Cartel Regulation

Free competition in the Greek market is protected by Law 3959/2011, ‘Protection of Free Competition’ (the Competition Act), which abolished the previous Law 703/77, introduced when Greece was about to become a member of the EEC. Specifically, Law 703/1977 was abolished instead of being amended one more time because the legislator of Law 3959/2011 declared the intention to avoid the risk of conflicting rules and oversights and to produce a coherent statute that is easier to understand and to implement.

The new Competition Act adopted the central structure of the former one, keeping intact, with only minor grammatical and technical changes, its core substantive law provisions; namely, article 1 on restrictive agreements, and article 2 on the abuse of a dominant position (closely drafted in line with articles 101 and 102 of the Treaty on the Functioning of the European Union respectively (TFEU)). The amendments regarding concentrations are also mostly technical in nature, whereby the respective provisions, as well as all the subsequent ones, have undergone extensive renumbering. The new Competition Act introduced, however, other significant amendments concerning, inter alia, the organisation and operation of the Hellenic Competition Commission (HCC), the prioritisation of cases, the administrative and criminal penalties for violations, as well as several procedural rules. The amendments served the following objectives:

• the harmonisation of Greek legislation with European standards and the modernisation of the operations of the HCC;
• the strengthening of the deterrent effect of sanctions;
• the empowerment of the authority to intervene in whole sectors of the economy;
• the institutional strengthening of the HCC; and
• the enhancement of the effectiveness of its actions.

Back to top

The HCC is the authority responsible for the enforcement of the Competition Act, as well as articles 101 and 102 TFEU. Pursuant to Law 2296/95, the HCC is an independent administrative authority with procedural and decision-making autonomy. Pursuant to Law 2837/2000, the HCC also enjoys financial autonomy. The HCC performs all the enforcement actions of a designated national competition authority (NCA) to apply national and EU competition rules, in accordance with Regulation (EC) 1/2003 (see article 5). It also has consultative powers in the area of identifying and removing regulatory barriers to competition. In particular, the HCC has broad enforcement powers in the area of collusive practices and cartels, abuses of dominance and merger control. In this context, the HCC may:

• take decisions finding an infringement of article 1 of the Competition Act and article 101 TFEU (collusive agreements and/or concerted practices between undertakings that have as their object or effect the restriction of competition) and impose administrative fines;
• take decisions finding an infringement of article 2 of the Competition Act and article 102 TFEU (abuse of dominance) and impose administrative fines;
• take interim measures in case of suspected infringement of articles 1, 2 and 11 of the Competition Act, as well as of articles 101 and 102 TFEU;
• review prior notifications of envisaged mergers and acquisitions (merger control of concentrations), in accordance with articles 5 to 9 of the Competition Act, and impose pertinent measures and sanctions;
• launch investigations and conduct dawn raids for the enforcement of antitrust and merger control rules;
• deliver opinions on competition issues on its own initiative or upon request of the Minister of Development and Competitiveness or of any other competent minister, in accordance with article 23 of the Competition Act; and
• conduct sector inquiries, in accordance with article 40 of the Competition Act.

The HCC cooperates closely with the European Commission and the national competition authorities in all EU member states in order to enforce EU competition rules, primarily in the context of the Regulation (EC) 1/2003. Furthermore, it cooperates closely with other competition authorities in its capacity as a member of the Organisation for Economic Co-operation and Development (OECD) and the International Competition Network (ICN).

Back to top

No changes have been made to Law 3959/2011 (Competition Act) in 2016. However, based on specific enabling provisions of the Competition Act, the HCC continued its secondary legislation and soft-law initiatives. To date, there have been no significant legal challenges to the use of investigative measures used by the HCC. To the contrary, all relevant decisions of the Athens Court of Appeals that have been issued so far, acknowledged the wide discretion of the HCC in conducting dawn raids.

