Antitrust Litigation 2024 Comparisons

In Greece, the foundation of the legislative framework for private antitrust litigation is Law 3959/2011 (the “Greek Competition Act”). Although it does not explicitly address civil liability for damages, it primarily governs disputes between distributors, wholesalers and suppliers, and introduces TFEU 101 and 102 into the Greek legal system.

This landscape was significantly reshaped by the adoption of Law 4529/2018 (the “Damages Act”), which transposed Directive 2014/104/EU (the “Damages Directive”) into Greek law and was published on 23 June 2018. Although not yet widely utilised, this new law is expected to bolster private enforcement of competition law.

Complementing these laws, the general provisions of the Greek Civil Code on tort (Articles 914 and 919) and contractual liability (Article 330 et seq) continue to apply, as do the procedural rules in the Greek Code of Civil Procedure (GCCP).

As mentioned in 1.1 Current Framework for Private Antitrust Litigation, recent legislative developments in Greece include the enactment of the Damages Act, which transposes the EU Damages Directive into national legislation. This legislation has clarified the legal framework and increased awareness among victims of antitrust violations about their rights to seek damages. As a result, Greece is seeing some active antitrust court cases, predominantly follow-on lawsuits. These cases, which are not yet widely spread, usually originate from earlier antitrust infringement judgments, such as those involving the truck cartel or the telecoms sector, which have prompted subsequent damage claims.

The legal foundation for private antitrust lawsuits in Greece is established through various statutory provisions. The Greek Civil Code, particularly Articles 914 and 919, addresses tort liability and the framework for tort claims, while the procedural aspects are governed by the GCCP. The Damages Act enables individuals to bring claims for damages arising from antitrust violations before civil courts, and outlines specific procedures for seeking compensation for breaches of both EU and Greek competition regulations. Furthermore, the Greek Competition Act underpins the right to claim damages for competition law infringements.

Private antitrust claims can be pursued for violations of both EU and national competition law, such as cartels or abuse of market dominance, regardless of whether or not there has been a prior ruling by a competition authority. As a result, both follow-on and standalone claims are permissible, with standalone lawsuits frequently framed as tort claims in line with the general principles set forth in the Greek Civil Code.

Through such lawsuits, claims for damages are mainly raised where individuals or businesses seek compensation for financial harm or moral damage suffered due to antitrust violations. In addition, declaratory rulings can be sought to establish that a particular agreement or practice violates competition law, forming a basis for further claims. Finally, contracts or agreements infringing competition law can be declared null and void, relieving parties of obligations and potentially supporting further compensation claims.

In Greece, antitrust cases are primarily handled within the civil court system, whilst administrative courts have jurisdiction over challenges to decisions of the Hellenic Competition Commission (HCC).

Article 13 of the Damages Act pertains to the establishment of specialised divisions within the Athens Court of First Instance and the Athens Court of Appeal to handle damage claims under this law. As far as is known, these specialised divisions have not yet been set up and cases are handled by the competent commercial law chambers. The decision to delay the implementation was detailed in the Explanatory Report of the Damages Act, which cited the need to adequately staff these new divisions and to prevent retroactive jurisdictional changes for existing damage claims.

Article 9(1) of the Damages Act mandates that final decisions by the HCC, once they are no longer appealable, are binding for civil courts handling claims for damages raised for infringements of EU or national law. This binding effect encompasses the facts of the case, the legal evaluation of the conduct and the identification of the infringers, extending to their legal successors. Moreover, decisions by the European Commission that are no longer appealable, along with judgments by EU courts reviewing these decisions, are binding on civil courts, as reinforced by Article 9(1).

Under Article 9(2) of the Damages Act, decisions from competition authorities in other EU member states are accorded “full” evidential power, a higher standard than the “prima facie evidence” stipulated by the Damages Directive. As such, these decisions serve as full evidence of infringements of Articles 101 and 102 of the TFEU or the Competition Act, subject to rebuttal by the defendant.

In principle, under the Greek legal system, the burden of proof lies with the plaintiff, who must substantiate the conditions required for their claim as stipulated by Article 338 of the GCCP. The plaintiff is responsible for proving the existence of the following four conditions:

• infringement of competition law;
• damage;
• causation between the infringement and the damage; and
• fault.

