the Court, even without a specific request to this end, takes any appropriate measure for the protection of public interest, such as: (a) the submission of a letter of guarantee to the HCC, within a fixed deadline, payable immediately upon request, issued by a credible financial institution, covering a specific amount of money laid down by the same decision; (b) a pledge to the benefit of the HCC imposed on real estate of the applicant, covering a specific amount of money laid down by the same decision; (c) the payment of a specific amount of money to the Loans and Deposits Fund, to the benefit of the HCC. The Court, instead of the above or in supplement, may order compliance with any other appropriate condition, which is deemed necessary for the protection of public interest in view of suspension. Furthermore, granting a request for suspension is excluded in respect of the part of the contested decision, which has already been executed. 318. However, the request for suspension may be rejected, even in case of irreparable or difficult to repair damage caused to the applicant, in cases where the Court considers that the appeal is evidently unsustainable, or evidently unsubstantiated. The request may be rejected in cases where, upon appraisal of the applicantâ€&#x;s damage, the interests of third parties and the public interest, it is considered that the negative consequences from granting the request will be more serious than the benefit to the applicant. 272 319. The appeal shall be heard in priority, and after the HCC has been summoned. Postponement of the hearing is possible only for one time, for a sufficient reason, and to a hearing date as close as possible to the initial hearing date, unless a case of joint hearing of several appeals occurs. As for the rest, the provisions of the Code of Administrative Proceedings are equally applicable. 270

. Article 30(3) of Law 3959. Within such context, the Administrative Court of Appeals of Athens did not recognize locus standi to bring an action for annulment against an HCC merger clearance decision to a company which was a distributor of the acquired company, since it could not establish that it suffered damages from the HCC decision: Judgment 29/2013.

271

. Judgment of the Council of State 2475/2011, recital 15, where the Supreme Court confirmed the Judgment of the Administrative Court of Appeals of Athens (2852/2007) and the strict literal interpretation by the Court of Art. 79 of the Code of Administrative Judicial Proceedings. However, the Court may also apply mitigating circumstances and reduce the amount of fine, as it happened in Judgment 1244/2011, where the Administrative Court of Appeals reduced the fine taking into account as mitigating elements (a) the fact that the exclusive distribution contracts, the provisions of which infringed the competition rules, contributed to an improvement of the distribution networks and to the fast and direct delivery of books, and to the prices remaining at the same levels or even being lower in comparison with the prices of the books distributed outside the ambit of the contracts in question, and (b) the fact that the undertaking concerned cooperated thoroughly throughout the administrative process: recital 25.

272

. Article 30(2) of Law 3959.

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320. Moreover, Law 3959 provides explicitly for the right to intervene in the court hearings regarding an action for annulment of an HCC decision. Beneficiaries of such right are undertakings or associations of undertakings, which cooperated with the applicant undertaking or association of undertakings within the meaning of Articles 1 and 2 of Law 3959, as well as any third party having a legitimate interest. 273 321. In addition, in cases where the Court considers reasonably that a request to grant an interim order regarding suspension of the execution of an HCC‟s decision, it is obliged to invite the HCC, by the most suitable means, at least twenty-four hours prior to the hearing of the request, to put forward its views on the relevant request. In cases where the said request is granted, the relevant request for granting suspension is set to be heard the soonest possible. Postponement of the hearing is not allowed; otherwise, the interim order ceases to produce legally binding effects, save where it is prolonged by the court hearing the request. 274

6.6.2. Action for Annulment against the Decision of the Administrative Court of Appeals of Athens before the Supreme Administrative Court: The Council of State 322. An action for annulment may be brought before the Council of State by the parties to the proceedings before the Administrative Court of Appeals of Athens against the judgments of the Administrative Court of Appeals of Athens, delivered pursuant to the provisions of Law 3959. The State General Commissioner responsible for the ordinary administrative courts has the right to bring an action for annulment, even if he had not been a party to the court proceedings, at the end of which the judgment appealed against has been delivered. In such a case, the deadline for exercising the judicial remedy is three months from the date of publication of the decision. The action is brought and heard according to the provisions regarding appeals to the Council of State. 275 323. Actions for annulment shall be heard in priority. Postponement of the hearing is possible only for one time, for a sufficient reason, and to a hearing date as close as possible to the initial hearing date, unless a case of joint hearing of several appeals occurs. Likewise, as in proceedings before the Administrative Court of Appeals, the right to intervene in the court hearings regarding an action for annulment of a judgment of the Administrative Court of Appeals is provided for undertakings or associations of undertakings, which cooperated with the applicant undertaking or association of undertakings within the meaning of Articles 1 and 2 of Law 3959, as well as any third party having a legitimate interest. 324. The judgments adopted following an action for annulment against an HCC decision or against a judgment of the Administrative Court of Appeals, will be published by the HCC at its website, taking due care of personal data protection and business secret protection of the parties. 276

6.6.3. Action for Damages 325. Law 3959 contains no explicit provision regarding the right of private parties to bring an action for damages caused by the infringements of the competition rules. However, a natural or legal person who has suffered damages as a result of anti-competitive behaviour may bring an action for damages under Article 914 of the Civil Code277before the Greek Civil Courts. Three cumulative conditions must occur in order for the Courts to award damages: (i) illegal action (or omission), (ii) damage, and (iii) causal link between the illegal action and the damage.

273

. Article 30(4)–(6) of Law 3959.

274

. Article 31 of Law 3959.

275

. As regards the suspension of execution of the Administrative Court of Appeal of Athens judgments, in cases in which an action for annulment is brought against them, the provisions of Art. 52 of Presidential Decree 18/1989 (Federal Gazette 8/A/1989, „Codification of Legislative Provisions regarding the Council of State‟) concerning the suspension of execution of administrative acts challenged by an action for annulment, shall apply respectively: Art. 32(4) of Law 3959.

276

. Articles 30(7) and 32(7) of Law 3959.

277

. Article 914 provides that any person causing an injury to another person, by illegal action and wilfully, is liable to pay damages to the injured person.

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326. The breach of the competition rules is obviously an illegal action for the purposes of awarding damages. It is, however, to be noted that the existence of intention or negligence on the part of the infringer is required to be proved, in order for damages to be awarded under civil law, whilst these are not elements to be taken into account in order to establish the existence of an infringement under competition law. 327. The damages may be pecuniary, caused to goods that have an economic value, or immaterial (the socalled moral damages), caused to goods that cannot be evaluated on the basis of money, such as life, health, freedom, honour, reputation, etc. In the first case, pecuniary damages are payable, whilst in the second the Civil Code (Article 932) makes reference to the payment of a „reasonable pecuniary satisfaction‟. 328. A causal link exists in cases where the illegal action (or omission) does not simply cause the damage as a conditio sine qua non, but has generally the tendency and the ability to cause such damage in the usual course of matters (causa adequata). Damages caused by unpredicted, occasional or emergency events, or damages that are caused due to the specific circumstances of the case in question and not due to the general tendency of an action (or omission), are not considered to be linked between themselves in an expedient manner to justify the existence of causal link.278 329. It is interesting to refer here to an action for damages, originated on the basis of an abuse of dominant position, in the form of restricting parallel trade in pharmaceutical products. The Civil Court of First Instance of Athens (Judgment 1124/2005) had initially accepted the action for damages, and awarded EUR 8,139,667 as compensation for the damages caused by the abuse of dominant position. The Civil Court of Appeals (Judgment 7770/2007) annulled the ruling of the Court of First Instance, concluding that no abuse of dominant position occurred. The Court considered that the conduct of the dominant undertaking, i.e., the refusal to deliver the quantities ordered, which exceeded the estimated national consumption based on doctors prescriptions, was objectively justified, among others, by: (a) the absence of intense competition in the European market as a result of state intervention, (b) the products supplied by the dominant undertakings exceeded the national consumption, (c) the consequences on the profits of the dominant undertaking caused by parallel trade, and (d) the absence of any benefit to the consumer by parallel trade. Thus, the conduct of the dominant undertaking was the result of its efforts to prevent a reduction of its profits, caused by the difference in the pricing of the pharmaceutical products in the Member States of the EU. The case reached the Supreme Civil Court (Areios Pagos), which disagreed with the position taken by the Court of Appeals, on the basis, among others, of the latter adopting contradictory reasoning, and referred the case back to it for further hearing.279

6.6.4. Administrative and Judicial Fees 330. The notifications pursuant to Article 6, and the requests of Article 9(3), shall be accompanied, on pain of inadmissibility, by a receipt of payment to the competent public treasury of a deposit. The amount of the deposit for the notification of Article 6 and for the requests of Articles 8(9) and 9(3) is set at EUR 1,100 respectively. 331. Likewise, the action for annulment, the appeal to the Council of State, the request to stay proceedings, the appeal for judicial review, and the intervention, which are exercised before the Administrative Courts pursuant to the provisions of Law 3959, as well as any application made to the HCC for the reopening of the case, shall be accompanied, on pain of inadmissibility, by a receipt of payment to the competent public treasury of a deposit of EUR 500. The State is exempted from such obligations. 280 332. In the case of proceedings before the HCC, the stamp fees payable to the State, affixed to the judicial applications and the documents submitted as evidence, and to the Lawyers‟ Pension Fund, to the Fund for the Financing of Judicial Buildings and to the Athens Lawyers‟ Welfare Fund, for the registration in the Courts‟ register, the legal representation, the submission of legal documents or pleadings, and for the hearing in general, 278

. For a detailed analysis of the situation regarding the conditions of claims for damages in case of infringement of the competition rules under the Greek law, see the study published at the website of the European Commission at the following address: http://ec.europa.eu/comm/competition/antitrust/others/actions_for_damages/national_ reports/greece_en.pdf.

279

. Judgment 1286/2011. The case is still pending before the Civil Court of Appeals.

280

. Article 45(1)–(2) of Law 3959, which further provides that in respect of the further payment of the deposit, the provisions of Art. 277(9), (10), and (11) of the Code of Administrative Proceedings, and of Art. 36(4) of the Presidential Decree 18/1989 regarding the Council of State are applicable.

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shall be equal to the fees payable for the proceedings before the Administrative Court of First Instance. The State General Commissioner responsible for the ordinary administrative courts enjoys the same exemptions applicable to the State itself, in respect of any legal remedy exercised by him according to the provisions of Law 3959, and the relevant proceedings in general.281

7.

Leniency Policy

333. On 2 March 2006, the HCC adopted its first decision, according to the then applicable Article 9(4) of Law 703/77, on the terms and conditions governing immunity from fines or reduction of fines imposed on undertakings, which contribute to the investigation of infringements of the provisions of the said law, the socalled Leniency Programme.282 334. The relevant provision of the currently applicable Law 3959 283 provides that the HCC lays down, by a decision adopted by the Plenary Session, the terms and conditions of immunity from, or reduction of, fines imposed on undertakings and natural persons, which contribute to the investigation of horizontal cooperation falling under Article 1, or Article 101 TFEU. If an undertaking benefits from the leniency programme, and as a result it enjoys full immunity from fines, the persons committing the alleged infringements, or the accomplices, are relieved from the imposition of any sanction. However, participation in the leniency programme, as a result of which a reduced fine is imposed, is considered to be a mitigating condition pursuant to Article 84 of the Criminal Code, and on the persons committing such actions a lenient sanction pursuant to Article 83 of the Criminal Code is imposed. 284 Likewise, in case of participation of an undertaking or natural person in the leniency programme, the person committing the infringements or the accomplices are not punished, in cases where, on their own initiative and before they are examined anyway in respect of their action, announce it to the Misdemeanoursâ€&#x; State Attorney, to the Competition Commission, or to any other competent authority, submitting at the same time relevant evidence. In any other case, the substantial contribution of the above persons to the detection of participation in such acts by submission of evidence to the authorities is considered mitigating circumstance pursuant to Article 84 of the Criminal Code and a lenient sanction pursuant to Article 83 of the Criminal Code is imposed. 335. As a matter of fact, the HCC adopted by a decision 285in August 2011 its new Leniency Programme, taking into account the fact that horizontal cartels represent extremely serious infringements of competition law, and the cooperation of undertakings with the HCC in uncovering cartel practices benefits the effectiveness of the law, as it is revealed by the international experience. 336. The objective of the leniency programme is to support the HCC in its efforts to uncover and put an end to cartels, and punish those participating in cartels. Within this framework, the undertakings and the natural persons participating by any means in such kind of illegal activities, that wish to put an end to their participation and notify the HCC of the existence of such activities, should enjoy immunity from fines or be punished with reduced fines, on the basis of the specific circumstances laid down by the Leniency Programme of the HCC. The Leniency Programme lays down the framework for the lenient treatment of undertakings and natural persons cooperating with the HCC with a view to revealing agreements or practices, falling under its domain. The decisive contribution to the initiation of the investigation proceedings or to the identification and corroboration of an infringement justifies the provision of immunity from the imposition of any fine to an undertaking or a natural person, provided that the additional specific conditions are met (Immunity Type 1A, and Type 1B). In addition, 281

. Article 45(3)–(4) of Law 3959, which further provides in (5) that a Presidential Decree, issued upon proposal of the Minister of Finance, and the Minister of Economy, Competitiveness, and Shipping, will lay down the details regarding the application of the provisions of Art. 45.

282

. HCC Decision 299/V/2006.

283

. Article 25(8) of Law 3959.

