Competition Compliance in Greece

General

What is the general attitude of business and the authorities to competition compliance?

The Hellenic Competition Commission (HCC) takes various steps to diversify and expand its advocacy efforts. In this context, it has published compliance and awareness guides and information bulletins and has organised training seminars and conferences to promote awareness of competition law issues.

Many large undertakings, particularly those belonging to international groups, conduct antitrust audits and implement compliance programmes.

Is there a government-approved standard for compliance programmes in your jurisdiction?

There is no government-approved standard for compliance programmes in Greece.

Is the compliance guidance generally applicable or do best practice and obligations depend on company size and the sector of the economy in which it operates?

In the absence of a government-approved standard for compliance programmes, best practice and obligations depend on company size and the sector of the economy in which the company operates.

If the company has a competition compliance programme in place, does it have any effect on sanctions?

The existence of a competition compliance programme is not included among the attenuating circumstances giving rise to fine reduction under the guidelines for setting fines issued by the HCC in 2006. Although many undertakings have invoked the implementation of such programmes in proceedings before the HCC in order to claim fine reduction, to the best of our knowledge there have not been any HCC decisions mentioning this as a reason for fine reduction.

Implementing a competition compliance programme

How does a company demonstrate its commitment to competition compliance?

The company’s commitment to competition compliance can be demonstrated, among others, through:

• setting out clear compliance policies, appropriately documented and made available to all company staff; asking staff for written acknowledgement of receipt thereof;
• designating a member of senior management to take overall responsibility for competition compliance;
• putting in place incentives for compliance with and penalties for breach of compliance policies;
• putting in place reporting, monitoring and auditing mechanisms; and
• taking immediate action in case any situation of conflict with competition rules is detected.

What are the key features of a compliance programme regarding risk identification?

In the absence of government-approved standards or other official guidelines, taking into account the fact that Greek law is largely based on EU law, the key features of a compliance programme regarding risk identification, risk assessment, risk mitigation and review would largely follow best practices at EU level.

What are the key features of a compliance programme regarding risk-assessment?

See question 6.

What are the key features of a compliance programme regarding risk-mitigation?

See question 6.

What are the key features of a compliance programme regarding review?

See question 6.

Dealing with competitors

What types of arrangements should the company avoid entering into with its competitors?

The company should avoid entering into any kind of agreement or concerted practice having as its object or effect the prevention, restriction or distortion of competition in the Greek market. Article 1(1) of Law 3959/2011 (the Competition Law), which is almost identical to article 101(1) of the Treaty on the Functioning of the European Union (TFEU), provides indicative examples of such restrictive agreements or practices, which include those that:

• directly or indirectly fix prices or other trading conditions;
• limit or control production, supply, technical development or investment;
• share markets or sources of supply;
• apply dissimilar conditions to equivalent transactions, making the operation of competition difficult (such as, unjustifiably refusing to sell, purchase or conclude any other transaction); and
• make contracts subject to the other parties accepting supplementary obligations that, by their nature or according to commercial use, have no connection with the subject of the contracts.

Article 101 of TFEU also applies directly in Greece with respect to agreements or concerted practices that may affect trade between EU member states.

What precautions can be taken to manage competition law risk when the company enters into an arrangement with a competitor?

Appropriate training and documented competition policies are very useful in order to make clear what types of arrangement the company may enter into with a competitor.

In meetings with competitors, including meetings in the framework of trade associations, the agenda should be carefully checked in advance. The company participants should make sure that the discussion does not get into issues raising competition law concerns and, if it does, they should leave the meeting at once. Detailed minutes should be kept.

An additional precaution would be to put in place effective competition law sign-off procedures allowing the company’s lawyers to review issues that may give rise to competition law concerns.

Cartels

What form must behaviour take to constitute a cartel?

The prohibition of cartels catches all types of agreements, decisions by associations of undertakings or concerted practices.

The concept of ‘agreement’ is broad and encompasses oral and written, explicit or tacit agreements. It is not necessary for an agreement to be intended as legally binding or to be supported by enforcement mechanisms. Gentlemen’s agreements and simple understandings fall within the concept of an ‘agreement’. The concept of ‘concerted practice’ is also very broad and encompasses all cases where practical coordination between undertakings is knowingly substituted for competition.

An unsuccessful attempt is not covered by the above prohibition.

Under what circumstances can cartels be exempted from sanctions?

Cartels are exempted from sanctions if they benefit from a block exemption or an individual exemption.

The Competition Law provides that the HCC can issue block exemptions, however, no such block exemptions have been issued until this date. On the other hand, according to the Competition Law EU block exemption regulations are applicable by analogy in Greece to agreements, decisions or concerted practices with a purely national effect.