Regarding the infringement of competition law, a final decision by the HCC or another competent authority is considered irrefutable evidence before civil courts for the existence of the violation. There is a rebuttable presumption of damage in cartel-related antitrust lawsuits, but not for other infringements like abuse of dominance. If it is excessively difficult for the plaintiff to precisely quantify the damage, the court can estimate the amount, considering the nature and scope of the infringement and the plaintiff’s diligence in gathering evidence.

The purpose of compensation is to restore the injured party to the financial condition they would have been in if the competition law violation had not occurred. Plaintiffs must present detailed elements for quantification, such as market characteristics and economic variables, whilst the court may seek the HCC's opinion on the quantification of damage; the HCC can also provide comments on the application of competition law provisions. Causation is established when the infringing act or omission is deemed sufficient to cause the damage in the ordinary course of events. The plaintiff must prove the causal link between the damage and the illegal conduct.

Finally, under Greek law, fault requires that the defendant acted intentionally or negligently, while they knew or should have known that their actions constituted a competition law infringement.

In Greece, the Damages Act includes provisions for the “pass-on” defence. Article 11(4) introduces a rebuttable presumption that overcharges are passed on to indirect purchasers, if it can be shown that:

• the defendant infringed competition law;
• the infringement resulted in an overcharge to the direct purchaser; and
• the indirect purchaser acquired goods or services affected by this infringement or derived from or containing them.

Furthermore, Article 11(5) clarifies that this presumption can be rebutted only if the court is persuaded by contradictory evidence; simply raising doubt is not enough. Under Article 11(2) of the Damages Act, which aligns with Article 13 of the Damages Directive, the defendant can argue that the plaintiff passed on the overcharge downstream, potentially reducing the damages awarded.

The right to compensation is recognised for any natural or legal person – consumers, undertakings and public authorities alike – regardless of whether or not there has been a prior finding of an infringement by a competition authority. In view of this, the claims can be raised at any stage. A five-year statute of limitation period is initiated at the time the injured party came to know or reasonably could be expected to have known:

• the behaviour and the fact that it constitutes an infringement of competition law;
• the fact that the infringement of competition law caused harm to it; and
• the identity of the infringer.

However, if the infringement continued, the limitation period starts as of the time the infringement ceased. The limitation period is suspended if any national competition authority (NCA) takes action for the purpose of the investigation or its proceedings in respect of an infringement of competition law to which the lawsuit for damages relates. The suspension ends one year after the final decision of the competition authority or after the proceedings are otherwise terminated. In any case, the claims against the infringer are time barred after 20 years as of the time the infringement ceased.

Private antitrust litigation in Greece can be a lengthy process, often extending over several years due to the complexity of the cases and the multi-tiered nature of the judicial system. On average, the initial phase at the court of first instance can take between two and three years, depending on the specifics of the case and the court's workload. If the judgment is appealed, proceedings at the appeal court level can add another two to three years. Further petitions for cassation before the Supreme Court (Areios Pagos) on legal errors only may extend the duration by an additional one to two years. Therefore, from the filing of the lawsuit to the final resolution, antitrust litigation typically takes around four to eight years, with some particularly intricate cases potentially taking longer.

The Damages Act does not provide a specific framework for collective lawsuits. However, there is a statutory basis for representative lawsuits in Greece, which provides a mechanism for consumer associations to collectively seek redress for antitrust violations. Specifically, Law 2251/1994 on consumer protection enables consumer associations to bring collective claims on behalf of their members. Such lawsuits are particularly relevant in antitrust cases where the infringement has caused widespread harm to consumers or other groups.

In Greece, the system for representative lawsuits operates primarily on an opt-in basis, particularly under Law 2251/1994 on consumer protection. This means that individuals must actively choose to request compensation based on a successful lawsuit raised by consumer associations, through relevant notification to the defendant and issuance of a payment order, in case it fails to respond to the notification. This opt-in approach contrasts with the opt-out systems seen in some other jurisdictions, where all affected individuals are automatically included in the collective lawsuit unless they explicitly choose to opt out.

The existing legal framework recognises both direct and indirect purchasers as potential plaintiffs in antitrust damages lawsuits. This recognition is aligned with the Damages Directive, which ensures that any person who has suffered harm because of an antitrust infringement has the right to claim compensation. Direct purchasers who buy directly from the infringing party can seek damages for overcharges resulting from the antitrust violation. Indirect purchasers who acquire products or services through intermediaries can also claim damages if they can demonstrate that the overcharge was passed down the supply chain to them.