Back to top

According to the Competition Act, all agreements and concerted practices between undertakings and all decisions by associations of undertakings that have as their object or effect the prevention, restriction or distortion of competition shall be prohibited, and in particular those that:

• directly or indirectly fix purchase or selling prices or any other trading conditions;
• limit or control production, distribution, technical development or investment;
• share markets or sources of supply;
• apply dissimilar conditions to equivalent trading transactions, especially the unjustified refusal to sell, buy or otherwise trade, thereby hindering the functioning of competition; and
• make the conclusion of contracts subject to acceptance, by the other parties, of supplementary obligations which, by their nature or according to commercial use, have no connection with the subject of such contracts.

The Competition Act does not define the term ‘cartel’. However, the term ‘prohibited agreements and concerted practices’ is used and article 1 of the Competition Act includes specific practices that are considered as anticompetitive agreements between undertakings. Article 1 essentially refers to the same practices prohibited under article 101 TFEU. While the Competition Act does not distinguish between hard-core cartels and other types of cartels, the HCC’s decisions are in line with the relevant EU case law on this matter. Moreover, the published guidelines on the method of setting fines provide that horizontal price-fixing, market sharing and output limitation agreements are considered as the most serious infringements of competition law. The participation in agreements such as price fixing or market sharing has been treated by the HCC as per se illegal.

Participation in a hard-core cartel is both an administrative and criminal offence according to Greek law (article 35 of the Competition Act). However, it must be noted that under the Competition Act the proceedings within the Greek enforcement system are of an administrative nature only. The HCC does not have the power to impose criminal sanctions, while the latter lies within the competences of the criminal courts.

Back to top

There are no any industry-specific defences or antitrust exemptions from the Competition Act. The latter applies equally to government-sanctioned activity or regulated conduct.

Back to top

Article 1 of the Competition Act and article 101(1) TFEU prohibitions apply to agreements, decisions and concerted practices between undertakings. The term ‘undertaking’ applies to any entity that performs an economic activity irrespective of its legal status and the way the said entity is being financed. It is settled case law that undertakings include both natural and legal persons. The same approach has been adopted by the HCC regarding the application of merger control.

Back to top

Article 1 prohibitions are applicable only where the relevant agreement, decision or practice has as its object or effect the elimination, restriction or distortion of competition within the Hellenic Republic. In addition, under article 14, the HCC cooperates with the European Commission and the competition authorities of the other EU member states for the application of EU competition law, pursuant to the relevant provisions of the Competition Act and of Regulation (EC) 1/2003.

Back to top

According to article 44, Law 3959/2011 shall apply to all restrictions of competition that affect or might affect Greece, even if these are owing to agreements between undertakings, decisions by associations of undertakings, concerted practices between undertakings or associations of undertakings or concentrations of undertakings implemented or taken outside Greece or to undertakings or associations of undertakings that have no establishment in Greece. The same shall apply with regard to abuse of a dominant position manifesting in Greece.

Back to top

The HCC has extensive investigative powers (that mirror the European Commission’s investigative powers in all key aspects). In particular, according to article 38 and 39 of the Competition Act, the HCC has the power to conduct inspections of business premises, non-business premises, as well as the homes of directors, managers, and other members of staff of the undertakings and associations of undertakings concerned, under the conditions set by law and to request information from an undertaking and/or association of undertakings or natural person in the context of an investigation. A court warrant is not a prerequisite in order to conduct an inspection of business premises, but it must be obtained if the undertaking subject to the investigation refuses to accept the investigation. Similarly, in all inspections of non-business premises, a judge or public prosecutor should be present. According to article 39 of the Competition Act, the HCC has the power to take sworn or unsworn testimonies, as appropriate, by any representative or member of staff of any undertaking or association of undertakings. The HCC also has the power to conduct interviews or ask questions during inspections of business and/or non-business premises. In addition, the HCC may address compulsory requests for information also to public or other authorities. Public authorities and legal persons governed by public law have a duty of information. In the event of refusal, obstruction or delay in providing the information requested, the HCC may file an official report so that disciplinary action can be taken against civil servants or employees of public-law legal entities for the above infringements, which are a disciplinary offence.