284

. It is to be noted that under the relevant provision of Law 703/77 (Art. 9(5)), in respect of the favourable results for natural persons from participation in the leniency programme, no distinction was made between full immunity from fines and reduction of fines, as is the case under Law 3959. Participation of an undertaking in the leniency programme lifted totally the punishable nature of the actions of the liable natural persons, which practically meant that the criminal sanctions provided would not be imposed, and absolved them from the entire liability for the said horizontal cooperation.

285

. HCC Decision 526/VI/2011.

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the cooperation by one or more undertakings and/or one or more natural persons may justify the reduction of the fine by the HCC (Type 2). Any reduction of the fine should relate to a genuine contribution of the undertaking and/or the natural person to the identification of the infringement by the HCC, on the basis of the quality of the contributed information and the priority in time. The reduction of the fines will be limited to the undertakings and/or the natural persons that provide the HCC with evidence of an important nature, compared with the one already at the HCC‟s disposal. The reduction of the fines shall be proportionate to the degree of contribution by the undertaking or the natural person to the corroboration of the infringement. 286

7.1. Scope of Application of the Leniency Programme 337. The leniency programme concerns the horizontal cooperation of a cartel nature that is prohibited under Article 1 of Law 3959, and/or Article 101 TFEU (hereinafter „cartel‟). In particular, the following types of cooperation fall specifically within the scope of application of the leniency programme: (a) cooperation, which, either directly or indirectly, has an effect on the prices, the quantities, the market shares, or other relevant aspects of competition, or (b) cooperation, on the basis of which, introduction of production or sale quotas, allocation of markets, restriction of imports or exports, distortion of tenders, collective commercial ban, take place. The leniency programme is related to the lenient treatment of both undertakings and natural persons, who may benefit from its provisions on the condition that they have been involved in cartels, and thus may be punished according to Articles 25(1)(d), and 25(2)(c) of Law 3959. Leniency applications by other persons are not accepted; these are, either considered complaints, provided that the relevant conditions are met, or taken into account as general information. Immunity from fines of Type 1A and Type 1B, and reduction of fine of Type 2, granted to an undertaking is automatically applicable and produces effects in respect and to the benefit of the natural persons acting on such undertaking‟s behalf within the framework of Article 25(2)(c) of Law 3959, provided that such persons cooperate fully and uninterruptedly with the HCC, in accordance with the provisions of section V of the leniency programme. On the contrary, immunity from fines of Type 1A and Type 1B, and reduction of fine of Type 2 granted to natural persons is not extended to the respective undertakings, and is only effective in respect of the former.287

7.2. Immunity from Fines (Types 1A and 1B) 7.2.1. Immunity Type 1A: Conditions and Minimum Requirements Related to the Provision of Evidence 338. The HCC grants to an undertaking or a natural person Type 1A immunity from fines that would have been imposed under Article 25 of Law 3959, in cases where: (a) the undertaking or the natural person concerned is the first to submit evidence that, in the opinion of the HCC, at the time of evaluation of the leniency application, allows the HCC to carry out a targeted investigation in respect of an alleged cartel; (b) the HCC did not already have at its disposal, at the time of submission of the application, sufficient evidence allowing it to carry out a targeted on-the-spot inspection, or take any other investigation measure in respect of the specific alleged cartel, and had not already carried out an on-the-spot inspection or taken any other investigation measure in respect of such cartel; (c) the conditions regarding participation in the leniency programme, laid down in section V of the leniency programme decision, are met. 339. In order for the HCC to be in a position to carry out a targeted on-the-spot inspection, the applicant undertaking or the natural person shall supplement its application to participate in the leniency programme with a detailed description of the alleged cartel, specifically providing the following data and information: (i) A statement by the undertaking or the natural person, including:

286

. Recitals 1–2 of the preamble to the leniency programme decision.

287

. Recitals 3–4 of the leniency programme decision.

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(a) The name and address of the legal person or the name and address of the natural person submitting the leniency application. (b) The identity (specifically name and address) of the other members of the alleged cartel. (c) The name, the position, and the office address of all the known to the applicant persons, which may provide evidence in respect of the cartel under investigation. (d) Detailed description of the alleged cartel and particularly: 

the purposes, the nature, the activities, and its operation;

the products/services concerned;

the geographic territory/ies covered;

its duration;

the size of the market that is estimated to be affected;

specific dates, locations, content, and participants, of meetings related to the alleged cartel, as well as any relevant justification regarding the evidence submitted in support of the application.

(ii) Evidence regarding the alleged cartel, which the applicant has at its disposal or control at the time of submission of the application, and specifically any evidence which is coincident with the infringement. (iii) Any information related to already submitted or potential future leniency applications before other competition authorities, within or outside the European Union, in respect of the alleged cartel. 288 340. Upon request by the undertaking or natural person concerned, the HCC may allow the oral submission of the above statements. Such oral statements289 will be recorded by any means considered suitable by the HCC. The parties of the case are not granted access to any recording of the oral statements of the applicant prior to the service of the report (statement of objections) to them. 290 Thereafter, the right of access is exercised by assessment of the recording at the premises of the HCC. As for the rest, the relevant provisions of the Regulation regarding the Operation of the HCC are applicable.291

7.2.2. Immunity Type 1B: Conditions and Minimum Requirements Related to the Provision of Evidence 341. In cases where the conditions, required to grant to an undertaking or natural person a Type 1A immunity from fines, are not met, the HCC grants to such undertaking or natural person a Type 1B immunity from the fines of Article 25 of Law 3959, provided that: (a) The undertaking or the natural person concerned is the first to submit evidence that, in the opinion of the HCC, allows the verification of an infringement of Article 1 of Law 3959, and/or Article 101 TFEU in respect of the alleged cartel.

288

. Recitals 7–8 of the leniency programme decision.

289

. According to the HCC, the term „statement‟ covers the corporate statements submitted by the legally authorized representatives on behalf of their clients, as well as the testimonies of employees or managers of the undertakings, which are submitted together with the statement. The term „statement‟ covers also the statements of natural persons who submit a leniency application under para. 8 of the leniency programme decision: footnote 9 of the leniency programme decision.

290

. Such oral statements may be exchanged among the competition authorities, the EU Commission, and the Members States of the EU, according to Art. 12 of Regulation 1/2003, and paras 40 and 41 of the Commission Notice on Cooperation within the Network of Competition Authorities, provided that the protection against disclosure provided by the receiving authority is equal to the protection provided by the authority transmitting the information: recital 48 and footnote 10 of the leniency programme decision.

291

. Recitals 44–45 of the leniency programme decision.

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(b) The HCC did not already have at its disposal, at the time of submission of the application by the undertaking, sufficient evidence that would allow it to verify the infringement of Article 1 of Law 3959, and/or Article 101 TFEU in respect of the alleged cartel. (c) The conditions regarding participation in the leniency programme, laid down in section V of the leniency programme decision, are met. 342. The application for a Type 1B immunity must be supplemented by the data and information mentioned above in relation to a Type 1A submission.292

7.2.3. Undertakings Excluded from the Possibility of Being Granted Immunity from Fines 343. Any undertaking, which took action in order to coerce another undertaking to participate in the cartel, cannot benefit from the immunity from fines provided for by the leniency programme of the HCC. However, such exemption is not applicable in respect of the natural person that acted on behalf of the exempted undertaking.293

7.3. Reduction of Fines: Type 2 – Conditions and Minimum Requirements Related to the Provision of Evidence294 344. Undertakings and or natural persons whose applications do not fulfil the criteria for immunity from fines may benefit from a reduction of any fine that would have been imposed otherwise (Type 2). 345. In order to be granted a reduction of fine, the undertaking and/or the natural person must provide the HCC with evidence regarding an alleged cartel. Such evidence must bear significant added proof value compared to the evidence already in the possession of the HCC. The application regarding the fine reduction must be supplemented by the specific data and information required for the Type 1A immunity. 346. The concept of „added proof value‟ refers to the extent to which the evidence provided strengthens, by its very nature and/or its level of detail, the ability of the HCC to prove the facts establishing the infringement. Written evidence dating back to the period of time, to which the facts are relevant, has in principle a greater value than subsequent evidence. Similarly, evidence directly relating to the facts of the case has in principle a greater value than evidence relating only indirectly to such facts. In evaluating the evidence submitted the degree to which such evidence can be crosschecked with, or verified by, other resources is also taken into account. 347. The HCC lays down, in the decision it adopts in relation to the alleged infringement: –

to what extent the evidence submitted by an undertaking at a specific period of time represented significant added value compared to the evidence in the possession of the HCC at that time; and

the level of reduction of the fine to be granted to the undertaking and/or natural person concerned. The reduction of the fine in respect of an undertaking that has submitted a Type 2 application will not exceed the 50% of the fines that would have been otherwise imposed on it. The reduction of the fine in respect of a natural person that has submitted a Type 2 application will not exceed the 70% of the fines that would have been otherwise imposed on it.295

348. In order to determine the level of fine reduction within the above range, the HCC will take into account the time at which the evidence fulfilling the relevant conditions laid down was submitted (including the rank in 292

. Recitals 9–10 of the leniency programme decision.

293

. Recital 11 of the leniency programme decision.

294

. Recitals 12–18 of the leniency programme decision.

295

. It is to be noted that under the previously applicable leniency programme the situation was different. The first undertaking to apply would enjoy a reduction of the fine by 30%–50%, the second undertaking would enjoy a reduction of the fine by 20%–30%, and for any subsequent undertaking the reduction of the fine would be up to 20%.

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order of the applicant undertaking and/or natural person, i.e., whether it submitted the application first, second, third, etc.), and the extent to which the said evidence represents added value. The HCC may also take into account the extent and consistency of the cooperation of the undertaking and/or natural person after the date of submission of the evidence. 349. Finally, if an undertaking or natural person provides evidence relating to facts previously unknown to the HCC, which have a direct relation with the gravity or duration of the alleged infringement, the HCC will not take these elements into account when setting the level of the fine to be imposed on the undertaking and/or natural person that provided such evidence.

7.4. Conditions Related to the Application of the Leniency Programme296 350. In addition to the above, the following cumulative conditions must also be met in any case in order to qualify for immunity from fines or reduction of fines: (i) The undertaking or natural person concerned must cooperate fully, sincerely, and on a constant basis with the HCC, up until the completion of the administrative investigation procedure. Within the framework of such cooperation, the undertaking or natural person is obliged: (a) to provide without delay all information and all evidence that is available to it, or comes to its possession or disposal at a later stage in relation to the suspected infringement; (b) to remain at the disposal of the HCC in order to answer without delay any question or request that may contribute to the establishment of the facts concerned; (c) to refrain from destroying, falsifying, or concealing any information or evidence that may contribute to the establishment of the alleged infringement; (d) to keep confidential against any third party the fact that it submitted an application to participate in the leniency programme, as well as the content of the application, up until the service of the statement of objections on the case to the parties concerned, unless otherwise agreed with the HCC. The said confidentiality obligation is not applicable in respect of other Competition Authorities within or outside the European Union; (e) the applicant undertaking, to make available specifically, to the extent possible, the current and/or former employees and directors for the provision of testimonies within the framework of the relevant case.297 (ii) In case of a leniency application by an undertaking concerned, it must terminate its involvement in the alleged infringement at the time it submits the official application to participate in the leniency programme by the latest, unless the HCC considers necessary the undertaking to continue its participation, with a view to facilitating the investigation of the alleged infringement. (iii) Prior to the submission of the leniency application before the HCC, the undertaking concerned or the natural person shall not have destroyed evidence, that may fall within the scope of the leniency application, and shall keep confidential, both directly and indirectly, against any third party, the fact that it intends to submit a leniency application, as well as its content. The said confidentiality obligation is not applicable in respect of other Competition Authorities within or outside the European Union.

296

. Recital 19 of the leniency programme decision.

297

. The obligations under (c) and (e) were not included in the previously applicable leniency programme decision of the HCC; it seems that they have been added in view of the fact that they are included in the EU Commissionâ€&#x;s leniency notice.

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7.5. Procedure Regarding the Application of the Leniency Programme 7.5.1. Application to the HCC298 351. An undertaking or natural person wishing to benefit from the leniency programme needs to submit an application to the HCC, submitting at the same time the specific data and information laid down in the leniency programme decision. More specifically, the undertaking or the natural person address itself to the President of the HCC, who immediately informs the Director General and, where the case has been randomly assigned by draw, the competent Rapporteur (Case-Handler). The Director General keeps the confidential registry of the leniency applications. Prior to the submission of an official application for immunity from fines, the undertaking or the natural person may approach the HCC, without revealing its identity, in order to request for clarifications regarding the possibility of application in the said case of the leniency programme. In such case, the undertaking or natural person shall submit the necessary information and evidence on a hypothetical basis. 352. When the application is officially submitted, the Director General provides, following an order of the President of the HCC, upon request of the undertaking or natural person, a written acknowledgement of receipt of its application and the evidence submitted, confirming the date and time of receipt. Joint applications for immunity from fines, or reduction of fines, by more than one undertaking or by associations of undertakings, are not accepted, with the exception of succession cases or affiliate undertakings, provided that it is considered suitable. Joint applications for immunity from fines, or reduction of fines, by more than one natural persons are accepted only in cases where the said natural persons participated in the alleged infringement of the same undertaking.

