Initiating an investigation
Who can initiate an investigation of potential cartel conduct?
An investigation can be initiated by the Hellenic Competition Commission (HCC) on its own initiative, following a request by the Ministry of Economy and Development or following a complaint by a third party.
If an investigation is initiated by complainants or third parties, what rights (if any) do they have?
A party that has filed a formal complaint acquires the status of a party to the proceedings and has special procedural rights, including the right to access the file and the right to be heard and file an appeal against the HCC decision.
What obligations does a company have on learning that an investigation has commenced?
Greek competition law contains no specific provisions on this issue.
What obligations does a company have if it believes that an investigation is likely?
Greek competition law contains no specific provisions on this issue.
What are the potential consequences of failing to act or delaying action?
Greek competition law contains no specific provisions on this issue.
Formal stages of investigation
What are the formal stages of and approximate timeframe for investigations?
The HCC investigates the cases brought before it based on certain priority criteria, including:
- the gravity and type of the restrictions;
- the priority being given to cartels;
- the cartel’s geographical scope;
- the impact on consumers of the products or services concerned; and
- the existence of leniency applications.
Cases are referred to the HCC for investigation by the HCC chair following a recommendation by the Competition Directorate. A rapporteur is appointed by lot among the members of the HCC and will be supported by officials of the Competition Directorate. After the investigation is complete, the rapporteur issues a recommendation to the HCC (statement of objections). This recommendation must be issued within 120 days of the appointment of the rapporteur (this deadline can be extended for up to another 60 days) and it is also notified to the parties, together with the invitation to the hearing.
The HCC must issue a decision within 12 months of the appointment of the rapporteur (this deadline can be extended for up to another two months).
The above deadlines are indicative and are not always met.
What investigative powers do the authorities have?
The Competition Directorate can request information from the parties and third parties to be provided within the deadline set in the request.
In addition, officials of the Competition Directorate have the powers of tax inspectors. In order to exercise such powers, they must obtain written authorisation from the HCC chair specifying the subject matter and purpose of the inspection and the penalties for non-compliance.
Once authorised, the officials of the Competition Directorate can, among other things:
- inspect and take copies or extracts of books, records, documents and electronic business correspondence;
- 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 business premises and means of transport;
- 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;
- take sworn or unsworn testimonies; and
- ask for explanations of facts or documents and record the answers.
What is the geographic reach of public enforcement actions?
Public enforcement actions are limited to Greece. Outside Greece, the HCC may request the assistance of other national competition authorities.
When is court approval required to invoke these powers?
Court approval is not required to exercise the above powers of investigation.
Are searches of business and personal premises authorised? If so, which bodies carry out searches and will they wait for legal advisers to arrive?
Searches of business and personal premises are authorised. They are carried out by officials of the Competition Directorate on the basis of a written authorisation from the HCC chair. Home searches must be conducted in the presence of a judge or a public prosecutor. Legal advisers may be present at all stages of the inspection; however, this is not a legal condition for the validity of the inspection. Inspectors are normally willing to accept a reasonable delay for consultation with or arrival of a legal adviser, possibly subject to limitations and conditions (eg, suspension of outside emails and sealing of cabinets).
What level of cooperation with the authorities is required and what are the consequences for failing to cooperate?
The company must fully and actively cooperate with the inspection, as per 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. The addressees of information requests must provide accurate and complete information within the deadline set out in the request.
In case of non-compliance, the HCC can impose on the undertaking concerned and the natural persons involved administrative fines of between €15,000 and 1% of the national turnover of the undertaking.
Hindering investigations, refusing or hindering the provision of the information requested, knowingly providing false information and concealing information are also criminal offences punishable with imprisonment of between six months and five years.
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 may not refuse to answer questions on facts or provide documents which may be used as evidence for the establishment of the infringement.
Is in-house legal advice or attorney work product protected by the law of privilege? Does this extend to the advice of in-house counsel?
