At a glance: competition infringement investigations in Greece

Investigation and settlement

Under which circumstances would the company and officers or employees need separate legal representation? Do the authorities require separate legal representation during certain types of investigations?

The authorities do not require separate legal representation of the company and its officers or employees. Whether separate legal representation is necessary depends on the particular circumstances of each case.

For what types of infringement would the regulatory authority launch a dawn raid? Are there any specific procedural rules for dawn raids?

The Hellenic Competition Commission (HCC) launches dawn raids to investigate cases that have been prioritised on the basis of the criteria that have been established by it. The criteria include the gravity of the alleged infringement (eg, price-fixing or market sharing), the type of the agreement (priority being given to horizontal over vertical agreements), the geographical scope of the infringement, the power of the undertakings concerned, the importance for the consumers of the products or services concerned, existing evidence, the risk of prescription, efficiencies in terms of time, cost and human resources, etc). In November 2019, the HCC conducted the largest scale dawn raid ever at the premises of banks in the context of an ex officio investigation of cartels and exclusionary practices in banking and payment services. 

To conduct a dawn raid, the HCC officials must obtain written authorisation from the chair or another official appointed by him or her specifying with sufficient clarity the subject matter and purpose of the inspection and the penalties provided in the Competition Law for impeding or obstructing the inspection or refusing to present requested books, information or documents.

HCC officials have the powers of tax inspectors and they can, among other things:

• inspect and take copies or extracts of any kind of books, records, documents and electronic business correspondence, irrespective of the place where they are stored;
• seize books, records, documents and electronic means of storage and transport of business data;
• examine and collect information and data from mobile terminals, portable devices and their servers;
• conduct searches at the business premises and means of transport of the undertakings concerned;
• seal business premises and books or records for the period of and to the extent necessary for the inspection;
• conduct searches at the homes of managers, directors and staff of the undertakings concerned;
• take sworn or unsworn testimonies; and
• ask for explanations of facts or documents and record the answers.

There are no published rules on digital searches. In practice, HCC officials largely follow the rules and procedures of the European Commission. All documents or data copied during an inspection are listed in the relevant minutes signed by the HCC officials and the company representatives. Copies of any hard documents taken are attached in the minutes. Electronic data and their digital signatures (MD5 hashes) are copied in a data carrier, a copy of which is left with the company while the data carrier itself is put in an envelope that is closed, signed and sealed with the company’s seal. This data carrier is taken by the HCC officials and opened at the HCC premises in the presence of company representatives.

Following the completion of the dawn raid, the HCC prepares a relevant report containing a description of the procedure, together with any objections or remarks made by the company, which is notified to the company.

What are the company’s rights and obligations during a dawn raid?

The company has an obligation to cooperate fully and actively with the inspection within the scope of the inspection order. It must provide appropriate representatives or staff to assist the inspectors and provide access to the areas, offices and computers as requested. The company must not hinder the investigation or conceal any material, and it must inform all employees accordingly.

Before submitting to the inspection, the company has the right to request the inspectors to produce their identification documents and the relevant written authorisation. The company’s external lawyers may be present at all stages of the inspection; however, this is not a legal condition for the validity of the inspection. HCC inspectors are normally willing to accept a reasonable delay for the arrival of an external lawyer. The company may invoke legal privilege or privilege against self-incrimination, although the privilege against self-incrimination is limited. It also has the right to raise objections or make remarks that must be recorded in the relevant minutes.

Is there any mechanism to settle, or to make commitments to regulators, during an investigation?

The possibility of settlement in cases of horizontal agreements infringing article 1(1) of the Competition Law was introduced in 2016 (Law 4386/2016). The settlement procedure is set out in HCC decision No. 628/2016 (as amended by HCC decision No. 704/2020), and it largely follows the relevant European Commission notice, with the main difference being that it also applies in cases where a statement of objections has been issued.

Settlement discussions commence on the parties’ initiative at any stage of the investigation. If a statement of objections has been issued, the parties must express their interest no later than 35 days before the hearing of the case.