7.5.2. Handling of Applications for Immunity from Fines 7.5.2.1.

Marker for Applicants from Immunity from Fines299

353. An undertaking or natural person wishing to apply for immunity from fines may initially apply for a marker. Granting a marker protects an immunity applicant‟s position in the queue for a certain period of time, and allows the applicant to gather the necessary information and evidence, in order to meet the conditions and the relevant minimum requirements for immunity from fines, as laid down in the leniency programme decision. Granting or not a marker is at the discretion of the HCC. By the act granting the marker, the President of the HCC sets the deadline within which the applicant needs to supplement its application by the submission of the information and evidence required for granting immunity from fines, in order to maintain its position in the queue initially assigned to it. In cases where the applicant supplements its application within the deadline set, the information and evidence provided by it is considered as submitted on the date the marker was granted. 354. The applicant shall justify its application for a marker and provide the HCC, together with the application, its name and address, as well as information related to the members of the alleged cartel, the affected product/s, the affected territory/ies, the duration of the alleged cartel, the nature and the operation of the alleged cartel, and potential information regarding already submitted or future leniency applications before other competition authorities, within or outside the European Union, in respect of the alleged cartel. 7.5.2.2. Granting Immunity from Fines 300 355. When the HCC verifies that the evidence and the information submitted are sufficient and meet the conditions and the relevant with the provision of information minimum requirements for granting immunity from fines, the President of the HCC grants in writing the applicant undertaking or natural person a temporary immunity from the imposition of a fine. 356. If the conditions and the minimum requirements regarding the provision of information, or regarding the specific data and information laid down in the leniency programme decision are not met, the President of the HCC informs in writing the undertaking that its application for immunity from fines has been rejected. In such 298

. Recitals 20–24 of the leniency programme decision.

299

. Recitals 25–27 of the leniency programme decision.

300

. Recitals 28–32 of the leniency programme decision.

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case, the undertaking or the natural person may either request its application to be examined under the provisions regarding reduction of the fines, or withdraw its application. The evidence submitted by the undertaking or natural person within the framework of the withdrawn application is not used by the HCC for the corroboration of the infringement by such person, unless such evidence was already at the disposal or possession of the HCC. The withdrawal of the application is possible up until the submission of the report (statement of objections) to the Plenary or to the respective chamber, and does not prevent the HCC from using its normal powers of investigation in order to collect such evidence. 357. Following the granting of the temporary immunity, if it is verified that the applicant did not fulfil all the requirements related to the specific data and information laid down in the leniency programme decision, or, in cases where the applicant is an undertaking, it has acted to coerce another undertaking to participate in the cartel, the President of the HCC informs immediately the applicant. Similarly, if all the requirements related to the specific data and information laid down in the leniency programme decision are not fulfilled at any stage of the procedure, this may potentially result in repealing the benefit of immunity from the imposition of fines by a deed of the President of the HCC. 358. Likewise, a potential incorrect, inaccurate, or misleading statement on the part of the undertaking or the natural person, at any stage of the procedure, may result in repealing of the benefit of immunity from the imposition of fines by a deed of the President of the HCC. The potentially permanent immunity from fines is granted by the decision of the HCC on the case.

7.5.2.3.

Simplified Application in Type 1A and 1B Cases301

359. In cases where the undertaking concerned has already submitted, or intends to submit, an application for immunity from fines to the European Commission,302 it may submit before the HCC a concise (simplified/pro forma) application303for immunity from fines of Type 1A or 1B, if it considers that the HCC is well placed to deal with its case, according to the Commission Notice on Cooperation within the Network of the Competition Authorities.304 360. The concise (simplified/pro forma) applications shall allow the HCC to be in a position to decide whether the application of the undertaking meets the conditions for granting an immunity from fine Type 1A or 1B, and shall include a description of the alleged cartel, and particularly, the name and address of the applicant, the other members of the alleged cartel, the affected product/s, the affect territory/ies, the duration, the nature of the alleged cartel, the Member State/s where evidence may be potentially found, and potential information regarding other past of future applications to participate in the leniency programme regarding the alleged cartel. 361. Following receipt of the concise application, the Director General, upon the order of the President of the HCC and upon a relevant request by the undertaking concerned, provides it with a written acknowledgment of receipt of the immunity application, which confirms the date and time of submission. 362. In cases where the HCC, upon receipt of a concise application, decides to request specific additional information, the applicant shall submit such information immediately. If the HCC decides to take action on the case, it lays down the deadline within which the applicant has to submit full evidence and information in order to 301

. Recitals 33–35 of the leniency programme decision.

302

. This may happen in cases where the EU Commission, according to para. 14 of the Commission Notice on Cooperation within the Network of Competition Authorities (O.J. C101, 27 Jul. 2004), is particularly well placed since one or several agreement(s) or practice(s), including networks of similar agreements or practices, have effects on competition in more than three Member States (cross-border markets covering more than three Member States or several national markets).

303

. The HCC considers the concise applications as immunity applications, on the basis of para. 41(1) of the Commission Notice, according to which no consent is required where the receiving authority has also received a leniency application relating to the same infringement from the same applicant as the transmitting authority, provided that at the time the information is transmitted it is not open to the applicant to withdraw the information, which it has submitted to that receiving authority.

304

. Paragraph 8 of the Commission Notice provides that an authority can be considered to be well placed to deal with a case if the following three cumulative conditions are met: (a) the agreement or practice has substantial direct actual or foreseeable effects on competition within its territory, is implemented within or originates from its territory; (b) the authority is able to effectively bring to an end the entire infringement, i.e., it can adopt a cease-and-desist order the effect of which will be sufficient to bring an end to the infringement and it can, where appropriate, sanction the infringement adequately; (c) it can gather, possibly with the assistance of other authorities, the evidence required to prove the infringement.

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meet the relevant minimum requirements for the immunity from fines. The requested information is considered as submitted on the date of submission of the concise application, provided that the applicant submits them within the deadline set.

7.5.3. Handling of Applications for Reduction of a Fine305 363. An undertaking or natural person wishing to benefit from a reduction of a fine, shall submit to the HCC all the evidence provided for above in the section regarding „Reduction of Fines – Type 2: conditions and minimum requirements related to the provision of evidence‟. 364. The Director General, upon the order of the President of the HCC and upon a relevant request by the undertaking concerned or the natural person, provides it with a written acknowledgment of receipt of the application and the evidence submitted, which confirms the date and time of submission. The President of the HCC will not adopt a decision on the application for reduction of a fine, before he will have adopted a decision on potential applications for immunity from fines under certain conditions, which have been already submitted and pertain to the same alleged cartel. 365. In cases where it is verified that: (a) the evidence submitted has significant additional proof value compared to the evidence already in the possession of the HCC, and meet the minimum requirements regarding the provision of evidence for granting a reduction of a fine, and (b) all the requirements related to the specific data and information laid down in the leniency programme decision, the President of the HCC provides a written official document certifying the temporary participation of the undertaking or natural person in the leniency programme, until the date the report (statement of objections) is served to the applicant undertaking or natural person. 366. If the above conditions are not met, the President of the HCC informs in writing the undertaking or the natural person that its application has been rejected. In such case, the undertaking or natural person may withdraw its application. The evidence submitted by the undertaking or natural person within the framework of the withdrawn application is not used by the HCC for the corroboration of the infringement by such person, unless such evidence was already at the disposal or possession of the HCC. This does not prevent the HCC from using its normal powers of investigation in order to collect such evidence. 367. Following the provision of the above-mentioned official document by the President of the HCC, in cases where it is verified that the applicant did not fulfil all the requirements related to the specific data and information laid down in the leniency programme decision, the President of the HCC informs immediately the applicant. Similarly, if all the requirements related to the specific data and information laid down in the leniency programme decision are not fulfilled at any stage of the procedure, this may potentially result to the repeal of the benefit of reduction of fine by a deed of the President of the HCC. 368. Likewise, a potential incorrect, inaccurate, or misleading statement on the part of the undertaking or the natural person, at any stage of the procedure, may result in repealing the benefit of immunity from the imposition of fines by a deed of the President of the HCC. The potentially permanent immunity from fines is granted by the decision of the HCC on the case. 369. Unlike the procedure regarding immunity from fines, a concise (simplified/pro forma) application for reduction of fines is not possible. A potential granting of reduction of fine as well as its amount are laid down by the decision of the HCC on the case. 370. It should be noted that in a case regarding anti-competitive practices in the milk industry, one of the undertakings involved had lodged a request to come under the previously applicable leniency programme and benefit from it. The HCC at first rejected the application for immunity from fines, because the cumulative criteria had not been met. Among others, the HCC concluded that the undertaking concerned did not keep confidential the fact that it had lodged such a request, whilst the Commission had also already collected itself strong evidence to corroborate the alleged infringements, and the information and data submitted by the undertakings provided only added value to the sufficient evidence already available.

305

. Recitals 36–43 of the leniency programme decision.

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371. Upon communication of such rejection, the undertaking concerned lodged a request for reduction of the potential fines. The Competition Directorate General recommended in its report to the HCC the acceptance of the request to grant a reduction of the fine to be imposed on the undertaking at the lowest level applicable, that is, reduction of 30%. However, during the oral hearing, the undertaking concerned withdrew its request, and at the same time, it requested the withdrawal also of the evidence submitted with a view to being granted immunity from fines. The HCC accepted the first request, but not the second one. It considered that, once the undertaking concerned had been informed about the fact that it would not be granted immunity from fines, it had, according to the HCC Decision governing the leniency programme, two options: either to withdraw the evidence submitted with a view to being granted immunity from fines, or to request the Competition Directorate General to examine it with a view to granting reduction of the fines to be imposed. The second option of withdrawal of the submitted evidence is only available at the stage of requesting immunity from fines, and it is not provided in cases where an undertaking concerned has decided to seek for reduction of fines, and thereafter changes its mind and repeals the relevant request. As a result, the HCC rejected the request of the undertaking concerned as legally unfounded. 306

7.6. General Considerations307 372. In any case, the submission of a leniency application on the basis of the above and/or the adoption of the acts and official documents provided for by the provisions of the leniency programme decision of the HCC do not create an obligation of the HCC to initiate an investigation regarding the alleged infringement. 373. By its final decision regarding the infringement, the HCC grants the benefit of leniency provided it verifies that the following are met: (a) the terms and minimum requirements regarding the provision of evidence for each type of leniency respectively, according to the provisions of the leniency programme decision, (b) all the requirements related to the specific data and information laid down in the relevant section of the leniency programme decision, (c) in general, any term or condition provided for in the leniency programme decision. If the above are not met, the HCC reject definitely the leniency application by its decision on the infringement. It is only such decision that may be subject to an action for annulment before the Administrative Court of Appeals of Athens.

8.

Settlement Procedure

374. Law 3959/2011 was recently amended to allow for the possibility to conduct settlement procedures, following the model applicable at EU level. More specifically, it is now provided that by a decision of the HCC, which is to be adopted in Plenary Session, settlement procedures may be introduced for undertakings which accept their participation in an alleged horizontal collusion, infringing thus Article 1 of Law 3959, and or Article 101 TFEU. Such decision shall lay down the terms and conditions governing the settlement procedures, and will cover particularly the following issues: 

The terms and conditions governing participation in settlement procedures;

The stage of the investigation proceedings, at which a request for settlement may be submitted by an undertaking under investigation, that cannot be later than the date of submission of the party‟s first written reply following notification of the statement of objections;

The procedure to be followed in order to achieve settlement of the dispute. Such procedure will provide essentially an acknowledgement by the party under investigation of the alleged infringement charged with, as a condition for the settlement of the dispute. In cases where settlement is not achieved, then such statement of the party under investigation regarding acknowledgement of the infringement, as laid down in its written comments submitted, will be considered revoked, and shall not be taken into account neither by the Commission nor by the Courts;

306

. HCC Decision 369/V/2007, recitals 272–293. Such approach has been confirmed upon appeal by the Administrative Court of Appeals of Athens in Judgment 1682/2009, recitals 24–25.

307

. Recitals 46–47 of the leniency programme decision.