Legal privilege covers all communication between the client and external lawyers before, during and after an investigation. Legal privilege does not extend to communication between the client and in-house lawyers.
Are any other limitations imposed on investigatory powers in order to safeguard the rights of those under investigation?
The inspection authorisation must indicate with sufficient clarity the subject matter and purpose of the inspection.
Documents containing personal information should be clearly identified as such. Inspectors can check whether these contain personal data unrelated to the subject matter of the inspection; they are not allowed to take copies or make any other use thereof.
Documents containing trade and industry secrets are protected under the confidentiality rules.
What is the process for objecting to an authority’s exercise of its claimed powers?
Greek law does not contain specific provisions regarding the process for objecting to the HCC’s exercise of its claimed powers. As a rule, the undertaking subject to an investigation has the right to raise objections, which must be recorded in the relevant minutes.
Publicity and confidentiality
What information about investigations will be made publicly available and at which stage(s) of the process?
The Competition Directorate usually contacts third parties (eg, public authorities, customers, suppliers and competitors) during its investigation. The relevant information request contains only a brief description of the subject matter of the investigation, without reference to the identity of the parties involved. After the issuance of the rapporteur's recommendation to the HCC, the names of the parties and a brief description of the alleged infringement are mentioned in the programme of hearings before the HCC, which is posted on its website. The HCC can also post a relevant press release.
HCC decisions are published in the Government Gazette and on its website. In the event of infringements of the Competition Law, the HCC can order publication of its decision in the press.
Is any information automatically confidential and is confidentiality available on request?
HCC officials and officials of the Competition Directorate are under a duty of confidentiality under the Competition Law and the HCC Internal Regulation. 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 recommendations and HCC decisions). Confidential data can be included in the rapporteur's recommendation, after the HCC chair issues a decision, if this is deemed necessary. The parties can access the file's non-confidential data and any confidential data that has been included in the rapporteur's recommendation. 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 by the HCC chair.
The Competition Directorate requires parties to indicate information that they consider confidential, stating the reasons for confidentiality. The parties must also submit the relevant documents in a form that does not include confidential data. If they fail to do so, all documents are considered non-confidential.
Any documents submitted by the parties in the framework of settlement procedures are strictly confidential. They may not be used in any other court or administrative procedure and are inadmissible as evidence in actions for damages. According to Law 4529/2018 implementing EU Antitrust Damages Directive 2014/104, the person who submits such documents as evidence is subject to fines up to €100,000.
Do the authorities in your jurisdiction cooperate with authorities in other jurisdictions?
The HCC is a member of the European Competition Network (ECN) and the International Competition Network and it cooperates with the European Commission, other national competition authorities and international organisations, such as the Organisation for Economic Cooperation and Development.
Do the relevant enforcement authorities request waivers so as to allow for increased cooperation with authorities in other jurisdictions? What are the consequences of declining to grant a waiver?
The HCC cooperates with the competition authorities of EU member states within the framework of applicable EU law (EU Council Regulation 1/2003 and the European Commission's notice on cooperation within the network of competition authorities, OJ 2004 C101/43). To date, there are no known cases of the HCC requesting waivers to allow for increased cooperation with non-EU competition authorities.
How is a cartel investigation resolved? Are settlements, plea bargains or other negotiated resolutions available?
A cartel investigation is resolved either following the ordinary procedure or the settlement procedure. Greek law also provides for a commitment procedure (HCC Decision 588/2014, which is largely inspired by the ECN Recommendation on Commitment Procedures); however, in principle, commitments are not accepted in cartel cases.
What is the process for negotiating a settlement, plea bargain or other negotiated resolution? Do such resolutions require court or other approval?
The settlement procedure is set out in HCC Decision 628/2016, which 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.
The parties may express their interest in engaging in settlement discussions at any stage of the investigation and, if a statement of objections has been issued, no later than 35 days before the hearing of the case. The settlement procedure is initiated by a decision from the HCC, which enjoys full discretion in determining whether a case is suitable for settlement, taking into account various factors, including whether procedural efficiencies and resource savings can be achieved. The HCC may discontinue the settlement procedure at any time.
