Private antitrust litigation is a developing area and has been enhanced by the transposition of Directive 2014/104 of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the member states and of the European Union (EU Damages Directive) into Greek law. This was achieved with the enactment of Law 4529/2018 “on the transposition into Greek law of Directive 2014/104/EU of the European Parliament and the Council of November 2014, on certain rules governing actions for damages under national law for infringements of the competition law provisions of the member states and of the European Union and other provisions.” This new piece of national legislation aims to reiterate the principles and rules provided under the EU framework and introduce effective mechanisms which have been deemed important in light of current legal trends and market developments. It should be noted that Law 4529/2018 prevails over the general rules of liability under the Greek Civil Code. The main changes introduced with this framework include:
It appears, however, that no Greek court decisions on private litigation based on either the EU Damages Directive or Law 4529/2018 have been published as yet.
As explained in 1.1 Recent Developments in Antitrust Litigation, the EU Damages Directive was transposed into the Greek legal order in 2018. Although this field is expected to develop over the next few years, so far there have not been any notable developments in the relevant case law.
Claims for damages for breach of competition law were exclusively subject to the Greek Civil Code and the Code of Civil Procedure (CCP) prior to the enactment of Law 4529/2018 which introduced specific provisions for the effective promotion of competition law. These provisions apply simultaneously with the provisions of the Civil Code and the CCP and are, accordingly, interpreted on a case-by-case basis. Law 4529/2018, as lex specialis prevails over other national rules on civil procedure and the Greek Civil Code and where there are no provisions in said law addressing specific issues, national rules on civil procedure will be deemed applicable. The provisions of Law 4529/2018 constitute the basis on which actions, both standalone and follow-on, can be brought in the context of antitrust infringement situations.
Standalone actions can be brought without any prior finding of a competition violation by the European Commission, the Hellenic Competition Commission (HCC), the Hellenic Telecommunication & Post Commission (EETT), or any other member-state competition authority. Liability for damages for an antitrust infringement is independent of any prior finding of an infringement by one of the aforementioned authorities. It is therefore entirely possible that a claimant may file a damages lawsuit before the Greek courts, claiming that an undertaking which infringed competition law led to the claimant’s damage.
Follow-on actions are permitted under Law 4529/2018. Decisions of the HCC, the EETT and the European Commission that are not subject to appeal, and final judgments of the Greek and EU appellate courts on the question of a competition law infringement, will be binding to Greek courts. On the other hand, decisions subject to appeal and made in a preliminary/provisional context will not be binding on Greek civil courts.
Article 13 of Law 4529/2018 designates the Athens Court of First Instance and the Athens Court of Appeals (in case of an appeal) as the competent courts to adjudicate over damages claims in Greece. It is also provisioned that special chambers in each of the two courts will be set up to hear such cases. These chambers will comprise of national judges with specialisation in competition law and/or EU law. Should there not be enough judges with adequate expertise, the seats can be filled by judges with general knowledge of commercial law. Up until now, these special chambers have not been set up. Consequently, should a damages claim be filed today before the Greek courts, it will be brought before the regular chambers of the Athens courts.
The finding of antitrust infringement in final decisions (decisions not subject to any appeals) of the HCC, the EETT and the European Commission, as well as the Greek and EU appellate courts, is binding for Greek civil courts when ruling on an action for damages. Consequently, in the case of a follow-on action, the finding of an antitrust infringement per se, is considered to be incontestable. Greek courts nevertheless have the opportunity to ask for a preliminary ruling of the Court of Justice of the EU (CJEU) should they wish to receive guidance on the interpretation of Articles 101 TFEU and 102 TFEU.
On the other hand, should a standalone action for damages be brought before the Greek courts, such courts are not prevented from deliberately assessing decisions of other national competition authorities or foreign courts, which are not, as such, binding over the Greek courts.