The settlement procedure is initiated by decision of the HCC. The HCC enjoys full discretion in determining whether a case is suitable for settlement, taking into account various factors, such as the number of undertakings involved in the investigation and the number of undertakings potentially and genuinely interested in settlement, the number and nature of the alleged infringements, whether procedural efficiencies and resource savings can be achieved and any aggravating circumstances. The HCC may discontinue the settlement procedure at any time.

Following the initiation of the settlement procedure, bilateral discussions take place between the undertakings that expressed their interest in settling and the HCC rapporteur. If a statement of objections has been issued, the bilateral discussions take place with the HCC in a plenary session. The purpose of the bilateral discussions is to provide each undertaking with the necessary information regarding the case and the range of the likely fines. Each undertaking is also given the opportunity to present its views on the alleged infringement and make legal and factual assertions. The HCC does not negotiate the existence of an infringement or the appropriate sanctions.

After completion of the bilateral discussions, if the rapporteur (or the HCC) considers that there is room for settlement, a deadline for the filing of settlement submissions by the parties is set. Settlement submissions must contain, among other things:

• a clear and unequivocal acknowledgement of the party’s participation in the infringement and the party’s liability;
• an acceptance of the maximum amount of the fine that may be imposed by the HCC; and
• a waiver by the party of its right to request further or full access to the file of the case.

If the settlement submissions reflect the content of the bilateral discussions, the rapporteur issues a settlement recommendation. This is served to the parties who are invited to confirm unequivocally, unconditionally and clearly through a settlement declaration that the settlement recommendation reflects their settlement submission. If a party does not do this, the settlement procedure is discontinued with regard to the party.

The settlement recommendation is not binding upon the HCC. If the HCC decides to settle, a settlement decision is issued.

A party, having expressed its interest in exploring settlement, may withdraw from the settlement procedure at any time. In that case, with regard to the party, the ordinary procedure will be resumed following completion of the settlement procedure. In the event that some of the parties involved do not participate in the settlement procedure, the HCC issues two decisions: one decision for the parties joining the settlement and another decision for the other parties.

If the settlement procedure is discontinued (either by the HCC or by a party), the settlement submission or settlement declaration is deemed to have been automatically revoked, and it is not binding upon the party and cannot be relied upon before the HCC or any competent court.

Settlement leads to a 15 per cent reduction of the fines that would normally have been imposed. Leniency and settlement are not mutually exclusive. Where applicable, the reduction of a fine under the settlement procedure will be cumulative with the reduction of the fine under the leniency programme.

According to Greek law, penal liability for relevant crimes based on the infringement that has been acknowledged by a party in the framework of the settlement procedure is extinguished provided that any fines imposed are paid in full. However, the parties may be subject to civil claims for damages resulting from the infringement being acknowledged.

The settlement procedure is distinct from the commitments procedure. The terms, conditions and procedure for offering and accepting commitments in cases of possible infringements of competition law are set out in HCC decision No. 588/2014, which is largely inspired by the European Competition Network Recommendation on Commitment Procedures.

The HCC enjoys wide discretion in accepting commitments. According to the above decision, commitments are, in principle, not acceptable:

• in cases involving cartels or serious cases of abuse of dominance or horizontal agreements that have been subject to a leniency programme;
• if the proposed commitments are vague, dilatory, subject to conditions or dependent on the will of a third party; and
• in cases where the HCC intends to impose fines.

Commitments can be structural, behavioural or both, and they can be proposed at any stage of the investigation. If the HCC decides to open commitment proceedings, the rapporteur invites the undertakings concerned to submit their commitments in writing within 30 days. The offering of commitments does not mean that the undertakings concerned admit the infringements of competition law under investigation.

If the proposed commitments are efficient and meet the competition concerns identified, the rapporteur issues a recommendation on the proposed commitments and refers the case to the HCC for a hearing; otherwise, the investigation continues.

If a statement of objections has already been issued, the parties can propose commitments with their written memo, which must be filed no later than 20 days before the hearing before the HCC. Any commitments proposed at a later stage are inadmissible. The rapporteur issues a recommendation on the proposed commitments no later than two days before the hearing.

If the proposed commitments are accepted by the HCC, they are included in a binding and enforceable decision, concluding that there are no longer grounds for action without finding an infringement. It is at the discretion of the HCC to decide at any stage to continue proceedings with a view to taking a decision on the infringement.

