This country-specific Q&A provides an overview to merger control laws and regulations that may occur in Greece.
It will cover jurisdictional thresholds, the substantive test, process, remedies, penalties, appeals as well as the author’s view on planned future reforms of the merger control regime.
This Q&A is part of the global guide to Merger Control. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/index.php/practice-areas/merger-control-4th-edition
Is notification compulsory or voluntary?
When the relevant thresholds are met a notification to the HCC prior to the implementation of a concentration is compulsory. The notification shall be submitted within 30 days after the entry by the parties into a binding agreement for a merger or the acquisition of controlling interest, or the announcement of a public bid.
Is there a prohibition on completion or closing prior to clearance by the relevant authority? Are there possibilities for derogation or carve out?
A concentration that meets the prior notification thresholds cannot be implemented prior to receipt of clearance by the HCC. However, pursuant to Article 9 par.2 of the Merger Control Legislation, in the event of public bids or the acquisition of a controlling interest on listed shares through a single transaction or a series of transactions in securities admitted to trading on a market such as a stock exchange, the purchaser may acquire the shares before receipt of clearance, provided the concentration has been duly notified to the HCC and the acquirer does not exercise the voting rights attached to the shares in question before receipt of clearance. The acquirer may exercise the voting rights on such shares before clearance strictly in order to maintain the full value of its investment and subject to a specific derogation granted by the HCC.
Additionally, on the basis of Article 9 par.3 of the Merger Control Legislation, the HCC may, upon a request prior to or after a notification has been submitted, grant a derogation from suspension of the concentration, so as to prevent serious damage to the undertakings concerned or to a third party. In this regard, the HCC takes into account, among others, the threat to competition posed by the concentration. In its derogation decision the HCC may impose conditions and obligations on the parties in order to ensure effective competition conditions and avoid situations which could hinder the enforcement of a future prohibitive decision. A derogation may be revoked by the HCC, if it is proved to be based on inaccurate and misleading data, or the undertakings concerned infringe any term or obligation imposed. In recent years, the HCC has been hesitant to grant such derogations.
What are the conditions of the test for control?
Under the Μerger Control Legislation, which is aligned with the EU Merger Regulation, a concentration subject to the mandatory notification regime shall be deemed to arise in case of a change of control on a lasting basis resulting from: (a) a merger of two or more previously independent undertakings or parts of undertakings thereof or (b) the acquisition, by one or more persons already controlling at least one undertaking, or by one or more undertakings, whether by purchase of securities or assets that constitute a turnover-generating business, by way of an agreement or by any other means, of direct or indirect control over the whole or parts of another or a number of other undertakings.
The definition of control is identical to that in the EU Merger Regulation. In particular, control relates to rights, contracts or other means which, either separately or in combination and having regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on an undertaking. In light of the above, control is acquired by persons or undertakings that (i) are holders of the rights or entitled to rights under the contracts concerned, or (ii) while not being holders of such rights or entitled to rights under such contracts, have the actual power to exercise the rights deriving therefrom.
The acquisition of control may be in the form of sole or joint control. Sole control is acquired when one undertaking is capable of exercising substantial influence on another undertaking, either on a legal basis (de jure control) or on a factual basis (de facto control). This is mainly accomplished by the acquisition of the majority of voting rights by the acquirer or when a minority shareholder is vested with special rights allowing it to define the business strategy of the acquiring entity. Likewise, joint control exists, where two or more undertakings have the possibility to exercise, directly or indirectly, decisive influence over another undertaking. Decisive influence, in this sense, generally refers to the power of several controlling undertakings to block actions that determine the strategic commercial behavior of another undertaking. In other words, joint control usually exists whereby several undertakings can create a “deadlock” in the decision-making procedure of the jointly controlled undertaking either because they have equal voting rights or because the minority shareholder is vested with veto rights as regards strategically important decisions.
It is noted that for the assessment of control, the possibility of exercising decisive influence on an undertaking is critical, and not the actual exercise of influence. Merger Control Legislation also provides for situations where a concentration shall not be deemed to arise, which are aligned with Art.3 par.5 of EU Merger Regulation.
What are the conditions on minority interest in your jurisdiction?
Acquisition of minority participation can be caught by the Merger Control Legislation if accompanied by rights conferring “de jure” or “de facto” control. De jure control can be established when a minority shareholder of an undertaking is vested with special rights that allows it to determine the business behavior of the undertaking, for example by being entitled to appoint its CEO or executive Board members.
