GLOBAL COMPETITION REVIEW Cartel Regulation · Global Overview Kirby D Behre, Michael PA Cohen and...

Cartel RegulationThe application of competition regulation in 46 jurisdictions worldwide

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Global Overview Kirby D Behre, Michael PA Cohen and Lauren E Briggerman Paul Hastings LLP 3

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European Union John Boyce and Anna Lyle-Smythe Slaughter and May Hans-Jörg Niemeyer and Hannah Ehlers Hengeler Mueller 73

Finland Christian Wik and Ami Paanajärvi Roschier Attorneys Ltd 84

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Germany Alf-Henrik Bischke and Thorsten Mäger Hengeler Mueller 101

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Hungary Gábor Fejes and Zoltán Marosi Oppenheim 118

India Suchitra Chitale Chitale & Chitale Partners 124

Indonesia HMBC Rikrik Rizkiyana, Albert Boy Situmorang and Edwin Aditya Rachman Rizkiyana & Iswanto Antitrust and Corporate Lawyers 129

Ireland John Kettle, Tony Burke and Niall Collins Mason Hayes & Curran 133

Israel Eytan Epstein, Tamar Dolev-Green and Shiran Shabtai Epstein, Chomsky, Osnat & Co Law Offices 140

Italy Rino Caiazzo Dewey & LeBoeuf 148

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Korea Hoil Yoon Yoon & Yang LLC 163

Latvia Dace Silava-Tomsone and Sandija Novicka Raidla Lejins & Norcous 168

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Ukraine Sergiy Shklyar and Oleksander Dyakulych Arzinger 304

United Kingdom Lisa Wright and Christopher Graf Slaughter and May 311

United States Martin M Toto White & Case LLP 323

Zambia Sydney Chisenga and Sharon Sakuwaha Corpus Legal Practitioners 330

Quick Reference Tables 334

Cartel Regulation 2012

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CONTENTS

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LawBusinessResearch

Greece M & P Bernitsas Law Offices

108 Getting the Deal Through – Cartel Regulation 2012

GreeceAngela Nissyrios

M & P Bernitsas Law Offices

Legislation and jurisdiction

1 Relevant legislationWhat is the relevant legislation and who enforces it?

On 12 April 2011, the Greek parliament repealed the pre-existing Act on competition law (Law 703/1977, as amended) and introduced new provisions that govern this area of law (Law 3959/2011). Law 3959/2011 entered into force upon its publication in the Government Gazette on 20 April 2011.

The Greek Competition Commission (GCC), which was estab-lished in 1995 as an independent administrative authority, is the agency that is competent to enforce competition law in Greece. It enjoys administrative and financial independence and is capable of appearing independently in all types of litigation. Under Law 3959/2011, as recently amended by article 19(2) of Law 4013/2011, the GCC is recognised as having legal personality. Its members enjoy personal and operational autonomy in carrying out their duties, bound only by the law and their conscience. The GCC is supervised by the minister of development, competitiveness and shipping.

The establishment and organisation of the GCC is governed by articles 12 to 29 (second chapter) of Law 3959/2011, while its opera-tion and management are regulated by the GCC’s Operation and Management Regulation, as approved in 2006 by Joint Ministerial Decision 8275/2006. A new Operation and Management Regulation was expected to be adopted by the end of 2009; however, to date this had not yet been issued. In performing its tasks, the GCC is assisted by the Directorate General for Competition (DGC), whose structure is regulated by Presidential Decree 31/2006. Furthermore, the Code of Ethics regulates the manner in which the members of the GCC as well as those of the DGC exercise their duties (Ministerial Decision 1506/2001). It is noted that the DGC is the service within the GCC that receives complaints and conducts preliminary investigations into alleged breaches of competition law.

Following the adoption of Law 3959/2011, the number of GCC members has been reduced to eight (previously nine), from which one is appointed chair, another as vice-chair and four as rapporteurs. In the decision for appointment, it is determined whether the remain-ing two members are to be appointed on a full-time or part-time basis. The GCC’s members must be persons of recognised stand-ing, distinguished for their scientific and professional capabilities in law and economics. Two deputies (as opposed to five, as per Law 703/1977) with qualifications equivalent to those of the GCC’s other members are also selected to substitute any member (other than the chair, vice-chair and the rapporteurs) who is absent or unable to attend the GCC’s meetings or hearings. The chair is substituted by the vice-chair and the vice-chair by the longest-serving rapporteur. If any rapporteur is absent or impeded from attending a hearing he or she is replaced by another rapporteur, who is the longest-serving. The current members of the GCC assumed their duties in September 2009. Following the resignation of one of the initially appointed rap-porteurs, her replacement was approved in November 2010, while

another rapporteur also resigned recently, although at the time of writing his replacement was unknown. The current members of the GCC who have not been appointed on a full-time basis will remain in their position until the vice-chair is appointed as well as the new members, in accordance with the provisions of the new law. The GCC, as currently composed, continues to exercise its duties until such time as the vice-chair and the new members are appointed (article 50).

The GCC’s chair and vice-chair are selected by Parliament and are appointed by the minister of development, competitiveness and shipping within 15 days from receipt of the decision issued by Par-liament’s Meeting of Chairs. Until the amendment of the Parlia-ment’s Regulation, the GCC’s chair and vice-chair are selected by the Cabinet, following the opinion of the Parliamentary Committee for Institutions and Transparency. The remaining members, includ-ing rapporteurs, are appointed directly by the minister of develop-ment, competitiveness and shipping, following the opinion of the Parliamentary Committee for Institutions and Transparency. The GCC’s members are appointed for a term of five years and may be renewed only once. The procedure for the appointment of members is initiated two months prior to the expiry of the previous members’ term of office.

The GCC has wide-ranging powers that include the power to:• determinethataninfringementexists;• imposetheadministrativefinesandsanctionsmentionedinthe

law;• ordertheimpositionofinterimmeasuresfortheavoidanceof

irreparable damage being caused to the public interest;• permit,bydecisionoftheplenarysession,theexemptionofcer-

tain categories of concerted practices; • revoke,bydecisionoftheplenarysession,theapplicationofany

block exemption;• collect,processandevaluate,respectingthedutytoconfidential-

ity, necessary data and information;• issuenoticesandguidelinesontheapplicationofthelaw;• issue,bywayofdecisionoftheplenarysession:(i)thecriteriafor

deciding the priority in which cases should be examined, follow-ing public consultation; (ii) the terms for the application of the GCC’s leniency programme, which applies in the case of cartels; (iii) the manner of calculating fines; and (iv) the procedure for accepting commitments;

• adopt,bydecisionoftheplenarysession,apointssystemforexamining cases on the basis of priority criteria. The GCC may decide not to examine complaints receiving a low score. How-ever, such decisions must be reasoned and notified within 30 days from their adoption by the chair (upon the DGC’s recom-mendation) to the complainants. The order in which cases are prioritised is not publicised and may be amended, if considered justified, by decision of the director general, which must be approved by the plenary session of the GCC. The GCC may reject the decision of the director general;

www.gettingthedealthrough.com 109

M & P Bernitsas Law Offices Greece

• itisexpresslystatedthattheGCChasthepowertodecideontheconduct of ex officio investigations by the DGC.