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The access to the file of the case by the participants in the settlement procedures and in the course of them, and the possibility or not to make use of the statements and evidence submitted by the parties in the course of such procedures, without prejudice to the provision of EU law;

The possibility or not of individual settlement, in cases of several parties under investigation, where only some of them consent to settlement;

The power of the Commission, in case of settlement, to reduce the amount of fines to be imposed. The reduction to be provided for cannot exceed 15% of the fine that would be imposed in case of no settlement, as such fine would be set following a potential reduction within the context of the leniency program;

Temporal legal issues;

Any other essential detail;

375. In case of settlement, the Commission will adopt a decision following the simplified procedure, by which, among others, occurrence of the alleged infringement will be verified, as well as the dispute settlement achieved, and appropriate penalties will be imposed.308

8.1. The HCC Settlement Notice 376. In July 2016, the HCC adopted the decision laying down the terms, conditions, and procedure to be followed for the settlement of disputes in cases of horizontal collision infringing Article 1 of Law 3959 and/or Article 101 TFEU. The purpose of the Settlement Procedure is the simplification and acceleration of the administrative procedure resulting in the adoption of decisions by the HCC regarding infringements of Article 1 of Law 3959 and/or 101 TFEU, as well as the reduction of the number of appeals lodged against the decisions of the HCC before the Athens Administrative Court of Appeals. As a result, the HCC will be given the opportunity to investigate additional cases with the same resources and with reduced administrative burden, increasing thus the deterrent nature of its activities and reinforcing, at the same time, the citizens‟ interest in the efficient and timely punishment of infringers. Within this context, the fines imposed on undertakings contributing to the reinforcement of the efficiency of the administrative procedure before the HCC may be reduced, on the basis of the specific terms and conditions laid down by the Settlement Decision. Such contribution takes the form of sincere, irrevocable and unequivocal acknowledgement by the undertaking concerned of the alleged participation in the infringement attributed to it, and of the liability resulting from such participation. It also consists in the waiver of the exercise of certain procedural rights and justifies the reduction of the fine imposed by the HCC. The reduction of the fine is justified specifically in view of the cooperation of the undertaking concerned. The HCC, being and independent administrative authority with the exclusive jurisdiction to enforce the competition law provisions by the adoption of executable decisions, which are subject to judicial control, does not negotiate with the undertakings concerned the question of an infringement and the imposition of the appropriate sanction. 377. More specifically, within the context of the Settlement Procedure, undertakings subject to investigations regarding their participation in horizontal cartel collusion, against which evidence has been collected, and infringement of Article 1 of Law 3959 and/or Article 101 TFEU has been substantiated, acknowledge unequivocally their participation in the infringement and their resulting liability, and waive, under certain conditions, their right to have full access to the administrative file of the case and their right to an oral hearing during the hearing of the case before the HCC. In such cases, the decision regarding verification of the infringement is adopted by the HCC following the simplified procedure, after taking into consideration the arguments, legal and factual, and the views of the undertakings concerned, as these have been submitted during the Settlement Procedure. By the same decision of the HCC a fine is imposed on the undertakings concerned, which is reduced by 15% due to the fact that the case has been decided within the context of settlement procedure. The contribution offered by an undertaking within the context of the Leniency Program (voluntary provision of evidence for the initiation or progress of the investigations carried out by the HCC with a view to verifying an infringement) and the contribution provided within the context of Settlement Procedure (facilitation of procedural efficiencies as described above) may operate in a complementary manner, and in such case the cumulative award of the benefits laid down in the relevant provisions is justified.309 On the 308

. Article 25a of Law 3959/2011 was introduced by Article 105 of Law 4389/2016 (Federal Gazette 94/A/27.05.2016.

309

. Settlement Notice, recital 2–4 and footnote 8.

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contrary, the Settlement Procedure cannot take place concurrently with the Commitments Procedure. This is due to the fact that, primarily, the Settlement Procedure comprises verification of an infringement by the HCC, acknowledgement of participation and liability by the undertakings concerned, and consequently imposition of fines for serious infringements of the competition rules (collusion of a cartel nature), whilst the Commitments Procedure comprises a simple prima facie infringement, and an ensuing offer to adopt corrective measures, without verification of infringement and imposition of fines, specifically in respect of infringements which are not considered particularly serious according to the prevailing practice and case-law.310

8.1.1. Criteria for the selection of cases to be subject to the settlement procedure 378. The decision on the initiation or not of a Settlement Procedure falls under the exclusive jurisdiction of the HCC. The HCC enjoys broad discretion: (a) to decide which horizontal cartel collusion cases are suitable to be subject to the Settlement Procedure; (b) to initiate or not such procedure; (c) to interrupt it at any stage; and (d) to being such procedure to an end by the adoption of the adoption of a prohibition decision, either on the basis of the Settlement Procedure provisions or not. During such evaluation and within the context of its discretion, the HCC takes into account the potential acceleration and reinforcement of the efficiency of the procedure resulting in the adoption of a decision in a specific case, if such case is decided under the Settlement Procedure; to this end, the possibilities of reaching a common understanding among the undertakings concerned and the HCC regarding the infringement, within a reasonable timeframe are taken under consideration. 379. Towards that direction, the HCC will take into account elements such as:  The sincere intention of the undertakings concerned to submit themselves to the Settlement Procedure;  The number of the undertakings concerned and the degree of participation of each of them in the infringement, given that the larger the number of undertakings concerned that express their interest to participate in a Settlement Procedure, and/or the higher the degree of their participation in the infringement, the greater the procedural efficiencies anticipated to come up;  The degree of challenging the facts, their legal evaluation, and the participation and liability of each of the undertakings concerned;  The anticipated, expected or expressed non-converging views of the undertakings concerned in respect of the abovementioned;  The number of applications to participate in the Leniency Program, which have been submitted within the context of the particular case in question;  The occurrence of potentially aggravating circumstances; and  The anticipated degree of achieving procedural efficiencies, resulting from the prospect of avoiding extended delays and consumption of resources for the provision of full access to the file and the exercise of the right to an oral hearing before the HCC, or even as a result of the reduction of the possibilities of initiating filing judicial actions before the administrative courts. In any case, the HCC considers that the earlier during the investigation of a case the undertakings concerned express their interest, and basically prior to the notification to the parties of the Statement of Objections, the higher the contribution of the Settlement Procedure to reinforcing the efficiency of the procedure of the HCC is. 380. The HCC may well take into account other factors, beyond those related to the potential enhancement of the efficiency of the administrative procedure, which may be deterrent to the application of the Settlement Procedure, and requiring handling under the usual procedure of adopting a prohibition decision under Article 25 of Law 3959, such as, particularly, potentially innovative legal issues, or the likelihood of generating res judicata. 381. The HCC will not initiate the Settlement Procedure in cases where, either concurrently or separately: 310

. Settlement Notice, footnote 15.

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 The case does not refer to horizontal cartel collusions;  The prospect of achieving procedural efficiencies is not enhanced;  The arguments of the undertakings concerned within the context of their official submission regarding the settlement are not in line with the applicable national and EU legal theory and case law. 382. Likewise, the HCC will interrupt the Settlement Procedure at any stage, in cases where, either concurrently or separately:  The above-mentioned factors arise in the course of the process, rendering inadequate the initiation of the procedure;  The interest of the undertakings concerned to participate in the Settlement Procedure is expressed in an obstructing manner, or they go away from the Settlement Procedure;  Substantial evidence arise that the undertakings concerned act with a view to, partially or totally, forging or eliminating any evidence related to the infringement of the competition rules, or to the calculation of the fine to be imposed by the HCC;  It results that the undertakings concerned infringed their confidentiality obligation, as provided for in the Settlement Decision, and revealed to any third party the content of the meeting with the HCC or the documents to which they were provided access within the context of the Settlement Procedure. 383. In case of interruption of the procedure in respect of all or some of the undertakings concerned, for any reason whatsoever, the HCC may continue the investigation to verify the existence of infringement or not, with a view to adopting its decision according to Article 25 of Law 3959. In any case, where not all the undertakings concerned, that participated in the infringement, participate in the Settlement Procedure, either from the beginning, or as a result of withdrawals in the course of the Settlement Procedure, the HCC proceeds with the adoption of a decision addressed to the undertakings acknowledging their participation in the infringement and the resulting liability, and a distinct decision addressed to the undertakings that decided not to acknowledge their participation in the infringement and the resulting liability, according to Article 25 of Law 3959. 311

8.1.2. Procedure 384 The initiative to participate in a Settlement Procedure belongs to the undertakings concerned. They may express their interest to participate in a Settlement Procedure at the stage of investigation of the case preceding the notification of the Statement of Objections, and no later than thirty-five (35) days prior to the hearing of the case before the HCC in cases where the relevant Statement of Objections has been served to the parties.

8.1.2.1 Preparatory Actions – Initiation of the Procedure 8.1.2.1.1. PREPARATORY ACTIONS 385. Undertakings concerned may come in contact with the Competition Directorate General, at the stage prior to the assignment of the case to a Rapporteur (Case-Handler), or even with the appointed Rapporteur (CaseHandler), at the stage following assignment of the case to him/her, with a view to expressing their interest to participate in a Settlement Procedure, as soon as they become aware by any means of the investigation carried out against themselves in respect of their potential participation in a horizontal cartel collusion. 386. Following expression of interest by one or more of the undertakings concerned, provided that the Competition Directorate General or the appointed Rapporteur (Case-Handler) consider that the case is suitable, prima facie, to be subject to the Settlement Procedure, they inform all the undertakings concerned about the possibility to express their interest to participate in the Settlement Procedure for the specific case in question. 387. After the above-mentioned communication, the Competition Directorate General or the appointed Rapporteur (Case-Handler), in cases where they consider opportune to investigate the sincere intention of the parties to participate in a Settlement Procedure, summon all the undertakings concerned and set a deadline of at 311

. Settlement Notice, recitals 5–12.

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least ten (10) days within which the parties may express such intention in writing. By the same statement the undertakings concerned appoint the natural person(s), that will represent them during the bilateral meetings with the appointed Rapporteur (Case-Handler), as well as their potential lawyers. Such written statement by the undertakings concerned does not constitute acknowledgement on their part of their participation in an infringement, nor acknowledgement of liability for such infringement, whilst it does not have any binding effect by any means for the HCC. 388. Thereafter, the Competition Directorate General or the appointed Rapporteur (Case-Handler) informs the Plenary of the HCC about the written statements of expression of interest submitted by the undertakings concerned, and the prospects of applying the Settlement Procedure in the case in question. If the case is considered suitable for settlement, the Competition Directorate General or the appointed Rapporteur (CaseHandler) inform, also, the HCC about the basis on which it is possible to carry out the bilateral meetings with the parties concerned, mentioning the substance of the allegations attributed to the undertakings concerned, the main evidence substantiating them, as well as the range of the potential fines (minimum and maximum amount calculated on the basis of the relevant sales‟ value), according to the relevant Notice of the HCC. 312

8.1.2.1.2.

INITIATION OF THE SETTLEMENT PROCEDURE

389. The Plenary of the HCC evaluates the abovementioned and, after taking into account upon its discretion, the need to ensure the purpose of the ongoing investigation and its progress in general, it proceeds as follows:  At the stage of investigation of the case prior to its assignment to a Rapporteur (Case-Handler), it prioritizes the case and assigns it to a Rapporteur (Case-Handler), according to Article 15(2) of Law 3959, whom it also authorizes to carry out bilateral meetings with the undertakings concerned with a view to a potential settlement of the case, otherwise the investigation of the case proceeds according to Article 25 of Law 3959.  If the case has already been assigned to a Rapporteur (Case-Handler), it authorizes the Rapporteur (Case-Handler, to whom the case is already assigned according to Article 15(2) of Law 3959, to carry out bilateral meetings with the undertakings concerned with a view to a potential settlement of the case, otherwise the investigation of the case proceeds according to Article 25 of Law 3959. 390. The provision of the abovementioned authorization to the Rapporteur (Case-Handler) to carry out bilateral meetings suspends the deadlines regarding the submission of the Report (Statement of Objections) to the Plenary and the adoption of the final decision on the case, according to Article 15(4) and (5) of Law 3959, in respect of all the parties concerned.

8.1.2.1.3. BILATERAL MEETINGS AND SUBMISSION OF PROPOSALS FOR SETTLEMENT 8.1.2.1.3.1 BILATERAL MEETINGS FOR THE SETTLEMENT OF THE CASE 391. Each of the undertakings participating in the procedure for the potential settlement of the case receives, in the course of bilateral meetings, information by the appointed Rapporteur (Case-Handler) regarding the most important elements of the case, such as:  The facts under investigation and their legal evaluation within the context of verifying the infringement;  The gravity and the duration of the cartel collusion under investigation;  The participation and the liability attributed to each individual company;  The key evidence on which the alleged objections are based;  The calculation of the range of a potential fine on each individual company, according to the relevant Notice of the HCC. 392. The appointed Rapporteur (Case-Handler) retains discretion to decide on the suitability and the rhythm, on which the bilateral meetings for the settlement of the cases with each one of the undertakings will be carried out, as well as the autonomy to decide the order and the sequence of the bilateral meetings, taking into account 312

. Settlement Notice, recitals 13–17.