The HCC follows the Jurisdictional Notice Guidelines in this respect. Moreover, a minority shareholder can be deemed to exercise sole control on a ‘de facto’ basis. De facto control can be established when the shareholder can achieve a majority in the entity’s GM Minutes, based on the factual evidence resulting from the voting patterns of the previous years. For instance, a quite dispersed shareholding structure may lead to a passive acquisition of control by a minority shareholder. Joint control may also occur on a de facto basis, when, for instance, the minority shareholders have strong common interests to refrain from acting against each other in exercising their rights in relation to the joint venture. Veto rights granted to minority shareholders, associated with important strategic decisions, as mentioned above, may suffice for the acquisition of control. The ability to create a “deadlock” in the decision-making procedure is deemed to prove the exercise of decisive influence in the sense of Art.5 of the Merger Control Legislation. Such veto rights may be incorporated in a shareholders’ agreement or in the company’s Articles of Association.
The HCC has investigated numerous cases of acquisition of minority participation conferring control over an undertaking. In particular, in a decision published in 2017, the HCC ruled that a concentration could result in the acquisition of joint control, albeit one company held a minority participation in the joint venture, given that an increased BoD majority was required for strategic decision-taking (HCC Mevgal SA/"Delta FoodsSA" and Hatzakos family 650/2017).
What are the jurisdictional thresholds (turnover, assets, market share and/or local presence)?
Concentrations qualify for notification to the HCC, if the national and worldwide turnover of the undertakings concerned meet the following thresholds:
a) the combined aggregate worldwide turnover of all the undertakings concerned is at least €150 million; and
b) the aggregate turnover of each of two of the undertakings concerned in the Greek market exceeds €15 million.
In case any of these thresholds is not met, no Greek merger notification and clearance is required. It should be noted that the minimum of the aforementioned thresholds may be amended, by a joint decision of the Ministers of Finance and Economy, following a recommendation by the HCC.
How are turnover, assets and/or market shares valued or determined for the purposes of jurisdictional thresholds?
For the purpose of assessing the need for an EU or Greek notification as per the above, the aggregate turnover of the undertakings concerned is calculated. The aggregate turnover, pursuant to Art.10 of the Merger Control Legislation, shall comprise the turnover derived in the preceding financial year from the sale of products and/or the provision of services falling within the undertaking’s ordinary activities, after deduction of sales rebates and of value added tax and other taxes directly related to turnover. With regard to the acquisition of part or parts of an undertaking, only the turnover of such part or parts are taken into account. Furthermore, specific rules govern the calculation of the turnover for credit institutions, insurance companies and other financial companies in compliance with the relevant EU Merger Control provision. In particular, the turnover test mentioned above is based on income derived from certain sources, in the case of financial institutions, and on total gross premiums in the case of insurance undertakings.
In principle, the parties taken into account when assessing a merger are the participating parties. However, the Merger Control Legislation also provides that for the calculation of the aggregate turnover for undertakings belonging to a group, reference should be made to the turnover of all the entities that control those undertakings or by whom they are controlled in compliance with the Guidelines of the Jurisdictional Notice, and in particular to:
a) those undertakings in which each of the undertakings concerned, directly or indirectly exercises control, i.e.:
(i) owns more than fifty (50) % of the capital or business assets, or
(ii) has the power to exercise the majority of the voting rights, or
(iii) has the power to appoint more than half of the members of the supervisory board, the administrative board or bodies legally representing the undertakings, or
(iv) has the right to manage the undertakings' affairs;
b) those undertakings which have in the undertakings concerned the rights or powers listed above under (a);
c) those undertakings in which an undertaking as referred to in (b) has the rights or powers listed above under (a);
d) undertakings in which two or more undertakings as referred to in (a) to (c) jointly have the rights or powers listed above under (a).
Is there a particular exchange rate required to be used for turnover thresholds and asset values?
There is no particular exchange rate to convert other currencies into Euros. Where necessary, the average exchange rates of the European Central Bank are used by the HCC.
Do merger control rules apply to joint ventures (both new joint ventures and acquisitions of joint control over an existing business?
Merger Control Legislation applies to market-facing (autonomous) joint ventures in accordance with the EU Merger Regulation and the Guidelines of the Jurisdictional Notice. The HCC in its recent decision, C.A. Papaellinas Ltd / HOB House of Beauty Ltd (54/2017) has ruled that the full-functionality element of a joint venture is examined under various criteria, such as whether the joint venture is intended to function on a lasting basis, has its own management, personnel and assets, the access to sufficient resources, and its ability to shape its own business policy independently from the parent companies.