Under Article 9(2) of Law 4529/2018, final judgments finding a violation issued by the courts or competition authorities of other EU member states respectively, when submitted before the Greek courts in the context of a damages claim, shall create a presumption of infringement of Article 101 TFEU and/or Article 102 TFEU, although this presumption is rebuttable.
Similarly Article 12(2) of Law 4529/2018 provides that a court may take into consideration damages claims filed by other claimants active at different levels of the value chain, the respective court decisions, as well as any other information available.
Burden of Proof
The Greek courts follow an adversarial system when examining the burden of proof. In practice, the courts are free to assess any evidence that is brought forward by the parties. However, the parties bear the burden of proof for any of the facts and arguments they make. In particular, the CCP stipulates that each party shall provide adequate proof to support its claim. Evidently, in a damages claims case, the claimant bears the burden to prove that the conditions for the claim are met. Specifically in actions for damages for antitrust infringements, the claimant would normally be expected to prove that:
On the other hand, the defendant bears the burden to prove any claims they raise, eg, counter-arguments to the claimant’s allegations.
According to Article 11 (2) of Law 4529/2018, should the defendant raise the "passing-on" defence in a damages case, then the defendant bears the relevant burden of proof. Similarly, according to Article 11 (4) of Law 4529/2018, if the passing-on defence is used as a ground to bring a damages claim before the courts, then the claimant bears the relevant burden of proof.
Standard of Proof
Concerning the relevant standard of proof, it is not required that judges are absolutely certain of the truthfulness of the evidence brought before them. Judges can adopt decisions provided that there is no reasonable doubt about the truthfulness of the facts. In practice, if the court is convinced that the facts of a case are true, the standard of proof has been met.
Under Article 3 of Law 4529/2018, an action for damages can be brought by any natural person or legal person, assuming that it has suffered damage as a consequence of a competition law infringement. Such persons are entitled to full compensation for the damage incurred. It is therefore implicitly allowed for indirect purchasers to raise a damage claim before the Greek courts, assuming they have suffered damages.
The CCP has been repeatedly amended with the aim of decreasing the applicable procedural timeframes and, as a result, the length of the proceedings. In general, civil litigation may take up a considerable period of time. A special chamber of the Athens Court of First Instance and the Athens Court of Appeal, specifically for antitrust damages actions, will be introduced pursuant to Law 4529/2018. However, as these chambers have not yet been set up, a shorter timeframe cannot yet apply. There is usually a period of six to eight months from the date of filing an action until the court sets a hearing date (except for injunctive measures). It can therefore take approximately six to eight months from the date of filing an action for the hearing date to be scheduled by the court, and another period of six to eight months until the court passes judgment.
A case in any court may be suspended if the dispute depends, in whole or in part, on either another lawsuit pending before a civil or administrative court, or before an arbitral tribunal, or in a case that is being investigated by an administrative authority. The case may be suspended up until the respective final or irrevocable decision, or an administrative authority's decision that is not subject to further recourse (Article 249, CCP). Such a suspension may result in a further delay. The courts may also apply for a preliminary ruling to the CJEU (Article 267 TFEU), which would result in further delays.
There is no specific legislation in Greece for collective actions in private antitrust litigation. However, the general framework applicable in Greece allows for such collective actions in the context of antitrust litigation.
Article 10 paragraphs 15 and 16 of Law 2251/1994 allows associations of consumers with more than 500 members to bring a collective action. Although violations of antitrust laws are not expressly included in the indicative list referring to certain possible causes of action, this should not be viewed as blocking such associations from bringing such action. This law allows associations to file an action for moral damages, request that an undertaking is ordered to cease its unlawful conduct, as well as to submit interim measure requests.
Paragraph 15 of this Article also provides that an association of consumers may:
At the same time, pursuant to the CCP, claimants can also file collective actions in the following cases:
To date, there appear to have been no collective antitrust damages claims filed in the form of a class action.