All cases regarding the application of articles 1 and 2 of the Competition Act are assigned to a Commissioner (rapporteur) when the investigation is mature. There is no time limit regarding the period between the initiation of proceedings and the assignment of the case to a rapporteur.

Back to top

In order to establish the existence of an infringement, the HCC conducts a series of investigatory measures, such as:

• inspections of business premises, non-business premises and means of transport of undertakings or associations of undertakings concerned (dawn raids);
• inspections of private premises, including the homes of directors, managers, and other members of staff of the undertakings and associations of undertakings concerned, under the conditions set by law;
• requests for information addressed to undertakings directly or indirectly involved and to market operators;
• examination of books and other records, irrespective of the means on which they are stored, and making of copies, in any form, of extracts of such books or records; and
• testimonies and explanations on the facts or documents relating to the subject-matter and the purpose of the investigation from representatives or members of the staff of the undertaking or the association of undertakings involved.

Upon conclusion of the investigation, a statement of objections (SO) is drafted and submitted to the HCC’s Competition Commission to decide whether the alleged infringement has been substantiated or not. The decision of the Competition Commission is issued within 30 days from the last session in which the examination of the case was concluded.

Back to top

The HCC, as the NCA, is responsible for cooperation:

• with the competition authorities of the European Commission and for providing its designated bodies with the necessary assistance to undertake the controls provided for under EU law; and
• with the competition authorities of other countries.

If an undertaking that has its seat or exercises its activity in Greece refuses to allow the inspection provided for under EU law, the Competition Commission and its empowered body, acting ex officio or following a relevant request from the bodies designated by the European Commission, shall ensure overall proper conduct of the investigation, in particular by providing necessary assistance, implementing in this instance the provisions of article 38 of Law 3959/2011.

Therefore, the HCC, according to national legislation, cooperates closely with the European Commission and the national competition authorities in all EU member states in order to enforce the EU competition rules, primarily in the context of Regulation (EC) 1/2003. Furthermore, it cooperates closely with other competition authorities (ie, mutual legal assistance treaties, MOUs, cooperation agreements, etc), in its capacity as a member of the OECD and the ICN.

Back to top

The HCC has often cited, in its reasoning, relevant decisions of the European Commission and other national competition authorities. Apart from this aspect, there is no significant interplay with other jurisdictions.

Back to top

Investigations in cartel cases may be launched:

• after the HCC’s ex officio initiation of proceedings;
• following a complaint filed with the HCC; or
• upon a leniency application.

There are no particular legal requirements for lodging a complaint against a cartel. Unlike the proceedings before the European Commission, complainants are not required to demonstrate a legitimate interest for lodging the complaint.

Back to top

Each party shall bear the burden of proof of their claims during proceedings before the HCC for the purposes of articles 1 and 2 of the Competition Act.

Back to top

To comply with the burden of proving an infringement the HCC can rely on both direct and indirect evidence. Consequently the assessment of an infringement can be based on circumstantial evidence if an overall pattern of guilt emerges and in the absence of any other reasonable hypothesis that could be predicated on that evidence.

Back to top

According to article 30, paragraph 1 of the Competition Act, the decisions of the HCC are subject to an appeal before the Athens Administrative Court of Appeals within a time limit of 60 days following notification of the HCC’s decision. In addition (article 32, Competition Act), an appeal before the Council State against the decision of the Athens Administrative Court of Appeal can be filed within 60 days following the issuance of the decision of the Athens Administrative Court of Appeal.

Back to top

The participation in a cartel is both an administrative and a criminal offence. Specifically, when the HCC finds that the provisions of article 1 (ie, cartel activity) have been infringed, it shall report the infringement to the competent prosecution authority within no more than 10 days of issuing its decision. According to article 44, any person who executes an agreement, takes a decision or applies a concerted practice in breach of article 1 or article 101 TFEU shall be punished by a fine between €15,000 and €150,000. If the act referred to in the first sentence pertains to undertakings that are in actual or potential competition with each other, a term of imprisonment of at least two years and a fine of between €100,000 and €1 million shall be handed down.

