GREECE: An Introduction to Competition/European Law
Greek Competition Law: an Overview
The Greek competition law regime is enshrined primarily in Law 3959/2011 (the “Greek Competition Act”), prohibiting agreements and concerted practices that restrict competition (Article 1) and abusive practices by dominant undertakings (Article 2) and establishing a mandatory pre-closing filing for all concentrations meeting the relevant turnover thresholds (Articles 5-10).
The Hellenic Competition Commission (“HCC”) constitutes the principal national competition authority, assuming the power to enforce the competition rules in all markets except for the electronic communications and postal services markets. Greece has adopted an institutional setting in which the Hellenic Telecommunications and Posts Commission (“EETT”) is the electronic communications regulator while also having sector-specific competition powers. Particularly, the EETT exercises all competition law powers regarding the electronic communications and postal services markets in Greece to the exclusion of the HCC.
There have been significant competition law developments in Greece in the last couple of years, both legislative and in terms of enforcement. Also, the HCC has adopted innovative new initiatives and has generally been at the forefront of discussions regarding the challenges of the application of the competition rules in the transition to a digital and sustainable economy.
Trends & Developments
Legislative Developments
In the context of transposing into the Greek legal order the ECN Plus Directive (Directive 2019/1), the Greek Competition Act was substantially amended with effect from 24 January 2022 by Law 4886/2022. Law 4886/2022 has introduced a wide range of modifications to the full spectrum of the Greek competition rules.
A major reform to the Greek Competition Act is the newly added Article 1A, which prohibits two distinct types of unilateral conduct: the invitation to the conclusion of an unlawful agreement and the announcement of future pricing intentions between competitors (“price signaling”), constituting as of 1 July 2022 these two unilateral practices self-standing antitrust infringements under Greek law. Article 1A, however, applies only to undertakings with a total turnover of at least EUR50 million and at least 250 employees and does not apply where the conduct in question falls under Articles 101 or 102 TFEU (or their equivalents Articles 1 and 2 of the Greek Competition Act). On 1 February 2023, the HCC issued guidelines on the application of Article 1A but significant legal uncertainty remains.
It is noteworthy also that the settlement procedure, which was previously applicable only in horizontal/cartel cases, has been extended to vertical restraints, abuse of dominance and the new infringements under Article 1A. This is an innovative approach to the settlement procedure in that there is no corresponding formal EU-wide provision covering the whole scope of Articles 101 and 102 TFEU.
On the merger control side, Law 4886/2022 has amended the Greek Competition Act to introduce the possibility for the parties to a transaction to offer commitments during a Phase I investigation and the corresponding power of the authority to impose them as remedies for a conditional Phase I clearance decision (Article 8(4A)), an option available only in Phase II under the previous regime.
Enforcement of Antitrust Rules
In terms of enforcement, the HCC proved to be one of the most vigilant authorities in the EU. Most investigations focus on potential vertical infringements, especially regarding resale price maintenance (“RPM”) and restrictions of sales through online platforms. Cartels and horizontal anti-competitive practices remain a key priority for the HCC as well.
The HCC made extensive use of the settlement procedure in both horizontal/cartel and vertical cases, rewarding the cooperation of companies with the HCC via reduced fines and providing for expedited proceedings. Indicatively, in 2023, the HCC issued settlement decisions to:
(i) impose a total fine of EUR 41,756,180.10 on five Greek banks and the Hellenic Banking Association for the engagement in horizontal collusion (Decision 838/2023);
(ii) impose a fine of EUR 111,521 for a ban on the use of online price comparison platforms (Decision 824/2023 Caudalie Hellas), which was the first of its kind with respect to platform bans under the new VBER; and
(iii) impose fines totalling EUR 105,772.66 on undertakings active in the supply of telecommunication equipment and internet teleconferencing (Decision 834/2023), in the first case of extraterritorial application of competition law by the HCC and the first case where the HCC imposed fines to both suppliers and retailers participating to a vertical restriction of competition.
The HCC has also pursued abuse of dominance cases, imposing heavy fines to certain undertakings in the context of adversarial procedures. For instance, in 2022 the HCC imposed a fine of EUR 24,562,249 to the undertaking holding a de jure monopoly on land-based betting services for abuse of dominance via bundling and non-compete clauses (Decision 787/2022), and, in 2023, the HCC imposed a fine of 1,372,369 EUR for abuse of dominance via refusal to supply regarding the production and supply of bauxite (Decision 807/2023).