In case of a creation of a new joint venture, the participating parties of the transaction are the parent entities. In case of an acquisition of control of another company by the joint venture, only the joint venture and the target company are considered for the assessment of the notification thresholds, and not the parent companies, unless the joint venture only constitutes the vehicle for such acquisition of control by the parent companies.
To the extent that the creation of a joint venture, qualifying as a concentration, has as its object or effect the coordination of the competitive behavior of companies which remain independent, such coordination will be appraised in accordance with the criteria laid in Articles 1(1) and 1(3) of Greek Competition Law concerning anti-competitive agreements.
By contrast, in its decision Wind Hellas – Vodafone (Network Sharing Agreement) 698/19/2013 the NTPC issued a decision underlying that the companies created a non-market facing joint venture, which did not constitute a concentration, solely for the facilitation of its parents’ business. Therefore, the creation of the joint venture was assessed in accordance with the general competition rules (Articles 1(1) and 1(3) of Greek Competition Law) and not the Merger Control Legislation.
In relation to “foreign-to-foreign” mergers, do the jurisdictional thresholds vary?
There are no special rules regarding specifically “foreign-to-foreign” mergers. The thresholds mentioned in question 6 would apply to “foreign-to-foreign” mergers as well, to the extent such undertakings generate turnover in the Greek market through other entities of their groups.
For voluntary filing regimes (only), are there any factors not related to competition that might influence the decision as to whether or not notify?
The Greek Competition Law does not provide for voluntary filing regimes.
What is the substantive test applied by the relevant authority to assess whether or not to clear the merger, or to clear it subject to remedies?
Merger Control Legislation follows the EU significant impediment to effective competition (hereinafter “SIEC”) test, pursuant to which a concentration is prohibited, if it may lead to a significant impediment to effective competition in the whole or in a substantial part of the Greek market, especially by creating or strengthening a dominant position.
In respect of horizontal mergers, a merger may lead to significant impediment to effective competition, either by eliminating effective competitive constraints in the market and, consequently, increasing the market power of the undertakings concerned (unilateral or non-coordinated effects) or by altering the nature of competition and increasing the sustainability of collusion among competing undertakings (coordinated effects). The HCC, in its recent decision regarding a notified transaction between Epal SA/ Mitilinaios SA (HCC 682/2019), considers the following elements for the purpose of the assessment of the horizontal merger at stake: the structure of all the relevant markets, the incumbent or potential competitors, the existence of legal or factual entry barriers, the market position of the participating undertakings, the countervailing power of buyers, the available sources of supply and the alternative choices to consumers. As regards coordinated effects, the ease of co-ordination as well as the possibility of deviations from that co-ordination are examined. In this respect, market shares are a useful criterion to be examined, albeit not a decisive one.
With regard to vertical mergers, the HCC considers that they could impose a threat on effective competition, by producing unilateral or coordinated effects, only in case the merged entity enjoys significant market power in the relevant market. In particular, the HCC examines in accordance with the above guidelines whether the notified concentration is expected to result in input or customer foreclosure. For instance, in the recent HCC 34/2018 Sidel Participation/Sidel Engineering case, the HCC found that the merger was not likely to result in foreclosure of downstream or upstream rivals or the strengthening of dominant position given the disperse market shares of competitors in the downstream and upstream markets.
Regarding joint ventures, the HCC does not limit its investigation to whether the joint venture concerned is full-function and long lasting, but it also examines whether its creation is likely to have coordinated effects among the parent companies outside the joint venture (see for example ΗCC Pigasos Ekdotiki/DOL 390/V/2008 and the remedies accepted in HCC 562/VII/2013 mentioned in question 29).
Lastly, concerning conglomerate mergers, the HCC assesses whether there is an overlap in the activities of the undertakings concerned, as evident in its recent decision HCC Chipita/ Nikas 638/2016.
Are there different tests that apply to particular sectors?
The thresholds provided in Article 6 of the Merger Control Legislation apply to all market sectors, save for that of mass media, where special legislation is applicable (L. 3592/2007), in accordance with Article 21 (4) of the EUMR, which enables Member States to impose more specific national provisions for the protection of legal interests not covered by the Regulation, such as media pluralism.
