Leniency Regimes: Greece - Antitrust, EU Competition

Background

1. What is the relevant legislation containing the leniency policy and what is the enforcing body?

Article 9(4) of Law 703/1977 on the control of monopolies and oligopolies and the protection of free competition, as in force, provides the Hellenic Competition Commission ('HCC') with the power to issue decisions containing the rules and conditions under which undertakings which assist in the investigation of infringements of competition rules, other than an abuse of a dominant position, can be held immune (in total or in part) from fines. On 17 March 2006, the HCC issued Decision 299/V/2006 ('the Decision') which contains the Greek leniency rules and procedural regulations. In principal, the Decision follows the leniency model introduced by the European Commission under Notice on immunity from fines and reduction of fines in cartel cases (2002/C 45/03) ('the EU 2002 Notice'), as amended by EEC 298 (8 December 2006) ('the EU 2006 Notice') with a view to facilitating the gradual convergence between EU and member states' leniency programmes (Preamble VII of the Decision),

The principal enforcement body is the HCC, but for cartels occurring in the telecommunications/electronic communications sector, the competent body is the Greek Telecommunications and Post Commission. According to para 22 of the Decision, for cases falling within the competency of the HCC, the Director General of the Directorate General of Competition ('DGC') oversees the general operation of the leniency programme.

2. What are the basic tenets of a leniency/immunity programme?

The Greek leniency/immunity programme covers undertakings which have participated in secret horizontal collusive practices which infringe Article 1(1) Law 703/1977 and/or Article 81(1) EC aiming at fixing prices, production or sales quotas, sharing markets (including bid-rigging or restrictions of imports or exports), they fall under the competence of the HCC and wish to terminate their involvement and inform the HCC of the existence of such collusive practices.

The HCC has adopted the distinction of the EU 2002 Notice between immunity from fines (ie total immunity meaning 100 per cent discharge of financial penalties) and reduction of fines. Immunity is available only to the first cartel member to submit sufficient evidence which enables the HCC to initiate the investigation procedure or evidence to find a serious infringement (provided the cumulative conditions set out below under question 4 are met). Immunity may only be granted if the HCC did not have at the time of the submission sufficient evidence to initiate the investigation procedure or prove the infringement (paras 1- 4 of the Decision).

A reduction in fines is granted to undertakings which do not meet the conditions for immunity, provided they submit evidence of 'significant added value' with respect to the evidence already in the DGC's possession. The concept of 'significant added value' refers to the extent to which the relevant evidence strengthens, by nature and/or level of detail the ability of the HCC to find an infringement. Furthermore the applicant must terminate its involvement in the suspected infringement no later than at the time at which it submits the evidence. In essence, the level of reduction will depend on the time at which the relevant evidence was submitted and the degree of 'added value' of the submitted information; the Commission may also take into consideration the extent and effect of the undertakings' collaboration subsequent to submitting the evidence. Provided that the applicants meet the above conditions, the HCC may reduce the amount of the fine as follows: a reduction of 30- 50 per cent for the first undertaking, a reduction of 20-30 per cent for the second undertaking and a reduction of up to 20 per cent for subsequent undertakings. Evidence previously unknown to the HCC concerning the gravity and duration of the infringement shall not be taken into account against the undertaking which provided it (paras 14-17 of the Decision).

3. How many cartels have been unveiled and punished since the adoption of the leniency policy?

Since the adoption of the leniency policy in March 2006 the HCC has issued two decisions relating to horizontal collusive practices which infringe Article 81(1) EC and/ or Article 1(1) Law 703/1977 whereas several investigation procedures have been initiated. A leniency request has been made only in one case (investigation for cartel activity in the milk sector) and the relevant decision of the HCC was delivered in November 2007. Further to the opinion of the Legal Service (in cooperation with the competent operational Directorate) the Chairman of the HCC informed the applicant that no immunity from fines was available, due to the fact that at the time of the submission, the HCC had already initiated investigation for cartel activity in this sector and the applicant failed to keep the submission of leniency application confidential. Following this communication the applicant submitted application for reduction of fines without providing any further evidence. During the hearing before the HCC the applicant revoked its application for reduction of fines and applied for withdrawal of all evidence submitted. The HCC upheld the revocation of the application for reduction of fines and rejected the application for withdrawal of evidence submitted given that the Decision does not provide for withdrawal of evidence submitted with respect to reduction of fines

4. What is needed to be a successful leniency applicant? Is documentary evidence required or is testimonial evidence sufficient?