Although no such proceedings are available specifically for antitrust damages claims, as discussed in 3.1 Availability, it would be possible to use the general framework provisions mentioned to activate such proceedings. Associations of consumers would then have standing in such proceedings.
Pursuant to Greek civil law and rules on procedure, no judicial oversight/involvement is required for settlements.
The Greek legal framework does not provide for acceleration rights or the equivalent of summary judgment or strikeout proceedings, even in the case of a straightforward case. However, the length of the proceedings may vary depending on the complexity of the case.
In particular, the court may postpone or suspend proceedings at its own or following a party’s request. It would be possible to suspend an action for a competition law violation, if criminal proceedings are still pending in the same case before the Greek criminal court. A request for suspension can be based on the potential impact that the criminal court's final decision will have on the entire case and said proceedings (Article 250, CCP).
Up until the transposition of the EU Damages Directive into the Greek legal order, through Law 4529/2018, effective from March 2018, the general provisions of the Civil Code (applicable law) and the Code of Civil Procedure (jurisdiction) applied.
With the enactment of Law 4529/2018, jurisdiction and applicable law are governed by this law. Law 4529/2018 mirrors the EU Damages Directive to a great extent. In addition, general provisions of the Greek Civil Code and the CCP still apply, provided that they do not contradict Law 4529/2018. Actions for damages for competition law violations are also governed by general provisions in the Greek Civil Code (Article 914 et seq).
According to Article 8 (1) of Law 4529/2018, the limitation period to bring an action for damages before the Greek courts is five years. Under the previous regime, when the general rules of the Civil Code applied, the limitation period was identical, according to Article 937 of the Greek Civil Code.
The limitation period starts from the date the claimant was made aware of (or could reasonably be expected to know about) the competition law infringement, the damage incurred and the identity of the infringer. If the competition law infringement ceased after the above starting point, the limitation period starts from the day the infringement ceased.
In any case, there can be no claims raised before the courts stemming from a specific competition law infringement 20 years after the date the infringement ceased.
According to Article 8 (2) of Law 4529/2018, the limitation period is suspended if a competition authority takes any measures to examine an infringement or opens a formal investigation. The suspension of the limitation period can last up to one year after the irrevocable decision of the competition authority or the termination of any other type of proceedings.
According to Article 8 (5) of Law 4529/2018, the limitation period can also be suspended for as long as the parties are in the process of settling their dispute. In such a case, the suspension is only applicable to the parties that took part in the settlement proceedings.
Finally, general rules of the Greek Civil Code are arguably applicable, as they do not seem to contradict Law 4529/2018. These rules refer to:
Under both circumstances, it should be noted that the limitation period will resume after the suspension/interruption is over.
The disclosure of evidence in damages claims diverges from the general rules under the CCP, making the request to disclose evidence easier for the parties.
Under Article 4 of Law 4529/2018, the claimant can ask the court to order the defendant or third parties to disclose such evidence as they are holding, which the claimant says could prove its arguments. However, the court will grant the claimant’s request only if the claimant has already produced evidence that supports (at least) the plausibility of this claim. In addition, the court must limit the disclosure of evidence to what it deems proportionate.
It should be noted that the claimant does not have the obligation to specify with precision the evidence it requests to be disclosed, but rather it is sufficient to indicate the type of evidence requested as precisely as possible. Given the lack of any jurisprudence, it is still not clear to what extent the evidence requested to be disclosed must be described, but it is safe to assume that some flexibility would apply.
While assessing the proportionality of an order to disclose evidence, the court will take into account the following factors, which mirror the EU Damages Directive:
Under Article 6 of Law 4529/2018, where the disclosure of evidence pertains to evidence that is included in the files of a competition authority, there are additional applicable provisions.