In Greece, the concept of class certification, as seen in jurisdictions like the United States, is not explicitly provided for.

In Greece, the rules on jurisdiction and the applicable law for antitrust litigation are determined by a combination of national and EU regulations. Greek courts have jurisdiction over antitrust cases that involve infringements of Greek competition law (Law 3959/2011) and EU competition law (Articles 101 and 102 of the TFEU) affecting the Greek market. For cross-border cases within the EU, Regulation (EU) No 1215/2012 applies and allows a defendant to be sued in the member state where they are domiciled and, in antitrust cases, also in the member state where the harmful event occurred or is likely to occur.

The applicable law for non-contractual obligations arising from antitrust infringements is governed by the Rome II Regulation. According to Article 6(3) of Rome II, the law applicable to an antitrust infringement is the law of the country where the market is, or is likely to be, affected. In cases strictly within the Greek jurisdiction, Greek law, particularly the Competition Law Act, applies alongside the Greek Civil Code, covering both substantive and procedural aspects of antitrust enforcement. This dual framework is also explicitly regulated by the Damages Act and ensures that Greek courts can effectively handle cases within their jurisdiction and apply the appropriate legal principles.

In Greece, the procedure for the disclosure of documents in antitrust litigation is influenced by both national laws and EU Directives, following the guidelines of the Damages Act. More specifically, the Damages Act introduces rules for disclosing evidence during trials. Upon the request of an allegedly injured party that has presented a reasoned justification containing reasonably available facts and evidence sufficient to support the plausibility of its claim for damages, national courts are able to order the defendant or a third party to disclose relevant documents that are in their control.

The court applies the principle of proportionality when ordering the disclosure of evidence. In doing so, the law prescribes that the interest of undertakings to avoid lawsuits for damages following an infringement of competition law shall not constitute an interest that warrants protection. The court may also order the disclosure of evidence included in the file of the HCC. The HCC can state its views on the proportionality of disclosure requests, either acting on its own initiative or at the request of the court.

Legal professional privilege is protected in Greece, including in antitrust cases. Article 4(6) of the Damages Act explicitly addresses the protection of legal privilege by referencing its extent under both EU and national laws, while the Explanatory Report of the Act explains that this dual reference ensures that the higher standard of protection is applied on a case-by-case basis. This approach is likely considered necessary because, under national law, legal professional privilege covers not only external counsel but also in-house counsel, who are considered to maintain their independence. In view of this, communications between clients and their lawyers are generally confidential and cannot be used as evidence against the client.

In Greece, leniency and settlement agreements with NCAs are specifically protected from disclosure in private antitrust litigation. Article 4(4) of the Damages Act ensures the confidentiality of leniency statements and settlement submissions, prohibiting their use in civil proceedings. This encourages co-operation with competition authorities by safeguarding sensitive information.

National courts cannot order the disclosure of leniency statements and settlement submissions at any time. However, they may order the disclosure of the following categories of evidence, only after the HCC has closed its proceedings:

• information prepared specifically for HCC proceedings;
• information the HCC has created and sent to parties; and
• withdrawn settlement submissions.

The HCC may submit observations on the proportionality of disclosure requests to the national court.

Furthermore, regarding antitrust litigation, as per Article 15 of the Damages Act, Greek courts handling a damages lawsuit may suspend proceedings for up to two years if the parties are engaged in consensual dispute resolution concerning the claim. Following a consensual settlement, the claim of the settling injured party is reduced by the share of harm caused by the settling co-infringer. Any remaining claim of the injured party can only be pursued against non-settling co-infringers, who are not allowed to recover contributions for the remaining claim from the settling co-infringer.

In Greece, the process for hearing witnesses in civil litigation is mainly dictated by the GCCP, which places a strong emphasis on written procedure. Typically, witnesses provide their testimony through sworn affidavits, which serve as written statements submitted to the court. The party seeking a sworn affidavit must serve a notice to the opposing party at least two working days before the affidavit is taken, indicating the lawsuit concerning the affidavit, as well as the location, date and time of the affidavit, along with the name, profession and address of the witness. This method streamlines proceedings, as it reduces the need for in-person appearances and allows the court to focus on the written evidence presented.