Agreements, decisions or concerted practices falling under article 1(1) of the Competition Law are valid, in whole or in part, if they meet all of the following criteria set out in article 1(3) of the Competition Law (which are identical to those of article 101(3) TFEU):

• they contribute to improving production or distribution of goods, or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit;
• they do not impose restrictions on the undertakings concerned beyond those necessary for attaining these objectives; and
• they do not give the undertakings the possibility of eliminating competition in a substantial part of the relevant market.

There is no prior notification mechanism. The undertakings are responsible for assessing and ensuring compliance with competition rules.

Can the company exchange information with its competitors?

Information exchange is not specifically regulated. It is examined under the general rules prohibiting agreements or concerted practices with the object or effect of restricting competition. Information exchange must be closely scrutinised since it may be viewed as an instrument of coordination between competitors. As a general rule, ‘the exchange of information between competitors is liable to be incompatible with the competition rules, if it reduces or removes the degree of uncertainty as to the operation of the market in question, with the result that competition between undertakings is restricted’ (ECJ Judgment of 4 June 2009 in case C-8/08, T-Mobile Netherlands BV, Recital 35). The risk depends on a variety of factors.

Exchanging information on intentions of future conduct, including information on current conduct that reveals intentions on future behaviour, is considered as a restriction of competition by object falling within the ambit of article 101(1) of TFEU and article 1(1) of the Competition Law. In the absence of a restriction of competition by object, the exchange of information may still contravene competition rules if it is likely to have an appreciable adverse impact on competition. This depends on both the economic conditions on the relevant market and the characteristics of information exchanged and it must be analysed on a case-by-case basis taking account of a combination of factors such as:

• the part of the relevant market that is covered by the information exchange;
• market characteristics;
• whether the information is exchanged directly between competitors or through a third party;
• the frequency of the exchange and the length of the reference period;
• whether the exchange refers to commercially sensitive information, namely, strategically useful data such as prices, discounts, profit margins, quantities, turnover and sales;
• whether the data exchanged are publicly available or not;
• the age and the level of aggregation or individualisation of the data: the exchange of genuinely historic and aggregated data is unlikely to have an anticompetitive outcome; and
• whether the exchange of information is public or not and the data reported are also available to non-participants.

Leniency

Is a leniency programme available to companies or individuals who participate in a cartel in your jurisdiction?

HCC decision No. 526/VI/2011 sets out the terms and conditions for full immunity or reduction of fines in case of infringement of article 1(1) of the Competition Law or article 101(1) of TFEU (the leniency programme). The leniency programme is harmonised with EU rules and standards.

The leniency programme applies to prohibited cartels. It does not apply to vertical agreements or abuse of dominance.

All leniency applications must fulfil the following general requirements:

• The applicant must cooperate with the HCC genuinely, fully and on a continuous basis until completion of the administrative procedure for the investigation of the case. Unless otherwise agreed with the HCC, the applicant must not disclose to any third party, except to other competition authorities, the fact or the content of its application before an HCC recommendation is issued.
• If the application is filed by an undertaking, the undertaking must end its involvement in the alleged cartel at the latest on filing of the application, except for what would in the HCC’s view be necessary to facilitate investigations relating to the alleged infringement.
• Before filing the application for leniency, the applicant must not have destroyed, falsified or concealed evidence of the alleged cartel or disclosed the fact or the content of its contemplated application, except to other competition authorities.

The leniency programme provides for full immunity from fines (type 1A or type 1B) or reduction of fines (type 2).

Type 1A immunity is granted where:

• the applicant is the first to submit evidence, which, in the HCC’s view, will enable it to carry out a targeted inspection in connection with the alleged cartel; and
• the HCC did not have sufficient evidence to enable it to carry out a targeted site inspection or to take any other measure of investigation in connection with the alleged cartel and had not yet carried out any such inspection or taken any other measure of investigation.

If type 1A immunity is not available, type 1B immunity can be granted where:

• the applicant is the first to submit evidence, which, in the HCC’s view, will enable it to find an infringement of article 1 of the Competition Law or article 101 TFEU in connection with the alleged cartel; and
• the HCC did not have sufficient evidence to enable it to find an infringement.

An undertaking that took steps to coerce other undertakings to join the cartel is not eligible for type 1A or type 1B immunity. This exception does not apply to the individual officers or employees of that undertaking.

If the conditions for granting type 1A or type 1B immunity are not fulfilled, the applicant may benefit from a reduction of fines, provided that it gives the HCC evidence of the alleged cartel that represents significant added value with respect to the evidence already in the HCC’s possession.