Firstly, while assessing the proportionality of an order to disclose evidence, the court will have to take into account some additional factors, which once again mirror the EU Damages Directive:
The court can order the disclosure of any evidence available to a competition authority. However, if the proceedings before the competition authority are still ongoing, the court cannot ask for disclosure of the following types of evidence (which can only be disclosed after the conclusion of the proceedings before the competition authority):
Under Article 6(8) of Law 4529/2018, Greek courts only have authority to request the disclosure of documents directly from the competition authorities, when no party to the proceedings, or other third party, can produce this evidence. Should a natural or legal person produce evidence before the court that falls under the three categories mentioned above, the court will disregard this evidence and the natural or legal person submitting this piece of evidence will be liable for a fine of up to EUR100,000.
Similarly, there are certain restrictions for leniency applications and settlement agreements that are explained in 5.3 Leniency Materials/Settlement Agreements.
Pursuant to Article 4 (6) of Law 4529/2018, when ordering the disclosure of evidence, Greek courts should ensure that the EU or national rules on legal professional privilege are respected. The reference to both sets of rules aims to afford maximum protection of legal privilege between the EU and national rules. In fact, the Greek rules on legal professional privilege are deemed to offer greater protection against the discoverability of documents than the EU rules do.
Legal professional privilege is recognised and protected by the Greek constitution, the attorneys’ code of conduct, the Code of Civil Procedure, the Code of Criminal Procedure and the Criminal Code. The general rule is that legal professional privilege applies to all information communicated by the client to the lawyer and any exceptions to this rule are specifically prescribed by provisions of law. Lawyers should keep in confidence anything entrusted to them by their clients at the time of their engagement as well as in the course of the execution of their clients’ mandate. It should be noted that any type of communication is caught by legal professional privilege (written, verbal, electronic, etc). Moreover, contrary to EU rules on legal professional privilege, the Greek rules do not distinguish between communication with in-house and external lawyers, therefore legal professional privilege in Greece covers communications with in-house lawyers as well. It should, however, be noted that if an in-house counsel performs other administrative duties that are not relevant to the provision of legal services, then any communication under such role will not be covered by legal professional privilege.
Given that there is no Greek jurisprudence at the moment, the interpretation of the scope of legal professional privilege by the Greek courts might differ if foreign competition authorities or the European Commission are involved in the investigation. As mentioned above, the scope of legal professional privilege under EU rules is not the same as that of the Greek courts and the latter might interpret the scope differently where that is the case.
Under Article 6(5) of Law 4529/2018, Greek courts may not order disclosure of the following types of evidence:
However, claimants can ask the courts to review any documents held by the competition authority, in order to determine if these documents actually fall under the three categories mentioned in 5.2 Legal Professional Privilege. Even if that is the case, however, no party can access such documents.
For more information on the disclosure of evidence, see 5.1 Disclosure/Discovery Procedure.
Examining witnesses in actions for damages for competition law violations before the civil courts is entirely at the court's discretion, and will only be permitted in such cases where the court deems it necessary following review of the case’s file (Article 237, CCP). Parties suggesting witness examination must ensure that the witnesses are present to testify. Upon the court’s order, witnesses who are summoned must appear, and if they fail to do so without justification, they will be liable for the expenses incurred due to their absence, and possibly a fine imposed by the court. The judge will also examine the witnesses, if any, and will quite often intervene and ask questions in order to determine the facts of the case. Witness statements are not permitted – however, sworn statements (affidavits) are.
The court can appoint one or more expert witnesses if it deems that special skills and knowledge are required in order for the court to reach a decision. The parties can also ask for the appointment of an expert witness and the court is obliged to grant such a request if it deems that special skills and knowledge are required. Parties can, of course, individually introduce testimonies of party-appointed expert witnesses in their submissions or during oral hearings. Evidence is submitted in writing in the file submitted before the court. In exceptional circumstances, witnesses can be examined orally, in which case, the witnesses need to solemnly swear that they will testify the truth. Cross-examination by opposing party's counsel is usually permitted (Articles 368–392, CCP).