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the overall progress achieved each time, and also the phase at which specific information will be disclosed to the undertakings participating in the bilateral meetings, including the key available evidence each time, on the basis of which the alleged objections are substantiated and the potential fines are imposed. 393. Within this context, in the course of the bilateral meetings the Rapporteur (Case-Handler) may disclose to the participating undertakings non-confidential versions of any document included in the file of the case at such specific time, on the basis of which the alleged objections are substantiated and the potential fines are imposed. Likewise, upon a reasoned request by the undertakings concerned and at a time the Rapporteur (CaseHandler) considers suitable, taking into account the progress that will have been achieved during the bilateral meetings, he/she may grant access to the most important evidence in the file of the case that have been taken under consideration, up until such specific time, in order to corroborate the alleged infringements, with a view to allowing each party concerned to decide whether or not it will proceed with the settlement of the case. 394. Such information and the relevant documents remain confidential. Each of the undertakings participating in the bilateral meetings, as well as their appointed lawyers, do not have the right to disclose to a third party, either concerned or not, the content of the meeting or the documents which have been disclosed to them, or to which access have been granted in the course of the Settlement Procedure, unless they have obtained written permission to this end by the President of the HCC. The appointed Rapporteur (Case-Handler), in cases where he/she considers it opportune, may at any stage update the Plenary of the HCC on the progress of the procedure, specifically in cases where, as a result of the bilateral meetings with the interested parties, the basis, on which such bilateral meetings for the settlement of the case are carried out, is likely to be modified substantially.313

8.1.2.1.3.2 SUBMISSION OF PROPOSALS REGARDING SETTLEMENT 395. In cases where it is verified that sufficient and substantial progress has been achieved which allows for the submission of proposals by the undertakings participating in the bilateral meetings to deal with the case according to the Settlement Procedure, the Rapporteur (Case-Handler) updates briefly the undertakings participating in the procedure on the outcome of the completed bilateral meetings, and invites them to submit, within a deadline of thirty (30) days, an official proposal for the settlement of the case (hereinafter “Settlement Proposal�), which will take into account and depict such outcome. The deadline may be prolonged by the appointed Rapporteur (Case-Handler) for up to fifteen (15) days upon a reasoned request. Before the Rapporteur (Case-Handler) sets the deadline for the submission of the proposals regarding settlement of the case, the undertakings participating in the bilateral meetings have the right to be informed about the non-confidential versions of any document included in the file of the case and the most important evidence, on the basis of which the alleged objections are substantiated and the potential fines are imposed. 396. More specifically, the Settlement Proposal by each of the undertakings concerned shall include: (a) Unconditional acknowledgement, upon clear terms not susceptible to misinterpretation, of the participation by each undertaking in the infringement(s) of Article 1 of Law 3959 and/or 101 TFEU, as well as of its liability emanating from such participation, which will be described briefly, regarding its object, its potential realization, the key facts, their legal evaluation, including the role of each undertaking, and the duration of its participation in the infringement in question, according to the outcome of the bilateral meetings carried out for the settlement of the case; (b) Acknowledgement of the maximum amount of fine that may be imposed by the HCC within the context of the Settlement Procedure, according to the outcome of the bilateral meetings; (c) Confirmation by the undertaking concerned that it has been sufficiently informed about the alleged infringement(s) charged to it, and it has been provided with adequate opportunities to present its arguments, legal and factual, and its views on them; (d) A statement by the undertaking concerned by which it waives its right to be granted additional and/or full access to the administrative file of the case, and its right to an oral hearing before the HCC, without prejudice to a situation where the Settlement Recommendation does not reflect the Settlement Proposal or the HCC does not accept by its decision such Settlement Proposal; 313

. Settlement Notice, recitals 18–24.

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(e) A statement by the parties that they waive any potential right to challenge the jurisdiction of the HCC and/or the validity of the procedure followed with a view to imposing on them a fine in the course of the Settlement Procedure. 397. The Settlement Proposals with the content described above submitted by the undertakings concerned constitute an expression of their commitment to cooperate, and they are unconditional and irrevocable, including their acknowledgement of the maximum amount of the fine that may be imposed, whilst the only condition they are subject to is their acceptance by the HCC. In cases where a Settlement Proposal is not submitted by a specific undertaking(s) according to the abovementioned provisions and within the deadline set, the normal investigation proceedings revive in respect of such undertaking(s). In such cases, the deadlines for the submission of the Report (Statement of Objections) to the Plenary and the adoption of the final decision on the case, according to Article 15(4) and (5) of Law 3959, start counting from the date the Settlement Decision of the HCC, adopted under Article 25a of Law 3959, is served to the parties subject to the Settlement Procedure. 398. In case that the number and/or the degree of participation of the undertakings that submitted Settlement Proposals are such that do not allow the achievement of the expected degree of procedural efficiencies, the HCC may at its discretion interrupt the Settlement Procedure. In such case, the normal investigation proceedings revive in respect of such undertakings, whilst the deadlines for the submission of the Report (Statement of Objections) to the Plenary and the adoption of the final decision on the case, according to Article 15(4) and (5) of Law 3959, start counting from the date the procedural action recording interruption of the Settlement Procedure is served to the parties.314

8.1.2.1.4. INITIATION OF THE SETTLEMENT PROCEDURE IN CASES WHERE A STATEMENT OF OBJECTIONS HAS BEEN SERVED TO THE PARTIES 399. In cases where the Statement of Objections has been served to the parties, the undertakings concerned may express in writing their interest in exploring the possibility of participating in a Settlement Procedure, by the latest thirty-five (35) days prior to the hearing of the case before the HCC. If such requests are submitted, the Plenary of the HCC decides whether by exception it will initiate the Settlement Procedure in respect of the specific case in question, taking into account, in addition to the criteria laid down in the Settlement Notice, the objections charged to the undertakings concerned and the evidence substantiating them, and if it does not accept such requests, the hearing of the case proceeds as usual. For reasons of procedural efficiencies and acceleration of the relevant procedure, the Plenary of the HCC may decide the initiation of the Settlement Procedure in respect of a specific case even before the expiration of the above deadline for the submission of the relevant requests, provided that this is justified by the number and/or degree of participation in the infringement on the part of the undertakings that submitted the relevant request. In such case, in respect of the rest of the undertakings concerned, which submit a relevant request up until the expiration of the abovementioned deadline, the already initiated Settlement Procedure is automatically followed, without a new decision to this end by the Plenary of the HCC being required. 400. In cases where the HCC decides the initiation of the Settlement Procedure in respect of a specific case on the basis of the above, it informs the parties, sets a date for the initiation of the bilateral meetings with each of the undertakings that submitted a request, and summons to this end each of these undertakings, and postpones the hearing of the case in respect of these undertakings concerned that did not submit a request for settlement. The postponement of the hearing does not cover the deadline for the submission of written pleadings, and the deadline for the submission of supplementary written pleadings for those of the undertakings concerned that did not submit a request to participate in the Settlement Procedure. As a general rule, the bilateral meetings for the settlement of the case with each of the undertakings concerned at this stage are organized within a few days, so that the important elements of the case are clarified by the latest in the course of the second bilateral meeting. 401. In cases where the bilateral meetings procedure between the Plenary of the HCC and each of the undertakings concerned results, within the deadline set by the HCC to this end, in the submission of official Settlement Proposals by the undertakings concerned, the HCC assigns to the appointed Rapporteur (CaseHandler) the task of drafting a Settlement Report. In cases where, upon completion of the bilateral meetings procedure with the HCC, the deadline for the submission of a Settlement Proposal lapses without any action by the parties concerned, or the procedural action recording interruption of the Settlement Procedure is served to the

314

. Settlement Notice, recitals 25–29.

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parties, the hearing of the case resumes on the basis of the Report (Statement of Objections) already served to the parties, which are summoned to this end. 402 The initiation of the Settlement Procedure at this stage triggers the suspension of the deadline within which the HCC shall adopt its decision, according to Article 15(5) of Law 3959. Such deadline starts counting again, either upon expiration of the deadline to submit a Settlement Proposal upon completion of the bilateral meeting with the HCC without any action on the part of the undertakings concerned, or by the service of the procedural action recording interruption of the Settlement Procedure to all the undertakings concerned, or by the service of the Settlement Decision of the HCC according to Article 25a of Law 3959 to the undertakings concerned that have participated in the Settlement Procedure.315

8.1.2.2 Settlement Report and Statement by the parties 403. Provided that the Settlement Proposals by the undertakings concerned depict the outcome of the meetings that have taken place, the appointed Rapporteur (Case-Handler) drafts a Settlement Report, which takes into account the content of such proposals and recommends their acceptance by the Plenary of the HCC, retaining the discretion of the Rapporteur (Case-Handler) to recommend to the HCC the interruption of the Settlement Procedure. The Settlement Report includes all the necessary information, which will allow the undertakings concerned to verify that it reflects indeed the Settlement Proposals, and is served to the parties within two (2) months from the last, in chronological order of submission, Settlement Proposal. The deadline may be prolonged for an additional one (1) month, in cases where the Settlement Proposals require clarifications, and/or are not complete, resulting in the appointed Rapporteur (Case-Handler) not being able to proceed with their evaluation. 404. Upon service of the Settlement Proposal, the undertakings concerned are invited, within a deadline of ten (10) days, to confirm by a statement to this end (hereinafter Settlement Statement), irrevocably, unconditionally, and clearly, that the Settlement Report reflects the Settlement Proposal, and consequently their commitment to participate in the Settlement Procedure remains in force. In cases where no Settlement Statement is submitted, or it is submitted but not in a suitable manner, the Settlement Procedure is interrupted, and in respect of such undertaking(s) the normal investigation procedure resumes, according to Article 25 of Law 3959. The deadlines for the submission of the Report (Statement of Objections) to the Plenary and the adoption of the final decision on the case, according to Article 15(4) and (5) of Law 3959, start counting either by the service of the procedural action recording interruption of the Settlement Procedure to all the undertakings concerned, in cases where no Settlement Statement is submitted, or by the service of the Settlement Decision of the HCC according to Article 25a of Law 3959 to the undertakings concerned that have participated in the Settlement Procedure, in cases where valid Settlement Statement have been submitted. 405. In cases where the undertakings concerned do not submit Settlement Statements for any reason whatsoever, the Settlement Proposals are considered revoked in their entirety, do not bind the undertakings concerned, and cannot be used in order to substantiate the alleged infringement against any of the undertakings concerned, neither by the HCC, nor by the Courts.316

8.1.2.3 Decision of the HCC regarding the definitive settlement of the case 406. Provided that the undertakings concerned submit Settlement Statements, the CC proceeds with the adoption of a definitive decision for the settlement of the case according to the simplified procedure. 317 The Settlement Report is not binding upon the HCC, which enjoys broad discretion to reevaluate, from a legal and factual perspective, the evidence in the file of the case, the Settlement Proposals and the Settlement Statements, and eventually interrupt the Settlement Procedure. The HCC in such evaluation is not constrained, nor bound by any preliminary/preparatory evaluations that had adopted in respect of the initiation of the Settlement Procedure and the evaluation of its progress. In cases where the HCC, on the basis of the above, opts for not adopting the Settlement Report, it notifies the parties accordingly. In such case, the normal investigation procedure according to Article 25 of Law 3959 resumes, and the deadlines for the submission of the Report (Statement of Objections) to the Plenary and the adoption of the final decision on the case, according to Article 15(4) and (5) of Law 3959 315

. Settlement Notice, recitals 30-34, and footnote 31.

316

. Settlement Notice, recitals 35–38.

317

. See Article 27 of the Regulation.

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start counting upon notification of the parties. The Settlement Proposals and the Settlement Statements are considered revoked in their entirety, do not bind the undertakings concerned, and cannot be used in order to substantiate the alleged infringement against any of the undertakings concerned, neither by the HCC, nor by the Courts. 407. By the adoption of the HCC decision regarding settlement of the case following the simplified procedure, the infringement(s) is/are verified, and a description of the following is included: the substantial legal/factual elements, the key evidence which substantiate such infringement(s), the infringement(s)â€&#x; duration and potential implementation, the participation in the infringement(s) by each undertaking and its duration. Furthermore, the Settlement Procedure taking place for the case in question with the cooperation of the undertaking concerned is revealed, and the penalties provided for in Articles 25a and 25(1) of Law 3959 are imposed. By the same decision, the amount of the fine that would have been imposed in case of no settlement, calculated according to Article 25 of Law 3959 and the relevant Notice of the HCC providing guidelines on the calculation of fines (2006), is reduced by 15%. 408. Whenever undertakings that have submitted a request to participate in the Leniency Program are involved in cases subject to the Settlement Procedure, the abovementioned Settlement Decision of the HCC grants the leniency benefit, provided that it is verified that the terms and conditions laid down in the Leniency Program are fulfilled. In case the leniency benefit is granted to an undertaking concerned, which is also participating in the Settlement Procedure, the reduction of the fine as a result of the participation in the Settlement Procedure increases the reduction of the fine as a result of participation in the Leniency Program. 409. Upon service of the decision of the HCC according to Article 25a of Law 3959 to the undertakings concerned that participated in the Settlement Procedure, the deadlines for the submission of the Report (Statement of Objections) to the Plenary and the adoption of the final decision on the case, according to Article 15(4) and (5) of Law 3959 start counting. The fact that a specific case had been subject to the Settlement Procedure does not bind in any case the HCC in respect of present or future procedures or cases, and does not create any right or legitimate expectation that other, present or future cases will be dealt with according to the Settlement Procedure.318 410. In cases where, following the abovementioned settlement procedure, the infringer acknowledges its liability before the competent authority, and pays in full the amount of fine imposed, the punishable nature of the relevant offences committed by the same infringement is lifted, and a full immunity from administrative penalties of other nature takes effect. In cases where the payment of fine in installments is allowed, the initiation of criminal proceedings is suspended for as long as the arrangement is in place and the debtor complies with the relevant conditions of such arrangement. During such suspension period, the limitation period of the offences committed is suspended.319

8.1.2.4 General rules governing the Settlement Procedure 411. In the course of the Settlement Procedure and with a view to ensuring efficient exercise of the rights of defence, the parties concerned may address themselves to the President of the HCC in respect of issues that may arise and are related to the proper implementation of the procedure, which it was not possible to settle by consultation with the Rapporteur (Case-Handler) or the Competition Directorate General.320 412. The statements within the context of the assessment of the possibility to participate in the Settlement Procedure, the technical documents that are potentially submitted by the undertakings concerned in the course of the bilateral meetings, the potential minutes of the bilateral meetings in the form of internal documents, the more or less extended parts of the appointed Rapporteur (Case-Handler) Report, which reproduce the outcome of the bilateral meetings, the Settlement Proposals, the Settlement Statements, the minutes of the bilateral meetings before the HCC, and the reference to integral parts of the abovementioned documents, which is included in other documents, are considered classified information, which is not revealed to third parties, including natural or legal persons that have submitted a complaint under Article 36 of Law 3959. Access to the abovementioned documents is granted, in accordance with the relevant provisions regarding access to the file, only to the 318

. Settlement Notice, recitals 39-45 and 47.