The respective thresholds provided therein are the following:
a) the combined aggregate worldwide turnover of all the undertakings concerned should be at least € fifty (50) million; and
b) the aggregate turnover of each of two of the undertakings concerned in the Greek market should exceed € five (5) million.
The Greek Law 3592/2007 also provides that in the mass media sector, a specific dominance test is used, based on a market share ranging from twenty-five (25) to thirty-five (35) per cent, depending on the particular case.
Recently, the HCC unanimously cleared the acquisition of sole control over ‘Epsilon TV’ by ‘Dimera Media Investments Ltd’ (HCC 652/2017), on the grounds that the post-merger market shares of the new entity would not result in dominance in any relevant market and it did not consequently raise serious competition concerns. The concentration was cleared pursuant to the provisions of Law 3592/2007 on concentrations and licensing of Media corporations.
Are ancillary restraints covered by the authority’s clearance decision?
The HCC follows the principles in the European Notice on restrictions directly related and necessary to concentrations (OJ 2005 C56/03). Thus, a clearance decision covers ancillary restraints that are directly related to and necessary for the concentration.
For mandatory filing regimes, is there a statutory deadline for notification of the transaction?
The Merger Control Legislation provides that the undertakings concerned must notify the concentration to the HCC within thirty (30) days from the date of entry into a binding agreement or the announcement of a public bid or the exchange offer or the acquisition of controlling interest in an undertaking.
Further, according to relevant case law the HCC deems the pre-merger notification deadline to commence upon execution of a binding memorandum of understanding, or a preliminary agreement containing all the necessary terms for the concentration (HCC Home Holdings S.A.– Ioniki Ksenodoxiaki S.A. 633/2016, OPAP S.A. 611/2015). In particular, in the decision Promitheftiki / Masoutis SA HCC 665/2018, the thirty (30) days’ notice deadline was triggered on the date the Trust Agreement - Statement of Intent was signed by the notifying parties.
What is the earliest time or stage in the transaction at which a notification can be made?
Pursuant to the Notification Form Guidelines, a notification may be submitted to the HCC prior to the conclusion of a binding agreement as long as the notifying parties can prove to the HCC their intention to enter into a definitive agreement or, in the event of a public offer, as long as such offer has been announced. The HCC assesses whether a preliminary agreement may be considered to trigger the notification obligation on a case-by-case basis.
With regard to mergers, the HCC accepts submission after the board resolution approving the draft merger deed, but does not provide clearance before the final decision on the merger by the General Shareholders’ Meeting (Eurobank Ergasias- Grivalia Properties HCC 685/2019).
What is the basic timetable for the authority’s review?
Following review of the notified concentration, the HCC may proceed to the following actions:
a) In case the HCC considers that the notified concentration does not fall within the scope of Article 6 par.1 of the Merger Control Legislation,as set out above, the Chairman of the HCC issues a relevant act within one (1) month from receipt of a complete notification.
b) In case the HCC considers that, although the notified concentration, falls within the scope of Article 6 par.1 of the Merger Control Legislation, it does not raise any serious doubts as to its compatibility with competition law requirements in the relevant markets, the HCC approves the concentration within one (1) month from receipt of a complete notification. (Phase I)
c) In case the HCC considers that the concentration raises serious doubts as to its compatibility with competition law in the relevant markets, the Chairman of the HCC initiates the procedure of full investigation of the notified concentration within one (1) month from receipt of a complete notification and informs without delay the undertakings concerned of its decision (Phase II Process). From the date of notification of the undertakings concerned for the initiation of the full investigation procedure of the notified concentration, the undertakings may jointly agree amendments to the notified concentration or may offer remedies with a view to rendering the concentration compatible with competition law in the relevant markets and shall notify such amendments or remedies to the HCC.
If a Phase II Process is opened, the notified concentration shall be brought before the HCC within forty-five (45) days from the date of the initiation of such Phase II Process. The HCC must decide within ninety (90) days from the date of the initiation of the Phase II Process, either to oppose the concentration, if it considers that it substantially restricts competition, or otherwise to approve it. In case such ninety-day period lapses without the HCC having issued a decision, it will be deemed to have approved the concentration and will be obliged to issue the relevant administration act, as unconditionally cleared by the HCC.
Whereas the vast majority of mergers notified to the HCC are cleared in Phase I, there have recently been a number of Phase II merger decisions concerning complex competition issues (i.e. vertical restraints, unilateral and coordination effects etc.), some of which led to the agreement by the undertakings concerned to provide remedies for securing clearance.
