Merger reviewi Introduction
As per Law 3959/2011, only major concentrations fall under the jurisdiction of the HCC, which examines whether they significantly impede competition.
The HCC is exclusively competent to apply merger control provisions in all market sectors; however, for specific liberalised industries, such as telecoms and energy, there are separate national regulatory authorities (the EETT and RAE, respectively) that are also competent to apply competition rules, including merger control provisions, in cooperation with the HCC. Law 3959/11 (Article 24, Paragraph 2) specifies the terms of cooperation between the authorities, given that in most cases coordination is required.
A separate authority for the sea transportation industry, RATHE, was abolished in 2004. Competence for such cases now lies with the HCC, although Law 3260/2004 provides that an expert from the Ministry of Economy and Development must participate in the hearings and deliberations of the HCC as a non-voting member. Furthermore, a specialised authority for the ports sector, the Regulatory Authority for Ports (RAL), was established in 2016, which is competent to take regulatory measures concerning competition between ports and to cooperate with the HCC for the enforcement of competition rules; however, the new authority does not have any merger review competencies.
The HCC is also competent to handle mergers with a Community dimension that are referred to it by the European Commission, as per the provisions of EU Regulation No. 139/2004.ii Pre-merger notification
Concentrations that fall under the definition of the new Law (Article 6) are subject to a pre-merger notification. If they are implemented prior to clearance by the HCC or contrary to a prohibition decided by the HCC, the undertakings concerned are subject to serious sanctions (i.e., a penalty and possible invalidity of the concentration). A penalty is also imposed for late notification, even if the parties have not yet implemented the concentration or if the concentration was finally approved.
Merger control is exercised when a concentration exceeds the following turnover thresholds: the combined aggregate worldwide turnover of all 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 thresholds apply for all market sectors, except mass media, where special legislation (Law 3592/07) defines the respective thresholds as follows: the combined aggregate worldwide turnover of all the undertakings concerned is at least €50 million; and cumulatively, the aggregate turnover of each of at least two of the undertakings concerned in the Greek market exceeds €5 million.Deadline for notification
While EU Regulation No. 139/2004 does not set any notification deadline, and while it is in the parties' interest to move quickly to gain clearance and implement a merger, in Greece, notification must be made within 30 days from the entry into an agreement or the publication of an offer or an exchange, or the obligation from the undertaking to acquire participation, which secures the control of another undertaking. Parties to a concentration, which consists of a merger or the acquisition of joint control, shall notify the concentration jointly. In all other cases, the notification shall be effected by the person or undertaking acquiring control of the whole or part of one or more undertakings.Definition of concentration
A concentration shall be deemed to arise where a change of control on a lasting basis results from the merger of two or more previously independent undertakings or parts thereof, or the acquisition of direct or indirect control of the whole or part of an undertaking, regardless of the way in which this acquisition is affected. Article 5 of Law 3959/11 follows the definitions of Regulation No. 139/2004.
Cases of a change of control (e.g., changing from joint to full control) also constitute concentrations to be notified once the above-mentioned thresholds are met.
Creation of a joint venture constitutes a concentration only if the new entity performs all the functions of an autonomous economic entity on a lasting basis. Otherwise, it would be a cooperative joint venture, falling under the scope of Article 1 of Law 3959/11 (Article 101 TFEU) and possibly qualifying for exemption.Substantive test
Greek law, following the EU substantive test (SIEC), provides that a concentration is prohibited if it may lead to a significant impediment of competition in the whole or a substantial part of the Greek market, especially by creating or strengthening a dominant position. Therefore, market share will be examined, although it is not the only decisive criterion. Within the framework of the test, the law itself specifies the basic criteria to be considered thereunder, including:
- structure of the relevant markets;
- actual or potential competition;
- barriers to entry;
- market position of the participating undertakings;
- available sources of supply and demand;
- consumers' interest; and
The above test applies in all market sectors, except mass media, where a special law (Law 3592/2007) provides for a dominance test. For the purposes of this Law, 'dominance' is translated into a market share of 25 to 35 per cent, depending on the individual case.ProcedureNotification form
The content of notifications is defined by a decision of the HCC. The HCC has issued a new draft notification form (through Decision No. 558/VII/2013) and a separate form for submitting remedies (through Decision No. 524/VI/2011). The format of these templates generally follows the guidelines of the European Commission, with the purpose of making the minimum information that must be substantiated as part of the notification clear to the notifying parties. The notification form must be submitted in Greek, together with all supporting documents and a filing fee, currently set at €1,100. A summary of the notification must also be published in a daily financial newspaper, as well as on the HCC website, so that any third party (competitor, supplier, customer, customers' association) may know of the transaction and express any comments or concerns to the HCC.