In addition, the GCC, following a written request, is obliged to provide the minister of development, competitiveness and shipping with any information of a general nature that it holds. However, this obligation is subject to safeguarding the confidentiality of business information and on condition, also, that the data does not concern the investigatory process or any applications for leniency.

2 Proposals for changeHave there been any recent changes or proposals for change to the

regime?

As mentioned above, Parliament has adopted a new Act on compe-tition law (Law 3959/2011), which entered into force on 20 April 2011, amending and codifying the rules applicable to restrictive trade practices, abuses of dominance and merger control. Law 3959/2011 was amended slightly by Law 4013/2011 in September 2011. At present, there are no further proposals for change to the regime under discussion.

3 Substantive lawWhat is the substantive law on cartels in the jurisdiction?

Greek competition law on cartels reiterates the relevant provisions of EU law. In particular, article 1 of Law 3959/2011, by which article 101 of the Treaty on the Functioning of the European Union (TFEU) (ex article 81 of the EC Treaty) has been incorporated into Greek law, prohibits all agreements between undertakings, decisions by associa-tions of undertakings and concerted practices of any kind that have as their object or effect the prevention, restriction or distortion of competition, especially by:• directlyorindirectlyfixingpurchaseorsellingpricesoranyother

trading conditions;• limitingorcontrollingproduction,markets,technologicaldevel-

opment or investment;• sharingmarketsorsourcesofsupply;• applyingdissimilarconditionstoequivalenttransactionswith

other trading parties, thereby impeding competition, in particu-lar by refusing, without valid justification, to sell, purchase or conclude any other transaction; and

• making theconclusionofcontracts subject toacceptancebyother parties of supplementary obligations that, by their nature or according to commercial usage, have no connection with the object of such contracts.

Cartels are prohibited per se and will be automatically considered null and void (article 1(2) of Law 3959/2011). The issuance of any prior decision to this effect is not required (article 3 of Law 3959/2011).

Although the GCC is an administrative authority and, as such, the sanctions imposed by it are administrative in nature, the law provides that the violation of its provisions also entails the imposi-tion of criminal sanctions and that offences will be reported to the competent prosecuting authority.

4 Industry-specific offences and defences or antitrust exemptionsAre there any industry-specific offences and defences or antitrust

exemptions?

Law 3959/2011 specifies that the block exemption regulations of the EU are applicable, by analogy, to agreements, decisions and con-certed practices that are not likely to affect trade between member states, within the meaning of article 101(1) of the TFEU. Further-more, the GCC is empowered to make categories of agreements

exempt from its scope, although no such block exemption has been adopted to date.

At the request of the minister of development, competitiveness and shipping or of its own volition, the GCC is able to examine spe-cific sectors of the Greek economy falling within its jurisdiction. If it determines that the conditions for effective competition are absent and that these cannot be restored by applying the provisions of Law 3959/2011, it can take all measures necessary to create the conditions for effective competition in the sector concerned (article 11). In this respect, where the GCC considers that the absence of effective com-petition is due, among others, to the legislation in force, it may issue a proposal for the abolition or amendment of the relevant law. The proposal is submitted to the competent minister and is also copied to the minister of development, competitiveness and shipping.

In addition, the GCC is able to initiate an investigation into a particular sector or certain types of agreements entered into in vari-ous sectors if, as a result of the way prices are formulated, there is a suspicion of a probable restriction or distortion of competition that is contrary to Law 3959/2011 (article 40). This is on condition that the GCC has jurisdiction to examine the sector concerned. In practice, the telecommunications sector, for example, would fall within the competence of another national regulator, the National Telecommu-nications & Post Commission. As has been the case so far, the GCC will cooperate with other regulatory authorities (eg, the National Telecommunications & Post Commission and Energy Commission) and provide its assistance in finding cartels. In addition, the GCC may request the assistance of those authorities in matters for which it has competence to apply the applicable legal provisions in the sectors concerned (article 24). However, this creates ambiguity as to which authority, ultimately, has competence to apply the relevant antitrust provisions to those sectors.

It is worth noting that, under article 3 of Law 3592/2007 on the licensing of media undertakings, which was published in July 2007, special provisions are set in relation to the application of com-petition law on restrictive trade practices that take place between media undertakings, specifically prohibiting concerted practices in the sector whose object or effect is to restrict competition in any way through indirect advertising or the fixing of advertising rates.

5 Application of the lawDoes the law apply to individuals or corporations or both?

Law 3959/2011 prohibits cartels between undertakings. According to legal theory, the concept of ‘undertaking’ is defined broadly and can extend to any legal or natural person engaged in economic activ-ity. In this respect, the decisions of the GCC and the relevant case law have adopted the definition provided in the decisions of the European Commission and the Court of Justice of the European Union. How-ever, in practice, cartel cases would usually involve anti-competitive conduct by legal entities.

6 ExtraterritorialityDoes the regime extend to conduct that takes place outside the

jurisdiction? If so, on what legal basis does the authority claim

jurisdiction?

Law 3959/2011 is applicable to all restrictions of competition that have or may have an effect in Greece, even if those restrictions result from agreements, decisions or concerted practices between undertak-ings or associations of undertakings concluded, taken or practised outside Greece or by undertakings or associations of undertakings that do not have an establishment in Greece (article 46).



Investigation

7 Steps in an investigationWhat are the typical steps in an investigation?

A cartel case may come to the attention of the GCC either following a complaint lodged by a third party or an ex officio investigation car-ried out by the DGC or upon the request of the minister of develop-ment, competitiveness and shipping. Upon introduction of the points system, which at the time of writing had not yet been adopted, the DGC examines cases based on their ranking (ie, cases receiving a higher score are investigated first). The ranking that cases receive is not published and the points system is used for the internal manage-ment of cases by the GCC. The DGC collects the necessary informa-tion, using the broad investigatory powers granted to it under Law 3959/2011 and the chair introduces before the GCC, on the basis of the DGC’s recommendation, those cases that satisfy the criteria for priority examination.

The GCC, by unanimous decision taken on 7 July 2011 follow-ing public consultation, established the relevant criteria for determin-ing the priority in which cases should be examined. The GCC’s basic aim is to ensure the public interest is served, taking into account the impact that specific conduct is likely to have upon consumers and, in this respect, priority is given to ex officio investigations and com-plaints concerning the following:• severerestrictionstocompetitioncoveringtheentireGreekter-

ritory (such as price fixing, market sharing and the limitation of production or supply), in particular, cartels, also, considering the market power of the undertakings concerned and the structure of the relevant market;

• productandservicemarketscoveringbasicneedsorthatareof primary importance to Greek consumers, where the anti- competitive practice is likely to have a significant impact on the increase of prices or the quality of services (as compared to those of other countries in the EU); and

• anti-competitivepracticeshavingacumulativeeffect(ie,prac-tices that are followed by many undertakings that could result in higher prices being passed on to intermediaries or consumers).