Under what circumstances the basic timetable may be extended, reset or frozen?
The aforementioned deadlines may be extended if the undertakings participating in the concentration consent to such extension, or the notification is incorrect or misleading so that the HCC is unable to assess the notified concentration. Furthermore, in case the notification form is incomplete, the HCC is obliged to request from the notifying parties within seven (7) business days from the date of notification the correction of the initial filing. Hence, the one (1) month notification deadline mentioned above is deemed to commence only upon submission of the complete and accurate data. Therefore, the HCC may continue requesting information from the parties, which practically extends the deadlines set out in the law, as is usually the case.
Exceptionally, the deadlines provided shall be suspended, in cases where the undertakings concerned fail to comply with their obligation to provide information in accordance with the respective provisions of the Greek Competition Law and provided that the undertakings concerned are advised accordingly within no more than two (2) days from the expiration of the deadline set out for the submission of the information requested. In such cases, the Phase I and Phase II investigation periods re-commence from the date on which the undertakings concerned provide the requested full and accurate information.
Are there any circumstances in which the review timetable can be shortened?
There are no provisions regarding any shortening of the abovementioned deadlines.
Which party is responsible for submitting the filing? Who is responsible for filing in cases of acquisitions of joint control and the creation of new joint ventures?
All the parties participating in a merger or a joint venture are responsible to file; in an acquisition of control, the party or parties acquiring control shall notify the concentration.
What information is required in the filing form?
Pursuant to the Notification Form Guidelines issued by the HCC (HCC Decision 558/VII/2013) which are almost identical to the EU Form CO (long + short-form), information typically required to complete the pre-merger notification includes: a description of the transaction, information about the parties, detailed information concerning the concentration, the structure of the parties’ ownership and control, market definition (geographic / product markets, relevant / affected markets), information on the affected markets, general terms on the affected market (information on the supply and demand side, barriers to entry, R&D, Cooperation Agreements, Commercial Associations) and the overall market context and efficiencies expected to result from the proposed transaction.
In addition, with respect to concentrations on the mass media sector, the Guidelines provide for specific filing requirements. In particular, the parties of the media-related concentration must provide a list of a) all undertakings or persons that directly or indirectly exert in any way substantially influence the decision-making process of the parties b) all undertakings operating in any market falling within the scope of application of Law 3592/2007, which are directly or indirectly controlled by the parties.
Which supporting documents, if any, must be filed with the authority?
According to the Notification Form Guidelines, the notification should be accompanied by all the relevant documents proving the concentration or a copy of the offer document in case of a public bid, copies of the most recent annual reports and financial statements of all the undertakings participating in the concentration. Also, copies of all relevant market studies on the structure of the affected markets (such as market shares, competition conditions, existing and potential competitors, the purpose of the concentration, potential sales increase or expansion to other markets and the relevant market conditions), a copy of the notification announcement as published in the newspaper, required legalization documents of the persons signing the notification form and the filing fee should be submitted to the HCC along with the notification.
Lastly, a notarized power of attorney for representation by legal counsel and an official translation of the aforementioned documents, in case they are not in Greek, should also be submitted . As a practical matter, the HCC accepts submission of documents in English with translation only of the specific sections or clauses, to the extent necessary.
Is there a filing fee? If so, please specify the amount in local currency.
The notification form must be accompanied with a filing fee, which currently amounts to EUR one thousand one hundred (€ 1,100). The absence of the filing fee results in the inadmissibility of the notification.
Is there a public announcement that a notification has been filed?
A summary of the notification should be immediately after the notification published in a national-wide daily financial newspaper, as well as on the HCC’s website. Such summary is submitted to the HCC together with the notification for clearance.
Clearance and prohibition decisions of the HCC are, also, subject to publication requirements. Prior to the official publication of the decisions, the HCC also publishes a press release on its website at the end of each Phase I or Phase II process.
Does the authority seek or invite the views of third parties?
Third parties are entitled, within fifteen (15) days from the publication of the announcement of the concentration as per the above, to submit comments and provide information regarding the notified transaction. The HCC may also, when considered necessary, while evaluating a notified concentration, send written questionnaires to any undertaking, public or other authorities, and request certain information within a specific deadline (“market testing”). Such questionnaires may be addressed to competitors, customers, consumer organizations and/or other administrative authorities. The HCC follows this practice in many cases, especially when it needs to define a previously uninvestigated market.