Under Article 14 of Law 4529/2018, the court is competent to estimate the damages incurred, even on a speculative basis, if the precise amount of the damage is impossible or extremely difficult to calculate, based on the evidence available to the claimant. The court is called to estimate damages by assessing the type and the extent of the infringement as well as the diligence of the claimant to gather and use all the required evidence for a damages claim. Under Article 3 of Law 4529/2018, the damages incurred include not only the actual damages suffered (positive damage), but also the loss of profit and the payment of interest. This approach is also reflected in Article 298 of the Greek Civil Code. In addition, non-pecuniary damage can be awarded to the claimant under Article 932 of the Greek Civil Code. The basis for awarding non-pecuniary damage is usually the damage incurred associated with the reputation of the natural or legal person.
Positive damage refers to the reduction of the claimant’s assets and the increase of their liabilities, while loss of profit refers to the profit (increase of assets and/or reduction of liabilities) that would have occurred had the competition law infringement not taken place. The loss of profit can only be speculative, and it is calculated based on the normal course of business, or taking into account any preparatory work undertaken by the claimant.
In the Greek legal order, damages are awarded based on the compensatory-restorative principle and, therefore, exemplary and punitive damages are not available.
The European Commission has issued a communication on quantifying harm in antitrust damages actions, as well as a practical guide. These documents are not binding over the Greek courts, but it would reasonably be expected that they be taken into consideration while assessing the damages incurred in a damages claim. Moreover, under Article 14 (4) of Law 4529/2018, Greek courts are entitled to seek the opinion of the HCC over the quantification of damages.
It remains to be seen how the Greek courts will approach the issue of the assessment of damages, as there is no relevant jurisprudence at the moment.
Under Article 11 of Law 4529/2018, the "passing-on" defence is available to both the defendant and the indirect purchaser.
Concerning the defendant, under Article 11 (2) of Law 4529/2018, the defendant can bring forward against the claimant the passing-on defence, claiming that any overcharge resulting from the competition law infringement was passed on further down the value chain. The defendant will of course bear the burden to prove that this is true. In practice, the defendant will have to show that any overcharge caused by the competition law infringement was passed on by the claimant further down the value chain. Consequently, the overcharge was not borne by the claimant, but rather by other purchasers, effectively reducing the amount of damage incurred by the claimant. However, the passing-on defence only affects the positive damage incurred by the claimant, and not the loss of profit. Should the defendant prove that any overcharge has been passed on, a claim for loss of profit is then established for the injured party, which is linked to the passing-on of the overcharge.
Concerning indirect purchasers, under Article 11 (4) of Law 4529/2018, it is also possible to raise the passing-on defence. The passing-on of the overcharge is established if the indirect purchaser can demonstrate that:
Under Article 3 (3) of Law 4529/2018, interest on the awarded damages covers the whole period, from the time harm occurred up to the time compensation was paid.
Under Article 10 of Law 4529/2018, the undertakings that jointly infringed competition law are jointly and severally liable. A claimant can seek to be fully compensated by any of the jointly liable undertakings.
There are two exceptions to the general rule provided in Law 4529/2018. In particular, under paragraph 2 of Article 10, if any of the jointly liable undertakings qualifies as a small or medium-sized enterprise (SME), this undertaking is only liable for its own direct and indirect purchasers provided that (cumulatively):
However, the above exception is not applicable if (disjunctively):
The second exception concerns the undertaking which has applied for leniency. Under Article 10 (4) of Law 4529/2018, if the infringing undertaking has immunity under a leniency application, this undertaking is jointly and severally liable:
Pursuant to Article 10 of Law 4529/2018, an undertaking infringing competition law which fully compensated the injured parties has the right to claim part of that compensation from the other jointly liable parties. The court will determine the extent of the liability of each party, depending on the responsibility that each party bears for the damages incurred. The amount of contribution of an infringer which has been granted immunity from fines under a leniency programme shall not exceed the amount of harm it caused to its own direct or indirect purchasers or providers.