The GCC will also consider, as a matter of priority, applications for leniency while also taking any regulatory measures necessary in specific sectors of the economy and exercising its competence to issue opinions, pursuant to Law 3959/2011 (articles 11 and 23, respec-tively). By necessity, in determining priority, the GCC will also take into account the need to ensure legal certainty by clarifying current legal issues, the expected outcome of the intervention (especially if it will result in the functioning of competition being immediately improved), the level of information provided in the case of com-plaints and the available resources of the GCC (human and finan-cial), taking into account the likelihood of a breach being proven.

Immediately after the GCC’s decision as to the priority examina-tion of a case, the case is assigned by lot to one of the rapporteurs who, assisted by the DGC, issues their statement of objections as to whether competition law has been breached. The rapporteur has a maximum of six months (as opposed to four, under Law 703/1977) from being assigned to a case for his or her statement of objections to be issued. In the past, the statement of objections, which was prepared by the DGC on its own, included a proposal on the level of fines that should be imposed on each of the parties taking part in the cartel. However, in its meeting on 18 September 2006, the GCC decided that these statements of objection should not include such a proposal (Decision No. 984/18.09.2006) and this is the current approach being followed by the rapporteurs. Following the issuance of the rapporteur’s statement of objections, the case is adjudicated by the GCC, the body ultimately competent to decide on whether or not there has been a breach of Law 3959/2011.

Only cases of great importance are brought before the GCC’s plenary session, while all other cases may be heard by a single cham-ber of the GCC, comprising only four GCC members (including the rapporteur). The GCC’s plenary session is validly constituted if the chair, the vice chair, the rapporteur involved in the case and at least two other members (ordinary or deputies) participate, with decisions taken by majority of those present. For the chamber to be validly constituted, the chair (or vice-chair or other chairing ordinary mem-ber), the rapporteur assigned to the case and two other ordinary members are required to participate in the hearing. Law 3959/2011 states that the GCC has at least 12 months (subject to a further exten-sion of two months) from the date of the case’s assignment to the rap-porteur within which to issue its decision. A welcome development in the new law, which strengthens the objectivity of the GCC’s work, is that the rapporteur, upon whose statement of objections the hearing is conducted, no longer has the power to vote on a case, with deci-sions taken by majority of the other GCC members present. How-ever, for a transitional period, until the new members of the GCC are appointed, the rapporteurs retain their right to vote (article 50).

8 Investigative powers of the authoritiesWhat investigative powers do the authorities have?

The GCC enjoys wide investigatory powers when examining poten-tial infringements of competition law. Specifically, on the basis of a written mandate issued by the chair (or the persons empowered by the chair), which specifies the object of the investigation and the consequences of failing to cooperate, the authorised personnel of the DGC, exercising powers equivalent to those of a tax inspector, have competence, under article 39 of Law 3959/2011, in particular, to:• examineallbooks,recordsandanyotherdocumentsheldby

undertakings or associations of undertakings, including com-mercial e-mails of entrepreneurs, managers, managing directors, administrators and generally authorised managers or administra-tors as well as those of personnel of undertakings or associations of undertakings, irrespective of the medium in which these are stored and wherever stored, and take copies or extracts;

• confiscatebooks,documentsandotherinformation,includingelectronic means of storing and transferring data, which consti-tute business information;

• checkandcollectinformationanddatafrommobiledevicesandtheir accessories, in cooperation with the competent authorities, whether or not these are located inside or outside the building premises of the undertakings or associations of undertakings being investigated;

• carryouton-site investigationsof thebusinesspremisesandother areas as well as the means of transport of the undertakings or associations of undertakings;

• seal any business premises, books or documents during theperiod that the investigation is conducted and as required;

• conducthomesearches,wherereasonablysuspectedthatcom-pany books and records are held there; and

• takeswornorunswornevidence,whereappropriate.

It is common for the DGC’s personnel to conduct the above searches and on-site investigations without giving the parties concerned prior notice and, in this regard, they may enter, for example, the business premises of a company unannounced (‘dawn raid’).

The chair (or those empowered by the chair) may request, in writing, the assistance of public authorities and services, local coun-cils and public law entities, in the conduct of the investigations men-tioned above. Moreover, if the authorised personnel of the DGC or the European Commission are in any way obstructed in exercis-ing their duties, they may request the assistance of the prosecuting authorities and other competent authorities, even if only as a pre-cautionary measure.



Other than the above discretionary powers, the GCC is enti-tled to obtain, under article 38 of Law 3959/2011, all information required for the performance of its duties by a written request in which it sets the deadline for providing the information. In the case of cartels, this deadline may not be less than 10 days. The persons or undertakings to which the request is addressed are obliged to supply the information immediately, accurately and completely.

The GCC may impose a fine ranging from e15,000 to e100,000 on those who in any way obstruct its on-site investigations and a fine of e15,000 (but not exceeding 1 per cent of turnover) on those who refuse to supply the information requested, obstruct or delay the sup-ply of information or provide inaccurate or incomplete information. It should also be noted that disciplinary proceedings are initiated by the GCC where the person liable is a civil servant or an official of a public law entity.

International cooperation

9 Inter-agency cooperationIs there inter-agency cooperation? If so, what is the legal basis for, and

extent of, cooperation?

In March 2006 the GCC entered into a cooperation agreement with its Cypriot counterpart for the exchange of information and know-how between the two authorities and the promotion of joint edu-cational and other schemes. A similar agreement was signed with the Albanian competition authority in December 2006. Although no other formal inter-agency cooperation agreements appear to be in place, in line with EU Regulation No. 1/2003, provision is made in article 28 of Law 3959/2011 for the GCC to work closely with the European Commission and the national competition authorities of other countries.

10 Interplay between jurisdictionsHow does the interplay between jurisdictions affect the investigation,

prosecution and punishment of cartel activity in the jurisdiction?

Under article 26 of Law 3959/2011, if the European Commission initiates an investigation into a potential infringement of article 101 TFEU or 102 TFEU (ex article 82 EC Treaty) (chapter III of EU Regulation No. 1/2003), the GCC does not have jurisdiction to enforce these provisions. Furthermore, if the GCC and the competi-tion authority of another EU member state are investigating possible breaches of articles 101 and 102, either ex officio or following an official complaint, the GCC may either reject the complaint or ter-minate, for this reason, its ex officio investigation or suspend the investigation or, otherwise, proceed with hearing the case.

11 AdjudicationHow is a cartel matter adjudicated?

Following the rapporteur’s statement of objections, cartel cases are decided by the GCC, which acts as a first-instance adjudicative body. In general, the procedure for the adjudication of a case is set out in the GCC’s Operation and Management Regulation, issued in 2006, which, to date, has not been revised to conform to the provisions of the new law.