In order to be a successful leniency applicant for immunity, the undertaking concerned must, in principal, (a) be the first cartel member to submit evidence which enables the HCC either to initiate the investigation procedure or to find a serious infringement of Article 1(1) of L 703/77 and/or Article 81(1) of the Treaty; and (b) the HCC must not have at the time of the submission, sufficient evidence to adopt a decision to carry out an investigation or to find an infringement. In addition, in the event of an application to submit evidence which enables the HCC to find a serious infringement, the HCC must not have granted immunity on the basis of evidence which enables it to initiate an investigation (paras 1-3 of the Decision). In a preliminary stage, the HCC will verify whether the undertaking's application meets the initial conditions of paras 1-3 and will notify the undertaking accordingly through its Chairman.

If an undertaking meets the conditions of paras 1-3 of the Decision, it will only be granted immunity provided it also meets the following cumulative conditions (para 4 of the Decision):

1. it cooperates fully, actively and on a continuing basis and remains at DGC's and HCC's disposal to answer promptly any question or request concerning the infringement under investigation;

2. it ends their involvement in the infringement no later than the time of the evidence submission;

3. it has not coerced other undertakings to participate in the infringement;

4. it keeps the submission of leniency application confidential until the DGC concludes the relevant statement of objections;

5. it has not participated in the past in prohibited collusive practices for which either the HCC or the European Commission have issued a decision (paras 1-4 of the Decision). Conditions under (4) and (5) above do not mirror the EU 2002 and 2006 Notices and are presented as an additional requirement of the Decision.

Undertakings which do not meet the conditions for immunity from fines, may apply for a reduction of fine provided they submit evidence of 'significant added value' (question 7 below) and terminate its involvement in the infringement as of the submission of the evidence (para 14-15 of the Decision).

In both procedures (immunity and reduction in fines) the applicants must provide the Directorate of Legal Services of DGC ('Legal Service') either with all evidence concerning the suspected infringement or present this evidence in summary without mentioning specific undertakings. In the latter case, a descriptive list reflecting the nature and content of the evidence and preserving its hypothetical nature must be submitted. The applicants may alsosubmit copies of documents which illustrate nature and content of the evidence in a non confidential version (para 6 of the Decision).

Any written or oral statement to the HCC regarding the leniency Decision forms part of the HCC's relevant file and may not be disclosed or used for any purpose other than the enforcement of Article 1(1) Law 703/1977 and/or Article 81(1) EC (para 28 of the Decision).

Timing

5. What are the benefits of being 'first in' to cooperate?

Total immunity is only available to the first undertaking to submit evidence that enables the HCC either to initiate the investigation procedure or to prove a serious infringement, provided the cumulative conditions set out in para 4 of the Decision are met and the HCC did not have at the time of the submission sufficient relevant evidence.

Should applicants fail to meet the conditions for total immunity, the first undertaking to provide evidence of significant added value is offered a reduction of fine ranging between 30 and 50 per cent, provided it terminates its involvement in the infringement no later than the submission of the evidence (para 17 of the Decision).

6. What are the consequences of being 'second'? Is there an 'immunity plus' or 'amnesty plus' option?

Undertakings which provide evidence of infringements of Article 1(1) Law 703/1977 and /or Article 81(1) EC but which are not the first to come forward may apply only for partial leniency ie a reduction in fines. Undertakings to come in second in meeting the conditions of para 15 of the Decision on the reduction of fines may get a reduction ranging between 20 and 30 per cent of the imposed fine provided they terminate their involvement in the infringement no later than the submission of the evidence (para 17 of the Decision). Under the Decision, there is no 'amnesty plus' or 'immunity plus' option.

7. Are subsequent firms given any beneficial treatment if they make a useful contribution? How are 'useful contributions' defined?

Subsequent firms which provide evidence of significant added value with respect to the evidence already in the DGC's possession under para 15 of the Decision may apply for partial immunity ie a reduction of fines up to 20 per cent of the fine, provided they terminate their involvement in the suspected infringement as of the time of the submission of evidence (para 17 of the Decision).

Evidence of 'significant added value' will be considered any evidence which strengthens by its nature and/or its level of detail the ability of the HCC to prove the suspected infringement. Written evidence referring to the period of time of the suspected infringement and/or of direct relevance to the facts in question, is deemed of greater value than evidence later produced and/or of indirect relevance (para 16 of the Decision).

Scope/Full Leniency

8. Is it possible to receive full leniency? And, if so, what are the conditions required to receive full leniency?

Full leniency (ie total immunity from financial penalties) is available if the undertaking is the first cartel member to submit evidence which enables the HCC either to initiate the investigation procedure or to prove a serious infringement provided the cumulative conditions set out below are met. Immunity shall be granted if the HCC did not have at the time of the submission sufficient evidence for the initiation of the investigation procedure or to establish the infringement (paras 1-3 of the Decision). In addition, the conditions of para 4 of the Decision described in question 4 above must cumulatively apply with respect to the applicant undertaking.