Filling in and submitting the notification form improperly means that the notification is incomplete, the deadline for the submission is not met and the deadline for the HCC to issue its decision will not commence. Depending on the extent of omission, it may even be considered as a failure to notify.Confidential information
In January 2015, the HCC issued a 'Notice on the Characterisation of Confidential Information and the Method for Submitting Non-Confidential Versions of Documents' (Notice). The Notice aims at clarifying the distinction between the information that should be considered confidential and that which need not, and allowing parties to utilise this distinction to characterise their own documents and submit both confidential and non-confidential versions thereof to the HCC. A prime example is merger notifications, which under this system are now submitted in two versions: a confidential version, followed by a duly redacted (per the rules set out in the Notice) non-confidential version. That being said, this Notice applies to all submissions of confidential information, not only those that are concentration-related.
The Notice sets outs indicative examples of confidential information such as professional and business secrets, correspondence between public authorities and preparatory documents, and proceeds to explain the correct method of redacting such information. It also includes a requirement of justification, meaning that each piece of information that a party deems confidential and redacts must be accompanied by a justification for this action. A lack of justification entails a presumption that the parties do not consider the information confidential and thus have no objection to its disclosure.
Given that the redacting exercise was previously carried out by the HCC, this new system purports to increase efficiency by significantly reducing the burden on administrative resources. Although the extent to which this aim will be achieved remains to be seen, this Notice is a further indication of the Commission's readiness to streamline its administrative procedure, something which is undoubtedly also in the best interests of the parties involved.Two-phase examination
Within one month from receipt of proper notification, the President of the HCC must issue an act to certify that the concentration concerned does not fall within the scope of Law 3959/2011.
If the concentration falls within the scope of the Law, the concentration may be examined in one or two phases, in line with the practice defined by EU Regulation No. 139/2004.
Where the HCC finds that the notified concentration does not raise serious doubts as to its compatibility with the competition requirements of the relevant national markets, it issues a decision approving the concentration within a month from the date of notification (i.e., within the same period granted for verifying whether the concentration falls within or outside the scope of the law).
Where the HCC finds that the concentration raises serious doubts, its President issues a decision initiating Phase II proceedings, which decision is notified to the interested parties. This decision must be issued within a month from notification. Following this decision, the rapporteur prepares his or her recommendation within 45 days from the initiation of the Phase II proceedings, and the HCC must decide within 90 days to approve or prohibit the concentration. If the HCC fails to issue a decision within this 90-day period, the concentration is deemed approved. Both the 45 and 90-day deadlines start as of the initiation of the Phase II examination, rather than the notification date.
The first month following the notification is the most critical. Within this period, the following developments will (or may) occur: the concentration will be declared as not falling within the scope of the law; the concentration will be approved if it does not raise serious doubts that it will significantly impede competition; or a Phase II proceeding will be initiated (i.e., it is decided that a full investigation must take place).
The maximum time frame, provided that the notification is complete and no remedies have been submitted (see below), is one month plus 90 days (i.e., 118 to 121 days, depending on the length of the month).Modifications and remedies
Within 20 days of the submission of the recommendation of the rapporteur, the parties have the right to propose remedies to remove serious doubts as to its compatibility with competition in the relevant market. Although the possibility of making modifications was introduced in 1995, the term 'remedies' was added by the new Law. The HCC may, in exceptional cases, accept a proposal of remedies after the expiration of the above deadline. In this case, the 90-day deadline may be extended by 15 days (105 days in total).Conditions
The HCC may approve the notified concentration, attaching to its decision conditions and provisions to ensure the compliance of the participating undertakings with the commitments agreed to by them, with a view to rendering the concentration compatible with the provisions of the law requiring that the concentration must not raise serious doubts about its significant impact on competition in the national market or, in the case of a joint venture, that the joint venture operates as an autonomous unit.