On the basis of current practice, complainants and the parties suspected of taking part in a cartel, after being served with a copy of the statement of objections and receiving a summons at least 45 days before the hearing (article 15(9) of Law 3959/2011), are invited to file submissions with their views on this statement of objections. In their submissions, the parties also indicate whether or not they wish to exercise their right to participate in an oral hearing, and they provide the names of their legal representatives as well as the number of witnesses that they propose to examine together with a description of their field of activity. The number of witnesses that each party may

call is limited to three, unless the GCC decides, during the hearing, to limit their number further. Each party is entitled to receive a copy of the submissions filed by the other parties, which they can rebut or supplement at least 15 days before the hearing. The parties may be represented by counsel and, during the hearing, the rapporteur reads aloud key sections of the statement of objections before each party is given the opportunity to present its case. The chair and the other members of the GCC are entitled to question the parties or their legal representatives and witnesses. Each party, on obtaining authorisation from the chair, may question the legal representatives and witnesses of the other parties. Minutes are kept throughout the procedure, especially during the examination of witnesses. Following the conclusion of the hearing, the chair, upon request by the parties, sets a date by which the parties are required to file supplementary submissions. This deadline commences on the date following service of the minutes upon the parties and, in any event, these must be served on those concerned within one month from the procedure’s conclusion (article 15(10) of Law 3959/2011). The members of the GCC meet to discuss the case no later than 30 days after the conclu-sion of the hearing and they are obliged to issue their decision within 30 days from their last meeting.

Under Law 3959/2011, the GCC’s decisions must be published in the Government Gazette and the GCC’s website (article 27). Also, a copy of the GCC’s decision is forwarded to the parties concerned (articles 15(11) and 16(3)) and to the competent prosecuting author-ity, at the latest within 10 days from its issuance (article 43).

12 Appeal processWhat is the appeal process?

Article 30 of Law 3959/2011 specifies that the decisions of the GCC may be appealed before the Athens Administrative Court of Appeal within 60 days from their date of service. The filing of the appeal does not suspend the enforceability of the GCC’s decision, yet such enforcement may be suspended, in whole or in part, for serious rea-son, following application of the interested party, by the court, acting in council. In particular, as regards appeals against a GCC decision on the imposition of a fine, the court, acting in council, may order the suspension of up to 80 per cent of the fine by reasoned decision, subject to the principle of proportionality applicable to the case, if it is considered that the immediate execution of the GCC’s decision would create for the appellant irreversible damage or damage that could not easily be restored, in the event of a successful appeal. If the court considers that the appeal is well-founded, it may accept, by special reasoned decision, the application for suspension, even of the entire fine and although the immediate enforcement of the GCC’s decision is adjudged not to result in irreversible damage or it is viewed that any damage caused could easily be restored. The court, in ordering suspension of execution or any other appropriate measure, may also take any action required to safeguard the public interest, even without a specific request filed to this effect, such as: (i) the provision of a bank guarantee to the GCC, for an amount set by the court; (ii) the registration of a mortgage in favour of the GCC, on property owned by the applicant; and (iii) the deposit of a specific amount in the GCC’s name with the Deposit and Loan Fund. Sus-pension of payment cannot be granted to the extent that the GCC’s decision has already been executed. The application for suspension may be rejected, even in the case of irreversible damage or damage that could not easily be restored, if the court considers that the appeal is not well-founded or is clearly inadmissible. Moreover, the applica-tion may be rejected if, in weighing up the damage to the applicant against the interests of third parties as well as the public interest, it is determined that the consequences of its acceptance would be more serious than the benefit to the applicant.

According to the new law, within the Athens Administrative Court of Appeal, special chambers dealing with competition law matters are to be established, on the basis of a presidential decree,



which, however, has not been issued to date. Once adopted, this is likely to ensure the consistency of the decision-making process and assist judges in developing expertise in competition law matters.

The decisions of the Athens Administrative Court of Appeal may be challenged before the Council of State, the supreme administrative court of Greece, which is competent to review their legitimacy and, in particular, on grounds of errors of law, procedure or jurisdiction (article 32 of Law 3959/2011). Therefore, the Council of State may not deal with errors of fact or proceed to examine the case anew.

Under Law 3959/2011, both appeals lodged before the Athens Administrative Court of Appeal and the Council of State are to be heard as a matter of priority (articles 30(4) and 32(3)). Adjournment is possible once only for sufficient reason to a hearing date which is nearest to the one initially scheduled.

The GCC is obliged to publish the decisions of the Athens Admin-istrative Court of Appeal and the Council of State on its website, tak-ing care to protect personal data and business information (articles 30(7) and 32(7)). Up until now, only the GCC’s decisions, and not those of the courts, were published on the authority’s website.

13 Burden of proofWith which party is the burden of proof?

According to article 4 of Law 3959/2011, during the procedure before the GCC for the implementation of articles 1 and 2 (equiva-lent to articles 101 and 102 TFEU, respectively), each party bears the burden of proving its claims. This seems contrary to the previous case law of the GCC and the current practice under EU law, where the burden of proof lies with the GCC or the European Commission, as the case may be, to prove their case.

Sanctions

14 Criminal sanctionsWhat criminal sanctions are there for cartel activity? Are there

maximum and minimum sanctions? Do individuals face imprisonment

for cartel conduct?

Fines between e15,000 and e150,000 are imposed on anyone who enters into an agreement, takes a decision or implements a concerted practice, in contravention of article 1 of Law 3959/2011 or article 101 TFEU (article 44). Moreover, in the case of cartels between actual or potential competitors, those involved may be imprisoned for at least two years while, also, facing a fine of between e100,000 and e1 million. The criminal sanctions established by Law 3959/2011 for those participating in horizontal cartels are more severe than the pen-alties provided for under the pre-existing law, where imprisonment of at least six months was envisaged and the fine imposed ranged between e15,000 and e150,000.

The applicable criminal sanctions are not imposed in the event that, where cartels are concerned, as a result of a company benefit-ing from the leniency programme, immunity from fines is granted. In the case where, under the leniency programme, a reduced fine is imposed, this will be considered as a mitigating factor, for the purposes of Greek criminal law (article 44(3) of Law 3959/2011).

In addition, pursuant to Law 3959/2011, those liable may not be punished under criminal law if, of their own volition, they confess to the crown court prosecutor, the GCC or any other competent author-ity their actions, providing evidence to this effect. If they contribute substantially in implicating another business in these offences, they will receive a reduced criminal penalty (article 44(4)).

According to Law 3959/2011, if the GCC or other regulatory authority is investigating allegations of a cartel, the crown court pros-ecutor, after his or her preliminary examination, will postpone taking any further action until a decision is issued by the GCC, following the agreement of the prosecutor of the appeal court (article 44(5)).

15 Civil and administrative sanctionsWhat civil or administrative sanctions are there for cartel activity?

Apart from ordering the undertakings concerned to cease the offence, under article 25 of Law 3959/2011 the GCC may impose a fine that, depending on the duration and gravity of the offence, may be up to 10 per cent of the undertaking’s turnover during the financial year the offence ceased or, if continuing until the GCC’s decision is issued, the financial year prior to its issuance. In the case of associations of undertakings, the fine applicable may reach 10 per cent, calculated on the aggregate turnover of its members if the breach is related to their activities. Under the pre-existing law, in both instances, the fine imposed amounted to 15 per cent. A fine of e10,000 is imposed for each day of delay in complying with the GCC’s decision.