Although third parties do not have access to the case file which is treated as confidential, they may be invited to the hearing before the HCC, provided that the authority considers their participation essential for the examination of the case. In addition, third parties may submit written pleadings at least fifteen (15) days before the oral hearing, which must be notified to the undertakings concerned at least five (5) days before the hearing.
What information may be published by the authority or made available to third parties?
Merger Control Legislation imposes a confidentiality obligation. Thus, third parties do not have access to the case file, save for the publication of the notification in a financial newspaper and the HCC’s official website, as well as the HCC’s decision, which is also published on its website and the Government Gazette. The summary public announcement of the clearance decision on the concentration do not contain data which can constitute a business secret, such as turnover figures, market share figures, names of competitors. The parties are entitled to file and the HCC specifically requests the parties to consider filing a “Confidentiality Request”, to the extent they consider that certain information constitutes a business secret and that its publication could have a negative impact on their business.
Does the authority cooperate with antitrust authorities in other jurisdictions?
The HCC cooperates closely with the European Commission as well with the national competition authorities (NCAs) in other EU member states in the framework of the European Competition Network. Furthermore, the HCC cooperates with other international organizations, such as the Organization for Economic Cooperation and Development (OECD) and the United Nations Conference on Trade and Development (UNCTAD).
Specifically, the HCC seeks guidance from NCAs on matters of merger control and makes use of the post-notification referral procedure provided in Art.9 of the EU Merger Regulation. In this regard, the HCC referred to the European Commission, in 2013, the concentration between Olympic Air and Aegean Airlines, pursuant to Article 22 of the EU Merger Regulation, on the basis that the concentration was likely to exert substantial influence on trade between Member States and to affect competition in the relevant markets in Greece and in another Member State, namely Cyprus.
What kind of remedies are acceptable to the authority? How often are behavioural remedies accepted in comparison with major merger control jurisdictions, such as the EU or US?
In case the HCC raises doubts as to the compatibility of a notified concentration with the Merger Control Legislation, the undertakings concerned might need to propose the amendment of the notified concentration by undertaking commitments, either behavioral or structural or both, in order to alleviate the HCC concerns regarding the effects of the concentration on competition in the relevant market. The abovementioned remedies must be submitted to the HCC within twenty (20) days from the commencement of Phase II proceedings.
HCC’s Decision 524/VI/2011 determines the required content of the notification form on proposed remedies. Overall, the HCC follows the EU decisional practice and ECJ’s case law, accepting that commitments should be efficient, adequate and proportionate in order to ensure effective competition in the relevant market. In general, it is considered that structural commitments are preferable, since they are deemed to avert the competition concerns over the longer term. Nonetheless, the HCC has been reluctant to subject the approval of a concentration on only structural measures. In 2013, the HCC approved the concentration between two Greek systemic banks subject to specific structural and behavioural remedies, although the transaction was later aborted. In particular, the parties undertook the commitment to divest a subsidiary. Moreover, the parties committed to abstain from card acquiring processing and apply Chinese Walls in order to avoid the diffusion of confidential information (562/VII/2013).
In 2017, the HCC imposed both structural and behavioral measures when granting clearance to the acquisition by Sklavenitis of sole control over the Marinopoulos supermarket chain. With respect to the structural measures, the acquiring company undertook to divest twenty-two (22) supermarket stores in the prefectures where there was a horizontal overlap and relatively high market shares of the combined entity at the level of relevant local markets within nine months (HCC 637/2017). Likewise, in 2018, the HCC cleared the acquisition of Hellenic Seaways by Attica Group subject to both behavioural and structural commitments for the maintenance of effective competition in the Greek Domestic Ferry sector. As per the commitments undertaken, the Company is bound not to increase ticket prices in certain itineraries, to proceed with the divestiture of certain boats, add routes to certain island connections, and will facilitate the entry of competitors onto relevant markets. The latter decision has not been published yet.
In addition, in 2014 the HCC when assessing a merger between two major milk companies, Delta Foods S.A./ Mevgal S.A (598/2014) ruled that the acquiring party should divest a leading trademark of chocolate milk of the acquired party, with a view to restoring competition and preventing the creation of entry barriers that inhibit competitors from entering the chocolate milk market. Moreover, to ensure the sustainability of the divested asset, the acquiring party undertook the commitment, to give the buyer access to its distribution network for chocolate milk and to have the new entity enter into a toll manufacturing agreement to produce chocolate milk for the buyer at market prices, for a transitional period of two years following completion of the divestiture.