The court’s assessment of each jointly liable party's liability will be based on the level of responsibility for the harm caused by them and if this cannot be assessed, it will be equally attributed to all remaining jointly liable parties (Article 927 Greek Civil Code). However, to the extent that the infringement of competition law caused harm to injured parties other than the direct or indirect purchasers or providers of the infringers, the amount of any contribution from an immunity recipient to other infringers shall be determined in light of its relative responsibility for that harm (Article 10 Law 4529/2018). There are specific provisions for jointly liable parties’ disputes resolved by consensual settlement.
There are no specific provisions for interim measures in the context of competition law infringements. Therefore, the general rules on interim measures in the CCP are applicable.
The courts may, in urgent cases or in order to address any present and imminent risks, apply for injunctive relief to secure or maintain a right or to regulate a situation, by stipulating that the right may be dependent upon a condition or a time limit. The interim measures may also be ordered during main proceedings (Article 682 et seq, CCP). The judge will decide the location and time of the hearing (depending on the urgency of the matters subject to Article 686, CCP).
When dealing with urgent matters, the court may discuss the application without summoning the person against whom it is addressed. If the applicant and those against whom the application is filed appear voluntarily before the judge of the single-member district court, or the magistrate, the application shall immediately be discussed (Article 687, CCP).
The court will issue a judgment on interim remedies/precautionary measures including a brief justification based on the existence or non-existence of the right to be secured or the occurrence of the imminent danger or urgent case, which will be published no later than 48 hours following the end of the discussion and submissions will be expected in the 48 hours following their filing.
If a main application is dismissed as unfounded, the applicant for injunctive relief shall pay for the damage caused by the execution of the order which they ordered, or the guarantee paid, only if they had actual knowledge, or ignored due to gross negligence, that there was such a right (Article 703, CCP).
Injunctive relief can be obtained against third parties. The consequences of non-compliance with the terms of an injunction are:
Article 15 of Law 4529/2018 expressly stipulates that the parties can resolve their dispute amicably.
According to the preamble of Directive 2014/104/EU, “achieving a ‘once-and-for-all’ settlement for defendants is desirable in order to reduce uncertainty for infringers and injured parties. Therefore, infringers and injured parties should be encouraged to agree on compensating for the harm caused by a competition law infringement through consensual dispute resolution mechanisms, such as out-of-court settlements (including those where a judge can declare a settlement binding), arbitration, mediation or conciliation. Such consensual dispute resolution should cover as many injured parties and infringers as legally possible.”
Parties may resolve a dispute arising from a competition law violation prior to the initiation/filing of an action or at any stage of the proceedings, taking into consideration the specific circumstances of each case.
Private disputes may be subject to arbitration pursuant to Article 867, CCP. By transposing Directive 2008/52/EC, EU member states incorporated relevant rules on mediation in civil and commercial matters. In Greece, the relevant mechanisms are regulated by Greek Law No 3898/2010 and Law No 4512/2018, both applicable to civil and commercial disputes to the extent that the relevant rights and obligations are “at the parties’ disposal” .
Types of ADR Available
The national legal framework, according to the CCP, includes certain provisions regarding mediation as one of the fundamental principles of procedural law (Articles 116A and 214C, CCP). Various types of ADR are provided for under Greek law, such as: out-of-court dispute resolution, judicial/court settlement, judicial mediation and mediation for resolving disputes in an amicable, cost-effective as well as time-effective way. As all these mechanisms are optional, there will be no sanctions if parties refuse recourse to ADR according to the national framework applicable.
According to Law 4529/2018, consensual dispute resolution can be suspended for up to two years by respective national courts presented with an action for damages, where the parties thereto are involved in consensual dispute resolution concerning the claim covered by the action for damages. Following a consensual settlement, the claim of the settling injured party is reduced by the settling co-infringers' share of the harm that the infringement of competition law inflicted upon the injured party.