In determining the amount of the fine that may be imposed by the GCC in the case of cartel activity, the GCC can take into account the extent of the economic benefit received from the breach by the undertaking concerned, specifying that the fine cannot be less than this amount. This was not previously the case. Also, pursuant to Law 3959/2011, it is expressly stated that, in the case of groups of com-panies, the fine will be calculated on the basis of the gross proceeds of the entire group.

The individuals responsible for complying with the provisions of competition law are, in the case of private enterprises, the owners, for civil and commercial companies and joint ventures, their administra-tors and partners and for companies limited by shares, the members of the board of directors (and for decisions taken by majority, those who voted with the majority). These individuals are jointly liable, by their personal property, with the legal entity for payment of the fine imposed upon the undertaking. The assignment of liability for breaches of competition rules is prohibited and is invalid. In addi-tion, the GCC may impose on the above individuals (which, in the case of companies limited by shares, include the persons competent to implement board of directors’ decisions), following their prior hearing, fines of between e200,000 and e2,000,000 if it is proven that they took part in the preparatory acts leading to the organisa-tion or execution of the contravening conduct. Their position in the business and the extent of their participation is taken into account in calculating the level of the fine due.

16 Civil and administrative sanctions Where possible sanctions for cartel activity include criminal and civil or

administrative sanctions, can they be pursued in respect of the same

conduct? If not, how is the choice of which sanction to pursue made?

Criminal, civil or administrative sanctions may be pursued with respect to the same conduct.

17 Private damage claims and class actionsAre private damage claims or class actions possible?

The GCC is not empowered by law to award damages. Therefore, any private action for damages would have to be filed before the civil courts.

Class actions are not, as a general rule, prohibited under Greek law, if legal interest can be established; however, their commence-ment is not that common to date, at least as far as the adjudication of antitrust matters is concerned.

18 Recent fines and penaltiesWhat recent fines or other penalties are noteworthy? What is the

history of fines? How many times have fines been levied? What is the

maximum fine possible and how are fines calculated? What is the

history of criminal sanctions against individuals?

Up until 2009, there was a tendency for the GCC to impose higher fines than in the past on undertakings participating in cartels. Indica-



tively, we mention the fines totalling approximately e32.5 million imposed by the GCC, on 9 August 2009, on four major insurance companies for coordinating their conduct through a company that they jointly established, and setting prices that should be charged per hour by vehicle accident-repair workshops (Decision No. 460/V/2009). Also, the famous BP/Shell case of 2008, where the GCC imposed fines totalling nearly e50 million on BP and Shell, find-ing that, in 2003, the companies had colluded to fix ratios of aver-age discounts offered to petrol station owners on average wholesale prices of unleaded petrol (Decision No. 421/V/2008). It is interesting to note that Athens Administrative Court of Appeal has only recently ordered the reversal of the GCC’s decision in this case on procedural grounds, given that, in the opinion of the majority, on two occasions during the hearing of the case, the GCC was not properly constituted as a deputy GCC member participated when the ordinary member she replaced had already resigned while, a third time, following the resignation of another GCC member, its operation was illegal, given that the hearing took place without his replacement (Decision No. 1444/2011). The GCC has lodged an appeal before the Council of State and the hearing of this case is now pending.

However, more recently, the level of fines imposed appears to have fallen in response to the current economic situation facing Greece.

On 23 March 2011, in a case concerning the direct or indirect fixing of minimum commission levels by certain real estate agents’ associations in Greece, given that the GCC was unable to determine the turnover achieved by their members, which were numerous, it imposed relatively minor fines on the associations concerned, tak-ing into account the aggregate income achieved by each (Decision No. 518/VI/2011). As mentioned above, normally, for breaches committed by associations of undertakings, the fine is calculated on the turnover of their members, as opposed to the income gener-ated by the associations themselves. On this basis, the highest fine was imposed on the real estate agents’ association of Athens-Attica, which amounted to just over e15,500. However, in view of the seri-ousness of the matter, the GCC threatened to impose higher fines in the event of continuous or repeat offences. In addition, certain behav-ioural measures had to be taken by the associations concerned within five months from service of the GCC’s decision, such as notifying their members by letter that they are free to claim commission of less than 2 per cent on the actual price of any property sold. Appeals were filed against this decision before the Athens Administrative Court of Appeal by the real estate agents’ associations of Athens-Attica and Thessalonika and these are to be heard jointly in mid-January 2012. An application for suspension has also been submitted, although at the time of writing the decision issued has not been published and it is not clear, from the information available, whether the court agreed to the suspension (Decision No. 207/2011).

Similarly, in its decision of 22 December 2010, the GCC imposed a reduced fine of e60,000 on the technical chamber of Greece (TCG) for determining the minimum cost of construction projects, on the basis of which the fees of architects and engineers were calculated, as this, in effect, led to their fees being overinflated (Decision No. 512/VI/2010). The TCG, which is involved in organising the profession of architects and engineers in Greece and, also, acts as a technical adviser to the state, was considered to constitute an association by the GCC. In addition to paying the above fine, the TCG was required to take certain measures, such as modifying its electronic system so that the fees of architects and engineers can be calculated indepen-dently of the construction cost and notifying its members, as well as the general public, of the GCC’s decision. These remedies had to be put into effect within 60 days from service of the decision. Also, in the event of delayed compliance or non-compliance, the TGC was threatened with a daily penalty payment of e10,000. The TCG has appealed against this decision before the Athens Administrative Court of Appeal and the case is due to be heard in January 2012.

On 23 June 2010, the GCC held that the memorandum of coop-eration notified to it, under the pre-existing regime, by companies active in the fish farming sector contained hard-core restrictions of competition, whose object was the limitation and control of the pro-duction and supply of fresh fish and fry of Mediterranean aquacul-ture (Decision No. 492/VI/2010). By entering into this cooperation agreement in November 2008, these companies, in essence, sought to counter the effects of the intervening global financial crisis, which they had not planned for when they had adopted their initial (highly) optimistic programming that had led to an overproduction of fish. The GCC expressly stated that, in accordance with the approach fol-lowed at EU level, the existence of an economic crisis cannot justify collusive behaviour that restricts competition. However, taking into account the financial difficulties faced by all the parties and the fact that the duration of the violation did not exceed six months, the GCC imposed a reduced fine on each company and in recognition, as a mitigating factor, of their cooperation during the conduct of the investigation, proceeded to lower this by a further 10 per cent. The highest fine set was for e273,582 (Nireus Aquaculture SA) (Nireus) and the lowest e96,044 (Hellenic Fishfarming SA) (Hellenic Fishfarm-ing). The GCC considered that the reduced fine would not threaten, irreversibly, the economic viability of these companies; nonetheless, it clarified that it does not have the obligation, pursuant to current case law and practice, to evaluate this threat when setting the level of fines. In any event, the GCC threatened the companies involved in the breach with a fine of 10 per cent of the value of their aggregate sales, in the case of a continuous or repeat offence (see GCC Press Release, 24 February 2011). If this were to occur, the GCC could impose upon Nireus a fine of e6,079,700 and e2,134,327 on Hel-lenic Fishfarming. The Athens Administrative Court of Appeal heard on 12 October 2011 the appeal lodged in this case and its decision is currently pending. An application for suspension was also submitted, which the court accepted; however, to date, this decision has not been published (Decision No. 189/2011).

