Key changes in law 703/1977 on free competition
Law 3784/2009, published in the Government’s Gazette on 7 August 2009 (in force as of 30 days from publication), has amended a number of provisions of law 703/1977 on free competition (the Law). The aim is to strengthen the powers of the Hellenic Competition Commission (HCC) and to further streamline the Greek competition regime with EU law. The most important changes are as follows:
• The wording of article 1 para.3 of the Law has been modified so that agreements, decisions or concerted practices meeting the criteria of para.3 are exempted from the general prohibition of article 1 para.1 of the Law, without requiring a previous HCC decision. In effect, the HCC is responsible for finding whether the prohibitions of article 1 paras.1,2 have been violated and will no longer provide individual exemptions or negative clearances under articles 10 and 11 of the law respectively, which have now been abolished. Further, it is the HCC itself now, and not the Minister, that may exempt categories of agreements from the prohibition of article 1 para.1, applying article 1 para.3 of the Law, and may also define categories of agreements that are not caught by the prohibition of article 1 para.1.
• Article 2a of the Law that prohibited abusive behaviour towards economically dependent undertakings in vertical relationships, irrespective of the existence of a dominant position, has been moved to Law 146/1914 on unfair competition, as article 18a thereof.
• A prior notification of a concentration under article 4b of the Law has to be announced by the notifying parties in one nation-wide daily economic newspaper. This announcement must now also be published in the HCC’s website for any interested party to submit comments or provide information.
• The HCC shall by decision prohibit under article 4 para.5 of the Law full-function joint ventures that contain provisions falling within the prohibition of article 1 para.1 and are not exempted under article 1 para.3.
• Once the decision of the HCC President to commence full investigation of a notified concentration is notified to the parties, the notifying undertakings may now, under the new article 4d para.4 of the Law, modify their transaction and notify the HCC within 15 days, so as to address any concerns the HCC may have on the concentration’s compatibility with the provisions of the Law. Heavy fines of up to 10% of the total turnover of the undertakings participating in a concentration may apply where the merging parties fail to meet either the conditions the HCC has set or the modifications they proposed, subject to which the concentration was approved.
• The HCC may take interim measures to preserve competition in market when a concentration has been entered into contrary to the provisions of the law.
• Within 2 years from a decision of the HCC under article 5 of the law for a regulatory intervention in a specific sector of the economy, the HCC has now the obligation to re-examine the conditions of competition within that sector in order to confirm that its previous intervention had been effective or not, in which case it shall take all appropriate measures. All relevant decisions under article 5 of the law by the HCC must be taken in plenary session.
• The HCC now consists of 9 regular Members. Five of them, the President and the 4 Rapporteurs, shall work exclusively for the HCC on a full-time basis. Article 11 of law 3784/2009 contains new provisions on various procedural issues such as the way cases are allocated and examined, the functioning of the HCC, the legal personality of the HCC etc.
• The obligation to notify agreements, decisions or concerted practices within 30 days from their conclusion, adoption or execution remains. The information however that must be notified is (a) the identity of the undertakings, (b) the object of the agreement, (c) the relevant market, (d) the time of conclusion and (e) its duration.
• The investigative powers of the HCC’s inspectors are strengthened to enable them to acquire all necessary information, documents, messages, data etc. of the undertakings concerned, even if in possession of the directors or any other personnel.
• The law introduces imprisonment of at least 6 months for those who violate article 1 of the Law or article 81 EC Treaty. The fine for a violation of articles 1 or 2 of the Law, or articles 81 or 82 EC Treaty, now ranges from 15.000 to 150.000 euro. The sentence of 3-months imprisonment for obstructing an investigation, refusing to supply information or supplying false information increases to at least 6 months, while the fine for same offences now ranges from 10.000 to 50.000 euro.