Back to top

According to the Competition Act, the HCC can impose procedural sanctions and fines on undertakings, associations of undertakings or persons who obstruct or hamper, in any manner, investigations carried out under the provisions of this article (dawn raids). The HCC can also impose procedural sanctions and fines on undertakings, associations of undertakings or persons who refuse to submit to relevant inspections, produce books, records and other documents requested and provide copies or extracts of them. The legislation also provides for penal sanctions imposed by national courts.

The administrative fine imposed for infringement of article 1 of the Competition Act and article 101 TFEU (collusive agreements and/or concerted practices between undertakings) and article 2 and article 102 TFEU (abuse of dominance) may be up to 10 per cent of the total turnover of the undertaking for the financial year in which the infringement ceased or, if it continues until issuing of the decision, the year preceding the issuing of the decision. In the case of a group of companies, calculation of the fine shall take account of the total turnover of the group. In determining the level of the fine, account must be taken of the gravity, duration and geographical scope of the infringement; the duration and nature of participation in the infringement by the undertaking concerned and also its economic benefit derived therefrom.

According to article 25 of the Competition Act the persons obliged to comply with the provisions of the Competition Act and articles 101 and 102 TFEU are:

• in the case of individual undertakings, the owners;
• in the case of civil and commercial companies and joint ventures, their managers and all the general partners; and
• in the specific case of public limited companies, the members of the board of directors and those persons responsible for implementing the relevant decisions.

Regarding decisions of collective bodies of the undertaking taken by majority, only those voting in favour shall be liable. The HCC may also impose on the above natural persons, following their hearing, a separate fine from €200,000 to €2 million, where they demonstrably participated in preparatory acts, the organisation or implementation of the unlawful behaviour of the undertaking.

Back to top

The HCC has published guidelines on the method of setting fines (available only in Greek at www.epant.gr/img/x2/categories/ctg253_3_1193315361.pdf). In general terms, determining the level of the fine, account must be taken of the gravity, duration and geographical scope of the infringement, the duration and nature of participation in the infringement by the undertaking concerned, and also its economic benefit derived therefrom. Where it is possible to calculate the level of economic benefit to the undertaking from the infringement, the fine shall be no less than that.

Back to top

The Competition Act does not provide for debarment from public procurement procedures for cartel infringements.

Back to top

Criminal, civil and administrative sanctions can be pursued in parallel in respect of the same conduct. As a matter of legal certainty, however, public prosecutors will often stay their investigations until the HCC has issued a decision of its own.

Back to top

Private damages claims are not mentioned specifically under the Competition Act. It must be noted though that any person affected by infringements of article 1 may file a lawsuit before the civil courts. However, according to the Directive 2014/104/EU on Antitrust Damages Actions, following US practice, from 27 December 2016, third parties (and in certain circumstances, even parties involved in the infringement) that have suffered loss as a result of cartel behaviour can sue for damages before the national courts. According to this directive, which will be transposed in national legislation by the end of 2017, national courts can order companies to disclose evidence when victims claim compensation, while a final decision of HCC finding an infringement will automatically constitute proof of the infringement. Furthermore, if an infringement has caused a price increase and it has been passed on along the distribution claim, those who suffered harm at the end (consumers) can claim compensation. The directive clarifies that victims are entitled to full compensation for the harm suffered, which covers compensation for actual loss and for loss of profit, plus payment of interest from the time the harm occurred until compensation is paid. Any participant in an infringement will be responsible towards the victims for the whole harm caused by the infringement (joint and several liability), with the possibility of obtaining a contribution from other infringers for their share of responsibility. However, to safeguard the effectiveness of leniency programmes, this will not apply to infringers who obtained immunity from fines in return for their voluntary cooperation with a competition authority during an investigation; these immunity recipients will normally be obliged to compensate only their (direct and indirect) customers.

Back to top

Class actions are not provided in the Competition Act, but can be filed before civil courts.