Based on a statement of objections issued, the GCC is currently examining complaints that the owners of a transport company active in the market for sewage and wastewater transportation ser-vices have been involved in anti-competitive practices, agreeing to set prices and to limit competition for their services in the relevant geographic market, in which they have the monopoly (see GCC Press Release, 3 October 2011). Similarly, the GCC has proceeded to hear a complaint that, in Thessalonika, the association of booksellers and stationers together with certain of its members have been involved in price fixing, through a decision not to grant discounts on uniform books prices, and concerted practices to this effect with some of the largest book stores in the city (see GCC Press Release, 4 May 2011).

The GCC is also examining, following the rapporteur’s state-ment of objections, whether the Greek flour industry association, a flour mill company and certain natural persons should be fined for obstructing the DGC’s on-site investigation, which was conducted in the context of a dawn raid (see GCC Press Release, 22 July 2011).

As far as criminal sanctions are concerned, to the best of our knowledge, no such sanctions have been imposed to date. However, as evidenced by the stricter criminal penalties introduced by Law 3959/2011, there appears to be a move towards enforcing the provi-sions criminalising breaches of competition law.

Sentencing

19 Sentencing guidelinesDo sentencing guidelines exist?

On 12 May 2006, the GCC issued guidelines on the calculation of fines, including the fines imposed in cartel cases, pursuant to which the GCC follows a two-step process: it first determines a basic amount on the basis of the gravity and duration of the breach and then adjusts this amount upwards or downwards taking into account



any aggravating or mitigating factors. In any event, the total amount of the fine may not exceed the 10 per cent limit set by the law. In its communication dated 17 July 2009, the GCC clarified that fines are calculated not on the profit derived from the illegal conduct but as a percentage of aggregate gross income achieved by an undertaking in the relevant product market.

20 Sentencing guidelines and the adjudicatorAre sentencing guidelines binding on the adjudicator?

The GCC normally follows these guidelines, although due to the special circumstances of the recent cases mentioned above, it has diverged from their application.

21 Leniency and immunity programmesIs there a leniency or immunity programme?

The GCC adopted a new leniency programme in August 2011 (Deci-sion No. 526/VI/2011). This entered into force upon its publica-tion in the Government Gazette on 4 November 2011 and replaces the pre-existing leniency programme (Decision No. 299/V/2006). It applies specifically to collusive behaviour between competitors (ie, horizontal cartels). Both undertakings and natural persons partici-pating in a cartel may apply for immunity or a reduction in fines under the new leniency programme. Previously, it was not possible for the individuals involved in cartel activity to benefit from the pro-visions of the leniency programme; this possibility existed only for companies. As mentioned above, the persons responsible for comply-ing with the provisions of competition law are in the case of private enterprises, the owners, for civil and commercial companies and joint ventures, their administrators and partners and for companies lim-ited by shares, the members of the board of directors and, in this case, for decisions taken by majority, those who voted with the majority. According to Law 3959/2011, those potentially liable in the case of companies limited by shares are also the persons responsible for implementing the board of directors’ illegal decisions. If an under-taking is granted immunity or a reduction in fines, these individuals will automatically also receive such immunity or reduced fine. On the other hand, if the leniency programme is applied to an individual, this does not mean that its application will automatically extend to the company involved in the contravening conduct.

It is noted that the application of the leniency programme does not protect the undertaking from civil liabilities that may result from its alleged participation in the cartel.

22 Elements of a leniency or immunity programmeWhat are the basic elements of a leniency or immunity programme?

The GCC may grant immunity from fines that would otherwise be imposed if: • theundertakingornaturalpersonisthefirsttosubmitevidence

which enables the GCC to conduct a targeted investigation into the alleged cartel and the GCC did not already have, at the time the application for leniency was submitted, sufficient evidence in order to proceed with such investigation and, for this reason, it had not previously taken steps to investigate the matter (eg, by conducting a dawn raid); or

• theundertakingornaturalperson is the first to submit evi-dence enabling the GCC to find a violation of article 1 of Law 3959/2011 or article 101 TFEU and the GCC did not already have, at the time the leniency application was filed, sufficient evidence to prove such breach, as regards the alleged cartel.

An undertaking that has coerced others through its conduct to take part in a cartel cannot claim immunity from fines under the current leniency programme. This exception does not apply to those natural persons who acted on behalf of the undertaking concerned.

If the conditions for immunity are not met, undertakings or natu-ral persons may request a reduction in the fines that would otherwise be imposed on them if they provide the GCC with evidence of the suspected infringement that represents significant added value with respect to evidence already in the GCC’s possession. In such cases, the amount of the reduction is determined on the basis of the amount of the fine that would otherwise have been imposed and, in the case of companies, may not exceed 50 per cent while, for natural per-sons, it may reach up to 70 per cent. In determining the level of the reduction, the GCC will take into account the point in time when the evidence was submitted (including if the undertaking or natural person was first, second or third in line, etc) and the extent of value added by this evidence. Furthermore, the GCC can consider the level and consistency of cooperation of the undertaking or natural person after the date upon which the evidence was filed. In addition, in cal-culating the fine, the GCC will not take into consideration evidence submitted that relates to facts not previously known to it and that are directly related to the gravity or duration of the alleged offence.

In order for the GCC to conduct a targeted on-site investigation, an application for leniency must contain a detailed description of the alleged cartel, with the following information:• adeclarationoftheundertakingornaturalpersonsubmittingthe

application, which contains their contact details and identifies the other members of the alleged cartel, describes the relevant markets in which it is active, its duration as well as specific infor-mation on contacts relating to the alleged cartel (dates, location, content and participants);

• evidencewhichitholdsasregardstheallegedcartel,especiallyrecent evidence; and

• informationconcerningapplicationsforleniencyalreadysubmit-ted or likely to be submitted in the future to other competition authorities based either in or outside the EU.

The GCC may permit the oral submission of the above information, upon the request of the undertaking or natural person. However, even in this case, there is still an obligation to supply copies of evi-dence relating to the alleged cartel. Records kept of oral statements made by the applicants will not be provided to the parties of the case prior to the issuance of the statement of objections. According to EU Regulation No. 1/2003 (article 12) and the European Com-mission’s Notice on cooperation within the Network of Competi-tion Authorities (paragraphs 40 and 41), such oral submissions may be exchanged between the competent competition authorities of the European Commission and the member states of the EU.

To benefit from leniency, the undertaking or natural person must also fully cooperate with the GCC until conclusion of the proce-dure by promptly providing all information required, not destroying or hiding evidence, not disclosing to any party that it has applied for immunity (unless otherwise agreed with the GCC) and having available to provide statements its current or former employees or managers. In addition, if the applicant is a company, it must end its involvement in the alleged cartel, at the latest by the time its official application for leniency is made (unless the GCC considers that its continued participation is necessary for the purposes of assisting in the investigation of the alleged breach). Moreover, prior to submis-sion of the application for leniency, the undertaking or natural person must not have destroyed any relevant evidence and it must not dis-close to any party, either directly or indirectly, its intention to make any such application and its contents. The obligation to confidential-ity does not apply in the case of other competition authorities based either in or outside the EU.

