On 21 July 2016, the Hellenic Competition Commission ("HCC") adopted the terms and conditions of the settlement procedure in cartel cases, modelled after the EU equivalent procedure, under which companies cooperating in an antitrust investigation can receive a fine reduction.
The aim of the new procedure is to simplify and speed up the handling of pending cases, and to introduce a streamlined administrative process which would allow the HCC to adopt infringement decisions relating to Article 1 of the Greek Competition Act and/or Article 101 TFEU more rapidly. The settlement procedure is also designed to reduce the number of appeals against the HCC's decisions before administrative courts.
The new Greek settlement procedure covers cases where undertakings clearly and unequivocally acknowledge their participation in horizontal agreements and the subsequent breach of competition law under Article 1 of the Greek Competition Act and/or Article 101 TFEU. By doing so, they can obtain a fine reduction of 15% from the fine imposed under HCC's current guidelines on fines, as long as certain conditions are met.
Firstly, undertakings or associations of undertakings must unequivocally acknowledge to having participated in an infringement and accept their liability relating to that infringement. Secondly, parties must agree not to request full access to the file, or an oral hearing before the HCC's Board.
The official settlement proposal of each party must include at least:
- Acknowledgement of the parties' participation and liability for the infringement;
- Acceptance of the maximum amount of the fine that may be imposed by the HCC;
- The parties' confirmation that they have been informed of the HCC's finding of an infringement and that they have been given the opportunity to make their views known to the authority;
- The parties' confirmation that, in view of the above, they waive their right to obtain full access to the HCC's file or to be heard in an oral hearing;
- Waiver of the right to challenge HCC's jurisdiction and the validity of the procedure followed.
The HCC has discretion to decide which cases qualify for settlement, taking into account a number of factors in making its assessment, such as (i) the number of companies under investigation and the number of companies genuinely interested in settlement; (ii) the number and nature of the alleged infringement(s); (iii) whether there is scope for achieving any procedural efficiencies or resource savings through settlement; and (iv) any aggravating circumstances.
The initiation of settlement discussions can be made at the parties' initiative at any stage of the investigation, but the HCC pointed out that procedural efficiencies will be less likely if settlement is initiated after the statement of objections has been issued.
The HCC clarified that the settlement procedure does not involve negotiation over the evidence or the finding of an infringement. Nonetheless, the parties will be able to make themselves heard in the framework of the settlement procedure, and will be able to influence the HCC's objections through argument. Bilateral meetings between the parties and the HCC are an integral part of the settlement procedure, aiming at providing each party with the necessary information regarding the case. This includes the material facts of the infringement and their legal assessment; the duration and gravity of the liability of each undertaking; evidence pointing to violation of competition law; and the calculation of the fine to be imposed.
Parties' submissions and any other statements made in the course of settlement discussions are considered confidential and cannot be used in the context of other judicial or administrative proceedings.
Finally, the HCC stated that the use of the new settlement procedure may be combined with the leniency regime. A leniency applicant may settle a case and benefit from both leniency and settlement discussions. As far as the fine is concerned in such a case, the fine reduction awarded under the settlement procedure and the fine reduction under the leniency programme will be cumulative.
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