The identity of the applicant is kept confidential until the issuance of the recommendation (statement of objections) by the HCC’s rapporteur and the initiation of proceedings against the alleged infringers.

Can the company apply for leniency for itself and its individual officers and employees?

A leniency application filed by an undertaking extends automatically to the natural persons (officers and employees) who would be liable for fines.

Can the company reserve a place in line before a formal leniency application is ready?

An applicant wishing to apply for leniency can obtain a marker reserving a place in line to allow for the gathering of the necessary information and evidence. The duration of the marker is specified by the HCC Chairman on a case-by-case basis.

The applicant must justify its request for a marker and provide the HCC with information regarding its name and address, the parties to the alleged cartel, the affected products and territories, the duration, nature and operation of the alleged cartel and information on other past or possible future leniency applications to other authorities in relation to the alleged cartel.

A marker is granted at the HCC’s discretion. If the applicant perfects the marker within the period set, the information and evidence provided is deemed to have been submitted when the marker was granted.

If the company blows the whistle on other cartels, can it get any benefit?

The company cannot get any benefit if it blows the whistle on other cartels.

Dealing with commercial partners (suppliers and customers)

What types of vertical arrangements between the company and its suppliers or customers are subject to competition enforcement?

Greek competition rules apply to both horizontal and vertical agreements.

As a general rule, for most vertical agreements (single branding, exclusive or selective distribution, franchising, exclusive supply, etc), competition concerns arise if they contain hardcore restrictions or if there is insufficient competition at one or more levels of trade. The cumulative effect of similar vertical agreements is also taken into account. As a general rule, vertical restraints are considered less harmful than horizontal restraints.

EU Block Exemption Regulations apply in Greece by analogy to agreements with purely national effect. Among others, the general Block Exemption Regulation 330/2010 on vertical restraints applies to vertical agreements that do not contain a ‘hardcore restraint’ (leading to the exclusion of the whole agreement from the scope of the Block Exemption Regulation) or other excluded restrictions (leading to the exclusion of the specific clause from the scope of the Block Exemption Regulation), provided that the market share of both the supplier and the buyer is below 30 per cent. Above this market share threshold, vertical agreements are assessed on an individual basis.

Greek competition law does not contain specific rules on agency agreements. The HCC and the courts largely follow the precedents and principles set at EU level, including, in particular, the rules set out in the European Commission Guidelines on Vertical Restraints. In principle, a genuine agency agreement, where the agent does not bear any, or bears only insignificant risks in relation to contracts concluded and/or negotiated on behalf of its principal, does not fall within the ambit of article 1(1) of the Competition Law. In decision No. 1833/2010, the Athens Administrative Court of Appeal upheld HCC decision No. 307/2007 by making explicit reference to the European Commission Guidelines on Vertical Restraints. In particular, the court held that the relationship between an authorised repairer, a member of a motor vehicle distribution network, and its principal with respect to the sale of spare parts and the provision of repair services by the repairer to the clients was that of a non-genuine agency agreement, taking into account that the repairer undertook significant financial and commercial risks, such as maintenance of stock on a permanent basis at the repairer’s cost and risk, and had made important investments regarding premises, installations, personnel, training and equipment, etc.

The HCC has issued De Minimis Notice of 2 March 2006 (which largely follows the European Commission’s De Minimis Notice of 2001). According to the HCC De Minimis Notice, vertical agreements between undertakings whose aggregate market share does not exceed certain thresholds (5 per cent for agreements between competitors and 10 per cent for agreements between non-competitors) are considered to fall outside the scope of article 1(1) of the Competition Law, unless they contain hardcore restrictions.

Would the regulatory authority consider the above vertical arrangements per se illegal? If not, how do they analyse and decide on these arrangements?

In assessing vertical restraints, the HCC and the courts largely follow the precedents and principles set at EU level. Hardcore restrictions, such as resale price maintenance or market partitioning, are considered as restrictions by object and they give rise to the presumption that the agreement falls under article 1(1) of the Competition Law. Otherwise, an individual assessment of the likely effects of the agreement is required.

Under what circumstances can vertical arrangements be exempted from sanctions?

Vertical agreements can be exempted from sanctions if they fall within the scope of a block exemption regulation or if they fulfil the conditions for individual exemption.

How to behave as a market dominant player

Which factors does your jurisdiction apply to determine if the company holds a dominant market position?

Market share is an important but not conclusive criterion to determine if a company holds a dominant position. Market shares above 50 per cent generally constitute a strong indication of dominance. Dominance is not likely if the market share is below 40 per cent. Other factors to be taken into account are market structure, the economic strength of competitors, the existence of potential competitors, barriers to market entry or expansion, countervailing buyer power, technological, capital and infrastructure requirements, the existence of distribution networks, etc.