Joint applications for immunity by one or more undertakings or associations of undertakings are not accepted, except in the case of succession or connected undertakings, if this is considered appro-priate. It is possible for natural persons to submit an application for immunity jointly, provided that they participated in the alleged breach of the same company. In the event that an undertaking has



submitted or is intending to file an application for immunity from fines before the European Commission, it may submit to the GCC a short form application for leniency, if it considers that the GCC is competent to act on the basis of the European Commission’s Notice on cooperation within the Network of Competition Authorities (paragraph 8). The short form application is not available where a reduction in fines is requested.

The submission of an application for leniency or the issuance of any intervening act or certificate do not create an obligation on the GCC to consider the case of an alleged offence. Immunity or reduc-tion of fines is ultimately granted with the final decision of the GCC on the case.

23 First inWhat is the importance of being ‘first in’ to cooperate?

The undertakings or natural persons that are the first to cooperate may obtain immunity from the fines that they would otherwise face. Also, if not eligible for immunity, they could benefit from a higher reduction in the fines imposed as compared to those that are second in line.

24 Going in secondWhat is the importance of going in second? Is there an ‘immunity

plus’ or ‘amnesty plus’ option?

The importance of going in second concerns those undertakings or natural persons that, although not eligible for immunity, may ben-efit from a reduction in the fine. The second undertaking or natural person to provide evidence to the GCC would benefit from a lower reduction in fines than those that are first in to cooperate.

25 Approaching the authoritiesWhat is the best time to approach the authorities when seeking

leniency or immunity?

In order to optimise their chances of benefiting from immunity or obtaining the maximum possible reduction of a fine, undertakings or natural persons should approach the GCC as early as possible and, in any event, as soon as they are able to file a complete application for leniency. Prior to submitting the formal application, it is possible for the undertaking or natural person to approach the GCC, on a no-names basis, in order to obtain clarifications and to present the required information and evidence on a hypothetical basis.

For undertakings or natural persons wishing to file an applica-tion for immunity, under the new leniency programme it is possible, at first instance, to request the issuance of a marker (ie, a number indicating their position in the line). This protects their position of priority and allows the applicants to collect the necessary informa-tion and evidence which has to be submitted within the deadline set by the GCC’s chair. It is at the GCC’s discretion whether or not to issue the marker. The application for a marker must be justified and, in addition to providing the applicant’s contact details, should include information on the alleged cartel, the affected products and territories, its duration, its nature and operation as well as informa-tion on applications for leniency already submitted or likely to be filed in the future to other competition authorities, based either in or outside the EU, regarding the alleged cartel.

26 ConfidentialityWhat confidentiality is afforded to the leniency or immunity applicant

and any other cooperating party?

The GCC has a general obligation, subject to the provisions of article 41 of Law 3959/2011, to keep information confidential and to use it only for the purpose for which it was collected. Statements made by

undertakings or natural persons within the context of the leniency programme may be exchanged between the competition authori-ties of the European Commission and the member states of the EU, according to article 12 of EU Regulation No. 1/2003 and paragraphs 40 and 41 of the European Commission’s Notice on cooperation within the Network of Competition Authorities.

27 Successful leniency or immunity applicantWhat is needed to be a successful leniency or immunity applicant?

The submission of evidence which enables the GCC to initiate an investigation or find an infringement may justify the granting of immunity. On the other hand, a reduction in fines is granted to undertakings that provide the GCC with evidence adding significant value to the information that the GCC already possesses.

28 Plea bargainsDoes the enforcement agency have the authority to enter into a ‘plea

bargain’ or a binding resolution to resolve liability and penalty for

alleged cartel activity?

The possibility to enter into a ‘plea bargain’ is not provided for under Greek law. However, under article 25(6) of Law 3959/2011, the GCC may decide to accept commitments proposed by undertak-ings or associations of undertakings for the cessation of an alleged offence. Commitments adopted by the GCC are binding on the par-ties concerned. The GCC may, following an application of any inter-ested party or as a result of an ex officio investigation, commence the procedure anew if there has been an essential variation in the facts upon which its decision was based, the undertakings concerned did not comply with their commitments or the decision was grounded on inaccurate or misleading information of the undertakings. The terms and conditions, as well as the procedure for accepting com-mitments proposed by undertakings or associations of undertakings, are determined by decision of the GCC. The relevant procedure is set out in the GCC’s Operation and Management Regulation (article 13) adopted in 2006, which is still currently in force.

In any event, the GCC has generally refused to accept commit-ments in cases involving hard-core breaches of competition law such as price fixing, which, in its opinion, require further examination and could warrant the imposition of fines (see Decision No. 460/V/2009). Arguably, therefore, it would be difficult for parties to succeed in resolving liability and avoiding fines by offering commitments to cease alleged cartel activity.

In this respect it is interesting to note that, on 8 September 2010, the GCC issued an announcement stating that, within the context of its ex officio investigation into the flour market and for the pur-poses of determining whether interim measures should be imposed on the relevant Greek flour associations, taking into account the immediate threat of irreparable damage being caused to the pub-lic interest, it decided to accept the commitments offered by these associations, which included the withdrawal or amendment of two separate announcements they published in August 2010 relating to price adjustments. In addition, the GCC ordered that the associations refrain, in future, from issuing any recommendations or directions that, directly or indirectly, influence the formulation of their mem-bers pricing and general, commercial policies. In the event that the associations fail to comply with this decision, a copy of which was not publicly available at the date of writing, it may impose fines equivalent to 10 per cent of their members’ gross turnover. Moreo-ver, the decision does not affect the ongoing investigation of the case conducted by the DGC, nor does it prejudice the GCC’s legal assess-ment in this matter.

More recently, in the real estate agents’ association case men-tioned above, where fines were imposed on the associations, the GCC unanimously agreed to accept the commitments offered by the federation of real estate agents for the cessation of its alleged breach,



which concerned the limitation it imposed on advertising the provi-sion of free services (Decision No. 518/V/2011). In this regard, the federation was obliged to:• prepareandnotifytoitsmembersacodeofconductstatingthat

real estate agents are free to advertise their services, without limi-tation as to the level of their commission;

• insertinitsarticlesofassociationaprovisionstatingthatarealestate agent’s commission is set freely, within the framework of the rules on competition;

• publishanotice in thepress concerning theoutcomeof theGCC’s decision;

• notifyitsmembers,byletter,that,followingonfromtheGCC’sdecision, no minimum commission levels apply while their cor-responding members should also be advised of this development in writing;

• maintainonitswebsiteforaperiodofatleastoneyearthecodeof conduct, the new articles of association, the press release as well as the letter; and

• holdapress conference towhichallnationalmediawill beinvited to attend in order that they may be informed of the above behavioural measures.

29 Corporate defendant and employeesWhat is the effect of leniency or immunity granted to a corporate

defendant on its current and former employees?

Criminal liability of those responsible or the persons that partici-pated in a cartel (including, potentially, current and former employ-ees to the extent they were involved in the cartel activity) is lifted, if the undertaking concerned is granted immunity (article 44(3) of Law 3959/2011). In the case where, as a result of the leniency pro-gramme’s application, the undertaking receives a reduced fine, this is considered as a mitigating factor and a reduced criminal penalty is also imposed on those liable.