9. How many companies have received full immunity from fines to date?

None, since the adoption of the leniency programme in March 2006.

Procedure/Confidentiality

10. What are the practical steps required to apply for leniency? Immunity

Undertakings wishing to apply for immunity from fines must contact the Head of Legal Service of DGC who shall immediately inform the DGC of the application. In the event that the Legal Service in cooperation with the competent operational Directorate consider that the requirements set out in paras 1-3 of the Decision are not met, it opines accordingly to the DGC. In this case the Chairman of the HCC, upon proposal of the DGC, informs the applicant that immunity from fines is not available for the suspected infringement.

If immunity is possible under the above, then the applicants must provide the Legal Service of DGC either with all evidence concerning the suspected infringement or present this evidence in summary, without reference to specific undertakings. In this case a descriptive list reflecting nature and content of the evidence and preserving its hypothetical nature must be submitted. The applicants may also submit copies of documents which illustrate nature and content of the evidence in a non confidential version (para 6 of the Decision). The Head of Legal Service of the DGC must then provide the applicant with a written acknowledgement of receipt of the application confirming the date on which the undertaking, either submitted the evidence or presented a descriptive list (para 7 of the Decision).

Once the DGC has received the submitted evidence and verified within five days of its submission that the conditions set out in para 1-3 of the Decision are met, it issues a proposal to the Director General to grant a written conditional immunity from fines. The Chairman of the HCC certifies in writing upon proposal of the Director General the intention of the HCC to grant leniency to the applicant (para 8 of the Decision).

In the event that the applicant submits a descriptive list of the evidence, the DGC verifies within five days of its submission that the conditions set out in paras 1-3 of the Decision are met and the Chairman of the HCC informs the undertaking upon proposal of the Director General. Following the disclosure of the evidence described in the list on the date agreed and after the DGC verifies that the evidence corresponds to the list, the President of the HCC certifies in writing upon proposal of the DGC and its Director General the intention of the HCC to grant leniency to the applicant (para 9 of the Decision).

Undertakings which fail to be the first to submit evidence that enables the HCC either to initiate the investigation procedure or to find a serious infringement, may withdraw the evidence disclosed for the purposes of the immunity application or request from the DGC to provide a reduction of fines (para 10 of the Decision).

No further applications for immunity from fines by other cartel members can be examined by the Legal Service of the DGC before the Chairman of the HCC issues a decision on a previously submitted application concerning the same suspected infringement (para 11 of the Decision).

Finally, the HCC will grant immunity from fines with a decision issued regarding the infringement under investigation, provided that the applicant meets the requirements set out in para 4 of the Decision (para 12 of the Decision).

Reduction of fines

Undertakings wishing to benefit from a reduction of fines must provide the HCC with evidence of the suspected infringement (para 18 of the Decision). The Head of Legal Service of the DGC must acknowledge receipt of the application in writing, confirming also the date on which the evidence was submitted. The Legal Service cannot examine the evidence submitted before the Chairman of the HCC issues a decision on any previously submitted applications for immunity with respect to the same case (para 19 of the Decision)

Once the Legal Service has received the submitted evidence and examined within five days from submission whether the conditions set out in para 15 of the Decision are met, it issues a proposal to the Director General to grant the applicant a fine reduction according to the provisions of para 17 of the Decision. The Chairman of the HCC, upon proposal of the Director General, verifies in writing HCC's intention to grant a fine reduction to the applicant, at the latest by the date of service to the parties of the statement of objections.

11. Is there an optimal time to approach the regulatory authority?

In view of the fact that, under the Decision, total immunity is only available to the first undertaking to provide the appropriate evidence in relation to an infringement of Article 1(1) Law 703/1977 and/or Article 81(1) EC in conjunction with the fact that, no further applications for immunity from fines by other undertakings can be examined by the Legal Service of the DGC before the Chairman of the HCC issues a decision on a previously submitted application concerning the same suspected infringement, it is advisable to apply as soon as possible at least with a summary of the evidence to be submitted and a descriptive list thereof, according to para 6 of the Decision. The same applies to applications for a reduction of fines where evidence of significant added value with respect to the evidence already in the DGC's possession should be submitted as early as possible, since in this case, the HCC will, among others, take into consideration the time of submission of the evidence (para 17 of the Decision) in assessing the level of reduction of the fine (paras 2 and 5 above).

