Spotlight: restrictive agreements and dominance in Greece

All questions

Antitrust: restrictive agreements and dominance

The HCC's antitrust enforcement activity, other than cartels, covers restrictive agreements under Article 1 of the Competition Act or Article 101 of the TFEU and abuse of dominance under Article 2 of the Competition Act or Article 102 of the TFEU.

i Significant casesCola and non-cola beverages

The case concerns the market for sale of cola and non-cola beverages for on-premise consumption and the alleged exclusionary practices adopted by Coca-Cola 3E (CC 3E). According to the statement of objections,¹⁴ CC 3E allegedly undertook a series of practices by providing, inter alia, various benefits to retail outlets selling carbonated soft drinks in exchange for exclusivity or exclusion of specific competitors (in particular, products, refrigerators or logos of its competitors); by concluding verbal (de facto) exclusivity agreements with the outlets; by issuing threats or engaging in punitive behaviour if the outlets decided to cooperate with competing suppliers; and other practices of equivalent effect. The HCC's decision is pending.

Gaming industry

Another significant ongoing case concerns exclusivity and non-compete clauses adopted in 2017 by OPAP, a leading – formerly state-owned – gaming company in Greece, in relation to its counterparties operating OPAP gaming services agencies. According to the statement of objections,¹⁵ OPAP leverages its power in the wider gambling market to the detriment of a secondary market of non-gambling activities, in breach of Articles 1 and 2 of the Competition Act and Articles 101 and 102 of the TFEU respectively. The hearing before the HCC is expected in 2022.

Gas appliances

In 2021, the HCC finally issued its decision No. 730/2021 against Resoul SA, a dominant firm in the Greek wholesale market for general purpose gas appliances. The case concerned vertical agreements concluded between Resoul SA and its wholesalers and distributors, during the period 2008–2012, containing the following anticompetitive restraints: resale price maintenance (RPM), restriction of passive (and active, for a certain period) sales, and non-compete obligation clauses, as well as containing terms (exclusivity obligations and target rebates) that constitute an abuse of Resoul's dominant position in the market. In addition, Resoul also abused its dominant position in the market for the period 2005–2019 by offering target rebates in the supermarket chain distribution channel.

Air conditioning systems, solar heaters and boilers

A major HCC investigation involving a large number of undertakings in the air-conditioning and heating market was considered by the HCC in June–July 2021. According to the statement of objections,¹⁶ the undertakings involved adopted, at different times, RPM practices in the online sales channel. The adoption of the practices at issue was perceived by the undertakings involved as a defence against free-riding issues caused by e-shop retailing. The HCC's assessment of these free-riding allegations and its potential impact on the establishment of the infringement or the calculation of the fine is expected with particular interest, given its implications for establishing a defence against RPM practices in the future.

Waste lubricating oils management

In decision No. 741/2021,¹⁷ the HCC imposed a fine of €111,600 on a firm for its abuse of dominance in the market for waste lubricating oils management, because of exclusivity clauses contained in its contracts with its customers. Interestingly, the HCC examined possible grounds of environmental protection raised by the undertakings involved as a potential justification for its practices; however, this argument was rejected as disproportionate in the light of the principles for sustainability included in the 'Technical Report on Sustainability and Competition' published by the HCC in January 2021.

ii Trends, developments and strategies

Sales restrictions and pricing practices (rebates, etc.) of a vertical nature, whether by dominant companies or non-dominant companies, always remain high on the HCC's enforcement agenda and 2021 was not an exception. Given the evolution of EU jurisprudence on these antitrust matters, the adjudication of the cases of this kind already pending before the HCC in 2022 are awaited with great interest.

iii Outlook

The recent developments in EU jurisprudence with respect to effects analysis¹⁸ are expected to affect the approach taken by the HCC in abuse of dominance cases (which has been rather formalistic to date). Other than that, markets of particular interest to consumers (especially markets for basic consumer goods), as well as digital markets and platforms, are expected to be the focus of the HCC's enforcement activity in 2022.