There is no legal framework that specifically deals with third-party litigation funding in Greece. In the absence of any specific framework, third-party litigation funding is permissible under the general contract rules of the Greek Civil Code, which do not, however, set out any specific requirements in that respect.
The CCP is setting out the framework for allocation of costs, as there are no relevant provisions in Law 4529/2018. Costs are usually borne by the defeated party according to Article 176 et seq, CCP.
In practice, however, the defeated party may refuse to pay the judicial costs awarded by the court to the winning party by its own volition. In that case, the winning party may seek a court order to claim its enforcement. It should, however, be noted that the judicial costs awarded by the Greek courts are usually significantly lower than the judicial costs actually incurred by the winning party, which discourages the winning party from seeking the collection of court-awarded judicial costs.
Judicial costs may also be split by the court when the court has partially ruled in favour of both parties.
Under the CCP, any decision of the Court of First Instance can be appealed before the competent court. The appeal must be based on errors of law and/or errors of fact. Appeals are usually filed by the defeated party, but it is not prohibited for the winning party to also file an appeal, if the Court of First Instance has only partially accepted its claim. The decision of the appellate court can be further appealed before the Supreme Court, in which case, the appeal must be based solely on errors of law.
Pursuant to Article 13 of Law 4529/2018, the – still to be founded – specialised chambers in the Athens Court of First Instance will have exclusive competence to deal with damages cases. Once these chambers are established, the competent appellate court will be the Athens Court of Appeal.
This article provides an overview of the current state of antitrust litigation in Greece and the relevant trends observed in this jurisdiction, covering the regulatory framework, the current stance of the Greek competition authorities, and any developments relating to the recent crisis caused by the COVID-19 pandemic.
Overview of Antitrust Litigation
There is no doubt that antitrust litigation in Greece is still at an embryonic stage. Even though a legal basis for claiming antitrust damages in Greece has existed for years, there have been only a handful of antitrust litigation cases in Greece, and even then, damages claims were raised as ancillary to the main claim.
More specifically, before the enactment of Law 4529/2018, transposing Directive 2014/104/EU, it was possible to claim antitrust damages under the general civil liability framework. However, due to the absence of lex specialis, claims for antitrust damages were usually raised as ancillary before the courts and not as standalone claims. It is also interesting to note that the antitrust damages cases before the Greek courts exclusively concerned claims based on provisions for the abuse of dominant position. The lack of antitrust damages cases based on cartel-like practices is not easy to explain, but it is probably attributable to the lack of significant enforcement from the Hellenic Competition Commission (HCC).
Similarly, the abuse of dominance damages cases raised before the Greek courts have not been follow-on actions, but standalone cases. The disputes have concerned a variety of abusive practices, pricing and non-pricing related. The main subject of the lawsuits was usually the validity of a contract, while the compensation claims were raised on an ancillary basis.
In addition to the above, as in most jurisdictions, raising antitrust damages claims in Greece poses problems known to the antitrust litigation world, such as the difficulty in discovering documents/evidence, the difficulty stemming from the burden-of-proof threshold being quite high, and the lack of sophistication in relation to the calculation of damages.
With respect to the discovery provisions, in particular, it is interesting to note that fundamental issues, such as the discoverability of leniency applications, have never been tested before the Greek courts. The HCC has expressed the opinion that should a discovery application be lodged by a Greek court, it would be able to successfully justify not providing access to certain documents. However, this remains to be tested.
Since the enactment of Law 4529/2018, in March 2018, to the best of our knowledge, no Greek court decisions ruling on a case related to antitrust damages have been made publicly available.
Intensified Enforcement of Competition Rules
The appointment of a new head at the HCC has brought a noticeable increase in enforcement by the HCC, currently through numerous ex officio investigations in several sectors (eg, e-commerce, basic consumer products and fintech). It is still too early to tell if these investigations will lead to subsequent investigations against certain undertakings. In parallel, more and more undertakings with a local presence in Greece use competition policy and rules as a tool, leading to an increased number of competition law complaints.
