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Legislation, triggers and thresholds
Legislation and authority
What legislation applies to the control of mergers?
The Law on the Protection of Competition (3959/2011) came into force in April 2011. It replaced Law 703, which had been introduced in 1977 – long before Greece became a member of the then European Economic Community. Both laws are modelled on EU legislation. As regards merger control, Greek law generally reflects EU law with respect to both substance and the procedures to be followed.
Only major concentrations fall under the jurisdiction of the Hellenic Competition Commission (HCC), which examines whether they significantly impede competition (as analysed below).
The existing law has abolished the HCC post-notification obligation regarding minor concentrations of undertakings whose:
- share in the Greek market was at least 10%; or
- aggregate turnover in Greece was at least €15 million.
While the HCC was not required to approve such concentrations, it was required to be notified within one month of their closing. This was intended to enable market mapping (ie, the identification of trends in the market), although this was not the case. The requirement also created unnecessary work for the HCC and was therefore abolished.
What is the relevant authority?
The HCC is an independent authority which enforces Articles 1 and 2 of the Law on the Protection of Competition (3959/2011), as well as Articles 5 to 10 therein, which cover merger control in respect of mergers with a national dimension. In this capacity, the HCC has the decisive power to:
- verify whether a concentration will have a significant impact on competition;
- allow or prohibit the concentration; and
- accept remedies or impose conditions.
The HCC has exclusive authority to apply merger control provisions in all market sectors. However, specific liberalised industries (eg, telecoms and energy) also have separate national regulatory authorities which enforce competition rules, including merger control provisions, in cooperation with the HCC (ie, the National Telecommunications and Post Commission and the Regulatory Authority for Energy). Article 24(2) of the Law on the Protection of Competition (3959/2011) governs this cooperation, given that coordination is required in most cases.
The HCC also has the authority to handle mergers with an EU dimension referred to it by the European Commission, as per the EU Merger Regulation (139/2004).
Under the existing structure, the HCC is a single organ comprising a president, a vice president and six further members, four of whom are full-time exclusive employment executives (rapporteurs). The rapporteurs are assigned cases and must then prepare a statement of objections, which constitutes the basis of the HCC’s examination. In accordance with the latest amendment to the Law on the Protection of Competition (3959/2011), rapporteurs participate in hearings and deliberations, but do not vote.
Transactions caught and thresholds
Under what circumstances is a transaction caught by the legislation?
A concentration will be deemed to arise where a change of control on an ongoing basis results from:
- the merger of two or more previously independent undertakings or parts thereof; or
- the acquisition of direct or indirect control of all or part of the undertakings, regardless of how this acquisition is affected.
Article 5 of the Law on the Protection of Competition (3959/2011) incorporates the definitions of the EU Merger Regulation.
Both stock and asset deals will be deemed to be concentrations where they lead to an acquisition of control. Cases involving a change of control (eg, from joint to full control) also constitute concentrations and must be notified if the above thresholds are met.
Do thresholds apply to determine when a transaction is caught by the legislation?
Merger control is exercised regarding concentrations where:
- the combined aggregate worldwide turnover of all of the undertakings concerned is at least €150 million; and
- cumulatively, the aggregate turnover of each of at least two of the undertakings concerned in the Greek market exceeds €15 million.
The above turnover thresholds apply for all market sectors except mass media, where special legislation (Law 3592/2007) defines the respective thresholds.
Is it possible to seek informal guidance from the authority on a possible merger from either a jurisdictional or a substantive perspective?
Yes – although so-called ‘comfort letters’ are not usually provided.
Are foreign-to-foreign mergers caught by the regime? Is a ‘local impact’ test applicable under the legislation?
Only where the above turnover thresholds are met.
What types of joint venture are caught by the legislation?
The creation of a joint venture constitutes a concentration only if the new entity performs all of the functions of an autonomous economic entity on an ongoing basis. If this is not the case, the concentration will constitute a cooperative joint venture, falling under the scope of Article 1 of the Law on the Protection of Competition (3959/2011) (Article 101 of the Treaty on the Functioning of the European Union) and may qualify for exemption.
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