What weight will the authorities place on companies implementing or amending a compliance programme in settlement negotiations?

HCC decision No. 628/2016 on settlement procedures does not include any reference to compliance programmes.

Are corporate monitorships used in your jurisdiction?

A ‘monitoring trustee’ would be used to ensure compliance with divestiture commitments in the context of mergers. The HCC has published a model trustee mandate based on the relevant best practice guidelines by the European Commission.

Are agreed statements of facts in a settlement with the authorities automatically admissible as evidence in actions for private damages, including class actions or representative claims?

Any documents submitted by the parties in the framework of the settlement procedure (memoranda, minutes, settlement submission, settlement declaration, etc) are strictly confidential. They may not be used in the context of any other court or administrative procedure, and they are inadmissible as evidence in the context of claims for damages. In addition, according to Law 4529/2018 implementing the EU Antitrust Damages Directive (Directive 2014/104/EU), a person who has submitted such documents as evidence is subject to fines of up to €100,000.

Can the company or an individual invoke legal privilege or privilege against self-incrimination in an investigation?

Legal privilege covers all communication between the client and external lawyers before, during and after the investigation. Legal privilege does not extend to communication between the client and in-house lawyers. The HCC has accepted that legal privilege extends to communication with in-house lawyers when the latter simply report on or reproduce communication by external lawyers.

The privilege against self-incrimination is limited. The company or an individual may refuse to answer questions that would entail admission of the infringement under investigation. However, there is no absolute right to silence in competition proceedings, and a company or an individual cannot refuse to answer questions on facts or provide documents that may be used as evidence for the establishment of the infringement.

What confidentiality protection is afforded to the company or individual, or both, involved in competition investigations?

HCC officials are under a duty of confidentiality. Breach of this duty can lead to criminal liability and fines. Trade and industry secrets are kept confidential. Third parties do not have access to the documents included in the case file.

Confidential data is not, in principle, included in official documents (eg, the rapporteur’s statement of objections and HCC decisions). As an exception, confidential data can be included in the rapporteur’s statement of objections, following a decision by the HCC chair, if this is deemed necessary. On completion of the statement of objections, the parties can access the file’s non-confidential data and any confidential data that has been included in the statement of objections. Persons who have proceedings pending against them can access the file’s confidential data if access is necessary for their defence, following a decision by the chair.

The parties are required to indicate information that they consider to be confidential, stating the reasons for confidentiality, by also submitting the relevant documents in a non-confidential version. If they fail to do so, all documents are considered non-confidential.

What are the penalties for refusing to cooperate with the authorities in an investigation?

The HCC can impose administrative fines of between €15,000 and 1 per cent of the national turnover of the undertaking for failing to provide the information requested or hindering the investigation. These fines can be imposed on the undertaking and the natural persons that failed to provide the information requested or hindered the investigation.

Hindering investigations or knowingly providing false information or concealing information are also criminal offences punishable with imprisonment of between six months and five years.

In 2019, the HCC imposed a fine of €800,000 on Coca-Cola 3E SA for obstructing an on-site inspection (moving and deleting messages from email accounts).

Is there a duty to notify the regulator of competition infringements?

There is no duty to notify the regulator of competition infringements.

What are the limitation periods for competition infringements?

The HCC’s power to impose sanctions is subject to a five-year limitation period starting from the day on which the infringement was committed or, in the case of continuing or repeated infringements, from the day on which the infringement ceased.

The above limitation period is interrupted by any action taken by the HCC, the European Commission or the competition authority of any member state relating to the infringement. The interruption is effected from the date of notification of any such action to at least one of the participating undertakings, and it applies to all participating undertakings. Following each interruption, the limitation period restarts; however, the limitation period expires on the lapse of 10 years without the HCC imposing a fine. The period is extended by any time during which the limitation period is suspended; that is, for as long as the HCC decision or any other act relating to the infringement is subject to any court proceedings.

According to the Competition Law, the limitation period also applies to infringements that took place before its entry into force (20 April 2011) and have not been the subject of a complaint, an ex officio investigation by the HCC or a request for investigation by the Minister of Economy.