Evidently, all stakeholders have an interest in using competition law more actively in Greece. As such, it can be anticipated that the HCC’s enforcement efforts will pick up the trend in the coming months, which could lead to the adoption of numerous infringement decisions. The existence of a specialised antitrust damages legal framework creates favourable conditions for the subsequent development of antitrust litigation. Therefore, despite the lack of meaningful antitrust litigation cases in Greece to date, the prevailing conditions point towards a shift in this trend.
Relevant to the HCC’s enforcement efforts is the recent Decision 696/2019 on the determination and quantification of the criteria for setting the priority basis of a point system, replacing the previous relevant decisions of the HCC on this matter. The main objective of the updated point system is to enhance the HCC’s efficiency and effectiveness in preserving the public interest. The HCC put forward a new methodology to measure efficiency, on the basis of a cost-benefit analysis, to shapes its priorities. With the new point system, high-efficiency cases are prioritised and investigated, these being cases with increased prospects of success while at the same time requiring minimum output for the HCC to take action. The new system takes into account factors that were used in the previous point systems (such as the geographical extent of a practice, or whether the matter concerns novel legal issues), however, the new point system also places more emphasis on public interest as a factor to prioritise cases and assigns, for example, priority to cases deriving from complaints by consumer associations with which the HCC has concluded a memorandum of co-operation. This could be of particular relevance in this jurisdiction, as consumer associations have the right to bring collective actions in claims for damages for a number of subject matters, including antitrust infringements, before the Greek courts pursuant to Article 10 paragraph 16 of Law 2251/1994.
Special Antitrust Courts
Under Law 4529/2018, special chambers within the Athens Court of First Instance and the Athens Court of Appeals are competent to adjudicate over antitrust damages claims in Greece. As of August 2020, however, such chambers had not been set up. The recently published Law 4700/2020, pursuant to which special chambers for disputes concerning the Greek and EU legal framework on telecommunications, energy and data protection matters were established, could have been an opportunity to set up similar chambers for antitrust disputes, however, the legislator chose not to include such disputes in this law.
As the majority of competition authorities have done, the HCC has repeatedly expressed that it will not tolerate any anti-competitive practices in relation to the COVID-19 pandemic. To this end, a specialised task force was set up in March 2020, entrusted with monitoring the market and issuing guidance papers for undertakings to consider. The task force undertook, in particular, the following responsibilities:
This task force has been collecting the initiatives taken by the HCC during the current circumstances to ensure the proper functioning of the market, including the following actions taken by the HCC:
The establishment of this task force can be viewed as yet another indication of the determination of the HCC under its new administration to step up efforts to enforce competition rules.
Antitrust litigation, although still at an early stage in Greece, has seen some recent developments that are expected to give rise to antitrust cases before the Greek courts. The adoption of Law 4529/2018, transposing Directive 2014/104/EU, now specifically providing a framework to bring claims for damages stemming from an antitrust dispute; the determination of the HCC under its current administration to pursue the enforcement of antitrust rules in Greece; as well as the current COVID-19 situation, which may give rise to unlawful behaviour on the part of market players; may all contribute to the shifting of the current status quo. Law 4529/2018 could be expected to serve as the legal basis for such cases before the courts. Although Greek courts are experienced in the application of standard civil liability rules, and this background is expected to play a significant role in the development of Law 4529/2018-relevant case law, the stance of the Greek courts towards these rules, in particular, remains to be seen. The potential establishment of special courts to adjudicate such disputes, as foreseen in this law, comprised of judges who are experts in such cases, is expected to yield landmark judgments with the potential to transform not only the relevant jurisprudence in Greece, but also the relevant markets. Once these rules are activated and tested in Greece, the relevant experience could also result in their transformation to accommodate the needs of market participants. It remains to be seen how these rules will affect this jurisdiction and what the Greek courts’ position will be in the years to come.