The HCC may threaten the participating undertakings with fines if they fail to comply with the conditions and provisions contained in the framework of the remedies.Derogations
A prohibition of a concentration implementation prior to its clearance does not prevent the concentration in certain cases:
- in the case of an acquisition of control following a public offer or other stock exchange transaction, provided that the relevant actions are notified in time (i.e., within 30 days from the date of such transaction) and the buyer does not exercise its voting rights related to the acquired titles, except (by special permission of the HCC) to maintain the value of its investment; and
- by special permission of the HCC, to avoid serious damage to one or more of the undertakings participating in the concentration or to a third party.
In addition to the general rules of the administrative law regulating the revocation of legal or illegal administrative acts, the new Law contains special rules concerning decisions approving the implementation of a concentration. One provision allows revocation of an HCC decision based on inaccurate or misleading data. Revocation in cases where the participating undertakings in the concentration violate any condition or accepted remedy is specifically regulated, thereby allowing the HCC to take any measures to dissolve the concentration, restore prior conditions, split the merged enterprises, or order the sale of the acquired shares or assets. This arrangement also applies in the case of concentrations implemented without approval.Sanctions
Apart from its authority to revoke any decision approving a concentration and to restore conditions in the relevant national market, the HCC may impose fines, the amount of which depends on the type of violation, as follows:
- at least €30,000 and up to 10 per cent of the aggregate turnover in cases of violation of the obligation of an undertaking to notify a concentration subject to prior notification in a timely manner, regardless of whether such failure was unintentional but rather due to mild negligence;
- at least €30,000 and up to 10 per cent of the aggregate turnover for the implementation of a concentration before approval is granted;
- up to 10 per cent of the aggregate turnover of all participating undertakings that do not comply with the undertaken remedies; or
- up to 10 per cent of the aggregate turnover of all participating undertakings for failure to comply with the conditions of the HCC decision contained within the framework of the approved concentration.
In addition, the new Law provides for criminal sanctions, which are cumulative to the fines imposed by the HCC. Article 44 Section 1 provides for a fine ranging from €15,000 to €150,000 to be imposed by a criminal court on anyone who violates the provisions on merger control or does not comply with the relevant decisions of the HCC. The criminal character of an offence is eliminated for culprits or accomplices who notify the HCC, the Prosecutor or any other competent authority of the violation, and submit any evidence of the offence.Statute of limitations
Article 42 of the new Law provides that any violations of the Law are subject to a five-year statute of limitations, which starts on the date the violation was committed. In the case of a continuous violation or a repeated violation, it starts on the date the offence ceased.
Contrary to EU Regulation No. 1/2003, which only refers clearly to the violation of Articles 101 and 102 TFEU, the above provision, providing for 'any violations of the law', appears to also cover infringements of Greek merger control provisions. Such provision on the limitation period is absent from EU Regulation No.139/2004, but is indirectly found in Regulation No. 2988/74 (Article 1), which remains applicable for any competition infringements other than those falling under Regulation No. 1/2003.
The main question is whether late notification, prior implementation, or both, of a merger would be considered to be a continuous violation. It must be noted that issues regarding a statute of limitations have not been tackled by the HCC in merger cases.
However, the general rule of the administrative law should apply, which does not allow for the revocation of an illegal act after the lapse of a reasonable time; a period of five years is considered to be such.
The statute of limitations is interrupted by any act of the HCC (or the EC) during the investigation of the violation or of the procedures related to the specific violation, including but not limited to written requests of the HCC or another authority to provide information, orders for audits (or dawn raids), assignment of the case to a rapporteur, or servicing of a statement of objections or of a recommendation report. The interruption starts from the date of communication of the relevant act to at least one of the undertakings participating in the violation, and applies to all participants. The deadline for completion of the statute of limitations is suspended during the time that the act or decision of the HCC in relation to the case is pending before the courts. In any case, the statute of limitations is completed upon the lapse of 10 years (i.e., double the basic period of prescription).