While it is not common for witnesses to be examined in person, there are circumstances in which the court may call them to provide live testimony. In such cases, the witnesses are questioned by the attorneys representing both parties, allowing for a comprehensive exploration of the facts at hand. The court also retains the right to ask questions, aiming to clarify any ambiguities or delve deeper into the witness's affidavits.

Witnesses are not typically heard in appellate courts, with a few exceptions, and they are not permitted at the Supreme Court of Greece.

In Greece, expert witnesses are integral to antitrust litigation, offering specialised knowledge and insights on complex economic or technical issues that are beyond the general expertise of the judges or parties involved. The procedure for involving expert witnesses begins with the parties requesting the court to appoint experts, specifying the required expertise and the relevance of the testimony to the case. The court can appoint experts from an approved list or those who are deemed appropriate, subject to its discretion.

Once appointed, expert witnesses are responsible for analysing relevant evidence, preparing detailed written reports and presenting their findings to the court. These reports are submitted prior to the court hearings, to allow the parties time for review. During the hearings, experts are questioned by the proxy attorneys of both sides, and the court may also pose questions to ensure clarity and understanding of the expert opinions. Experts are expected to provide objective and impartial assessments based on their expertise, and the parties can also appoint experts to support or contradict the expert opinion.

In Greece, damages in antitrust cases are assessed based on the principle of compensation, aiming to restore the plaintiff to their pre-infringement financial position. This includes actual damages, such as overcharges, and consequential losses like lost profits. Amounts for the restitution of the moral damage suffered are also awarded. The calculation of damages often requires economic analysis to quantify the impact of the infringement. Greek law does not provide for punitive damages, focusing instead on compensatory damages to cover actual harm.

As mentioned in 2.5 Pass-On Defence, the “passing-on” defence is available, allowing defendants to argue that the overcharge was passed down the supply chain to the plaintiff’s customers, potentially reducing the entitlement to damages. The burden of proof that the overcharge was passed lies with the defendant, who may reasonably require disclosure from the plaintiff or from third parties. Full evidence is not required regarding the exact amount of the overcharge.

Interest on damages is also provided for in Article 3 (3) of the Damages Act, and is calculated from the date the damage occurred until compensation is paid.

In Greece, entities that collectively violate competition law are held jointly and severally liable for the damage caused by their actions. However, a notable exception exists for small and medium-sized enterprises (SMEs), as defined by Commission Recommendation 2003/361/EC, which can be held liable solely to their direct and indirect purchasers if their market share remained below 5% during the infringement period, and if imposing full liability would jeopardise their economic viability. This leniency is not granted if the SME was the instigator of the infringement, pressured others into participating or has a history of previous violations of competition law.

In addition, Article 10(6) of the Damages Act specifically addresses the liability of immunity recipients, limiting their responsibility to the harm inflicted only on their direct and indirect customers or suppliers. Furthermore, Article 10(7) stipulates that courts are tasked with assessing the extent of contribution that immunity recipients owe to co-infringers for compensation awarded to other harmed parties, taking into account the degree of responsibility attributed to them for the damages incurred.

In Greece, there is a legal basis and procedure for claiming contributions from third parties in the context of antitrust litigation. If a defendant who has been ordered to pay damages believes that other parties also bear responsibility for the infringement, they can seek contributions from these third parties. The procedure involves the primary defendant filing a claim against the third parties, which are deemed to share liability for the damages. This claim is typically brought either in the same proceedings or in separate proceedings. The primary defendant must demonstrate that the third parties are liable for a portion of the damages or are otherwise responsible for the infringement.

In Greece, injunctive relief is available in antitrust litigation to prevent ongoing or imminent damage resulting from antitrust violations. The test for granting injunctive relief generally involves demonstrating that the applicant faces a serious risk of harm that cannot be adequately remedied by compensation alone. The applicant must show that the injunction is necessary to prevent further damage, and that the balance of convenience favours granting the injunction.

To obtain an injunction, the applicant must file a formal petition with the court, presenting evidence and arguments to justify the need for immediate relief. In significantly urgent cases, it is possible to apply for preliminary order without notice to the other parties, known as an ex parte procedure. Injunctions can be obtained relatively quickly. The timeframe for obtaining a preliminary order depends on the complexity of the case and the court's schedule but it can often be achieved within a few days, whilst the award of an injunction can take one to three months.

