Partner Perspectives: Anastasia Dritsa

Key Takeaways on Greece’s Competition Law Landscape

Current Trends in Competition Law: Competition law in Greece is driven by pandemic impacts, digital transformation, and sustainability. National priorities include industry consolidation, innovative markets, and aligning consumer prices with EU standards.

Greek Competition Act Amendments (2022): The 2022 reforms gave the Hellenic Competition Commission (HCC) new enforcement tools, banned price signaling, and expanded settlement procedures. These changes make Greece’s approach unique in the EU.

Increased HCC Enforcement: The HCC has ramped up inspections across industries, partly due to new whistleblowing and data collection tools. Focus areas include online sales restrictions and resale price maintenance.

EU Rules and Sustainability Initiatives: New EU rules on horizontal and vertical agreements address digital and sustainability concerns. The HCC’s “sustainability sandbox” encourages eco-friendly business projects with regulatory support.

Energy Sector Scrutiny: EU energy goals and the energy crisis have intensified competition oversight in Greece’s energy sector, with HCC investigations into electricity and petroleum markets to promote green investments.

Merger Control and Compliance Tips: Mergers have increased in sectors like energy and pharma. Companies are advised to consult competition experts early, avoid procedural violations, and ensure timely filings.

FDI and State Aid Updates: Greece is developing a foreign direct investment screening mechanism. The Ministry of Finance manages state aid, focusing on green energy, digital initiatives, and resilience, aligned with EU goals.

 

Full Transcript:
What prevailing trends have shaped the landscape of competition law in Greece in recent years?

The most notable parameters that dominated the realm of competition law in Greece over the past couple of years, I would say are the COVID pandemic, which forced the Hellenic Competition Commission to focus on the conditions of supply in relevant product markets, digital transformation, climate change and overall sustainability. Also a DG COMP priority, the consolidation of various industries and an emphasis on innovative markets.

I believe other than the first, these areas will continue being in the forefront of the national enforcers agenda, coupled with the quest to detect competition law violations in markets where the prices of consumer products remain higher up than other European Member State.

What are the key amendments introduced in the reform of the Greek Competition Act in early 2022, and how do they impact the regulatory landscape?

So the Greek Competition Act was substantially amended in January 2022, introducing a wide range of modifications to the full spectrum of the Greek competition rules. Firstly, as a result of transposing the ECN Plus Directive, which equipped the National Competition Authority with increased enforcement powers. In addition, a second reform to the Greek Competition Act was the newly added Article 1A, which since July 2022 prohibits 2 new types of unlawful unilateral conduct. First, the invitation to conclude an unlawful agreement, and secondly, the announcement of future pricing intentions between competitors, also known as price signalling.

Overall, a very innovative reform, rather contentious, which is not replicated in the competition regimes of other member states. It is noteworthy to mention that the HTC has not yet brought a case on these grounds. A third reform concerns the settlement procedure, which was previously applicable only to horizontal cartel cases and has now been extended to vertical restraints, abuse of dominance and the new infringements of Article 1A. This again is an innovative approach in that there is no corresponding formal EU wide provision offering the possibility for settlement in the whole scope of both Articles 101 and 102 of the Treaty.

Finally, on the merger control side, the amended Greek Competition Act now provides for the possibility to the parties in a transaction to offer commitments during a phase one investigation and the corresponding power of the authority to impose them as remedies for a conditional phase one clearance decision, an option available only in phase two under the previous regime.

What factors have contributed to the heightened enforcement activity of the HCC in the past 3-4 years within the EU? What areas have been the primary focus of investigations?

Indeed, the HCC proved to be one of the most vigilant authorities in the EU if you look at the statistics, with an EU wide record of approximately 40 surprise inspections to more than 170 firms in over 20 economic sectors over the last three years.

Most investigations focus on potential vertical infringements, especially regarding resale price, maintenance and restrictions of sales through online platforms, but cartels and horizontal anti-competitive practises remain a key priority for the HCC as well the HT CS.

Numerous investigations launched via dawn raids may be explained by the fact that in 2021 the HTC established an online whistle blowing tool to allow for the anonymous reporting of anti-competitive conduct and adopted new technologies and forensic tools to facilitate the collection and processing of data through the leveraging of big data technology. Both appear to have had a sizeable impact on the information that the HTC collects.

How have the revised EU rules on horizontal cooperation and vertical relationships impacted the competition law landscape in Greece, particularly for businesses and regulatory authorities?

The aim of the revised framework for both horizontal cooperation agreements in 2023 and vertical relationships in 2022 is to integrate case law of the EU courts and the decisional practise of DG COMP, but also to ensure that the rules sufficiently tackle anti-competitive concerns in the digital space and reinforce sustainability. The Veeber and Guidelines package introduces important changes to the treatment of distribution agreements under EU competition law, especially with respect to the rules governing the combination of several different distribution systems, dual distribution, dual pricing and parity obligations.

In terms of policy initiatives at national level, with a recent amendment to the Greek Competition Act, the President of the HCC may now issue comfort letters when issues of urgent public interest arise, particularly regarding the achievement of sustainability objectives.

Moreover, the HTC has adopted a sustainability sandbox in which market players could team up to work on sustainable business projects. Companies are advised to engage with the HCC on these novel issues as it may be keen to offer them advice on a case-by-case basis and reduce legal uncertainty that sometimes hold companies back.