On the contrary, behavioral commitments have been accepted by the HCC in several cases. Recently, the HCC approved the notified merger between Mytilineos S.A and EPALME S.A., subject to behavioral commitments to the parties concerned, such as the condition providing that Mytileneos' supply of primary aluminum production is not subject to the supply of pure aluminum waste recycling services by EPALME(in HCC 682/2019). Moreover, in its Decision 650/2017 the HCC approved the notified merger between Delta Foods S.A. and Mevgal S.A., while imposing several behavioral commitments, such as confidentiality obligations and the condition that the two companies will purchase raw cow’s milk from producers in twelve prefectures at prices that would be no lower than a minimum guaranteed price.
Further, in its Decision 575/2013, the HCC approved the merger between Linnaeus Capital Partners B.V., Dias S.A. and Selonda, subject to the adoption of certain behavioural measures. Specifically, Linnaeus Capital Partners B.V. and the companies directly or indirectly controlled by it have undertaken the following commitments: (A) To suspend the exercise of the voting rights of Linnaeus Capital Partners B.V. or the companies directly or indirectly controlled by it , for a period of 2 years from the date of completion of the merger, regarding the election of the Board of Directors of Nireus Fisheries SA., a company in which Linnaeus holds shares (B) Not to increase (directly or indirectly) their participation in the share capital of Nireus Fisheries SA and (C) To refrain from exercising, in their capacity of a shareholder of Nireus Fisheries SA, a minority interest in requesting the provision of sensitive commercial information, in particular for customers, sales, production, prices.
What procedure applies in the event that remedies are required in order to secure clearance?
The HCC may attach to its clearance decision conditions and obligations intended to ensure that the undertakings concerned shall comply with the commitments they have entered into vis-à-vis the HCC with a view to ensuring effective competition in the relevant markets. The undertakings concerned must offer remedies within twenty (20) days from the date the concentration is brought before the HCC, in the context of the Phase II Process. The HCC may, however, in exceptional cases, accept commitments by the undertakings even after the lapse of the twenty (20) day period. In this case the HCC may decide and notify to the undertakings concerned the extension of the ninety (90) day period to one-hundred and five (105) days.
What are the penalties for failure to notify, late notification and breaches of a prohibition on closing?
If the undertakings breach their obligation to notify timely a concentration which meets the turnover thresholds, the HCC may impose fines of at least EUR thirty thousand (€ 30,000) and up to ten (10%) percent of the aggregate turnover of the undertakings concerned on a group basis. The HCC, in calculating the fine, takes into account the financial power of the undertakings concerned, the number of the affected markets and the level of competition therein. It is noted that the penalties imposed by the HCC are not exceptionally high, since the Commission considers the effect of the infringement on the Greek market.
In case of an implementation of a notifiable transaction prior to receiving clearance from the HCC, the HCC may impose fines of at least EUR thirty thousand (€ 30,000) and up to ten (10%) percent of the aggregate turnover of the undertakings concerned. Moreover, the HCC may order, by virtue of a decision, the separation of the undertakings concerned, in particular through the dissolution of the merger or the sale of the shares or assets acquired, with a view to restore the conditions existing prior to the implementation of the concentration or take any other appropriate measure so as to ensure the dissolution of the concentration. If the parties fail to comply with the abovementioned decision of the HCC, they may be subject to a daily penalty of EUR ten thousand (€10,000) for each day of non-compliance.
Recently, the HCC fined Dimera Media Investments L.T.D. €50,000 for failing to notify the transaction and € 30,000 for implementing the acquisition of control over Pigasos Ekdotiki S.A. prior to receiving clearance (HCC 655/2018), whereas in 2014 the HCC ultimately decided not to impose a fine on Marinopoulos SA for the prior implementation of its acquisition of exclusive control over OK Anytime Market, as it was not proved that the failure of suspending the transaction was willful (HCC 586/2014).
Finally, in terms of criminal sanctions, the undertaking’s executives may be subject to a fine between EUR fifteen thousand (€ 15,000) and EUR one hundred fifty thousand (€ 150,000) for violation of the Merger Control Legislation.
What are the penalties for incomplete or misleading information in the notification or in response to the authority’s questions?