If the company holds a dominant market position, what forms of behaviour constitute abuse of market dominance? Describe any recent cases.

Article 2 of the Competition Law (which is almost identical to article 102 of TFEU) provides indicative examples of abuse of dominance, including:

• directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
• limiting production, supply or technical development to the prejudice of consumers;
• applying dissimilar conditions to equivalent transactions, such as unjustifiably refusing to sell, purchase or conclude any other transaction, thereby placing undertakings at a competitive disadvantage; and
• making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

Article 102 of TFEU also applies directly in Greece with respect to abuse of dominance that may affect trade between EU member states.

In 2016, the HCC imposed fines of €31 million for abuse of dominance on Athenian Brewery (a subsidiary of Heineken), which was active in the production and distribution of beer in Greece. The HCC held that over a period of 15 years, Athenian Brewery’s commercial policy aimed at foreclosing competitors from the on-trade consumption market (HORECA (hotel, restaurant, café) chains and other retail outlets) through various practices (such as significant bonuses conditional on exclusivity, loyalty and target rebates). Athenian Brewery was also held to have engaged in restrictive practices at the wholesale level by providing wholesalers with significant incentives for promoting exclusivity and foreclosing competitors.

In 2018, the HCC imposed fines of approximately €1.17 million for abuse of dominance on GlaxoSmithKline SA and GlaxoSmithKline plc. The HCC held that from 2000 to 2004, the above companies abused their dominant position in the Greek market of migraine medicines with the aim of reducing parallel imports by initially refusing to meet all orders of the medicinal product Imigran in their entirety and, subsequently, by refusing to meet ordinary orders of wholesalers and reducing substantially the quantities supplied to them.

Also in 2018, the HCC imposed fines of approximately €8.7 million for abuse of dominance on Elais - Unilever Hellas SA. The HCC held that from 2002 to 2008 the above company abused its dominant position in the Greek market for margarine by implementing abusive practices including target rebates and unfair trading conditions banning the promotion of competitive brands.

Under what circumstances can abusing market dominance be exempted from sanctions or excluded from enforcement?

Abuse of dominance cannot be exempted from sanctions or excluded from enforcement.

Competition compliance in mergers and acquisitions

Does the company need to obtain approval from the competition authority for mergers and acquisitions? Is it mandatory or voluntary to obtain approval before completion?

If certain thresholds are met, mergers and acquisitions are subject to mandatory filing and they cannot be implemented until the HCC issues its decision.

A concentration is subject to mandatory filing if:

• the participating undertakings have a total worldwide turnover of at least €150 million; and
• each of at least two participating undertakings has a total turnover of at least €15 million in Greece.

For concentrations in the four mass media markets (newspapers, magazines, TV and radio), the above thresholds are reduced to €50 million and €5 million respectively.

If the concentration takes the form of a merger or acquisition of joint control, the obligation to notify falls upon the parties to the merger or the undertakings acquiring joint control. In all other cases, the obligation to notify falls upon the undertaking acquiring control.

By way of exception, a concentration can be implemented prior to the issuance of the HCC’s decision in either of the following circumstances:

• on the basis of a special decision of the HCC, possibly subject to conditions, if this is necessary to prevent serious damage to one or more undertakings concerned or to a third party; or
• if the concentration concerns a public bid or the acquisition of a controlling interest in a company listed on the stock exchange, provided that the acquirer does not exercise the voting rights of the acquired securities and the transaction has been duly notified to the HCC. At the acquirer’s request, the HCC can allow it to exercise the voting rights before clearance, to maintain the full value of its investment.

How long does it normally take to obtain approval?

Concentrations subject to premerger notification must be notified to the HCC within 30 days from conclusion of the relevant agreement, announcement of a public bid or assumption of an obligation to acquire a controlling interest.

Within one month from notification (provided that this is complete and accurate):

• the chairman of the HCC issues an act confirming that the concentration does not fall within the ambit of the Competition Law;
• the HCC issues a decision clearing the concentration; or
• the chairman refers the concentration to the HCC for further investigation, if it raises serious doubts as to its compatibility with competition in the relevant market (Phase II).

In the latter case, within 45 days from the Phase II referral, the HCC rapporteur must issue a reasoned recommendation, which is notified to the parties. A date of hearing before the HCC is set and the HCC’s decision must be issued within 90 days from the Phase II referral. If no decision is issued within the above deadline, the concentration is deemed cleared.