Back to top

Undertakings that assist in the investigation of infringements of competition rules (other than the rule on abuse of a dominant position) by giving information or evidence about the existence and operation of a cartel of which they were members, may ask to be granted immunity from a fine and/or a reduction of the fine. Leniency programmes implemented by the European Commission and the national competition authorities play a crucial role in the enforcement against cartels, as they offer incentives to cartel members to file a complaint and put an end to such illegal behaviour, thereby strengthening efforts at detection, rendering and prevention of cartels.

In particular, according to the leniency programme first introduced in 2005 and revised in 2011, the HCC will grant immunity from fines that would have otherwise been imposed on a company disclosing its participation in an alleged cartel only if that company:

• is the first to submit information and evidence that in the HCC’s view will enable it to either launch a targeted investigation with regard to the alleged violation of article 1 of the Competition Act (and article 101 TFEU), or find an infringement of article 1 of the Competition Act (and article 101 TFEU);
• cooperates genuinely, fully, continuously and expeditiously from the time it submits its application throughout the HCC’s administrative procedure;
• stopped its involvement in the alleged cartel immediately following the submission of its application or evidence;
• has not induced other companies to participate in the alleged cartel; and
• has treated its application for leniency as confidential until the issuance of the SO by the Directorate General.

The decisive conditions for immunity or reduction in fines are the timing of the application, the degree to which the leniency application entails or enhances the HCC’s capability to establish proof of the infringement, the significance and completeness of the evidence and/or information submitted by the participant, which must, in any case, have additional probative value in relation to the evidence already in the HCC’s possession.

Back to top

As mentioned above both full and partial leniency are provided by the leniency programme. In order to qualify for a reduction of fine, an undertaking which is not the first to submit information, it must provide the HCC with evidence that has an added value with respect to the evidence already possessed by the HCC. Also, it has to stop its involvement in the alleged cartel at the latest time it makes its leniency application.

Back to top

For the second undertaking to meet the aforementioned criterion, a reduction of 20 per cent to 30 per cent is applied. Finally, for the subsequent undertakings that meet aforementioned criterion, a reduction of up to 20 per cent is granted.

Back to top

There are no deadlines for initiating or completing an application for immunity or partial leniency. Under the revised leniency programme regime, the applicant may request a ‘marker’, which protects the applicant’s place in the queue for a given period of time. According to the leniency programme, the undertaking (or the natural person) wishing to benefit from the ‘marker’ system has to submit to the HCC a minimum set of information and may withhold its priority, provided that it submits the evidentiary material required within the deadline set by the HCC. The set of information required to obtain a ‘marker’ includes the identification of the alleged cartel members, the affected geographic and product markets, and the cartel’s duration, nature and operation, as well as potential leniency applications submitted to other NCAs.

Back to top

See questions 22 to 26.

Back to top

In the context of the general obligation of the officials of the Directorate General (DG) and the members of the HCC to treat in a confidential way any material gathered during the examination of any case the agency is required to keep the identity of the beneficiary confidential. The Competition Act also provides that any information gathered in the context of the examination of any case, may be used only in relation to the particular case for which the information has been gathered. If the officials of the DG infringe the above provisions, they may be imprisoned for at least three months, in accordance with article 252 of the Penal Code, and pay a sanction of at least €1,000, but not exceeding €10,000. They may also be disciplinarily prosecuted for breaching their obligation of confidentiality. If, on the other hand, the provisions of article 41 of the Competition Act are infringed by the President or the members of the HCC, they may be punished pursuant to article 252 of the Penal Code, as well as with a pecuniary sanction of at €1,500, but not exceeding €15,000, and by the same decision they are disqualified from their position as a member of the HCC.

Back to top

In May 2016, the HCC adopted a new settlement procedure concerning cases where undertakings or associations of undertakings make a clear and unequivocal acknowledgement of participation and liability in relation to their participation in horizontal agreements (cartels) and the subsequent breach of competition law. As a result, they can obtain a reduction of the imposed fine by 15 per cent, provided that certain conditions are fulfilled. The reduction of the fine amounting to 15 per cent due to settlement will be deducted from the fine that a company would normally have to pay according to the provisions of the current HCC’s guidelines on fines.