319

. Article 44(3) of Law 3959, as amended by Article 106 of Law 4389/2016, Federal Gazette, 94/A/27.05.2016.

320

. Settlement Notice, recital 48.

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undertakings concerned, which participated in the Settlement Procedure, and on the condition that such undertakings, as well as their appointed lawyers who are granted access on their behalf, are committed that such documents and the information contained within will be used exclusively for the purposes of the procedure before the HCC, by derogation of Article 15(14) of the Regulation. In any case, the abovementioned documents cannot be used against an undertaking concerned within the context of other judicial or administrative proceedings, and are considered unacceptable as evidence in the course of damages lawsuits. In order to ensure that the abovementioned restrictions in access and use of such information are efficient, the legal and natural persons infringing them will be subject to the applicable penalties provided for in the legislation in force, or will be provided for in the course of transposition into national law of Directive 2014/104/EU. The use and/or disclosure of the abovementioned documents and information for other purposes constitutes an aggravating circumstance according to recital 14 of the HCC Notice with the Guidelines on the calculation of fines, and may be potentially considered refusal to cooperate with the HCC within the context of the Leniency Program. 413. Natural or legal persons that have submitted a complaint according to Article 36 of Law 3959, the investigation of which is subject to the Settlement Procedure, are informed, upon a reasonable request, about the nature and the object of such procedure. The HCC at its discretion has the power, as the case may be, to set a specific deadline, within which complainants under Article 36 of Law 3959 submit in writing their arguments. Complainants are not entitled to receive a non-confidential version of the Settlement Report, and do not have a right to an oral hearing before the HCC. Access to the non-confidential information of the file of the case is granted to complainants after the service of the HCC Settlement Decision according to Article 25a of Law 3959 to the undertakings concerned that have participated in the Settlement Procedure. The decision of the HCC adopted according to the Settlement Procedure is subject to judicial review according to the relevant provisions.321

8.1.2.5 Applicability of the Settlement Procedure in pending cases before the HCC: the construction industry case 414. The Settlement Notice is rendered explicitly applicable also to all the cases of a cartel nature which were pending at the time of its entry into force following publication in the Federal Gazette. 322 In fact, there is an open case in the constructions sector, which may potentially be the first case in which the Settlement Procedure will be applied. In May 2016, the HCC addressed a statement of objections to a large number of undertakings active in the construction sector regarding an alleged infringement of Article 1 of Law 3959 and Article 101 TFEU. The ex officio investigation at issue focuses on an alleged collusion regarding tenders for public works of infrastructure, notably road construction, rail transport, metro rail and concession projects (public-private partnerships). According to the statement of objections, six large Greek groups of companies concerned participated, with varying starting points, in bid-rigging for public construction works that spanned from 1989 to 2016. Based on the evidence gathered in the course of the investigation, the implicated construction companies coordinated their business conduct on responses to invitations to tender, particularly by: 

Submitting cover bids and/or agreeing amongst themselves who will submit the winning bid;

Fixing the level of bids (rebates granted)

Suppressing bids in return of monetary compensation;

Agreeing to execute sub-contracts before submitting their respective bids; or

Withdrawing from bidding in return of jointly executing the respective works.

415. The collusive scheme was implemented through regular meetings of representatives of the implicated undertakings, potential competitors among themselves, and/or the conclusion of compensatory contracts. One of the group of companies concerned contributed considerably in the substantiation of the infringement by submitting a leniency application following the dawn raids conducted by the HCC.

321

. Settlement Notice, recitals 49–52.

322

. Settlement Notice, recital 46.

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416. Furthermore, according to the statement of objections, a large number of Greek and foreign undertakings, including undertakings within four big international groups of companies active in various sectors, as well as a bank, each participated in individual anti-competitive tenders, and for varying time-periods, within the context of the collusive scheme under investigation. 417. Finally, the statement of objections recommends the finding of an infringement in respect of a number of other companies, and two Greek associations of undertakings in the construction sector, although their participation in the infringement is subject to the 5-year limitation period for the imposition of penalties.323 418. Following the service of the statement of objections, the HCC had initially scheduled to hear the case on 21 July 2016. The hearing was, nevertheless, postponed and according to the information provided by the HCC at its website, a new date will be set following the evolution and the results of the settlement procedure. Apparently, some of the many undertakings concerned expressed their initial interest to participate in the settlement procedure, and within this context and pursuant to the procedure described above, given that a statement of objections has been already served to the parties concerned, various bilateral meetings between the Plenary Session of the HCC and the undertaking(s) wishing to participate in the Settlement Procedure were scheduled to take place in September and October 2016.

9. Special Sectors of the National Economy 9.1. Electronic Communications 419. As mentioned above, in the field of electronic communications, the EETT has the jurisdiction to apply the competition rules as provided for in Law 3959, and in Articles 101 and 102 TFEU, in respect of the activities of electronic communications companies. Unfortunately, unlike the situation with the decisions of the HCC, the EETT is not obliged to publish its decisions in the Federal Gazette. Consequently, the only source of information is the press, and the website of the authority www.eett.gr, in which the entire texts of some of its decisions are published, but regrettably not all of them. From the texts published information and data considered to constitute business secrets, and thus protected by the obligation to respect confidentiality, are deleted. 324 420. In fact, the EETT has been in the past rather active in the field and has adopted numerous decisions applying the national competition rules, upon complaints of other interested parties (alternative operators) against the incumbent. Thus, the EETT has verified numerous infringements, mainly of Article 2 regarding abuses of dominant position. The prohibited abuse of dominant position took various forms: refusal to deal and delays which resulted in refusal to deal, price/margin squeeze, prohibited sales below cost, prohibited fidelity rebates, etc. 421. Generally speaking and on the basis of the decisions adopted so far, it may be concluded that the EETT applies and follows the practice and the case law of the European Commission and the European Courts. However, it is to be noted that, unlike the HCC, the EETT has not so far been audacious in respect of the calculation of fines. Thus, despite the fact that in its decisions it makes reference and gives the impression that it takes into account the provisions of the Guidelines on the calculation of fines, the fines finally imposed, even in cases of serious forms of abuse of dominant positions, are significantly lower than those that should have been imposed, had the Guidelines been taken into account. As a result, the fines are in most of the cases deprived of their deterrent nature, a fact that is corroborated by the recurring violations of the competition rules by the same company. 422. A bright exception to the above approach has been the fine imposed by the EETT on the incumbent telecommunications operator by its Decision 447/01/26 July 2007, which amounted to EUR 20.1 million (EUR 20 million for the infringement of competition rules and EUR 100,000 for the infringement of the electronic 323

. See the relevant Press Release of the HCC, dated 17 May 2016, available at its website.

324

. The practice of the authority so far has been to publish in the Federal Gazette only the decisions of a regulatory nature, but none of those enforcing the electronic communications and competition legislation by the imposition of fines. Strangely and certainly unreasonably, in the versions of the decisions appearing at the website of the EETT, the amounts of fines imposed used to be deleted, although they were announced by a press release and they appeared in all the paper and electronic mass media at the time of the adoption of the relevant decisions, and contrary to the situation as it stands with the fines imposed by the HCC, which are published together with the entire decision in the Federal Gazette. Later, this practice was changed, and the fines did appear in those of the decisions published at the website of the authority.

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communications rules). The decision had been adopted on the basis of a complaint lodged by one of the main competitors in the broadband access market. The EETT verified the existence of a dominant position of the defendant in the wholesale broadband access market, in the retail broadband access market through xDSL technology, and in the market of retail broadband access to the internet through xDSL technology. Thereafter, the EETT referred to the notion of „special responsibility‟ of the defendant, formulated by the case law of the European Courts, to abstain as a dominant undertaking from practices that would harm the genuine and unrestricted competition in the market. Subsequently, the EETT examined the existence of various types of abuses put forward by the complaint. 423. The most serious abuse, the existence of which had been verified by the decision of the EETT, was price/margin squeeze. In reaching such conclusion the EETT applied one of the two methods provided for in the Access Notice of the European Commission, and based its decision on the cost elements of a reasonable efficient operator.325306 The technical and economic model applied corroborated, according to the authority, the existence of abuse of the dominant position in the form of price/margin squeeze, with a view to driving the defendant‟s competitors out of the retail broadband access through xDSL technology, and the retail broadband access to the internet through xDSL technology, markets. 424. Other abuses verified by the EETT were discriminatory practices and the application of dissimilar conditions to equivalent transactions, in the form of: (a) the creation of a specialized call centre to provide technical support to the customers of the defendant, to which access of the customers of the defendant‟s competitors was not allowed, and (b) differentiation of the terms applicable to wholesale and retail contracts (i.e., minimum duration of twelve months imposed to the defendant‟s competitors, but not to its customers, resulting thus in the competitive disadvantage of the former). On the contrary, the complainant did not provide, according to the EETT, enough evidence to justify the alleged abuses of the dominant position in the forms of tying, limitation of production, consumption, or technical development to the detriment of the consumers, and predatory pricing. 425. As it was expected, the defendant brought an action for annulment against the decision of the EETT before the Athens Court of Appeals. The Court‟s judgment 2193/2009 accepted partially the action for annulment, and reduced the fine to EUR 10.1 million. In reaching such ruling, the Court concluded that, on the basis of the information available to it, the abuse of dominant position in the form of price/margin squeeze had been sufficiently justified by the EETT, whilst the other abuses mentioned above had not. The Court took, additionally, into account the fact that the EETT, by a decision adopted in August 2007, regulated itself the wholesale broadband network connections prices. 426. It is important to mention that the Court, due to a procedural irregularity, did not take into account the affidavit provided by an emeritus professor of economics and the technical study of an independent company, which practically challenge the methodology and the correct application of the technical and economic model applied by the EETT to prove price/margin squeeze. The reason provided by the Court, in justification of its refusal to evaluate the allegations provided therein, is that, according to Greek Code of Administrative Proceedings, the content of these documents and the allegations therein constitute grounds of the action for annulment, and thus should have been included in the body of the action for annulment. Such allegations cannot be taken into account when included in the evidence provided for the corroboration of the grounds of the action for annulment, nor is it allowed to supplement at a later stage the grounds of the action for annulment by the provision of the necessary evidence. Thus, the technical and economic model in its substance, the methodology and its application by the EETT has not been examined and confirmed by the Court‟s ruling. Both EETT and the defendant brought an action for annulment against such ruling of the Court of Appeals before the Council of State. It will be interesting to see whether the Council of State will confirm the above approach of the Court of Appeals, or it will refer back the case to the Court of Appeals requesting it to take into account and evaluate the 325

. Notice on the application of the competition rules to access agreements in the telecommunications sector – framework, relevant markets and principles (Access Notice), Official Journal C265, 22 Aug. 1998, 2–28, recitals 117–118. According to the method applied, the price squeeze had demonstrated by the fact that the margin between the price charged to competitors on the downstream market (including the dominant company‟s own downstream operations, if any) for access and the price which the network operator charges in the downstream market is insufficient to allow a reasonably efficient service provider in the downstream market to obtain a normal profit (unless the dominant company can show that its downstream operation is exceptionally efficient). The other method, that is demonstration of price squeeze by showing that the dominant company‟s own downstream operations could not trade profitably on the basis of the upstream price charged to its competitors by the upstream operating arm of the dominant company, could not be applied, according to the conclusions of the EETT, to the case in question, mainly due to the fact that the information (revenues, costs, etc.) provided by the defendant had been insufficient: see para. 13.4.1 of the decision published at the website of the EETT.

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allegations put forward in the above documents. The hearing on the appeal against the Court‟s judgment before the Council of State has taken place on 30 November .2014, the judgment of the Supreme Administrative Court is, nevertheless, still pending. 427. Lastly, it is worth mentioning a major difference, and a resulting disparity, existing between the sector of electronic communications and the rest of the sectors of the national economy, which it is doubted whether it is compatible with the principle of equal treatment. In the field of electronic communications, interested parties enjoy still the right to request the EETT to adopt interim measures, in cases of prima facie infringements of the competition and the electronic communications sector specific legislation, which, as mentioned above, does not exist anymore ever since the latest applicable versions of Law 703/77, in cases of infringement of the competition rules in other sectors of the economy. The conditions to be fulfilled for granting interim measures, the procedure to be followed, and the judicial protection against the decision to be adopted at the end of such proceedings, are laid down by a decision of the EETT. 326

10. Recent/Future Developments and Conclusions 428. Following the adoption of Law 3959, the adoption of a number of legislative acts was provided therein. It is a very good sign that the most important of these acts have already been adopted very quickly (i.e., the Presidential Decree 76/2012 regarding the organization and structure of the Competition Directorate General, the Joint Ministerial Decision regarding the Regulation of Internal Operation and Administration of the Competition Commission, and the Decision of the HCC regarding commitments). Thus, the recent changes in the legal framework of competition policy and the HCC, enjoying new powers and greater independence, have brought the legal framework close to OECD best practices. Greece does not need large changes in its legal regulatory framework, but rather an improvement in its ability to eliminate unnecessary restrictions on competition. Still pending are the Joint Ministerial Decision regarding the establishment, staffing, and operation of the Legal Support Office, and, more importantly, the Presidential Decree regarding the establishment of specific for the hearing of competition cases chambers at the Administrative Court of Appeals of Athens, which is expected to improve to a great extent the provision of judicial protection in competition cases. According to the OECD, Greece would profit from strengthening the judicial process related to competition by creating specialized appeal courts and training judges. Currently decisions tend to be taken on a formalistic assessment rather than the impact on social welfare, which often leads to decisions that reduce consumer welfare. In this regard, including economists or judges with specific training in economics and competition in the bodies dealing with competition cases can be useful.327 429. Regarding the HCC‟s enforcement activities, an important decision has been adopted in November 2013, but was published more than one year later at the end of December 2014. The decision concerned certain practices in the market of retail sales of telecommunication devices and accessories, IT products, digital products, batteries, and various technology products. The HCC imposed a fine on the defendants in the case of a total amount of EUR 10,251,548 for infringements of Articles 101 TFEU and 1 of Law 3959, in the form of engaging in resale price maintenance, and restricting cross-supplies between distributors/franchisees within the defendant‟s selective distribution system. 430. According to the findings of the HCC, specific terms of the defendant‟s franchise agreements signed with the majority of the franchisees throughout a long period of time, which exceeded twenty years (1990–2012), amounted to (a) a direct and/or indirect determination of its franchisees‟ resale prices, (b) a restriction of sales to other franchisees within the network and/or to other authorized distributors of the defendant – both vertical restrictions that constitute serious infringements of competition law (and restrictions by object within the meaning of EU and national competition rules), and (c) a non-competition clause.