12. What guarantees of leniency exist if a party cooperates?

Undertakings applying for immunity from fines must cooperate fully, actively and on a continuous basis throughout the procedure. They must promptly provide all information and evidence which is available to them or comes into their possession at a later stage. The applicants remain at DGC's and HCC's disposal to reply to any question or request with respect to the infringement under investigation. With respect to applications for reduction of fine the HCC may take into account the extent and consistency of the cooperation provided by the undertaking after the submission of the evidence.

Any false, imprecise or misleading statement of the applicants as well as their failure to meet any requirement set out in the Decision at any stage of the procedure may result in the loss of the benefit of immunity from fines or reduction of fines by virtue of a deed of the Chairman of the HCC, issued upon proposal of the Director General (para 25 of the Decision).

Provided the applicant meets the conditions for immunity from fines or reduction of fines the Chairman of the HCC shall certify in writing the intention to grant leniency. The receipt of an application and the acknowledgement of the intention to grant leniency to the applicant, does not oblige the HCC to deal with the suspected infringement unless all legal requirements are met (para 27 of the Decision). The HCC is not obliged to grant immunity from fines or reduction of fines unless all conditions of the Decision are satisfied. The good cooperation of the applicant with the HCC shall be mentioned in the latter's decision on the suspected infringement which is the only decision subject to appeal before the Athens Administrative Court of Appeals (para 26 of the Decision).

13. Is confidentiality afforded to the leniency applicant and other cooperating parties? If so, to what extent?

Undertakings applying for immunity from fines must keep the submission of the application confidential until the DGC concludes the statement of objections for the case in question (para 4d of the Decision). In addition, any written or oral statement to the HCC regarding the leniency Decision forms part of the HCC's relevant file and may not be disclosed or used for any purpose other than the enforcement of Article 1(1) Law 703/1977 and/or Article 81(1) EC, without prejudice to the general right of access to administrative documents (para 28 of the Decision). Under Article 19 of the Rules and Regulations of the HCC, the parties must identify and explain the confidential nature of any data submitted or collected by the DGC and it is up to the DGC to accept the confidentiality of that information. In the event of a dispute between the DGC and the applicant on the confidential nature of submitted information, the Chairman of the HCC will resolve the issue. Where the request to characterise the submitted information as confidential is granted, access to it to other parties is in general denied and the confidential information is not disclosed at least until the issuance of a statement of objections. There is limited exception to this rule and only following a decision of the HCC's Chairman. As a result of the above, in the event of an application for immunity and/or reduction of fines, it is strongly recommended to mark any submitted evidence as confidential.

Consequences

14. What effects does leniency granted to a corporate defendant have on the defendant's employees?

According to Article 9(4) Law 703/1977, the granting of immunity and/or reduction of fines by virtue of a decision of the HCC on the suspected infringement waives any criminal liability of the persons referred to in Article 29(1) Law 703/1977 (legal representatives of the applicants).

15. Does leniency bar further criminal or private enforcement?

Immunity from fines or reduction of fines does not shield the applicants from civil liability arising from the violation of Article 1(1) Law 703/1977 and/or Article 81(1) EU whereas it bars further criminal enforcement against their legal representatives.

Relationship With The European Commission's Leniency Notice And Leniency Policy In Other Eu Member States

16. Does the policy address the interaction with applications under the Commission Leniency Notice? If so, how?

Yes. Under para 13 of the Decision, where an undertaking has submitted a complete application for immunity from fines to the European Commission and/or a national Competition Authority of another member states which prima facie is competent, a simplified (pro forma) immunity application may be submitted to the DGC containing information on:

the relevant product/service;

the relevant geographic market;

the period of time concerned;

the parties involved;

the type and nature of the infringement;

the organisation and structure of the collusive practice;

the type and nature of the infringement; and

the other national Competition Authorities addressed by the undertaking and the national Competition Authority before which the undertaking has filed a complete application.

Upon receipt of the application the Head of DGC acknowledges in writing receipt of it to the applicant, also confirming that it is the first to apply for immunity from fines with respect to the suspected infringement. The HCC may later request from the applicant a complete application for immunity from fines.

Undertakings applying for a reduction of fines cannot submit a simplified immunity application (para 21 of the Decision).

Applications of leniency before the HCC do not entail the granting of leniency from the European Commission and/or other national Competition Authorities on the basis of evidence provided to the HCC. The undertaking must submit a separate application for leniency to the European Commission and/or the national Competition Authorities (para 29 of the Decision).

17. Does the policy address the interaction with applications for leniency in other EU member states? If so, how?

Yes. We refer to question 16 above.

Reform/Latest Developments

18. Is there a reform underway to revisit the leniency policy? What are the latest developments?

The HCC has not announced any intention to revisit its leniency policy in the near future.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Greece: Leniency Regimes: Greece