If an injunction is granted but the applicant ultimately fails at the trial of the substantive case, then there is a possibility that the applicant might be required to compensate the defendant for any losses incurred due to the injunction, if the latter was improperly obtained.

In Greece, methods of alternative dispute resolution (ADR) are available and can be utilised in antitrust cases, but they are not mandatory. The primary ADR methods include mediation and arbitration, which offer alternative venues for resolving disputes outside of traditional court proceedings.

Mediation involves a neutral third party facilitating negotiations between the disputing parties to help them reach a mutually acceptable settlement. Mediation is encouraged as a way to resolve disputes efficiently and amicably but it is not mandatory, apart from an initial mediation session in specific cases. Therefore, parties can voluntarily choose to engage in mediation at any stage of the litigation process.

Arbitration is another ADR method, where the parties agree to submit their dispute to one or more arbitrators who make a binding decision. Arbitration can be a quicker and more flexible alternative to court proceedings but, like mediation, it is not mandated by law for antitrust disputes. Therefore, parties must agree to arbitration and include an arbitration clause in their contracts or agree to submit the dispute to arbitration after it arises.

There is no specific framework governing litigation funding in Greece, but there are various avenues for financial support in antitrust litigation. Options include legal costs insurance, which can cover litigation expenses, and third-party funding arrangements, where a funder provides financial backing in exchange for a portion of any damages awarded, which is assigned to the funding party. Legal aid is also available based on financial need, although it is more frequently utilised in general cases rather than specifically for antitrust disputes. Furthermore, some lawyers may operate on a contingency fee basis, linking their fees to the success of the case, while they fund the proceedings until the issuance of a judgment.

In Greece, the prevailing party in antitrust litigation can typically recover their legal costs from the losing party, based on the principle that costs should reflect the reasonableness and necessity of the expenses incurred. The court has discretion in determining the amount awarded, considering the specific circumstances of the case. However, costs might be set off in certain circumstances, due to the complexity of the legal matters addressed by the court.

Parties can also apply for an order requiring security for costs if they believe that the opposing party might be unable to cover the costs if they lose. To obtain such an order, the applicant must demonstrate a genuine risk of non-payment, often supported by evidence of the opposing party's financial situation. If granted, the party required to provide security must deposit the amount with the court, covering potential costs awarded if the applicant prevails. Failure to provide this security within the specified timeframe may result in dismissal of the claim or defence.

In Greece, parties engaged in antitrust litigation have the right to appeal a judgment rendered by the court of first instance, providing a mechanism for challenging judgments.

Appeals can be submitted to the appeal courts, where the grounds for appeal generally encompass both legal arguments and factual determinations, depending on the specifics of the case and the court involved. Further recourse is available through petitions for cassation to the Supreme Court of Greece (Areios Pagos), which serves as the country's highest judicial authority and addresses legal errors, rather than re-assessing factual findings. The Supreme Court's role is to determine whether the law was correctly applied by the lower courts, without revisiting the evidence or factual conclusions drawn in earlier proceedings.

Consequently, while the re-examination process allows for the examination of a wide range of issues, it is important to note the distinct scope of review between the appeal courts, which can evaluate both legal and factual matters, and the Supreme Court, which is limited to legal questions.

In Greece, several key trends are emerging in the competition and antitrust litigation landscape. Anticipated legislative developments include a strengthening of the legal framework surrounding civil antitrust claims, particularly in light of EU Directives aimed at enhancing collective redress mechanisms. This could facilitate a more robust litigation environment for plaintiffs.

Moreover, civil antitrust litigation is expected to increasingly target specific sectors, especially digital markets and technology, as these areas experience rapid growth and heightened scrutiny. The proliferation of digital platforms has raised concerns regarding competition, leading to potential claims against major tech companies for abuse of dominance and anti-competitive practices.

There may also be a noticeable shift from traditional cartel damages claims to cases centred around dominance, reflecting a growing awareness of the need to address anti-competitive behaviours beyond collusion. Finally, an uptick in cross-border litigation strategies is likely as plaintiffs seek to leverage harmonised EU competition laws, allowing for more co-ordinated actions against multinational corporations.