On a separate note, the HCC imposed the first ever fine to an individual for obstruction/non-cooperation during a dawn raid (Decision 745/2021), pursuant to Article 39(5) of the Greek Competition Act. Also, the HCC has issued in 2023 two Statement of Objections on cases concerning the obstruction of dawn raids by both the undertakings and the individuals concerned in the sectors of petroleum and trade of supermarket products, respectively.
Merger Control and Consolidation of Sectors
Merger activity has increased over the last few years in Greece. Certain sectors and industries have been characterised by particularly high merger activity and consolidation. In this regard, several notifiable transactions are currently being reviewed by the HCC, while the authority has cleared in 2023 concentrations in the: energy sector; construction sector; food industry; investment sector; pharma sector; logistics sector; automotive industry; and retail sector.
Of particular interest are two concentrations that the HCC was called upon to review, namely:
(i) Delivery Hero’s acquisition of Alfa Distributions, Inkat, Delivery.gr and E-table; and
(ii) the merger by absorption of ANEK LINES by ATTICA HOLDINGS.
Delivery Hero’s concentration was the first “ecosystem case”, in that it was the first instance where the HCC had to deal with the markets for online intermediation for restaurant reservations and online intermediation for food ordering. The HCC assessed conglomerate theories of harm, finding that, by combining the acquirer’s online food ordering platform (e-food) with the targets’ online intermediation services (E-table), conglomerate effects would arise. The concentration was cleared in Phase II subject to behavioral commitments prohibiting foreclosure effects through bundling and delaying the combination of data sets from both services that would allow for targeted advertisements. (Decision 775/2022). As to the ATTICA/ANEK merger, the HCC concluded that, although the merger may significantly restrict competition in the relevant markets for the provision of maritime transport services for passengers, cars and trucks in certain pairs of ports in Crete and the Adriatic, the conditions for the application of the failing firm defence were fulfilled (Decision 827/2023).
In line with the HCC’s merger control tradition, according to which transactions are rarely blocked, there were no outright prohibitions in Greece in 2023. That said, the HCC tends to consider wider theories of harm when investigating whether deals are stifling innovation.
Regulatory Initiatives and Other Innovative Tools
The HCC has launched certain innovative tools and has been very active in terms of regulatory initiatives.
In particular, on 22 June 2022, the HCC launched the Sandbox for Sustainable Development and Competition, which aims to strengthen competition in par with sustainable development by offering a full ex ante evaluation of commercial practices by the HCC to reduce the regulatory risk for “green” investments. In this vein, Law 4886/2022 has amended the Greek Competition Act to allow the HCC’s President to issue “no-action letters”, potentially offering comfort to undertakings, especially for the implementation of sustainable development objectives (Article 37A).
The HCC has also recently focused on a broader use of new technologies to facilitate the implementation of competition law. In line with this approach, the revised Greek Competition Act allows the HCC to embrace novel technological tools, explicitly adding algorithmic methods to its arsenal to scrutinise commercial conduct in the context of its sector enquiries (Article 40). Moreover, in April 2021 the HCC inaugurated the “HCC Data Analytics and Economic Intelligence” platform, which provides an innovative tool for the collection and processing of economic data through the leveraging of Big Data technology. The HCC’s information collection powers have also been enhanced by the possibility to carry out “mapping exercises” of competition in any market and sector of the economy (Article 14(2)). Finally, in 2021, the HCC established an online whistleblowing tool to allow the anonymous reporting of anticompetitive conduct.
Over the past couple of years, the HCC has also conducted multiple sector inquiries (in basic consumer goods, e-commerce, fintech, health services, waste management and petroleum), market investigations (in the press distribution sector and in the construction sector), and a mapping study into the petroleum industry.
Way Forward
In January 2024, a new president of the HCC has been appointed, bringing anticipation of future enforcement trends and heightened levels of activity.
It is also worth underlining that there is currently no foreign direct investment (“FDI”) regime in Greece. In particular, the ratification of the implementing law regarding the FDI screening mechanism is still expected, and thus no filing procedure is currently in place.