The parties may notify amendments or propose commitments within 20 days from submission of the rapporteur’s reasoned recommendation. In exceptional circumstances this deadline can be extended by the HCC, in which case the HCC decision must be issued within 105 days from the Phase II referral.

If the company obtains approval, does it mean the authority has confirmed the terms in the documents will be considered compliant with competition law?

A decision clearing a concentration covers ancillary restraints that are directly related to and necessary for the concentration. The principles in the European Commission Notice on restrictions directly related and necessary to concentrations (OJ 2005 C56/03) apply.

What are the consequences for failure to file, delay in filing and incomplete filing? Have there been any recent cases?

In case of failure to file or late filing, the HCC can impose fines on each undertaking that is under an obligation to notify. The fines range between €30,000 and 10 per cent of the undertaking’s aggregate national turnover. The legal representatives of the undertakings are personally and jointly liable for paying all fines imposed against the undertaking. In addition, the HCC can impose personal fines ranging between €200,000 and €2 million, if they took part in preparing, organising or committing the infringement, and they may also be subject to criminal liability.

If filing is incomplete or inaccurate, the HCC will request submission of any missing information within a deadline set by it. In such case, the deadlines for the issuance of a decision mentioned in question 23 do not start until all necessary information has been provided. To the best of our knowledge, there have not been any decisions imposing fines for failure to notify correctly.

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 HCC would decide to launch a dawn raid for the investigation of cases that have been prioritised on the basis of the criteria that have been established by the HCC. Such criteria include the gravity of the alleged infringement (such as 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, etc). In 2018, the HCC conducted dawn raids in the context of the investigation of four cases.

To conduct a dawn raid, the HCC officials must obtain written authorisation from the chairman 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.

The 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 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 procedure followed by the European Commission. All documents or data copied during an inspection are listed in relevant minutes signed by HCC officials and 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 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 conduct of 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 consultation with the arrival of an external lawyer. The company may invoke legal privilege or privilege against self-incrimination within the limits set out in question 36. 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 628/2016 and it largely follows the relevant European Commission Notice, with the main difference that it applies also 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 not 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 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 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 as regards such 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, as regards such 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 are deemed to have been automatically revoked, they are not binding upon the party and they 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 588/2014, which is largely inspired by the ECN Recommendation on Commitment Procedures.

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

• in the case of 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 not later than 20 days prior to the hearing before the HCC. Any commitments proposed at a later stage are inadmissible. The rapporteur issues a recommendation on the proposed commitments not 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 628/2016 on settlement procedure 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 European Commission Best Practice Guidelines.

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 EU Antitrust Damages Directive 2014/104/EU, the person who has submitted such documents as evidence is subject to fines 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 or after the conduct of 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 very infringement under investigation. However, there is no absolute right to silence in competition proceedings and a company or an individual may not 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 and/or individual involved in competition investigations?

The 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 (such as 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 of the HCC chairman, 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 this access is necessary for their defence, following a decision of the chairman.

The parties are required to indicate information that they consider 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 failure to provide the information requested or hindering the conduct of investigations. These fines can be imposed on the undertaking and the natural persons that failed to provide the information requested or hindered the conduct of investigations.

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

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 starts running afresh. However, the limitation period expires on the lapse of 10 years without the HCC imposing a fine. This 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.

Miscellaneous

Are there any other regulated anticompetitive practices not mentioned above? Provide details.

The Competition Law is the main legal instrument for the protection of free competition. Unfair competition practices fall within the scope of Law 146/1914, as amended.

Are there any proposals for competition law reform in your jurisdiction? If yes, what effects will it have on the company’s compliance?

Directive 2014/104/EU on actions for damages for infringements of competition law was implemented in Greece by Law 4529/2018.

Updates and trends

Are there any emerging trends or hot topics regarding competition compliance in your jurisdiction?

Since the adoption of HCC decision No. 628/2016 regarding settlement, the HCC has issued five settlement decisions. The first was issued in January 2017 imposing fines of approximately €1 million in a case of retail price-fixing in the beauty and broader cosmetics sector. The second was issued in March 2017 imposing record fines of approximately €80 million in a complex case of bid-rigging in tenders for public works (metro rail projects, public-private partnerships and infrastructure works) from 2005 to 2012. One of the participating undertakings was granted Type 1B full immunity from fines, this being the first HCC decision applying the current leniency programme.

In 2018, the HCC issued three more settlement decisions: decision No. 668/2018 imposing fines of approximately €0.17 million in a case of horizontal segmentation of the market of dairy products; decision 669/2018 imposing fines of approximately €0.5 million in a cartel case in the market of distribution of the Greek press; and decision 674/2018 imposing fines of approximately €0.25 million in another case of bid-rigging in a public works tender.