326

. The EETT Decision 272/64/2003, Federal Gazette 158/B/2003. Article 3 refers to an „infringement of the legislation in force in the field of telecommunications‟, as a condition for applying for interim measures, which seems to include the relevant competition provisions. In fact, the EETT has held admissible and heard a request for the adoption of interim measures, founded on an alleged infringement of competition rules in the electronic communications sector. A potential change of this position in the near or further future will inevitably cause problems, also in respect of the principle of legal certainty.

327

. OECD (2016), OECD Economic Surveys: Greece 2016, OECD Publishing, Paris, pp. 78–79, available at http://dx.doi.org/10./1787/eco_surveys-grc-20160-en

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431. The HCC further concluded that the resale price restrictions were partly implemented in practice, particularly in view of the fact that the margin of the franchisees was fixed for the longest part of the time period under review. However, the HCC considered that a joint software system (used by all the franchisees and accessible to the defendant undertaking through an on-line connection) could not properly be deemed to facilitate price rigidity, as was the case in HCC Decision 495/VI/2010. In particular, the HCC concluded that, in the specific circumstances of the case in question, the said allegation could not be substantiated to the requisite legal standard, notwithstanding the fact that the software on-line system at hand exhibited several technical similarities to the system condemned by the HCC‟s previous relevant Decision. Restrictions of cross-supplies were also, at least partially, applied in practice, thereby resulting to a restriction of intra-brand competition.328 Upon appeal, the Administrative Court of Appeals of Athens upheld the core part of the decision, and annulled only the part concerning the calculation of the fine. The case was sent back to the HCC, in order for it to exercise its discretion in respect of the calculation of the fine separately for each of the infringements verified, i.e. the resale price maintenance, the restriction of mutual supplies among distributors-franchisees, and the non-competition clause.329 432. Furthermore, the HCC adopted its decision in respect of the investigation concerning the distribution networks operated by the leading producers of tobacco products in Greece, focusing on potential vertical restraints in the new agreements concluded between those tobacco producers and their new distributors. The HCC initiated the investigation following complaints by former tobacco distributors and their trade associations, alleging that tobacco producers involved coordinated in respect of the revision of their distribution networks in which proceeded simultaneously, and refused illegally to supply them with products, as well as that the new distribution systems resulted in anti-competitive cumulative effects. By its decision, the HCC accepted and rendered binding the commitments offered by the tobacco manufacturers involved to amend or delete specific contractual terms in their new distribution agreements concluded with selected distributors, so as to alleviate the concerns expressed to them by the HCC. These concerns were mainly that the potential sales of the distributors might be excessively restricted, and access of manufacturers to sensitive business information of their competitors might be facilitated. Furthermore, the HCC rejected all remaining aspects of the complaints (e.g., allegations regarding abuse of dominance, concerted practices, resale price maintenance), as these alleged infringements could not be substantiated.330 433. At the end of 2015, the HCC published its long-awaited decision regarding the investigation, both ex officio and upon a complaint, into alleged infringements of Articles 2 of Law 703/77, 2 of Law 3959, and Article 102 TFEU, in the Greek on-trade consumption beer market. The investigation was initiated in 2006 when Mythos Brewery S.A. filed a complaint against the practices of the dominant undertaking, Athenian Brewery S.A., later combined with the authority‟s ex officio investigation. The HCC found that Athenian Brewery S.A., a subsidiary of Heineken N.V. active in the production and distribution of beer in Greece, abused its dominant position, thereby infringing Articles 2 of Law 3959 and 102 TFEU. 434. According to the decision, Athenian Brewery held a dominant position in the beer market and was also an “unavoidable trading partner” for customers trading a “must stock brand”. The HCC concluded that the company‟s commercial practices were in violation of Article 2 of Law 3959 and 102 TFEU and mainly comprised of: (a) exclusivity and loyalty rebates and discriminative practices in the instant consumption market (key accounts and other points of sale); (b) loyalty discounts in agreements with retail chains which were granted provided the company achieved a “satisfactory” shelf space level; and (c) exclusivity, loyalty and discriminatory benefits to wholesalers who excluded competitors and traded exclusively in Athenian Brewery products. 435. In particular, the extremely lengthy (586 pages) decision of the HCC ruled that part of Athenian Brewery‟s strategy in the retail channel was to include exclusivity terms in its written agreements restricting the customers‟ supplies from competing undertakings; adverse financial consequences were incurred by the customer when it failed to abide by the restriction. In other instances, Athenian Brewery paid in advance individual and retrospective target rebates i.e. rebates based on the expected turnover of a reference period which was much higher than the previous one. The HCC also found that the company provided advertisement fees which were disproportionate to the service provided by the customer and could only be interpreted as fidelity 328

. HCC Decision 580/VII/2013. See also OECD Annual Report on Competition Policy Developments in Greece-2014, recitals 19–21.

329

. Judgment 527/2016, recital 48.

330

. See HCC Decision 612/2015, and the relevant press release in English at the website of the HCC.

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discounts. With respect to the wholesale channel, the HCC concluded that Athenian Brewery provided advantageous credit for stocking arrangements, applied unfavourable credit terms to wholesalers that were selling competing products and generally provided many incentives dependent on exclusivity. 436. A fine of EUR 31,451,211 was imposed for the above verified infringements, the highest fine ever imposed on a single undertaking by the HCC for infringements of the competition rules. It is furthermore interested to note that the amount of fine calculated on the basis of the HCC Guidelines for the calculation of fines was significantly larger, in view of the increased gravity and long duration of the infringements. However, it was limited to the maximum threshold of 10% on the total annual turnover, as provided for in the applicable legal provisions. 437. In addition, with a view to avoiding recurrence of the infringement in the future, the HCC imposed on the defendant undertaking the following obligations: (a) all the future agreements with wholesalers, super markets, and retail points of sale must be drafted in writing; (b) all the contracts and the sales invoices must include a specific reference that the defendant‟s customers are allowed to purchase, sell, or put in circulation by any means competitive products, deciding themselves the type and quantities of such products; (c) all agreements of the defendant with customers, which include benefits of any nature in exchange of the provision of a service by the latter, must lay down specifically and with clarity both the benefits offered by the defendant and the service to be offered by its counterpart in exchange of such benefits; (d) within thirty (30) days from the service of the decision, to post and keep at a visible spot at its website and for one year, the operative part of the HCC‟s decision and a link to the full text of the decision available at the website of the HCC.331 438. Likewise, the HCC adopted its decision in the investigation in the steel sector (production and distribution of long steel products) in Greece, regarding an alleged infringement of Articles 101, 102 TFEU and Articles 1 and 2 of Law 3959, by certain undertakings and the association of undertakings active in the field. The HCC opened the investigation following press reports referring to simultaneous excessive price increases in steel products. The ex officio case was later joined with two complaints against industrial and trading companies active in the sector of steel products. According to the statement of objections, certain steel producers exchanged sensitive information regarding production and exports, as well as imports, via the steelmakers‟ association, whose members are the said steel industries, during a significant period of time, thereby infringing competition rules. However, the statement of objections concluded that two other alleged forms of infringement, i.e., coordination on prices and delay of imports, could not be substantiated to the requisite legal standard. 332 439. By its decisions published in April 2016, the HCC accepted commitments by steel producers regarding the exchange of information in the context of their trade association, while further rejecting complaints about other alleged infringements in the markets for the production, distribution and accreditation of steel products. In the context of the ex officio investigation in the steel sector, the HCC decided, upon majority vote, to accept and make binding the commitments proposed by the three largest steel producers in Greece, and by their trade association, ENHE, to address competition concerns in the market of production of steel products. In particular, the three steel producers agreed to change the terms and conditions of their ongoing cooperation within their trade association, so as to ensure that any information exchanged in that context does not increase the prospects of them coordinating their business policy. In case of noncompliance with the said commitments, the HCC may impose considerable fines on the undertakings and the association of undertakings concerned. Moreover, the HCC decided, unanimously, that there was insufficient evidence to substantiate that the three steel producers had otherwise colluded to coordinate their prices in the market (and that some degree of observed parallelism between them, in that regard, could be justified by reasons other than anti-competitive collusion). In addition, the HCC decided, unanimously, that there was no evidence suggesting that EVETAM SA had abused its dominant position in the markets for testing and accreditation of steel products. For these reasons, the HCC also rejected the complaints submitted by the Technical Chamber of Greece (TCG) and a steel distributor, while it eventually concluded that there were no grounds to pursue further an investigation in the context of Articles 101 and 102 TFEU.333 331

. HCC Decision 590/2014, pp. 492-493; see also the relevant press release available at the website of the HCC, and OECD, Annual Report on Competition Policy Developments in Greece-2015, DAF/COMP/AR(2016)16, available at the website of the HCC, recitals 26–28.

332

. OECD, Annual Report on Competition Policy Developments in Greece-2014, recitals 37–38.

333

. HCC Decision 617/2015, and 614/2015; see also the relevant press release available at the website of the HCC, and OECD, Annual Report on Competition Policy Developments in Greece-2015, recitals 35–37.

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440. Furthermore, the HCC reviewed the amended parity terms in the agreements between online travel agencies (OTAs) BOOKING.COM and EXPEDIA with their hotel partner businesses in Greece, following relevant inquiries conducted by other European Competition Authorities, and in coordination with the European Commission. The said OTAs committed to amend their agreements with hotel businesses across Europe, including Greece, in order to increase the flexibility of hoteliers concerning room reservations, room pricing and communications with their clients. After examining the new amended parity clauses to be applied by these two OTAs in their cooperation agreements with hotel businesses in Greece, the HCC concluded that there are currently no grounds to investigate these agreements further. 441. According to the amended (new) contractual terms, partner hotel businesses in Greece will be able to: (a) Set different prices and/or offer different terms and availability between different OTAs, (b) Offer lower prices and/or better terms to off-line channels (such as reservations by telephone or at the hotel reception or in the framework of loyalty programs), provided that hoteliers do not publicize or advertise those lower prices online, (c) Engage in promotional activities to all prior visitors of the hotel, regardless of the mode with which such visitors made their reservations (including reservations previously made through OTAs). 442. The implementation of the new parity terms by online travel agencies BOOKING.COM and EXPEDIA is expected to enhance competition between the online travel agencies, as well as between other marketing channels (i.e. internet, traditional travel agencies, telephone reservations or other types of reservations), to the benefit of hotel businesses and consumers alike. 334 443. The most important cases pending HCC decisions are the following: (i) The ex officio investigation in the market of detergent and cosmetics, which focuses on a suspected infringement of national and EU competition rules in the sector of detergents and cosmetics by a local company belonging to a multinational group of companies, as well as by companies active in the retail and wholesale trade of supermarket products, concerning the restriction of parallel trade. According to the statement of objections, certain agreements signed by the said group of companies and a number of wholesalers/retailers contained contractual clauses having the object and effect of impending parallel trade of detergents and cosmetics (essentially, restricting parallel imports of such products into Greece). This is the second statement of objections issued in this case. The HCC had originally reviewed the issue back in 2009, but referred back the case to the Competition Directorate General for further investigation.335 (ii) The ex officio investigation in the market of media measurement services regarding an alleged infringement of Article 1 of Law 3959 against two companies active in the field. According to the statement of objections, the undertakings involved agreed to jointly submit bids in any future procurement proceedings regarding radio audience measurement (ratings) in the area of Attiki (joint bidding). Moreover, one of the two companies, in exchange for its participation along with the other company in radio ratingsâ€&#x; procurements in Attiki, agreed not to enter the market of radio ratings in Thessaloniki (market sharing). 336 (iii) The ex officio investigation in the market of hemodialysis filters and arterial and venous lines. The Grand Chamber of the HCC in a session planned for the 5th of December 2016 would examine, following a relevant statement of objections, whether certain undertakings active in the market of hemodialysis filters and arterial and venous lines infringed competition rules. The ex-officio investigation by the Directorate General for Competition (DG) was initiated in 2011 following a named complaint against suppliers of filters and other hemodialysis products. In the context of its investigation, the DG conducted dawn raids at the premises of the suspected undertakings involved, took witness statements and sent several information requests. The investigation focused on the procurement process and ensuing prices regarding hemodialysis filters and arterial and venous lines for the needs of public hospitals in Greece, while further examining the evolution of prices in Greece as compared to other selected member states. According to the statement of objections, the implicated suppliers engaged in anti-competitive practices, with an object to directly or

334

. OECD, Annual Report on Competition Policy Developments in Greece-2015, recitals 44-46.