30 CooperationWhat guarantee of leniency or immunity exists if a party cooperates?

The GCC is not obliged to offer leniency or immunity to any party, unless all the conditions are fulfilled.

31 Dealing with the enforcement agencyWhat are the practical steps in dealing with the enforcement agency?

According to the current leniency programme (Decision No. 526/VI/2011), an undertaking or natural person wishing to benefit from the leniency programme submits its application, containing all required information and data, to the GCC’s chair who informs immediately the director general and, if the case has been assigned by lot, the competent rapporteur. The director general keeps a con-fidential registration book of leniency. If an official application is submitted, the director general provides, at the chair’s order, follow-ing the request of the undertaking or the natural person, a certificate of receipt, which records the date and time of filing.

As soon as the service determines that the evidence and informa-tion submitted is sufficient and corresponds to the conditions and the minimum requirements for the granting of immunity, the GCC’s chair issues to the applicant, in writing, temporary immunity from the imposition of a fine. If the applicable terms and conditions are not met, the chair informs the undertaking or natural person that its application has been rejected. In this case, the applicant may request that its application be examined for a possible reduction in fines or, in the alternative, it may have it withdrawn. If the application is withdrawn, the evidence submitted will not be used by the GCC to substantiate a breach by the undertaking or natural person, unless this data was already available to the GCC. It is possible to with-draw an application until the statement of objections are filed to the plenary session or corresponding chamber. However, this does not prevent the GCC from using its usual investigatory powers to collect the relevant data. In the case where, after temporary immunity is granted, it is found that the applicant did not comply with the appli-cable terms for lenient treatment or it coerced another undertaking into participating in the cartel, the GCC’s chair informs the applicant immediately and this could result in immunity being revoked by his or her conduct.

In relation to applications submitted for a reduction in fines, the GCC’s chair will not reach a decision before determining whether or not immunity should be granted, in the case where such an applica-tion has been filed for the same alleged cartel. If the evidence supplied represents significant added value with respect to evidence already in the GCC’s possession and the other terms and conditions of the leniency programme are satisfied, the GCC’s chair certifies in writing that the undertaking or natural person falls under the provisions of the programme, at the latest by the date the statement of objections is served upon the applicant. If the above conditions are not met, the GCC’s chair informs the applicant, in writing, that its application

On 14 March 2011, the Greek Competition Commission (GCC) issued an announcement on the application of competition rules in times of financial crisis. It has clarified that, in dealing with situations of economic difficulty, undertakings are obliged to develop their commercial policies autonomously and in a way that does not distort competition. Accordingly, concerted practices aimed at increasing or maintaining company profits or passing onto consumers any financial burden are considered to threaten the public interest and harm consumers, without providing any real benefit to society. This approach is reflected in the current case law of the GCC in which it has expressly stated that, in accordance with the case law and decision-making practice at EU level, the existence of an economic crisis cannot justify collusive behaviour that restricts competition. The GCC will examine as a matter of priority such cases that come to its attention following a complaint, an application for leniency or from other sources (eg, the press or the internet) and will impose severe penalties on companies that implement similar anti-competitive practices.

In this respect, it is also interesting to note that, following the adoption of the new competition law in Greece (Law 3959/2011), a

limitation period has been introduced. The GCC now has five years within which to impose sanctions for breaches of the competition rules, including participation in a cartel (article 42). This period commences on the day that the breach was committed and, if it is continuing, on the date that it ceases. Any act of the GCC, the European Commission or other competition authority of an EU member state interrupts the limitations period and it starts to run anew after each interruption. As regards the imposition of fines, the limitations period is suspended for as long as an instrument or decision of the GCC relevant to the case forms the subject matter of proceedings pending before the courts. This suspension applies to all undertakings and associations that participated in the breach. The statutory limitation period is important as it aligns Greek competition law with EU law (namely, EU Regulation No. 1/2003) and it offers legal certainty to the parties involved. The limitations period also covers breaches committed before the new law entered into force, provided that they were not already the subject of a complaint or ex officio investigation or request by the minister of development, competitiveness and maritime to initiate an investigation.

Update and trends



has been rejected. In this case, the undertaking or natural person may withdraw its application and the evidence submitted will not be used by the GCC in order to find a breach, unless it already has this information in its possession. The GCC is not prevented from using its investigatory powers to collect this data. If, after the above certificate is issued, it is determined that the applicant did not comply with all the conditions for lenient treatment, the GCC’s chair will inform the applicant immediately and this could result in the benefit of having a reduced fine revoked.

Applications for leniency submitted before the new programme entered into force (ie, prior to 4 November 2011), will be evaluated on the basis of the leniency programme issued by the GCC in 2006.

32 Ongoing policy assessments and reviewsAre there any ongoing or proposed leniency and immunity policy

assessments or policy reviews?

In a cartel where dairy producers, supermarkets and distributors had colluded to fix prices of milk and dairy products both at the produc-tion and retail levels, one of the dairy producers, MEVGAL, had applied for immunity from fines. However, as the GCC already had most of the evidence of significant value in its possession, and also as MEVGAL had publicised the fact that it had submitted such an application, the GCC’s chair advised the company that it was not eligible for immunity. Subsequently, MEVGAL requested a reduction in its fine. Although the DGC recommended to the GCC a minimum reduction of 30 per cent, during the hearing MEVGAL withdrew its application and requested that the evidence submitted also be with-drawn. The GCC accepted the withdrawal of MEVGAL’s application but, as regards the company’s request that evidence be disregarded, the GCC decided that, as this was not possible under the leniency programme then applicable, and given that it believed MEVGAL was pressured by other members of the cartel to request the withdrawal, it would reject this request (Decision No. 369/V/2007).

Other ongoing investigations are kept confidential and, for this reason, it is not known whether other applications for leniency have been considered.

Defending a case

33 RepresentationMay counsel represent employees under investigation as well as the

corporation? Do individuals require independent legal advice or can

counsel represent corporation employees? When should a present or

past employee be advised to seek independent legal advice?

There is nothing expressly provided for in Greek law but, in practice, it is common for counsel to be present during on-site investigations conducted by the DGC. As regards the representation of employees by counsel, this usually depends on each case and the nature of the allegations.

34 Multiple corporate defendantsMay counsel represent multiple corporate defendants?

In practice it is not possible, as conflicts of interest will arise.

35 Payment of legal costsMay a corporation pay the legal costs of and penalties imposed on its

employees?

The payment of costs is subject to the agreement of the parties.

36 Getting the fine downWhat is the optimal way in which to get the fine down?

Apart from the leniency programme, there is no other provision in Greek law for negotiating the fine down.

Angela Nissyrios [email protected]

5 Lykavittou Street Tel: +30 210 33 92 950 / +30 210 36 15 395

106 72 Athens Fax: +30 210 36 40 805 / +30 210 36 18 789

Greece www.bernitsaslawoffices.eu

Cartel regulation 2012 iSSn 1473-3420

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