Strictly speaking, legally the statute of limitations is an institution of civil law, and refers to claims against a person. The term is not compatible with the public law terminology, where the authorities do not exercise any right but perform their duties in accordance with the law. Therefore, in terms of administrative law, we should rather refer to a peremptory deadline, following the lapse of which the HCC is deprived of its authority to act and enforce the specific provisions of the law.Judicial protection
The enforceable decisions of the HCC are subject to appeal (application for annulment) directly to the Athens Appellate Administrative Court. In merger cases, an appeal would normally challenge a decision of the HCC that either prohibited a merger or fined the undertaking for an alleged violation of merger control provisions (e.g., late notification). However, there has been one case where a third party successfully challenged the approval of a merger in court.
The Court examines both the legality and the substance of a decision, which may be annulled in full or in part. This includes a reduction of fines (if any), which is not uncommon. In contrast, the annulment of decisions is not as common: in many cases, this is due to technicalities, because of the HCC's inability to adhere strictly to the administrative procedural rules.
An appeal does not suspend payment of a fine, or the enforcement of other conditions or remedies imposed by the opposed decision. The Court may, however, suspend enforcement, in full or in part, conditionally or unconditionally, in extreme cases (e.g., in an unfounded decision or due to the inability of the undertakings to pay the fine). Regarding a provision strongly contested as being unconstitutionally limiting, the Court has the authority to reduce the fine by up to 80 per cent.
The decision of the Appellate Court is subject to appeal (cassation) before the Supreme Administrative Court for legal reasons only (i.e., incorrect application of the law, assuming as correct the factual basis accepted or the dictum not being supported by reasoned arguments). Exceptionally, the law also allows the suspension of a contested decision of the Appellate Court by the Supreme Administrative Court.
In the event that a decision of the HCC is totally annulled, a case may be re-examined by the HCC, which will re-judge the case based on the conditions prevailing in the market at the time of such re-examination. A new or supplementary notification will be required if the conditions of the market have changed or the data submitted needs to be updated (Article 8, Section 13). This is a new provision introduced by the current Law that increases the discretionary authority of the HCC, as the decision of the Court is based on different facts from those that will form the basis for the re-examination of the notification for a second time.iii Significant casesRecent HCC decisions on concentrations – overview of mergers and acquisitions(M&A) activity
The past year was characterised by a significant increase of M&A activity across several diverse sectors of the economy, despite the fact that Greece is still affected by the repercussions of the financial crisis and that it has a long way to go until financial recovery.Retail sector
Consolidation through M&A activity in the retail market for food and household products sold through supermarkets, which was quite strong in 2017 due to the deteriorating circumstances of the Greek economy, continued at a slower pace in 2018.
In this respect, on 27 July 2018, the HCC cleared the acquisition of Promitheftiki by Masoutis SA, the latter being a major supermarket chain in Northern Greece. The HCC also imposed remedies (i.e., the divestment of one store of Promitheftiki in the island of Andros) where the HCC identified competition concerns due to the possible creation of a dominant position by Masoutis.
Furthermore, the HCC accepted the modification of remedies previously undertaken by the Sklavenitis supermarket chain in the context of its acquisition of the Marinopoulos Group in 2017. Sklavenitis had committed to divest 22 of its branches to avoiding gaining a dominant position in certain localities. However, the lack of interest by competitors in acquiring all the branches and the changes in the competitive conditions in those localities led the HCC to reduce the number of branches to be divested to 12 and to order the closing of another two branches in areas where doubts still exist about the local competitive conditions.
Given the financial situation, it is likely that this wave of consolidation in the supermarket sector will continue in the future.Healthcare
In January 2018, the HCC unconditionally cleared, without raising any competition concerns, the acquisition of 97.23 per cent of Iaso General, which operates four major health clinics in Greece, by Hellenic Healthcare, an intermediary company controlled by the global investment group CVC Capital Partners.