335

. OECD, Annual Report on Competition Policy Developments in Greece-2014, recitals 30–31.

336

. OECD, Annual Report on Competition Policy Developments in Greece-2014, recitals 40–41.

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indirectly fix prices or other trading conditions, as well as to limit supply, in the relevant product market of hemodialysis filters and arterial and venous lines.337 (iv) The ex officio investigation into the luxury cosmetics market, for alleged infringements of the competition rules. The Grand Chamber of the HCC in a session planned for the 13th of October 2016 would examine, following a relevant statement of objections, whether certain undertakings active in the wholesale and retail trade of luxury cosmetics, committed an infringement of Article 2 of Law 3959 and Article 101 TFEU. The investigation was initiated upon two complaints: the first against five luxury cosmetics wholesalers, and the second against a luxury cosmetics retail chain. For the purposes of the above investigation, the Directorate General for Competition conducted dawn raids at the premises of the undertakings involved, took witness statements and sent several information requests. The statement of objections identifies, on the one hand, the anti-competitive agreements between wholesalers of luxury cosmetics, aiming at the indirect fixing of reselling prices by the retailers, by setting a uniform level of discounts and, on the other hand, the horizontal and vertical agreements between companies of the retail chain, examined in the light of setting uniform prices, in the relevant product market of luxury cosmetics. It is estimated that the practices identified constitute a series of actions that are part of an „overall plan for the distortion of competition. According to the statement of objections, the duration of the infringements covers a period between two and six years for the undertakings involved.338 (v) The ex officio investigation in the construction sector, regarding alleged collusion extending to tenders for public works of infrastructure, notably road construction, rail transport, metro rail and concession projects (public-private partnerships), which, as it was already mentioned above in the relevant sector, may potentially be the first case to be dealt with under the newly introduced Settlement Procedure. 339 (vi) The review of the rules on rates per working hour of repair and maintenance services payable by the insurer in the case of accidents involving insured vehicles adopted by an association of undertakings and its shareholders. According to the statement of objections, the HCC will examine whether the association of undertakings and its shareholders had fixed hourly rates for repair services in the case of accidents involving insured vehicles, payable by the insurance companies using the association‟s software to create repair estimates. In addition, the association concerned had fixed the annual increase of hourly rates. Furthermore, the statement of objections also alleges that the association had adopted binding rules and mechanisms to monitor compliance by the users of its software (i.e. insurance companies, estimators, and repair shops) with the fixed rates (such as a most favored customer clause in agreements with repair shops, coupled with the obligation to provide access to their books and records, an obligation on the estimators regarding the exclusive use of the association‟s software, the appointment by insurance companies exclusively of estimators using the association‟s software, and the assignment of repair of damaged vehicles to certain repair shops using the association‟s software). 340 (vi) The investigation of a complaint in the automotive sector, regarding alleged infringements of the competition rules in the form of (a) resale price maintenance in respect of spare parts and repair services, within the framework of offering after sale technical services by the authorized network of the car manufacturer to clients of an insurance company; (b) failure on the part of the car manufacturer to provide direct, full, and non-discriminatory access to technical information regarding repair and maintenance of car vehicles to independent repairers. The HCC will examine also the commitments offered by the defendant. In addition, the HCC will examine whether the following constitute also infringements of the competition rules: (a) the imposition of a general obligation to notify the contracts signed with leasing companies, for the period October 2003-April 2005, and (b) the imposition of an obligation of exclusive supply of original spare

337

. See the relevant press release of the HCC, dated 18 October 2016, available at its website.

338

. See the relevant press release of the HCC, dated 14 July 2016, available at its website.

339

. For more details see above in the Settlement Procedure Section.

340

. The case is reviewed in compliance with Judgments 2132/2010, 2133/2010, 2134/2010 and 2135/2010 of the Administrative Court of Appeals of Athens, and Judgments 3847/2013, 3848/2013, 3849/2013 and 3850/2013 of the Council of State, referring back the case to the HCC, as a result of the annulment of its Decision 460/V/2009, due to unlawful composition of the Plenary Session of the HCC which adopted the challenged decision.

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parts for the period 1998-2000. Finally, the HCC will examine whether the non-competition clause imposed on the complainant, covering the period from December 1998 to October 2003, was excessive.341 445. It is consistently noted that the HCC becomes year after year more effective, and it seems to have completely overcome the problems of credibility, caused by the uncomfortable situation in which it had fallen, in respect of the handling of a specific case, and as a result of certain allegations against HCC‟s high-ranking officials. Moreover, Greek citizens, natural and legal persons, become progressively acquainted with the competition policy, and develop a competition culture, in the sense that they are now familiar with their rights and obligations in the field, and are aware of the benefits they can take advantage of by the enforcement of the competition rules, or the consequences they will face in case of infringements. 446. To this end, the HCC is constantly taking specific advocacy initiatives, the more recent ones being: (a) The Third Joint OECD-HCC Competition Assessment Project was initiated, following the successful implementation of the 1st and the 2nd Joint Projects since 2013. The 3rd Project will review legislation to identify potential regulatory obstacles to competition and make recommendations for legislative change in four designated sectors of the Greece economy (ecommerce, manufacturing, wholesale trade, and media); (b) The HCC continued its efforts to promote awareness on issues stemming from the newly adopted EU Directive on antitrust damages actions (Damages Directive), notably by organizing a seminar and publishing a new brochure regarding the scope, key provisions and perceived benefits of the EU Directive; (c) The HCC issued guidelines (in the form of Q&As) with regard to the application of competition law rules in franchising agreements, in order to help franchisors and franchisees understand the types of conduct that may infringe competition law; (d) The HCC participated as associate partner in a four day “Training Seminar for National Judges in Greece on Enforcement of EU Competition Law” organized by the European Public Law Organization (EPLO). The Seminar provided in-depth and practical training to 53 Greek judges and prosecutors on key issues pertaining to the enforcement of EU Competition Law in Greece; (e) The HCC co-organized two Info-Days regarding its ongoing project “Digital Competition Commission Services”, financed by EU funds. The Program aims at (a) providing citizens, professionals and undertakings with better quality online services in all their dealings with the HCC, (b) facilitating the decision-making process by digitizing files and related evidential material, (c) meeting all of HCC‟s operational requirements by increasing efficiency of its monitoring and enforcement role (pace and quality of its work and services provided thereby). 342 447. All the more significant is the fact that in all its Decisions adopted in the recent years the HCC interprets the Greek competition provisions in full alignment with, and by reference to, the substantial and procedural case law of the European Commission and the European Courts. Likewise, it is interesting to note that the recent Judgments of the Administrative Courts in competition cases (Court of Appeals and Council of State) are day after day all the more based on the case law of the EU Commission and the EU Courts, and apply the international principles and standards of competition rules. Not to be neglected the fact that the necessary time for the adoption of Court judgments in competition case is gradually being shortened, as the latest experience shows. Thus, the HCC and the competent Courts send a clear message of uniform application of the competition rules, and guarantee the establishment of a level playing field, which undoubtedly may be expected to give a boost to the attraction of new investments, and to the extension of the already existing ones, creating a safe and legally certain business environment, improving the competitiveness of the country, elements which no doubt are absolutely necessary for the reboot of the national economy. 448. Notably, a survey carried out by The World Bank revealed that, in respect of the relation of competition advocacy initiatives and broader developments goals, in 2014/2015, the observed impact on market competition in Greece is estimated at EUR 5.2 billion net gains for economy from regulatory reform, e.g. in retail sector. Competition translates into economic growth by higher productivity in the retail markets, whilst it ensures that benefits accrue to consumers and bottom 40% of the population through the increase and more flexible access to basic goods.343

341

. See the relevant press release, available (in Greek) at the website of the HCC.

342

. OECD, Annual Report on Competition Policy Developments in Greece-2015, p. 6.

343

. World Bank Group, Transforming Markets through Competition-New developments and recent trends in Competition Advocacy, 2016, p. 51.

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*

Themistoklis K. Giannakopoulos: Dr Themistoklis K. Giannakopoulos, Attorney – Partner, Head of TMT, Antitrust/Competition and Regulatory Practice at Pistiolis – Triantafyllos and Associates Law Firm. Any views expressed hereinafter are strictly personal.

Situation reflected as of February 2017.

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Dr . T he mi s t ok l i sK . Gi a nna k opoul osi sas e a s one dl a wy e r , qua l i f i e dt oa ppe a rbe f or et heS upr e me Cour t si nGr e e c e , wi t he x t e ns i v ei nt e r na t i ona le x pe r i e nc ei nc ompl i a nc ea ndr e gul a t or ya f f a i r s , de e pe x pe r t i s ei nc or por a t el a wa ndbot hGr e e ka ndE Ur e gul a t or yma t t e r s , a ndpr ov e nhi s t or yof a c t i nga sge ne r a l c ouns e l f orma j orgl oba l c ompa ni e si ndi v e r s ei ndus t r i e s . Hei st a l e nt e da tpr e s e nt i ngbe f or ena t i ona l a ndE Ui ns t i t ut i ona l a ndgov e r ni ngbodi e s , a ndpa r t i c ul a r l ys pe c i a l i z e di n t hepa s ti nr e gul a t i onspe r t a i ni ngt ot oba c c oa nde l e c t r oni cc ommuni c a t i ons . Oneofhi sma i n c ha r a c t e r i s t i c si st ha thei sde di c a t e dt oa dv a nc i ngbus i ne s sgoa l st hr oughi nnov a t i v ea ppl i c a t i on of r e gul a t or yl a w. S k i l l e da t c r a f t i ngpowe r f ul , e f f e c t i v el e ga l a r gume nt swi t hpe r s ua s i v epos i t i ons , a nda de pta ta na l y z i ngc ha nge si nr e gul a t i onst ode t e r mi nei mpa c tonbus i ne s sope r a t i ons , he wor k swi t hs e ni or e x e c ut i v e st oa dv a nc ec or por a t ev i s i ona ndgoa l s . Heha spr ov e ns t r onga bi l i t y t oc oor di na t ema j or pr oj e c t sa c r os sc ompl i a nc ea ndr i s kmi t i ga t i on, a ndhi se x t e ns i v ek nowl e dge of E Ua ndna t i ona l c ompe t i t i ona ndt r a del a wa r er e ma r k a bl e . Heha sde mons t r a t e ds of a r s uc c e s s i nc oor di na t i ngme r ge r s , a c qui s i t i ons , a ndj oi ntv e nt ur e s . Hi sc a r e e r i nc l ude sc ompa ni e ss uc ha sV oda f oneGr e e c e , B r i t i s hAme r i c a nT oba c c o( Gr e e c e , Ma l t a , Cupr us , I s r a e lCl us t e r ) , F or t hne tS . A. , whi l s thes t a r t e da tt heNa t i ona l T e l e c ommuni c a t i onsa nd P os t sCommi s s i on, a ndbe f or et ha t a l s os pe nt ape r i oda t t heDGCompe t i t i onof t heE UCommi s s i on. Hea l s os e r v e da sT e a c hi ngF e l l owa tt heL a wS c hoolofDe moc r i t usUni v e r s i t yof T hr a c e , whe r ehewa st e a c hi ngE UI ns t i t ut i ona l L a wa ndE UCompe t i t i onL a w&P r a c t i c ebot ha tunde r gr a dua t ea ndpos t gr a dua t el e v e l s . Hehol dsa ndL L . B . f r om t heL a wS c hool oft heUni v e r s i t yof At he ns , a nL L . M. i nI nt e r na t i ona l a ndComme r c i a l L a wf r om t heUni v e r s i t yof K e nta tCa nt e r bur y , a ndaP h. D. i nCompe t i t i onL a wa ndP r a c t i c ef r omt heE ur ope a nUni v e r s i t yI ns t i t ut ei nF l or e nc e . Heha spubl i s he dv a r i ousbook sa nda r t i c l e sma i nl yonc ompe t i t i ona ndi nt e r na t i ona l t r a del a w ma t t e r s , t hemos ti mpor t a ntonebe i ngt hebook“ S a f e gua r di ngCompa ni e s ’ Ri ght si nCompe t i t i ona ndAnt i Dumpi ng/Ant i S ubs i di e sP r oc e e di ngs ”( F i r s tE di t i on2 0 0 4 ; S e c ondE di t i on2 0 1 1 ) , K l uwe r L a wI nt e r na t i ona l , T heHa gue , Ne t he r l a nds . Hes pe a k sGr e e k , E ngl i s ha ndI t a l i a n. Cur r e nt l y , T he mi s t ok l i si sf oc us i ngonpr e pa r i nga nda s s i s t i ngc ompa ni e si na c hi e v i ngf ul la nd t i me l yc ompl i a nc ewi t ht her e gul a t or yobl i ga t i onsunde r t heGe ne r a l Da t aP r ot e c t i onRe gul a t i on ( GDP R) .

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