In the event that requested information is delayed, obstructed or denied or the information provided is inaccurate or incomplete, the HCC may impose a fine to the undertakings or their executives of at least EUR fifteen thousand (€ 15,000) up to one (1%) percent of the aggregate turnover of the undertakings concerned.
In addition to the civil sanctions, those that refuse or delay to provide the information requested by the HCC may be subject to a sentence of imprisonment of at least six months, whereas where the person liable is a civil servant or an official of a public law legal entity, the HCC is entitled to refer the matter to the competent supervisory authority for disciplinary proceedings.
The HCC is usually reluctant to proceed with the imposition of penalties for providing incorrect or misleading information in notification proceedings. Nonetheless, in 2003 Carrefour-Marinopoulos was fined 8,804 euros for delaying to provide the information requested (HCC 248/III/2003), while in 2011 the HCC imposed a fine of 20,000 euros and 15,000 euros on two gas-providing companies for delaying to provide the information requested and providing incorrect information respectively (HCC EPA Thessalias / EPA Thessalonikis 516/VI/2011).
Can the authority’s decision be appealed to a court? In particular, can third parties who are not involved in the transaction appeal the decision?
The decisions of the HCC may be appealed before the Athens Administrative Court of Appeal within sixty (60) days from their publication or, in the absence thereof, of their notification to the parties. Any party proving direct, personal and present legitimate interest may appeal the HCC decision before the Athens Administrative Court of Appeal.
Moreover, the decisions of the Athens Administrative Court of Appeal may be further appealed before the Council of State within sixty (60) days of its notification to the parties. However, to our knowledge, no successful appeals against an HCC decision on Merger Control Legislation have been filed yet.
What are the recent trends in the approach of the relevant authority to enforcement, procedure and substantive assessment?
In most cases the HCC’s assessment of concentrations results in unconditional clearance. Nonetheless, over the past decade the HCC has been imposing various structural or behavioral measures as a precondition of clearance in specific transactions, where serious competition concerns are raised. For the period from 2015 to 2019, the HCC imposed commitments in five cases, aiming at reinforcing competition in the market. For instance, in 2017, the HCC cleared the acquisition by the Sklavenitis supermarket chain of entities/parts of the Marinopoulos supermarket chain, both chains being among the most important supermarket chains in Greece, subject to behavioural and structural commitments (divestiture of supermarket stores in specific areas) (HCC 637/2017), while in 2018 the HCC granted clearance on a major concentration in the ferry market (acquisition of Hellenic Seaways by Attica Group) upon behavioural and structural commitments facilitating the access of potential competitors to ferry routes where the acquired entity was dominant.
Prohibition of a concentration is uncommon. In particular, only one prohibition decision has been issued by the HCC, in 1996, and it was reversed by a decision of the competent ministers at the time (HCC 40/1996).
It should also be noted that in the aftermath of the financial crisis in Greece, the HCC has cleared acquisitions in the framework of privatization programmes in the Greek market. In 2016, the HCC cleared without remedies the acquisition by Fraport of 14 Greek regional airports under concession agreements (HCC 626/2016) as well as the acquisition by COSCO HK of sole control over the Piraeus Port, subject to commitments (HCC 627/2016), whereas in 2013 the HCC cleared the acquisition by OPAP, the Greek monopoly of the exclusive license to operate state lotteries for a period of twelve (12) years (HCC 573/vii/2013).
Moreover, the HCC played a prominent role in overseeing a thorough restructuring of the Greek banking system, ensuring both the timely recapitalization of major systemic banks as well the economic viability of the industry as a whole through a series of concentrations. Since 2012, the HCC assessed a number of concentrations in the banking sector , mainly six mergers between Greek credit institutions with surving entities the four Greek systemic banks (National Bank of Bank of Greece, Piraeus Bank, Alpha Bank and Eurobank).
The HCC also cleared in a Phase II process and after accepting specific remedies the concentration between two of the above systemic banks, but the transaction was later aborted (HCC 562/VII/2013).
To our knowledge, the HCC has not recently issued prohibition decision, although during the period from 2015 to 2019 it has imposed fines for failure to notify and for gun-jumping in two cases.
Are there any future developments or planned reforms of the merger control regime in your jurisdiction?
Currently, the HCC has provided for public consultation draft guidelines setting out the methodology and criteria for the prioritization of the assessment of cases before it. These relate to the General Competition provisions of Articles 1 and 2 of the Greek Competition Law (101 &102 TFEU), and not to the Merger Control Legislation.