Following the initiation of the settlement procedure, bilateral discussions will take place between the undertakings that expressed their interest in settling and the HCC rapporteur (or the HCC in plenary session, if a statement of objections has been issued). 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. If the settlement submissions reflect the content of the bilateral discussions, the rapporteur will issue a settlement recommendation. This is served to the parties, which are invited to confirm through a settlement declaration that the settlement recommendation reflects their settlement submission. If a party does not do so, the settlement procedure will be discontinued as regards such party. A party having expressed its interest in exploring settlement may withdraw from the settlement procedure at any time.
The settlement recommendation is not binding on the HCC. If the HCC decides to settle, a settlement decision will be issued, ascertaining the infringement and granting a 15% reduction of the fines that would normally have been imposed. Leniency and settlement are not mutually exclusive. Where applicable, the reduction of fine under the settlement procedure will be cumulative with the reduction of fine under the leniency programme.
According to Greek law, there is no criminal liability for relevant crimes based on the infringement which has been acknowledged by a party in the framework of the settlement procedure, provided that any fines imposed are paid in full. However, the parties may be subject to civil claims for damages.
If a settlement is not reached, what is the procedure for adjudicating a charge of cartel conduct?
If a settlement is not reached for all or part of the undertakings involved, the ordinary procedure for adjudicating a charge of cartel conduct is resumed with respect to those undertakings. In that case, settlement submissions and settlement declarations are deemed to have been automatically revoked, they are not binding on the party that filed them and they cannot be relied on before the HCC or any competent court. A hearing date before the HCC must be set and the parties that participated in the settlement procedure must receive relevant notice at least 45 days in advance. In the event that settlement is reached for some of the parties involved, the HCC will issue two decisions:
- a settlement decision for the parties joining the settlement; and
- an ordinary decision for the other parties.
Which party must prove its case? What is the relevant standard of proof?
As a rule, according to the Competition Law, each party bears the burden of proof of its allegations.
Regarding the standard of proof, as a rule, the HCC must refer to serious, precise and consistent evidence establishing a direct causal link between the facts and the conclusions that are drawn from them, which must be reasonably and objectively free of doubt.
Is there a hearing? If so, what is the process for submitting evidence and testimony?
An oral hearing will take place unless all parties declare in writing that they do not wish for an oral hearing to take place. The HCC may always decide at its discretion that an oral hearing will take place.
The parties (including the complainant) are invited to the hearing at least 45 days in advance. The parties may submit a written memorandum together with any supporting evidence and indicate the number of their witnesses (up to three) at least 20 days before the hearing.
Rebuttals are submitted at least 10 days before the hearing, while closing briefs are submitted following the notification of the minutes of the oral hearing to the parties.
The HCC may request the parties to submit affidavits or additional evidence on specific issues.
What are the accused’s procedural rights?
The accused undertaking has the right:
- to be represented and assisted by a lawyer;
- to submit memoranda, affidavits and evidence;
- to examine and cross-examine witnesses;
- to access the file’s non-confidential data; and
- to access to the file’s confidential data, if this is necessary for the accused undertaking’s defence, following a decision by the HCC chair.
What is the appeal process?
HCC decisions are subject to appeal before the Athens Administrative Appeal Court within 60 days of service of the decision. The appeal does not have suspensory effect, unless the appeal court issues a relevant order.
The Athens Administrative Appeal Court’s decisions are subject to appeal before the Supreme Administrative Court within 60 days of service of the decision (but no later than three years from publication thereof).
Administrative court decisions are posted on the HCC's website.
To what extent can the appeal body review the agency’s findings of fact, legal assessment and penalties?
The appeal court has the power to make a full review of the case, including findings of fact, legal assessment and penalties.
The Supreme Administrative Court has the power to review the appeal court decision only on points of law and procedure.
Click here to view the full article.