The Modernisation of Greek Competition Law: an Outline
Dr Vassilis Karagiannis, a partner at KLC Law Firm, discusses the way in which Greek competition law is being amended to bring it into line with the modern world.
A long time ago, Greek competition law was a marginal field of law with little actual influence in the economic life of the country. This picture began to change drastically from 2003 onwards, when the Hellenic Competition Commission (HCC) adopted landmark decisions applying the provisions of the law in many crucial sectors of the Greek economy (supermarkets, oil refineries, car distribution networks, significant cases of abuse of dominance, etc). A step forward worth mentioning was the replacement of the old competition Law 703/77 with Law 3959/2011(the “Greek Competition Act”), which is currently in force and is the cornerstone of public enforcement of competition law in Greece.
Since then, two main legislative evolutions must be pointed out:
- the adoption of Law 4529/2018 on private enforcement of competition Law, transposing EU Directive 2014/104/EU; and
- the adoption of Law 4886/2022, which extensively modifies the provisions of the Greek Competition Act, thus transposing the provisions of the so-called ECN+ directive (Directive 2019/1/EU) and adapting the provisions of the Greek Competition Act to the new digital area.
Private Enforcement
As already mentioned, Law 4529/2018 introduces special provisions concerning the private enforcement of competition law in Greece. While it is true that ordinary civil law judges are not always fully familiarised with the rationale of competition law and the required bases of economic analysis, it is worth noting that the Law provided for the addition of relevant special sections to the Court of First Instance of Athens and the Athens Court of Appeals.
In the meantime, some important civil law judgments have been issued, dealing firmly and decisively with complex legal and economic issues relating to private enforcement, such as the quantification of harm of the victims and the application of counterfactual scenarios.
Public Enforcement
In the field of public enforcement, Law 4886/2022 (modifying Law 3959/2011) granted adequate legal basis for the issuance of many “soft law” decisions of the HCC. It is not an exaggeration to say that, currently, the HCC offers a full and modern corpus of such decisions regarding all aspects of public enforcement of competition law (leniency programmes, settlement procedures, calculation of fines, access to file, etc), which allows undertakings to proceed with accuracy and predictability to an ex-ante self-assessment of their commercial behaviour.
Amendments to Greek Competition Act
On top of this, some further notable amendments have been introduced to the Greek Competition Act by Law 4886/2022, with the most important substantive amendments being as follows.
- A new set of infringements has been introduced (Article 1A), including making invitations to collude and announcements relating to communicating future pricing intentions for products and services between competitors. These new provisions gave rise to intense discussions among commentators and practitioners, with some pointing out that such provisions lead to counter-productive over-regulation of the market, and others adding that the scope of the new provisions would be rather obscure, particularly in relation to the existing provision of the law prohibiting the commitment of collusions (Article 1 of the Greek Competition Act). In turn, the HCC issued an explanatory guide on this new Article 1A of the Greek Competition Law.
- With regard to the control of concentrations, the possibility was introduced (Article 8, paragraph 4A) for the participating undertakings to submit commitments in the early stage of the procedure, thus aligning the practice of the HCC with corresponding EU law and practice. However, this amendment is not expected to be of great practical importance since, in most cases, the competition authority would not be in a position to assess the adequacy and efficiency of the proposed commitments without having thorough advance knowledge of each transaction submitted and the position of the parties in the markets. However, in some cases, when the HCC already has deep knowledge of the affected markets and the position of the participating undertakings (eg, because of prior sectoral investigations), this new potential can prove to be both time-saving and efficient.
- Last but not least, according to Article 37A of the Greek Competition Act (as introduced by Law 4886/2022), the President of the HCC – upon request of the interested party or parties and following a proposal of the Directorate General – can issue a non-binding letter of comfort (“No-action letter”) regarding the non-applicability of Articles 1 and 2 of the Greek Competition Act, and correspondingly of Articles 101 and 102 of the TFEU, to a specific collusion or abuse of dominance, if such behaviour is justified for reasons of public interest and, especially, for reasons relating to sustainable development. As correctly pointed out by commentators, the scope of said possibility is limited and, in any case, such letter of comfort is not binding on either the HCC or the courts.
Conclusion
The above outline is not exhaustive. However, it shows that, along with other organisational amendments concerning the operation of the HCC (corresponding mutatis mutandis to the requirements prescribed by the ECN+ directive), Greek competition law and practice have been significantly updated and enhanced. As a result, it contributes more efficiently to maintaining a high level of compliance with respect to economic operators, and, as such, to more workable competition and a fair, level playing field within the Greek economy.
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