As a result, companies have been proactive in reviewing their distribution arrangements to check their compliance with the new vertical rules. Especially firms selling online must ensure that restrictions on the use of the Internet should be removed from agreements, as the HTC has shown signs of eagerness to take a hard line against such restrictions.

How have the energy crisis and the EU’s energy transition plans placed the energy sector in the spotlight, and how has this impacted the enforcement of competition law in Greece?

The energy crisis and the EU sustainability goals have revived the discussion concerning the role of competition law in the context of broader policy concerns and in particular the balancing between delivering on sustainability objectives but at the same time sanctioning competition distortions.

In terms of enforcement, the HTC has taken a dynamic stance, launching 2 Exophys Geo Investigations. One into the market for the retail supply of electricity to low voltage customers in 2021, that would be households and SMEs, and another in the market for the wholesale supply of electricity in 2022.

It is also carried out unannounced inspections at the premises of undertakings active in the wholesale supply of electricity to low voltage customers, at the premises of undertakings in gasoline and oil markets, at each of the refining, wholesale and retail levels of the market, as well as at the premises of undertakings active in the supply of equipment used in electricity distribution networks.

Amongst other HTCS initiatives, it additionally conducted its first mapping study on the conditions of competition in the petroleum industry and subsequently decided to initiate the procedure of regulatory intervention in the petroleum industry. At the same time, the HTC has been at the forefront of discussions regarding the challenges involved in the application of the competition rules in the transition to a sustainable economy.

Launching in June 2022, the Sandbox for Sustainable Development and Competition, which allows companies to submit business proposals through the Sandbox that will be fully evaluated ex ante by the HCC, and following this, the HCC may, in certain cases issue an Article 37, a No Enforcement Action Letter to interested parties. On the basis of this letter, parties will be able to implement their proposal under the supervision of the HCC within a specific time frame. The overall aim is to increase legal certainty regarding the application of competition law for companies willing to invest in green transformation.

What notable trends are observed on the merger control side, and how do they reflect the current M&A environment in Greece? Additionally, what advice would you offer to parties considering a merger in light of these trends?

Certain sectors and industries show larger merger activity and consolidation, with the HCC clearing in 2023 concentrations in the energy sector, the construction sector, the food industry, the investment sector, pharma, logistics and retail sectors. In line with the HC CS merger controlled tradition, there were no outright prohibitions in Greece in 2023, but the HCC tends to consider wider theories of harm when investigating whether deals are stifling innovation.

Parties contemplating a transaction should generally ensure that competition law advisors are involved at an early stage of the transaction to identify merger control requirements, to frame the transactions rationale and to develop the necessary defences. The parties must also be alert to the risk of gun jumping and to the timely submission of the notification form, to which the ACC is particularly attentive.

What is the current state of foreign direct investment (FDI) screening in Greece?

Greece is in principle open to foreign investments and this is very much high in the priorities of the current government’s policy. As regards specifically the FDI state of play, there is currently no such regime in Greece, but there is an ongoing consultative process that is expected to result in the adoption of an FDI mechanism.

What are the competent authorities responsible for monitoring compliance with EU State aid rules in Greece? Could you briefly outline the procedure for the granting of State aid within this framework?

The Central State Aid Unit of the Ministry of Finance is the main authority responsible for state aid matters in Greece and its competencies, among others are to notify Greek aid measures to the European Commission and in particular to DG COMP through the State aid notification interactive.

What are the emerging trends and topical issues regarding State aid control, particularly in the context of Greece? Considering that energy and sustainability are among the current policy priorities for the country, how are these priorities aligned with the State aid control efforts of national authorities?

Energy and sustainability are currently among the policy priorities for Greece, aligned with the EU strategic objectives relating to the EU screen deal. Greece’s recovery and resilience plan includes a coherent set of reforms and investments which can receive aid structured in four pillars, green transition, including sustainable use of resources, climate resilience and Environmental Protection, digital transformation, employment skills and social cohesion, and private investments and transformation of the economy. An example of projects benefiting from aid under the RRP are, for example, a scheme to support the development of electricity storage facilities, with an estimated budget of €341 million.

This measure aimed at allowing a smooth integration in the Greek electricity system of an increasing share of renewable energy coming from wind and solar sources. The security and diversification of energy supplies in Greece is also of high importance. In this context, the European Commission approved in September 2023 A 106 million Greek measure to support the construction of the floating storage regasification unit in Alexandroupolis. Given its strategic importance for the diversification of natural gas supplies in the wider Southeastern European region, the FSRU terminal in Alexandroupolis has been included in the lists of European projects of common interests in the energy sector.

Another Greek energy specific scheme, estimated at a total budget of €1.3 billion, was approved in February 2023 and concerns the partial compensation of energy intensive companies for higher electricity prices between 2021 and 2030 resulting from indirect emission costs under the EU Emission trading system.

Additional Greek aid measures under the RRP are expected to be adopted and approved in the next few years. KG Law Firms Competition and Antitrust practise focuses on the full spectrum of competition law matters, with a unique experience and a long successful tradition in both advisory and contentious proceedings before the HCC and the Greek Administrative Courts. Our practise comprises 2 partners, one of which has served as a Commissioner at the HCC and five practitioners dedicated to competition and consumer law and experienced in a number of industries, working closely together with prominent economists.