In the same relevant market, in September 2018 the HCC also approved the acquisition of 70.38 per cent of Ygeia A.E, again by Hellenic Healthcare, and did not identify any competition concerns.Media and telecommunications
On 2 April 2018, the HCC approved the acquisition of commercial trademarks of Pegasus Publishing SA by Dimera Media Investments. The concentration fell under the 35 per cent market share threshold of Law 3592/2007 governing concentrations in the news media sector, and did not raise any anticompetitive concerns. In 2017, the HCC had also approved the acquisition of Radiotileoptiki (operating the channel 'Epsilon') by the same company. However, in a separate decision (655/2018), it fined Dimera Media Investments €60,000 (€30,000 per concentration) for gun-jumping, given that both concentrations were effected before the HCC's approval, and another €50,000 for failing to notify the acquisition of Pegasus Publishing within the prescribed time limits.
On 19 April 2018, the HCC cleared the acquisition of 100 per cent of CYTA Hellas by Vodafone. The HCC's review was restricted to the market for the offering of televised content subscription services (where both companies enjoy very limited market power), given that the telecommunications prong of the concentration falls under the exclusive competency of EETT.
Finally, in June 2018, the HCC approved the acquisition of sole control of assets of the Lambrakis Media Group by Alter Ego Media SA. The concentration, which concerned the television, newspaper and radio relevant markets, also fell well under the 35 per cent market share threshold set by Special Law 3592/2007, and therefore it did not raise anticompetitive concerns.Natural gas and electricity
On 16 July 2018, the HCC cleared the acquisition of sole control of Attiki Gas Supply Co and Attiki Natural Gas Distribution Co by the Public Gas Corporation of Greece SA, without identifying any anticompetitive concerns.
Furthermore, on 18 July 2018, the HCC cleared the acquisition of Thessalia Gas Supply Co by Eni SpA (through its subsidiary, ENI gas e luce SpA), without identifying any anticompetitive concerns in the market for the (retail and wholesale) supply and distribution of natural gas, as well as in the market for the retail supply of electricity.
In the electricity sector, the HCC also approved the acquisition of NRG Trading House Energy SA by Motor Oil Hellas SA. Although both companies are active in the production and wholesale supply of electricity and NRG is also active in the retail supply of electricity, their market shares (individually and combined) in all such markets are below 5 per cent, and therefore no anticompetitive effects were identified.Sea passenger transport
The HCC unanimously approved the acquisition of Hellenic Seaways by Attica Group, both companies having a significant presence in the sea passenger transportation market, but imposed several remedies in order to resolve its doubts on the possible anticompetitive effects created given that post-acquisition Attica Group would acquire a dominant position or monopoly in several itineraries. Attica Group committed to facilitate the entry of competitors in 'port pairs' (which are connected with itineraries) where it is dominant, not to increase fares and to maintain the current frequency of itineraries.Motorways
The HCC approved, without identifying any anticompetitive concerns, the acquisition of sole control of Nea Odos SA and Central Greece Motorway SA by the GEK Terna construction group through the purchase of the shares of Ferrovial SA in these companies.Hotel services
In the hotel services sector, the HCC cleared the acquisition of 70 per cent of the share capital of Golf Residencies by Evergolf, controlled by the Vassilakis Group. The HCC found that there was joint control between the Vassilakis Group and the other three shareholders of Golf Residencies, due to the joint exercise of voting rights by the latter and the minority – veto rights enshrined in the articles of association of Golf Residencies. The concentration was evaluated based on its effects in the Iraklion city (Crete) area, given that it was the only place where both companies owned hotels; still, the HCC did not identify any competition law concerns given that the market share in the most strictly defined market possible (the city of Iraklion) amounted to a maximum 7.38 per cent.Carton production
In June 2018, the HCC approved the 100 per cent acquisition of carton producer Pako SA by Unipak SA. The HCC found that both companies had a market share lower than 15 per cent in the relevant market and failed to identify any competition law concerns, which was not affected by the fact that one person participated in the management of both Pako SA and competitor Boxpack Ltd. This was the case because of the lack of competitive impact of the acquisition whatsoever and the implementation of 'Chinese wall' measures to prevent the dissemination of commercially sensitive information between the two companies.