The new settlement procedure, which is essentially modelled after the EU-equivalent procedure, aims at simplifying and speeding up the handling of pending cases. It would allow the HCC to achieve efficiencies through a streamlined administrative process, resulting in the increased expeditious adoption of infringement decisions regarding article 1 of the Competition Act and/or article 101 TFEU. In addition, the settlement procedure provides scope for a reduction in the number of appeals against the HCC’s decisions before the administrative courts. In turn, this would allow a better allocation of resources, in order to deal with more cases, thereby increasing the deterrence effect of the HCC’s enforcement action, while simultaneously increasing citizens’ awareness in the effective and timely punishment of undertakings infringing competition law.

Settlement discussions may commence on the parties’ initiative at any stage of the investigation. However, procedural efficiencies are less likely to accrue if a statement of objections has been already addressed to the parties concerned. In any case, the deadline for the filing of a request for settlement is 35 days before the hearing. The HCC will not bargain about evidence or its objections or the finding of an infringement. However, each business will also be heard effectively in the framework of the settlement procedure and parties will therefore have the opportunity to influence the HCC’s objections through argument. The HCC issues a simplified decision accepting the settlement.

Back to top

There is no express provision in either the Competition Act or in the leniency programme regarding how current or former employees will be treated in the event immunity or leniency is granted to a corporate defendant.

Back to top

According to the leniency programme, the undertaking must cooperate fully, actively and on a continuous basis throughout the procedure and expeditiously provide all information and evidence that is available to it, or comes into its possession at a later stage, relating to the suspected infringement. In particular, it remains at the DG’s and at the HCC’s discretion to answer swiftly any question or request that may contribute to the establishment of the facts concerned. Furthermore, the undertaking must end its involvement in the suspected infringement no later than the time at which it submits evidence and must not have urged other undertakings to participate in the infringement. Moreover, the undertaking must keep confidential in relation to any third party the fact that it has submitted a leniency application until the conclusion of the SO for the case by the DG. Finally, the undertaking must not have participated in the past in a prohibited collusive practice for which a decision by a NCA or the European Commission has been issued.

An undertaking wishing to apply for immunity from fines should contact the Head of the Directorate of Legal Services of the DG, who immediately informs the Director General of the HCC. Should the Directorate of Legal Services, in collaboration with the competent operational directorate, deem that the requirements set out in paragraphs 1 to 3 are not met, it so reports to the Director General. In this case, the President of the HCC, upon proposal of the Director General, immediately informs the undertaking that immunity from fines is not possible for the suspected infringement.

Back to top

There are no ongoing or anticipated assessments or reviews of the immunity/leniency regime at present, since the HCC amended it in 2011.

Back to top

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 EU 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 the Competition Act 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.

Back to top

There is no explicit provision prohibiting counsel from representing multiple corporate defendants. However, this should be evaluated from the outset whether a conflict of interests could arise, whereby independent legal advice must be sought.

Back to top

There is no explicit provision prohibiting counsel from representing multiple corporate defendants. However, this should be evaluated from the outset whether a conflict of interests could arise, whereby independent legal advice must be sought.

Back to top

There is no provision in the Competition Act prohibiting the payment by a corporation of the legal penalties and legal costs imposed on its employees.

Back to top

There are no tax deductions regarding fines or private damages.

Back to top

As in many EU jurisdictions (eg, Cyprus and Germany), there are no explicit rules preventing international double jeopardy for cartel enforcement. However, the HCC may take into account fines and other sanctions imposed by the European Commission or other national competition authorities of the European Competition Network before deciding on the level of the administrative fine.

Back to top

As noted in question 18, guidelines on the method of setting fines apply by taking into account the gravity, duration and geographical scope of the infringement, the duration and nature of participation in the infringement by the undertaking concerned, and also its economic benefit. However, undertakings are encouraged to cooperate with the HCC and these actions may lead to a reduction of the fine.

* This chapter is accurate as of November 2017.

Back to top

Back to top